Syfert Injury Law Firm

Your Trusted Partner in Personal Injury & Workers' Compensation

Call Now: 904-383-7448

2018 Georgia Code 45-19-38 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 45-19-38 Case Law from Google Scholar Amendments to OCGA 45-19-38

TITLE 45 PUBLIC OFFICERS AND EMPLOYEES

Section 19. Labor Practices, 45-19-1 through 45-19-46.

ARTICLE 2 FAIR EMPLOYMENT PRACTICES

45-19-38. Findings, conclusions, and order of special master generally; order to cease and desist from unlawful practice and to take remedial action.

  1. If the special master determines that the respondent has not engaged in an unlawful practice, the special master shall state the special master's findings of fact and conclusions of law and shall issue a final order, within 30 days after the hearing unless, for good cause shown, such time is extended by the Governor, dismissing the complaint.
  2. If the special master determines that the respondent has engaged in an unlawful practice, the special master shall state the special master's findings of fact and conclusions of law and shall issue a final order, within 30 days after the hearing unless, for good cause shown, such time is extended by the Governor, requiring the respondent to cease and desist from the unlawful practice and to take such remedial action as in the judgment of the special master will carry out the purposes of this article.
  3. Remedial action under this Code section may include but is not limited to:
    1. Hiring, reinstatement, or upgrading of employees with or without back pay. No award of back pay shall be ordered pursuant to this article with respect to any period more than two years prior to the date of the filing with the administrator of the complaint with respect to which such award of back pay is ordered. Interim earnings, unemployment benefits, workers' compensation benefits, or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable;
    2. Admission or restoration of individuals to participate in a guidance program, apprenticeship training program, on-the-job training program, or other occupational training or retraining program and the utilization of objective criteria in the admission of individuals to such programs;
    3. The extension to all individuals of the full and equal enjoyment of the advantages, facilities, privileges, and services of the respondent;
    4. Reporting as to the manner of compliance;
    5. Posting notices in conspicuous places in the respondent's place of operation in the form prescribed by the administrator or special master;
    6. Restoration of employment benefits not otherwise specified in this Code section; or
    7. Recommending to the Governor that the respondent be required to adopt and file with the administrator, within a specified time limitation, for the administrator's approval a plan to fill vacancies or hire new employees in a manner to eliminate or reduce imbalance in employment with respect to race, color, disability, religion, sex, national origin, or age.
  4. Any monetary award ordered pursuant to this article shall be for actual damages only.
  5. The respondent shall comply without delay with the terms and conditions of such a final order.

(Ga. L. 1978, p. 859, § 16; Ga. L. 1983, p. 1097, § 1; Ga. L. 1995, p. 1302, § 10.)

JUDICIAL DECISIONS

Attorney's fees.

- There is no relationship between O.C.G.A. § 45-19-38(d) and O.C.G.A. § 45-19-39(c). The reference to "this article" in § 45-19-38(d) relates only to the remedial award of the special master; the provision of § 45-19-39(c) with respect to attorney's fees provides a remedy over and above that of the special master and is not governed by § 45-19-38(d). Robinson v. Department of Cors., 211 Ga. App. 134, 438 S.E.2d 190 (1993).

O.C.G.A. § 45-19-38(c), in context, inherently authorizes the special master to award attorney's fees. Robinson v. Department of Cors., 211 Ga. App. 134, 438 S.E.2d 190 (1993).

Award of attorney's fees discretionary.

- O.C.G.A. § 45-19-38(d) vests the special master with sufficient discretion to award attorney fees as a part of making the claimant whole for the injuries suffered, even apart from O.C.G.A. § 45-19-39(c). Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985).

Award of attorney's fees only when incurred.

- Appellant was not authorized to recover attorney's fees because appellant had incurred none, and no successful claimant in a Fair Employment Practices Act (FEPA), O.C.G.A. § 45-19-20 et seq., case can recover attorney's fees when none were actually incurred unless and until the General Assembly authorizes a recovery. Finney v. Department of Cors., 263 Ga. 301, 431 S.E.2d 361 (1993).

Monetary damages available.

- Georgia Whistle Blower Statute (Act), O.C.G.A. § 45-1-4, does not provide a remedy of monetary damages for public employees as: (1) the legislature did not specifically include a monetary damages remedy, such as the remedy provided by the Georgia Fair Employment Practices Act, specifically O.C.G.A. § 45-19-38(c); (2) the limitations of statutes waiving sovereign immunity have to be strictly followed; and (3) to "set aside" an action, the language used in the Act, consistent with the accepted definition of "set aside," requires the action to be vacated, cancelled, and annulled. Hughes v. Ga. Dep't of Corr., 267 Ga. App. 440, 600 S.E.2d 383 (2004).

Issue of remedial action is separate from attorney's fees.

- The issue of entitlement to recovery of attorney's fees under O.C.G.A. § 45-19-39(c) is a separate issue from entitlement to a recovery of attorney's fees in a special master proceeding. Finney v. Department of Cors., 263 Ga. 301, 434 S.E.2d 45 (1993).

Incumbents not to be removed to remedy wrong.

- When an order instating the person discriminated against requires an "innocent person" to step down from this position, alternative remedies must be considered because of the expected resistance from and sense of unfairness to the incumbents of jobs who were not themselves engaged in discrimination and who had settled expectations in their jobs. Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985).

Special master's findings held without probative evidentiary support.

- See Council v. Board of Regents, 186 Ga. App. 629, 368 S.E.2d 167, cert. denied, 186 Ga. App. 917, 368 S.E.2d 167 (1988).

Cited in Georgia Dep't of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Administrative Law, § 422 et seq. 15 Am. Jur. 2d, Civil Rights, § 15 et seq.

C.J.S.

- 14A C.J.S., Civil Rights, §§ 739, 740.

ALR.

- Recovery of damages for emotional distress resulting from racial, ethnic, or religious abuse or discrimination, 40 A.L.R.3d 1290.

Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Requiring apology as "affirmative action" or other form of redress under State Civil Rights Act, 85 A.L.R.3d 402.

Right of prevailing defendant to recover attorney's fees under § 706(k) of Civil Rights Act of 1964 (42 USCS § 2000e-5 (k)), 134 A.L.R. Fed 161.

Reductions to back pay awards under Title VII of Civil Rights Act of 1964 (42 USCS § 2000e et seq.), 135 A.L.R. Fed 1.

Cases Citing O.C.G.A. § 45-19-38

Total Results: 1  |  Sort by: Relevance  |  Newest First

Copy

Finney v. Dep't of Corr., 434 S.E.2d 45 (Ga. 1993).

Cited 15 times | Published | Supreme Court of Georgia | Jul 15, 1993 | 263 Ga. 301, 93 Fulton County D. Rep. 2534

