08-004552 Carolyn M. Cleveland vs. Westgate Home Sales, Inc. Status: Closed Recommended Order on Friday, April 6, 2012.

Summary: Petitioner did not establish that Respondent had 15 or more employees under the integrated enterprise theory.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN M. CLEVELAND, )

)

Petitioner, )

)

vs. ) Case No. 0 8 - 4552

)

WESTGATE HOME SALES, INC. , )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on Febru ary 1 and 2 ,

20 11 , in Gaines ville, Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: J ennifer Biewend , Esquire

Avera & Smith, LLP

2814 Southwest 13th Street

Gaines ville, Florida 32222

For Respondent: Kris B. Robinson , Esquire

Robinson, Kennon, & Kendron, P.A.

5 82 West Duval Street

Post Office Box 1178

Lake City , Florida 320 56 - 1178

STATEMENT OF THE ISSUE

Is Respondent, Westgate Home Sales, Inc. ( Westgate ) an

employer as defined in s ection 760.02(7), Florida Statutes

(20 10 ), and did Westgate discriminate against Petitioner as

alleged in the Employment Complaint of Discrimination ?

PRELIMINARY STATEMENT

On or about February 15, 200 8 , Petitioner filed a Charge of

Discrimination with FCHR naming " Wayne Frier Home Sales , Inc." as

the offending employer. The allegations were investigated, and

on July 31, 2008 , FCHR entered a Determination: No Cause and

issued a Notice of Determination: No Cause .

A Petition for Relief was filed by Petitioner on or about

August 2 8 , 200 8 . FCHR transmitted the case to the Division of

Administrative Hearings on or about Septem ber 17 , 200 8 . A Notice

of Hearing was issued setting the case for formal hearing

November 19 and 20 , 200 8 . A n Unopposed Mo tion to Continue

Hearing was filed and granted. The hearing was rescheduled for

February 11 and 12, 2009.

Prior to the hearing, Respondent filed a Motion to

Relinquish Jurisdiction, asserting that Petitioner did not work

for Wayne Frier Home S ales, Inc., but instead worked for Westgate

Home Sales, Inc. Respondent further argued that the case should

be dismissed for lack of jurisdiction, as Westgate Home Sales,

Inc., employed between five and eight employees at all times

material to the charge of discrimination. Respondent a ssert ed

that FCHR lacked jurisdiction as Respondent did not have the

requisite number of employees as required in section 760.02(7),

Florida Statutes. A motion hearing was held telephonically in

which the jurisdictional issue was discussed. The undersigned

raised the possibility of relinquishing jurisdiction to FCHR for

the purpose of FCHR conducting an investigation as to the issue

of whether Respondent had the requisite number of employees

(i.e., 15 or more) . Both parties p referred that the case remain

at DOAH, and the hearing was rescheduled for the purpose of

conducting a hearing on the issue of whether Respondent employed

15 or more persons .

Due to the above developments, the hearing was continued

again. On the eve of the rescheduled h earing date , Respondent

filed a Notice of Withdrawal of Motion to Relinquish

Jurisdiction, citing Arbaugh v. Y & H Corp. , 546 U.S. 500 (2006).

On the basis of Arbaugh , Respondent asserted that the employer

status is merely an element of a person's claim for relief and

not a matter of jurisdiction. Accordingly, Respondent suggested

that the employer status and the merits of the discrimination

claim be heard together , which is ultimately what happened .

A telephonic motion hearing was held on March 18, 2009.

Subsequently, Petitioner filed an Unopposed Motion to Amend Case

Style, requesting that the style of the case be changed to

replace the name of Respondent from Wayne Frier Home Sales, Inc.,

to Westgate Home Sales, Inc. The Motion was g ranted and the

style of the case was changed accordingly. As discovery

progressed and mediation took place but was unsuccessful, Motions

to Continue were granted and the case was ultimately heard on

February 1 and 2, 2011.

At hearing, Petitioner testified in her own behalf and

presented the testimony of 12 other witnesses . Petitioner's

Exhibit s numbered 1 through 12 w ere admitted into evidence. 1/

Respondent presented the testimony of 8 witnesses . Respondent's

Exhibit numbered 1 w as admitted into evidence.

A Transcript consisting of four volume s was filed on

February 2 4 , 20 1 1 . The parties requested 21 days in which to

file proposed recommended orders. Due to the complexity of the

case and the large number of witnesses, the reques t was granted.

Respondent filed an Unopposed Motion for Extension of Time to

File its Proposed Recommended Order. The Motion was granted.

The parties filed Proposed Recommended Order s, which have been

duly considered in the preparation of this Recommende d Order .

Unless otherwise indicated, all references to the Florida

Statutes are to 200 8 .

FINDINGS OF FACT

1. At all times material to this proceeding, Petitioner was

employed by Respondent, Westgate Home Sales, Inc. (Westgate).

She worked for Respondent from January 2007 until February 15,

2008.

2. Westgate is located in Gainesville, Florida, and is in

the business of selling mobile homes. Petitioner was service

manager for Respondent , and her immediate supervisor was Mi chael

Reaves , the l ot manager . Westgate is owned by Frier Home Sales,

Inc.

3 . As service manager, Petitioner's primary duties were to

handle warranty claims and coordinate the set up of a mobile home

after it was purchased by a customer. Her work as service

manager invol ved dealings with customers "from set up to

service." Her job also involved dealing with several independent

contractors.

4. Petitioner worked in the mobile home industry most of

her life, as did her family members. She worked at the sales lot

which is now Westgate for approximately 18 years. During m ost of

those years, the lot was under different ownership.

5. Petitioner's normal work hours were 9 a . m . to 5 p . m .

Monday through Friday, although she would often come in early,

stay late , and work on Saturdays. Petitioner's gross earnings

were approximately $400 per week.

Facts Related to Requisite N umber of E mployees

6 . In addition to her lot manager, Mr. Reaves, Petitioner

worked with James Matthew "Matt" VanEtten (sales manager); Bru ce

Goodson (sales), Penny Wilkes, (bookkeeper), Dana VanEtten (part -

time employee and Matt VanEtten's wife); Doyle Rooks (sales),

D ennis Cribbs (sales); Kyle Saborin (sales); and David Walker

(sales).

7. There is no dispute that Westgate itself did not e mploy

15 or more employees during the relevant time period. The

dispute concerns whether other entities owned or managed by

certain members of the Frier family should be considered a

single - employer for purposes of the Florida Civil Rights Act.

8 . Will iam Slaughter is employed by Frier Finance where he

is Chief Financial Officer and oversees all of the accounting for

approximately 30 companies , which will be referred to as the

Frier Companies. Nine of these companies operate out of a

location in Live O ak, Florida, including Frier Home Sales, which

owns Westgate. The Live Oak location is commonly referred to by

current and former employees of Westgate as " the c orporate

office ." Members of the Frier family, specifically Wayne, Todd,

and Matt Frier, are owners or directors of all of the companies

operating out of the Live Oak location , and most, if not all, of

the other Frier Companies . All of the companies have something

to do with the mobile home industry. Matthew, Todd, and Wayne

F r ier are listed as Directors for Frier Home Sales, Inc., in its

Articles of Incorporation; Wayne and Matthew Frier are listed as

Directors of Westgate Home Sales, Inc.

9 . Frier Finance is one of the companies which operates out

of the Live Oak location. Frier Finance finan ces mobile homes

for customers, provides floor plan financing for sales lots, and

provides management services for sales lots. Frier Finance

negotiates things like rates on floo r plan contracts, which

benefit the individual lots by getting better rates. Each lot

signs its own contract with the floor plan lenders.

10 . In addition to overseeing the accounting for various

companies, Mr. Slaughter is responsible for hiring and overseeing

three auditors, who are also employed by Frier Finance. The

auditors p rovide monthly services to the sales lots. They assist

in hiring and training bookkeepers for the sales lots, and report

the financials to Mr. Slaughter, who in turn provides that

information to the Friers.

11 . The auditors visit the sales lots three or four times a

month conducting audits of sales, theft, inventory, and

commissions . Frier Finance was paid a fee for all of the

auditing and management services provided to the various sales

lots , as well as for financing services .

12 . The bookkeepers at the v arious sales lots fill out the

time sheets, and send them to Frier Finance in Live Oak.

Specifically, they send the time sheets to Betty Jordan, who is

Mr. Slaughter's assistant and is a bookkeeper. She handles

bookkeeping and coordinates payroll fo r many of the sales lots,

as well as for Frier Finance, Frier Home Sales, Frier Finance

Floor Plan, and Frier Home Sales Floor Plan.

13 . The bookkeepers at the sales lots fax timesheets to

Ms. Jordan . The timesheet form used by the various lots appear s

to be the same, but the time sheets reflect a lot number

indicating which sales lot is reporting payroll. After receiving

the faxes from the sales lots, she give s them to either Matt or

Todd Frier, who then gives them back to her. Ms. Jordan then

faxes the payroll informati on to Oasis Outsourcing, a company

located in West Palm Beach, which provides professional

employment services, including preparing paychecks.

1 4 . Ms. Jordan also handles purchase orders of mobile homes

from the factory. If a lot manager wishes to purchase a mobile

home, he or she faxes the purchase order to Ms. Jordan , who then

gives it to Todd or Matt Frier, who then initials approval.

Ms. Jordan then assigns the purchase order a number, and faxes it

back to the requesting lot manager.

15 . Ms. Jordan on occasion sends memos to various sales

lots regarding payroll procedures. These memos relate to

service s provided by Frier Finance . Again, Frier Finance is paid

a fee for these payroll services.

16 . Each sales lot has its own bank account out of which it

pays its own operating costs, e.g., utility bills, telephone

bills, and advertising. The respective bookkeepers issue checks

at the sales location on that entity's bank account, then send

them to Live Oak where they ar e signed by either Mr. Slaughter or

one of the Friers, and sent back to the sales location for

distribution . A lot manager can only sign checks if he or she is

a minority partner in that entity. Approximately seven or eight

entities have minority partner s, but the record is not clear

which ones. The sales lots only issue checks for that lot, none

of the other lots. Lots do not comingle their revenues or

operating expenses .

