01-000550F United Services Automobile Association vs. Anthony Cirruzzo Status: Closed Recommended Order on Tuesday, May 8, 2001.

Summary: Case law establishes that defendant in a Section 760.11(4)(b) action is not entitled to costs as a "prevailing party" where Petitioner voluntarily dismisses case prior to adjudication on the merits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNITED SERVICES AUTOMOBILE )

ASSOCIATION, )

)

Petitioner , )

)

vs. ) Case No. 01-0550F

)

ANTHONY CIRRUZZO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in

this case on April 5, 2001, in Tampa, Florida, before Lawrence

P. Stevenson, a duly-designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner : John W. Campbell, Esquire

Constangy, Brooks & Smith, LLC

Post Office Box 1840

Tampa, Florida 33601-1840

For Re spondent : Anthony Cirruzzo, pro se

7692 Deer Foot Drive

New Port Richey, Florida 34653

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether

Petitioner is entitled to costs as a prevailing party pursuant

to Section 760.11, Florida Statutes.

PRELIMINARY STATEMENT

This matter was opened by the Division of Administrative

Hearings ("DOAH") pursuant to a Motion to Tax Costs (the

"Motion") filed by Petitioner, United Services Automobile

Association ("USAA"), on February 5, 2001, in the case of

Cirruzzo v. United Services Automobile Association , DOAH Case

No. 00-2929. By order dated January 9, 2001, DOAH Case

No. 00-2929 was closed, pursuant to Mr. Cirruzzo’s notice of

voluntary dismissal filed on January 5, 2001. The Motion

requests costs in the amount of $1,707.50, including fees for

service of summons to witnesses, court reporter fees for

witness depositions, and witness fees. The matter was set for

hearing on April 5, 2001.

At the formal hearing, USAA presente d no sworn testimony.

USAA’s Exhibits 1 through 3, documenting the costs for which

payment is sought, were admitted into evidence. USAA also

filed the depositions of Anthony Cirruzzo and John Luke

Carscallen, taken in DOAH Case No. 00-2929, as well as

Mr. Cirruzzo’s answers to interrogatories in that case, all of

which were considered by the undersigned without objection.

Mr. Cirruzzo testified on his own behalf. He offered no

exhibits at the hearing. His post-hearing submission

contained Attachments A through G, to which no objection was

offered by USAA and which were therefore considered by the

undersigned.

No transcript was provided. Both parties timely filed

proposed recommended orders.

FINDINGS OF FACT

Based on the oral and documentary e vidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. On July 17, 2000, the Florida Commission on Human

Relations forwarded to DOAH a request for formal

administrative hearing filed by Anthony Cirruzzo, alleging

that USAA, his employer, had discriminated against him because

of his age. DOAH Case No. 00-2929 was opened and consolidated

with two related age discrimination proceedings, Knopfel v.

United Services Automobile Association , DOAH Case No. 00-2314,

and Henry v. United Services Automobile Association , DOAH Case

No. 00-2931. Mr. Cirruzzo was also one of the plaintiffs in a

lawsuit filed in the United States District Court, Middle

District of Florida, on July 25, 2000, claiming age

discrimination against USAA.

2. On June 21, 2000, USAA filed an answer and

affirmative defenses to the petition in DOAH Case No. 00-2929.

In its answer, USAA requested a judgment awarding it

attorneys' fees and costs pursuant to Florida law.

3. On No vember 15, 2000, counsel for Mr. Cirruzzo filed

a motion for leave to withdraw as counsel. On November 30,

2000, USAA filed a motion to sever and administratively

dismiss the petitions of Knopfel and Henry, pursuant to a

settlement reached between USAA and those persons. By order

dated December 7, 2000, the motion to sever and dismiss was

granted. By order dated December 8, 2000, the motion to

withdraw as counsel was granted.

4. Also on December 8, 2000, the undersigned entered an

order requiring Mr. Cirruzzo to notify this tribunal of his

intent to proceed in the matter, either on his own behalf or

represented by new counsel. On December 15, Mr. Cirruzzo

filed a response stating his intent to proceed in the matter

pro se . By Order dated December 28, 2000, the case was set

for hearing on January 31 through February 3, 2001, in Tampa,

Florida.

5. On January 5, 2001, Mr. Cirruzzo filed a notice of

voluntary dismissal of DOAH Case No. 00-2929. By order dated

January 9, 2001, the file in DOAH Case No. 00-2929 was closed.

6. USAA seeks costs in the amount of $1,410.00 for the

transcription of the deposition of Mr. Ciruzzo taken on

October 3, 2000, and the deposition of his supervisor at USAA,

John Luke Carscallen, taken on October 5, 2000.

7. The transcript of Mr. Cirruzzo’s partial deposition

is 137 pages long. During the deposition, counsel for USAA

questioned Mr. Cirruzzo regarding his age discrimination

claim, but also as to whether Mr. Cirruzzo was discriminated

against because of his gender and national origin, matters not

alleged in DOAH Case No. 00-2929. Gender and national origin

discrimination were alleged by Mr. Cirruzzo in a later filed

complaint filed with the Florida Commission on Human

Relations, and in a federal lawsuit filed in December 2000.

8. Mr. Carscallen’s deposition contains questions as to

gender and national origin discrimination, as well as the age

discrimination at issue in DOAH Case No. 00-2929.

9. At the hearing, Mr. Cirruzzo argued that the costs

for these depositions should not be fully taxed in this

proceeding because large portions of them dealt with issues

relevant only to his federal gender and national origin

discrimination case.

10. On or about February 8, 2001, USAA filed in the

federal court a request for a shortened discovery period in

the federal lawsuit. The request states that DOAH Case No.

00-2929 was "nearly identical" to the federal case, that the

parties had already engaged in extensive discovery of the

issues in the DOAH case, and that repeating that discovery in

the federal case would be a waste of time, money and judicial

resources. The record does not indicate whether or how the

federal court ruled on this request.

11. Thus, USAA does not dispute that the depositions

will be useful in other phases of its litigation against

Mr. Cirruzzo. Nonetheless, the depositions were taken in DOAH

Case No. 00-2929. As the defendant in multiple cases, USAA

acted reasonably and efficiently by covering in a single

deposition all the issues raised by Mr. Cirruzzo. It would be

unreasonable to expect USAA to separate the motives for the

discrimination from the common set of facts and persons

involved in Mr. Cirruzzo’s allegations regarding his

employment at USAA, and to take a separate deposition for each

alleged motive. The costs for the depositions are properly a

part of this case.

12. USAA seeks an award of costs in the amount of

$260.00 for service of summons and subpoenas, and $37.50 in

witness fees in DOAH Case No. 00-2929. These costs were

documented, reasonable, and all related to obtaining documents

and records related to Mr. Cirruzzo’s claims, or to securing

the presence of witnesses identified by Mr. Cirruzzo as

possessing relevant information. These costs are properly

part of this case.

13. Mr. Cirruzzo testified that his voluntary dismissal

of DOAH Case No. 00-2929 was premised on his understanding

that USAA had agreed that it would absorb its own costs if the

case were dismissed. As evidence therefor, Mr. Cirruzzo

offered a "Confidential Settlement Agreement and Release of

All Claims" drafted by counsel for USAA, in which USAA offered

to pay a portion of Mr. Cirruzzo’s legal fees and to absorb

its own fees and costs in exchange for Mr. Cirruzzo’s dropping

all claims and causes of action against USAA relating to his

employment. USAA did not disclaim having made this offer, but

rightly pointed out that Mr. Cirruzzo had rejected it. This

draft proposal provides no reasonable basis for Mr. Cirruzzo’s

claim of an agreement with USAA that the company would absorb

its costs.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Subsection 120.57(1), Florida Statutes.

15. This proceeding is govern ed by Section 760.11,

Florida Statutes, subsection (6) of which provides:

(6 ) Any administrative hearing brought

pursuant to paragraph (4)(b) [providing for

an administrative hearing] shall be

conducted under ss. 120.569 and 120.57.

The commission may hear the case provided

that the final order is issued by members

of the commission who did not conduct the

hearing or the commission may request that

it be heard by an administrative law judge

pursuant to s. 120.569(2)(a). If the

commission elects to hear the case, it may

be heard by a commissioner. If the

commissioner, after the hearing, finds that

a violation of the Florida Civil Rights Act

of 1992 has occurred, the commissioner

shall issue an appropriate proposed order

in accordance with chapter 120 prohibiting

the practice and providing affirmative

relief from the effects of the practice,

including back pay. If the administrative

law judge, after the hearing, finds that a

violation of the Florida Civil Rights Act

of 1992 has occurred, the administrative

law judge shall issue an appropriate

recommended order in accordance with

chapter 120 prohibiting the practice and

providing affirmative relief from the

effects of the practice, including back

pay. Within 90 days of the date the

recommended or proposed order is rendered,

the commission shall issue a final order by

adopting, rejecting, or modifying the

recommended order as provided under ss.

120.569 and 120.57. The 90-day period may

be extended with the consent of all the

parties. An administrative hearing

pursuant to paragraph (4)(b) must be

requested no later than 35 days after the

date of determination of reasonable cause

by the commission. In any action or

proceeding under this subsection, the

commission, 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. (Emphasis added)

16. Review of case law in Florida federal courts

indicates that USAA is not entitled to an award of costs in

this proceeding because it is not a "prevailing party." In

Chacon v. Ezekiel , 957 F. Supp. 1265 (S.D. Fla. 1997), the

court, relying on Christianburg Garment Co. v. EEOC , 434 U.S.

412 (1978) and Marquart v. Lodge 837 , 26 F.3d 842 (8th Cir.

1994), found that a Title VII defendant may be termed a

"prevailing party" only where the court determines the

plaintiff's claim to be without foundation. 957 F. Supp. At

1267. The court held that in a case in which the pleadings do

not clearly reveal that the plaintiff's claim was frivolous or

unreasonable, and in which the plaintiff voluntarily dismissed

her claim before an adjudication on the merits, there was no

basis to deem the defendant a "prevailing party. Id. Accord

DeShiro v. Branch , 183 F.R.D. 281, 285-86 (M.D. Fla.

1998)(There must be a judicial determination on the merits in

order for there to be a prevailing party; voluntary dismissal

of a Title VII claim means that defendant cannot be deemed a

"prevailing party.")

17. The court's holding applies to this proceeding. No

showing has been made that Mr. Cirruzzo's claim was without

foundation, frivolous, unreasonable, or groundless, and

Mr. Cirruzzo voluntarily dismissed his claim prior to a

hearing on the merits. USAA has not established its

entitlement to costs as a "prevailing party" pursuant to

Section 760.11, Florida Statutes.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of

law, it is recommended that the Florida Commission on Human

Relations enter a final order denying USAA's petition for

costs incurred in DOAH Case No. 00-2929.

DONE AND ENTERED this 8th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of May, 2001.

COPIES FURNISHED:

John W. Campbell, Esquire

Constangy, Brooks & Smith, LLC

Post Office Box, 1840

Tampa, Florida 33601-1840

Anthony Cirruzzo

7692 Deer Foot Drive

New Port Richey, Florida 34653

Azizi M. Coleman, Clerk

Florida Commission on Human Relations

Department of Management Services

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Department of Management Services

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any

exceptions to this recommended order should be filed with the

agency that will issue the final order in this case.