05-004057
Brenda Van Sandt Fuller vs.
Coastal Cosmetic Center, Inc.
Status: Closed
Recommended Order on Thursday, April 20, 2006.
Recommended Order on Thursday, April 20, 2006.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8BRENDA VAN SANDT - FULLER, )
14)
15Petitioner, )
17)
18vs. ) Case No. 05 - 4057
25)
26COASTAL COSMETIC CENTER, )
30INC., )
32)
33Respondent. )
35_ )
37RECOMMENDED ORDER
39A hearing was held pursuant to notice, on January 31,
492006, in Jacksonville, Florida, before the Division of
57Administrative Hearings by its designated Administrative Law
64Judge, Barbara J. Staros.
68APPEARA NCES
70For Petitioner: J. Eric Jones, Esquire
76Post Office Box 44195
80Jacksonville, Florida 32222
83For Respondent: Patricia J. Hill, Esquire
89Ackerman Senterfitt
9150 North Laura Street
95Jacksonville, Florida 32202
98STATEMENT OF THE ISSUE
102Is Respondent, Coastal Cosmetic Center, Inc. (Coastal) an
110employer as defined in Section 760.02(7), Florida Statutes
118(2005), for purposes of conferring jur isdiction on the Florida
128Commission on Human Relations (FCHR) to consider the Charge of
138Discrimination filed by Petitioner Brenda Van Sandt - Fuller
147against Coastal?
149PRELIMINARY STATEMENT
151On or about August 15, 2005, Petitioner filed a Charge of
162Discrimina tion with FCHR naming "Coastal Cosmetic Center,
170Inc." as the offending employer. The allegations were
178investigated, and on September 26, 2005, FCHR entered a
187Determination: No Jurisdiction and issued a Notice of
195Determination: No Jurisdiction. The basis for the
202determination was that FCHR lacked jurisdiction over the
210complaint in that FCHR determined that Coastal was not an
"220employer" in accordance with Section 760.02(7), Florida
227Statutes, because it did not employ "15 or more employees for
238each working day in each of 20 or more calendar weeks in the
251current or proceeding calendar year and any agent of such
261person."
262A Petition for Relief was filed by Petitioner on or about
273October 27, 2005. FCHR transmitted the case to the Division
283of Administrative He arings on or about November 3, 2005. A
294Notice of Hearing was issued setting the case for formal
304hearing January 31, 2006.
308Prior to the hearing, the parties filed a Pre - Hearing
319Stipulation. Subsequently, Respondent filed a Motion to Quash
327Subpoena to Ti mothy Fee, M.D., or in the alternative Motion
338for Protective Order. Oral argument was heard on the motion
348during a telephone conference call held on January 30, 2006,
358the day before the scheduled hearing. Based upon the
367arguments and representations of c ounsel, the motion was
376granted.
377At hearing, Petitioner testified in her own behalf and
386presented the testimony of Leonard J. Spillert, and Stephanie
395Seran Fee. Petitioner's Exhibit numbered 1 was admitted into
404evidence. Respondent presented the testimony of Stephanie
411Seran Fee and Sandra Harms. Joint Exhibits numbered 1 and 2
422were admitted into evidence.
426A Transcript consisting of one volume was filed on
435February 27, 2006. On March 13, 2006, Petitioner filed a
445Response, Memorandum of Law, and Points o f Authority with
455exhibits attached. On March 13, 2006, Petitioner also filed
464duplicate copies of Petitioner's Exhibit 1 and Joint Exhibit
4732, already in evidence. On the same date, Respondent filed a
484Proposed Recommended Order.
487On March 17, 2006, Respon dent filed a Motion to Strike
498the exhibits attached to Petitioner's Response, Memorandum of
506Law and Points of Authority. These exhibits consisted of an
516affidavit of Francesca Tenebruso - Ball, a spreadsheet analysis
525prepared by Ms. Tenebruso - Ball, and copie s of web pages
537purportedly from Respondent's website. On March 31, 2006,
545Petitioner filed a response in which she voluntarily withdrew
554the affidavit of Francesca Tenebruso - Ball and made further
564substantive arguments regarding the desired outcome of this
572c ase. On April 5, 2006, Respondent filed a Motion to Strike
584Petitioner's Notice of Voluntary Withdrawal of the Affidavit
592in which Respondent continues to seek the exhibit consisting
601of web pages and arguments contained in Petitioner's Voluntary
610Withdrawal of the Affidavit stricken.
615Petitioner's Motion to Strike the remaining exhibit
622attached to Petitioner's Response, Memorandum of Law and
630Points of Authority is granted. Petitioner's Motion to Strike
639the arguments contained in Petitioner's Notice of Volun tary
648Withdrawal is granted. With the exceptions noted above, the
657parties written post - hearing submissions have been considered
666in preparing this Recommended Order.
671Unless otherwise indicated, all references are to Florida
679Statutes (2005).
681FINDIN GS OF FACT
6851. At all times material to this proceeding, Petitioner
694was employed by Leonard J. Spillert, M.D. P.A. She worked for
705Dr. Spillert for 23 years until she was terminated on March 3,
7172005. Accordingly, the relevant time period of her emplo yment
727for purposes of determining jurisdiction is October 14, 2004
736through March 3, 2005.
7402. Dr. Spillert is a physician who specializes in
749plastic and reconstructive surgery. Petitioner was practice
756manager for Leonard J. Spillert, M.D. P.A. located on
765Salisbury Road in Jacksonville, Florida.
7703. Dr. Timothy E. Fee is also a physician who
780specializes in plastic and reconstructive surgery. At times
788relevant to this proceeding, Dr. Fee practiced medicine in the
798same office as Dr. Spillert on Salisbury Road. He practiced
808under the name Timothy E. Fee, M.D. P.A.
8164. Drs. Spillert and Fee had an office - sharing
826arrangement in which Timothy E. Fee, M.D. P.A. paid Leonard J.
837Spillert, M.D. P.A. overhead based on Dr. Fee's gross receipts
847each month. The mo nthly overhead check included Dr. Fee's use
858of office space, equipment and supplies, and employees who
867worked for Dr. Spillert.
8715. Most of the persons working at the office on
881Salisbury Road were employees of Dr. Spillert. The Employer's
890Quarterly R eport for Unemployment Compensation filed with the
899Florida Department of Revenue for the quarter ending December
90831, 2004, by Leonard J. Spillert, M.D. P.A. reflects 13
918employees in the first month of the quarter (October) and 12
929employees for the second t wo months of the quarter (November
940and December). The same report for the first quarter of 2005
951reflects that Leonard J. Spillert, M.D. P.A. had 13 employees
961for the first month of the quarter (January), 17 employees for
972the second month of the quarter (F ebruary), and 15 employees
983for the third month of the quarter (March, of which only the
995first three days are relevant to this analysis).
10036. Similarly, the Employer's Quarterly Report for
1010Unemployment Compensation for Timothy E. Fee, M.D. P.A.
1018reflects t wo employees for the first, second, and third months
1029of the fourth quarter of 2004. The report for the first
1040quarter of 2005 reflects one employee for each month of the
1051quarter.
10527. The employees who worked for Dr. Spillert, including
1061Petitioner, were pai d on checks with Leonard J. Spillert, M.D.
1072P.A. imprinted on the top of the check. Similarly, the
1082employees who worked for Dr. Fee were paid on checks with
1093Timothy E. Fee, M.D. P.A. imprinted on the checks.
11028. Notwithstanding the above, Petitioner consi dered
1109herself to be an employee of Coastal Cosmetic Center. She, as
1120well as other employees who worked at the Salisbury Road
1130office, had business cards and uniforms with "Coastal Cosmetic
1139Center" written on them. Petitioner received direction and
1147instruc tions from both Drs. Spillert and Fee.
11559. Testimony was conflicting as to how the telephone was
1165answered. According to Stephanie Taylor, who left employment
1173one month prior to Petitioner's leaving, she answered the
1182phone "Coastal Cosmetic Center". Acc ording to Sandra Harms
1192who became practice administrator, she answered the phones
1200using the individual doctors names ( i.e. , "Dr. Spillert and
1210Dr. Fee's office") in January 2005, but later answered the
1221phone "Coastal Cosmetic Center."
122510. According to Ms . Harms, Drs. Spillert and Fee were
1236listed separately in the telephone book under the heading,
1245Physicians and Surgeons, when they were located at the
1254Salisbury Road location. Ms. Harms reported payroll
1261information to Dr. Spillert for him to issue checks. She did
1272not report payroll information to Dr. Fee.
127911. The sign outside the Salisbury Road location had
1288both doctors' names on it: Leonard J. Spillert, M.D. P.A. and
1299Timothy E. Fee, M.D. P.A.
130412. Stephanie Seran Fee is Dr. Fee's wife and is
1314employed b y Dr. Fee. At times material to this analysis, her
1326paycheck was written on checks with Timothy E. Fee, M.D. P.A.
