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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-033

FCHR Order No. 09-033

Date of Release: 04/09/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

LAUREN M. BUECKER

EEOC Case No. 15D200700743

Petitioner

 

v.

FCHR Case No. 2007-02186

   

TT OF SAND LAKE, INC., d/b/a CENTRAL FLORIDA CHRYSLER JEEP DODGE

DOAH Case No. 08-2132

Respondent

FCHR Order No. 09-033

   

ORDER DENYING RESPONDENT’S MOTION SEEKING

ATTORNEYS’ FEES AND COSTS

This matter is before the Commission for consideration of “Respondent’s Motion Seeking Attorneys’ Fees and Costs,” received by the Commission on February 4, 2009.

Preliminary Matters

Administrative Law Judge Daniel Manry issued a “Recommended Order” of dismissal in the above-styled matter, dated November 13, 2008.

The Commission issued a “Final Order Dismissing Petition for Relief from an Unlawful Employment Practice” in the above-styled matter, dated January 27, 2009.

Respondent filed “Respondent’s Motion Seeking Attorneys’ Fees and Costs” with the Commission on February 4, 2009.

Petitioner filed a “Response to Respondent’s Motion Seeking Attorney’s Fees and Costs” with the Commission on February 6, 2009.

Respondent’s Motion Seeking 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 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

FCHR Order No. 09-033

Page 2

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 considering the arguments contained in Respondent’s motion, the arguments contained in Petitioner’s response to Respondent’s motion, and the record of the case, itself, 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).

“Respondent’s Motion Seeking Attorneys’ Fees and Costs” 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.

FCHR Order No. 09-033

Page 3

DONE AND ORDERED this 9th day of April , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Onelia A. Fajardo, Panel Chairperson;

Commissioner Watson Haynes, II; and

Commissioner Anice R. Prosser

Filed this 9th day of April , 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:

Lauren M. Buecker

c/o Jeremy K. Markman, Esq.

King & Markman, P.A.

4767 New Broad Street

Orlando, FL 32814

TT of Sand Lake, Inc., d/b/a Central Florida Chrysler Jeep Dodge

c/o Donald St. Denis, Esq.

c/o Michael J. Lufkin, Esq.

St. Denis & Davey, P.A.

1300 Riverplace Boulevard, Suite 101

Jacksonville, FL 32207

Daniel Manry, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 09-033

Page 4

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 9th day of April , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations