18-004090 Denise James vs. Milos Status: Closed Recommended Order on Tuesday, October 23, 2018.

Summary: The Petitioner did not make out a prima facie case and, therefore, failed to carry her burden of proving that she was fired from her job due to her race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENISE JAMES,

Petitioner,

vs. Case No. 18 - 4090

MILOS,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was heard before Administrative Law Judge

Robert L . Kilbride of the Division of Administrative Hearings on

August 29, 2018 , by video teleconference with sites in

Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Denise James , pro se

10101 West Indigo Street

Mia mi, Florida 33157

For Respondent: Jennifer A. Schwartz, Esquire

Naveen Paul, Esquire

Jackson Lewis , P . C .

One Biscayne Tower, Suite 3500

2 South Biscayne Boulevard

Miami , Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent, Milos, illegally terminated Petitioner

based on her race (Black), in violation of the Florida Civil

Rights Act ( " FCRA " ), section 760.10, Florida Statutes (2018).

PRELIMINARY STATEMENT

O n D ecember 8, 2017, Denise James (" Petitio ner" ) filed a

Charge of Discrimination ( " Charge " ) against Milos ( " Respondent " or

" Milos " ) with the Florida Commission on Human Relations ( " FCHR " ).

In her Charge, Petitioner alleged that she was terminated from

emp loyment because of her race. 1/

On January 29, 2018 , Respondent submitted its Position

Statement, which explained that Petitioner was terminated from

employment on September 21, 2017 , after she failed to call in or

report for work , without explanation , for seven consecutive days

following Hurricane Irma ' s landfall in South Florida .

The FCHR investigated the Charge , and on June 28, 2018 ,

" determined that no reasonable cause exists to believe that an

unlawful practice occurred ."

Taking except ion to this determination, Petitioner filed a

Petition for Relief o n August 1, 2018 , to request an

administrative hearing concerning FCHR ' s d etermination .

FCHR referred the matter to the Division of Administrative

Hearings to conduct a hearing and the case was assigned to the

undersigned, Robert L. Kilbride.

On August 29, 2018, a final h earing was held before the

undersigned.

At the hearing, sworn testimo ny was offered by the parties.

Petitioner testified on her own behalf. Milos called as witnesses

Arman Arsan ("Arsan") , head c hef at Milos , and K arla Faundez

("Faundez") .

At the hearing both parties admitted exhibits into evidence.

Petitioner admitted Exhibits 1 and 3 through 5. Respondent

admitted Exhibits 1 through 23.

The und ersigned directed the parties to submit proposed

re commended orders within ten days of receipt of the T ranscript of

the final hearing.

Petitioner submitted a short hand written letter. Respondent

f iled a proposed recommended order . Both were given du e

consideration by the undersigned in the preparation of this

Recommended Order.

All references herein to the Florida Statutes refer to the

2017 version, unless otherwise noted.

FINDING S OF FACT

The undersigned makes the following findings of mat erial and

relevant fact:

1. Petitioner is a Black female who worked for Milos as a

line cook.

2. Respondent is a Greek restaur ant located in Miami,

Florida.

3. On January 12, 2016, Respondent hired Petitioner for a

line cook position. Petitione r was interviewed and hired by

Arsan.

4. Arsan supervises all back - of - the - house staff and was

Petitioner ' s supervisor throughout her entire 20 - month period of

employment.

5. On May 30, 2016, approximately four and a half months

af ter Petitioner ' s hire at Milos, Arsan gave Petitioner a raise in

pay because he felt that she was performing well.

6. Many of the employees Arsan supervises at Milos are

Black.

I. PETITIONER ' S PERFORMANCE ISSUES AT MILOS

7. On September 23 , 2016, Petitioner was suspended for

insubordination and violating c ompany policies and procedures.

Resp . Ex. 7 and 8.

8. More specifically, Arsan was notified by the sous chef

that there had been an argum ent between Petitioner and a co worker.

Ar san attem pted to investigate the dispute and found Petitioner to

be very emotional and aggressive during the investigation. She

was asked to leave but refused. Eventually, she left the

premises.

9. This incident came on the heels of another simil ar

incident involv ing a verbal argument with a co worker, which

occ urred on September 17, 2016.

10. Subsequently, on April 28, 2017, Petitioner was involved

in another workplace argument with an employee named Rosa Salazar

("Salazar") . Resp . Ex . 10 . The manager on duty intervened and

attempted to r esolve the dispute and calm the parties down . After

he did so, Petitioner left work without permission and left early

the following day as well.

11. On June 27, 2017, a third employee named Ishay (a.k.a.,

Ayse Akbulut) complained that she could not work with Petitioner

at their assigned station because Petitioner was " being rude and

territorial. " Resp. Ex. 11.

12. Arsan spoke to Petitioner and resolved the matter

between the two employees . However, he documented the incident as

other employees had previously complained about Petitioner

creating a hostile working environment.

13. On June 30, 2017, Petitioner reportedly was involved in

yet another workplace incident with Sonya Cabr et ("Cabret") .

Cabret complained that Petitioner made racially charged and

demeaning comments to her based on Cabret ' s Haitian national

origin.

14. More specifically, Cabret complained that Petitioner

called her an " ignorant Haitian, " a " f_ _ _ ing Ha itian, " and stated

that Cabret does not know how to speak English and that Cabret

could not find a job anywhere else.

15. Two months prior, Salazar had also complained that

Petitioner made derogatory remarks to her based on Salazar ' s Latin

ethnicit y. Resp . Ex . 12 and 13.

16. Salazar recounted that Petitioner had called her a

" f____in g Latino. " Arsan disciplined Petitioner by counseling her

and sending her home for the day.

17. Each of the above incidents occurred prior to Hurrica ne

Irma in September 2017.

18. The undersi gned finds that these incidents , and their

related warnings and discipline, are relevant to the ul timate

decision to discharge Petitioner and have some bearing on the

propriety and necessity for termination .

II. PETITIONER ' S FAILURE TO RETURN TO WORK AFTER HURRIC ANE IRMA

19. At some point in time on Wednesday , September 6, 2017 ,

Arsan informed all employees that Milos would be closed at the end

of the work day due to the approaching landfall of Hurric ane Irma.

20. Petitioner had been scheduled to report to work on

September 6, 2017 , at 10:00 a.m., but she did not do so.

21. At 12:40 p.m. on September 6, 2017 , Petitioner texted

Arsan that she could not report to work because she was evacua ting

to Georgia due to Hurricane Irma. However, she hoped to return to

work the follo wing Tuesday (September 12, 2017 ). Resp . Ex . 14.

22. After the hurricane had passed, on September 10, 2017,

Arsan sent a group text message to all back - of - the - hou se staff

alerting them that the restaurant was " closed for Monday "

(September 11, 2017) and " we will be probably open for Tuesday "

(September 12, 2017). Resp. Ex. 15.

23. Petitioner received this text message.

24. Petitioner never informed Ars an that she would not be

back fr om Georgia by September 12, 2017 , as she mentioned in her

text message on September 6, 2017.

25. Believing Petitioner woul d be back in Miami on

September 12, 2017 , Arsan scheduled Petitioner to work Wednesday,

Septem ber 13, 2017. Resp . Ex . 16.

26. On September 13, 2017, Petitioner did not call in or

report for work.

27. That same day, Arsan called Petitioner to find out why

she did not report to work. Petitioner did not answer or return

Arsan ' s call.

28. On September 14, 2017, Petitioner again failed to call

in or report for work.

29. Arsan again attempted to reach Petitioner by telephone,

but she did not answer.

30. Arsan then sent Petitioner a text message notifying her

that sh e was scheduled to be at work.

31. Petitioner responded to Arsan ' s text messages on

September 14 , 2017, and the following discussion ensued:

Arsan : " Denise you are scheduled to work

today [.] "

Petitioner: " Nobody called me and told me

anything I cannot get out until Tuesday or

Wednesday I ' ll [sic] area was hit bad and the

bus is [sic] down here start running

Wednesday [.] "

Arsan : " Denise everybody is at work except

you. How the bus starting [sic] on wednesday,

[sic] half of staff is using the bus and they

are her e, The buses working [sic] fine . "

Petitioner: " When you come to my family I

don ' t care about no job [sic] that ' s not my

life we had an emergency down here we don ' t

have any lights some of the buses is not

running my house got water in it I am coming

from Georgia so I might not be back until

Thursday I have a lot of stuff to take care of

in my house [.] "

Arsan : " Please help let [sic] me understand

your situation are you in Miami ? or Georgia?

Petitioner: I will be in Miami tonight I

s till have a lot of stuf f to do at my. . . .

Res p. Ex. 14 .

32. Arsan and Petitioner did not have any further

communications after this text message exchange. Further,

Petitioner did not initiate or attempt to send any more text

messages to Arsan af ter the September 14, 2017 , exchange.

33. Petitioner did not report for work scheduled on

September 15, 16, 17, 18, 19, or 20 .

34. Petitioner testified that she did not report to work

from September 13, 2017 , to September 20, 2017 , because she was

attending to damage to her home caused by the hurricane.

35. Based on Petitioner ' s text message that she does not

" care about no job [sic ] , " Arsan, after consulting with Milos '

ou tside contracted human resource company, removed Petitioner from

the schedule for the week of Monday, September 18, 2017 , to

Sunday, September 24, 2017.

36. On September 21, 2017, Petitioner showed up at Milos to

work.

37. Arsan believed Petitioner had abandoned her job and did

not expect her to re port to work again.

38. After she arrived, Arsan directed Petitioner to speak to

Faundez, Milos ' outside human resource representative at Eleva

Solutions.

39. Contrary to what Petitioner told Arsan ( i.e., that she

missed work because she wa s attending to damage in her home from

the hurricane), P etitioner gave Faundez three different reasons

for her failure to call in or show up for work the preceding week:

(a) s he did not know that she w as supposed to be at work;

(b) t here was no bus transp ortation; and (c) Petitioner had to be

evacuated.

40. Faundez concluded that Petitioner ' s reasons for failing

to appear for work were inconsistent and conflicted with each

other. She also did not believe that Petitioner had provided a

definitive or plausible answer explaining why she had not returned

to work.

41. After consultation, Faundez and Arsan decided together

to terminate Petitioner ' s employment.

42. Arsan was not the sole decision - maker with respect to

Petitioner ' s terminat ion.

43. Prior to her termination and despite having received

Respondent ' s anti discrimination policy and complaint procedures,

Petitioner never complained that Arsan was discriminating against

her because of her race.

44. During the course of the hearing, Petitioner was unable

to identify any employee(s) outside of her protected class who

engaged in the same conduct and were not terminated from

employment.

45. Specifically, on cross - examination, Petitioner admitted

that she was unable to identify a single non - Black employee who

failed to show up for work following the hurricane and who was not

terminated from employment.

46. The evidence Petitioner offered to support her race

discrimination claim was vague, unpersuasive , and inc luded only

conclusory and general allegations by her that Arsan " was a

racist " and is a " nasty human being ."

47. There were no emails, texts, documents , o r other direct

evidence from Petitioner or Arsan supporting her claim that she

was fired by Milo s because of her race. Likewise, Petitioner

called no witnesses to offer any compelling facts or circumstances

to support her claim.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has jurisdiction

over the subject matter of this p roceeding and the parties

pursuant to sections 120.569, 120.57(1), and 760.11, Florida

Statutes (201 8 ).

49. Under Title VII, it is unlawful for an employer " to

discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual ' s race

. . . . " 42 U.S.C. § 2000e - 2(a)(1) .

50. The FCRA likewise prohibits discrimination in the

workplace. Among other things, the FCRA makes it unlaw ful for an

employer " [t]o discharge . . . or otherwise to discriminate

against any individual with respect to compensation, terms,

conditions, or privileges of employment, because of such

individual ' s race . . . . " § 760.10(1)(a), Fla. Stat.

51. Cla ims under the FCRA are subject to the same

substantive law and legal standards as claims under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e ; Johnson v. Great

Express Dental Ctrs. o f Fla., P.A. , 132 So. 3d 1174, 1176 (Fla. 3d

DCA 2014) ; and Wilbur v. Corr. Servs. Corp. , 393 F.3d 1192, 1195

n.1 (11th Cir. 2004) . See also Byrd v. BT Foods, Inc. , 26 So . 3d

600, 605 (Fla. 4th DCA 2009).

METHODS OF PROOF

52. Racial discrimination prohibited by Title VII and the

FCRA can be proven one of tw o ways: e ither through (1) direct

evidence that an employer intended to discriminate against an

individual because of his or her race or (2) through

circumstantial evidence. Hill v. Metro. Atlanta Rapid Transit

Auth. , 841 F.2d 1533, 1539 (11th Cir. 1987) , modified by , 848 F.2d

1522 (11th Cir. 1988).

53. " [O]nly the most blatant remarks whose intent could be

nothing other than to [discriminate/retaliate] " constitute direct

evidence. See Carter v. City of Miami , 870 F.2d 578, 582 (11th

Cir. 1989).

54. In this case, Petitioner submitted no persuasive or

credible direct evidence of racial discrimination.

55. Petitioner , no doubt, had a strong belief about Arsan ' s

motives, but presented no direct testimonial or documentary

evidence to supp ort her claim that Arsan was motivated by racial

discrimination. For instance, there were no emails, texts , or

credible statements from Arsan or other management level

supervisors at Milos that Arsan or Milos intended to discriminate

against Petitioner be cause of her race.

56. As a result, her race discrimination claim must be

analyzed under the second method -- circumstantial evidence -- to

determine if she made out a prima facie ca s e . See McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 803 (1973); S ee also

Texas Dept. of Cmty. Aff. v. Burdine , 450 U.S. 248 (1981);

St. Mary ' s Honor Ctr. v. Hicks , 509 U.S. 502 (1993); Reeve s v.

Sanderson Plumbing Prod. , Inc. , 530 U.S. 133 (2000).

57. To prove a discrimination case by circumstantial

evidence, Pe titioner must first establish a prima facie , or

legally sufficient, case of discrimination. Sims v. MVM, Inc. ,

704 F.3d 1327, 1333 (11th Cir. 2013).

58. If Petitioner establishes a prima facie case, the burden

then shifts to Respondent to pr oduce a leg itimate

non discriminatory reason for the adverse employment action or

termination . Burdine , 450 U.S. at 248, 254 . 2 /

59. If a prima facie case has been established and the

employer offe rs a legitimate non discriminatory reason for the

terminatio n, the burden then shifts back to Petitioner to show

that the non discriminatory reason given for her firing is a

pretext or just made up. Petitioner may accomplish this " by

showing that the employer ' s explanation is unworthy of credence. "

Reeves , 530 U.S . at 143 (citing Burdine , 450 U.S. at 256).

THE ELEMENTS OF RACE DISCRIMINATION

60. The elements necessary to prove a case of race

discrimination are simple and straightforward. Petitioner has the

burden to establish, by a preponderance of the evide nce, the

following elements : (1) t hat she is a member of a protected

class; (2) t hat she was subjected to an adverse employment action;

(3) t hat she was qualified for the job at issue; and (4) t hat she

was treated less favorably than a similarly situated individua l

outside her protected class. Maynard v. Bd. of Regents , 342 F.3d

1281, 1289 (11th Cir. 2003). See also C oles v. Post Master Gen.

U.S. Postal Servs. , 711 Fed Appx. 890 (11th Cir. 2017) .

61. The undersigned concludes t hat Petitioner ' s race

discrimination claim fails as a matter of law because she did not

establish the fourth element of her prima facie case.

62. The first and second elements of the Maynard test were

proven and require no detailed discussion.