1337imprinted on them. Mrs. Fee was in charge of accounts
1347payable. Mrs. Fee paid for Dr. Fee's malpractice insurance,
1356car lease, car insurance, uniforms, lab jackets, anesthesia,
1364and advertising from Timothy E. Fee M.D. P.A.'s checking
1373account.
137413. At all times material to this proceeding,
1382Drs. Spillert and Fee's professional associations each had
1390separate checking accounts, separate employer i dentification
1397numbers, and separate accountants.
140114. Dr. Spillert did not pay a salary to Dr. or Mrs.
1413Fee. Dr. Fee did not share in the profits or losses of
1425Dr. Spillert's professional association.
142915. Dr. Fee did not have the authority to fire any of
1441D r. Spillert's employees. Dr. Fee did sometimes participate
1450in interviewing prospective employees of Dr. Spillert's.
145716. At a time subsequent to Petitioner's leaving
1465employment, the practices of Drs. Spillert and Fee moved to
1475another location on Southpoin t Drive in Jacksonville, Florida.
148417. On October 1, 2005, the name Coastal Cosmetic
1493Center, P.A. was filed with Florida's Secretary of State.
1502Prior to that time, Coastal Cosmetic Center was a fictitious
1512name.
151318. Drs. Spillert and Fee currently work f or Coastal
1523Cosmetic Center, P.A. at the Southpoint Drive location.
1531CONCLUSIONS OF LAW
153419. For purposes of this proceeding the Division has
1543jurisdiction over the parties and the limited subject matter
1552pursuant to Sections 120.569 and 120.57(1), Florida St atutes,
1561and Section 760.02(7), Florida Statutes.
156620. This case concerns the question of whether
1574jurisdiction resides with FCHR to investigate Petitioner's
1581Employment Charge of Discrimination. In particular, is the
1589named Respondent an "employer" subject to the Florida Civil
1598Rights Act of 1992. Section 760.02(7), Florida Statutes,
1606defines the meaning of "employer" as follows:
1613'Employer' means any person employing 15 or
1620more employees for each working day in each
1628of 20 or more calendar weeks in the curren t
1638or preceding calendar year, and any agent
1645of such a person.
164921. Petitioner bears the burden to establish her claim
1658consistent with the criteria above. See McDonnell Douglas
1666Corp. v. Green , 411 U.S. 792 (1973); Texas Dept. of Community
1677Affairs v. Bur dine , 450 U.S. 248 (1981). Petitioner must
1687establish this proof by a preponderance of the evidence. §
1697120.57(1)(j), Fla. Stat.
170022. The Florida Civil Rights Act on job discrimination
1709is patterned after Title VII of the Civil Rights Act 1964, 42
1721U.S.C. § 2000e - 2. In instances in which a Florida Statute is
1734modeled after a federal law on the same subject, the Florida
1745statute will take on the same construction as the federal law
1756if such interpretation is harmonious with the spirit and
1765policy of the Florida legislation. Brand v. Florida Power
1774Corporation , 633 So. 2d 504, (Fla. 1st DCA 1994). The Florida
1785Civil Rights Act is patterned after Title VII, and federal
1795discrimination law should be used as guidance when construing
1804Florida's law. Id. See School Boa rd of Leon County v. Hargis
1816and the Florida Commission on Human Relations , 400 So. 2d 103
1827(Fla. 1st. DCA 1981).
183123. "The ultimate touchstone under [the law] is whether
1840an employer has employment relationships with 15 or more
1849individuals for each working d ay in 20 or more weeks during
1861the year in question." Walters v. Metropolitan Educational
1869Enterprises, Inc. , 519 U.S. 202, 212 (1997). The "payroll
1878method" is the appropriate method to use in determining
1887whether an employer "has" an employee for purposes of the 15 -
1899person threshold. Id. Accordingly, the time period in
1907question as it relates to Petitioner herein is October 14,
19172004 through March 3, 2005.
192224. The actual payroll records are not in evidence.
1931However, the payroll method when applied to the s tate
1941quarterly unemployment compensation reports results in a
1948determination that the 15 - employee threshold for 20 weeks is
1959not reached. That is, the Employer's Quarterly Report for
1968Unemployment Compensation for Leonard J. Spillert, M.D. P.A.
