STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLES FENESY, )
)
Petitioner, )
and )
)
NORMAN A. JACKSON, Executive ) CASE NO.: 80-473
Director of the Florida Commission ) on Human Relations, )
)
)
)
GTE DATA SERVICES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on September 10, 1980, in Clearwater, Florida.
APPEARANCES
For Petitioner: Roger C. Benson, Esquire
1400 66th Street North, Suite 486 St. Petersburg, Florida 33710
For Intervenor: Aurelio Durana, Esquire
2562 Executive Center Circle East Suite 100, Montgomery Building Tallahassee, Florida 32301
For Respondent: Paula L. Paster, Esquire
GTE Data Services, Inc. One Stamford Forum
Stamford, Connecticut 06904 ISSUES PRESENTED
Whether Respondent employer violated the Human Rights Act, Section 23.167(1), Florida Statutes (1979), by failing or refusing to employ Petitioner as a program-analyst because of his handicap; and, if so, the affirmative relief which should be granted.
CONCLUSIONS AND RECOMMENDATIONS
Conclusions:
That Respondent engaged in an unlawful employment practice by failing or refusing to hire Petitioner because of his handicap. The Respondent failed to
substantiate its asserted defense--that the absence of Petitioner's particular handicap was a bona fide occupational qualification reasonably necessary for the performance of the position for which he applied.
Recommendation:
That the Commission prohibit the Respondent from engaging in such practice in the future, require it to pay Petitioner lost wages and attorney's fees, and offer him employment in the next available program-analyst position.
Background
On November 21, 1978, Petitioner, Charles Fenesy ("COMPLAINANT"), filed a complaint of discrimination with the Intervenor, Florida Commission on Human Relations ("COMMISSION"), alleging Respondent, GTE Data Services Inc. ("COMPANY"), denied him employment because of his physical handicap--heart disease.
After investigation, the COMMISSION's Executive Director issued a "Determination: Cause" on October 22, 1979, concluding that there was reasonable cause to believe that the COMPANY had committed an unlawful employment practice prohibited by Section 23.167(1), Florida Statutes (1979) [formerly Section 13.261(1), Florida Statutes (1977)].
After the parties failed to conciliate, or informally resolve the dispute, COMPLAINANT filed his Petition for Relief with the COMMISSION on February 29, 1980. Thereafter, the Petition was forwarded to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57 hearing.
Final hearing was then set for May 20, 1980. Subsequently, upon the COMPANY's motion, and without objection, hearing was continued and reset for July 9, 1980. Thereafter, upon COMPLAINANT's motion, and without objection, the hearing was again continued and reset for September 10, 1980.
Several pleadings were filed and disposed of prior to final hearing. On April 29, 1980, the COMMISSION's Executive Director moved to intervene as a party in this proceeding, which motion was granted.
By way of affirmative defense to COMPLAINANT's Petition for Relief, the COMPANY asserted, among other things, that the Petition was untimely in that the COMMISSION had failed to comply with its own rules, Section 9D-9.05(3), Florida Administrative Code. Specifically, the COMPANY asserted that the above rule requires the service of a "Notice of Failure of Conciliation" 30 days after service of the "Determination: Cause". Records show that the COMMISSION denied the COMPANY's petition for reconsideration of the "Determination: Cause" on December 5, 1979; but the Notice of Failure of Conciliation was not issued until February 21, 180. On May 12, 1980, the COMMISSION moved to dismiss the COMPANY's affirmative defense.
The COMPANY responded to the COMMISSION's motions, and moved for summary judgment. By order dated June 30, 1980, the COMMISSION's motion to dismiss the COMPANY's affirmative defense was granted on the grounds that (1) Rule 9D-9.05 does not specify the time period which a Notice of Failure of Conciliation must be issued, (2) COMPLAINANT's Petition for Relief was filed within the requisite time period from the issuance of the Notice, and (3) the COMPANY's actions contributed to the delay in issuance of the Notice. Also, the COMPANY's motion
for summary judgment was denied on the ground that the conduct of the parties during settlement negotiations was not germane to the issues to be decided at final hearing.
On June 18, 1980, the COMPANY moved to compel COMPLAINANT to answer interrogatories, which motion was granted on July 1, 1980.
At final hearing, COMPLAINANT testified in his own behalf and offered Petitioner's Exhibit1 Nos. 3 through 7, each of which was received.2 The COMMISSION presented no witnesses or documentary evidence.
At the close of hearing, the parties requested and were granted the opportunity to file proposed findings of fact and conclusions of law by October 21, 1980. Proposed findings were subsequently filed; those filed by the COMMISSION and COMPLAINANT are the subject of a pending motion to strike filed by the COMPANY.
