02-003580 Dawn Georgette Myers vs. Central Florida Investments, Inc. Status: Closed Recommended Order on Thursday, April 17, 2003.

Summary: Petitioner was an employee of the Respondent rather than an independent contractor. Commission should re-open investigation into merits of Petitioner`s charge of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAWN GEORGETTE MYERS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3580

)

CENTRAL FLORIDA INVESTMENTS, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to notice, a formal hearing was held in this case

on January 23, 2003, in Orlando, Florida, before T. Kent

Wetherell, II, the designated administrative law judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lisa K. Tieti g, Esquire

Tietig & Tietig, P.A.

6065 South Tropical Trail

Merritt Island, Florida 32952

For Respondent: Richard W. Epstein, Esquire

Myrna L. Maysonet, Esquire

Greenspoon, Marder, Hirschfeld ,

Rafkin, Ross & Berger

Trade Centre South, Suite 700

100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

STATEMENT OF THE ISSUE

The issue is whether Petit ioner was an employee of

Respondent rather than an independent contractor, thereby giving

the Florida Commission on Human Relations jurisdiction over

Petitioner's amended charge of discrimination against

Respondent.

PRELIMINARY STATEMENT

On or about Septe mber 14, 2001, Petitioner filed an amended

charge of discrimination against Respondent with the Florida

Commission on Human Relations (Commission). In the amended

charge, Petitioner alleged that Respondent discriminated against

her when it terminated her employment as Executive Spa Director

in December 2000.

Based upon the Commission staff's investigation of the

amended charge, the Executive Director of the Commission issued

a determination of "no jurisdiction" on August 6, 2002. Notice

of that determinat ion was provided to Petitioner by mail on that

same date. The determination did not address the merits of the

amended charge, and specifically stated that "[s]ince the

Commission lacks jurisdiction over the Complaint, this

Determination will not address t he merits of the allegations in

the Complaint."

On September 10, 2002 (35 days after the date of the notice

of determination), Petitioner faxed a letter to the Commission

requesting an extension of time pursuant to Rule 60Y - 5.008(2),

Florida Administrative Code, to file her petition for relief.

The Commission did not take any action on that request.

On September 11, 2002, the Commission received a one -

paragraph letter from Petitioner requesting "review" of the

Commission's determination by the Division of Administrative

Hearings (Division). Thereafter, the Commission referred the

matter to the Division for the assignment of an administrative

law judge to conduct a formal administrative hearing in

accordance with Section 120.57, Florida Statutes.

On Septe mber 20, 2002, after the matter had been referred

to the Division, Petitioner filed a request for a 30 - day

extension of time to file her petition for relief. The request

cited Rule 60Y - 5.008(2), Florida Administrative Code, as the

legal authority for the request. Attached to the request was a

copy of the letter which Petitioner faxed to the Commission on

September 10, 2002.

Petitioner's request was treated as a motion to amend the

request for a hearing that she filed with the Commission on

September 11, 2002 ( see 28 - 106.202, Florida Administrative

Code), because Rule 60Y - 5.008, Florida Administrative Code,

governs proceedings before the Commission not proceedings before

the Division and because the Commission apparently considered

Petitioner's September 11, 2002, letter to be her petition for

relief since it transmitted it to the Division as such. By

Order dated October 3, 2002, Petitioner was granted leave to

file an amended petition for relief, which she did on

October 10, 2002.

The final hearing wa s held on January 23, 2003. At the

hearing, Petitioner testified in her own behalf and also

presented the testimony of Gail Miller. Petitioner's Exhibits

P1 through P19 were received into evidence. Respondent did not

call any witnesses. Respondent's Ex hibits R1 through R4 were

received into evidence.

The two - volume Transcript of the hearing was filed with the

Division on February 7, 2003. The parties initially agreed to

file their proposed recommended orders (PROs) within 10 days

after the date the Tr anscript was filed with the Division, but

they subsequently requested and were granted extensions of time

through March 21, 2003, to file their PROs. 1 The parties' PROs

were given due consideration in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following findings are made:

A. Parties

1. Petitioner is a white female. At the time of the

events giving rise to the amended charge of discrimination,

Petitioner was 35 - years - o ld.

2. Respondent Central Florida Investments, Inc. (CFI), is

a corporation which, either itself or through related legal

entities, owns and operates the Westgate timeshare resorts in

the Orlando, Florida, area. The resorts include Westgate Lakes

and W estgate Vacation Villages.

3. One of the related legal entities is CFI Sales and

Marketing, Ltd. (CFI Sales). CFI Sales is referred to as a

"division" of CFI on at least one of the forms received into

evidence.

4. CFI's human resources department proces sed Petitioner's

benefits forms. Those forms designated Petitioner as an

employee of CFI; they did not reference CFI Sales even though

that was the entity through which Petitioner was paid.

