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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-052

FCHR Order No. 09-052

Date of Release: 06/03/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

SANDRA T. COLUMBUS

EEOC Case No. NONE

Petitioner

 

v.

FCHR Case No. 2008-01083

   

MUTUAL OF OMAHA

DOAH Case No. 08-2575

Respondent

FCHR Order No. 09-052

   

ORDER DENYING RESPONDENT’S MOTION FOR

ATTORNEY’S FEES AND COSTS

This matter is before the Commission for consideration of “Respondent’s Motion For Attorney’s Fees and Costs,” received by the Commission on April 16, 2009.

Preliminary Matters

Administrative Law Judge Stuart M. Lerner issued a “Recommended Order” of dismissal in the above-styled matter, dated December 29, 2008.

The Commission issued a “Final Order Dismissing Petition for Relief from an Unlawful Employment Practice” in the above-styled matter, dated March 16, 2009.

Respondent filed “Respondent’s Motion For Attorney’s Fees and Costs” with the Commission on April 16, 2009.

Petitioner filed a document entitled, “Opposition to Respondent’s Motion For Attorney’s Fees and Costs,” received by the Commission on May 6, 2009.

Respondent filed a document entitled, “Reply to Petitioner’s Response in Opposition to Respondent’s Motion for Attorney’s Fees and Costs,” received by the Commission on May 7, 2009.

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).

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. 09-052

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 opposition document to Respondent’s motion, the arguments contained in Respondent’s reply document to Petitioner’s opposition document, 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 note that the Recommended Order acknowledges that some factors existed to support the finding of an employer-employee relationship between Petitioner and Respondent. Recommended Order, ¶ 79.

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 For Attorney’s 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

FCHR Order No. 09-052

Page 3

to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 3rd day of June , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Onelia A. Fajardo; and

Commissioner Anice R. Prosser

Filed this 3rd day of June , 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:

Sandra T. Columbus

c/o Elizabeth Athanasakos, Esq.

2631 East Oakland Park Boulevard, Suite 205

Fort Lauderdale, FL 33306-1618

Mutual of Omaha

c/o Kelly Cruz Brown, Esq.

c/o Daniel Hernandez, Esq.

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Tallahassee, FL 32301-1866

Stuart M. Lerner, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 09-052

Page 4

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 3rd day of June , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations