STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT P. MORROW, )
)
Petitioner, )
)
vs. ) CASE NO. 84-1840
)
DUVAL COUNTY SCHOOL BOARD, )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was given and a formal Section 120.57(1), Florida Statutes, hearing was held in Jacksonville, Florida, on August 20, 1984. Charles C. Adams was the Hearing Officer. This Recommended Order is being entered following the receipt and review of proposed recommended orders which were filed with the Division of Administrative Hearings on October 30, 1984. Consideration has been given to those proposals and they have been used to some extent. They are otherwise rejected as being contrary to facts found, for lack of relevancy or materiality.
APPEARANCES
For Petitioner: Robert P. Morrow, Jr., Esquire
Post Office Box 2760
Winston-Salem, North Carolina 27102
For Respondent: Gary E. Eckstine, Esquire
Chief Administrative Hearing Section 1300 City Hall
Jacksonville, Florida 32202
ISSUES
The issues concern the claim by the Petitioner to relief for alleged age discrimination. See Section 760.10, Florida Statutes. In particular, it is alleged that the Respondent dismissed the Petitioner from employment with the Duval County School Board based solely upon his age, in violation of the aforementioned statute. There is presented the collateral issue, which is the claim by the Respondent that this dismissal based upon age was authorized by Section 231.031, Florida Statutes.
FINDINGS OF FACT
This cause is presented through the petition for relief from an alleged unlawful employment practice which the Petitioner filed with the Florida Human Relations Commission. The service date of that petition was May 9, 1984. Duval County School Board, Duval County, Florida, was the named respondent. Through the petition document Petitioner claims that the Respondent committed an unlawful employment practice by forcing the Petitioner to take an involuntary retirement due to his age. There being no successful informal resolution of this dispute, the matter was referred to the Division of Administrative Hearings for a formal Section 120.57(1), Florida Statutes, hearing, which was held on August 20, 1984.
The petition is brought under the authority of Chapter 760, Florida Statutes, formerly Chapter 23, Florida Statutes. Petitioner is an individual within the meaning of Section 760.02(5) and .10(1), Florida Statutes. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes.
Petitioner, Robert P. Morrow, was continuously employed as a teacher by Respondent, Duval County School Board, from September, 1962, through June, 1983. During his employment he held tenured status or continuing contract status through the close of the 1981-1982 school year. The balance of the time in which he served as a teacher in the system was in the capacity of an employee on an annual contract basis. This latter arrangement pertains to the school year 1982-1983.
Petitioner celebrated his seventieth birthday on September 26, 1981, which was shortly after the beginning of the 1981-1982 school year. In early 1982 Petitioner received a memorandum from Dalton D. Epting, Director of Certificated Personnel of the Duval County Schools, indicating that in view of the fact that the Petitioner would reach 70 years of age within the school year, and in keeping with Section 231.031, Florida Statutes, Petitioner should request an appointment with his principal, one Ronel J. Poppell. Epting had prepared the memorandum based upon information he had been given indicating that the Petitioner would reach 70 years of age within the 1981-1982 school year. In keeping with the suggestion of the memorandum from Epting, Petitioner spoke with Principal Poppell and in that conversation indicated a desire to teach for another year or two beyond the 1981-1982 school year. Poppell spoke to Epting and was reminded of the existence of Section 231.031, Florida Statutes, pertaining to teachers who have obtained 70 years of age. Epting did not advise Poppell on the question of whether to retain the Petitioner as a teacher in the Duval County high school where Poppell served as principal and Petitioner acted as a teacher. Out of the conversation between the Petitioner and Poppell, Poppell determined to allow the Petitioner to remain as a teacher at the subject school for one more year, i.e., the school year 1982-1983. As alluded to before, this arrangement was consummated and Petitioner served as a teacher at Nathan Bedford Forrest Senior High School in the school year 1982-1983 based upon an annual contract arrangement, as opposed to continuing contract. While Section 231.031, Florida Statutes, refers to the superintendent making the decision for retention, in fact Poppel caused the retention of Petitioner in the school year 1982-1983. The effects of such retention were to cause another teacher to be "surplused" who had been involved in the overall program at the school. This arrangement lasted for the 1982-1983 school year. Generally speaking Herb A. Sang, Superintendent of Schools in Duval County, Florida, makes the decision on the question of retention of 70year-old teachers based upon the recommendation of the principal and other school board staff members. Normally,
according to Sang, a teacher who has reached 70 years of age would be retired as provided by Section 231.031, Florida Statute. If retained, per Sang, that retention is based upon the needs of the school system and not the record of achievement of the individual teacher in question. In application, teachers who are 70 years old will not be retained unless there is a specific need within the school system for services which they can provide, i.e., a specialty which cannot be filled by teachers under 70 years of age or for reasons of continuity of student projects in which the teacher is involved over more than one school year.
