Opinion
No. 1D21-3866
05-24-2023
MONRO d/b/a McGee Tire & Auto, Appellant, v. Jeff B. PARSONS, Appellee.
Dean A. Morande of Carlton Fields, P.A., West Palm Beach; and Jeffery A. Meyer of Nixon Peabody, LLP, Jericho, NY, for Appellant. Ryan M. Barnett of Whibbs Stone Barnett, P.A., Pensacola, for Appellee.
Dean A. Morande of Carlton Fields, P.A., West Palm Beach; and Jeffery A. Meyer of Nixon Peabody, LLP, Jericho, NY, for Appellant.
Ryan M. Barnett of Whibbs Stone Barnett, P.A., Pensacola, for Appellee.
Rowe, C.J. Monro appeals a final order from the Florida Commission on Human Relations. The Commission awarded Jeff B. Parsons back pay after determining that his former employer, Monro d/b/a McGee Tire & Auto, discriminated against him on the basis of age. Monro raises two issues on appeal.
First, Monro argues that the Commission reversibly erred when it found that Parsons mitigated his damages by seeking substantially equivalent employment. Because competent, substantial evidence supports the Commission's finding, we affirm.
Second, Monro challenges the Commission's award of back pay to Parsons. Monro argues that Parsons waived any entitlement to back pay when he voluntarily resigned his position at Monro as part of an earlier agreement settling his claims against Monro for workers’ compensation benefits. We agree that Parsons’ voluntary resignation from his employment waived his entitlement to back pay and therefore set aside the Commission's back pay award.
Facts
Parsons owned and operated a tire shop in Pensacola until 2016, when he sold the business to Monro. As part of the sale, Parsons agreed to sign an agreement not to compete with Monro. The agreement prohibited Parsons from "operating a tire and/or automotive repair and service facility" within two hundred miles of Monro's store for four years. After completing the sale of his business, Parsons worked for Monro as a salesperson until he injured his back while loading tires on a truck at work.
After Parsons received workers’ compensation benefits for medical treatment of his job-related injuries, as well as indemnity benefits, Parsons’ doctor placed him on light-duty and released him to return to work. When Parsons sought to return to work, Monro informed him that it no longer had a position available for him. Parsons’ last day of work at Monro was March 18, 2018.
Parsons's workers’ compensations claims remained pending for several more months. But three months later, Monro and Parsons entered into a settlement agreement to resolve the pending claims. As part of the agreement, Parsons agreed to waive reinstatement to his position at Monro and to forgo any future employment with Monro.
Shortly after entering the workers’ compensation settlement, Parsons filed an age discrimination claim against Monro with the Commission. After a hearing before an administrative law judge on Parsons’ age discrimination claim, the ALJ concluded that Monro discriminated against Parsons based on his age when it hired a younger person willing to do the same job for less pay and failed to reinstate him to his position following his injury. The Commission adopted the ALJ's recommended order, but entered an interlocutory order remanding the case to the ALJ to determine the amount of back pay owed.
At the evidentiary hearing on the back pay claim, Parsons asserted that he was entitled to compensation because after his employment with Monro ended, he sought substantially equivalent employment. Even so, Parsons testified that he did not accept managerial positions with two other tire firms because he thought accepting work with those firms would violate the terms his noncompete agreement. Parsons interpreted the agreement to restrict him from owning or working for a competing tire sales business within two hundred miles of Monro's business. He was willing to branch out and seek employment in the tire manufacturing business, but he could not find any open positions in his area. And unwilling to relocate, Parsons chose to work with his wife at her small business.
Monro disputed that the terms of the noncompete agreement prevented Parsons from working for a competing tire sales business. Rather, Maureen Mulholland, Monro's chief legal counsel, explained that the purpose of the noncompete agreement was to prevent Parsons from owning a competing business. Even so, she conceded that the agreement restricted Parsons from "operating" a business and did not specifically limit the restrictive covenant to "ownership." But in her view, the words "operating" and "owning" conveyed the same meaning and did not prevent Parsons from simply working for a competitor.
The ALJ rejected Mulholland's interpretation of the noncompete agreement. The ALJ concluded that it was reasonable for Parsons to interpret the restriction on "operating" a tire business to prevent him from accepting one of the management positions that he was offered by other tire sales stores in the Pensacola area. The ALJ also found that Parsons sought to mitigate his damages by making a diligent effort to obtain employment consistent with his experience in the commercial tire business.
Monro filed exceptions to the ALJ's recommended order, challenging the ALJ's factual findings about Parsons’ efforts to mitigate his damages. Monro also argued that the ALJ erred when it failed to conclude that Parsons forfeited any right to back pay when he signed a letter voluntarily resigning from his position at Monro as part of his workers’ compensation settlement agreement.
After reviewing the ALJ's recommended order and the exceptions filed by Monro, the Commission entered a final order accepting the ALJ's factual findings and legal conclusions. The Commission awarded Parsons $370,701.72 in back pay (including interest) and $11,296.04 in attorney's fees. This timely appeal follows.
Standard of Review
We have jurisdiction to review Monro's appeal from the Commission's final order. See §§ 760.11(13), Fla. Stat. ("Final orders of the commission are subject to judicial review pursuant to s. 120.68."); 120.68, Fla. Stat. (2019). In conducting review of final agency action under section 120.68, this Court "may set aside an order of an administrative agency if the agency depended on any finding of fact not supported by competent, substantial evidence in the record; committed a material error in procedure; erroneously interpreted the law; or abused its discretion." Chappell Schs., LLC v. Dep't of Child. & Fams. , 332 So. 3d 1060, 1063 (Fla. 1st DCA 2021).
Analysis
Monro argues that the Commission reversibly erred in awarding Parsons back pay because Parsons waived any claim to it when he voluntarily agreed to resign from his position at Monro. We agree. Section 760.10(1), Florida Statutes, provides that it is unlawful for an employer to discriminate against an individual on the basis of age. Among the remedies available to an employment discrimination plaintiff is an award of back pay. See § 760.11(5), Fla. Stat. (2019) ; Akouri v. State of Fla. Dep't of Transp. , 408 F.3d 1338, 1343 (11th Cir. 2005) (defining back pay as the difference between wages earned and the wages an individual would have earned but for discrimination); Sch. Bd. of Palm Beach Cnty. v. Groover , 337 So. 3d 799, 809 (Fla. 4th DCA 2022) (holding that plaintiffs discriminated against in the employment context are normally entitled to reinstatement and back pay).
At oral argument, Monro argued for the first time on appeal that the Commission reversibly erred in awarding any back pay to Parsons. But Monro argued in its briefs that Parsons forfeited only the back pay awarded for the period following Parson's agreement to voluntarily resign from his employment at Monro. Monro never argued that Parsons’ voluntary resignation waived his entitlement to all back pay. Because Monro did not make this argument in briefing, the argument is waived. Rosier v. State , 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) ("[A]n appellate court must confine its decision to the issues raised in the briefs.").
Even so, an employer's liability for back pay is limited and "shall not accrue from a date more than 2 years prior to the filing of a complaint with the commission." § 760.11(9), Fla. Stat. (2019). More importantly, back pay is not always available as a remedy. See Patterson v. Browning's Pharmacy & Healthcare, Inc. , 961 So. 2d 982, 983 (Fla. 5th DCA 2007) (explaining that back pay is not available for the period when a claimant fails to diligently seek new employment); Dascott v. Palm Beach Cnty. , 988 So. 2d 47, 49 (Fla. 4th DCA 2008) (holding that back pay is not an available remedy under the Sunshine Act). An award of back pay is available to remedy "claims of unlawful actual or constructive discharge." Pace v. Alfa Mut. Ins. Co. , Case No. 2:13-CV-697-WKW, 2016 WL 4419290, *3 (M.D. Ala. 2016). But when a claimant voluntarily resigns his employment, he waives any right to back pay unless he can prove that he was constructively discharged. See Bourque v. Powell Elec. Mfg. Co. , 617 F.2d 61, 66 n.8 (5th Cir. 1980) ; Univ. of S. Fla. v. Tucker , 374 So. 2d 16, 17–18 (Fla. 2d DCA 1979).
The ALJ concluded that Monro constructively discharged Parsons before he signed the workers’ compensation settlement agreement on June 17, 2019. Based on his constructive discharge, Monro would have been entitled to back pay or reinstatement of his employment. But Parsons waived any claim to back pay or reinstatement, when, as part of the settlement of his workers’ compensation claims, he agreed not to seek reinstatement of his employment with Monro and to forgo any future employment with Monro. Put differently, Parsons voluntarily resigned from his position and thus forfeited any claim to back pay. But because Monro did not argue for reversal of the entire back pay award, we must affirm the Commission's award of back pay for the period before Parsons signed the workers’ compensation settlement agreement—June 19, 2019. As to Monro's unwaived challenge to the back pay award, we set aside the portion of the final order awarding back pay for the period beginning June 19, 2019, and we remand for entry of an order consistent with this opinion.
AFFIRMED in part, SET ASIDE in part, and REMANDED .
Winokur and Nordby, JJ., concur.