5. The human resources department also processed a salary

incre ase for Petitioner in August 1999.

6. David Siegel is the president of CFI. Mr. Siegel

controls the operation of the Westgate resorts through CFI and

its related legal entities.

7. Petitioner reported directly to Mr. Siegel in her

position as Executive Spa Director even though she was

"employed" by and paid through CFI Sales.

B. Petitioner's "Employment" With Respondent

1. Selling Timeshare Units

8. Petitioner first started working for Respondent 2 in 1986

as a salesperson. In that position, she was responsible for

selling timeshare units at the Westgate resorts owned by

Respondent.

9. Petitioner worked as a salesperson for Respondent

continuously from 1986 through 1998, except for a period of a

couple of years that she worked at a spa in Winter Park .

10. Petitioner was an independent contractor during the

period that she was a salesperson. She had a written contract

with Respondent which expressly designated her as an independent

contractor, and she was paid commissions from the timeshare

units tha t she sold.

11. Petitioner did not receive any insurance or other

benefits from Respondent during the time that she was a

salesperson.

2. Executive Spa Director

12. At some point after she left the Winter Park spa and

returned to work as a salesperson f or Respondent, Petitioner

approached Mr. Siegel regarding the establishment of a spa as an

amenity at Westgate Lakes.

13. Mr. Siegel directed Petitioner to put together a

business and marketing plan for the spa, which she did. After

some period of time, Mr. Siegel approved the spa and put

Petitioner in charge of its development.

14. During the initial period that Petitioner was working

on the development of the spa, she continued to sell timeshare

units for Respondent.

15. In January 1998, Petitioner wa s placed on salary with

Respondent and given the title of Executive Spa Director. From

that point through the opening of the spa in 1999, Petitioner

focused exclusively on the development of the spa.

16. Petitioner oversaw the construction of the spa and ,

among other things, Petitioner was responsible for the spa's

interior design and its name, Papillon the Spa at Westgate Lakes

(Papillon).

17. The spa was considered an amenity of the Westgate

resorts. It was available for use by Westgate timeshare unit

owners and their guests. It was also used by salespersons as a

tool to close sales to prospective purchasers of Westgate

timeshare units.

18. The spa offers a variety of services, including nail

care, hair care, spa body treatments, body wraps, waxing, skin

care, and massage therapy. The spa also includes a fitness

center.

19. After the spa opened, Petitioner continued in the

position of Executive Spa Director. In that capacity, she was

responsible for all aspects of the day - to - day management and

oper ation of the spa, including supervision of the spa's staff.

20. Petitioner reported directly to Mr. Siegel. The

managers of other resort amenities reported to the general

manager of the resort, not to Mr. Siegel.

21. When Petitioner was put on salary a s the Executive Spa

Director, she was also given benefits by Respondent. Those

benefits, which became effective on April 1, 1998, included

health, life, dental and long - term disability insurance.

22. Petitioner's benefits were terminated effective

Decemb er 31, 1999. The reason that Petitioner was given for the

termination of her benefits was that Mr. Siegel "could get into

a lot of trouble" for giving her employee benefits while

treating her as an independent contractor for tax purposes.

23. Petitioner did not have set days or hours which she

was required to work at the spa, but she was expected by

Mr. Siegel to be there all of the time. Because Petitioner was

most familiar with the spa's operation, that expectation is not

entirely unreasonable.

24. Pe titioner did not accrue vacation time or retirement

benefits from Respondent in her position as Executive Spa

Director. Petitioner rarely took time off and, when she did,

she had to obtain Mr. Siegel's personal approval to be away from

the spa.

25. A l awsuit is pending between the parties in circuit

court in Orange County regarding Mr. Siegel's alleged agreement

to pay for repairs at Petitioner's home as compensation for the

vacation time that she was not given as Executive Spa Director.

26. Petitioner was required to personally perform her

duties as Executive Spa Director; she could not delegate them to

another member of the spa's staff.

27. Petitioner did not have a written contract with

Respondent during the period that she was in the Executive Spa

Director position. As a result, there was nothing to preclude

her from leaving the position at any time, nor was there

anything to preclude Respondent from firing her at any time.

28. Petitioner was told by Mr. Siegel that she could not

consult with othe r spas or provide her services to others during

the period that she was in the Executive Spa Director position.

Petitioner did not work for any other entity during the period

that she was Executive Spa Director.

29. Petitioner was not authorized to make purchases for

the spa without approval of Mr. Siegel or someone else in

Respondent's management team. However, as discussed below in

connection with Petitioner's tax returns, that did not stop

Petitioner from expending her own money on the spa.

