STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIONNE WHITEHEAD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0308

) MIRACLE HILL NURSING AND ) CONVALESCENT HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 24, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert C. Downie, II, Esquire

Patricia A. Renovitch, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507

For Respondent: Martin L. Black, Esquire

219 East Virginia Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.

PRELIMINARY STATEMENT

This matter began on October 14, 1992, when petitioner, Dionne Whitehead, filed a charge of discrimination with the Florida Commission on Human Relations alleging that respondent, Miracle Hill Nursing and Convalescent Home, Inc., had violated Section 760.10, Florida Statutes, by refusing to hire her because of a handicap. After the agency conducted a preliminary investigation, its executive director issued a Notice of Determination: Cause on July 13, 1993. Thereafter, a Notice of Redetermination: Cause was issued on October 21, 1993. After efforts to conciliate the complaint failed, the agency entered a Notice of Failure of Conciliation on December 14, 1993. Petitioner then filed a petition for relief on January 14, 1994. The matter was referred by the agency to the Division of Administrative Hearings on January 18, 1994, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated February 7, 1994, a final hearing was scheduled on March 15 and 16, 1994, in Tallahassee, Florida. At respondent's request, the matter was rescheduled to May 24 and 25, 1994, at the same location.

At final hearing, petitioner testified on her own behalf and presented the testimony of Harriet Terry, Freddie Franklin, Sr., Lillian Peterson, Loretta Vaughn, Mary Donaldson, Inell Lamb, and Leola Brewster, who was accepted as an expert in the training, evaluation and certification of nursing assistants.

Also, she offered petitioner's exhibits 1-4. All exhibits were received in evidence. Respondent presented the testimony of Mary Franklin, Loretta Vaughn and Freddie Franklin. Also, it offered respondent's exhibits 1-3. All exhibits were received in evidence.

The transcript of hearing (two volumes) was filed on June 17, 1994.

Proposed findings of fact and conclusions of law were filed by petitioner and respondent on July 1 and 5, 1994, respectively. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. This case involves a claim by petitioner, Dionne Whitehead, that she was denied employment as a nursing assistant by respondent, Miracle Hill Nursing and Convalescent Home, Inc. (Miracle Hill), on account of her handicap. Whitehead has no left arm below the elbow due to a congenital condition. As such, she is a handicapped person. Miracle Hill employs approximately seventy full-time persons and is an employer subject to the Florida Human Rights Act of 1977, as amended, which governs this dispute. Miracle Hill denies it acted in a discriminatory manner and contends generally that the handicap played no role in its employment decision, a more qualified person was hired for the position, and Whitehead could not adequately perform all of the essential job functions required of a nursing assistant. A preliminary investigation by the Florida Commission on Human Relations (Commission) found reasonable cause to believe that an unlawful employment practice had occurred.

   
   

2. Whitehead enrolled at International Career Institute (ICI) in Tallahassee, Florida, in November 1991 for the purpose of obtaining her license as a certified nursing assistant (CNA). The school has since gone out of business. At that time, however, ICI had a contractual arrangement with Miracle Hill whereby ICI students would receive their clinical training either during day or evening classes at Miracle Hill's nursing home facility located at 1329 Abraham Street, Tallahassee, Florida.

   
   

3. A student needed 192 hours of clinical training in order to graduate from the evening program. At least 175 hours were needed to graduate from the day program. In addition, each student had to learn and perform many different skills before being passed by his or her instructor. After attending classes at ICI for approximately six months, Whitehead began attending the evening program at Miracle Hill on July 20, 1992, and then finished her clinical training during the day program. She graduated from ICI in early September 1992 and received her state license as a CNA the same month.

   
   

4. When petitioner received her clinical training at Miracle Hill, Leola Brewster, a licensed practical nurse (LPN), was the instructor in the day program while Harriet Terry, a registered nurse, taught the evening class.

   Petitioner was taught by Terry for approximately 54 clinical hours before she transferred to the day program where she received the remaining instruction under Brewster, who personally observed her complete all nursing assistant required skills.

   
   

5. According to Terry, a CNA is required to perform such tasks as putting on gloves, feeding, dressing, shaving and bathing patients, changing colostomy bags, placing patients in the whirlpool, pushing a wheelchair, taking urine and stool samples, making up beds, and transferring a patient from the bed to a wheelchair. With the exception of changing colostomy bags, a CNA had to perform all of these duties at Miracle Hill since it catered exclusively to elderly patients, some of whom were bidridden. Based on her observations of Whitehead, Terry had concerns with whether petitioner could actually finish her training and whether she had the necessary manual dexterity to become a CNA. On one occasion, she related these concerns to Loretta Vaughn, Miracle Hill's director of nursing. During that conversation, she told Vaughn that petitioner had problems "putting on (and removing) the (surgical) glove," and she required assistance when doing so. She also expressed a general concern to Vaughn that petitioner might have problems with any tasks requiring manual dexterity. At hearing, however, Terry acknowledged that this assessment was based only on her observations of Whitehead during the initial part of her clinical training, and she had not taught petitioner a sufficient period of time to make an assessment of her ability to be a CNA.

   
   

6. According to Brewster, who taught petitioner for approximately 120 hours during the day and 16 as a substitute for Terry, and evaluated her at the end of the program, petitioner was a "very capable" and "caring" student who possessed "people skills." She had no doubt that petitioner could adequately perform the duties of a CNA. During the instructional period, Brewster never heard any negative comments about petitioner. When comparing Whitehead to Brenda Browning, who was ultimately selected for the job that petitioner sought, she said they both were very good students, but if personality was a consideration, she would rate Whitehead above Browning since Whitehead had a better personality.

   
   

7. Towards the end of the clinical training program, Whitehead learned that a CNA position was open at Miracle Hill. On September 8, 1992, she made application for the job. Besides Whitehead, there were five other job applicants, including Brenda Browning, who was ultimately selected for the position. Browning was also an ICI student when Whitehead attended the school, and both received their state licenses around the same time. Of the six applicants, only Whitehead and Browning were interviewed for the job.

   
   

8. On September 23, 1992, petitioner interviewed for the job with Loretta Vaughn, who had been delegated final authority by the administrator to hire all CNAs. During the interview, Vaughn expressed the same concerns related to her by Terry, and she wondered whether petitioner could perform all of the manual skills required of a CNA. Whitehead replied that she could. When asked if she could put on and take off her sterile gloves for purposes of infection control, Whitehead demonstrated in Vaughn's presence that she could perform that task. Vaughn made no commitment at the interview but said she would check petitioner's references and consult with staff before giving an answer. She gave the same response to Brenda Browning after their interview. Later, she checked with Mary Donaldson, a CNA, and Lillian Peterson, an LPN, both of whom worked at the facility during the 3:00 p.m. through 11:00 p.m. shift, and Mary Jenkins, a CNA who worked the 7:00 a.m. through 3:00 p.m. shift. Since Jenkins had never

   worked with Whitehead, she was unable to express an opinion on her skills. She did, however, advise that Brenda Browning was "a good worker."

   
   

9. In her conversation with Peterson, Vaughn told her she wanted the best candidate for the job. Although Peterson was not specifically asked if she had ever seen Whitehead perform patient care, she informed Vaughn that she was concerned that Whitehead would have difficulties performing her tasks with part of one arm missing. This view was based on her observations of Whitehead during the early part of her training when Whitehead had to be assisted by other students in performing some of her assigned tasks, and concerns expressed to her by relatives of some of the patients. Accordingly, she felt Browning was the best candidate for the job.

   
   

10. Petitioner had also worked in Mary Donaldson's section as a student during the early part of her clinical training. Although the two had never worked side by side, on a few occasions while passing patient rooms, Donaldson observed petitioner having another student assist her in tasks that normally required only one nurse to perform. On another occasion, Donaldson observed petitioner putting hair curlers in a patient's hair that were not "secure." Based on these observations, she had concerns with petitioner's ability to perform a CNA's skills, and she expressed this to Vaughn. When asked to compare Browning with Whitehead, she said that Browning was the "better worker" and the better candidate for the job. Like Peterson, Donaldson was never specifically asked by Vaughn if she had seen Whitehead performing patient care.

    
    

11. The opinions expressed by Donaldson and Peterson played a "significant part" in Vaughn's decision to hire Browning. Based on her conversations with staff, Vaughn concluded, and still holds the opinion today, that Whitehead would be a "safety hazard to herself and the patients at Miracle Hill." Except for relying on the comments given to her by the staff and former instructor, Vaughn did not elaborate further on this subject, and she gave no specific examples as to when or how such safety might be compromised. She concluded that Browning, who is not handicapped, "was the best qualified candidate for the job."

    
    

12. Vaughn did not consult Leola Brewster, petitioner's day program instructor, since she says instructors are not normally asked to assist her in hiring decisions, and she did not consider Brewster to be as competent an instructor as Terry. This latter conclusion was based on the fact that she had to consult with Brewster on at least two occasions regarding her performance as an instructor. At the same time, it may be reasonably inferred that she gave considerable weight to the earlier opinions volunteered by Terry, whose teaching skills she highly respected.

    
    

13. The charge nurse on the day shift during petitioner's clinical training period, Inell Lamb, a CNA, was not consulted by Vaughn in making the employment decision. Although Lamb testified at hearing that she saw Whitehead satisfactorily perform all duties while a CNA trainee, Lamb herself left Miracle Hill without giving notice, and she had fourteen incident reports and three disciplinary reports during her ten month tenure at the facility. Because of the reports, Vaughn did not seek Lamb's input before making her decision.

    
    

14. Although Miracle Hill has taken the position that Whitehead's handicap played no part in its employment decision, and rather the denial was based on the negative recommendations of the nursing staff, the evidence shows that Whitehead's handicap was indeed the primary basis for her rejection. This is because, based on her conversations with the staff and a former instructor, Vaughn reached the conclusion that, by virtue of her handicap, Whitehead could

    not perform the essential functions of a CNA without endangering herself and the patients. This information served as an adequate basis in fact for Vaughn to believe that Whitehead lacked the ability to perform the necessary job skills.

    This was especially true at Miracle Hill since all patients were elderly and many were bedridden. While petitioner has criticized the quality and quantity of information gathered by Vaughn to make that decision, previous findings demonstrate that Vaughn did not seek recommendations from instructors when making an employment decision, and she questioned the skills of instructor Brewton. Further, staff member Lamb was legitimately excluded from the employment decision since Vaughn did not rely on Lamb's judgment due to a series of infractions. Therefore, Miracle Hill had adequate justification when it denied Whitehead employment on account of her handicap, and it had an adequate basis in fact to believe that Whitehead's condition rendered her incapable of safely performing the job. It is noted that neither party addressed the issue of whether the job could be performed with reasonable accommodations. It may be reasonably inferred, however, that because the Miracle Hill patients were elderly and bedridden and required personalized care in many ways, such accommodation was not possible. It can also be reasonably inferred that the absence of a partially amputated arm was a bona fide occupational qualification reasonably necessary for the performance of the job.

    
    

15. Both before and after she applied for the Miracle Hill position, Whitehead worked full-time at Goodwill Industries, first as a production worker earning $4.50 per hour and, after May 1, 1993, as a receptionist earning $4.75 per hour. As relief, Whitehead does not ask that she be given a position at Miracle Hill. Rather, she contends that if her job application had been approved, she would have worked two full-time jobs during the period in question. Thus, she seeks to be made "whole" through reimbursement of all of the lost wages and fringe benefits she would have earned at Miracle Hill. A CNA at Miracle Hill earns $5.50 per hour. After being turned down for the job at Miracle Hill, Whitehead worked a second job as a CNA at Heritage Health Care Center for approximately a month where she earned $768. Since she does not drive an automobile, Whitehead says she left that position because of problems with the public transportation system. She also worked several part-time assignments (totaling less than forty hours) over the last two years as a "CNA home health aide" for Medical Center Home Health Services, Inc. where she earned

    $213. Other than these two jobs, Whitehead has not seriously pursued, nor shown reasonable diligence in seeking to obtain, any other positions as a CNA, especially since she acknowledges that her present position (since May 1, 1993) as a receptionist at Goodwill Industries prevents her from taking a second,

    full-time job. Therefore, it may be inferred that petitioner would have worked at only one position during the period in question, and had she prevailed in this matter her damages would be limited to the difference between the salary earned at Goodwill Industries ($4.50 per hour until May 1, 1993, and $4.75 thereafter) and the salary she would have earned at Miracle Hill ($5.50 per hour), less any moneys earned at the two second jobs ($768 and $213, or $981). There is no evidence as to whether Goodwill Industries has health insurance, life insurance, a pension plan or other employee fringe benefits, and if so, the cost or value of those benefits. Accordingly, there is no record basis on which to compare the difference in value of the "lost" fringe benefits. If successful, she would be entitled to reasonable attorney's fees (but not costs) incurred in prosecuting this action.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

17. The alleged unlawful employment practice occurred in September 1992, and the Florida Civil Rights Law of 1992 (ss. 760.01-760.11) did not become effective until October 1, 1992. Therefore, the Florida Human Rights Act of 1977, as amended, applies to this proceeding. Subsection 760.10(1)(a), Florida Statutes (1991) provides in pertinent part as follows:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To . . . refuse to hire any individual . . . because of such individual's

          . . . handicap . . .

          
          

          In addition, Subsection 760.10(8)(a), Florida Statutes (1991), provides in part:

          
          

          1. Notwithstanding any other provision of this section, it is not an unlawful employment practice under ss. 760.01-760.10 for an employer . . . to:

             1. Take or fail to take any action on the basis of . . . handicap . . . in those certain instances in which . . . absence of a particular handicap . . . is a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.

          
          

18. In both its answer to the petition and proposed recommended order, respondent takes the position that petitioner's handicap played no role in its employment decision and that it simply hired the best qualified person for the job. At the same time, it offered proof at hearing that petitioner could not perform the essential duties of a CNA without endangering the health and safety of the patients. By doing so, respondent has tacitly acknowledged that petitioner's handicap was the basis for its decision, and the absence of a partially amputated arm was a bona fide occupational qualification for the job within the meaning of subsection 760.10(8)(a).

    
    

19. In cases where the employer has refused to hire an individual because of a handicap, the traditional analysis applicable to employment discrimination claims does not apply. Brand v. Florida Power Corporation, 633 So.2d 504, 509 (Fla. 1st DCA 1994). Thus, the analysis used in McDonnell Douglas Corporation

    v. Green, 411 U.S. 792 (1973), and suggested here by both parties, is not relevant. Instead, the rejected applicant can establish a prima facie case of handicap discrimination by showing she is a handicapped person, is qualified for the position apart from her handicap, and was denied the job solely because of the handicap. Brand at 510; Cabany v. Hollywood Memorial Hospital, 12 F.A.L.R. 2020, 2027 (FCHR, January 11, 1990). The burden of producing evidence is then placed on the employer to show that the applicant could not perform the essential functions required for the position either with or without reasonable accommodation. Brand at 512. Where, as here, the employer contends that no accommodation is possible, it has the burden of showing the absence of a

    partially amputated arm is a bona fide occupational qualification reasonably necessary for the performance of the job. Horn v. Adolphus, Inc., 9 F.A.L.R. 1132, 1138 (FCHR, September 13, 1986). Once valid reasons for the rejection are placed into evidence, the applicant must rebut the employer's position with evidence concerning her individual capabilities and suggestions for possible accommodations, if appropriate. Brand at 513.

    
    

20. Whitehead established a prima facie case by showing she was handicapped, she was qualified for the position apart from her handicap, that is, she met all of the CNA job requirements in spite of being handicapped, and she was denied the job solely because of her handicap. In response, Miracle Hill was obliged to show that Whitehead could not perform the job without endangering the safety of the patients, and that no reasonable accommodation was possible. Brand at 511; School Board of Pinellas County v. Rateau, 449 So.2d 839, 842 (Fla. 1st DCA 1984). In other words, Miracle Hill had to prove that it had an adequate basis in fact to believe that petitioner's condition rendered her incapable of safely performing the job. Horn at 1132. Here, Miracle Hill has satisfied this burden and justified its employment decision by showing that Vaughn relied upon information from its nursing staff and a former instructor to reach the conclusion that, because of Whitehead's handicap, the safety of the patients would be compromised if Whitehead was given the job. That is to say, it had a reasonable basis in fact, based upon the available information, to come to the conclusion that Whitehead could not safely perform the job skills required of a CNA either with or without accommodation. While petitioner has attempted to rebut this evidence by showing that Vaughn's inquiry regarding her qualifications was too limited in scope, or was not altogether accurate, this in itself does not invalidate the employment decision or prove that it was made in bad faith. Cf. Department of Corrections v. Chandler, 582 So.2d 1183, 1187 (Fla. 1st DCA 1991)("The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, as long as its action is not for a discriminatory purpose.") Rather, the more persuasive evidence shows that Vaughn's information gathering was made in good faith and that such information formed a reasonable basis for her decision. This being so, the petition for relief should be denied.

    
    

21. In light of the above conclusion, Whitehead is not entitled to any relief. Even so, some comment concerning the relief requested by Whitehead is appropriate. Subsection 760.10(13), Florida Statutes (1991), specifies the type of relief that may be given a prevailing claimant in a discrimination action.

It reads in pertinent part as follows:

In the event the commission, in the case of a complaint under section (10) . . . finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's

fees. . . . No liability for back pay shall accrue from a date more than 2 years prior

to the filing of a complaint with the commission.

Therefore, upon the finding of an unlawful employment practice, the undersigned is authorized to (a) recommend that the employer cease and desist engaging in unlawful employment practices, and (b) provide "affirmative relief from the effects of the practice, including reasonable attorney's fees." In this case, petitioner has not asked that Miracle Hill provide her with a CNA

job, but has asked only to be made "whole" through back pay, interest, fringe benefits, and "front pay," less earnings from mitigation. As to front pay, Whitehead did not request the same in her petition, and she cites no Florida decisional law or Commission precedent for awarding this type of relief. As to back pay, the evidence showed that petitioner held a full-time job both before and after the adverse employment decision occurred, and she did not intend to work two full-time jobs, at least after May 1, 1993. Accordingly, had she prevailed, her back pay would be limited to the difference between the salary she earned at Goodwill Industries and the salary she would have earned if employed by Miracle Hill, less any earnings from her two second jobs. Next, because there is no evidence to compare the value, if any, of fringe benefits at her current employer with those "lost" at Miracle Hill, and she has cited no precedent for the same under Florida law, her request for the value of the lost fringe benefits is without merit. Finally, unlike the current law which makes an award of attorney's fees discretionary, former subsection 760.10(13) provides that a successful claimant is entitled to reasonable attorney's fees, but not costs.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition

for relief, with prejudice.

DONE AND ENTERED this 2nd day of August, 1994, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0308

Petitioner:

1-2. Partially accepted in finding of fact 1. 3-6. Partially accepted in finding of fact 8.

1. Partially accepted in finding of fact 13.

2. Partially accepted in finding of fact 8.

3. Partially accepted in findings of fact 4 and 5.

4. Partially accepted in findings of fact 4 and 6.

5. Partially accepted in finding of fact 4.

6. Partially accepted in finding of fact 5. 13-15. Partially accepted in finding of fact 6. 16-17. Partially accepted in finding of fact 3.

18. Partially accepted in findings of fact 7 and 8.

19-21. Partially accepted in finding of fact 8.

1. Partially accepted in finding of fact 14.

2. Partially accepted in findings of fact 9 and 10. 24-26. Partially accepted in finding of fact 10.

1. Partially accepted in finding of fact 9.

2. Partially accepted in finding of fact 11.

3. Partially accepted in finding of fact 7.

4. Partially accepted in finding of fact 11.

5. Partially accepted in finding of fact 8.

6. Partially accepted in findings of fact 9 and 10.

7. Partially accepted in finding of fact 12.

8. Rejected as being unnecessary.

9. Partially accepted in findings of fact 11 and 14.

10. Rejected as being cumulative.

Respondent:

1-2. Partially accepted in finding of fact 1.

1. Partially accepted in finding of fact 2.

2. Partially accepted in findings of fact 3 and 4.

3. Partially accepted in findings of fact 2 and 3.

4. Partially accepted in finding of fact 8.

5. Partially accepted in finding of fact 7.

6. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 8.

11-12. Rejected as being unnecessary to a resolution of the issues.

1. Partially accepted in finding of fact 8.

2. Partially accepted in finding of fact 9.

3. Partially accepted in finding of fact 8.

4. Partially accepted in finding of fact 13.

5. Rejected as being irrelevant.

6. Partially accepted in finding of fact 9.

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, subordinate, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esquire Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Robert C. Downie, II, Esquire Post Office Box 6507 Tallahassee, FL 32314-6507

Martin L. Black, Esquire

219 East Virginia Street 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

DIONNE WHITEHEAD,

Petitioner, EEOC CASE NO. N/A FCHR CASE NO. 92-7434

vs. DOAH CASE NO. 94-0308

FCHR ORDER NO. 95-019

MIRACLE HILL NURSING AND CONVALESCENT HOME, INC.,

Respondent.

/

ORDER FINDING UNLAWFUL EMPLOYMENT PRACTICE OCCURRED; AWARDING AFFIRMATIVE RELIEF; AND REMANDING CASE TO

HEARING OFFICER TO DETERMINE OTHER RELIEF

1. Preliminary Matters

   
   

   Petitioner Dionne Whitehead filed a complaint of discrimination pursuant to the Human Rights Act of 1977, as amended, Section 760.01-760.10, Florida Statutes (1991), alleging that Respondent Miracle Hill Nursing and Convalescent Home, Inc., committed an unlawful employment practice by refusing to hire Petitioner as a certified nursing assistant because of her handicap (Petitioner has no left arm below the elbow due to a congenital condition).

   The allegations set forth in the complaint were investigated and, on July 13, 1993, the Executive Director issued his determination, finding that reasonable cause existed to believe that an unlawful employment practice had occurred. Respondent requested a redetermination of this finding, and, on October 21, 1993, the Executive Director issued his redetermination, still finding that reasonable cause existed to believe that an unlawful employment practice had occurred.

   
   

   Petitioner filed a Petition for Relief from an Unlawful Employment Practice, dated January 11, 1994, 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 May 24, 1994, before Hearing Officer Donald R. Alexander.

   
   

   Hearing Officer Alexander issued a Recommended Order of dismissal, dated August 2, 1994.

   
   

   Pursuant to notice, public deliberations were held on March 2, 1995, in Tallahassee, Florida, before this panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

   
   

2. Findings of Fact

   
   

   It has been stated that, "[t]he ultimate question of the existence of discrimination is a question of fact. . .Because discriminatory intent is an issue of fact, dealing with the weight and credibility of the evidence presented [citations omitted], it must be accepted by the reviewing agency unless that finding is not supported by [competent substantial evidence] in the record." Florida Department of Community Affairs v. Bryant, 586 So.2d 1205, at 1209, 1210

   (Fla. App. 1 Dist. 1991).

   
   

   We find, as explained more fully in the Conclusions of Law section of this Order, infra, that the finding that no unlawful employment practice occurred in this case is not supported by competent substantial evidence as outlined in the Recommended Order, and we reject the finding that no unlawful employment practice occurred in this case.

   
   

   We find that an unlawful employment practice did occur in this case, when Respondent refused to hire Petitioner as a certified nursing assistant because of her handicap.

   
   

   We adopt the Hearing Officer's findings of fact only to the extent they are not inconsistent with our findings, herein, but otherwise reject the ultimate finding of fact that no unlawful employment practice occurred.

   
   

3. Conclusions of Law

   
   

   We adopt the Hearing Officer's conclusions of law only to the extent they are consistent with the Commission's findings herein, and reject the Hearing Officer's conclusions of law to the extent they are not consistent with the Commission's findings herein.

   
   

   APPLICATION OF LAW TO FACTS

   
   

   We agree with the Hearing Officer's conclusion that Petitioner established a prima facie case of handicap discrimination. Recommended Order, paragraph 20.

   We agree with the Hearing Officer's conclusion that if a prima facie case of handicap discrimination is demonstrated, "[t]he burden of producing evidence is then placed on the [Respondent] to show that the applicant could not perform the essential functions required for the position either with or without reasonable accommodation." Recommended Order, paragraph 19.

   
   

   The Hearing Officer concluded that Respondent "had a reasonable basis in fact, based upon information available, to come to the conclusion that [Petitioner] could not safely perform the job skills required of a [certified nursing assistant] either with or without accommodation." Recommended Order, paragraph 20.

   
   

   This conclusion is inconsistent with the finding of fact made by the Hearing Officer, stating that, "It is noted that neither party addressed the issue of whether the job could be performed with reasonable accommodations." Recommended Order, paragraph 14.

   
   

   It has been stated that once a prima facie case of handicap discrimination has been established, "the burden of producing evidence is then placed on the employer to show that its consideration of the handicap was relevant to the qualifications of the position sought." Brand v. Florida Power Corp., 633 So.2d 504 at 511 (Fla. App. 1 Dist. 1994).

   
   

   We further note it has been cautioned that, even given this burden of producing evidence, it might not be appropriate to place the "ultimate burden of persuasion" to prove inability to accommodate on Respondent, given Petitioner's ultimate burden of persuasion to prove unlawful discrimination. See Brand, supra, at 515.

   
   

   However, we note that it has also been stated that when the burden of producing evidence shifts to Respondent following the establishment of a prima facie case of discrimination, and Respondent remains silent, the failure to introduce evidence "will cause judgment to go against [Respondent] unless [Petitioner's] prima facie case is held to be inadequate in law or fails to convince the factfinder." St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 at 2749 footnote 3, (1993).

   
   

   Given the Hearing Officer's conclusions and findings: (1) that Petitioner established a prima facie case of handicap discrimination; (2) that the burden of producing evidence that Petitioner could not perform the job either with or without reasonable accommodation then shifted to Respondent; and (3) that neither party dealt with the issue of reasonable accommodation, we find that Respondent failed to meet its burden of producing evidence and that an Order should be entered finding that an unlawful employment practice occurred in this case.

   
   

   BFOQ

   
   

   The Hearing Officer found that it could "be reasonably inferred that the absence of a partially amputated arm was a bona fide occupational qualification reasonably necessary for the performance of the job." Recommended Order, paragraph 14.

   
   

   The Hearing Officer found that Respondent "has taken the position that [Petitioner's] handicap played no part in its employment decision. . ." Recommended Order, paragraph 14

   It is not an unlawful employment practice for an employer to take action on the basis of the existence of a handicap if the absence of that particular handicap is a bona fide occupational qualification (BFOQ) reasonably necessary for the performance of the particular employment to which such action is related. Section 760.10(8)(a), Florida Statutes (1991).

   
   

   The burden of proving a BFOQ defense is on the Respondent. See Deane v.

   Fleet Transport Company, Inc., 15 FALR 5067 at 5072 (FCHR 1993). Specifically, "the employer admits discrimination against the particular class and then carries the burden of proving: (1) The qualification is 'reasonably necessary' to the essence of the business operation; and (2a) There was reasonable cause to believe, that is, a factual basis for believing all, or substantially all, of the excluded class would be unable to perform safely and efficiently the duties of the job involved; or (2b) It is impossible or highly impractical to deal with the members of the group on an individualized basis." Kelley v. Bechtel Power Corp., 633 F.Supp 927 at 937 (S.D. Fla. 1986).

   
   

   Since it is Respondent's burden to establish a BFOQ defense, and a requirement of that defense is an admission by Respondent that it did discriminate on the basis of handicap, we find that a BFOQ defense was not established in this case, given the finding by the Hearing Officer that Respondent took the position that Petitioner's handicap played no part in its employment action.

   
   

   COSTS

   
   

   The Hearing Officer concluded that if Petitioner prevailed in this action, Petitioner was not entitled to recover "costs." Recommended Order, paragraph 21.

   
   

   The Florida Commission on Human Relations has awarded reasonably incurred costs to prevailing Petitioners. See e.g., Andrews v. Albertson's, Inc., 12 FALR 2646 (FCHR 1989).

   
   

   We find Petitioner entitled to costs.

   
   

   FRONT PAY

   
   

   The Hearing Officer found that Petitioner asked "to be made 'whole' through back pay, interest, fringe benefits, and 'front pay,' less earnings from mitigation. Recommended Order, paragraph 21.

   
   

   The Hearing Officer stated, "[a]s to front pay, [Petitioner] did not request the same in her petition, and she cites no Florida decisional law or Commission precedent for awarding this type of relief." Recommended Order, paragraph 21.

   
   

   The federal courts have awarded front pay to remedy unlawful employment practices in certain situations under Title VII of the Civil Rights Act of 1964. See e.g., Stallworth v. Shuler, 777 F.2d 1431, 38 CCH EPD paragraph 35,806 (11th Cir. 1985). And, front pay has been awarded in handicap discrimination cases brought under the federal Rehabilitation Act of 1973. See e.g., Arline v.

   School Board of Nassau County, 692 F.Supp 1286, 48 CCH EPD paragraph 38,397

   (M.D. Fla. 1988).

   Because the Human Rights Act of 1977, as amended, is patterned after Title VII, federal case law dealing with Title VII is applicable. See Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 at 1209 (Fla. App. 1 Dist. 1991). And, it is appropriate to look at federal case law interpreting the Rehabilitation Act for guidance in implementing the Human Rights Act of 1977, as amended. See Brand, supra, at 509.

   
   

   Without now determining whether Petitioner is entitled to front pay, we hold that front pay is a form of affirmative relief that can be awarded under Florida's Human Rights Act of 1977, as amended.

   
   

   OTHER RELIEF

   
   

   We specifically uphold the Hearing Officer's findings as to Petitioner's entitlement to back pay, lost fringe benefits and attorney's fees, should she prevail. Recommended Order, paragraph 21.

   
   

4. Exceptions

   Petitioner filed twelve numbered exceptions to the Recommended Order. Exceptions 1, 2, 3, 4, 5, 7, 8 and 12 appear to except to the Hearing

   Officer's view of the evidence presented.

   
   

   We reject these exceptions.

   
   

   Exception 6 suggests that, given the Hearing Officer's finding that neither party addressed the issue of whether the job could be performed by Petitioner, with reasonable accommodations, Respondent did not meet its burden of presenting evidence that no reasonable accommodation could be made.

   
   

   For reasons discussed in the Conclusions of Law section of this Order, supra, we accept exception 6.

   
   

   Exception 9 takes issue with the Hearing Officer's conclusion that Petitioner could not perform the job with or without reasonable accommodation.

   
   

   We accept exception 9 to the extent it supports the contention that Respondent did not meet its burden of presenting evidence that no reasonable accommodation could be made.

   
   

   Exception 10 excepts to the Hearing Officer's conclusion that Petitioner did not establish she was entitled to relief in this case, and to the denial of front pay as part of that relief.

   
   

   We accept this exception to the extent it supports the contentions that Petitioner established she is entitled to relief in this case and that front pay is an available remedy under the Human Rights Act of 1977, as amended. We do not at this time make any determination as to whether Petitioner is entitled to front pay in this case.

   
   

   Exception 11 excepts to the Hearing Officer's conclusion that, if she prevailed, Petitioner would not be entitled to costs, and argues that Petitioner's attorney is entitled to a lode star multiplier on the attorney's fees owed.

   For reasons discussed in the Conclusions of Law section of this Order, supra, we accept this exception to the extent it supports the contention Petitioner is entitled to costs. We do not make any finding at this point in the case as to the appropriateness of a lode star multiplier on the attorney's fees owed.

   
   

5. Relief and Remand

We find that Respondent committed an unlawful employment practice when it refused to hire Petitioner as a certified nursing assistant because of her handicap.

Respondent is hereby ORDERED to cease and desist from unlawfully discriminating against any employee or applicant for employment on the basis of handicap.

This matter is REMANDED to the Hearing Officer to determine:

1. the precise amount of back pay, including interest, to which Petitioner is entitled;

2. the precise amount of attorney's fees to which Petitioner is entitled;

3. the precise amount of costs to which Petitioner is entitled; and

4. whether front pay is appropriate in this case, and, if so, the precise amount of front pay to which Petitioner is entitled.

DONE AND ORDERED this 17th day of April, 1995. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Geraldine Thompson, Panel Chairperson;

Commissioner Chriss Walker

Commissioner Clarethea Brooks voted "no" to the following motion at the deliberation proceeding: "Move that Petitioner's exceptions be adopted to the extent that: (a) they except to the finding that Respondent met its burden on the issue of 'reasonable accommodation;' (b) they except to the determination that the Petitioner would not be entitled to 'costs' if she prevailed; (c) they except to the determination that the Petitioner is not entitled to affirmative relief if she had requested it; and (d) they except to the determination that 'front pay' is not an available remedy under the Florida Human Rights Act of 1977, and that Petitioner's exceptions in other respects be denied."

Filed this 17th day of April, 1995, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

Robert C. Downie, Esquire Post Office Box 6507

Tallahassee, Florida 32314-6507

Martin L. Black, Esquire

219 East Virginia Street Tallahassee, Florida 32301

James Mallue, Legal Advisor for Commission Panel Donald R. Alexander, DOAH Hearing Officer

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

DOAH ORDER REGARDING REMAND

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIONNE WHITEHEAD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0308

) MIRACLE HILL NURSING AND ) CONVALESCENT HOME, INC., )

)

Respondent. )

)

ORDER

By order dated April 17, 1985, the Commission on Human Relations remanded this case for further proceedings consistent with its order. The undersigned assumes no appeal of that order has been taken. The parties are directed to confer and advise the undersigned within 20 days from date of this order of several suggested dates for scheduling a hearing on the remand matters, and the estimated number of hours necessary to complete the hearing. The parties shall also identify remand issues, if any, that will be resolved prior to hearing by stipulation of counsel, and those issues requiring adjudication.

DONE AND ENTERED this 17th day of May, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 17th day of May, 1995.

COPIES FURNISHED:

Robert C. Downie, II, Esquire Post Office Box 6507 Tallahassee, FL 32314-6507

Martin L. Black, Esquire

219 East Virginia Street Tallahassee, FL 32301

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

RECOMMENDED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIONNE WHITEHEAD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0308

) MIRACLE HILL NURSING AND ) CONVALESCENT HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on September 19, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert C. Downie, II, Esquire

418 East Virginia Street Tallahassee, Florida 32301

Patricia A. Renovitch, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507

For Respondent: Martin L. Black, Esquire

219 East Virginia Street Tallahassee, Florida 32301-1263

STATEMENT OF THE ISSUE

The issue is whether petitioner is entitled to back pay, attorney's fees, costs, and front pay, and if so, the appropriate amount.

PRELIMINARY STATEMENT

On August 2, 1994, the undersigned issued a Recommended Order recommending that a complaint of discrimination filed by petitioner, Dionne Whitehead, against respondent, Miracle Hill Nursing and Convalescent Home, Inc., be dismissed. On April 17, 1995, the Florida Commission on Human Relations issued its Order Finding Unlawful Employment Practice Occurred; Awarding Affirmative Relief; and Remanding Case to Hearing Officer to Determine Other Relief.

Respondent then appealed the agency's final order, but the appeal was dismissed by the court on June 27, 1995, without prejudice to respondent seeking review upon rendition of a final, appealable order.

After the order of remand was accepted by the undersigned, a final hearing on the remanded matters was scheduled on September 19, 1995, in Tallahassee, Florida.

At final hearing, petitioner presented the testimony of Christopher E. Roady, a certified public accountant and accepted as an expert in present value calculations; John C. David, an attorney and accepted as an expert in attorney fee awards in employment discrimination cases; Robert C. Downie, II; and Patricia A. Renovitch. Also, she offered petitioner's exhibits 1-8. All exhibits were received in evidence.

The transcript of hearing was filed on October 17, 1995. Proposed findings of fact and conclusions of law were filed by petitioner on October 16, 1995. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. On January 11, 1994, petitioner, Dionne Whitehead, filed a petition for relief with the Florida Commission on Human Relations (Commission) in which she contended that she was denied employment as a nursing assistant by respondent,

      Miracle Hill Nursing and Convalescent Home, Inc. (Miracle Hill), on account of her handicap. As relief, petitioner requested the entry of an order requiring respondent "to make Petitioner whole for all damages, including back pay, lost benefits, and lost overtime." Although a Recommended Order in respondent's favor was issued on August 2, 1994, petitioner eventually prevailed on the merits of her claim when the Commission issued its Final Order on April 17, 1995. In that order, the Commission remanded the matter to the undersigned to determine the amount of front pay, back pay, attorney's fees and costs, if any, to which petitioner was entitled.

      
      

   2. Based on the remand, the matter is again before the undersigned on the issue of whether petitioner is entitled to front pay, back pay, and attorney's fees and costs, and if so, the appropriate amount. According to a document filed by petitioner on August 23, 1995, she requests $4,681.72 in back pay,

      $12,319.70 in front pay, $61,297.50 in attorney's fees, and $1,599.47 in costs. These amounts are computed through the date of hearing, or September 19, 1995. At hearing, these amounts were adjusted slightly upward. She also asks for lost fringe benefits in the amount of $19,956.67, but no evidence was presented on this issue at the earlier evidentiary hearing. Therefore, it is inappropriate to reopen the record as to this matter. Except for $499.00 in costs, respondent objects to every item claimed by petitioner. Each disputed item is discussed below.

      
      

2. Back Pay

   
   

   1. Back pay represents payment due for past services. To calculate this amount, the amount of money petitioner would have earned working for respondent is reduced by the amount petitioner actually earned in mitigating these lost wages.

      
      

   2. Petitioner worked full-time at Goodwill Industries both before and after being denied employment on September 24, 1992. Had she been employed by respondent as a certified nursing assistant (CNA), she would have been paid

      $5.50 per hour. That hourly wage for a CNA has remained constant through September 19, 1995. During this same time period, petitioner earned $4.50 per hour at Goodwill Industries until May 1, 1993, when her pay was increased to

      $4.75. On June 24, 1994, she received a raise to $5.00 per hour. She also received $981.00 working at a second job during this same time period.

      
      

   3. Between September 24, 1992, and May 1, 1993, which is 31 weeks or 7.2 months, petitioner would have earned $1.00 more per hour for a full time job than she did at Goodwill Industries, or $40.00 per week for that period. Between May 1, 1993, and November 1, 1995, or two years and twenty-six weeks, petitioner would have earned $0.75 more per hour, or $30.00 per week for that time frame.

      
      

   4. To calculate back pay with interest, it is necessary to first ascertain the amount of dollars each month, the appropriate interest rate, and the period of time over which the claimant is entitled to receive back pay. With this data in hand, one must then utilize a formula known as the future value of annuity, which produces the present value of a payment stream over a period of time at a specific rate of interest. The formula has been received in evidence as petitioner's exhibit 2.

      
      

   5. Using the statutory interest rate of 12 percent for the period prior to January 1, 1995, and a 8 percent statutory rate after that date, and the dollars and time periods discussed in finding of fact 5, the formula produces a total

      back pay of $6,225.95 less mitigation from a second job in the amount of

      $981.00, or a total of $5,244.95. Petitioner is accordingly entitled to that amount.

      
      

3. Front Pay

   
   

   1. Front pay is simply payment due for future services. Petitioner did not specifically request front pay in her petition for relief nor did she address it at the evidentiary hearing on the merits of her claim. This finding was made in the initial Recommended Order and was not changed by the Commission. Therefore, she has waived her right to this relief.

      
      

   2. Had she timely requested front pay, this amount would be calculated by taking the monthly amount of her wage differential, or $129.00, reduced to present value at the annual rate of 8 percent. Assuming that petitioner would work until retirement age of 65, and she is now 28 years old, front pay would encompass a time period of 37 years, or 444 months. This equates to an amount of $18,329.73.

      
      

4. Attorney's Fees

   
   

   1. When petitioner's counsel accepted the engagement to represent petitioner in October 1993, they were both employed by Oertel, Hoffman, Fernandez & Cole, a Tallahassee, Florida law firm. At that time, senior attorneys billed $150 per hour while associates billed $100 per hour. These rates are found to be reasonable. Patricia A. Renovitch is a senior attorney with the firm and is thus entitled to the $150 per hour rate. Robert C. Downie, II, an associate with the Oertel firm until August 1994, but now with the firm of Mathews & Downie, is entitled to be compensated at an hourly rate of $100.00 per hour while with the Oertel firm and an hourly rate of $150.00 since that time. A detailed summary of the hours expended by both counsel is set forth in petitioner's exhibit 4. The amounts contained therein are not controverted and are hereby approved. Therefore, before considering enhancement of attorney's fees, it is found that petitioner is entitled to attorney's fees in the amount of $43,759.50, which amount represents the reasonable number of hours times the reasonable rate per hour of the prevailing market.

      
      

   2. The foregoing amount (lodestone) may be adjusted up or down by the tribunal through the use of a multiplier, depending on such factors as the difficulty of a client in retaining counsel in this type of case, whether contingency risks can be mitigated, and the expectations of counsel in the market. Based on the foregoing factors, as supported by evidence presented at hearing, petitioner has asked that her attorney's fees be enhanced by a 2.0 multiplier, which means that actual fees would be doubled. This contrasts with her earlier request for an enhancement factor of .50 percent. Although there was no explanation for the apparent change in the factors, the change was not questioned by respondent, and the only evidence submitted at hearing concerned the 2.0 multiplier.

      
      

   3. The evidence supports a finding that the use of a 2.0 multiplier is appropriate. This in turn results in reasonable attorney's fees in the amount of $87,519.00. Petitioner is accordingly entitled to recover that amount.

      
      

5. Costs

1. The evidence supports a finding that petitioner is entitled to be reimbursed for costs in the amount of $2,809.82. These costs are detailed in

   petitioner's exhibit 4 received in evidence. They include $1,604.82 for costs expended prior to hearing, $312.50 for an expert accounting witness and $892.50 for an expert testifying as to the appropriate amount of attorney's fees.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

   
   

3. By a preponderance of the evidence, petitioner has established entitlement to $5,244.95 in back pay, $87,519.00 in attorney's fees, and

$2,809.82 in costs. At the same time, her requests for front pay and lost fringe benefits are denied on the theory that she did not specifically request such relief in her initial petition nor did she submit proof of such damages at the hearing on the merits of her claim. Compare Weaver v. School Bd. of Leon County, 624 So.2d 761, 764 (Fla. 1st DCA 1993)(where no evidence of economic damages presented at the section 120.57(1) hearing, it was error for Commission to reopen the hearing and order economic damages).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order granting the relief

described in paragraph 15. All other relief should be denied.

DONE AND ENTERED this 15th day of November, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 15th day of November, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0308

Petitioner:

Petitioner's proposed findings have been incorporated in substance, albeit in shorter form, into this recommended order.

COPIES FURNISHED:

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esquire General Counsel

Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Robert C. Downie, II, Esquire

418 East Virginia Street Tallahassee, FL 32301

Martin L. Black, Esquire

219 East Virginia Street Tallahassee, FL 32301-1263

Patricia A. Renovitch, Esquire

P. O. Box 6507

Tallahassee, FL 32314-6507

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 FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

DIONNE WHITEHEAD,

Petitioner,

EEOC Case No. n/a

v. FCHR Case No. 92-7434

DOAH Case No. 94-0308 MIRACLE HILL NURSING AND FCHR Order No. 96-017 CONVALESCENT HOME, INC.,

Respondent.

