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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-004

FCHR Order No. 09-004

Date of Release: 01/12/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

EDWARD TEMPLES

EEOC Case No. NONE

Petitioner

 

v.

FCHR Case No. 2006-00350

   

LEVITON MANUFACTURING COMPANY

DOAH Case No. 06-3534

Respondent

FCHR Order No. 09-004

   

ORDER DENYING RESPONDENT’S MOTION FOR

ATTORNEY’S FEES AND COSTS

This matter is before the Commission for consideration of “Respondent, Leviton Manufacturing Company’s Motion for Attorney’s Fees and Costs,” received by the Commission on September 22, 2008, with subsequent oral confirmation provided to the Clerk of the Commission of Respondent’s intent to proceed with the motion on October 21, 2008.

Preliminary Matters

Administrative Law Judge Daniel M. Kilbride issued a “Recommended Order” of dismissal in the above-styled matter, dated August 13, 2007.

The Commission issued a “Final Order Dismissing Petition for Relief from an Unlawful Employment Practice” in the above-styled matter, dated October 29, 2007.

Petitioner appealed the Commission’s final order, and on August 20, 2008, the District Court of Appeal of the State of Florida, Second District, issued an opinion affirming the Commission’s final order. The “Mandate” from the District Court of Appeal of the State of Florida, Second District, was issued on September 8, 2008.

Respondent filed a motion for attorney’s fees and costs with the Commission on September 22, 2008, and confirmed its intent to proceed on the motion with the Clerk of the Commission on October 21, 2008.

Respondent’s Motion for Attorneys’ Fees and Costs

The Florida Civil Rights Act of 1992 states, “In any action or proceeding under this subsection, the [C]ommission, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. It is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action.” Section 760.11(7), Florida Statutes (2007). (We note that Section 760.11(7), Florida Statutes, is applicable to this case because, following its

FCHR Order No. 09-004

Page 2

investigation of the matter, the Commission issued a determination that there was no reasonable cause to believe that an unlawful employment practice had occurred.)

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). Accord, Quintero v. City of Coral Gables, FCHR Order No. 07-030 (April 20, 2007), and Haynes v. Putnam County School Board, FCHR Order No. 04-162 (December 23, 2004).

Applying the above-stated legal standards, and noting that Petitioner was proceeding pro se, we are unable to say that the record as it exists before us reflects that “the case is seriously lacking in arguable merit,” or that the action brought by Petitioner is “unreasonable or without foundation.”

We conclude, as is our discretion, the record as it exists does not reflect entitlement to attorney’s fees and costs under the standards set out above. Accord, generally, Perry v. Embry-Riddle Aeronautical University, FCHR Order 08-020 (March 13, 2008), Quintero, supra, and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30, 2004).

We note that Respondent’s motion does not seek attorney’s fees and costs pursuant to the Florida Rules of Appellate Procedure.

“Respondent, Leviton Manufacturing Company’s Motion for Attorney’s Fees and Costs” is DENIED.

FCHR Order No. 09-004

Page 3

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 Procedure 9.110.

DONE AND ORDERED this 12th day of January , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Donna Elam, Panel Chairperson;

Commissioner Anice R. Prosser; and

Commissioner Billy Whitefox Stall

Filed this 12th day of January , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Edward Temples

2917 Indian Woods Trail

Lakeland, FL 33810

Edward Temples

Post Office Box 150

Kathleen, FL 33849

FCHR Order No. 09-004

Page 4

Leviton Manufacturing Company

c/o Benjamin J. Biard, Esq.

c/o Anthony P. Strasius, Esq.

Wilson, Elser, Moskowitz,

Edelman & Dicker, LLP

3800 Bank of America Tower

100 Southeast Second Street

Miami, FL 33131

Daniel M. Kilbride, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 12th day of January , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations