STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

A hearing was held on April 21, 2005, in the above-styled cause before Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Tommy J. Thompson, pro se

941 Tung Hill Drive Tallahassee, Florida 32317

For Respondent: Sam Zurik III, Esquire

The Kullman Firm

1100 Poydraw Street, Suite 1600 New Orleans, Louisiana 70163

Tas Panos, Vice President and Senior Corporate Counsel

Affiliated Computer Services, Inc. 2828 N. Haskell, Building 1, 9th Floor Dallas, Texas 75204

STATEMENT OF ISSUES

Determination of the Appropriate Relief to be granted, particularly, the amount of back pay and whether the offer of a call center supervisor position to the Petitioner complied with the Florida Commission on Human Relations (Commission) Final Order.

PRELIMINARY STATEMENT

On July 8, 2004, a Recommended Order was entered finding that the Respondent engaged in a discriminatory employment practice, and recommending that the Respondent desist from such practice, promote the Petitioner immediately to a call center supervisory position, and pay the Petitioner back pay in the difference between his base salary and that of a call center supervisor from November 2001 until the date of the entry of a final order by the Commission. The Commission entered its final order awarding affirmative relief and directing that the Respondent (1) cease and desist from unlawfully, (2) promote the Petitioner immediately to a call center supervisory position,

1. remit to the Petitioner back pay from November 2001 until the Petitioner is placed in a call center supervisory position,

2. pay the Petitioner statutory interest on the amounts awarded to the Petitioner, and (5) pay the Petitioner's costs reasonably incurred in the matter.

The Commission reserved jurisdiction of the determination of the precise remedy amounts in the matter, if the parties could not agree to an amount. When the parties failed to agree, and requested a hearing to resolve the issues, the Commission asserted its jurisdiction and remanded the matter to the Division of Administrative Hearings to make appropriate findings on the matters in dispute.

A hearing was held pursuant to notice on April 21, 2005.

The hearing was limited to evidence on back pay concerning available supervisory positions that were not time-barred in relation to Petitioner's original charge. The Petitioner's Motion for a Default Judgment was denied, but the Petitioner was permitted to proffer evidence on the matter to preserve the record. The Petitioner testified in his own behalf and presented the testimony of Derik Jackson. The testimony of Vicki Bertoch was offered by the Respondent. The Petitioner introduced Exhibits 1 through 11 and the Respondent introduced Exhibits 1 through 16. A Transcript was prepared and filed on May 6, 2005. Both parties filed proposed recommended orders that were read and considered.

FINDINGS OF FACT

1. A Recommended Order dated July 8, 2004, found that the Respondent engaged in a discriminatory employment practice, and recommended that the Respondent desist from such practice,

   promote the Petitioner immediately to a call center supervisory position, and pay the Petitioner back pay in the difference between his base salary and that of a call center supervisor from November 2001 until the date of the entry of a final order by the Commission. The Commission entered its final order awarding affirmative relief and directing that the Respondent

   (1) cease and desist from an unlawful employment practice, (2) promote the Petitioner immediately to a call center supervisory position, (3) remit to the Petitioner back pay from November 2001 until the Petitioner is placed in a call center supervisory position, (4) pay the Petitioner statutory interest on the amounts awarded to the Petitioner, and (5) pay the Petitioner's costs reasonably incurred in the matter. The Commission reserved jurisdiction on the determination of the precise amounts, if the parties could not agree to an amount. When the parties failed to agree, and requested a hearing to resolve the issues, the Commission asserted its jurisdiction and remanded the matter the Division of Administrative Hearings to make appropriate findings on the matters in dispute.

2. The Petitioner testified regarding his employment, his salary, and the job offers made to him by Respondent since entry of the final order by the Commission. The record reflects that his hourly wage in the fall of 2001 was $13.69. A standard workweek was 40 hours. The Respondent frequently worked more

   than 40 hours and received additional incentive bonuses, which were in addition to his regular hourly wage. These are not included in his salary for purposes of computing back pay. See Anderson v. Phillips Petroleum Company, 736 F. Supp. 239 (1990, US Dist Ct, D. Kansas) The Petitioner's hourly wage was $13.69, and his monthly wage for December of 2001 would have been $2190.

3. Supervisors were not entitled to overtime and incentive bonuses. The information presented by the Respondent indicated that Shonice Booker, who was promoted into a position for which the Petitioner applied, was paid in December of 2001

   $15.25/hour, or a total of $2440. For purposes of computing the back pay, her pay is selected for comparison because it appears to be the highest wage of the positions for which the Petitioner applied, and she remained employed in the same position from 2002 until present. For the latter portion of 2001 covered in this case, which is computed as though it was the month of December, it is determined that the Petitioner's back pay is

   $250.