30. Petit ioner was required to provide Mr. Siegel with

monthly reports detailing the operation of the spa. The reports

included information such as the number of spa treatments given,

the number of unit owners and guests who utilized the facility,

and the amount o f income produced during the period.

31. Petitioner wanted to market Papillon to the general

public as a "day spa" rather than just limiting its use to

Westgate unit owners. However, Mr. Siegel would not approve

outside marketing.

32. When Petitioner di d outside marketing of the spa on

her own with her own money, Petitioner was reprimanded by

Mr. Siegel and another member of Respondent's management team.

33. Petitioner did not employ the staff at the spa. They

were employees of and paid by Respondent .

34. Petitioner participated in the hiring and firing of

the staff, but she did not have autonomy over that process.

Prospective staff were screened by Respondent's human resources

department before they could be interviewed by Petitioner, and

Petitione r's decisions to hire and fire staff had to comply with

policies adopted by the human resources department.

35. Petitioner was paid on a weekly basis as Executive Spa

Director. No taxes or other amounts were withheld from

Petitioner's weekly paychecks.

36. Petitioner's salary was not tied to the profitability

of the spa. Her salary was established by Mr. Siegel based upon

the information presented to him by Petitioner regarding the

salaries of directors at spas comparable to Papillon.

37. Petitioner has a cosmetology license which allows her

to perform all of the services in the spa except massage

therapy. Petitioner paid the fee for the license and, because

she was not reimbursed by Respondent, she reported the fee as a

"business expense" on her tax return.

38. On occasion, Petitioner performed services (such as

nail care) at the spa. Petitioner was not compensated for

performing those services, so the cost of the service went

directly into the spa's profit.

39. In December 2000, Petitioner was p laced on a five - day

suspension while Respondent audited the spa. Thereafter, on

December 15, 2000, Petitioner was terminated from her position

as Executive Spa Director.

40. After Petitioner was terminated, Respondent brought in

the Nicki Bryant consulti ng firm to manage the spa. The firm

was on a 90 - day contract with Respondent, the specific terms of

which are not part of the record.

C. Petitioner's Tax Returns from 1998 Through 2000

41. At the end of each year that she worked for

Respondent, includin g 1998 through 2000 when she was Executive

Spa Director, Petitioner received a 1099 tax form from

Respondent rather than a W - 2 tax form.

42. Petitioner was not given the option of the type of tax

form that she received from Respondent.

43. The 1099 for m designated Petitioner's earnings from

Respondent as "nonemployee compensation."

44. In 1998, Petitioner received compensation from

Respondent in the amount of $78,030.00 In 1999, her

compensation from Respondent was $87,115.44, and in 2000 her

compensa tion from Respondent was $102,223.14.

45. Petitioner used the 1099 forms she received from

Respondent to complete her federal income tax forms. The only

income that Petitioner reported for the 1998, 1999, and 2000 tax

years was the compensation that she received from Respondent.

46. In each tax year, that compensation was reported on

Schedule C of Petitioner's tax return. That schedule, as its

title indicates, is used to compute "profit or loss from

business (sole proprietorship)."

47. Each tax year, P etitioner deducted a significant

amount of expenses on Schedule C. In 1998, she deducted

expenses of over $48,000; in 1999, she deducted expenses of over

$63,000; and in 2000, she deducted expenses of over $64,000.

48. The following table identifies som e the categories in

which Petitioner reported expenses, and the amount of such

expenses reported in the 1998, 1999 and 2000 tax years:

Category 1998 1999 2000

Advertising $ 625 $ 2,400 $ 5,418

Car expense $ 7,767 $ 7,855 $ 6,102

Office expense $ 625 $ 2,200 $ 2,895

Supplies $11,355 $10,500 $11,524

Travel $ 2,630 $ 2,538 $ 6,125

Meals and

entertainment $13,531 $13,540 $14,285

Postage /

Fed Ex N/A 3 $ 4,323 $ 8,107

Gifts N/A $12,946 $ 6,528

Cellular

phone N/A $ 3,108 $ 2,856

Uniform s N/A $ 1,490 $ 2,175

Seminars /

Continuing

education N/A $ 888 $ 2,354

49. These expenses reflect the expenses that were not

reimbursed by Respondent. Petitioner testified at the hearing

that she was reimbursed for her travel to several semina rs for

some of her other expenses as well. However, corroborating

evidence of those reimbursements was not introduced at the

hearing.

50. Petitioner gave her accountant receipts for all of

these expenses. Petitioner, not her accountant, was responsible

for categorizing the receipts into the "appropriate" category.

51. The significant amount of expenses reported by

Petitioner and the categories in which amounts reported call

into question her testimony at the hearing that she was not

permitted to advert ise the spa or make independent decisions

regarding the spa's operation, and that she was required to be

at the spa all day, every day. However, the tax returns do not

entirely undermine the credibility of Petitioner's hearing

testimony.

52. In addition to the $2,400 in advertising expenses

reported in 1999, Petitioner also reported expenses of $1,150

for "promotion." The postage and Fed Ex expenses also related

to the advertising of the spa since they were for mailings from

Petitioner to the owners to w hom Petitioner had sold timeshare

units.

53. The car expenses, which Petitioner attributed to her

travel around the state and around the Orlando area to talk

about the spa and learn about the spa industry, suggest that

there were significant amounts of ti me that she was not at the

spa. In 1999 alone, Petitioner reported that she drove more

than 25,000 miles (not including commuting miles) on business.

That mileage is different from the travel expenses that

Petitioner reported on her tax returns and, at h earing,

attributed to her attendance at spa industry trade shows and

conferences.

54. The amounts reported as "supplies" were for items that

Petitioner bought through conferences, trade shows, and spa

industry publications to try out at the spa such as ba th salts,

oils, and spa equipment. The day - to - day supplies necessary for

operation of the spa were provided by Respondent.

55. The amounts reported as "gifts" were for services

(such as nail care) rendered at the spa by Petitioner for which

Petitioner wa s not compensated, as well as gifts that Petitioner

purchased for vendors or other Westgate department heads who had

done something nice for Petitioner.

56. The amounts reported as "office expense" related to a

home office that Petitioner used to complete work that she

brought home from the spa. Petitioner also had an office at the

spa which was furnished by Respondent with a desk, computer,

telephone, and other items essential to the operation of the

spa.

57. Petitioner also promoted the spa through wo rd - of -

mouth. The amounts reported as meal expenses were for lunches

or dinners paid for by Petitioner at which she discussed or

mentioned the spa.

58. After deduction of expenses, Petitioner reported

"business income" of $29,987 in 1998, $23,714 in 1999 , and

$38,207 in 2000 on her tax returns.

59. Petitioner paid self - employment tax in each of those

years.

60. Above Petitioner's signature on the tax returns for

1998, 1999, and 2000 is the following statement: "Under

penalties of perjury, I declare tha t I have examined this return

and accompanying schedules and statements, and to the best of my

knowledge and belief, they are true, correct, and complete."

61. Petitioner testified at the hearing that she intends

to amend her returns to reflect her status as an employee rather

than an independent contractor and, presumably, eliminate those

expenses which would not be deductible by an employee. However,

as of the date of the hearing, Petitioner had not taken any

formal action to amend her returns.

CONCLUSI ONS OF LAW

A. Jurisdiction and Timeliness

62. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

Statutes. (All references to Sections are to the 2002 edition

of the Florida Statutes. All references to Rules are to the

current version of the Florida Administrative Code.)

63. Respondent did not contest the timeliness of

Petitioner's request for an administrative hearing, and because

the Commission has consistently held that the time for

requesting a hearing is not jurisdictional, see , e.g. , Ambroise

v. O'Donnell's Corp. , FCHR Order No. 02 - 100, at 2 - 3 (Jan. 2,

2003) (Remand Order in DOAH Case No. 02 - 2762), Respondent has

waived that issue . 4

B. Is CFI the Proper Respondent?

64. Respondent suggests for the first time in a footnote

in its PRO that Petitioner's amended charge of discrimination

was "filed against the wrong entity" because it named CFI rather

than CFI Sales as the Respondent.

65. Respondent arguably waived this argument by not

raising it through an answer to the petition for relief/request

for hearing, 5 or by expressly putting the matter into issue at

any point in this proceeding prior to its PRO. Cf. R.J.

Reynolds Tobacco C o. v. Engle , 672 So. 2d 39, 41 (Fla. 3d DCA

1996) (arguments found only in footnote in appellant's brief are

not properly presented to appellate court for review). To the

extent that the argument was not waived, it is rejected for the

reasons that follow.

66. Respondent produced no evidence at the hearing to

dispute Petitioner's characterization of CFI as the "umbrella"

corporation over CFI Sales and other related legal entities

controlled by Mr. Siegel and involved in the operation of the

Westgate timesh are resorts. Nor did Respondent produce any

evidence to contradict the testimony of Petitioner and Ms.

Miller that Mr. Siegel actively and personally controls the

operation of the Westgate resorts whether through CFI, CFI

Sales, or otherwise.

