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Home / Complaints / Final Orders / Final Orders 2013 / FCHR Order No. 13-010

FCHR Order No. 13-010

Date of Release: 02/06/2013

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

KEITH A. GALLOWAY

EEOC Case No. 15D201100120

Petitioner

FCHR Case No. 2011-00240

 

DOAH Case No. 11-4558

v.

 

G-FORCE/WACKENHUT CORP.

FCHR Order No. 13-010

Respondent

 

INTERLOCUTORY ORDER AWARDING AFFIRMATIVE RELIEF

FROM AN UNLAWFUL EMPLOYMENT PRACTICE

AND REMANDING CASE TO ADMINISTRATIVE LAW JUDGE

FOR ISSUANCE OF RECOMMENDED ORDER REGARDING AMOUNTS OF ATTORNEY’S FEES AND COSTS OWED PETITIONER AND REGARDING PETITIONER’S ENTITLEMENT TO RECOVER INCURRED MEDICAL EXPENSES

Preliminary Matters

Petitioner Keith A. Galloway filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2010), alleging that Respondent, G4S Secure Solutions, f/k/a The Wackenhut Corporation, committed an unlawful employment practice on the basis of Petitioner’s handicap by failing to provide Petitioner a reasonable accommodation for his disability in the job assignment given to Petitioner.

The allegations set forth in the complaint were investigated, and, on June 27, 2011, the Executive Director issued a determination finding that there was 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 June 28 and 29, 2012, in Pensacola, Florida, before Administrative Law Judge James H. Peterson, III.

Judge Peterson issued a Recommended Order, dated November 30, 2012, recommending that the Commission find that an unlawful employment practice occurred and recommending affirmative relief.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

FCHR Order No. 13-010

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Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence, noting that Recommended Order, ¶ 63, is actually a conclusion of law rather than a finding of fact.

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 note that in Recommended Order, ¶ 63, the Administrative Law Judge concluded that relief for claims of “medical expenses” was not available in this administrative proceeding.

In a case in which a Petitioner sought compensation for medical bills incurred as a result of a Respondent’s failure to accommodate the Petitioner’s disability / handicap, but in which the claim was rejected, a Commission Panel stated, “we agree with Petitioner that this would be a remedy within the authority of the Commission to order. Nevertheless, the record before the Commission does not establish that the medical bills in question were incurred as a result of Respondent’s failure to accommodate Petitioner’s disability / handicap.” McIntosh v. Dollar General, FCHR Order No. 10-047 (May 25, 2010).

Based on McIntosh, supra, we correct the Administrative Law Judge’s conclusion of law that claims for “medical expenses” were not available in this administrative proceeding, and will remand this issue to the Administrative Law Judge for further fact finding as to whether the medical expenses sought by Petitioner were the result of the unlawful discrimination found to have occurred, and to make an appropriate recommendation as to the relief owed Petitioner consistent with the guidance set out in McIntosh, supra.

We also note, as set out collectively in Recommended Order, ¶ 91, ¶ 92, and ¶ 3 of the “Recommendation” section, the Administrative Law Judge awarded “reinstatement” to Petitioner, “failing which Petitioner shall be entitled to an award of front pay from Respondent…”

Given the finding that Petitioner indicated at hearing that he did not want to be reinstated (Recommended Order, ¶ 92), we decline to award reinstatement to Petitioner, although, we agree that Petitioner would be entitled to reinstatement.

With regard to front pay, a Commission Panel has stated, “front pay is compensation for future economic loss stemming from present discrimination that cannot be remedied by traditional rightful-place relief such as hiring, promotion or reinstatement. Some of the factors which make rightful-place relief inappropriate include a lack of reasonable prospect that Petitioner can obtain comparable employment, the

FCHR Order No. 13-010

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existence of an employer-employee relationship that is pervaded with hostility, and the existence of a relatively short period of time for which front pay is to be awarded.” Whitehead v. Miracle Hill Nursing and Convalescent Home, Inc., 19 F.A.L.R. 1525, at 1528 (FCHR 1996).

In our view, using the guidance of Whitehead, supra, there are no findings in the Recommended Order to support an award of “front pay.”

Accordingly, we correct the indicated conclusions of law relating to “reinstatement” and “front pay.”

