The Issue Whether Petitioner, Troy Perry, was denied service at Respondent's, Speedway SuperAmerica, LLC, d/b/a Starvin' Marvin, service station because of his race.
Findings Of Fact Petitioner is a 39-year-old, African-American male. Respondent operates and maintains an automobile service station in Palm Bay, Brevard County, Florida. On the evening of May 24, 2000, Petitioner attempted to obtain gasoline for his automobile at Respondent's service station. For the preceding two years Petitioner had frequently obtained gasoline at Respondent's service station without incident or any suggestion of racial discrimination. The gasoline pumps at Respondent's service station utilize computers in their operation. On this particular evening, the computers were not functioning properly and, as a result, Rose Locasio, a cashier at Respondent's service station, had announced over a speaker system audible at the gasoline pumps that all customers would have to pre-pay for gasoline purchases. There is no evidence that Petitioner heard this announcement. Ms. Locasio had been an employee of Respondent's service station from January 1998 until July 2000. Her employment is coincident with Petitioner's frequent patronization of the service station. Petitioner removed the gasoline nozzle from the pump and inserted it into his gas tank. He was not able to pump any gas. After waiting a few minutes for the gasoline pump to be activated, Petitioner went into the service station and presented $15 to Rose Locasio. She activated the gasoline pump. At this point, Petitioner questioned Ms. Locasio regarding the requirement that he pre-pay suggesting that he was required to pre-pay because he was black. Ms. Locasio commented that she discriminated against all minorities, blacks, Hispanics, Indians, and whites. Feeling insulted by Ms. Locasio's comment, Petitioner decided he didn't want to purchase gasoline from Respondent's service station and requested his $15 back. Ms. Locasio explained that she could not refund the $15 once the computer had been activated without the station manager's permission. The station manager was not on duty. Petitioner called the police, as did another of Respondent's employees. When the police arrived they effected the return of Petitioner's $15.
Recommendation Based of the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner has failed to present a prima facie case of discrimination based on race; therefore, his Petition For Relief should be dismissed. DONE AND ENTERED this 3rd day of February, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 3rd day of February, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan P. Norton, Esquire Allen, Norton & Blue, P.A 121 Majorca Avenue, Suite 300 Coral Gables, Florida 33134 Troy Perry 2010 Paradise Court Palm Bay, Florida 32905 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues for determination are whether the Florida Commission on Human Relations (Commission or FCHR) lacks jurisdiction under Chapter 760, Florida Statutes (2003), over the claims in the Charge of Discrimination because the claims are barred by the doctrines of collateral estoppel and res judicata; the claims are time-barred by Subsections 760.01(1) and (5), Florida Statutes (2003); or both.
Findings Of Fact Respondent employed Petitioner in Respondent's Code Enforcement Division as a Program Coordinator from sometime in November 1999, until Petitioner resigned his employment on June 13, 2003. On April 2, 2002, while Petitioner was employed with Respondent, Petitioner filed identical charges of discrimination simultaneously with the Commission and the United States Equal Employment Opportunity Commission (EEOC). The charges alleged that Petitioner's employer discriminated against Petitioner on the basis of his race through disparate treatment in pay and promotion, retaliated against Petitioner, and created a hostile work environment for Petitioner. The EEOC assigned case number 150A201984 to the charge of discrimination. On April 29, 2002, the EEOC issued a Dismissal and Notice of Rights. On July 26, 2002, Petitioner filed a civil action in the United States District Court for the Middle District of Florida. The initial Complaint and subsequent Amended Complaint contained the same allegations as those set forth in the charges of discrimination filed with the Commission and the EEOC. The complaints alleged that Petitioner's employer violated Title VII of the Civil Rights Act of 1991 and the Florida Civil Rights Act by discriminating against Petitioner on the basis of race, through disparate treatment in promotion and pay; by retaliating against Petitioner; and by creating a hostile work environment. On February 12, 2004, Petitioner voluntarily dismissed his racial harassment claims in the federal civil case. On March 17, 2004, the federal court entered a Summary Judgment for the employer on all remaining claims and dismissed Petitioner's case with prejudice. The Summary Judgment expressly includes allegations of discrimination through the date of Petitioner's resignation from Orange County on June 13, 2003. On or about June 10, 2004, Petitioner appealed the Summary Judgment to the United States Court of Appeals for the Eleventh Circuit. On September 30, 2004, the Eleventh Circuit affirmed the Summary Judgment. On April 7, 2004, Petitioner filed the Charge of Discrimination over which the Commission determined it has no jurisdiction. The Charge of Discrimination alleges in its entirety: I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act as applicable: Once I filed a discrimination complaint (EEOC # 150A201984) I was retaliated against and subjected to disparate treatment because of my race (Black). Specifically, I was subjected to different terms and conditions, demoted and unfairly disciplined. Once I filed my complaint I was not invited to attend bi-weekly senior staff meetings and my job duties were diminished and reassigned to other staff. In addition, the entire Citizen Coordination Section which I supervised was eliminated and I was transferred to another Division in a position that had non-supervisory status. The position provided no opportunity for promotion and had minimal job duties. I was unjustifiably given a written reprimand for rude behavior and being absent without proper notification. After I grieved the reprimand it was reduced to an oral warning. One non-African American supervisor received numerous pay increases and unwarranted promotions. Eventually, he surpassed me in salary. Another non-African American supervisor was paid at a higher salary than myself, but did not qualify for the position and falsified the employment application. I filed a complaint with the Orange County Office of Professional Standards but they failed to conduct a fair and thorough investigation. Once I filed my complaint I was subjected to racial discrimination, retaliation and subjected to a hostile working environment from various members of County Administration which defamed my character and good name after working in County government for six years; thus purposely ruining my career to serve as a public servant in Orange County government. Ultimately, I was constructively discharged on June 13, 2003. Joint Ex. 18. The Commission investigated Petitioner's allegations in the Charge of Discrimination. The Commission provided Petitioner with an opportunity to explain how the allegations differed from the matters that the federal court disposed of in the Summary Judgment. Petitioner responded to the Commission in a timely manner. On July 28, 2004, the Commission determined that it did not have jurisdiction over the claims in the Charge of Discrimination. In relevant part, the Commission specifically stated: The Respondent is an employer within the meaning of one or more of the following laws: (a) the Florida Civil Rights Act of 1992, as amended, §760, Florida Statutes (2002); (b) Title VII of the Civil Rights Act of 1964, as amended; (c) the Age in Discrimination in Employment Act (ADEA); and/or (d) the Americans with Disabilities Act (ADA), however, all jurisdictional requirements for coverage have not been met. Federal case law interpreting Title VII is applicable to cases arising under the Florida Civil Rights Act because the Florida act was patterned after the federal civil rights laws. Florida State University v. Sondel, 685 So. 2d 923, 925 (Fla. 1st DCA 1996). On or about May 17, 2004, the Middle District of Florida, Orlando Division, decided the Complainant's claims against Respondent for discrimination and retaliation on summary judgment and dismissed all claims with prejudice. The failure to promote claim was dismissed for failure to exhaust administrative remedies. Complainant's complaint consists of substantially the same claims decided by the civil court. A dismissal of claims with prejudice is a final order. See Kobluer v. Group Hospitalization and Medical Services, Inc., 954 F. 2d 705 (11th Cir. 1992). As such, the appellate court has jurisdiction to decide such issues. Id. See also Solar v. Merit Systems Protection Bd., 600 F. Supp. 535 (D.C. Fla. 1985). The Commission does not have the authority to re-investigate and re-decide issues that were decided by the civil court, even if the reason for dismissal was failure to exhaust administrative remedies. See DOAH Docket Sheet filed 9-1-04. The Charge of Discrimination and Petition for Relief in this proceeding do not allege any acts or violations that were not raised in, and ruled on, by the federal court in prior litigation. Several of the allegations refer to matters that occurred more than 365 days before the filing of the Charge of Discrimination on April 7, 2004, including allegations contained in the charges of discrimination that Petitioner filed simultaneously with the Commission and EEOC on April 1, 2002. Other allegations of discrimination, hostile work environment, and retaliation through June 13, 2003, when Petitioner resigned from his employment with Respondent, are included in the Amended Complaint filed in federal court. It is undisputed that the allegations in this proceeding concerning demotion and transfer to a non-supervisory position refer to a transfer to Respondent's Neighborhood Services Division on June 16, 2003. The Summary Judgment expressly states that the Neighborhood Services Division "transfer has also become a part of this suit." The Summary Judgment notes that the transfer to the Neighborhood Services Division is an incident of retaliation alleged by the employee and ruled that the transfer was not retaliatory. Petitioner included the transfer in his Initial Brief to the United States Court of Appeals for the Eleventh Circuit and also argued that the elimination of his duties, his exclusion from key meetings, and the closing of the Citizen Coordination Section that he had supervised all supported his retaliation claim. The order affirming the Summary Judgment considered the issue of the alleged retaliatory transfer, the elimination of Petitioner's job duties over time, and an allegedly unwarranted written reprimand, and determined there was no retaliation. The Charge of Discrimination in this proceeding alleges, in relevant part, that the elimination of the Citizen Coordination Section that Petitioner had supervised was discriminatory and/or retaliatory. The order affirming the Summary Judgment considered the issue of the elimination of Petitioner's job duties over time and did not find retaliation. It is undisputed that the allegations in the Charge of Discrimination in this proceeding refer to a written reprimand issued by Petitioner's supervisor in March 2003. The written reprimand was part of the federal litigation, including the employee's Statement of Facts in Response to Orange County's Motion for Summary Judgment and in the employee's supporting exhibits. The order affirming the Summary Judgment specifically referred to the written reprimand and did not determine that the reprimand constituted retaliation. Moreover, neither DOAH nor the Commission has statutory authority to consider allegations concerning the written reprimand because those allegations involve acts that occurred more than one year before the filing of the Charge of Discrimination within the meaning of Subsection 760.11(1), Florida Statutes (2003). It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning disparate pay for two non-African American supervisors referred to higher pay for supervisors, identified in the record as Mr. Robert Hildreth and Mr. Ed Caneda, that occurred in March 2002. The federal civil court previously analyzed Petitioner's claims of pay disparity related to both supervisors. The court found that Petitioner was not similarly situated to either supervisor. The Charge of Discrimination in this proceeding alleges that Respondent subjected Petitioner to a hostile working environment when various members of the Orange County Administration defamed Petitioner's character and good name. Petitioner fully addressed the allegations of harassment and hostile work environment in his response to the motion for summary judgment in federal court. Petitioner stipulated to a dismissal with prejudice of his hostile work environment claims, and the federal court ruled that Orange County was the prevailing party on Petitioner's claims for hostile work environment. It is undisputed that the Charge of Discrimination in this proceeding does not contain any allegations concerning the failure to promote Petitioner. However, Petitioner did raise this issue and litigated the issue in federal court. The federal court ruled that Petitioner did not exhaust his administrative remedies concerning allegations that Respondent failed to promote Petitioner and that the claim arose in January 2002, prior to date when Petitioner filed simultaneous claims with the EEOC and FCHR. More than two years passed before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, Petitioner's claim of promotion discrimination falls outside the statutory one-year filing requirement prescribed in Subsection 760.11(1), Florida Statutes (2003). In any event, the claim that Respondent failed to promote Petitioner is not a new issue that was beyond the scope of the Summary Judgment. It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning the alleged failure of Respondent's Office of Professional Standards (OPS) to conduct a fair and thorough investigation of his discrimination complaint referred to an investigation into Petitioner's complaint in March 2002. OPS issued its final report on July 3, 2002, approximately 21 months before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, the complaints about the OPS investigation fall outside the statutory one-year filing requirement set out in Subsection 760.11(1), Florida Statutes (2003). The federal litigation included identical allegations concerning the OPS investigation. During the federal case, Petitioner's attorney deposed Mr. William Moore, the manager of OPS, and questioned Mr. Moore extensively about the way OPS investigated Petitioner's complaint. In response to the motion for summary judgment, Petitioner specifically claimed that the investigation undertaken by OPS was unfair and discriminatory. The complaint in the Charge of Discrimination in this proceeding is not a new issue or claim, but is identical to the issue litigated in federal court. Allegations in the Charge of Discrimination that Respondent excluded Petitioner from key meetings refer to events in September 2001. The same allegations were litigated in federal court. Petitioner outlined his allegations to the federal court that allegedly showed his exclusion from key meetings. Petitioner also appealed the issue of exclusion to the appellate court. The Charge of Discrimination presents no new issue, and the issue falls outside the one-year filing requirement in Subsection 760.11(1), Florida Statutes (2003). It is undisputed that the allegation in the Charge of Discrimination that Respondent constructively discharged Petitioner, refers to being demoted, reprimanded, excluded from meetings, and transferred to the Neighborhood Services Division. The allegation of constructive discharge is not a new claim, but is the same claim that was litigated in federal court.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing this proceeding for the reasons stated in this Recommended Order. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 25th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan T. Spradley, Esquire Deborah L. La Fleur, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Kelvin D. Bodley Post Office Box 680507 Orlando, Florida 32686-0507 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner, Cynthia C. Barber, was harassed, and suffered constructive or retaliatory discharge from employment by Respondent, Modern Plumbing Industries, Inc. ("MPI"), as a result of racial and gender discrimination in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black female who, at all times material to the allegations of discrimination in the case, was employed as a plumbing apprentice by Respondent. Respondent is a Florida corporation which operates a commercial plumbing business. At any given time, Respondent may have 20-30 commercial plumbing jobs in Central Florida. These jobs run the spectrum from small residential repair jobs to major commercial installations in shopping centers. Petitioner began working for Respondent in 1996; first as a plumbing assistant, then, after being enrolled in a formal plumbing apprentice program, as a plumbing apprentice, assisting licensed plumbers. When she began working, Respondent sent Petitioner to a wholesale tool supplier where she purchased plumbing tools she would need. Respondent advanced Petitioner the money with which to purchase the tools; this advance was being paid back by automatic withdrawals from Petitioner's pay. In September and October 1997, Petitioner was working as a plumber's apprentice at a job known as the "Oviedo Mall" job. She was one of 10-40 MPI employees on the job. Steven Lewis was the project manager for all MPI jobs. Vincent Pizzuti was the job-site supervisor for the Oviedo Mall job. Chris Bateman was a MPI employee at the Oviedo Mall job working as a plumber. Mr. Bateman had no supervisory authority. In September 1997, an incident occurred wherein Mr. Bateman, who is a white male, threw paper which had been used to wrap a sandwich and a soda can in Petitioner's hard hat. Petitioner was offended by Mr. Bateman's actions and reported the incident to her crew foreman, Mike Higdon. Mr. Higdon immediately asked Mr. Bateman to stop; after a moment, Mr. Bateman stopped. Petitioner believed that this matter was handled satisfactorily. On October 1, 1997, late in the work day, while riding on a golf cart with Mr. Higdon, Petitioner was struck in the back with a "dirt rock." When she turned in the direction the "dirt rock" had come from, she saw Mr. Bateman and another employee looking her way and laughing. Petitioner confronted Mr. Bateman. When she returned to the golf cart, Mr. Bateman threw another "dirt rock." This time the confrontation became physical, and Petitioner and Mr. Bateman had to be separated by co-employees. Petitioner then reported the incident to Mr. Pizzuti who called a co-employee/supervisor on the radio and asked that Mr. Bateman be directed to come to MPI's on-site office. Mr. Bateman had either left the job-site or wouldn't respond to the directive to report to the office; as a result, Mr. Pizzuti advised Petitioner that he would talk to Mr. Bateman the following morning. Later that same evening Petitioner called Mr. Lewis, the project manager. Mr. Lewis advised Petitioner that Mr. Pizzuti had already advised him regarding the altercation, that Mr. Bateman's conduct was unacceptable, and that Mr. Bateman would be fired the following day. The following morning (October 2, 1997), Mr. Bateman was standing outside the job-site office when Petitioner arrived. During a discussion with a co-employee, Petitioner heard Mr. Bateman referring to her as a "bitch" and a "nigger." This resulted in another confrontation. Petitioner then went into the MPI job-site office and reported this incident to Mr. Pizzuti. Mr. Pizzuti then radioed Mr. Bateman's supervisor and directed that Mr. Bateman report to the office. After a few minutes, when Mr. Bateman had not reported to the office, Petitioner advised Mr. Pizzuti that she "could not work under these conditions" and left the job-site. Later that same day, Petitioner received a telephone call from Mr. Lewis who asked her "to come back to the job site, that something would be done" about Mr. Bateman. She told Mr. Lewis that the atmosphere was "too hostile." On October 2, 1997, shortly after Petitioner left the job-site office, Mr. Pizzuti met with Mr. Bateman about his conduct and attitude; an incident report authored by Mr. Pizzuti reflects that Mr. Bateman "became aggravated and stormed out of my [the] office in the middle of the conversation." At this point, Mr. Pizzuti terminated Mr. Bateman. Two days after being terminated, Mr. Bateman was rehired because he "begged for his job back"; MPI was desperate for help; and Petitioner was no longer working at the job-site. Approximately one week after leaving her job, Petitioner attempted to collect her last pay check. She was advised by Mr. Lewis that she had no pay coming because the money advanced for tools had not been paid back. He further advised her that she could be paid if she returned to work and the automatic deduction from her pay continued. During this discussion Mr. Lewis advised Petitioner (quoting Petitioner's testimony) that she "would not have to work with Chris Bateman," apologized for what happened, and assured her "this won't happen again." Petitioner elected to return to work and was assigned to a MPI job-site at Walt Disney World. Mr. McCandless was her job-site supervisor. Although the Walt Disney World job-site was not as convenient to her home as the Oviedo Mall job-site, Petitioner did not make any complaint to MPI management about the re-location. After she started working at the Walt Disney World job-site, Petitioner requested a Friday day-off for child- related reasons; her request was granted. The following Sunday, Petitioner called the MPI answering service to determine what job-site to report to the next day. This was a procedure that was normally used to determine where to report for work. The answering service advised that she was scheduled "off" for Monday. She repeated the process on Monday night and was again advised that she was scheduled "off" for Tuesday. On Tuesday morning, Petitioner telephoned the MPI office and asked to speak to Mr. Lewis and was advised that Mr. Lewis was on vacation. Petitioner then asked to speak to the owner of MPI; she was advised that the owner was not available. Petitioner did not telephone or visit the MPI office following the Tuesday morning telephone call. She did not attempt to call her job-site supervisor, Mr. McCandless. Petitioner just stopped working at MPI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief herein should be dismissed with prejudice. DONE AND ENTERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 9th day of August, 2002. COPIES FURNISHED: Cynthia C. Barber 1704 Hawkins Avenue Sanford, Florida 32771 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amanda J. Green, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Ivan Rosario, the Petitioner, was at all relevant times an employee of Orange County, Florida, as an equipment operator (EO III) in the highway maintenance department and assigned to the landscape crew. Mr. Rosario's national origin, Puerto Rican, is uncontroverted. William Baxter is also an employee of Orange County and in 1989 was manager of highway maintenance. On or about October 10, 1989 he received a memo from Ivan Rosario's foreman recommending that Mr. Rosario be terminated for failing to meet the minimum qualifications for equipment operator. Mr. Rosario had been in that position since approximately September 27, 1989. In accordance with established due process requirements and Orange County policy, and after notice to Mr. Rosario and to other relevant parties, William Baxter conducted a pretermination hearing on October 20, 1989. The outcome of the hearing was Mr. Baxter's determination that Mr. Rosario was exonerated of any of the accusations or charges. Mr. Rosario was not terminated. It is Mr. Baxter's usual practice after such proceedings to write a letter stating the outcome and to provide a copy to the employee and to the personnel file. However, several years after the 1989 hearing, Mr. Rosario informed Mr. Baxter that the letter was not in his personnel file. After verifying this fact, Mr. Baxter agreed to write a statement and to put it in his personnel file. Mr. Baxter or someone in the county administrative staff had also inquired of the legal staff whether the original written charges could be removed from Mr. Rosario's personnel file. The response from the county attorney's staff was that the personnel files were public records and could not be destroyed or expunged without violating Chapter 119, Florida Statutes. In a memo dated August 1, 1994, William Baxter directed Mark Massaro, the manager of traffic engineering, to place this statement in Mr. Rosario's file: On October 20, 1989, a hearing was held concerning the allegations that Mr. Rosario was hired by Orange County and on the appli- cation form he had stated he was qualified to operate equipment, however, it has been alleged that he was not capable of operating this equipment nor had he ever operated this equipment. After conducting the hearing, I made a determination and I can find no faults with the qualifications of Mr. Rosario and that the allegations against him were false. This was the result of the hearing. (Respondent's exhibit no. 3, William Baxter deposition) There is no explanation of record for the absence of some written confirmation of Mr. Baxter's decision between 1989, when the hearing was held, and 1994, when the above-described memorandum was prepared. Mr. Baxter usually provides that written decision within approximately ten (10) days and he has no recollection of failing to write the letter earlier. Mr. Rosario contends that the unexplained charges in his file prevented his being promoted and kept him from a union stewardship. He also contends that the charges hurt his reputation. No evidence was presented regarding any specific promotional opportunities or any reasons why such opportunities might have been denied to Mr. Rosario. "Stewardship," a union appointment, is a matter within the jurisdiction of the union and its bargaining unit members. The county has no control over union stewardship appointments. Mr. Rosario presented two witnesses who were also displeased with their employment experiences at Orange County. Miguel Ortiz is a computer program analyst who was with the county for five years and left in October 1994 because he felt that he was denied equal employment opportunities. He filed many grievances during his tenure and was removed from stewardship due, he believes, to his pointing out problems. He concedes that union stewardship is a union matter and not a management prerogative. Jason Stroud is an equipment operator with the Orange County Highway Department. He only contends that he has a case "along the same lines" as Mr. Rosario's case. He claims that the county "makes the rules," and breaks them or makes up new rules. Orange County has an Equal Employment Opportunity program and compliance officer. That officer, Bernard Ouellette, investigates when there are internal charges and compiles responses to send to the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations. Mr. Ouellette has, in the past, found county supervisors who violate equal employment laws and they are dealt with and disciplined appropriately. A recent example is a county employee who made racially derogatory remarks and was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the complaint and petition for relief by Ivan Rosario be DISMISSED. DONE and ENTERED this 9th day of April, 1996, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1996. COPIES FURNISHED: Ivan Rosario 16268 East Colonial Drive Orlando, Florida 32820 Jeffrey J. Newton Assistant County Attorney Orange County Attorney's Office Post Office Box 1393 Orlando, Florida 32802-1393 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent failed to properly represent Petitioner when she was terminated from her position as a school bus driver by the Seminole County School District on or about June 1994, on the basis of her race (African-American) and handicap, in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Seminole County School Bus Drivers' Association, Inc. (Respondent), is a labor organization as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by the Seminole County School Board (District) as a school bus driver during the relevant period of time from 1985 until June 1994. At the end of the 1993-1994 school year, Petitioner was terminated as a bus driver by the District. At said time, Petitioner was a member of the Seminole County School Bus Drivers' Association. Petitioner is an African-American female and a licensed bus driver. Joe Wicks (Wicks), who worked for Respondent and assisted Petitioner in her efforts to preserve her job at the end of the 1993-94 school year, is also African-American. Respondent is a public sector union affiliated with the Florida Teaching Profession/National