STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARIMANDIR KHALSA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2499

) PUTNAM COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Palatka, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on July 22, 1992. The Division of Administrative Hearings received the hearing transcript on February 1, 1993. The attached appendix addresses previously filed and numbered proposed findings of facts by number.

APPEARANCES

Matthew P. Farmer, Esquire Farmer & Fitzgerald, P.A.

For Petitioner: 2910 Bay to Bay Boulevard Suite 214

Tampa, Florida 33629

Ronald E. Clark, Esquire For Respondent: Post Office Box 2138

Palatka, Florida 32178-2138 STATEMENT OF THE ISSUE

Whether Putnam County terminated petitioner's employment on account of her religion, and/or failed to make reasonable accommodation for petitioner's religious observance or practice?

PRELIMINARY STATEMENT

In response to petitioner's complaint that Putnam County discriminated against her on account of her religion, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE" issued October 11, 1991. Petitioner's request for redetermination culminated in a "NOTICE OF REDETERMINATION: NO CAUSE" issued February 14, 1992.

Petitioner has filed a form petition for relief from an unlawful employment practice, pursuant to Rule 60Y-9.008, Florida Administrative Code, see Publix Supermarkets, Inc. vs. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings on April 24, 1992, for a de novo determination, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991).

FINDINGS OF FACT

1. One of some 10,000 American-born Sikhs, Harimandir Kaur Khalsa originally became involved with Sikhism, said to be one of the eight major religions of the world, in 1979. Several years ago she took vows to cover her hair, not to cut her hair, and to adhere to a daily spiritual practice called sadhana. An Armidary Sikh, she was ordained a Sikh minister Christmas Day 1991. The parties stipulated to the sincerity of petitioner's religious beliefs.

   
   

2. In part, her religious beliefs find expression in her attire. Orthodox Sikhs wear turbans and churidars, a type of legging; and their clothing is white. This mode of dress has symbolic religious significance for Sikhs generally. Turbans are "mandatory." T.93. Dressed as an orthodox Sikh, petitioner Khalsa appeared for a job interview with Putnam County's sanitation director, Joseph Battillo, on or about August 23, 1990.

   
   

3. The interview had been arranged after Mrs. Khalsa responded to a newspaper advertisement seeking a "Recycling Director for Putnam County." T.119. Even before she saw the advertisement, she had read about the job and telephoned to inquire. In the interview, Mrs. Khalsa did not tell Mr. Battillo that all the clothes she owned were white, but she did tell him that the way she was dressed was "always the way I dress." T.41. One of Ms. Khalsa's references told the young lady in the Putnam County personnel department who called to inquire about her that "Harimandir always dresses in white . . . because of her religion." T.22.

   
   

4. Mr. Battillo understood that Mr. Khalsa wore a turban for religious reasons, although he originally testified that he did not understand (T.122) that the remainder of her outfit was also religiously compelled. (T.111) He eventually conceded that she indicated she wore mostly white "in the context of the conversation that she was a Sikh." T.132. Asked whether it was his "reasonable understanding that the reason she wore white is because she was a Sikh," he answered, "I guess you could assume that." Id.

   
   

5. The day after the interview she was surprised to be told over the telephone that the job was hers. (Of six interviewees, she was Mr. Battillo's second choice for the position.) Her experience with graphic arts was an important qualification. Mr. Battillo felt there was some urgency in filling the position: certain deadlines had to be met if grant moneys available to Putnam County were not to be forfeited.

   
   

6. Petitioner started working for respondent on August 30, 1990, at an annual salary of $14,400. On her first day on the job, Mr. Battillo summoned her to his office, asked her to shut the door, and told her she would "have to make a few changes" (T.45) in her appearance because "people would have a problem with the way," id., she looked. She told him she did not believe it would be a problem. In her job interview, she had suggested she "would have instant recognition and people would be reminded when they saw [her] to recycle." T.41.

   
   

7. When she was hired, Mrs. Khalsa bought an off-white suit, which she wore the second day on the job. The following day, Mr. Battillo thanked her for not wearing all white, again after summoning her to his office and ordering the door closed. He told her she "look[ed] fine from the knees up . . . [but] that the leggins had to go." T.48. He said that she needed to wear colors and that

   "if you don't change the way you dress, you're not going to be allowed to do your job." T.49. She told him she planned to get new shoes. After leaving his office, she cried.

   
   

8. Mrs. Khalsa worked closely with Diane Shoeman, a high school teacher who served as an educational consultant, for about ten hours, developing curriculum on recycling for the Putnam County schools. They enjoyed a good working relationship, which Mrs. Shoeman told Mr. Battillo at the time.

   
   

9. On September 18, 1990, when she was in his office on business, Mr. Battillo told her she could not continue dressing as she had been, that it was the same "as if an employee didn't wear a bra to work and he had to tell her to wear a bra." T.52. He told her that, when he had worked in Sarasota, the Mennonite women dressed plainly "but that they wore pastel colors. And couldn't [petitioner] dress that way?" T.53. Mr. Battillo was adamant, and petitioner left his office in tears. He granted her request for a half day off to shop for clothes.

   
   

10. The day after she acquired a new pair of shoes, white hose and a blue dress, Mrs. Khalsa wore them to work. When Mr. Battillo asked her if she was comfortable dressed like that, she said she "could live with it" (T.69) even though she felt she was compromising her practice as a Sikh. From then on, she wore white hose rather than churidars as long as she worked for Putnam County, afraid she would lose her job otherwise. The blue dress she wore every few days, even though her mother-in-law was shocked when she first saw it.

    
    

11. Mrs. Khalsa met her September 30, 1990, deadline for purchasing certain audiovisual equipment, and for completing numerous other assignments. She drew on her experience as a graphic artist in designing or doing the layout for bookcovers for school children, an educational activities book on recycling, sun visors, bookmarks, decals, magnets, information posters and brochures for which she both wrote the text and "d[id] the art work." T.64.

    
    

12. On October 2, 1990, the Monday after meeting the deadline (so avoiding forfeiture of the grant), she was fired by Mr. Battillo, who explained, "I don't like you and I don't like your turban." T.71 Mrs. Khalsa's manner of dress was an important motivating factor for her discharge. During calendar year 1991, Petitioner and her husband together earned approximately $6,000.

    
    

13. When he terminated her employment, Mr. Battillo also mentioned friction with the printers with whom Mrs. Khalsa had been dealing. They supposedly resented her asking for proofs, apparently a departure from past practice under County contracts; and were perhaps embarrassed when she pointed out that they had billed for work never done. T.94

    
    

14. When she began work, she was told she "had six months to learn procedures." T.100. Mrs. Khalsa conscientiously sought to comply with County purchasing policies, despite some confusion about just what the policies were in certain particulars. The only "changes" she insisted on without processing change orders were to assure that the county received what the printer had originally agreed to supply, or the equivalent. T.105, 108-9.

    
    

15. At hearing, Mr. Battillo testified to complaints about music Mrs. Khalsa listened to at work, but other employees listened to radios at work, and the only other employee in the building where Mrs. Khalsa worked told her at the time that he could not hear music from her office. Mr. Battillo once entered her office to find incense burning, which she extinguished at his request, never

    to rekindle on the premises. Once, she and her building mate disagreed on the thermostat's setting, she closed her door, shut the cooling vents and opened her windows, until told not to, when she promptly complied.

    
    

    CONCLUSIONS OF LAW

    
    

16. Florida law forbids any employer, defined as any "person employing 15 or more employees for each working day in each 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1991) to discriminate on the basis of religion in discharging employees. Although a subdivision of the state, Putnam County is an "employer," within the meaning of Section 760.02 (5) and (6), Florida Statutes (1991). Department of Corrections

    v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991).

    
    

17. The First Amendment "gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." Otten v. Baltimore Ohio R. Co., 205 F.2d 58, 61 (2nd Cir. 1953). Compare Estate of Thornton v. Calder, 472 U.S. 703, 86 L.Ed.2d 557, 105 S.Ct. 2914 (1985) with Hobbie v. Unemployment Appeals Com'n, 480 U.S. 94 L.Ed.2d 190, 108 S.Ct. (1987).

    
    

18. But, under federal statutory law, it is "an unlawful employment practice for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees . . . ." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 53 L.Ed.2d 113, 125, 97 S.Ct. 2264 (1977). There are, moreover, constitutional restrictions on governmental employers' interference with their employees' free exercise of religion.

    
    

    Prima Facie Case

    
    

19. The United States Supreme Court, in Ansonia Board of Education vs. Philbrook, 479 U.S. 60, 67, 93 L.Ed.2d 305, 314, 107 S.Ct. 367, 371 (1986), pretermitted the question of what constitutes a prima facie case of religious discrimination. Under decisions of lower federal courts, an employee seeking redress for discharge based on religious discrimination has the burden to establish a prima facie case by proving that:

    
    

    1. She had a bona fide religious belief;

    2. She informed her employer of her religious views and that they were in conflict with her responsibilities as an employee; and

    3. she was discharged because of her observance of that belief.

       
       

       Proctor v. Consol. Freightways Corp. of Delaware, 795 F.2d 1472, 1475 (9th Cir. 1986). To the same effect, see Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978) cert. den. 442 U.S. 921, 61 L.Ed.2d

       290, 99 S.Ct. 2848 (1979) and the decision in Turpen v. Missouri-Kansas-Texas

       R.Co., 736 F.2d 1022, 1026 (5th Cir. 1984).

       
       

20. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1987), federal cases decided under Title VII have been looked to in order to flesh out Florida's Human Rights Act. Florida Department of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991); Department of Corrections v. Chandler, supra; O'Loughlin v. Pinchback, 579 So.2d

    788 (Fla. 1st DCA 1991); Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986). The Florida Civil Rights Act of 1992 does not apply to conduct occurring prior to October 1, 1992. Ch. 92-177 Sec. 13, Laws of Florida (1992).

    
    

    Reasonable Accommodation

    
    

21. Petitioner met her initial burden to establish a prima facie case here. Respondent's evidence of other peccadilloes, real or imagined, notwithstanding, she showed that observance of her religious beliefs cost her her job. See Price Waterhouse v. Hopkins, 490 US 228 (1989). The "burden was thereafter upon . . . [respondent] to prove . . . [it] made good faith efforts to accommodate . . . [petitioner's] religious beliefs and, if those efforts were unsuccessful, to demonstrate that they were unable reasonably to accommodate h[er] beliefs without undue hardship," Anderson vs. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978) cert. den. 442

    U.S. 921, 61 L.Ed.2d 290, 99 S.Ct. 2848 (1979), although "(i)f an employer can show that no accommodation was possible without undue hardship, it makes no sense to require that he engage in a futile act." E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988).

    
    

22. "The term `reasonable accommodation' is a relative term and cannot be given a hard and fast meaning." Redmond v. GAF Corp., 524 F.2d 897, 902 (7th Cir. 1978). But courts have, in other cases, sanctioned redress for discharge of employees whose recurring weekly religious obligations have conflicted with work requirements rendering them unable to perform their work duties during prescribed hours altogether. Brown v. General Motors Corp., 601 F.2d 956 (8th Cir. 1979); Kentucky Com'n on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350 (Ky. 1982) cert. den. 77 L.Ed.2d 1369, 103 S.Ct. 3115 (1983); North Shore University Hospital v State Human Rights Appeal Board, 82 A.D.2d 799, 439 N.Y.S.2d 408 (S.Ct. 1981). Contra Trans World Airlines, Inc. v. Hardison, 432

    U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977); United States v. City of Albuquerque, 545 F.2d 110 (10th Cir. 1976); Murphy v. Edge Memorial Hospital,

    550 F.Supp. 1185 (N.D. Ala. 1982); New Hanover Human Relations Com'n v. Pilot Freight Carriers, Inc., 351 S.E.2d 560 (Ct. Appt. N.C. 1987). Similarly, the courts have also split where accommodation with recurring holy days was at issue. Compare Brener v. Diagnostic Center Hospital, 671 F.2d 141 (5th Cir. 1982) with Edwards v. School Board of City of Norton, Va., 483 F.Supp. 620 (W.D.Va.). In the present case, petitioner asked for no time off, only that she be permitted to dress in accordance with the dictates of her religion.

    
    

23. Mrs. Khalsa was not hired as an airline stewardess or commissioned as a military officer. Saying "that the military is, by necessity, a specialized society separate from civilian society[,]' Parker v. Levy, 417 US 733, 743. .

    .," Goldman v. Weinberger, 475 U.S. 503, 506-7, 89 L.Ed.2d 478, 106 S. Ct. 1310, (1986), Chief Justice Rehnquist delivered the opinion of the Court which upheld the Air Force's right to forbid an Orthodox Jew's wearing a yarmulke while on duty. The special needs of the military notwithstanding, one of the four dissenting justices rejoined:

    
    

    If the Free Exercise Clause of the First Amendment means anything, it must mean that an individual's desire to follow his or her faith is not simply another personal preference, to be accommodated by government when convenience allows. Indeed, this Court has read the Clause, I believe correctly, to

    require that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Wisconsin v Yoder, 406 US 205, 215, 32 L Ed 2d 15, 92 Ct 1526

    (1972). In general, government "may justify an inroad on religious liberty [only] by showing that it is the least restrictive means of achieving some compelling state interest." Thomas v. Review Board of Indiana Employment Security Div., 450 US 707, 718, 67 L Ed 2d

    624, 101 S Ct 1425 (1981); see also Sherbert

    v. Verner, 374 US 398, 10 L Ed 2d 965, 83 S

    Ct 1790 (1963). The clear import of Sherbert, Yoder, and Thomas is that this showing must be made even when the inroad results from the "evenhanded" application of a facially neutral requirement. "Rules are rules" is not by itself a sufficient justification for infringing religious liberty.

    
    

    475 US at 525 (Blackmun, J.) Employees of the Putnam County sanitation department do not, of course, comprise "a specialized society separate from civilian society," nor were they at the time of the hearing subjected to the "outfitting of personnel in standardized uniforms . . . [to] encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank." 475 U.S. at 508.

    
    

24. Even convicts are protected from imposition of prison authorities' views on personal appearance, where religious expression is involved, unless restrictions are "reasonably related to legitimate penological interests," Turner v. Safley, 107 S. US 2254, 2261 (1987), and evenhandedly applied. See Reed v. Faulkner, 842 F. 2d 960 (7th Cir. 1988) (Rastafarian prisoner entitled to try to prove hair length regulation interfered with free exercise of his religion.)

    
    

25. It has been said that the "accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 87, 53 L.Ed.2d 113, 133, 97 S.Ct. 2264 (Marshall, J., dissenting). But here it is difficult to decipher a neutral rule Putnam County sought to apply generally. Perhaps Mr. Battillo's testimony that "the nature of the job as Recycling Coordinator would put her in front of groups of all ages and sizes and . . . an image had to be projected that would promote this new recycling program" (T.122) came as close as anything. The record does not support any inference, however, that Mrs. Khalsa's "image" in any way interfered with promotion of the County's recycling program.

    
    

26. Even when the employer is not an arm of government, and, therefore, free from the constraints the First Amendment imposes on government, the "burden of attempting an accommodation rests with the employer rather than the employee." E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988). In the present case, Mr. Battillo asked Mrs. Khalsa to acquire a new wardrobe at her expense, and in effect, to put aside her religious beliefs. He suggested no accommodation on Putnam County's part. With respect to the conflict between Mrs. Khalsa's religious practice and her putative duty as an employee to dress in accordance with Mr. Battillo's wishes, respondent failed to

    do "anything to accommodate her religious beliefs." Anderson vs. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978).

    
    

27. Putnam County proved no compelling state interest in requiring that Mrs. Khalsa dress other than as a Sikh, nor that this requirement was the least restrictive means to any permissible end. Even if Putnam County were not a governmental employer and even if Putnam County had sought to apply a neutral rule of general applicablity, its failure to attempt an accommodation constitutes a violation of the Human Rights Act of 1977, unless no accommodation was possible, without undue hardship. "'[U]ndue Hardship' must mean present undue hardship, as distinguished from anticipated or multiplied hardship." Haring vs. Blumenthal, 471 F.Supp. 1172, 1182 (D.D.C. 1979). "[U]ntil facts or circumstances arise from which it may be concluded that there can no longer be an accommodation without undue hardship, the employee's religious practices are required to be tolerated." Haring vs. Blumenthal, 471 F.Supp. 1172, 1182 (D.D.C. 1979).

RECOMMENDATION

It is, therefore, RECOMMENDED:

That the Florida Commission on Human Relations order Putnam County to reinstate petitioner and pay her back wages, along with reasonable attorney's fees and costs.

DONE and ENTERED this 11th day of February, 1993, at Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1993.

APPENDIX

Petitioner's proposed findings of facts Nos. 1-11, 13, 15, 33 and 34 have been adopted, in substance, insofar as material.

Petitioner's proposed findings of fact Nos. 12, 14 and 35 pertain to subordinate matters.

Respondent's proposed findings of fact were not numbered.

COPIES FURNISHED:

Matthew P. Farmer, Esquire Farmer & Fitzgerald, P.A. 2910 Bay to Bay Boulevard Suite 214

Tampa, FL 33629

Ronald E. Clark, Esquire

P.O. Box 2138

Palatka, FL 32178-2138

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F. Suite 240

Tallahassee, FL 32303-4149

Dana Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Tallahassee, FL 32303-4149

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 consult with 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

HARIMANDIR KHALSA,

Petitioner, EEOC Case No. 15D900757 FCHR Case No. 90-2617

v. DOAH Case No. 92-2499

FCHR Order No. 94-007

PUTNAM COUNTY, FLORIDA, (ASSIGNED DOAH

Fees Case 94-0898F)

Respondent.

/

ORDER FINDING THAT AN UNLAWFUL EMPLOYMENT PRACTICE OCCURRED; REMANDING THE MATTER TO THE HEARING OFFICER FOR

DETERMINATION OF MONETARY DAMAGES, ATTORNEY'S FEES AND COSTS

Preliminary Matters

Petitioner Harimandir Khalsa filed a complaint of discrimination with the Commission pursuant to the Florida Human Rights Act of 1977, Sections 760.01- 760.10, Fla. Stat. (1991). Petitioner alleged that Respondent Putnam County, Florida, discriminated against her by terminating her on the basis of her religion and by failing to make reasonable accommodation for her religious observance or practice. The allegations of discrimination set forth in the complaint were investigated. On October 11, 1991, the Executive Director issued a Determination: No Cause.

Petitioner filed a request for redetermination. The request was denied. Thereafter, Petitioner filed a petition for relief from an unlawful employment practice and the case was transmitted to the Division of Administrative Hearings (DOAH) for a formal proceeding. Fla. Admin. Code Rule 60Y-4.016(1). On February 11, 1993, DOAH Hearing Officer Robert T. Benton, II, entered a Recommended Order.

Public deliberations were held on November 16, 1993, in Tallahassee, Florida, before this panel of Commissioners.

Respondent excepted to the hearing officer's failure to make specific findings with respect to Petitioner's ability to perform her job, namely, failure to: 1) maintain working relationships with vendors; 2) maintain a working relationship with fellow employees; 3) comply with County procedures; and 4) promote a positive image.

Upon consideration, Respondent's exceptions are denied. The hearing officer considered the entire record but found more weight and credibility in Petitioner's testimony and evidence. The hearing officer made detailed findings of fact regarding the ultimate finding of whether or not Respondent discharged Petitioner based upon her religious belief, practice or observance in violation of section 760.10, Florida Statutes (1991). See, e.g., FOF #'s 8, 11-15, which specifically address Petitioner's performance. Respondent noted that the Hearing Officer should have analyzed the case under the Burdine/Chandler framework. The hearing officer viewed this case as a mixed- motive case and properly applied the Price Waterhouse legal framework.

Petitioner filed a motion for front pay and one exception to the Recommended Order regarding the year of termination. Petitioner's exception (termination year - 1989) is supported by competent substantial evidence and is accordingly adopted by the panel. The panel denies Petitioner's motion for front pay and adopts the hearing officer's recommendation of reinstatement, finding competent substantial evidence to support the recommendation.

FINDINGS OF FACT

We have considered the hearing officer's findings of fact. There is competent substantial evidence to support each factual finding made by the hearing officer except for the year in which Petitioner was terminated. The evidence demonstrates that Petitioner was terminated in 1989 rather than 1990.

Except for the finding regarding the year in which Petitioner was terminated, that portion of the findings which establishes liability for unlawful discrimination is supported by competent substantial evidence. We adopt the liability portion of the hearing officer's findings of fact.

CONCLUSIONS OF LAW

That portion of the conclusions holding that unlawful discrimination was proven is correct. We adopt the liability portion of the hearing officer's conclusions of law.

We further conclude, however, that this matter must be REMANDED to the hearing officer for the calculation of affirmative relief, with all the associated questions, either legally or factually. In respect to amounts of backpay, length of backpay, deductions from backpay, fringe benefits and salary increases attendant to backpay, costs, and amounts for attorney's fees, this case is remanded to DOAH.

Ms. Khalsa has certainly not waived her rights or otherwise defaulted by failing to submit evidence on these amounts at the initial DOAH hearing. In that there are certain presumptions associated with backpay, it is likewise proper to give Respondent its opportunity to present evidence for reducing the amount of backpay or for increasing the amounts for deduction from backpay.

That portion of the Recommended Order explicitly awarding backpay and other affirmative relief, but in nonspecific amounts, does not comply with essential requirements of law. The fundamental legal requirements are for the DOAH hearing officer to submit precise amounts for the relief, explaining along the way the reasons for the amounts. Pursuant to Section 120.57(1)(b)9., Florida Statutes, rejection and remand is authorized, where remand is only for calculation of relief and associated issues.

In Sennello v. Reserve Life Insurance Company, 667 F. Supp. 1498 (S.D. Fla. 1987), the court explains that it is the trial court's duty, after a finding of discrimination, to place the injured party in the position in which she would have been absent the discriminatory action. The DOAH hearing officer functions as the trial court and thus the duty to calculate amounts for relief is with the DOAH hearing officer.

In Department of Corrections v. Chandler, No. 87-2124 (Fla. 1st DCA March 28, 1988), the court ruled that a Commission order without a calculated amount for backpay is a nonfinal agency order, which is not [normally] subject to judicial review. The right to judicial review is conferred upon each party by Section 120.68, Florida Statutes. Consequently, the DOAH hearing officer is obligated to submit a Recommended Order with qualities which will enable the Commission to issue a final agency order. Otherwise, noncompliance with the essential requirements of law occurs (at the DOAH stage of the process).

Admittedly, reopening and remanding a DOAH case are prohibited in the general course of things. An exception is made, however, where unusual circumstances are present. In Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981), the court points out that a remand may be done in a case where the DOAH hearing officer recommends an additional proceeding and the recommendation is based upon evidence submitted during the initial section 120.57(1) proceeding. The court referred to Public Bank of St. Cloud v. State, 351 So.2d 73 (Fla. 1st DCA 1977), where remand was approved,

i.e., the DOAH hearing officer had recommended an additional proceeding for the purpose of allowing the applicant to amend its application for a bank charter. In addition, it has been customary in employment discrimination cases to bifurcate the trial, the first for liability and when necessary, the second for damages. See Collier v. City of Freeport, 48 FEP Cases 441 (N.D. Illinois 1988); Smallwood v. United Airlines, Inc., 728 F.2d 614 (4th Cir. 1984); Baker

v. City of Detroit, 24 FEP Cases 1569 (E.D. Michigan 1978); Poole v. Williams, 7 FEP Cases 102 (S.D. Texas 1974) and Newmon v. Delta Airlines, Inc., 7 FEP Cases

26 (N.E. Georgia 1973).

REMAND

An additional formal proceeding in accordance with the requirements of section 120.57(1), Florida Statues (1993), is appropriate with respect to determinations of monetary amounts for back pay, fringe benefits, costs, attorney's fees and associated issues. Accordingly, the panel remands this matter to the hearing officer for the conduction of such formal proceeding.

It is SO ORDERED:

Dated this 10th day of February, 1994.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Geraldine Thompson, Panel Chairperson; and Commissioner Gerald Richman.

Commissioner Whitfield Jenkins, concurring in part and dissenting in part.

I concur with the majority holding in this case with respect to each finding of fact and conclusion of law except for the issue of reinstatement. I respectfully dissent from the majority regarding reinstatement being the most appropriate relief. In my opinion, reasonable front pay is the more appropriate relief and should be awarded based upon the facts in this case.

FILED this 15th day of February, 1994, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

Copies Furnished:

Robert T. Benton, II, DOAH Hearing Officer

Rhonda Bass and Dana Baird, Legal Advisors for Commission Panel Matthew Farmer, Esquire

Farmer & Fitzgerald, P.A. 2910 Bay to Bay Boulevard Suite 214

Tampa, Florida 33629

Mark Levitt, Esquire

Hogg, Allen, Norton & Blue

324 S. Hyde Park Ave. Suite 350

Tampa, Florida 33606

Docket for Case No: 92-002499

Orders for Case No: 92-002499