STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY C. ABBOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5932

)

CITY OF TALLAHASSEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Stephen F. Dean, duly- designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida, between May 10 and July 9, 1993.

APPEARANCES

For Petitioner: Linda G. Miklowitz, Esquire

Post Office Box 14922 Tallahassee, Florida 32317-4492

For Respondent: Lewis E. Shelley, Esquire

Assistant City Attorney City of Tallahassee City Hall

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

The issues in this cause are whether the Respondent committed unlawful employment practices by refusing to rehire the Petitioner as a full-time police officer, and by terminating her employment as a part-time police officer.

PRELIMINARY STATEMENT

This case concerns a complaint filed by Mary Abbott on November 1, 1990 with the Florida Commission on Human Relations (FCHR) against the City of Tallahassee Police Department (TPD) for sex discrimination. The alleged discrimination arose from Respondent's denial of Petitioner's application to be restored to full-time status, and her subsequent termination from her part-time position as a Tallahassee police officer by letter of the Chief of Police dated August 24, 1990.

FCHR filed a Notice of Determination: Cause on April 27, 1992 and later a Notice of Redetermination: Cause on July 23, 1992. After unsuccessful attempts at effecting conciliation between the parties, FCHR issued a Notice of Failure of Reconciliation on August 13, 1992. The Petitioner filed a Petition for Relief on September 14, 1992, which alleged both sex and age discrimination.

The Petition was transmitted to the Division of Administrative Hearings on October 2, 1992. On October 5, 1992, the Respondent filed a Motion to Dismiss paragraphs 3, 4(b), 4(c) and 4(d) of Petitioner's Petition for Relief. In an Order issued on April 1, 1993, after having heard argument of counsel, the Hearing Officer granted Respondent's Motion to Dismiss in paragraph 3, struck any reference in paragraph 4(b) to other females and inserted the word Petitioner, struck any reference to other females and limited such evidence to Petitioner in paragraph 4(c) and granted the Motion to Dismiss in paragraph 4(d). The Hearing Officer determined prehearing that this case did not include an allegation of hostile work environment, nor was it a case of constructive discharge.

Respondent and Petitioner, individually, submitted a chronology of events applicable to the issues before the Hearing Officer, and Respondent urged the Hearing Officer to prohibit any and all testimony related to Petitioner's full- time employment from February, 1981 through January, 1988, while Petitioner urged the Hearing Officer to permit testimony during that period. The Hearing Officer, on April 26, 1993 and April 29, 1993, ruled that any such testimony related to the period of time from August 1981, through January 1988, would not be admitted pursuant to the terms of the Settlement and Release Agreement executed by the parties on May 21, 1990.

On May 10, 1993, after hearing testimony of Petitioner relating to discussions between Petitioner and Assistant City Attorney, Harriet Williams, the Hearing Officer disqualified the counsel of record for the City of Tallahassee, Harriet Williams. Because Harriet Williams had met with the Petitioner and had participated in negotiations with Petitioner regarding issues which were material and went to the heart of the central issues in the case, it was highly likely that Ms. Williams would be called as a witness, and the Respondent had given notice of its intent to call Ms. Williams or co-counsel as a witness. Co-counsel, Lewis E. Shelley, was permitted to represent the City of Tallahassee, and Ms. Williams was permitted to act as a special representative of the City because of her knowledge of the case and preparation of the case for hearing. On May 11, 1993, counsel for Respondent made an ore tenus motion for reconsideration of the order to disqualify, which was denied by the Hearing Officer. Ms. Williams was called to testify by the Respondent (Vol. IV and V, pgs. 349-512).

On June 1, 1993, counsel for Respondent filed a Verified Petition for Disqualification of the Hearing Officer, which was denied because it was legally insufficient.

Petitioner elected to call only herself as a witness in her case-in-chief. Testimony in this case was taken on ten (10) days between May 10, 1993 and July 9, 1993. Subsequently, the Petitioner moved to extend the time for filing her brief, and this motion was granted over the objection of counsel for Respondent who had filed the city's brief in a timely fashion. The Order established certain limitations upon Petitioner's brief principally directed at preventing it from being a "reply brief" to Respondent's previously timely filed brief.

Thereafter, the Petitioner's counsel failed to file her brief in a timely fashion, and Respondent moved to strike her brief. Petitioner's brief was stricken to the extent that the Hearing Officer directed that Petitioner's brief would not be considered formally and addressed in the Appendix to the order.

Post hearing, both parties filed several motions which requested attorney's fees or reconsideration of a prior order awarding of attorney fees. Having considered these motions, they are denied.

The proposed findings of fact and conclusions of law of both parties were read. Those facts supported by the best evidence presented at hearing were adopted. The findings of the Respondent which were rejected and the reason for their rejection are presented in the Appendix to this order.

FINDINGS OF FACT

1. Mary Abbot, the Petitioner, is a white, female American.

   
   

2. Mary Abbot was employed as a full-time police officer with the City of Tallahassee Police Department in February 1981. Prior to her employment with the Department, she successfully completed pre-employment psychological and physical examinations and was recommended for hiring.

   
   

3. The Respondent stipulates that the Petitioner, Mary Abbott is educationally qualified for employment as a full-time law enforcement officer and is certified by the Florida Department of Law Enforcement.

   
   

4. In 1989 and 1990, the Tallahassee Police Department was hiring police officers. Petitioner's Exhibit 11 indicates the names of the officers hired during this period. During this period both male and female officers were hired.

   
   

5. Petitioner was employed as a full-time police officer by the City of Tallahassee Police Department (TPD) continuously from February 1981 until January of 1988, and from January 1988 until August of 1990 as a part-time officer. During her employment as a police officer, her performance evaluations were above average except for her first evaluation which was average. No disciplinary action of any kind was ever taken against the Petitioner, and no complaints were made against her which were determined to be of substance after investigation.

   
   

6. Prior to March of April of 1985, the Petitioner had a romantic relationship with a superior officer, Lieutenant George Creamer. This relationship was maintained discretely by both parties and was not known within the Department. In March or April of 1985, this relationship was terminated, and the Petitioner, suffering from a depression, requested a conference with Lieutenant Tom Coe to discuss this relationship. Lieutenant Creamer was confronted with the existance of the relationship, and denied it, giving rise to the belief by Petitioner's supervisors that she was delusional. Petitioner was forced to undergo counseling, and the Department's psychologist, Mark Bronsdorf, reported on the Petitioner's condition to the administration of the Department. This ultimately led to a confrontation among the counselor, the Petitioner and her superiors in the Department, in which the Petitioner was given the choice of voluntarily being hospitalized for psychological observation and evaluation, or not working.

   
   

7. Given this choice, the Petitioner admitted herself "voluntarily" to Tallahassee Memorial Regional Medical Center Psychiatric Center for observation and evaluation at her own expense.

8. Upon her release, the Petitioner was placed on a forced leave of absence for three months at which time her sick leave was used up. At this time, the Petitioner received an above average performance evaluation. Before being permitted to return to duty, Petitioner was required to be evaluated by Patrick E. Cook, the City's contract psychologist, who found her fit for duty but recommended that she remain in counseling at her own expense.

   
   

9. In his interview of Petitioner, Dr. Cook asked Petitioner questions regarding her decision to undergo tubal ligation, which Petitioner considered inappropriate and unrelated to her examination. Dr. Cook testified and admitted that his questioning about Petitioner's tubal ligation was unrelated to his examination on her fitness for duty. He also admitted that, as his report reflected, that had he would not have recommended her hiring had he been assessing Petitioner for initial employment as opposed to returning to duty.

   
   

10. The Petitioner's claim of bias on the part of Dr. Cook was based upon his having required her to pay for her own mandatory counseling as part of her therapy, and comments contained in his report of 1985 which indicate that Dr. Cook would not have recommended the Petitioner for employment on a full-time basis if she had not already so employed and had established that she could satisfactorily perform the duties of a police officer with the Tallahassee Police Department.

    
    

11. On October 1, 1985, the Petitioner was restored to full status by Melvin Tucker, Chief of Police. Thereafter, the Petitioner was seen by George Rosselot, another psychologist, who discharged her from further counseling having determined that Petitioner was in good mental health.

    
    

12. Lieutenant Creamer, who had initially denied the existance of a relationship with the Petitioner, was not forced to submit to psychiatric evaluation, was not disciplined for having a relationship with a subordinate officer or for lying about the relationship to his superiors. Further, when Lt. Creamer ultimately sought counseling to deal with the identical issue, it was paid for by the Department.

    
    

13. In January of 1988, the Petitioner resigned from her position as a full-time police officer with the City of Tallahassee. There were several reasons for her resignation, but chief among them was her disparate treatment by the Department, as described above, and her perception that her future within the Department had been compromised by her required hospitalization for psychological reasons together with Lieutenant Creamer's initial denials of their prior relationship which lent credence to the perception that the Petitioner was of less than sound mind.

    
    

14. Testimony was received from various officers that lack of confidence in a fellow officer's sound mental state was a basis for suspicion and rejection of the suspect officer.

    
    

15. In addition, between 1985 and late 1988, the general treatment of female officers was a matter of contention between many older officers, many of whom were in leadership positions, who did not fully respect the abilities of female officers.

    
    

16. The Petitioner had applied on November 13, 1987, to become a full-time investigator with the State Comptrollers Office in the Department of Banking and Finance of the State of Florida. Subsequent to her resignation in January of 1988, the Petitioner was employed full-time at the Comptroller's Office,

17. The Petitioner's letter of resignation made no mention of any problems with the City of Tallahassee Police Department. The Petitioner indicated that her reason for leaving the Department was to take a full-time position with the State of Florida.

    
    

18. At the same time Petitioner submitted her resignation from her full time position with the Tallahassee Police Department, she applied to become a reserve officer with the Department. Reserve officers must meet all of the criteria of a regular officer and have the same authorities and duties; however, they are not full-time employees.

    
    

19. In the early summer of 1989, the Petitioner was contacted by Captain Joan Vanmeter, who was in the Department's personnel office, and was urged to contact Harriet W. Williams. (Vol. I, pg. 52.) On June 28, 1989, the Petitioner met with Harriet W. Williams who asked Petitioner a standard set of questions regarding issues related to the pending lawsuit brought by Linda Koss against the Police Department. During the meeting, the Petitioner expressed her feelings about the treatment that she had received while with the Department.

    
    

20. The concerns Petitioner expressed to Ms. Williams centered upon Petitioner having been required to undergo, at her own expense, counseling and hospitalization, and her subsequent loss of confidence and credibility with her fellow officers due to this hospitalization and the denials by Lieutenant Creamer of their relationship.

    
    

21. Shortly after the Petitioner's meeting with Harriet W. Williams, the Petitioner had a chance meeting with Melvin Tucker, Chief of Police, at the State Capitol Building. During this meeting she indicated her interest in returning to full-time employment with the Tallahassee Police Department, and Chief Tucker indicated that she should make an application to the Department, and come to see him.

    
    

22. On or about July 18, 1989, Petitioner submitted an application for employment as a full-time law enforcement officer with the Tallahassee Police Department. The Petitioner made an appointment to see Chief Tucker at his office, and the Chief advised her, that having left in good circumstances, there was no reason she could not return to full employment. (See Vol. IV, pgs. 357-8 and Vol. I, pgs. 52, 56, 57, 59, Vol. III, pgs. 275, 276, Vol. IV, pgs. 351, 353, 356, 357, 359, 361, 363.)

    
    

23. Through her discussions with the Petitioner, Harriet W. Williams became aware of the Petitioner's assertions that she had been treated inappropriately by having to pay for counseling required by the Department and being forced to take leave. Ms. Williams brought Petitioner's grievances to the attention of the police department's personnel office and sought to obtain some recompense for the Petitioner.

    
    

24. While the Petitioner's application for full-time employment was pending with the Department, the Chief was made aware of the nature and extent of the Petitioner's grievances which related back to Petitioner's previous full- time employment with the Department as a result of Petitioner's discussions with Ms. Williams.

    
    

25. After the Chief became aware of the Petitioner's grievances as outlined above, he had a meeting with the Petitioner in which he advised the Petitioner that he had become aware of the matters which concerned her. The

    Chief indicated that he too was concerned about some of these matters, and urged the Petitioner to work with the personnel department and Ms. Williams and to see if these could be settled.

    
    

26. While the Petitioner's application for full-time employment was pending, she discussed settlement of these matters with Mrs. Williams, who prepared a tentative settlement which was presented to the Petitioner. After receiving the proposed settlement, the Petitioner obtained counsel to assist her in determining whether she should accept the proposed settlement.

    
    

27. Notwithstanding whether it was stated directly, the facts reveal that settlement of Petitioner's prior grievances became part of the discussions of her re-employment on a full time basis.

    
    

28. Within the context of these discussions, Petitioner was advised that she would be required to undergo a complete physical, to include gynecological examination, and would have to undergo psychological assessment. A gynecological examination is part of a complete physical. These demands also became a part of the negotiations between Ms. Williams, the Petitioner and Petitioner's counsel. The issues being negotiated included reimbursement of Petitioner for the counseling she had been required to undergo during her prior full-time employment, her objections to another gynecological examination, and her objections to another psychological assessment.

    
    

29. As the demands seesawed back and forth during the negotiations, the Petitioner also requested that Lieutenant Creamer be required to acknowledge his prior relationship with her in order to reestablish her credibility with the coworkers.

    
    

30. The panoply of the Petitioner's demands were presented to the Chief by Ms. Williams, the Department's personnel staff, and by the Petitioner. Based upon the information which he received, the Chief reached a negative conclusion about rehiring the Petitioner based upon his concerns about her ability to reintegrate herself into the Department. Based upon this determination, the Chief directed the Assistant City Attorney, Ms. Williams, to send the Petitioner a letter withdrawing the offer of reemployment. This letter was sent to Petitioner's attorney on December 7, 1989, and stated as follows:

    
    

    Inasmuch as the overall assessment regarding Mary's hiring as a full-time law enforcement officer has raised numerous concerns in regard to her past employment, as well as concerns for her future employment, I regretably advise, Chief Melvin Tucker hereby withdraws any offer for full-time employment of Mary Abbott.

    
    

31. The Department's letter of December 7, 1989 had discontinued negotiations regarding who would conduct the psychological assessment and whether the Petitioner would be required to have a gynecological examination.

    
    

32. On March 21, 1990, the Petitioner and the City reached an agreement to refund to Petitioner most of the $2,500 in counseling fees which she had paid during her previous full-time employment for counseling. This money was a reimbursement of her counseling expenses and covered nothing beyond the straight reimbursement.

