92-002499 Hirimandir Khalsa vs. Putnam County Status: Closed Recommended Order on Thursday, February 11, 1993.

Summary: Orthodox Sikh's turban, churidars, and other white garments must be tolerated by employing county. Discharge unlawful. FEES CASE 94-898F

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARIMANDIR KHALSA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2499

)

PUTNAM COUNTY, FLORIDA, )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

This matter came on for hearing in Palatka, Florida, before Robert T.

Benton, II, Hearing Officer of the Division of Administrative Hearings, on July

22, 1992. The Division of Administrative Hearings received the hearing

transcript on February 1, 1993. The attached appendix addresses previously

filed and numbered proposed findings of facts by number.

APPEARANCES

Matthew P. Farmer, Esquire

Farmer & Fitzgerald, P.A.

For Petitioner: 2910 Bay to Bay Boulevard Suite 214

Tampa, Florida 33629

Ronald E. Clark, Esquire

For Respondent: Post Office Box 2138

Palatka, Florida 32178-2138

STATEMENT OF THE ISSUE

Whether Putnam County terminated petitioner's employment on account of her

religion, and/or failed to make reasonable accommodation for petitioner's

religious observance or practice?

PRELIMINARY STATEMENT

In response to petitioner's complaint that Putnam County discriminated

against her on account of her religion, the Florida Commission on Human

Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF

DETERMINATION: NO CAUSE" issued October 11, 1991. Petitioner's request for

redetermination culminated in a "NOTICE OF REDETERMINATION: NO CAUSE" issued

February 14, 1992.

Petitioner has filed a form petition for relief from an unlawful employment

practice, pursuant to Rule 60Y-9.008, Florida Administrative Code, see Publix

Supermarkets, Inc. vs. Florida Commission on Human Relations, 470 So.2d 754

(Fla. 1st DCA 1985), which the FCHR transmitted to the Division of

Administrative Hearings on April 24, 1992, for a de novo determination, in

accordance with Section 120.57(1)(b)3., Florida Statutes (1991).

FINDINGS OF FACT

1. One of some 10,000 American-born Sikhs, Harimandir Kaur Khalsa

originally became involved with Sikhism, said to be one of the eight major

religions of the world, in 1979. Several years ago she took vows to cover her

hair, not to cut her hair, and to adhere to a daily spiritual practice called

sadhana. An Armidary Sikh, she was ordained a Sikh minister Christmas Day

1991. The parties stipulated to the sincerity of petitioner's religious

beliefs.

2. In part, her religious beliefs find expression in her attire. Orthodox

Sikhs wear turbans and churidars, a type of legging; and their clothing is

white. This mode of dress has symbolic religious significance for Sikhs

generally. Turbans are "mandatory." T.93. Dressed as an orthodox Sikh,

petitioner Khalsa appeared for a job interview with Putnam County's sanitation

director, Joseph Battillo, on or about August 23, 1990.

3. The interview had been arranged after Mrs. Khalsa responded to a

newspaper advertisement seeking a "Recycling Director for Putnam County." T.119.

Even before she saw the advertisement, she had read about the job and telephoned

to inquire. In the interview, Mrs. Khalsa did not tell Mr. Battillo that all

the clothes she owned were white, but she did tell him that the way she was

dressed was "always the way I dress." T.41. One of Ms. Khalsa's references told

the young lady in the Putnam County personnel department who called to inquire

about her that "Harimandir always dresses in white . . . because of her

religion." T.22.

4. Mr. Battillo understood that Mr. Khalsa wore a turban for religious

reasons, although he originally testified that he did not understand (T.122)

that the remainder of her outfit was also religiously compelled. (T.111) He

eventually conceded that she indicated she wore mostly white "in the context of

the conversation that she was a Sikh." T.132. Asked whether it was his

"reasonable understanding that the reason she wore white is because she was a

Sikh," he answered, "I guess you could assume that." Id.

5. The day after the interview she was surprised to be told over the

telephone that the job was hers. (Of six interviewees, she was Mr. Battillo's

second choice for the position.) Her experience with graphic arts was an

important qualification. Mr. Battillo felt there was some urgency in filling

the position: certain deadlines had to be met if grant moneys available to

Putnam County were not to be forfeited.

6. Petitioner started working for respondent on August 30, 1990, at an

annual salary of $14,400. On her first day on the job, Mr. Battillo summoned

her to his office, asked her to shut the door, and told her she would "have to

make a few changes" (T.45) in her appearance because "people would have a

problem with the way," id., she looked. She told him she did not believe it

would be a problem. In her job interview, she had suggested she "would have

instant recognition and people would be reminded when they saw [her] to

recycle." T.41.

7. When she was hired, Mrs. Khalsa bought an off-white suit, which she

wore the second day on the job. The following day, Mr. Battillo thanked her for

not wearing all white, again after summoning her to his office and ordering the

door closed. He told her she "look[ed] fine from the knees up . . . [but] that

the leggins had to go." T.48. He said that she needed to wear colors and that

"if you don't change the way you dress, you're not going to be allowed to do

your job." T.49. She told him she planned to get new shoes. After leaving his

office, she cried.

8. Mrs. Khalsa worked closely with Diane Shoeman, a high school teacher

who served as an educational consultant, for about ten hours, developing

curriculum on recycling for the Putnam County schools. They enjoyed a good

working relationship, which Mrs. Shoeman told Mr. Battillo at the time.

9. On September 18, 1990, when she was in his office on business, Mr.

Battillo told her she could not continue dressing as she had been, that it was

the same "as if an employee didn't wear a bra to work and he had to tell her to

wear a bra." T.52. He told her that, when he had worked in Sarasota, the

Mennonite women dressed plainly "but that they wore pastel colors. And couldn't

[petitioner] dress that way?" T.53. Mr. Battillo was adamant, and petitioner

left his office in tears. He granted her request for a half day off to shop for

clothes.

10. The day after she acquired a new pair of shoes, white hose and a blue

dress, Mrs. Khalsa wore them to work. When Mr. Battillo asked her if she was

comfortable dressed like that, she said she "could live with it" (T.69) even

though she felt she was compromising her practice as a Sikh. From then on, she

wore white hose rather than churidars as long as she worked for Putnam County,

afraid she would lose her job otherwise. The blue dress she wore every few

days, even though her mother-in-law was shocked when she first saw it.

11. Mrs. Khalsa met her September 30, 1990, deadline for purchasing

certain audiovisual equipment, and for completing numerous other assignments.

She drew on her experience as a graphic artist in designing or doing the layout

for bookcovers for school children, an educational activities book on recycling,

sun visors, bookmarks, decals, magnets, information posters and brochures for

which she both wrote the text and "d[id] the art work." T.64.

12. On October 2, 1990, the Monday after meeting the deadline (so avoiding

forfeiture of the grant), she was fired by Mr. Battillo, who explained, "I don't

like you and I don't like your turban." T.71 Mrs. Khalsa's manner of dress was

an important motivating factor for her discharge. During calendar year 1991,

Petitioner and her husband together earned approximately $6,000.

13. When he terminated her employment, Mr. Battillo also mentioned

friction with the printers with whom Mrs. Khalsa had been dealing. They

supposedly resented her asking for proofs, apparently a departure from past

practice under County contracts; and were perhaps embarrassed when she pointed

out that they had billed for work never done. T.94

14. When she began work, she was told she "had six months to learn

procedures." T.100. Mrs. Khalsa conscientiously sought to comply with County

purchasing policies, despite some confusion about just what the policies were in

certain particulars. The only "changes" she insisted on without processing

change orders were to assure that the county received what the printer had

originally agreed to supply, or the equivalent. T.105, 108-9.

15. At hearing, Mr. Battillo testified to complaints about music Mrs.

Khalsa listened to at work, but other employees listened to radios at work, and

the only other employee in the building where Mrs. Khalsa worked told her at the

time that he could not hear music from her office. Mr. Battillo once entered

her office to find incense burning, which she extinguished at his request, never

to rekindle on the premises. Once, she and her building mate disagreed on the

thermostat's setting, she closed her door, shut the cooling vents and opened her

windows, until told not to, when she promptly complied.

