STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HELEN T. COOK, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2095
) ST. PETERSBURG MOTOR CLUB, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Tampa, Florida on August 3, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration at the hearing was whether the Respondent, St. Petersburg Motor Club, (Club), unlawfully discriminated against the Petitioner, Helen T. Cook, on the basis of her marital status, when it required her to submit her resignation from employment by the Club upon her marriage to another club employee.
APPEARANCES
For Petitioner: Robert F. McKee, Esquire
1724 East 7th Avenue Post Office Box 75638
Tampa, Florida 33675-0638
For Respondent: Michael K. Houtz, Esquire
Post Office Drawer 1441
St. Petersburg, Florida 33731-1441 BACKGROUND INFORMATION
On May 16, 1986, the Petitioner, Helen T. Cook, filed a charge of discrimination with the Florida Commission on Human Relations, (Commission) against the St. Petersburg Motor Club. On March 11, 1988, the Commission entered a Determination of Cause for the complaint. Unsuccessful efforts were made to conciliate the complaint and on April 21, 1988, the Commission entered a Notice of Failure of Conciliation.
Mrs. Cook thereafter filed a Petition for Relief From an Unlawful Employment Practice and on April 28, 1988, the matter was transmitted to the Division of Administrative Hearings for appointment of a Hearing Officer. The case was originally scheduled for hearing by the undersigned on June 2, 1988. However, several requests for continuance were submitted by both parties and on July 5, 1988, the undersigned granted Petitioner's ore tenus motion rescheduling the hearing for August 3, 1988, at which time it was held as scheduled.
At the hearing, Petitioner testified in her own behalf and presented the testimony of her husband, Richard L. Cook; Trevor White, former President and Chief Executive Officer of the Club at the time Petitioner submitted her
resignation; and James E. Hendry, President of the Club prior to Mr. White Petitioner also introduced Petitioner's Exhibits 1 through 4.
Respondent presented the testimony of Mr. White and Thomas H. Gregory, a member of the Board of Directors of the Club at the time in issue. Respondent also introduced Respondent's Exhibits A and C through E.
Subsequent to the hearing Respondent provided the undersigned with a transcript of the hearing testimony. Both parties submitted post hearing briefs which contained unnumbered statements of fact. These statements of fact are considered Proposed Findings of Fact for the purpose of this Recommended Order and are ruled upon in the Appendix hereto.
FINDINGS OF FACT
Petitioner, Helen T. Cook, (formerly Griffin), started working for the Respondent, St. Petersburg Motor Club as Personnel Director on May 15, 1979. In that capacity, she reported to the Chief Executive Officer who was, at the time, Mr. James Hendry. Mrs. Cook remained as Personnel Director until August, 1984, when she was promoted to the position of Managing Director for Personnel, and made a part of senior management.
As the Managing Director for Personnel, she was the senior personnel officer within the organization and was required, among other duties, to interview applicants for employment; counsel employees and conduct exit interviews; implement approved company policies; research employee benefits and administer them; serve on the pension committee responding to the Board of Directors; work out personnel solutions with supervisors and employees; maintain legal personnel files on all staff; and represent the Club on all compliance hearings regarding worker's compensation, unemployment compensation, and equal employment opportunity. She reported to the Executive Vice President of the Club.
When Mrs. Cook first went to work for the Club, the organization had no rule regarding nepotism. However, in August, 1984, in order to correct a situation then existing involving numerous instances of nepotism among Club employees, the Board of Directors promulgated a rule which was implemented in January, 1985 and which prohibited employment of individuals related to Club employees. When the rule was enacted, incumbent employees related to other employees were grandfathered, but non-related incumbent employees who later married other Club employees were to be covered by the policy. At the time of it's implementation, Mrs. Cook opposed it.
Mrs. Cook's husband, Richard, was already employed by the Club when she was hired. They were not married at the time. Mr. Cook was Director of the Club's service center and in her job as director of personnel, she presented potential future employees to him for hire. Mr. Cook was not in her direct line of authority. He worked for the Managing Director of Services, Mr. Schatzman. At the time the problem here came about, Mrs. Cook was the Managing Director of Personnel and on a parallel with her husband's boss.
Mrs. Cook and Mr. Cook started dating in April, 1985, approximately one month after the death of his wife. Mrs. Cook immediately notified the Club management of this fact. In her opinion, management seemed delighted because of their affection for both parties. No one attempted to dissuade them from continuing the relationship, nor did anyone ever suggest that the relationship
was detrimental to the Club. In her opinion, the matter was so well handled that no one could tell they were dating.
Mr. and Mrs. Cook were married on July 14, 1985. At the time, both parties knew that the policy against nepotism was in effect. In June, 1985, before the marriage, Mrs. Cook informed Mr. White, then either Executive Vice President or President and Chief Executive, of their plans. He asked her to hold up on any action while the Board looked into the policy to see if it would be applied to her. Nonetheless, they married and after the marriage she again approached Mr. White, to determine if the anti-nepotism policy would apply to her. At this time, she hoped he could convince the Board to make an exception to the policy for the Cooks. He asked her to hold off on any resignation action to allow the Board to look into the policy in an effort to determine if it was legal and if it would be applied to her. There was never any question in Mrs. Cook's mind that if the rule were to be enforced against them, she, not her husband, would submit a resignation and she informed Mr. White of this prior to the final decision the Board to invoke the policy.
A special meeting of the Board was held on November 14, 1985 at which the Board decided that the policy would be applied and enforced in this case. Mr. White was not present at this Board meeting but was informed of it either that day or the next morning by Mr. Harris, Vice Chairman of the Board. That same day, or the next day, Mr. White informed Mrs. Cook of the Board's decision. He appeared to be upset by it and so was she. However, she suggested to Mr. White that a memorandum be sent out by him to advise employes of her departure and the reason therefor. This memo was dated November 20, 1985. The minutes of the Board meeting of November 19, 1985 reflect Mrs. Cook had already elected to resign. Consequently, it is found she was advised of the Board's decision on or before November 19, 1985. Her complaint of discrimination was filed with the Commission on May 19 1986, no less than 181 days after she received notice of the action complained of. Her resignation was effective in January, 1986.
From the time she and her husband started dating the relationship, Mrs. Cook believes, never created any problem for the Club. She would not have left her employment but for the Club's policy. In her opinion, problems could have been avoided by taking her out of the loop relating to actions regarding her husband. This would not, however, have avoided the appearance of impropriety, regardless that no actual impropriety existed.
In her position as Managing Director of Personnel, Mrs. Cook had access to all personnel files for the more then 300 employees of the Club. She was a policy maker and a member of the top management team. She was aware of all employees' salaries and evaluations and attended evaluation meetings with the Chief Executive Officer and managing directors concerning the evaluations of all directors under them. Though she did not rate any personnel except those who were in her immediate division, nor did she have any say on salaries outside her division, she was aware of them and was a part of the management team which controlled the day to day operation of the Club. Managing directors got together at least twice a day in informal meetings to discuss Club business and at those meetings, such things as evaluations, assignments, and promotions were discussed. Therefore, though she did not rate or direct her husband, she could have had a substantial impact on his career by virtue of her relationship with other managing directors. This is not to say, however, and it must be recognized, that there was any evidence that at any time Mrs. Cook interfered in her husband's career. By her own admission, however, she was a valuable employee and her position was sensitive. On December 31, 1984, prior to her marriage, she executed an Employment at Will statement which acknowledged that
her employment could be terminated by either herself or the employer at any time.
When Mr. White first learned that the Cooks had developed a personal relationship, it presented no problem for him. He did not believe it would be detrimental to the Club and, in fact, he received no complaints about it from anyone. He was aware of the Club's policy regarding nepotism. When he first became aware of the policy, he requested that the Board reconsider its decision because he felt that it might be illegal. Nonetheless, at no time did he bring the matter up with the Cooks because, to his knowledge, Mrs. Cook was fully aware of it nor did he indicate to her that the Board would not apply it to her.
He believed, however, that both Mr. and Mrs. Cook should be allowed to remain as employees even after their marriage and made that recommendation to the Board. Nonetheless, the Board chose to implement the policy. According to Mr. Gregory, a member of the Club's Board, because of a situation regarding the former president, Mr. Henry's hiring of several family members under circumstances incompatible with good morale and discipline within the Club staff, and because of the growing number of Club employees married to other Club employees, (approximately 45 employees were involved), the Board implemented the rule against nepotism. A committee had discussed several alternatives before recommending the anti-nepotism policy and the Board was unanimously in favor of its implementation except for Mr. Henry who, at the time, was still on the Board.
When the Board was made aware that the Cooks intended to marry, members were concerned because of Mrs. Cook's position and the image that might be created in the eyes of other employees. As a result, the Board felt compelled, as a business necessity, to enforce the policy notwithstanding Mr. White's urging that Mrs. Cook be kept on because of her value to the Club. The decision to invoke the rule was made reluctantly. It was acknowledged she was a good and valuable employee. However, because of the circumstances, and because of Mrs. Cook's position as Managing Director of Personnel, the Board felt compelled to enforce it.
Had it not been for the sensitivity of Mrs. Cook's position, and given Mr. White's desire to keep her, the Board might have been able to look at the situation differently. Under the circumstances, however, it could do nothing else. The decision in no way reflected Board dissatisfaction with Mrs. Cook's performance or any animosity toward her or her husband. The problem was that her position, when considered against the apparent potential for abuse, was the most sensitive of all jobs related to Club personnel. This factor differentiated her situation from other situations involving nepotism and necessitated her departure. This was an appropriate decision under the facts of this case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
The Florida Commission on Human Relations is vested with jurisdiction to enforce the law prohibiting employment practices which involve unlawful discrimination. Section 760.6(5), Florida Statutes. Respondent is an employer within the meaning of the statute and is subject to the jurisdiction of the Commission.
Under the provisions of Section 760.10, Florida Statutes, Petitioner was required to file her complaint with the Commission within 180 days of the alleged violation. Here, the vote to apply the rule to the Cooks was taken at the November 14, 1985, special Board meeting and the decision communicated to Mr. White no later than the next day. Mr. White, who is no longer associated with the Club, testified he advised Mrs. Cook that day, (November 15, 1985), or, at the very latest, the next day, (November 16, 1985), of the decision. The Board was advised at its November 19, 1985, meeting that Mrs. Cook had elected to resign and even if she had been told only that day, which is clearly not the case, the filing of her complaint on May 19, 1986, was late and not timely within the requirements of the statute.
In any case, however, and assuming, arguendo, the filing was timely, in order for Mrs. Cook to prevail in this action, she must show, prima facie, that the Respondent has discriminated against her with respect to her compensation, terms, conditions or privileges of employment based upon race, marital status, or handicap. Section 760.10(1)(a), Florida Statutes. She bears the initial burden of establishing a case of discrimination McDonnell Douglas Corp. v Greene, 411 U.S. 792, (1073); Texas Department of Community Affairs v Burdine, 450 U.S. 248 (1981). If Mrs. Cook can sustain her initial burden, the Respondent then has to establish a legitimate, nondiscriminatory reason for the action it took against her in order to rebut the inference of unlawful discrimination.
The issue in this case is whether Respondent's forcing Mrs. Cook to resign as a result of her marriage to another Club employee constitutes discrimination on the basis of marital status. The Commission has already determined that it does, Owens v. Upper Pinellas Association for Retarded Citizens, 495 So.2d 754 (Fla. 2d DCA 1986).
Not all discrimination is unlawful, however. If the Respondent can establish that its action was based on a bona fide occupational qualification, or if the practice is shown to have a "manifest relation to the employment in question," then that action, even though discriminatory, may be sustained. Nothing in the cases cited in the Commission's Determination requires that an actual abuse of position be shown.
In a disparate treatment case, as here, proof of discriminatory motive or intent is essential, Griffin v. Carlin, 755 F.2d 1516 (1985); National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988). To make that determination, a careful examination of the Club's stated rationale for implementation of its policy here must be made. While subjective criteria must be scrutinized more carefully than objective criteria, nothing in Title VII precludes their use in making employment decisions, Nieves v. Metropolitan Dade County, 598 F. Supp. 966 (1984).
There is no question but that Mrs. Cook was required to resign her position with Respondent because of her marriage to Richard Cook, an employee of the Club. This was the result of a Club anti-nepotism policy in existence at the time of the marriage. Both Mrs. and Mr. Cook were aware at the time they made their decision to marry that Club employees would not, by rule, both be permitted to retain their employment upon marriage to each other. It matters not that the policy was promulgated and implemented subsequent to the employment of both Richard and Helen Cook. What is important is that the policy be clearly elucidated, and factually supported.
There is no insinuation or implication that Mrs. Cook or Mr. Cook were engaged in any type of improper, inappropriate, or otherwise unsupportable behavior subsequent to their marriage. In this case it is a clear case of the appearance of the possibility of evil rather than the existence of evil.
By virtue of Mrs. Cook's position as Managing Director of Personnel, she could have had an impact on her husband's assignments, salary, and ratings, and in fact, every aspect of his employment with the Club. This is not say that she would have exercised this influence and all who are involved herein are satisfied that she would not have done so. However, if an anti-nepotism policy, such as was extant here is to work, it must apply to all employees, not just lower level employees or some employees. Failure to do so could well have an extremely counterproductive and deleterious effect on employee morale and place the entire structure in doubt. The maintenance of an effective and bias free personnel management system is clearly a legitimate business necessity, Griggs
v. Duke Power Co., 401 U.S. 424 (1971). The potential for abuse here is real and a legitimate basis for the implementation of the policy.
Petitioner claims less discriminatory remedies were available to the Club other than forcing her separation. Clearly taking her out of the personnel process as it relates to her husband is not satisfactory. Perhaps more than any other, as Managing Director for Personnel, her position is sensitive and must bespeak of no potential for wrongdoing. No matter how well deserved and personnel action regarding Mr. Cook might be in the future, the potential for suspicion would remain, Albemarle Paper Company v. Moody, 422 U.S. 405, 95 S.Ct. 2362 (1975).
While Mrs. Cook has established that her departure from employment with the Club was a direct result of a discriminatory Club policy, the Club has, on the other hand, defined a perfectly legitimate, nondiscriminatory reason for implementation of the policy and has overcome Mrs. Cook's proof of discrimination. The requirement that Mrs. Cook resign was not unlawful discrimination, but instead legitimate and appropriate personnel action under the circumstances of this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that a Final Order be issued by the Florida Commission of Human Relations dismissing Petitioner's charge of discrimination against the Respondent.
RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2095
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case.
For the Petitioner:
Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted and incorporated herein except for the last sentence which has not been proven but is a matter of opinion.
Accepted.
Accepted as indicating a perception for possibility of abuse, not that Mrs. Cook was guilty of any breach of trust.
Accepted and incorporated herein.
For the Respondent:
Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted but not controlling.
4 - 5. Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted and incorporated herein except for the testimony quoted which is not a Finding of Fact but a recitation of testimony.
Accepted and incorporated herein.
Accepted and incorporated herein.
Rejected as not being a proper Finding of Fact relative to the issues of fact herein.
COPIES FURNISHED:
Robert F. McKee, Esquire 1724 East 7th Avenue Post Office Box 75638
Tampa, Florida 33675-0638
Michael K. Houtz, Esquire Post Office Drawer 1441
St. Petersburg, Florida 33731-1441
Donald A. Griffin, Executive Director Florida Commission on Human Relations
325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
Dana Baird, General Counsel
Florida Commission on Human Relations
325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
Margaret Agerton, Clerk
Florida Commission on Human Relations
325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
HELEN T. COOK,
Petitioner,
EEOC CASE NO. n/a
FCHR CASE NO. 86-2839
DOAH CASE NO. 88-2095
ST. PETERSBURG MOTOR CLUB FCHR ORDER NO. 89-009
Respondent.
/
ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL
EMPLOYMENT PRACTICE
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner Robert L. Billingslea, Panel Chairperson;
Commissioner Robert R. Joyce; and Commissioner Learna G. Ramsey
Appearances For Petitioner Helen T. Cook:
Robert F. McKee, Esquire Kelley & McKee, P.A.
1724 East Seventh Avenue Tampa, Florida 33675-0638
For Respondent St. Petersburg Motor Club:
Michael K. Houtz, Esquire Harris, Barrett, Mann & Dew
150 Second Avenue North, Suite 1500 St. Petersburg, Florida 33701
Preliminary Matters
Helen T. Cook, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-60.10, Florida Statutes (1987), 1/ alleging that St. Petersburg Motor Club, Respondent herein, unlawfully discriminated against Petitioner on the basis of marital status (married).
In accordance with the Commission's rules, the allegation of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On March 11, 1988, the Executive Director issued his determination finding reasonable cause to believe that an unlawful employment practice occurred.
On April 27, 1988, the Petitioner filed a petition for relief from an unlawful employment practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.016(1). The formal proceeding was held on August 3, 1988, in Tampa, Florida before Arnold J. Pollock, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on September 30, 1988.
Petitioner filed exceptions to the Recommended Order. Respondent did not file a responsive pleading to Petitioner's exceptions.
Pursuant to notice, oral argument was held on January 19, 1989, in Tallahassee, Florida, before the aforementioned Panel of Commissioners. After oral argument was presented, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition.
Petitioner's Exceptions to the Recommended Order
Petitioner filed the following exceptions to the Recommended Order:
The Hearing Officer's finding that Petitioner could have had a substantial impact on her husband's career by virtue of her relationship with the other managing directors is not based upon evidence presented at the DOAH hearing and such finding contradicts the unrefuted testimony of the witnesses who addressed the issue;
The Hearing Officer's finding that the appearance of impropriety, regardless that no actual impropriety existed, could not have been avoided by
removing Petitioner from any employment decisions regarding her husband was formed without the benefit of evidentiary support presented at the DOAH hearing;
The Hearing Officer's finding regarding the Board of Director's motivation in applying Respondent's antinepotism policy toward Petitioner not supported by testimonial evidence presented at the DOAH hearing;
The Hearing Officer's conclusion of law that petitioner's original complaint of discrimination is untimely is erroneous and should be rejected;
The Hearing Officer's analysis of the business necessity defense in fundamentally flawed and must be rejected by the Commission; and
The Hearing Officer's conclusion that Petitioner failed to meet her burden of proof regarding the existence of a less-intrusive means to addressing Respondont's concerns regarding the appearance of impropriety should be rejected.
Rulings on Exceptions
Section 120.57(1)(b)10, Florida Statutes, provides:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in tie order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
The Panel rejects tie Petitioner's exceptions to the Hearing Officer's Finding's of fact made in the Recommended Order and the record contains at least some competent substantial evidence supportive of these factual findings. In the presence of such evidence, the Panel will not disturb the Hearing Officer's findings as to disputed facts. Brevard County sheriff's Department v. FCHR, 429 So.2d 1235 (Fla. 5th DCA 1983); City of Umatilla v. PERC, 422 So.2d 905 (Fla.
5th DCA 1982).
Petitioner's first exception is rejected in that there is substantial competent evidence in the record to support the Hearing Officer's finding that Petitioner had the potential to substantially impact her husband's career. (Transcript pages 67, 68, 75, 76, 89, 104, 106, and 117, hereinafter referred to as T- ). 2/
Petitioner's second exception is rejected in that there is substantial competent evidence in the record to support the finding that the appearance of impropriety could not have been avoided. (Thomas Gregory's testimony, specifically, T-170).
Petitioner's third exception is rejected in that there is competent substantial evidence in the record to support the Hearing Officer's finding that
Respondent felt compelled to enforce the antinepotism policy in Petitioner's case as a business necessity due to the image and morale problems which might have been created if an exception were made. (T-173).
The Panel finds that Petitioner's exceptions to the Hearing Officer' conclusions of law have merit. Therefore, the Panel accepts Petitioner's exceptions and finds that the Hearing Officer's conclusions of law should be modified to reflect the proper legal analysis regarding the timeliness issue and the proper standards of proof required in a direct evidence discrimination case. See Alles v. Department of Professional Regulation, Construction Industry Board,
423 So.2d 624, 626 (Fla. 5th DCA 1982), were the court held that the Board did not err in rejecting the hearing officer's interpretational conclusions of law and substituting its own in that the statute permitted the agency to "reject conclusions of law without limitation."