In correcting these conclusions of law of the Administrative Law Judge relating to awards for medical expenses, reinstatement and front pay, we conclude: (1) that the conclusions of law being corrected are conclusions of law over which the Commission has substantive jurisdiction, namely conclusions of law dealing with affirmative relief to be awarded under the Florida Civil Rights Act of 1992; (2) that the reason the corrections are being made by the Commission is that the conclusions of law as stated run contrary to previous Commission decisions on the issues; and (3) that in making these corrections the conclusions of law being substituted are as or more reasonable than the conclusions of law which have been rejected. See, Section 120.57(1)(l), Florida Statutes (2012).

With these corrections, we adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Respondent filed exceptions to the Recommended Order on December 14, 2012, in a document entitled, “Respondent’s Exceptions to Recommended Order.” The document contains 17 pages, setting out the following three specific exceptions to the Recommended Order.

First, Respondent takes exception that the Administrative Law Judge concluded that walking and standing were not an essential function of the security officer’s job.

Second, Respondent takes exception that the Recommended Order found that Respondent failed to accommodate Petitioner.

Third, Respondent takes exception that the Recommended Order found that Respondent failed to demonstrate that providing an accommodation to Petitioner would have been an undue hardship.

In our view, the second and third exceptions essentially take issue with facts found and inferences drawn by the Administrative Law Judge from the evidence presented.

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

FCHR Order No. 13-010

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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) and Eaves v. IMT-LB Central Florida Portfolio, LLC, FCHR Order No. 11-029 (March 17, 2011).

Further, it has been stated, “The ultimate question of the existence of discrimination is a question of fact.” Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, at 1209 (Fla. 1st DCA 1991). Accord, Coley v. Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 17, 2010) and Eaves, supra.

Respondent’s second and third exceptions are rejected.

With regard to the first exception, we are unable to find in the Recommended Order where the Administrative Law Judge concluded that walking and standing were not an essential function of the security officer’s job. Instead, the Administrative Law Judge concluded that with a reasonable accommodation Petitioner could perform the essential functions of the job. Recommended Order, ¶ 76 and ¶ 82.

Respondent’s first exception is rejected.

Affirmative Relief and Remand

Through our adoption of the Administrative Law Judge’s findings of fact and conclusions of law, as set out above, we find that unlawful discrimination occurred in this matter in the manner found by the Administrative Law Judge and have adopted the Administrative Law Judge’s recommendations for the remedy of the discrimination, except as set out in the “Conclusions of Law” section of this Order. In addition, we conclude the case should be remanded to the Administrative Law Judge for determination of the amounts of attorney’s fees and costs owed Petitioner, as well as the amounts owed Petitioner for medical expenses incurred, if any.

Respondent is hereby ORDERED:

(1) to cease and desist from discriminating further in the manner it has been found to have unlawfully discriminated against Petitioner;

(2) to pay Petitioner $4,595.61 in back pay through the date of the Recommended Order, plus $180.22 per month thereafter through the date of this order, with interest accruing on the total amount at the applicable statutory rate upon the date of this order, as recommended by the Administrative Law Judge;

(3) to pay Petitioner attorney’s fees that have been reasonably incurred in this matter by Petitioner, as recommended by the Administrative Law Judge; and

(4) to pay Petitioner the amount of costs that has been reasonably incurred in this matter by Petitioner, as recommended by the Administrative Law Judge.

This matter is REMANDED to the Administrative Law Judge for further proceedings to determine the amounts of attorney’s fees and costs owed Petitioner, and the amounts of “medical expenses” owed Petitioner, if any, and the issuance of a Recommended Order as to those amounts.

FCHR Order No. 13-010

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DONE AND ORDERED this 6th day of February , 2013.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson;

Commissioner Onelia Fajardo-Garcia; and

Commissioner James Johns

Filed this 6th day of February , 2013,

in Tallahassee, Florida.

____________/s/_______________

Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Keith A. Galloway

c/o Letta Dillard Gorman, Esq.

Post Office Box 207

Hartford, AL 36344

G-Force / Wackenhut Corporation

c/o Christine L. Wilson, Esq.

Jackson Lewis LLP

One Biscayne Tower, Suite 3500

2 South Biscayne Boulevard

Miami, FL 33131

James H. Peterson, III, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 13-010

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I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 6th day of February , 2013.

By: ________/s/________________

Clerk of the Commission

Florida Commission on Human Relations