04-002425 Charles C. White vs. Tpe Structures Of Bay County, Inc. Status: Closed Recommended Order on Wednesday, December 22, 2004.

Summary: Petitioner failed to prove that Respondent was an employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM D. HUNT, )

)

Petitioner, )

)

vs. ) Case No. 04-2424

)

TPE STRUCTURES OF BAY COUNTY, )

INC., )

) )

Respondent. )

)

CHARLES C. WHITE, )

)

Petitioner, )

)

vs. ) Case No. 04-2425

)

TPE STRUCTURES OF BAY COUNTY, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on November 22, 2004, at 10:00 a.m.

a formal hearing was held in this case. Authority for conducting

the hearing is set forth in Sections 120.569 and 120.57(1),

Florida Statutes (2004). The hearing location was the DeSoto

Building, 1230 Apalachee Parkway, Tallahassee, Florida. Charles

C. Adams, Administrative Law Judge, conducted the hearing.

APPEARANCES

For Petitioners: Daniel A. Perez, Esquire

Allen & Trent, P.A.

700 North Wickham Road, Suite 107

Melbourne, Florida 32935

For Respondent: Kenneth L. Karr, President

TPE Structures of Bay County, Inc.

Post Office Box 18155

Panama City Beach, Florida 32417

STATEMENT OF THE ISSUE

Is Respondent TPE Structures of Bay County, Inc. (TPE Bay

County) an employer as defined in Section 760.02(7), Florida

Statutes (2003), conferring jurisdiction on the Florida

Commission on Human Relations (the Commission) to consider the

complaint filed by Petitioner William D. Hunt (Petitioner Hunt)

and Petitioner Charles C. White (Petitioner White) against TPE

Bay County?

PRELIMINARY STATEMENT

On December 10, 2003, Petitioner Hunt filed an Amended

Employment Charge of Discrimination naming "The Painting Experts

of Bay County, Inc." as the offending employer. On that same

date Petitioner White filed a separate Amended Employment Charge

of Discrimination naming "The Painting Experts (TPE) of Bay

County" as the offending employer. In context the employers

named in the Amended Employment Charges of Discrimination are

found to refer to TPE Bay County. The amended charges were

processed by the Commission following assignment of case numbers.

The case number for Petitioner Hunt was FCHR Case No. 2004-20649.

The case number for Petitioner White was FCHR Case No. 2004-

20650.

Following investigation, the Commission entered a

Determination: No Jurisdiction in each case filed on June 8,

2004. Those determinations were provided the respective

Petitioners. The basis for the determinations was that the

Commission lacked jurisdiction over the individual complaints,

given the opinion that TPE Bay County was not an "employer" in

accordance with Section 760.02(7), Florida Statutes, in that

Respondent did not employ "15 or more employees for each working

day in each of 20 or more calendar weeks in the current or

proceeding calendar year and any agent of such person." In turn

the Commission declared that it did not have jurisdiction over

the complaints of discrimination.

On June 8, 2004, the Commission gave written notice to the

Petitioners of its Determination: No Jurisdiction in documents

separate from the legal discussion concerning the determination

itself.

On July 14, 2004, the Division of Administrative Hearings

(DOAH) received separate transmittals of the Petitions for Relief

from an Unlawful Employment Practice filed by the Petitioners

calling for consideration of the matters pursuant to Section

120.57, Florida Statutes. This transmittal of the Petitions

carried with it other attachments, including the Amended Charges

of Discrimination, the respective Determinations: No

Jurisdiction and Notices of Determination: No Jurisdiction.

DOAH provided case numbers for the individual cases as

reflected in the style. The cases were assigned to

Administrative Law Judge Suzanne F. Hood to conduct the

proceedings. Being uncertain of the purpose of those proceedings

before DOAH, and given the history of the cases at the

Commission, Orders to Show Cause were entered inviting the

parties to comment on whether the cases should be dismissed

before DOAH for lack of subject matter jurisdiction. The show

cause orders were dated July 26, 2004. All parties availed

themselves of the opportunity to respond to the Orders to Show

Cause.

On August 13, 2004, the cases were consolidated for hearing

purposes. Having considered the proof at hearing the cases

remain consolidated for purposes of entering a single Recommended

Order.

The prior judge had also entered an order reserving ruling

on the DOAH jurisdiction in the cases, pending proof at hearing

concerning TPE Bay County's status as a "employer" within the

meaning of Section 760.02(7), Florida Statutes (2003). That

order reserving ruling was entered on August 13, 2004. It was

determined at hearing that the cases should proceed to consider

the jurisdiction of the Commission to investigate the underlying

amended charges of discrimination in relation to TPE Bay County's

status under terms set forth at Section 760.02(7), Florida

Statutes (2003). In particular the hearing resolved the factual

dispute between the parties concerning whether TPE Bay County met

the definition of "employer" set forth in Section 760.02(7),

Florida Statutes (2003).

TPE Bay County's counsel filed an agreed motion for leave to

withdraw which was granted in an order entered September 8, 2004.

Orders were entered responding to issues concerning

discovery as reflected in the dockets for the cases.

The cases proceeded to hearing on the date previously

described after one continuance.

The style in the cases was corrected to reflect the present

style.

Immediately prior to the hearing date the cases were

reassigned to the undersigned to conduct the final hearing and

enter a Recommended Order.

Consistent with a prior order entered by Administrative Law

Judge Hood, the parties filed a joint prehearing statement which

was discussed with the parties at the final hearing and utilized

in developing the hearing presentation.

Petitioners testified in their own behalf. They also

presented the testimony of Edward Harrison. TPE Bay County

president Kenneth L. Karr was called as a witness for

Petitioners. He was not a witness for TPE Bay County.

Petitioners' Exhibits numbered 1 through 3 and 6 through 19 were

admitted. TPE Bay County called Gary Williams as its witness.

TPE Bay County's Exhibits numbered 1, 3, and 5 were admitted,

with the exception that the cover letter to TPE Bay County's

Exhibit numbered 1 was denied admission. TPE Bay County's

Exhibit numbered 2 was denied admission. TPE Bay County's

Exhibit numbered 4 was withdrawn.

No transcript was prepared at the conclusion of the final

hearing. The parties elected to submit proposed findings of fact

and orders pursuant to Section 120.57(1)(b), Florida Statutes

(2004), and they have been considered in preparing the

Recommended Order.

FINDINGS OF FACT

1. Petitioner Hunt worked for TPE Bay County from

August 13, 2003, through October 4, 2003. Petitioner White

worked for TPE Bay County from August 11, 2003, through

September 6, 2003. These are the relevant time periods in this

inquiry. Both Petitioners were terminated from employment.

According to the Amended Employment Charges of Discrimination,

the Petitioners accuse their supervisor/manager Gary Williams of

sexual harassment while employed with TPE Bay County.

2. On August 21, 2000, TPE Bay County filed the necessary

documents for incorporation with the Florida Department of State.

It was incorporated as a Florida for profit corporation. As of

April 11, 2002, the mailing address for the corporation was Post

Office Box 18155, Panama City Beach, Florida 32417. Kenneth L.

Karr is the registered agent for the corporation. He is the

president and only director. Mr. Karr is the only shareholder in

the corporation holding 400 shares. Mr. Karr's address is 7109

Lagoon Drive, Panama City Beach, Florida 32408. This information

concerning TPE Bay County and Mr. Karr pertained during the

relevant time contemplated by the Amended Charges of

Discrimination referred to before, with the exception that

Mr. Karr had a prior address in Panama City Beach, Florida.

Mr. Karr filed with the Florida Secretary of State a year 2004

for profit corporation annual report. That report was filed

April 26, 2004. It is one in a series of reports filed with that

agency since the inception of the corporation.

3. Earlier a corporation identified as TPE Structures, Inc.

(TPE) had been formed. On March 26, 1999, the necessary

documents were filed with the Florida Department of State to

incorporate TPE. At times relevant, the principal address for

TPE was 5970 Peninsula Avenue, No. 3, Key West, Florida 33040.

The mailing address was Post Office Box 2066, Key West, Florida

33045. Mr. Karr serves as resident agent for TPE. His address

is 7109 Lagoon Drive, Panama City Beach, Florida 32408 for those

purposes. The 2004 TPE for profit corporation annual report was

filed with the Florida Department of State on April 4, 2004.

Before April 14, 2004, other for profit corporation business

reports were filed with that agency. Mr. Karr was the president

and only director for TPE from the inception and continues in

those roles at present. He holds 500 shares in TPE that

represents all shares.

4. At times relevant Mr. Karr received a salary from TPE

Bay County and from TPE.

5. The Florida General Contracting license pertaining to

TPE Bay County and TPE is No. CBC059131.

6. At times relevant TPE Bay County and TPE maintained

separate employee telephone numbers or contact lists. Those

lists set forth the names and addresses for the employees.

