07-003369 Corrine Hamilton vs. Florida State Hospital Status: Closed Recommended Order on Wednesday, March 5, 2008.

Summary: Petitioner failed to show that Respondent was actually her employer as that status is defined by above statute. There was, therefore, no proof of jurisdiction. The case is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORRINE HAMILTON, )

)

Petitioner, )

)

vs. ) Case No. 07 - 3369

)

FLORIDA STATE HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice th is cause came on for formal proceeding

and hearing before P. Michael Ruff duly - designated

Administrative Law Judge of the Division of Administrative

Hearings in Quincy, Florida, on January 28, 2008. The

appearances were as follows:

APPEARANCES

For Pe titioner: Corrine Hamilton, pro se

440 South Cone Street

Quincy, Florida 32351

For Respondent: Jacqueline H. Smith, Esquire

Department of Children and

Family Services

Post Office Box 1000

Chattahoochee, Florida 32324 - 1000

STATEMENT OF THE ISSUE :

The issue to be resolved in this proceeding concerns

whether the Respondent, Florida State Hospital, is an "employer"

as statutorily de fined at Section 760.02(7), Florida Statutes

(2007).

PRELIMINARY STATEMENT

This cause arose when the Petitioner filed a Complaint

alleging discrimination based upon race, allegedly caused by her

being terminated from her employment by Florida State Hospit al.

The complaint was filed on March 26, 2007. On July 7, 2007, a

"Notice of Determination: No Jurisdiction" was entered by the

Florida Commission on Human Relations (Commission). In that

Notice of Determination the Commission found that the

Respondent, Florida State Hospital was not the employer of the

Petitioner during times pertinent to this proceeding, because

the Respondent did not have sufficient control over the

Petitioner and her duties in order to be deemed an employer, for

purposes of the above - cited statute.

The Petitioner filed a Petition for Relief after entry of

the Commission's Notice of Determination, on or about July 20,

2007, and the matter was ultimately referred to the Division of

Administrative Hearings for formal proceeding.

A Mo tion for Summary Final Order was filed by the

Respondent on July 31, 2007, asserting that the only issue in

this case was the question of jurisdiction based upon the

question of the Florida State Hospital's status as an alleged

employer. The Administrativ e Law Judge assigned to the case at

that time, Suzanne F. Hood, entered an Order on that Motion

dismissing the merits of the Petitioner's claim of racial

discrimination and limiting evidence to be adduced at hearing to

the question of jurisdiction. The ma tter was later transferred

to the undersigned Administrative Law Judge before hearing.

The cause came on for hearing as noticed. The Petitioner

testified on her own behalf and offered two exhibits which were

admitted into evidence. The Respondent presen ted the testimony

of two witnesses and offered one exhibit which was admitted into

evidence. The parties were thereafter afforded the opportunity

to submit proposed recommended orders which have been considered

in the rendition of this Recommended Order.

FINDINGS OF FACT

1. Behavioral Health Solutions LLC is a private business

entity (BHS). The Petitioner was employed by BHS as a clerk -

typist beginning on October 6, 2006, and until February 6, 2007,

when she was terminated.

2. BHS and the Department of Children and Family

Services/Florida State Hospital entered into a contract on

September 16, 2006, whereby BHS was to be responsible for

providing staff for various positions for the provision of

services to residents of Florida State Hospital. One of tho se

positions was that occupied by the Petitioner, at times

pertinent to this proceeding.

3. The contract provided that BHS would be responsible for

hiring, transferring, promoting, discipline, and

discharge/termination of BHS staff. BHS was also respon sible

for providing its staff with salaries, benefits, compensation

packages and training.

4. BHS has its own organizational structure which was not

integrated into that of the Respondent Florida State Hospital's

organizational structure. The Responden t Florida State Hospital

was charged with supervising BHS's staff and with

recommendations where required, for disciplinary action or

removal from the work site. BHS had the final authority to

reassign, discipline or terminate BHS staff, however, by the

t erms of the contract.

5. The Petitioner was hired by BHS as of October 6, 2006.

The offer of employment which she accepted came from BHS. The

Petitioner was told later that she was terminated in February

2007 by Angie Burge, the BHS Human Resources Mana ger. The

Petitioner's date of employment were October 6, 2006, through

February 6, 2007.

6. The testimony of Angie Burge and Amy Bryant establishes

that BHS employees such as the Petitioner, were trained by BHS.

Ms. Bryant established through her test imony, as the Operations

and Management Consultant for the Department of Children and

Families (Department) that neither the Department nor Florida

State Hospital had controlling responsibility over employee

relations matters regarding BHS's staff/employee s, such as the

Petitioner. Although she and Florida State Hospital worked in

conjunction with Ms. Burge and BHS on employee training

requirements, BHS employees, including the Petitioner, were

trained by BHS and its staff.

