08-002575 Sandra T. Columbus vs. Mutual Of Omaha Status: Closed Recommended Order on Monday, December 29, 2008.

Summary: Insurance agent was not an employee of insurance company whose products she had sold; agent`s employment discrimination complaint against company thus must be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA T. COLUMBUS, )

)

Petitioner, )

)

vs. ) Case No. 08-2575

)

MUTUAL OF OMAHA, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

October 15, 2008, by video teleconference at sites in Lauderdale

Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth Athanasakos, Esquire

2631 East Oakland Park Boulevard

Suite 205

Fort Lauderdale, Florida 33306-1618

For Respondent: Kelly Cruz Brown, Esquire

Daniel Hernandez, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Tallahassee, Florida 32301-1866

STATEMENT OF THE ISSUE

Whether Petitioner was an employee of Respondent's at the

time of the alleged unlawful employment practices described in

the employment discrimination complaint Petitioner filed with

the Florida Commission on Human Relations (FCHR).

PRELIMINARY STATEMENT

On or about February 8, 2007, Petitioner dual-filed a

charge of discrimination (Complaint) with the federal Equal

Employment Opportunity Commission (EEOC) and FCHR, alleging that

Respondent had discriminated against her based on her "sex"

(female) and "national origin" (Greek) and, in addition, had

retaliated against her. In her Complaint, Petitioner gave the

following "particulars":

1. During [my] tenure as an Insurance

Agent, Ron Green, Assistant General Manager,

subjected me to varying terms and conditions

of employment and he harassed me because of

my national origin, Greek, and my sex,

female. I was subsequently terminated in

retaliation for complaining about the

unlawful conduct.

2. The Respondent failed to take prompt

remedial action to stop the discriminatory

conduct.

3. I believe that I have been discriminated

against because of my national origin,

Greek[,] and my sex, female, in violation of

Title VII of the Civil Rights Act of 1964,

as amended and specifically, section 704(a)

prohibiting retaliation.

On April 22, 2008, the FCHR, following the completion of

its investigation of the Complaint (which "focused on [its]

jurisdiction over [the matter]"), issued a Notice of

Determination: No Jurisdiction.

Petitioner, on or about May 22, 2008, filed with the FCHR a

Petition for Relief, in which she alleged that "Respondent ha[d]

violated the Florida Civil Rights Act of 1992 , [a]s [a]mended,

in the manner specifically described below":

Discrimination on [the basis of] national

origin

Sexual discrimination

Retaliation- Complained to Mr. Chojnacki,

GM[,] & Mr. Ron Green retaliated against me.

On May 27, 2008, the FCHR referred the matter to DOAH for

the assignment of an administrative law judge to "conduct all

necessary proceedings required under the law and submit

recommended findings to the [FCHR]."

The undersigned was subsequently assigned the case. On

June 4, 2008, he issued an order advising the parties that the

final hearing in this case would be held on August 7, 2008.

On July 9, 2008, Respondent filed an Unopposed Motion to

Reschedule/Continue Hearing Date and an Unopposed Motion to

Bifurcate. In the latter motion, Respondent stated the

following:

Counsel for the parties agree that the issue

of whether the Petitioner was an employee is

a threshold issue, which must be resolved

before the secondary issue of whether the

Respondent committed the unlawful employment

practices alleged in the Charge of

Discrimination.

Counsel for the parties further agree that

the threshold and secondary issues should be

bifurcated in order to simplify the

proceedings, reduce costs, and to further

convenience and judicial economy. Counsel

for the parties agree that a bifurcated

hearing would require less time, far fewer

witnesses, far less evidence, and it could

eliminate the need for a hearing on the

secondary issue[s].

On July 10, 2008, the undersigned issued an order

continuing the final hearing in this case and a separate order

on the motion to bifurcate. The latter order provided, in

pertinent part, as follows:

Upon consideration, Respondent's Unopposed

Motion to Bifurcate Issues is granted. A

hearing will first be held on the

"threshold" issue of "whether the Petitioner

was an employee" of Respondent's at the time

of the alleged unlawful employment

practices. The date, time, and location of

this hearing will be announced by subsequent

order. No hearing on the "secondary" issue

of "whether the Respondent committed the

unlawful employment practices alleged in the

Charge of Discrimination" will be held

before this "threshold" [issue] is resolved.

A hearing on the "threshold" issue of "[w]hether Petitioner was

an employee of Respondent's at the time of the alleged unlawful

employment practices" was subsequently scheduled to be held on

October 15, 2008.

On October 6, 2008, the parties filed a Joint Prehearing

Stipulation, which contained the following "[s]tatement of

[f]acts that are admitted" (Stipulations of Fact):

1. Petitioner was licensed as a life and

life and health insurance agent by the

Florida Department of Financial Services.

2. Respondent is authorized to transact

insurance in the State of Florida.

3. Respondent contracts with and appoints

licensed insurance agents to sell insurance

on its behalf.

4. During December 2004 through January

2005, Petitioner completed a mandatory

course regarding the transaction of

insurance and took a state examination.

5. The business of insurance is highly

regulated.

6. Prior to becoming an agent with

Respondent, Petitioner was familiar with the

concept of being paid by commissions but not

in the insurance field.

7. Petitioner was appointed by Respondent

to sell life and health insurance and

annuities on behalf of Respondent.

8. On or about March 31, 2005, Petitioner

met with Mr. Chojnacki, General Manager of

Respondent.

9. Petitioner completed and signed a

"Statement of Qualifications-Agent

Candidate" for OMAHA on April 1, 2005.

10. The "Statement of Qualifications-Agent

Candidate" is not an employment application.

11. Petitioner signed a document called

"Agent Agreement" with Respondent with an

effective date of April 27, 2005.

12. The "Agent Agreement" gave Petitioner

the right to terminate the "Agent Agreement"

at any time by giving written notice to

Respondent.

13. Petitioner did not read the "Agent

Agreement" before signing it.

14. Petitioner paid Respondent for

prospective insurance customer leads.

15. Petitioner's current home address and

signature appears on a document entitled

"Errors & Omissions Program Agreement."

16. Petitioner did not read the "Errors &

Omissions Program Agreement" before signing

it.

17. Petitioner was responsible for securing

and keeping in effect any necessary

insurance licenses to represent Respondent

as an agent.

18. Petitioner was charged by Respondent

for any customer prospects she obtained from

Respondent.

19. Respondent did not pay Petitioner a

commission on an insurance policy she sold

until Respondent issued the insurance policy

to the policyholder. The is the usual

manner of doing business in the insurance

field.

20. Petitioner did not receive paid sick

leave from Respondent.

21. Petitioner did not receive paid

vacation from Respondent.

22. Petitioner received a Form 1099 MISC

Statement on Non-Employee Compensation

Earnings for 2006 from Respondent.

23. Petitioner was responsible for

withholding her own federal personal income

taxes while an agent of Respondent['s].

24. Petitioner was responsible for

withholding her own social security taxes

while an agent of Respondent['s].

25. Petitioner purchased her own life and

disability insurance policies from

Respondent.

26. Petitioner was paid by Respondent a

commission for the life and disability

insurance policies referenced in paragraph

25 above.

27. After Petitioner terminated her Agent

Agreement with Respondent, Petitioner

stopped paying these policies and they

lapsed for non-payment of premium.

28. Petitioner was not reimbursed for

mileage by Respondent for travel associated

with meeting clients.

29. Due to the nature of the business,

Petitioner as well as other agents at her

office location, worked from home from time

to time.

30. Petitioner was not told by Respondent

that working from home was prohibited.

31. Petitioner's signature appears on

Petitioner's Medicare Part D Certification

and Coventry Medicare Part D Plan forms.

32. Petitioner sold one Medicare Part D

Plan.

33. Petitioner received a computer

allowance from Respondent.

34. Petitioner signed Respondent's document

entitled "Financial Profiles Forecaster

Schedule."

35. Petitioner signed Respondent's document

entitled "Computer Software License

Amendment."

36. Petitioner was not required to file any

time sheets with Respondent to account for

her time.

37. Petitioner was not required by

Respondent to clock in or clock out or to

account for her time as there was no time

clock in that office nor was anyone required

to prepare any time slips.

38. Petitioner used a cubicle located at

Respondent's District Office located at 2240

Woolbright Road, Ste. 400, Boynton Beach, FL

33426.

39. Petitioner paid self-employment tax in

years 2005 and 2006.

40. On February 10, 2006, Petitioner

terminated her agent contract with

Respondent.

41. On February 8, 2007, Petitioner filed a

complaint with the Equal Employment

Opportunity Commission ("EEOC") and the

Florida Commission on Human Relations

("FCHR")[,] a complaint alleging that

Respondent discriminated against her based

on ethnic origin and sex and that Respondent

also retaliated against her.

42. On February 9, 2007, Petitioner was

advised by the EEOC that her Complaint had

been transferred to the FCHR.

43. After an investigation, the FCHR issued

a Determination: No Jurisdiction and Notice

of Determination on April 22, 2008.

44. On May 22, 2008, Petitioner filed a

Petition for Relief with attachment.

45. On May 27, 2008, the case was

transmitted by the FCHR to the Division of

Administrative Hearings.

On October 8, 2008, Respondent filed a Notice of Correction

of Scrivener's Error made in that portion of the Joint

Prehearing Stipulation containing Respondent's position

statement.

On October 13, 2008, the parties filed a pleading

containing the following "additional prehearing stipulations":

1. Petitioner received IRS Form 1099s from

Respondent for years 2005 and 2006 (see

attached Exhibit A).

2. Petitioner never received a W-2 form

from Respondent.

3. The deposition of Carolyn Mickley may be

used by the parties in lieu of her live

testimony at the October 15, 2008 hearing in

the above-styled cause.

As noted above, the hearing on the above-described

"threshold" jurisdictional issue in this case was held on

October 15, 2008, as scheduled.

Five witnesses gave live testimony at the hearing:

Petitioner, Victoria Hughes, Neal Morien, Michael Chojnacki, and

Howard Everette. In addition, 36 exhibits were offered and

received into evidence: Joint Exhibit 1 (which was the

transcript of the deposition of Carolyn Mickley); Petitioner’s

Exhibits 1 and 2; and Respondent’s Exhibits 1 through 33).

At the close of the evidentiary portion of the hearing, the

undersigned, on the record, set a December 8, 2008, deadline for

filing proposed recommended orders.

The Transcript of the final hearing (consisting of two

volumes) was filed with DOAH on November 12, 2008.

Respondent and Petitioner filed their Proposed Recommended

Orders on December 8 and 9, 2008, respectively.

On December 8, 2008, Respondent filed a motion requesting

that the undersigned take official recognition of the provisions

of Sections 626.015(3) and 626.112(1)(a), Florida Statutes, and

Florida Administrative Code Rule 69O-150.018. No response to

the motion has been filed. Upon consideration, the motion is

granted.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made to supplement

and clarify the extensive factual stipulations set forth in the

parties' Joint Prehearing Stipulation and their October 13,

2008, pleading 2 :

1. Petitioner is a college graduate with a communications

degree.

2. She has held a Florida life, variable annuity, and

health insurance agent (2-15) license issued by the Department

of Financial Services since March 8, 2005.

3. Respondent's home office is located in Omaha, Nebraska.

4. At all times material to the instant case, Respondent

had a divisional office located at 2240 Woolbright Road, Suite

400, Boynton Beach, Florida (Boynton Beach Office) staffed by a

general manager (Michael Chojnacki), a district sales manager

(Ronald Green), and two secretaries (Victoria Hughes and Carolyn

Mickley).

5. Mr. Chojnacki, Mr. Green, Ms. Hughes, and Ms. Mickley

were salaried employees of Respondent's paid by check issued by

the home office. They enjoyed employee benefits that included

vacation time; sick leave; health, vision, and dental coverage;

disability and life insurance; and a retirement plan.

6. These benefits were described in an employee handbook

that were given to each of Respondent's employees.

7. Mr. Chojnacki was responsible for overseeing the day-

to-day operations of the Boynton Beach Office, including

insurance application review and processing and agent

recruitment.

8. In late March 2005, Petitioner contacted Mr. Chojnacki

by telephone to inquire about the possibility of her becoming an

insurance agent for Respondent.

9. Thereafter, on April 1, 2005, Petitioner went to the

Boynton Beach Office and met with Mr. Chojnacki. Mr. Chojnacki

talked to Petitioner about what she needed to do to become an

agent for Respondent and how agents were compensated. He

explained that Respondent paid its agents on a commission-only

basis, based on the amount of business they produced for

Respondent.

10. During her April 1, 2005, visit to the Boynton Beach

Office, Petitioner executed a Statement of Qualifications-Agent

Candidate form (referenced in the parties' Stipulations of Fact

9 and 10) with which Mr. Chojnacki had provided her. The form,

which sought "[j]ust basic information" about the candidate,

contained the following disclaimer and acknowledgement:

This is a statement of qualifications to

become contracted as an agent and is not an

application of employment.

* * *

I understand that if contracted as an agent,

this document, the agent's contract, the

training materials I may receive, and any

other manuals and documents, are not

contracts of employments. Further, if

contracted with the Mutual of Omaha

Insurance Company as an independent

contractor, I may terminate the agent’s

contract with or without cause, at any time,

as may Mutual of Omaha Insurance Company.

11. Mr. Chojnacki subsequently e-mailed Petitioner and

requested that she complete a career profile test (designed to

measure how Petitioner "would do in the insurance and in the

sales industry").

12. Petitioner scored a ten out of 19 on the test,

sufficient to keep her candidacy for an agent position alive.

Mr. Chojnacki thus sent the Statement of Qualifications-Agent

Candidate form Petitioner had executed on April 1, 2005, to the

home office for processing.

13. A background check on Petitioner was then done.

14. The background check revealed nothing in Petitioner's

past that would disqualify her from becoming an agent for

Respondent.

15. After learning that the home office had cleared her,

Mr. Chojnacki gave to Petitioner for her to study various

booklets Respondent had developed for its agents to educate them

about its product offerings. At the beginning of each booklet

was the following statement:

As an independent contractor, the ultimate

decision regarding your participation in

these programs is yours and yours alone.

Neither Mutual of Omaha nor its

representatives can dictate the time or

place and manner by which you sell its

products and acquire the knowledge and

skills necessary to effectively sell its

products. Therefore, the Career Development

Program is voluntary. However, due to the

complexity and sophistication of the

companies' products, you must be able to

demonstrate a mastery of the material

contained in this program to be able to

offer these products to prospective clients.

This program has been developed to offer a

structured methodology which has proven to

be a highly effective way to master the

knowledge and skills to sell our products.

In addition, it is our judgment that this

method provides an efficient approach to

achieve the required mastery and, therefore,

we recommend it.

Discussion and follow-up from your manager

does not change the voluntary nature of your

participation, but only serves to assist you

in mastering the material and enables the

companies to fulfill [their] public

obligation to ensure that all

representatives are fully trained and

knowledgeable.

16. Each booklet Mr. Chojnacki provided to Petitioner had

a unique identifying serial number and included a corresponding

tear-out test answer sheet with the same unique identifying

serial number to be used to answer questions concerning material

covered in the booklet.

17. After reading the booklets and answering the questions

posed therein, Petitioner furnished Mr. Chojnacki with her

completed test answer sheets (which she had torn from the

booklets). Mr. Chojnacki then faxed these answer sheets to the

home office to be graded. He subsequently received an e-mail

from the home office advising him that Petitioner had received

passing grades on all of the tests.

18. After receiving this e-mail, Mr. Chojnacki met with

Petitioner "to get her ready" to become an agent. During the

meeting, he again discussed with Petitioner Respondent's

commission-only, production-based compensation program for

agents, including the opportunities available to agents to

receive bonuses in addition to their base commissions. He

further informed her that, as an agent, she would be an

independent contractor who "gets paid off a 1099."