Education Association (FTP/NEA). The FTP/NEA manages the staff associated with its affiliated unions through entities called UniServ offices. Nancy Wheeler (Wheeler) served as the executive director of the Seminole UniServ at the time Petitioner's employment was terminated by the District in 1994. In that capacity, Wheeler managed UniServ staff members who provided assistance to Respondent's members. Another of Wheeler's duties as executive director was to advise Respondent's Board about the merits of particular grievances for which arbitration is requested by the member. Respondent's Board has authority over the arbitration process used to enforce the collective bargaining agreement between bus drivers and the District. Over the years Wheeler served as executive director, 30 to 40 percent of Respondent's members have been African-American and Respondent's Board has been proportionally represented with African-Americans as well. The grievance process available to members of Respondent consisted of the following steps: 1) Informal efforts to resolve dispute; 2) Step I hearing before the employee's immediate supervisor; 3) Step II hearing before the Superintendent or his designee; 4) Step III binding arbitration before neutral arbitrator. At the end of the 1993-94 school year, District transportation officials proposed the employment termination of eight of Respondent's members because of their poor attendance patterns. In late May 1994, Respondent filed a grievance on behalf of Petitioner concerning the District's proposed termination of her employment in which it alleged that the District did not have just cause to support Hampton's termination. That grievance was pursued through Step II. Although the District ultimately decided to retain the employment of five of these bus drivers, no driver received assistance from Respondent beyond the Step II level of the grievance process. Further, there was no obvious race- related pattern in the District's decision to retain only some of the drivers. Three of the eight drivers were African- American, and three white drivers and two African-American drivers from among them were ultimately retained by the District in June 1994. Petitioner experienced depression, a brief period of situational grief due to the unexpected death of a boyfriend, in early 1994 but suffered from no other medical condition during the 1993-94 school year. At the end of January 1994, Petitioner's treating physician (Dr. Fraser) authorized her to return to work after a short leave period. Petitioner, in fact, returned to her job as a driver for the rest of the 1993-94 school year. Petitioner fully recovered from her "depression" several months later and was able to return to full-time employment elsewhere by the end of 1994. Although information about Petitioner's situational depression and her medical and other absence excuses was presented to Joseph Wise, Transportation Director (Wise), at the Step I Grievance hearing and to Dr. Paul J. Hagerty, Superintendent (Superintendent), at the Step II Grievance hearing, the School District's decision-makers (Wise and Superintendent Hagerty) determined there was just cause for Hampton's termination due to her long history of excessive absenteeism. In deciding whether to take Petitioner's grievance to arbitration, Respondent followed its normal practice including a personnel file review by Wheeler followed by her recommendations to Respondent's Board. Wheeler reviewed Petitioner's evaluation and disciplinary history concerning attendance problems and determined her case lacked sufficient merit to warrant taking it to arbitration. Those records reflected a five-year history of poor attendance, disciplinary warnings, and discipline imposed for poor attendance. Respondent's Board accepted Wheeler's recommendation that it not take Petitioner's case to arbitration. Respondent had successfully assisted Petitioner with prior employment problems she encountered over the years without incident or complaint by Petitioner. Neither Respondent's Board nor any staff member of Respondent, including Wicks and Wheeler, harbored any animus toward Petitioner. Assistance with her 1994 termination grievance though Step II was provided by Respondent absent any consideration of race or disability. Further assistance was appropriately denied to Petitioner on the basis of her employment history which strongly supported the charges against her and rendered an arbitration proceeding to challenge the termination futile. Petitioner's race and disability status played no role in Respondent's decision to forego taking Petitioner's grievance to arbitration. Transportation Department officials, and ultimately the Superintendent, had complete authority over the final employment decisions made regarding Petitioner and the other bus drivers whose termination had been recommended by Wise at the end of the 1993-94 school year. At no time did Respondent, or any agent thereof, have any authority to control or reverse these decisions. On May 27, 1994, Wicks and Petitioner signed and submitted a request for legal services to the FTP/NEA on the same day Respondent filed the grievance on Petitioner's behalf. The legal services document is a request that the FTP/NEA provide any legal assistance it might deem appropriate. The form specifically states that the FTP/NEA may decide to do so in its discretion. Wheeler did not have the authority to provide any legal services to Petitioner for the FTP/NEA; rather, that authority rested with the General Counsel of the FTP/NEA. Had Respondent taken Petitioner's grievance to arbitration, Wheeler, and not an attorney, would have handled the matter as was Respondent's usual practice. Petitioner's position that her request for legal services must be honored or it would be a violation of the labor contract is not supported by the evidence. Petitioner did not suffer from a medical condition of sufficient severity and duration to entitle her to the disability protections of the Florida Civil Rights Act. The medical evidence showed, however, that even those documents proved Petitioner's own physician (Dr. Fraser) repeatedly approved her return to work during the months in question, and that he did not expect the condition to have a significant impact on her once the proper medication regimen could be established. In fact, Dr. Fraser's note of May 11, 1994, states that he expected the medication-related side effect problem to be corrected over the next few weeks. Petitioner testified, and the medical records confirm, that she took a period of leave because of her grief- related problems and that she worked from February to June 1994. Although Petitioner missed some days intermittently during the remainder of the year. Dr. Fraser returned her to work in short order each time. Petitioner also testified that she obtained and sustained other full-time employment by the end of 1994 and that she has not been treated for "depression" since 1994. It is obvious from the record that Petitioner's physician did not consider her condition to be so significant as to prevent her from working after the immediate period of grief for which she sought and was granted leave. Neither Wicks, Wheeler, Respondent's Board, nor any agent of Respondent took any action concerning Petitioner which was motivated by her race or medical condition. Petitioner filed her Petition for Relief with the Florida Commission on Human Relations (FCHR) on April 5, 1999. The filing of the Petition was more than 35 days after the determination of no reasonable cause by the FCHR.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which dismisses the Petition for Relief for lack of jurisdiction and/or denies the Petition on the merits. DONE AND ENTERED this 24th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings 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 this 24th day of February, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Court Tampa, Florida 33637 Pamela Cooper, Esquire FTP/NEA 213 South Adams Street Tallahassee, Florida 32301 Anthony D. Demma, Esquire Meyer & Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
The Issue In her charge of discrimination Ms. Alexander alleges that her employer created a hostile work environment and unfair conditions of employment when it singled her out as a thief of a stolen purse, denied her overtime, disciplined her for the size of her earrings, and made insulting statements about African Americans. The issues in this proceeding are whether that discrimination occurred, and if so, what relief is appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the FCHR enter its final order dismissing the complaint by Felicia A. Alexander against Dynair. DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 2nd day of August, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Felicia A. Alexander Post Office Box 549 Sanford, Florida 32772-0549 Gabriel G. Marrero, Administrator Dynair Services, Inc. Two Red Cleveland Boulevard, Suite 205 Orlando-Sanford International Airport Sanford, Florida 32773 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Honda of Bay County/Volkswagen of Panama City (Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes,1 by discriminating against Maurice Hargrove (Petitioner) because of his disability and race.