63. Contrary to the position taken by Milos, Petitioner

satisfied the third element needed to make out a prima facie case

of race discrimination.

64. Regarding what evidence is required for a plaintiff to

satisfy the third qualification element of the prima facie test,

the law is explicit. At the prima facie stage, a court should

focus on a plaintiff ' s objective qualifications to determine

whether he or she is qualified for the relevant job. Wexler v.

White ' s Fine Furniture , 317 F.3d 564 (6 th C.A. 2003).

65. The pri ma facie burden of showing that Petitioner was

qualified for the job is met by presenting credible evidence that

her qualifications are at least equivalent to the minimum

objective criteria required for employment in the relevant field.

Id .

66. Petitioner demonstrated that she possessed the required

general skills for the job as line cook. Based on the evidence

concerning her hiring, tenure, job responsibilities , and the raise

she received, the undersigned conclude s that she made out a prima

fac ie case that she was qualified for the job, as that phrase is

intended by Title VII and the FCRA.

67. As to the fourth element, however, Petiti oner fell far

short of the proof required. Under the fourth element of Maynard ,

Petitioner was required t o prove that she was treated less

favorably than a similarly situated individual outside her

protected class.

68. A similarly situated employee or comparator must be

similarly situated in all relevant aspects. Trask v. Sec ' y, Dep ' t

of Vets ' Af f. , N o. 15 - 11709, 2016 U.S. App. LEXIS 6168, (11th Cir.

2016). " The comparator must be ' nearly identical ' to [P etitioner ]

to prevent courts from second guessing a reasonable decision by

the employer. " Id.

69. Petitioner did not i dentify any non - Black employee

comparators (White or Hispanic) who failed to call in or timely

return to work following Hurricane Irma , and who w ere not

terminated from employment. Put a different way, there was no

proof that a White or Hispanic failed to return to work after the

hurricane like she did, but was not terminated.

70. Petitioner ' s failure to identify a single comparator who

did the same and was treated more favorably is fatal to her claim.

See, e.g. , Peters v. HealthSouth of Dothan, Inc. , 542 Fed. Appx.

782 , 785 (11th Cir. 2013) (affirming district court ' s finding that

plaintiff " had not established a prima facie case for disparate

treatment based on her termination because she failed to identify

a valid comparator outside her race that was treated more

favo rably " ).

71. As a result, Petitioner did not establish a prima facie

case of race discrimination , and her claim fails as a matter of

fact and law.

72. Even if Petitioner had establish ed a prima facie case of

discrimination , Respondent convinci ngly established a legitimate,

non discriminatory reason for the termination of her employment :

Petitioner ' s failure to return to work for seven consecutive days

following Milos ' reopening after Hurricane Irma, her conflicting

reasons for her failure to ret urn to work, and her text message to

Arsan stating " I don ' t care about no job [sic] that ' s not my

life. "

73. The undersigned conclude s that under the circums tances

surrounding her absence -- her failure to stay in touch and her

failu re to report for scheduled work -- Arsan and Faundez credibly

concluded that her text message was either (1) a voluntary

resignation by her or (2) was sufficient cause to terminate her.

74. To be clear, Petitioner did not present a prima facie

case of racial discrimi nation, and the analysis end ed there.

Mathew v. V a. Union Univ . , 1992 U.S. App. LEXIS 5540 (4th Cir.

1992) .

75. However , even if she had presented a prima facie case of

race discrimination, Respondent established a legitimate

nondiscriminatory reas on for Petitioner ' s termination , and the

burden of production would have shift ed back to Petitioner to

" introduce significantly probative evidence showing that the

asserted reason is merely a pretext or made up excuse for

discrimination. " Zaben v. Air Pro ds. & Chems., Inc. , 129 F.3d

1453, 1457 (11th Cir. 1997). Petitioner failed to do so .

76. In short, Petitioner failed to prove th at the reasons

asserted by Respondent for terminating her were a pretext or made

up . Hicks , 509 U.S. at 502 ; Conner v. Ft. Gordon Bus. Co. , 761

F.2d 1495, 1500 (11th Cir. 1985).

77. In this case the undersigned also considered that there

is a p ermissible inference against finding discrimination since

Ar san had been the decision - maker with regard to Petitioner ' s

hi re, pay increase , and termination . Williams v. Vitro Servs.

Corp. , 144 F.3d 1438, 1442 (11th Cir. 1998) (stating the " same

actor " factual scenario " may give rise to a permissible inference

that no discriminatory animus motivated " the decision - maker ' s

acti ons); Robinson v. Alutiiq - Mele, LLC , Case No . 07 - 20778 - CIV -

GOLD/McALILEY, 2008 U.S. Dist. LEXIS 33341, (S.D. Fla. 2008)

( " Where as here, the same individual who hired or promoted the

plaintiff is the one who fires or demotes him, there is an

inference that the decision was not motivated by discriminatory

animus . " ).

78. It is important for the parties to understand a simple

point about workplace terminations: i n evaluating claims of

discrimination in the workplace, courts do not sit as

a sup er - personn el department that re examine s a company ' s business

decisions. Davis v. Town of Lake Park, Fla. , 245 F.3d 1232, 1244

(11th Cir. 2001). Whether an employment decision was prudent,

just, or fair is immaterial, because an employer " may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, " as long as its action

is not for a discriminatory reason. Nix v. WLCY Radio/Rahall

Commc ' ns , 738 F.2d 1181, 1187 (11th Cir. 1984).

79. Further, an employee may not recast the employer ' s

proffered nondiscriminatory re asons or substitute her business

judgment for that of the employer. Chapman v. AI Transport, et

al . , 229 F.3d 1012, 1030 (11th Cir. 2000). Provided that the

reason offered by Milos is one that migh t motivate a reasonable

employer to terminate an employee ( failure of Petitioner to report

back to work after the hurricane) , Petitioner had to meet th at

reason head on and rebut it . Petitioner failed to do so. The

employee cannot succeed by simply quarr eling or disagreeing with

the wisdom of that decision. Id.

80. Finally, w hile Arsan ' s and F aundez ' s decision to

terminate Petitioner may seem unfair, callous, or even

unjustified, thi s does not convert an otherwise permissible

termination into an un lawful or illegal termination. Zook v.

Be nada Aluminum Fla., Inc. , Case No. 15 - 5538 , 2016 Fla. D iv.

A dmin. H ear. LEXIS 30, at *19 (Fla. DOAH Jan. 27,

2016) ( recommending dismissal of p etitioner ' s claims because while

the termination " may seem unfair, abrup t, or even unjustified,

this does not convert an otherwise legitimate termination into an

un lawful or illegal termination " ).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commissio n on Hum an

Relations dismiss Petitioner ' s Petition for Relief with prejudice

and find in Respondent ' s favor.

DONE AND ENTERED this 23r d day of October , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrat ive 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

thi s 23rd day of October , 2018 .

ENDNOTE S

1/ Milos ' correct legal name is " Milos by Costas Spiliadis, Inc. "

2 / Significantly, h owever, if a prima facie case is not

established by Petitioner, the inquiry ends and a ruling should

be entered for the employe r. No further proof is required. Kidd

v. Mando Am. Corp ., 731 F.3d 1196, 1202 (11th Cir. 2013) ; and

Mathew v. Va . Union Univ . , 1992 U.S. App. LEXIS 5540 (4th Cir.

1992) .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relat ions

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Denise James

10101 West Indigo Street

Miami, Florida 33157

Jennifer A. Schwartz, Esquire

Jackson Lewis , P . C .

One Biscayne Tower, Suite 3500

2 South Biscayne Boulevard

Miami, F lorida 33131

(eServed)

Naveen Paul, Esquire

Jackson Lewis, P.C.

One Biscayne Tower, Suite 3500

2 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

Cheyanne Costilla, General Counsel

F lorida C ommission on H uman R elations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

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 that

will issue the Final Order in this case.