93-002530 K. E. Donald vs. Winn-Dixie Stores, Inc. Status: Closed Recommended Order on Monday, August 15, 1994.

Summary: Lengthy procedural history resulted in admission of liability where no answer for over 1 year; Late petition excused by equitable tolling on late Motion to Dismiss

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

K. E. DONALD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2530

)

WINN-DIXIE STORES, INC., )

)

Respondent. )

__________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 13, 1994, in

Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: K. E. Donald, pro se

Route 5 Box 205-L

Quincy, Florida 32351

For Respondent: Kenneth G. Mall

Post Office Box B

Jacksonville, Florida 32203-0297

STATEMENT OF THE ISSUE

Whether or not Petitioner is entitled to an award of full-time employment

and money damages as a result of an unfair employment practice of Respondent

employer; to wit: Respondent's failure to "promote" Petitioner from part-time

to full-time employment because Petitioner is black.

PRELIMINARY STATEMENT

On August 17, 1992, Petitioner Donald filed a Charge of Discrimination

alleging that Respondent Winn Dixie was guilty of an unlawful employment

practice, to wit, racial discrimination in failure to "promote" Petitioner from

a part-time position to a full-time position because he is black.

After investigation, the Florida Commission on Human Relations entered and

mailed a Notice of Determination: No Cause and Determination: No Cause on March

23, 1993.

Petitioner filed no Request for Redetermination and the Commission did not

redetermine the charge, sua sponte, under its discretionary powers.

Petitioner mailed his Petition for Relief and it was stamped in as filed at

the Commission on April 28, 1993. On May 5, 1993, the Commission transmitted

the Petition to the Division of Administrative Hearings for formal hearing

pursuant to Section 120.57(1), F.S.

Aspirationally, the Division of Administrative Hearings schedules such

cases for formal hearing within 120 days. Delays in scheduling are most often

at the request of the parties. The procedural history of this case, however, is

explanatory of much, including but not limited to the reasons that formal

hearing on the merits of this cause did not go forward for over one year, until

June 13, 1994.

Because it is important for disposition of two oral motions made in the

course of formal hearing, the further procedural history of this cause will be

discussed in the findings of fact infra instead of here. Those motions are (1)

Respondent's oral motion to dismiss the Petition for untimeliness, and (2)

Respondent's oral motion to dismiss for failure to establish a prima facie case

and/or because Petitioner failed to establish that Respondent's reasons for non-

hiring/promotion were not non-discriminatory (sic).

The scope of formal hearing was limited by prior orders in this cause so

that only Petitioner Donald testified, subject to cross-examination by

Respondent. He offered one exhibit which was marked for identification but

which was not admitted or retained.

At formal hearing, Respondent qualified as its representative, Kenneth G.

Mall, its "in-house" counsel, who made several oral motions, two of which are

described supra. and all of which are discussed infra.

Hearing Officer Composite "Exhibit A" (10 pages of the Commission

transmittal package) was admitted in evidence by stipulation of the parties.

Official recognition was taken of the April and May calendars for 1992 and 1993.

No transcript of the June 13, 1994 formal hearing was provided. The

parties stipulated to 30 days for the filing of proposed recommended orders, and

on June 14, 1994, an order of instructions was entered explaining that process

to them.

Petitioner's post-hearing proposal was filed on July 8, 1994.

Respondent's post-hearing proposal was filed on July 12, 1994.

All proposed findings of fact have been ruled upon in the appendix to this

recommended order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. On August 17, 1992, Petitioner Donald filed a Charge of Discrimination

alleging that Respondent Winn Dixie was guilty of an unlawful employment

practice, to wit, racial discrimination in failure to "promote" Petitioner from

a part-time position to a full-time position because he is black, the most

recent non-promotion date being July 22, 1992.

2. After investigation, the Florida Commission on Human Relations entered

and mailed a Notice of Determination: No Cause and Determination: No Cause on

March 23, 1993. That Notice contained the following pertinent language:

If redetermination is not requested, the

Request for Hearing/Petition for Relief

must be filed within 30 days of the date

of mailing of this Notice and should be

in compliance with the provisions of Rule

22T-9.008 and Chapter 22T-8, Florida

Administrative Code . . . Failure of

Complainant to timely file either a request

or petition will result in the dismissal

of the complaint pursuant to Rule 22T-9.006,

Florida Administrative Code. (See "Exhibit A"

attached to, and incorporated in, this

Recommended Order).

3. Petitioner mailed his Petition for Relief and it was stamped in as

filed at the Florida Commission on Human Relations on April 28, 1993. The

Commission did not enter an order of dismissal or otherwise reject the petition

as untimely. On May 5, 1993, the Commission transmitted the Petition to the

Division of Administrative Hearings (DOAH) for formal hearing pursuant to

Section 120.57(1), F.S. On May 5, 1993, and simultaneously with its transmittal

of the Petition to DOAH, the Commission served/mailed the Petition to Respondent

with a Notice to Respondent of Filing of Petition for Relief from an Unlawful

Employment Practice.

4. The Commission's transmittal of Petition had included a Notice to

Respondent containing the following specific language:

You are required to file an answer with the

Commission within 20 days of the date of service

of the Petition. Your attention is directed

generally to Chapter 22T-8, Florida Administrative

Code, which pertains to general procedures before

the Commission. You are also referred to Rule

22T-9.008(5) which sets forth those matters which

must be included in the Respondent's answer.

Please note that the filing of a motion to dismiss

does not toll the time for filing an answer.

(See "Exhibit A" to this Recommended Order).

5. On May 11, 1994, DOAH's Clerk mailed an Initial Order to both parties.

The parties were charged by Rule 60Q-2.003(6), F.A.C. and by DOAH's Initial

Order in this case with serving upon each other a copy of every pleading either

party filed with DOAH. The Initial Order also permitted the parties to advise

the undersigned hearing officer of dates and locations they preferred for

scheduling the de novo evidentiary hearing on the merits. Petitioner responded

to the Initial Order. Respondent did not.

6. Respondent also filed no Answer to the Petition for Relief within 20

days as required by Rule 22T-9.008, F.A.C., [renumbered 60Y-5.008(5)(a),

F.A.C.]. If a Respondent fails to file a timely answer, such failure shall be

deemed to constitute an admission of the material facts alleged in the petition.

See, renumbered Rule 60Y-5.008(5)(d) F.A.C.

7. By DOAH Notice of Hearing mailed May 27, 1993, the cause was scheduled

for formal hearing on the merits for October 18, 1993. Simultaneous with that

Notice of Hearing, an Order of Prehearing Instructions was entered and mailed.

The Order of Prehearing Instructions was directed to both parties and was very

specific as to what was required of them, including but not limited to listing

witnesses and exhibits, clarifying which issues of material fact were disputed,

and listing any pending motions. A copy of the entire order is attached and

incorporated in this Recommended Order by reference as "Exhibit B". A joint

prehearing stipulation was not timely filed as required by the order of

prehearing instructions, and neither party filed a unilateral statement on or

before September 29, 1993 as permitted by the order of prehearing instructions.

In short, neither party timely complied with the first Order of Prehearing

Instructions.

8. On October 1, 1993, certain unsigned, confusing, contradictory, and

incomplete papers were filed. This filing, which turned out to be filed by

Petitioner (see Finding of Fact 22) among other things requested that the

hearing officer subpoena the listed witnesses, listed "stipulations" not signed

by anyone, and listed motions never filed at DOAH. This ambiguous item not only

was unsigned, but did not reflect who, if anyone, it had been served upon.

Common practice and procedure require subpoenas to be sent by DOAH to a party

for service by that party on witnesses, and subpoenas may not be served upon

witnesses by the hearing officer.

9. The October 1, 1993 filing prompted the entry and service upon both

parties of an order on October 12, 1993 which had attached to it the unsigned

filings of October 1, 1993. The October 12, 1993 order, with the unsigned and

ambiguous attachments is attached and incorporated in this recommended order by

reference as "Exhibit C". That order cancelled the October 18, 1993 formal

hearing on the merits, subject to rescheduling of the formal hearing on the

merits upon clarification of the unsigned papers filed. This order was entered

instead of automatically precluding either party from presenting evidence, an

option permitted by the prior Order of Prehearing Instructions. The order gave

both parties an equal opportunity to do what was procedurally necessary to

advance the case to formal hearing on the merits. The October 12, 1993 order

granted both parties 45 days in which to confer with one another and file the

joint prehearing stipulation contemplated by the prior order of prehearing

instructions and to submit several agreeable dates for rescheduling formal

hearing on the merits. In further pertinent part, the October 12, 1993 order

provided that if a joint stipulation could not be agreed upon between the

parties, they could still proceed to formal hearing on the merits by timely

submitting unilateral statements listing their respective exhibits and

witnesses. The order also went on to specifically provide as follows:

Failure of either party to submit at least

the names of witnesses to be called by that

party and a list of exhibits to be introduced

by that party will result in exclusion of that

evidence at formal hearing in this cause.

10. Under the terms of the October 12, 1993 order, the date for filing of

unilateral witness and exhibit lists was November 26, 1993.

11. Neither party timely filed witness or exhibit lists.

12. On December 14, 1993, which was eighteen days after the last date for

compliance with the October 12, 1993 order had passed with Petitioner and

Respondent each failing to timely comply therewith, another order was entered.

That order advised the parties that since, by the terms of the October 12, 1993

order, both parties were now precluded from presenting any evidence in support

of, or contrary to, Petitioner's claim, it appeared that there was no need to

conduct an evidentiary hearing. However, the order also granted the parties 30

days in which to show cause why Petitioner's Petition for Relief should not be

dismissed for failure to comply with the October 12, 1993 order. A copy of the

December 14, 1993 order is attached and incorporated in this recommended order

as "Exhibit D".

13. That same day, Petitioner filed a request for 22 blank subpoenas and

to reschedule formal hearing, but no witness or exhibit list. A copy of this

item is attached and incorporated in this recommended order by reference as

"Exhibit E."

14. The date for filing of responses to the December 14, 1993 order to

show cause was January 13, 1994.

15. Respondent did not file any response to the December 14, 1993 order or

the December 14, 1993 pleading. 1/

16. However, on January 13, 1994, Petitioner timely filed a paper

captioned "Pleadings Motions". This paper, a copy of which is attached and

incorporated in this recommended order as "Exhibit F," was similar, but not

identical to, the unsigned papers filed October 1, 1993. It again requested

subpoenas be served by the hearing officer, listed names and addresses of

potential witnesses, and requested that the case not be dismissed because

Petitioner was without legal counsel and because it is "a very hard case". It

specifically stated, "Please consider hearing my testimony and others on this

matter." Petitioner's January 13, 1994 pleading could be read as a motion to

allow Petitioner to testify and present witnesses and exhibits. In an abundance

of caution, the undersigned mailed a copy of it to Respondent on January 18,

1994. Respondent did not file any response to Petitioner's January 13, 1994

pleading.

17. As required by law, the undersigned had served Respondent with all

DOAH orders and notices. Also, in an abundance of caution, the undersigned had

served Respondent with Petitioner's January 13, 1994 pleading and the unsigned

October 1, 1993 papers at the address of record for Respondent's "in-house"

counsel, which name and address was provided in the Florida Commission on Human

Relations referral papers. No documents were returned to the Division of

Administrative Hearings, creating the legal presumption that all materials had

been received by Respondent. Still, Respondent had failed to comply with any

DOAH order whatsoever and for nine months had not taken any affirmative action

to defend against the Petition for Relief. No Answer to the Petition for

Relief, timely or otherwise, had ever been filed by Respondent. The record, as

reviewed by the undersigned as of February 3, 1994, also indicated that

Petitioner's original Charge of Discrimination before the Florida Commission on

Human Relations had been directed to Respondent, not at a Jacksonville address,

but at a Quincy address.

18. Therefore, because the law and the undersigned are loathe to cut off

any legitimate litigation, and in a further abundance of caution, the

undersigned determined that Petitioner and Respondent should have one last

opportunity to explain why they had not timely complied with prior orders and

why, if at all, a formal hearing with witnesses and exhibits on the merits of

the Petition for Relief should be rescheduled. To that end, and still in an

abundance of caution, an order was entered on February 3, 1994, a copy of which

order is attached and incorporated in this recommended order by reference as

"Exhibit G". The decretal portion of that order read:

1. A hearing on the limited issue of

whether or not either party should be

permitted to present evidence at a rescheduled

formal hearing will be held at 10:00 a.m.,

March 1, 1994, at the Division of Administ-

rative Hearings, the DeSoto Building, 1230

Apalachee Parkway, Tallahassee, Florida.*

2. Witnesses need not appear at that time.

Only parties or their legal counsel shall appear.

3. Failure of Petitioner to appear in person

or through legal counsel at that date, time and

place WILL result in dismissal of this cause.

4. Failure of Respondent to appear in person

or through legal counsel at that date, time and

place WILL result in the exclusion of all of

Respondent's witnesses and evidence.

4. [sic] Whether or not a formal hearing

on the merits will be rescheduled at all will

be determined by an order entered after the

undersigned has heard what the parties may

have to say at the hearing now scheduled for

March 1, 1994. (Emphasis in the original).

19. Still in an abundance of caution, the foregoing order was served by

the undersigned upon Respondent at both its Quincy and Jacksonville addresses.

20. No court reporter was present at the March 1, 1994 interlocutory

hearing. Petitioner appeared and represented himself at the March 1, 1994

hearing. Respondent's "in-house" counsel from Jacksonville did not appear at

the Tallahassee hearing but authorized Winn-Dixie's District Manager W. E.

Carroll and its Quincy Store Manager Terry Miller to appear. Mr. Carroll works

in Tallahassee. Mr. Miller drove 23 miles from Quincy for the hearing. After

examination by the undersigned in open court pursuant to Rule 60Q-2.008, F.A.C.,

Mr. Carroll was accepted as a qualified representative for Respondent.

21. Inquiry was also made by the undersigned at the March 1, 1994 hearing

as to any reason a formal hearing on the merits should be rescheduled. Each

prior order and pleading 2/ was explored orally in open court. Oral argument

was also invited as to why either party should be permitted to present evidence.

Oral admissions and stipulations of the parties were received.

22. At that hearing, Petitioner contended that he had not understood the

prior orders and that the unsigned papers filed October 1, 1993 (see Findings of

Fact 8-9 supra.) were his attempt to provide a witness list. Petitioner also

contended that he thought he was represented by legal counsel at one point and

to support that assertion, he presented a December 6, 1993 letter he had

received from Legal Services of North Florida, Inc. The original of this letter

(exhibit) is attached and incorporated in this recommended order as "Exhibit H".

23. At that hearing, no clear explanation was given of why Respondent had

failed to Answer the Petition for Relief and also had filed no response to any

prior DOAH order or pleading by Petitioner.

24. Still in an abundance of caution, and because the undersigned is

loathe to enter defaults or impose sanctions at any time, each party was

permitted 10 days after the March 1, 1994 formal hearing in which to file any

further written clarification of the record or pleadings. Petitioner filed a

response dated March 10, 1994 on March 10, 1994, but Respondent still filed no

Answer to the Petition for Relief, despite numerous questions by the undersigned

at the March 1, 1994 hearing concerning what facts asserted in the Petition for

Relief were admitted and which were denied by Respondent and inquiring why no

Answer had been filed by Respondent. On March 4, 1994, Respondent filed a

written response dated March 3, 1994. A copy of Petitioner's March 10, 1994

response, without attachments, is attached and incorporated herein as "Exhibit

I." A copy of Respondent's March 4, 1994 response, without attachments, is

attached and incorporated herein as "Exhibit J."

25. Respondent's March 4, 1994 letter ("Exhibit J") was directed primarily

to providing the hearing officer with a history of settlement negotiations and

copies of proposed settlement documents. This is a practice contrary to Section

90.408, F.S., The Florida Evidence Code. Respondent had filed no Motion to

Dismiss the Petition for Relief and no Answer, and although by rule, even a

motion to dismiss may not toll the 20 days provided by rule for Respondent to

answer the Petition for Relief, Respondent's March 4, 1994 letter response also

raised, for the first time, the untimeliness of the Petition for Relief as

grounds to dismiss this cause. However, Respondent's March 4, 1994 allegations

based on untimeliness of the Petition were not persuasive, in that the rule that

Respondent cited in support thereof applied only to what the Florida Commission

on Human Relations or its Executive Director may do either sua sponte or upon

motion regarding Requests for Redetermination. The rule cited therein was

inapplicable to the legal principle for which Respondent cited it. Therefore,

Respondent's argument against the Petition was incorrect or incomplete. Also,

due to the complexity of the several statutes and rules involved, ruling on the

issue of untimeliness vel non of the Petition for Relief required the taking of

factual evidence. For instance, there is a Commission rule which tolls the 30

days for filing the Petition if the Petitioner applies for, or the Commission

grants, an extension of time for filing the Petition. Consequently, Petitioner

was entitled to an opportunity to present all the facts concerning his filing of

the Petition in response to the allegations of the Respondent's March 4, 1994

letter.

26. The representations of Respondent's qualified representative at the

March 1, 1994 hearing and the materials filed after that hearing by Respondent's

"in house" counsel ("Exhibit J") did not show good cause why Respondent should

be permitted to put on a defense by way of undisclosed oral testimony or

exhibits. Likewise, Petitioner did not demonstrate by his oral argument,

exhibit, and post-hearing response ("Exhibit I"), any legal good cause why his

noncompliance with prior orders should be excused so as to permit him to call

any witnesses or put in evidence any exhibits not disclosed to Respondent. More

specifically, the date and contents of the December 6, 1993 letter to Petitioner

from Legal Services (original is "Exhibit H" hereto) did not support

Petitioner's oral assertions at the March 1, 1994 hearing that he had been

represented in this case by legal counsel, had relied on a lawyer to meet his

November 26, 1993 filing date, or that Legal Services' retention of his

documents at a critical time had prevented his timely compliance with any of the

prior orders herein.