FINDINGS OF FACT
Based upon the evidence presented at final hearing, the following facts are determined:
Nature of Complainant's Handicap
At all times material hereto, Petitioner, Charles Fenesy ("COMPLAINANT"), suffered from severe coronary heart disease (arteriosclerosis), diabetes, and excess weight. The arteriosclerosis consists of lipid deposits which obstruct and interfere with the flow of blood in all three major arteries to his heart; the diffuseness of the deposits make bypass surgery inadvisable. As a result of this disease, the COMPLAINANT began, in 1972, to experience occasional angina pectoris, which is sharp chest pain associated with activity. (Testimony of Fenesy, Hampton; P.E. 11.)
The angina pectoris, however, occurred only when he was engaging in tasks involving physical activity and exertion, such as working in the yard, mowing the lawn, pulling weeds, and walking too fast; he has never experienced angina pectoris because of mental or emotional stress. During his 17 years as a computer analyst and programmer, he never experienced angina attacks in connection with his work environment; neither did his angina attacks ever interfere with his job attendance or performance or require that his work schedule be altered. Because of his heart disease, COMPLAINANT is unable to perform normal physical activity and exertion; his working activities are limited to those found in the office environment. The ability of a person inflicted with severe heart disease to capably function in a working environment is related to his temperament. The COMPLAINANT is a well-controlled, even- tempered person who has demonstrated ability to capably perform computer analyst and programmer duties and effectively cope with the stresses of an office environment. He has never experienced a heart attack. (Testimony of Fenesy;
P.E. 11.)
In order to control and treat his heart disease (which is incurable, without surgical bypass), and relieve angina pectoris symptoms, COMPLAINANT takes various vasodilators, including nitroglycerin and inderal; he is on a diet and takes diabinese to control his diabetes. If he suffers angina pectoris when mowing the lawn, he quickly takes the prescribed medication, the pain subsides, and he continues mowing. (Testimony of Fenesy; P.E. 11)
Complainant's Application for Employment as a Program-Analyst
On September 18, 1978, COMPLAINANT filed an application for employment as a program-analyst with the Respondent, GTE Data Services, Inc. ("COMPANY"). Betty Graef, Supervision of the COMPANY's CRB Source Group, had an available program-analyst position in the Customer Master File Unit; after review the COMPLAINANT's application, she concluded that he appeared to be qualified for the position and asked Nancy Fitzpatrick, the COMPANY's Personnel Representative, to arrange an employment interview. (Testimony of Fenesy, Graef, Fitzpatrick; R.E. 4.)
Qualifications and Duties of the Available Program-Analyst Position.
The program-analyst position which Ms. Graef had available entailed coding computer programs based on specifications prepared by a senior analyst. These programs maintained billing and address information on telephone company customers. There were approximately 22 other program-analysts in that department. The work required knowledge of assembly, also known as BAL or computer language, and typically required meeting deadlines and coping with emergency demands. Occasionally analysts were required to work long and irregular hours, due to emergencies, or in order to correct errors. The frequency of such a requirement would vary: employees who were capable and careful in their work were less likely to experience such demands. Substantial overtime work was not ordinarily required. (Testimony of Fenesy, Gradef.)
During the subsequent employment interview conducted by Ms. Graef, COMPLAINANT specifically asked if the position required overtime work: she answered that, except under exceptional conditions, there would be no overtime required unless he fell behind in his work. To the extent Ms. Graef's testimony at hearing tended to describe the position as on regularly requiring excessive or extraordinary hours, it is rejected as at variance with her prior description of the position during the employment interview with COMPLAINANT, and is considered unpersuasive. (Testimony of Fenesy, Graef.)
Qualification of Complainant
At the time of his application, COMPLAINANT was employed by Pinellas County as an automatic mapping supervisor, at $12,000 per annum. He supervised
23 employees, and was responsible for their hiring, performance, and firing. Generally, he worked a 40-hour work week, although he occasionally worked irregular or overtime hours. During the summer of 1977, he worked 50 hours a week. (Testimony of Fenesy.)
COMPLAINANT was knowledgeable and had extensive experience in the area of data processing. He had worked in that field for 17 years, and attended various technical training seminars; moreover, he had previous programming experience using BAL, the particular computer language required for the position. He also held a Bachelor of Science degree in Business Administration. By virtue of his technical knowledge and experience, COMPLAINANT was qualified to carry out the duties of the available program-analyst position in Ms. Graef's department. The only objection raised to his employment was based on his physical condition. (Testimony of Fenesy; R.E. 4.)
The Company's Conditional Offers of Employment and Rejection of Complainant.
On September 21, 1978, after the COMPLAINANT's employment interview with Ms. Graef and Ms. Fitzpatrick, the COMPANY offered to employ him as a program-analyst, at $16,000 per annum, conditioned upon his passing the standard pre-employment physical. After his rejection of the offer, the COMPANY made a second offer on October 6, 1978, with a salary of $18,000 per annum; this offer was also condition upon passage of the pre-employment physical. COMPLAINANT accepted this offer, and promptly gave notice to his present employer, Pinellas County, effective October 13, 1978. He was scheduled to begin work with the COMPANY on October 16, 1978. (Testimony of Fenesy, Graef, Fitzpatrick; P.E. 1,2,3)
On October 10, 1978, the medical doctor ordinarily used by the COMPANY for this purpose, Edward F. Carter, M.D., gave the COMPLAINANT the standard pre- employment physical examination. On the medical questionnaire form, COMPLAINANT disclosed that he had angina pectoris, and was taking inderal for its control; and he also explained the "over exertion may cause angina pain" (R.E. 4), and gave the name of his cardiologist, John Dormois, M.D. Despite this disclosure, no diagnostic tests were administered by Dr. Carter to determine the severity of his heart disease, or the extent to which it might interfere with his performance as a program-analyst. The stated purpose of the examination, as indicated on the COMPANY form is "to determine if . . .[the applicant] meet(s) the physical standards of the position for which . . .[he is] applying." (R.E. 4.) Several days later, COMPLAINANT was notified by Ms. Fitzpatrick that he had "flunked" the physical. Dr. Carter's brief written "Physician's Report" indicated the COMPLAINANT had "angina, on medication", and "diabetes regulated and diet"; the box labeled "unemployable at this time", was checked. (Testimony of Fenesy; R.E. 4.)
COMPLAINANT protested to Ms. Fitzpatrick and tried to contact the COMPANY's affirmative action officer. He also asked Dr. Dormois (his cardiologist who was familiar with the nature of his heart disease) to call Dr. Carter to discuss his condition. On October 16, 1978, Ms. Fitzpatrick told him they would try to arrange a second physical with another doctor. Due to his resignation (extended one week), the COMPLAINANT faced unemployment as of October 20, 1978, and was anxious to quickly resolve the matter. A second physical examination was thereafter scheduled for October 20, 1978, with Phillip Hampton, M.D., a practitioner of internal medicine with specialties in both diabetes and cardiology. The COMPANY's representative involved had, at that time, resolved to go along with whatever decision was made by Dr. Hampton. (Testimony of Fenesy, Fitzpatrick, Hampton).
On October 20, 1978, Dr. Hampton took the COMPLAINANT's medical history, and conducted a 15-minute physical consisting of x-rays, an electrocardiogram, blood, and urine tests. COMPLAINANT explained that he had experienced angina pectoris for approximately three years, in situations of physical exertion and stress.3 Dr. Hampton was aware that COMPLAINANT was taking vasodilatory medication to alleviate angina pain, as well as diabinese to control his diabetes. The medically recognized diagnostic test to coronary diabetes. The medically recognized diagnostic test for coronary heart disease is a coronary arteriography; however, Dr. Hampton did not administer this test to COMPLAINANT. There is one objective diagnostic test to determine whether an individual suffers from angina pectoris--the stress test. It consists of placing the patient on a treadmill requiring physical exertion; the effects of exertion on blood pressure and production of pain (angina pectoris) are detected, as are changes in the patient's electrocardiogram. However, Dr. Hampton did not perform a stress test upon COMPLAINANT. (Testimony of Fenesy, Hampton.)
On October 27, 1978, Dr. Hampton notified the COMPANY of the results of his examination of COMPLAINANT:
"Dear Mrs. Fitzpatrick:
As a result of my examination of Mr.
Charles A. Fenesy on Oct. 1978, I find that he has obesity, diabetes and angina pectoris.
He would be largely relieved of diabetes and angina if he would reduce his weight to under 200 lbs. which means a loss of about
70 lbs.
If he does not he is not a good risk physically and in danger of a myocardial infarction." (R.E. 3.)
Based on Dr. Hampton's letter, Ms. Fitzpatrick notified COMPLAINANT on October 30, 1978, that Dr. Hampton had concurred with Dr. Carter, and that he would not be hired. COMPLAINANT asked for a letter to that effect which the COMPANY never furnished. (Testimony of Fitzpatrick, Fenesy; R.E. 3.)
Neither Dr. Carter nor Dr. Hampton recommended to the COMPANY that COMPLAINANT was "employable" if he took medication to control his condition. They both were aware that he was already taking such medication. (Testimony of Hampton, Fenesy; R.E. 4.)
However, after COMPLAINANT warned that he would file a grievance because of his rejection, Tannia Yarborough, the COMPANY's Equal Employment Opportunity Administrator, told him that he would be considered for employment if he submitted a letter from his doctor stating that his medical problems were under control and if he would participate in a COMPANY weight reduction program; the weight reduction program requisite was later withdrawn. [The COMPANY did not have a policy to monitor the weight of its employees.] Ms. Yarborough, who was involved in the COMPANY's decisions concerning COMPLAINANT, thought angina pectoris was a cardiac disease, and not a symptom of the disease. (Tr. 213.) She also was not aware at the time of hearing that COMPLAINANT's cardiac disease was progressive--that is could be controlled but not cured. In response to Ms. Yarborough's suggestion, COMPLAINANT's cardiologist, Dr. Dormois, wrote a letter on January 18, 1979, stating that COMPLAINANT's symptoms (angina pectoris) were under control by medication, that COMPLAINANT had shown "absolutely no tendency over the last several years to have any difficulty performing his usual assigned task," and that he had "no reason to think that in the foreseeable future that this will be greatly altered." (P.E. 4.) (Testimony of Fenesy, Yarborough;
P.E. 4.)
Effect of Complainant's Coronary Heart Disease on His Performance as a Program-Analyst
There is insufficient evidence to establish that COMPLAINANT's coronary heart disease would adversely impact or interfere with his performance as a program-analyst with the COMPANY. The two COMPANY doctors who examined him had no awareness of the particular demands of the position for which he applied; they did not even discuss with him his extensive experience in the data processing field (18 years), and whether his disease had interfered with his work in an office environment. (Testimony of Fenesy, Hampton.)
The actions of the two doctors supports an inference that the COMPANY had not enunciated, in advance, the purpose of pre-employment physicals, and the standards which apply to determining the medical "employability" of a job applicant. The COMPANY accepted the simple checking of an "unemployable" box on a form by Dr. Carter, and Dr. Hampton's reinforcing conclusion that COMPLAINANT "is not a good risk physically" (R.E.3) if he does not reduce his weight; these documents form the basis of the COMPANY's rejection. Dr. Hampton's conclusions concerning COMPLAINANT's disease were admittedly based on statistical probability, not on an individual assessment of COMPLAINANT's temperament, his defense mechanisms, and his ability to perform data processing work in an office environment. In essence, they concluded that COMPLAINANT's longevity or life expectancy is not good because of the progressive nature of his disease. (Testimony of Fenesy, Hampton; P.E. 11, R.E. 3,4.)
Complainant's Lost Wages and Attorney's Fees
COMPLAINANT made reasonable and diligent efforts to obtain employment after his rejection by the COMPANY. For 19 weeks he was unemployed; if the COMPANY had fulfilled its offer to employ him on October 39, 1978, he would have earned $6,576.93 during that period. He eventually secured various employment positions in the data processing field, and now works again for Pinellas County. As of the date of hearing, the difference between what he earned in those positions and what he would have earned with the COMPANY (had he been hired at
$18,000 per annum) is $3,379.88. (Testimony of Fenesy; P.E. 6.)
COMPLAINANT claims lost of fringe benefits which he would have received if he had remained in his job with Pinellas County in 1978; alternatively, he claims loss of fringe benefits which he would have received from the COMPANY if he had been employed since October, 1978. However, the benefits accorded by the two employers, including pensions, vacation, sick leave, and insurance coverage, are markedly dissimilar. Based on the quality of the evidence submitted on this question, any conclusion concerning COMPLAINANT's actual monetary loss in fringe benefits due to the COMPANY's action would be conjecture and unreliable. (Testimony of Fenesy; P.E. 6,9.)
Because of the COMPANY's rejection of his employment application, COMPLAINANT applied for and received Social Security Disability Payments from October, 1978 through March, 1979. However, since he subsequently found gainful employment in March, 1979, (i.e., he did not remain disabled for the requisite period) the Social Security Administration retroactively denied his eligibility. He may now be required to reimburse the government for the disability payment which he received. (Testimony of Fenesy; P.E. 5.)
The COMPLAINANT testified that he is obligated to pay attorney's fees of $600 in connection with this proceeding. In the absence of the COMPANY contesting this amount, it is concluded that such attorney's fees are reasonable. (Testimony of Fenesy; P.E. 6.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The COMMISSION is charged with the duty to enforce the "Human Rights Act of 1977," Sections 23.167, et seq., Florida Statutes (1979). Section
23.167 of that ACT provides, in pertinent part, as follows:
"23.167 Unlawful employment practices: remedies; constructions.
