STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL LANDRY, )

)

Petitioner, )

)

vs. ) Case No. 98-4683

)

CHARLOTTE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Port Charlotte, Florida, on December 16, 2002.

APPEARANCES

For Petitioner: Amy L. Sergent

Lancaster & Eure, P.A.

711 North Washington Boulevard Sarasota, Florida 34236

For Respondent: Brendan Bradley

Deputy County Attorney Thomas Rapp

Assistant County Attorney Charlotte County

Charlotte County Administrative Center 18500 Murdock Circle

Port Charlotte, Florida 33948-1094 STATEMENT OF THE ISSUE

The issue is a previously proved act of employment discrimination, pursuant to Section 760.11(5), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a charge of discrimination against Respondent with the Florida Commission on Human Relations (Commission) on November 21, 1995. On September 8, 1998, when the Commission had still not concluded its investigation, Petitioner requested permission to proceed with an administrative hearing on the charge. By letter dated

October 15, 1998, the Commission referred the dispute to the Division of Administrative Hearings to conduct a hearing.

On motion of Respondent, the Administrative Law Judge issued a Recommended Order of Dismissal on September 10, 1999, based on the untimeliness of Petitioner's request for an administrative hearing. On April 23, 2000, the Commission reversed the Administrative Law Judge's decision and remanded the case to the Division of Administrative Hearings to conduct a hearing.

On November 20, 2000, the Administrative Law Judge conducted an evidentiary hearing and issued a Recommended Order on March 13, 2001, finding that Respondent had discriminated against Petitioner based on age.

By Order Finding Unlawful Employment Practice Occurred and Reserving Jurisdiction as to the Appropriate Affirmative Relief entered November 28, 2001, the Commission found that an unlawful employment practice had occurred based on Petitioner's age and

reserved jurisdiction to determine the remedy, including back pay, interest, attorney's fees, and costs. The order directed that the case be remanded to the Division of Administrative Hearings to conduct a hearing to determine the remedy, if the parties were unable to settle upon a mutually agreeable remedy.

On April 4, 2002, Petitioner notified the Commission that the parties had been unable to reach a settlement and asked that the Commission remand the case to the Division of Administrative Hearings. On July 5, 2002, the Commission remanded the case to the division to conduct a hearing to determine the proper remedy.

At the hearing, Petitioner called one witness and offered into evidence five exhibits: Petitioner Exhibits 1-5.

Respondent called no witnesses and offered into evidence four exhibits: Respondent Exhibits 1-4. All exhibits were admitted except Respondent Composite Exhibit 4, which was proffered.

As permitted by the Administrative Law Judge, Petitioner filed a post-hearing Motion for Attorney's Fees and Costs on February 3, 2003, and a Supplement to Defendant's Motion for Attorney's Fees and Costs on February 12, 2003, and Respondent filed a Response to Petitioner's Motion for Attorney's Fees and Costs and Supplement Thereto on March 17, 2003.

The court reporter filed the transcript on April 3, 2003.

The parties filed proposed recommended orders on March 28, 2003.

FINDINGS OF FACT

1. As determined in the earlier recommended and final orders issued in this case, Respondent committed an act of employment discrimination, based on age, against Petitioner when it hired James Wilcox as an Animal Control Officer instead of hiring Petitioner. Mr. Wilcox commenced employment on March 1, 1995, so Petitioner's compensatory relief should be calculated from that date.

2. For the ten months remaining in 1995, the Animal Control Officer position for which Petitioner was wrongfully denied employment would have paid $14,179. In 1996, the position would have paid $17,472; in 1997, the position would have paid $18,143; in 1998, the position would have paid

   $18,860; in 1999, the position would have paid $19,739; in 2000, the position would have paid $20,779; in 2001, the position would have paid $21,736; and, in 2002, the position would have paid $22,547.

3. For 1994, Petitioner earned $6,738.37, as a Wells Fargo guard. For 1995, Petitioner earned $7,747.51 as a Wells Fargo guard. For 1996, Petitioner earned $10,071.14 as an employee of the Charlotte County Clerk of Court's office. For 1997, Petitioner earned $12,770.11 in the same job. For 1998, Petitioner earned $5,868 as a seasonal employee of a Yogi Bear campground in Pennsylvania and a total of $10,498--the $4,630

   difference probably coming from the job at the clerk's office. For 1999, Petitioner earned $5,586.50 as a seasonal employee of a Yogi Bear campground in Pennsylvania. For 2000, Petitioner earned $2,049.73 as a seasonal employee of a gift shop in Vermont.

4. From 1987 through 1993, Petitioner earned annually between $40,712 and $43,287 as a software engineer. After 30 years with a single employer, Petitioner had retired, at the time of workforce reductions, prior to moving to Florida in 1993.

5. In March 1998, Petitioner requested a leave of absence from his job in the clerk's office. When the request was denied, Petitioner quit this job. The purpose of the leave of absence was to permit Petitioner to return to Connecticut and help his son start a chiropractic office. After doing so for two months, Petitioner began seasonal employment with a Yogi Bear campground, as indicated above.

6. The Animal Control Officer position paid about $450 more monthly than did the clerk's office job in 1997, the last year for which full-year figures are available. Although Petitioner testified that the difference in pay might have permitted him to send his son money, rather than return to Connecticut and help him directly, Petitioner's testimony is

   discredited as speculative and unsupported by the greater weight of the evidence.

7. Petitioner's earning history clearly reflects a reduction in compensation attendant upon a downshifting in employment since 1998, as Petitioner remained in the Northeast so that he could be closer to his son and other family members. Nothing in the record establishes that the relatively modest difference in pay between the two jobs in 1997 and, presumably, 1998 would have convinced Petitioner to send money rather than return to the Northeast to be with his loved ones. Additionally, the difference in pay between the two jobs decreased during each year that Respondent remained employed in the clerk's office. Respondent's responsibility for the difference in earnings therefore extends only the three years from March 1995 through March 1998.

8. Thus, for the ten months of 1995, Respondent is responsible for $6,431.49 in lost earnings, which is based on the $14,179 that Petitioner would have earned as an Animal Control Office reduced by the $7,747.51 that he earned as a Wells Fargo guard in 1995. (Petitioner's failure to prove the portion of the Wells Fargo earnings accruing after February results in the allocation of the whole amount as an offset.)

9. For 1996, Respondent is responsible for $7,400.86 in lost earnings, which is based on the $17,472 that Petitioner

   would have earned as an Animal Control Officer reduced by the

   
   

   $10,071.14 that he earned as an employee of the clerk's office in 1996.

10. For 1997, Respondent is responsible for $5,372.89 in lost earnings, which is based on the $18,143 that Petitioner would have earned as an Animal Control Officer reduced by the

    $12,770.11 that he earned as an employee of the clerk's office in 1997.

11. For the first three months of 1998, Respondent is responsible for $85 in lost earnings, which is based on the

    $4,715 that Petitioner would have earned as an Animal Control Officer reduced by the $4,630 that he earned as an employee of the clerk's office in the first three months of 1998.

12. Petitioner has thus proved a total of $19,290.24 in lost earnings for which Respondent is responsible. The record is insufficiently developed to permit a deduction for employee health insurance contributions.

13. Petitioner failed to prove any other damages suffered by him, such as lost health or retirement benefits, except for the matters discussed below.

14. Petitioner obligated himself to pay his attorney a reasonable fee for her legal representation and to pay the costs associated with prosecuting this claim of employment discrimination by Respondent.

15. Petitioner's counsel performed 140.7 hours of legal work at a claimed hourly rate of $275 over a three-year period. Her hourly billing rate has been $275 since 1999. Petitioner's counsel lists $472.64 in costs, of which $372.75 are in court reporter charges for transcripts of Petitioner's deposition and the evidentiary hearing at which liability was established. Sixty-seven dollars is due for copying medical records, which did not play an important role in this case. The remaining charges are modest expenses--none more than $6.00--for postage, printing, and telephone calls.

16. The amount of time that Petitioner's counsel expended is reasonable. The attorneys for both sides presented their cases efficiently. However, the numerous geographic references to South Florida and the locations of the attesting attorneys' offices inspire little confidence that $275 is a reasonable rate for Charlotte County. No more than $225 per hour should be allowed for the representation, given all of the circumstances, including the relatively modest recovery and the relative simplicity of the case.

17. Respondent is thus responsible for a total of

    
    

    $31,657.50 in attorney's fees and $405.64 in costs.

    
    

18. Adding the lost earnings, attorney's fees, and costs, Respondent is responsible for $51,353.38.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.57(1) and 760.11(6), Florida Statutes. (All references to Sections are to Florida Statutes.)

20. Section 760.11(5) authorizes the relief awarded in this case.

21. Petitioner has proved its entitlement to $19,290.24 in lost earnings, $31,657.50 in attorney's fees, and $405.64 in costs, for a total of $51,353.38.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations enter a final order awarding Petitioner and his attorney the sum of $51,353.38, as allocated above.

DONE AND ENTERED this 21 day of April, 2003, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21 day of April, 2003.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Amy L. Sergent Lancaster & Eure, P.A.

711 North Washington Boulevard Sarasota, Florida 34236

Brendan Bradley

Deputy County Attorney Charlotte County

Charlotte County Administrative Center 18500 Murdock Circle

Port Charlotte, Florida 33948-1094

Thomas Rapp

Assistant County Attorney Charlotte County

Charlotte County Administrative Center 18500 Murdock Circle

Port Charlotte, Florida 33948-1094

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-004683

Orders for Case No: 98-004683