04-001762 Kamal Assily vs. Memorial Hospital Of Tampa Status: Closed Recommended Order on Wednesday, March 16, 2005.

Summary: Petitioner alleged discrimination as an employee of the hospital. Petitioner was not an "employee," but at all times was an independent contractor. Recommend that petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAMAL ASSILY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1762

)

MEMORIAL HOSPITAL OF TAMPA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, t his cause came on for final hearing

before Fred L. Buckine, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings, on October 28,

2004, by video teleconference at sites in Tallahassee and Tampa,

Florida.

APPEARANCES

For Peti tioner: Kamal Assily, pro se

Post Office Box 3446

Tampa, Florida 33601 - 3446

For Petitioner: Robert W. Horton, Esquire

Bass, Berry & Sims, PLC

315 Deaderick Street, Suite 2700

Nashville, Tennessee 37238

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent violated

the Florida Civil Rights Act of 1992, as amended, by

discriminating against Petitioner by denying Petitioner

opp ortunities to establish an employment relationship afforded

other workers of different national origin and by subjecting

Petitioner to disparate treatment because of his national

origin, as alleged in the Petition for Relief.

PRELIMINARY STATEMENT

On Febru ary 12, 2003, Petitioner, Kamal Assily, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (Commission or FCHR) alleging that Respondent,

Memorial Hospital of Tampa, had discriminated and retaliated

against him in violation of the Florida Civil Rights Act of

1992, as amended, Sections 760.01 through 760.11, Florida

Statutes (2000). The alleged discrimination was based on

national origin.

On April 13, 2004, the Commission issued a letter of

Determination: No Jurisdiction. The determination was based on

the Commission's investigation and resulting memorandum

submitted to the Office of the General Counsel who concurred

with the conclusion of no jurisdiction.

On April 27, 2004, Petitioner filed a request for

reconsideration of the determination with the Commission, and,

on May 6, 2004, the Commission directed Petitioner to refute its

determination of no jurisdiction by filing a petition for relief

with the Division of Administrative Hearings (DOAH). On May 17,

2004, Petitioner's P etition for Relief, claiming discrimination

on the basis of his national origin, was filed with the

Commission.

On May 19, 2004, the Commission referred the Petition for

Relief, Notice of Determination, and the Employment Charge of

Discrimination to DOAH, requesting assignment of an

Administrative Law Judge to conduct all necessary proceedings.

On June 18, 2004, the Notice of Hearing, scheduling the

final hearing for July 20, 2004, and Order of Pre - hearing

Instructions were entered. By Order of June 28, 20 04, the final

hearing was rescheduled for August 27, 2004.

On August 9, 2004, Petitioner filed a Motion to Recuse

Judge, and, by Order of August 16, 2004, Petitioner's Motion to

Recuse Judge was denied.

On August 24, 2004, an Order granting Respondent's Mo tion

for Continuance was entered, rescheduling the final hearing for

September 17, 2004.

By Order dated August 31, 2004, Respondent's Motion to

Confirm Qualified Representative was granted.

On September 2, 2004, Respondent filed a second Motion to

Continue , and, by Order dated September 17, 2004, the final

hearing was rescheduled for October 28, 2004.

On September 23, 2004, Petitioner filed a Motion to Remand

the proceeding to FCHR and to direct FCHR to issue a final order

that Petitioner was an employee of Respondent, and the motion

was heard via telephonic conference on October 1, 2004. By

Order dated October 5, 2004, Petitioner's Motion to Remand was

denied, and, by Order of the same date, Petitioner was required

to comply with all outstanding discovery and make himself

available for deposition no later than 14 days before the final

hearing scheduled for October 28, 2004. Petitioner did not

respond to Respondent's discovery and failed to comply with the

October 5, 2004, Order.

By Order dated October 11, 2004, Petitioner was required to

show cause within ten days why DOAH did not have jurisdiction

after FCHR's determination of no jurisdiction, and both parties

responded on October 21, 2004.

On October 19, 2004, an Amended Notice of Video

Teleconference, sc heduling the hearing via video teleconference

with sites in Tallahassee and Tampa, Florida, on October 28,

2004, was entered.

The final hearing took place on October 28, 2004, via video

teleconference with the parties located in Tampa, Florida, and

the und ersigned in Tallahassee, Florida.

At the final hearing, the parties were advised that all

pending motions, motions for reconsideration of previously ruled

upon motions, motions and counter motions for dismissal, motions

for remand, and all other motions no t previously heard and ruled

on would be taken under advisement pending the conclusion of the

final hearing.

The undersigned took official recognition, identified and

accepted as Court's (DOAH) exhibits: A - 1, Respondent's

confirmation of U.S. Postal Servi ce tracking number of a

September 2, 2004, confirmed delivery of discovery request to

Petitioner's address of record, Post Office Box 3446, Tampa,

Florida 33601 - 3446; A - 2, Respondent's confirmation of U.S.

Postal Service tracking number of delivery of disc overy request

to Petitioner's address of record July 16, 2004, post to

Petitioner's address of record; and A3, Respondent's

confirmation of U.S. Postal Service tracking number of a

July 22, 2004, delivery of discovery request to Petitioner's

address of re cord.

At the final hearing, Petitioner testified on his own

behalf but was precluded from introducing into evidence any and

all exhibits which were not provided to Respondent as directed

by the Order of October 5, 2004.

Respondent presented the testimony o f Robert Mitchell,

director of the Respiratory Care Department for Respondent, and

offered 28 exhibits, all of which were accepted into evidence.

All outstanding motions of Petitioner and Respondent were

denied at the commencement of the final hearing. The parties

were given leave to renew any motion for the record during the

conclusion phase of the hearing. Petitioner renewed his

October 7, 2004, answer/motion titled: Answer to Respondent's

Motion to Dismiss and Petitioner's Second Motion to Dismiss

Respondent's Representative and Motion to Strike and to

Sanction. Respondent renewed its October 15, 2004, motion

titled: Respondent's Motion to Dismiss. Rulings on those

motions are made infra .

The one - volume Transcript was filed on November 10, 2004,

and the parties were provided ten days after receipt of the

Transcript to file their proposed recommended orders.

On November 24, 2004, Petitioner requested an extension of

time to file his proposed recommended order, and, by Order of

November 29, 2004, t he time for filing proposed recommended

orders was extended to December 10, 2004. Each party filed a

Proposed Recommended Order on December 13, 2004, and each

party's proposal was given thoughtful consideration by the

undersigned Administrative Law Judge.

FINDINGS OF FACT

Based upon the observation of the witnesses and their

demeanor while testifying; stipulations by the parties;

documentary materials received in evidence; evidentiary rulings

made pursuant to Sections 120.569 and 120.57, Florida Statutes

( 2003); and the entire record of this proceeding, the following

relevant and material findings of fact are determined:

Relationship Between Petitioner and Respondent

1. At all times material, Petitioner, Kamal Assily, was an

electroencephalogram (EEG) tech nician, and on June 1, 1996,

Petitioner signed a written agreement, as an "independent

contractor," between Respondent, Memorial Hospital of Tampa, and

Town and Country Hospital, working as an on - call EEG technician

to provided EEG services when needed. 1 The term "on - call"

obligated Petitioner to respond and provide services when called

by Respondent, and, given the time and date, Petitioner would

make himself available to provide EEG services. Petitioner was

free to offer and provide EEG services to both Respondent and to

Town and Country Hospital, another hospital located in Tampa,

Florida. Each "independent contractor" agreement was for a

one - year (365 days) duration. Petitioner performed EEG services

under the independent contractor's contract(s), i nvoiced

Respondent, and was paid for services rendered. By admission,

Petitioner acknowledged that Respondent: (1) did not withhold

taxes (federal, state income) from compensation paid for his

services, (2) did not provide health insurance benefits to

Pe titioner, (3) required Petitioner to secure and maintain

personal liability insurance for work performed for Respondent,

and (4) did not direct, control, or supervise Petitioner's

actual work and performance when he was engaged in performing

service as an EEG technician.

Professional Liability Insurance Coverage

2. As an independent contractor, Petitioner was required

by Respondent to secure, and Petitioner did secure, personal

professional liability (EEG) insurance in the amount of one

million dollars per occurrence and three million dollars

aggregate throughout the duration of each yearly contract.

3. Petitioner continued his independent contractor

relationship with Respondent from 1996 to 1997 through 1999 by

signing yearly independent contracts. On De cember 29, 2000,

Petitioner entered into and signed a written agreement, as an

"independent contractor," with Respondent effective from

December 29, 2000, until December 29, 2001. 2

Billing and Payments for EEG Services

4. By invoice dated February 1, 200 0, Petitioner invoiced

Respondent for EEG services performed on four patients: M.F.,

November 2, 1999; D.C., December 1, 1999; R.G., December 20,

1999; and M.B., January 31, 2000, at a rate of $200.00 per

client for a total of $800.00. Respondent approve d this invoice

for pay on February 22, 2000. Respondent withheld no income

taxes, and no social security was withheld from payment to

Petitioner for EEG services rendered. It is noted, and found,

that Petitioner worked year after year with the aforesaid yearly

written agreement, as an "independent contractor," with

Respondent from 1996 to 1997 through 1999 to 2000. Petitioner

signed every written agreement as an "independent contractor,"

and neither did Petitioner request Respondent to, nor did an

agent for Respondent, "sign" the yearly agreements. Having

repeatedly entered into and signed each written agreement year

after year and not requiring Respondent's agent's signature each

year nullifies Petitioner's at - hearing argument that the

agreements were n ot signed by Respondent and thus not binding

nor sufficient to establish his relationship as that of an

"independent contractor" and by inference established an

"employer - employee relationship."

5. On April 1, 2000, Petitioner invoiced Respondent for

EEG services performed on nine patients during the month of

March 2000, at the rate of $200.00 per EEG for a total of

$1,800.00. Respondent approved that invoice for payment on

April 17, 2000.

6. On January 1, 2001, Petitioner invoiced Respondent

$800.00, fo r EEG services performed on January 1, 2001;

February 1, 2001; September 1, 2000; and November 1, 2000.

At all times material, Respondent did not provide Petitioner

with health insurance benefits. Respondent withheld no income

taxes, and no social secu rity was withheld from payment to

Petitioner for EEG services rendered under the written agreement

as an "independent contractor" and invoiced on January 1, 2001.

Federal Taxes Withheld from Payment to Petitioner for EGG

Services Rendered

7. At the end o f each year Petitioner worked for

Respondent, from 1996 to 1997 through December 29, 2000,

Petitioner received an Internal Revenue Service (IRS) 1099

income tax form from Respondent identifying and reporting the

total income paid for services during the pr eceding tax year as

"non - employee compensation." At no time during the 1996 through

2000 contractual relationship did Respondent provide, or

Petitioner request, an IRS W - 3 form, summarizing total wages

paid during the preceding year and the amount of fede ral income

taxes withheld from the employee's total wages as reported to

the IRS. Petitioner's at - hearing, after - the - fact, argument that

Respondent provided him "benefits" in the form of discount food

in the hospital cafeteria is unworthy of serious consi deration.

Limitation of Services and Equipment Provided

8. Petitioner was limited to providing EEG technician

services only on an "as needed" basis and, when not working for

Respondent, remained "on - call" subject to the schedule of

Respondent's needs. D uring the times Petitioner was not

providing EEG technician services to Respondent, he was free to

provide his EEG technician services to Town and Country

Hospital.

9. Respondent provided the EEG equipment, the work

facility location, and schedule of serv ices. Petitioner was

responsible, with respect to his EEG work product, to the

physician requesting EEG services for his patients. Petitioner

was responsible, with respect to notice of his work schedule,

for maintenance and upkeep of EEG equipment and fo r reporting

protocol and resolution of complaint to the director of

"Hospital Manager of Respiratory Care." Petitioner was not

permitted to subcontract or hire - out any EEG services provided

Respondent under their written agreement.

Supervision of Petition er's Performance of EEG services

10. As director of "Hospital Manager of Respiratory Care,"

Ronald Mitchell was responsible for the overall functions of the

equipment and operators of the EEG equipment. Included in his

overall responsibilities were assur ing compliance with hospital

protocol; at the request of physicians, providing EEG reports

and EEG test results; entering EEG test results into the

patients' charts; and cleaning and maintaining EEG machinery

after each use. Mr. Mitchell was Petitioner's contact person

with the hospital, but in no wise managed the "means and

methods" in which Petitioner performed his EEG services and

assignments.

Complaints Received From Hospital Staff and Patients About

Petitioner

11. During mid - year of 2000, Mr. Mitchel l became concerned

about the overall services Petitioner was providing Respondent.

One major concern was Petitioner's habit of placing a copy of

the EEG test results on the requesting physician's desk but not

ascertaining that the physician's report had b een accurately

transcribed. A second concern was Petitioner's failure to place

the EEG test results on the patients' medical charts.

Mr. Mitchell conferred with Petitioner regarding these matters,

requesting that in the future Petitioner would correct t he

situation. Petitioner, relying on his independent contractual

document, refused to comply with Mr. Mitchell's request without

an agreement for additional compensation being paid to him over

and above the amounts charged for the EEG testing. Respondent

refused Petitioner's additional compensation request, insisting

that the requested services were part and parcel of Petitioner's

contractual obligations.

12. Mr. Mitchell also began to receive complaints from

patients and some staff nurses regarding Peti tioner's rude and

abusive conduct toward them. In August of 1998, one nurse

reduced her concerns to writing detailing Petitioner's rude

conduct to a long - time patient who relayed her complaints to the

nurse. Mr. Mitchell spoke to the patient, the patient 's husband

and the nurse involved. These three persons confirmed

experiencing rude and unprofessional conduct by Petitioner.

Thereafter the complaining patient refused to permit Petitioner

to do another test on her person. When Petitioner was

confronted by Mr. Mitchell and given an opportunity to respond,

Petitioner suggested the complaining patient suffered with

"mental confusion."

13. On January 29, 2001, Petitioner wrote a letter to

Connie Hawthorn, chief executive officer (CEO) of Respondent.

The f irst two sentences stated:

I am a service provider of

Electroencephalographic procedures (EEG) who

is known to Memorial Hospital. Certain

unsettling and growing concerns that involve

your employee Director Ron Mitchell, have

prompted me to seek your atten tion.

In the first sentence above, Petitioner identified himself and

his relationship with the hospital, not as an "employee" as he

identified Mr. Mitchell, but rather as one who independently

provided services. A fair and unbiased reading of Petitioner' s

letter supports a reasonable inference that Petitioner did not

consider himself, as he considered Mr. Mitchell, as an

"employee," but rather as an independent contractor.

Care and Maintenance of EEG Machinery

14. As the user/operator of the EEG machine, it was the

responsibility of Petitioner to maintain the EEG machine in

proper operating condition. This required the operator, after

each use, to clean, care, adjust, and maintain the EEG machine

used. In 1998, Mr. Mitchell received reports from other

h ospital staff responsible for the "routine" maintenance of

hospital equipment that the EEG machine used by Petitioner was

left in a "mess," resulting from improper wipe - down, clean - up,

and after - use care. When confronted by Mr. Mitchell with this

issue, a s he had in the past, Petitioner denied responsibility

for the condition of the EEG machine and suggested that the

condition of the EEG machine was the result of improper service

by the hospital's maintenance department.

Full - Time EEG Service Provider Hire d by Respondent

15. In 1999 to 2000, Respondent hired an employee, Terry

Pinkley, to provide full - time EEG services to the hospital.

When Dr. Tyler (no first name in the record), a staff physician,

became aware of the new EEG provider, he requested that

Petitioner be allowed to continue providing intra - operative EEG

services for his patients when he performed surgery, and

Respondent acquiesced to Dr. Tyler's request. Petitioner was

thereafter restricted to on - call intra - operative EEG services by

request of only Dr. Tyler.

Purchase of New EEG Machine

16. In the fall of 1999, an outside service provider was

called to provide overhaul maintenance service on the EEG

machine at Respondent's facility. During the maintenance

process the service provider determ ined that the adjustment

mechanisms on Respondent's EEG machine were inoperative. In

early 2000, Respondent purchased a new EEG machine. The

company's representative advised and cautioned Respondent that

the new EEG machine should not be used during surg ery because of

the possibility of monitor failure. The "no surgery"

restriction on the new EEG machine further reduced, to the point

of eliminating, the need for Petitioner's intra - operative EEG

services at the request of Dr. Tyler when one of his patient s

was going into surgery.

Contracting Out EEG Services

17. In May of 2000, Respondent determined that there was

an insufficient demand for EEG testing to keep its EEG employee

on staff. The EEG service was again offered to independent

contract services for bid. Petitioner was informed of the bid

offering, but failed to enter his bid in a timely manner. The

independent contractor bid was awarded to Protech Neurology

Services (Protech). By this time, Petitioner's dwindling

workload that was previously r estricted to intra - operative EEG

services only when requested by Dr. Tyler, dwindled even

further.

18. In mid 2000, Mr. Mitchell told Petitioner that the

hospital required a new independent contract that accurately

reflected his restricted EEG services t o intra - operative EEG

services only when requested by Dr. Tyler. Petitioner submitted

several proposed independent contracts, none of which was found

acceptable by Respondent. Petitioner's last independent contact

offer included an "exclusive non - compete status" clause that

Respondent refused to accept. Petitioner's proposed "exclusive

non - compete status" clause evidenced the intent of an

independent contractor, not the intent of an employee seeking to

retain his employment.

Last Independent Contractor E mployment with Respondent

19. In January 2001, Mr. Mitchell met with Dr. Tyler,

discussing with him Petitioner's refusal to enter into a new

independent contractor's contract reflecting Petitioner's

limited EEG service as intra - operative EEG services only when

requested by Dr. Tyler. Dr. Tyler agreed to discontinue

requesting and using Petitioner's EEG services. Having no

further need for EEG services previously provided by Petitioner,

Respondent, in February 2001, finalized and terminated its

contractua l relationship with Petitioner, by noting on

Petitioner's February 2001 invoice that: " Kamal is no longer a

service provider for Memorial Hospital. This is the last bill. "

Thereafter, Respondent never again called Petitioner to perform

work as an EEG te chnician.

20. Prior to expiration of the Protech Neurology Services'

May 2001 contract, Respondent, as was the past practice,

requested bids from potential EEG providers, to include

Petitioner. Petitioner refused to submit a bid for the May 2001

contract ual EEG work with Respondent. Petitioner gave his

reason for not bidding as follows:

[O]ngoing pre - existing open and documented

employment interest in Memorial Hospital of

Tampa . . . essentially precedes and

supercedes the invitation - to - bid letter.

Peti tioner's apparent intention of the above phrase, "[O]ngoing

pre - existing open and documented employment interest," without

providing an explanation of record, was an attempt to establish,

by inference, the basis of an "employee - employer" relationship.

An "employee - employer" relationship, not by circumstances or by

after - the - fact, self - serving statements of Petitioner, is not

inferred by the undersigned. The May 2001 - 2002 EEG technician

contract was awarded to Protech.

After - Termination Activities by Petit ioner

21. From May 29, 2001, until the filing of his initial

complaint with the Commission on February 12, 2003, Petitioner

engaged in an ongoing telephoning and letter - writing campaign

with the CEO of the facility, with the division president of the

owne r of Respondent's facility, and with the operations counsel

for the owners. Petitioner presented a written proposed

"settlement agreement" to resolve his disputed "ongoing pre -

existing open and documented employment interest that precedes

and supercedes t he invitation to bid letter." On September 6,

2001, operations counsel of the owner of Respondent's facility

wrote Petitioner informing him, as Respondent had repeatedly

done so in the past, that there is no issue to settle and no

desire for continued com munication with him.

Filing of Charge of Discrimination by Petitioner

22. More than two years after Petitioner last billed for

EEG services provided in February 2001 (when Respondent

terminated its contractual relationship with Petitioner noting

on Petiti oner's February 2001 bill that "Kamal is no longer a

service provider for Memorial Hospital"), Petitioner

acknowledged, by itemizing those events he claimed in his Charge

of Discrimination as: (1) the hiring of Mr. Pinkley in 1999,

(2) the contracting wi th Protech in May 2000 and June 2001,

(3) the conversation he had with Respondent's director in

January 2001, and (4) termination of his service as intra -

operative EEG technician for Respondent.

National Origin or Ancestry of Petitioner

23. Petitioner, a Title VII complainant, did not offer nor

is there present in the record, evidence of Petitioner's racial

minority status, either by establishing his national origin or

his ancestry, as that term is defined in Subsection 760.02(5),

Florida Statutes (2003). Petitioner did not offer nor is there

present in the record, evidence that the national origin or

ancestry or racial status of Mr. Pinkley, who was hired by

Respondent in 1999 as a full - time EEG technician, was different

from that of Petitioner. The fai lure of Petitioner to establish

his national origin or his ancestry or racial minority status

resulted in an inability to satisfy the first prong of a prima

facie case burden of proof requirement. Petitioner's failure is

fatal.

24. The evidence is clear that during all times material,

starting in 1996 until February 2001, when Respondent terminated

his services, Petitioner performed EEG technician services for

Respondent as an independent contractor.

25. The evidence is clear that the operative, factual, and

legal relationship existing between Petitioner and Respondent,

starting in 1996 and continuing, year after year by separate

yearly written contracts, through February 2001, was at no time

an "employer - employee" relationship.

26. The evidence is clear that during all times material,

Respondent was an "employer" as that term is defined in

Subsection 760.02(7), Florida Statutes (2003).

27. The evidence is clear that during all times material,

Petitioner was an "aggrieved person" as that term is defined in

Subsection 760.02(10), Florida Statutes (2003).

28. The evidence is clear that Petitioner did not

establish his national origin or his ancestry, as that term is

defined in Subsection 760.02(5), Florida Statutes (2003).

29. All the evidence of record, viewed most favorably,

clearly demonstrated that Petitioner failed on the initial

burden of establishing a prima facie case of discrimination.

By the Findings of Fact hereinabove, all other motions raised by

Petitioner and Respondent and taken under advise ment are moot.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding pursuant to Section 120.569 and Subsections 120.57(1)

and 760.11(7), Florida Statutes (2004).

31. Petitioner is a "person" within the meaning of

Subsection 760.02(6), Florida Statutes (2003).

32. Petitioner is an "aggrieved person" within the meaning

of Subsection 760.02(10), Florida Statutes (2003).

33. Respondent is an "employer" within the meanin g of

Subsection 760.02(7), Florida Statutes (2003).

34. Petitioner has made allegations under the Florida

Civil Rights Act of 1992. This act was patterned after Title

VII of the Civil Rights Acts of 1964 and 1991, Title 42 U.S.

Code, Section 2000, et seq . See Florida Department of Community

Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991); School

Board of Leon County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA

1981).

35. Petitioner has the burden of proving by the

preponderance of the evidence that Re spondent committed an

unlawful employment practice. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

36. The United States Supreme Court set forth the

following burden of proof that must be met by a Title VII

plaintiff in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d (1973): The complainant must carry

the initial burden of establishing a prima facie case of race

discrimination. This may be done by showing that

(1) complain ant belongs to a racial minority; (2) complainant

applied and was qualified for a job for which the employer was

seeking applicants; (3) despite complainant's qualifications,

complainant was rejected; and (4) after rejection, the position

remained open and the employer continued to seek applicants from

persons of complainant's qualifications. After the complainant

satisfies this burden, the burden shifts to the employer to

articulate some legitimate, non - discriminatory reason for the

employee's rejection. If the employer articulates such a

reason, the complainant must then be afforded a fair opportunity

to show that the employer's stated reason was in fact, a

pretext. In Texas Department of Community Affairs v. Burdine ,

450. U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), the

U.S. Supreme Court reiterated that the plaintiff always retains

the burden of persuasion. Once the plaintiff has established a

prima facie showing of discrimination, the defendant need only

articulate -- it need not prove -- the exis tence of a legitimate,

non - discriminatory reason for its actions. The plaintiff then

retains the burden of persuading the court that the offered

reason is a pretext and that a discriminatory reason likely

motivated the employer in its actions.

37. In thi s proceeding, Petitioner failed to adduce

evidence in the record establishing the threshold burden of his

national origin or ancestry to prove that by his national origin

or ancestry he belonged to a racial minority. That failure is

fatal to a Title VII c omplaint.

38. Title VII protects only employees, and not independent

contractors. See Broussard v. L. H. Bossier, Inc. , 789 F.2d

1158, 1160 (5th Cir. 1986). Likewise, independent contractors

are not protected under Chapter 760, Florida Statutes.

39. Th e Eleventh Circuit has deemed the following economic

reality factors relevant in determining whether one is an

independent contractor or an employee: (1) the kind of

occupation, with reference to whether the work is usually done

under the direction of a s upervisor or is done by a specialist

without supervision; (2) the skill required in the particular

occupation; (3) the source of the tools and equipment; (4) the

location of the work; (5) the method of payment; (6) the manner

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

of employee benefits; (8) whether the work is an integral part

of the business of the "employer"; (9) the tax treatment of the

hired party; and (10) the intention of the parties. See

Nationwide Mutual Ins. Co. v. Darden , 503 U.S. 318, 323 - 24, 112

S. Ct. 1344, 117 L. Ed. 2d 581 (1992); 4139 Mgmt., Inc. v. DOL &

Empl. , 763 So. 2d 514, 517 (Fla. 5th DCA 2000).

40. Applying the factors identified in the cases cited

above to the totality of circumstances established by the

evi dence of this case, the preponderance of the evidence clearly

demonstrated that Petitioner qualifies as an independent

contractor and not an "employee" of Respondent.

41. First, on June 1, 1996, Petitioner voluntarily entered

into a written agreement iden tifying himself as an "independent

contractor" with both Respondent and Town and County Hospital to

specifically provide only electroencephalographic (EEG)

technical services on an on - call basis.

42. Second, the intent of the parties to treat their

workin g relationship as that of an independent contractor.

Petitioner performed, on - call, technical EEG tests for

Respondent's patients on a per case basis and billed Respondent

for his services on a per case, per patient basis. These

"services on a per case, per patient basis" were continued for

the duration of the parties' relationship, from June 1, 1996,

through February 2001.

43. Third, Respondent used an IRS 1099 form to pay

Petitioner for his "services on a per case, per patient basis."

Petitioner di d not request, and Respondent did not withhold

federal taxes, states taxes, social security taxes or workers'

compensation taxes from Petitioner's pay.

44. Fourth, benefits afforded Petitioner by Respondent

consisted only of a discount for food consumed i n Respondent's

onsite cafeteria and flu inoculations.

45. Fifth, Petitioner was required to, and did, secure and

maintain personal independent professional liability insurance.

46. Sixth, Petitioner, as a specialist, performed EEG

technical services with out direct supervision by Respondent.

47. Seventh, at all times material, Petitioner was

eligible to perform EEG technical services for other hospitals

or customers. Indeed, the 1996 contract included, as another of

Petitioner's client, Town and Country Hospital of Tampa,

Florida.

48. Eighth, Respondent provided the EEG equipment for

Petitioner to perform his EEG technical services.

49. Ninth, the work relationship was terminated by

Respondent only after complaints were received from patients and

nursin g staff and the lack of proper maintenance and upkeep of

Respondent's EEG equipment. Thereafter, Petitioner was afforded

an opportunity to bid anew for the independent contract work and

refused to do so.

50. Tenth, after Petitioner's refusal to bid, Resp ondent

retained the services of another specialist to perform EEG

technical services on EEG equipment owned by Respondent.

51. Petitioner failed to establish, by evidence in the

record, that at any time material that he was an "employee" of

Respondent.

52 . Having failed to establish, by the evidence of record,

a prima facie case of discrimination, Petitioner's Petition for

Relief must be dismissed, and the dismissal rendered moot all

other pending motions of the parties.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter an Order DISMISSING the Petition for Relief filed by

Petitioner, Kamal Assily.

DONE AND ENTERED this 16th day of March, 2005, in

Tallahasse e, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of March, 2005.

ENDNOTES

1/ The 1996 agreement provided, in material part:

This Agreement entered this 1st day of June 1996, by and between

the KAMAL ASSILY, hereinafter referred to as the "CONTRACTOR,"

and MEMORIAL HOSPITAL OF TAMPA, Tampa, Florida, hereinafter

referred to as the "HOSPITAL," and TOWN & COUNTRY HOSPITAL,

Tampa, Florida, hereinafter referred to as the "HOSPITAL."

1. C ontractor shall be Responsible for the following:

A. Perform EEG procedures.

B. Document performance of the EEG.

C. Utilize hospital equipment and supplies.

D. Provide thirty (30) days written advance notice upon

terminating this agreement.

2. The H ospital shall be responsible for the following.

A. Provide contractor exclusive non - compete status.

B. Apply a basic fee schedule as proposed by the contractor,

herewith, and agree to accept charges for any additional and all

services provided by contra ctor.

C. Compensate contractor within reasonable time.

Deat this agreement and its terms confidentially.

E. Provide thirty (30) days written advance notice upon

terminating this agreement.

3. APPLICABLE LAW

This agreement shall be governed by and construed in accordance

with the laws of the State of Florida.

4. PARTIES BOUND

This agreement shall apply to and bind the parties hereto,

together with their respective heirs, successors, and assigns.

5. MODIFICATION

Any modifications, additions, o r deletions from this agreement

must be in writing and signed by both parties.

6. ARBITRATION

Disputes arising out of this agreement shall be addressed to

binding arbitration.

7. TERMS OF THIS AGREEMENT

This agreement shall be in effect for twelve mo nths from the

date first written above.

IN WITNESS WHEREOF, the parties hereto have caused this

agreement to be executed on the day herein above first written.

FOR THE CONTRACTOR FOR MEMORIAL HOSPITAL OF TAMPA AND TOWN &

COUNTRY HOSPITAL

By: /s/ (Petit ioner's signature)

By: (blank - no signature)

PROPOSED BASIC EEG FEES FOR MEMORIAL & T&C HOSPITALS (Hospital

fiscal year 1996 - 1997)

Routine EEG ------------------------------------ $35.00

Wknd, holiday, stat, before & aftr hrs EEG ------ $45.00

Intra - op erative EEG ----------------------------- $200.00

Death recordings & EEG requiring meds/sedations -- $45.00

* * *

FOR THE CONTRACTOR

/S/_Kamal Assily

2/ In 2000, the identical agreement provided, in material part,

this Agreement entered this 29th day of December 2000, by and

between the KAMAL ASSILY, hereinafter referred to as the

"CONTRACTOR," and MEMORIAL HOSPITAL OF TAMPA, Tampa, Florida,

hereinafter referred to as the "HOSPITAL," but, restricted

performance to only intra - operative EEG at compen sation rate of

$200.00 per case. It is noted that each written agreement

contained only the signature of Petitioner and none contained a

signature of Respondent's Agent. It is also noted that

Petitioner accepted each such agreement as binding, without th e

signature of Respondent's agent, performed thereunder, invoiced

Respondent, and was paid for services rendered. By his conduct,

Petitioner accepted the documents as binding agreements and

cannot now disavow his past performance and acceptance of the

ter ms and conditions thereof.

COPIES FURNISHED :

Kamal Assily

Post Office Box 3446

Tampa, Florida 33601 - 3446

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Robert W. Horto n, Esquire

Bass, Berry & Sims, PLC

315 Deaderick Street, Suite 2700

Nashville, Tennessee 37238

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO S UBM IT 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.