19. On April 11, 2005, Petitioner received a copy of

Respondent's Agency Sales Compliance Manual (Manual), which gave

an overview of the legal requirements applicable to the

activities of agents in the sale of Respondent's products. On

page 9 of the Manual was the following discussion regarding

"Continuing Education":

Mutual of Omaha encourages the professional

development of producers through training

and participation in industry organizations

that promote ethical sales practices, as

well as through the continuing education

required to maintain a license. It is the

policy of Mutual of Omaha to provide

producers with insurance-related training,

including training that qualifies for

continuing education. Mutual of Omaha

provides continuing education courses and

makes continuing education courses available

through a variety of methods. These methods

include self-study courses through vendors,

industry designation courses such as CLU,

CFP, ChFC, LUTC and specialized training

provided by Mutual of Omaha.

As an independent contractor, it is your

responsibility to ensure that continuing

education requirements are satisfied,

whether through training provided by Mutual

of Omaha or independently taken training.

If a license lapses or is cancelled,

commission payments may be stopped until

such time as the license is reinstated or a

new license is obtained. Questions

regarding continuing education should be

directed to your Manager or the Home Office

at [phone].

Page 27 of the Manual contained the following advisement:

In order to help ensure ethical market

conduct practices, integrity and fair

competition on the part of its producers,

producers are prohibited from engaging in

solicitation, marketing and sales practices

that are illegal, unethical or contrary to

the requirements established by Mutual of

Omaha Insurance Company and its affiliates.

At no time did Mr. Chojnacki give Petitioner a copy of

Respondent's employee handbook.

20. On April 11, 2005, Petitioner signed a W-9 (Request

for Taxpayer Identification Number and Certification) form, an

Internal Revenue Service (IRS) tax form that Respondent's agents

are routinely given to sign.

21. Petitioner also executed on that date Respondent's

Errors and Omissions Agent Insurance Program form (referenced in

the parties' Stipulations of Fact 15 and 16). The following

statement appeared immediately above the signature line on the

form:

All agents are reminded that they are

independent contractors under contract with

the Company. As such, they are personally

responsible for any claims, demands or

lawsuits made by third parties arising from

allegations of breach of contract,

negligence or other wrongdoing on the part

of the agent. The undersigned affirms that

the foregoing is true, correct, and

complete, and has read the "Enrollment Form

Instructions" and understands same.

22. On April 12, 2005, Petitioner was formally appointed

as an agent for Respondent and United World Life Insurance

Company, an affiliate of Respondent's.

23. Petitioner and Mr. Chojnacki (on behalf of Respondent)

signed an Agent's Contract (referred to in the parties'

Stipulations of Fact 11 through 13 and 27 as the "Agent

Agreement"), which had an effective date of April 27, 2005.

Ms. Mickley then submitted the contract to the home office for

signature. This was the only Agent's Contract that Petitioner

signed. At no time did she sign another contract.

24. Section B. of the Agent's Contract was entitled,

"General Provisions," and provided, in pertinent part, as

follows:

1. Appointment . The Company [Respondent]

appoints the Agent [Petitioner] to

personally solicit and procure applications

for Products and provide such service as may

be required. This appointment is not

exclusive.

* * *

5. License . The Agent is responsible for

securing and keeping in effect any licenses

and appointments required to represent the

Company. The Agent agrees not to solicit

for Products unless the proper license has

been obtained.

* * *

25. Section C. of the Agent's Contract described the

"Agent's [d]uties" as follows:

The Agent shall, in accordance with

applicable Company rules:

1. Procure Applications . Solicit and

procure applications for Products.

2. Submit Applications . Immediately submit

to the Company applications procured.

3. Collect Moneys . Collect all Moneys as

trust funds and immediately turn them over

to the Company without deduction. All

Moneys are the property of the Company.

4. Service Clients . Render all service

incidental to the development and

conservation of the Company's business which

may be deemed necessary by the Company.

5. Obtain Bond and Insurance . If requested

by the Company, obtain and maintain in

force:

(a) a bond covering fidelity losses; and

(b) errors and omissions insurance.

The amount and nature of both must be

satisfactory to the Company.

6. Protect Proprietary Materials . Agent

shall:

(a) Use Proprietary Material for authorized

business purposes only. Agent is only

authorized to obtain and use Proprietary

Material which is necessary to perform [his

or her] duties;

(b) Hold in the strictest confidence all

Proprietary Material received and shall not

disclose any Proprietary Material to any

third party or parties without the prior

written consent of the Company;

(c) Use appropriate safeguards commonly

available, such as anti-virus, firewalls and

encryption, to prevent use or disclosure of

Proprietary Material. This shall include

compliance with all existing and enacted

laws and regulations;

(d) Report any incidents involving

Proprietary Material to Mutual of Omaha's

Field Assistance Center within 24 hours of

discovery. All details of the incident

should be provided so that Company can

assess the scope and impact and take

additional action as necessary to safeguard

the information.

(e) Return any Proprietary Material

received from the Company to the Company

immediately upon termination of this

Contract.

(f) Adequately brief [his or her] staff, if

any, on the conditions documented in this

Section.

7. Follow Company Practices . Adhere to and

comply with all Company practices and

procedures.

8. Act Ethically . At all times act in an

ethical, competent and professional manner,

including without limitation, with respect

to any compensation disclosure obligations

it may have governing its relationships with

Clients.

9. Comply with Laws . Comply with

applicable laws and regulations.

26. "Office [p]rivileges" were addressed in Section E. of

the Agent's Contract, which provided as follows:

The Company may provide for the Agent's use

office facilities, supplies, clerical

support and other property or services. The

Company may withdraw or charge for these

privileges at any time.

27. In Section F. of the "Agent's Contract" was the

following discussion regarding "[c]compensation":

1. Attachments . The compensation of the

Agent for all acts performed hereunder or

otherwise during the term of this Contract,

and for expenses incurred or property

acquired, is specified in the Attachments.

No compensation shall be payable until the

Project on which compensation is claimed is

actually issued.

2. Compensation Continuance . The Company

is obligated to pay compensation due under

this Contract only while:

(a) this Contract is in effect; and

(b) the Agent is performing the duties

specified in the Section entitled AGENT'S

DUTIES; provided, however, compensation

indicated as "vested" or "deferred" in the

Attachments shall not be withheld pursuant

to this provision.

3. Agent's Account .

(a) Compensation payable under this

Contract shall be subject to an offset for

any indebtedness of the Agent to the Company

and shall not be due until such indebtedness

is satisfied. Such indebtedness shall

include, but not be limited to:

1. Chargeback of any compensation paid or

credited to the Agent under this or any

other contract, if the Moneys on which such

compensation was based are not collected or

are refunded by the Company;

2. Any amount paid by the Company which, in

the Company's determination, resulted from

any fraud, misrepresentation or other

improper conduct on the part of the Agent;

3. Any expenses incurred by the Company on

behalf of the Agent;

4. Any advances made by the Company to the

Agent; and

5. Any other amounts which the Agent owes

the Company.

(b) The Agent, shall upon request by the

Company, immediately repay in full any

indebtedness. Any amount remaining unpaid

shall be subject to collection by such legal

means as are available to the Company.

(c) The Company shall have the right to

withhold payment of any credit balance in

the Agent's account for not more than 13

months after termination of this Contract to

assure that funds are available to reimburse

the Company for any indebtedness.

Thereafter, any net credit balance shall

become due and payable.

28. "Termination" was discussed in Section H. of the

Agent's Contract, which provided as follows:

1. With Notice . The Company or the Agent

shall have the right at any time to

terminate this Contract, with or without

cause, by written notice to the other party.

2. Without Notice . This Contract shall be

automatically terminated should the Agent

fail to submit an application for a Product

for a period of 180 days.

3. Procedural Guidelines . The Company may

from time to time adopt procedural

guidelines applicable to agent contract

terminations. Adoption of these guidelines

and any failure to observe them shall

neither grant any rights to the Agent, nor

impose any duties upon the Company and shall

not be deemed to limit the Company's rights

as set forth in this Contract.