On March 3, 1983, Principal Poppell completed an annual evaluation of the Petitioner's performance and on that occasion, as had been the case in all evaluations made of the Petitioner as an employee of the Duval County School System, Petitioner was found to be a satisfactory teacher, the highest possible rating that could have been given. Nonetheless, Poppell noted in the evaluation form that the Petitioner would not be recommended for an extension of his annual contract based upon Section 231.031, Florida Statutes. This opinion was expressed in a March 4, 1983, letter from Poppell to the Petitioner in which it was indicated that Poppell would not recommend that Superintendent Sang renew the annual contract of the Petitioner. In that correspondence Poppell indicated that he felt no further obligation to the Petitioner reference extension of his contract beyond 1982-1983, which extension was based upon Poppell's understanding of the discussion with the Petitioner in 1981-1982 in which the Petitioner had indicated that he would wish to teach for another year or two.
In furtherance of Poppell's suggestion, Petitioner was not renewed as a teacher in Duval County and that decision was reached based upon the fact that the Petitioner was over 70 years old. No attempt was made to compare the relative merits of the Petitioner's performance with that of persons younger than 70 years of age, in deciding who to employ on annual employment as teachers for the school year 1983-1984.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57, Florida Statutes.
The determination of the outcome of this case turns on the interpretation of Section 231.031, Florida Statutes, which states:
231.031 Maximum age for continued employment of instructional personnel. Notwithstanding the provisions of s. 112.044, no person shall he entitled to continued employment in any instructional capacity in the public schools of this state after the close of the school year following the date on which he attains 70 years of age; however, upon recommendation of the superintendent, the person may be
continued in employment beyond such date, subject to annual reappointment in the manner prescribed by law. Nothing contained herein shall apply to employment limited to substitute and parttime teaching.
This section has two features. The first pertains to the automatic revision of tenured or continuing contract employees to the status of an annual contract employees. This reduction in status from a tenured employee to a non-tenured employee is excepted from the general prohibition against age discrimination as set forth in Section 112.044, Florida Statutes. Part two deals with the matter of annual employment. When determining the question of retention as an annual contract teacher, the decision by the school board is a product of the recommendation of the superintendent, and it must be reached "in the manner prescribed by law." This prescription of law includes a realization of the existence of Section 760.10(1)(a) Florida Statutes, which makes it an unlawful employment practice for an employer to discharge or otherwise to discriminate against an individual with respect to terms or conditions of employment because of age. In effect, in making the decision to retain or not retain a person who has arrived at the age of 70 years on an annual contract basis, beyond the school year in which the employee reached 70 years, the 70-year-old employee may not be discarded as an employee premised upon the fact of having attained three score and ten. When the decision is made solely on the basis of age, it is an unlawful employment practice within the meaning of Section 760.10(1) (a), Florida Statutes.
While the administration of the Duval County School System professes to make the decisions of the retention of 70-year-old teachers on the basis of the needs of the school system, the effect, on this occasion, is one of forcing mandatory retirement or dismissal based solely on the fact of age, prompted by the mistaken belief that the board through recommendation of the superintendent has the absolute discretion to dismiss the elderly teacher without regard for Section 760.10 (1)(a), Florida Statutes. In essence, the administration within the Duval County School System holds to the opinion that persons who have attained the age of 70 years old need not be retained on an annual contract basis in the succeeding school year beyond their seventieth birthday and would not normally be retained, retention being solely within the discretion of the superintendent based upon the demands or needs of the school system. Put another way, the interpretation would allow discrimination against a teacher because of age; however, that discrimination could be set aside based upon the willingness of the superintendent to employ that teacher if needs dictated such an arrangement. In this case, age was the sole basis for refusing to grant the Petitioner another annual contract. This decision was inappropriate and resulted in an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes. Properly, in making the decision of choosing between 70-year-old teachers and those younger than that age,in an annual contract circumstance, the decision must be made for reasons other than age.
As a consequence of the unlawful employment practice, the Petitioner is entitled to back pay and benefits in the succeeding period beyond the school year 1982-1983 and to be fairly compared to other teachers under 70 who might be considered for annual employment in the next full school year which follows the entry of the order in final disposition in this matter. Petitioner is not entitled to the recognition and rights associated with tenure beyond the 1981- 1982 school year. In addition, Petitioner is entitled to reasonable attorney's fees and costs.
Petitioner had submitted Exhibits 2 through 6 related to legislative committee tapes and comments pertaining to Chapters 231 and 760, Florida Statutes. It has not been found necessary to refer to these materials to reach an interpretation of the meaning of Sections 231.031 and 760.10, Florida Statutes. Therefore, those exhibits are denied admission.
Upon consideration of the facts found and conclusions of law reached, it is,
That a Final Order be entered which finds in favor of the Petitioner and awards back wages and benefits for the succeeding period beyond the school year 1982-1983, on an annual contract basis, up through the school year in progress, together with reasonable attorney's fees and costs, and that requires the Duval County School Board to evaluate Petitioner's request to be maintained on an annual contract basis for the next full school year, without referring to his age.
DONE AND ORDERED this 21st day of November, 1984, at Tallahassee, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1984.
COPIES FURNISHED:
Robert P. Morrow, Jr., Esquire Post Office Box 2760
Winston-Salem, North Carolina 27102
Gary E. Eckstine, Esquire
Chief Administrative Hearing Section City of Jacksonville
1300 City Hall
Jacksonville, Florida 32202
Donald A. Griffin, Executive Director Florida Commission on Human Relations
325 Knox Road Building F, Suite 240
Tallahassee, Florida 32303
Suzanne Oltman, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Aurelio Durana, General Counsel Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
================================================================= SUPPLEMENT TO RECOMMENDED ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT P. MORROW, )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 84-1840
) FCHR CASE NO. 83-1816
DUVAL COUNTY SCHOOL BOARD, )
)
Respondent. )
)
SUPPLEMENT TO
RECOMMENDED ORDER
On April 9, 1985, the Florida Commission on Human Relations entered a final order finding that the Petitioner had been discriminated against by the Respondent within the meaning of the Human Rights Act of 1977, as amended, Sections 760.01-.10, Florida Statutes. In this decision the Commission found that the Petitioner was entitled to back wages and benefits, and attorney's fees and costs associated with the prosecution of this action. The case was remanded to the Division of Administrative Hearings for the taking of evidence in the matter or attorney's fees and costs and consideration of the amount, if any, of retirement benefits which should be reimbursed to the State of Florida, Department of Administration, Division of Retirement or offset from the back pay award based upon the fact that the Petitioner had received retirement benefits pending the outcome of the discrimination case and prior to reinstatement with the Duval County School Board. This latter item was in recognition of the fact that the Petitioner arguably was not entitled to receipt of retirement benefits and salary associated with active employment with the Duval County School Board.
In furtherance of this order of remand, upon consultation with counsel for the parties, a final hearing date was scheduled for November 22, 1985, to consider those items contemplated by the remand. The hearing was conducted on that date. In addition, the parties, through a stipulation, have presented the remarks of Ruth B. Sansom, Chief, Bureau of Retirement Calculations, Division of Retirement. Finally, counsel for the parties have offered memoranda in argument concerning the topics being considered in the remand.
FINDINGS OF FACT
Retirement Benefits/Offset
When Respondent dismissed the Petitioner from his employment as a teacher in the Duval County School System, Petitioner found it necessary to file for retirement with the Florida State Retirement System. Effective July 1, 1983, the Petitioner began to draw his retirement benefits. In the fiscal year July 1, 1983, through June 30, 1984, the benefits were at $483.30 per month, In the period July 1, 1984, through June 30, 1985, the amount increased to $496.32 per month. Finally, in the period July 1, 1985, through the present the amount of payment was $511.21. Effective June 30, 1985, the Petitioner had been paid
$11,755.44.
In arriving at the amount of monthly retirement benefits that the Petitioner would be paid, the five school years in which the Petitioner was paid at the highest rate of compensation formed the basis of retirement calculations.
Those school years and the | amount | of compensation are as follows: |
SCHOOL YEAR | COMPENSATION | |
1981-1982 | $23,608,97 | |
1982-1983 | 23,378.01 | |
1980-1981 | 21,794.35 | |
1979-1980 | 18,150.26 | |
1977-1978 | 17,224.20 |
The order of remand suggests the possibility that the Respondent not be required to pay the Petitioner the full amount of back wages in the period July 1, 1983, through June 30, 1985, in that Petitioner has already received income attributable to his service as a teacher, to wit $11,755.44. Therefore, if the Petitioner is not entitled to reimburse the Division of Retirement and gain recalculation of his retirement benefits based upon a later application for retirement benefits, the question is raised whether the Respondent can pay the Petitioner the difference between the $11,755.44 and the amount of compensation that he would have been entitled to had he been actively employed as a teacher in the Duval County School System. It would appear that the idea of offset is the only arguable alternative, in that the Division of Retirement does not intend to accept a reimbursement or repayment of the funds dispersed to the Petitioner as retirement benefits. Nor does the Division of Retirement intend to recalculate Petitioner's retirement benefits through his efforts to rescind his retirement and reapply for retirement benefits at some future date. This is borne out by the factual stipulation of counsel following their discussion of those matters with Ruth B. Sansom, Chief, Bureau of Retirement Calculations, Division of Retirement. This factual stipulation includes reference to the calculation of benefits as to school years involved in the determination of benefits which have been reported before. The factual stipulation also includes the following:
Upon Petitioner being reinstated to employment with Respondent pursuant to an order by the Florida Commission on Human Relations, or upon an order by any other agency, commission, or court of law, the Department of Administration, Division of Retirement:
Would not accept payment of any sum
offset from an award made to Petitoner
to compensate Petitioner for unpaid salary; where the sum offset equalled or approximated the retirement benefits paid to Petitioner by the Division of Retirement
during the period in which Petitioner's salary from Respondent was not paid (hereinafter referred to as "Offset Sum");
and
Would not recalculate the amount of the payment of the Petitioner's
future retirement benefits upon
either (i) Petitioner's reemployment with Respondent or (ii) upon tender of payment of the Offset Sum.
The Division of Retirement has no claim upon, nor will seek reimbursement from Petitioner for, the payment of retirement benefits during the period in which Petitioner's salary was not paid by Respondent.
There is no maximum cap upon the amount of retirement benefits, so long as additional service credits (earned by working additional years while a participant in the Florida State Retirement System) are added, then the retirement benefits paid would be higher.
For Petitioner, each year of service credit earned from July 1st to June 30th of any given year is worth 1.68 percent of Petitioner's five year average compensation.
Petitioner's five year average compensation, which is based on the five highest paid years of his service career is $20,831.16;
Petitioner has been placed in a difficult position given the fact that the Division of Retirement would not accept a reimbursement of the retirement benefits and will not recalculate Petitioner's future retirement benefits utilizing five base years for calculation which might render, and likely would render, a greater amount of monthly benefit, should Petitioner withdraw his present request for retirement benefits and apply again on a later date. The potentiality of increased benefits is based upon the fact that the five base years used in determining benefits would likely relate to an annual compensation which is greater than the five base years that have been used in calculating Petitioner's present retirement benefits. Obviously, the exact amount of increase in his monthly benefits cannot be described in that it is not known when the Petitioner would intend to retire if allowed to withdraw his request for retirement and to reapply at a future date. Moreover, it is uncertain what the basis for calculation of retirement benefits would be in terms of the description of the five base years, in that some of those years may not have transpired. Given these uncertainties, it is hard to promote a reduction in offset which the Petitioner feels should be required, given what Petitioner deemed to be a forced retirement occasioned by Respondent's unlawful act of dismissing the Petitioner as an employee of the school board.
With the uncertainty of Petitioner's intentions in seeking further employment with the Respondent in succeeding years and the inability to project the five year basis for determining theoretical retirement benefits which would represent the difference in present payments to the Petitioner from the Division of Retirement and those that he would be entitled to at some future date of retirement, Respondent believes that the full amount of offset in the questioned period, that is to say $11,755.44, should be employed. By contrast, Petitioner's suggestion is to reduce the amount of offset by half. This, according to the Petitioner, is a way to avoid the unfairness in adjustments to his back pay award based upon an offset against his retirement benefits without regard for his personal contribution to the pension plan. While it is conceded that Respondent should not be allowed to place designs on his contribution to the pension fund, and it is further acknowledged that Petitioner finds himself in this quandary due to the action of the Respondent in dismissing the Petitioner without justification, this does not lead to the conclusion that it would be appropriate to reduce the amount of offset by fifty per cent. On the other hand, in pursuing the line of argument set forth by the Respondent's counsel in which he indicates that an aggrieved party should not be placed in a financial position better than than enjoyed had the wrong not occurred, the full amount of offset of $11,755.44 would not be appropriate. In this instance, a middle ground is chosen, and it is suggested that the amount of offset of
$11,755.44 be reduced by 25 per cent. This would make the amount of offset
$8,516.56.
Attorney's Fees
Counsel for Petitioner has set forth through a petition, claims for attorney's fees. That claim includes work done by the Petitioner's principal counsel and attorney's fees associated with work done by The Law Source, Inc. of Gainesville, Florida.
In responding to the request for attorney's fees, Respondent does not take issue with the fact that Petitioner's principal counsel spent 48 hours in the preparation and presentation of the case. Questions are raised about the claim for attorney's fees as it pertains to 2.5 hours of time spent in telephone conversations with staff of the Florida Commission on Human Relations as described in Items 2, 3, 4, 5, 6, 7, 8, 11 and 13 of the petition. Further opposition is stated to the propriety of the claim for attorney's fees, 1.8 hours spent in the preparation of various subpoenas and notices as set forth in Items 19, 20, 21 and 43.
The principal objection of the Respondent to the grant of attorney's fees is based upon the assertion that insufficient proof has been shown as to the appropriate hourly rate to be awarded counsel to the Petitioner. In this connection, citation is made to the case of Florida Patients' Compensation Fund
Rowe, 472 So.2d 1145 (Fla. 1985). By that case the Florida Supreme Court has adopted the federal "lodestar" approach to determination of attorney's fees. That holding has application in this instance. In that case, the court made the following finding:
The party who seeks the fees carries the burden of establishing the prevailing `market rate,' i.e., the rate charged in that commu- nity by lawyers of reasonably comparable skill, experience and reputation, for similar services. At page 1151.
This holding is in furtherance of the statement of criteria identified by the court in considering the issue of fees, those criteria being:
The time and labor required, the novelty and difficulty of the question involved,
and the skill requisite to perform the legal service properly.
The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
The fee customarily charged in the locality for similar legal services.
The amount involved and the results obtained.
The time limitations imposed by the client or by the circumstances.
The nature and length of the profes- sional relationship with the client.
The experience, reputation, and ability of the lawyer or lawyers performing the services.
Whether the fee is fixed or contingent. At page 1150.
Petitioner has not maintained his burden as to attorney's fees, either those associated with his principal counsel, Mr. Morrow, or his associate counsel, The Law Source, Inc. No indication is given in the proof in the cause as to the fee customarily charged in the locality for similar legal services, especially as it would related to the experience, reputation and ability of the lawyer or lawyers involved in the performance of these services. No one has investigated the propriety of those proposed fee charges by review of the attorney's file or other material. Consequently, there has been no presentation of affidavits or appearance at, hearing by other counsel to state an opinion as to the appropriate fee as envisioned by the aforementioned criteria. Those criteria are set forth in the Disciplinary Rule 2-106(b) of the Florida Bar Code of Professional Responsibility. Nor can a basis be found in this record for the hearing officer to set a fee, in that there is no evidence presented from some source other than third party counsel on the question of an appropriate hourly charge. In the absence of any evidence to sustain the claim for attorney's fees, either those attributable to Petitioner's lead counsel, Mr. Morrow, or to The Law Source, Inc., no fee amounts have been established and none can be awarded. This is an unfortunate outcome, but the hearing officer is not in a position to substitute his judgment for essential proof. This is not a circumstance in which some form of official recognition may be substituted for proof in identifying an appropriate hourly rate.
Costs
In portraying the costs associated with this case, Petitioner has set forth a number of categories of cost items. Those costs total $2,739.90. Of those costs, Respondent takes issue with the charge for depositions for the witnesses Ronel J. Poppell and Dalton D. Epting as described in Item 8. Respondent does not believe that these depositions were necessary and argues that in keeping with the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions Item No. 1(E), no showing has been made that the taking of the depositions of Poppell and Epting were necessary. Further, it is argued that
the Petitioner has failed to show that any expedited service was necessary in the preparation of the depositions. The deposition costs includes use of a deposition related to Herb A. Sang which was introduced at hearing. However, Respondent identified the fact that the three depositions were the subject of one billing statement from the reporting service. Consequently, it is unclear what portion of that deposition cost can be attributable to the Sang deposition introduced at hearing and which portion relates to discovery depositions of Poppell and Epting. Respondent acquiesces in the taxing of $148.78, representative of 25 per cent of the total cost of the transcript original and copy, together with $40 attendance charges. Having considered these matters, the cost of the overall depositions for these three witnesses and the court reporter fee for attendance are found to be reasonable cost items and should be reimbursed.
Respondent takes issue with the charge of $927 in travel costs from Winston-Salem, North Carolina to Jacksonville and Tallahassee, Florida, and per diem as depicted in Items 10, 12 and 15 to the statement of cost. Citation is made to the case of Plante vs. Canal Authority, 218 So.2d 243 (Fla. 1st DCA 1969). That case establishes that the matter of the possible unavailability of local counsel to represent the Petitioner in a cause such as this may be considered in examining a claim for reimbursement of costs. This speaks to the issue of whether it is appropriate for the Petitioner to claim certain reimbursement expenses attributable to the fact that counsel from another state has been employed, when counsel from the locality in which the cause of action occurred could have been utilized. After reviewing those cost items set forth at Items 10, 12 and 15, those costs associated with travel, namely $192 for automobile mileage, $438 for air fare and $165 for train fare are not deemed to be appropriate cost items. The per diem claims are accepted.
Respondent takes issue with the claim for reimbursement of costs associated with the preparation of tapes of legislative deliberations, $214.37 in amount, found as Items 11 and 16. Those items were presented as evidence in the course of the hearing and were disallowed admission. Therefore they are not an acceptable item of cost.
Respondent questioned Item 13, the $135 estimate of witness fee for Ruth B. Sansom. Given the ability of the parties to obtain the information that Ms. Sansom had to offer without her appearance at hearing, this item of cost is rejected.
Respondent concedes that the remaining costs set forth are appropriate.
In view of the findings made in this supplement to the original Recommended Order, it is,
RECOMMENDED:
That within the operative period of July 1, 1983, through June 30, 1985, the amount of compensation which the Respondent was required to pay the Petitioner be reduced by $8,816.56 as an offset based upon retirement benefits which he had received.
That the Petitioner not be awarded any attorney's fees.
That Respondent pay Petitioner $1,730.53 for costs.
DONE AND ENTERED this 21st day of March, 1986, at Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1986.
COPIES FURNISHED:
Robert P. Morrow, Jr., Esquire Post Office Box 2760
Winston-Salem, North Carolina 27102
Gary E. Eckstine, Esquire
Chief, Administrative Hearings Section 1300 City Hall
Jacksonville, Florida 32202
Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F, Suite 240
325 John Knox Road Tallahassee, Florida 32303
Dana Baird, Esquire General Counsel
Florida Commission on Human Relations Building F, Suite 240
325 John Knox Road Tallahassee, Florida 32303
Ms. Betsy Howard, Clerk
Florida Commission on Human Relations Building F, Suite 240
325 John Knox Road Tallahassee, Florida 32303
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
ROBERT P. MORROW,
Petitioner,
FCHR CASE NO. 83-1816
vs. DOAH CASE NO. 84-1840
FCHR ORDER NO. 85-0014
DUVAL COUNTY SCHOOL BOARD,
Respondent.
/
ORDER FINDING UNLAWFUL EMPLOYMENT PRACTICE AND
AWARDING AFFIRMATIVE RELIEF
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner Melvin L. Levitt, Panel Chairperson;
Commissioner Robert L. Billingslea; and Commissioner Elena M. Plom.
Appearances
For Petitioner Robert P. Morrow:
Robert P. Morrow, Jr., Esquire Post Office Box 2760
Winston-Salem, North Carolina 27102 For Respondent Duval County School Board:
Gary E. Eckstine, Esquire
Chief, Administrative Hearings Section 1300 City Hall
Jacksonville, Florida 32202
Preliminary Matters
Robert P. Morrow, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-.10, Florida Statutes (1983) 1/ , alleging that the Duval County School Board, Respondent herein, unlawfully discriminated against Petitioner on the basis of his age, by failing to renew his teaching contract.
In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On December 30, 1983, the Executive Director issued his Determination finding reasonable cause to believe that an unlawful employment practice had occurred in violation of the Human Rights Act of 1977. Efforts to conciliate the dispute were unsuccessful and on March 29, 1983, the Petitioner filed a Petition for Relief from an Unlawful Employment Practice.
The petition was referred to the Division of Administrative Hearings for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on August 20, 1984, in Jacksonville, Florida, before Charles
Adams, Division of Administrative Hearings Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on November 21, 1984.
Respondent filed Exceptions to the Recommended Order and moved for oral argument.
Pursuant to notice, oral argument was held on January 17, 1985, in Tallahassee, Florida, before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the respective parties, the Panel conducted its deliberation the matter and determined the action to be taken on the petition.
Rulings on Exceptions
In Paragraph 1 of Respondent's Exceptions to Recommended Order, Respondent contends that the Hearing Officer erred:
In finding that Principal Ron Poppel "caused the retention of Petitioner in the school year 1982-1983" rather than Superintendent Herb A. Sang. The clear and uncontradicted testimony of both Mr. Popel and Mr. Sang is that the aforesaid decision was made by Mr. Sang on the basis of the recommendation of Mr. Poppel.
The Hearing Officer's finding and Respondent's exception are not inconsistent. There is competent substantial evidence in the record to support the analogous Hearing Officer's finding that Principal Ron Poppel "caused the retention of Petitioner in the school year 1982-1983" [e.s.] and, therefore, the Hearing Officer's finding will not be disturbed.
In Paragraphs 2 and 3 of Respondent's Exceptions to Recommended Order, Respondent contends that the Hearing Officer erred:
In ignoring the plain language of Section 231.031, Florida Statutes, that "no person shall be entitled to continued employment in any instructional capacity in the public schools of this state after the close of the school year following the date he attains 70 years of age."
And,
In holding that the provision of Section 321.031, Florida Statutes, which requires that teachers be appointed "in the manner prescribed by law" means that the Superintendent cannot refuse to reappoint a teacher solely on the basis of age. The phrase "in the manner prescribed by law" means only that the Superintendent must comply with the requirements of Section 230.33(7)(a), Florida Statutes, that he recommend employment of instructional personnel to the School Board in writing.
Section 231.031, Florida Statutes, provides:
Notwithstanding the provisions of s.112.044, no person shall be entitled to continued employment in any instructional capacity in the public schools of this state after the close of the school year following the
date on which he attains 70 years of age; however, upon recommendation of the superintendent, the person may be continued in employment beyond such date, subject to
annual reappointment in the manner prescribed by law. Nothing contained herein shall apply to employment limited to substitute and part- time teaching.
The Hearing Officer interpreted the above-quoted statutory provision as follows:
This section has two features. The first pertains to the automatic revision of tenured or continuing contract employees to the status of annual contract employees. This reduction in status from a tenured employee to a nontenured employee is excepted from the general prohibition against age discrimination as set forth in Section 112.044, Florida Statutes. Part two deals with the manner of annual employment. When determining the question of retention as an annual contract teacher, the decision by the school board is is a product of the recommendation of the superintendent, and it must be reached "in the manner prescribed by law." This prescription of law includes a realization of the existence of Section 760.10(1)(a), Florida Statutes, which makes it an unlawful employment practice for an employer to discharge or otherwise to discriminate against an individual with respect to terms or conditions of employment because of age. In effect, in making the decision to retain or not retain a person
who has arrived at the age of 70 years on an annual contract basis, beyond the school year
in which the employee reached 70 years, the 70-year-old employee may not be discarded as an employee based upon the fact of having attained three score and ten. When the decision is made solely on the basis of age, it is an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes.
We agree with the Hearing Officer's interpretation and thus reject Respondent's exceptions. Section 231.031, Florida Statutes, is not a mandatory retirement statute. Petitioner, as well as other instructional personnel, were employed by Respondent in school years following the dates they attained 70 years of age. The purpose of the legislature, therefore, in enacting this provision was to reduce such individual's status from a tenured employee to a nontenured employee.
This Panel agrees with the Hearing Officer's interpretation that the phrase "in the manner prescribed by law" includes a realization of the existence of Section 760.10(1)(a), Florida Statutes. It is a recognized principle of statutory construction that the "legislature is presumed to know the law in passing statutes and consequently the legislation is to be construed upon the premise that the particular statute in question is to be applied relative to other statutes affecting the same subject matter." Inciarrano v. State, 447 So.2d 386, 389 (Fla. 4th DCA 1984). In this case, Section 231.031, Florida Statutes, can be harmonized with Section 760.10, Florida Statutes, by reading the first clause of Section 231.031, Florida Statutes, as an automatic reversion of tenured teachers who attain the age of 70 to annual contract employees and by reading the second clause of Section 231.031 as prescribing the manner for annual reappointment.
Nothing contained in Section 231.031, Florida Statutes, indicates any legislative intent that the annual reappointment decisions respecting teachers who have attained the age of 70 may be based solely on those teachers' ages contrary to the Human Rights Act of 1977. The statute rather provides that such reappointment decisions must be made "in the manner prescribed by law."
Unlike Section 231.031, Florida Statutes, the Human Rights Act of 1977 provides express legislative intent of its purpose:
The general purposes of ss.760.01-760.10 are to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state
against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.
Sections 760.01-760.10 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and
the special purposes of the particular provision involved.
Section 760.01(2) and (3), Fla. Stat. (1983).
Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual with respect to terms or conditions of employment because of such individual's age. The only two exceptions to this general prohibition are when age is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related, and when the age-based action or inaction is pursuant to law or regulation governing any employment or training program designed to benefit persons of a particular age group. Sections 760.10(8)(a) and (c), Fla. Stat. (1983).
Under the facts presented in the instant case, Respondent cannot establish that age is a bond fide occupational qualification since it employs teachers beyond the age of 70. Similarly, Respondent cannot establish an exception pursuant to law governing employment since the law is not designed to benefit the affected persons.
In Paragraph 4 of Respondent's Exceptions To Recommended Order, Respondent contends that the Hearing Officer erred:
In requiring Respondent to extend procedural rights to Petitioner equal or greater than
those which would be extended to tenured teacher under the provisions of the Duval County
Teacher Tenure Act, contrary to the plain language of Section 231.031, Florida Statutes.
The procedures afforded Petitioner under the Human Rights Act of 1977 are no more than those afforded to any other individual covered under the Act.
Pursuant to Section 760.10, Florida Statutes, Petitioner is entitled to have employment decisions affecting him be based upon nondiscriminatory criteria. Except for this prohibition, Respondent is free to make its decisions in whatever manner it chooses,
FINDINGS OF FACT
Having considered the Recommended Order, Respondent's Exceptions thereto, the record of the proceeding and oral arguments of counsel for the respective parties, the Panel finds that the Hearing Officer's findings of fact are supported by competent substantial evidence. The Hearing Officer's findings of fact are hereby adopted.
CONCLUSIONS OF LAW
The Hearing's conclusions of law, based upon the aforementioned findings, are a correct application of law. The Hearing Officer's conclusions of law are hereby adopted.
REMEDY
Further, in accordance with the recommendation of the Hearing Officer, the Panel orders the Duval County School Board to:
Cease and desist from discharging its employees solely because of age.
Evaluate Robert P. Morrow's request to be maintained on an annual contract basis for the next full school year, without referring to his age.
Pay Robert P. Morrow back wages and benefits for the succeeding period beyond the school year 1982-83, on an annual contract basis, up through the school year 1984-1985, together with reasonable attorney's fees and costs.
The Commission reserves jurisdiction over the issues of the amount of back wages and benefits and attorney's fees and costs.
Upon representation of Petitioner's counsel that the Hearing Officer had retained jurisdiction over the issue of the amount of attorney fees, the Commission temporarily relinquishes jurisdiction to the Hearing Officer to take evidence on the amount of attorney's fees and costs. In addition, the Commission directs the Hearing Officer to take evidence on the amount, if any, of retirement benefits which should be paid back to the Department of Administration, Division of Retirement or offset from the back pay award.
While this Panel is hesitant to remand any portion of a case back to the Hearing Officer once the Recommended Order is issued, we believe that such remand is authorized 2./ and further that the amount of the award cannot be fairly determined without further evidentiary proceedings.
It is so ORDERED this 9th day of April, 1985. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
By: Commissioner Robert L.
Billingslea Commissioner Elena M. Flom
Commissioner Melvin L. Levitt dissents.
FILED this 9th day of April, 1985, at Tallahassee, Florida.
ENDNOTES
1/ Unless otherwise indicated, all Statutory references are to Florida Statutes (1983), and all rule references are to the Florida Administrative Code.
2/ Rathman v. Pacesetter Industries, 452 So.2d 1091 (Fla. 4th DCA 1984).
COPIES FURNISHED:
Robert P. Morrow, Jr., Attorney for Petitioner (C. M. #P579391391)
Gary E. Eckstein, Attorney for Respondent (C. M. #P59391392)
Aurelio Durana, Panel Legal Advisor. Administrator of Field Services.
Honorable Charles C. Adams, DOAH Hearing Officer.
| Issue Date | Proceedings |
|---|---|
| Nov. 21, 1984 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 29, 1985 | Agency Final Order | |
| Nov. 21, 1984 | Recommended Order | Petitioner should be reinstated with back pay and attorney fees for prior school year and one in progress as annual contract teacher regardless of age. |
SCHOOL BOARD OF MADISON COUNTY vs. GLOVER E. JONES, 84-001840 (1984)
EDUCATION PRACTICES COMMISSION vs. ROBERT J. BROWNE, 84-001840 (1984)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs EUNICE JOHNSON, 84-001840 (1984)
BROWARD COUNTY SCHOOL BOARD vs ROBERT KONNOVITCH, 84-001840 (1984)
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs CLARENCE BRANCHEAU, 84-001840 (1984)
