20-002495 Robert F. Cameron vs. Osceola County Status: Closed Recommended Order on Thursday, November 12, 2020.

Summary: Petitioner did not prove that Respondent discriminated against him by failing to provide a reasonable accommodation for his disability or based on a protected characteristic (disability, race, sex, or national origin).

P RELIMINARY S TATEMENT

On or about November 1, 2019, Petitioner filed a charge of discrim ination

with the Florida Commission on Human Relations (the " Commission " )

alleging that Respondent, Osceola County (the " County " ), violated the Florida

Civil Rights Act ( " FCRA " ) by discriminating against him based on his

disability (handicap), race, and na tional origin.

On April 23, 2020, the Commission notified Petitioner that no reasonable

cause existed to believe that the County committed an unlawful employment practice.

On May 27, 2020, Petitioner filed a Petition for Relief with the

Commission allegi ng a discriminatory employment practice. The Commission

transmitted the Petition to the Division of Administrative Hearings ( " DOAH " ) to conduct a chapter 120 evidentiary hearing.

The final hearing was held on August 5 and 7, 2020. At the final hearing,

Pe titioner testified on his own behalf. Petitioner also called Damaris Morales,

Sharon Chauharjasingh, Maria Colon, Robert Morales, Fatima Lozano, and Tammy Barton as witnesses. Petitioner ' s Exhibits A through D were

admitted into evidence. The County ' s Exhi bits A through C, E, G, H, and J

through O were admitted into evidence. The County did not call any additional witnesses.

A three - volume Transcript of the final hearing was filed on September 8,

2020. At the close of the hearing, the parties were advise d of a ten - day

timeframe following receipt of the hearing transcript at DOAH to file post -

hearing submittals. Following receipt of the Transcript, Petitioner twice

reque sted additional time to file a proposed recommended o rder. Finding

good cause, Petition er ' s requests were granted. 2 The Proposed Recommended

Orders for both parties (including Petitioner ' s revised Proposed

Recommended Order) were duly considered in preparing this Recommended

Order. 3

F INDINGS OF F ACT

1. Petitioner brings this action alleging that the County discriminated

against him based on his disability, race (white), and national origin

(Canadian). Specifically, Petitioner asserts that the County failed to provide

him a reasonable accommodation to allow him to participate in the applicati on and selection process for a County job.

2. The County is a political subdivision of the State of Florida and under

the governance of the Osceola County Board of County Commissioners.

3. At the final hearing, Petitioner testified that he is a disabled in dividual

with at least seven disabilities. Pertinent to this matter, Petitioner stated that he is partially deaf in one ear which limits his ability to hear .

4 In

addition, Petitioner relayed that his disability(ies) affect his normal life in that he has fr equent medical appointments and requires an increased

number of restroom breaks.

4. On October 15, 2019, Petitioner, who is from Canada, applied for the

position of Budget Analyst II (the " Analyst Position " ) with the County. The

Analyst Position falls with in the County ' s Office of Management and Budget

Department ( " OMB " ). The OMB is responsible for preparing the County ' s

2 By requesting a deadline for filing a post - hearing submission beyond ten days after the

filing of the hearing transcript , the 30 - day time period for filing the Recommended Order was

waived. See Fla. Admin. Code R. 28 - 106.216(2).

3 Petitioner filed a revised version of his post - hearing submittal on October 9, 2020, which

the undersigned considered as Petitioner ' s Proposed Recommended Order in writing this

Recommended Order.

4 At the final hearing, Petitioner in itially strenuously object ed to identifying his specific

disabilit y, asserting that his right to privacy protects him from having to disclose personal

medical information, except as requested by a medical professional.

annual budget, as well as analyzing and evaluating budget transfers for the

County Commissioners.

5. The County initiated the recruitment process for the Analyst Position

by posting the opening on the website www.governmentjobs.com on

October 14, 2019. Petitioner found the posting on the website and submitted

his application through the same. At total of 15 individuals applied for the

posit ion, including Petitioner.

6. The application window for the Analyst Position closed on October 21,

2019. Thereafter, the County ' s Human Resources Department screened the

15 applications to ensure the interested persons met the minimum

qualifications for t he job. Eleven applicants, including Petitioner, possessed

the required qualifications. The Human Resources Department forwarded those 11 applications to the OMB for consideration.

7. The OMB reviewed the 11 applications and selected three individuals to

i nterview. These applicants included Petitioner (a white male), Lizette Rivera

(a Hispanic female), and Sean Lower (a white male). Thereafter, the Human

Resources Department set up a panel of five County employees to interview

the candidates.

8. Petitioner learned that he was being considered for the job on

Thursday, October 24, 2019. That morning, the County called Petitioner at

his home in Canada to inquire whether he was available for an interv iew the

next day, Friday, October 25, 2019. Damaris Morales, an administrative

assistant in the OMB, made the call.

9. This case centers around what was said during that morning phone

call. Petitioner and Ms. Morales left the conversation with vastly different impressions of what transpired.

The Phone Call Accordin g to Petitioner

10 . Petitioner testified that Ms. Morales called him at a most inopportune

time. His home phone rang at 8:44 a.m. At that moment, Petitioner was

rushing out of his apartment to reach a 9:00 a.m. doctor ' s appointment. In

fact, Petitioner had already started his car with an automatic starter, and it

was running in his driveway. After he heard his phone ring, however, he

turned back to answer the call.

11. Petitioner answered the phone and greeted the caller. The caller

identified herself as " Tamaris " from Osceola County. 5 Ms. Morales then

informed Petitioner that she was calling to set up an interview for the

Analyst Position.

12. Petitioner initially expressed to Ms. Morales that her call was " great "

news. He then explained that he was runni ng out the door to a medical

appointment. Therefore, he asked if she would email him details about the

interview, and he would respond to her as soon as he returned home.

Ms. Morales informed Petitioner that the interviews would take place the

next day (Fr iday). Petitioner was alarmed at the short notice. He explained to

Ms. Morales that he was currently at home in New York state and could not

travel to Florida for an in person i nterview the next day. Ms. Morales replied

that she could arrange a telephone i nterview. Petitioner then asked

Ms. Morales when the in terview on Friday was scheduled. Ms. Morales

relayed that she would email him the specific information when she obtained

the time from her manager. Petitioner stated that he would " clear my

schedule to morrow for that interview. " Petitioner then signed off saying,

" Thank you. I do have to run. Sorry. " Ms. Morales hung up the phone first.

The conversation lasted 1 minute and 30 seconds.

13. As Petitioner left for his doctor ' s appointment, he was under the

impression that Ms. Morales would email him imminently regarding available times for the Friday telephone interview.

The Phone Call According to Ms. Morales

14. A t the final hearing , Ms. Morales described a vastly different

conversation with Petitioner. A s further discussed below, Ms. Morales ' s

5 At the final hearing, Petitioner te stified that he heard Damaris Morales state her name as

"Tamaris."

initial impressions of Petitioner from that phone call ultimately led the OMB

to decide not to interview Petitioner for the Analyst Position.

15. When Petitioner answered the phone, Ms. Morales testified that

Petiti oner ' s " aggressive " tone quite startled her. In a " loud " voice, Petitioner

declare d , " Yeah. What do you want? I don ' t have time to talk right now. I ' ve

g ot to be somewhere. " Ms. Morales was not expecting such an abrupt and

jarring reception. After a few se conds of stunned silence, Ms. Morales

explained to Petitioner that she was calling about his application for the

Analyst Position.

16. Continuing in his harsh tone, Petitioner replied, " I have somewhere I

need to be right now. Send me all the information v ia email. I am in Niagara

Falls, New York. " Petitioner then hung up the phone first without providing

Ms. Morales his availability for a Friday interview. The whole conversation

took less than 30 seconds.

17. At the final hearing, in response to Ms. Morale s ' s testimony, Petitioner

suggested that she may have overheard an exchange between him and his

son, Stewart, with whom he lives. Petitioner explained that, as he was

leaving his apartment, his son called out from his bedroom asking whether

the bathroom wa s free. Petitioner yelled back, " What do you want, Stewart? I

am leaving. " Petitioner explained that his phone may have malfunctioned

and engaged Ms. Morales ' call without him actually picking up the receiver.

Petitioner strongly denied that he directed th e comment " what do you want? "

at Ms. Morales.

18. Petitioner also theorized that if he spoke in a loud tone with

Ms. Morales, it may have been due to his disability. As indicated above,

Petitioner testified that he is deaf in one ear. Petitioner explained that

Ms. Morales was talking very fast during their phone call. In responding to

her questions, Petitioner was not trying to be abrupt or argumentative.

However, he was in a rush to reach his appointment and was frustrated at

the delay.

19. Continuing wit h Petitioner ' s story, after the phone call, as Thursday

morning progressed into Thursday afternoon, Petitioner did not receive an

email back from Ms. Morales. Therefore, around 2:15 p.m., Petitioner called

the County to speak with her. He was forwarded to her office phone, where he

left a voicemail. In his message, Petitioner expressed that he was available

for an interview any time the next day (Friday). He also left his Skype

contact information.

20. Time continued to pass on Thursday. With no response ov er the next

two hours, at 4:14 p.m., Petitioner again called for Ms. Morales. This time, he

was able to reach her. Petitioner inquired about his interview time for

Friday. Ms. Morales momentarily demurred, telling Petitioner that she had

to check with her manager. After several minutes, Ms. Morales came back on

the line. She then told Petitioner that the Friday interviews were " full up. "

When Petitioner asked about an interview on another day, Petitioner claims

that Ms. Morales promptly " slammed the phone d own in my ear. "

21 . Ms. Morales, on the other hand, testified that after she informed

Petitioner that no interview times were available on Friday, Petitioner got

angry and threatened her with a " legal matter. " Petitioner then hung up on

her.

22. Petitione r was not content to let the matter drop. Therefore, on Friday

morning at 9:47 a.m., he emailed the County Manager, Don Fisher, to

complain about the County ' s Human Resources Department and the OMB. In

his email, Petitioner summarized the events from the p revious day.

Petitioner focused on the fact that Ms. Morales told him that she would provide him an interview time. Then, when he contacted her Thursday

afternoon, Ms. Morales informed him that the interviews were " full up, " and

he would not be offered an opportunity to interview for the Analyst Position.

23. Pe titioner sent Mr. Fisher follow - up emails at 10:01 a.m. and

10:03 a.m. In the first follow - up email, Petitioner stated:

I am disabled and covered under the ADA Act. I

make this request for accommoda tion under the

ADA Act.

24. At 10:10 a.m., Petitioner sent an email to another County employee,

Maria Colon, the Director of the Human Resources Department and the

County ' s Americans with Disability Act ( " ADA " ) coordinator. In this email,

Petitioner state d:

You are the designated ADA Act Coordinator, but

you are discriminating against me and denying my

ADA rights to accommodation under the ACT and

Title VII.

I formally ask for this interview to be rescheduled and Oscola [sic] County to stop this discrimin ation.

25. Attached to this email, Petitioner included a copy of his Ontario

Disability Support Program Certificate of Disability ( " ODSP Certificate " ). At

the final hearing, Petitioner explained that the ODSP Certificate, which was

determined in 2013, is proof of his disability. Petitioner ' s certificate states:

Your file with the Disability Adjudication Unit has

been adjudicated and you have been found to be a

person with a disability as defined in the Ontario

Disability Support Program Act. 1997.

26. At the final hearing, Petitioner expounded on the reasons for his

request , explaining that he sought an accommodation to enable him to

conduct a telephonic interview because his disability prevented him from

driving from Canada to Florida to interview in pers on. Furthermore, as a

disabled person, he needed more time to prepare and participate in the

recruitment process. The specific accommodation he desired was to be allowed to interview by telephone on Monday, October 28, 2019.

27. Not hearing a response from Ms. Colon by Friday afternoon, at

3:03 p.m., Petitioner dispatched another email to her. He again attached his

ODSP Certificate. In this email, Petitioner wrote that " your staff member

Tamaris " refused to schedule an interview and then " hung up the phone on

me. " Petitioner also repeated that he was " requesting reasonable

accommodation for the Budget Analyst II position. "

28. Ms. Colon called Petitioner shortly after his second email. During this

call, Petitioner informed Ms. Colon that he was disabled, and he needed a

telephone interview for the County job opening. Petitioner added that he was

located out of state, and he could not trav el to Florida in time for an in - person

interview. Petitioner further declared that the County was discriminating

against hi m because of his disability and his national origin. Ms. Colon

advised Petitioner that she would look into his concerns and get back to him.

Petitioner claims that Ms. Colon ended this conversation by slamming the

phone in his ear.

29. During this call, despite Ms. Colon ' s request, Petitioner refused to

identify his specific disability. At the final hearing, Petitioner asserted that the law protects those with disabilities from having to disclose the ir actual

medical conditions. He said that , to safeguard their privacy, the disabled do

not have to reveal their disability, except to the limited extent necessary to

relate the disability to the requested accommodation.

30. At 6:01 p.m. on Friday evening, Ms. Colon emailed Petitioner stating,

" Per our phone c onversation, I will look into your concerns and get back with

you on Monday. "

31. By late Monday morning, October 28, 2019, however, Petitioner had

not heard from Ms. Colon. Therefore, he sent her two emails. At 11:43 a.m.,

Petitioner wrote, " When is my i nterview? I am not available tomorrow. "

32. With no response to this first email, at 3:48 p.m., Petitioner wrote, " As

per your reply above, you indicated my accommodation request under the ADA and interview time would be dealt with today. It is 4 pm EST. Please

respond. " Petitioner then signed off, " I am available for an interview 10am to

11 am tomorrow and then on Wednesday, Thursday or Friday. "

33. Petitioner received a response from Ms. Colon at 6:10 p.m., Monday

evening. In her email, Ms. Colon wrote:

I had the opportunity to look into your concerns. To

be honest, customer service is very important in the Budget Analyst II role, and we ' re assessing those

skills in every contact with candidates. The OMB

Department had concerns about the way you

handled t he call and treated the employee that

contacted you on October 24th for the purpose of scheduling an interview. Therefore, the Department has moved forward with other

candidates.

34. Petitioner was most displeased at Ms. Colon ' s email, and at 6:54 p.m.,

h e responded:

I did nothing except indicate I was available for an interview. Regardless none of this over - rides the

ADA and my rights to employment and accommodation. I will be discussing your actions,

the " OMB " in denying my constitutional and ADA

rights, my Title VII rights with [a County attorney]

tomorrow. If they fail to resolve this, then I will be

suing you personally, Tamaris, the OMB and the

County on a substantial indemnity basis for well in

excess of $500g.

Petitioner ended the email with " See you soon in court. "

35. Six minutes late r, at 7:01 p.m., Petitioner sent another email to

Ms. Colon. In this message, Petitioner stated:

I must commend you for trying to deflect the

egregious violation of my rights through trying to claim my rights to an i nterview are somehow

superceded [sic] by this department withdrawing an interview based on race, geography, nationality and disability … in a call in which this Tamaris said and I quote – " we are full up " … . I asked her

to leave my interview time through an email. If

that qualifies as " poor customer service " then you

have a very BIG legal problem using that as a

diversion for blantant [sic] discrimination based on race, color, nationality, and disability.

Petitioner ended this email with, " I will be happy to take you to Federal

Court not the Courthouse right across the street. See you soon in court. "

36. Petitioner wrote Ms. Colon once more at 7:03 p.m. In this email,

Petitioner accused Ms. Colon of " a blatant discrimination of interest in

applying the ACT. Your superiors told you to deny me my rights under the

ADA and you did so. " Petitioner then declared that he was going to " sue you

personally. … Trust me on that. "

37. After Monday, October 28, 2019, Petitioner never heard back from

Ms. Morales or Ms. Col on regarding his application for the Analyst Position.

Consequently, Petitioner claims that the County, by refusing to respond to

his request for a telephone interview, denied him his rights under the FCRA

and the ADA.

38. At the final hearing, Petitioner vehemently denied that he was rude to

Ms. Morales or during his call with Ms. Colon. Petitioner professed that he

was perfectly polite to Ms. Morales. In addition, he asserted that

Ms. Morales ' s testimony that he hung up the phone on her is totally false.

Petitioner also contend ed that he did not threaten Ms. Colon with legal action

as a means of intimidation. He was just exercising hi s rights as a disabled

person.

39. Petitioner further charged that the County ' s excuse for removing him

from consideration was based on a misconstrued comment overheard during

a brief phone call. Petitioner insists that his single utteran ce, " What do you

want (Stewart), " cannot and should not justify the County ' s discriminatory

action.

40. The County ultimately hired Lizette R ivera for the Analyst Position.

Petitioner alleges that the decision to hire Ms. Rivera is evidence of the

County ' s female employees working together to eliminate white, male

candidates. Petitioner maintains that Ms. Morales, a Hispanic female,

favored ano ther Hispanic (nondisabled) female (Ms. Rivera) for the Analyst

Position. Consequently, Petitioner claims that Ms. Morales rigged the process

and discriminated against Petitioner.

41. At the final hearing, the County did not dispute that, while the OMB

in itially considered Petitioner for the Analyst Position, it quickly decided not

to interview him for the job. The County also confirmed that the OMB did

interview, and ultimately hire, Ms. Rivera to fill the Analyst Position.

42. Regarding the County ' s deci sion not to interview Petitioner, after the

initial phone call, Ms. Morales testified that she was quite startled by

Petitioner ' s rude and unprofessional conduct. She immediately reported the

conversation to her supervisor, Sharon Chauharjasingh, who is th e Director

of the OMB. Ms. Morales expressed to Ms. Chauharjasingh how shocked she

was by Petitioner ' s behavior. Ms. Morales further relayed that because

Petitioner was " in a rush, " he did not provide her his availability for a

telephone interview. Consequ ently, she had no information which would

allow her to schedule him for an interview on Friday.

43. Ms. Morales' s testimony describing the telephone interaction with

Petitioner was credible and is credited. Petitioner admitted to parts of

Ms. Morales' s ve rsions, including that fact that he was in a rush and that he

yelled, "what do you want?"

44 . Other than the two phone calls with Petitioner on Thursday,

October 24, 2019, Ms. Morales was not involved in the OMB ' s decision not to

interview Petitioner or to hire Ms. Rivera. (Those decisions belonged to

Ms. Chauharjasingh.) Ms. Morales did not participate on the interview panel

for either Ms. Rivera or Mr. Lower.

45 . Ms. Morales further testified that at no time during her phone calls

with Petitioner did he inform her that he had a disability, or that he needed

an accommodation to participate in the interview process.

46 . Ms. Chauharjasingh also testified at the final hearing.

Ms. Chauharjasingh initially explained that the OMB is tasked with

preparing the C ounty ' s annual budget of approximately $1 billion. The

person who fills the Analyst Position will work in the OMB. The duties of the

Analyst Position include reviewing the budgets of the different County

departments, as well as assisting those departments with budget questions

and preparation related tasks. The Analyst Position will also review

budgetary impacts and projections, and be prepared to personally discuss

these issues with County representatives. In addition, the Analyst Position

will interact da ily with other staff members and occasionally contact outside

companies and the public.

4 7 . Regarding the hiring of Ms. Rivera, Ms. Chauharjasingh disclosed

that, because she oversees the OMB, she was responsible for selecting the

person to fill the Anal yst Position. For this opening, Ms. Chauharjasingh was

the individual who narrowed down the applicants to the shortlist of three

individuals including Petitioner, Ms. Rivera, and Mr. Lower. In selecting these cand idates, Ms. Chauharjasingh looked at each a pplicant ' s past

experience as a budget analyst, as well as their aptitude to efficiently assume the job duties. Based on their resumes, Ms. Chauharjasingh believed that each finalist was quali fied for the Analyst Position.

4 8 . After selecting the three ca ndidates, Ms. Chauharjasingh asked her

assistant, Ms. Morales, to call each applicant and set up an interview.

Ms. Chauharjasingh asked Ms. Morales to schedule the interviews for either

Friday, October 25, 2019, or Monday, October 28, 2019. At the final he aring,

Ms.

Chauharjasingh represented that the County routinely interviews job

applicants by telephone.

4 9 . Ms. Chauharjasingh further testified that the decision not to continue

the interview process with Petitioner was hers. Ms. Chauharjasingh recounted that on Thursday morning, October 24, 2019, Ms. Morales came

into her office looking " shaken up. " Ms. Morales reported that she had just

spoken to Petitioner, and he yelled at her and was rude and unprofessional.

50 . Ms. Chauharjasingh had never heard of a jo b candidate reacting the

way Ms. Morales described. Ms. Morales has never complained to her about

any other applicant. Based on Ms. Morales ' s interaction with Petitioner,

Ms. Chauharjasingh immediately decided to remove Petitioner from

consideration f or the Analyst Position. She therefore directed Ms. Morales to

" move on " from Petitioner and not to communicate with him any further.

Instead, Ms. Morales was to only schedule interviews with the other two

candidates (Ms. Rivera and Mr. Lower).

51 . The Cou nty ' s panel of five interviewers, which included

Ms. Chauharjasingh, conducted an in - person interview of Ms. Rivera on

Friday, October 25, 2019, at 11:30 a.m. Mr. Lower was interviewed, in

person, on Monday morning, October 28, 2019, at 9:30 a.m . Following the

interviews, the panel ranked the candidat es, and then sent the list to

Ms. Chauharjasingh. Ms. Chauharjasingh extended the offer of employment

to Ms. Rivera, who was the top - ranked candidate.

52 . Ms. Chauharjasingh concluded her testimony by asserting that

Petitioner ' s disability played no role in her decision not to interview him.

Ms. Chauharjasingh explained that , at the time she decided to terminate the

interview process with him, neither she nor Ms. Morales had any knowledge

or information regardin g Petitioner ' s disability.

53 . Instead, the sole basis for removing Petitioner from the shortlist was

Ms. Morales ' interaction with him during her initial phone call.

Ms. Chauharjasingh testified that, based on the specific responsibilities of the

Analyst Position, personal traits such as good communication skills, decorum,

and telephone etiquette are very important. For example, the Detailed Job

Posting for the Analyst Position includes a Physical Demand Requirement of

" Expressing or exchanging ideas by s poken word or perceiving sound by ear. "

Consequently, upon hearing Ms. Morales ' s description of Petitioner ' s attitude

and behavior during the telephone call, Ms. Chauharjasingh decided that the County did not need to consider Petitioner ' s application any f urther.

54 . In her testimony, Ms. Colon expressed that she had no part in the

OMB ' s decision not to interview Petitioner. She became involved in this

matter only after she received Petitioner ' s email, addressed to her as the

County ' s ADA coordinator, on Friday morning, October 25, 2019.

55 . Ms. Colon stated that after she read Petitioner ' s email, she did not

immediately respond because she first wanted to determine what exactly had

transpired between Petitioner and Ms . Morales the previous day. Ms. Colon

spoke with both Ms. Morales and Ms. Chauharjasingh on Friday. From these

conversations, Ms. Colon heard that Petitioner was " rude " during

Ms. Morales's first telephone call. Further, Petitioner was so " abrupt " that

Ms. Morales was not able to offer him an interview time. Ms. Morales also

informed Ms. Colon that Petitioner did not mention a disability or request an accommodation during either of their calls.

56 . Regarding her own phone call with Petitioner on Friday afternoon,

Ms. Colon described an experi ence very similar to Ms. Morales's . Ms. Colon

testified that the conversation was " not pleasant. " As with Ms. Morales,

Ms. Colon recounted that Petitioner was " agitated, " loud, " and " extremely

unprofessional. " During the exchange, Petitioner also threatene d to sue her

and the County.

