STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD C. FERRARO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2498

) METRO DADE COUNTY CORRECTIONS ) AND REHABILITATION DEPARTMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 12, 1992, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roger J. Schindler, Esquire

SIMON, SCHINDLER & SANDBERG

1492 South Miami Avenue Miami, Florida 33130

For Respondent: John McInnis, Esquire

Dade County Attorney's Office Metro-Dade Center, Suite 2810

111 N.W. First Street Miami, Florida 33128-1993

STATEMENT OF THE ISSUE

What relief should the Florida Commission on Human Relations provide Petitioner to remedy the unlawful employment practice that Respondent admits that it committed by refusing to further consider Petitioner's application for employment as a correctional officer once it learned that Petitioner is an insulin-dependent diabetic?

PRELIMINARY STATEMENT

After the investigation of Petitioner's complaint had been completed, the Executive Director of the Florida Commission on Human Relations (hereinafter referred to as the "Commission") had issued a Notice of Determination: Cause, and conciliation efforts had failed, Petitioner filed a Petition for Relief (hereinafter referred to as the "Petition") with the Commission in which he alleged that Respondent committed an unlawful employment practice by failing to hire him as a correctional officer because he is an insulin-dependent diabetic. Petitioner requested in his Petition that he be provided with the following relief:

1. Back wages, including interest.

2. Attorney's fees.

3. All affirmative relief empowered to be delivered by the Commission on Human Relations, including a ruling that Donald C. Ferraro is entitled to a job as a corrections officer with the Metro Dade Corrections and Rehabilitation Department.

4. Any other damages or compensatory relief entitled to be delivered by the Commission on Human Relations.

5. Any other relief to which Petitioner may be entitled.

On April 24, 1992, the Commission transmitted the Petition to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Hearing Officer. The Division received the Petition three days later.

On May 11, 1992, Petitioner filed with the Division a Petition to Place Respondent in Default and For Admission of Allegations (hereinafter referred to as the "Motion for Default"). In this pleading, Petitioner alleged that he had served a copy of his Petition for Relief on Respondent "by United States mail postage prepaid" on April 3, 1992. He then argued that because Respondent had not filed an answer to his Petition within the 20-day time period prescribed by Rule 22T-9.008(5)(a), (subsequently renumbered Rule 60Y-5.008(5)(a)), Florida Administrative Code, the Commission should, in accordance with Rule 22T- 9.008(5)(d), (subsequently renumbered Rule 60Y-5.008(5)(d)), Florida Administrative Code, "enter its Order which bars Respondent from filing an Answer, stating that the material facts alleged in the Petition are deemed admitted, and enter an Order granting Petitioner the relief requested in the Petition." On May 19, 1992, Respondent filed a Motion for Enlargement of Time and Request to Permit Filing of Answer to Petition for Relief (hereinafter referred to as the "Motion for Enlargement"). On June 2, 1992, the Hearing Officer, noting that Petitioner had "not alleged facts establishing that [he] would suffer any prejudice as a result of the untimely filing of Respondent's answer to his Petition for Relief," denied Petitioner's Motion for Default and granted Respondent's Motion for Enlargement. 1/ Three days later, the Hearing Officer issued a Notice of Hearing setting the case for final hearing on July 22, 1992. The Hearing Officer's Notice of Hearing indicated that the issue to be litigated at hearing was "[w]hether Petitioner's Petition for Relief should be granted."

The final hearing in this matter was continued on two occasions, the first time at the request of both parties and the second time at Respondent's behest. Following these two continuances, on November 9, 1992, in accordance with the Hearing Officer's directive, the parties filed a Joint Prehearing Statement, the body of which provided as follows:

1. The Petitioner, DONALD C. FERRARO, filed a Petition for Relief alleging that the Respondent, METRO DADE COUNTY CORRECTIONS AND REHABILITATION DEPARTMENT, discriminated against him on the basis of his handicap (diabetes), in violation of the Florida Human Relations Act of 1977, as amended, Section 760.01-760.10, Fla. Stat.

2. For purposes of this dispute only, the Respondent, METRO DADE COUNTY CORRECTIONS AND REHABILITATION DEPARTMENT, does not contest the issue of liability.

3. The parties are attempting to resolve the Petitioner's claim for back pay, interest, court costs and reasonable attorney's fees.

4. If the parties are unable to resolve the remainder of the Petitioner's claim, then these issues shall be presented at the forthcoming hearing commencing at 9:00 A.M., on November 12, 1992, before Stuart M. Lerner,

   Hearing Officer, and it is estimated that

   one-half day will be required to present these issues.

5. The Petitioner will testify in support of the remainder of his claims and the Petitioner intends to call Ms. Louvenia Lee to provide additional testimony as to the issue of back pay, assuming the parties cannot stipulate as to the compensation that Petitioner would have received if hired as a Correctional Officer I.

6. Furthermore the Petitioner will call Carol B. Haber, Esq., or an alternative lawyer, as an expert witness to testify in support of Petitioner's claim for an award of reasonable attorney's fees and costs, along with Roger J. Schindler, Esq.

The parties were unable to reach a settlement on the remaining unresolved issues. Accordingly, the final hearing was held on November 12, 1992, as scheduled. At hearing, a total of 14 exhibits were offered and received into evidence and the testimony of four witnesses was presented: Louvenia Lee, the Commander of Respondent's Bureau of Human Resources; Ruth Weldon, the Personnel Manager of the State of Florida Department of Correction's South Florida Reception Center; Petitioner; and his counsel of record in this case, Roger J. Schindler, Esquire.

The parties agreed that there was no need for Petitioner to present the live testimony of the expert/attorney witness referenced in paragraph (6) of their Joint Prehearing Statement and that, in lieu of such live testimony, the Hearing Officer and Commission should accept and take into consideration, in deciding the amount of reasonable attorney's fees to be awarded in this case pursuant to Section 760.10(13), Florida Statutes, 2/ the proffer that the expert/attorney witness would have testified that the hourly fees charged, and the services rendered, by Petitioners' attorneys which are reflected in Petitioner's Exhibit 2 were reasonable. In entering into this stipulation, counsel for Respondent emphasized that he was not conceding the witness "was correct" and that he was only agreeing to what the witness would have opined if called to the stand to testify. Nonetheless, Respondent did not attempt to present any evidence that the witness "was [not] correct." Counsel for Respondent explained that he had not had the time "to contact an expert and get my own testimony as to the amount of fees or whether the fees are reasonable for the work performed." In response to this explanation, the Hearing Officer indicated that he would not leave the evidentiary record open to allow Respondent to "get [his] own testimony," but that he would at least consider a post-hearing motion to reopen the evidentiary record if Respondent's post-

hearing efforts to obtain such testimony were successful. No such post-hearing motion has yet been filed.