27. Accordingly, an order was entered on April 21, 1994. A complete copy

of that order is attached and incorporated in this recommended order by

reference as "Exhibit K". That order provided, in pertinent part, as follows:

8. The representations of Respondent's

qualified representative at the March 1,

1994 hearing and the materials filed after

that hearing by Respondent's legal counsel

have not shown good cause why Respondent

should be permitted to put on a defense by

way of undisclosed oral testimony or exhibits.

9. Likewise, Petitioner has not demonstrated

good cause why his noncompliance with prior

orders should be excused so as to permit him

to call any witnesses or put on any exhibits

not disclosed to Respondent. However, since

Petitioner clearly has always been an appropriate

witness and his oral testimony could be reasonably

anticipated by Respondent, a formal evidentiary

hearing pursuant to Section 120.57(1) F.S. will

be convened solely for the taking of Petitioner

Donald's oral testimony, subject to cross

examination by Respondent.

10. Also, the materials filed by Respondent's

counsel after the March 1, 1994 hearing state for

the first time that Respondent believes the Petition

for Relief is subject to discretionary dismissal

for untimeliness, pursuant to Rule 22T-9.07 F.A.C.

[new number, if one exists, was not given].

However, Respondent still did not see fit to put

this observation or belief in the form of a motion.

Jurisdictional issues may be raised at any time.

The jurisdictional issue requires evidence to sustain

a motion, if a motion is made. Should Respondent

see fit to defend on that issue by motion and

evidence, Respondent remains free to do.

(Emphasis supplied)

28. Simultaneous with the entry of the April 21, 1994 Order, a Notice of

Hearing was mailed to the parties. It provided for a formal hearing on June 13,

1994 and stated the issues as: "As set forth in the order entered

simultaneously herewith. [The only witness will be K.E. Donald.]"

29. Despite the language employed in the April 21, 1994 order, which still

permitted Respondent to assert the untimeliness of the petition for Relief as a

bar or jurisdictional issue, Respondent did not file a written motion or submit

supporting documentation (evidence) on that issue prior to the June 13, 1994

formal hearing.

30. At formal hearing on June 13, 1994, Respondent moved orally to dismiss

the Petition for Relief due to its late filing.

31. Hearing Officer Composite "Exhibit A" was admitted in evidence.

Hearing Officer Composite "Exhibit A" consisted of The Florida Human Relations

Commission Transmittal of Petition (one page), Charge of Discrimination (one

page), Petition for Relief (three pages), Notice of Determination: No Cause

(two pages) and Determination of No Cause (two pages). The original of this

composite exhibit as received in evidence at formal hearing is attached and

incorporated in this recommended order as "Exhibit A" to this Recommended Order.

32. At formal hearing, Petitioner testified that he had not moved the

Florida Commission on Human Relations for an order extending his time to file

his petition, no order extending time had been entered, and he had neither a

postmark nor any clear recollection of the date he mailed his Petition to the

Commission.

33. If Florida Commission on Human Relations Rules 60Y-4.004, 60Y-

4.007(1), 60Y-4.008(2), F.A.C., are not applicable, the Petition for Relief

should have been filed with the Commission on April 22, 1993, a Thursday, and

was filed late by six days, since it was filed with the Commission on April 28,

1993, the following Wednesday. These foregoing rules provide that when a

document is received by mail, the date of filing shall relate back to the date

of the postmark, provide three days for mailing where notice is mailed, and

provide an extra day for filing when the last day falls on a Saturday, Sunday,

or legal holiday. If those rules apply, then the Petitioner's delay is shorter

than six days or indeterminable.

34. The Petition for Relief was admittedly received by Respondent's "in-

house" counsel on or before May 6, 1993. Respondent was specifically asked by

the undersigned hearing officer how the late filing of the Petition for Relief

had prejudiced Respondent's position. Respondent asserted that Respondent could

not have foreseen that Petitioner would ultimately have been permitted to

testify on his own behalf, and that, but for the Petition for Relief being filed

six days late, Respondent might have filed an answer, would not have assumed

that the Petition was barred and would not have, due to a conflict in the rules,

failed to respond to all pleadings and orders, might have secured "out of house"

counsel, would not have expended the cost of trying to negotiate a settlement

with Petitioner after the cancellation of the October 18, 1993 formal hearing,

and would not have incurred "enormous expense" during the Florida Commission on

Human Relations' investigatory phase, in sending Messrs. Carroll and Miller to

the March 1, 1994 DOAH hearing, and in filing its only written materials on

March 4, 1994.

35. Since the investigatory phase before the Florida Commission on Human

Relations predated that agency's March 23, 1993 Determination of No Cause and

also predated the filing of the April 28, 1993 Petition for Relief, that portion

of Respondent's argument related to incurring enormous expense is patently

absurd, as is Respondent's assertion that Respondent could not have foreseen

that Petitioner would be permitted to testify on his own behalf. The expense

incurred by Respondent in having one layman travel twenty three miles to

Tallahassee and the other travel across town to formal hearing, even considering

the value of those gentlemen's time to the corporation, and in having "in-house"

counsel file Respondent's March 4, 1994 letter is de minimus, and these expenses

have no nexus to the lateness by six days of the April 28, 1993 Petition for

Relief. Respondent failed to demonstrate how the filing of the Petition for

Relief on April 28, 1993 instead of on April 22, 1993 could have reasonably

prevented Respondent from filing an Answer within 20 days as required by Rule

22T-9.008(5), F.A.C., [now renumbered as 60Y-5.008(5), F.A.C.], and as

specifically instructed by the Florida Commission on Human Relations in its

Transmittal of the Petition to Respondent. (See Finding of Fact No. 4, supra

and "Exhibit A"). Respondent also failed to demonstrate how, under the

circumstances of the language contained in the Florida Commission on Human

Relations Transmittal of Petition and the DOAH orders, Respondent could have

been misled by conflicting language in Rules 22T-9.07 [now renumbered 60Y-

5.007(9) and (12)], 22T-9.08 [now renumbered 60Y-5.008(1) and (5)] and 60Q-

2.004(5), F.A.C., 3/ into not answering the Petition for Relief for more than

thirteen months, indeed, never answering it, or how such circumstances prevented

Respondent responding to other motions and orders or prevented Respondent from

obtaining "out of house" counsel. Settlement negotiations are not cognizable by

the trier of fact, are always undertaken at the parties' mutual risk, and have

never been deemed sufficient to toll filing dates. See, Section 90.408, F.S.

36. After Respondent had been given the opportunity to present any further

evidence on its oral motion to dismiss the Petition for Relief, the oral motion

to dismiss was taken under advisement for resolution in this Recommended Order.

(See Conclusions of Law, infra.)

37. Respondent then orally moved for clarification of the April 21, 1994

Notice of Hearing and Order Limiting Scope of Formal Hearing, which was resolved

by rereading that order and notice into the record.

38. Respondent next orally moved for leave to present witnesses, contrary

to the decretal portion of the April 21, 1994 order. No good cause was shown to

vacate the April 21, 1994 order limiting evidence. To permit Respondent to put

on undisclosed witnesses while Petitioner was precluded from doing so after

Petitioner had appeared at formal hearing believing that Respondent's failure to

answer constituted an admission of the material facts alleged in the petition

and Petitioner had come prepared only for direct and cross-examination of

himself would be unduly prejudicial. The motion was denied.

39. The facts that Rule 60Y-5.008(5)(d) F.A.C. presumes admitted under the

unanswered Petition for Relief are those set out in the Petition itself. They

are fully set out in "Exhibit A" hereto and provide, in part, as follows:

"The company had followed discriminatory

hiring assignment and promotion policies

against minority group members on an equal

basis with white people. My fourteenth amendment

were [sic] violated. That white get hired off

the street and get full time without any training,

the first day.

* * *

Discriminatory hiring, firing, assignment and

promotion policies against Negroes using their

position and power to destroy black worker jobs

in order to bestow them on white workers."

("Exhibit A")

40. Petitioner's unrefuted testimony elaborated on the foregoing admitted

facts to show that Respondent employed fifteen or more employees and that

Petitioner, a black male, had been employed part-time for nearly four years by

Respondent in its Quincy store managed by Mr. Terry Miller; Mr. Miller's

assistant had hired Petitioner as a member of a truck unloading crew.

Petitioner also showed that other white workers were hired off the street

without job training for full-time positions. However, Petitioner was hired by

Mr. Miller as a full-time employee effective June 9, 1994, four days before

formal hearing.

41. Petitioner admitted that at some time before June 9, 1994, he had been

"written up" for not meeting the employer's dress code and appearance standards

and had also been "written up" for not meeting the employer's performance

standards of moving at least 45 cases per hour. Petitioner maintained, without

refutation, that these "write-ups" were unwarranted, pretextual citations

because he was black. Petitioner testified, without refutation, that on at

least one occasion he was "written up" in a category that did not include his

regular job duties. This admission is no different that the expanded

allegations included in an attachment to the Petition ("Exhibit A"), all of

which allegations have been admitted by Respondent by its failure to answer the

Petition. Petitioner also conceded, upon cross-examination, that in July 1992

there were some black full-time associates in the Quincy store and that

promotions have been based on job performance, not seniority. However, no

similarity of these other black full-time employees' employment situations or

job duties was drawn to compare with Petitioner's personal employment situation

or job duties. Consequently, the "write-ups" of Petitioner are found to be

pretextual reasons for the employer's refusal to promote him.

42. No stipulation or order bifurcating damage evidence from evidence of

discrimination was entered in this case. Petitioner asserted that he was

entitled to "compensation" from July 22, 1992 to June 9, 1994, but he presented

no evidence of his pay rate per hour in either the full time or part time

positions, nor any other nexus upon which lost compensation damages could be

calculated. There also is no record evidence of what increases and/or decreases

occurred in pay, pay rate, or emoluments for either position over that period of

time. Likewise, there is no record evidence of how many hours Petitioner worked

or could have worked in either the part-time or full-time position so that

damages based on a pay differential can be calculated.

43. Respondent orally moved to dismiss for failure of Petitioner to state

a prima facie case. That motion was also taken under advisement for resolution

in this Recommended Order.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

Motion to Dismiss Petition

45. The issue with regard to Respondent's motion to dismiss the petition

hangs upon the following applicable rules:

At all times material, Rule 22T-9.008 F.A.C.

[now renumbered 60Y-5.008 F.A.C.] had provided

in pertinent part:

(1) Petition. A complainant may file a

Petition for Relief from an Unlawful Employment

Practice within 30 days of service of a Notice

of Failure of Conciliation, a Notice of

Determination of No Reasonable Cause, a Notice

of Determination of No Jurisdiction or a Notice

of Determination of Untimeliness; or where

redetermination has been requested, a Notice of

Redetermination of No Reasonable Cause, a Notice

of Redetermination of No Jurisdiction or a Notice

of Redetermination of Untimeliness. Notwithstanding

the provisions of Rules 60Y-4.004(2) and 60Y-4.005,

a complainant who is not represented by an attorney

may file a Petition for Relief without copies or

proof of service, and the Clerk shall prepare

copies and serve them upon all other parties.

* * *

(3) Procedures. Petitions for relief, and

proceedings thereupon, are governed by the

provisions of Chapter 60Y-4, Florida Administrative

Code, except as otherwise provided by this section.

* * *

(5) Answer.

(a) Each respondent shall file an answer

with the Commission within 20 days of service

of the petition.

(b) The answer shall include a specific admission,

denial, or explanation of each allegation of the

petition; or if the respondent is without knowledge

thereof, it shall so state, in which case such

statement shall operate as a denial. Admissions

or denials may be made to all or part of a

particular allegation.

(c) The answer shall include a specific,

detailed statement of any affirmative defense.

Failure to plead an affirmative defense shall

constitute a waiver of that defense.

(d) If a respondent fails to file a timely

answer, such failure shall be deemed to constitute

an admission of the material facts alleged in the

petition. Any allegation within the petition

which is not denied in the answer shall be deemed

admitted.

(e) The filing of a motion to dismiss shall

not toll the time for filing an answer.

44. Since no postmark was available at formal hearing convened more than a

year after the filing of his Petition, it was not possible for Petitioner to

demonstrate the date he mailed his Petition. Therefore, the date of filing his

Petition cannot be related back, pursuant to rule, to a date before April 28,

1993. Likewise, the rules giving an additional three days for mailing and an

extra day after specified days are not helpful to Petitioner under the facts of

this case. Therefore, it must be concluded that the Petition for Relief was

filed six days late.

47. Normally, the foregoing conclusion would resolve a jurisdictional

issue against Petitioner, because Petitioner always bears the burden of

establishing jurisdiction. However, Respondent's proposed recommended order

acknowledged that Clark v. Department of Corrections, 8 FALR 679 (FCHR 1985)

stands for the proposition that the thirty-day period for filing the Petition

for Relief is not jurisdictional but is subject to equitable tolling.

48. Respondent maintained, however, that Clark also stands for the

proposition that the Petitioner has the burden of proving that the limitations

period should be tolled and further argued that Petitioner has not met that

burden in the instant case. Respondent's argument in favor of dismissal of the

Petition for Relief also requires engrafting upon the Florida Commission on

Human Relations' rules certain federal rules and/or statutes which require a

Petitioner to include in a federal Title VII petition allegations of fulfilling

all conditions precedent. One of such conditions precedent for a Title VII

federal petition is an allegation that the petition itself was filed timely.

The Florida Commission on Human Relations has not adopted those federal pleading

requirements either by rule or by case law. Accordingly, Respondent's foregoing

arguments are not persuasive.

49. Some other Florida Human Relations Commission cases dealing with

timeliness vel non of a Petition for Relief have tolled the 30 day time frame

for filing a Petition for Relief, absent a showing of incurable prejudice to the

Respondent. See, Owens v. Blue Cross and Blue Shield of Florida, Inc., FCHR

Order 84-019 (FCHR 9/26/84); Dittrich v. Wackenhut Services, Inc. FCHR Order

No. 84-020 (FCHR 9/26/84); Gloss v. City of Mascotte, 3 FALR 238-A; Park v.

Southern Bell Telephone & Telegraph Co., 4 FALR 1795-A, and Matson v. General

Cinema Beverages of North Florida, Inc. DOAH Case No. 89-4318 (RO 5/11/90; Final

Order entered 7/19/90, filed 11/20/90).

50. The instant case does not present a situation in which the Petition

for Relief attempts to amend or add to the original charge of discrimination any

allegations which the Commission had never formally investigated or reviewed.

That would be an entirely different situation than the one at bar, and one which

would be purely jurisdictional, not subject to equitable tolling. See, Austin

v. Florida Power Corporation, DOAH Case No. 90-5137 (RO 6/20/91; Final order

entered 10/24/91, filed 10/30/91). Nor is this a situation where Petitioner's

intention, volition, or inadvertence should equitably bar him. It is noted that

mail is presumed to take five days everywhere except in the Commission's rules.

It is also entirely possible that Petitioner's post-mark, if it were available

at this late date, would establish an earlier filing date. Respondent's delay

in making its motion to dismiss has prejudiced Petitioner's ability to defend

against that motion.

51. It is important in applying any rule, to look first to the purpose of

the rule, and second, to determine whether or not a strict interpretation of the

rule serves that purpose. One purpose of a strict interpretation of Rule 60Y-

5.008 F.A.C. is to require issues to proceed forthwith to a finite conclusion

while events are still fresh in the witnesses' minds and while witnesses are

still available to both parties to present the best possible case that each

party can.

52. In the instant case, there is not even a scintilla of evidence that

Petitioner's six days' delay in filing his Petition for Relief prejudiced

Respondent's case in any tangible way. Respondent was in possession of a copy

of the Petition by May 6, 1993. From May 6, 1993 onward, Respondent did not

answer the petition and filed no discovery. Respondent simply sat on its

rights, failing to defend despite every opportunity to do so, until Respondent

finally, and obliquely, raised the issue of the Petition's untimeliness in its

March 4, 1994 letter. Advised by the April 21, 1994 order that a motion and

evidence would be necessary to resolve the timeliness issue, Respondent waited

to raise its oral motion to dismiss the petition until the June 13, 1994 formal

hearing. At that time, Respondent still could not demonstrate any prejudice

resulting from the six days' delay in filing the Petition.

53. Upon the foregoing findings of fact and conclusions of law, and due to

Respondent having conceded that timely filing of the Petition for Relief is not

jurisdictional, the oral motion to dismiss for untimeliness of the petition is

denied.

The Motion to Dismiss for Failure to Prove a Prima Facie Case

54. Under the provisions of Section 760.10 (1)(a), F.S. it is an unlawful

employment practice for an employer:

To discharge or to fail or refuse to hire

an 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, national origin,

age, handicap, or marital status.

[Emphasis supplied]

55. The United States Supreme Court set forth the procedure essential for

establishing claims of discrimination in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 668 (1973), which was then revisited in

detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981). Pursuant to the Burdine formula, the

employee has the initial burden of establishing a prima facie case of

intentional discrimination, which once established raises a presumption that the

employer discriminated against the employee. The preeminent case at the present

time in Florida is still Department of Corrections v. Chandler, 582 So. 2d 1183

(Fla. 1st DCA 1991).

56. When an individual alleges he has been subjected to "disparate

treatment," the standards of proof require that the Petitioner show the

existence of "actions taken by the employer from which one can infer, if such

actions remain unexplained, that it is more likely than not that such actions

were "based on a discriminatory criterion illegal under the Act." See, McCosh

v. City of Grand Forks, 628 F. 2d 1058 (8th Cir. 1980), and Furnco Const. Co. v.

Waters, 438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978), citing Teamsters

v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396

(1977). Once a Petitioner establishes this prima facie case, the burden shifts

to the employer to rebut the adverse inference by articulating "some legitimate

nondiscriminatory reason for the employee's rejection." See, McCosh v. City of

Grand Forks and McDonnell Douglas Corp. v. Green, both supra. But even if the

employer meets this burden, the complaining party is given the opportunity to

show that the proffered evidence is merely a pretext for discrimination, Id. at

804-05, 93 S. Ct. at 1025. See, generally, Kirby v. Colony Furniture Co., 613

F. 2d 696 (8th Cir. 1980).

57. The foregoing order of proof was abbreviated in the instant case by

Respondent's failure to answer the Petition for Relief, by the application of

the rule's instruction to deem unanswered allegations to have been admitted, and

by subsequent interlocutory orders limiting both parties' presentation of

evidence.

58. Petitioner has presented a prima facie case of discrimination on the

basis of race (black) by an employer covered by the Act, and the

nondiscriminatory reasons therefore are deemed pretextual. Therefore,

Respondent's oral motion to dismiss for failure to establish a prima facie case

and/or because Petitioner failed to establish that the Respondent's reasons for

non-hiring/promotion were not discriminatory (sic) is denied.

The Case on the Merits

58. The case on the merits as to the existence of a discriminatory and

illegal employment practice has been proven, and the non-discriminatory reasons

therefore are deemed pretextual.

59. Petitioner was finally hired full time by Respondent a few days before

formal hearing, but he is still entitled to an order awarding him full-time

employment.

60. However, nothing in the procedural history of this case establishes

that there was any agreement or order bifurcating the issues of liability and

damages. Accordingly, the burden was upon the Petitioner to go forward to

establish the amount of money and/or benefits Petitioner lost in

wages/compensation/job emoluments during the two-year period of non-promotion.

Petitioner presented no clear evidence as to either wages or other damages at

formal hearing on June 13, 1994. Moreover, Petitioner presented no evidence

which would permit the calculation of such damages. Accordingly, money damages

cannot be awarded.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED

That the Florida Commission on Human Relations enter a final order FINDING:

(1) That Petitioner has shown a prima facie violation of the Human Rights

Act of 1977, Section 760.10 F.S. [1989], to wit: failure of a covered employer

to "promote" Petitioner-employee to a full-time position because he is black;

(2) That Respondent has articulated, but has not substantiated, legitimate

nondiscriminatory reasons for the actions complained of; and

(3) That Petitioner has shown the articulated reasons to be pretextual;

AND ORDERING:

That Respondent employ Petitioner in a full-time position.

RECOMMENDED this 15th day of August, 1994, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of August, 1994.

ENDNOTES

1/ Respondent did not file, within 12 days, a response in opposition to

Petitioner's pleading filed December 14, 1993 as permitted by Rule 60Q-2.016

F.A.C., even though the prayer of Petitioner's December 14, 1993 pleading could

have been read as a request for all of Petitioner's witnesses to be heard on the

merits of the case. It is noted, however, that Petitioner's December 14, 1993

pleading does not reflect that Petitioner served a copy of it on Respondent, and

DOAH's file does not reflect that the undersigned hearing officer copied

Respondent with Petitioner's December 14, 1993 filing, probably because the

December 14 order was entered before the December 14 pleading was physically

received by the hearing officer.

2/ This examination included but was not limited to the Petitioner's December

14, 1993 pleading, in case Respondent had not received it. (See note 1 Id.) It

is noted that Respondent never claimed it had not received Petitioner's December

14, 1993 pleading, even after the March 1, 1994 hearing.

3/ FCHR Rules 60Y-5.007(9) and (12) cover potential vacations of orders and sua

sponte redeterminations by the FCHR director; 60Y-5.008(1) makes Petitions for

Relief due for filing at the Florida Commission on Human Relations in 30 days.

FCHR Rule 60Y-5.008(5) mandates the filing of Answers to Petitions for relief

within 20 days of the filing of the Petition for Relief. DOAH Rule 60Q-2.004

does not mandate answers to petitions and administrative complaints but

subsection (5)thereof permits Answers with affirmative defenses to other

administrative complaints and petitions to be filed at DOAH within 20 days of

the filing of those petitions.

* NOTE: Recommended Order Exhibits A through K are not a

part of this ACCESS document but are available for

review in the Division's Clerk's Office.

APPENDIX TO RECOMMENDED ORDER 93-2530

The following constitute specific rulings, pursuant to S120.59(2), F.S.,

upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

The Petitioner's "I. Stipulations" and "Findings of Facts" are all treated as

proposed findings of fact for purposes of this appendix. "I. Stipulations"

1 Rejected as legal argument, not a proposed finding of

fact.

2-3 Accepted but unnecessary material was not adopted.

4 Accepted but not dispositive. Covered under

appearances and throughout the findings of facts.

"Findings of Facts"

5-7 Accepted except that dates were not specified in the

Petitioner's testimony and therefore cannot be adopted.

8-10 Covered in Findings of Fact 38-40 as proven at formal

hearing. The portions proposed which were not

utilized in the recommended order were not proven or

were unnecessary.

Respondent's PFOF:

1-7 Accepted, except that legal arguments and irrelevant,

unnecessary, subordinate, and/or cumulative material

have not been utilized in the findings of fact. The

legal arguments have been discussed in the Conclusions

of Law.

COPIES FURNISHED:

K. E. Donald

Route 5 Box 205-L

Quincy, FL 32351

Winn Dixie Stores, Inc.

Kenneth G. Mall

Post Office Box B

Jacksonville, FL 32203-0297

Terry Miller

Winn Dixie Stores, Inc.

1608 West Jefferson Street

Quincy, FL 32351

W. E. Carroll

Winn Dixie Stores, Inc.

1000 W. Tharpe Street

Tallahassee, FL 32329

Sharon Moultry, Clerk

Human Relations Commission

325 John Knox Road

Building F, Suite 240

Tallahassee, FL 32303-4113

Dana Baird, General Counsel

Human Relations Commission

325 John Knox Road

Building F, Suite 240

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

K. E. DONALD,

Petitioner, EEOC Case No. 15D92049

FCHR Case No. 92-6248

vs. DOAH Case No. 93-2530

FCHR Order No. 95-057

WINN-DIXIE STORES, INC.,

Respondent.

___________________________/

FINAL ORDER AWARDING AFFIRMATIVE RELIEF

FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner K. E. Donald filed a complaint of discrimination pursuant to the

Human Rights Act of 1977, as amended, Section 760.01 - 760.10, Florida Statutes

(1991), alleging that Respondent Winn-Dixie Stores, Inc., committed an unlawful

employment practice by refusing to promote him from part-time to full-time

employment because of his race (black).