It is unlawful employment practice for an employer:
(a) To . . . fail to refuse to hire
any individual . . . because of such individual's . . . handicap . . .
* * *
Notwithstanding any other provision of this section, it is not unlawful employment practice . . . for an employer . . . to:
Take or fail to take any action on the basis of . . . handicap . . . in those certain instances in which
. . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.
* * *
(13) In the event that the Commission in the case of a complaint under subsection (10). . . finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees "
The burden of proof lies upon the COMPLAINANT. In order to prevail, the must establish the affirmative allegations in his petition for relief by a preponderance of evidence. See, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Similarly, the burden falls upon the COMPANY to present evidence in support of the affirmative defense raised in its answer: that its action was based on a bona fide occupational qualification reasonably necessary for performance as a program- analyst in the position for which COMPLAINANT applied.
The COMPANY is an "employer" within the meaning of Section 23.162(6), Florida Statutes (1979), and is thereby subject to the proscriptions of the Human Rights Act.
The COMPLAINANT is a handicapped individual within the meaning of Section 23.167, Florida Statutes (1979). Since this statute does not indicate a different connotation, the term "handicap" should be given a meaning accorded by common usage. See Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950). In construing similar statutes, courts of three other states have resorted to the definition of "handicap" contained in Webster's Third New International Dictionary. Chicago, Milwaukee, St. Paul and Pacific and Pacific Railroad Company v. Washington State Human Rights Commission, 577 P.2d 307 (Wash. 1976), State v. Turner, 209 N.E.2d 475 (Ohio, 1965), Chicago, Milwaukee, St. Paul and Pacific Railroad v. Department of Industry, Labor and Human Relations, 215 N.W.2d 443
(Wis. 1974). Generally, "handicap" connotes a condition that prevents normal functioning in some way:
"A person with a handicap does not enjoy, in some manner, the full and normal use of
his sensory, mental, or physical faculties." Chicago, Milwaukee, St. Paul and Pacific Railroad Company v. Washington State Human Rights Commission, supra.
The COMPLAINANT's severe and progressive coronary heart disease limits the use of his physical faculties and renders him a handicapped person; the COMPANY does not contend otherwise.
COMPLAINANT established, by a preponderance of evidence, that the COMPANY violated Section 23.167(1), Florida Statutes (1979) [formerly 13.261(1), Florida Statutes (1977)] by failing or refusing to hire COMPLAINANT because of his handicap. Moreover, the COMPANY failed to establish that the absence of his particular handicap was a bona fide occupational qualification reasonably necessary for performance as a program-analyst. Section 23.167(8)(a), Florida Statutes (1979).
The COMPANY cannot avoid responsibility for its actions toward COMPLAINANT by claiming it relied on the advice of its medical doctors; the employment decision was ultimately the COMPANY's. And it was the COMPANY's duty to make its decision based upon relevant facts and application of lawful employment criteria.
The evidence supports a conclusion that neither the COMPANY's employees nor its medical doctors (acting as its agents) had a factual basis to decide (if ever they did) that COMPLAINANT's handicap would interfere, or reasonably be expected to interfere with the performance of his duties as a program-analyst. The COMPANY repeatedly told COMPLAINANT that the doctors (Carter and Hampton) had rejected him: but the doctors were unaware of the COMPLAINANT's demonstrated ability to successfully perform data processing duties and were oblivious to the particular demands of the program-analyst position for which COMPLAINANT were routine and superficial in nature, lacking in specific focus and without individualized testing and inquiry. He was rejected because he suffered a handicap which, according to statistical probability, would shorten his life expectancy. He was, as described by Dr. Hampton, "not a good risk physically." (R.E. 3.) As a matter of law, this is an insufficient basis for denying employment to a handicapped person. See, Section 23.167(1), Florida Statutes (1979).
COMPLAINANT has suffered direct and actual damages because of the COMPANY's refusal or failure to employ him. He is entitled to (1) back pay, equivalent to the difference in salary between what he would have earned as a COMPANY program-analyst since October 30, 1978, and what he has earned up to the date of final hearing in this case; (2) an opportunity to be employed by the COMPANY in a position similar in duties and salary to the position for which he applied in 1978; and (3) attorney's fees incurred in this proceeding. Proof of other damage which COMPLAINANT may have suffered due to the COMPANY's actions is insufficient to support further relief.