While Respondent did not offer any evidence on the issue of attorney's fees during the presentation of its case, it did introduce evidence that, it argued, demonstrated that Petitioner had not satisfied his obligation to mitigate damages and therefore was not entitled to full back pay. Petitioner objected to the introduction of such evidence. He contended that the failure to mitigate damages was an affirmative defense that Respondent was obligated to, but had not, raised in its answer and that, in any event, under Florida case law, because he would have been an "officer," as opposed to an employee, had Respondent not discriminated against him, he was entitled to full back pay, without any setoffs or deductions, regardless of any income he may have earned or any lack of effort on his part to find a position comparable to the one he was discriminatorily denied. In response to Petitioner's objection, Respondent asserted that, although lack of mitigation "was not stated as an affirmative defense in the answer to the Petition for Relief," through the discovery process, it put Petitioner "on notice that [it] intended to pursue the issue of mitigation of damages." After hearing the parties' arguments on the matter, the Hearing Officer indicated that he would allow the parties to proffer evidence on the issue of mitigation and that he would resolve the parties' dispute regarding the admissibility of such evidence in his Recommended Order.

At the close of the evidentiary portion of the hearing on November 12, 1992, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 15 days following the Hearing Officer's receipt of the hearing transcript. On December 14, 1992, the Hearing Officer received the hearing transcript. On that same date, the parties filed a motion jointly requesting an extension of the deadline for the submission of post- hearing submittals. By order issued December 15, 1992, the Hearing Officer granted the motion and extended the deadline for the filing of post-hearing submittals to January 13, 1993. On January 14, 1993, Respondent filed an unopposed motion seeking an additional extension of the deadline. By order issued January 15, 1993, the Hearing Officer granted the motion and extended the deadline for the filing of post-hearing submittals to January 19, 1993.

That same day, January 15, 1993, Petitioner filed a proposed recommended order and a supporting memorandum. Along with these pleadings, Petitioner filed a Motion for Additional Attorney's Fees and supporting affidavits. On January 21, 1993, Respondent filed a post-hearing statement.

Petitioner's proposed recommended order and Respondent's post-hearing statement contain, what are labelled as, "findings of fact." These "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

On January 25, 1993, Respondent filed a Notice of Supplemental Authority.

It also, on that date, filed a motion for leave to amend the answer it had previously filed in this case to include the following affirmative defense "to conform with the evidence adduced at the evidentiary hearing" on November 12, 1992:

The Petitioner has failed to make a reasonable effort to mitigate his damages by making a

reasonable effort to seek comparable or substantially equivalent employment or in the alternative the Petitioner has voluntarily removed himself from the job market.

Accompanying this motion was a memorandum, which set forth the following "facts relevant to the . . . motion:"

1. On September 25, 1992, a Notice of Taking Deposition was served by mail upon the Petitioner through his counsel, Roger J. Schindler, Esq. The deposition was to be taken on October 9, 1992. The Notice states: "DONALD C. FERRARO is to bring all income tax returns for 1990 and 1991 and all employment applications for positions he sought from 1990 to present."

   
   

   Attachment A.

2. On October 19, 1992, a Re-Notice of Taking Deposition was served upon the Petitioner through his Counsel. The

   Petitioner was instructed to "bring all income tax returns for 1990 and 1991, and all employment applications for positions he sought from 1990 to present." Petitioner's deposition was scheduled for October 23, 1992. Attachment B

3. By letter dated October 27, 1992, Petitioner's Counsel, Roger J. Schindler, Esq., mailed Respondent's counsel copies of the Petitioner's 1990 and 1991 income tax returns with the promise that Petitioner's salary statements from the Dade County School Board would be furnished under separate cover. Attachment D.

4. At no time did Petitioner or his Counsel object to Respondent's request or indicate that the material sought was outside the pleadings in this matter.

5. On November 2, 1992, Respondent served a third Re-Notice of Taking Deposition upon the Petitioner through his counsel. Because the Petitioner had already provided copies of his income tax returns and other earnings information the Re-Notice stated: "DONALD C. FERRARO is to bring all employment applications for positions he sought from 1990 to present." Petitioner's deposition was scheduled for November 4, 1992. Attachment C.

6. Petitioner's deposition was taken on November 4, 1992.

7. At no time did the Petitioner or his Counsel object to Respondent's requests referred to in paragraphs 1, 2, 3 and 5 above.

8. Further, on November 2, 1992, Respondent served a subpoena duces tecum on Ruth Weldon,

Chief of Personnel at the South Florida Reception Center, a copy of which was mailed to Petitioner's Counsel. That subpoena instructs Ms. Weldon to bring "copies of all job announcements for the position of correctional officer 1 or entry level correctional position hired into from July 1989 to July 1992." Attachment E. At no time did the Petitioner's Counsel indicate any objection to the information sought.

On February 1, 1993, Petitioner filed a motion to strike Respondent's motion for leave to amend its answer, as well as a memorandum in opposition to Respondent's motion. He also filed a motion to reopen the evidentiary record "to give [him] an opportunity to present additional and substantial testimony and evidence on th[e] issue of mitigation" in the event Respondent's motion for leave is granted and it is determined that Petitioner had a duty to mitigate his damages and that the evidence adduced at hearing establishes that he failed to satisfy this obligation." In these pleadings, Petitioner argues, among other things, that Respondent's motion for leave is "untimely and unauthorized." He further asserts that "had he known that Respondent was going to argue Petitioner's failure to attempt to mitigate his damages and that [it] would argue that he should have re-applied to the South Florida Reception Center for an inferior position with less pay and conditions, then he would have presented additional testimony and evidence to rebut this argument." As to the matter of whether he had known or should have known prior to hearing that "Respondent was going to argue [at hearing] Petitioner's failure to attempt to mitigate his damages," Petitioner makes the following statement:

With regard to the issue of informal notice to Petitioner of the issue of mitigation, there is no dispute that the Respondent requested from the Petitioner his income tax returns and earnings. Interestingly enough, the Petitioner, through his counsel, did not object to production of these documents because under the Florida Rules of Civil Procedure discovery is very liberal and any document that could be construed to be relevant or reasonably calculated to lead to the discovery of admissible evidence is discoverable and all objections as to admissibility are preserved for trial.