57 . Regarding her email to Petitioner on Monday evening, October 28,

2019, in which she wrote that, " The OMB Department had concerns about

the way you handled the call and treated the employee that cont acted you on

October 24th , " Ms. Colon stated that the decision not to schedule Petitioner

for an interview was made on October 24, 2019. Specifically, after talking

with Ms. Morales and Ms. Chauharjasingh, Ms. Colon learned that

Ms. Chauharjasingh had decided not to interview Peti tioner immediately

after Ms. Morales reported to her regarding Petitioner's rude and

unprofessional interaction with her during their first phone call.

58 . As a final witness, Ms. Fatima Lozano testified regarding her

participation on the interview panel for the Analyst Position. Ms. Lozano described herself as a Human Resources " generalist " with the County.

Ms.

Lozano has taken part in a number of interviews of applicants for County

employment. She relayed that the County routinely conducts telephonic

int erviews.

59 . Ms. Lozano repeated that, when hiring employees, the department

res ponsible for the position sets up the interviews and selects the winner. For

the Analyst Position, the OMB selected the applicants who would interview

for the job.

60 . Regard ing scheduling the interviews for the Analyst Position,

Ms. Lozano testified that, on October 21, 2019, she received a calendar invite

requesting her availability. The interviews then took place on Friday,

October 25, 2019, at 11:30 a.m. and Monday, Octobe r 28, 2019, at 9:30 a.m.

61 . While the above findings chronical the key aspects of Petitioner ' s

discrimination claim, Petitioner also raised several other complaints against the County. Petitioner was exceedingly frustrated by the County ' s failure to

sched ule his interview through the www.governmentjobs.com website. At the

final hearing, Petitioner elicited testimony from several County employees that, although the County pays a hefty annual fee to recruit employees through governmentjobs.com , the County on ly uses the website to solicit

applications. Petitioner was " shocked " to learn that the County did not take

advantage of the website ' s functions to schedule interviews with candidates.

62 . Petitioner was also " stunned " at the County ' s attempt to schedule his

interview with less than one day ' s notice. Petitioner found the practice

unprofessional and unacceptable. Petitioner represented that the standard

process used by governmentjobs.com is to email a notification to the job

applicant at least four to seven days prior to the agreed interview time.

63 . Based on the competent substantial evidence in the record, the

preponderance of the evidence does not establish that the County

discriminated against Petitioner based on his disability (handicap), race, or

nati onal origin. Instead, the credible evidence establishes that the decision

not to interview Petitioner was made without knowledge of his disability prior to his request for an accommodation, and without regard to his race or

national origin. The decision to not interview Petitioner was based solely on

his own behavior, considered rude and unprofessional , effectively

disqualifying him from the job. Accordingly, Petitioner failed to meet his

burden of proving that the County committed an unlawful employment

pr actice against him in violation of the FCRA.

C ONCLUSIONS OF L AW

6 4 . 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 . Se e also Fla. Admin. Code R. 60Y -

4.016.

6 5 . Petitioner brings this action alleging that the County discriminated

against him during the hiring process for employment with the County. Petitioner specifically charges that the County discriminated against him

b ased on a disability (handicap), in that the County failed to fulfill

Petitioner ' s request for a reasonable accommodation, which would have

enabled him to fairly participate in an interview for the Analyst Position.

6

6 6 . The FCRA protects individuals fro m disability discrimination in the

workplace. See §§ 760.10 and 760.11, Fla. Stat . Section 760.10 states, in

pertinent part:

(1) It is an unlawful employment 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 ' s race, color, religion, sex,

6 At various points during the course of this matter, Petitioner also asserted that the County

discriminated against him based on his race (white), sex (male), and national origin

(Canadian ). However, no evidence or testimony in the record supports Petitioner's

allegations on these classifications. Instead, based on his testimony at the final hearing,

Petitioner's claim primarily focuses on allegations that the County failed to accommodate h is

request for a reasonable accommodation.

pregnancy, national origin, age, handicap, or

marital status.

6 7 . 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 befor e DOAH.

Following an administrative hearing, if the Administrative Law Judge

( " ALJ " ) finds that a discriminatory act has occurred, the ALJ " shall issue an

appropriate recommended order to the commission prohibiting the practice

and recommending affirmative relief from the effects of the practice,

including back pay. " § 760.11(7), Fla. Stat.

68 . The burden of proof in administrative proceedings, absent a statutory

directive to the contrary, is on the party asserting the affirmative of the

issue. Dep ' t of Tra nsp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); see

also Sec ' y, U.S. Dep ' t of Hous. & Urban Dev. ex rel. Herron v. Blackwell , 908

F.2d 864, 870 (11th Cir. 1990); and Dep ' t of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996)( " The

general rule is that a party asserting the affirmative of an issue has the

burden of presenting evidence as to that issue. " ). The hearing is de novo.

§ 120.57 (1)(k) Fla. Stat . The preponderance of the evidence standard is

applicable to this matter. § 120.57(1)(j), Fla. Stat.

69 . The FCRA is patterned after Title VII of the Civil Rights Act of 1964,

as amended. Accordingly, Florida courts hold that federal decisions

construing Title VII are applicable when considering claims under the FCRA.

Harper v. Blockbuster Entm ' t Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998);

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA

2009); and Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

70 . Specific ally regarding disability discrimination, the FCRA is construed

in conformity with the ADA found in 42 U.S.C. § 12101 et seq. Cordoba v.

Dillard ' s, Inc. , 419 F .3d 1169, 1175 (11th Cir. 2005) (citing Wimberly v.

Secs. Tech. Grp., Inc. , 866 So. 2d 146, 147 (F la. 4th DCA 2004)) ( " Because

Florida courts construe the FCRA in conformity with the ADA, a disability

discrimination cause of action is analyzed under the ADA. " ). See also Holly v.

Clairson Indus., L.L.C. , 492 F.3d 1247, 1255 (11th Cir. 2007)(FCRA claims

a re analyzed under the same standards as the ADA.).

71 . Discrimination may be proven by direct, statistical, or circumstantial

evidence. Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009). Direct evidence of discrimination is " eviden ce, which if believed,

proves [the] existence of [a] fact in issue without inference or presumption. ...

Evidence that only suggests discrimination, ... or that is subject to more than

one interpretation, ... does not constitute direct evidence. " Leme v. S . Baptist

Hosp. of Florida, Inc., 248 F. Supp. 3d 1319, 1338 (M.D. Fla. 2017); see also

Denney v. City of Albany , 247 F.3d 1172, 1182 (11th Cir. 2001)(Direct

evidence is evidence that, if believed, would prove the existence of

discriminatory intent behind the decision without any inference or

presumption.) ; and Holifield v. Reno , 115 F.3d 1555, 1561 (11th Cir. 1997).

Courts have held that "' only the most blatant remarks, whose intent could be

nothing other than to discriminate ... ' will constitute direct ev idence of

discrimination. " Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354,

1358 - 59 (11th Cir. 1999).

72 . The record in this proceeding contains no direct evidence of

discrimination regarding the County ' s decision not to interview Petitioner for

the Analyst Position. Petitioner alleges that Ms. Morales fabricated her claim

of rudeness as a ruse to exercise a prepl anned scheme to eliminate white

male candidates. However, other than the fact that both women have Hispanic last names, Petitioner did not offer direct evidence of a

discriminatory act on the part of Ms. Morales or any other County employee.

73 . Similarly, Petitioner did not present statistical evidence of disability

discrimination by the County.

74 . In the absence of direct or statistic al evidence of discriminatory intent,

Petitioner must rely on circumstantial evidence of disability discrimination to

prove his case. For discrimination claims involving circumstantial evidence,

Florida courts follow the three - part, burden - shifting framewo rk set forth in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), and its progeny. See also Valenzuela , 18 So. 3d at 21 - 2; and

St. Louis v. Fla. Int ' l Univ. , 60 So. 3d 455, 458 (Fla. 3d DCA 2011).

75 . Under the McDonn ell Douglas framework, Petitioner bears the initial

burden of establishing, by a preponderance of the evidence, a prima facie case

of discrimination. McDonnell Douglas , 411 U.S. at 802 - 04; se e also Burke -

Fowler v. Orange C ty. , 447 F.3d 1319, 1323 (11th Cir . 2006). Demonstrating a

prima facie case is not " onerous, " but rather only requires Petitioner " to

establish facts adequate to permit an inference of discrimination. " Holifield ,

115 F.3d at 1562.

76 . If Petitioner establishes a prima facie case of disabil ity discrimination,

he creates a presumption of discrimination. At that point, the burden shifts

to the employer to articulate a legitimate, non - discriminatory reason for

taking the adverse employment action. Valenzuela , 18 So. 3d at 22. The

reason for the employer ' s decision should be clear, reasonably specific, and

worthy of credence. Dep ' t of Corr. v. Chandler , 582 So. 2d 1183, 1186 (Fla. 1st

DCA 1991). The employer has the burden of production, not persuasion, to demonstrate to the finder of fact that t he decision was non - discriminatory.

See Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1087 (11th Cir. 2004). This

burden of production is " exceedingly light. " Holifield , 115 F.3d at 1564. The

employer only needs to produce evidence of a reason for its deci sion. It is not

required to persuade the trier of fact that its decision was actually motivated by the reason given. See St. Mary ' s Honor Ctr. v. Hicks , 509 U.S. 502 (1993).

77 . If the employer meets its burden, the presumption of discrimination

disappears . The burden then shifts back to the employee to prove that the

employer ' s proffered reason was not the true reason but merely a " pretext "

for discrimination. See Combs v. Plantation Patterns , 106 F.3d 1519, 1538

(11th Cir. 1997); Valenzuela , 18 So. 3d at 25. In order to satisfy this final step

of the process, the employee must " show[] directly that a discriminatory

reason more likely than not motivated the decision, or indirectly by showing

that the proffered reason for the employment decision is not worth y of belief. "

Chandler , 582 So. 2d at 1186 (citing Tex. Dep ' t of Cmty. Aff. v. Burdine , 450

U.S. 248, 252 - 56 (1981) ) . The inquiry on pretext centers on the employer ' s

" good faith belief, " not the employee ' s interpretation of the events. Juback v.

Michaels Stores, Inc. , 143 F. Supp. 3d 1195, 1207 (M.D. Fla. 2015). The

proffered explanation is " not worthy of belief " if the employee demonstrates

" such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer ' s proffered le gitimate reasons for its action

that a reasonable factfinder could find them unworthy of credence. " Combs ,

106 F.3d at 1538; see also Reeves v. Sanderson Plumbing Prods., Inc. , 530

U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Petitioner " must

prove that the reasons articulated were false and that the discrimination

was the real reason " for the defendant ' s actions. City of Miami v. Hervis , 65

So. 3d 1110, 1117 (Fla. 3d DCA 2011)( quoti ng St. Mary ' s Honor Ctr . , 509 U.S.

at 515 : " [A] reason cannot be proved to be ' a pretext for discrimination ' unless

it is shown both that the reason was false, and that discrimination was the

real reason. "

78 . Despite the shifting burdens of proof, " the ultimate burden of

persuading the trier of fact that the defenda nt intentionally discriminated

against the plaintiff remains at all times with the plaintiff. " Burdine , 450

U.S. at 253, 101 S. Ct. at 1089, 67 L. Ed. 2d 207; Valenzuela , 18 So. 3d at 22.

In other words, r egardless of whether a petitioner presents direct e vidence or relies on the McDonnell Douglas presumption to establish a discrimination

claim, Petitioner " always has the burden of demonstrating that, more

probably than not, the employer took an adverse employment action against

him on the basis of a protec ted personal characteristic. " Leme , 248 F. Supp.

3d 1319 (M.D. Fla. 2017)(citing Wright v. Southland Corp. , 187 F.3d 1287,

1292 (11th Cir. 1999)).

79 . To establish a claim for disability discrimination under the FCRA,

Petitioner must show that: (1) he had a disability; (2) he was a qualified

individual; (3) the employer took an adverse employment action against him;

and (4) the employer took that action because of the petitioner ' s disability.

Leme v. S. Baptist Hosp. of Florida, Inc. , 248 F. Supp. 3d 1319, 1337 – 38

(M.D. Fla. 2017); see also Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1255

(11th Cir. 2001)(Using circumstantial evidence, " [i]n order to establish a

prima facie case of discrimination under the ADA, the plaintiff must show

that: (1) he is disabl ed; (2) he was a qualified individual at the relevant time,

meaning he could perform the essential functions of the job in question with

or without reasonable accommodations; and (3) he was discriminated ag ainst

because of his disability ; " Frazier - White v. Gee , 818 F.3d 1249, 1255 (11th Cir.

2016); and 42 U.S.C. § 12112(a).

80 . A petitioner may pursue a disability discrimination claim on three

distinct theories including intentional discrimination, disparate treatment, or

failure to make reasonable accommo dations. Leme , 248 F. Supp. 3d at 1338;

Rylee v. Chapman , 316 Fed. Appx. 901, 906 (11th Cir. 2009). Pertinent to

Petitioner ' s claim, " [f]ailure to accommodate is an independent basis for

liability under the ADA. " Alboniga v. Sch. Bd. of Broward Cty. , 87 F. Supp.

3d 1319, 1337 (S.D. Fla. 2015) .

81 . To prevail on a failure to accommodate claim, Petitioner must

demonstrate that : ( 1) he was a qualified individual with a disability; ( 2) he

made a specific request for a reasonable accommodation; and ( 3) the emplo yer

failed to provide the reasonable accommodation, or engage in the requisite

interactive process in order to identify a reasonable accommodation.

D ' Onofrio v. Costco Wholesale Corp. , 964 F.3d 1014, 1021 (11th Cir. 2020); s ee

also 42 U.S.C. § 12112(b); an d Lucas , 257 F.3d at 1255 ( " An employer

unlawfully discriminates against a qualified individual with a disability

when the employer fails to provide ' reasonable accommodations ' for the

disability -- unless doing so would impose undue hardship on the employer . " ).

The third prong examines whether, but for Petitioner ' s disability, he would

have been subjected to the alleged discrimination. Alboniga , 87 F. Supp. 3d at

1338; and Holly , 492 F.3d at 1263, n.17 ( The petitioner " bears the burden of

showing not only th at [the employer] failed to reasonably accommodate his

disability, but that, but for [the employer ' s] failure to accommodate his

disability, he would not have been terminated. " ) .

8 2 . A p etitioner is " qualified " if he, with or without reasonable

accommodati on, can perform the essential functions and job requirements of

the position he desires. Earl v. Meryns, Inc. , 207 F.3d 1361, 1365 (11th Cir.

2000).

83 . A qualified individual is not entitled to the accommodation of his

choice, but rather , only to a " reaso nable " accommodation. Stewart v. Happy

Herman ' s Cheshire Bridge, Inc. , 117 F.3d 1278, 1286 (11th Cir. 1997).

84 . A petitioner bears the burden both to identify an accommodation and

to show that it is " reasonable. " Lucas , 257 F.3d at 1255 . " Whether an

acco mmodation is reasonable depends on specific circumstances. " Terrell v.

USAir , 132 F.3d 621, 626 (11th Cir. 1998). An accommodation is " reasonable "

and, therefore, required under the ADA, only if it enables the employee to

perform the essential functions of the job. LaChance v. Duffy ' s Draft House ,

146 F.3d 832, 835 (11th Cir. 1998). An employer need not accommodate an

employee in any manner the employee desires, nor reallocate job duties to

change the essential functions of the job. Mervyns, Inc. , 207 F.3d at 1367. The

intent of the ADA is that "' an employer needs only to provide meaningful

equal employment opportunities ' .. . ' [t]he ADA was never intended to turn

nondiscrimination into discrimination ' against the non - disabled. " United

States Equal Employment Opportunity Comm ' n v. St. Joseph ' s Hosp., Inc.,

842 F.3d 1333, 1346 (11th Cir. 2016)(quoting Terrell , 132 F.3d at 627).

85 . Moreover, an employer is not required to provide an employee with

" the maximum accommodation or every conceivable accommodation pos sible. "

Stewart , 117 F.3d at 1285. Neither is an employer required " to transform the

position into another one by eliminating functions that are essential to the

nature of the job as it exists. " Lucas , 257 F.3d at 1260.

86 . Finally, " the duty to provide a reasonable accommodation is not

triggered unless a specific demand for an accommodation has been made. "

Gaston v. Bellingrath Gardens & Home, Inc. , 167 F.3d 1361, 1363 (11th Cir.

1999).

87 . Turning to the facts found in this matter regarding Petitioner ' s failure

to accommodate claim, Petitioner proved, and County did not dispute, that he

is " disabled " under the FCRA. Petitioner i s disabled due to hearing loss;

hearing is a " major life activity " under the ADA. 7

88 . Petitioner also established, and again, t he County did not dispute,

that he was " qualified " for the Analyst Position. Both the County ' s Human

Resources Department and Ms. Chauharjasingh screened Petitioner ' s resume

and found that he possessed the requisite experience and training to perform the f unctions of the job for which he applied.

89 . Next, Petitioner showed that he made a specific request for an

accommodation. On Friday morning, October 25, 2019, in an email to the

County Manager, Petitioner stated, " I am disabled and covered under the

ADA Act. I make this request for accommodation under the ADA Act. "

Moments later, Petitioner emailed Ms. Colon in the County ' s Human

Resources Department requesting his " interview to be rescheduled. " That

afternoon, in a telephone call with Ms. Colon, Petition er specifically

expressed that he was disabled, and he needed a telephone interview for a job opening with the County.

7 A " disability " is defined as (A) a physical or mental impairment that substantially limits

one or more major life activities of such individual; (B) a record of such an impairment; or

(C) being regarded as havi ng such an impairment. 42 U.S.C. § 12102(1). See St. Joseph ' s

Hosp., Inc. , 842 F.3d at 1343 .

90 . The facts further demonstrate that Petitioner ' s request was

" reasonable. " The accommodation Petitioner sought was to participate in h is

interview by telephone. Over the course of his conversations with Ms. Colon,

Petitioner indicated that he was available for a telephonic interview at

various times every day from October 28 through November 1, 2019.

Ms. Moral es, Ms. Chauharjasingh, and Ms. Colon all readily agreed that the

County regularly conducts interviews by telephone. In addition, the fact that

the County actually interviewed one job candidate (Mr. Lower) on Monday,

October 28, 2019, after Petitioner made his request, provides suffi cient

evidence that the County could have arranged for a phone call with Petitioner

wi thin their interview schedule.

91 . Finally, it is undisputed that the County did not provide Petitioner the

specific accommodation he requested.

92 . However, despite the fact that Petitioner established that the County

could have provided him a reasonable accommodation, Petitioner did not

carry his ultimate burden of proving that the County took some action

against him " because of his disability " or any other protected ch aracteristic.

Based on the facts in the record, Petitioner did not demonstrate that, but for

the County ' s failure to accommodate his disability (hearing loss), he would

have interviewed for the Analyst Position.

93 . On the contrary, the competent substant ial evidence does not connect

the County ' s decision not to interview Petitioner (or set up a telephone

interview) to Petitioner ' s disability or any other protected characteristic .

Instead, the facts adduced at the evidentiary hearing demonstrate that the C ounty did not interview Petitioner because it determined that his

personality was incompatible with the role of the Analyst Position. Ms.

Morales convincingly testified that, duri ng her phone call on Thursday,

October 24, 2019, she found Petitioner " aggres sive, " " loud, " and " rude. "

Thereafter, Ms. Chauharjasingh credibly expressed that, based on hearing

Ms. Morales's report of Petitioner ' s unprofessional conduct, she immediately

decided not to interview Petitioner. Ms. Chauharjasingh supported her

decision by explaining that the County simply did not want to hire someone

who displayed (even momentarily) such disagreeable tendencies. 8

94 . The evidence further shows that Petitioner fell out of consideration for

the Analyst Position before the decision maker ha d any knowledge that he

was disabled. Ms. Chauharjasingh eliminated Petitioner from contention for the job on Thursday morning, October 24, 2019. Petitioner did not convey his

specific accommodation request to the County until Friday, October 25, 2019.

The County, however, relied on Ms. Chauharjasingh ' s decision from the

previous day throughout its subsequent communications with Petitioner.

95 . Accordingly, Petitioner failed to prove that, but for the County ' s

failure to accommodate his disability (by prov iding a telephonic interview),

the County would have included Petitioner in the selection process for the

Analyst Position. Conversely, the County witnesses credibly testified that the

reason Petitioner was not interviewed was not related to his claimed

di sability or any other protected characteristic .

9 6 . At the final hearing, Petitioner expressed his extreme frustration with

the County ' s " egregious " decision not to schedule him for an interview for the

Analyst Position. It should be noted, however, that i n a proceeding under the

FCRA, the court is " not in the business of adjudging whether employment

decisions are prudent or fair. Instead, [the court ' s] sole concern is whether

unlawful discriminatory animus motivates a challenged employment

decision. " Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354, 1361

(11th Cir. 1999). Not everything that makes an employee unhappy is an

actionable adverse action for purposes of the FCRA . Davis v. Town of Lake

Park , 245 F.3d 1232, 1238 (11th Cir. 2001). For exam ple, an employer may

8 See, e.g., Saweress v. Ivey , 354 F. Supp. 3d 1288, 1306 (M.D. Fla. 2019) (" Negative scores

during an interview for interpersonal skills, as well as personality an d judgment, can also

establish a legitimate re ason for an employment decision . "); see also Mira v. Monroe Cty. Sch.

Bd. , 687 F. Supp. 1538, 1550 – 51 (S.D. Fla. 1988) (citing multiple cases finding employment

decisions to be lawful when based on subjective evaluations of personality and judgment).

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). An employee cannot succeed by simply

quarreling with the wisdom of the employer ' s reasons. Chapman v. AI

Transp. , 229 F.3d 1012 (l1th Cir. 2000); see also Alexander v. Fulton C ty.,

Ga ., 207 F.3d 1303, 1341 (11th Cir. 2000)( " [I]t is not the court ' s role to

second - guess the wisdom of an employer ' s decisions as long as the decisions

are not racially motivated. " ). While canceling an interview based on a single,

relatively short phone call may seem extreme and unjustified to Petitioner,

no evidence ties the County ' s decision not to interview Petitioner to his

disability or any other protected characteristic .

97 . In sum, the evidence on record does not support Petitioner ' s claim that

the County discriminated against him based on his disability or any other

protected characteristic . Petitioner did not show that the County ' s stated

reason for not scheduling him for a telephonic interview for the Analyst

Position was " because of his disability " or was made with discriminatory

intent. Accordingly, Petitioner fa iled to prove, by a preponderance of the

evidence, that the County took an adverse employment action against him on

the basis of his disability.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Flori da Commission on Human Relations issue a

final order finding that Petitioner, Robert F. Cameron, did not prove that

Respondent, Osceola County, committed an unlawful employment practice against him, and dismissing his Petition for Relief from an unlawful

e mployment practice.

D ONE A ND E NTERED this 1 2 th day of November , 2020 , in Tallahassee,

Leon County, Florida.

J. B RUCE C ULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 12th day of November , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Rel ations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Robert Finley Cameron

1 Churchill Street , Apartment 10

St. Catharines, Ontario, Canada L25 2 - P3 C

(eServed)

Frank M. Townsend, Esquire

Osceola County Attorney ' s Office

1 Cou rthouse Square , Suite 4700

Kissimmee, Florida 34741

(eServed )

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties hav e 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.