67. Petitio ner's testimony and characterization of the

CFI/CFI Sales/Mr. Siegel relationship is reasonable and is

corroborated by other items in the record. Specifically, the

pleading filed by Respondent on January 14, 2003, confirms that

Mr. Siegel is the president of CFI, and the job description for

the Executive Spa Director position indicates that the position

reported directly to Mr. Siegel even though Petitioner was paid

through CFI Sales. Moreover, Petitioner's insurance and benefit

forms indicate that they w ere processed by the human resources

department of CFI and several identify CFI as Petitioner's

"employer," rather than CFI Sales. Indeed, one of the forms

characterizes "sales and marketing" as the "division" of CFI in

which Petitioner worked.

68. Thus, even though the record does not reflect the

precise legal relationship between or management structure of

CFI and CFI Sales, the evidence is sufficient to demonstrate

that there is a significant interrelationship between the

management and operation of CF I and CFI Sales involving

Mr. Siegel at a high level. As a result, CFI and CFI Sales can

and will be regarded as a "single employer" for purposes of this

case. See generally McKenzie v. Davenport - Harris Funeral Home ,

834 F.2d 930 (11th Cir. 1987); Baker v. Stuart Broadcasting Co. ,

560 F.2d 389 (8th Cir. 1977)

C. Is Petitioner an Independent Contractor or Employee?

69. The Florida Civil Rights Act of 1992 ("the Act"),

codified in Sections 760.01 though 760.11, was patterned after

Title VII of the Civil Rights Act of 1964. As a result, the Act

is construed in a manner consistent with Title VII. See Florida

State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996); Brand v. Florida Power Corp. , 633 So. 2d 504, 509 (Fla.

1st DCA 1994); Florida De pt. of Community Affairs v. Bryant , 586

So. 2d 1205, 1209 (Fla. 1st DCA 1991).

70. Section 760.10(1)(a) provides that:

It is an unlawful employment practice for an

employer . . . [t]o discharge . . . any

individual , or otherwise to discriminate

against a ny 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.

(Emphasis supplied).

71. The federal courts have const rued the similar language

in Title VII -- 42 U.S.C.A. Section 2000e - 2(a), which also

refers to "any individual" -- to extend protection only to

employees and not to independent contractors. See , e.g. ,

Llampallas v. Mini - Circuits Lab , 163 F.3d 1236, 1242 - 4 3 (11th

Cir. 1998) ("The statute [Title VII] 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.").

72. In light of the determination of " no jurisdiction"

issued in this case, the Commission apparently now construes

Section 760.10 in a similar manner. However, at one time, the

Commission expressed a different, and seemingly contrary

interpretation of the statute. See Florida Comm'n on Huma n

Relations v. Brevard County Sheriff's Dept. , 1981 WL 180342

(Feb. 22, 1982):

The Commission refuses to interpret these

provisions [including the predecessor to

Section 760.10(1)(a)] as requiring an

individual to establish the relationship of

master/serva nt, which is commonly referred

to as employer/employee, to be an aggrieved

person within the meaning of Section

23.167(10), Florida Statutes [which is now

codified in Section 760.11(1)].

Id. at *17, quashed on other grounds , 429 So. 2d 1235 (Fla. 5th

DCA 1983).

73. Petitioner also appears to concede that the Act does

not apply to independent contractors despite the broad language

in Section 760.10(1)(a). Indeed, Petitioner has not argued that

she is protected under the Act even if she is found to be an

i ndependent contractor; she has simply argued that she was an

employee of Respondent and not an independent contractor.

74. To determine whether a person is an employer or

independent contractor for purposes of Title VII, the Eleventh

Circuit and most of the other federal Circuits apply a multi -

factored test derived primarily from the common law test for

determining the nature of a principle - agent relationship. See ,

e.g. , Cobb v. Sun Papers, Inc. , 673 F.2d 337 (11th Cir. 1982)

(characterizing the test as a hybrid between the common law test

and a test focusing on the "economic realities" of the parties'

working relationship). And cf. Nationwide Mutual Insurance Co.

v. Darden , 503 U.S. 318, 323 - 24 (1992) (applying a similar

multi - factor test in determining whether the plaintiff was an

employee or independent contractor for purposes of the Employee

Retirement Income Security Act of 1974, which has a scope of

coverage similar to that of Title VII).

75. In Cobb , the Eleventh Circuit identified the following

f actors to be considered in making the determination:

(1) the kind of occupation, with reference

to whether the work usually is done under

direction of a supervisor or is done by a

specialist without supervision; (2) the

skill required in the particular occ upation;

(3) whether the "employer" or the individual

in question furnishes the equipment used and

the place of work; (4) the length of time

during which the individual has worked; (5)

the method of payment, whether by time or by

the job; (6) the manner in which the work

relationship is terminated; i.e., by one or

both parties, with or without notice and

explanation; (7) whether annual leave is

afforded; (8) whether the work is an

integral part of the business of the

"employer"; (9) whether the worker

accum ulates retirement benefits; (10)

whether the "employer" pays social security

taxes; and (11) the intention of the

parties.

Cobb , 673 F.2d at 340. See also Eisenberg v. Advance Relocation

and Storage, Inc. , 237 F.3d 111, 114 (2nd Cir. 2000) (applying a

13 - factor test which includes many of the same factors as in

Cobb ); Cattin v. Gov't Employees Ins. Co. , DOAH Case No. 88 -

5687, 1989 WL 645106, at *6 (Nov. 1, 1989) (applying a similar

test based upon the Restatement (Second) of Agency); IRS Revenue

Ruling No . 87 - 41 (identifying 20 factors that the IRS uses in

determining whether a person is an employee or independent

contractor for tax purposes, many of which are similar to the

factors in Cobb ).

76. Not all of the factors are implicated in every case.

Thos e factors which are "irrelevant or [] of 'indeterminate'

weight -- that is, those factors that are essentially in equipoise

and thus do not meaningfully cut in favor of either the

conclusion that the worker is an employee or the conclusion that

he or she is an independent contractor" must be disregarded.

Eisenburg , 237 F.3d at 114. "[O]nly those factors that are

actually indicative of agency in the particular circumstances

[of the case at issue]" should weigh into the balance. Id.

(citation omitted).

77. No factor is determinative, but "special weight should

ordinarily be placed on the extent to which the hiring party

controls the 'manner and means' by which the worker completes

her assigned tasks, rather than on how she is treated for tax

purposes or whe ther she receives benefits." Id. at 119. See

also Daughtrey v. Honeywell, Inc. , 3 F.3d 1488, 1492 (11th Cir.

1993) ("While the characterization of the hired party as an

independent contractor or an employee may be probative of the

parties' intent, all of the incidents of the relationship must

be assessed and weighed with no one factor being decisive.")

(internal quotations omitted).

78. Indeed, the Second Circuit expressly stated in

Eisenberg , 237 F.3d at 117, that "courts should not ordinarily

place extr a weight on the benefits and tax treatment factors."

(Emphasis in original). Accord Nowlin v. Resolution Trust

Corp. , 33 F.3d 498, 506 (5th Cir. 1994).

79. The "manner and means" factor is evaluated by focusing

on whether the alleged employer has the ri ght to hire and fire

the individual, the right to supervise the individual, and the

right to set the individual's work schedule. See , e.g. , Deal v.

State Farm County Mutual Ins. Co. , 5 F.3d 117, 119 (5th Cir.

1993).

80. Applying the factors identified i n the cases cited

above to the circumstances of this case presents a close

question. Some of the factors weigh in favor of finding

Petitioner to be an independent contactor, while others weigh in

favor of finding Petitioner to be an employee of Respondent . On

balance, the preponderance of the credible evidence and the

majority of the relevant factors demonstrate that Petitioner was

an employee of Respondent, despite Respondent's characterization

of her as an independent contractor for tax purposes and the

resulting tax returns that Petitioner filed based upon that

characterization.

81. The most significant factors which indicate that

Petitioner was an employee rather than an independent contractor

are the absence of a written contract between the parties

(despite the fact that Respondent's "independent contractor"

salespersons had contracts as did the consulting firm brought in

after Petitioner was terminated), and the fact that Petitioner

was not permitted to and did not provide her spa management

servic es to any other entity.

82. The nearly three - year term and continuing nature of

Petitioner's work as Executive Spa Director also suggests an

employer/employee relationship. Indeed, during that period,

Petitioner was on salary, she was paid on a weekl y basis, and

for almost two of her three years as Executive Spa Director she

was provided benefits by Respondent.

83. Furthermore, the spa was an important aspect of

Respondent's business, and all of the spa staff (with the

exception of Petitioner) were employees of Respondent. The spa

was an amenity used by Westgate unit owners and it was also used

as a sales tool in selling timeshare units at Westgate.

84. Although Petitioner's hours were not specifically set

by Respondent, the fact that Mr. Siegel expected Petitioner to

be at the spa at all times is an indicia of Respondent's control

over the "manner and means" of Petitioner's employment. Another

indicia of Respondent's control is the monthly written reports

that Petitioner was required to submit t o Mr. Siegel detailing

the operation of the spa. Respondent's control over

Petitioner's employment is further evidenced by the fact that

Petitioner was required to perform her services personally, that

she did not have her own employees to whom she could delegate

her duties, and that Respondent could (and ultimately did) fire

Petitioner without notice or contractual liability.

85. None of these indicia of control is individually

determinative. Collectively, however, they indicate that

Respondent exercise d some (even if not full) control over the

"manner and means" that Petitioner did her job. Those indicia

of control outweigh the contrary indicia reflected in

Petitioner's tax returns including Petitioner's independent (and

apparently unapproved) marketin g of the spa. Indeed, there is

no evidence that Petitioner's promotional efforts (to the extent

that the expenses reported on the tax returns were indeed

legitimate "business expenses") provided any benefit to

Petitioner such as through an increase in her salary because of

an increase in the spa's profitability.

86. Petitioner's work, for the most part, was done on

Respondent's premises at the spa. Respondent furnished the

tools necessary for Petitioner to run the spa -- e.g. , the

staff, the spa equipme nt, a desk and computer. The fact that

Petitioner also had a home office where she worked on spa

business "after hours" is not unreasonable, given Petitioner's

title and job function, and it is not significant in this

instance.

87. Petitioner was not a business in the traditional

sense. Her only income was the compensation that she received

as Executive Spa Director and, as a result, Petitioner was

economically dependent upon Respondent. See Cobb , 673 F.2d at

339. Petitioner did not employ any assista nts and she was not

responsible for paying the spa staff. The fact that Petitioner

paid self - employment tax and liberally deducted expenses on her

tax return appears to be more a function of the manner in which

Respondent chose to pay her than of the ac tual nature of the

parties' relationship or Petitioner's status as a business.

88. The undersigned has not overlooked the factors which

would support the determination that Petitioner was an

independent contractor, such as Respondent's apparent intent to

treat Petitioner as an independent contractor by using a 1099

form to pay her and by not withholding federal, state, or social

security taxes from her paychecks. That intent is undercut (at

least in part) by the benefits that Respondent provided to

Petit ioner for two of the three years that she was in the

position of Executive Spa Director, as well as by Petitioner's

unrebutted testimony regarding the level of control that Mr.

Siegel exerted over her work.

89. Nor has the undersigned overlooked Responde nt's

argument that Petitioner is estopped by her tax returns from now

claiming that she was an employee rather than an independent

contractor. However, Petitioner's tax returns were a direct

result of Respondent's tax treatment of Petitioner and, as a

res ult, the tax returns are not determinative of Petitioner's

employment status for purposes of this case. See Eisenberg , 237

F.3d at 117; Nowlin , 33 F.3d at 506.

90. Moreover, the cases relied upon by Respondent in its

PRO in support of its estoppel argum ent are distinguishable.

Each of those cases involved situations where a party took

contrary positions during the course of litigation involving the

same adverse party or an adverse party with similar interests.

See Dubois v. Osborne , 745 So. 2d 479, 481 (Fla. 1st DCA 1999)

(party's current position was inconsistent with that taken in

prior appeal); Standford v. CSX Transportation, Inc. , 637 So. 2d

37, 38 (Fla. 2nd DCA 1994) (party's current position allegedly

inconsistent with position taken at the outse t of the case);

Blumberg v. USAA Casualty Ins. Co. , 790 So. 2d 1061, 1066 (Fla.

2001) (party's current position was inconsistent with the

position that it took in a very similar prior suit).

91. Here, there is no mutuality of parties because the

stateme nts which Petitioner allegedly repudiated in this

proceeding were made to the Internal Revenue Service (IRS), not

Respondent. Moreover, as noted in Blumberg , 790 So. 2d at 1066,

"[t]here can be no estoppel where . . . the conduct relied on to

create the e stoppel was caused by the act of the party claiming

the estoppel, or where the positions taken involved solely a

question of law." The conduct relied upon as the basis of the

estoppel -- i.e. , Petitioner's filings with the IRS – resulted

in large part fro m the 1099 forms given to Petitioner in the

first instance; and, to the extent that the "position" taken by

Petitioner with the IRS was that she was an independent

contractor, that is a question of law. See , e.g. , Cobb , 673

F.2d at 340 - 41.

92. That sai d, it certainly appears that Petitioner took

advantage of the fact that she was paid through 1099 forms

rather than W - 2 forms by liberally deducting a variety of

expenses on her tax returns. The nature and extent of the

deductions taken by Petitioner weig hed into the undersigned's

evaluation of Petitioner's credibility and, ultimately, the Cobb

factors. The propriety of those deductions, however, is a

matter that Petitioner will have to deal with in another forum.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order which:

1. determines that Petitioner was an employee of

Respondent rather than an independent contractor for purposes of

the Flo rida Civil Rights Act of 1992; and

2. directs the Commission staff to re - open its

investigation into the merits of Petitioner's amended charge of

discrimination against Respondent.

DONE AND ENTERED this 17th day of April, 2003, in

Tallahassee, Leon Count y, Florida.

___________________________________

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850 ) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April, 2003.

ENDNOTES

1/ On March 21, 2003, Petitioner filed an unopposed motion for

an additional extension of time -- through March 24, 2 003, at

noon -- to file her PRO. That request is hereby granted nunc

pro tunc March 21, 2003.

2/ In light of the interrelationship between CFI and CFI Sales,

all subsequent references to "Respondent" in this Recommended

Order include both entities unles s the context indicates

otherwise. And see Conclusions of Law, Part B.

3/ The copy of the 1998 tax return introduced at the hearing

(Exhibit R2) did not include the second page of Schedule C which

itemizes the "other expenses" reported by Petitioner. H owever,

Petitioner testified that such expenses were of the same type as

those listed on the tax returns for the subsequent years.

4/ Nevertheless, it must be pointed out that the 35 - day period

set forth in the Commission's determination letter with whic h

Petitioner complied does not appear to have any basis in statute

or rule. That period is presumably derived from the 35 - day

periods set forth in Section 760.11(6) and (7), but those

statutes are only implicated where the Commission issues a

determinatio n of "cause" or "no cause." In this case, the

Commission issued a determination of "no jurisdiction" not a

determination of "cause" or "no cause." The Commission's own

rules provide only a 30 - day period to request a hearing to

contest the Commission's de termination of "no jurisdiction."

See Rule 60Y - 5.008(1). Of course, as pointed out in the

Recommended Order in Ambroise , the Commission's procedural rules

are ineffective (and have been since at least 1998) to the

extent that they conflict with the Unifo rm Rules of Procedure

adopted pursuant to Section 120.54(5). See Ambroise , DOAH Case

No. 02 - 2762, Recommended Order at 10 - 11, remanded on other

grounds , FCHR Order No. 02 - 100 (Jan. 2, 2003). See also

Plaisime v. Marriott Key Largo Resort , DOAH Case No. 0 2 - 2183, at

6 - 10 (Feb. 14, 2003); Waldron v. Wackenhut Corrections Corp. ,

DOAH Case No. 02 - 4048, at 7 - 9 (Apr. 1, 2003). The 30 - day period

provided in Rule 60Y - 5.008(1) is in direct conflict with Rule

28 - 106.111(2) which requires a petition for hearing to b e filed

"within 21 days of receipt of written notice of the [agency's]

decision." Accordingly, a request for an administrative hearing

based upon the Commission's determination of "no jurisdiction"

must be filed with the Commission ( i.e. , received by the Clerk

of the Commission, see 28 - 106.104(1)) within 21 days after the

date that the Petitioner receives the Commission's

determination. The record does not reflect the date that

Petitioner actually received the Commission's determination

either personally or through her prior counsel ( see Woodard v.

Fla. State Univ. , 518 So. 2d 336, 337 (Fla. 1st DCA 1997)), but

if the Commission's "constructive notice" analysis from its

Remand Order in Ambroise is applied, the 21 - day period would be

computed from August 11 , 2002 ( i.e. , 5 days after the date of

the Commission's determination letter). Using that date, the

request would be untimely under Rule 28 - 106.111(2) since it was

received 31 days thereafter. Ultimately, however, this issue is

academic in this case (alt hough it clearly needs to be brought

to the Commission's attention so that the notices issued in

future cases involving "no jurisdiction" determinations can be

corrected) because Respondent did not contest the timeliness of

Petitioner's request for an admi nistrative hearing.

Accordingly, it is equally unnecessary to determine whether the

doctrine of equitable tolling might save Petitioner's untimely

request for a hearing in this case. See Machules v. Dept. of

Administration , 523 So. 2d 1132 (Fla. 1988)(se tting forth the

standards for application of the doctrine of equitable tolling);

Cann v. Dept. of Children & Family Servs. , 813 So. 2d 237 (Fla.

2nd DCA 2002) (excusable neglect no longer saves an untimely

request for an administrative hearing, but equitab le tolling

might).

5/ See Rule 60Y - 5.008(5)(c) (stating that the failure to plead

an affirmative defense in an answer to the petition for relief

constitutes waiver of that defense). But cf. Plaisime , supra ,

at 6 - 10 (concluding that the Rule 60Y - 5.008(5 ) is "a nullity"

because it is in conflict with Rule 28 - 106.203 which is part of

the Uniform Rules of Procedure).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florid a 32301

Richard W. Epstein, Esquire

Greenspoon, Marder, Hirschfeld,

Rafkin, Ross & Berger

Trade Centre South, Suite 700

100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

Myrna L. Maysonet, Esquire

Greenspoon, Marder, Hirschfeld,

Rafkin, Ro ss & Berger

Trade Centre South, Suite 700

100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

Lisa K. Tietig, Esquire

Tietig & Tietig, P.A.

6065 South Tropical Trail

Merritt Island, Florida 32952

Cecil Howard, General Counsel

Florida Commissi on 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 t his Recommended Order should be filed with the agency that

will issue the Final Order in this case.