The allegations set forth in the complaint were investigated and, on

March, 23, 1993, the Executive Director issued his determination, finding that

no reasonable cause existed to believe that an unlawful employment practice had

occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment

Practice, received by the Commission on April 28, 1993, and the case was

transferred `to the Division of Administrative Hearings for the conduct of a

formal proceeding.

A formal administrative hearing was held in Tallahassee, Florida, on June

13, 1994-, before Hearing Officer Ella Jane P. Davis.

Hearing Officer Davis issued a Recommended Order, finding that an unlawful

employment practice had occurred, dated August 15, 1994.

Pursuant to notice, public deliberations were held on October 12, 1995, in

Tallahassee, Florida, before this panel of Commissioners, at which deliberations

the panel determined the action to be taken upon the Petition for Relief.

FINDINGS OF FACT

Neither party filed a transcript of the proceeding before the Hearing

Officer.

Since a Hearing Officer's finding of whether discrimination occurred is a

finding of fact, the Commission may overturn such a finding only if, after

reviewing the complete record of the case, the Commission determines that the

finding is not supported by competent substantial evidence in the record or that

the proceeding leading to the determination did not comply with the essential

requirements of law. See Florida Department of Community Affairs v. Bryant, 586

So.2d 1205, at 1210 (Fla. 1st DCA 1991). In the absence of a transcript of the

proceeding before the Hearing Officer, the Hearing Officer's Recommended Order

is the only evidence for the Commission to consider. See National Industries,

Inc. v. Commission on Human Relations, et al., 527 So.2d 894, at 897, 898-(Fla.

5th DCA 1988).

We adopt the Hearing Officer's findings of fact.

CONCLUSIONS OF LAW

We find the Hearing Officer's application of the law to be a correct

disposition of the case. With the addition indicated in the Award of

Affirmative Relief section of this Order, infra, we adopt the Hearing Officer's

conclusions of law.

Exceptions

Respondent filed two, numbered, written exceptions to the Recommended

Order.

Respondent also filed a Motion for Leave to Excuse Filing of Transcript,

requesting the Commission to consider its exceptions without the filing of a

transcript, arguing that its exceptions are to conclusions of law as opposed to

findings of fact. In the Motion, Respondent indicates that if the Motion were

to be denied, it is willing to bear the burden of providing a transcript, and

requests reasonable time to be allowed to do that.

Respondent excepts to: (1) the Hearing Officer's conclusion of law denying

Respondent's motion to dismiss on the basis that Petitioner's Petition for

Relief was not timely filed (Recommended Order, 53); and (2) the Hearing

Officer's conclusion of law finding that the period for filing a Petition for

Relief from Unlawful Employment Practices can be tolled where Respondent suffers

no prejudice to the Petition (Recommended Order, 48 and [ 49).

Fla. Admin. Code R. 60Y-4.027(1) requires a party who files exceptions to

the Hearing Officer's Recommended Order to provide the Commission with a

verbatim, written transcript of all testimony, if no verbatim, written

transcript has been previously furnished by any other party.

The Commission routinely "strikes" exceptions to Recommended Orders when

the party filing the exceptions fails to provide the required transcript, and a

transcript has not otherwise been provided. See, e.g., Ebeh v. Consumer Credit

Counseling Service of the Tampa Bay Area, Inc., 16 F.A.L.R. 2149 (FCHR 1994).

With regard to the timeliness of the filing of the Petition for Relief, the

Hearing Officer found that Petitioner filed the Petition for Relief six days

late. Recommended Order, 46. The Hearing Officer also found that this late-

filing did not result in prejudice to Respondent. Recommended Order, I 52.

Arnold v. Department of Health and Rehabilitative Services, 16 F.A.L.R.

576 (FCHR 1993), presents a situation in which Petitioner filed his Petition for

Relief four days late. In conclusions of law adopted by the Commission, the

Hearing Officer indicated that it was unnecessary to consider the excuse offered

by Petitioner for the late-filing, since he failed in his burden of proof on the

substantive issues, but noted that, "[Petitioner's] filing was four days late,

but tee [Respondent] was not prejudiced by that brief late filing. In similar

situations appellate courts have been reluctant to consider the filing deadline

as jurisdictional [cite omitted]." Arnold, supra, at 582.

We conclude that, under the Human Rights Act of 1977, as amended, it is

within the discretion of the Hearing Officer to deny a motion to dismiss for

failure of the Petition for Relief to be timely filed, if the late-filing has

not resulted in prejudice to the Respondent.

Based on the foregoing, we deny Respondent's Motion for Leave to Excuse

Filing of Transcript, but find that even if the Motion were granted, Respondent

s exceptions to the Recommended Order would be denied.

Award of Affirmative Relief

The Hearing Officer recommended that Respondent be ordered to employ

Petitioner in a full-time position, and we so ORDER.

Further, we hereby ORDER Respondent to cease and desist form engaging in

the unlawful employment practice found to have occurred in this case.

The parties have the right to seek judicial review of this Order. The

Commission and the appropriate District Court of Appeal must receive a notice of

appeal within 30 days of the date this Order is filed with the Clerk of the

Commission. Explanation of the right to appeal is found in Section 120.68,

Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 11th day of December, 1995.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

___________________________________

Commissioner Whitfield Jenkins,

Panel Chairperson;

Commissioner Clarethea Brooks; and

Commissioner Ronald Townsend

Filed this 11th day of December, 1995,

in Tallahassee, Florida.

___________________________________

Sharon Moultry

Clerk of the Commission

NOTICE TO COMPLAINANT/PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of

1964, which is enforced by the U.S. Equal Employment Opportunity Commission

(EEOC), you have the right to request EEOC to review this Commission's final

agency action. To secure a "substantial weight review" by EEOC, you must request

it in writing within 15 days of your receipt of this Order. Send your request to

Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite

2700, 27th Floor, Miami, FL 331 31

Copies furnished to:

K. E. Donald

Route 5 Box 205-L

Quincy, Florida 32351

Martha Harrell Chumbler, Esquire

Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.

P.O. Box 190

Tallahassee, Florida 32302

John P. McAdams, Esquire

Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.

P.O. Box 3239

Tampa, Florida 33601

James Mallue, Legal Advisor for Commission Panel

Ella Jane P. Davis, DOAH Hearing Officer