Petitioner John H. Waaser filed a complaint of discrimination
pursuant to the Florida Civil Rights Act of 1992, Sections
760.01 - 760.11, Florida Statutes (2001), alleging that
Respondent Streit’s Motorsports committed an unlawful employment
practice on the basis of Petitioner’s religion (Atheism) when it
terminated Petitioner from his employment.
The allegations set forth in the
complaint were investigated, and, on May 5, 2004, the Executive
Director issued his determination finding that there was no
reasonable cause to believe that an unlawful employment practice
Petitioner filed a Petition for
Relief from an Unlawful Employment Practice, and the case was
transmitted to the Division of Administrative Hearings for the
conduct of a formal proceeding.
An evidentiary hearing was held in
Gainesville, Florida, on August 18, 2004, before Administrative
Law Judge Stephen F. Dean.
Judge Dean issued a Recommended
Order of dismissal, dated September 17, 2004.
Pursuant to notice, public
deliberations were held on November 18, 2004, by means of
Communications Media Technology (namely, telephone) before this
panel of Commissioners. The public access point for these
telephonic deliberations was the Office of the Florida
Commission on Human Relations, 2009 Apalachee Parkway, Suite
100, Tallahassee, Florida, 32301. At these deliberations, the
Commission panel determined the action to be taken on the
Petition for Relief.
Findings of Fact
A transcript of the proceeding
before the Administrative Law Judge was not filed with the
We adopt the Administrative Law
Judge’s findings of fact.
Conclusions of Law
We find the Administrative Law
Judge’s application of the law to the facts to result in a
correct disposition of the matter.
We adopt the Administrative Law
Judge’s conclusions of law.
Petitioner filed exceptions to the
Administrative Law Judge’s Recommended Order in a document
entitled, “Exceptions to Recommended Order.” The document
contains 16 numbered exceptions to the Recommended Order, along
with several attachments.
Petitioner’s exceptions in
paragraphs 3 through 16 appear to take issue with the facts
found by the Administrative Law Judge, the inferences drawn from
the evidence presented, and the weight and credibility given to
the evidence presented.
The Commission has stated, “It is
well settled that it is the Administrative Law Judge’s function
‘to consider all of the evidence presented and reach ultimate
conclusions of fact based on competent substantial evidence by
resolving conflicts, judging the credibility of witnesses and
drawing permissible inferences therefrom. If the evidence
presented supports two inconsistent findings, it is the
Administrative Law Judge’s role to decide between them.’
Beckton v. Department of Children and Family Services, 21
F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin
Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).”
Barr v. Columbia Ocala Regional Medical Center, 22
F.A.L.R. 1729, at 1730 (FCHR 1999).
Further, as indicated above, the
Commission’s file does not contain a transcript of the
proceeding on the merits before the Administrative Law Judge.
With regard to findings of fact set out in Recommended Orders,
the Administrative Procedure Act states, “The agency may not
reject or modify the findings of fact unless the agency first
determines from a review of the entire record, and states with
particularity in the order, that the findings of fact were not
based on competent substantial evidence or that the proceedings
on which the findings were based did not comply with the
essential requirements of law.” Section 120.57(1)(l),
Florida Statutes (2003). In the absence of a transcript of
the proceeding before the Administrative Law Judge, the
Recommended Order is the only evidence for the Commission to
consider. See, National Industries, Inc. v. Commission on
Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th
Petitioner’s exceptions in
paragraphs 1 and 2 take issue with the Administrative Law
Judge’s denial of Petitioner’s request for an extension of time
to file his Proposed Recommended Order. Petitioner seems to
suggest that the Administrative Law Judge’s ruling in this
regard demonstrates prejudice against Petitioner.
The Administrative Law Judge issued
an “Order Denying Extension of Time to File Proposed Findings,”
dated September 14, 2004, stating, “The Petitioner faxed a
letter dated Saturday, September 11, 2004, which recites a
number of problems he encountered with the recent storm, and
requests an extension to mail documents on Monday, presumably
September 13, 2004, the date on which his letter was docketed
having been sent on the weekend. The formal hearing in this
case was held on August 18, 2004. The proposed findings were
due, inclusive of mailing, no later than September 3, 2004. The
Respondent filed its proposed findings on September 2, 2004.
