05-004057 Brenda Van Sandt Fuller vs. Coastal Cosmetic Center, Inc. Status: Closed Recommended Order on Thursday, April 20, 2006.

Summary: Respondent did not meet the statutory definition of an employer. Recommend dismissal for lack of jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA VAN SANDT - FULLER, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4057

)

COASTAL COSMETIC CENTER, )

INC., )

)

Respondent. )

_ )

RECOMMENDED ORDER

A hearing was held pursuant to notice, on January 31,

2006, in Jacksonville, Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARA NCES

For Petitioner: J. Eric Jones, Esquire

Post Office Box 44195

Jacksonville, Florida 32222

For Respondent: Patricia J. Hill, Esquire

Ackerman Senterfitt

50 North Laura Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Is Respondent, Coastal Cosmetic Center, Inc. (Coastal) an

employer as defined in Section 760.02(7), Florida Statutes

(2005), for purposes of conferring jur isdiction on the Florida

Commission on Human Relations (FCHR) to consider the Charge of

Discrimination filed by Petitioner Brenda Van Sandt - Fuller

against Coastal?

PRELIMINARY STATEMENT

On or about August 15, 2005, Petitioner filed a Charge of

Discrimina tion with FCHR naming "Coastal Cosmetic Center,

Inc." as the offending employer. The allegations were

investigated, and on September 26, 2005, FCHR entered a

Determination: No Jurisdiction and issued a Notice of

Determination: No Jurisdiction. The basis for the

determination was that FCHR lacked jurisdiction over the

complaint in that FCHR determined that Coastal was not an

"employer" in accordance with Section 760.02(7), Florida

Statutes, because it 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."

A Petition for Relief was filed by Petitioner on or about

October 27, 2005. FCHR transmitted the case to the Division

of Administrative He arings on or about November 3, 2005. A

Notice of Hearing was issued setting the case for formal

hearing January 31, 2006.

Prior to the hearing, the parties filed a Pre - Hearing

Stipulation. Subsequently, Respondent filed a Motion to Quash

Subpoena to Ti mothy Fee, M.D., or in the alternative Motion

for Protective Order. Oral argument was heard on the motion

during a telephone conference call held on January 30, 2006,

the day before the scheduled hearing. Based upon the

arguments and representations of c ounsel, the motion was

granted.

At hearing, Petitioner testified in her own behalf and

presented the testimony of Leonard J. Spillert, and Stephanie

Seran Fee. Petitioner's Exhibit numbered 1 was admitted into

evidence. Respondent presented the testimony of Stephanie

Seran Fee and Sandra Harms. Joint Exhibits numbered 1 and 2

were admitted into evidence.

A Transcript consisting of one volume was filed on

February 27, 2006. On March 13, 2006, Petitioner filed a

Response, Memorandum of Law, and Points o f Authority with

exhibits attached. On March 13, 2006, Petitioner also filed

duplicate copies of Petitioner's Exhibit 1 and Joint Exhibit

2, already in evidence. On the same date, Respondent filed a

Proposed Recommended Order.

On March 17, 2006, Respon dent filed a Motion to Strike

the exhibits attached to Petitioner's Response, Memorandum of

Law and Points of Authority. These exhibits consisted of an

affidavit of Francesca Tenebruso - Ball, a spreadsheet analysis

prepared by Ms. Tenebruso - Ball, and copie s of web pages

purportedly from Respondent's website. On March 31, 2006,

Petitioner filed a response in which she voluntarily withdrew

the affidavit of Francesca Tenebruso - Ball and made further

substantive arguments regarding the desired outcome of this

c ase. On April 5, 2006, Respondent filed a Motion to Strike

Petitioner's Notice of Voluntary Withdrawal of the Affidavit

in which Respondent continues to seek the exhibit consisting

of web pages and arguments contained in Petitioner's Voluntary

Withdrawal of the Affidavit stricken.

Petitioner's Motion to Strike the remaining exhibit

attached to Petitioner's Response, Memorandum of Law and

Points of Authority is granted. Petitioner's Motion to Strike

the arguments contained in Petitioner's Notice of Volun tary

Withdrawal is granted. With the exceptions noted above, the

parties written post - hearing submissions have been considered

in preparing this Recommended Order.

Unless otherwise indicated, all references are to Florida

Statutes (2005).

FINDIN GS OF FACT

1. At all times material to this proceeding, Petitioner

was employed by Leonard J. Spillert, M.D. P.A. She worked for

Dr. Spillert for 23 years until she was terminated on March 3,

2005. Accordingly, the relevant time period of her emplo yment

for purposes of determining jurisdiction is October 14, 2004

through March 3, 2005.

2. Dr. Spillert is a physician who specializes in

plastic and reconstructive surgery. Petitioner was practice

manager for Leonard J. Spillert, M.D. P.A. located on

Salisbury Road in Jacksonville, Florida.

3. Dr. Timothy E. Fee is also a physician who

specializes in plastic and reconstructive surgery. At times

relevant to this proceeding, Dr. Fee practiced medicine in the

same office as Dr. Spillert on Salisbury Road. He practiced

under the name Timothy E. Fee, M.D. P.A.

4. Drs. Spillert and Fee had an office - sharing

arrangement in which Timothy E. Fee, M.D. P.A. paid Leonard J.

Spillert, M.D. P.A. overhead based on Dr. Fee's gross receipts

each month. The mo nthly overhead check included Dr. Fee's use

of office space, equipment and supplies, and employees who

worked for Dr. Spillert.

5. Most of the persons working at the office on

Salisbury Road were employees of Dr. Spillert. The Employer's

Quarterly R eport for Unemployment Compensation filed with the

Florida Department of Revenue for the quarter ending December

31, 2004, by Leonard J. Spillert, M.D. P.A. reflects 13

employees in the first month of the quarter (October) and 12

employees for the second t wo months of the quarter (November

and December). The same report for the first quarter of 2005

reflects that Leonard J. Spillert, M.D. P.A. had 13 employees

for the first month of the quarter (January), 17 employees for

the second month of the quarter (F ebruary), and 15 employees

for the third month of the quarter (March, of which only the

first three days are relevant to this analysis).

6. Similarly, the Employer's Quarterly Report for

Unemployment Compensation for Timothy E. Fee, M.D. P.A.

reflects t wo employees for the first, second, and third months

of the fourth quarter of 2004. The report for the first

quarter of 2005 reflects one employee for each month of the

quarter.

7. The employees who worked for Dr. Spillert, including

Petitioner, were pai d on checks with Leonard J. Spillert, M.D.

P.A. imprinted on the top of the check. Similarly, the

employees who worked for Dr. Fee were paid on checks with

Timothy E. Fee, M.D. P.A. imprinted on the checks.

8. Notwithstanding the above, Petitioner consi dered

herself to be an employee of Coastal Cosmetic Center. She, as

well as other employees who worked at the Salisbury Road

office, had business cards and uniforms with "Coastal Cosmetic

Center" written on them. Petitioner received direction and

instruc tions from both Drs. Spillert and Fee.

9. Testimony was conflicting as to how the telephone was

answered. According to Stephanie Taylor, who left employment

one month prior to Petitioner's leaving, she answered the

phone "Coastal Cosmetic Center". Acc ording to Sandra Harms

who became practice administrator, she answered the phones

using the individual doctors names ( i.e. , "Dr. Spillert and

Dr. Fee's office") in January 2005, but later answered the

phone "Coastal Cosmetic Center."

10. According to Ms . Harms, Drs. Spillert and Fee were

listed separately in the telephone book under the heading,

Physicians and Surgeons, when they were located at the

Salisbury Road location. Ms. Harms reported payroll

information to Dr. Spillert for him to issue checks. She did

not report payroll information to Dr. Fee.

11. The sign outside the Salisbury Road location had

both doctors' names on it: Leonard J. Spillert, M.D. P.A. and

Timothy E. Fee, M.D. P.A.

12. Stephanie Seran Fee is Dr. Fee's wife and is

employed b y Dr. Fee. At times material to this analysis, her

paycheck was written on checks with Timothy E. Fee, M.D. P.A.

imprinted on them. Mrs. Fee was in charge of accounts

payable. Mrs. Fee paid for Dr. Fee's malpractice insurance,

car lease, car insurance, uniforms, lab jackets, anesthesia,

and advertising from Timothy E. Fee M.D. P.A.'s checking

account.

13. At all times material to this proceeding,

Drs. Spillert and Fee's professional associations each had

separate checking accounts, separate employer i dentification

numbers, and separate accountants.

14. Dr. Spillert did not pay a salary to Dr. or Mrs.

Fee. Dr. Fee did not share in the profits or losses of

Dr. Spillert's professional association.

15. Dr. Fee did not have the authority to fire any of

D r. Spillert's employees. Dr. Fee did sometimes participate

in interviewing prospective employees of Dr. Spillert's.

16. At a time subsequent to Petitioner's leaving

employment, the practices of Drs. Spillert and Fee moved to

another location on Southpoin t Drive in Jacksonville, Florida.

17. On October 1, 2005, the name Coastal Cosmetic

Center, P.A. was filed with Florida's Secretary of State.

Prior to that time, Coastal Cosmetic Center was a fictitious

name.

18. Drs. Spillert and Fee currently work f or Coastal

Cosmetic Center, P.A. at the Southpoint Drive location.

CONCLUSIONS OF LAW

19. For purposes of this proceeding the Division has

jurisdiction over the parties and the limited subject matter

pursuant to Sections 120.569 and 120.57(1), Florida St atutes,

and Section 760.02(7), Florida Statutes.

20. This case concerns the question of whether

jurisdiction resides with FCHR to investigate Petitioner's

Employment Charge of Discrimination. In particular, is the

named Respondent an "employer" subject to the Florida Civil

Rights Act of 1992. Section 760.02(7), Florida Statutes,

defines the meaning of "employer" as follows:

'Employer' means any person employing 15 or

more employees for each working day in each

of 20 or more calendar weeks in the curren t

or preceding calendar year, and any agent

of such a person.

21. Petitioner bears the burden to establish her claim

consistent with the criteria above. See McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973); Texas Dept. of Community

Affairs v. Bur dine , 450 U.S. 248 (1981). Petitioner must

establish this proof by a preponderance of the evidence. §

120.57(1)(j), Fla. Stat.

22. The Florida Civil Rights Act on job discrimination

is patterned after Title VII of the Civil Rights Act 1964, 42

U.S.C. § 2000e - 2. In instances in which a Florida Statute is

modeled after a federal law on the same subject, the Florida

statute will take on the same construction as the federal law

if such interpretation is harmonious with the spirit and

policy of the Florida legislation. Brand v. Florida Power

Corporation , 633 So. 2d 504, (Fla. 1st DCA 1994). The Florida

Civil Rights Act is patterned after Title VII, and federal

discrimination law should be used as guidance when construing

Florida's law. Id. See School Boa rd of Leon County v. Hargis

and the Florida Commission on Human Relations , 400 So. 2d 103

(Fla. 1st. DCA 1981).

23. "The ultimate touchstone under [the law] is whether

an employer has employment relationships with 15 or more

individuals for each working d ay in 20 or more weeks during

the year in question." Walters v. Metropolitan Educational

Enterprises, Inc. , 519 U.S. 202, 212 (1997). The "payroll

method" is the appropriate method to use in determining

whether an employer "has" an employee for purposes of the 15 -

person threshold. Id. Accordingly, the time period in

question as it relates to Petitioner herein is October 14,

2004 through March 3, 2005.

24. The actual payroll records are not in evidence.

However, the payroll method when applied to the s tate

quarterly unemployment compensation reports results in a

determination that the 15 - employee threshold for 20 weeks is

not reached. That is, the Employer's Quarterly Report for

Unemployment Compensation for Leonard J. Spillert, M.D. P.A.

for the fourt h quarter of 2004 reflected 13 employees in the

first month of the quarter (October) and 12 employees for the

second two months of the quarter (November and December). The

same report for the first quarter of 2005 reflects 13

employees for the first month of the quarter (January), 17

employees for the second month of the quarter (February), and

15 employees for the third month of the quarter (March, of

which only the first three days are relevant). Accordingly,

Leonard J. Spillert, M.D., P.A. did not empl oy the requisite

number of employees for 20 or more calendar weeks to meet the

statutory jurisdictional requirements.

25. Similarly, the Employer's Quarterly Report for

Unemployment Compensation for Timothy Fee, M.D. P.A. reflects

two employees for the fi rst, second, and third months of the

fourth quarter of 2004. The report for the first quarter of

2005 shows one employee for each month of the quarter.

Accordingly, Timothy Fee, M.D. P.A. did not employ the

requisite number of employees to meet the statu tory

jurisdictional requirements.

26. Petitioner asserts that when the employees of

Drs. Spillert and Fee are added together within the relevant

time period, this total would meet the definition of

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

(2003), as to the requisite number of employees.

27. For Petitioner to be able to include the employees

of Timothy Fee, M. D. P.A. in the count to establish the

statutory requirement by complying with the definition of

"employer" at Section 760.02(8), F lorida 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 o f 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 s ometimes 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 VI I.

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 d etermining 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

se ts 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 m anagement, and (4) common ownership

or financial control.' . . .

28. Concerning the interrelation of operations of the

professional associations of Drs. Spillert and Fee, the

doctors practiced in the same office. Business cards and

uniforms refle cted the fictitious name, "Coastal Cosmetic

Center." Telephones were answered by at least some employees

as Coastal Cosmetic Center.

29. On the subject of centralized control of labor

relations, employees took direction from either Dr. Spillert

or Dr. Fee. However, Dr. Fee could not fire any employee of

Dr. Spillert. Ms. Harms never provided payroll information to

Dr. Fee. Dr. Spillert did not exercise supervisory control

over Dr. Fee or Mrs. Fee.

30. As for the element of common managemen t, Dr. Fee

paid Dr. Spillert overhead based upon his monthly gross

receipts. The overhead included Dr. Fee receiving help or

support from Dr. Spillert's employees. Accordingly, the

employees took direction from Dr. Fee. However, Dr. Fee did

not have the authority to fire employees of Dr. Spillert.

While their medical practices were located in the same office,

Drs. Spillert and Fee had separate practices in an office -

sharing arrangement.

31. Regarding common ownership or financial management,

each doctor had his own professional association with its own

checking account and its own employer identification number.

Each professional association hired a separate accountant.

32. On balance, having applied the criteria, Leonard J.

Spillert, M.D. P .A. and Timothy E. Fee, M.D. P.A. are not

nominally independent entities, appropriately treated as a

single integrated enterprise. The two professional

associations are meaningfully separate and independent

entities. For that reason, in determining juris diction in

this case, the additional employees working for Timothy E.

Fee, M.D. P.A. during the relevant time should not be counted.

Without them there were insufficient numbers of employees

working for Leonard J. Spillert, M.D. P.A., for the requisite

nu mber of weeks to establish jurisdiction. Therefore, the

Commission is without jurisdiction to proceed with the

processing of the Employment Charge 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 this cases based

upon Petitioner's failure to show that the Respondent is "an

employer" as defined in Section 760.02(7), Florida Stat utes.

DONE AND ENTERED this 20th day of April, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkwa y

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 20th day of April, 2006.

COPIES FURNISHED :

J. Eric Jones, Esquire

Post Office Box 44195

Jacksonville, Florida 32222

Patricia J. Hill, Esquire

Ackerman Senterfitt

50 North Laura Street, Suite 2500

Jacksonville, Florida 32202

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

200 9 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 partie s 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.