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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-023

FCHR Order No. 09-023

Date of Release: 03/17/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DANIEL P. HURLEY

EEOC Case No. 15D200700611

Petitioner

 

v.

FCHR Case No. 2007-01592

   

ADVANCE AUTO PARTS

DOAH Case No. 08-1515

Respondent

FCHR Order No. 09-023

   

FINAL ORDER DISMISSING PETITION FOR

RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

AND DENYING RESPONDENT’S MOTION FOR

ATTORNEY’S FEES AND COSTS

Preliminary Matters

Petitioner Daniel P. Hurley filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2005), alleging that Respondent Advance Auto Parts committed unlawful employment practices on the basis of Petitioner’s age (DOB: 6/19/44) by subjecting Petitioner to unfavorable terms and conditions of employment and harassment, and on the basis of retaliation.

The allegations set forth in the complaint were investigated, and, on February 20, 2008, the Executive Director issued his determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.

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 on July 31, 2008, in Daytona Beach, Florida, before Administrative Law Judge Harry L. Hooper.

Judge Hooper issued a Recommended Order of dismissal, dated September 9, 2008.

The Commission scheduled a deliberation hearing on the matter for November 20, 2008.

At Petitioner’s request, and with no indication of objection from Respondent, the deliberation hearing was continued by the Commission in an order dated November 10, 2008.

The Commission subsequently scheduled a deliberation hearing on the matter for January 9, 2009.

At Petitioner’s request, and without objection from Respondent, the deliberation hearing was continued by the Commission in an order dated January 6, 2009.

FCHR Order No. 09-023

Page 2

Pursuant to notice, public deliberations were subsequently held on March 12, 2009, 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 200, Tallahassee, Florida, 32301. At these deliberations, the Commission panel determined the action to be taken on the Recommended Order.

Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

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.

Exceptions

Respondent filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled, “Respondent Advance Auto Parts’ Exceptions to the Recommended Order of the Administrative Law Judge,” received by the Commission on September 24, 2008.

The document contains four numbered exceptions paragraphs.

Paragraph 1 takes issue with an inference drawn by the Administrative Law Judge from the evidence presented. Paragraph 2 takes issue with the inference drawn by the Administrative Law Judge that the change of Petitioner’s working hours by Respondent amounted to an adverse employment action. Paragraph 3 appears to take issue with facts “not found” in the Recommended Order.

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). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005).

These three exceptions are rejected.

FCHR Order No. 09-023

Page 3

Exceptions paragraph 4 seems to except to the lack of inclusion in the Recommended Order of a statement indicating Respondent’s entitlement to attorney’s fees and costs as the prevailing party.

Respondent filed with the Commission a motion for attorney’s fees and costs, which is ruled on by the Commission in this Order, below.

Consequently, exceptions paragraph 4 is rejected as an “exception.”

Motion for Attorney’s Fees and Costs

Respondent filed a “Motion for Attorneys’ Fees and Costs Pursuant to § 760.11,” received by the Commission on September 24, 2008. Petitioner filed a response to the motion with the Division of Administrative Hearings on October 6, 2008.

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 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

FCHR Order No. 09-023

Page 4

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, in our view, it cannot be said 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 by Respondent to attorney’s fees and costs under the standards set out above. Accord, generally, Perry v. Embry-Riddle Aeronautical University, FCHR Order No. 08-020 (March 13, 2008), Quintero, supra, and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30, 2004).

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

Respondent’s “Motion for Attorney’s Fees and Costs Pursuant to § 760.11” is DENIED.

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 16th day of March , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Patty Ball Thomas

Filed this 16th day of March , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

FCHR Order No. 09-023

Page 5

NOTICE TO COMPLAINANT / PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission’s final agency action. To secure a “substantial weight review” by EEOC, you must request it in writing within 15 days of your receipt of this Order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, FL 33131.

Copies furnished to:

Daniel P. Hurley

c/o DanYelle McCarty, Esq.

McCarty & Bottex, P.L.

550 North Bumby Avenue, Suite 145

Orlando, FL 32803

Advance Auto Parts

c/o Steven David Brown, Esq.

LeClair Ryan

951 East Byrd Street

Richmond, VA 23219

Harry L. Hooper, 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 16th day of March , 2009.

By: _______________________________

Clerk of the Commission

Florida Commission on Human Relations