The COMPANY's posthearing Motion to Strike the COMMISSION's and COMPLAINANT's proposed findings of fact is denied, since such proposed findings were timely filed. To the extent the proposed findings of fact filed by the
parties are not incorporated herein, they are rejected as not supported by the evidence, or not relevant to determination of the issues presented.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the Florida Commission on Human Relations enter a final order:
Finding the COMPANY engaged in an unlawful employment practice in violation of Section 23.167(1), Florida Statutes (1979), and prohibiting such practice in the future; and
Providing COMPLAINANT affirmative relief from the unlawful practice by requiring the COMPANY to (a) pay him lost wages in the amount of $9, 956.81; (b) offer him the next available program-analyst position at a salary and under conditions similar to that which he would have received in October, 1978, but for the COMPANY's unlawful practice; and (c) pay him $600 for attorney's fees incurred in this case.
DONE AND ENTERED this 31st day of December, 1980, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Telephone: (904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980.
ENDNOTES
1/ Petitioner's and Respondent's Exhibits will be referred to as "P.E. " and "R.E. ", respectively.
2/ Respondent's Exhibit Nos. 1 and 2 were marked for identification but never offered into evidence.
3/ There is a conflict in testimony concerning whether COMPLAINANT told Dr. Hampton that his angina pectoris was precipitated by stressful situations unrelated to physical exertion. (Tr. 165.) Although Dr. Hampton recalls such a statement was made to him over two years ago, COMPLAINANT denies it.
COMPLAINANT's testimony is consistent with R.W. 4, P.E. 11 (including Doctor's notes)--his prior descriptions of his symptomatology--and is persuasive.
COPIES FURNISHED:
Roger C. Benson, Esquire 1400 66th Street North Suite 486
St. Petersburg, Florida 33710
Aurelio Durana, Esquire
2562 Executive Center Circle East Suite 100, Montgomery Building Tallahassee, Florida 32301
Paul L. Paster, Esquire GTE Data Services, Inc. One Stamford Forum
Stamford, Connecticut 06904
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLES FENESY,
Petitioner,
vs.
CTE DATA SERVICES, INC.,
Respondent,
CASE NO. 80-473
vs. FCHR NO. 214-79
NORMAN A. JACKSON,
Executive Director, Florida Commission on Human Relations,
Intervenor.
/
ORDER FINDING UNLAWFUL EMPLOYMENT PRACTICE
The following Commissioners participated in the disposition of this matter: Commissioner Reese Marshal, Chairperson
Commissioner Robert Billingslea
Commissioner Elvira M. Dopico Commissioner Robert Joyce Commissioner Melvin L. Levitt
Commissioner Thomas H. Poole Sr. Commissioner Robert Simms
Commissioner Cynthia Moore Chestnut, Marjorie Hart and Gabriel Cazares took no part in these proceedings.
APPEARANCES
For Petitioner:
Roger C. Benson, Esq., 1400 66th Street, North, Suite 486, St. Petersburg, Florida 33710
For Respondent:
Paula L. Paster, Esq., GTE Data Services, Inc., One Stanford Forum, Stanford, Connecticut 06904
For Intervenor:
Aurelio Durana,Esq., Assistant General Counsel, Florida Commission on Human Relations, 2562 Executive Center Circle, East, Suite 100, Montgomery Building, Tallahassee, Florida 32301
PRELIMINARY STATEMENT
On November 21, 1978, Charles Fenesy, Petitioner herein, filed a Complaint of Discrimination with this Commission alleging that GTE Data Services, Inc., Respondent, unlawfully denied him employment on the basis of his physical handicap (heart disease), in violation of the Human Rights Act of 1977, as amended [Part IX, Chapter 23, Florida Statutes, (1979), then Part II, chapter 13, Florida Statutes (1977)]. In his complaint, Petitioner alleged that the discriminatory act occurred on or about October 30, 1978.
An investigation into the allegations raised by the complaint was conducted by the Office of Field Services pursuant to Rule 9D-9.03, Florida Administrative Code. The Office of Field Services prepared and submitted its report of investigation to the Executive Director as required by Commission Rules.
Thereafter, on October 25, 1979, the Executive Director issued a Determination: Cause, concluding that the investigation revealed reasonable cause to believe that the Respondent had committed an unlawful employment practice in violation of Section 23.167(1), Florida Statutes (1979).
Subsequent to the issuance of the of the Determination, efforts were made to informally resolve the dispute through conciliation. Upon failure of the conciliation attempts the Petitioner filed his Petition for Relief on February 29, 1980. The Petition was duly referred to the Division of Administrative Hearings for assignment of a hearing officer to conduct proceedings, pursuant to Rule 9D-9.06(2), Florida Administrative Code and Section 120.57, Florida Statutes.
After due notice, a hearing was held in this matter on September 10, 1980, at Clearwater, Florida, before R.L. Caleen, Jr., Hearing Officer. The Recommended Order of the Hearing Officer was issued on December 31, 1980. A copy of the Recommended Order is fully set forth as an appendix to this Order.
On January 19, 1981, Petitioner filed his Exceptions to the Recommended Order and requested that the Commission award Petitioner the value of the fringe benefits lost as a result of Respondent's refusal to hire him and that a
supplemental hearing be held to determine the amount of attorney's fees. On January 22, 1981, Respondent filed its Exceptions urging, alternatively, that the Commission either find that the Respondent did not engage in an unlawful practice or that the award of affirmative relief be modified. Intervenor filed its Exceptions on January 23, 1891, and urged several modifications to the Recommended Order, including (1) Awarding the Petitioner the value of fringe benefits that he lost as a result of Respondent's unlawful actions; and (2) Establishing the amount of attorney's fees based on the market value of the attorney's services.
Subsequently, Intervenor filed a Response to respondent's Exceptions and Respondent filed a Reply Brief. Intervenor also filed a Notice of Supplemental Authority bearing on the issue of attorney's fees and costs. Petitioner filed post-hearing evidentiary material showing that the Social Security Administration had determined that the Petitioner was ineligible for certain benefit payments.
A final hearing before this Commission was set for February 23, 1981.
Subsequently, upon the Respondent's motion, the hearing was continued and reset for March 23, 1981. Thereafter, due to the absence of a quorum of Commissioners, this cause was again continued and reset for April 24, 1981.
Respondent again moved to continue the hearing based on the fact that its attorney was out of the country unavailable until April 27, 1981. The hearing was again continued and reset for May 29, 1981. Thereafter, upon Petitioner's motion, asserting that he was involved in other pending matters requiring his presence outside the State of Florida, this cause was continued and rescheduled for June 19, 1981.
A public hearing to consider the Recommended Order, the exceptions, pleadings and oral arguments of the parties was held at Miami, Florida on June 19, 1981, before this Commission.
FINDINGS OF FACT & CONCLUSIONS OF LAW
Pursuant to Section 120.57(1)(b)(9), Florida Statutes, an agency shall not reject or modify a DOAH Hearing Officer's Findings of Fact unless it can determine, after a review of the complete record, that the findings were not based upon competent substantial evidence or that the proceedings did not comply with the essential requirement of law. Accordingly, having considered the complete record of the proceedings, including the transcript, recommended order, exceptions and oral arguments of the parties, and having been otherwise fully advised in the premises, the Commission finds that the hearing officer's findings of Fact and Conclusions of Law are supported by competent substantial evidence of record and are adopted in their entirety, except as modified hereinbelow, as the final action of this Commission.
MODIFICATIONS TO RECOMMENDED ORDER
The Hearing Officer erred in failing to award the Petitioner the value of lost fringe benefits which he would have received in Respondent's employ. There is sufficient evidence of record to support a finding that as result of Respondent's unlawful employment practice, Petitioner suffered an actual monetary loss in fringe benefits (Testimony of Petitioner; P.E. 9; R.E. 6 and 7). 1/ It was improper for the hearing officer to conclude that such benefits could not be awarded because of "qualify of the evidence" submitted at the evidentiary hearing. (R.O. 12). It is concluded that the hearing officer
should have awarded the benefits and then provided the parties with an opportunity to informally resolve the specifics as to the monetary value of the benefits. Failing an informal agreement, the controversy over the specific value of the benefits is properly an issue for resolution by this Commission upon entry of its final order. Pasco County School Bard v. PERC, 353 So. 2d 108, 126-27 (Fla. 1st DCA 1977).
The hearing officer's conclusion that the sum of $600 is a reasonable attorney's fee for the work done by Petitioner's attorney is rejected as being contrary to law and the facts of this case. Although Petitioner testified that he was obligated to pay his attorney $600 for his services in these proceedings, in determining a reasonable attorney's fee this Commission is not restricted to limiting an award to an amount a client has agreed to pay his or her attorney. Copeland v. Marshall, 23 FEP Cases 967 (D.C. cir. 1980); Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 7 FEP Cases 1 (5th Cir. 1974). It is our conclusion that the proper procedure to be followed in cases such as this is to preserve the issue of reasonable attorney's fees for proceedings supplemental to an agency hearing determining that Respondent has committed an unlawful employment practice. Pasco County School Board v. PERC, supra. In such supplemental proceedings, the parties will be given an opportunity to offer expert testimony, or other evidence, on the issue of the award of reasonable attorney's fees.