Therefore, while counsel for the Petitioner may have felt that the Respondent's request for documents concerning the Petitioner's "earnings" were objectionable under the liberal discovery rules, the Respondent was entitled to these documents, thus they were produced.

However, what the Respondent has neglected to advise the Commission is that the Petitioner objected, through counsel, at the time of taking his deposition, when for the first time the Respondent asked Mr. Ferraro questions concerning his income and prior

employment. The deposition of Mr. Ferraro was

taken on November 4, 1992, only eight days prior to the final hearing. It was at this time that the Respondent first mentioned in a deposition the issue of prior earnings of the Petitioner and what type of jobs he had applied for. The Petitioner objected to this inquiry, which obviously put the Respondent on notice that [it] had not pled the issue of mitigation of damages as an affirmative defense. Even then the Respondent did not seek formally by motion - -or even informally to amend its Answer and Affirmative Defenses.

On February 22, 1993, Petitioner filed a reply to Respondent's post-hearing statement. No further pleadings have been filed by either party in this case.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

Petitioner's Employment at the South Florida Reception Center

1. Petitioner previously worked full-time as a Correctional Officer I at the State of Florida Department of Corrections' (DOC's) South Florida Reception Center, a maximum security facility that houses convicted felons.

   
   

2. Petitioner and his coworkers at times were asked to work double shifts.

   
   

3. On several occasions, Petitioner was threatened with disciplinary action when he refused to work a second shift immediately following the completion of his regularly assigned shift.

   
   

4. Prior to the expiration of his probationary period, Petitioner was advised that he was going to be fired.

   
   

5. Petitioner requested, and was granted permission by the Superintendent of the facility, the opportunity to resign in lieu of termination.

   
   

6. Petitioner resigned his position effective June 27, 1989.

   
   

   Petitioner's Application for Employment with Respondent

   
   

7. In October of 1988, while still employed by DOC, Petitioner applied for a Correctional Officer I position with Respondent.

   
   

8. Respondent's official job description for the position describes the nature of the work performed by Correctional Officer I's as follows:

   
   

   This is routine security work in maintaining order and discipline among prisoners held in County correctional facilities.

   Employees in this class are responsible for receiving and controlling prisoners, preventing escapes and enforcing departmental rules and regulations on an assigned shift at a County correctional facility. Duties

   include maintaining various records on prisoners, supervising work details, transporting prisoners to a variety of medical or correctional institutions, and ensuring the proper discharge of prisoners. Work occasionally involves an element of personal danger during emergencies and in controlling potentially violent prisoners. Duties are performed in accordance with established departmental regulations and security procedures. Supervision is received from a superior officer who reviews work for compliance with established rules and regulations.

   
   

   These duties are similar to those performed by correctional officers who work at the South Florida Reception Center.

   
   

9. There was a delay in the processing of Petitioner's application for employment.

   
   

10. On April 12, 1990, Iliana O. Garcia, a Personnel Specialist 2 with Respondent, sent Petitioner a letter, the body of which read as follows:

    
    

    We wish to take this opportunity to thank you for placing your application for the position of Correctional Officer 1 with our Department. The time and effort you devoted to your pursuit of this position is sincerely appreciated, however, at the present time, we regret that we are unable to consider your application further.

    Many exceptional candidates are seeking limited number of positions and this creates a very competitive situation.

    Please be assured that our decision in your case was based on very careful consideration of your application and qualifications in direct comparison with all others seeking the position and was not a judgment arrived at lightly.

    Thank you again for your demonstrated interest in our Department, and we wish you success in your endeavors.

    
    

11. On May 9, 1990, Louvenia Lee, the Commander of Respondent's Human Resources Bureau, sent Respondent a follow-up letter explaining in greater detail why Respondent was no longer being considered for the position for which he had applied:

    
    

    On February 26, 1990 you were scheduled for a physical examination at Mt. Sinai Medical Center. This exam was another step in the hiring process for a Correctional Officer.

    However, on the basis of the physical exam, the results were disqualifying. Therefore, your application with the Corrections and

    Rehabilitation Department was discontinued. The disqualifying results are in accordance with the physical standards set forth in the California Commission on Peace Officer Standards and Training, Chapter IX-1. These standards are utilized by other law enforcement agencies in Metropolitan Dade County.

    Thank you again for your demonstrated interest in our Department and we wish you success in your endeavors. If I can be of further assistance, please contact me at 547-7052.

    
    

12. The results of the physical examination that Petitioner had taken were "disqualifying" because they had revealed that Petitioner was an insulin- dependent diabetic.

    
    

    Lost Earnings

    
    

13. Had Petitioner been selected to fill the position for which he had applied, he would have had to have first undergone four months of academy training, starting in late July or early August of 1990, before assuming the duties of a Correctional Officer I. He would have received a stipend of $400 for each month that he was in training.

    
    

14. Had Petitioner successfully completed his academy training, he would have been placed on the payroll as a Correctional Officer I on December 3, 1990.

    
    

15. Had Petitioner remained on the payroll as a Correctional Officer I from December 3, 1990, to January 3, 1993, 3/ he would have earned a total of

    $54,142.22 ($47,367.16 for the pay periods reflected on Petitioner's Exhibit 7;

    $804.83 for the two bonus payments reflected on Petitioner's Exhibit 7; $932.86 for the January 21, 1991, through February 3, 1993, pay period; $972.45 for the March 30, 1992, through April 12, 1992, pay period; and $4,064.92 for the four pay periods immediately following the October 26, 1992, through November 8, 1992, pay period).

    
    

    Mitigation

    
    

16. At the time he learned that he was no longer being considered by Respondent as a candidate to fill the Correctional Officer I position for which he had applied, Petitioner had applications for employment pending with two other prospective employers, the City of Hollywood and the Metro Dade Police Department. Both applications were for law enforcement officer positions.