4. Return of Material . Upon termination of

this Contract, the Agent shall immediately

return to the Company all: Proprietary

Material, material identifying the Agent as

a representative of the Company, and

property owned by the Company.

5. Forfeiture . If the Agent is notified in

writing that the Agent has:

(a) Committed a fraudulent or illegal act

in conjunction with any transaction under

this Contract; or

(b) violated any provisions of the Section

entitled LIMITATIONS or UNACCEPTABLE

PRACTICES;

then the Company shall not be obligated to

pay any compensation otherwise payable while

this Contract is effect, or after its

termination.

29. Section I. of the Agent's Contract contained

"[m]iscellaneous" items, including the following:

* * *

4. Determination of Issuance and Product

Type . The determination to issue a Product

and the type of Product to be issued shall

be at the Company's sole discretion.

* * *

6. Award, Recognition and Incentive

Programs . If eligible, the Agent may

participate in award, recognition and

incentive programs of the Company. The

Agent agrees to abide by the rules of each

program. The Company reserves the right to

change, limit or cancel any program, rule or

award at any time. In such event, the Agent

may not be able to obtain certain awards.

7. Beneficiary Designation . The Agent

designates as beneficiary for payment of any

benefits becoming due after the Agent's

death the beneficiary specified on the

signature page of this Contract or such

other party or parties as the Agent may

designate by written notice delivered to and

acknowledged by the Company.

8. Independent Contractor . The Agent is an

independent contractor and not an employee.

None of the terms of this Contract shall be

construed as creating an employer-employee

relationship and the Agent shall be free to

exercise the Agent's own judgment as to the

persons from whom the Agent will solicit and

the time, place and manner and amount of

such solicitation.

30. "[T]he beneficiary specified on the signature page of

[Petitioner's Agent] Contract" was her mother.

31. Petitioner's Agent's Contract included an Interim

Sales and Marketing Amendment, also effective April 27, 2005,

signed by Petitioner and Mr. Chojnacki, which, on its first

page, provided as follows:

The Company and Agent agree to place Agent

in an "Interim Sales and Marketing" status.

The terms and conditions are as follows:

I. PURPOSE

The Company and Agent agree to the terms and

conditions of this Amendment in order that

both the Company and Agent may determine

whether to continue their association under

the terms of the Contract.

II. EFFECTIVE DATE

This Amendment shall become effective on the

date the Contract becomes effective.

III. TERMINATION

This Amendment shall remain in effect a

minimum of seven days. Thereafter, this

Amendment shall automatically terminate

upon:

A. Cancellation of the Contract;

B. Notice given from the Company to Agent;

or,

C. The acceptance of the Career Financing

Plan Amendment (211) or (235).

IV. TERM

If this Amendment has not been terminated in

accordance with Section III of this

Amendment within 90 days after the effective

date of the Contract, the Contract, and all

other Amendments, shall automatically

terminate.

V. MISCELLANEOUS

While this Amendment is in effect, Agent is

not eligible for any other compensation,

except as specifically set forth in the

Schedules which are a part of the Contract.

32. The Agent's Contract and Interim Sales and Marketing

Amendment that Petitioner executed are standard instruments used

by Respondent in contracting with its agents.

33. During the time that the Interim Sales and Marketing

Amendment is in effect, an agent engages in "real job sampling"

by observing a mentor make sales, and he or she may also make

sales of his or her own.

34. Petitioner was mentored initially (for the first seven

to ten days) by Mr. Green and thereafter by Mr. Chojnacki.

35. The Interim Sales and Marketing Amendment remained in

effect until June 10, 2005, when Petitioner and Respondent

executed a Career Financing Plan Amendment (as part of

Petitioner's Agent's Contract).

36. The Career Financing Plan is a three-year program

devised by Respondent to help its new agents "build their

business[es]." It provides for bonus payments "on top of the

base commission that an agent gets," if monthly production

requirements are met. An agent not wanting "to be tied to any

of [these] production requirements" can decline to participate

in the program.

37. Other attachments, in addition to the Career Financing

Plan Amendment, that were made a part of Petitioner's Agent's

Contract, included an Agent Prospecting Amendment, a New Agent

Computer Equipment Allowance Schedule, an Agent Production Bonus

Schedule, and a 2005 Deferred Compensation Schedule .

38. The Agent Prospecting Amendment was signed by

Petitioner and Mr. Chojnacki and had an effective date of

June 10, 2005. It read, in pertinent part, as follows:

V. SOURCES OF CREDIT

A. In order to provide the Agent with

prospect information, the Agent and Company

agree that credits to acquire prospecting

related materials and services may be

accumulated in an Agent Prospecting Account.

The Company may discontinue or modify the

sources and amounts of credit provided by

the Company upon notice to the Agent.

B. Credits may be used only for prospecting

activities authorized by the Company. Any

credits which remain unused at the time the

Contract or this Amendment are cancelled

shall be forfeited by the Agent.

VI. NON-REFUNDABLE PARTICIPATION FEE

A. The Agent authorizes the Company to

deduct a non-refundable Participation Fee

directly from compensation due the Agent in

an amount and frequency as set forth in the

Agent Prospecting Schedule.

B. Company may deduct the Participation Fee

up to 30 days following written notice by

Agent to the Company to terminate this

Agreement.

39. The New Agent Computer Equipment Allowance Schedule

provided for the receipt of, for a maximum of 12 months, "a

[monthly] credit [of either $75 or $100] to help the Agent

defray computer equipment and other start-up expenses incurred

based on the Agent's performance." Under the schedule, if

minimum monthly production requirements were not met, no credits

would be received.

40. The "purpose" of the Production Bonus was "to reward

Agents based on their Manufactured Product production." The

Agent Production Bonus Schedule set forth the applicable

Production Bonus Rates for different levels of production over a

threshold amount.

41. The 2005 Deferred Compensation Schedule implemented

Respondent's Deferred Compensation program, pursuant to which

Respondent made "contributions . . . dependent on the production

that an agent ha[d] during a given calendar year."

42. On October 19, 2005, Petitioner signed a Coventry

Medicare Part D Plan Addendum form (referenced in the parties'

Stipulation of Fact 31) and faxed the form to Respondent's

"Sales Support" for processing. Among the form's provisions was

the following:

Independent Contractor . Nothing in this

Addendum will be construed to create a

relationship of employer-employee between

Producer [Petitioner] and Coventry or

Distributor [Respondent]. Producer will be

free to, and is required to, exercise

his/her independent judgment in performance

of this Addendum and with respect to which

Medicare Part D plans Producer will offer to

Medicare Part D enrollees and potential

enrollees based upon Producer's judgment as

to the needs of such enrollee or potential

enrollee.

43. The termination of Petitioner's Agent's Contract

(referenced in the parties' Stipulation of Fact 40) was

accomplished by Petitioner's submitting the following letter,

dated February 10, 2006, to Mr. Chojnacki:

It is with deep regret that I resign as of

February 10, 2006. I have to move on with

my career.

I want to sincerely thank you for all your

help.

44. Mr. Chojnacki responded by sending Petitioner the

following letter, also dated February 10, 2006:

This is to acknowledge receipt of your

letter terminating your Mutual of Omaha

Insurance Company Agent's Contract effective

February 10, 2006.

Your authorizations to represent Mutual of

Omaha Insurance Company and its affiliated

companies have also been cancelled effective

February 10, 2006.

The balances of your agent's statement may

be affected by additional entries necessary

to finalize pending business. You will

continue to receive statements on a regular

basis as in the past. As soon as the

balances have stabilized, any net credit

balance will be released in accordance with

the provisions of Paragraph F3(c) of your

contract.

If your agent's statements presently reflect

a debit balance or if a debit balance arises

in the future, you are required to repay

this amount immediately. Failure on your

part to repay any debt balance will result

in further action to collect debit balance.

All client and prospect information,

materials and supplies are the property of

Mutual of Omaha Insurance Company. You are

required by Paragraph H4 of your contract to

return such material immediately.

45. At no time during the period that her Agent's Contract

was in effect (April 27, 2005, through February 10, 2006,

hereinafter referred to as the "Contract Period") did Petitioner

receive a salary or any of the employee benefits enjoyed by

Mr. Chojnacki, Mr. Green, Ms. Hughes, and Ms. Mickley.