Persons whose names and addresses are related in the TPE Bay

County list and the TPE list do not overlap.

7. TPE Bay County is engaged in the business of concrete

spalling, stucco repair, termite and water damage, waterproofing,

caulking, texture coatings and painting. TPE is engaged in the

business of concrete spalling, stucco repair, termite and water

damage, waterproofing, caulking, texture coatings and painting.

TPE Bay County in its breakout of work performed is involved 60

percent in waterproofing, 25 percent in stucco and wood repair

and 15 percent in painting and texture coatings. By contrast TPE

is involved with 80 percent concrete spalling, and 20 percent

painting. TPE Bay County does work in Bay County, Florida. TPE

does work in the lower Florida keys in Monroe County, Florida.

The work is done through separate company employees assigned to

those jobs from the business locations where the jobs are found.

The work is not done by exchanging employees who work for TPE Bay

County and TPE respectively.

8. TPE Bay County and TPE have separate managers whose job

it is to estimate, promote, market, bid, solicit, and obtain

contracts. Those managers do not communicate or deal with each

other in the regular course of business.

9. Mr. Karr's job duties in relation to his companies is to

deal with corporate functions, set goals for profit, set goals

for sales, deal with the respective managers of the two

companies, deal with cash-flow, oversee accounting, sign checks,

and visit job sites routinely. Mr. Karr hired the managers for

the two locations and would be responsible for firing those

managers. He has a similar role in dealing with a single

accounting staff that serves both companies.

10. Gary Williams serves as the manager for TPE Bay County.

Stace Valensuelela manages TPE. Those managers are responsible

for labor relations and safety activities.

11. The managers are responsible for approving time cards

for payroll purposes and establishment of hourly wages for

employees, for billing customers and approving invoices for

payment.

12. The bookkeeping for the companies is done by Georgianne

Davis who is overseen by Mr. Karr's wife.

13. The business records for TPE Bay County Respondent are

maintained at 7915 North Lagoon Drive, Panama City Beach, Florida

32408. The mailing address for that company is Post Office Box

18155, Panama City Beach, Florida 32417. The telephone number

for TPE Bay County is [phone]. The fax number for TPE Bay

County is [phone]. The e-mail address is

[e-mail].

14. The business records for TPE had been maintained at

5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The

mailing address for TPE was Post Office Box 2066, Key West,

Florida 33045. The telephone number for TPE was [phone].

The fax number for TPE was [phone]. The e-mail address

for TPE is [e-mail]. After September 29, 2004, the

Key West office closed and the records of TPE were sent to the

Panama City Beach address related to TPE Bay County for storage

purposes.

15. TPE Bay County has assigned an FEIN number 59-3666286.

TPE has assigned an FEIN number 65-0929637.

16. TPE Bay County does business with Peoples Bank in

Panama City Beach, Florida. TPE has transacted banking business

with First State Bank in Key West, Florida.

17. An occupational license was issued by Panama City Beach

for TPE Bay County's operations in Bay County, whereas TPE's

operations in Key West for Monroe County was issued a separate

occupational license by that local government.

18. According to employee information for TPE Bay County

and TPE, at times relevant nine persons were employed by TPE Bay

County and 20-plus persons were employed by TPE.

19. At times relevant none of the persons employed by TPE

Bay County worked on projects around south Florida. Similarly,

none of the TPE employees worked on projects in the Florida

panhandle.

20. No funds related to TPE Bay County were used to pay the

debts for TPE. No funds for TPE were used to pay debts of TPE

Bay County.

21. On advice of counsel Mr. Karr formed TPE Bay County as

a separate corporation from TPE to limit debt liability. These

arrangements were not intended in their design to avoid

employment discrimination claims by employees.

22. A business card presented as evidence bearing

Mr. Karr's name sets forth TPE as the company. It provides the

post office address for TPE Bay County and TPE in their

respective locations at Panama City Beach and Key West. It gives

the telephone numbers for TPE Bay County and TPE. It gives the

fax number for TPE. It has a website listed which is

www.tpestructures.com.

23. A letterhead refers to TPE with a post office address

for both the TPE Key West company and the TPE Bay County Panama

City Beach company.

24. Advertising in several telephone book listing services

refers to "TPE Structures, Inc." and "TPE" while containing the

TPE Bay County's 7914 North Lagoon Drive, Panama City Beach,

Florida address and telephone number at 235-4811. Those listings

bore the website address www.tpestructures.com with the

contractors license number CBCO59131. Two separate telephone

listings bore the name "TPE Structures, Inc.," with the initials

"TPE" the 5970 Peninsula Avenue address for TPE and the telephone

number for TPE as [phone]. A website address in those

listings was given as www.tpestructures.com.

25. A contact form soliciting information from outsiders

refers to TPE, not TPE Bay County, at the location 7914 North

Lagoon Drive, Panama City Beach, Florida 32408, with a telephone

number of [phone] and the fax number [phone]. That

same form refers to TPE at telephone number [phone] and

fax number [phone]. It carries an e-mail addresses for

general information as [e-mail] and under the

president as [e-mail].

26. An information sheet referring to the "TPE" office

staff shows photos of Mr. Karr as founder and president, Suzanne

Karr, Gary Williams as manager of Panama City Beach, and

Georgianne Davis, secretary and accounting at Panama City Beach,

Florida. On that same page with photos unavailable is a

reference to Stace Valensuelela as manager of Key West and an

unnamed secretary at Key West, Florida.

27. A brief employment application form refers to joining

the "TPE" team and sending the information to "TPE Structures,

Inc." at 7914 North Lagoon Drive, Panama City Beach, Florida

32408. It provides the fax number [phone] related to

Panama City Beach.

28. At times relevant TPE Bay County had filed with the

Florida Department of Revenue its employers quarterly report.

TPE Bay County has filed a Form 940-EZ with the Internal Revenue

Service related to the Employers' Federal Unemployment (FUTA) tax

return for calendar year 2003. TPE Bay County had filed a Form

941 Employers' Quarterly Federal Tax Return for the quarter

ending September 30, 2003, with the Internal Revenue Service.

29. In a document prepared that refers to the "TPE

history", it is stated that in addition to the Key West office,

TPE is proud to announce the opening of the Panama City Beach,

Florida office at 7914 North Lagoon Drive on February 1, 2001.

The phone numbers are [phone] and fax [phone] or

toll free at 877-660-4811.

30. A truck used in the business related to TPE Bay County

had signs displayed referring to "TPE." One sign on the truck

indicated the telephone number for TPE Bay County's business,

which is [phone].

31. At times relevant employees working for TPE Bay County

wore painter whites referring to "TPE Structures" that displayed

the telephone numbers for Key West and Panama City Beach with a

common 1-800 number.

32. When Petitioner White was hired, Mr. Karr told him that

he has trying to keep Key West going and was having monetary

trouble in that location. From the hearing record nothing

additional was said to Petitioner White on the subject.

33. Mr. Karr told Petitioner Hunt that there was a Key West

branch of his business. Notwithstanding this remark, Petitioner

Hunt did not become personally familiar with the Key West

operation.

CONCLUSIONS OF LAW

34. For purposes of this proceeding DOAH has jurisdiction

over the parties and the limited subject matter pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (2004), and

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

35. This case concerns the question of whether jurisdiction

resides with the Commission to investigate Petitioners' Amended

Employment Charges of Discrimination. In particular, is the

named Respondent and "employer" subject to the "Florida Civil

Rights Act of 1992" (the Florida Act)? Section 760.02(7),

Florida Statutes (2003) defines the meaning of "employer" where

it states:

Employer means any person employing 15 or

more employees for each working week in each

of 20 or more calendar weeks in the current

or preceding calendar year, and any agent of

such a person.

36. In resolving factual disputes related to the

jurisdictional threshold, the determination is made upon a

preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

(2004).

37. The Florida Act on job discrimination is patterned

after Title VII of the Civil Rights Act 1964, 42 U.S.C.

§ 2000e-2. For that reason federal cases related to Title VII

are available to determine the outcome in this case. See School

Board of Leon County v. Hargis and the Florida Commission on

Human Relations , 400 So. 2d 103 (Fla. 1st. DCA 1981).

38. The parties recognized, and the proof at hearing

confirmed, that Petitioners cannot achieve the jurisdictional

threshold required by Section 760.02(7), Florida Statutes (2003),

without counting employees working for TPE as well as TPE Bay

County during the relevant time period. That time period as

described is August 11, 2003 through September 6, 2003, for

Petitioner White, and August 13, 2003 through October 4, 2003,

for Petitioner Hunt.

39. The parties concur, and the proof confirms, that when

the TPE employees and Respondent's employees within the relevant

time period are added together, this would meet the definition of

"employer" set out in Section 760.02(7), Florida Statutes (2003),

as to numbers.

40. For Petitioners to be able to include the TPE employees

in the count to establish the jurisdictional requirement by

complying with the definition of "employer" at Section 760.02(8),

Florida Statutes (2003), they must by extension of Title VII case

law meet the "single employer" or "integrated enterprise" test.

This test is one established in relation to Title VII actions.

In that setting it is recognized by the courts as being part of a

liberal construction pertaining to the term "employer" set forth

in Title VII. See Lyes v. the City of Rivera Beach, Florida , 166

F.3d 1332, 1341 (11th Cir. 1999). The court in Lyes explained at

1341:

In keeping with this liberal construction,

we sometimes look beyond the nominal

independence of an entity and ask whether two

or more ostensibly separate entities should

be treated as a single, integrated enterprise

when determining whether a plaintiff's

"employer" comes within the coverage of Title

VII.

We have identified three circumstances in

which it is appropriate to aggregate multiple

entities for the purposes of counting

employees. First, where two ostensibly

separate entities are 'highly integrated with

respect to ownership and operations,' we may

count them together under Title VII.

McKenzie , 834 F.2d at 933 (quoting Fike v.

Gold Kist, Inc. , 514 F.Supp. 722, 726

(N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.

1981)). This is the "single employer" or

"integrated enterprise" test. . . . .

In determining whether two non-governmental

entities should be consolidated and counted

as a single employer, we have applied the

standard promulgated in NLRA cases by the

National Labor Relations Board. See , e.g. ,

McKenzie , 834 F.2d at 933. This standard

sets out four criteria for determining

whether nominally separate entities should be

treated as an integrated enterprise. Under

the so-called "NLRB test," we look for "(1)

interrelation of operations, (2) centralized

control of labor relations, (3) common

management, and (4) common ownership or

financial control." . . .

41. Petitioners bear the burden to establish their

jurisdictional claim consistent with the criteria above. See

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973); Texas

Dept. of Community Affairs v. Burdine , 450 U.S. 248 (1981).

42. Concerning the interrelation of operations for TPE

Bay County and TPE, Kenneth L. Karr was the president for both

companies. He hired and could fire managers for the companies as

well as the accounting staff. The bookkeeping was done in the

Panama City Beach Office for both companies. On the other hand,

the principal operations for those companies were separate

concerning the day-to-day activities and the immediate

management. They had separate profit centers concerning cash-

flow, notwithstanding Mr. Karr's establishment of goals for the

two businesses and the necessity for his managers within those

concerns to report back to him and his routine visits to the two

operations. In this connection Mr. Karr received salaries from

both companies. Mr. Karr helped with the bidding, soliciting,

and the obtaining and approving of contracts with both companies,

whereas the managers for both companies in the separate locations

estimated, promoted, marketed, bid, solicited, and obtained

contracts in their rolls for the separate markets and conduct of

business in discrete geographic locations. The respective

managers for the two companies were responsible for billing

customers, and approving invoices for payment.

43. On the subject of centralized control of labor

relations, Mr. Karr made his managers for the two companies

responsible for labor relations and safety activities. Those

individuals were responsible for approving time cards related to

payroll and hourly wages.

44. The management at the top for TPE Bay County and TPE

was Kenneth L. Karr, the president and sole director. The day-

to-day management for TPE Bay County and TPE was separate through

the managers that had been hired. In the related standard,

Mr. Karr was the common owner and exerted financial control over

both entities.

45. On balance, having applied the criteria, TPE Bay

County and TPE are not nominally independent entities,

appropriately treated as a single integrated enterprise. The

companies are meaningfully separate entities. They are not

ostensibly separate entities. For that reason, in determining

jurisdiction in this case, the additional employees working for

TPE at the time should not be counted. Without them there were

insufficient numbers of employees working for TPE Bay County to

establish jurisdiction. Therefore, the Commission is without

jurisdiction to proceed with the processing of the respective

Amended Employment Charges of Discrimination.

RECOMMENDATION

Upon the consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered by the Commission finding that

it is without jurisdiction to proceed in these cases based upon

Petitioners' failure to show that the Respondent is "an employer"

as defined in Section 760.02(7), Florida Statutes (2003).

DONE AND ENTERED this 22nd day of December, 2004, in

Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 22nd day of December, 2004.

COPIES FURNISHED :

Daniel A. Perez, Esquire

Allen & Trent, P.A.

700 North Wickham Road, Suite 107

Melbourne, Florida 32935

Kenneth L. Karr, President

TPE Structures of Bay County, Inc.

Post Office Box 18155

Panama City Beach, Florida 32417

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

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.