Analysis Discussion
The Florida Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes, provides in part:
760.10 Unlawful employment practices; remedies; construction.
It is an unlawful employment practice for an employer:
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 ... marital status.
Notwithstanding any other provision of this section, it is not an unlawful employment practice under sections 760.01-760.10 for an employer to:
Take or fail to take any action on the basis of ... marital status in those certain instances in which marital status is a bona fide occupational qualification reasonably necessary for the performance of the particular employment...
Using section 120.57(1)(b)10, Florida Statutes, as authority, the Supreme Court answered in the affirmative the certified question of whether an agency may overturn a hearing officer's ultimate determination in light of what it perceives to be the applicable law and relevant policy considerations. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985). Therein, the Court reversed the District Court of Appeal's finding that the Public Employees Relations Commission (PERC) lacked the authority to reject the hearing officer's findings after it had determined that the hearing officer had misapplied the law of agency to its findings of fact.
The Court stated that the issue before the hearing officer was whether the police officers' representative was acting in his general or special authority as representative to the Police Benevolent Association (PBA) when he called a strike. PERC adopted the hearing officer's findings of fact, but reversed the conclusion that the representative was not acting as an agent of the PBA after determining that the hearing officer had misapplied the law of agency to the findings of fact. On appeal, the District Court found that "the existence and scope of an agency relationship is a question of fact ... susceptible of ordinary methods of proof" and thereby binding upon the agency absent a showing that such finding was "not based upon competent substantial evidence" or was "the product of proceedings not comporting with the essential requirements of law." Dade County Police Association v. City of Homestead, 444 So.2d 465, 471-2 (Fla. 3rd DCA 1984).
The Supreme Court disagreed with the District Court's ruling and held that:
... how the law of agency should be applied is an interpretation of law and policy and not a determination of fact. We agree with the Public employees Relation Commission that the ultimate authority to administratively interpret chapter 447 ... resides with the Commission and not a hearing officer. The Commission has the principal responsibility
of interpreting the statutory provisions consistent with the legislature's intent and objectives.
* * *
We also agree that the Commission has the authority to overrule a statutory interpretation made by one of its hearing officers.
* * *
Further, we agree that a reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial competent evidence. (Citations omitted).
467 So.2d 989. Finding that the dissenting opinion of Judge Nesbitt thoroughly analyzed and correctly resolved the issues of the case, the Supreme Court adopted the dissent as their opinion, quashed the decision of the District Court and reinstated PERC's final order. PERC v. Dade County PBA, supra, 989; Dade County PBA v. Homestead, supra, 474-77.
In his opinion, Judge Nesbitt emphasized that since the Commission's disagreement was with the hearing officer's interpretation of a principle of law and not with the facts, there was no doubt that it was entitled to displace the hearing officer's conclusions. Judge Nesbitt went on to state:
For the same reason, this court, on review of the commission's ruling, must give deference to the PERC in recognition of their competence in dealing with labor problems. As the first
district stated, in Pasco County School Board v.
Florida Public Employees Relations Commission, 353 So.2d 108,116 (Fla. 1st DCA 1978):
Expert tribunals are entitled to the greatest deference in recognition of their special competence in dealing with labor problems. In many areas their evaluation of the competing interests of
employer-employee should unquestionably be given conclusive effect in determining the application of the pertinent sections of the Act.
And, in McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the court distinguished a hearing officer's finding with respect to the credibility of a witness from findings made in a case such as the one before us:
At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer's findings in determining the substantiality of evidence supporting the agency's substituted findings.
346 So.2d at 579. It cannot be emphasized enough that the commission followed the hearing officer's findings of fact but disagreed with him because of his erroneous interpretation of the law of agency. It is not this court's province to displace an agency's choice between two conflicting views.
44 So.2d 476-7.
For the reasons set forth above, the Panel modifies the Hearing Officer's Recommended Order to reflect its chosen legal analysis and reverses the Hearing Officer's ultimate conclusion based upon his erroneous analysis.
Burden of Proof
It is the intent of the Commission to clarify the parties' respective burdens of proof regarding direct evidence cases, generally, and marital status cases, specifically.
In McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), the Supreme Court also held that in cases where the allegations of discrimination raise the issue of disparate treatment, the evidence is analyzed under the following
three-pronged test:
A prima facie came of discrimination;
If there is sufficient evidence to establish a prima facie case, then there must be evidence, adduced from the respondent, to articulate its legitimate, nondiscriminatory reasons for its employment decisions; and
If the respondent articulate such reasons, then for the complainant to prevail, there must be a preponderance of record evidence to establish that respondent's articulated reasons were not respondent's true reasons, but were a pretext for discrimination. Accord Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
However, the Supreme Court also held that where there is direct evidence of discrimination, the shifting burdens of proof set forth in McDonnell Douglas, supra, are not applicable. Rather, where there is direct evidence of discriminatory conduct, Respondent's burden is heavier than it would be under a McDonnell Douglas analysis. Trans World Airlines, Inc. v. Thurston, 469 U.S. 11 (1985).
Marital status discrimination cases, especially those which involve antinepotism policies, do not lend themselves well to the McDonnell Douglas approach much in the same way handicap cases which involve direct evidence of discrimination do not. As the court explained in School Board of Pinellas County v. Rateau, 449 So.2d 839 (Fla. 1st DCA 1984):
The hearing officer applied the approach approved by the Supreme Court in the determination of whether there has been a violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C.S. Statute 2000e et seq.) prescribing discrimination because of "race, color, religion, sex, or national origin." See Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981); McDonnell Douglas
Corporation v. Green 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973). Essentially, the hearing officer reasoned that Rateau established a prima facie case of unlawful discrimination by this showing that he had a physical handicap (a bad back), that he otherwise met the qualifications for the position and that he was rejected for the position. Applying the principles of Burdine, the hearing officer stated that the burden then shifted to the Board "to articulate a legitimate nondiscriminatory reason" for Rateau's rejection. Of course, in a Title VII case, the employer would be expected to set forth reasons other than the protected status
(race, color religion, sex, or national origin) for the rejection of the employee or, in this case, employee applicant. However, in a case such as this, all the employer could do was to respond by affirming that the bad back itself was the very reason why Rateau was not hired.
In a Title VII case, the employee, under Burdine and McDonnell Douglas, would then be
expected to prove that the reasons (other than the protected status) articulated by the employer for rejecting the employee were pretextual. And that is where, in attempting to apply the Title VII approach to this case, one comes full circle, i.e., if the reason given by the employer for rejecting the employee was pretextual, then the real reason is presumed to be the employee's protected status, in this instance the employee's bad back. It becomes apparent, therefore, that although the Title VII approach is helpful when the alleged discrimination, as in Title VII cases, is race, color, religion, sex or national origin, it is of little help
indeed serves to confuse when the alleged protected status (bad back) is, and can legitimately be, the articulated reason for rejection.
Like direct evidence handicap cases, i.e., those in which Respondent's articulated reason is the employee's protected status under the act, marital status cases, where the reason for Respondent's employment action is the employee's marital status, require a heavier burden on the part of Respondent than under a McDonnell Douglas analysis.
It is well established that the burden of proof is upon the party asserting the affirmative of an issue before an administrative tribunal. Irvine v. Duval County Planning Commission, 466 So.2d 357, 360 (Fla. 1st DCA 1985); Florida Department of Transportation v. J.W.C. Company, Inc., 896 So.2d 778, 788 (Fla.
1st DCA 1981). In Fenesy v. GTE Data Services, Inc., 3 FALR 1764-A (August 13, 1981), this Commission held that the burden is upon the applicant or employee to establish that the employer took adverse action against him based upon a prohibited basis, but that once the discriminatory action has been shown, the burden is upon the employer to establish that its otherwise unlawful action falls within a specified exception.
Here, Respondent admitted that when Petitioner married another employee, Petitioner or her husband would be forced to resign pursuant to their antinepotism policy. Respondent stated at the hearing that it felt compelled to enforce their policy as a business necessity based on the image that might be created in the eyes of other employees (RO-8). Therefore, it was Respondent's burden at the administrative hearing to prove by a preponderance of the evidence that its otherwise discriminatory employment action was justified on the basis of a bona fide occupational qualification under section 760.10(8)(a), Florida Statutes.
Bona Fide Occupational Qualification/Business Necessity
In Owens v. Association for Retarded Citizens, 8 FALR 438 (FCHR September 10, 1985), aff'd without opinion, 495 So.2d 754 (Fla. 2d DCA 1986), the Commission rejected the McDonnell Douglas, supra, burden of proof allocated by the parties by the hearing officer reasoning that:
While the burden of proof rests with Petitioner to establish the affirmative allegations in his Petition by a preponderance
of the evidence, the burden rests with the Respondent to establish the affirmative defense that its action was based on a bona fide occupational qualification. Fenesy v. GTE Data Services, Inc., 111 FALR 1764-A (FCHR August 13, 1981).
In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Court
ruled that business necessity was an affirmative defense to a discriminatory employment practice. However, the Court cautioned that "(t)he touchstone is business necessity." Id. at 853. The practice must have a "manifest relation to the employment in question." Dothard v. Rawlinson, 433 U.S.
321, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786
(1977).
9 FALR 443.
Therein, the Commission rejected Respondent's assertions that it was a business necessity to preclude Mr. Owens and his wife from continuing to work after their marriage:
"Respondent's articulated reasons, centered around the "stresses at work" and a concern that both spouses not be exposed to the same stresses of "dealing with mentally retarded clients." The mere fact that both spouses do not work at the same facility certainly does not preclude them from working in the same field. In fact, Respondent's Executive Director testified at hearing to having attempted to secure a position for Petitioner at Pinellas Association for Retarded Citizens, a facility engaged in exactly the same work as Respondent.
Respondent further asserted that its antinepotism policy was necessary based upon potential conflicts at the job site. In support of its assertion Respondent cited two incidents wherein one spouse had reacted negatively to Respondent's counselling of the other spouse. In this case, however, Petitioner and his spouse had been dating while working together for an eight month period with no evidence being presented that their relationship was in fact causing any disruptions in Respondent's business.
Additionally, Respondent expressed the concern of the effect of both Petitioner and his wife requesting leave at the same time. There is nothing in the record indicating either had ever made such a request or that Respondent could not have granted the request.
Respondent has failed to carry its burden of showing that the absence of marriage between the horticultural instructors is a bona fide occupational qualification reasonably necessary for the performance of the particular employment. Section 760.10(8)(a), Fla. Stat. Stated another way, Respondent has failed to carry its burden of showing a compelling and overriding reason to terminate
Petitioner on the basis of his marital status.
9 FALR 444.
As in Owens, Respondent here has failed to meet its burden of proving that enforcing its antinepotism policy against Petitioner and her husband was justified on the basis of business necessity, At the DOAH hearing, Respondent presented the testimony of Thomas Gregory, a member of Respondent's Board of Directors during the relevant time period when the decision was made to enforce the antinepotism policy. Mr. Gregory testified regarding the meetings of the Board of Directors and their concerns about Petitioner and her husband and the enforcement of the policy:
Q. I want you to try to remember when you first learned of this and the board's discussions and concerns. Do you have any specific recollection of any particular concerns the board had about -- in relation to this particular marriage?
A. Well, yes. Certainly, an extremely important --I would say sensitive position with regard to the operation of the club because of the nature of the position that Miss Cook held and with the image insofar as our other employees regarded that position in. And I think certainly because of the morale of the club and problems that had been there, and particularly in light of what we found to be a number of instances of relatives being employed, we felt compelled as a business necessity to address the issue.
T-169-170.
* * *
Q. You testified that during 1985 when the policy was being reevaluated in light of the situation involving Mr. and Mrs. Cook that the feeling among the board members was that because Mrs. Cook was in a sensitive position that the board was worried about an image problem with respect to other employees. If the Cooks remained, both of them remained employed, is that an accurate picture?
A. That is fairly accurate.
Q. What did you as a Board member perceive to be the problem with Mrs. Cook remaining employed there after she married Mr. Cook?
A. My goodness. She was our Managing Director of Personnel. She of all people was one who should have understood the policy and appreciated the reason for it and should have governed herself accordingly, in my opinion.
Q. She was privy to confidential information regarding employees?
A. Yes.
Q. And you were concerned that that may spill over into her marriage in some way? How did you see that as being a problem is what I want to know?
A. Not even the appearance of it in connection with the other employees. It would be a concern.
Q. What did you perceive to be the problem with the appearance of Mrs. Cook being married to another employee as creating a problem with other employees?
A. The very person who represented or to me should represent the implementation of a policy was not where we could make a business decision to allow an exception.
* * *
Q. With regard to your discussions as a board member in the fall of 1985 concerning the nepotism policy, were you discussing it with an eye towards do we want to keep this policy or were you discussing it with an eye toward should we make an exception for Helen and Dick Cook?
A. I feel we were discussing it, because we had made the policy period. And now here we were faced with a major exception. That from a business standpoint -- I know that I didn't feel that we had any choice. It was a feeling that we, as a business necessity, needed to uphold our policy.
Q. So it was a decision that you then made as a board member not to make an exception to this policy for Helen or Dick Cook? You
thought that it would look bad to other employees if you made an exception for them and not an exception for other people?
A. That might have boon one of the possible ramifications, yes.
T-179-182.
Mr. Gregory also testified, as did Mr. Trevor White, Vice President (1985) and President/CEO (1986), regarding problems that Respondent experienced which resulted in the promulgation of its antinepotism policy. Mr. White's predecessor had employed three or four of his children and given them preferential treatment within the company. Additionally, approximately thirty- eight other staff members were related (T-138). After receiving numerous complaints, Respondent's Board of Directors decided to implement an antinepotism policy to alleviate the situation (T-138, 166-168).
