88-003090 Kenneth C. Parker vs. School Board Of Osceola County And Department Of Education
 Status: Closed
Recommended Order on Wednesday, May 2, 1990.

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Summary: Petitioner in human relations case not entitled to atty fees incured in related rule challenge.





12Petitioner, )


15vs. ) CASE NO. 89-1551




26Respondent. )




34Petitioner, )


37vs. ) CASE NO. 88-3090






56Respondents. )




64Petitioner, )


67vs. ) CASE NO. 88-3091






86Respondents. )




93Petitioner, )


96vs. ) CASE NO. 89-3076






115Respondents. )




123Petitioner, )


126vs. ) CASE NO. 88-3581




137Respondent. )




145Petitioner, )


148vs. ) CASE NO. 88-3579




159Respondent. )



164By Joint Stipulation filed October 12, 1989, and Order of Consolidation and

176Dismissal entered December 22, 1989, the above-styled cases were presented to

187Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.


199The following counsel filed briefs:

204For Lewis John J. Chamblee, Jr.

210Rushton: Chamblee, Miles and Grizzard

215202 Cardy Street

218Tampa, Florida 33606

221For John E. Lorene C. Powell, Assistant General Counsel

230Pierce and FEA/United

233Franklin C. 208 West Pensacola Street

239Gorman: Tallahassee, Florida 32399-1700

243For Department Sydney H. McKenzie III, General Counsel

251of Education: Carl J. Zahner, Assistant General Counsel

259State Board of Education

263The Capitol, Suite 1701

267Tallahassee, Florida 32399


274The issue in these cases is: a) whether the Department of Education is

287liable for attorneys' fees and costs incurred in the prosecution of the Rushton

300case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should

315include those incurred in the prosecution of a rule challenge styled, Florida

327Education Association/United and Florida Teaching Profession/National Education

334Association v. Department of Education, DOAH Case No. 88-0847R.


345Each of the Petitioners was a bus driver who had attained the age of 70

360years and who was employed by a school board in the State of Florida when the

376Department of Education promulgated a rule requiring mandatory retirement of

386such persons at age 70 years. Each Petitioner filed a claim of discrimination

399against the Department of Education and the district school board that employed

411him. In general, these claims asserted that each Petitioner had been subject to

424unlawful employment discrimination based on age.

430Two unions representing the terminated bus drivers challenged the mandatory

440retirement rule that had forced theretirement of the drivers. This rule

451challenge was styled, Education Association/United and Florida Teaching

459Profession/National Education Association v. Department of Education, DOAH Case

468No. 88-0847R. The challenge was sustained, the Department of Education withdrew

479the rule, and the various school boards reemployed the bus drivers.

490The Rushton case alone was set for final hearing in Sanford on September

50328, 1989. At the hearing, counsel for all the Petitioners appeared and,

515together with counsel for Respondent, agreed to present the case by stipulation.

527The undersigned entered an order establishing deadlines for the filing of the

539stipulation, initial briefs, answer briefs, and reply briefs.

547The parties filed a Joint Stipulation on October 12, 1989. The Joint

559Stipulation and various exhibits previously filed provide the basis for the

570findings of fact set forth below. By Order of Consolidation and Dismissal

582entered December 22, 1989, the undersigned gave all parties a specified period

594of time within which to file objections to binding all of the parties to the

609stipulation, closing the record, dismissing all Respondents except for the

619Department of Education, and issuing a single recommended order with respect to

631each of the above-styled cases. No party objected. Consequently, all remaining

642Respondents, other than the Department of Education, are hereby dismissed.

652In the Joint Stipulation, counsel agreed to use the Rushton record for the

665purpose of determining the issues setforth above. In addition, counsel for

676Messrs. Pierce, Gorman, Reilly, Harley, and Parker agreed not to pursue

687attorney's fees and costs, other than those incurred in the rule challenge and

700theoretically attributable to the five individual cases. However, the Rushton

710case is agreed to be the means by which the rule-challenge fees and costs are

725recovered, if they are to be recovered at all.

