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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEWIS RUSHTON, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1551

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

______________________________)

KENNETH C. PARKER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3090

)

SCHOOL BOARD OF OSCEOLA )

COUNTY and DEPARTMENT OF )

EDUCATION, )

)

Respondents. )

______________________________)

EDWARD K. REILLY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3091

)

SCHOOL BOARD OF OSCEOLA )

COUNTY and DEPARTMENT OF )

EDUCATION, )

)

Respondents. )

______________________________)

WILLIAM HARLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3076

)

SCHOOL BOARD OF OSCEOLA )

COUNTY and DEPARTMENT OF )

EDUCATION, )

)

Respondents. )

______________________________)

JOHN E. PIERCE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3581

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

______________________________)

FRANKLIN C. GORMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3579

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

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

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

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

APPEARANCES

The following counsel filed briefs:

For Lewis John J. Chamblee, Jr.

Rushton: Chamblee, Miles and Grizzard

202 Cardy Street

Tampa, Florida 33606

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

Pierce and FEA/United

Franklin C. 208 West Pensacola Street

Gorman: Tallahassee, Florida 32399-1700

For Department Sydney H. McKenzie III, General Counsel

of Education: Carl J. Zahner, Assistant General Counsel

State Board of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

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

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

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

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

Education Association/United and Florida Teaching Profession/National Education

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

PRELIMINARY STATEMENT

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

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

Department of Education promulgated a rule requiring mandatory retirement of

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

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

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

unlawful employment discrimination based on age.

Two unions representing the terminated bus drivers challenged the mandatory

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

challenge was styled, Education Association/United and Florida Teaching

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

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

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

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

28, 1989. At the hearing, counsel for all the Petitioners appeared and,

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

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

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

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

Stipulation and various exhibits previously filed provide the basis for the

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

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

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

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

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

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

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

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

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

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

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

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

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

recovered, if they are to be recovered at all.

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

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

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

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

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

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

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

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

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

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

undersigned since that letter.

FINDINGS OF FACT

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

760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of

Section 760.10(1).

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

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

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

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

760.02(6).

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

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

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

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

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

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

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

school boards.

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

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

this reassignment and experienced the resulting reduction in pay beginning the

1988-89 school year.

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

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

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

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

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

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

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

88-5703, against DOE. On September 7, 1988, the Florida Commission on Human

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

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

prior to requiring him to retire at age 70.

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

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

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

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

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

employment has not been upheld."

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

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

exercise of delegated legislative authority.

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

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

Petitioners. This rule challenge was styled, Florida Education

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

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

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

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

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

Lev & Siwica, represented the intervenor.

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

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

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

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

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

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

was abated.

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

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

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

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

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

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

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

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

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

solely on chronological age."

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

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

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

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

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

Petitioner was so notified by his respective school board.

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

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

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

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

the subject proceeding and such other proceedings as were necessary or

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

Board and DOE.

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

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

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

the Florida Teaching Profession/National Education Association.

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

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

constituting relief otherwise available under Section 760.10. Similar

settlements between the other Petitioners and their respective school boards

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

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

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

18. Section 760.10(13) provides:

In the event that the [Florida Commission on

Human Relations], in the case of a complaint

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

unlawful employment practice has occurred, it

shall issue an order prohibiting the practice

and providing affirmative relief from the

effects of the practice, including reasonable

attorney's fees. Upon such notice as the

commission . . . may require, such order, or

any subsequent order upon the same complaint

. . . may provide relief for all individuals

aggrieved by any such unlawful employment

practice. . . .

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

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

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

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

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

been an unlawful employment practice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

benefits.

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

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

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

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

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

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

24. The Petitioners could have prosecuted their age discrimination claims

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

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

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

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

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

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

of the Rule Challenge resulted in administrative efficiency and significant

savings in legal fees.

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

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

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

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

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

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

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

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

amici to litigate the same jurisdictional questions involved in the state

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

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

proposition that "compensation for participation in a related administrative

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

courts."

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

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

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

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

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

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

There, we noted that for the time spent

pursuing optional administrative proceedings

properly to be included in the calculation of

a reasonable attorney's fee, the work must be

"useful and of a type ordinarily necessary'

to secure the final result obtained in the

litigation."

106 S. Ct. at 3096.

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

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

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

action, for which fees were awarded.

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

necessary in obtaining the favorable results in the individual age

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

of the administrative effort and litigation expenses that would have been

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

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

Challenge duplicative of the work involved in the individual cases.

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

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

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

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

windfall.

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

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

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

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

appropriate circumstances, ignoring technical distinctions between the parties.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

properly named on judgment for attorney's fees).

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

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

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

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

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

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

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

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

the union; the fact is that he did not.

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

are not entitled to the recovery of fees from DOE.

RECOMMENDATION

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

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

Relief in the above-styled cases.

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

___________________________________

ROBERT E. MEALE

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 2nd day of May, 1990.

COPIES FURNISHED:

John J. Chamblee, Jr.

Chamblee, Miles and Grizzard

202 Cardy Street

Tampa, FL 33606

Vernon T. Grizzard

Chamblee, Miles & Grizzard

116 South Monroe Street

Tallahassee, FL 32301

Sydney H. McKenzie III

General Counsel

Carl J. Zahner

Assistant General Counsel

Department of Education

Knott Building

Tallahassee, FL 32399

Lorene C. Powell,

Assistant General Counsel

FEA/United

208 W. Pensacola Street

Tallahassee, FL 32301

Ned N. Julian, Jr.

Sun Bank Building, Suite 22

Post Office Box 1330

Sanford, FL 32772

Tobe Lev

Egan, Lev & Siwica

P.O. Box 2231

Orlando, FL 32802

Norman Smith

Brinson, Smith & Smith

1201 W. Emmett St.

Kissimmee, FL 32741

William H. Vogel,

Assistant Superintendent

Personnel and Administrative Services

P.O. Box 1948

Kissimmee, FL 32742-1948

Donald A. Griffin

Executive Director

Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, FL 32399-1925

Dana Baird

General Counsel

Commission Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, FL 32399-1925

Margaret Jones, Clerk

Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, FL 32399-1925