STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROSE MERRY BELL,
Petitioner,
vs.
SURREY PLACE CENTER,
Respondent.
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) Case No. 02-1765
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RECOMMENDED ORDER ON REMAND
A hearing on remand was convened by Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings on September 3, 2003, in Live Oak, Florida.
APPEARANCES
For Petitioner: Rose Merry Bell, pro se
917 Northeast Davis Street Live Oak, Florida 32064
For Respondent: William Stephen Black, II, and Esquire Andrews & Walker, P.A.
822 North Monroe Street Tallahassee, Florida 32303
STATEMENT OF THE ISSUES
On April 29, 2003, the Florida Commission on Human Relations entered an Order Finding Unlawful Employment Practice Occurred and Remanding Matter for Determination of Relief. That Order limited the issues on remand to:
Determine back pay amounts owed by Respondent to Petitioner for the time period of August 9, 2001, to date of hire, if any;
Determine the precise amount of back pay owed Petitioner from July 31, 2001 through August 8, 2001, if necessary; and
Determine any amounts of interest and costs owed Petitioner.
PRELIMINARY STATEMENT
By a Recommended Order entered December 19, 2002, the undersigned found and concluded that Respondent had discriminated against Petitioner, a licensed practical nurse, by terminating her based on the employer's failure to reasonably accommodate her bona fide religious beliefs.
In its April 29, 2003, Order Finding Unlawful Employment Practice Occurred and Remanding Matter for Determination of Relief (also referred-to herein as "the Commission's Remand Order or "the Remand Order"), the Commission adopted the Recommended Order and remanded the case for further determination of the amounts owed in three categories: the back pay owed by Respondent to Petitioner through the time period of August 9, 2001 to day of hire, if any; the back pay from
July 31, 2001 through August 8, 2001; if any; and the interest and costs on the foregoing amounts.
By a May 12, 2003, Order, the parties were given 20 days in which to advise the undersigned of any reason the issues on remand should not be scheduled for hearing and to advise of mutually agreeable dates therefor.
Since neither party advised of a settlement, pending appeal, or any other reason for not scheduling a hearing, the case was noticed for a remand hearing on September 3, 2003.
At the commencement of hearing, various oral stipulations were entered-into. A Joint Composite Exhibit was admitted in evidence. Petitioner testified on her own behalf and had one, out of two exhibits offered, admitted in evidence. Respondent presented the oral testimony of Carol Uprichard and had two exhibits admitted in evidence.
A Transcript was filed on September 15, 2003. Only Respondent filed a Proposed Order within the stipulated time frame. It has been considered.
The applicable statutes have remained substantially similar, if not identical, over the course of this case from 2001 to date. The statutory citations herein are from the Florida Statutes (2002).
FINDINGS OF FACT
At all times material, Petitioner has lived in Live Oak, Florida.
It is apparently conceded that, since April 29, 2003 (and, indeed, since Petitioner's July 31, 2001, termination), Respondent has repeatedly had vacancies available to hire licensed practical nurses. However, Respondent has not attempted to rehire Petitioner as ordered by the Commission on April 29, 2003, and Petitioner has not made any attempt to obtain employment with Respondent.
The parties stipulated that at the time of her termination in 2001, Petitioner earned $14.89 per hour and worked eight-hour days, four days per week. She was paid every two weeks. Prior to her termination for refusing to administer Jack Daniels as a "toddy" to a patient, Respondent never required Petitioner to work on Wednesdays or Sundays as a reasonable accommodation for her religious observances.
Neither party established that there has been any decrease or increase in Respondent's rate of pay for licensed practical nurses between Petitioner's termination and the remand hearing.
Respondent sent, by certified mail, return receipt requested, a check in the amount of $579.48 to Petitioner for back pay for the period of July 31, 2001, to August 8, 2001. That check for back pay was dated January 29, 2003, and was received by Petitioner on January 31, 2003, even before the Commission entered its Order. However, for reasons unexplained,
Petitioner never cashed Respondent's check. The amount of
$579.48, which Respondent remitted to Petitioner, correctly computed the back pay owed by Respondent from July 31, 2001, through August 8, 2001, but it did not address, or take into consideration, interest or costs.
Petitioner testified that she has not incurred any costs associated with this matter. The Commission did not order a consideration of attorney's fees on remand, but it is noted that Petitioner has never employed an attorney.
Following her termination, Petitioner received state unemployment compensation for the months of September and October 2001. The total amount of unemployment compensation benefits received by Petitioner was "a little over $1,900.00".
The "Lake City Reporter" is a newspaper printed 20 miles away. Its issues for September 19, 2001 and September 26, 2001, set forth job openings by classified advertisements for licensed practical nurses in the Live Oak, Florida, area. Petitioner did not apply for any of these jobs.