At page 11 of his Recommended Order, the Hearing Officer stated: In a disparate treatment case, as here,
proof of discriminatory motive or intent is essential, Griffin v. Carlin, 755 F.2d
1516 (1985); National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988). To make that determination, a careful examination of the Club's stated rationale for implementation of its policy here must be made.
As stated previously, this case is a direct evidence case, not one in which discriminatory motive or intent is essential. To the contrary, where the discriminatory impact of an employment practice has been established, Respondent must then prove that the practice is either a BFOQ for the position or is justified by business necessity. Griggs v. Duke Power Co., supra; Crawford v.
Western Electric, 745 F.2d 1373, 1384 (11th Cir. 1984). Under the correct analysis, discriminatory motive or intent is irrelevant.
In Nash v. Consolidated Cite of Jacksonville, Duval County, Florida, 837 F.2d 1534, 1539, (11th Cir. 1988), the court held that the business necessity doctrine is "very narrow and that "the employer bears the burden of not only articulating but also proving business necessity through the evidence." When determining whether the employer meets its burden regarding business necessity, the court stated that:
The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.
Thus, the business purpose must be sufficiently compelling to override any discriminatory impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business
purpose advanced or accomplish it equally well with lesser discriminatory impact. (Citations omitted)
Here, Respondent articulated that its antinepotism policy was necessary to alleviate problems encountered with the employment of relatives within the company. Also, Respondent felt that no exceptions should be made to the policy for the Cooks, in general, and specifically, due to the sensitive nature of Petitioner's personnel position. Based thereon, the Hearing Officer concluded that:
RO-13.
While Mrs. Cook has established that her departure from employment with the Club was a direct result of a discriminatory Club policy, the Club has, on the other hand, defined a perfectly legitimate, nondiscriminatory reason for implementation of the policy and has overcome Mrs. Cook's
proof of discrimination. The requirement that Mrs. Cook resign was not unlawful discrimination, but instead legitimate and appropriate personnel action under the circumstances of this case.
(Emphasis supplied)
It is apparent from the above that the Hearing Officer erroneously applied the McDonnell Douglas articulation burden to Respondent which resulted in his recommendation that petitioner's complaint of discrimination be dismissed. The Hearing Officer determined that Respondent had overcome Petitioner's proof of discrimination by articulating or defining a "perfectly legitimate, nondiscriminatory reason" for its employment action. Again, this is not the proper test.
Respondent is required to prove, not merely articulate or define, that its adverse employment action was the result of "business necessity." Respondent had the burden to prove that Petitioner's resignation was pursuant to an overriding legitimate business purpose necessary for the safe and efficient operation of the business. Nash, supra.
The Panel finds that Respondent failed to meet its burden under a BFOQ/business necessity analysis: mere articulation is not enough. See Gutierrez v. Municipal Court of Southeast Judicial District, County of Los Angeles, 838 F.2d 1031, 1041-1042, (9th Cir. 1988), where the court hold that business necessity means more than business purpose. The justification must be sufficiently compelling to override the discriminatory impact and the policy must effectively carry out the business purpose it is alleged to serve no less discriminatory alternative available which would accomplish the purpose as well.
Even if Respondent had met its burden of proof regarding its business necessity defense, the evidence presented at the DOAH hearing supports the finding that a less discriminatory alternative was available. Mr. Trever White testified that Petitioner could have been removed from any personnel decisions directly involving her husband without detriment to Respondent:
Q. Did you have any concern that Helen might use her position to benefit Dick in terms of his employment with the Motor Club?
A. No. I did not.
Q. To the extent that Helen's job required her to make input or make decisions that might impact either directly or indirectly on Dick's employment, could she have been taken out of the decision making loop?
A. Oh, I think so. Yes. If there had been something involving Dick directly, very definitely. Either I or Finley Myers, my senior Vice President, would have done that.
T-111-114.
Q. ... when Dick's salary review came up could Helen have been excused and the review committee have functioned without her being there?
A. Yes, and I suspect frankly, under the circumstances -- I don't recall that Dick's salary ever came up during that period anyway during the period of their relationship. If it had, I think we would have, under the circumstances, excused her.
Q. That wouldn't have caused any detriment to the committee?
A. No.
T- 119.
Additionally, the Hearing Officer made the following factual findings:
Mrs. Cook's husband, Richard, was already employed by the Club when she was hired.
They were not married at the time. Mr. Cook was Director of the Club's service center and in her job as director of personnel, she presented potential future employees to him for hire. Mr. Cook was not in her direct line of authority. He worked for the Managing Director of Service, Mr. Schatzman. At the time the problem here came about, Mrs. Cook was the Managing Director of Personnel and on a parallel with her husband's boss.
RO-4.
RO-7.
* * *
This is not to say, however, and it must be recognized, that there was any evidence that at any time Mrs. Cook interfered in her husband's career.
Respondent offered no evidence to rebut except for its concern regarding "making no exceptions" and the "appearance of impropriety" arguments made in support of its business necessity defense. The Hearing Officer accepted these arguments as legally sufficient in his conclusions of law:
There is no question but that Mrs. Cook was required to resign her position with Respondent because of her marriage to Richard Cook, an employee of the Club. This was result of a Club anti-nepotism policy in existence at the time of the marriage. Both Mrs. and Mr. Cook were aware at tie time they made their decision to marry that Club employees would not, by rule, both be permitted to retain their employment upon marriage to each other. It matters not that the policy was promulgated and implemented subsequent to the employment of both Richard and Helen Cook. What is important is that the policy be clearly elucidated, and factually supported.
There is no insinuation or implication that Mrs. Cook or Mr. Cook were engaged in any type of improper, inappropriate, or otherwise unsupportable behavior subsequent to their marriage. In this case it is a clear case of the appearance of the possibility of evil rather than the of evil.
By virtue of Mrs. Cook's position as Managing Director of Personnel, she could have had an impact on her husband's assignments, salary, and ratings, and in fact, every aspect of his employment with the Club. This is not to that she would have exercised this and all who are involved herein are satisfied that she would not have done so. However, if an anti- nepotism policy such as was extant here is to work, it must apply to all employees, not just lower level employees or some employees.
Failure to do so could well have an extremely counterproductive and deleterious effect on employee moral and place the entire structure in doubt. The maintenance of an effective and bias free personnel management system is clearly a legitimate business necessity, Griggs
v. Duke Power Co., 401 U.S. 424 (1971). The
RO-11-12.
potential for abuse here is real and a legitimate basis for the implementation of the policy. (Emphasis supplied)
The mere possibility or potential for harm is not enough. Respondent is required to show that Petitioner's forced resignation pursuant to their antinepotism policy was necessary to avoid the probability of harm. Accord, Arline v. School Board of Nassau County 107 S.Ct. 1123, 94 L.Ed.2 307 (1987), where the Court held fear of contagion was not enough, in and of itself, to deny a teacher with tuberculosis a position with Respondent; School Board of Pinellas County v. Rateau, supra, where the appellate court, in a case involving an employer's individualized assessment of an applicant's ability to safely perform the duties of the position, held that there must be a "substantial risk of further injury" to support the employer's employment decision not to hire the applicant based upon safety considerations; and Horn v. Adolphus, Inc., 9 FALR 1132 (FCHR November 12, 1986), where the Commission held that Respondent's good faith concerns regarding future risk of harm were not supported by the evidence.
The Panel finds that Petitioner has shown that she was forced to resign her position pursuant to a policy which discriminated against her on the basis of marital status; Respondent articulated but did not prove a business necessity defense to such violation of the Human Rights Act; and even if Respondent had met its burden, the evidence showed that Petitioner could have been removed from any personnel decisions regarding her husband which would have prevented the probability of any abuse of her position.
Timeliness Issue
At the DOAH hearing, Respondent presented evidence and argument that Petitioner's complaint was filed with FCHR more than 180 days after the discriminatory act and is therefore untimely. In his Recommended Order, the Hearing Officer made the following conclusion of law:
Under the provisions of Section 760.10, Florida Statutes, petitioner was required to file her complaint with the Commission within
180 days of the alleged violation. Here, the vote to apply the rule to the Cooks was taken at the November 14, 1985 special Board meeting and the decision communicated to Mr. White no later than the next day. Mr. White, who is no longer associated with the Club, testified he advised Mrs. Cook that day, (November 15, 1985), or, at the very latest, the next day, (November 16, 1985), of the decision. The Board was advised at its November 19, 1985 meeting that Mrs. Cook had elected to resign and even if she had been told only that day, which is clearly not the case, the filing of her complaint on May 19, 1986 was late and not timely with the requirement of the statute.
The Panel rejects such argument and conclusion for the reasons set forth below. First, Rule 22T-9.008(5), Florida Administrative Code, provides in pertinent part:
Each respondent shall file an answer with the Commission within 20 days of service of the petition.
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.
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.
(Emphasis supplied)
Respondent failed to claim the untimeliness defense in its answer to the Petition for Relief, or at any time prior to the DOAH hearing. Accordingly, such defense is waived. Boswell v. Aly Investments, Inc. d/b/a Howard Johnson's Motor Lodges, FCHR Order No. 08-028 (October 25, 1988), where the Commission held that failure to file an answer under Rule 22T-9.008(5) renders the unanswered allegations contained in the petition for relief admitted.
Second, the Hearing Officer erred by not determining that the time from which the 180 day statute of limitations should have begun was November 20, 1985, the day after November 19, 1985, when the Board of Directors officially accepted her resignation. Although Monday, May 19, 1986, is 181 days after November 19, 1985, that filing was timely pursuant to Rule 22T-8.007(1), which provides:
In computing any period of time referred to
in the rules of the Commission or contained in any order of the Commission, the day of the act, event, or occurrence from which the designated period begins to run shall not be included. The last day of the period so computed shall be included it is a Saturday, Sunday or legal holiday observed by the State of Florida, in which event the time period shall run until the next day which is neither a Saturday, Sunday, nor legal holiday observed by the State of Florida. All time periods are measured by calendar days except where working days are expressly indicated.
(Emphasis supplied).
See Banks v. Chesapeake and Potomac Telephone Company, 41 EPD 36, 634 (D.C. D.C. 1986), where the court held that where the last day for filing a timely civil rights claim fell on a Sunday, the limitation period is extended an additional day.
Findings of Fact
Having considered the Hearing Officer's finding of fact, and being particularly mindful of the record in this cause, the Panel finds that the Hearing Officer's findings of fact are supported by some competent, substantial evidence and will not be disturbed. The Hearing Officer's, findings of fact are hereby adopted.
Conclusions of Law
The Hearing Officer's conclusions of law are rejected as erroneous. The Panel makes the following additional conclusions of law:
St. Petersburg Motor Club is an employer within the meaning of section 760.02(6), Florida Statutes.
Helen Cook is a person within the meaning of section 760.02(5), Florida Statutes.
By discharging Helen Cook because of her marital status, St. Petersburg Motor Club violated section 760.10(1)(a), Florida Statutes.
Helen Cook is a person aggrieved by a violation of section 760.10(1)(a), Florida Statutes, within the meaning of section 760.10(10), Florida Statutes.
Helen Cook is entitled to full affirmative relief, including reasonable attorney's fees, as provided by section 760.10(13), Florida Statutes.
It is therefore ORDERED:
That Respondent cease and desist from again engaging in unlawful employment practices of this nature;
That Respondent offer to reinstate Petitioner to her former or substantially equivalent position;
That Respondent pay Petitioner the wages she would have earned between February 1, 1986 and the date of this Order, offset by any amount Petitioner may have earned from interim employment;
That Respondent pay Petitioner reasonable attorney's fees; and
That Respondent notify the Commission in writing within 20 calendar days of the date this Order is filed of the steps that have been taken to comply with this Order.
The Commission reserves jurisdiction over the amount of back wages and attorney's fees. If the parties have reached a proposed settlement regarding the amount of back wages and attorney's fees to be awarded within 30 calendar days from the date of filing of this Order, the parties shall prepare and submit a Joint Stipulation of Settlement for Amount of Back Wages and Attorney's Fees for consideration by the Commission. If the parties are unable to reach an agreement regarding the amount to be awarded within 30 calendar days from the date of this Order, the parties shall file a Notice of Failure of Settlement for Amount of Back Wages and Attorney's Fees with the Clerk of the Commission.
It is so ORDERED:
DATED this 16th day of May, 1989.
FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Commissioner Robert L. Billingslea, Panel Chairperson;
Commissioner Robert R. Joyce; and Commissioner Learna G. Ramsey
FILED this 22nd day of May, 1989, in Tallahassee, Florida.
Margaret Agerton
Clerk of the Commission
ENDNOTES
1/ Unless otherwise indicated, all statutory references are to Florida Statutes to (1987), and all references are to Florida Administrative Code.
2/ However, the Panel finds that such potential, coupled with the finding of fact made by the Hearing Officer that Petitioner did not interfere with her husband's career (Recommended Order at page 7, hereinafter referred to as RO -
) and the Hearing Officer's conclusion that all who testified were satisfied she would not have done so (RO-12), makes such finding irrelevant. The possibility of an event does not equate to the probability or likelihood that the event will actually occur. Additionally, the conclusion made by the Hearing Officer regarding this issue indicates the possibility was small or nonexistent.
3/ However, the Panel finds that the "appearance of impropriety" is not sufficient to establish Respondent's burden of proof regarding its business necessity defense.
