06-003535 Barbara Salber vs. Atlass Insurance Status: Closed Recommended Order on Thursday, February 1, 2007.

Summary: Petitioner failed to prove that Respondent qualified as an"employer" under the statute. The company functioned as two separate entities. Recommend that the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA SALBER , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3535

)

ATLASS INSURANCE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to Notice, a hearing was held in this case before

Daniel M. Kilbride, Administrative Law Judge of the Division of

Administrative Hearings, on November 28, 2006, in Melbourne,

Florida.

APPEARANCES

For Petitioner: Barbara Salber, pro se

200 South Banana R iver Boulevard, No. 1604

Cocoa Beach, Florida 32931

For Respondent: Kimberly A. Gilmour, Esquire

Kimberly A. Gilmour, P.A.

4179 Davie Road, Suite 101

Fort Lauderdale , Florida 33314

STATEMENT OF ISSUES

Whether Petitioner can prove that Respondent, Atlass

Insurance, qualifies as an "employer" under Section 760.02(7),

Florida Statutes ( 2005 ) , 1 so that the Florida Commission on Human

Relations has jurisdiction to conduc t an investigation under

Section 760.06(5), Florida Statutes .

PRELIMINARY STATEMENT

Petitioner filed a charge of discrimination with the

Florida Commission on Human Relations (FCHR) on February 13,

2006, alleging th at Respondent, Atlass Insurance, had viol ated

the Florida Civil Rights Act of 1992, on the basis of the

Petitioner's age. An investigation was conducted and FCHR

issued a Determination of No Jurisdiction, on August 11, 2006.

It was held that the "Commission lacks jurisdiction over the

Complaint of Discrimination based on the fact that the

Respondent is not an "Employer" within the meaning of Section

760.02(7), Florida Statutes .

Petitioner timely filed a Petition for Relief . T his matter

was referred to the Division of Administrative Hearings (DO AH)

on September 15, 2006, and was set for hearing. Respondent

filed a Motion to Dismiss, which was d enied without prejudice.

On motion of the parties, the final hearing was continued until

November 28, 2006, and the issue was limited to the question of

whether Petitioner can prove that Respondent was an "employer"

under the statute.

At the final hearing, Petitioner testified on her own

behalf, and offered Exhibits 1 through 7 , which were received in

evidence. An e - mail, dated January 26, 2006 , was offer ed by

Petitioner , but was not received in evidence . Respondent called

James Okonski as a witness. Respondent also entered in evidence

Exhibits 1 through 4.

A transcript of the hearing was ordered and filed on

December 15, 2006. Petitioner filed two lett ers, dated

December 7 and 21, 2006, respectively, which have been

considered a s proposed finding s of fact. Respondent filed its

Proposed Recommended Order on December 18, 2006.

FINDINGS OF FACT

1. Petitioner, Barbara Salber, was an employee of Florida

Hi way Insurance, Inc. , beginning in 2005 and worked at an office

located at 55 Goodwin Drive, Suite 103, Merritt Island, Florida,

until she was terminated in December, 2005. Early in 2005, the

corporation was purchased by buyers from the Ft. Lauderdale

area , who became officers and stockholders of the corporation.

In May, 2005, the company changed its name to Atlass Insurance

Merritt Island, Inc.

2. Petitioner admitted that she does not know who her

actual employer was, Atlass Insurance Group, Inc. , or Atl ass

Insurance Merritt Island, Inc. Petitioner was unable to testify

as to the number of employees working at the Atlass Insurance

Merritt Island office in July, August, September, October,

November or December of 2005.

3. Petitioner testified that she wa s an employee of only

one company from July through December 2005, and she only

received paycheck s from that company during that time period.

The W - 2 that Petitioner received for working in 2005 was f rom

Florida Hiway Insurance, Inc., not Atlass Insurance Group, Inc.,

Jim Okonski or Frank Atlass. The name Atlass Insurance Merritt

Island, Inc. , did not appear on the W - 2 for 2005.

4. Jim Okonski is an officer and stockholder in the two

corporations, Atlass Insurance Group, Inc. , and Atlass Insurance

Merrit t Island, Inc.

5 . Atlass Insu rance Group, Inc. , is located in

Ft. Lauderdale, Florida , and it did not employ Barbara Salber at

any time . The UCT - 6 forms for Atlass Insurance Group lists

employees during each quarter, and Barbara Salber was never

listed a s an employee in 2005 . The most employees during any

quarter in 2005, employed by Atlass Insurance Group, Inc. , was

ten.

6 . Florida Hiway Insurance, Inc. , was formed in 1994 , and

is a licensed Florida Insurance Agency. In May 2005, it changed

its name t o Atlass Insurance Merritt Island, Inc. Records

prepared by IRS and the State of Florida still showed the former

company name. Petitioner was listed on the UCT - 6 form for

Florida Hiway Insurance n/k/a Atlass Insurance Merritt Island,

Inc. as an employee during 2005 . T he maximum number of

employees Atlass Insurance Merritt Island, Inc. had in 2005 , was

thirteen .