The Petitioner did not call about extending the time, according
to his letter, until the following week, September 7, 2004. The
Respondent’s counsel and the Petitioner were equally affected by
the recent storms. The Recommended Order in this case was
prepared and finished prior to receipt of Petitioner’s letter
requesting an extension of time. Therefore, the Petitioner’s
request for an extension is denied, and the Recommended Order
previously completed will be issued this date.”
The Petitioner’s exceptions
document and the “Order Denying Extension of Time to File
Proposed Findings,” reflect disagreement as to when the proposed
findings were due.
The time frame for allowing the
filing of proposed findings falls squarely within the purview of
the Administrative Law Judge. Fla. Admin. Code R.
28-106.215, dealing with “Post-Hearing Submittals,” states, “All
parties may submit proposed findings of fact, conclusions of
law, orders, and memoranda on the issues within a time
designated by the presiding officer. Unless authorized by the
presiding officer, proposed orders shall be limited to 40
Petitioner’s exceptions are
Respondent’s Motion for Attorney’s Fees
Respondent filed a “Motion for
Award of Attorney Fees and Costs,” alleging entitlement to
attorneys fees and costs because “the complaint was frivolous,
unreasonable, or without foundation,” and “the Petitioner
continued to litigate after it clearly became clear his
complaint was without merit.”
In conclusions of law adopted
by a Commission panel, it has been stated that a prevailing
Respondent may be awarded attorney’s fees by the Commission,
under the Florida Civil Rights Act of 1992, “if it is determined
that an action was ‘frivolous, unreasonable, or without
foundation,’ or ‘that the plaintiff continued to litigate after
it clearly became so.’ Christianburg Garment Co. v. EEOC,
434 U.S. 412, 421-422 (1978).” Tadlock v. Westinghouse
Electric Corporation, d/b/a Bay County Energy Systems, Inc.,
20 F.A.L.R. 776, at 777 (FCHR 1997), citing Wright v. City of
Gainesville, 19 F.A.L.R. 1947, at 1959
(FCHR 1996). Accord, generally, Asher v. Barnett Banks,
Inc., 18 F.A.L.R. 1907 (FCHR 1995).
In conclusions of law adopted by a
Commission panel, this pronouncement is given explanation: “It
is within the discretion of a district court to award attorney’s
fees to a prevailing defendant in a Title VII action upon a
finding that the action was ‘frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith.’
Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98
S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The standard has been
described as a ‘stringent’ one. Hughes v. Rowe, 449 U.S.
5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980). Moreover, the
Supreme Court has cautioned that in applying these criteria, the
district court should resist the temptation to conclude that
because a plaintiff did not ultimately prevail, the action must
have been unreasonable or without foundation. Christianburg
Garment, 434 U.S. at 421-22, 98 S.Ct. at 700-01. Therefore,
in determining whether a prevailing defendant is entitled to
attorney’s fees under Title VII, the district court must focus
on the question of whether the case is seriously lacking in
arguable merit. See Sullivan v. School Board of Pinellas
County, 773 F.2d 1182, 1188 (11th Cir. 1985).” Doshi v.
Systems and Electronics, Inc., f/k/a Electronics and Space Corp.,
21 F.A.L.R. 188, at 199 (FCHR 1998).
Respondent’s “Motion for Award of
Attorney Fees and Costs” is DENIED.
The Petition for Relief and
Complaint of Discrimination are DISMISSED with prejudice.
The parties have the right to seek judicial review of this
Order. The Commission and the appropriate District Court of
Appeal must receive notice of appeal within 30 days of the date
this Order is filed with the Clerk of the Commission.
Explanation of the right to appeal is found in Section 120.68,
Florida Statutes, and in the Florida Rules of Appellate
Done and Ordered this 30th day of November, 2004.
For The Florida Commission on Human Relations.