/

FINAL ORDER AWARDING AFFIRMATIVE RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Dionne Whitehead filed a complaint of discrimination pursuant to the Human Rights Act of 1977, as amended, Sections 760.01 - 760.10, Florida Statutes (1991), alleging that Respondent Miracle Hill Nursing and Convalescent Home, Inc., committed an unlawful employment practice by refusing to hire Petitioner as a certified nursing assistant because of her handicap (Petitioner has no left arm below the elbow due to a congenital condition).

The allegations set forth in the complaint were investigated and, on July 13, 1993, the Executive Director issued his determination, finding that reasonable cause existed to believe that an unlawful employment practice had occurred. Respondent requested a redetermination of this finding, and, on October 21, 1993, the Executive Director issued his redetermination, still finding that reasonable cause existed to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, dated January 11, 1994, 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 May 24, 1994, before Hearing Officer Donald R. Alexander.

Hearing Officer Alexander issued a Recommended Order of dismissal, dated August 2, 1994.

Pursuant to notice, public deliberations were held on March 2, 1995, in Tallahassee, Florida, before a panel of Commissioners, at which deliberations the panel determined the action to be taken on the Petition for Relief.

The Commission's action on the Petition for Relief is outlined in detail in the Commission's "Order Finding Unlawful Employment Practice Occurred; Awarding Affirmative Relief; and Remanding Case to Hearing Officer to Determine Other Relief," FCHR Order No. 95-019, dated April 17, 1995, and reported at 18

1. 1515. In summary, the Commission found that Respondent committed an unlawful employment practice on the basis of Petitioner's handicap when it refused to hire her as a certified nursing assistant; ordered Respondent to cease and desist from unlawfully discriminating against any employee or applicant for employment on the basis of handicap; found Petitioner entitled to back pay, attorney's fees and costs; and remanded the case to the Hearing Officer to determine:

   
   

   1. the precise amount of back pay, including interest, to which Petitioner is entitled;

   2. the precise amount of attorney's fees to which Petitioner is entitled;

   3. the precise amount of costs to which Petitioner is entitled; and

   4. whether front pay is appropriate in this case, and, if so, the precise amount of front pay to which Petitioner is entitled.

The Commission upheld the Hearing Officer's finding that Petitioner was not entitled to lost fringe benefits, if she prevailed, based on a lack of evidence presented.

An administrative hearing on the issues on remand was conducted on September 19, 1995, in Tallahassee, Florida, by Hearing Officer Donald R. Alexander.

Hearing Officer Alexander issued a Recommended Order, dated November 16, 1995, in which it was found that Petitioner was entitled to $5,244.95 in back pay, $87,519.00 in attorney's fees, and $2,809.82 in costs, and in which Petitioner's request for front pay and renewed request for lost fringe benefits were denied.

Pursuant to notice, public deliberations were held on August 29, 1996, by means of Communications Media Technology (namely, telephone) before this panel of Commissioners. The public access point for these telephonic deliberations was the Office of the Florida Commission on Human Relations, 325 John Knox Road, Building F, Suite 240, Tallahassee, Florida, 32303-4149. At these deliberations, the Commission panel considered the Hearing Officer's November 16, 1995, Recommended Order, the exceptions and responses to exceptions filed by the parties, and further determined the action to be taken on the Petition for Relief.

Petitioner' s Exceptions

Petitioner filed two numbered exceptions to the Hearing Officer's November 16, 1995, Recommended Order.

Exception 1 excepts to the Hearing Officer's characterization that the issues pending decision are "whether Petitioner is entitled to back pay, attorney's fees, costs and front pay, and if so, the appropriate amount." See Recommended Order, Statement of the Issue.

Petitioner argues that the Commission already found Petitioner entitled to back pay, attorney's fees and costs, and that the remand regarding these issues was to determine the precise amount owed, not whether Petitioner was entitled to them. See Pleading, Exception 1.

We agree with Petitioner's characterization of the issues, and grant Exception 1. See 18 F.A.L.R. 1515, at 1518, 1519, 1520.

Exception 2 excepts to the Hearing Officer's denial of an award of front pay and to the Hearing Officer's denial of an award for lost fringe benefits.

[front pay]

With regard to front pay, the Hearing Officer concluded that since Petitioner did not specifically request front pay in her Petition for Relief or address it at the evidentiary hearing on the merits of her claim, she has waived her right to this relief. Recommended Order, 8.

Petitioner contends that it is not necessary to specifically request front pay in the Petition for Relief to be entitled to it, and further contends that it did address the issue of front pay, noting that Recommended Order, 9, contains the Hearing Officer's findings as to the amount of front pay Petitioner would be owed, if she was entitled to it. See Pleading, Exception 2.

This action was brought pursuant to the Human Rights Act of 1977, as amended, which requires that, "In the event that the [C]ommission... finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees." Section 760.10(13), Florida Statutes (1991).

In its initial Order in this case, the Commission held that "front pay is a form of affirmative relief that can be awarded under Florida's Human Rights Act of 1977, as amended." See 18 F.A.L.R. 1515, at 1518.

Since the statute requires the Commission to provide affirmative relief from unlawful employment practices, and since front pay is a form of affirmative relief that can be awarded under the Human Rights Act of 1977, as amended, we hold that front pay need not be specifically requested in the Petition for Relief to be awarded, and we grant Petitioner's Exception 2 to the extent it excepts to the requirement imposed by the Hearing Officer that requests for front pay be specifically pled.

With regard to whether Petitioner is entitled to front pay, we note that, generally, front pay is "compensation for future economic loss stemming from present discrimination that cannot be remedied by traditional rightful-place relief such as hiring, promotion or reinstatement." 8 Employment Coordinator, Clark-Boardman-Callaghan, Front Pay, 27,801.

Some of the factors which can make traditional rightful-place relief inappropriate include the lack of a reasonable prospect that Petitioner can obtain comparable employment, the existence of an employer-employee relationship that is pervaded with hostility, and the existence of only a relatively short period of time for which front pay is to be awarded. See Hybert v. The Hearst Corporation, 53 EPD [ 39,897, 900 F.2d 1050 (7th Cir. 1990).

While the Hearing Officer has calculated an amount of front pay to be awarded, should front pay be appropriate in this case (See Recommended Order, 9), in our view, the Hearing Officer made no specific findings as to the existence of facts that would support the award of front pay in the case, and, therefore, we deny Petitioner's Exception 2 to the extent it maintains that Petitioner was wrongfully denied front pay.

[lost fringe benefits]

With regard to lost fringe benefits, the Hearing Officer denied Petitioner's request for lost fringe benefits "on the theory that she did not specifically request such relief in her initial Petition nor did she submit proof of such damages at the hearing on the merits of her claim." Recommended Order, 15.

Petitioner excepts to the denial of lost fringe benefits, contending that it specifically requested lost fringe benefits in its Petition for Relief and that it introduced evidence of lost fringe benefit damages at the initial hearing. See Pleading, Exception 2.

We agree with Petitioner that it specifically requested "lost benefits" in its Petition for Relief. See Recommended Order, 1, in which the Hearing Officer notes this.

However, the Commission has already ruled on the issue of Petitioner's entitlement to lost fringe benefits.

In the initial Recommended Order in this matter, the Hearing Officer concluded that the evidence did not exist from which to calculate lost fringe benefits. See 18 F.A.L.R. 1515, at 1525, paragraph 15, and at 1527 and 1528,

paragraph 21.