17 . Lot managers are typically hired by the Friers, and

only the Friers ca n fire lot managers. The Friers decide where

to place lot managers and set the pay rates for the lot managers.

The Friers have moved a lot manager from one location to another.

These decisions are made by the Friers as officers or managing

members of the individual companies. When a lot manager is

transferred to a different lot, that manager becomes an employee

of the new lot. Similarly, when a bookkeeper split s her time

between two lots, her salary was paid half by one lot, and half

by the other.

18 . Lot managers control the daily operations of the sales

lot. Lot managers are responsible for hiring and firing

employees at the various lots, with the exception of bookkeepers.

If a lot manager wants to fire a bookkeeper, the manager tell s

Frier Finance a nd the decision is made there.

19 . Lot managers make the decisions as to work schedules,

vacations, holiday closures, approval of sick days, and

promotions. Decisions regarding lot employees are handle d at the

individual lots, not in a centralized lo cation.

20 . Each lot is separately licensed, has its own sales tax

number, "DMV" number, and its own phone number. Each lot "stands

or falls" on its own. The lots do not have the same ownership

structure.

21 . At a time prior to the time relevant to this

proceeding, the Frier's corporate structure was different and the

companies were, to an extent not clear from the record, more

unified. At some point prior to the time - frame material to this

case, this large "umbrella" corporation was split or divide d into

smaller companies. However, there was no evidence that any of

the entities were separated or "splintered" with the intention or

purpose of defeating anti - discrimination laws. Further, there

was no evidence presented that establishes or suggests th at the

Friers or any of the companies were aware of, condoned, or

tolerated the actions complained of by Petitioner herein. On the

contrary, when asked on cross - examination if the Friers ever took

part in the harassment, Petitioner replied , "No, no , sir.

N ever."

Facts Related to Sexual Harassment

2 2 . For the majority of the time she worked at Westgate,

Petitioner's office was located in an office building that was

approximately the size of a double - wide mobile home with

additions.

23 . Petitioner alleges that the actions and behavior of

which she complains began over the last six months she was

employed by Westgate. At first, she overheard inappropriate

comments about customers. Eventually, the comments, and actions,

were also directed at her.

2 4. As is typical of a sexual harassment case, there is

conflicting testimony of exactly what was said and exactly what

actions took place. However, in this case, Respondent concedes,

at least to some degree, that conversations took place that were

inappr opriate for the workplace. Respondent asserts, however,

that Petitioner was a willing participant in these inappropriate

conversations and exchanges.

25. While the inappropriate language and conduct permeated

the working environment at Westgate, Pe titioner primarily

complains about the actions of her supervisor, Mr. Reaves, and a

co - worker, Mr. VanEtten. Neither Mr. Reaves nor Mr. VanEtten

testified.

26. The earliest offensive conversation Petitioner recalled

was a comment made by Mr. VanEtten to her in which he told her he

had a fantasy of being with an older woman. 2/ Petitioner replied

that he had better have a fantasy about a younger woman

(refer r ing to his wife). Petitioner complained to Mr. Reaves,

who, according to Petitioner, responded that M att "liked" her and

not to be afraid of Matt because "Matt's got a little dick." 3/

27. The allegations regarding Mr. VanEtten are numerous:

Mr. VanEtten would "act out" things, or perform what Petitioner

described as "skits." Many of the skits were not inappropriate

and Petitioner found them to be funny. However, she failed to

see the humor in "the rabbit , " described below, and when it first

occurred, told Mr . VanEtten to "get the fuck off of me."

28 . Petitioner described Mr. Van Etten, on many occasions,

going up to the chair she was sitting in and "humping" it, which

he labeled "the rabbit." She also described Mr. VanEtten as a

tall, large man. Petitioner is a petite woman. H er allegation

regarding Mr. Van Etten 's performing "the rabbit" on her chair

was corroborated by both of Petitioner's daughters who observed

it on visits to their mother's office, as well as by Shiela

Nickerson, a friend who cleaned m obile homes at Westgate, and

Corey Bryan, the father of one of Petitioner's grandchildren . 4/

29. In addition to "the rabbit," Petitioner asserts that

Mr. VanEtten once wrapped his arms around her while they bumped

into each other in the office; of fered her money for sex;

frequently said to her "show me your pussy"; and , on the last day

she worked at the office, dropped his pants and "mooned" her

showing his naked buttocks.

30. Regarding Mr. Reeves, Petitioner asserts that he

"mooned" her three or four times ; used sexually charged

expressions such a s commenting that Petitioner must be "fucking"

one of the contractors, Richard Cowart; asking her to get him an

ice cream cone , saying he wanted it "big and sloppy, like a

pussy, like a big ole pussy"; te lling her she needed to "man up,

grow a dick, be a man"; that he had a visual image of her wrapped

around his head and him licking her ; and frequently making

remarks of a sexual nature either towards her or generally in the

workplace and not directed at he r.

31. In addition to Mr. VanEtten and Mr. Reaves, Petitioner

also complained about harassment by a salesman, Bruce Goodson.

She related one instan ce when Kevin Turner, a service man from a

carpet cleaning company, was there to clean carpet . Mr. Goodson

told him , in a joking fashion but in Petitioner's presence, that

Petitioner would do a lap - dance for him. Mr. Turner corroborated

this allegation . Mr. Goodson did not testify.

3 2 . Petitioner's testimony regarding the above - described

incidents was credib le and largely unrebutted.

33 . Other witnesses cor r ob o rated Petitioner's depiction of

the sexually - charged comments that were prevalent at Westgate.

Ms. Nickerson, who assisted in cleaning mobile homes, complained

of inappropriate comments by bot h Mr. Va nEtten ( stating in her

presence and in the presence of Petitioner that he was horny) and

Mr. Reaves (telling her how pretty her breasts were and how good

her ass would look while he was hitting it from the back, and

offering to put her up in a house if s he slept with him); and

generally that "every time I went there it was sexual comments

being said."

34 . Kelly Oldman is one of Petitioner's daughters. She

cleaned mobile homes for Westgate as an independent contractor.

Ms. Oldman also was the recipient of many sexually charged

comments by Mr. Van Etten (e.g., making obscene gestures with his

mouth and gesture "nasty like he wanted you to masturbate him";

that he "grabbed his stuff" and asked if she or her mother would

" help him relieve some pressure on this thing"; that he would

often grind his genitals toward her; and that everything he did

was sexually driven ) ; and Mr. Reaves (telling her she needed a

"sugar daddy"; hearing him on one occasion tell her mother to

show him her pussy) ; and that she was ca lled "bootylicious" by

them and by some of the salesmen there. Petitioner frequently

complained to Ms. Oldman about the office atmosphere.

35 . It must be noted that Ms. Oldman began working at

Westgate at her mother's suggestion. Ms. Oldman had just be come

single and needed to earn money in addition to another job she

had. Petitioner warned her daughter about the behavior at

Westgate and, despite this behavior, spoke to Mr. Reeves about

hiring her daughter to clean mobile homes . Kelly was hired to

cle an homes as an independent contractor.

36 . There is no real dispute that off - color jokes and

office banter of a sexual nature w ere prevalent at Westgate.

However, Respondent points to what it perceives to be

Petitioner's participation in and contributio n to much of the

sexually charged office environment.

37 . Petitioner acknowledges that she used profanity in the

workplace; that she sometimes laughed at jokes of a sexual

nature; that she, at the time, sometimes found those jokes to be

funny; and that sh e had a flirtatious relationship with

Mr. Cowart, a n independent contractor.

38 . Petitioner also acknowledges that her actions were not

always appropriate. She described one incident that she readily

admits was inappropriate. Once when she was particula rly

disgusted with a comment by a contractor (not an employee of

Westgate) in reference to her wearing shorts during off hours

that her "pussy was clean as a whistle," and to Mr. Reaves

responsive comment that her "kitty - cat was clean as a whistle,"

she reached into her pants , grabbed some pubic hairs , and threw

them at the contractor who made the comment .

39 . Petitioner also acknowledges that occasionally her

grandchildren were at her office. For example, she would pick up

a grandchild from daycare and keep the child at her office until

her daughter got off work ; or , her daughter would drop by with

her grandchildren. Petitioner acknowledged that the guys would

"straighten up" when her grandchildren were present.

40 . Dennis Cribbs, who worked at W estgate at least some of

the time P etitioner worked there, described her language as "a

lot of sexual innuendo" and , regarding her language , that he

"never heard a woman speak like that."

41 . Mark Denmark, a detective with the Gainesville Police

Departme nt, had occasion to stop by Westgate and described the

office conversation there as containing jokes, comments,

innuendo, and banter of a sexual nature, all of which Petitioner

participated.

4 2 . David Walker, also worked at Westgate when Petitioner

worke d there. He is now vice president of a mobile home lot

which is a competitor of Westgate. His office was near

Petitioner's, and he observed her participate in office banter,

conversations, and just "normal gossip stuff" of a sexual nature.

He described her language as "vulgar" and that it bothered him so

much to be next to her office that he asked to be moved to

another part of the building. Mr. Walker acknowledged that he

was one of the persons who called Ms. Oldman "bootylicious."

4 3 . Mr. Cowart , who acknowledged some sort of relationship

with Petitioner, provided similar testimony regarding

Petitioner's participation in office banter, etc., of a sexual

nature. 5/

44 . Petitioner wanted a "transfer" to another lot, and

attempted to call Todd Frier about this . She left messages

without detail as to why she was calling. She did not talk to

Mr. Frier about a transfer, as her call was not returned .

45 . Following that and toward the end of her employment,

Petitioner discussed with Mr. Reaves whe ther she could move her

office to the back building where Penny Wilkes worked. He agreed

to let her do that. However, t h at office was not finished prior

to her ending her employment .

46 . During the last week of employment at Westgate,

Petitioner was en couraged by "everyone" to quit and was being

treated "really, really bad." Her office had been packed and it

appeared to her she was losing her job. She had a conversation

with Mr. Reaves in which she informed him she was going to file a

complaint. Inst ead of firing her, he offered a "promotion" to

her in sales. Petitioner believed that this was not a genuine

offer, as she is bad in math and her experience was in service,

not sales. She told him he was "fucked up."

47 . Petitioner described her leaving Westgate as follows:

"I was fired. At that point I thought I was fired. Now looking

at it, no. . ." ". . . I didn't get fired. I got manipulated out

of there."

CONCLUSIONS OF LAW

4 8 . For purposes of this proceeding the Division has

jurisdiction over the parties and the subject matter pursuant to

s ections 120.569 , 120.57(1), and 760.11, Florida Statutes.

49 . A threshold question in t his case is whether Respondent

meets the definit ion of employer as defined in section 760.02(7).

Traditionally, this issue has been treated as jurisdictional.

Reeves v. DSI Security S er vs . , 331 F. App 'x 659, 2009 U.S. App.

(11th Cir. 2009) ("We treat the question of whether a defendant

meets the stat utory definition of 'employer' as a threshold

jurisdictional matter under Title VII." ) However, the United

States Supreme Court opinion in Arbaugh v. Y & H Corp . , supra ,

indicates otherwise, as the Court treats this issue as simply as

element of a person's claim for relief. Accord , Morrison v.

Amway , 323 F. 3d 920 (11th Cir. 2003). In any event, it must be

determined whether Respondent is an "employer" subject to the

Florida Civil Rights Act of 1992 . Section 760.02(7) defines

"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 current

or preceding calendar year, and any agent of

such a person.

5 0 . Petitioner bears the burden to establish her claim

con sistent with the criteria above. See McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973); Texas Dep ' t of Comty . Aff . v.

Burdine , 450 U.S. 248 (1981). It is Petitioner's burden to

establish the existence of an integrated enterprise , as will be

discussed more fully herein . Guaqueta v. Universal Beverages ,

LLC , 2010 U.S. Dis t. LEXIS 69660 (S.D. Fla. 2010) ( citing

C ardinale v. S. Homes of Polk C nty . , Inc. , 310 F. App ' x 311, 312

(11th Cir. 2009) ) . Petitioner must establish this proof by a

preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

5 1 . The Florida Civil Rights Act is patterned after Title

VII , and federal discrimination law should be used as guidance

when construing Florida's law. Brand v. Florida Power Corp . , 633

So. 2d 504, (Fla. 1st DCA 1994); se e Sch . B d . of Leon Cnty . v.

Hargis , 400 So. 2d 103 (Fla. 1st. DCA 1981).

5 2 . "The ultimate touchstone under [the law] is whether an

employer has employment relationships with 15 or more individuals

for each working day in 20 or more weeks during the year in

question." Walters v. Metropolitan Educational Enterprises,

Inc. , 519 U .S. 202, 212 (1997). This is codified in section

760.02(7).

53 . Petitioner asserts that when the employees of the

"Frier companies" are added together within the relevant time

period, this total would meet the definition of "employer" set

out in Section 760.02(7) as to the requisite number of employees.

54 . For Petitioner to be able to include the employees of

the other "Frier companies " in the count to establish the

statutory requirement by complying with the definition of

"employer" at s ection 760.02 ( 7 ), 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 of a " liberal constr uction " pertaining to

the term "employer" set forth in Title VII. See Reeves v. DSI

Security Services , supra , and 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 sometimes 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 det ermining whether a plaintiff's

"employer" comes within the coverage of Title

VII.

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 integr ated 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. . . . .

* * *

Th e issue before us involves the " single

employer " test. In determining whether two

non - governmental entities should be

consolidated and counted as a single

employer, we have applie d the standard

promulgated in NLRA cases by the National

Labor Relations Board. See , e.g. , McKenzie ,

834 F.2d at 933. This standard sets 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 management, and

(4) common ownership or financial control."

. . .

55 . "The totality of the circumstances controls , thus, no

single factor is conclusive, and the presence of all four factors

is not necessary to a finding of single employer." E . E . O . C . v.

Dolphin Cruise Line, Inc. , 945 F. Supp. 1550 (S.D. Fla. 1996).

56 . In determining whether the interrelation of

operations factor is met, courts look to whether the companies

share employees and resources. Guaqueta , supra (c iting Walker v.

Boys & Girls Club of Am. , 38 F. Supp. 2d 1326, 1331 (M.D. Ala.

1999) ) , "[T]he Nationa l Labor Relations Board has identified

seven indicia of interrelatedness: (1) combined accounting

records; (2) combined bank accounts; (3) combined lines of

credit; (4) combined payroll preparation; (5) combined

switchboards; (6) combined telephone number s and (7) combined

officers.")

57 . Applying the above analysis, Westgate did not share

combined bank accounts, switchboards, or telephone numbers . As

for accounting records, Frier Finance provided accounting

services, for a fee, but there is no evidence that establishes

that the accounting records were "combined." That is, although

the accountants we r e centrally located, the preponderance of the

evide nce indicates that the accounts were maintained separately.

Similarly, while the various lots used Frier Finance to negotiate

financing, the manager of the individual lot had to sign the

financing contract.

58 . The various corporate entities sent their payroll to

Frier Finance, which, in addition to Oasis Outsourcing, processed

payroll for a fee. However, while the payroll of the various

entities were processed in one central location, the

preponderance of the evidence indicates that the payrolls of the

various lots were not combined . Rather, the checks are issued

from individual company accounts. See Guaqueta , supra , at 20,

citing Fike v. Goldkist, Inc. , 514 F. Supp. 722, at 726 - 727 (N.D.

Ala. 1981) (finding no integrated enterprise where '[a]lt hough

[the first company] prepared the [second company's] salaried

payroll, [the first company] was fully reimbursed by [the second

company] for this and all other services provided by [the first

company].").

59 . The evidence did establish that the e ntities had common

officers or owners, which will be discussed in more detail below

(in analyzing the third factor) , in that the Friers were

officers , directors, or owners of most, if not all, of the

companies.

60 . The centralized control of labor relations factor looks

at " which company has the power to hire and fire employees and

control employment practices." Guaqueta , supra , at 20 ( citing

Fike at 727 "[T] he ' control ' of labor relations is not potential

control but active control of day - to - day l abor relations." )

61 . The preponderance of the evidence established that the

control of day - to - day labor relations was not centralized. While

the Friers hired the lot managers, the lot managers generally had

the authority to manage day - to - day opera tions of the lots.

62 . The common management factor looks for common directors

and officers. Id. (citing Fike , supra , at 727 " Cases treating

two separate corporate entities as a single employer have placed

heavy emphasis on the existence of common directors and

officers.")

63 . The preponderance of the evidence established that the

separate corporate entities had common directors and officers.

64 . Finally, the last factor to consider is common

ownership and financial control. Courts hav e held that a finding

of common ownership or financial control alone is insufficient to

establish the single employer or integrated enterprise criterion

absent proof of the other factors. Guaqueta , supra , at 24, and

see Ca rdinale v. S. Homes of Polk Cnty, Inc. , 310 F. App ' x 311,

312 - 313 (finding that defendants are not an integrated enterprise

where plaintiff was only able to show one factor, common

ownership.) .

65 . The preponderance of the evidence established that

there is common ownership among the various companies, but did

not establish common financial control. The court's analysis in

Guaqueta comparing the holdings in two cases is instructive

regarding fina ncial control:

In Player v. Nations Biologies, Inc. , 993 F .

Supp. 878, 883 (M.D. Ala. 1997), the

plaintiff established financial control where

the main company maintained a centralized

account pooling the profits of all the other

companies to cover the los ses of the less

successful companies. By contrast in Fike ,

the district court did not find common

ownership where one company did not exercise

financial control over the other company,

revenues and operating expenses were not

comingled, and one company di d not borrow

funds from the other. 514 F. Supp. a t 727.

66 . In the instant case, there was no centralized account

pooling profits, and revenues and operating expenses were not

comingled . The record is not entirely clear as to whether Frier

Financ e actually loans money to sales lots or simply negotiates

financing arrangements on behalf of sales lots.

67 . This case does not neatly fit into any of the factual

scenarios of the case law discussed above. Certainly, there is

the common thread of the members of the Frier family having

ownership or being officers of the various companies. However,

the more detailed analysis of the factors set forth in the case

law discussed above reveals that there is more separation among

the companies than what initially appears to be the case.

68 . It is concluded that, in balance, having applied the

criteria set forth in the case law analyzed above, Petitioner did

not carry her burden of establishing that Respondent has the

requisite number of employees as contemplated in section

760.02(7).

69 . Recognizing that FCHR has final order authority in this

case and may or may not agree with this conclusion, the following

are conclusions of law regarding whether or not Petitioner met

her burden of establish ing sexual harassment.

Hostile Work Environment -- Sexual Harassment

70 . To prevail on her claim of discrimination, Petitioner

must present either direct evidence of discrimination or

circumstantial evidence that creates an inference of

discrim ination. Reeves v. C.H. Robinson Worldwide, Inc. , 594

F.3d 798, 813 (11th Cir. 2010) ; Reeves v. DSI , 331 F . App ' x at

662 ( citing Hinson v. Clinch Cnty . , Ga. Bd. of Educ. , 231 F. 3d

821, 827 - 28 (11th Cir. 2000) ) .

71 . Direct evidence is evidence which, if believed, would

prove the existence of discrimination wit hout inference or

presumption. Holifield v. Reno , 115 F. 3d 1555, 1561 - 1562 (11th

Cir. 1997) .

72 . Usually, direct evidence is not available and the

claimant must rely on circumstantial evi dence to prove

discriminatory intent . H o lifield v. Reno , 115 F.3d at 1561 - 1562.

The shifting burden framework set forth in McDonnell Douglas

Corp. v. Green , supra , is generally used in which Petitioner must

establish a prima facie case of discrimination . Once Petitioner

establishes a prima facie case, the burden shifts to the employer

to articulate a legitimate, nondiscriminatory reason for the

employment action taken; then, the employee bears the ultimate

burden of persuasion to establish that the emplo yer's pr o ffered

reason for the action taken is merely a pretext for

discrimination.

73 . To establish a prima facie case of a hostile work

environment caused by sexual harassment , Petitioner must show

that: she belongs to a protected group; she w as subjected to

unwelcome sexual harassment (e.g., sexual advances, requests for

sexual favors, and o ther conduct of a sexual nature ); the

harassment was based on the sex (gender) of the employee; the

ha rassment was sufficiently severe or pervasive to alte r the

terms and conditions of employment and create a discriminatorily

abusive working environment; and show a basis for holding

Respondent liable (i.e., the employer knew or should have known

of the harassment and failed to take prompt remedial action) .

Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798 , 808 (11th

Cir. 2010); Morgan v. Fellini's Pizza, Inc. , 64 F. Supp. 2d 1304

(N.D. G a . 1999). Where the perpetrator of the harassment is

merely a co - employee of the complainant, the employer will be

held liable if it knew or should have known of the harassing

conduct but failed to take prompt remedial action. Hardin v.

Waste Mgt. Inc. of Fla. 2010 U.S. Dist. LEXIS 73418 (N .D. Fla.

2010) ( citing Miller v. Kenworth of Dothan, Inc. , 277 F. 3d 1269,

1278 (11th Cir. 2002) ) .

7 4 . There is no dispute that Petitioner, as a female, is a

member of a protected class. There is dispute, however, whether

Petitioner meets the second element. That is, by her own

conduct, has Petitioner established that the behavior was

unwelcome? A court may consider whether the plaintiff or

petitioner participated in the very conduct of which she

complains. Balletti v. Sun - Sentinel Co. , 909 F. Supp. 1539

(S.D. Fla. 1995)

7 5 . To constitute harassment, the conduct m ust be unwelcome

"in the sense that the employee did not solicit it or incite it,

and in the sense that the employee regarded the conduct as

undesirable or offensive. " Morgan , 64 F. Supp. 2d at 1309

( citing Henson v. City of Dundee , 682 F. 2d 897, 903 - 05 (11th Cir.

1982) ) .

76 . In analyzing whether complained of conduct was

unwelcome, courts look at the entire context of the alleged

harassment. See Meritor Savings Bank FSB v. Vinson , 477 U.S. 57,

69 (1986) at 69. "It does not follow, however, that the 'use of

foul language or sexual innuendo in a consensual setting' waives

that plaintiff's legal protections against unwelcome harassment."

Morgan , 64 F. Supp. 2d at 1309 - 1310.

77 . While Petitioner's behavior was far from exemplary, she

did not welcome the conduct. When Mr. VanEtten first

demonstrated "the rabbit," Petitioner's objection to this

(telling him to "get the fuck off of me") was clear as a bell.

Further, she complained to her supervisor who, besides not taking

remedial action, repl ied with his own inappropriate comment.

Moreover, upon reviewing the entire context of the harassment as

set forth above , the undersigned finds that Petitioner was

subjected to unwelcome harassment .

7 8 . As to the third factor, the conduct was clearly based

on her gender. While using curse words or even sexual slang does

not necessarily constitute gender - based harassment, the language

and conduct was clearly and frequently gender - specific. See

Reeves v. C.H. Robinson , 594 F. 3d 798 at 804. (Plaintiff

identified a substantial corpus of gender - derogatory language

addressed specifically to women.)

79 . The Eleventh Circuit set out a thorough framework for

analyzing the fourth factor. As the Court explai ned in Reeves v.

C.H. Robinson , 594 F. 3d 798, at 808 - 809:

Either severity or pervasiveness is

sufficient to estab lish a violation of Title

VII. (citation omitted) In evaluating

allegedly discriminatory conduct, we consider

its 'frequency . . .; its sever ity; whether

it is physically threatening or humiliating,

or a mere offensive utterance; and whether it

unreasonably interferes with an employee's

work performance.' Harris [v. Forklift

Systems, Inc.] , 510 U.S. at 23 [1993] , quoted

in Mendoza [v. Borden, Inc.] , 195 F.3d at

1258 [1999] (Tjoflat, J., concurring in part,

and dissenting in part).

Moreover, the plaintiff must prove that the

environment was both subjectively and

objectively hostile. Id ., at 21 - 22. "The

employee must 'subjectively perceive' the

harassment as sufficiently severe and

pervasive to alter the terms or conditions of

employment, and this subjective perception

must be objectively reasonable." Mendoza ,

195 F. 3d at 1246 (quoting Harris , 510 U.S. at

21 - 22). . . . "[T]he objective severity of

harassment should be judged from the

perspective of a reasonable person in the

plaintiff's position, considering 'all the

circumstances.' " Oncale , 523 U.S. at 81

(quoting Harris , 510 U.S. at 2 3).

In a case like this, where both gender -

specific and general, indiscriminate

vulgarity allegedly pervaded the workplace,

we reaffirm the bedrock principle that not

all objectionable conduct or language amounts

to discrimination under Title VII. Althoug h

gender - specific language that imposes a

change in the terms or conditions of

employment based on sex will violate Title

V II , general vulgarity or references to sex

that are indiscriminate in nature will not,

standing alone, generally be actionable.

Titl e V II is not a "general civility code."

(citations omitted). . . As we observed in

B aldwin v. Blue Cross/Blue Shield of Alabama ,

"Title VII does not prohibit profanity alone,

however profane. It does not prohibit

harassment alone, however severe and

perv asive. Instead, Title VII prohibits

discrimination, including harassment that

discriminates based on a protected category

such as sex. " 480 F.3d [1287] at 1301 - 02

[11th Cir. 2007 ] . . . . Title VII's test

instead is whether " members of one sex are

exposed to disadvantageous terms or

conditions of employment to which members of

the other sex are not exposed." (citation

omitted).

Nevertheless, a member of a protected group

cannot be forced to endure pervasive,

derogatory conduct and references that are

gend er - specific in the workplace, just

because the workplace may be otherwise rife

with generally indiscriminate vulgar conduct.

Title VII does not offer boorish employers a

free pass to discriminate against their

employees specifically on account of gender

j ust because they have tolerated pervasive

but indiscriminate profanity as well. . . .

As t he Supreme Court has observed, " [t]he

real social impact of workplace behavior

often depends on a constellation of

surrounding circumstances, expectations, and

rel ationships which are not fully captured by

a simple recitation of the words used or the

physical acts performed." (citations omitted)

Thus, we proceed with '[c]ommon sense, and an

appropriate sensitivity to social context,'

to distinguish between general o ffice

v ulgarity and the " conduct which a reasonable

person in the plaintiff's position would fi nd

severely hostile or abusive." Oncale [v.

Sundowner Offshore Servs., Inc. , 523 U.S. 75,

, 523 U.S. at 82 , (observing that

harassment with sexual conn otations is not by

itself sexual harassment).

8 0 . The evidence established that the harassing conduct was

pervasive, in that the conduct described above was frequent and

humiliating. 6/ The evidence further established that the

environment was subjectively hostile. Further, a reasonable

person in Petitioner's position, considering all of the

circumstances, would find the atmosphere hostile. Petitioner was

subjected to humiliating and degrading conduct in a way that the

conditions of her male c o - workers were not. It was a "workplac e

that exposed [Petitioner] to disadvantageous terms and conditions

of employment to which members of the other sex were not

exposed." Reeves v. C.H. Robinson , 594 F. 3d 798 at 813 , and was

pervasive enough to alter t he terms and conditions of her

employment .

81 . Finally, her employer knew about the misconduct as she

complained to her supervisor about the unwelcome conduct and her

supervisor was one of the persons who took part in the harassing

behavior. 7/

8 2 . Petitioner has met her burden of establishing a prima

facie case of a hostile work environment based upon sexual

harassment. 8/ Respondent offered no legitimate non -

discriminatory reason for its actions.

RECOMMENDATION

Upon the consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered by the Florida Commission on

Human Relations finding that , based upon Petitioner's failure to

show that the Respondent is "an employer" as d efined in s ect ion

760.02(7), that the Employment Complaint of Discrimination be

dismissed .

DONE AND ENTERED this 5 t h day of May , 20 11 , in Tallahassee,

Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 Administrativ e Hearings

this 5 th day of May , 20 11 .

ENDNOTES

1/ Two exhibits were mistakenly referenced as Petitioner's

Exhibit 11 during the hearing. The exhibit admitted on page 519

of the Transcript should have been referenced as Petitioner's

Exhibit 12.

2/ According to the date of birth indicated on her Empl oyment

Charge of Discrimination, Petitioner was in her mid - 40s at the

time.

3/ While Mr. Reaves did not testify, a brief portion of his

testimony from another proceeding was admitted into evidence in

which he denied that she complained to him. He did, however,

acknowledge telling her that if a person who was causing trouble

went to Wayne Frier about it, he would pack up their stuff before

they got back from complaining.

4/ Mrs. VanEtten believes that "the rabbit" describes a quick

rearranging of furniture in a mobile home. It is unlikely,

however, that Mr. VanEtten would perform "the rabbit, "as

described by Petitioner, in Mrs. VanEtten's presence.

5 / Danny Jones' testimony regarding Petitioner's behavior is

disregarded as not credible.

6/ There was some evidence that the conduct was physically

threatening, in that Petitioner is a petite woman and Mr. VanEtten

was described as a tall, large man. However, her testimony

focused on her humiliation, rather than a feeling of being

physical ly threatened.

7/ Had the conclusion of the threshold issue been otherwise, an

examination of whether the Friers knew or should have known about

the behavior would be appropriate. There is no evidence that

they knew. Indeed, Petitioner tried to call one of them and was

unsuccessful. Under the operational structure that exists, i.e.,

the lot managers having control of the day - to - day operations,

there is nothing to indicate that the Friers should have known

about the behavior at Westgate.

8 / Petitioner did not pursue her retaliation claim.

COPIES FURNISHED :

Jennifer C. Biewend, Esquire

Avera & Smith LLP

2814 Southwest 13th Street

Gainesville, Florida 32608

Kris B. Robinson, Esquire

Robinson, Kennon & Kendron, P.A.

582 West Duval Street

Post Office Box 1178

Lake City, Florida 32056 - 1178

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Lawrence J. Kranert , General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 ex ceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.