33. In June of 1990, the Petitioner left the employ of the Comptroller's Office and immediately increased her part-time hours at the Tallahassee Police Department. Petitioner for leaving the Comptroller's Office were related to a conflict with Dorothy Sheppard, a coworker, with whom the Petitioner had had at least one prior conflict.

    
    

34. In July of 1990, the Petitioner wrote the Chief of Police a letter asking that her application of July 1989, be reconsidered. The Chief of Police, through his personnel officer, referred the matter to Harriet W. Williams to determine if Ms. Williams had any information pertaining to the letter. Petitioner also wrote Catherine Spears of the Department's personnel office indicating Petitioner's willingness to submit to preemployment screening if the psychological portion could be performed by George Rosselot and if Dr. Preston could perform the physical examination.

    
    

35. The City determined that it would consider Petitioner's letter of July 23, 1990, as reactivating her full-time application, and the City reviewed the Petitioner's application for full-time employment with the TPD.

    
    

36. On or about August 15, 1990, Tom Hinkle, an investigator with the Tallahassee Police Department, reviewed Petitioner's employment file in the Office of the State Comptroller. Based upon Hinkle's findings, the Chief of Police spoke with the Assistant Comptroller, Larry Fuchs, who advised the Chief of the problems the Petitioner had had with Mrs. Sheppard.

    
    

37. On December 7, 1989, the Tallahassee Police Department received a complaint from Dorothy Sheppard, an employee of the State Comptroller's Office, who alleged that the Petitioner had assaulted her in their mutual workplace.

    
    

38. Officer's of the Tallahassee Police Department responded and investigated the alleged Sheppard incident. The Chief of Police was made aware of this because it involved an officer; however, no internal investigation was initiated. The complaint was closed administratively with the notation "exceptionally cleared."

    
    

39. Harry Mills, the Petitioner's supervisor at the Comptroller's Office, gave a reprimand to both Sheppard and the Petitioner both of whom he supervised.

    
    

40. Subsequently, Petitioner's evaluation reflected the comment that she could not get along with coworkers, and Petitioner appealed the evaluation and it was changed to reflect problems with one coworker.

    
    

41. The Petitioner resigned from the Comptroller's Office, had a good record with that office, and was eligible for rehire by that office.

    
    

42. The Department's representatives had represented to the Petitioner that she would be required to undergo a complete psychological and physical examination to include gynecological examination. The Chief was also aware of the Petitioner's refusal to submit to a psychological evaluation by Patrick Cook, and her refusal to submit to a physical examination.

    
    

43. While considering the Petitioner's renewed application, the Chief was advised that the Petitioner was working approximately 80 hours per month as a part-time officer.

    
    

44. On August 24, 1990, the Petitioner was denied full-time employment and terminated from her part-time reserve status by a letter from the Chief of

    Police. The letter of termination was given to the Petitioner by Captain Gary Lassiter in the presence of the Petitioner's counsel at that time, John Stuart.

    
    

45. The Department's letter of termination of August 24, 1990, (Petitioner's Exhibit 8/Respondent's Exhibit 24) states that the reason for denying her full-time employment is "your prior record with TPD and your subsequent employment with the State of Florida Comptroller's Office." The letter states in its second paragraph that the reason for terminating the Petitioner from her part-time position is that "it would be inconsistent . . . to reject you as a full-time applicant and to continue to allow you to continue to work as a reserve officer."

    
    

46. The Tallahassee Police Department had employed at least one other officer, Wayne Deason, who could not qualify as a full-time, solo officer with the Tallahassee Police Department but was permitted to continue as a reserve officer. Officer Deason had failed to satisfactorily complete his probationary period with the Department, but was permitted to stay in part-time status.

    
    

47. The Petitioner filed an appeal of her termination from part-time employment and denial of full-time employment pursuant to PTL 145, and on October 12, 1990, the Chief of Police responded to the Petitioner's grievance confirming his decision to deny full-time employment and terminating her from her part-time employment.

    
    

48. The Department asserted at hearing that its policy was to require part-time reserve officers seeking full-time employment to undergo full

    psychological and physical examination. The Department asserts that this policy had been applied to part-time reserve officers prior to the Petitioner's application for full-time employment in 1989.

    
    

49. The evidence revealed that the Department first applied this policy in December 1988, when Tom Herzog, a reserve officer applying for full-time employment, was assessed by Patrick E. Cook. Patrick E. Cook researched his records, and reported by letter (Respondent's Exhibit 26) that Herzog had been initially evaluated in 1981 and had been reevaluated in December of 1988 prior to his full-time employment.

    
    

50. The Petitioner distinguishes Herzog's case from that of Petitioner on the basis that Herzog had never served as a full-time officer prior to December of 1988.

    
    

51. Subsequent to the Petitioner's case, the Department has applied this policy to all employees seeking permanent full-time employment. The Department has not applied this policy retroactively to officers who are currently full- time employees. Prior to the Petitioner's application in 1989 for full-time employment, the Department had reemployed officers in full-time positions without psychological and physical examinations.

    
    

52. The Department asserts that its withdrawal of the offer of employment on December 7, 1989, was based on Petitioner's general attitude and demeanor exhibited to the Chief of Police and Petitioner's refusal to submit to psychological and physical examination as inferred from communications from her counsel, Janet Ferris.

    
    

53. Dr. Cook's recommendation that Petitioner pay for her own counseling , and his comments as outlined in Paragraph 8, above, reveal a reasonable basis

    for Petitioner to conclude that Dr. Cook would have a bias against her, and to request evaluation by another psychologist.

    
    

54. The evidence revealed that the Department had permitted another female officer to be evaluated by another psychologist at the officer's request because they had had a previous professional relationship.

    
    

55. Regarding physical examinations of female officers, the doctors administering these examinations indicated that they did not perform gynecological examinations if a female officer objected, particularly if the officer had been examined by her own physician.

    
    

56. The Tallahassee Police Department had employed on a part-time basis at least one officer, Wayne Deason, who could not qualify as a full-time, solo officer with the Tallahassee Police Department. Officer Deason was permitted to continue as a reserve officer, notwithstanding his inability to qualify for employment as a solo officer by satisfactorily completing his probationary period with the Department.

    
    

57. At the time the Chief determined that he would not reemploy the Petitioner full-time in August of 1990, he had not had any personal contact with the Petitioner for nearly a year.

    
    

58. During the period Petitioner was placed on a forced sick leave, she satisfactorily completed a tour of inactive duty with the Guard/Reserve in a command position.

    
    

59. In October 1985, the Petitioner received an above average performance evaluation, was removed from conditional status, and restored to full status. Her subsequent performance with the Department with the Department between 1985 and her resignation of 1988, was above average.

    
    

60. The Department persisted in attempting to force Petitioner to be evaluated by Dr. Pat Cook, a clinical psychologist, as a condition of reemployment in a full-time position, notwithstanding that the Petitioner had brought to the attention of the Department that Dr. Cook had made statements in his 1985 report indicating a potential bias on his part.

    
    

61. Dr. Cook testified at the hearing and acknowledged that he had made these statements in his 1985 report.

    
    

62. The Petitioner's concerns about Dr. Cook's potential bias had a factual foundation.

    
    

63. In 1990, the Petitioner did not categorically reject psychological evaluation. The Petitioner suggested psychological evaluation by George Rosselot as an alternative to examination by Dr. Cook.

