18-002697 Robert E. Pace, Sr. vs. Saddle Creek Corp. Status: Closed Recommended Order on Monday, October 22, 2018.

Summary: Petitioner did not prove Respondent discriminated against him because of his race when it did not provide him "light duty" work.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT E. PACE, SR.,

Petitioner,

vs. Case No. 18 - 2697

SADDLE CREEK CORP.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 14, 2018, t he final hearing in this matter was

conducted by Hetal Desai , Administrative Law Judge of the

Division of Administrative Hearings, in Lakeland , Florida.

APPEARANCES

For Petitioner: Robert E. Pace, Sr. , pro se

1100 N orth Davis Avenue

Lake land, Florida 33805

For Respondent: Helen Price Palladeno, Esquire

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Petitioner, Robert E. Pace, Sr. , was subject to an

unlawful employment practice by Respondent, Saddle Creek

Corporation (Saddle Creek), based on his race in violation of the

Florida Civil Rights Act (FCRA) when it did not offer him Ð light

duty Ñ work while he was injured.

PRELIMINARY STATEMENT

On June 19, 2017 , Petitioner filed an Employment Complaint

of Discrimination with the Florida Commission on Human Relations

( Commission) alleging the follow ing:

I am an African American. I was

discriminated against because of my race. I

began working for Respondent on January 22,

1996. My most recent position title was

Forklift Driver. I sustained an injury and

my doctor placed me on light duty. On

Janua ry 24, 2017, Jason Jackson (Manager)

would not allow me to return to work while I

was on light duty. However, a white employee

(Jacob Bigsby) was injured and he was allowed

to return to work on light duty. Also

Jessica Swinyner (white female) was injured

at home and she was allowed to return to work

with restrictions.

The Commission issued a Ð Determination: No Reasonable

Cause Ñ on May 15, 2018.

On May 22, 2018 , Petitioner filed a Petition for Relief with

the Commission to contest the Commission Ó s dete rmination. The

next day, the Commission transmitted the Petition to the Division

of Administrative Hearings (DOAH) , where it was assigned to the

undersigned and noticed for a final hearing.

After one continuance, the final hearing was held on

September 1 4, 2018 . Petitioner presented the testimony of two

Saddle Creek employees , Brenda Fergu son and Jessica Swinyer; and

Exhibits P1 through P3 were admitted into evidence . Respondent

called Petitioner as a witness and offered the testimony of two

other witne sses: Carol Arkins, the site manager; and Jason

Jackson, Petitioner Ó s shift supervisor. Respondent Ó s exhibits R1

through R22 were admitted into evidence.

The parties indicated they would not be ordering a

transcript . Th erefore , the parties were advised to submit

proposed recommended orders to DOAH within ten days, or no later

than September 24, 2018. Both parties timely filed post - hearing

submittals which were duly considered in preparing this

Recommended Order . The rendering of this Recommended Order w as

delayed because of the unexpected closure of the Division of

Administrative Hearings Ó Tallahassee office from October 9 to

October 12 , 2018, caused by Hurricane Michael.

Unless otherwise indicated , a ll statutory references are to

the 2017 version of th e Florida Statutes .

FINDING S OF FACT

Parties and Relevant Policies

1. Petitioner is an African - American male, who w as a Saddle

Creek employee for over 24 years. 1/

2. Saddle Creek is in the business of warehous ing and

distributing products and operates a number of worksites,

including the Sam Ó s Club Distribution Warehouse (SC Warehouse),

where Petitioner was most recently employed. 2/ Carol Arkins was

the manager of the SC Warehouse.

3. Saddle Creek maintains a number of policies in its 2008

employee hand book that are relevant to these proceedings. First,

it has an Ð Equal Opportunity Ñ policy which purports a philosophy

of Ð fair treatment Ñ and states that it Ð employs, trains,

compensates and promotes candidates and associates without regard

to race. Ñ This policy applies to all aspects of employment ,

including job benefits.

4. Second, Saddle Creek has an Ð Injury or Illness Ñ policy ,

which provides separate procedures and remedies for injuries and

illness es dep ending on whether they are work - related. For

no nwork - related injuries , such as the one suffered by Petitioner,

this policy states:

We will permit associates to work if they

have work restrictions for non - work related

injuries, personal illnesses or accidents on

a case by case basis depending upon the

r estriction and our ability to accommodate

the restrictions. Allowing associates to

continue working in jobs that could further

injure or hinder improvement in medical

conditions is not in the best interest of the

associate or the Company. Upon release fo r

full duty from a physician, the associate may

resume normal work activities .

5. Saddle Creek also had various types of paid leave that

employees could utilize while they were sick or injured.

Ð Vacation leave Ñ could be used for absences with prior app r oval.

Vacation leave accumulates and carrie s over from year to year.

Saddle Creek pays employees for an y unused vacation leave at the

end of his or her tenure .

6. Ð Personal time Ñ leave is available for employees to be

used at any time for any reason , inc luding illness or injury.

Personal time does not carry over and , if not used, expires.

Petitioner Ó s Job Description

7 . More than 50 people work on three different shifts at

the SC Warehouse . During the relevant time period, Petitioner

worked 12 - hour shi fts, from approximately 5:00 a.m. to 5:00 p.m.

on Monday s , Tuesday s , and Wednesday s . Jason Jackson was

Petitioner Ó s shift supervisor.

8 . At all times relevant to these proceedings , Petitioner

held t he position of warehouse worker/ forklift driver. The

w ritten job description for Ð Warehouse Worker Ñ indicates workers

must be able to walk, stand, stoop, climb, and lift materials or

equipment in order to perform their job duties. Other war ehouse

worker positions include quality controller, verifier, dumber,

and lead worker. There is cross over of duties among the

warehouse workers, but a ll of these positions require physically

intensive work.

9 . The forklift operator position requires, among other

things, climbing in and out of the forklift machine four t imes

during a shift: the start of the shift (up into the machine) ;

during the break (up and down) ; during lunch (up and down); and

at the end of the day (down from the machine).

Petitioner Ó s Work Restrictions

10 . On Monday, January 23 , 2017, Petitioner w as in a

non w ork - related car accident.

11 . Petitioner reported to work the next day, Tuesday,

January 24, but worked for only a few hours before clocking out.

He was paid with Ð personal time Ñ leave for 10 hours -- the

remainder of his January 24 shift.

1 2 . On Wednesday, January 25 , Petitioner worked his regular

shift; he was not scheduled to work again until Monday ,

January 30.

1 3 . Meanwhile, on Thursday, January 26, Petitioner obtained

a medical note which states, Ð Robert Pace has been under my care

tod ay, 01/26/17, may return to work on Monday, 01/30/17. Ñ

1 4 . The next work day, Monday, January 30, Petitioner

worked his normal shift.

1 5 . On Tuesday, January 31, Petitioner did not come to work

and was paid for 12 hours with vacation leave.

16 . O n Wed nesday, February 1 , Petitioner return ed to work

and provided his supervisor with a form from his medical provider

which indicated Petitioner was restricted in the type of work he

could perform . Specifically, the work restriction form placed

limitations on the following ac tivities until February 14 :

a. lifting, pushing or pulling 10 pounds;

b. stooping, bending or climbing; and

c. kneeling or squatting.

Petitioner requested alternative work , such as sweeping or

tallying products (verifier), but was t old there were no jobs for

him to do. He was sent home and paid with personal time leave

for 12 hours .

1 7 . Arkins made the decision to send Petitioner home on

February 1. She explained she made her decision because there

were no Ð light duty Ñ positions, and there was no other such work

in the SC Warehouse that would not violate Petitioner Ó s work

restriction s . She noted that of particular concern was the

medical restriction that did not allow him to bend or climb, so

she believed he would be unable to ge t in and out of the forklift

machine. She also testified all of the other positions required

unloading or moving heavy boxes over 10 pounds. Jackson

corroborated this testimony.

1 8 . On February 1 , Respondent Ó s Human Resources m anager

sent Petitioner a letter indicating that Saddle Creek had no work

within his current work restrictions. Because the restrictions

were for more than one week, t he letter informed Petitioner of

his options regarding Family Medical Leave, short term

disability, and how he cou ld use his personal time and /or

vacation leave. It also required Petitioner to provide a work

release noting any restrictions upon his return . The undersigned

finds there were no Ð light duty Ñ positions available at the

SC Warehouse that would conform to his work restrictions during

this time frame.

1 9 . Petitioner was not scheduled to work agai n until

Monday, February 6 . On that date he arrive d at work with a note

from his medical provider dated February 3, indicating Petitioner

was released to work wit h Ð No restrictions. Ñ

20 . Petitioner was returned to his regular schedule and

worked February 6, 7 and 8; he was allowed to Ð pick up Ñ an extra

shift on Saturday, February 11. In total, Petitioner missed one

day of work (February 1) due to his work restr ictions.

Alleged Comparators

2 1 . Petitioner alleged in his charge of discrimination and

at the hearing that white employees were not sent home or

required to take leave when they were injured . R ather , when

white employees were injured , they were allo wed to perform Ð light

duty Ñ positions. Petitioner identified Jessica Swinyer and Jacob

Bigsby as two white employees who were injured, but allowed by

Saddle Creek to work in the warehouse , instead of being sent

home.

2 2 . Petitioner introduced photograph s of Swinyer working in

the warehouse with a brace on one of her hands. In these photos

Swinyer is standing near a c alculator holding paperwork . Swinyer

testified at the time of the photos she held the position of

verifier at the SC Warehouse. She injur ed her hand in a non work -

related injury in May 2017.

23. Swinyer furnished a medical note to Saddle Creek dated

May 8, indicating she had Ð [n]o use of Right Hand until

reevaluated. Must wear splint at all times while at work. Ñ

Swinyer did not return t o work until she was released from her

wo rk restrictions on May 12, with a medical note stating she Ð may

return to work with no restrictions, but to wear brace for an

additional week Î 2 weeks. Ñ

24. Swinyer did not work her regular s hifts between May 8

and May 12. In total she missed three shifts and returned to

work on May 15. During this time she was paid using Ð personal

time Ñ leave. When she returned to the SC Warehouse, she

performed all of her duties while using a hand brace. Swinyer Ó s

testimony was corroborated by Arkins, as well as her time cards.

2 5 . Petitioner believed Swinyer was allowed to perform less

arduous tasks than her normal duties while she worked with the

brace, but Swinyer testified to the contrary ; Swinyer could

perform all her duties wi th a brace. Petitioner admitted he was

not privy to Swinyer Ó s medical documentation, nor was he aware

that she was on Ð personal time Ñ leave at the time her work

restrictions were in effect. The undersigned finds Swinyer Ó s

testimony believabl e and consistent with the documentation.

2 6 . Petitioner also claimed Bigsby, a forklift operator,

was all owed to operate the forklift while he was injured. The

evidence established in January 2017, Bigsby suffered an on - the -

job injury during an extra sh ift while he was Ð throwing cases of

writing pads. Ñ

27. Bigsby provided Saddle Creek with medical documentation

which stated he had an injured groin, but could return to work on

January 20, on Ð Limited duty: No squatting. Minimal bending &

climbing. N o lifting more than 10 pounds. Ñ

28 . Bigsby Ó s time card indicates he was placed on Ð W1, Ñ

defined as Ð Workers Comp - Dr. Appt Ñ leave on Friday , January 20;

worked his next two shifts on Monday and Tuesday, January 23

and 24; and took a vacation day for h is shift scheduled on

Wednesday, January 25. Although it is unclear when he returned

to work, he presented Saddle Creek with a subsequent note , dated

January 27, indicating he had no work restrictions.

29. Jackson confirmed Bigsby made a workers Ó compens ation

claim for the groin injury and was on work restrictions. He

allowed Bigsby to work on the forklift because Bigsby Ó s

restrictions stated he was allowed to perform Ð minimal Ñ bending

and climbing. Jackson believed this allowed Bigsby to climb into

and out of the forklift. In contrast, Jackson believed the

medical documentation for Petitioner did not allow any bending or

climbing, and , thus , Petitioner was not allowed to get into or

out of the forklift.

30. Petitioner admitted he never saw the medical

documentation for Bigsby and did not have knowledge of the

specific work restrictions imposed on him. Based on the

unrebutted evidence, it is clear Bigsby Ó s work restrictions were

narrower than Petitioner Ó s , and allowed Bigsby to operate the

forklift.

3 1. As explained below, Petitioner has failed to

demonstrate by a preponderance of the evidence that Saddle Creek

treated him differently than non - African American employees when

it did not allow him to work due to the work restrictions.

Accordingly, Peti tioner failed to meet h is burden of proving

Saddle Creek committed an unlawful employment action against h im

in violation of the FCRA.

CONCLUSIONS OF LAW

3 2 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569, 120.57(1), and 760.11(7),

Florida Statutes. See Fla. Admin. Code R. 60Y - 4.016 ; and

McElrath v. Burley , 707 So. 2d 836, 841 (Fla. 1st DCA

1998) (finding FCRA on its face satisfies the right to due process

by provi ding for an administrative hearing followed by judicial

appellate review ). 3 /

33 . The FCRA protects individuals from discrimination in

the workplace. See §§ 760.10 and 760.11, Fla. Stat. Section

760.10 states, in pertinent part:

(1) It is an unlawful e mployment practice

for an employer:

(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 Ó s race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

34 . Because the FCRA is patterned after federal anti -

discrimination laws , such as Title VII of the Civil Rights Act of

1964 (Title VII) , courts rely on f ederal T itle VII cases w hen

analyzing race discrimination claims brought pursuant to the

FCRA . See Ponce v. City of Naples , 2017 U.S. Dist. LEXIS 169635,

at *11 (M.D. Fla. Oct. 2017) ; Harper v. Blockbuster Entm Ó t Corp. ,

139 F.3d 1385, 1387 (11th Cir. 1998)(findin g complaint fails for

the same reason s under Title VII and the FCRA); Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009) .

35 . Petitioner puts forth a Ð disparate treatment Ñ theory of

race discrimination. Specifically, he alleges Sa ddle Creek

violated the FCRA based on h is race by providing injured white

employees Ð light duty Ñ work, but denying him the same opportunity

when he was injured .

36 . The burden of proof in an administrative proceeding is

on Petitioner as the complainant. See Dep Ó t of Banking & Fin.,

Div. of Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d

932, 935 (Fla. 1996)( Ð The general rule is that a party asserting

the affirmative of an issue has the burden of presenting evidence

as to that issue. Ñ ). To show a violation of the FCRA , Petitioner

must establish , by a preponderance of the evidence, a prima facie

case of discrimination . See St. Louis v. Fla. Int Ó l Univ. , 60 So.

3d 455, 458 - 59 (Fla. 3d DCA 2011)(reversing jury verdict awarding

damages on FCRA raci al discrimination and retaliation claims where

employee failed to show similarly situated employees outside his

protected class were treated more favorably). A Ð prima facie

case Ñ means it is legally suf ficient to establish a fact or that a

violation happe ned unless disproved.

37 . Ð Preponderance of the e vidence Ñ is the Ð greater weight Ñ

of the evidence, or evidence that Ð more likely than not Ñ tends to

prove the fact at issue. Th is means that if the undersigned found

the parties presented equally compe tent substantial evidence,

Petitioner would not have proved his claims by the Ð gr eater

weight Ñ of the evidence, and would not prevail in this proceeding.

See Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000) .

38 . C ourts follow the framework set forth in McD onnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 04, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973), for establishing a n FCRA discrimination

claim based on disparate treatment . See , e.g. , St. Louis v. Fla.

Int Ó l Univ . , 60 So. 3d at 458 - 59 . In this case, the fr amewor k

involves a three - step process. Petitioner must first establish a

prim a facie case of race discrimination; i f Petitioner does so, a

presumption of disc rimination arises against Respondent . Then,

Res pondent has the burden to present a legitimate, n on -

discriminatory reason for not placing Petitioner on light duty and

sending him home until his restrictions were lifted or changed; if

Respondent can establish such a reason , Petitioner Ó s presumption

of discrimination evaporates. Finally , Petitioner has the burden

of proving the reason established by Respondent was a pretext for

discrimination. A Ð pretext Ñ is a reason giv en in justification

for conduct that is not the real reason . McDonnell Douglas

Corp. , 411 U.S. at 802; Scholz v. RDV Sports, Inc. , 71 0 So. 2d

618, 624 ( Fla. 5th DCA 1998) ( evaluating a race discrimination

claim under FCRA ).