...The Court of Appeals granted appellee's application for a discretionary appeal and reversed. Department of Corrections v. Finney, 203 Ga. App. 445 (416 SE2d 805) (1992). This court granted appellant's petition for a writ of certiorari. 1. Nothing in OCGA § 45-19-38 expressly authorizes a special master to award reasonable attorney's fees to a successful claimant. Compare OCGA § 45-19-39 (c), which expressly authorizes the superior court, in its discretion, to award "reasonable attorney's fees and the costs of litigation" in connection with judicial review. However, OCGA § 45-19-38 does implicitly authorize a special master to award reasonable attorney's fees to a successful claimant....
...ful FEPA claimant. To the contrary, it limited a successful FEPA claimant's recovery by providing that " [a]ny monetary award ordered pursuant to this article [, OCGA § 45-19-20 et seq.,] shall be for actual damages only." (Emphasis supplied.) OCGA § 45-19-38 (d)....
...Permitting a recovery of reasonable attorney's fees by the successful claimant who is not contractually obligated to pay counsel would permit a monetary recovery of more than the "actual damages" incurred and would be in contravention of the express language of OCGA § 45-19-38 (d)....
...mbly. The primary rule of statutory construction is to ascertain the legislative intent. The legislative intent to limit a successful FEPA claimant to a recovery of such reasonable attorney's fees as were actually incurred is clear. Pursuant to OCGA § 45-19-38, a special master is implicitly authorized to award reasonable attorney's fees to a successful FEPA claimant who actually incurred attorney's fees in pursuit of the claim....
...In no event, however, would the special master be authorized to award attorney's fees to a successful FEPA claimant who has incurred no attorney's fees whatsoever. "Any monetary award ordered pursuant to this article [, OCGA § 45-19-20 et seq.,] shall be for actual damages only." OCGA § 45-19-38 (d)....
...Moreover, this state has traditionally followed the rule that attorney fees are not recoverable by a prevailing party except where specifically provided for by contract or statute. Harrison v. Harrison, 208 Ga. 70 (1) (65 SE2d 173) (1951). Nevertheless, I agree with the majority's choice to follow Kilmark's holding that OCGA § 45-19-38 implicitly authorizes a special master to award reasonable attorney fees to a successful complainant....
...Today the majority's decision effectively denies many Georgians the key to the courthouse door and needlessly sows the seeds of future discontent. Today I feel much regret. I, therefore, dissent. 1. In determining the interplay between the reasonable attorney fee provisions of OCGA § 45-19-38 (c) and the actual damages provision of § 45-19-38 (d), the plurality has completely ignored OCGA § 45-19-21....
...the policies embodied in Title VII of the federal Civil Rights Act of 1964 (78 Stat. 241), as amended by the Equal Employment Opportunity Act of 1972 (86 Stat. 103). Thus, the General Assembly has directed that it enacted subsections (c) and (d) of § 45-19-38 to provide for the execution of the policies of Title VII. As § 45-19-38 (c) and (d) relate to the remedies available for unlawful discriminatory practices and to awards of reasonable attorney fees, let us examine the policies of the corresponding provisions of Title VII....
...ng a plaintiff's civil rights. [3] Moreover, in Blum, the Court held that a client who was represented without a fee by a private non-profit legal organization was entitled to recover reasonable attorney fees. 465 U. S. at 892-895. Subsection (d) of § 45-19-38 unquestionably tracks the policies of Title VII regarding the remedies for the unlawful discrimination itself — to limit those remedies to ones designed to make the complainant whole with regard to his or her employment and to prohibit remedies designed to punish the employer. Moreover, to construe § 45-19-38 (d) to limit attorney fees to those actually incurred unquestionably defeats the policies of the reasonable attorney fee provisions of § 45-19-38 (c)....
...This difficulty in attracting competent counsel will also be encountered by FEPA complainants who desire to choose their own attorney. Undoubtedly, many such complainants must rely on contingent-fee arrangements. However, as a complainant's monetary damages under FEPA will generally relate to back pay only, see § 45-19-38 (c) (1), many attorneys will refuse FEPA cases if they are precluded from seeking reasonable attorney fees at prevailing rates if their client *308 prevails....
...t prevailing rates. If contingent-fee agreements served as an absolute limit to the amount of attorney fees, attorneys employed under such agreements might focus their energies on monetary damages to the detriment of important non-monetary remedies, § 45-19-38 (c) (1-7), that might benefit not only the claimant but society at large....
...ng incentive for lawyers to work the system, not make the system work. Given the policy considerations outlined above, it is unreasonable to conclude, as does the plurality, that our General Assembly enacted a reasonable attorney fee provision under § 45-19-38 (c), with the stated purpose of effectuating the policy of Title VII, § 45-19-21 (a) (1), and then enacted § 45-19-38 (d) to defeat the very policy behind the grant of attorney fees. The only reasonable construction is that the General Assembly enacted § 45-19-38 (d) to effectuate the policy of Title VII of limiting the remedies for the unlawful discrimination itself to those designed to make the complainant whole with regard to the complainant's employment....
...OCGA § 45-19-27 (3). Moreover, there is simply nothing in §§ 45-19-27 *309 (3) or 45-19-37 (i) that states that a complainant who elects to be represented by an attorney appointed by the administrator may not thereafter seek attorney fees under § 45-19-38 (c)....
...2 of the plurality opinion, which remands the case to the Court of Appeals for it to address whether the appellant is entitled to recover attorney fees under OCGA § 45-19-39 (c) for the proceedings in superior court. First, although the plurality concludes that OCGA § 45-19-38 (d) limits the special master's power to award attorney fees, that subsection should not be construed to limit the superior court's power to award attorney fees under § 45-19-39 (c). As § 45-19-38 (d) is part of a Code section that sets forth the authority of a special master and does not deal with the authority of a superior court, I would construe § 45-19-38 (d) to be limited to "monetary awards ordered [by a special master] pursuant to this article." Any other construction would be completely at odds with the mandate given the courts by § 45-19-21. Moreover, construing § 45-19-38 (d) to limit the superior court's authority to award attorney fees would place a further burden on the administrator's ability to hire attorneys to represent complainants....