06-004650 Jannel Cherrington vs. Wolverine Anesthesia Consultants Status: Closed Recommended Order on Friday, June 1, 2007.

Summary: Petitioner failed to prove that the university or internship provider employed her, for jurisdiction under Section 760.10(1) and (4), Florida Statutes, or was an individual responsible for giving her an exam for licensure, under Section 760.10(5).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANNEL CHERRINGTON, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4648

)

BARRY UNIVERSITY )

SNHS - ANESTHESIOLOGY, )

)

Respondent. )

________________________________)

JANNEL CHERRING TON, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4650

)

WOLVERINE ANESTHESIA )

CONSULTANTS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Adminis trative Hearings, conducted the final hearing in

Orlando, Florida, on February 28, 2007.

APPEARANCES

For Petitioner: Andrea Bateman, Esquire

1999 West Colonial Drive

Orlando, Florida 32804

For Respondent Barry University SNHS - Anesthesiology:

John A. Walker, General Counsel

Barry University

Division of Legal Affairs

and Human Resources

LaVoie Hal l, Office 209

11300 Northeast Second Avenue

Miami Shores, Florida 33161

For Respondent Wolverine Anesthesia Consultants:

Susan T. Spradley, Esquire

Deborah L. La Fl eur, Esquire

GrayRobinson, P.A.

301 East Pine Street, Suite 1400

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether either respondent bore a relationship

to Petitioner, as described in Section 760.10, Florida Statutes,

that confers jurisdiction upon the Florida Commission on Human

Relations to investigate Petitioner's claims of racial

discrimination under the Florida Civil Rights Act of 1992,

Sections 760.01 - 760.11 and 509. 092, Florida Statutes.

PRELIMINARY STATEMENT

By Employment Complaint of Discrimination filed June 22,

2006, Petitioner alleged that Respondent Barry University SNHS -

Anesthesia discriminated against her, based on her race, by

terminating her from a graduat e nursing program. By Employment

Complaint of Discrimination filed June 22, 2006, Petitioner

alleged that Respondent Wolverine Anesthesia Consultants

discriminated against her, based on her race, by assigning her

to a certified registered nurse anesthetis t longer than it

assigned non - black students even though her skill average was

well above average.

On October 3, 2006, with respect to Respondent Barry

University SNHS - Anesthesia, the Florida Commission on Human

Relations entered a Notice of Determination : No Jurisdiction.

The notice states that no employer - employee relationship existed

between the parties. The notice states that Petitioner was a

student intern in the graduate nursing program at Barry

University, which placed her at Wolverine Anesthesio logy

Consultants to complete the clinical portion of her graduate

program. The notice states that Petitioner received no wages

and was not the subject of a personnel file, tax documents, or

other employee - related documentation. Based on "the lack of

dire ct or indirect economic remuneration, or any promise of such

to [Petitioner] by Respondent [Barry University SNHS -

Anesthesia], the notice concludes that no employer - employee

relationship existed. The notice cites as authority Llampallas

v. Mini - Circuits , 163 F.3d 1236 (11th Cir. 1998) and O'Connor v.

Davis , 126 F.3d 112 (2nd Cir. 1997).

On October 31, 2006, with respect to Respondent Wolverine

Anesthesia Consultants, the Florida Commission on Human

Relations entered a Notice of Determination: No Jurisdic tion.

The bases of the notice are the same as those set forth in the

preceding paragraph.

By Petition for Relief dated November 7, 2006, Petitioner

alleged that Respondent Barry University SNHS - Anesthesiology

discriminated against her, based on her race, by dismissing her

from its graduate nursing program by evaluating her pursuant to

more rigorous standards than it used to evaluate non - minority

students. This petition commenced DOAH Case No. 06 - 4648.

By Petition for Relief dated November 14, 2006, Pe titioner

alleged that Respondent Wolverine Anesthesia Consultants

discriminated against her, based on her race, by imposing more

rigorous standards during her internship than it imposed upon

non - minority students. This petition commenced DOAH Case No.

06 - 4650.

On December 5, 2006, the Administrative Law Judge entered

an order consolidating the two cases. The Administrative Law

Judge limited the evidence at hearing to the jurisdiction issue

because the investigation of the Florida Commission on Human

Rela tions was limited to the jurisdictional issue identified

above.

At the hearing, Petitioner called three witnesses and

offered into evidence eight exhibits: Petitioner Exhibits 1 - 8.

Respondents called one witness and offered into evidence 12

exhibits: R espondents Exhibits 1 - 12. All exhibits were

admitted.

The court reporter filed the transcript on May 17, 2007.

The parties filed Proposed Recommended Orders on May 29, 2007.

FINDINGS OF FACT

1. Petitioner has been a registered nurse licensed in

Florida for 14 years. Her specialty is intensive care. Seeking

advancement within the profession of nursing, Petitioner decided

to pursue certification as a Certified Registered Nurse

Anesthetist (CRNA).

2. A CRNA has advanced training and education in

anest hesia and passes a national certification examination,

which is administered by neither Respondent. Upon passing the

examination and meeting other requirements, an applicant is

entitled to certification from the Council on Certification of

Nurse Anestheti sts. After obtaining this certificate and

completing other requirements, such as financial responsibility,

the applicant is eligible for certification by the Florida Board

of Nursing as an advanced registered nurse practitioner in

anesthesiology, pursuant to Florida Administrative Code Rule

64B9 - 4.002. In Florida, a CRNA is authorized to administer

anesthesia in in - and out - patient settings and bears significant

responsibilities for the safety of anesthetized patients.

3. Petitioner enrolled at Barry U niversity to fulfill the

educational requirements for certification. Barry University is

a private institution headquartered in Miami Shores and is one

of several institutions in Florida that offer a program to

satisfy the educational requirements for CRN A certification.

4. The 28 - month program at Barry University leads to a

master of science degree in anesthesiology. A major component

of the educational program is clinical practice. The clinical

practice requires a student to perform clinical

respons ibilities, under supervision, with an anesthesiology

group. At the time in question, Barry University maintained

relationships with different anesthesiology groups in most major

urban areas in Florida.

5. Petitioner began the Barry University program i n

January 2005 and withdrew from the program in May 2006. She

chose to take her clinical training in Orlando, where Wolverine

Anesthesia Consultants accepted Barry University students for

clinical practice. Wolverine Anesthesia Consultants served

various hospitals forming part of the Orlando Regional

Healthcare System. Petitioner began the clinical portion of the

program in May 2005.

6. No cash is exchanged between Barry University and

Wolverine Anesthesia Consultants as part of the arrangement

describe d above. The obvious benefit for Barry University,

whose program is not inexpensive, is that Wolverine's

supervision of its students in the clinical practice allows

Barry to offer a comprehensive anesthesiology program that

qualifies its students to sit f or the CRNA examination.

7. The obvious benefits to Wolverine Anesthesia

Consultants are access to newly certified CRNAs, who are in high

demand, and the ability to recruit the students likeliest to

excel within the profession. It is less clear, from t he present

record, if Wolverine is able to bill for the services of more

advanced students. From time to time, Wolverine provides Barry

with financial support, such as a stipend so that a financially

needy student may attend an out - of - town conference, as the

tuition charged by Barry does not cover the cost of the program

or incidental student costs.

8. The economic relationship between the respondents is

only of relevance, however, in providing the background from

which to assess the economic relationship between the

respondents, on the one hand, and Petitioner -- and, more

specifically, the value that flows to Petitioner from one or

both respondents. Clearly, the educational and clinical

programs provide educational value, and potential economic

value, if and when certification is obtained, but, as explained

in the Conclusions of Law, the key question is what, if any,

economic value flows to Petitioner from either respondent during

her relationship with each respondent.

9. Neither respondent paid Petitione r any income,

compensation, or other benefit, directly or indirectly. Neither

respondent ever provided Petitioner with an IRS W - 2 statement or

Form 1099, as evidence of payments to an employee or independent

contractor. She never received compensation of any type from

either respondent, nor did she receive an IRS Form 1099,

reflective of the payment of compensation to an independent

contract. Petitioner never received any other employment -

related benefits from either respondent, such as health

insurance or retirement benefits. Neither respondent provided

Petitioner with housing or a housing allowance. Wolverine did

not insure Petitioner on its medical malpractice insurance

policy. Neither respondent covered Petitioner under workers'

compensation.

10. Wolverine Anesthesia Consultants required Petitioner

to sign her name on any anesthesia record pertaining to a case

in which she was involved. When Petitioner was required, due to

the needs of a particular patient, to work in excess of her

scheduled time, she was entitled, from Barry University, to

"comp time," which means only that she could receive credit for

the additional time worked when setting a subsequent schedule.

However, apart from a grant from Barry University as part of her

financial - aid pack age, Petitioner never received any financial

benefit from either respondent.

11. In addition to the occasional stipend, which

Petitioner does not appear to have received, Wolverine

Anesthesia Consultants provided minor items, such as lunches for

meetings of the interns, which Petitioner may not have attended,

and $50 Christmas gift certificates to all interns, including

Petitioner. In no way does the record support an interpretation

of these minor acknowledgements or courtesies as compensation

because Wol verine is under no obligation to provide them, no

relationship exists between the recipient of the item and the

amount of time worked, and no relationship exists between the

value of the item or stipend and the amount of time worked by

the student receivin g the item or stipend.

12. Although Barry University administers a comprehensive

test to all candidates for a master's degree in anesthesiology,

passage of which is required for a degree, Petitioner withdrew

from the program prior to the administration of this test. She

withdrew essentially due to reports from Wolverine to Barry

University that she had failed to make adequate progress in the

clinical program.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the sub ject matter. §§ 120.569, 120.57(1),

and 760.11(7), Fla. Stat. (2006).

14. Section 760.10, Florida Statutes, provides, in

relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any ind ividual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's r ace, color, religion,

sex, national origin, age, handicap, or

marital status.

(2) It is an unlawful employment practice

for an employment agency . . ..

(3) It is an unlawful employment practice

for a labor organization . . ..

(4) It is an unlawful employment practice

for any employer, labor organization, or

joint labor - management committee controlling

apprenticeship or other training or

retraining, including on - the - job training

programs, to discriminate against any

individual because of race, color , religion,

sex, national origin, age, handicap, or

marital status in admission to, or

employment in, any program established to

provide apprenticeship or other training.

(5) Whenever, in order to engage in a

profession, occupation, or trade, it is

requ ired that a person receive a license,

certification, or other credential, become a

member or an associate of any club,

association, or other organization, or pass

any examination, it is an unlawful

employment practice for any person to

discriminate against any other person

seeking such license, certification, or

other credential, seeking to become a member

or associate of such club, association, or

other organization, or seeking to take or

pass such examination, because of such other

person's race, color, r eligion, sex,

national origin, age, handicap, or marital

status.

(6) It is an unlawful employment practice

for an employer, labor organization,

employment agency, or joint labor - management

committee to print, or cause to be printed

or published, any not ice or advertisement

relating to employment, membership,

classification, referral for employment, or

apprenticeship or other training, indicating

any preference, limitation, specification,

or discrimination, based on race, color,

religion, sex, national or igin, age, absence

of handicap, or marital status.

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has op posed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

* * *

15. The seven subsections address four different classes

of potential respondents: employers, employment agencies,

labor - related organizations, and persons involved in the

licensing/certification process. Section 760.10(2),(3), (6),

and (7) is inapplicable to these cases. Section 760.10(2) and

(3) pertains to employment agencies and labor organizations, and

neither respondent qualifies as these types of entity. Section

760.10(6) and (7) applies to employers, but describes activity

not of the type involved in these cases.

16. The three subsections potentially at issue in this

case are Section 760.10(1), (4), and (5), but no jurisdiction

exists in these cases because neither respondent is an employer,

as is required for Section 760.10(1) and (5), and neither

respondent is a person described in Section 760.10(4).

17. Section 760.02(7), Florida Statutes, defines

"employer" as any person employing at least 15 persons during a

specified period. Doubtlessly, each respondent satisfies this

de finition, but this does not mean that either respondent is the

employer of Petitioner. The problem for Petitioner is that

neither respondent is her employer. In general, the employer -

employee relationship requires that that the employer compensate

the em ployee for the latter's services.

18. In O'Connor v. Davis , 126 F.3d 112 (2d Cir. 1997),

cert. denied , 522 U.S. 1114 (1998), the plaintiff was a college

student performing a required internship at a hospital approved

by her school. Because the internsh ip qualified as work - study

for financial aid purposes, the student's college paid her for

the work that she performed for the hospital. After being

subjected to behavior by a hospital employee that may have

constituted sexual harassment, the student sued, among others,

her college, the individual whom she accused of sexually

harassing her, and the hospital. Eventually, the sole defendant

among these three parties was the hospital.

19. The O'Connor opinion notes that, prior to any

determination as to whet her an individual is an employee or

independent contractor, it is necessary first to determine if

the hospital "hired" the plaintiff for any purpose. The opinion

states:

Where no financial benefit is obtained by

the purported employee from the employer, n o

"plausible" employment relationship of any

sort can be said to exist because although

"compensation by the putative employer to

the putative employee in exchange for his

services is not a sufficient condition,

. . . it is an essential condition to the

ex istence of an employer - employee

relationship." Graves [v. Women's

Professional Rodeo Association], 907 F.2d at

73. See also Neff v. Civil Air Patrol , 916

F. Supp. 710, 712 - 13 (S.D. Ohio, 1996);

Smith v. Berks Community Television , 657

F. Supp. 794, 796 ( E.D. Pa. 1987); cf .

Haavistola v. Community Fire Co. , 6 F.3d

211, 219 (4th Cir. 1993).

126 F.3d at 115 - 116.

20. The O'Connor decision concludes that the plaintiff was

never hired by the hospital due to the absence of remuneration:

It is uncontested that O'Connor received

from [the hospital] no salary or other

wages, and no employee benefits such as

health insurance, vacation, or sick pay, nor

was she promised any such compensation. 1 [ 1

We reject O'Connor's claim that she was

compensated to the extent t hat she received,

through (the college), federal work study

funding for the hours of volunteer work

performed at (the hospital). Plainly, it was

(the college) -- not (the hospital) -- that

made these payments to O'Connor.] This case

thus differs from Haav istola v. Community

Fire Co. , in which the Fourth Circuit

considered whether a volunteer member of a

fire company was an employee for Title VII

purposes where "on the one hand, [plaintiff]

did not receive direct compensation as a

member of the Fire Company , but, on the

other hand, she did not affiliate with the

company without reward entirely." 6 F.3d

211, 221 (4th Cir. 1993). The court then

noted that the plaintiff received, through

her volunteer position, a state - funded

disability pension, survivors' be nefits for

dependents, scholarships for dependents upon

death or disability, group life insurance,

and several other benefits. See id. The

court concluded that the district court

granted summary judgment improvidently,

given that a factfinder should dete rmine

whether "the benefits represent indirect but

significant remuneration . . . or

inconsequential incidents of an otherwise

gratuitous relationship." Id. at 222.

21. In Llampallas v. Mini - Circuits, Inc. , 163 F.3d 1236

(11th Cir. 1998), the court cited O'Connor with approval, noting

that statutory prohibitions against discrimination by an

employer against "any individual" necessarily require

discrimination against an employee or potential employee. 163

F.3d at 1242 - 43. The Llampallas court then declin ed to find

jurisdiction in a case in which the employer paid only $1000 to

an officer/director under ambiguous circumstances.

22. In Pietras v. Board of Fire Commissioners , 180 F.3d

468 (2d Cir. 1999), the court found jurisdiction to hear

discrimination c laims of a volunteer firefighter when, by state

law, as a volunteer firefighter, she received retirement

benefits, life insurance, death benefits, disability insurance,

and some medical benefits.

23. Under this authority, Petitioner was never hired by

e ither respondent. Thus, as to Petitioner, neither respondent

is an employer, so no jurisdiction exists under Section

760.10(1) and (4), Florida Statutes.

24. The certification regime, which is described in the

Findings of Fact, is set forth in Florida A dministrative Code

Rule 64B9 - 4.002, which states, in part:

(1) In accordance with the provisions of

Section 464.012, F.S., any person who wishes

to be certified as an Advanced Registered

Nurse Practitioner shall submit an

application to the Department, on forms

prescribed by it, as incorporated in

subsection 64B9 - 4.004(1), F.A.C.,

demonstrating that the applicant holds a

current unencumbered license to practice

professional nursing in Florida.

(2) Applicant shall submit proof of

national advanced practic e certification

from an approved nursing specialty board.

After July 1, 2006, applications for

certification as an Advanced Registered

Nurse Practitioner pursuant to Section

464.012(3), F.S., shall submit proof of

national advanced practice certification

f rom an approved nursing specialty board.

(3) Professional or national nursing

specialty boards recognized by the Board

include, but are not limited to:

(a) Council on Certification of Nurse

Anesthetists, or Council on Recertification

of Nurse Anesthe tists, or their

predecessors.

* * *

(4) Those nursing specialty boards seeking

recognition by the Board shall meet the

following standard:

(a) Attests to the competency of nurses

in a clinical specialty area;

(b) Requ ires a written examination prior

to certification;

(c) Requires (and required at the time

of original certification) completion of a

formal program prior to eligibility of

examination;

(d) Maintains a program accreditation or

review mechanism that adheres to criteria

which are substantially equivalent to

requirements in Florida;

(e) Identifies standards or scope of

practice statements as appropriate for the

specialty.

(5) Pursuant to Section 456.048, F.S., all

ARNP’s shall carry malpractice in surance or

demonstrate proof of financial

responsibility. Any applicant for

certification shall submit proof of

compliance with Section 456.048, F.S. or

exemption to the Board office within sixty

days of certification or be in violation of

this rule. All certificateholders shall

submit such proof as a condition of biennial

renewal or reactivation. Acceptable

coverage shall include: . . ..

25. Florida Administrative Code Rule 64B9 - 4.004(1)

describes the application to be submitted to the Florida Board

o f Nursing:

(1) A Registered Nurse applying for initial

certification as an Advanced Registered

Nurse Practitioner shall file with the

Department an “Initial Application for

Certification As An Advanced Registered

Nurse Practitioner,” Form DOH - NUR 105

(9/9 7), effective 4 - 5 - 00, incorporated

herein by reference, and available from the

Board office, and provide the Board with the

following:

(a) Documentation acceptable to the

Board that the educational program attended

meets the program guidelines stipulat ed in

subsections 64B9 - 4.003(1) and (2), F.A.C.

(b) Proof acceptable to the Board of

satisfactory completion of the educational

program which shall consist of:

1. An official Registrar’s copy of

the applicant’s transcript shall be sent

directly to the Board from the school and

shall denote successful completion of the

formal post - basic program or awarding of the

masters’ degree in a nursing clinical

specialty.

2. A verification form prescribed by

the Board submitted by the director of the

advanced nursing program indicating

successful completion with the official

school seal.

3. Such other documentary proof which

evidences completion.

(c) If the applicant is required to be

nationally certified, one of the following

shall also be submitted:

1. A notarized true and correct copy

of the original or recertification specialty

board certificate.

2. Such other documentary proof which

evidences certification by an appropriate

specialty board.

3. Verification from the s pecialty

association of certification.

26. Under the facts and law concerning the process by

which a registered nurse becomes a CRNA, it is impossible to

assign to either respondent the status of a covered individual

under Section 760.10(5), Florida Stat utes. Although it is, of

course, unnecessary to find an employer - employee status to find

liability under a statute addressing discrimination in

licensing, neither respondent administered an examination

directly required for licensure. It is unclear that Wolverine

Anesthesia Consultants administered any tests. Obviously, Barry

University administers tests, including a comprehensive test at

the end of the master's program, but Petitioner could not claim

any discrimination in this test, as she never took it . More

generally, though, Section 760.10(5) is not applicable to

educational institutions whose degrees are necessary, but not

sufficient, conditions for licensure, any more than this statute

is applicable to universities, whose bachelor's degree may be a

necessary, but not sufficient, condition to becoming a nurse or

a physician. The same kind of reasonable interpretation of

"individual" recognized in Llampallas as to the employer - based

statutes must apply to the licensing - based statute. Section

760.10( 5) applies instead to entities more directly involved in

the licensing process -- in this case, the Council on

Certification of Nurse Anesthetists.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismiss ing the petitions of Petitioner in

these two cases.

DONE AND ENTERED this 1st day of June, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

R OBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, 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 June, 2007.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 3 2301

Andrea Bateman, Esquire

1999 West Colonial Drive

Orlando, Florida 32804

Cecil Howard, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Susan T. Spradley, Esq.

Deborah L. La Fleur, Esq.

GrayRobinson, P.A.

301 East Pine Street, Suite 1400

Orlando, Florida 32801

John A. Walker, General Counsel

Barry University

Division of Legal Affairs

and Human Resources

LaVoie Hall, Office 209

11300 Northeast Second Avenue

Miami Shores, Florida 331 61

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 must be filed with the agency that

will issue the final ord er in this case.