39 . To meet the first step , Petitioner must show : (1) he

belongs to a protected class (race); (2) he was qualified for his

position (forklift operator) ; (3) he was subjected to an adverse

employment action (refused Ð light duty Ñ ) ; and (4) h is employer

treated similarly s ituated employees outside of his protected

class (Swinyer and Bigsby) more favorably than he was treated.

See McDonnell Douglas , 411 U.S. at 802 - 04; Burke - Fowler v. Orange

Cnty. , 447 F.3d 1319, 1323 (11th Cir. 2006).

40 . There is no dispute Petitioner , as an African - American,

was in a protected class. Moreover, Petitioner was qualified for

the position of forklift operator when not on his work

restri ctions . Nonetheless , Petitioner has not shown the third and

fourth requirements of a prima facie case.

41 . Establishing the third element of a n Ð adverse employment

action Ñ is a crucial component in any discrimination claim under

the FCRA, because without it, there is no re lief . See Davis v.

Town of Lake Park, Fla. , 245 F.3d 1232, 1235 (11th Cir. 2001)

(adverse employment action is required to obtain relief under

Title VII Ó s anti - discrimination clause). To show he suffered an

Ð adverse employment action , Ñ Petitioner Ð must show a serious and

material change in the terms, conditions, or privileges of

employment . Ñ Id. at 1239 .

42 . N ot all conduct by an employer that negatively affects

an employee constitutes Ð adverse employment action Ñ under anti -

discrimi nations laws. Id. at 1238. Ð T rivial harms Ñ and Ð petty

slights Ñ unconnected to any Ð tangible job consequences, Ñ do not

constitute an adverse employment action. See Juback v. Michaels

Stores, Inc. , 143 F. Supp. 3d 1195, 1206 (M.D. Fla. 2015).

43 . Addit ionally, Ð the employee Ó s subjective view of the

significance and adversity of the employer Ó s action is not

controlling; the employment action must be materially adverse as

viewed by a reasonable person in the circumstances. Ñ Id. at 1239;

see also Hyde v. K. B. Home, Inc. , 355 F. App Ó x 266, 268 - 69 (11th

Cir. 2009) .

44 . Petitioner alleges he was treated less favorably by not

being allowed to work Ð light duty. Ñ As an initial matter,

Petitioner did not prove there was Ð light duty Ñ work available.

Regardless , although Petitioner was not allowed to work Ð light

duty Ñ on February 1 , he was paid for not working with Ð personal

time. Ñ This was not leave he accumulated and lost (or for which

he would be paid if he did not use it ). R ather, it was leave that

would ha ve otherwise expired had he not used it. There was no

evidence he suffered any humiliation, financial loss , or a

decrease in benefits from not being able to work on February 1 .

Based on the evidence presented, Saddle Creek Ó s failure to allow

Petitioner t o work Ð light duty Ñ on February 1, was not an Ð adverse

employment action. Ñ

45 . Nor did Petitioner establish that employees outside his

protected class, Bigsby and Swinyer , were similarly situated or

treated more favorably. Ð When comparing similarly situa ted

individuals to raise an inference of discriminatory motivation,

these individuals must be similarly situated in all relevant

respects. Ñ Jackson v. BellSouth Telecomm. , 372 F.3d 1250, 1273

(11th Cir. 2004). If this is not the case, Ð the different

appl ication of workplace rules does not constitute illegal

discrimination. Ñ Lathem v. Dep Ó t of Child . & Youth Servs. ,

172 F.3d 786, 793 (11th Cir. 1999) . Here , Swinyer was in a

position of verifier (not fork lift operator ) and had a different

type of injury. Thus , both her job duties and work restrictions

cannot be compared to Petitioner Ó s situation. Bigsby had the same

position , but had a different kind of work - related injury and

dissimilar work restrictions.

46 . Assuming P etitioner could establish the c omparability of

Bigsby and Swinyer , Petitioner still cannot show preferential

treatment. Petitioner observed two white employees working

despite their injuries, and he believed he too should also be

allowed to work with his injury. What he did not know w as these

white employees had different work restrictions, and that they

also had taken time off during the time they were on work

restrictions. Although Petitioner may have validly felt he was

being treated differently, in reality all three employees were

treated the same; they were allowed to work to the extent their

individual work restrictions allowed it. Applying the McDonnell

Douglas analysis to this case, Petitioner has not established a

prima facie case.