7. BHS and the Respondent Flo rida State Hospital had a

contract for BHS to provide staff for the forensic unit at

Florida State Hospital, where the Petitioner was employed by BHS

and the contract included the requirement that BHS operate that

unit. At orientation, BHS provided its em ployees or new hires,

including the Petitioner, all polices and procedures of BHS and

trained them as to such policies and procedures. Ms. Burge, a

BHS staff member, provided that training. BHS had authority to

hire employees or to terminate them or disc ipline them and to

make final decisions on the performance of the duties of the

staff it hired, including the Petitioner. Florida State

Hospital and the Department did not have final authority on such

matters but could only recommend to BHS.

8. The sal ary and benefits plan of BHS was very different

from that of Florida State Hospital. It was based upon the

parent company's pay and benefits scheme, the parent company

being Lakeview Center, Inc. The administrators of Florida State

Hospital did not hav e any decision - making authority in employee

regulation, discipline, hiring, and termination decisions.

9. Ms. Burge, the BHS Human Resources Manager, made the

decision and informed the Petitioner of her termination. The

Petitioner has not presented persu asive evidence that Florida

State Hospital had sufficient control over the terms and

conditions of the Petitioner's employment, or the employment of

other BHS staff members, so that such staff members, including

the Petitioner, could be deemed employees of the Respondent.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

11. The Petitioner has the ultimate burden of proo f in

this case. The Petitioner must show by a preponderance of

evidence that the Respondent Florida State Hospital was the

employer for the purposes of Section 760.02(7), Florida Statutes

(2007). See § 120.57(1)(j), Fla. Stat. (2007) and St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993). See also McDonnell -

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

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

and Department of Corrections v. Chandler , 582 So. 2d 1183 (Fla.

1st DCA 199 1).

12. The Petitioner has not established by preponderant

evidence that the Respondent Florida State Hospital was her

employer within the meaning of Sections 760.02(7) and 760.10,

Florida Statutes (2007).

13. Section 760.02(7), Florida Statutes, define s:

Employer is any person employing at least 15

persons during a specified.

In the instant case there is no dispute that the Respondent and

BHS both employed at least 15 persons, but the Respondent does

not otherwise meet the test to be employer of the Petitioner.

In determining whether there is an employment relationship, the

Eleventh Circuit applies a common law test. Cuddeback v.

Florida Board of Education , 381 F.3d 1230, 1234 (11th Cir. 2004)

("under this test, the term 'employee' is construed in l ight of

general common law concepts and should take into account the

economic realities of the situation, viewed in light of the

common law principles of agency and the right of the employer to

control the employee.") (Quoting Cobb v. Sun Papers, Inc. , 67 3

F.2d 337, 341 (11th Cir. 1982)). Some factors that may indicate

control include "the authority to hire, transfer, promote,

discipline or discharge; the authority to establish work

schedules or direct work assignments; [and] the obligation to

pay or the duty to train the charging party." Lyes v. City of

Rivera Beach , 166 F.3d 1332, 1345 (11th Cir. 1999) (quoting Oaks

v. City of Fair Hope , 515 F. Supp. 1004, 1035 (So. Dist. Ala.

1981)). The preponderant, persuasive evidence in this case

shows that the au thority to hire, promote, discipline or

discharge, to direct the nature of work assignments, the

obligation to pay and the duty to train the Petitioner, all were

the duties of BHS and not the Respondent. Thus, in applying the

holdings by the Eleventh Circ uit in the cases cited herein, it

is apparent that BHS, in paying the salary of the Petitioner,

training the Petitioner, having the authority to discipline,

control the work assignments and ultimately the authority to

terminate the Petitioner, renders BHS to be the employer of the

Petitioner and not the Respondent Florida State Hospital and the

Department. Accordingly, the Respondent was not the

Petitioner's employer and there is no jurisdiction, therefore,

for the Petitioner to bring the subject claim aga inst the

Respondent.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and the arguments

of the parties, it is, therefore,

RECOMMENDED t hat a final order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

in its entirety due to lack of jurisdiction.

DONE AND ENTERED this 5th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

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

Fil ed with the Clerk of the

Division of Administrative Hearings

this 5th day of March, 2008.

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawfo rd, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Corrine Hamilton

440 South Cone Street

Quincy, Florida 32351

Jacqueline H. Smith, Esquire

Department of Children and

Family Services

P ost Office Box 1000

Chattahoochee, Florida 32324 - 1000

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 sho uld be filed with the agency that

will issue the Final Order in this case.