STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREA BATEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2716

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 22, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Andrea R. Bateman, Esquire

Route 7, Box 725

Tallahassee, Florida 32308

For Respondent: Laurel D. Landry

Department of Health and Rehabilitative Services

1170 Capital Circle, Northeast Tallahassee, Florida 32301

and

William A. Frieder Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

Whether the Respondent, the Department of Health and Rehabilitative Services, discriminated against the Petitioner, Andrea Bateman, on the basis of age, sex or a perceived handicap?

PRELIMINARY STATEMENT

On or about September 15, 1992, the Petitioner filed a Charge of Discrimination against the Respondent with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). The Commission determined that the Respondent had not committed a discriminatory employment

practice by "Determination: No Cause" entered February 10, 1993. The Petitioner requested reconsideration of the Commission's decision and on April 12, 1993, the Commission issued a "Redetermination: No Cause."

On May 12, 1993, the Petitioner filed a Petition for Relief with the Commission seeking a formal administrative hearing. On May 19, 1993, the Commission filed the Petition for Relief with the Division of Administrative Hearing and requested assignment of a Hearing Officer. The case was subsequently assigned to the undersigned.

The final hearing was scheduled for July 22, 1993, by a Notice of Hearing entered June 16, 1993.

At the final hearing the Petitioner presented the testimony of William H. Bentley, Chriss Walker and Ann F. Donovan. Six exhibits were identified as "Petitioner" exhibits. Petitioner's exhibits 1-3 and 6 were offered by the Petitioner and accepted into evidence. Petitioner's exhibit 5 was not offered into evidence. Petitioner's exhibit 4 was offered by the Respondent and was accepted into evidence.

The Respondent presented the testimony of Robert James, Gloria Small and the Petitioner. The Respondent presented nine exhibits. Respondent's exhibits 1-6 and 8 were accepted into evidence. Respondent's exhibit 7 was not offered. A ruling was reserved on Respondent's exhibit 9. Respondent's exhibit 9 is hereby rejected.

A transcript of the final hearing was filed on August 4, 1993. The parties filed proposed recommended orders on September 13, 1993. The proposed recommended orders contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Petitioner, Andrea Bateman, is a female.

      
      

   2. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age.

      
      

   3. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding.

      
      

   4. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida.

      
      

2. Ms. Bateman's Employment by the Department.

   
   

   1. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement.

      
      

   2. Ms. Bateman was required to be a member of The Florida Bar.

   3. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause.

      
      

   4. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement.

      
      

   5. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan.

      
      

   6. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan.

      
      

3. "Productivity Enhancement" at the Department.

   
   

   1. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department.

      
      

   2. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining".

      
      

   3. The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position.

      
      

   4. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination.

      
      

   5. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney.

      
      

   6. Efforts to assist Ms. Bateman to find another position were not successful.

      
      

   7. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement.

      
      

   8. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991.

      
      

   9. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department.

   10. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position.

       
       

4. Ms. Bateman's Performance.

   
   

   1. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product.

      
      

   2. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department.

      
      

   3. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being.

      
      

   4. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing.

      
      

   5. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties.

      
      

   6. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following:

      
      

      1. Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner.

         
         

      2. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department.

         
         

      3. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor.

         
         

      4. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number.

         
         

      5. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours.

      
      

   7. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment.

      
      

5. Mr. Walker's Evaluation of Ms. Bateman.

   
   

   1. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance.

   2. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991.

      
      

   3. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors.

      
      

   4. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment.

      
      

   5. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it.

      
      

   6. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days.

      
      

6. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation.

   
   

   1. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing.

      
      

   2. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable.

      
      

   3. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused.

      
      

   4. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused.

   5. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing.

      
      

   6. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following:

      
      

      As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action.

      
      

7. Ms. Bateman's Termination from Employment.

   
   

   1. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992.

      
      

   2. Ms. Bateman's termination from employment was effective February 28, 1992.

      
      

   3. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext.

      
      

8. Ms. Bateman's Charge of Discrimination.

1. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap.

   
   

2. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred "

   
   

3. Ms. Bateman filed a Request for Redetermination on March 4, 1992.

   
   

4. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision.

5. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age.

   
   

6. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman.

   
   

   1. Alleged Sex Discrimination.

      
      

7. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex.

   
   

8. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees.

   
   

9. Ms. Bateman failed to prove that she was replaced by a male attorney.

   
   

10. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees.

    
    

11. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female.

    
    

    1. Alleged Age Discrimination.

       
       

12. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age.

    
    

13. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year.

    
    

14. Ms. Bateman failed to prove that she was replaced by a younger person.

    
    

15. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age.

    
    

16. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age.

    
    

    1. Alleged Perceived Handicap.

    
    

17. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation.

18. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances.

    
    

19. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable.

    
    

20. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities.

    
    

21. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition.

    
    

22. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

23. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992 Supp.).

    
    

    1. Burden of Proof.

       
       

24. Ms. Bates had the ultimate burden of proving by a preponderance of the evidence that the Department intentionally discriminated against her. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Insurance Co., 12

    F.A.L.R. 2034, 2037 (Florida Commission on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Florida Commission on Human Relations 1988).

    
    

25. Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the United States Supreme Court has established a multi-step analytical model which allows a court to infer discriminatory motive or intent on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411 U.S. at 802-804. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981).

    
    

26. The Commission has adopted this analytical model in analyzing cases under the Florida Human Rights Act, Section 760-01-760.10, Florida Statutes:

    
    

    1. The employee must present a prima facie case of discrimination;

       
       

    2. If the employee presents a prima facie case of discrimination, the employer must adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions; and

       
       

    3. The employee must prove that the employer's articulated reason for its actions was merely a pretext.

    1. Ms. Bates Failed to Meet Her Burden of Proof.

    
    

27. The Florida Human Rights Act provides that it is an unlawful employment practice for an employer to discharge an employee "or to otherwise discriminate against any individual with respect to . . . terms, conditions, or privileges of employment . . . " on the basis of age, sex or handicap. Section 760.10(1), Florida Statutes.

    
    

28. In determining whether discrimination has occurred, the Commission requires proof of the following elements, adopted from the federal courts, in order for an employee to prove a prima facie case of discriminatory conduct:

    (a) that the employee belongs to a group protected by the statute; (b) that the employee was qualified for the job; (c) that the employee was subjected to an adverse employment action; and (d) that, in the case of discharge, after the employee's termination, the employer hired a person not in the employee's protected class or retained those having comparable or lessor qualifications, not in the protected class. See McDonnell Douglas; Trumbull v. Health Care & Retirement Corporation of America, 756 F. Supp. 532 (M.D. Fla. 1991), aff'd, 949 F.2d 1162; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); and National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).

    
    

29. With regard to Ms. Bateman's allegations concerning her sex and age, she proved that she was a female and 42 years of age and that she was terminated from employment. She failed to prove, however, that she was qualified for her position (by being a member of the Florida Bar) or that she was replaced by a person that was not in her protected class (a male or someone of a different age than her).

    
    

30. With regard to Ms. Bateman's allegations concerning a perceived handicap, the evidence proved that the Department believed that Ms. Bateman had a handicap. Even though Ms. Bateman failed to prove that she actually had a handicap, it is concluded that actions taken by an employer based upon a belief that an employee has a handicap are subject to scrutiny by the Florida Human Rights Act. There is no reason why discriminatory actions of an employer based upon a belief that the employee is handicapped should be treated any differently than when the same discriminatory actions are taken against an employee who actually has a handicap.

    
    

31. Ms. Bateman proved that the Department believed that she had a mental or emotional handicap. Ms. Bateman also proved that the Department requested that she undergo a psychological evaluation as a result of that belief. She failed to prove, however, that she was qualified for her position or that other persons in similar situations were not treated in the same or a similar manner.

    
    

32. Based upon the foregoing, it is concluded that Ms. Bateman failed to prove by a preponderance of the evidence, a prima facia case of discrimination based upon age, sex or a perceived handicap.

    
    

33. If Ms. Bateman had met her burden of proving a prima facia case of discrimination (which she has not), the Department has met its burden of articulating some legitimate, nondiscriminatory reason for initially red-lining her position, for requesting that she undergo a psychological evaluation and for ultimately terminating her employment with the Department. See McDonnell Douglas.

34. The Department proved that, as an attorney for the Department, Ms. Bateman was required to maintain a presentable appearance, to communicate orally and in writing in an effective and professional manner and to demonstrate good judgment and trustworthiness necessary to entrust her with representing the Department. Failure to meet such bona fide occupational qualifications constitutes an affirmative defense. See O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991).

    
    

35. Ms. Bateman failed to meet these bona fide occupational qualifications. Ms. Bateman failed to prove that these occupational qualifications have been disproportionately applied to persons not within her protected class of sex, 42 year olds or persons with a perceived handicap.