47 . E ven if Petitioner had presented enough evidence to

establish a prima facie case of discrimination, Saddle Creek has

the opportunity to establish a nonrace - related reason for its

actions. In evaluating the employer Ó s reason for its actions,

the reason should be clear, reasonably specific, and worthy of

credence. See Dep Ó t of Corr. v. Chandler , 582 So. 2d 1183, 1186

(Fla. 1st DCA 1991). The employer has the burden of production,

not the burden of persuasion, to demonstrate to the finder of

fact that the decision was non - discriminatory. See Fl owers v.

Troup Cnty. , 803 F.3d 1327, 1336 (11th Cir. 2015). The employer

only needs to produce evidence of a reason for its decision. It

is not required to persuade the trier of fact that its decision

was actually motivated by the reason given. St. Mary Ó s Honor

Ctr. v. Hicks , 509 U.S. 502 (U.S. 1993).

48. Saddle Creek meets this burden by establishing : (1) it

had no Ð light duty Ñ positions available for Petitioner; and

(2) it believed -- based on Petitioner Ó s medical documenta tion -- he

could not climb in or out of the forklift. It is totally

reasonable for an employer to comply with a m edical provider Ó s

restrictions in order to prevent an employee from further

injur ing him or herself. The fact Petitioner was allowed to work

as soon as this restriction w as lifted, further supports Saddle

Creek Ó s explanation for its actions.

49 . Completing the McDonnell Douglas burden - shifting

analysis, Petitioner did not prove that Saddle Creek Ó s stated

reasons for denying him Ð light duty Ñ and requiring him to take

leave , were merely Ð pretext s Ñ for discrimination. The

evidentiary record does not support a finding or conclusion that

Saddle Creek Ó explanations are false or not worthy of credence.

50 . As established by the credible testimony of Arkins and

Jackson, the e mpl oyment actions r egarding Petitioner , Swinyer ,

and Bigsby were consistent with each other and compliant with

company policy . Conversely, while Petitioner repeatedly asserted

that Saddle Creek treated h im less favorably than the other

employees, the evidenc e in the record does not establish

disparate treatment or that Saddle Creek Ó s actions were in any

way based on or influenced by race.

5 1 . Consequently, Petitioner did not meet h is ultimate

burden of proving, by a preponderance of the evidence, that Sadd le

Creek Ó s action s wer e racially discriminatory or in violation of

the FCRA . Accordingly, Petitioner Ó s Petition for Relief must be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Petitioner, Robert E.

Pace , Sr., did not prove that Respondent, Saddle Creek Corp.,

committed an unlawful em ployment practice against him ; and

dismissing h is Petition for Relief from an unlawf ul employment

practice.

DONE AND ENTERED this 22nd day of October , 2018, in

Tallahassee, Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of October , 2018 .

ENDNOTE S

1/ A fter he filed the Employment Complaint of Discrimination with

the Commission relevant to these proceedings , Petitioner ended

his employment with Saddle Creek . The parties indicated

Petitioner had filed another FCHR Complaint of Discrimination

regarding his termination . T he undersigned did not allow

evidence regarding the circumstances of Petitioner Ó s departure

from Saddle Creek at the final hearing .

2/ At the SC Warehouse, different products arrive in container

trucks from a variety of vendors; the containers are unloaded,

and the products a re repackaged. These repackaged products are

placed on pallets and loaded on to trucks for distribution to

44 different Sam Ó s Club locations.

3/ Section 760.11(7) permits a party for whom the Commission

determines that there is not reasonable cause to believe that a

violation of the FCRA has occurred to request an administrative

hearing . Ð The aggrieved person may request an administrative

hearing under ss. 120.569 and 120.57, but any such request must

be made within 35 days of the date of determination of reasonable

cause and any such hearing shall be heard by an administrative

law judge and not by the commission or a commissioner. Ñ

§ 760.11(7), Fla. Stat.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Robert E. Pace, Sr.

1100 North Davis Avenue

Lakeland, Florida 33805

Helen Price Palladeno, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Flor ida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.