Findings Of Fact Petitioner, Maurice Hargrove, is an individual of African-American descent, who resides in Chipley, Florida. Respondent, Honda of Bay County and Volkswagen of Panama City are automobile dealerships located in Panama City, Florida. Petitioner alleges that he was not hired by Respondent because of his race and because of a disability. Petitioner’s alleged disability relates to his wearing a supportive brace on one of his legs at the time he applied for the job position with Respondent. Petitioner first made contact with Respondent’s business after seeing a “now hiring” sign in front of Respondent’s facility in Panama City. According to Petitioner, after seeing the sign, he walked into the building and filled out a job application. Petitioner could not recall when this occurred, but he believed it was sometime prior to Hurricane Michael, which struck the Panama City area in October 2018. Exact time frames and sequence of events as to what happened after Petitioner initially filled out the application are less than clear because Petitioner repeatedly changed his testimony during the final hearing. Nevertheless, the findings set forth below, derived from the combined testimonies of Petitioner and Respondent’s manager, Mr. Boatwright, detail the pertinent facts. Petitioner initially inquired about a job as a service technician working on vehicles at the dealership. When Petitioner met with Respondent’s manager, however, Mr. Boatwright told Petitioner that he did not need a service technician at the time. Further, Petitioner had no prior experience working on vehicles. Mr. Boatwright further informed Petitioner that, although he did not need a service technician, he needed a shuttle driver for the dealership. According to Petitioner, because of his conversation with Mr. Boatwright, he marked through “service tech” on the job application and wrote in “driver.” Mr. Boatwright’s testimony, and sometimes Petitioner’s testimony, was that when Mr. Boatwright first met Petitioner, Mr. Boatwright noticed a brace on Petitioner’s leg and asked Petitioner what was the situation with the brace. Petitioner told Mr. Boatwright that he had injured his leg in a workplace fall for which he received workers’ compensation, but that he was no longer on workers’ compensation. 2 Mr. Boatwright asked Petitioner to obtain a note from a doctor clearing Petitioner to work, to which Petitioner agreed. At some point, Petitioner returned to Respondent’s dealership with a doctor’s note clearing him to work with no restrictions. Mr. Boatwright interviewed Petitioner for the driver position and said he would contact 2 Petitioner’s statements regarding his leg brace were inconsistent. Petitioner testified that he wears a brace on one of his legs for support after surgery for a broken leg. Petitioner also testified that he broke his leg “just walking one day in the neighborhood, and I turned, and it just gave out on me.” According to Mr. Boatwright, Petitioner told him when he was applying for the job that Petitioner had fallen off a ladder when working as a painter and received workers’ compensation for a leg injury. Petitioner did not take issue with this version of the events during his questioning of Mr. Boatwright. Petitioner further testified that he did not remember the year he broke his leg, when he had surgery on his leg, or when his doctor advised him to wear the brace. Regardless of the origin of the leg condition, Petitioner testified that the leg did not restrict him in any way. Petitioner about the job later. Both Petitioner and Mr. Boatwright believed that the interview went well. After interviewing ten candidates for the driver position, Mr. Boatwright believed that, based upon Petitioner’s maturity level as compared to other applicants, Petitioner was the best candidate. After Petitioner was interviewed, Mr. Boatwright’s bosses decided not to fill the driver position, but, instead, decided to have the driving duties shared amongst existing employees. At the final hearing, Mr. Boatwright recalled communicating this to Petitioner, but that if he did not, he offered his apologies. Petitioner first testified that Mr. Boatwright contacted him and told him that he would not be hired, describing a conversation with Mr. Boatwright in which Petitioner expressed his sadness with Mr. Boatwright about not getting the job. Later in the hearing, Petitioner said he did not ever hear back from Mr. Boatwright, and that it was Respondent’s attorney who advised him that Respondent had decided not to fill the driver position. Regardless of when and how Petitioner was informed that the job position was not being filled, Respondent chose not to fill the shuttle driver position. As of the date of the final hearing, well over a year after Petitioner applied for the job, Respondent had still not filled the driver position, opting instead to share driving duties amongst the existing employees. Petitioner presented no evidence that his race played any part in the decision not to hire him. His sole offering on this point was the fact of his race. Petitioner’s disability discrimination claim was based on the facts that Mr. Boatwright noticed the brace on his leg and asked him to get a doctor’s note clearing him to work. Although Petitioner testified late in the hearing that Mr. Boatwright said something to him about not feeling like he would be able to do the job, Petitioner’s statement was made after several accounts of conversations with Mr. Boatwright in which Petitioner never made this allegation. When asked about this new allegation on cross-examination, Petitioner could provide no details, quickly trailed off topic, and asked “Say what?” There was no allegation in his Charge of Discrimination or his Petition for Relief with the Division of Administrative Hearings that alleges that Mr. Boatwright suggested that Petitioner could not do the driver job. Considering these factors, as well as the inconsistency with Petitioner’s prior recollection that his interview with Mr. Boatwright went well, it is found that Petitioner’s late-asserted allegation that Mr. Boatwright said something to him about feeling that Petitioner could not do the job is untimely and is otherwise not credited. Further, Petitioner testified that his leg did not restrict him in any way, and failed to present evidence that he had a medical condition that substantially impaired any life activity.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 17th day of March, 2020, in Tallahassee, Leon County, Florida. S James H. Peterson, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2020. COPIES FURNISHED: Maurice Hargrove 1672 Sunny Hills Boulevard Chipley, Florida 32428 Russell F. Van Sickle, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32591 (eServed) Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent failed or refused to provide the legal representation to which Petitioner was entitled because of Petitioner’s race or in retaliation for Petitioner’s prior charges against Respondent.
Findings Of Fact At all times relevant to this proceeding, Petitioner, a black male, was employed by Miami-Dade County as a correctional officer. At all times relevant to this proceeding, Respondent was a public employees bargaining unit established pursuant Chapter 447, Florida Statutes (2004).1 At all times relevant to this proceeding, Petitioner was a dues-paying member of Respondent and was entitled to all rights and benefits of such membership. Prior to March 1, 2002, Petitioner filed a complaint with the EEOC alleging that Respondent had discriminated against him in an unrelated matter. That complaint was resolved in Respondent’s favor. Petitioner was notified by his employer on March 1, 2002, that his employment was being terminated for reasons that are irrelevant to this proceeding. Petitioner immediately requested legal representation from Respondent. On March 4, 2002, Respondent, through Tyrone W. Williams (Respondent’s then general counsel), advised Petitioner as follows: We have completed our review of your request for legal assistance of March 4, 2002. Based upon the information provided, it has been determined that a conflict in representation has arisen. Accordingly, this matter has been assigned to the Law Offices of Slesnick & Casey. . . . . We have provided the Law Office of Slesnick & Casey with a copy of your file for their immediate reference. Please contact the Law Office of Slesnick & Casey upon receipt of this correspondence. At the times relevant to this proceeding, the Law Offices of Slesnick & Casey was a private law firm that had contracted with Respondent to provide conflict representation to its members. Thereafter, the Law Office of Slesnick & Casey undertook Petitioner’s representation at Respondent’s expense. The procedures followed by Respondent in determining that a conflict existed and in assigning the Law Office of Slesnick & Casey to this representation were consistent with Respondent’s bylaws and written policies. Petitioner was not satisfied with the representation of Slesnick & Casey and asked Respondent for other counsel. On June 24, 2002, Blanca Greenwood (Respondent’s then general counsel) notified Petitioner that if he did not want the assigned representation, Respondent would give him $500.00 towards his legal fees and he could retain any lawyer he wished. Petitioner was also told he would have to absolve Respondent of any liability regarding his representation by private counsel, which Petitioner refused to do. Petitioner thereafter filed the complaint with EEOC and, following its dismissal, the Petition for Relief that underpins this proceeding. The evidence presented by Petitioner failed to establish that Respondent discriminated against him by assigning the Law Office of Slesnick & Casey to represent him or by offering to pay $500.00 towards his legal fees for a private lawyer. There was no evidence that Mr. Williams (who is a black male) or any other representative of Respondent discriminated against Petitioner on the basis of his race. There was no evidence that Mr. Williams or any other representative of Respondent discriminated against Petitioner because he had filed an unrelated EEOC against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of February, 2005.
The Issue What is the amount of attorney's fees2 to which Petitioner, Mimo on the Beach I Condominium Association, Inc., is entitled in Case No. 1D19-2165?
