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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-075

FCHR Order No. 09-075

Date of Release: 08/18/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

DAMACIO GREEN

EEOC Case No. 15D200800088

Petitioner

 

v.

FCHR Case No. 2007-02652

   

MIAMI-DADE COUNTY

DOAH Case No. 08-2168

Respondent

FCHR Order No. 09-075

   

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 Damacio Green 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 Miami-Dade County committed unlawful employment practices on the basis of Petitioner’s sex (male) and on the basis of retaliation by subjecting Petitioner to sexual harassment and by giving Petitioner poor performance evaluations and terminating Petitioner.

The allegations set forth in the complaint were investigated, and, on March 25, 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 by video teleconference on January 26 and 27, 2009, and March 10, 2009, at sites in Miami and Tallahassee, Florida, before Administrative Law Judge Stuart M. Lerner.

Judge Lerner issued a Recommended Order of dismissal, dated May 29, 2009.

The Commission panel designated below considered the record of this matter and 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.

FCHR Order No. 09-075

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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

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled, “Petitioner’s Exceptions to Recommended Order,” received by the Commission on June 15, 2009.

The document contains nine numbered exceptions paragraphs, excepting to the Administrative Law Judge’s findings of fact at Recommended Order paragraph numbers 23, 35, 36, 37, 38, 39, 40, 59 and 76.

Petitioner’s exceptions take issue with facts found (23, 35, 39, 40, 59, 76), facts not found (36, 37, 38), and / or inferences drawn from the evidence presented (23, 35, 36, 37, 38, 39, 40, 76), and / or with the credibility determinations made by the Administrative Law Judge (36, 37, 38, 39, 40) [references are to Recommended Order paragraph numbers].

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).

Petitioner’s exceptions are rejected.

Motion for Attorney’s Fees and Costs

Respondent filed “Respondent Miami-Dade County’s Motion for Attorneys’ Fees and Costs,” received by the Commission on June 19, 2009.

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. 09-075

Page 3

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, 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.” While the ultimate determination of whether sexual harassment occurred in the case before us appears to turn on the credibility determinations of the Administrative Law Judge, the record reflects that, at the very least, a supervisor engaged an immediate subordinate in sex and lied about it when initially asked about it by her immediate supervisor. See Recommended Order, ¶ 35 through ¶ 38, and ¶ 48.

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).

FCHR Order No. 09-075

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Dismissal

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

“Respondent Miami-Dade County’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 to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 18th day of August , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Anice R. Prosser, Panel Chairperson;

Commissioner Lizzette Gamero; and

Commissioner Billy Whitefox Stall

Filed this 18th day of August , 2009,

in Tallahassee, Florida.

________________________________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, FL 32301

(850) 488-7082

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.

FCHR Order No. 09-075

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Copies furnished to:

Damacio Green

c/o Leslie Holland, Esq.

801 Northeast 167th Street, Second Floor

North Miami Beach, FL 33162

Miami-Dade County

c/o Scott B. Mario, Esq.

Assistant County Attorney

111 Northwest First Street, Suite 2810

Miami, FL 33128-1993

Stuart M. Lerner, 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 18th day of August , 2009.

By: _______________________________

Clerk of the Commission

Florida Commission on Human Relations