7. The UC account number s for the two different

corporations are different from each other . Each corporation

has its own UC account number. Th e same is true for the F ederal

E mployer I dentification number. Each corporation ha s its own

Florida Employment ID number. Separate bank accounts were kept

for each corporation. There was no show ing that the corporate

funds were ever co - mingled.

8. Russ ell Jamieson was responsible for the day - to - day

operations o f the Atlass Insurance Merritt Island Company in

2005 , and was Petitioner's supervisor. He was not connected

with the day - to - day operations of Atlass Insurance Group, Inc.

in Ft. Lauderdale.

9 . T he hours of operation for the two companies are

different , and each company has its own workers ' compensation

insurance. They also have different general liability insurance

policies. Although Petitioner was under the belief that there

was a merger betw een Atlass Insurance Group, Inc. , and Florida

Insurance, Inc. , in 2005, the best evidence showed that Frank

Atlass purchased stock from Florida Hiway Insurance, Inc. , and

eventually the company's name was changed in May of 2005.

10 . Petitioner never worke d in Ft. Lauderdale , and she

never visited the Atlass Insuranc e Group, Inc. , whose only

office is located in Ft. Lauderdale.

11 . Petitioner testified that throughout 2005 and 2006

there were only eight employees in the Merritt Island office .

Even when Pe titioner testified as to the names of the employees

in the office , while she worked there, she could not list and

did not list more than ten names.

12. Petitioner was an employee of Florida Hiway Insurance,

Inc. n/k/a Atlass Insurance Merritt Island, Inc. , and, during

the calendar year 2005, it never employed fifteen employees or

more.

CONCLUSIONS OF LAW

1 3 . The Division of Administrative Hearing s has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 760. 10, Fla. Stat.

1 4 . The FCHR is empowered to investigate complaints

alleging any discrim in atory employment practice under the

Florida Civil Rights Act of 1992. § 760.02(7), Fla . Stat.

15. It is an unlawful employment practice for an employer

to discharge or otherwise discriminate against any individual

because of such individual's age. § 760.10(1)(a), Florida

Statutes.

16. In order to investigate a complaint of alleged age

discrimination, the person or corporation alleged to have

committed an unlawful e mployment practice must qualify as an

"employer" under the statutes.

17. An "employer, " as that term is used in the Florida

Civil Rights Act of 1992 , is define d in , Section 760.02(7 ),

Florida Statutes, as "any person employing 15 or more employees

for eac h working day in each of 20 or more calendar weeks in the

current or preceding calendar year, and any agent of such a

person." Petitioner has the burden of proving that her employer

meets this definition. Florida Depar t ment of Transportation v

J. W. C. C o. Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981 ).

18. Respondent contends that Petitioner has not met her

burden , that the F C HR has no jurisdiction over the employer,

Atlass Insurance of Merritt Island , Inc. , or over Atlass

Insurance Group, Inc. , since neither company ha d fifteen or more

employees during the relevant time , and the two companies

together are not a single employer or a joint employer. The

evidence at the hearing demonstrates that Petitioner failed to

meet her burden as to the jurisdiction of the FCHR . Petitioner

was unsuccessful in providing any evidence at the hearing that

either Atlass Insurance Merritt Island, Inc. , or Atlass

Insurance Group, Inc. , had the required number of employees.

19. It is clear from the evidence that the employer of t he

Petitioner was Atlass Insurance Merritt Island, Inc. , and she

was never employed by Atlass Insurance Group, Inc. The two

corporations are separate and distinct legal entities and are

not a single employer or an integrated enterprise. Cf. Lyles

vs. Cit y of Riv ier a Beach, Fla. , 1 6 6 F.3d 1332 , 1341 (11th Cir.

1999).

20 . Therefore, t here is no jurisdiction for the FCHR to

investigate the complaint, since Atlass Insurance Merritt

Island, Inc. , does not have the required number of employees

pursuant to the Florida Civil Rights Act of 1992 , and further,

Atlass Insurance Group, Inc. , was not the employer of the

Petitioner .

RECOMMENDATIONS

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that:

The Florida Commission on Human Rel ations enter a final

order dismissing, with prejudice, the Petition for Relief

because it lacks jurisdiction over the employer, Atlass

Insurance Merritt Island, Inc. , or Atlass Insurance Group, Inc.

DONE AND ORDERED this 1st day of February , 2007 , in

Tall ahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February , 2007 .

ENDNOTE

1 \\ All references to Florida Statutes are to Florida Statutes

(2005), unless otherwise indicated.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Kimberly A. Gilmour, Esquire

Kimberly A. Gilmour, P.A.

4179 Davie Road, Suite 101

Fort Lauderdale, Florid a 33314

Barbara Salber

200 South Banana River Boulevard, No. 1604

Cocoa Beach, Florida 32931

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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.