15-001816 Marcia Poole vs. Westminister Village Of Pensacola Status: Closed Recommended Order on Wednesday, June 3, 2015.

Summary: Petitioner failed to meet her burden of proving that Respondent committed an unlawful employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MACIA POOLE ,

Petitioner ,

vs. Case No . 1 5 - 1816

WESTMINSTER VILLAGE OF

PENSACOLA ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on June 1, 2015 , by

video teleconference at sites in Tallahassee and Pensacola,

Florida, before E. Gary Early, a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: None

For Respondent: Bri an J. Moran, Esquire

Christopher R. Parkinson, Esquire

Moran Kidd Lyons Johnson, P.A.

111 North Orange Avenue, Suite 900

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Petitioner , Macia Poole , was subject to an

unlawful employment practice by Respondent, Westminster Village

of Pensacola , on account of h er sex or due to retaliation for

her opposition to an unlawful employment practice in violation

of s ection 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On August 26, 20 14 , Petitioner filed a complaint of

discrimination w ith the Florida Commission on Human Relations

(FCHR) which alleged that Respondent violated s ection 760.10, by

discriminating against h er on the basis of h er sex or as

retaliation .

On February 24, 2015 , the FCHR issued a Determinatio n:

No Cause and a Notice of Determination: No Cause, by which the

FCHR determined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On March 30,

2015 , Petitioner filed a Petitio n for Relief with the FCHR . The

Petition was transmitted to the Division of Admini strative

Hearings to conduct a final h earing.

T he final hearing was s cheduled for J une 1, 2015, by video

teleconference in Tallahassee, Florida , and Pensacola , Florida .

P etitioner failed to appear at the final hearing . After

waiting for an appropriate period of time, and h a ving received

no indication that Petitioner intended to make an appearance,

the final hearing was adjourned .

References to statutes are to Florida Statutes (201 4 )

unless otherwise noted.

FINDINGS OF FACT

1. On April 3, 2015, PetitionerÓs Employment Complaint of

Discrimination and Petition for Relief were transmitted to the

Division of Administrative Hearings by the Florida Commission on

Human Relat ions for a formal administrative hearing to be held

in accorda nce with s ection 120.57, Florida Statutes.

2. On April 10, 2015, a Notice of Hearing by Video

Teleconference was entered which set the final hearing for

June 1, 2015, at 9:00 a.m., Central Time , (10:00 a.m., Eastern

Time), at video teleconference sites in Pensacola , at the Office

of the Judges of Compensation Claims, Video Teleconferencing

Room, 700 South Palafox Street, Suite 305 , Pensacola, Florida,

and in Tallahassee, at the Division of Admin istrative Hearings,

the DeSoto Building, 1230 Apalachee Parkway , Tallahassee,

Florida .

3. On May 4, 2015, one Subpoena Duces Tecum and four

Subpoenas Ad Testificandum were issued at the request of

Petitioner.

4. On May 14, 2015, Petitioner electronically filed her

Notice of Appearance in this proceeding.

5 . On May 26, 2015, Petitioner filed a Request to

Reschedule Video Hearing. The Request made no allegation of an

inability to attend the hearing, only that her attendance would

be an Ðinconvenience.Ñ The Request was denied. The filing of

the Request is convincing evidence that Petitioner knew that the

final hearing was scheduled to be heard in accordance with the

Notice of Hearing by Video Teleconference .

6 . On June 1, 2015, at the scheduled date, t ime, and

place, the final hearing was convened. Mr. Moran, representing

Respondent, Westminster Village of Pensacola, made his

appearance. Petitioner did not appear. The final hearing was

recessed for twenty minutes to allow Petitioner to appear.

7 . During the recess, the undersigned confirmed that the

Division had not received any communication from Petitioner of

exigent circumstances that may have interfered with her

appearance at the final hearing.

8 . After twenty minutes had passed, the final hea ring was

re - convened. Petitioner was not in attendance. Respondent was

prepared to proceed, and had its witnesses in attendance at the

Pensacola video location . Mr. Moran confirmed that he had

received no emails from Petitioner , that being their normal form

of communication.

9 . At 9: 25 a.m., Central Time, (10: 25 a.m., Eastern Time) ,

the final hearing was adjourned.

10 . There was no evidence presented at the final hearing

in support of PetitionerÓs Employment Complaint of

Discrimination and Petition for Relief.

CONCLUSIONS OF LAW

11 . Sections 120.569 and 120.57(1), Flo rida Statutes,

grant the Division of Administrative Hearings jurisdiction over

the subject matter of thi s proceeding and the parties.

12 . The Florida Civil Rights Act of 1992 (ÐFCRAÑ), c hapter

760, Florida Statutes, prohibits discrimination in the

workplace.

13 . With regard to PetitionerÓs claim of discrimination on

the basis of sex , s ection 760.10 (1) provides, in pertinent part:

(1) It is an unlawful employment practice

for an employe r:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

n ational origin, age, handicap, or marital

status.

14 . With regard to PetitionerÓs claim of retaliation,

section 760.10(7) provides, in pertinent part:

(7 ) It is an unlawful employment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under this section, or

because that person has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this section.

15 . Petitioner ha s the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3 rd DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

16 . Petitioner presented no direct, statistical, or

circumstantial evidence of discrimination by Respondent in its

pers onnel decisions affecting Petitioner.

17 . Petitioner presented no direct, statistical, or

circumstantial evidence of retaliation by Respondent against

Petitioner as a result of PetitionerÓs opposition to acts of

discrimination directed against others as a result of their

race, color, religion, sex, national origin, age, handicap, or

marital status , or as a result of PetitionerÓs participation in

an investigation, proceeding, or hearing under section 760.10 .

18 . Because Petitioner failed to put forth suff icient

evidence that Respondent had some discriminatory or retaliatory

reason for its personnel decision , her petition must be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida C ommission on Human

Relations issue a final order finding that Respondent,

Westminster Village of Pensacola , did not commit an unlawful

employment practice as to Petitioner, Macia Poole , and

dismissing the Petition for Relief filed in FCHR No. 2014 - 0 1235 .

D ONE AND ENTERED this 3rd day of June , 2015, in

Tallahassee, Leon County, Florida.

S

E. GARY E ARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of June , 2015.

COPIES FURNISHED :

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 E splanade Way, Room 110

Tallahassee, Florida 32399

Brian J. Moran, Esquire

Moran Kidd Lyons Johnson, P.A.

111 North Orange Avenue, Suite 900

Orlando, Florida 32801

(eServed)

Macia Deanne Poole

Apartment 176

6901A North 9th Avenue

Pensacola, Florida 325 04

(eServed)

Christopher R. Parkinson, Esquire

Moran, Kidd, Lyons, and Johnson, P.A.

111 North Orange Avenue

Orlando, Florida 32801

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency th at

will issue the Final Order in this case.