COPIES FURNISHED:
Robert F. McKee, Attorney for Petitioner Michael K. Houtz, Attorney for Respondent
Danica Parker, Legal Advisor for Commission Panel Arnold H. Pollock, DOAH Hearing Officer
================================================================= DISTRICT COURT OPINION
=================================================================
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
ST. PETERSBURG MOTOR CLUB, CASE NO. 89-1688
DOAH CASE NO. 88-2095
Appellant,
vs.
HELEN T. COOK,
Appellee.
/ Opinion filed September 14, 1990.
Appeal from the Florida Commission on Human Relations.
Michael K. Houtz of Harris, Barrett, Mann & Dew, St. Petersburg, for Appellant. Robert F. McKee of Kelly & McKee, P.A., Tampa, for Appellee.
SCHOONOVER, Chief Judge.
The appellant, St. Petersburg Motor Club, challenges a final order of the Florida Commission on Human Relations. We reverse.
This dispute arose out of the appellee's, Helen T. Cook, employment with the appellant. In 1984, the appellant instituted an antinepotism policy which, among other things, provided that if two employees of the club married, one of them would be terminated within six months of the marriage. The choice of which employee was to leave the club was left up to the parties involved. On July 4, 1985, the appellee, managing director of personnel, married Richard Cook, another one of the appellant's employees. Upon learning that the appellee was getting married to another employe, Trevor White, one of the appellant's officers, requested the board of directors to amend or revise the policy so that both the appellee and her husband could keep their positions with the appellant.
On November 14, 1985, the appellant's board of directors met and decided that the policy would be enforced and that either Mr. Cook or the appellee would have to terminate their employment. This decision was related to the appellee no later than November 16, 1985. The appellee informed Mr. White that she would be the one to resign, and her resignation was accepted by the board of directors
on November 19, 1985. On November 20, 1985, she was informed that her resignation had been accepted.
On May 19, 1986, the appellee filed a discrimination complaint with the Florida Commission on Human Relations. Her complaint alleged that she was discriminated against on November 20, 1985, when the board of directors voted to enforce the company's antinepotism rule which required her to terminate her employment because of her marriage to another company employee.
At the conclusion of a hearing in this matter, the hearing officer found, contrary to the allegations in the complaint, that the board of directors voted to enforce the policy on November 14, 1985, and that the appellee was so notified no later than November 16, 1985. The hearing officer concluded that the complaint was untimely and that the policy was implemented for a nondiscriminatory reason. He, accordingly, recommended dismissal of the discrimination charge.
The commission accepted the hearing officer's findings of fact but disagreed with his conclusions of law. The commission held that the appellant had not raised the untimeliness of the complaint and, therefore, had waived that defense. The commission also concluded that the complaint was timely because the hearing officer erred in concluding that the period for filing the complaint commenced on November 16, 1985, rather than on the date the appellee's resignation was officially accepted, i.e., November 19, 1985. A final order finding that the appellant had violated section 760.10(1)(a), Florida Statutes (1985), and ordering the appellant to reinstate the appellee was filed on May 22, 1988. The order also required the appellant to pay back wages and attorney's fees to the appellee. This timely appeal followed.
Since we find that the appellee's claim was untimely filed, it is not necessary to determine if the commission properly found that the appellant committed a discriminatory act or properly awarded back wages and attorney's fees to the appellee. We note, however, that at the administrative hearing the parties stipulated that the hearing would be limited to the question of liability and that any other questions concerning the final disposition of the matter would be considered later if necessary.
Mrs. Cook's complaint was filed pursuant to Florida's' Human Rights Act of 1977. Section 760.01(1), Fla. Stat. (1985). The complaint alleged that the appellant had committed an unlawful employment practice by discriminating against her because of her marital status. Section 760.10(1)(a). Her complaint alleged that the act of discrimination occurred on November 20, 1985, when the appellant's board of directors voted to enforce the appellant's policy providing that if two employees married, one of them would be terminated and informed the appellee and her husband that one of them would have to terminate their employment.
Section 760.10(10), Florida Statutes (1985), requires a complaint to be filed within 180 days of the alleged violation. If the alleged violation occurred on or before November 16, 1985, as found by the hearing officer, the complaint was untimely and the commission erred by entering its order. If, on the other hand, the appellant waived the defense of the statute of limitations, or if the discrimination occurred on the date the appellee resigned, the commission was correct in finding that the complaint was timely filed. We find that the appellant did not waive its defense and the act complained of, pled, and tried by the appellee was committed on or before November 16, 1985 . The commission, accordingly, erred in ruling in favor of the appellee.
The commission's order states that the appellant failed to claim the untimeliness defense in its answer to the petition for relief, or at any time prior to the hearing, and it was, therefore, waived. The appellant contends, and the appellee candidly agrees, the defense was raised in a properly amended answer.
The evidence supports, and the commission accepted, the hearing officer's finding that the act complained of by the appellee, the decision to enforce the policy and so notifying the appellee, was completed on or before November 16, 1985, not on the date alleged in the appellee's complaint. The period for filing a complaint, therefore, commenced at the time the decision was made and communicated to the appellee regardless of the fact that the effect of such decision, the loss of employment, did not occur until later. We must focus upon the time of the discriminatory act, not upon the time at which the consequences of the act became most painful, and accordingly, the limitations period commenced to run no later than the date on which the board of directors clearly established its official position as it related to the appellee and notified her. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed. 2d
431 (1980).
We also reject the appellee's contention that the discriminatory act did not take place until she and her husband decided which one was going to resign and submitted their resignation. As mentioned above, it is not the date that the consequences of the act are felt, but the date of that act that controls. The evidence is overwhelming that it was always known that the appellee, not her husband, would be the one to leave if the policy was enforced. Furthermore, we must decide the issue presented to us on the basis of the appellee's complaint. Her complaint did not allege that the discriminatory act was making her decide which of the two was to resign. Her complaint did not allege that the discriminatory act was the manner in which she was terminated after the decision was made to enforce the appellant's policy. Based upon her complaint, the discriminatory act was completed on or before November 16, 1985, and her complaint was, therefore, untimely. Ricks. We, accordingly, reverse and remand with instructions to enter an order dismissing the complaint.
Reversed.
RYDER and LEHAN, JJ., Concur
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
STYLE: St. Petersburg Motor Club v. Helen T. Cook COUNTY: Pinellas
APPELLATE CASE NO: 89-1688
TRIAL COURT CASE NO.: FCHR 86-2839, DOAH 88-2095, FCHR 89-009
This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida.
WITNESS, the Honorable Jack R. Schoonover, Chief Judge of the District Court of Appeal of the State of Florida, Second District, and the seal of said Court at Lakeland, Florida on this day.
October 2, 1990
William A Haddad
Clerk, District Court of Appeal of Florida, Second District
| Issue Date | Proceedings |
|---|---|
| Sep. 30, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 14, 1990 | Opinion | |
| May 16, 1989 | Agency Final Order | |
| Sep. 30, 1988 | Recommended Order | Employee who resigned post with employer whose policy prohibited nepotism was not discriminated against unlawfully |