    
    

64. The Department's steadfast refusal to permit the Petitioner's evaluation to be performed by another psychologist and evidence that females were permitted to skip gynecological examinations are evidence of prejudice against the Petitioner.

    
    

65. The Petitioner has sought, and has been unable to obtain, employment with other law enforcement and investigative agencies. The Petitioner has suffered a loss of income as a result of these actions against her. The Petitioner has incurred legal expenses in prosecuting this litigation.

66. The Petitioner also filed a complaint with the Florida Commission on Human Relations. Pursuant to Policy 7-10.07H, the City ceased action on Petitioner's other City grievances because when a grievance is filed outside the agency is deemed to waive an internal grievance.

    
    

67. The Executive Director of the Florida Commission on Human Relations made a determination of cause on April 24, 1992.

    
    

68. If Mary Abbott had been reemployed as a full-time officer in late August, 1990, she would have earned $9,210.62 in 1990, $28,297.76 in 1991;

    $30,215.72 in 1992, and $28,302.40 through November, 1993 from the City of Tallhassee excluding overtime or part-time employment. Petitioner's part-time employment would have been limited to twenty (20) hours per week.

    
    

69. The city's contribution to social security and the retirement system are set by federal and state statutes.

    
    

    CONCLUSIONS OF LAW

    
    

70. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

71. Section 760.10(1), Florida Statutes, makes it unlawful for an employer to discriminate against an individual based upon the individual's gender. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C., Section 2000e, et seq., as such as precedent in federal cases construing provisions of Title VII which are similar to those of the Florida law should be accorded great deference.

    
    

72. The Supreme Court of the United States established in McDonald Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), that the burden of proof was on the Petitioner to establish that the employer had engaged in disparate treatment contrary to the statute. The Florida Commission on Human Relations has adopted the same standard. See, Kilpatrick v. Howard Johnson Company, 7 FALR 5468, 5475 (FCHR 1985).

    
    

73. McDonald Douglas, supra, places the burden of proving a prima facia case of discrimination upon the plaintiff. McDonald Douglas permits the plaintiff to establish a presumption of discrimination upon presenting a prima facia case. In a failure to hire case to raise the presumption, the plaintiff must prove (1) that he belongs to a protected class (2) that he was qualified for the job for which the employer was seeking applicants; (3) that he was rejected despite his qualifications; and (4) that after rejection, the position remained open and the employer continued to seek applicants with the plaintiff's qualifications. See McDonald above, at page 802.

    
    

74. In a discriminatory discharge case to raise the presumption, the plaintiff must prove that (1) the plaintiff is qualified for a position (2) he was discharged; and (3) he was replaced by a person outside the protected class (or persons outside the protected class were retained). See Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982); Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).

75. Proof necessary to raise the presumption is not the equivalent of a factual finding of discrimination. The employer may completely rebut the presumption by introduction of evidence of legitimate nondiscriminatory reasons for its actions that are adverse to the petitioner. Upon presentation of evidence of legitimate nondiscriminatory reasons, the plaintiff may present evidence that the petitioner's reasons were pretextual.

    
    

76. In the recent case of St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993), the court clarified its previous ruling in Burdine, above, regarding proof by petitioner that the respondent's actions were pretextual as a basis for determining liability on the part of the employer. In St. Mary's, the trial court held that plaintiff's proof that the respondent's reasons were pretextual, but ruled in favor of the respondent. The appellate court reversed, holding proof of pretextual automatically established discrimination. The U.S. Supreme Court reversed the apellate court, holding that the trier of fact must determine whether the respondent intentionally discriminated against the petitioner.

    Proof of the reasons for adverse action were pretexual is not tantamount to proof of discrimination.

    
    

77. In sum, it is not enough to disbelieve the employer's reasons, and the fact finder must believe the petitioner's proof that the discrimination was intentional. In reaching this decision, the court in St. Mary's, states as follows:

    
    

    Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of (in the context of the present case) race. That the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason of race is correct. That remains a question for the fact finder to answer . . . [.]

    
    

78. In the case of Sennello v. Reserve Life Insurance, 667 F.Supp 1498, (S. Dist Fla. 1987), the court held that a McDonald Douglas type of analysis does not apply where direct evidence of discrimination has been introduced. Citing Thompkins v. Morris Brown College, 752 F.2d 558 (11th Cir. 1985), the court stated that if the fact finder credits the direct evidence, thereby concluding that discriminatory intent existed, "a presumption is created that an unfavorable employment action was the product of the discriminatory intent."

    See Hill v. Seaboard Coastline Railroad, 767 F.2d 771 at 775 (11th Cir. 1985), and Perryman v. Johnson Products Co., 698 F.2d 1138 at 1143 (11th Cir. 1983). When the presumption of discriminatory intent is based upon direct evidence, this presumption may only be rebutted by a showing by the employer by a preponderance that the adverse employment action would have been taken in the absence of the discriminatory intent. See Hill, above, at 775.

    
    

79. In this case, the employer refused to hire the Petitioner and subsequently discharged the Petitioner from her part-time position. Regarding the Petitioner's proof relating to the refusal to hire, the Petitioner proved that she was a member of a protected class, that she was qualified for the job for which the employer was seeking applicants, that she was rejected despite her

    qualifications, and that the position remained open and the employer sought and hired other applicants with her Petitioner's qualifications. Similarly, relating to the discriminatory discharge, the Petitioner proved additionally that she was qualified for the position, she was discharged from the position, and other individuals outside the protected class were retained by the employer.

    
    

80. In addition, the Petitioner presented direct evidence of disparate treatment based upon gender regarding the manner in which she was treated and the manner in which Lieutenant Creamer was treated in 1985. Although the Petitioner is precluded from recovering any damages for the employer's acts at that time, the hearing officer's consideration of this evidence is consistent with the court's actions in Robinson v. Jacksonville Shipyard, Inc., 760 F. Supp 1486, (M.D. Fla 1991). The Petitioner showed that she was forced, under threat of discharge, to admit herself for treatment of a depression, forced to take extensive sick leave after having been discharged from the hospital, and forced to continue additional counseling all at her own expense; as opposed to Lieutenant Creamer who was not disciplined for maintaining the relationship or for lying about having the relationship, and who was not required to undergo counseling, but when he did, the Department paid for it.

    
    

81. The Chief's testimony made it clear that the underlying reason for not employing the Petitioner and for her subsequent discharge was based on her request to have Lieutenant Creamer acknowledge the relationship which he had formerly maintained with the Petitioner. Notwithstanding that Lt. Cramer's false denials had damaged Petitioner's professional credibility and her desire to repair her professional reputation, the Chief stated that he "did not want to hire a problem," and he was concerned that the Petitioner had failed "to put the past behind her."

    
    

82. It is clear from the treatment accorded Lieutenant Creamer that the standard for male officers in similar circumstances was significantly different. The Department took no discipline against the Lieutenant for maintaining a relationship with a subordinate or for lying about the existence of the relationship. The Department paid for the Lieutenant's counseling and promoted him to the next highest rank subsequent to this incident. Taken as whole, it is clear that the command staff and Chief were afraid of hiring or retaining in employment "a woman scorned." As the woman scorned, the Petitioner's gender played a motivating factor in the Department's employment decision. This is sexually discriminatory conduct based upon sexual stereotyping. See Price Waterhouse v. Hopkins 104 L.Ed2d 268 at 272 (1989), and Robinson v. Jacksonville, Shipyards, Inc., 760 F. Supp. 1486, at 1522.