Findings Of Fact The Parties Petitioner, Association, is the condominium association responsible for operating and managing the Mimo on the Beach I Condominium ("Condominium"). The Association was the prevailing party in Case No. 1D19-2165. 3 The Association's Proposed Recommended Order (which should have been titled a proposed final order) refers to attorney's fees affidavits that were submitted to DOAH, as proposed exhibits, before the final hearing. However, the record does not reflect that they were tendered or admitted into evidence. Accordingly, they cannot serve as the basis for any findings of fact in this Final Order. See § 120.57(1)(j), Fla. Stat. ("[f]indings of fact . . . shall be based exclusively on the evidence of record and on matters officially recognized"). Respondent, Simhoni, is the owner of a unit in the Condominium. Simhoni was the non-prevailing party in Case No. 1D19-2165. Evidence Presented at the Final Hearing As noted above, on June 8, 2020, the First DCA awarded prevailing party attorney's fees and costs to the Association, pursuant to rule 9.400, and remanded the proceeding to DOAH to determine the amount of attorney's fees and costs to be awarded. Pursuant to the Order Limiting Evidence on Fees and Costs, the ALJ limited the attorney's fees and costs to be considered in this proceeding to only those incurred between June 1, 2020—the date on which Simhoni filed the notice of appeal in Case No. 18-4442—and August 17, 2020—the date on which the First DCA issued the mandate in Case No. 1D19-2165. Thus, pursuant to the Order Limiting Evidence on Fees and Costs, any fees or costs billing entries for dates before June 1, 2020, or after August 17, 2020, are excluded from consideration in determining reasonable appellate attorney's fees in this proceeding.4 The Evidence Presented by the Association Simhoni filed a notice of appeal from FCHR's Final Order in Case No. 18-4442 on June 13, 2019. The filing of the notice of appeal initiated Case No. 1D19-2615. Simhoni filed her Initial Brief on August 27, 2019. Pursuant to a written retainer agreement, PeytonBolin serves as General Counsel for the Association. By separate unwritten agreement, the Association retained PeytonBolin to represent it in Case No. 1D19-2165, at the hourly billing rates of $350 for partners, $250 for non-partner attorneys, and $145 for paralegals. The first document filed on behalf of the Association in Case 4 This is consistent with case law holding that a litigant may claim attorney's fees where entitlement to fees is the issue, but may not claim attorney's fees incurred in litigating the amount of fees. Bayview Loan Serv, LLC v. Cross, 286 So. 3d 858, 861 (Fla. 5th DCA 2019). Since the purpose of this proceeding is to determine the amount of appellate attorney's fees to which the Association is entitled in Case No. 1D19-2165, the Association is not entitled to an award of fees for work done after the appeal was over. No. 1D19-2165—a motion for extension of time to file answer brief and motion to require Simhoni to transmit the record of Case No. 18-4442 to the court—was filed by partner Mauri Ellis Peyton on September 16, 2019. The first items shown on Amended Exhibit 2 were billed on September 16, 2019. Peyton testified that the Association is seeking attorney's fees for 55.1 hours of work by attorneys and paralegals in Case No. 1D19-2165, for a total amount of $16,207.50 in attorney's fees. These amounts differ from the 57.7 hours and total of $16,545.00 in fees shown on Amended Exhibit 2. Peyton explained that the revised amounts of 55.1 hours and the $16,207.50 in fees exclude purely clerical work by his paralegal, and also exclude billing entries for work performed outside of the timeframe established in the Order Limiting Evidence on Fees and Costs. Amended Exhibit 2, filed on March 1, 2020, still reflects billing entries for work done after August 17, 2020, and does not appear to have eliminated any hours or fees reflected on the original version of Exhibit 2 filed prior to the final hearing. Thus, in calculating the reasonable attorney's fees in this case, the undersigned has taken, as the starting point, the 57.7 hours and total amount of $16,545.00 in attorney's fees, and has deducted the hours and fees for all billing entries for work done after August 17, 2020. Additionally, as discussed below, the undersigned has deducted the hours and fees for any other billing entries that constitute "fees for fees" work, and billing entries for duplicative work. In support of the Association's request for attorney's fees, Peyton testified regarding the pertinent factors set forth in Florida Rule of Professional Conduct 4-1.5. Specifically, he testified that because he was not counsel for the Association in Case No. 18-4442, he needed to review the record in that case, which consisted of approximately 2,000 pages, and included the transcript of the two-day final hearing; the exhibits admitted into evidence; and the pleadings and motions filed in that case. Additionally, he needed to review the Initial Brief, which consisted of 19 pages of text and 49 pages of exhibits; review the case law cited in the brief; and research the issues raised in the brief. He noted that PeytonBolin was retained "pretty late in the appeal, after the Initial Brief was filed," so a substantial effort was required to get up to speed on the pertinent law and the issues in the appeal. Peyton testified that the appeal involved what was, "in the association world, a very novel complaint involving many different issues." He acknowledged that he "had to go outside the scope of our normal practice and get into the world of administrative hearings and discrimination claims." On the basis of his significant appellate experience, he determined that he and his firm were qualified to represent the Association in Case No. 1D19-2165. Peyton testified, credibly, that the outside attorneys with whom he consulted regarding the appeal would have charged more than the amount his firm charged to represent the Association in the appeal. He acknowledged that he was able to save considerable time by reviewing the Association's Proposed Recommended Order and the ALJ's Recommended Order in Case No. 18-4442. However, he persuasively testified, and a review of the Initial Brief bears out, that the scope of issues raised in the Initial Brief went beyond those raised in Case No. 18-4442, and the Initial Brief contained exhibits which, while not addressed in the text of the brief, needed to be addressed in the Answer Brief, in anticipation of arguments that may have been raised in the Reply Brief. Peyton testified, and the billing entries on Amended Exhibit 2 verify, that he did almost all of the work on the appeal. He was assisted by partner Joseph Gianell; non-partner attorneys Nataly Gutierrez and Michael Goldstein; and paralegal Carmen Jarquin, none of whom billed significant amounts of time. Peyton testified, credibly, that "[i]t took many days to write the brief, to revise it, to edit it." As a consequence, he was unable to work on other matters while he was working on the Answer Brief. Michael H. Johnson testified on the Association's behalf, as an expert witness regarding reasonable attorney's fees determinations.5 Johnson has practiced law for 23 years, is a bankruptcy attorney, and has experience in administrative law, real estate foreclosures, and homeowners association foreclosures. Pertinent to this case, Johnson has testified between 25 and 30 times as an expert witness regarding reasonable attorney's fees determinations. Specifically, he has testified regarding whether requested fees amounts are reasonable; whether hourly billing rates are reasonable for the area of law in a given case; and whether the amount of time expended on matters for which fees are sought is reasonable. In formulating his opinion regarding the fees that the Association seeks in Case No. 1D19-2165, Johnson reviewed the pleadings and the Initial Brief, Answer Brief, and Reply Brief; and evaluated the time spent on the case in light of the pertinent factors in rule 4-1.5. He also consulted with three attorneys who practice appellate law in South Florida, regarding the amount of time expended in the case, to determine if the amount of fees and billing rates were reasonable for the appeal. Based on these considerations, Johnson concluded that the 55.1 hours of work that PeytonBolin spent on the appeal were reasonable, and even on the low end, given the novel nature of some of the issues raised in the Initial Brief. Regarding the fees rates charged for the appeal, Johnson opined that the $350-per-hour rate for partner work on the appeal, to which the Association agreed, was reasonable, and perhaps low. He also noted that some billing entries reflected a reduced $300-per-hour rate for partner work. Johnson's opinion was formulated considering the expertise and time constraints placed on the partners handling the appeal, and the hourly rates 5 At the final hearing, Simhoni did not object to Johnson being qualified as an expert in reasonable attorney's fees determinations. customarily charged for partner work on appeals in the South Florida market. He considered these same factors and circumstances in formulating his opinion that the $250-per-hour billing rate for non-partner attorneys was reasonable, and on the low end, for handling appeals in the South Florida market. He also opined, based on locality and expertise, that the $145-per-hour rate charged for paralegal work was reasonable. He noted that PeytonBolin did not bill for any administrative—i.e., clerical or non-legal—work by its paralegals, so that the paralegal work had been properly billed. Testimony Elicited by Simhoni and Argument in Proposed Final Order Simhoni did not testify regarding any matters about which she had personal knowledge regarding the hourly rates, time spent, and attorney's fees charged by PeytonBolin to handle the appeal in Case No. 1D19-2165; to this point, she stated that it was her opinion that the hours and attorney's fees should be reduced, but acknowledged that her opinion was not based on any personal knowledge of facts that would warrant a reduction. She did not present the testimony of any other witnesses. Thus, the competent substantial evidence she presented consisted only of the cross-examination testimony of Peyton and Johnson regarding their expertise and the hours spent and rates charged for certain billed items. Simhoni expressed skepticism that, and questioned whether, it took Peyton .2 hours to review the First DCA's order issued on July 27, 2020, which she characterized as a "one-sentence order." Peyton testified that his firm billed in increments of one-tenth of an hour, so that if reviewing the order took him longer than six minutes, he billed .2 hours for the work. He testified, credibly, that "I must have spent seven minutes to reviewing that document. If I put a .2, it's because I spent more than six minutes reviewing whatever document that was." Simhoni did not present any countervailing evidence showing that Peyton spent 6 minutes or less reviewing the order. Accordingly, Peyton's testimony is accepted as credible evidence that he correctly billed .2 hours for reviewing the order. Simhoni questioned Peyton regarding 1.8 hours that he billed on June 23, 2020, for which the task description was redacted. The Association corrected this redaction error in Amended Exhibit 2. As corrected, this entry is 1.8 hours billed for "[r]eceive and review Motion for Rehearing and Motion for Written Opinion." Peyton credibly explained that this time was spent on reviewing Simhoni's 21-page motion for rehearing and written opinion. Although the First DCA denied this motion before the Association filed its written response, Peyton testified, "that doesn't mean we weren't in the process of preparing a response." The competent substantial evidence establishes that Peyton correctly billed 1.8 hours for this work. Simhoni also questioned billing entries on June 10 and 22, 2020, for drafting a renewed motion for attorney's fees. Simhoni contended that these entries appeared to be "fees for fees," which generally are not recoverable in attorney's fees awards under Florida law. Simhoni's point is well-taken. The billing entries for work associated with the motion for entitlement to attorney's fees were made on December 23 and 30, 2019,6 and the motion was filed on December 30, 2019. Thus, the billing entries on June 10 and 22, 2020, for preparing a motion for attorney's fees, appear to be for work in litigating the amount of fees to which the Association is entitled. Pursuant to Bayview,7 these fees cannot be taken into account in determining the reasonable attorney's fees for Case No. 1D19-2165. Accordingly, the hours and fees for the June 10 and 22, 2020, billing entries have been deducted from the total number of hours and total amount of fees determined to be reasonable for Case No. 1D19-2165. 6 Amended Exhibit 2 shows the motion regarding entitlement to attorney's fees as having been filed with the First DCA on December 30, 2019. 7 Bayview, 286 So. 3d at 861 (Fla. 5th DCA 2019). Simhoni also questioned the multiple billing entries made between December 22 and 26, 2020, regarding preparing and filing the Answer Brief. As noted above, Peyton credibly testified that it took more than one day to review the record on appeal and prepare the Answer Brief. Thus, the competent substantial evidence establishes that the multiple billing entries between December 22 and 26, 2020, regarding researching and preparing the brief, are not duplicative. Simhoni also questioned the amount of time that Peyton spent conducting research and preparing the Answer Brief, specifically focusing on whether the number of hours he spent conducting research and preparing the brief were excessive due to Peyton's lack of experience in discrimination matters. In response, Peyton testified, credibly, that he consulted with other attorneys regarding the amount of time and fees necessary to adequately and diligently represent the Association in the appeal, and all of them would have charged more than PeytonBolin for researching and preparing the Answer Brief. Thus, the competent substantial evidence establishes that the hours spent and amount of fees billed for researching and preparing the Answer Brief were reasonable, and were not excessive. Simhoni also questioned whether it was reasonable for Peyton to have billed for work preparing a motion for a second extension of time to file the Answer Brief, which was necessitated by personal matters—specifically, the birth of his child. Peyton credibly testified that requests for extensions of time to file briefs are routine, and that in his experience, most appeals involve two or three extensions of time to file the briefs. He further noted that under the Florida Rules of Appellate Procedure, extensions of time are automatically granted if the extension is unopposed. Based on this testimony, and in the absence of any countervailing evidence, the undersigned finds that the hours spent, and fees charged for, preparing the second request for extension of time to file the Answer Brief were reasonably within the scope of PeytonBolin's representation of the Association in Case No. 1D19-2165, and were not excessive. Additionally, Simhoni questioned why Peyton billed .2 hours on September 20, 2019, for reviewing a First DCA order that she characterized as "less than a paragraph." Peyton credibly testified, and the billing entry on Amended Exhibit 2 confirms, that for that particular entry, Peyton reviewed four orders issued by the court. Thus, the competent substantial evidence supports the hours billed for reviewing the orders. In cross-examining Johnson, Simhoni posed questions that were aimed at calling into question whether he was qualified to render an opinion regarding the reasonableness of attorney's fees in a discrimination case. She also questioned whether any of the lawyers with whom Johnson consulted had experience in discrimination case appeals. In response, Johnson testified, credibly, that he had experience testifying in appeals of administrative law and other types of cases, so he was qualified to render an opinion regarding reasonable attorney's fees in Case No. 1D19-2165. He further testified that, in his opinion, which was based, in part, on having consulted with other attorneys who engage in appellate practice in the South Florida market, fees for discrimination appeals would be substantially higher than those incurred in other types of administrative appeals. The undersigned finds Johnson's testimony regarding his qualifications, as well as his opinion regarding the reasonableness of the hours billed and rates charged by PeytonBolin in Case No. 1D19-2165, to be credible and persuasive. In her Proposed Final Order, Simhoni contends that the appellate attorney's fees award should be reduced from $16,207.50—the amount now sought by the Association—to $6,021.50. She makes several arguments in support of her position. First, she contends that because she raised only two substantive issues in the Initial Brief—roof repairs the Association did not provide, and her right to lease out her condominium unit—it was unnecessary for PeytonBolin to address six issues in the Answer Brief. However, a review of the Initial Brief shows that, while it only discussed the merits of two of the substantive issues in Case No. 18-4442, a substantial portion was directed at arguing that the ALJ committed numerous procedural and substantive errors in his Recommended Order (which was adopted in toto by FCHR in its Final Order); thus, it was necessary for PeytonBolin to address these issues in its Answer Brief. Additionally, many of the exhibits filed as part of the Initial Brief contained information or material that, while not specifically discussed in the text of the brief, were nonetheless part of the brief, and raised issues that needed to be addressed in the Answer Brief. This was particularly the case, given that Peyton was in the position of having to anticipate arguments made in reliance on those exhibits, in a reply brief. Diligence and thoroughness in representing the Association justify PeytonBolin having addressed six issues in the Answer Brief. Simhoni also contends, in her Proposed Final Order, that because Peyton did not regularly practice in the area of discrimination law, he spent too much time researching and learning the relevant law in order to prepare the Answer Brief. However, she did not present any evidence, through her own testimony or the testimony of any other witness,8 to support a finding that Peyton spent too much time on the Answer Brief. To the contrary, the credible, persuasive testimony of both Peyton and Johnson—which constitutes the competent substantial evidence in this proceeding—supports the finding that the amount of time Peyton spent preparing the Answer Brief not only was reasonable, but was on the low end compared to time expended 8 When a party does not present evidence to support its factual contentions, the ALJ is not at liberty to reject the competent substantial evidence in the record in favor of positions that are unsupported by the evidence. See Eady v. State, Ag. for Health Care Admin., 279 So. 3d 1249, 1259 (Fla. 1st DCA 2019). and fees typically charged by attorneys in the South Florida market to handle appeals, including those involving less complex and novel issues. Focusing on specific billing entries, Simhoni contends that Peyton spent too much time reading what she characterized as a "one-sentence document." Again, this argument is based on her personal opinion; she did not present any testimony or documents to provide evidentiary support for that contention. Peyton credibly testified that it took him more than six minutes to review the court's order, and in the absence of evidence supporting a contrary finding, his testimony constitutes the sole competent substantial evidence in the record to support billing .2 hours for that work. Simhoni also contends that Peyton spent too much time on, and, thus overbilled for, reviewing the case law cited in the Initial Brief and verifying that it was still "good law." As before, Simhoni's position is based on her personal opinion and on assumptions that are not supported by competent substantial evidence in the record. As discussed above, Peyton testified, credibly and persuasively, regarding the case law research he conducted to prepare the Answer Brief, and the necessity to thoroughly address all issues raised in the Initial Brief and its exhibits. Peyton's testimony constitutes competent substantial evidence supporting the amount of time billed for that work. Similarly, Simhoni contends that Peyton spent too much time conducting research on, and preparing, the standard of review section of the Answer Brief. Again, this contention is based on her personal opinion regarding the amount of time and effort that "should" be entailed in preparing this portion of the brief, but it is not supported by any competent substantial evidence in the record. Peyton credibly testified that it took him 1.7 hours to research and draft this section of the Reply Brief, and there is no countervailing evidence in the record to support a finding that this amount of time was excessive, or that Peyton was untruthful about the amount of time he spent on this section of the brief. Simhoni also contends that Peyton should not be permitted to charge attorney's fees for preparing a second request of extension of time to file the Answer Brief, due to personal reasons. As she put it, "it is unclear why Respondent should be required to pay for this," and "there is nothing reasonable about requiring Respondent to pay for Mr. Peyton's extensions of time, especially when they were for personal reasons." The uncontroverted evidence establishes that the Association retained PeytonBolin to handle the appeal in Case No. 1D19-2165, which would include all matters reasonably encompassed within that representation. The scope of that representation dictates the services related to the appeal for which Peyton could (and could not) bill the Association.9 Peyton testified, credibly, that in his experience, extensions of time are typical in the course of appeals, and are routinely granted as a matter of course unless opposed. This evidence supports the determination that the scope of PeytonBolin's representation of the Association included preparing and filing requests for extensions of time, as necessary, as part of the appeal.10 In similar vein, Simhoni contends that because Title VII11 cases do not specifically address the types of legal services that should be included in determining a reasonable attorney's fee under section 760.11(13), the term "reasonable" in that statute should be read to exclude the preparation of 9 To the extent Simhoni contends that it is unreasonable for her to pay for an extension of time necessitated by personal matters, it is important to keep in mind that PeytonBolin represented the Association in Case No. 1D19-2165, so the scope of that representation controls the type of work for which PeytonBolin could bill the Association. 