    
    

17. In August or September of 1990, Petitioner was informed that neither the City of Hollywood nor the Metro Dade Police Department would be offering him a position.

    
    

18. The City of Hollywood advised him that the position for hich he had applied had been filled by another of the over 100 applicants for the position.

    
    

19. The Metro Dade Police Department told Petitioner that it could not hire him because he was an insulin-dependent diabetic.

20. Some time shortly after receiving his rejection notice from Respondent, Petitioner applied for a correctional officer position with the Broward Sheriff's Office. He did not get the position. The explanation that he was given was that he had failed the polygraph test he had taken.

    
    

21. At the outset of the 1990-1991 school year Petitioner began working as a substitute teacher for the Dade County School Board.

    
    

22. He continued working as a substitute teacher during the remainder of the 1990-1991 school year, as well as the following school year.

    
    

23. The work was sporadic.

    
    

24. Frequently, he would not know until the morning of his teaching assignment that he had the opportunity to substitute teach that day.

25. In 1990, 1991 and 1992, Petitioner earned $694.00, $2,212.50 and

$2,360.00, respectively, working as a substitute teacher for the Dade County School Board.

1. In 1992, Petitioner also worked for Publix Super Markets, Inc. (hereinafter referred to as "Publix).

   
   

2. His last day of work for Publix was August 14, 1992.

   
   

3. Petitioner earned $2,063.78 working for Publix in 1992.

   
   

4. From the date he was informed that Respondent had rejected him for employment until January 3, 1990 (hereinafter referred to as the "back pay period"), Petitioner was not otherwise gainfully employed, nor did he, with the exception noted above, seek other gainful employment.

   
   

5. During the back pay period, there were various advertised openings for correctional officers at the South Florida Reception Center (hereinafter referred to as the "Center").

   
   

6. These positions offered considerably less pay than Petitioner would have received had be been hired by Respondent. Furthermore, the working conditions at the Center were far inferior to those he would have experienced working for Respondent as Correctional Officer I.

   
   

7. Petitioner did not apply for any of these advertised positions because he reasonably believed that to do so would be an exercise in futility given that he had been constructively discharged in June of 1989, from a similar position at the Center.

   
   

   Attorney's Fees and Costs

   
   

8. On March 25, 1992, after the Executive Director of the Commission had issued a Notice of Determination: Cause and conciliation efforts had failed, Petitioner executed the following written agreement to retain the law firm of Simon, Schindler and Sandberg, P.A., to represent him in the instant matter:

   I, the undersigned, do hereby retain and employ the law firm of:

   
   

   SIMON, SCHINDLER & SANDBERG, P.A.

   1492 South Miami Avenue Miami, Florida 33130

   
   

   as my attorneys to represent me, DONALD C. FERRARO, in the petition now pending before the Florida Commission on Human Relations.

   I fully understand that the fee is based upon an hourly rate of $250.00, which I am obligating myself to pay. I also agree to pay my said attorneys the sum of $100.00 for

   out-of-pocket expenses.

   You are authorized to pay or incur liability for all expenses . . .

   If bills are not paid when due, or a mutually agreeable payment schedule is not made and adhered to, I agree that my attorneys may withdraw as my counsel in any proceeding in which they represent me. Also I agree to bear the cost of collection, including a reasonable attorney's fees, and all other costs.

   I understand that I will be billed periodically both as to expenses and attorney's fees, and fully agree to pay said bill promptly upon receipt of same.

   In addition to any other lien contemplated hereunder, we are given a lien on the claim or cause of action, on the sum recovered by way of settlement, and on any judgment that may be recovered, for fees as well as any fund we may have advanced on your behalf for costs in connection with the cause of action. You agree that we have all general, possessory, or retaining liens, and all special or charging liens, known to the common law. If we use the services of an attorney to enforce the terms of this agreement, you agree to pay, in addition to all other sums due us, a reasonable attorney's fee for said enforcement.

   I further agree that you shall have the right to withdraw from my case: (a) If I do not make the required payments pursuant to this agreement; (b) if I have misrepresented or failed to disclose material facts to you; or

   (c) if I fail to follow your advice. In any of the foregoing events, I agree to execute any such documents permitting you to withdraw. The Attorney is an officer of the court and is bound by the rules regulating the Florida Bar. The client acknowledges and understands that while an attorney accepts this employment and promises to render professional legal services to the best of his ability during the

   continuation of this employment, that the attorney makes no warranties, representations or guarantees regarding the favorable outcome, result or successful termination of the representation and that this Retainer Agreement is not "contingent" thereon. The client agrees to fully cooperate with the attorney; to do nothing which would compromise the attorney's professional ethics; and not to request or require the attorney to do anything in violation of the Rules of Professional Conduct. If the client has misrepresented or failed to disclose any material facts, refuses to follow the attorney's advice, or fails to be available as necessary for preparation, conferences, depositions, hearings or other court proceedings, the attorney may withdraw from representation with leave of court.

   I acknowledge that you have made no representations or guarantees concerning the outcome of this case.

   I agree to the above terms and conditions of this Retainer Agreement and further acknowledge that I have received a copy thereof.

   
   

9. Pursuant to this retainer agreement, the law firm of Simon, Schindler and Sandberg, P.A., (hereinafter referred to as the "Firm") provided Petitioner with legal representation in this matter.

   
   

10. Roger J. Schindler, Esquire, a name partner in the Firm, was the most senior of the Firm's attorneys who worked on Petitioner's case.

    
    

11. Schindler is a Florida-licensed attorney who has been practicing law in this state since the spring of 1970. He has litigated numerous civil rights actions.

    
    

12. Schindler's hourly fee is $250.00.

    
    

13. Through November 11, 1992, Schindler had reasonably spent 49.00 hours performing various tasks in connection with the instant case for which Petitioner has been billed $12,200.00 based upon a reasonable hourly fee of

    $250.00.

    
    

14. Through November 11, 1992, Joe Constant, a Florida-licensed attorney and one of the Firm's associates, had reasonably spent 16.20 hours performing various tasks in connection with the instant case for which Petitioner has been billed $2,673.00 based upon a reasonable hourly fee of $165.00.