Suwannee Health Care is a skilled nursing home located in Live Oak, Florida. Carol Uprichard, Respondent's current Director of Nursing, was employed as the Director of Nursing at Suwannee Health Care from April 2001, until February 2002. During that period of time, Suwannee Health Care often sought to employ licensed practical nurses and ran newspaper
advertisements accordingly. During that period of time, Suwannee Health Care advertised in a local paper for applicants to fill these nursing positions. During that period of time, Suwannee Health Care paid their licensed practical nurses $16.00 per hour, and an additional $2.00 per hour if they worked either the 3:00 p.m. to 11:00 p.m. shift, or the 11:00 p.m. to 7:00
a.m. shift. During that period of time, Suwannee Health Care offered a bonus and a variety of benefits, including health insurance. Petitioner never applied to Suwannee Health Care after her termination by Respondent on July 31, 2001.
Gentiva Home Care is located in Live Oak, Florida. On a single occasion between her July 31, 2001, termination by Respondent and the September 3, 2003, remand hearing, Petitioner applied to Gentiva Home Care for a licensed practical nurse position. The most probable date of this application was between July 31, 2001 and October 31, 2001. The rate of pay for that position is not of record. Petitioner was not hired for that position.
At all times material, in the Live Oak, Florida area, there have been many other health care entities, including the county health department, school nurse program, and Shands at Live Oak, all of which employ licensed practical nurses.
In Jasper, Florida, which is approximately 13 miles from Live Oak, there is a nursing home and Trinity Hospital, both of which employ licensed practical nurses.
In Lake City, Florida, which is approximately 20 miles from Live Oak, there are four skilled nursing homes, Shands at Lake City, and Lake City Medical Center. All of these health care facilities employ licensed practical nurses.
In Madison, Florida, about 27 miles from Live Oak, there is Madison Hospital, which employs licensed practical nurses.
It was not affirmatively demonstrated that the Jasper, Lake City, or Madison health care facilities had openings for licensed practical nurses between July 31, 2001, and the date of the remand hearing. Nor was it established what their respective rates of pay were for licensed practical nurses, but the sheer number of competitive health care facilities makes it probable that all of their respective rates were competitive with Respondent's pay scale and also probable that all of them had frequent openings for licensed practical nurses. It was affirmatively demonstrated that Petitioner never applied at any of the foregoing facilities.
The prior Recommended Order and the Commission's Order assumed Petitioner was actively seeking work as a licensed practical nurse from her termination on July 31, 2001, at least
until August 8, 2001. Petitioner testified on remand that she had applied for several other types of position in September and October 2001, because a work search was a requirement for her receiving unemployment compensation. Except for the school system, she did not identify what those other positions were, where they were located, or what they paid. Apparently, she was not hired for any of them.
At some unspecified date after her termination by Respondent, Petitioner put in an application at a Live Oak school for a fill-in practical nurse position. She also signed up for positions as a cook and as a teacher's aide. Petitioner was called twice to act as a teacher's aide, and she substituted twice for the Suwannee County School System. The amounts Petitioner earned on these occasions was unspecified by her testimony but was apparently negligible.
Petitioner did not apply after her termination by Respondent for any jobs as a licensed practical nurse, except the one time with Gentiva Home Care and the one time for a school nurse position.
Petitioner was employed as a babysitter by a relative from February 2002 through May 2003, and then from July 2003 to the date of hearing, September 3, 2003. Petitioner presumed that this arrangement also would continue after the hearing and into the future. Petitioner's relative paid her approximately $25.00
per week. The number of hours per day and the number of days per week Petitioner worked as a baby sitter never were specified. Petitioner waived her $25.00 per week if her relative did not have the money to pay her.1/
Petitioner's only explanation for why she has not actively sought employment during much of the time since Respondent unlawfully terminated her more than two years ago is that she no longer has a car. Petitioner's car was in her father's name. Petitioner's father turned her car into "Pay Days of Live Oak" after her termination, because she could not keep up the payments on it.
CONCLUSIONS OF LAW
This case initially arrived at the Division of Administrative Hearings pursuant to a Petition for Relief, filed after the Commission had failed to complete its investigation of Petitioner's Charge of Discrimination within 180 days. On April 12, 2002, Petitioner requested the opportunity to "withdraw my charge and file a Petition for Relief to proceed with an administrative hearing as provided for under Florida Statutes Section 760.11 (4)(b), and (8)." Therefore, the type of damages available to Petitioner are limited by Section 760.11(4)(b), (6), and (8), Florida Statutes, which provide, in pertinent part:
In the event that the commission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either:
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(b) Request an administrative hearing under Sections 120.579 and 120.58.
