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Home / Complaints / Final Orders / Final Orders 2009 / FCHR Order No. 09-104

FCHR Order No. 09-104

Date of Release: 11/24/2009

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

RONICA TUCKER

EEOC Case No. 425200700800

Petitioner

 

v.

FCHR Case No. 2007-01673

   

CRANE AEROSPACE AND ELECTRONICS

DOAH Case No. 08-3313

Respondent

FCHR Order No. 09-104

   

ORDER DENYING RESPONDENT’S MOTIONS FOR

ATTORNEY’S FEES AND COSTS

This matter is before the Commission for consideration of “Respondent’s Motion For The Taxing of Costs,” received by the Commission on or about September 14, 2009, and for consideration of “Respondent’s Amended Motion For The Taxing of Costs To Include Attorney’s Fees,” received by the Commission on or about September 25, 2009.

Preliminary Matters

Administrative Law Judge Robert S. Cohen issued a “Recommended Order” of dismissal in the above-styled matter, dated June 3, 2009.

The Commission issued a “Final Order Dismissing Petition for Relief from an Unlawful Employment Practice” in the above-styled matter, dated August 26, 2009, designated as FCHR Order No. 09-080.

Respondent filed “Respondent’s Motion For The Taxing Of Costs,” received by the Commission on or about September 14, 2009.

Respondent filed “Respondent’s Amended Motion For The Taxing Of Costs To Include Attorney’s Fees,” received by the Commission on or about September 25, 2009.

“Respondent’s Motion For The Taxing Of Costs,” requests that Respondent be awarded costs in the amount of $5,354.82 for expenses incurred for an evidentiary hearing transcript, photocopying, LEXIS usage, postage and Federal Express charges, and facsimile charges.

“Respondent’s Amended Motion For The Taxing Of Costs To Include Attorney’s Fees,” requests that Respondent be awarded attorney’s fees in the amount of $61,606.50. (Exhibit 6 accompanying this filing, entitled “Total Costs Including Attorney’s Fees,” contains the itemized amounts from “Respondent’s Motion For The Taxing Of Costs,” except for the amount attributed to the expense for an evidentiary hearing transcript – this amount is omitted from Exhibit 6.)

FCHR Order No. 09-104

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Respondent’s Motions 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

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).

The Commission has applied these same legal standards to requests for costs other than attorney’s fees. See, e.g., Green v. Miami-Dade County, FCHR Order No. 09-075 (August 18, 2009), and Columbus v. Mutual of Omaha, FCHR Order No. 09-052 (June 3, 2009).

Applying the above-stated legal standards, and considering the arguments contained in Respondent’s motions 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.” For example, we note that while with regard to some of the allegations the Administrative

FCHR Order No. 09-104

Page 3

Law Judge’s conclusion that a prima facie case was not established was based in part on a finding that no adverse employment action occurred, the Commission in its final order (FCHR Order No. 09-080), while not disturbing the Administrative Law Judge’s conclusions, acknowledged situations were employer action similar to that complained of had been deemed to be an adverse employment action.

We conclude, as is our discretion (see, Section 760.11(7), Florida Statutes (2007)), 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 The Taxing of Costs” and “Respondent’s Amended Motion For The Taxing of Costs To Include Attorney’s Fees” are 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 24th day of November , 2009.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Patty Ball Thomas

Filed this 24th day of November , 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. 09-104

Page 4

Copies furnished to:

Ronica Tucker

c/o Bruce A. Minnick, Esq.

The Minnick Law Firm

Post Office Box 15588

Tallahassee, FL 32317-5588

Crane Aerospace and Electronics

c/o Marty Denis, Esq.

Barlow, Kobata & Denis

Carlton Fields, P.A.

525 West Monroe Street, Suite 2360

Chicago, IL 60661

Robert S. Cohen, 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 24th day of November , 2009.

By: _____________________________

Clerk of the Commission

Florida Commission on Human Relations