    
    

15. Through November 11, 1992, another of the Firm's associate attorneys had reasonably spent one hour working on legal research done in connection with the instant case for which Petitioner has been billed $165.00 based upon a reasonable hourly fee of $165.00.

    
    

16. Through November 11, 1992, a law clerk working for the Firm had reasonably spent 11.80 hours performing research-related tasks in connection

    with the instant case for which Petitioner has been billed $885.00 based upon a reasonable hourly fee of $75.00.

    
    

17. The Firm has also billed Petitioner a total of $368.22 for costs reasonably incurred through November 11, 1992, in connection with the instant case.

    
    

18. Through November 11, 1992, the Firm had billed Petitioner a total of

    $16,391.22 ($15,923.00 for attorney's fees and $368.22 for costs), but had not received any payments from Petitioner, notwithstanding that, under the retainer agreement, he was responsible to pay the Firm this entire amount regardless of the outcome of the instant case.

    
    

    CONCLUSIONS OF LAW

    
    

    General Legal Principles

    
    

19. The Human Rights Act of 1977 (hereinafter referred to as the "Florida Act") is codified in Sections 760.01 through 760.10, Florida Statutes. 4/ Among other things, it makes certain acts "unlawful employment practices" and gives the Florida Commission on Human Relations the authority, if it finds that such an "unlawful employment practice" has occurred, to "issue an order "prohibiting the practice and providing affirmative relief from the effects of

    the practice, including reasonable attorney's fees." Section 760.10, Fla. Stat.

    
    

20. The Florida Act is patterned after Title VII of the Civil Rights Act of 1964 (42 U.S.C. Paragraph 2000e-2 and hereinafter referred to as the "Federal Act"). See School Board v. Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). Accordingly, in construing the provisions of the Florida Act, it is helpful to examine how the federal courts have construed comparable provisions of the Federal Act. See Florida Department of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991)("[b]ecause [the Florida Act] is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. paragraph 2000e-2, federal case law dealing with Title VII is applicable"); O'Loughlin v. Pinchback, 579 So.2d 788, 791 (Fla. 1st DCA 1991)("[i]n Florida there is a long- standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent that the construction is harmonious with the spirit of the Florida legislation"); Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1978)("[i]f a Florida statute is patterned after a federal law, on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject").

    
    

21. Like the Federal Act, the Florida Act has been construed "as requiring an award making the complaining party whole as a result of the discriminatory practice, by being provided, among other things, back pay." School Board of Leon County v. Weaver, 556 So.2d 443, 445 (Fla. 1st 1990). 5/

    
    

22. In furtherance of "making the complaining party whole," any award fashioned by the Commission must also provide for the payment of prejudgment interest on the back pay owed the complainant by the offending employer. See Clarke v. Frank, 960 F.2d 1146, 1153-54 (2d Cir. 1992)("Title VII authorizes a district court to grant prejudgment interest on a back pay award;" "it is ordinarily an abuse of discretion not to include prejudgment interest in a back

    pay award"); Pegues v. Mississippi State Employment Service, 899 F.2d 1449, 1453 (5th Cir. 1990)("[t]he make whole purpose of Title VII would be frustrated by the failure to award interest;" "the 11th Amendment does not bar an award of prejudgment interest on a Title VII back pay award against a state");

    Department of Health and Rehabilitative Services v. Boyd, 525 So.2d 432, 433-34 (Fla. 1st DCA 1988)(notwithstanding absence of express statutory authority, prejudgment interest on back pay may be awarded in career service appeal proceeding; "when the state has waived immunity to employment contract actions, as here, it has also impliedly waived immunity in regard to interest, which is a relief flowing naturally from a finding of liability and is necessary for complete compensation in such actions").

    
    

23. In determining the amount of back pay a complainant should be awarded, setoffs or deductions must be made for income the complainant earned during the back pay period from employment that would not have been available to him had the discrimination not occurred (hereinafter referred to as "interim earnings"). See Chesser v. State of Illinois, 895 F.2d 330, 338 (7th Cir. 1990)("[w]here an employee accepts a job that he could not have taken if he remained in his old employment, the earnings from that job are interim earnings" that, under the Federal Act, "operate to reduce the back pay otherwise allowable"); Willis v. Watson Chapel School District, 749 F.Supp. 923 (E.D. Ark. 1990)(no setoffs or deductions made in Title VII action for income earned during back period from employment as school bus driver where the offending employer failed to adequately prove that the complainant would not have been able to hold such employment had she been hired to fill the position she had been discriminatorily denied).

    
    

24. Setoffs or deductions must also be made where the complainant has failed to satisfy his duty to mitigate damages. During the back pay period, a complainant is required to make reasonable efforts to obtain substantially equivalent employment, that is, employment that affords compensation, job responsibilities, status, promotional opportunities and working conditions virtually identical to the employment the complainant was discriminatorily denied. (There is no requirement, however, that a complainant seek non- comparable work.) If a substantially equivalent employment situation was realistically available to the complainant, but he unreasonably failed to seek it out, the complainant's back pay award should be reduced by the amount he would have earned had he successfully sought this substantially equivalent position (hereinafter referred to as "constructive earnings"). See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991); U.S. E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815 (7th Cir. 1990).

    
    

25. The burden is on the employer to establish by a preponderance of the evidence the appropriateness of any setoffs or deductions for interim earnings or constructive earnings. See Clarke v. Frank, 960 F.2d 1146 (2d Cir. 1992); Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991); U.S. E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815 (7th Cir. 1990); Edwards v. Occidental Chemical Corp., 892 F.2d 1442 (9th Cir. 1990); Gallo v. John Powell Chevrolet, 779 F.Supp. 804 (M.D. Pa. 1991); Willis v. Watson Chapel School District, 749 F.Supp. 923 (E.D. Ark. 1990); Juvenile Diabetes Research Foundation v. Rievman, 370 So.2d 33 (Fla. 3d DCA 1979).

    
    

    Liability

    
    

26. Respondent concedes that it committed an unlawful employment practice in violation of the Section 760.10(1)(a), Florida Statutes, by refusing to consider Petitioner for employment as a Correctional Officer I because he is an

    insulin-dependent diabetic. The only matters in dispute in the instant case relate to the "affirmative relief" that the Commission should provide Petitioner.

    
    

    Back Pay: Petitioner's Prima Facie Showing

    
    

27. If, instead of having been the victim of Respondent's unlawful employment practice, Petitioner had been hired by Respondent to fill the position for which he had applied and remained in the employ of Respondent until January 3, 1993, 6/ (which both parties agree he would have) Petitioner would have earned a total of $55,742.22 ($1,600.00 in academy training stipends prior to December 3, 1990, plus $54,142.22 in earnings as a Correctional Officer I thereafter).

    
    

    Back Pay: Failure to Formally Plead Mitigation

    
    

28. At hearing, Respondent sought to present evidence that, during the back pay period, Petitioner had been employed by the Dade County School Board and by Publix and he had failed to apply for various advertised correctional officer positions that were available at the South Florida Reception Center.

    
    

29. Respondent argues that any back pay award made in the instant case should reflect appropriate setoffs or deductions for the monies Petitioner earned during the back pay period working for the Dade County School Board and for Publix, as well as for the monies he would have earned during this period had he applied for and obtained a correctional officer position at the South Florida Reception Center. Furthermore, Respondent asks that it be allowed to amend its answer to Petitioner's Petition for Relief to include the affirmative defense that Petitioner failed to mitigate his damages.

    
    

30. Petitioner, on the other hand, takes the position that because Respondent "did not properly raise failure-to-mitigate in its answer or in any other pleading [filed prior to hearing], it did not properly preserve that issue and was therefore barred from asserting it [and presenting evidence thereon] at the final hearing."

    
    

31. While Respondent may not have included any reference to mitigation of damages in its answer to Petitioner's Petition for Relief, it appears that, through the discovery process, Respondent put Petitioner on notice in advance of the hearing that it regarded mitigation as an issue that needed to be resolved in order to fashion a back pay award and that therefore Petitioner was not taken by surprise when Respondent attempted to offer evidence on the matter. 7/ Accordingly, such evidence should not be excluded from consideration because of Respondent's failure to formally plead mitigation of damages as an affirmative defense and Respondent should be permitted to amend its answer to incorporate this defense. See Key Biscayne Council v. Department of Natural Resources, 579 So.2d 293 (Fla. 3d DCA 1991); Azemco (North America) Inc., v. Brown 553 So.2d 1245 (Fla. 3d DCA 1989); Wackenhut Protective Systems, Inc. v. Key Biscayne Commodore Club Condominium I, Inc., 350 So.2d 1150 (Fla. 3d DCA 1977).

    
    

    Back Pay: Mitigation Requirements Re: Officers

    
    

32. Petitioner maintains that, even if Respondent had timely pled and proven that he had interim and constructive earnings during the back pay period, he still would be entitled to full back pay, without any offsets or deductions, because he was "discriminated against in seeking employment with Respondent as an officer, and Florida law specifically holds that a person wrongfully deprived

    of a position as an officer is not required to seek alternate employment nor to deduct from his damages income he [did obtain or] may have obtained from alternate employment,"

    
    

33. Petitioner is correct that, under the long-standing common law principle recognized in Florida, "if one is lawfully entitled to public office 8/ [as opposed to mere public employment] his right to salary attaches to the office and may be recovered in full, irrespective of any service rendered and without regard to the fact that he may have [or could have] earned money [working] elsewhere" during the period of entitlement. Curry v. Hammond, 16 So.2d 523 (Fla. 1944); State ex rel. Dresskell v. City of Miami, 13 So.2d 707, 708 (Fla. 1940); Maudsley v. City of North Lauderdale, 300 So.2d 304 (Fla. 4th DCA 1974).

    
    

34. Petitioner, however, is seeking relief under the Florida Act, not the common law. The Florida Act, like its federal "prototype" and unlike the common law, makes no distinctions between officers and employees with respect to matters relating to back pay. All complainants, regardless of their status as officers or employees, are subject to setoffs or deductions for interim and constructive earnings under the Florida and Federal Acts. See Chesser v. State of Illinois, 895 F.2d 330, 338 (7th Cir. 1990)(state trooper's back pay award under Federal Act reduced by amount equal to interim earnings); Storey v. City of Sparta Police Department, 667 F.Supp. 1164 (M.D. Tenn. 1987)(back pay awarded under Federal Act to applicant for police officer position reduced by amount equal to interim earnings); 9/ Town of Pembroke Park v. Florida State Lodge, Fraternal Order of Police, 501 So.2d 1294 (Fla. 4th DCA 1987)(common law distinction between officers and employees for purposes of computing back pay does not apply in unfair labor practice proceedings under Chapter 447, Florida Statutes; police officers seeking back pay under Chapter 447, Florida Statutes, required to mitigate damages); Lee v. Florida Department of Highway Safety and Motor Vehicles, 438 So.2d 405 (Fla. 4th DCA 1983)(common law distinction between officers and employees for purposes of computing back pay does not apply in State of Florida career service appeal proceedings; back pay awarded to state trooper who successfully appealed his dismissal to the Career Service Commission reduced by amount equal to interim earnings). Accordingly, even if the position Petitioner was discriminatorily denied was one that would qualify as an office under the common law (and it is not at all clear that it would so qualify,) 10/ his back pay award would nonetheless have to reflect setoffs and deductions for any interim and constructive earnings proven by Respondent.

    
    

    Back Pay: Mitigation Interim Earnings

    
    

35. Respondent failed to meet its burden of proving that the monies Petitioner earned during the back pay period working for the Dade County School Board 11/ and for Publix represent interim earnings inasmuch as it has not demonstrated that, due to time constraints or for any other reason, Petitioner would not have held these jobs had he been hired by Respondent. Willis v. Watson Chapel School District, 749 F.Supp. 923 (E.D. Ark. 1990).

    
    

36. Petitioner was not otherwise gainfully employed during the back pay period.

    
    

37. Accordingly, there are no interim earnings to set off or deduct from Petitioner's back pay award.

    
    

    Back Pay: Mitigation Constructive Earnings

38. Respondent failed to meet its burden of proving that the correctional officer positions at the South Florida Reception Center advertised during the back pay period were substantially equivalent in terms of pay and working conditions to the correctional officer position that Petitioner was discriminatorily denied by Respondent. See Sellers v. Delgado Community College, 839 F.2d 1132 (5th Cir. 1988).

    
    

39. Moreover, the preponderance of the evidence establishes that Petitioner's failure to apply for a position at the Center was justifiably based upon his reasonable belief that it would be of no avail to do so. Therefore, even if the advertised positions were substantially equivalent positions, an offset or deduction equal to the amount Petitioner would have earned had he been hired to fill one of these positions would not be warranted. See E.E.O.C. v. Service News, Co., 898 F.2d 958 (4th Cir. 1990).

    
    

40. There was no evidence presented that there were any other positions available during the back pay period, substantially equivalent or otherwise, for which Petitioner did not apply. 12/

    
    

41. Accordingly, there are no constructive earnings to set off or deduct from Petitioner's back pay award. See Edwards v. Occidental Chemical Corporation, 892 F.2d 1442 (9th Cir. 1990).

    
    

    Amount of Back Pay Award

    
    

42. Petitioner is entitled to full back pay, without any setoffs or deductions, 13/ in the amount of $55,742.22.

    
    

    Prejudgment Interest

    
    

43. Petitioner should receive prejudgment interest on his back pay award at the statutory rate of 12% per annum. See Section 687.01, Fla. Stat. ("In all cases where interest shall accrue without a special contract for the rate thereof, the rate shall be 12 percent per annum, but the parties may contract for a lesser or greater rate in writing"); Argonaut Insurance Company v. May Plumbing Company, 474 So.2d 212 (Fla. 1985); Department of Transportation v.

    M.C.C. of Florida, Inc., 540 So.2d 834 (Fla. 1st DCA 1988). The rate should "be applied beginning at the midpoint of the back pay period until the obligation is paid." Town of Pembroke Park v. Florida State Lodge, Fraternal Order of Police, 501 So.2d 1294, 1298 (Fla. 4th DCA 1987).

    
    

    Attorney's Fees: Prehearing Services

    
    

44. The affirmative relief provided Petitioner, the prevailing party in this proceeding, should include an award of reasonable attorney's fees.

    
    

45. In calculating the amount of an attorney's fee award in an employment discrimination case, two "basic determinations" must be made to arrive at a "lodestar figure:" (a) the number of hours reasonably expended and (b) the reasonable hourly rate charged in the community." Lane v. Head, 566 So.2d 508,

    512 (Fla. 1990)(Overton, J., specially concurring). "The product of hours reasonably expended multiplied by the reasonable hourly rate is the lodestar figure." Rosenberg v. Ross, 18 FLW D287 (Fla. 3d DCA January 12, 1993).

    
    

46. The following factors should be taken into consideration in determining the "lodestar figure:"

    1. the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; 14/ (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client;

       and (12) awards in similar cases.

       
       

       Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828, 834 (Fla. 1990).

       
       

47. Ordinarily, the fee award will not exceed the "lodestar figure." A multiplier will be used only in those rare cases where the prevailing complainant "can establish that without an [upward] adjustment for risk [he] 'would have faced substantial difficulties in finding counsel in the local or other relevant market.'" Lane v. Head, 566 So.2d 508, 513 (Fla. 1990)(Overton, J., specially concurring).

    
    

48. Applying the foregoing principles to the facts of the instant case yields a "lodestar figure" of $15,923.00 for services rendered by the Firm on behalf of Petitioner prior to the November 12, 1992, final hearing.

    
    

49. Petitioner has not demonstrated that there exist circumstances in the instant case warranting the enhancement of this "lodestar figure."

    
    

50. Accordingly, Petitioner should be awarded a reasonable attorney's fee of $15,923.00 for services rendered by the Firm on behalf of Petitioner prior to the November 12, 1992, final hearing.

    
    

    Prehearing Litigation Costs

    
    

51. Through November 11, 1992, the Firm had reasonably incurred $368.22 in litigation costs for which it had billed Petitioner. Reimbursement for these costs should be a part of any affirmative relief provided Petitioner.

    
    

    Post-November 11, 1992, Attorney's Fees and Litigation Costs

    
    

52. Petitioner should also be awarded reasonable attorney's fees and litigation costs for work performed, and costs incurred, by the Firm in connection with this litigation after November 11, 1992. The Commission should reserve jurisdiction to determine the amount of such fees and costs should the parties be unable to reach agreement on the matter following the entry of the final order in this case. See Chandler v. Department of Corrections, 12 FALR 4216, 4219 (FCHR 1990), reversed on other grounds, 582 So.2d 1183 (Fla. 1st DCA 1991).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a final order (1) finding that Respondent committed the unlawful employment practice alleged in Petitioner's Petition for Relief, (2) prohibiting the practice, (3) awarding Petitioner back pay in the amount of $55,742.22, together with prejudgment interest thereon at the statutory rate of 12% per annum, (4) awarding Petitioner reasonable prehearing attorney's fees and litigation costs in the amount of $16,391.22 ($15,923.00 for fees and $368.22 for costs), and (5) awarding Petitioner reasonable attorney's fees and litigation costs for work performed, and costs incurred, by the Firm in connection with this case after November 11, 1992, in an amount to be determined by agreement of the parties or, in the absence of such agreement, by subsequent Commission order.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February, 1993.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1993.

ENDNOTES

1/ In so ruling, the Hearing Officer relied on Department of Environmental Regulation v. Puckett Oil Company, 577 So.2d 988, 993-94 (Fla. 1st DCA 1991), a case in which the appellate court expressed approval of the Commission's holding that, notwithstanding the mandatory language contained in Rule 22T-9.008(5), Florida Administrative Code, "the rule was directory only and . . . should not be enforced against a respondent who ha[s] failed to file an answer in the absence of any demonstration of prejudice to the petitioner, or without consideration of any evidence of reasons for not complying with the rule."

2/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (1991), unless otherwise indicated.

3/ In their post-hearing submittals, the parties agree that January 3, 1993, is the terminal date of the back pay period in the instant case.

4/ The Human Rights Act of 1977 was amended and renamed the Florida Civil Rights Act of 1992 by Chapter 92-177, Laws of Florida. Section 13 of Chapter 92-177, however, provides that "[t]his act applies only to conduct occurring on or after October 1, 1992." The unlawful conduct in the instant case occurred

prior to October 1, 1992. Accordingly, the provisions of the Human Rights Act of 1977, not those of the Florida Civil Rights Act of 1992, are applicable to the instant case.

5/ Chapter 92-177, Laws of Florida, has eliminated any uncertainty that may have existed under the Human Rights Act of 1977 regarding the Commission's authority to award back pay. See Section 760.11, Fla. Stat. (1992 Supp.).

6/ Respondent is not asking for instatement, nor is he seeking back pay for any pay period beyond the pay period ending January 3, 1993.

7/ That Petitioner had actual knowledge of Respondent's intention to raise this issue at hearing is apparent from a reading of Petitioner's Exhibit 2 (the Firm's billing statement for services rendered), particularly the entries for October 31, 1992, November 2, 1992 and November 3, 1992.

8/ "The term 'office' implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office. The term 'employment' does not comprehend a delegation of any part of the sovereign authority, or authorize the exercise in one's own right of any sovereign power, or any prescribed independent authority of a governmental nature." State ex rel. Dresskell v. City of Miami, 13 So.2d 707, 708 (Fla. 1940).

9/ Storey was cited by the First District Court of Appeal in support of its holding in School Board of Leon County v. Weaver, 556 So.2d 443, 445 (Fla. 1st 1990) that the Commission is authorized to award back pay under the Florida Act.

10/ The fact that the term "officer" is included in the title of the position does not conclusively establish that the incumbent is an office holder. See State ex rel. Gibbs v. Martens, 193 So. 835, 838 (Fla. 1940)("we considered it immaterial what name may be applied to the incumbent of a position; if the powers and duties reposed in the incumbent are such that he exercises the functions of sovereignty, then such incumbent is an officer, regardless of the name by which he may be designated or called").

11/ Contrary to the assertion made by Respondent, Petitioner did not voluntarily remove himself from the job market by accepting employment as a substitute teacher.

12/ Petitioner did apply for a correctional officer position with the Broward Sheriff's Office during the back pay period, but he was rejected for the position because he failed a polygraph test.

13/ Such being the case, it would serve no useful purpose to reopen the evidentiary record in the instant case to allow Petitioner the opportunity to present additional evidence on the issue of mitigation.

14/ "Fees for legal services in litigation may be either 'certain' or 'contingent' (or some hybrid of the two). A fee is certain if it is payable without regard to the outcome of the suit; it is contingent if the obligation to pay depends on a particular result's being obtained." City of Burlington v. Dague, 112 S.Ct. 2638, 2640 (1992). In the instant case, the fee arrangement between Petitioner and his attorneys is certain, not contingent.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2498

The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in Petitioner's proposed recommended order and Respondent's post-hearing statement:

Petitioner's Proposed "Findings of Fact"

1. Rejected as a finding of fact because it is a statement relating to the procedural history of this case which is more appropriately included in the Preliminary Statement of this Recommended Order.

   
   

2. Rejected as a finding of fact because it is more in the nature of legal argument.

   
   

3. First sentence: Rejected as a finding of fact because it is more in the nature of legal argument; Second sentence: To the extent that this proposed finding asserts that Petitioner had applied for a position as a police officer with the Metro Dade Police Department, but was rejected for employment because of his diabetes, it has been accepted and incorporated in substance, but not necessarily repeated verbatim, in the Findings of Fact of this Recommended Order. To the extent that it states that this, or any other position for which Petitioner had an application pending during the back pay period, was an "equivalent" position in terms of compensation, job responsibilities, status, promotional opportunities and working conditions, it has been rejected because it is not supported by persuasive competent substantial evidence.

   
   

4. To the extent that this proposed finding states that Petitioner "would have been paid $54,042.22 [as opposed to $54,142.22] from December 3, 1990, through January 3, 1993," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

5. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon that testimony; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument.

   
   

6. Rejected as a finding of fact because it is more in the nature of legal argument.

   
   

7. First sentence: To the extent that this proposed finding states that "Petitioner's attorneys have accumulated $15,923.00 through November 11, 1992, .

   . . in unpaid fees for which Petitioner FERRARO is obligated," it has been accepted and incorporated in substance. To the extent that it makes reference to post-November 11, 1992, attorney's fees, it has been rejected because it is not supported by persuasive competent substantial evidence; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Rejected as findings of fact because they are more in the nature of legal argument.

   
   

8. Accepted and incorporated in substance.

Respondent's Proposed "Findings of Facts"

1-2. Rejected as findings of fact because they are more in the nature of conclusions of law.

1. Rejected as a finding of fact because it is a statement of Respondent's position on the issue of liability which is more appropriately included in the Preliminary Statement of this Recommended Order.

   
   

2. Rejected because it is not supported by persuasive competent substantial evidence.

   
   

3. To the extent that this proposed finding states that Petitioner sought "occasional employment as a substitute teacher" during the back pay period, it has been accepted and incorporated in substance. To the extent that it states that in so doing, Petitioner "voluntarily removed himself from the job market" and denied himself the "opportunity for alternate comparable or substantially equivalent employment" that was available during the back pay period, it has been rejected because it is not supported by persuasive competent substantial evidence.

6-8. Rejected because they are not supported by persuasive competent substantial evidence.

1. Rejected because even if true, it would have no bearing on the outcome of the instant case. Whether or not he was technically "barred" from employment at the South Florida Reception Center because of "his previous resignation during his probationary period," Petitioner reasonably believed that, as a practical matter, he stood no chance of obtaining such employment in view of his "previous [forced] resignation." Moreover, the correctional officer positions at the Center which were advertised during the back pay period, in any event, were not substantially equivalent to the position he was discriminatorily denied by Respondent.

   
   

2. Rejected as a finding of fact because it is more in the nature of legal argument.

   
   

3. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

4. Accepted and incorporated in substance.

   
   

5. Rejected as a finding of fact because it is more in the nature of legal argument.

COPIES FURNISHED:

Roger J. Schindler, Esquire SIMON, SCHINDLER & SANDBERG

1492 South Miami Avenue Miami, Florida 33130

John McInnis, Esquire

Dade County Attorney's Office Metro-Dade Center, Suite 2810

111 N.W. First Street Miami, Florida 33128-1993

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 92-002498

Orders for Case No: 92-002498