    
    

83. The Department could avoid liability by proving by a preponderence of the evidence that it would have made the same decision even if it had not taken the Petitioner's gender into account. However, the evidence of Respondent's demands that the Petitioner take a psychological examination from Dr. Cook, notwithstanding the Petitioner's suggestion of his potential bias, and the Respondent's demand for a complete physical to include gynecological examination when the physicians administering such examinations indicated that these were not required, show a continued pattern of disparate treatment based upon sexual stereotyping. See Price Waterhouse v. Hopkins , supra, and Robinson v. Jacksonville, Shipyards, Inc., supra.

    
    

84. Regarding consideration of the 1985 incidents, it is permissible for the fact finder to go back into time once a prima facie of discrimination is made. In this case, the incidents of 1985 are a well from which all of the participating parties have drunk.

85. The Petitioner showed disparate treatment based upon gender in the 1985. The Petitioner's resignation of January of 1988, does not constitute a constructive discharge and does not entitle Petitioner to backpay prior to August 1989.

    
    

86. The Petitioner's damages for Respondent's failure to hire her should run from 30 days after the date of her application, July 18, 1984, until the present, and are $96,026.50. In addition, the Petitioner should receive the monetary value during this time of the employer's payments to Social Security, retirement, and any health insurance normally provided to its employees. From the date of December 7, 1990, to the present the Petitioner should receive an additional twenty hours per month overtime, or one-half of the amount stated above which was based upon a 40 hour week ($48,013.25). This would be a total of $144,039.75 plus the contributions by the city to social security and retirement, and the monetary value of her health benefits less her income from all sources from August 1990.

    
    

87. In addition, the Commission should order the Department to employ the Petitioner in a position and at a salary appropriate to her experience and service, and maintain jurisdiction over the case to insure that the employer ceases its discriminatory treatment of the Petitioner.

    
    

88. Although the participation of counsel in this case was often contentious, counsel for both parties labored hard and were vigorous in the presentation in their cases. The hearing officer's order disqualifying Ms. Williams was not based on any hint of misconduct or wrongdoing, but was ordered solely because of Respondent's notice that it might call her as a witness and the indications in Petitioner's testimony that Ms. Williams' potential testimony would be material. Ms. Williams' conduct in all respects was beyond reproach. In like manner, the efforts of counsel for Petitioner, Ms. Miklowitz, were tenacious and inventive to the significant benefit of her client. If the Commission approves the recommendation in this matter, Petitioner's counsel is entitled to a reasonable attorney's fee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner be awarded damages for her lost wages and

benefits from August 1990 until the present, plus the economic value of any contributions the employer would have made to Social Security, retirement, and health care. Further, that the Petitioner recover damages for part-time employment at the rate of twenty (20) hours a month ($144,039.75) together with any applicable fringe benefits less her reported income, that Petitioner be awarded attorneys fees and costs, that the Commission direct the Respondent to employ immediately the Petitioner in a position appropriate to an officer with her educational and work experience, and that the Commission maintain jurisdiction over the case to insure that the Respondent ceases its disparate treatment of the Petitioner.

DONE AND ENTERED this 5th day of November, 1993, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 5th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5932

Respondent, City of Tallahassee's proposed findings were read and considered. The following list indicates which findings were adopted, where they can be found in the recommended order, and which were rejected and why:

Respondent's In Recommended Order Proposed RO

1.-16. Preliminary Statement

1. Adopted in paragraph 2.

2. Adopted in paragraph 5.

3. Subsumed in paragraph 5.

20.-22. Rejected. See paragraph 6.

23. Rejected. See paragraph 8.

24.-26 Rejected, irrelevant.

27.-29. Rejected. See paragraph 9.

1. Rejected, irrelevant.

2. Adopted in paragraph 16.

3. First sentence adopted in paragraph 13. Second sentence adopted as paragraph 17.

4. Adopted in paragraph 18.

5. Adopted in paragraph 19.

6. Adopted in paragraphs 19 & 20.

7. Adopted in paragraph 21.

8. Rejected, irrelevant.

9. Rejected, irrelevant, contrary to facts; see paragraphs 23-24.

10. Adopted in paragraphs 23 & 24.

11. Adopted in paragraph 22.

41.-42. Rejected, irrelevant.

1. Adopted in paragraphs 27, 28 & 29.

2. Rejected, irrelevant.

3. Rejected, irrelevant, contrary to facts; see paragraph 26.

4. Rejected, irrelevant.

5. Rejected, irrelevant.

6. Adopted in paragraph 28.

7. Rejected, irrelevant.

8. First sentence adopted in paragraphs

   28 & 30. Second sentence rejected as

   contrary to facts - see paragraphs 30, 31 & 32.

9. Rejected as contrary to facts - see paragraphs 30, 31 & 32.

52.-55 Adopted in paragraph 28.

56.-57. Rejected, irrelevant.

58.-59. Adopted in paragraphs 36 through 41.

1. Rejected, irrelevant.

2. Adopted in paragraph 31.

62.-64. Adopted in paragraph 34.

65.-66 Adopted in paragraph 35.

1. Adopted in paragraph 36.

2. Adopted in paragraph 42.

3. Adopted in paragraph 43.

4. Adopted in paragraph 44.

5. Adopted in paragraph 45.

6. Rejected, irrelevant.

7. Adopted in paragraph 44.

74.-75. Rejected, irrelevant.

76.-77. Adopted in paragraph 47.

78.-82. Adopted in paragraph 66.

83. Adopted in paragraph 67.

84.-86. Rejected, irrelevant.

1. Rejected as contrary to best evidence.

2. Adopted in paragraph 49.

3. Rejected, irrelevant; see paragraph 51.

4. Adopted in paragraph 51.

5. Rejected, irrelevant.

92.-93. Adopted in paragraph 52.

94. Adopted in paragraph 4.

95.-97. Rejected, irrelevant.

98.-99. Adopted in paragraph 52.

100.-101 Adopted in paragraph 68.

1. Adopted in paragraph 33.

2. Rejected as contrary to best evidence.

COPIES FURNISHED:

Ms. Sharon Moultry Clerk

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Dana C. Baird, Esq.

General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, FL 32317-4492

Lewis E. Shelley, Esquire Assistant City Attorney City of Tallahassee

City Hall

Tallahassee, FL 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period 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.

=================================================================

AGENCY REMAND

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

MARY C. ABBOTT,

EEOC Case No. 15D910011

Petitioner, FCHR Case No. 91-0502 DOAH Case No. 92-5932

v. FCHR Order No. 94-082

CITY OF TALLAHASSEE,

Respondent.

/

ORDER FINDING THAT AN UNLAWFUL EMPLOYMENT PRACTICE OCCURRED; AWARDING IMMEDIATE EMPLOYMENT; AND REMANDING THE MATTER TO THE HEARING OFFICER

FOR DETERMINATION OF OTHER RELIEF

Preliminary Matters

Petitioner Mary C. Abbott filed a complaint of discrimination pursuant to the Human Rights Act of 1977, as amended, Section 760.01-760.10, Florida Statutes (1989). Petitioner alleged that Respondent City of Tallahassee unlawfully discriminated against her on the basis of her sex when it denied her application to be restored to full-time status as a police officer and terminated her from her Position as a part-time police officer.