    
    

36. The Department proved that Ms. Bateman was unable to satisfactorily perform her job and that she was, after attempting to determine how to assist her to be able to perform her job adequately, therefore terminated. Ms. Bateman's termination was, therefore, not an unlawful employment practice of discrimination. See Solomon v. Department of Transportation, 541 So.2d 691 (Fla. 1st DCA 1989): and Housing Authority v. Billingslea, 464 So.2d 1221 (Fla. 5th DCA 1985).

    
    

37. The Department also proved that the actions it took based upon Ms. Bateman's perceived handicap were not taken for discriminatory reasons. Instead, the Department's actions were taken in an effort to assist Ms. Bateman and the Department to determine what duties she was capable of performing.

    
    

38. Finally, Ms. Bateman failed to prove that the Department's legitimate, nondiscriminatory reasons for the actions it took with regard to her were merely a pretext.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order dismissing Andrea Bateman's Petition for Relief.

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

LARRY J. SARTIN

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 October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2716

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Ms. Bateman's Proposed Findings of Fact

1. Accepted in 5 & 7.

2. Accepted in 8, 28 and 30. But see 31-33.

3. Accepted in 9. See 32-33.

4. Accepted in 40. See 34-39.

5. Not relevant.

6. Not relevant.

7. Not supported by the weight of the evidence.

8. Not supported by the weight of the evidence.

9. Not supported by the weight of the evidence. See 59.

10. Not supported by the weight of the evidence.

11. Not supported by the weight of the evidence. See 54.

The Department's Proposed Findings of Fact

1. Not supported by the weight of the evidence. But see 3.

2. Accepted in 40 and 42.

3. Accepted in 42.

4. Accepted in 53, 58, 62 and 64.

5. Hereby accepted.

6. Accepted in 54.

7. Accepted in 55-58.

52-56 Not relevant.

57-58 Accepted in 34 and 36-37.

1. Accepted in 61-62.

2. Accepted in 61.

3. Accepted in 62.

4. Accepted in 63-64.

5. See 59.

6. (identified as finding of fact 63 also): Accepted in 63.

COPIES FURNISHED:

Andrea Bateman Route 7, Box 725

Tallahassee, Florida 32308

Laurel D. Landry, Esquire Department of Health and

Rehabilitative Services

1170 Capital Circle, North East Tallahassee, Florida 32301

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

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 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.

================================================================= ORDER DENYING MOTION FOR PAYMENT OF EXPERT WITNESS FEES

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREA BATEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2716

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

ORDER DENYING MOTION FOR PAYMENT OF EXPERT WITNESS FEES

A Motion for Payment of Expert Witness Fees has been filed in this case by David L. Kirk. Pursuant to the motion, Dr. Kirk, has requested that the Respondent be required to pay him an expert witness fee for time spent by him preparing for possible testimony on this case. No response to the motion has been filed by the Respondent.

The Recommended Order in this case was entered October 4, 1993. Upon the entry of the Recommended Order, jurisdiction over this case returned to the Florida Commission on Human Relations. Consequently, the undersigned no longer has any authority over this matter.

Accordingly, it is

ORDERED that the Motion for Payment of Expert Witness Fees filed in this case by David L. Kirk is DENIED without prejudice to the filing of the motion before the Florida Commission on Human Relations or other appropriate forum.

DONE and ORDERED this 13th day of December, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

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 13th day of December, 1993.

COPIES FURNISHED:

David L. Kirk, Ph.D. 2205 Mulberry Boulevard

Tallahassee, Florida 32303

Andrea Bateman Route 7, Box 725

Tallahassee, Florida 32308

Laurel D. Landry, Esquire Department of Health and

Rehabilitative Services 1170 Capital Circle, NE Tallahassee, Florida 32301

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ANDREA BATEMEN,

Petitioner, EEOC Case No. n/a FCHR Case No. 92-4358

DEPARTMENT OF REVENUE,

DOAH Case No. 93-2716

Respondent, FCHR OrderNo. 94-074

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

1. Panel of Commissioners

   
   

   The following two Commissioners participated in the disposition of this matter:

   
   

   Commissioner Geraldine Thompson, Panel Chairperson; and

   Commissioner Whitfield Jenkins.

   
   

2. Appearances For Petitioner:

   No appearance For Respondent:

   Thomas L. Barnhart Assistant General Counsel Department of Revenue Post Office Box 6668

   Tallahassee, Florida 32399-0100

   
   

3. Preliminary Matters

   
   

   Andrea Bateman, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that the Department of Health and Rehabilitative Services (Department of Revenue became substituted Respondent by act of the Legislature) unlawfully discriminated against her on the bases of age, sex and/or perceived handicap.

   In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred. Thereafter, Petitioner filed a Request for Redetermination which was denied.

   
   

   Petitioner filed a Petition for Relief From an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

   
   

   An administrative hearing was held in Tallahassee, Florida, before DOAH hearing officer Larry J. Sartin, who issued a Recommended Order of dismissal.

   
   

   Pursuant to notice, public deliberations were held in Tallahassee, Florida, before the aforementioned panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

   
   

4. Rulings on the Exceptions

   
   

   Petitioner has excepted to numerous findings of the hearing officer.

   Since, in our view, the findings of the hearing officer leading to the finding that no discrimination occurred are supported by competent, substantial evidence in the record, we deny Petitioner's exceptions. See Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. App. 1 Dist. 1991).

   
   

   Rulings on the Motion for Payment of Expert Witness Fees

   
   

   Subsequent to the hearing officer's entry of the Recommended Order in this case, David L. Kirk, Ph.D., filed a "Motion for Payment of Expert Witness Fees", seeking payment of expert witness fees from the Respondent.

   
   

   The hearing officer denied this motion without prejudice, stating that because the Recommended Order had been entered, jurisdiction returned to the Florida Commission on Human Relations and therefore he "no longer has any authority over this matter."

   
   

   David L. Kirk, Ph.D., then refiled the motion with the Florida Commission on Human Relations.

   
   

   There are no findings of fact regarding this matter in the record. There exists only David L. Kirk's motion and Respondent's response to it. In addition, the situation giving rise to David L. Kirk's motion occurred during the course of the proceeding before hearing officer Larry J. Sartin.

   
   

   For these reasons, we remand the matter of David L. Kirk's "Motion for Payment of Expert Witness Fees" to the hearing Officer to conduct such proceedings as are necessary to determine the matter.

   
   

5. Findings of Facts

   
   

   The hearing officer's findings of fact are hereby adopted.

   
   

6. Conclusions of Law

   
   

   We agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions of law.

7. Dismissal

The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination are DISMISSED with prejudice.

Each party is advised of the right to petition the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed within 30 days of the date that this Order is filed with the clerk of the Commission. Section 120.68, Florida Statutes, and Fla.R.App.P. 9.110(b).

The Commission retains jurisdiction over the issue of payment of expert witness fees.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Geraldine Thompson Panel Chairperson; and Commissioner Whitfield Jenkins

Commissioner Chriss Walker recused himself from participating in this proceeding.

FILED this 9th day of November 1994, in Tallahassee, Florida.

Clerk of the Commission

Copies furnished to:

Andrea Bateman Route 7, Box 725

Tallahassee, Florida 32308

Thomas L. Barnhart, Esquire Assistant General Counsel Department of Revenue

Post Office Box 6668 Tallahassee, Florida 32399-0100

Larry J. Sartin, DOAH Hearing Officer James Mallue, Legal Advisor

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

ORDER REOPENING CASE

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREA BATEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2716

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

ORDER REOPENING CASE

A Recommended Order was entered in this case on October 4, 1993.

Subsequent to the entry of the Recommended Order, David L. Kirk, Ph.D., filed a Motion for Payment of Expert Witness Fees. Dr. Kirk's motion was filed after the undersigned had relinquished jurisdiction to the Florida Commission on Human Relations. Therefore, the undersigned declined to rule on the motion.

On November 9, 1994, the Commission on Human Relations entered a Final Order Dismissing Petition for Relief From an Unlawful Employment Practice. In the Commission's Order, the Recommended Order entered in this case was accepted. The Commission also remanded the case for consideration of Dr. Kirk's Motion for Payment of Expert Witness Fees.

Based upon the foregoing, this case will be reopened for the limited purpose of considering Dr. Kirk's Motion for Payment of Expert Witness Fees. Before ruling on the motion Respondent will be given an opportunity to respond to the motion.

Accordingly, it is ORDERED:

1. The file in this case is reopened for the limited purpose of considering a Motion for Payment of Expert Witness Fees filed by David L. Kirk, Ph.D.; and

   
   

2. On or before December 22, 1994, Respondent may file a response to the motion.

DONE and ORDERED this 6th day of December, 1994, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994.

COPIES FURNISHED:

David L. Kirk, Ph.D. 2205 Mulberry Boulevard

Tallahassee, Florida 32303

Thomas L. Barnhart Assistant General Counsel Department of Revenue Post Office Box 6668

Tallahassee, Florida 32399-0100

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

================================================================= ORDER DENYING MOTION FOR PAYMENT OF EXPERT WITNESS FEES

AND CLOSING FILE

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREA BATEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2716

) DEPARTMENT OF REVENUE, )

)

Respondent. )

)

ORDER DENYING MOTION FOR PAYMENT OF EXPERT WITNESS FEES

AND CLOSING FILE

A Recommended Order was entered in this case on October 4, 1993.

Subsequent to the entry of the Recommended Order, David L. Kirk, Ph.D., filed a Motion for Payment of Expert Witness Fees. Dr. Kirk's motion was filed after the undersigned had relinquished jurisdiction to the Florida Commission on Human Relations. Therefore, the undersigned declined to rule on the motion because of lack of jurisdiction over the matter.

1. On November 9, 1994, the Commission on Human Relations entered a Final Order Dismissing Petition for Relief From an Unlawful Employment Practice. In the Commission's Order the Recommended Order entered in this case was accepted. The Commission remanded the case, however, for consideration of Dr. Kirk's Motion for Payment of Expert Witness Fees.

   
   

2. Based upon the foregoing, this case was reopened by an Order Reopening File entered December 6, 1994. The case was reopened for the limited purpose of considering Dr. Kirk's Motion for Payment of Expert Witness Fees. In the Order Reopening File Respondent and Dr. Kirk were informed that Respondent would be given an opportunity to respond to the motion before a ruling was entered.

   
   

3. On December 20, 1994, Respondent filed a Response to Motion for Payment of Expert Witness Fees. Based upon a consideration of the motion and response, it is concluded that Dr. Kirk's motion must be denied.

   
   

4. Section 120.58(1)(c), Florida Statutes, provides, in pertinent part, the following:

   
   

   . . . . All other witnesses appearing pursuant to a subpoena shall be paid such fees and mileage for their attendance as is provided in civil actions in circuit courts of this state. . . . [I]n the case

   of a witness who is not a public employee, payment of such fees and expenses shall accompany the subpoena.

   
   

5. The payment of fees and mileage for the attendance of witnesses in civil actions in circuit courts is provided for generally in Chapter 92, Florida Statutes. See also Rules 1.390 and 1.420, Rules of Civil Procedure.

   
   

6. In particular, Section 92.142(1), Florida Statutes, provides, in pertinent part:

   
   

   1. Witnesses in all cases, civil and criminal, in all courts, now or hereafter created . . . shall receive for each days actual attendance

      $5 and also 6 cents per mile for actual distance traveled to and from the courts. . . .

      [Emphasis added].

      
      

7. Who is responsible for the payment of fees to witnesses in civil actions and when such fees are to be paid is governed by Section 92.151, Florida Statutes:

   
   

8. Compensation shall be paid to the witness by the party in whose behalf he is summoned, and the prevailing party may tax the same as costs against his adversary; but no person shall be compelled to attend court as a witness in any civil cause unless the party in whose behalf he is summoned shall first pay him the amount of compensation to which he would be entitled for mileage and per diem for 1 day, or the same is deposited with the executive office of said court, and he shall not be compelled to attend thereafter unless paid in advance. But if any witness should serve without payment in advance, at the completion of his services he may exhibit his account for compensation, and when the same shall have been taxed and approved by the court wherein the services have been rendered, such bill shall have the force and effect of judgment and execution against the party in whose behalf the witness was summoned, and be collected by the sheriff as in other cases of execution. . . .

   
   

9. Dr. Kirk was entitled, pursuant to Section 92.142(1), Florida Statutes, to received an attendance fee of $5.00 (plus mileage) for appearing at the final hearing in this case pursuant to the subpoena served by Respondent. Discretion to order the payment of a higher attendance fee is not provide for in Section 92.142(1), Florida Statutes.

   
   

10. Pursuant to Section 92.151, Florida Statutes, Dr. Kirk was entitled to receive the $5.00 fee from Respondent in advance of his appearance. Had Dr. Kirk appeared without payment in advance, he would have been entitled to the

    $5.00 fee for his attendance at the final hearing. Respondent has represented that it paid Dr. Kirk $5.00 for his appearance. Dr. Kirk has not refuted this assertion. Section 92.151, Florida Statutes, only provides for the manner and time of payment of the fees authorized by Section 92.142, Florida Statutes. It does grant discretion to the trial judge to order the payment of a greater amount or an expert witness fee.

    
    

11. Based upon the foregoing, Dr. Kirk is not entitled to any additional compensation for his appearance at the final hearing of this matter pursuant to Sections 92.142 or 92.151, Florida Statutes.

12. The payment of fees to expert or skilled witnesses in excess of the appearance fee provided for in Section 92.142, Florida Statutes, is governed by Section 92.231, Florida Statutes. Section 92.231, Florida Statutes, provides:

    
    

    1. The term "expert witness" as used herein shall apply to any witness who offers himself in the trial of any civil action as an expert witness or who is subpoenaed to testify in such

       capacity before a state attorney in the investi- gation of a criminal matter . . . and who is permitted by the court to qualify and testify

       as such, upon any matter pending before any court.

    2. Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in the amount of $10 per hour or such amount as the trial judge may deem reasonable, and the same shall be taxed as costs. [Emphasis added].

       
       

13. The courts have consistently interpreted Section 92.231, Florida Statutes, to require that an expert or skilled witness actually testify before any fee may be ordered paid to the witness as an expert or skilled witness. Tamiami Trail Tours, Inc. v. Wooten, 47 So.2d 743 (Fla. 1950); and Ford Motor Co. v. Garrison, 415 So.2d 843 (Fla. 1st DCA 1982).

    
    

14. The Supreme Court of Florida has promulgated rules governing the taxation of costs in civil actions. These Statewide Uniform Guidelines for Taxation of Costs, Florida Rules of Court (1993), have also been interpreted by the courts to require that an expert witness actually testify to be entitled to an award of a fee. James P. Driscoll, Inc. v. Gould, 521 So.2d 301 (Fla. 3d DCA 1988); and KMS of Florida Corp. v. Magna Properties, Inc., 464 So.2d 234 (Fla. 5th DCA 1985).

    
    

15. In light of the consistent holding of the courts that expert witnesses must testify in order to be entitled to the payment of an expert witness fee and the fact that Dr. Kirk was not qualified as an expert or required to testify, Dr. Kirk is not entitled to the payment of an expert witness fee under Section 92.231, Florida Statutes, or the Guidelines.

    
    

16. Dr. Kirk has cited two cases in his motion in support of his position: Avellone v. Mehta, 544 So.2d 1122 (Fla. 3d DCA 1989), and Conboy v. City of Naples, 230 So.2d 476 (Fla. 2d DCA 1970). The court in Avellone held that Section 92.231, Florida Statutes and the Guidelines do not prohibit the payment of expert fees if an expert's testimony is proffered. Dr. Kirk's testimony was not "proffered". The court in Conboy held that costs are taxable in the discretion of the trial judge and that Section 92.231(2), Florida Statutes, "does not state that the cost of time for preparation of the expert witness's opinion is not includable in the costs." The court in Conboy did not, however, hold that an expert is entitled to fees if the expert does not testify or that the costs of preparation may be paid if the expert does not testify during the proceeding. Avellone and Conboy are, therefore, distinguishable from this matter and do not support Dr. Kirk's motion.

    
    

17. Finally, Rules 1.390 and 1.420, Rules of Civil Procedure, provide for the payment of expert witness fees under certain circumstances. Rule 1.390 provides for the payment of fees if the expert's deposition is taken and Rule

1.420 provides for the payment of fees where an action is dismissed. Neither of those rules apply to this matter. See Junkas v. Union Sun Homes, Inc., 412 So.2d 52 (Fla. 5th DCA).

Accordingly, it is ORDERED:

1. The Motion for Payment of Expert Witness Fees filed by David L. Kirk, Ph.D., is DENIED;

   
   

2. Jurisdiction of this case is relinquished to the Florida Commission on Human Relations; and

   
   

3. The Division of Administrative Hearings' file in this case is CLOSED. DONE and ORDERED this 9th day of January, 1995, in Tallahassee, Florida.

LARRY J. SARTIN

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 9th day of January, 1995.

COPIES FURNISHED:

David L. Kirk, Ph.D. 2205 Mulberry Boulevard

Tallahassee, Florida 32303

Thomas L. Barnhart Assistant General Counsel Department of Revenue Post Office Box 6668

Tallahassee, Florida 32399-0100

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Docket for Case No: 93-002716

Orders for Case No: 93-002716