STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUSBON J. BROWN, JR., )

)

Petitioner, )

)

vs. ) Case No. 99-4041

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

SUPPLEMENTAL RECOMMENDED ORDER

This matter came before the undersigned on an Order Finding Unlawful Employment Practices Occurred and Remanding Matter for Determination of Relief rendered on January 9, 2001, by the Florida Commission on Human Relations (Commission). The Commission's Order rejected a Recommended Order denying a Petition for Relief which alleged that Respondent had committed an unlawful employment practice by failing to hire Petitioner for any of three positions for which he had applied. The Order remanded the matter "for determination of the appropriate remedy for the Respondent's unlawful failure to hire Petitioner for positions 67370, 80690 and 66224."

By Order dated February 12, 2001, the undersigned entered an Order Reopening Case and required the parties to submit proposed supplemental orders which contained a suggested final disposition of the case, together with references to the record

which supported their suggested disposition. In response to that Order, Petitioner and Respondent filed their submissions on February 21 and March 1, 2001, respectively; however, neither was fully responsive to the Order.

In his submission, Petitioner, a non-attorney who represented himself, has requested back pay in the amount of

$92,174.00 and attorney's fees under Section 120.595(1)(b), Florida Statutes (2000). As to the latter request, no such relief is available. In State, Dep't of Insurance v. Fla.

Bankers Assoc., et al., 764 So. 2d 660, 663 (Fla. 1st DCA 2000), the court held that "[n]othing in section 120.595(2) authorizes the award of attorney's fees to non-attorneys." It follows that this limitation likewise applies to Section 120.595(1).

In its submission, Respondent has primarily reargued the merits of the case, but there are conclusory statements that "the issue of remedy was not litigated by Petitioner [in the underlying case]," and that "[c]ompensatory damages [previously requested by Petitioner] are limited to civil actions under Section 760.11(5), F.S."

The Petition for Relief filed with the Commission specifically requests "relief for my losses and pain and suffering in the amount of $50,000." Because the Commission has no authority to award nonquantifiable economic damages, that portion of the relief requesting pain and suffering must be

denied. See Section 760.11(5), Florida Statutes (2000); Broward

County v. LaRosa, 505 So. 2d 422, 423-24 (Fla. 1987)(an administrative board has no authority to "award common law money damages for such noneconomic injuries as humiliation and embarrassment").

Assuming that the "relief" requested by Petitioner in his Petition for Relief includes back pay, such a request must be considered in the context of the principle established in School Bd. of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st

DCA 1990). There, the court held that there is "no authority to a reviewing agency to receive additional evidence other than that already presented and evaluated by the [administrative law judge]." Id. at 445. In other words, this proceeding is not a

bifurcated process, with one evidentiary hearing to establish liability, and a second to determine economic damages.

Therefore, no further evidentiary hearings are contemplated, and unless the issue of back pay was litigated at the hearing held on February 14, 2000, and an appropriate record on that issue established, "the Commission ha[s] no authority to permit an award of back pay." Id. These guidelines were disclosed to the parties in the undersigned's Order of February 12, 2001.

Although the parties were instructed to cite to the appropriate portions of the hearing record which support their proposed supplemental findings, there are no record citations in

Petitioner's submission. In paragraph 7 of his submission, Petitioner has requested "back pay . . . as the best compensation for this injury." In the same paragraph, and without record citations, he goes on to calculate the amount due by first taking the "starting pay" for the three positions in question. The actual starting pay for each position is not disclosed, and the only numbers given are apparently the total cumulative amounts Petitioner would have earned in those positions had he been hired. The calculations do not indicate the time period when such employment would have occurred.

Since there is no transcript of the hearing, the undersigned has examined the exhibits received in evidence (Petitioner's Exhibits 1-6 and Respondent's Exhibits A-D) to determine whether a record basis exists for the above calculations. They disclose that for position 67370, the successful applicant was hired on or about May 9, 1997, at a base rate of pay of $1345.00 on a bi-weekly basis, plus a 10 percent promotion due to skills, or a total of $1479.50. (Respondent's Exhibits A-3 and A-4). The record also shows that the successful applicant for position 80690 was hired on or about August 15, 1997, at an annual rate of pay of $35,063.31 (Respondent's Exhibit B-3); whether that rate corresponds to the minimum pay for that position is not of record. Finally, there is nothing of record to show the pay range for position 66224.

(Petitioner's Exhibit 4 does contain a salary range for position 049912, but that position is not in issue here.)

Petitioner then subtracted "alternate pay" from starting pay, which he defines in his supplemental findings as "pay received by Petitioner at jobs other than those applied for here in the instant case." This produced a total back pay amount of

$92,174.00, which number is apparently the total back pay due for all three positions, even though Petitioner would have filled only one position had he been hired. As noted above, there is no indication as to which period of time the calculations apply.

The issue of back pay was never addressed during the underlying hearing. Indeed, there was no mention of "back pay," and except for the numbers derived by the undersigned from the above exhibits, there was no evidence to support the above calculations. This explains the absence of any findings on this issue in the Recommended Order. As noted in Finding of Fact 4 of the Recommended Order, at the time of the hearing, Petitioner was "employed by Daytona Beach Community College in an undisclosed capacity"; there was, however, no evidence regarding the date of that employment (or any other jobs he may have held) or the amount of compensation he received during the intervening period. When the job applications were filed, Petitioner was employed by the Department of Revenue. As to that employment,

Finding of Fact 4 indicates that Petitioner left that agency on or about July 6, 1998, but his compensation during the relevant time periods was not disclosed on his job application (Respondent's Exhibit A-2) or during the hearing itself. Given these evidentiary shortcomings, no relief is available. Weaver

at 445.

Assuming arguendo that a proper record had been made for back pay, consideration would have to be given to the fact that Petitioner simultaneously filed discrimination complaints against seven different agencies alleging that each was guilty of an unlawful employment practice. The seven cases were heard by three administrative law judges, and Recommended Orders in favor of the employer were entered in all seven cases. Of those cases, at least one other has been remanded for the same purpose as the instant case. Brown v. Agency for Health Care Administration, DOAH Case No. 99-4039. Assuming that he is entitled to back pay, Petitioner would only be entitled to be made whole for a single position with one agency; he would not be entitled to back pay for multiple positions with more than one agency during essentially the same time period. Put another way, Petitioner could only accept employment for one position with one agency at the same time. Therefore, the acceptance of back pay in one case would arguably constitute a waiver of remedies in any other remanded case.

In summary, because there was no evidence presented on the issue of back pay in the underlying proceeding, the matter cannot be relitigated at this juncture. Therefore, Petitioner is not entitled to his requested relief. Further, even assuming that back pay is appropriate, it should be limited to one position with one agency, since Petitioner obviously would not have accepted multiple positions with more than one agency at the same time.

Based on the foregoing, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order determining that Petitioner is not entitled to any relief.

DONE AND RECOMMENDED this 19th day of March, 2001, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2001.

COPIES FURNISHED:

Ausbon J. Brown, Jr.

415 South Duss Street

New Smyrna Beach, Florida 32168

Steven W. Foxwell, Esquire Department of Health

2020 Capital Circle, Southeast Bin No. A02

Tallahassee, Florida 32399-1703

Azizi Coleman, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to file written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue a final order in this case.

Docket for Case No: 99-004041

Orders for Case No: 99-004041