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(6) Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under Sections 120.569 and 120.57.
. . . If the administrative law judge, after the hearing finds that a violation of the Florida Civil Rights Act of 1992 has occurred, the administrative law judge shall issue an appropriate recommended order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay. Within 90 days of the date the recommended or proposed order is rendered, the commission shall issue a final order by adopting, rejecting or modifying the recommended order as provided under Sections
120.569 and 120.57. The 90-day period may be extended with the consent of all the parties. An administrative hearing pursuant to paragraph (4)(b) must be requested no later than 35 days after the date of determination of reasonable cause by the commission. In any action or proceeding under this subsection, the commission, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs. It is the intent of the Legislature that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action.
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(8) In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined there was reasonable cause. (Emphasis supplied)
The decretal portion of the Commission's April 29, 2003, Order herein required Respondent:
to cease and desist from discriminating further in the manner it has been found to have unlawfully discriminated against Petitioner;
to remit back pay to Petitioner for the time period of July 31, 2001, through August 8, 2001, in the manner recommended by the Administrative Law Judge in the Recommended Order;
to pay Petitioner the statutorily established interest on the amounts awarded Petitioner in (2) above;
to rehire Petitioner in her old position as soon as an L.P.N. vacancy becomes open, in the manner recommended by the Administrative Law Judge in the Recommended Order; and
to pay Petitioner the amount of costs that has been reasonably incurred in this matter by Petitioner. (Emphasis supplied)
The remand jurisdiction assigned to the undersigned by that April 29, 2003, Commission Order provided:
REMANDED to the Administrative Law Judge for determination of back pay amounts owed by Respondent to Petitioner for the time period of August 9, 2001 to date of hire, if any, as well as for determination of the precise
amount of back pay owed Petitioner from July 31, 2001, through August 8, 2001, if necessary, and for determination of any amounts of interest and costs owed Petitioner. (Emphasis supplied).
The Commission has ordered a calculation of two periods of back pay: July 31, 2001 to August 8, 2001, inclusive, and August 9, 2001 to the date of reinstatement, if any. The period of July 31, 2001 to August 8, 2001, has both a beginning and an ending date and can be easily calculated for both back pay and interest. Assessing the period of August 9, 2001, to the date of a reinstatement which has not yet occurred, is problematic.
Unlike Title VII of the Federal Civil Rights Act, Chapter 760, Florida Statutes, does not contain a statutory definition of "back pay." However, in this regard, as in every other, it is appropriate to look to Title VII and similar federal anti-discrimination legislation, and to the cases interpreting them, in order to determine similar rights, duties, and entitlements under Chapter 760, Florida Statutes. Reiner v.
Family Ford, Inc., 146 F. Supp. 1279 (M.D. Fla. 2001), modified in a later case on other grounds, citation omitted; Cf--Bass v. Bd. of County Com'rs, Orange County, Fla., 242 F.3d 996 (11th Cir. 2001).
"Back pay" is interpreted under one of Section 760's federal progenitors, the ADEA, as "lost earnings and benefits"
through the date of trial, date of the original judgment, or the date of reinstatement, if reinstatement is ordered. Hill v.
Xerox Corporation, 998 F. Supp. 1378 (N.D. Fla. 1998). In virtually every federal case, successful complainants in discrimination suits are "presumptively entitled to back pay"; the "preferred equitable remedy" is reinstatement instead of "front pay"; and the general rule allows prospective damages only when it is not feasible to reinstate the employee. Reiner v. Family Ford, Inc., supra; Lathem v. Dept. of Children and Youth Services, 172 F.3d 786 (11th Cir. 1999); EEOC v. Domino's
Pizza, 909 F. Supp. 1529 (M.D. Fla. 1995); Weaver v. Casa Gallardo, 927 F.2d 1515 (11th Cir. 1991); Darnell v. City of Jasper, Ala., 730 F.2d 653 (11th Cir. 1984); Dept. of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Armstrong v. Charlotte County Bd. of Co. Com'rs., 273 F. Supp 2d 1312 (M.D. Fla. 2003). A successful employee is entitled to either reinstatement or front pay, but not both. EEOC v. W & O Inc., 213 F.3d 600 (11th Cir. 2000).
The Commission has ordered reinstatement in this case, and reinstatement is feasible in this case,2/ because Petitioner's and Respondent's relationship is not affected by any of the unsavory elements present in Hill v. Xerox Corp.
supra.; Lewis v. Federal Prison Industries, Inc. 953 F.2d 1277
(11th Cir. 1992); or Armstrong v. Charlotte County Bd. of Co. Com'rs, supra.
Respondent's suggestion that it was Petitioner's obligation to request her old job back after receiving the Commission's April 29, 2003 Order, and Respondent's assertion that since Petitioner did not take the initiative to request her old job back, Respondent owes her nothing, are patent nonsense in light of the express language of the Commission's Order. That Order specifies that the undersigned is to calculate back pay "for the time period of August 9, 2001, to the date of hire, if any." Pursuant to this language, the only choice Respondent had was to actively seek out Petitioner and rehire her as soon as it had a vacant licensed practical nurse position or to continue to pay her salary, less mitigation amounts, until Respondent did hire her back or she was fully employed elsewhere.
Herein, Respondent never offered Petitioner her old job back, and Petitioner has remained largely unemployed from August 9, 2001 through September 3, 2003, the date of the remand hearing.3/
Where, as here, reinstatement/rehire has not yet occurred, no date certain exists for calculating the end of the second period of back pay designated by the Commission's Remand
Order, but an appropriate order for continuing back pay still can be crafted on remand.
In the posture of the instant case, Petitioner can only be awarded "back pay," not "front pay," but requiring that Respondent provide "back pay" up to a future date of rehire is not the equivalent of creating "front pay."
The first period of July 31, 2001 to August 8, 2001, can be calculated for both back pay and interest, but under the present circumstances of a failure to rehire, the most this Recommended Order on Remand can do with regard to the second period of August 9, 2001, to the date of rehire is to set out how the calculation of back pay up to the date of ultimate rehire is to be calculated and recommend a time frame for rehire. Then, in the event Respondent does not comply with the Order entered hereon by the Commission, the undersigned assumes that Petitioner would still have the option of seeking enforcement of the Commission's Order.
For the first period of back pay designated by the Commission's Remand Order herein, Respondent submits that having already paid, on January 31, 2003, full wages for July 31, 2001 to August 8, 2001, it owes Petitioner nothing for that period of time except interest at six percent, the 2003 rate of interest established by Section 55.03, Florida Statutes, for the limited period between August 8, 2001 and January 31, 2003, the date
Petitioner received Respondent's check of principal for the July 31, 2001 through August 8, 2001 period of back pay.
Respondent concedes that interest on the unpaid interest owed for that period may be appropriate.
For the second period of back pay designated by the Commission's Remand Order, Respondent submits that, due to Petitioner's failure to mitigate, Petitioner should receive no back pay after August 9, 2001, or, alternatively, Respondent is entitled to a fifty percent set-off for the eleven pay periods between the April 29, 2003 Commission Order and the date of the Respondent's Proposed Recommended Order.4/ Respondent offers no legal authority for either proposition.
For the reasons previously set out, Respondent's selection of dates is not supportable at law. The date of job reinstatement is the only cut-off date, unless front pay is deemed appropriate. For reasons to follow, an arbitrary fifty percent reduction for failure to mitigate and the use of a single year's statutory interest rate also is not supported by the case law.
The principle of a petitioner's duty to mitigate was briefly discussed in the Conclusions of Law of the Recommended Order adopted by the Commission in the instant case. Unlike Title VII and some other federal counterparts, Chapter 760, Florida Statutes, contains no statutory mandate that Petitioner
mitigate Respondent's damages, but again, those federal laws and the reasoning of the federal cases interpreting them, are instructive for purposes of Chapter 760, Florida Statutes.
These cases hold that the discriminated-against employee has an affirmative duty to mitigate the discriminating employer's obligation for both back and front pay by "reasonably diligent efforts to seek employment that is substantially similar, equivalent work." See particularly Reiner v. Family Ford, Inc., supra., and Ali v. City of Clearwater, 915 F. Supp. 1231 (M.D. Fla. 1996), both of which cases simultaneously discuss federal legislation and Chapter 760, Florida Statutes. See also EEOC v. Domino's Pizza, supra.; Moses v. K-Mart Corporation, 905
F. Supp. 1054 (S.D. Fla. 1995); Weaver v. Casa Gallardo, Inc. supra; and Darnell v. City of Jasper, Ala., supra. The older cases call this the duty to seek "suitable work" or "comparable work," or otherwise speak of damages being limited to "a [Petitioner's] proven economic loss." All the cases sustain the concept that an employee who has been discriminated against is entitled to be made whole (Weaver v. Casa Gallardo, Inc., supra.), but is not entitled to a windfall or liquidated damages that exceed just compensation.
In Ali v. City of Clearwater, supra., it was ruled that two elements of proof of lack of mitigation are required from Respondent; one alone will not do. That decision held:
In the employment discrimination context, the defendant has the burden of proving the affirmative defense of failure to mitigate. Aguinaga v. United Food & Commercial Workers International Union, 993 F.2d 1463, 1473 (10th Cir. 1993), cert.
denied, 510 U.S. 1072, 114 S. Ct. 880, 127
L. Ed. 2d 75 (1994). To meet this burden, "the defendant must demonstrate: 1) there were suitable positions which the plaintiff could have discovered and for which [he or she] was qualified; and 2) the plaintiff failed to use reasonable diligence in seeking such positions." Campbell v. Pennsylvania College of Optometry, 68 Fair Empl. Prac. Cas. (BNA) 1488, 1995 WL 489134 (E.D. Pa. 1995) (citing Aguinaga, 993 F.2d at 1474); see also Nord v. U. S. Steel Corp., 758 F.2d 1462 (11th Cir. 1985).
In EEOC v. Joe's Stone Crab, Inc. 15 F. Supp. 2d 1364 (S.D. Fla. 1998), it was held that:
While every claimant has a duty to exercise reasonable diligence in attempting to mitigate damages, the defendant has the burden of proving that a claimant has failed to discharge her duty. See Smith v. Great Am Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992). Thus the defendant must show that a claimant did not make reasonable efforts to obtain comparable work or that comparable work was available and the claimant did not seek it out. Sellers v.
Delgado Community College, 839 F.2d 1132,
1139 (5th Cir. 1998).
However, it has also been held in Weaver v. Casa Gallardo, Inc. supra., that where it is shown that the employee has made no attempts to find substantially similar equivalent
employment, an employer need not establish the availability of substantially equivalent employment in order to make out a mitigation defense in a Title VII action.
That established, the complex legal principles concerning calculating mitigation amounts must be assembled from several cases.
In EEOC v. Joe's Stone Crab, Inc., supra., it was held that:
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... Two overarching principles guide the computation of a back pay award: "(1) unrealistic exactitude is not required, [and] (2) uncertainties in determining what an employee would have earned but for the discrimination should be resolved against the discriminating employer." Pettway v. Am Cast Iron Pipe Co. 494 F.2d 211, 260-61 (5th Cir. 1974) (citing Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1380 n. 53 (5th Cir. 1974).[5/]
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As previously noted, an award of back pay is intended to make the claimant whole, not to confer a windfall . . . in calculating a back pay award, the trial court must determine what the employee would have earned had she not been the victim of discrimination, and must subtract from that figure the amount of actual interim earnings. Moreover this calculation must be performed according to a quarterly earnings formula, which has gained court approval.
See Darnell v. City of Jasper, Ala., 730 F 2d 653, 656-57 (11th Cir. 1984).
In Darnell v. City of Jasper, Ala., supra., the district court had interpreted "interim earnings" under Title VII to mean the total amount of a discriminatee's income over the nine-year period for which back pay was sought. Because Darnell had admittedly earned more while employed in other jobs during that period than he would have earned in the position he had been denied via discrimination, the district court refused to award him any back pay. On appeal, the Eleventh Circuit held instead that:
. . . Loss of pay shall be determined by deducting from a sum equal to that which [the employee] would normally have earned for each quarter or portion thereof, [his] net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.
The Darnell court selected an interim quarterly calculation on the basis of National Labor Relations Board standards enunciated in other cases because, among other reasons, the court concluded that such a formula more faithfully serves the remedial objectives of Title VII. Darnell also only requires use of the quarterly approach where feasible.
A quarterly approach is not feasible in the instant case because of the way the parties presented their respective cases on remand. Still, the Darnell case is persuasive that Petitioner's interim earnings should be deducted only from those
periods when she actually had interim earnings and where the amounts thereof were proven-up, and further, that her failure to mitigate should be charged against her only in those periods when she failed to seek or hold employment of any kind.
"Courts resolve uncertainties in back pay in favor of the discrimination victim." Lathem v. Dept. of Children and
Youth Services, supra. (Internal citations omitted.)
Reiner v. Family Ford, Inc., supra., a case which interprets both Title VII and Chapter 760, Florida Statutes, stands for the proposition, among others, that failure to mitigate does not bar or completely foreclose a claim for front or back pay. See also Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1562 (11th Cir. Fla. 1988); Massie v. Indiana Gas Co., 752
F. Supp. 261, 271 (S.D. Ind. 1990) and Cassino v. Reichhold
Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987), cited therein.
Upon the facts as found in the December 19, 2002, Recommended Order, in the Commission's April 29, 2003, Remand Order, and in the instant Recommended Order on Remand, it is concluded that Petitioner sought to fulfill her affirmative duty to make reasonably diligent efforts to seek substantially similar equivalent employment as a licensed practical nurse only from July 31, 2001 to October 31, 2001; that she did not make similar efforts at any time thereafter; and that she
unreasonably accepted a lower paying position as a babysitter from February 1, 2002 to May 31, 2003 and from July 1, 2003 and continuing. Petitioner's loss of her car does not excuse her from seeking licensed practical nurse positions in a home town the size of Live Oak, Florida. At most, loss of her car diminished, but did not prevent, her seeking employment in a 30-mile radius of her hometown.
Therefore, it is also concluded that Respondent owes Petitioner her full wages plus interest for July 31, 2001 through October 31, 2001; that Respondent owes Petitioner nothing for any periods of time she was neither employed nor seeking work as a licensed practical nurse; and that for the periods of February 1, 2002 to May 31, 2003 and from July 1, 2003, at least to the date of the remand hearing, September 3, 2003,6/ Respondent owes Petitioner only the amount of what her wages would have been for that period of time, less the $1800 she earned as a babysitter. Since these conclusions blur the two periods designated by the Commission's Remand Order, further explanation is necessary.
The law is clear that Petitioner's earnings since her termination may be deducted from the amount Respondent owes her for back pay. Champion International Corp. v. Wideman, 733 So.
2d 559 (1st DCA 1999); Ferraro v. Metro Dade County Corrections and Rehab. Dept., DOAH Case 92-2498 (RO February 26, 1993);
Darnell v. City of Jasper, Ala., supra.; Brown v. A.J. Gerard Mfg. Co. 695 F.2d 1290 (11th Cir. 1983).
However, Petitioner's Unemployment Compensation benefits may not be deducted to Respondent's benefit. Dominguez v. Tom James Co. 113 F.3d 1188 (11th Cir. 1997); Brown v. A.J. Gerard Mfg. Co. supra.
Both the prior Recommended Order and the Commission's Remand Order mandated that Petitioner recover the appropriate "interest," despite that word not appearing in the applicable Florida statute. There also is no clear statutory formula for how interest is to be calculated under Chapter 760, Florida Statutes.
In federal cases, prejudgment interest on back pay to a prevailing plaintiff is an equitable remedy, committed to the sound discretion of the trial court. See Loeffler v. Frank, 486
U.S. 549 (1988), quoting Albemarle Paper Co. v. Moody 422 U.S.
405 (1975); Castle v. Sangamo Weston, Inc., supra.; George v.
GTE Directories Corp. 114 F. Supp. 1281 (M.D. Fla. 2000); EEOC
v. Joe's Crab. Inc., supra.; and Armstrong v. Charlotte County Bd. of Co. Com'rs, supra.
The federal cases hold that interest is appropriate for back pay in an effort to make whole the party against whom discrimination has occurred. The Eleventh Circuit has determined that in federal discrimination cases, interest on
back pay shall be calculated upon the Internal Revenue Services' prime underpayment rate (EEOC v. Domino's Pizza, supra.), but as the instant case is brought under Chapter 760, Florida Statutes, state law should be utilized, if possible.
Section 55.03, Florida Statutes (2001), addresses judgments and interest, and states:
On December 1 of each year beginning December 1, 1994, the Comptroller of the State of Florida shall set the rate of interest that shall be payable on judgments or decrees for the year beginning January 1 by averaging the discount rate of the Federal Reserve Bank of New York for the preceding year, then adding 500 basis points to the averaged federal discount rate. The comptroller shall inform the clerk of the courts and chief judge for each judicial circuit of the rate that has been established for the upcoming year. The initial interest rate established by the Comptroller shall take effect on January 1, 1995, and the interest rate established by the Comptroller in subsequent years shall take effect on January 1 of each following year. Judgments obtained on or after January 1, 1995, shall use the previous statutory rate for time periods before January 1, 1995, for which interest is due and shall apply the rate set by the Comptroller for time periods after
January 1, 1995, for which interest is due. . . .
Neither the Commission nor the Division of Administrative Hearings constitutes a "court." Neither the Commission nor the Division enters a "judgment." However, Section 55.03, Florida Statutes, is a reasonable statutory
guideline for calculating interest where no other guideline is provided, and its use (by respective successive years instead of by a single percentage for the last of the successive years) was adopted in the Commission's Final Order Enforcing Previously Entered Final Order for Relief From an Unlawful Employment Practice, entered April 30, 1998, in Wideman v. Champion
International Corp., FCHR Case No. 89-1410; DOAH Case No. 90- 3260, reversed in part on other grounds in Champion International Corp. v. Wideman, 733 So. 2d 559 (Fla. 1st DCA 1999). Use of Section 55.03, Florida Statutes, is advocated by Respondent herein.7/ Also its use is in accord with the clear instruction to Respondent contained in the Commission's Remand Order to utilize the statutory interest rate(s) with regard to the July 31, 2001 to August 8, 2001 period of back pay. Reading the Commission's Remand Order herein as a whole, and in the context of the Commission's Order in Champion, supra., it is concluded that the interest rate the Commission expects the undersigned to apply for both the July 31, 2001 to August 8, 2001, period of back pay (first designated period), and the August 9, 2001 to date of rehire period of back pay (second designated period), is the interest rate described in Section 55.03, Florida Statutes.
The interest rate set by Florida's Comptroller and used by Florida's courts for the calendar year 2001 was eleven
percent (11%); for 2002 was nine percent (9%); and for 2003 is
six percent (6%).
The foregoing said, this Recommended Order on Remand Order will now address the simplest elements of the Commission's remand first.
Petitioner is not entitled to an award of costs because, by her own testimony, she has incurred none. Therefore, no calculations are necessary for costs.
There is no dispute that Respondent's $579.48 check for back wages from July 31, 2001 through August 8, 2001, was correct as to the principal amount owed for that period, but it did not include interest at the statutory rate for the eight days involved. Respondent asserts that the fact that Petitioner elected not to cash Respondent's January 29, 2003, check in a reasonable amount of time after she received it on January 31, 2003, should not unjustly enrich her by running up interest on the principal since January 31, 2003. That is a point well- taken, but it does not account for the initially missing interest, which has never been paid to her. Petitioner is entitled to interest on the $579.48 principal at 11% for
August 8, 2001 through December 31, 2001; at 9% for January 1,
2002 through December 31, 2002, and at 6% for January 1, 2003 to January 31, 2003. She is also entitled to 6% interest on the total interest arrived-at by the prior calculation, for
January 31, 2003 to the date of payment, provided payment is made in the year 2003. In the event that payment of the total accrued interest is not made until 2004, then another Comptroller-authorized interest rate may apply.8/
For the period of August 9, 2001 until October 31, 2001 (the period it has been determined Petitioner was actively seeking work, including a position of a school nurse and as a licensed practical nurse at Gentiva Home Care), Respondent should pay Petitioner her wages, plus interest accruing at each two-week pay period as set by the Comptroller for each intervening year to date of payment.
The last and most difficult calculation herein is, of course, the calculation of back pay since August 9, 2001 to the date of rehire. There is no evidence that Respondent's pay scale for licensed practical nurses increased or decreased since Petitioner was terminated. That one other facility was offering more money is not controlling. Respondent should pay Petitioner at her old rate of pay for the periods of February 1, 2002 to May 31, 2003, and from July 1, 2003 to September 3, 2003, the date of the remand hearing, less $1800 (babysitting fees), with interest calculated on the difference arrived at by the foregoing subtraction at each respective intervening year's interest rate, as set by the Comptroller. Respondent also should be required to pay Petitioner at the same rate, from
September 3, 2003 forward until such time as Respondent rehires Petitioner or she refuses re-employment.9/
Respondent should not be required to pay Petitioner any amount for the intervening periods (November 1, 2001 to January 31, 2002, and June 1, 2003 to June 30, 2003), during which periods Petitioner did not work and did not seek substantially equivalent employment.
Since Respondent's January 31, 2003, check is stale, it would be good judgment for Respondent to stop payment on it and issue new checks for each of the amounts specified in the decretal portion of the Commission Order to follow.
Given the delay in reinstatement herein, some provision should be made to protect Petitioner in the event Respondent fails to make its bona fide offer of re-employment and to protect Respondent in the event Petitioner refuses a bona fide offer of re-employment. A ten-day requirement in the Commission's Final Order should be sufficient.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a Final Order requiring that:
Within 10 days of the date of the Commission's Order, Respondent shall notify Petitioner in writing of one or more
positions vacant on that date to which it is willing to reinstate her. Each such position shall be at least equivalent in earnings and reasonably comparable in responsibilities, prospects for advancement, and shift assignments and days off (Sundays and Wednesdays) to the position held by Petitioner on July 31, 2001;
Absent the availability of such a position at that time, Respondent shall have the continuing obligation to notify Petitioner when such a position does become vacant;
Petitioner shall have the obligation to notify Respondent whether she is accepting or refusing reinstatement within 10 days of Respondent's offer of reinstatement;
Respondent shall reinstate Petitioner within 10 days after it receives notice of her acceptance of a position;
At the time of reinstatement, Respondent shall pay to Petitioner all amounts and interest as calculated in Conclusions of Law 59, 60, and 61; and
In the event Respondent does not reinstate Petitioner in a timely manner, Petitioner may apply to the Commission for enforcement of its Final Order, at which time Respondent may exercise any appropriate affirmative defenses.