The allegations set forth in the complaint here investigated and on April 27, 1992, the Executive Director issued his determination, finding that there existed reasonable cause to believe that an unlawful employment Practice had occurred.

Respondent requested a redetermination of this finding and on July 23, 1992, the Executive Director issued his redetermination finding that the initial determination properly found reasonable cause to believe an unlawful employment practice occurred.

Subsequently, the Petitioner filed a Petition for Relief which alleged both sex and age discrimination, and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

A formal administrative hearing was held in Tallahassee, Florida, on ten days between May 10, 1993, and July 9, 1993, before Hearing Officer Stephen F. Dean.

Hearing Officer Dean issued a Recommended Order finding that an unlawful employment Practice occurred, dated November 5, 1993, and subsequently issued an "Order Pursuant to Rule 60Q-2032," dated November 24, 1993, making corrections to the Recommended Order.

Public deliberations were held on Wednesday, October 26, 1994, in Tallahassee, Florida, before this panel of Commissioners.

FINDINGS OF FACT

The Hearing Officer's findings of fact are supported by competent substantial evidence, including the finding that unlawful employment practices occurred. We adopt the Hearing Officer's findings of fact as stated in the Recommended Order and, where indicated, corrected by the Order Pursuant to Rule 60Q-2.032.

CONCLUSIONS OF LAW

The Commission has the authority to reject or modify the conclusions of law and interpretation of administrative rules in the Recommended Order. Section 120.57(1)(b)(10), Florida Statutes (1993).

While the Hearing Officer made conclusions of law as to the applicability of the "direct evidence" theory of proof in discrimination cases and the "sexual stereotyping" theory of proof in discrimination cases, we note, without disturbing them, that these conclusions are unnecessary.

The Hearing Officer found that Petitioner had established a prima facie case of discrimination using the McDonnell Douglas analysis outlined by the Hearing Officer in the Recommended Order. Recommended Order, 72-77 and 79.

While there is no specific finding by the Hearing Officer that Respondent articulated a legitimate, nondiscriminatory reason for its treatment of Petitioner, we note that there are findings in the Recommended Order to support such a finding. See Recommended Order, 45

Findings also exist in the record to support the ultimate finding that Respondent committed an unlawful employment practice then it failed to restore Petitioner to a position as a full-time police officer and terminated her from her position as a part-time police officer. See e.g., Recommended Order, 81, 82 and 85.

Consequently, we note that sufficient findings have been made to support the ultimate finding that an unlawful employment practice occurred, using the "disparate treatment" theory of proof.

The overall application of law by the Hearing Officer is a correct disposition of the case. With these clarifications incorporated, and with the exception of matters discussed in the Remedies section of this Order, infra, we adopt the Hearing Officer's conclusions of law.

Respondent`s Exceptions

The Respondent filed 32 numbered exceptions to the corrected Recommended Order (two of the exceptions are designated number 32). Exceptions 1 through 5 deal with what Respondent characterizes as PRELIMINARY MATTERS, and exceptions 6 through 32 deal with what Respondent characterize as FINDINGS OF FACT

PRELIMINARY MATTERS

Exception 1 excepts that the Hearing Officer failed to follow prehearing rulings with regard to the admission of certain types of evidence. While, admittedly, the record reflects some confusion as to this issue, we believe the transcript of the pretrial conference reflects that the Hearing Officer intended to consider evidence as it was presented and to rule on admissibility based on whether the situation was appropriate for the presentation of the evidence in question. (See Transcript pages 24 through 29.)

We reject exception 1

Exception 2 excepts to the Hearing Officer's failure to make a finding of fact as to the disqualification of Respondent's counsel. While not located in the Findings of Fact section of the Recommended Order, the Commission notes Recommended Order 88, in which the Hearing Officer sets out reasons for his disqualification of Respondent's counsel.

We reject exception 2.

Exception 3 excepts to the Hearing Officer's failure to make a finding of fact as to his refusal to recuse himself when presented with a verified motion for disqualification while not located in the Findings of Fact section of the Recommended Order, the Commission notes that in the Preliminary Statement section of the Recommended Order the Hearing Officer states, "On June 1, 1993, counsel for Respondent filed a verified Petition for Disqualification of the Hearing Officer, which was denied because it was legally insufficient."

We reject exception 3.

Exception 4 maintains that the Hearing Officer acted inconsistently with a ruling striking Petitioner's proposed recommended order by indicating that he had read the proposed order and exception 5 excepts to the Hearing Officer's failure to rule on Respondent's motion to expedite the award of attorney's fees to the Respondent made by the Hearing Officer on April 29, 1993.

We find that whether the actions taken by the Hearing Officer in these matters amounted to error has no bearing on the disposition of the overall issues to be determined by the Commission, and we, consequently, reject exceptions 4 and 5.

FINDINGS OF FACT

Collectively, exceptions 6 through 32 suggest that many of the Hearing Officer's findings are not supported by competent substantial evidence; that the Hearing Officer applied the wrong legal standard in the case and misapplied the appropriate legal standard; that evidence was admitted that was barred by statute of limitations, settlement and release agreement or as outside the scope of the Petition for Relief; and that the Hearing Officer was in error when he permitted testimony during Petitioner's rebuttal case on issues never raised during the Respondent's case in chief.

We have found the Hearing Officer's findings of fact to be supported by competent substantial evidence.

Consequently, we reject exceptions 7, 8, 9, 10, 11, 13 1, 1E, 17, 18, 19,

20, 21, 22, 23, 24, 25, 27, 30, 31 and both exceptions designated "32."

Exceptions 12, 28 and 29 except to the manner in which various legal standards were applied by the Hearing Officer in deciding the case.

We have found that the Hearing Officer's overall application of law is a correct disposition of the case, and, noting our analysis and clarifications under Conclusions of Law, supra, we reject exceptions 12, 28 and 29.

Exception 26 excepts to the admission of testimony during Petitioner's rebuttal case on issues that were never raised during Respondent's case in chief.

The Commission noted that it is well settled that a formal administrative proceeding need not contain all the formalities of judicial proceedings. See, e.g., Ridgewood Properties, Inc. v. Department of Community Affairs, 562 So.2d

322 (Fla. 1990). In addition, we note that the shifting of burdens in employment discrimination cases is reason to allow the parties, both Petitioners and Respondents, great latitude in the order in which evidence is presented and admitted.

We reject exception 26.

Exceptions 6 and 14 except to the admission of evidence characterized by Respondent as barred by the statute of limitations, the settlement and release agreement or as beyond the scope of the Petition for Relief.

The Commission notes that once a prima facie case of discrimination has been established from facts occurring within the statute of limitations period, it is permissible to look beyond that time period for evidence of discriminatory Intent. See, e.g., United Airlines, Inc. v. Evans, 431 U.S. 553 at 558 (1977); Caldwell v. National Association of Home Builders, 771 F.2d 1051 (7th Cir 1985); Dowdell v Sunshine Biscuits, Inc., 90 F.R.D. 107 at 116 (M.D. Ga. 1981); and Leffingwell v. Sears Roebuck and Company, 717 F.Supp. 620 (N.D. Ill. 1989).

We reject exceptions 6 and 14.

Petitioner's Exceptions

Petitioner filed eight numbered exceptions to the Hearing Officer's corrected Recommended Order relating to issues of remedy, findings of fact made by the Hearing Officer, and the Hearing Officer's striking of Petitioner's age discrimination claim.

Exceptions 1, 2, 3 and 4 except to various aspects of the Hearing Officer's handling of the remedy issue.

We have upheld the Hearing Officer's findings with regard to the remedy issue in the case, generally, but have found it necessary to remand the matter to the Hearing Officer for clarification of some remedy issues as outlined in the Remedies section of this Order, infra. Exceptions 2 and 3 also argue that changes made by the "corrected order" inappropriately go beyond clerical mistake or error. The Commission notes that Hearing Officers have the authority to enter a corrected order at any time sua sponte. See 60Q-2.032(2), F.A.C.

Consequently, we reject exceptions 1, 2, 3 and 4.

Exceptions 5 and 6 except to findings of fact made by the Hearing Officer and to the Hearing Officer's failure to consider proposed findings of fact made by Petitioner because we have found the findings of fact to be supported by competent substantial evidence, we reject exceptions 5 and 6.

Exception 7 excepts to the Hearing Officer's failure to award interest on damages owed Petitioner.

The Commission recognizes interest of 12 percent simple interest per annum on damages as part of the relief appropriate in cases such as this. See Swenson-Davis v. Orlando Partners Inc. 16 FALR 792 (FCHR 1993).

Consequently, we accept exception 7, as reflected in the Remedies section of this Order, infra.

Exception 8 excepts to the Hearing Officer's striking of Petitioner's age discrimination claim, raised for the first time in the Petition for Relief.

We find the Hearing Officer acted within his discretion in this matter, and we reject exception 8.

Remedies

We note that the corrected Recommended Order is inconsistent with regard to the date from which damages are to be calculated. Corrected 86 indicates that damages "should run for 30 days after the date of her application, July 18, 1989, until the present" The corrected Recommendation-section of the Order states that " Petitioner be awarded damages for her lost wages and benefits from August 1990 until present..,

We note that the order is silent as to the award of interest on damages and as to seniority issues.

We note that in corrected 86 and in the corrected Recommendation section of the corrected Recommended Order the Hearing Officer deducts from damages owed Petitioner amounts she was paid or would have been paid from her "state job," but makes no findings as to these amounts.

Consequently, we uphold the Hearing Officer's proposed remedy, order Respondent to immediately employ Petitioner consistent with the Hearing Officer's recommendation, with the seniority rights she would have had if no unlawful employment practices occurred, and we remand the matter to the Hearing Officer to determine the date from which the back pay award should run and to determine the amount of damages, interest on damages at 12 percent simple interest per annum, attorney's fees, costs and such other relief as is appropriate owed Petitioner.

Remand

We remand the Petition for Relief and Complaint of Discrimination to the hearing Officer for determinations consistent with this order.

DONE AND ORDERED this 9th day of December, 1994. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Geraldine Thompson, Panel Chairperson

Commissioner Clarethea Brooks Commissioner Elena Flom

Filed this 9th day of December, 1994, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

Linda G. Miklowitz, Esquire

P.O. Box 14922

1589 Metropolitan Boulevard

Tallahassee, Florida 32317-4922

Lewis E. Shelley, Esquire Senior Assistant City Attorney City Hall

City Attorney's Office

300 S. Adams St, 2nd Floor Tallahassee, Florida 32301

James Mallue, Legal Advisor for Commission Panel Stephen F. Dean, DOAH Hearing Officer

================================================================= JOINT STIPULATION REGARDING ATTORNEY'S FEES FILED 04/25/96

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY C. ABBOTT,

Petitioner,

vs. CASE NO. 92-005932

CITY OF TALLAHASSEE,

Respondent.

/

JOINT STIPULATION REGARDING ATTORNEY'S FEES

In order to avoid further litigation, additional costs, and additional attorney's fees with respect to the attorney's fees issue remanded by the Florida Commission on Human Relations in their Order dated December 9, 1994 the parties stipulate as follows:

1. The Parties agree that $70,000 is a reasonable attorney's fees for Petitioner's counsel, Linda G. Mikiowitz, for work performed from December 1, 1990, through April 23, 1996. This amount is intended to include all work performed by any other person on Petitioner's behalf with respect to this litigation.

   
   

2. The stipulated amount of $70,000 is a sum certain which is not modifiable for any reason. Neither counsel for Petitioner nor Petitioner herself, shall assert at any time that a higher fee is awardable or that any additional monies are awardable based on services rendered by Linda G. Mikiowitz during the referenced above in paragraph one. Neither the City of Tallahassee nor its counsel, shall assert that a lesser fee is awardable or that a reduction in attorney's fees is warranted for the specified period of time.

   
   

3. The stipulated sum is agreed to for the sole purpose of avoiding further expense in litigation and additional attorney's fees in determining the reasonableness of Linda G. Miklowitz' fees in her representation of Mary Abbott against the City of Tallahassee in the internal grievance proceedings, FCHR proceedings, Circuit Court proceedings, DOAH proceedings, and appellate proceedings and/or any other matter relating to Mary Abbott's allegations of sexual discrimination against the City of Tallahassee through April 23, 1996.

   
   

4. By entering into this agreement the City of Tallahassee does not concede or admit that Petitioner is the prevailing party in this case. Specifically, the City of Tallahassee does not waive its right to appeal the FCHR order of December 9, 1994 approving the Hearing Officer's Recommended Order, finding discrimination and awarding damages including attorney's fees against the City. This stipulation does not require the City to immediately pay to the Petitioner this stipulated amount, unless the City voluntarily agrees to do so. The City agrees to pay the stipulated amount when one of the following

   occur: (1) FCHR issues a final appealable order in this case, the time for an appeal of that order expires and no appeal has been taken, or (2) a final appealable FCHR order finding discrimination is affirmed by an appellate court, or (3) the City agrees to pay the stipulated sum as part of an overall settlement of this case.

   
   

5. The parties agree that any attorney's fees award for time spent from April 24, 1996, through the end of this litigation shall be separate and apart from the parties' agreement to stipulate to the amount of attorney's fees through April 23, 1996.

   
   

6. This stipulation resolves any and all issues, remedies, and matters relating to Petitioner's claims for attorney's fees for time spent in the period referenced in paragraph one.

   
   

7. Neither party shall attempt to construe this stipulation for any purpose other than is stated herein. Neither the stipulated amount, the number of attorney's hours reportedly to have been expended by the Petitioner's attorney, or any imputed hourly rate, will be used by Petitioner or Petitioner's counsel to establish a reasonable hourly rate for any future attorney's fees issue in this case/appeal or in any other litigation.

   
   

8. Each party understands and agrees that this agreement constitutes the entire agreement between the parties and accepts the terms of this agreement as being final, complete, and binding, and this agreement supersedes any prior understanding or agreement made by them on the subjects covered in this agreement. There are no representations or entitlements other than those set forth in this agreement.

   
   

9. This stipulation is void if it is not accepted in its entirety completely by the Hearing Officer and the Florida Commission on Human Relations, and the City retains the right to contest all issues relating to attorney's fees if the stipulation is not completely accepted.

DATED this 25th day of April, 1996.

Linda G. Miklowitz Lewis E. Shelley Attorney for Petitioner Attorney for the City of

Tallahassee

=================================================================

SUPPLEMENTAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY C. ABBOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5932

)

CITY OF TALLAHASSEE, )

)

Respondent. )

)

SUPPLEMENTAL ORDER

A prehearing conference was held on April 25, 1996, at which Petitioner was represented by Linda Miklowitz and Respondent represented by Lewis E. Shelley and Harriett Williams.