CONCLUSIONS OF LAW

16. Florida law forbids any employer, defined as any "person employing 15

or more employees for each working day in each 20 or more calendar weeks in the

current or preceding calendar year," Section 760.02(6), Florida Statutes (1991)

to discriminate on the basis of religion in discharging employees. Although a

subdivision of the state, Putnam County is an "employer," within the meaning of

Section 760.02 (5) and (6), Florida Statutes (1991). Department of Corrections

v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991).

17. The First Amendment "gives no one the right to insist that in pursuit

of their own interests others must conform their conduct to his own religious

necessities." Otten v. Baltimore Ohio R. Co., 205 F.2d 58, 61 (2nd Cir. 1953).

Compare Estate of Thornton v. Calder, 472 U.S. 703, 86 L.Ed.2d 557, 105 S.Ct.

2914 (1985) with Hobbie v. Unemployment Appeals Com'n, 480 U.S. __ 94 L.Ed.2d

190, 108 S.Ct. __ (1987).

18. But, under federal statutory law, it is "an unlawful employment

practice for an employer not to make reasonable accommodations, short of undue

hardship, for the religious practices of his employees . . . ." Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 53 L.Ed.2d 113, 125, 97 S.Ct. 2264

(1977). There are, moreover, constitutional restrictions on governmental

employers' interference with their employees' free exercise of religion.

Prima Facie Case

19. The United States Supreme Court, in Ansonia Board of Education vs.

Philbrook, 479 U.S. 60, 67, 93 L.Ed.2d 305, 314, 107 S.Ct. 367, 371 (1986),

pretermitted the question of what constitutes a prima facie case of religious

discrimination. Under decisions of lower federal courts, an employee seeking

redress for discharge based on religious discrimination has the burden to

establish a prima facie case by proving that:

(1) She had a bona fide religious belief;

(2) She informed her employer of her

religious views and that they were in conflict

with her responsibilities as an employee; and

(3) she was discharged because of her

observance of that belief.

Proctor v. Consol. Freightways Corp. of Delaware, 795 F.2d 1472, 1475 (9th Cir.

1986). To the same effect, see Anderson v. General Dynamics Convair Aerospace

Division, 589 F.2d 397, 401 (9th Cir. 1978) cert. den. 442 U.S. 921, 61 L.Ed.2d

290, 99 S.Ct. 2848 (1979) and the decision in Turpen v. Missouri-Kansas-Texas

R.Co., 736 F.2d 1022, 1026 (5th Cir. 1984).

20. Ever since the decision in School Board of Leon County v. Hargis, 400

So.2d 103 (Fla. 1st DCA 1987), federal cases decided under Title VII have been

looked to in order to flesh out Florida's Human Rights Act. Florida Department

of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991);

Department of Corrections v. Chandler, supra; O'Loughlin v. Pinchback, 579 So.2d

788 (Fla. 1st DCA 1991); Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269

(Fla. 2nd DCA 1986). The Florida Civil Rights Act of 1992 does not apply to

conduct occurring prior to October 1, 1992. Ch. 92-177 Sec. 13, Laws of Florida

(1992).

Reasonable Accommodation

21. Petitioner met her initial burden to establish a prima facie case

here. Respondent's evidence of other peccadilloes, real or imagined,

notwithstanding, she showed that observance of her religious beliefs cost her

her job. See Price Waterhouse v. Hopkins, 490 US 228 (1989). The "burden was

thereafter upon . . . [respondent] to prove . . . [it] made good faith

efforts to accommodate . . . [petitioner's] religious beliefs and, if those

efforts were unsuccessful, to demonstrate that they were unable reasonably to

accommodate h[er] beliefs without undue hardship," Anderson vs. General Dynamics

Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978) cert. den. 442

U.S. 921, 61 L.Ed.2d 290, 99 S.Ct. 2848 (1979), although "(i)f an employer can

show that no accommodation was possible without undue hardship, it makes no

sense to require that he engage in a futile act." E.E.O.C. v. Townley

Engineering & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988).

22. "The term `reasonable accommodation' is a relative term and cannot be

given a hard and fast meaning." Redmond v. GAF Corp., 524 F.2d 897, 902 (7th

Cir. 1978). But courts have, in other cases, sanctioned redress for discharge

of employees whose recurring weekly religious obligations have conflicted with

work requirements rendering them unable to perform their work duties during

prescribed hours altogether. Brown v. General Motors Corp., 601 F.2d 956 (8th

Cir. 1979); Kentucky Com'n on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350

(Ky. 1982) cert. den. 77 L.Ed.2d 1369, 103 S.Ct. 3115 (1983); North Shore

University Hospital v State Human Rights Appeal Board, 82 A.D.2d 799, 439

N.Y.S.2d 408 (S.Ct. 1981). Contra Trans World Airlines, Inc. v. Hardison, 432

U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977); United States v. City of

Albuquerque, 545 F.2d 110 (10th Cir. 1976); Murphy v. Edge Memorial Hospital,

550 F.Supp. 1185 (N.D. Ala. 1982); New Hanover Human Relations Com'n v. Pilot

Freight Carriers, Inc., 351 S.E.2d 560 (Ct. Appt. N.C. 1987). Similarly, the

courts have also split where accommodation with recurring holy days was at

issue. Compare Brener v. Diagnostic Center Hospital, 671 F.2d 141 (5th Cir.

1982) with Edwards v. School Board of City of Norton, Va., 483 F.Supp. 620

(W.D.Va.). In the present case, petitioner asked for no time off, only that she

be permitted to dress in accordance with the dictates of her religion.

23. Mrs. Khalsa was not hired as an airline stewardess or commissioned as

a military officer. Saying "that the military is, by necessity, a specialized

society separate from civilian society[,]' Parker v. Levy, 417 US 733, 743. .

.," Goldman v. Weinberger, 475 U.S. 503, 506-7, 89 L.Ed.2d 478, 106 S. Ct.

1310, (1986), Chief Justice Rehnquist delivered the opinion of the Court which

upheld the Air Force's right to forbid an Orthodox Jew's wearing a yarmulke

while on duty. The special needs of the military notwithstanding, one of the

four dissenting justices rejoined:

If the Free Exercise Clause of the First

Amendment means anything, it must mean that

an individual's desire to follow his or her

faith is not simply another personal

preference, to be accommodated by government

when convenience allows. Indeed, this Court

has read the Clause, I believe correctly, to

require that "only those interests of the

highest order and those not otherwise served

can overbalance legitimate claims to the free

exercise of religion." Wisconsin v Yoder, 406

US 205, 215, 32 L Ed 2d 15, 92 Ct 1526

(1972). In general, government "may justify

an inroad on religious liberty [only] by

showing that it is the least restrictive means

of achieving some compelling state interest."

Thomas v. Review Board of Indiana Employment

Security Div., 450 US 707, 718, 67 L Ed 2d

624, 101 S Ct 1425 (1981); see also Sherbert

v. Verner, 374 US 398, 10 L Ed 2d 965, 83 S

Ct 1790 (1963). The clear import of Sherbert,

Yoder, and Thomas is that this showing must be

made even when the inroad results from the

"evenhanded" application of a facially neutral

requirement. "Rules are rules" is not by

itself a sufficient justification for

infringing religious liberty.

475 US at 525 (Blackmun, J.) Employees of the Putnam County sanitation

department do not, of course, comprise "a specialized society separate from

civilian society," nor were they at the time of the hearing subjected to the

"outfitting of personnel in standardized uniforms . . . [to] encourage a sense

of hierarchical unity by tending to eliminate outward individual distinctions

except for those of rank." 475 U.S. at 508.

24. Even convicts are protected from imposition of prison authorities'

views on personal appearance, where religious expression is involved, unless

restrictions are "reasonably related to legitimate penological interests,"

Turner v. Safley, 107 S. US 2254, 2261 (1987), and evenhandedly applied. See

Reed v. Faulkner, 842 F. 2d 960 (7th Cir. 1988) (Rastafarian prisoner entitled

to try to prove hair length regulation interfered with free exercise of his

religion.)

25. It has been said that the "accommodation issue by definition arises

only when a neutral rule of general applicability conflicts with the religious

practices of a particular employee." Trans World Airlines, Inc. v. Hardison,

432 U.S. 63, 87, 53 L.Ed.2d 113, 133, 97 S.Ct. 2264 (Marshall, J., dissenting).

But here it is difficult to decipher a neutral rule Putnam County sought to

apply generally. Perhaps Mr. Battillo's testimony that "the nature of the job

as Recycling Coordinator would put her in front of groups of all ages and sizes

and . . . an image had to be projected that would promote this new recycling

program" (T.122) came as close as anything. The record does not support any

inference, however, that Mrs. Khalsa's "image" in any way interfered with

promotion of the County's recycling program.

26. Even when the employer is not an arm of government, and, therefore,

free from the constraints the First Amendment imposes on government, the "burden

of attempting an accommodation rests with the employer rather than the

employee." E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610, 615 (9th

Cir. 1988). In the present case, Mr. Battillo asked Mrs. Khalsa to acquire a

new wardrobe at her expense, and in effect, to put aside her religious beliefs.

He suggested no accommodation on Putnam County's part. With respect to the

conflict between Mrs. Khalsa's religious practice and her putative duty as an

employee to dress in accordance with Mr. Battillo's wishes, respondent failed to

do "anything to accommodate her religious beliefs." Anderson vs. General

Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978).

27. Putnam County proved no compelling state interest in requiring that

Mrs. Khalsa dress other than as a Sikh, nor that this requirement was the least

restrictive means to any permissible end. Even if Putnam County were not a

governmental employer and even if Putnam County had sought to apply a neutral

rule of general applicablity, its failure to attempt an accommodation

constitutes a violation of the Human Rights Act of 1977, unless no accommodation

was possible, without undue hardship. "'[U]ndue Hardship' must mean present

undue hardship, as distinguished from anticipated or multiplied hardship."

Haring vs. Blumenthal, 471 F.Supp. 1172, 1182 (D.D.C. 1979). "[U]ntil facts or

circumstances arise from which it may be concluded that there can no longer be

an accommodation without undue hardship, the employee's religious practices are

required to be tolerated." Haring vs. Blumenthal, 471 F.Supp. 1172, 1182

(D.D.C. 1979).

RECOMMENDATION

It is, therefore,

RECOMMENDED:

That the Florida Commission on Human Relations order Putnam County to

reinstate petitioner and pay her back wages, along with reasonable attorney's

fees and costs.

DONE and ENTERED this 11th day of February, 1993, at Tallahassee, Florida.

___________________________________

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of February, 1993.

APPENDIX

Petitioner's proposed findings of facts Nos. 1-11, 13, 15, 33 and 34 have

been adopted, in substance, insofar as material.

Petitioner's proposed findings of fact Nos. 12, 14 and 35 pertain to

subordinate matters.

Respondent's proposed findings of fact were not numbered.

COPIES FURNISHED:

Matthew P. Farmer, Esquire

Farmer & Fitzgerald, P.A.

2910 Bay to Bay Boulevard

Suite 214

Tampa, FL 33629

Ronald E. Clark, Esquire

P.O. Box 2138

Palatka, FL 32178-2138

Margaret Jones, Clerk

Human Relations Commission

325 John Knox Road

Building F. Suite 240

Tallahassee, FL 32303-4149

Dana Baird, Esquire

General Counsel

Human Relations Commission

325 John Knox Road

Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

COMMISSION ON HUMAN RELATIONS

HARIMANDIR KHALSA,

Petitioner, EEOC Case No. 15D900757

FCHR Case No. 90-2617

v. DOAH Case No. 92-2499

FCHR Order No. 94-007

PUTNAM COUNTY, FLORIDA, (ASSIGNED DOAH

Fees Case 94-0898F)

Respondent.

_______________________________/

ORDER FINDING THAT AN UNLAWFUL EMPLOYMENT PRACTICE

OCCURRED; REMANDING THE MATTER TO THE HEARING OFFICER FOR

DETERMINATION OF MONETARY DAMAGES, ATTORNEY'S FEES AND COSTS

Preliminary Matters

Petitioner Harimandir Khalsa filed a complaint of discrimination with the

Commission pursuant to the Florida Human Rights Act of 1977, Sections 760.01-

760.10, Fla. Stat. (1991). Petitioner alleged that Respondent Putnam County,

Florida, discriminated against her by terminating her on the basis of her

religion and by failing to make reasonable accommodation for her religious

observance or practice. The allegations of discrimination set forth in the

complaint were investigated. On October 11, 1991, the Executive Director issued

a Determination: No Cause.

Petitioner filed a request for redetermination. The request was denied.

Thereafter, Petitioner filed a petition for relief from an unlawful employment

practice and the case was transmitted to the Division of Administrative Hearings

(DOAH) for a formal proceeding. Fla. Admin. Code Rule 60Y-4.016(1). On

February 11, 1993, DOAH Hearing Officer Robert T. Benton, II, entered a

Recommended Order.

Public deliberations were held on November 16, 1993, in Tallahassee,

Florida, before this panel of Commissioners.

Respondent excepted to the hearing officer's failure to make specific

findings with respect to Petitioner's ability to perform her job, namely,

failure to: 1) maintain working relationships with vendors; 2) maintain a

working relationship with fellow employees; 3) comply with County procedures;

and 4) promote a positive image.

Upon consideration, Respondent's exceptions are denied. The hearing

officer considered the entire record but found more weight and credibility in

Petitioner's testimony and evidence. The hearing officer made detailed findings

of fact regarding the ultimate finding of whether or not Respondent discharged

Petitioner based upon her religious belief, practice or observance in violation

of section 760.10, Florida Statutes (1991). See, e.g., FOF #'s 8, 11-15, which

specifically address Petitioner's performance. Respondent noted that the

Hearing Officer should have analyzed the case under the Burdine/Chandler

framework. The hearing officer viewed this case as a mixed- motive case and

properly applied the Price Waterhouse legal framework.

Petitioner filed a motion for front pay and one exception to the

Recommended Order regarding the year of termination. Petitioner's exception

(termination year - 1989) is supported by competent substantial evidence and is

accordingly adopted by the panel. The panel denies Petitioner's motion for

front pay and adopts the hearing officer's recommendation of reinstatement,

finding competent substantial evidence to support the recommendation.

FINDINGS OF FACT

We have considered the hearing officer's findings of fact. There is

competent substantial evidence to support each factual finding made by the

hearing officer except for the year in which Petitioner was terminated. The

evidence demonstrates that Petitioner was terminated in 1989 rather than 1990.

Except for the finding regarding the year in which Petitioner was

terminated, that portion of the findings which establishes liability for

unlawful discrimination is supported by competent substantial evidence. We

adopt the liability portion of the hearing officer's findings of fact.

CONCLUSIONS OF LAW

That portion of the conclusions holding that unlawful discrimination was

proven is correct. We adopt the liability portion of the hearing officer's

conclusions of law.

We further conclude, however, that this matter must be REMANDED to the

hearing officer for the calculation of affirmative relief, with all the

associated questions, either legally or factually. In respect to amounts of

backpay, length of backpay, deductions from backpay, fringe benefits and salary

increases attendant to backpay, costs, and amounts for attorney's fees, this

case is remanded to DOAH.

Ms. Khalsa has certainly not waived her rights or otherwise defaulted by

failing to submit evidence on these amounts at the initial DOAH hearing. In

that there are certain presumptions associated with backpay, it is likewise

proper to give Respondent its opportunity to present evidence for reducing the

amount of backpay or for increasing the amounts for deduction from backpay.

That portion of the Recommended Order explicitly awarding backpay and other

affirmative relief, but in nonspecific amounts, does not comply with essential

requirements of law. The fundamental legal requirements are for the DOAH

hearing officer to submit precise amounts for the relief, explaining along the

way the reasons for the amounts. Pursuant to Section 120.57(1)(b)9., Florida

Statutes, rejection and remand is authorized, where remand is only for

calculation of relief and associated issues.

In Sennello v. Reserve Life Insurance Company, 667 F. Supp. 1498 (S.D. Fla.

1987), the court explains that it is the trial court's duty, after a finding of

discrimination, to place the injured party in the position in which she would

have been absent the discriminatory action. The DOAH hearing officer functions

as the trial court and thus the duty to calculate amounts for relief is with the

DOAH hearing officer.

In Department of Corrections v. Chandler, No. 87-2124 (Fla. 1st DCA March

28, 1988), the court ruled that a Commission order without a calculated amount

for backpay is a nonfinal agency order, which is not [normally] subject to

judicial review. The right to judicial review is conferred upon each party by

Section 120.68, Florida Statutes. Consequently, the DOAH hearing officer is

obligated to submit a Recommended Order with qualities which will enable the

Commission to issue a final agency order. Otherwise, noncompliance with the

essential requirements of law occurs (at the DOAH stage of the process).

Admittedly, reopening and remanding a DOAH case are prohibited in the

general course of things. An exception is made, however, where unusual

circumstances are present. In Florida Department of Transportation v. J.W.C.

Company, 396 So.2d 778 (Fla. 1st DCA 1981), the court points out that a remand

may be done in a case where the DOAH hearing officer recommends an additional

proceeding and the recommendation is based upon evidence submitted during the

initial section 120.57(1) proceeding. The court referred to Public Bank of St.

Cloud v. State, 351 So.2d 73 (Fla. 1st DCA 1977), where remand was approved,

i.e., the DOAH hearing officer had recommended an additional proceeding for the

purpose of allowing the applicant to amend its application for a bank charter.

In addition, it has been customary in employment discrimination cases to

bifurcate the trial, the first for liability and when necessary, the second for

damages. See Collier v. City of Freeport, 48 FEP Cases 441 (N.D. Illinois

1988); Smallwood v. United Airlines, Inc., 728 F.2d 614 (4th Cir. 1984); Baker

v. City of Detroit, 24 FEP Cases 1569 (E.D. Michigan 1978); Poole v. Williams, 7

FEP Cases 102 (S.D. Texas 1974) and Newmon v. Delta Airlines, Inc., 7 FEP Cases

26 (N.E. Georgia 1973).

REMAND

An additional formal proceeding in accordance with the requirements of

section 120.57(1), Florida Statues (1993), is appropriate with respect to

determinations of monetary amounts for back pay, fringe benefits, costs,

attorney's fees and associated issues. Accordingly, the panel remands this

matter to the hearing officer for the conduction of such formal proceeding.

It is SO ORDERED:

Dated this 10th day of February, 1994.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:_________________________________

Commissioner Geraldine Thompson,

Panel Chairperson; and

Commissioner Gerald Richman.

Commissioner Whitfield Jenkins, concurring in part and dissenting in part.

I concur with the majority holding in this case with respect to each

finding of fact and conclusion of law except for the issue of reinstatement. I

respectfully dissent from the majority regarding reinstatement being the most

appropriate relief. In my opinion, reasonable front pay is the more appropriate

relief and should be awarded based upon the facts in this case.

FILED this 15th day of February, 1994, in Tallahassee, Florida.

____________________________________

Sharon Moultry

Clerk of the Commission

Copies Furnished:

Robert T. Benton, II, DOAH Hearing Officer

Rhonda Bass and Dana Baird, Legal Advisors for Commission Panel

Matthew Farmer, Esquire

Farmer & Fitzgerald, P.A.

2910 Bay to Bay Boulevard

Suite 214

Tampa, Florida 33629

Mark Levitt, Esquire

Hogg, Allen, Norton & Blue

324 S. Hyde Park Ave.

Suite 350

Tampa, Florida 33606