DONE AND ENTERED this 5th day of December, 2003, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 5th day of December, 2003.
ENDNOTES
1/ Petitioner now maintains that the babysitting job, begun in February 2002 was the job that the December 19, 2002, Recommended Order found was obtained previously on August 9, 2001. (See Finding of Fact 16.) Petitioner did not file exceptions to that Recommended Order or appeal the April 29, 2003 Order of the Commission. Therefore, this assertion cannot alter the Findings and Conclusions of those Orders. However, her new assertion makes no significant "real world" difference in light of the whole of the Findings of Fact and the Conclusions of Law herein, particularly Conclusions of Law 24, 44-45, 47-48, and 60, dealing with the method for applying the mitigation principles established by case law to sporadic periods of employment.
2/ See below, n. 3, concerning post hearing events.
3/ By a letter to Petitioner from Respondent mailed simultaneously with its Proposed Recommended Order on Remand dated October 2, 2003, and copied to the DOAH file, Respondent has purportedly offered to rehire Petitioner as a licensed practical nurse. However, that letter was not presented at the September 3, 2003, remand hearing, for obvious reasons. The
remand hearing closed the record herein on September 3, 2003. Therefore, Respondent's October 2, 2003, letter may not be considered here for purposes of terminating back pay and interest.
Also, it is noted that since this letter made Petitioner no guarantee of Wednesdays and Sundays off as an accommodation of her religious observances, it does not offer her reinstatement in a virtually identical or substantially equivalent position.
The October 2, 2003, letter does not offer Petitioner the same religious accommodations as she had in her former position, and therefore it is not an offer of comparable employment so as to terminate Respondent's responsibility for back pay with interest, pursuant to the rulings in Morris v. Roche, 182 F. Supp. 2d 1260 (M.D. Ga. 2002); Champion International Corp., v. Wideman, 733 So. 2d 559 (Fla. 1st DCA 1999); Bahadirli v.
Domino's Pizza, 873 F. Supp. 1528 (M.D. Ala. 1995); Lewis v. Federal Prison Industries, Inc., supra; Ford Motor Company v. EEOC, 458 U.S. 219 (1982), and other cases cited herein.
4/ This is based on the proposed rehire letter referenced in n.3, above.
5/ This holding eliminates any need to "capture" the actual dates Respondent had licensed practical nurse vacancies, any negligible amounts paid Petitioner by the school system, or any babysitting fees the Petitioner waived.
6/ One can conjecture that at some time after the remand hearing and before reinstatement, Petitioner will again cease babysitting and/or not search for similar employment. Any of those combinations of events could alter the ultimate damages owed. This potential problem was created by Respondent's delay in making a proper offer of reinstatement. Since payment of back wages up to reinstatement is required, the way such a speculative situation can now be dealt with would be as a defense to Petitioner's attempt to enforce the Commission's Order following.
7/ However, Respondent would make the error of utilizing only the 6% interest rate of 2003, instead of the interest rates respective to each intervening year, as approved in Wideman v.
Champion International Corp., Commission Order supra.
8/ See Wideman v. Champion International Corp., Commission Order supra.
9/ One can conjecture that Petitioner may improperly refuse a bona fide job offer from Respondent once that offer is forthcoming. This is another potential problem engendered by Respondent's delay in making a proper offer of reinstatement. Since payment of back wages up to reinstatement is required, the way such a speculative situation can now be dealt with would be as a defense to Petitioner's attempt to enforce the Commission's Order following. Petitioner would presumably seek to enforce the Commission's Order following if a valid reinstatement/rehire offer were not made timely by Respondent.
COPIES FURNISHED:
Rose Merry Bell
917 Northeast Davis Street Live Oak, Florida 32064
William Stephen Black, II, Esquire Andrews & Walker, P.A.
822 North Monroe Street Tallahassee, Florida 32303
Michelle Jackson, Acting Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Tallahassee, Florida 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit 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 the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 25, 2004 | Agency Final Order | |
| Dec. 05, 2003 | Recommended Order | On remand: Discussion of back and front pay, duty to mitigate, appropriate interest rate, and burdens of proof on discriminator and discriminatee. |
| May 12, 2003 | Other | |
| Dec. 19, 2002 | Recommended Order | Respondent committed unlawful employment practice; ordered to pay Petitioner full wages from July 31-August 8, 2001; must rehire Petitioner in old position when LPN vacancy becomes open; case remanded for further hearing on amounts owed from August 9 on. |