734After the briefs had been filed, the undersigned contacted counsel and

745asked them to adopt a procedure by which evidence concerning fees could be

758entered into the record. Suggestions included a stipulation as to the amount,

770the introduction of affidavits with a stipulation for determination of the issue

782by affidavits, or the reopening of the case for a short evidentiary hearing as

796to fees. The only resulting activity of which the undersigned is aware,

808including record activity, is a letter dated March 6, 1990, from counsel for Mr.

822Rushton to counsel for Respondent, with a copy to counsel for Messrs. Pierce and

836Gorman. In this letter, various procedures are proposed with respect to the

848issue of attorneys' fees. Nothing else has ever been communicated to the

860undersigned since that letter.


8671. Petitioner Lewis Rushton is a person within the meaning of Section

879760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of

891Section 760.10(1).

8932. The Department of Education ("DOE") is a personwithin the meaning of

907Section 760.02(5). The School Board of Seminole County, Florida ("School

918Board"), which is also a person within the meaning of the same statute, was at

934all material times Mr. Rushton's "employer" within the meaning of Section


9463. At all material times, Mr. Rushton was employed as a bus driver by the

961School Board, which removed him from this position on April 19, 1988. The

974reason for the School Board's action was that the continued service of Rushton,

987who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida

1000Administrative Code, which required mandatory retirement of bus drivers at age

101170 years ("Rule"). The other Petitioners were similarly situated to Mr.

1024Rushton. The only difference is that they were employed by different district

1036school boards.

10384. The School Board gave Rushton the option to continue in employment as

1051a bus monitor, which was a lower-paying job than bus driver. Rushton accepted

1064this reassignment and experienced the resulting reduction in pay beginning the

10751988-89 school year.

10785. At all material times, DOE, which promulgated the Rule, maintained

1089standards affecting the ability of Rushton to engage in his occupation or trade

1102within the meaning of Section 760.10(5). The Rule was part of these standards.

11156. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR

1127Case No. 88-5616, against the School Board. The Florida Commission on Human

1139Relations dismissed this complaint on November 11, 1988. On May 3, 1988,

1151Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No.

116388-5703, against DOE. On September 7, 1988, the Florida Commission on Human

1175Relations issued a Notice of Determination--Cause. The Notice of Determination

1185names as the sole respondent the School Board, which had employed Mr. Rushton

1198prior to requiring him to retire at age 70.

12077. After DOE filed a Request for Reconsideration on September 16, the

1219Florida Commission on Human Relations issued on January 12, 1989, a Notice of

1232Redetermination--Cause. The Notice of Redetermination names DOE as the sole

1242respondent. The Notice of Redetermination states that DOE's "assertion that

1252[the Rule] is an established 'bona fide occupational qualification' for

1262employment has not been upheld."

12678. The quoted statement in the Notice of Redetermination is to a final

1280order issued December 14, 1988. The final order found the Rule to be an invalid

1295exercise of delegated legislative authority.

13009. The final order was the culmination of a Section 120.56 challenge to

1313the Rule that had been prosecuted against DOE by two unions representing the

1326Petitioners. This rule challenge was styled, Florida Education

1334Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule

1345Challenge"). The Florida Teaching Profession/National Education Association was

1354an intervenor on the side of the petitioner in the Rule Challenge.

136610. Lorene C. Powell represented the petitioner in theRule Challenge, and

1377Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan,

1391Lev & Siwica, represented the intervenor.

139711. As the final hearing in the Rule Challenge approached, DOE requested

1409abatements of the pending cases in which individual bus drivers had sought

1421relief under Section 760.10. At that time, the cases of all Petitioners except

1434Mr. Rushton were pending in the Division of Administrative Hearings. The

1445grounds for the abatements were that the decision in the Rule Challenge "would

1458substantially affect the outcome" of the pending individual cases. Each case

1469was abated.

147112. The parties in the Rule Challenge stipulated that various counties,

1482due to the Rule, had not rehired bus drivers who would have been rehired but for

1498the fact that they had attained the age of 70 years. The parties also agreed

1513that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do

1525not permit an age limitation on employment with the exception of where such an

1539age limitation is based on Bona Fide Occupational Qualification." The

1549stipulated issues for determination in the Rule Challenge included "whether the

156070-year old age barrier . . . is a [bona fide occupational qualification] and

1574thus a valid exception to the state and federal ban on age discrimination based

1588solely on chronological age."

159213. By memorandum dated January 11, 1989, DOE informed school board

1603superintendents of the final order invalidating the Rule. By letter dated

1614February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer

1627requiring enforcement of the mandatory retirement rule and he could return to

1639work as a bus driver if he could meet certain lawful requirements. Each

1652Petitioner was so notified by his respective school board.

166114. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief

1674against the School Board and DOE, including a finding that mandating his

1686retirement due to age was an unlawful employment practice, an award of back pay

1700and associated benefits, and an award of attorneys' fees in the prosecution of

1713the subject proceeding and such other proceedings as were necessary or

1724appropriate to obtain the relief and apportioning the fees between the School

1736Board and DOE.

173915. With the filing of the Petition for Relief on March 21, 1989, John

1753Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance

1766for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union,

1780the Florida Teaching Profession/National Education Association.

178616. On or shortly after May 1, 1989, the School Board settled with Mr.

1800Rushton by agreeing to compensate him for back pay, interest, and other benefits

1813constituting relief otherwise available under Section 760.10. Similar

1821settlements between the other Petitioners and their respective school boards

1831resulted in the dismissal of all claims against the various school boards.


184617. The Division of Administrative Hearings has jurisdiction over the

1856parties and the subject matter. Section120.57(1).

186218. Section 760.10(13) provides:

1866In the event that the [Florida Commission on

1874Human Relations], in the case of a complaint

1882under subsection (10), . . . finds that an

1891unlawful employment practice has occurred, it

1897shall issue an order prohibiting the practice

1904and providing affirmative relief from the

1910effects of the practice, including reasonable

1916attorney's fees. Upon such notice as the

1923commission . . . may require, such order, or

1932any subsequent order upon the same complaint

1939. . . may provide relief for all individuals

1948aggrieved by any such unlawful employment

1954practice. . . .

195819. Mr. Rushton filed a complaint, pursuant to Section 760.10(10). The

1969Final Order entered in the Rule Challenge invalidated the Rule that forced the

1982School Board to remove Mr. Rushton as a bus driver due to his age. The

1997resolution of the Rule Challenge led DOE to conclude, correctly, that further

2009litigation of individual claims would be fruitless; enforcement of the Rule had

2021been an unlawful employment practice.

202620. Ignoring for a moment the amount of fees, Mr. Rushton is entitled to

2040fees in DOAH Case No. 89-1551 provided he was pursuing meaningful relief at the

2054time that Mr. Chamblee first entered an appearance on Mr. Rushton's behalf.

206621. DOE's assertion that such claims against it are barred by the doctrine

2079of sovereign immunity appears rebutted by the language of Section 760.10(5),

2090which prohibits discrimination by "persons" in certain cases. Section 760.02(5)

2100defines "person" to include the "state." The award of fees in this case is

2114under the authority of Section 760.10(5). This fact is notaltered by any

2126determination that the quantum of fees might include fees incurred in a separate

2139proceeding, such as the Rule Challenge. See Appalachian, Inc. v. Ackmann, 507

2151So. 2d 150 (Fla. 2d DCA 1987).

215822. The critical question in this case is whether Mr. Rushton may recover

2171the fees incurred in the Rule Challenge. If not, he has no basis for recovering

2186any fees, including those incurred in DOAH Case No. 89-1551. By the time that

2200Mr. Chamblee appeared on behalf of Mr. Rushton, DOE had already capitulated.

2212From a practical point of view, the only meaningful relief still sought by Mr.

2226Rushton was finally secured on or after May 1, 1989. In settling with the

2240School Board, Mr. Rushton has released whatever claim for fees he may have had

2254during the period between when Mr. Chamblee first represented him and

2265approximately May 1. Although the release did not extend to pursuing DOE for

2278fees, DOE had already done what was necessary for Mr. Rushton to regain his job

2293prior to the appearance of Mr. Chamblee on Mr. Rushton's behalf. Apart from the

2307question concerning the fees incurred in the Rule Challenge, the School Board,

2319as the employer, was the party to which Mr. Rushton naturally would look for

2333relief in the form of reinstatement with back pay, interest, and associated


234623. Therefore, the only way that Mr. Rushton can show that he was

2359continuing to pursue meaningful relief against DOE, following the appearance of

2370Mr. Chamblee on Mr. Rushton's behalf, is for Mr. Rushton to prove entitlement to

2384fees incurred in theRule Challenge. Failing that, Mr. Rushton has not prevailed

2396against DOE in the sense that he has obtained meaningful relief during the

2409period for which he was represented by an attorney in DOAH Case No. 89-1551.

242324. The Petitioners could have prosecuted their age discrimination claims

2433on a case-by-case basis. As each Petitioner established an unlawful employment

2444practice, he would have been entitled to an award of reasonable attorney's fees

2457from DOE. Instead, two unions acting on behalf of the Petitioners prosecuted a

2470single proceeding to challenge the Rule whose enforcement had resulted in the

2482various age discrimination cases. Because the outcome of the Rule Challenge

2493determined the outcome of the various age discrimination cases, the prosecution

2504of the Rule Challenge resulted in administrative efficiency and significant

2514savings in legal fees.

251825. Various courts have considered the proper scope of fees in cases in

2531which the work was expended in a case for which fees were not recoverable, but

2546in connection with a matter that, when litigated under a different theory,

2558permitted the recovery of fees. In Appalachian, Inc. v. Ackmann, 507 So. 2d 150

2572(Fla. 2d DCA 1987), purchasers who had prevailed in an action under the

2585Interstate Land Sales Full Disclosure Act sought attorneys' fees for legal

2596services in a separate federal action. In the federal action, for which fees

2609were presumably unavailable, the attorneys for the purchasers had appeared as

2620amici to litigate the same jurisdictional questions involved in the state

2631action. Allowingfees for work in a related federal case, the court cited

2643Pennsylvania v. Delaware Valley, 478 U.S. 546, 106 S. Ct. 3088 (1986) for the

2657proposition that "compensation for participation in a related administrative

2666proceeding was proper and 'well within the zone of discretion' permitted trial


267926. In Delaware Valley, a citizens' group had successfully prosecuted an

2690action under the Clean Air Act and requested fees thereunder. The Court

2702included in the attorney's fees for services performed by the group's attorneys

2714in the judicial action fees incurred in an earlier administrative proceeding.

2725The Court relied upon its earlier decision, Webb v. Board of Education of Dyer

2739County, 471 U. S. 234, 105 S. Ct. 1923 (1985):

2749There, we noted that for the time spent

2757pursuing optional administrative proceedings

2761properly to be included in the calculation of

2769a reasonable attorney's fee, the work must be

"2777useful and of a type ordinarily necessary'

2784to secure the final result obtained in the


2793106 S. Ct. at 3096.

279827. The case of Ramsey v. Chrysler First, Inc., 861 F.2d 1541, 48 FEP

2812Cases 1089 (11th Cir. 1988), does not compel a contrary result. In that case,

2826the court found that the prelitigation fees were duplicated in the judicial

2838action, for which fees were awarded.

284428. The attorney's fees incurred in the Rule Challenge were useful and

2856necessary in obtaining the favorable results in the individual age

2866discrimination cases. At minimum, the work inthe Rule Challenge took the place

2878of the administrative effort and litigation expenses that would have been

2889incurred in the trial of the various individual cases, which presumably would

2901have been consolidated for hearing. In no way was the work in the Rule

2915Challenge duplicative of the work involved in the individual cases.

292529. The impediment to recovery of the Rule Challenge fees is that the

2938record does not disclose that Mr. Rushton has paid or is under any obligation to

2953pay either or both unions for the legal work that they provided in the Rule

2968Challenge. Absent such a fact, any award to Mr. Rushton would represent a


298230. Obviously, the unions, which retained the counsel for the Petitioners

2993in their separate cases, prosecuted the Rule Challenge in a representative

3004capacity, in fact employing the same counsel as were involved in the individual

3017cases. The unique relationship between a union and its members warrants, in

3029appropriate circumstances, ignoring technical distinctions between the parties.

3037Cf. Fredericks v. School Board of Monroe County, 307 So. 2d 463 (3d DCA 1975)

3052(union has standing to litigate grievances of teacher-members).

306031. However, the distinction here is more significant. Mr. Rushton seeks

3071an award for fees that the unions incurred in the Rule Challenge. It is true

3086that, in theory, he could recover the fees incurred in DOAH Case No. 89-1551,

3100even though it appears that his union paid for the representation. However, in

3113that case, he was at least a party; as a member of the union, hewas presumably

3129under some obligation to reimburse the union for any fees incurred that "Mr.

3142Rushton" recovered. As to the Rule Challenge, Mr. Rushton seeks to recover fees

3155for which he was never even nominally liable. The unions were the parties, and

3169the union incurred the fees. If the union had incurred the obligation to pay

3183fees in the Rule Challenge, Mr. Rushton would certainly not be liable on the

3197final order or judgment. Meyer v. Scutieri, 539 So. 2d 602 (Fla 3d DCA 1989)

3212(per curiam) (plaintiff condominium association, but not nonparty members,

3221properly named on judgment for attorney's fees).

322832. None of the authority cited by Petitioners involves a case in which

3241the party seeking fees tries to recover fees incurred by a different party.

3254Arguably, the principle of indemnification, which underlies the fee award, may

3265be stretched when applied to the award of fees where the union has supplied and

3280paid for counsel to represent a member. However, the principle is obliterated

3292when applied to the award of fees where the union has obtained counsel to

3306represent itself, albeit on the member's behalf. It makes no difference that

3318Mr. Rushton could have brought the Rule Challenge, even with counsel provided by

3331the union; the fact is that he did not.

334033. For the reasons set forth above, Mr. Rushton and the other Petitioners

3353are not entitled to the recovery of fees from DOE.


3364Based on the foregoing, it is hereby RECOMMENDED that the Florida

3375Commission on Human Relations enter a Final Order dismissing the Petitions for

3387Relief in the above-styled cases.

3392ENTERED this 2nd day of May, 1990, in Tallahassee, Florida.



3406Hearing Officer

3408Division of Administrative Hearings

3412The DeSoto Building

34151230 Apalachee Parkway

3418Tallahassee, Florida 32399-1550

3421(904) 488-9675

3423Filed with the Clerk of the

3429Division of Administrative Hearings

3433this 2nd day of May, 1990.


3441John J. Chamblee, Jr.

3445Chamblee, Miles and Grizzard

3449202 Cardy Street

3452Tampa, FL 33606

3455Vernon T. Grizzard

3458Chamblee, Miles & Grizzard

3462116 South Monroe Street

3466Tallahassee, FL 32301

3469Sydney H. McKenzie III

3473General Counsel

3475Carl J. Zahner

3478Assistant General Counsel

3481Department of Education

3484Knott Building

3486Tallahassee, FL 32399

3489Lorene C. Powell,

3492Assistant General Counsel


3496208 W. Pensacola Street

3500Tallahassee, FL 32301

3503Ned N. Julian, Jr.

3507Sun Bank Building, Suite 22

3512Post Office Box 1330

3516Sanford, FL 32772

3519Tobe Lev

3521Egan, Lev & Siwica

3525P.O. Box 2231

3528Orlando, FL 32802

3531Norman Smith

3533Brinson, Smith & Smith

35371201 W. Emmett St.

3541Kissimmee, FL 32741

3544William H. Vogel,

3547Assistant Superintendent

3549Personnel and Administrative Services

3553P.O. Box 1948

3556Kissimmee, FL 32742-1948

3559Donald A. Griffin

3562Executive Director

3564Commission on Human Relations

3568325 John Knox Road

3572Building F, Suite 240

3576Tallahassee, FL 32399-1925

3579Dana Baird

3581General Counsel

3583Commission Human Relations

3586325 John Knox Road

3590Building F, Suite 240

3594Tallahassee, FL 32399-1925

3597Margaret Jones, Clerk

3600Commission on Human Relations

3604325 John Knox Road

3608Building F, Suite 240

3612Tallahassee, FL 32399-1925

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Date: 05/02/1990
Proceedings: Recommended Order
Date: 05/02/1990
Proceedings: Recommended Order (hearing held , 2013). CASE CLOSED.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Melbourne, Florida
Florida Commission on Human Relations

Related DOAH Cases(s) (9):

Related Florida Statute(s) (3):

Related Florida Rule(s) (1):