46. Although she had Respondent-issued life and disability

insurance policies, these policies were not given to her as an

employee benefit. She had to pay for this coverage.

47. On her application for the disability insurance policy

she obtained from Respondent, in response to the question, "Are

you Self-Employed, a Sole Proprietor, or a partner in a

Partnership," she answered "yes."

48. The only compensation Petitioner received from

Respondent was in the form of commissions and other payments

(including computer allowances) based solely on her production.

49. The compensation checks she received from Respondent

were prepared and signed at the Boynton Beach Office, not at

Respondent's home office (where employee checks are cut).

50. The amounts of these checks reflected deductions that

were made by Respondent for items that Respondent had provided

Petitioner or had paid for on her behalf, including postage,

agent licenses, voicemail, errors and omissions insurance

coverage, folders, business cards, and certain leads. The leads

she paid for cost anywhere from ten to 25 dollars a lead.

51. Petitioner did not have to pay for everything that she

received from Respondent. Although it had a right to do so

under Section E. of her Agent's Contract, Respondent did not

charge Petitioner for the use of cubicle space and equipment at

the Boynton Beach Office, nor for the company brochures and

letterheads that were available to agents at the office.

52. The 2005 and 2006 federal tax returns that Petitioner

filed with the IRS were prepared by a Certified Public

Accountant.

53. For the 2005 tax year, on her IRS Form 1040,

Petitioner reported $0 for "[w]ages, salaries, and tips" (line

7), and $7,220 in "[b]usiness income" (line 12), and she

deducted from her "total income" $510 for "[o]ne-half of self-

employment tax" (line 27) and $1,243 for "[s]elf-employed health

insurance" (line 29). She included a Schedule C (Profit and

Loss From Business-Sole Proprietorship) and a Schedule SE (Self-

Employment Tax) with her IRS Form 1040.

54. On her Schedule C, Petitioner identified her

"[p]rincipal business or profession" as "[i]nsurance [a]gencies

& [b]rokerages"; represented that her business address was the

same as her home address (which was on her IRS Form 1040); and

reported that her "[g]ross income" was $18,758 (line 7), and

that she had "[c]ar and truck expenses" of $6,305 (line 9), an

"[o]ffice expense" of $1,488 (line 18), and "[o]ther expenses"

of $3,745 (line 27), for a total of $11,538 in business expenses

(line 28). The "[o]ther expenses" she reported (on line 27)

were broken down as follows: "Business Telephone"- $3,549; and

license fees and dues- $196.

55. The IRS Form 1099 that Petitioner received from

Respondent for the 2005 tax year reflected that she had received

$18,757.99 in "nonemployee compensation" (which matches the

"rounded up" amount of "[g]ross income" Petitioner reported on

the Schedule C she filed for that tax year).

56. For the 2006 tax year, on her IRS Form 1040,

Petitioner reported $0 for "[w]ages, salaries, and tips" (line

7), and "1099 MISC OTHER INCOME" of $1,615. No entry was made

for "[b]usiness income" (line 12). Petitioner deducted $114

from her "total income" for "[o]ne-half of self-employment tax"

(line 27). She included a Schedule SE with her IRS Form 1040.

57. The IRS Form 1099 that Petitioner received from

Respondent for the 2006 tax year reflected that she had received

$1,615.43 in "nonemployee compensation" (which matches the

"rounded down" amount of "1099 MISC OTHER INCOME" Petitioner

reported on the IRS Form 1040 she filed for that tax year).

58. During the Contract Period, Petitioner was not

required to work out of the Boynton Beach Office or to adhere to

any Respondent-imposed work schedule.

aining sessions were held by Mr. Chojnacki (usually

on Mondays) at the office, but attendance at these meetings was

not mandatory.

60. Agents had to be present at the office to enjoy what

was referred to as "floor time," where the agent would receive

incoming telephone phone calls made to the office from

prospects, without having to pay for these leads. "Floor time"

was a privilege that agents could turn down. Petitioner

averaged approximately two to three days of "floor time" a

month.

61. As an essential part of the work she performed for

Respondent, Petitioner made sales calls to prospects in the

field.

62. At Petitioner's request, Mr. Chojnacki accompanied her

on approximately four sales calls during the beginning of the

Contract Period.

63. After a while, Petitioner "start[ed] going on sales

calls by herself." During the Contract Period, she went on more

than 40 or 50 such solo sales calls. At no time was Petitioner

required to go on sales calls with Mr. Chojnacki or any other

company representative, nor did she need the approval of any

company representative before she could make a sales call.

64. There were occasions, when Petitioner was out on a

sales call alone, that she telephoned Mr. Chojnacki to ask him a

question about a technical matter or to express her excitement

about having made a sale. Petitioner, however, was never told

she had to maintain telephonic contact with Mr. Chojnacki or any

other company representative while on sales calls.

65. Petitioner and the other agents were allowed to

advertise Respondent's products, but any advertisement they used

had to be approved by the company. Respondent had "pre-approved

advertising material that[] [was] on [its] company [intranet]

website."

66. Petitioner did not have an exclusive arrangement with

Respondent that prevented her from representing other insurers

during the Contract Period. She was not, what is referred to in

the insurance business as, a "captive agent."

67. While associated with Respondent, Petitioner was also

appointed to act as an agent on behalf of John Alden Life

Insurance Company, Humana Health Insurance Company, and Humana

Medical Plan, Inc. (companies that were separate and distinct

from Respondent).

CONCLUSIONS OF LAW

68. The Florida Civil Rights Act of 1992 (Act) is codified

in Sections 760.01 through 760.11, Florida Statutes, and Section

509.092, Florida Statutes. "The Act, as amended, was

[generally] patterned after Title VII of the Civil Rights Acts

of 1964 and 1991, 42 U.S.C. § 2000, et seq ., as well as the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 623.

Federal case law interpreting [provisions of] Title VII and the

ADEA is [therefore] applicable to cases [involving counterpart

provisions of] the Florida Act." Florida State University v.

Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); see also

Joshua v. City of Gainesville , 768 So. 2d 432, 435 (Fla.

2000)("The [Act's] stated purpose and statutory construction

directive are modeled after Title VII of the Civil Rights Act of

1964."); City of Hollywood v. Hogan , 986 So. 2d 634, 641 (Fla.

4th DCA 2008)("Federal case law interpreting Title VII and the

ADEA applies to cases arising under the [Act]."); Guess v. City

of Miramar , 889 So. 2d 840, 846 (Fla. 4th DCA 2004)("The FCRA

[Act] is patterned after Title VII; federal case law on Title

VII applies to FCRA claims."); and School Board of Leon County

v. Hargis , 400 So. 2d 103, 108 n.2 (Fla. 1st DCA

1981)("Florida's job discrimination statute is patterned on

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

2.").

69. Among other things, the Act makes certain acts

prohibited "unlawful employment practices," including those

described in Section 760.10(1)(a) and (7), Florida Statutes,

which provide as follows:

(1) It is an unlawful employment practice

for an employer:[ 3 ]

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor-management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

70. Section 760.10(1)(a), Florida Statutes, prohibits

discrimination only against employees or prospective employees.

It does not protect independent contractors from discriminatory

conduct. See Assily v. Memorial Hospital of Tampa , No. 04-1762,

2004 Fla. Div. Adm. Hear. LEXIS 2482 *25 (Fla. DOAH December 13,

2004)(Recommended Order)("[I]ndependent contractors are not

protected under Chapter 760, Florida Statutes."); Worthy v.

Florida Times Union , No. 03-0045, 2003 Fla. Div. Adm. Hear.

LEXIS 515 *5 (Fla. DOAH April 11, 2003)(Recommended

Order)("Independent contractors are not covered under Chapter

760, Florida Statutes, or Title VII."); see also Taylor v. ADS,

Inc. , 327 F.3d 579, 581 (7th Cir. 2003)("Title VII protects only

employees . . . ."); Hunt v. Missouri Department of Corrections ,

297 F.3d 735, 741 (8th Cir. 2002)("The law is well established

that Title VII protects employees, not independent contractors,

from discriminatory employment practices."); Schwieger v. Farm

Bureau Insurance Co. , 207 F.3d 480, 483 (8th Cir. 2000)("Title

VII, which makes it an unlawful employment practice for an

employer to discharge any individual because of that

individual's sex, protects only employees, not independent

contractors.")(citation omitted); Llampallas v. Mini-Circuits,

Inc. , 163 F.3d 1236, 1242 (11th Cir. 1998)("Title VII prohibits

discrimination against 'any individual' with regard to that

individual's terms and conditions of employment or application

for employment. The statute does not define 'any individual,'

and although we could read the term literally, we have held that

only those plaintiffs who are 'employees' may bring a Title VII

suit.")(citation omitted); Cilecek v. Inova Health System

Services , 115 F.3d 256, 257-258 (4th Cir. 1997)("We must decide

in this case whether Dr. James W. Cilecek, a physician under

contract to provide emergency medical services at two hospitals,

was an employee covered by Title VII of the Civil Rights Act of

1964 or an independent contractor and therefore not so

covered."); Cobb v. Sun Papers, Inc. , 673 F.2d 337, 340 (11th

Cir. 1982)(quoting with approval from Mathis v. Standard Brands

Chemical Industries , No. 2525, 1975 U.S. Dist. LEXIS 13731 *5

(N.D. Ga. February 20, 1975)("Employment must be distinguished

from the independent contractual associations of business

entities for the latter are not covered by Title VII."); and

Smith-Johnson v. Thrivent Financial for Lutherans , No. 8:03-cv-

2551-T-30EAJ, 2005 U.S. Dist. LEXIS 36715 *9 (M.D. Fla. July 20,

2005)("The protections afforded by Title VII . . . extend only

to the employment relationship and not to independent

contractors.").

71. Because it is not an "unlawful employment practice"

remediable under the Act to discriminate against an independent

contractor, neither is it an "unlawful employment practice"

(under Section 760.10(7), Florida Statutes) to retaliate against

a person for having "opposed" such discrimination.

72. In view of the foregoing, as both parties recognize,

"whether the Petitioner was an employee of Respondent['s] [at

the time of her alleged mistreatment] is a threshold issue" in

the instant case.

73. The parties were provided the opportunity to present

evidence on this issue at the hearing held on October 15, 2008.

74. Petitioner had the burden of proving at this hearing

that the relationship she had with Respondent during the

relevant time period was that of employee-employer. See

Department of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 934 (Fla. 1996)("'The general rule is that a party

asserting the affirmative of an issue has the burden of

presenting evidence as to that issue."'); and Florida Department

of Health and Rehabilitative Services v. Career Service

Commission , 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he

burden of proof is 'on the party asserting the affirmative of an

issue before an administrative tribunal.'"); see also Atkins v.

Computer Sciences Corp. , 264 F. Supp. 2d 404, 408 (E.D. Va.

2003)("[P]laintiff bears the burden of demonstrating that she is

an employee of an employer under Title VII because she bears the

burden of proving that subject matter jurisdiction exists.").

75. To determine whether a complainant was an employee of

the respondent a "hybrid economic realities test" is used.

Pursuant to this test, "it is the economic realities of the

relationship viewed in light of the common law principles of

agency and the right of the employer to control the employee

that are determinative." Taylor v. BP Express, Inc. , No. CV

407-182, 2008 U.S. Dist. LEXIS 95313 *7 (S.D. Ga. Nov. 24,

2008)(citing Cobb , 673 F.2d at 339).

76. "Among the common law factors that are to be

considered in conducting the analysis are: (1) the intention of

the parties; (2) the skill required in the particular

occupation; (3) the party furnishing the equipment and the place

of work; (4) the method of payment, whether by time or by the

job; (5) the type of employment benefits provided; (6) the

manner in which the work relationship is terminated; (7) the

importance of the work performed as part of the business of the

employer; and (8) the manner in which taxes on income [are]

paid. In assessing the amount of control an employer exercises

over the employee's work duties, courts look not only to the

results that are to be achieved, but the 'manner and means by

which the work is accomplished.'" Dahl v. Ameri-Life Health

Services of Sara-Bay, LLC , No. 8:05-CV-66-T-17TBM, 2006 U.S.

Dist. LEXIS 73797 *10-11 (M.D. Fla. Oct. 10, 2006).

77. Dahl is a case that is particularly instructive

herein. It too involved the question of the status of a

Florida-licensed insurance agent who claimed to have been the

victim of employment discrimination at the hands of an insurance

company whose products the agent had sold. Finding that the

agent was an independent contractor, not an employee of the

insurance company, the court explained as follows:

Although there are some aspects of the

parties' relationship that are consistent

with an employer-employee relationship under

the common law and control factors, the

weight of the evidence supports Defendant's

contention that Plaintiff operated as an

independent contractor for Ameri-Life.

First, both parties clearly intended for

Plaintiff to operate as an independent

contractor. The terms of the Contract

stated in unambiguous terms that the

Plaintiff was to operate as an independent

contractor and "nothing would be construed

as creating the relationship of employer and

employee for any purpose."[ 4 ] Plaintiff's

understanding of his employment status was

also demonstrated after the Contract was

signed when he treated himself as an

independent contractor for federal tax

purposes by filing his business expenses on

Schedule C to IRS Form 1040. Under federal

tax laws, independent contractors report

their business expenses on Schedule C, while

employees use Schedule A to report their

business expenses.[ 5 ] See generally ,

Internal Revenue Service Publication 1779

(Rev. 12-99).

Second, the sale of insurance and other

financial products is a highly specialized

and heavily regulated field. Plaintiff had

to study and pass multiple exams, obtain

licenses to sell these products, and comply

with various federal and state laws before

he could operate as an insurance agent. The

Plaintiff advised his clients without a

supervisory presence. The highly

specialized nature of Plaintiff's position

is indicative of an independent contractor

rather than an employee.[ 6 ]

Third, Plaintiff was primarily responsible

for the costs he incurred as an insurance

agent for Ameri-Life. The contract provided

that the Plaintiff was responsible for any

expenses incurred in conducting business

under the terms of the agreement. Plaintiff

was responsible for the routine business

expenses he incurred such as rent,

utilities, telephone, cell phone, computer,

stationary, transportation, licensing fees,

and continuing education costs. Plaintiff

also maintained an office at home, where he

used and paid for his own equipment,

including telephone, transportation and

utilities without reimbursement from the

Defendant. Although the lease agreement

that the Plaintiff entered into with Ameri-

Life entitled the Plaintiff to the use of a

desk, chair, copier, fax machine, basic

secretarial services, and fifty assorted

leads per month for a nominal [not market

rate] fee of $50.00 per month, the Plaintiff

claimed the aforementioned costs as business

expenses for federal tax purposes on a

schedule C.[ 7 ]

Fourth, the parties' financial arrangement

also supports a finding that Plaintiff was

an independent contractor. Plaintiff was

compensated by commission and sales

incentives rather than being paid a salary

with a guaranteed, but fixed level of

income, thereby placing the financial risks

and benefits of the position on Plaintiff.[ 8 ]

Plaintiff also did not receive any fringe

benefits such as sick leave, vacation time

or retirement benefits.[ 9 ]

Fifth, the Defendant treated the Plaintiff

as an independent contractor because it did

not pay social security, Medicare, or

withhold federal income tax from the

Plaintiff's commission checks. Under

federal tax laws, employers must withhold

federal income tax from their employees[']

wages, but not for payments made to

independent contractors.[ 10 ] See generally ,

Internal Revenue Service Publication 15,

Circular E, Employer's Tax Guide, Part 2.,

p.7; Internal Revenue Service Publication

15-A, Employer's Supplemental Tax Guide,

Part 1, p. 4-5 (January 2005).

Plaintiff treated himself as an independent

contractor for federal tax purposes by

deducting his business expenses on Schedule

C to IRS Form 1040, allowing him to receive

the full benefit of these deductions without

being subject to the limitations that apply

to employees. Taxpayers classified as

employees may deduct business expenses only

if they itemize their deductions, and these

deductions are subject to a reduction equal

to two percent of the taxpayer's adjusted

gross income. Independent contractors do

not have their deductions reduced by this

amount. See generally , Internal Revenue

Service Publication 1779 (Rev. 12-99).

Finally, the means and method by which

Plaintiff operated support Defendant's

contention that he was an independent

contractor. The Plaintiff assumed fiscal

responsibility for the success or failure of

his business by generating his own sales

through finding leads for himself,

purchasing leads from telemarketers or

advertising, getting referrals from clients,

self-prospecting or giving speeches. The

Plaintiff was not required to work at

specified times of the day or week, he was

not required to maintain office hours, and

he decided the location of his work.

Specifically, the Plaintiff set his

schedule, dictated his driving route, made

most of his own appointments and advised his

clients without a supervisory presence.

Ameri-Life did not control the Plaintiff's

ability to form a corporation and/or to hire

and pay for his own staff. All these facts

are inconsistent with an employer-employee

relationship.

There are some factors that indicate that

Defendant interfered with the Plaintiff's

right to control the manner and the means by

which he operated. Plaintiff's work for

Ameri-Life was an integral part of the

company's business. Plaintiff could be

disciplined for selling another company's

product without the Defendant's consent[ 11 ]

and he was required to attend certain

company meetings and training sessions.

Additionally, the plaintiff was required to

use the corporate address and telephone

number on his business card and wear company

attire. Plaintiff had to use approved

forms, which were checked over by the

secretary and regional manager before

submission. Although the Plaintiff did not

receive paid vacation time from the

Defendant, he had to seek management

approval to take the time off. Moreover,

the Plaintiff was terminated without the

requisite fifteen days notice under the

Contract. When considered along with all of

the other common law factors and the

considerable control Plaintiff had over his

daily operations, these facts fail to

convert Plaintiff into an employee for

purposes of Title VII.

The parties' intentions, actions and overall

arrangement are entirely consistent with the

independent contractor relationship set

forth in the Contract, not an employer-

employee relationship. Accordingly,

Defendant is entitled to summary judgment on

Plaintiff's Title VII claim.

Dahl , 2006 U.S. Dist. LEXIS 73797 *11-16.

78. While the facts of the instant case are not identical

to those in Dahl , 12 they are sufficiently similar in material

respects to warrant the same result. Present in the instant

case are the following facts that closely mirror those the Dahl

court found to be inconsistent with employee status: Petitioner

and Respondent both "clearly intended for [Petitioner] to

operate as an independent contractor"; her Agent's Contract

"stated in unambiguous terms that [she] was to operate as an

independent contractor" and that nothing therein would be

construed as creating an employer-employee relationship;

"[Petitioner's] understanding of [her] . . . status was . . .

demonstrated after the Contract was signed when [she] treated

[herself] as an independent contractor for federal tax purposes

by filing [her] business expenses on Schedule C to IRS Form

1040"; Petitioner worked in the "highly specialized and heavily

regulated field" of insurance sales, for which she needed a

license (that she obtained after taking and passing a licensure

examination); Petitioner was allowed to service clients "without

a supervisory presence" 13 ; she incurred substantial unreimbursed

business expenses as an insurance agent for Respondent 14 ;

Petitioner "was compensated by commission and sales incentives

rather than being paid a salary with a guaranteed, but fixed

level of income, thereby placing the financial risks and

benefits of the position on [Petitioner]"; she "did not receive

any fringe benefits such as sick leave, vacation time or

retirement benefits"; Respondent "treated the [Petitioner] as an

independent contractor" by "not withhold[ing] federal income [or

social security] tax from [Petitioner's] commission checks";

Petitioner "treated [herself] as an independent contractor for

federal tax purposes by deducting [her] business expenses on

Schedule C to IRS Form 1040, allowing [her] to receive the full

benefit of these deductions without being subject to the

limitations that apply to employees"; Petitioner "assumed fiscal

responsibility for the success or failure of [her] business by

generating [her] own sales"; she "was not required to work at

specified times of the day or week"; she "was not required to

maintain office hours, and [she] decided the location of [her]

work"; she "set [her own] schedule, dictated [her] driving

route, [and] made . . .[her] own appointments"; and Respondent

did not have any control over how Petitioner structured and

staffed her business.

79. There are in the instant case, as there were in Dahl ,

some factors weighing in favor of finding an employer-employee

relationship, including the importance of the work Petitioner

performed to Respondent's business (a factor that was also

present in Dahl ), as well as the control that Respondent

exercised over Petitioner's advertising of Respondent's

products. These factors, however, are far outweighed by those

supporting the conclusion that there no such relationship

between Respondent and Petitioner. E.g. , Farlow v. Wachovia

Bank of N.C., N.A. , 259 F.3d 309, 316 (4th Cir. 2001)("Upon

review of all of these factors, it is clear that, although some

may weigh in favor of a finding that Farlow was an employee, the

vast majority of them, including the most significant, weigh in

favor of the conclusion that Farlow was an independent

contractor."); Oestman , 958 F.2d at 306 ("With regard to the

provision in the contracts requiring Appellant to obtain

Appellees' written permission before advertising any of

Appellees' products, we agree with the district court that this

is not the type of control that establishes an employer/employee

relationship. Appellees have a substantial interest in

controlling the advertising of their products because Appellees

may be liable for Appellant's misstatements or

misrepresentations."); Alberty-Velez v. Corporacion de P.R. para

la Difusion Publica , 361 F.3d 1, 8 (1st Cir. 2004)("A company

may require that it provide prior approval before an independent

contractor takes an action or associates with an entity that

could reflect poorly on the company."); Lockett , 364 F. Supp. 2d

at 1378 ("Furthermore, Plaintiff argues that Defendant exercises

control over him by requiring him to seek approval for various

business activities. Plaintiff mentions the restrictions

Defendant places on advertising, but advertising restrictions do

not make Plaintiff an employee."); and Dahl , 2006 U.S. Dist.

LEXIS 73797 *11-16.

80. Inasmuch as Petitioner was not an employee of

Respondent's at the time of the alleged unlawful employment

practices described in her Complaint, the Complaint must be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the FCHR issue a final order dismissing

Petitioner's Complaint because she was not an employee of

Respondent's at the time of the alleged unlawful employment

practices described in the Complaint.

DONE AND ENTERED this 29th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of December, 2008.

ENDNOTES

1 / All references to Florida Statutes in this Recommended Order

are to Florida Statutes (2008).

2 / The undersigned has accepted these factual stipulations.

See Columbia Bank for Cooperatives v. Okeelanta Sugar

Cooperative , 52 So. 2d 670, 673 (Fla. 1951)("When a case is

tried upon stipulated facts the stipulation is conclusive upon

both the trial and appellate courts in respect to matters which

may validly be made the subject of stipulation."); Schrimsher v.

School Board of Palm Beach County , 694 So. 2d 856, 863 (Fla. 4th

DCA 1997)("The hearing officer is bound by the parties'

stipulations."); and Palm Beach Community College v. Department

of Administration, Division of Retirement , 579 So. 2d 300, 302

(Fla. 4th DCA 1991)("When the parties agree that a case is to be

tried upon stipulated facts, the stipulation is binding not only

upon the parties but also upon the trial and reviewing courts.

In addition, no other or different facts will be presumed to

exist.").

3 / An "employer," as that term is used in the Act, is defined

in Section 760.02(7), Florida Statutes, as "any person employing

15 or more employees for each working day in each of 20 or more

calendar weeks in the current or preceding calendar year, and

any agent of such a person."

4 / See also Amedas, Inc. v. Brown , 505 So. 2d 1091, 1092 (Fla.

2d DCA 1987)("The words found in a contract are to be given

meaning and are the best possible evidence of the intent of the

contracting parties. The Amedas/Brown sales representative

agreement provided that Brown was to be considered an

independent contractor. The remaining contractual provisions

are consistent with that relationship.")(citation omitted);

Adcock v. Chrysler Corp. , 166 F.3d 1290, 1293 (9th Cir.

1999)("Finally, the intention of the parties supports the

finding that the relationship was to be one of independent

contractual affiliation. The Agreement explicitly provides,

'this Agreement does not create the relationship of principal

and agent between [Chrysler] and [the dealer], and under no

circumstances is either party to be considered the agent of the

other.' This clear language, though not dispositive, reflects

the parties' intention that Adcock would have been an

independent contractor, not an employee."); Birchem v. Knights

of Columbus , 116 F.3d 310, 313 (8th Cir. 1997)("We agree with

the district court that Birchem and KOC had an independent

contractor relationship. First, each Field Agent Contract

expressly provided that 'nothing contained in this Agreement

shall be construed to create the relationship of employer and

employee between' KOC and Birchem, KOC and Wentz, or Wentz and

Birchem."); Oestman v. National Farmers Union Insurance Co. , 958

F.2d 303, 306 (10th Cir. 1992)("Beyond the manner in which

Appellant conducted his daily business, the parties' intentions

as expressed in the local agent agreements indicate that

Appellant was an independent contractor. The language of

Section 7(b) of the contract is clear: '(b) Nothing contained

herein shall be construed as creating the relationship of

employer and employee between the LOCAL AGENT and INSURER or

GENERAL AGENT.'"); and Moody v. Coliseum Psychiatric Center.,

LLC , No. 5:04-CV-364 (DF), 2006 U.S. Dist. LEXIS 38781 *27-28

(M.D. Ga. June 12, 2006)("Finally, with respect to the intention

of the parties, it is more than clear from the contractual

provisions discussed above that both Med-Source and AAS (and

therefore Coliseum) expected that Med-Source's employees would

be treated as independent contractors of the medical facilities

to which they were assigned. That expectation is plainly

reflected in the terms of the contract (generally the best

evidence of intent) between Med-Source and AAS, under which Med-

Source is to be considered the independent contractor of AAS

(and by extension the independent contractor of Coliseum) and

Med-Source's personnel are to be considered Med-Source's

employees only.").

5 / See also Smith-Johnson , 2005 U.S. Dist. LEXIS 36715 *12-13

("Plaintiff's understanding of her employment status was also

demonstrated after the Agreements were signed when she treated

herself as an independent contractor for federal tax purposes by

filing her business expenses on Schedule C to IRS Form 1040.").

6 / See also Lockett v. Allstate Insurance Co. , 364 F. Supp. 2d

1368, 1374 (M.D. Ga. 2005)("Plaintiff is a professional, his

position [as an insurance agent] requires substantial training,

licensing, and expertise, so the second factor points towards

his status as an independent contractor."); and Schwieger v.

Farm Bureau Insurance Co. , No. 4:97CV3219, 1998 U.S. Dist. LEXIS

23480 *11 (D. Neb. Nov. 23, 1998), aff'd , 207 F.3d 480 (8th Cir.

2000)("I also note that in the Title VII context, federal courts

have consistently held insurance agents to be unprotected

independent contractors, and Plaintiff has not identified any

authority to the contrary.").

7 / See also Smith-Johnson , 2005 U.S. Dist. LEXIS 36715 *12-14

("Although there are aspects of the parties' relationship that

are consistent with an employer-employee relationship under the

common law and control factors, the weight of the evidence

supports Defendant's contention that Plaintiff operated as an

independent contractor for Thrivent. . . . Third, Plaintiff was

primarily responsible for the costs she incurred as a financial

associate for Thrivent. Although Thrivent supplied Plaintiff

with computer software and financial calendars that she used in

her sales efforts, as well as an employee i.d. and password she

used to gain access to Thrivent's computer database, Plaintiff

paid for all of the other expenses associated with her work.").

8 / See also Lockett , 364 F. Supp. 2d at 1374 ("Plaintiff is

paid by commission, he receives a set amount for each policy he

sells and each policy he maintains. Thus, his compensation is

determined by his productivity, which indicates, by the fifth

factor, that he is likely an independent contractor."); and Sica

v. Equitable Life Assurance Society , 756 F. Supp. 539, 542 (S.D.

Fla. 1990)("Sica's method of compensation was by commission, as

opposed to on a salary basis -- a further indication of his

status as an independent contractor.").

9 / See also Kirk v. Harter , 188 F.3d 1005, 1008 (8th Cir.

1999)("Harter received no medical, retirement, or vacation

benefits while working for Iowa Pedigree. Iowa Pedigree's

failure to provide employment benefits or withhold any payroll

taxes is probative evidence of Harter's status as an independent

contractor, as 'every case since Reid that has applied the test

has found the hired party to be an independent contractor where

the hiring party failed to extend benefits or a social security

taxes.'").

10 / See also Adcock , 166 F.3d at 1293 ("Chrysler does not pay

social security taxes for the dealer, nor does it provide

retirement, health care, worker's compensation or vacation

benefits to the dealer or the dealer's employees, all of which

are usually associated with employment."); and Oestman , 958 F.2d

at 306 ("Other aspects of the relationship between the parties

also lead to the conclusion that Appellant was an independent

contractor instead of an employee. . . . Appellees did not

withhold taxes from Mr. Oestman's pay and did not pay social

security taxes for him.").

11 / See also Lockett , 364 F. Supp. 2d at 1378 ("Plaintiff

points to his inability to sell insurance for other companies.

However, when considering the restriction on an agent to sell

exclusively for one insurance company and whether that

restriction determined if the agent was an independent

contractor, other courts have noted that '[a]n insurance agent's

status as a captive agent, . . ., is no more determinative of

the issue presented than, for example, a manufacturer's

representative's agreement to market the manufacturer's products

exclusively.' And, therefore, the fact that Plaintiff is an

exclusive agent for Defendant does not make him an employee of

Defendant.")(citation omitted).

12 / For instance, in Dahl , the agent "entered into [a contract]

with Ameri-Life [which] entitled [him] to the use of a desk,

chair, copier, fax machine, basic secretarial services, and

fifty assorted leads per month for a nominal [not market rate]

fee of $50.00 per month," whereas in the instant case,

Petitioner paid for neither the use of cubicle space and

equipment at the Boynton Beach Office (although, under her

Agent's Contract, Respondent could have "charge[d] [her] for

these privileges at any time"), nor for "floor time" leads, but

she did have to pay (from ten to 25 dollars each) for other

Respondent-provided leads. Compare with Thompson v. DDB Needham

Chicago , No. 95 C 7114, 1996 U.S. Dist. LEXIS 9738 *20 (N.D.

Ill. July 3, 1996)("Defendant provided Plaintiff at various

times with office space and access to telephones, secretarial

services, business machines and various office equipment when it

retained Plaintiff for specific projects in 1987, 1988, 1990 and

1992. . . . However, the Seventh Circuit has held that this

factor alone is not dispositive to the question of whether an

employer-employee relationship exists."). Other examples of

factual contrast are that, unlike Petitioner, the agent in Dahl

"could be disciplined for selling another company's product

without . . . consent and he was required to attend certain

company meetings and training sessions" and "to seek management

approval to take the time off" (facts which the Dahl court

acknowledged "indicate[d] that [the company] interfered with the

[the agent's] right to control the manner and the means by which

he operated," thus militating in favor of finding an employer-

employee relationship). Additionally, in Dahl , in contrast to

the situation in the instant case, it was the insurance company,

not the agent, that terminated their relationship, and it did so

"without the requisite fifteen days notice under the Contract"

(another fact that the Dahl court found to be consistent with an

employer-employee relationship).

13 / She did, however, on occasion seek managerial assistance

and advice when in the field.

14 / According to her 2005 tax return, Petitioner incurred a

total of $11,538 in business expenses to generate a gross

business income of $18,758.

COPIES FURNISHED:

Elizabeth Athanasakos, Esquire

2631 East Oakland Park Boulevard

Suite 205

Fort Lauderdale, Florida 33306-1618

Kelly Cruz Brown, Esquire

Daniel Hernandez, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Tallahassee, Florida 32301-1866

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.