1976for the fourt h quarter of 2004 reflected 13 employees in the
1988first month of the quarter (October) and 12 employees for the
1999second two months of the quarter (November and December). The
2009same report for the first quarter of 2005 reflects 13
2019employees for the first month of the quarter (January), 17
2029employees for the second month of the quarter (February), and
203915 employees for the third month of the quarter (March, of
2050which only the first three days are relevant). Accordingly,
2059Leonard J. Spillert, M.D., P.A. did not empl oy the requisite
2070number of employees for 20 or more calendar weeks to meet the
2082statutory jurisdictional requirements.
208525. Similarly, the Employer's Quarterly Report for
2092Unemployment Compensation for Timothy Fee, M.D. P.A. reflects
2100two employees for the fi rst, second, and third months of the
2112fourth quarter of 2004. The report for the first quarter of
21232005 shows one employee for each month of the quarter.
2133Accordingly, Timothy Fee, M.D. P.A. did not employ the
2142requisite number of employees to meet the statu tory
2151jurisdictional requirements.
215326. Petitioner asserts that when the employees of
2161Drs. Spillert and Fee are added together within the relevant
2171time period, this total would meet the definition of
"2180employer" set out in Section 760.02(7), Florida Statutes
2188(2003), as to the requisite number of employees.
219627. For Petitioner to be able to include the employees
2206of Timothy Fee, M. D. P.A. in the count to establish the
2218statutory requirement by complying with the definition of
"2226employer" at Section 760.02(8), F lorida Statutes (2003), they
2235must by extension of Title VII case law meet the "single
2246employer" or "integrated enterprise" test. This test is one
2255established in relation to Title VII actions. In that setting
2265it is recognized by the courts as being part o f a liberal
2278construction pertaining to the term "employer" set forth in
2287Title VII. See Lyes v. the City of Rivera Beach, Florida , 166
2299F.3d 1332, 1341 (11th Cir. 1999). The court in Lyes explained
2310at 1341:
2312In keeping with this liberal construction,
2318we s ometimes look beyond the nominal
2325independence of an entity and ask whether
2332two or more ostensibly separate entities
2338should be treated as a single, integrated
2345enterprise when determining whether a
2350plaintiff's 'employer' comes within the
2355coverage of Title VI I.
2360We have identified three circumstances in
2366which it is appropriate to aggregate
2372multiple entities for the purposes of
2378counting employees. First, where two
2383ostensibly separate entities are 'highly
2388integrated with respect to ownership and
2394operations,' we may count them together
2401under Title VII. McKenzie , 834 F.2d at 933
2409(quoting Fike v. Gold Kist, Inc. , 514
2416F.Supp. 722, 726 (N.D.Ala.), aff'd, 664
2422F.2d 295 (11th Cir. 1981)). This is the
2430'single employer' or "integrated
2434enterprise" test. . . . .
2440In d etermining whether two non - governmental
2448entities should be consolidated and counted
2454as a single employer, we have applied the
2462standard promulgated in NLRA cases by the
2469National Labor Relations Board. See , e.g. ,
2475McKenzie , 834 F.2d at 933. This standard
2482se ts out four criteria for determining
2489whether nominally separate entities should
2494be treated as an integrated enterprise.
2500Under the so - called 'NLRB test,' we look
2510for '(1) interrelation of operations, (2)
2516centralized control of labor relations, (3)
2522common m anagement, and (4) common ownership
2529or financial control.' . . .
253528. Concerning the interrelation of operations of the
2543professional associations of Drs. Spillert and Fee, the
2551doctors practiced in the same office. Business cards and
2560uniforms refle cted the fictitious name, "Coastal Cosmetic
2568Center." Telephones were answered by at least some employees
2577as Coastal Cosmetic Center.
258129. On the subject of centralized control of labor
2590relations, employees took direction from either Dr. Spillert
2598or Dr. Fee. However, Dr. Fee could not fire any employee of
2610Dr. Spillert. Ms. Harms never provided payroll information to
2619Dr. Fee. Dr. Spillert did not exercise supervisory control
2628over Dr. Fee or Mrs. Fee.
263430. As for the element of common managemen t, Dr. Fee
2645paid Dr. Spillert overhead based upon his monthly gross
2654receipts. The overhead included Dr. Fee receiving help or
2663support from Dr. Spillert's employees. Accordingly, the
2670employees took direction from Dr. Fee. However, Dr. Fee did
2680not have the authority to fire employees of Dr. Spillert.
2690While their medical practices were located in the same office,
2700Drs. Spillert and Fee had separate practices in an office -
2711sharing arrangement.
271331. Regarding common ownership or financial management,
2720each doctor had his own professional association with its own
2730checking account and its own employer identification number.
2738Each professional association hired a separate accountant.
274532. On balance, having applied the criteria, Leonard J.
2754Spillert, M.D. P .A. and Timothy E. Fee, M.D. P.A. are not
2766nominally independent entities, appropriately treated as a
2773single integrated enterprise. The two professional
2779associations are meaningfully separate and independent
2785entities. For that reason, in determining juris diction in
2794this case, the additional employees working for Timothy E.
2803Fee, M.D. P.A. during the relevant time should not be counted.
2814Without them there were insufficient numbers of employees
2822working for Leonard J. Spillert, M.D. P.A., for the requisite
2832nu mber of weeks to establish jurisdiction. Therefore, the
2841Commission is without jurisdiction to proceed with the
2849processing of the Employment Charge of Discrimination.
2856RECOMMENDATION
2857Upon the consideration of the facts found and conclusions
2866of law reached, it is
2871RECOMMENDED:
2872That a final order be entered by the Commission finding
2882that it is without jurisdiction to proceed in this cases based
2893upon Petitioner's failure to show that the Respondent is "an
2903employer" as defined in Section 760.02(7), Florida Stat utes.
2912DONE AND ENTERED this 20th day of April, 2006, in
2922Tallahassee, Leon County, Florida.
2926S
2927___________________________________
2928BARBARA J. STAROS
2931Administrative Law Judge
2934Division of Administrative Hearings
2938The DeSoto Building
29411230 Apalachee Parkwa y
2945Tallahassee, Florida 32399 - 3060
2950(850) 488 - 9675 SUNCOM 278 - 9675
2958Fax Filing (850) 921 - 6847
2964www.doah.state.fl.us
2965Filed with the Clerk of the
2971Division of Administrative Hearings
2975this 20th day of April, 2006.
2981COPIES FURNISHED :
2984J. Eric Jones, Esquire
2988Post Office Box 44195
2992Jacksonville, Florida 32222
2995Patricia J. Hill, Esquire
2999Ackerman Senterfitt
300150 North Laura Street, Suite 2500
3007Jacksonville, Florida 32202
3010Denise Crawford, Agency Clerk
3014Florida Commission on Human Relations
3019200 9 Apalachee Parkway, Suite 100
3025Tallahassee, Florida 32301
3028Cecil Howard, General Counsel
3032Florida Commission on Human Relations
30372009 Apalachee Parkway, Suite 100
3042Tallahassee, Florida 32301
3045NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3051All partie s have the right to submit written exceptions within
306215 days from the date of this recommended order. Any
3072exceptions to this recommended order should be filed with the
3082agency that will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 08/03/2006
- Proceedings: Final Order Dismissing Petition for Relief from an Unlawful Employment Practice filed.
- PDF:
- Date: 06/07/2006
- Proceedings: Letter to C. Howard from P. Hill regarding change of address filed.
- PDF:
- Date: 05/30/2006
- Proceedings: Order Remanding Petition for Relief from an Unlawful Employment Practice filed.
- PDF:
- Date: 04/20/2006
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 04/05/2006
- Proceedings: Respondent`s Motion to Strike Petitioner`s Notice of Voluntary Withdrawal of Affidavit of Francesca Tenebruso-Ball filed.
- PDF:
- Date: 03/31/2006
- Proceedings: Brenda Van Sandt Fuller`s Notice of Voluntary Withdrawal of the Affidavit of Francesca Tenebruso-Ball filed.
- PDF:
- Date: 03/13/2006
- Proceedings: Brenda Van Sandt Fuller`s Response, Memorandum of Law, and Points of Authorities in Opposition to Coastal Cosmetic Center, Inc.`s Assertion that it did not Employ the Requisite Number of Fifteen (15) Employees for Jurisdictional Purposes under the Florida Civil Rights Act of 1992, as Amended filed.
- Date: 02/27/2006
- Proceedings: Transcript filed.
- Date: 01/31/2006
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 01/27/2006
- Proceedings: Motion to Quash Subpoena to Timothy Fee, M.D. or in the Alternative Motion for Protective Order filed.
- PDF:
- Date: 12/02/2005
- Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
Case Information
- Judge:
- BARBARA J. STAROS
- Date Filed:
- 11/03/2005
- Date Assignment:
- 11/03/2005
- Last Docket Entry:
- 08/03/2006
- Location:
- Jacksonville, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Patricia J Hill, Esquire
Address of Record -
J. Eric Jones, Esquire
Address of Record