10 To the extent Simhoni contends that the scope of the Association's representation in Case No. 1D19-2615 excluded legal services related to requesting extensions of time to file the Answer Brief, it was incumbent on her to establish the existence of that exclusion by evidence in the record. She failed to do so. See Balino v. Dep't of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977)(the party asserting the affirmative of an issue in an administrative tribunal has the burden of proof with respect to that issue). 11 Simhoni cites federal Title VII case law as support for this argument. However, as discussed in the Conclusions of Law, below, Florida statutory and case law, rather than Title VII case law, govern reasonable attorney's fees determinations in cases under the Florida Civil Right Act. motions. In support, Simhoni notes that in a different attorney's fees statute, section 57.111(3)(a), Florida Statutes, the Legislature has expressly defined the term "attorney's fees and costs" to identify the types of legal services, including motions, for which "attorney's fees and costs" can be recovered under that statute. Simhoni reasons that if the Legislature had intended for attorney's fees to be awarded for the preparation of motions under section 760.11(13), it would have expressly said so, just as it did in section 57.111. As discussed below, this argument is not supported by established principles of statutory construction, and, thus, is not persuasive. Simhoni also contends that the testimony of Johnson, who was accepted as an expert in attorney's fees at the final hearing—notably, without objection—should be given little weight because he has no experience regarding attorney's fees in discrimination cases. However, as discussed above, Johnson has testified as an expert witness on attorney's fees in numerous cases, including administrative cases. In formulating his opinion that the hourly rates and amount of fees charged by PeytonBolin in Case No. 1D19-2165 are reasonable, he consulted with appellate attorneys who practice in South Florida. As discussed above, based on his review of the work done, and input from appellate attorneys with whom he consulted, he concluded that PeytonBolin's hourly rates, the number of hours expended, and amount of fees charged for Case No. 1D19-2165 not only were reasonable, but were low, particularly for South Florida. Given Johnson's extensive experience as an expert witness in determining reasonable attorney's fees in a range of different types of cases; taking into account that he applied the pertinent factors set forth in Rule 4-1.5 in formulating his opinion; and considering that once he developed his opinion, he consulted with appellate attorneys in the South Florida market to verify that the fees were reasonable, the undersigned finds Johnson a credible, persuasive witness whose testimony should be given substantial weight in determining the reasonable attorney's fees in this case. Simhoni contends that the redaction of information on billing entries which are protected by the attorney-client or work product privileges "means that it is literally impossible for Respondent to comment on their reasonableness or lack thereof." Thus, she proposes that the undersigned assume one hour billed for all such entries, at the partner billing rate of $350.00 per hour. However, this assumption is not supported by any competent substantial evidence in the record. Rather, the competent substantial evidence establishes that the redacted entries on Amended Exhibit 2 are attorney-client privileged communications, so are properly redacted. Accordingly, these billing entries will not be modified or reduced on the basis of that redaction.
The Issue The issues in this case are: (1) Whether Petitioner filed her charge of discrimination with the Florida Commission on Human Relations within 365 days after the alleged discriminatory act; and (2) Whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of her national origin, gender, or pregnancy.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Olivera is a Cuban-American female. The City hired her, effective March 8, 1993, to work as a secretary in the City Manager’s office. After one week, Olivera was promoted to the position of Office Manager, a more demanding job that entailed much greater responsibilities. The evidence regarding Olivera’s performance as Office Manager is in conflict. Her supervisors believed that Olivera was a marginal employee who failed to discharge her duties satisfactorily. The City has placed in evidence a number of contemporaneous memorandums and other documents that memorialize one or another of Olivera’s perceived performance deficiencies. In contrast, Olivera believed she was performing well, and that her supervisors’ complaints about her were, for the most part, false, exaggerated, or unfair — and worse, a pretext for unlawful discrimination. (Olivera admitted that she had had problems with tardiness during her first year of employment, but all agreed that Olivera had corrected this particular deficiency.) In short, Olivera perceived that she had been singled out for disproportionately harsh treatment and had been made the scapegoat when others failed to do their jobs. More ominously, Olivera accused the City Manager, R.J. Intindola, of constantly having made racist comments about Blacks and Cubans. She claimed that Mr. Intindola uttered racial slurs with such frequency that the workplace became hostile. Further, Olivera asserted that her complaints about Mr. Intindola’s behavior fell on deaf ears. As with the issues pertaining to Olivera’s job performance, the evidence regarding Mr. Intindola’s conduct is in conflict. Mr. Intindola himself denied having uttered the slurs that Olivera put on his lips, yet he admitted that “one time,” in Olivera’s presence, he had referred to another employee, Christy Dominguez, as a “crazy Cuban.” Mr. Intindola claimed that everyone present knew that he was kidding and laughed at the repartee between him and Ms. Dominguez. No one who testified at hearing corroborated Olivera’s account of Mr. Intindola’s conduct. Indeed, Ms. Dominguez, who has been employed with the City since May 1974, disclaimed having witnessed any discriminatory behavior in the workplace there, despite having been the subject of the one possibly derogatory comment that Mr. Intindola indisputably made. On or around April 24, 1995, Olivera was asked to resign her employment with the City to avoid being fired, which would be the consequence of her refusal. Faced with this choice, Olivera submitted a letter of resignation dated April 24, 1995. Thereafter, she received severance pay equal to two-months’ salary. Some time later, most likely during the first few weeks of March 1996, Olivera filed both a Charge Questionnaire and an Affidavit (collectively, the "Federal Forms") with the United States Equal Employment Opportunity Commission ("EEOC"). In the Federal Forms, Olivera alleged that the City had discriminated against her, primarily on the basis of her national origin. The EEOC notified Olivera by letter dated March 22, 1996, that, because her charge had not been timely filed under Title VII of the Civil Rights Act of 1964, the commission had forwarded the Federal Forms to the FCHR. On May 6, 1996, according to a date stamp on the face of the document, the FCHR received a Charge of Discrimination that appears to have been signed by Olivera on April 14, 1996. In this Charge of Discrimination, Olivera again alleged that the City had discriminated against her on the basis of national origin, in violation of her rights under the Florida Human Rights Act. Ultimate Factual Determinations The evidence in this record is not sufficient for the trier to ascertain whether, as a matter of objective historical fact, Olivera adequately performed on the job or not. Suffice it say that a preponderance of evidence fails to establish anything except that Olivera, on the one hand, and her supervisors, on the other, sincerely believed the opinions they expressed on this subject. In other words, Olivera honestly believes that she performed competently and was discriminated against. Her supervisors at the City, in turn, honestly believe that Olivera did not measure up to the Office Manager’s position and needed to be let go for that legitimate reason and no others. The upshot of this inconclusiveness is that Olivera has failed to demonstrate, by a preponderance of evidence, that the City violated her civil rights. Olivera’s conviction that she was the victim of unlawful discrimination, no matter how sincerely and firmly held, is not proof of the fact, at least not without more than the evidence in this record establishes. By the same token, the evidence does not exactly exonerate the City, in the sense of proving that its hands were completely clean or that it acted honorably in respect of Olivera. Rather, more likely than not, Mr. Intindola did on occasion make offhand comments about Cubans at which some persons could take offense. A preponderance of evidence fails to show, however, that he uttered these remarks with a discriminatory intent; that Olivera (or anyone else) suffered any material harm or humiliation as a result of hearing them; or that he did so with such frequency or in such fashion that his conduct could be called extreme. In sum, while it is fair to infer, and the trier so finds, that Mr. Intindola was not always as sensitive to the feelings of others as, in hindsight, he probably should have been, there is nevertheless insufficient evidence to support a finding that he acted willfully or that Mr. Intindola’s occasionally insensitive behavior was so consistently and frequently repeated as to become a condition of Olivera’s employment with the City. Likewise, the greater weight of evidence fails to establish that the environment in which Olivera worked was a hostile or abusive one. On this record the trier cannot say that, more likely than not, the workplace was permeated with discriminatory intimidation, insult, and ridicule. Further, the evidence does not establish that Olivera was treated differently than similarly situated employees who were neither Cuban- American, female, nor pregnant. In the final analysis, then, considering the totality of the circumstances, the evidence presented at hearing demonstrates no more than that the City terminated the employment of an at-will employee for performance-related reasons unrelated to her national origin, gender, or medical condition (pregnancy).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Olivera's Petition for Relief. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 12th day of June, 2001.
