School Bd. of Leon County v. Weaver, 88-2728
| Decision Date | 18 January 1990 |
| Docket Number | No. 88-2728,88-2728 |
| Citation | 556 So.2d 443 |
| Parties | 55 Fair Empl.Prac.Cas. (BNA) 1562, 58 Ed. Law Rep. 1071, 15 Fla. L. Weekly D224 The SCHOOL BOARD OF LEON COUNTY, Florida, Appellant, v. James WEAVER, Appellee. |
| Court | Florida District Court of Appeals |
C. Graham Carothers, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellant.
Curley R. Doltie, Tallahassee, for appellee.
Appellant, the School Board of Leon County, Florida (Board), seeks review of an administrative order finding that appellant had committed an unlawful employment practice in violation of the Human Rights Act of 1977 1 by failing to hire the appellee, James Weaver, for a full-time teaching position. We affirm in part, reverse in part and remand.
Appellee, a black male, initially filed a pro se complaint with the Florida Commission of Human Relations (Commission) in which he alleged he was denied employment with the Board, because of his sex and race. A lengthy investigation initiated by the Commission resulted in a "no cause" determination. Thereafter the complaint proceeded to formal hearing before a hearing officer with the Department of Administrative Hearings (DOAH). The DOAH hearing officer issued a recommended order, finding that appellee had presented a prima facie case of discrimination and that appellant had failed to present a legitimate, nondiscriminatory reason for not hiring appellee. He thereupon concluded that appellant had committed an unlawful employment practice and recommended that the Commission grant appellee such relief as was necessary to rectify the discrimination, including, but not limited to, entry of a final order directing appellant to end its discriminatory practices and hire appellee to a full-time teaching position.
Both parties filed exceptions to the recommended order--appellant basically contending that appellee had failed to establish a prima facie case, and appellee arguing that the hearing officer failed to grant him an award of back pay. After several hearings were held on the exceptions raised, the Commission entered its final order, which did not precisely adopt the order recommended, but nevertheless concluded that appellant had committed an unlawful employment practice. The Commission ordered appellant to cease and desist from discriminating on the basis of race and sex, to offer appellee the next available full-time position for which he was qualified, and to pay appellee back pay with interest, and attorney's fees and costs.
Appellant raises five issues on appeal. The first issue is whether there is competent, substantial evidence to uphold the conclusion that appellant committed an unlawful employment practice. After reviewing the record, we agree that the evidence supports the Commission's determination that appellee established a prima facie case of employment discrimination, 2 and that appellant failed to provide a legitimate, nondiscriminatory reason for failing to hire appellee. We therefore affirm this issue without further discussion.
The second and fifth issues raised by appellant were directed to the Commission's award of back pay, including the interest awarded thereon. In his nonfinal order the DOAH hearing officer made no express award of back pay, rather he recommended
that the Commission grant the Petitioner [appellee] such relief as is necessary to rectify the Respondent's [appellant's] discrimination against him to include but not limited to a Final Order directing the Respondent to desist from its discriminatory practices, to hire Petitioner in a full-time position, and to award him attorney['s] fees.
Following the hearing, Weaver specifically raised for the first time the issue of his entitlement to back pay and submitted to the hearing officer a proposed finding of fact and conclusion of law, representing that he should be awarded money damages, including back pay and interest thereon. Replying to this proposal, the hearing officer stated:
14. Petitioner lost the wages he would have earned from Respondent. Petitioner was not employed in other positions during the period. However, the statute apparently does not permit recovery of economic damages, therefore, 14 is irrelevant.
In concluding that the Act does not authorize back pay awards, the hearing officer misconstrued what we consider to be plainly stated to the contrary. Section 760.10(13) provides in part: "No liability for back pay shall accrue from a date more than 2 years prior to the filing of a complaint with the commission." Additionally, as this court observed in School Bd. of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981), Florida's Human Rights Act is patterned after Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2), and the Civil Rights Act has been construed in the federal sector as requiring an award making the complaining party whole as a result of the discriminatory practice, by being provided, among other things, back pay. See Storey v. City of Sparta Police Dep't, 667 F.Supp. 1164, 1173 (M.D.Tenn.1987).
Nonetheless, under the circumstances, we are compelled to reverse that portion of the Commission's order awarding Weaver back pay with interest. Weaver presented no evidence at the hearing relating to economic damages caused by the discriminatory actions of the Board. What the Commission essentially did after reviewing the order was to reopen the hearing after all the evidence had been presented and a recommended order entered. As this court has stated in a number of decisions, see, e.g., Henderson Siqns v. Florida Dep't of Transp., 397 So.2d 769 (Fla. 1st DCA 1981); Florida Dep't of Transp. v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981), the agency is conferred no such authority to act. Specifically, we observed in J.W.C. Co., that section 120.57(1)(b)9, Florida Statutes (now renumbered section 120.57(1)(b)10), 3 forbids, among other things, an agency from rejecting or...
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