At the commencement of the hearing, the parties filed their Joint Stipulation Regarding Attorney's Fees. Thereafter the parties identified the remaining issues upon which the parties desire to present argument and evidence at the final hearing. The issues identified was as follows:

1. The date from which back pay should be computed.

   1. The value of fringe benefits.

   2. The amount of set off.

The parties indicated that they were still engaged in discovery and discussion of the issues which might lead to further agreements.

The parties agreed with the hearing calendar but asked for leave to have an additional prehearing conference if necessary and were advised that an additional prehearing conference would be scheduled upon their request.

DONE AND ORDERED this 1st day of May, 1996, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 1st day of May, 1996.

COPIES FURNISHED:

Linda G. Miklowitz, Esquire

P.O. Box 14922

Tallahassee, Florida 32317-4922

Lewis E. Shelley, Esquire City Hall

300 South Adams Street Tallahassee, Florida 32301

================================================================= JOINT STIPULATION REGARDING BACK PAY AND OTHER RELIEF

FILED 05/30/96

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY C. ABBOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5932

)

CITY OF TALLAHASSEE, )

)

Respondent. )

)

JOINT STIPULATION REGARDING BACK PAY AND OTHER RELIEF

In order to avoid the expense of further litigation, additional costs, and additional attorney's fees with respect to the back pay and other relief due the Petitioner as remanded by the Florida Commission on Human Relations in their Order dated December 9, 1994, the parties stipulate as follows:

1. The parties agree that $60,000 is a reasonable sum for back pay/damages for the period August 19, 1989 - June 1, 1996, after actual and constructive set off of the Petitioner's wages from the Comptroller's Office are considered. The parties agree that this sum includes back wages, educational supplements, overtime, clothing allowance, and interest for this time period. Beginning June I, 1996, additional interest at the rate of 8 percent per year should run on the

   $60,000.

   
   

2. The parties agree that an additional sum is due the City's police officer pension plan in order to provide the Petitioner pension credit from February 1, 1981 - June 1, 1996 (less the time for the break in service from January 8, 1988 - August 18, 1989). This sum totals approximately $34,000 which is calculated to include repayment of the employee contributions withdrawn by the Petitioner in 1988, interest, and employee contributions based on the City's projected salary of the Petitioner from 1989 - June 1, 1996. The exact amount due the pension fund shall be determined by the City; however, the sum shall be sufficient to provide Petitioner full pension/accrual in the police officers' plan for the above referenced time.

   
   

3. The Parties agree that appropriate relief for vacation leave and sick leave will be accorded the Petitioner by providing her with a balance of 192 (8 hours times 24 months) hours of sick leave and 288 (12 hours times 24 months) hours of vacation leave at the time of reinstatement.

4. The Parties stipulate that from June 1, 1996 until Petitioner is reinstated or the case is otherwise concluded, an additional $1,000 per month as back wages/damages is due after constructive set off. Further, beginning June 1, 1996, an additional monthly contribution into the City's police pension plan is due in order to cover the required 5.7 percent employee contribution from the projected City salary for Petitioner. Beginning in June, 1996, this contribution will be $183.18 per month (5.7 percent times $3,083.60 salary, plus

   $130 educational incentive). Such contributions would provide Ms. Abbott pension/accrual credit until such time as she is reinstated or the case otherwise concluded.

   
   

5. The parties stipulate that the relief outlined and agreed to in paragraphs 1 - 4 constitutes all the relief and economic damages to which the Petitioner is entitled to under the Commission's Order dated December 9, 1994, and - constitutes complete relief to the Petitioner is entitled, other than reinstatement and attorney's fees.

   
   

6. By entering into this stipulation, the City does not accept the August 18, 1989, date as the appropriate date from which back pay should run. Neither does the City waive its right to file an exception on that finding made by the Hearing Officer in his April 12, 1996, Order.

   
   

7. By entering into this Agreement, the City of Tallahassee does not concede or admit that Petitioner is the prevailing party in this case. Specifically, the City of Tallahassee does not waive its right to appeal any and all issues relating to the FCHR Order of December 9, 1994, approving the Hearing Officer's Recommended Order finding discrimination and awarding damages, including attorney's fees and other relief against the City. Likewise, the Petitioner does not waive her right to appeal any and all issues, including, but not limited to that of constructive set off. This stipulation does not require the City to immediately pay to the Petitioner the stipulated relief in paragraphs 1 - 4, unless the City voluntarily agrees to do so. The City agrees to pay the stipulated relief when one of the following occur:

   
   

   1. Florida Commission on Human Relations issues a final appealable order in this case, and the time for that order expires and no appeal has been taken, or

   2. A final appealable FCHR order finding discrimination is affirmed by an appellate court, in the event of an appeal, or

   3. The City agrees to pay the stipulated relief as part of an overall settlement of this case.

      
      

8. Each party understands and agrees that this stipulation constitutes the entire agreement between the parties with respect to back pay/damages and other relief due petitioner under the Commission's December 9, 1994, Order, and accepts the terms of this Agreement as being final, complete and binding. This Agreement supersedes any prior understanding or agreement made by them on the subjects covered in this Agreement. There are no representations or entitlements other than those set forth in this Agreement.

   
   

9. This stipulation is void if it is not accepted in its entirety, without additions or subtractions by the Hearing Officer and the FCHR, and either party retains the right to contest all issues relating to back pay/damages and other relief if this stipulation is not completely accepted.

DATED 30th day of May, 1996.

LINDA G. MIKLOWITZ LEWIS E. SHELLEY

Attorney for Mary Abbott Attorney for the City of Tallahassee

================================================================= DOAH ORDER RELINQUISHING JURISDICTION

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY C. ABBOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5932

)

CITY OF TALLAHASSEE, )

)

Respondent. )

)

ORDER RELINQUISHING JURISDICTION

The Commission relinquished jurisdiction in this case to the Hearing Officer for the purpose of making additional fact findings on several issues. An order was entered requiring the parties to prepare (1) a statement of facts to which the parties agree, (2) a statement of facts upon which the parties do not agree with each parties' position regarding the controverted facts1 (3) if no evidence was taken on an issue at the initial hearing1 the factual basis for the factual finding or the witness or witnesses who would be called to present evidence and a short summary of the witnesses' expected testimony, and (4) the legal authority for reopening the record to take the testimony and evidence on that issue.

As a result of the parties' efforts they prepared and filed a Joint Stipulation Regarding Attorney's Fees on April 25, 1996, and a Joint Stipulation Regarding Back Pay and Other Relief on May 30, 1996, which resolved all of the factual issues. Their stipulation obviated the need for the formal hearing scheduled for May 30, 1996.

By copy of this order, the two aforementioned stipulations, which are incorporated by reference and made a part of this order, are returned to the Commission. Jurisdiction is relinquished to the Commission for entry of any additional orders it deems necessary, with the request of the parties for early consideration of the matters.

DONE and ORDERED this 4th day of June, 1996, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 4th day of June, 1996.

COPIES FURNISHED:

Linda G. Miklowitz, Esquire

P.O. Box 14922

Tallahassee, Florida 32317-4922

Lewis E. Shelley, Esquire City Hall

300 South Adams Street Tallahassee, Florida 32301

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4113

Docket for Case No: 92-005932

Orders for Case No: 92-005932