In its initial Order in this matter, the Commission stated, "We specifically uphold the Hearing Officer's findings as to Petitioner's entitlement to lost fringe benefits..." See 18 F.A.L.R. 1515, at 1518.

We grant Exception 2 to the extent it corrects the Hearing Officer's indication that Petitioner did not request relief for lost benefits, but we deny Exception 2 to the extent it excepts to the denial of an award for lost fringe benefits.

Respondent's Exceptions

Respondent filed two numbered exceptions to the Hearing Officer's November 16, 1995, Recommended Order.

Exception 1 excepts to the Hearing Officer's reference to a front pay calculation, "since that was an issue which Petitioner did not pray for in her Complaint (charge) which was filed with FCHR." See Pleading, Exception 1.

For reasons explained in our discussion of Petitioner's exceptions, supra, we deny Exception 1 to the extent it suggests that front pay must be specifically requested to be awarded, but grant Petitioner's Exception 1 to the extent that it argues that the issue of whether Petitioner is entitled to front pay has already been decided in the negative in the Commission S initial Order in this matter.

Exception 2 excepts to the Hearing Officer's use of a "lodestar" multiplier to enhance Petitioner's attorney'S fee award in this case, and suggests that if a "lodestar" multiplier is applicable in this case it should be used to diminish rather than enhance Petitioner's attorney's fee award. See Pleading, Exception 2.

There are various situations in law in which a party's "lodestar" attorney's fee (the "lodestar" fee is computed by multiplying "reasonable hours expended" times a "reasonable hourly rate"), is enhanced by a "multiplier" to offset the risk of nonpayment incurred by the attorney in taking the case. See Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), for a discussion of three categories of cases in which attorney's fee multipliers are appropriate.

Cases such as this, brpught pursuant to Section 760, Florida Statutes, have been found to be appropriate for an award of enhanced attorney's fees, and the Commission has been found to have not departed from its discretion in awarding reasonable attorney's fees when it applied a multiplier of 1.5 to a Petitioner's "lodestar" attorney's fee amount. See Weaver v. School Board of Leon County, 624 So.2d 761 (Fla. 1st DCA 1993), in which it was noted that the case before the court, brought pursuant to Section 760, Florida Statutes, could be described as a case that fell within Category II of the cases outlined in Quanstrom, supra.

With regard to "Category II" cases, the Quanstrom court notes, "If the trial court determines that success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5; if the trial court determines the likelihood of success was approximately even at the outset, the trial judge may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5." Quanstrom, supra, at 834.

Reading Quanstrom, supra, and Weaver, supra, together, we conclude that the multiplier of 2.0 applied by the Hearing Officer to the "lodestar" attorney's fee amount falls within a permissible range for cases brought pursuant to Section 760, Florida Statutes.

We deny Exception 2.

FINDINGS OF FACT

The Hearing Officer found Petitioner entitled to back pay and interest in the amount of $6,225.95, less mitigation from a second job in the amount of

$981, or a total of $5,244.95. Recommended Order, 7.

In our view, this computation is neither supported by competent substantial evidence nor a correct application of the law.

In computing the back pay owed, the Hearing Officer found that between September 24, 1992, and May 1, 1993, Petitioner would have earned $1.00 more per hour working for Respondent than at her other job, and that from May 1, 1993, until November 1, 1995, Petitioner would have earned $0.75 more per hour working for Respondent. The Hearing Officer fails to take into account his finding that on June 24, 1994, Petitioner received a raise to $5.00 per hour, which means that from June 24, 1994, through November 1, 1995, Petitioner would have made only $0.50 more per hour working for Respondent than at her other job. See Recommended Order, 4. Consequently, the computation of the back pay award is

not supported by competent substantial evidence, in that it is not supported by the facts found to exist by the Hearing Officer.

Further, in computing the amount of back pay and interest to which Petitioner is entitled the Hearing Officer used a formula known as the future value of annuity, which according to the Hearing Officer, "produces the present value of a payment stream over a period of time at a specific rate of interest." Recommended Order, 6.

The Commission, however, in dealing with back pay, awards simple interest, annually, at the statutorily provided

interest rate. See, e.g., Swenson-Davis v. Orlando Partners, Inc., 16 F.A.L.R. 792, at 793 (FCHR 1993). Consequently, we find the method used by the Hearing Officer to compute back pay and interest to be an error of law.

The Recommended Order adopted by the Commission in Sterling v. Albertson's Southco et al., 9 F.A.L.R. 1161, at 1172 (FCHR 1986), demonstrates how simple interest is calculated on a back pay award. Utilizing this method of computation, and correcting for the Hearing Officer's failure to consider Petitioner's June 24, 1994, raise to $5.00 per hour, we find Petitioner entitled to $4,440 in back pay, plus $1016.08 in interest, minus $981.00 in mitigation, for a total back pay award of $4,475.08. (An Appendix to this Order sets out how this amount has been computed.)

With this exception, and with the modifications discussed in the treatment of the parties' exceptions to the Recommended Order, supra, we find the Hearing Officer's findings of fact to be supported by competent substantial evidence, and with the indicated modifications, we adopt the Hearing Officer's findings of fact.

CONCLUSIONS OF LAW

Except as indicated in our treatment of the parties' exceptions and findings of fact, supra, we find the Hearing Officer's disposition of the matters before him to be correct.

With the indicated modifications, we adopt the Hearing Officer's conclusions of law.

Affirmative Relief

Having found an unlawful employment practice to have occurred in this case, and having ORDERED Respondent to cease and desist from unlawfully discriminating against any employee or applicant for employment on the basis of handicap (see

18 F.A.L.R. 1515, at 1519) we now hereby ORDER Respondent to pay Petitioner:

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive a notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 20th day of September, 1996. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Geraldine Thompson, Panel Chairperson;

Commissioner Clarethea Brooks; and Commissioner Larry Ellis

Filed this 27th day of September, 1996, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

APPENDIX:

1. Back Pay and Interest Computation

   ANNUAL

   YEAR INTEREST

   1992 14 wks X $40 adj int rt using 12 percent base

   $560 X .0325 = $ 18.20

   
   

   1993 17 wks X $40 35 wks X $30 ' 92

   $680 + $1050 + $560 = $2290 X .12 = $274.80

   
   

   1994 25 wks X $30 27 wks X $20 '92/'93

   $750 + $ 540 + $2290 = $3580 X .12 = $429.60

   
   

   1995 43 wks X $20 '92/'93/'94 adj int rt using 8 percent base

   $ 860 + $3580 = $4440 X .0661 = $293.48

   
   

   TOTAL INTEREST $1016.08

   
   

2. Computation, Including Back Pay, Interest, and Mitigation

Note that the appropriate interest rate is 12 percent prior to January 1, 1995 (see Section 55.03, Florida Statutes (1993)), and 8 percent thereafter for 1995 (See Section 55.03, Florida Statutes (1994 Supp.) and Fla. Admin. Weekly, Vol. 20, No. 49, Dec. 9, 1994, page 9132).

COPIES FURNISHED:

Robert C. Downie, II, Esquire Mathews & Downie, P.A.

418 E. Virginia Street Tallahassee, Florida 32301

Martin L. Black, Esquire

219 E. Virginia Street Tallahassee, Florida 32301

James Mallue, Legal Advisor for Commission Panel Donald R. Alexander, DOAH Hearing Officer

Docket for Case No: 94-000308

Orders for Case No: 94-000308