To award attorney's fees in the absence of evidence as to reasonableness is clearly erroneous. Feldman v. Feldman, 390 So. 2d 1231 (Fla. 3rd DCA 1980).
The portions of the exceptions of the parties not incorporated in this Order are deemed unnecessary, irrelevant or unwarranted in law or fact, and are hereby rejected.
Having considered all of the foregoing, it is therefore, ORDERED:
Respondent shall forthwith cease and desist from discriminatory denying or limiting Petitioner's employment opportunities;
Respondent shall take the following affirmative steps which will effectuate the purposes and policies of the Human Rights Act of 1977, as amended;
Offer Petitioner the next available program-analyst position at a salary and under conditions similar to that which he would have received in October 1978, but the Respondent's unlawful practice;
Pay Petitioner for lost wages and fringe benefits and reasonable attorney's fees. The Commission reserves jurisdiction over this matter to determine the manner of calculation and the amount of lost wages and benefits to be award Petitioner. The Commission further reserves jurisdiction over this matter to determine the reasonableness of attorney's fees to be awarded Petitioner.
To ensure that all relevant evidence and data are presented for consideration by the Commission on the matters outline in 2(b) above, the following procedures will govern the award proceedings:
Petitioner's attorney shall provide affidavits and supporting evidence regarding the following items:
Calculations of the amount Petitioner would have earned in the position of program-analyst brought forward from he date of Respondent's failure to hire to and including June 19, 1981.
Calculations of the amount of any lost fringe benefits, such as pension, sick leave, and the interest on the lost earnings.
All calculations computed in accordance with these directions shall reflect legal deductions for social security and federal income tax withholding.
Provide evidence of Petitioner's actual interim earnings for the period commending with the date of Respondent's failure to hire him to and including June 19, 1981. This data should be shown by verified copies of Petitioner's pay records, federal income tax records or records from Petitioner's employer.
Provide affidavits detailing the attorney's time expended in preparation and trial of this case and supporting affidavits from other attorneys who practice employment law, as to the reasonableness of an award of attorney's fees in this proceeding.
Copies of all such documents referred to in paragraphs (1) through (5) above, shall be served upon Respondent's attorney, attorney for Intervenor and the Clerk of the Commission within twenty-one (21) days from he date that this Order is filed with the Commission Clerk.
Within ten (10) days of a request by Petitioner, Respondent shall provide Petitioner with relevant information necessary to prepare the foregoing documents, including: date concerning the salary that Petitioner would have been paid and the fringe benefits that Petitioner would have received or would have been entitled to in Respondent's employ.
Counsel for Respondent shall prepare her response to the matters listed in subparagraph (a) above, within ten (10) days of service of said documents upon her.
Following services of Respondent's response, the parties shall have ten (10) working days in which to negotiate a proposed settlement as to the amount of lost wages, lost benefits and reasonable attorney's fees. If at the end of this negotiation period the parties have reached a proposed settlement then the parties shall prepare and submit a Joint Stipulation of Settlement for consideration by the Commission.
If the parties are unable to reach a negotiate settlement, then Petitioner shall immediately file a Notice of Failure of Settlement with the clerk of the Commission requesting that an evidentiary hearing be set on the issues of warding affirmative relief and reasonable attorney's fees.
It is so Ordered this 11 day of August, 1981.
FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
By: Reese Marshal
Commission Chairperson Commissioner Melvin L. Levitt Commissioner Elvira M. Dopico Commissioner Robert Joyce Commissioner Melvin L. Levitt Commissioner Thomas H. Poole Sr.
Commissioner Robert Billingslea and Commissioner Robert Simms dissent, finding that the evidence of record does not support a finding of an unlawful employment practice.
FILED this 13th day of August, 1981, at Tallahassee, Florida.
AURORA T. PASCUAL
Clerk of the Commission
1/ References to the Hearing Officer's Recommended Order will be referred to as "R.O. ." Petitioner's and Respondent's exhibits will be referred to as "P.E. " and "R.E. ", respectively.
Copies Furnished:
Robert C. Benson, Esq., Attorney for Petitioner, (C.M. #476540) Paula L. Paster, Esq., Attorney for Respondent, (C.M. #476541) Aurelio Durana, Esq., Attorney for Intervenor, Executive Director Harry L. Lamb, Jr., Esq., Legal Advisor for the Commission
Commissioners
| Issue Date | Proceedings |
|---|---|
| Aug. 20, 1981 | Final Order filed. |
| Dec. 31, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 11, 1981 | Agency Final Order | |
| Dec. 31, 1980 | Recommended Order | Respondent did not employ Petitioner because of handicap. Recommend Respondent pay lost wages and attorney fees and employ Petitioner. |