   
   

4. The information presented by the Respondent for 2002 shows the Petitioner was paid $13.69/hour until June 8, 2001, when he received a raise to $14.10/hour. The records introduced by Respondent indicated that in 2002, Booker was paid

   $15.25/hour as an annual salary until December 7, 2001, when she received a raise to $15.58 as an annual salary. The proposed

   findings of fact presented by the Respondent indicate that Booker received a total of $37,140 for the year 2002. Divided by 2080 hours, Booker's average wage was $17.86/hour. These latter figures are taken as more reliable regarding the annual earnings of Booker. Therefore, for 23 weeks, the Petitioner made $4.17/hour less than Booker, and for 29 weeks, he made

   $3.76/hour less than Booker. This amounts to 23 weeks at 40 hours/week times $4.17, and 29 weeks at 40 hours/week times

   $3.76, $3,836 and $4,362, respectively for a total of $8,198.

   
   

5. The information presented by Respondent shows that the Petitioner was paid $14.10/hour until June 29, 2003, and

   $14.52/hour thereafter until the end of the year. Although conflicting information was introduced, Booker is reported in the Respondent's proposed findings of fact to have made $64,780 in 2003, or divided by 2080 hours, an average of $31.14/hour.

   Therefore, through the end of June, the Petitioner made

   
   

   $17.04/hour less than Booker, and from then until the end of the year, he made $16.62/hour less than Booker. This amounts to 26 weeks at 40 hours/week times $17.04, and 26 weeks at 40 hours/week times $16.62, $17,721 and $17,285 respectively for a total of $35,006.

6. The offer of a supervisor's position at the rate of

   
   

   $35,400 was not consistent with the salary being earned by Booker, which, according to the information provided by the

   Respondent in its proposed recommended order, was $64,780 per year. This was not an offer complying with the Commission's directions, and did not stop the running of damages.

7. For the purposes of computing the award of damages since November of last year, the figures for the latter portion of 2004 will be used for 2005, until the present because the record reflects that salary adjustments have traditionally occurred during the month of June. Therefore, through the date of this order, in the year 2005, the Petitioner made $16.62/hour less than Booker for 20 weeks. This totals $13,296 through

   May 20, 2005.

   
   

8. The total back pay award is $56,750 through May 20, 2005, and continues to accrue at the rate of $664.80 per week.

9. The statutory interest at the rate for 2004 and 2005 is

   
   

   7 percent. This rate is applicable to the amount of back pay running from the entry of the Commission's order determining the amount of back pay until such time as the Petitioner is promoted as previously directed by the Commission.

10. Given the history of the Respondent in its dealings with the Petitioner, consideration of punitive damages should be considered, if the Respondent does not comply with the direction of the Commission with all deliberate speed. These enhancements should include, to begin with, doubling the actual damages determined above.

11. Petitioner presented his costs in Petitioner's Exhibit 5, summarized as follows:

    
    

    Lost of work attending mediation 10 hrs	$150
    Time filing initial complaint, etc. 58hr@$50/hr	2900
    Copying, fax, postage, binders, dividers	68
    Mileage 96miles@$.32/mile	31
    Subpoenas $25+$6x7	217
    Loss of work attending 1st hearing	135
    Loss of work attending 2d hearing	30
    Attorney's fee, Warren Bird	750
    Loss of 401K matching on back pay @3% 56,750	1703
    Loss of stock purchase discount	955
    Loss of Social Security match 7.65%x56,750	5871
    Subpoenas 2d hearing	62
    Loss of 9 hours work 2d hearing	135

    
    

12. The 401K matching and social security are taken as a percentage of the back pay award, and the amount above is based upon the back pay award determined above not the figures originally proposed by the Petitioner. The Respondent raised questions concerning several of the costs. The amount charged by the Petitioner for his time in preparing and filing his pleadings was $50/hour when his normal wage rate reflected in his lost work time was $15/hour. Although the work done was very professional, allowing a great deal more for the Petitioner's own efforts is not justifiable. The Respondent offered evidence that, if it paid back pay, it would be obligated to remit the social security payments to the government. The loss of a discount on a stock purchase not made is conjectural. Although evidence was received that attorney

    Bird had written off his fee in essence, he provided the Petitioner with a professional service in relationship to this case and should be compensated. Therefore, the following are the amounts found to be appropriate and reasonable costs to be awarded:

    Lost of work attending mediation 10 hrs	$150
    Time filing initial complaint, etc. 58hr@$25/hr	1450
    Copying, fax, postage, binders, dividers	68
    Mileage 96miles@$.32/mile	31
    Subpoenas $25+$6x7	217
    Loss of work attending 1st hearing	135
    Loss of work attending 2d hearing	30
    Attorney's fee, Warren Bird	750
    Loss of 401K matching on back pay @3% 56,750	1703
    Loss of stock purchase discount	0
    Loss of Social Security match 7.65%x56,750	0
    Subpoenas 2d hearing	62
    Loss of 9 hours work 2d hearing	135
    Total Costs	$4,731

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties pursuant to the direction of the Commission.

14. This case was remanded for a determination of the relief to be granted in terms of back pay. Involved in that determination as both parties recognized was a determination whether the offer of a call center supervisor's position at

    $35,400 was the offer of a promotion as directed by the Commission.

15. As found above, although the position title would have indicated it was a promotion, the salary offered was inconsistent with what a person who had been promoted when the Petitioner should have been promoted would be making as evidenced by the current salary of Ms. Booker. The Petitioner would have fiscally disadvantaged himself by accepting the offer.

16. Two things follow from the foregoing finding. First, the Respondent has not complied with the Commission's order to promote the Petitioner, and until an offer is made that offers a salary commensurate with Booker's, the Respondent will not have complied with the Commission's direction. Second, the back pay continues to accrue until the Petitioner is promoted.

17. The Respondent included the Petitioner's bonuses and incentive payments into his salary for purposes of "mitigation." This is inappropriate. See Anderson v. Phillips Petroleum Company, 736 F. Supp. 239 (1990, US Dist Ct, D. Kansas).

18. There were several approaches taken to arriving at the salaries for supervisors, who were on an annual salary. The figures upon which this award is based were taken from the Respondent's proposed recommended order, which reflected information presented in its presentation at hearing. See Respondent's Exhibits 9 and 9A.

19. Shonice Booker's data was used because it appears to be the highest wage of the positions for which the Petitioner applied, and because she has held the position steadily since her promotion. This constituted a good comparison for comparison with the Petitioner's salary. The law does not require exactness and uncertainties should be resolved in favor of the Petitioner. See EEOC v. Joe's Stone Crab, Inc., 15 F. Supp. 2d 1364, 1376 (S.D. Fla 1998).

20. As raised by Petitioner in his proposed recommended order, this violation is ongoing in the absence of his promotion. As mentioned in the Findings of Fact, above, the behavior of the Respondent at this point begins to raise questions about whether its behavior in not promoting the Petitioner is willful. A willful violation would warrant the award of an additional amount equivalent to the back pay award in liquidated damages.

21. Although it does not appear there has been any retaliation or other adverse employment action which would warrant the award of front pay, the continued failure of the Respondent to make a good faith offer of promotion with appropriate salary raises the issue of willfulness, and the possibility of the Commission structuring other relief.

22. The Petitioner computed an award based upon the imposition of interest from November 2001; however, Chapter 766,

Florida Statutes, only makes provision for interest post judgment. There was no statutory citation provided authorizing the award of prejudgment interest in cases arising from Chapter 760, Florida Statutes. Consequently, interest would only be computed on the amount of the back pay from the entry of the Commission's Final Order; however, this raises the issue of whether this would run from the Commission's previous order finding a violation, or runs from the Commission's order based upon these findings establishing the amount of the back pay, costs, and any other damages. The Commission must make that determination. As found above, the amount of interest for the years 2004 and 2005 is 7 percent.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter its final order finding that the Petitioner is entitled to an award of $56,750 in back pay, $4,731 in costs, and such other damages as the Commission may determine based upon its assessment of whether the continuing failure to promote the Petitioner is willful, plus interest from when the Commission determines the award was final.

DONE AND ENTERED this 26th day of May, 2005, in Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

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 26th day of May, 2005.

COPIES FURNISHED:

Tommy J. Thompson 941 Tung Hill Drive

Tallahassee, Florida 32317

Samuel Zurik, III, Esquire The Kullman Firm

1100 Poydras Street, 1600 Energy Centre New Orleans, Louisiana 70160

Tas Panos, Vice President and Senior Corporate Counsel

Affiliated Computer Services, Inc.

2828 North Haskell, Building 1, Nineth Floor Dallas, Texas 75204

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

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

Docket for Case No: 04-000094

Orders for Case No: 04-000094