STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUSBON J. BROWN, JR., )

)

Petitioner, )

)

vs. ) Case No. 99-4039

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

SUPPLEMENTAL RECOMMENDED ORDER

This matter came before the undersigned on an Order Finding Unlawful Employment Practices Occurred and Remanding Matter for Determination of Relief rendered on January 9, 2001, by the Florida Commission on Human Relations (Commission). The Commission's Order rejected a Recommended Order denying a Petition for Relief which alleged that Respondent had committed an unlawful employment practice by failing to hire Petitioner for any of six positions for which he had applied. The Order remanded the matter "for determination of the appropriate remedy for the Respondent's unlawful failure to hire Petitioner for positions 80655, 64251, 00159, 21778, 64274, [and] 80996."

Because the Commission did not return the case file until March 2001, the case remained inactive until March 5, 2001, when it was finally reopened. Thereafter, by Order dated March 12,

2001, the undersigned required the parties to submit proposed supplemental orders which contained a suggested final disposition of the case, together with references to the record (exhibits or transcript page number) which supported any proposed findings of fact. In response to that Order, Petitioner and Respondent filed their submissions on March 30 and April 3, 2001, respectively. Petitioner subsequently filed corrections to his filing on April 5, 2001. Both filings have been considered in the preparation of this Supplemental Recommended Order.

In his submission, Petitioner, a non-attorney who represented himself, has requested back pay which he estimates to be "in the range of . . . $91,440.23 and . . . $221,112.77," attorney's fees in an undisclosed amount, and $186,912.00 as compensation for various expenses which he attributes to Respondent's failure to hire him, including foreclosure of home, repossession of automobiles, repair of credit, loss of savings account, job search expenses, cost of divorce, cost of housing, and storage of excess belongings. Because attorney's fees are not available to a non-attorney, that request is denied. See Dep't of Insur. v. Fla. Bankers Assoc., 764 So. 2d 660, 663

(Fla. 1st DCA 2000); Kay v. Ehrler, 499 U.S. 432, 436 (Sup. Ct.

1991). In addition, Petitioner has cited no authority, nor has the undersigned found any provision in Chapter 760, which

authorizes the reimbursement of the miscellaneous expenses described in the last category. Therefore, that request is also denied.

Assuming that the "relief" requested by Petitioner in his Petition for Relief includes back pay, such a request must be considered in the context of the principle established in School Bd. of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). There, the court held that there is "no authority to a reviewing agency to receive additional evidence other than that already presented and evaluated by the [administrative law judge]." Id. at 445. In other words, this proceeding is not a bifurcated process, with one evidentiary hearing to establish liability, and a second to determine economic damages.

Therefore, no further evidentiary hearings are contemplated, and unless the issue of back pay was litigated at the hearing held on February 10, 2000, and an appropriate record on that issue established, "the Commission ha[s] no authority to permit an award of back pay." Id. These guidelines were disclosed to the parties in the undersigned's Order of March 12, 2001.

Although the parties were instructed to cite to the appropriate portions of the hearing record (exhibits or transcript) which support their proposed supplemental findings, there are no record citations in Petitioner's submission. More specifically, without record citations, in paragraph E of his

submission, Petitioner avers that he "mitigated any remedy by remaining gainfully employed" with the Department of Revenue and Daytona Beach Community College between July 28, 1995, and the present date, and he enumerates his monthly salary during those periods of time. In paragraph F, and again without record citation, he identifies the pay grade and starting monthly salary for five of the six disputed positions "effective on hire date" followed by the "[s]alaries taken from the State of Florida Pay Plan" effective October 1, 2000. There is no indication in the submittal as to how the total back pay was then computed or the precise period of time for which back pay is claimed. Neither is it disclosed whether Petitioner's salary at his last two jobs during the intervening period was used as an offset to these amounts, or whether the compensation for an unrelated position (64227) recited in his findings were included in his calculations. In addition, it is unknown whether Petitioner took into account the fact that one of the jobs sought (80655) was a temporary position. Finally, the filing does not disclose whether the back pay being sought is the total for all five positions (or six, including the unrelated position) during the relevant time period, or only for a single job. All of these matters should have been raised and litigated at the evidentiary hearing previously conducted on February 10, 2000.

The record in this matter consists of a Transcript of the hearing, Petitioner's Exhibits 1-23, and Respondent's Exhibits 1-4. Because Petitioner failed to include any record citations in his filing, the undersigned has examined the record to determine whether there is an evidentiary basis for any of the above findings and calculations. That examination discloses that Petitioner's Exhibits 7, 8, 9, 12, 15, and 16 contain the

bi-monthly salary ranges for positions 80655, 64251, 00159, 21778, 64274, and 80996, respectively, as of the date of the job announcements. For undisclosed reasons, however, Petitioner has not requested back pay for position 64274; rather, he has requested back pay for position 64227, a position not in issue here. Further, the salary amounts used by Petitioner for "the starting rate of pay per month in 1997 (effective on hire date)" do not directly correspond with the numbers used in Petitioner's filing. For example, the salary range for position 80996 is shown as $734.44 to $1,200.07 on a bi-weekly basis; in Petitioner's filing, he uses a monthly salary of $2223.92 as a starting pay effective August 8, 1997.

The issue of back pay was never addressed during the underlying hearing. Indeed, there was no mention of "back pay," and except for the numbers derived by the undersigned from the above exhibits, there was no evidence to support any of the figures or calculations. This explains the absence of any

findings on this issue in the Recommended Order. For example, in Finding of Fact 4 of the Recommended Order, the undersigned noted that "[b]eginning on July 28, 1995, and continuing for several years, [Petitioner] was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner did not disclose his current employment." Thus, none of the information contained in paragraph E was submitted at the earlier hearing. Given all of these evidentiary shortcomings, no relief is available. Weaver at 445.

Notwithstanding the Weaver case, Petitioner cites several Commission orders for the proposition that a second evidentiary hearing may be held to litigate for the first time the issue of back pay. More specifically, he cites DOAH Case Nos. 85-1961, 94-1137, and 93-5811. However, the first case predates the Weaver decision, while in the second case, the Recommended Order contains findings regarding the claimant's pay before and after the alleged discriminatory act, and it specifically makes a recommendation that an award of back pay be made. The final case is also distinguishable since the undersigned assumes that the subject matter of back pay was raised during the first evidentiary hearing, or the employer did not object to a second evidentiary hearing on that issue, despite the clear directive in Weaver. Here, Respondent has specifically objected to

granting any relief which is not predicated on evidence produced at the hearing on February 10, 2000.

Assuming arguendo that a proper record had been made for back pay, consideration would have to be given to the fact that Petitioner simultaneously filed discrimination complaints against seven different agencies alleging that each was guilty of an unlawful employment practice. After a preliminary determination of no probable cause in each case was made by the Commission, the matters were referred to the Division of Administrative Hearings. The seven cases were heard by three administrative law judges, and Recommended Orders in favor of the employer were entered in all seven cases. Of those cases, at least one other has been remanded for the same purpose as the instant case. Brown v. Department of Health, DOAH Case No. 99- 4041. Assuming that he is entitled to back pay, Petitioner would only be entitled to be made whole for a single position with one agency; he would not be entitled to back pay for multiple positions with more than one agency during essentially the same time period. Put another way, Petitioner could only accept employment for one position with one agency at the same time. Therefore, the acceptance of back pay in one case would arguably constitute a waiver of remedies in any other remanded case.

In summary, because there was no evidence presented on the issue of back pay in the underlying proceeding, the matter cannot be relitigated at this juncture. Therefore, Petitioner is not entitled to his requested relief. Further, even assuming that back pay is appropriate, it should be limited to one position with one agency, since Petitioner obviously would not have accepted multiple positions with more than one agency at the same time. Based on the foregoing, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order determining that Petitioner is not entitled to any relief.

DONE AND RECOMMENDED this 25th day of May, 2001, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 25th day of May, 2001.

COPIES FURNISHED:

Ausbon J. Brown, Jr.

415 South Duss Street

New Smyrna Beach, Florida 32168

Michelle L. Oxman, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Suite 3421

Tallahassee, Florida 32308

Azizi Coleman, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to file written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue a final order in this case.

Docket for Case No: 99-004039

Orders for Case No: 99-004039