08-001228 Latonia M. Enzor vs. Florida Developers, Inc. Status: Closed Recommended Order on Thursday, July 10, 2008.

Summary: Petitioner did not prove that Respondent was her employer. Therefore, the Florida Commission on Human Relations is without jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATONIA M. ENZOR, )

)

Petitioner, )

)

vs. ) Case No. 08-1228

)

FLORIDA DEVELOPERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on June 13, 2008, in

Tallahassee, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Latonia M. Enzor, pro se

3535 Roberts Avenue, Number 274

Tallahassee, Florida 32310

For Respondent: Frank Williams, President

Florida Developers, Inc.

642 West Brevard Street

Tallahassee, Florida 32305

STATEMENT OF THE ISSUE

Is Respondent, Florida Developers, Inc. an employer as

defined in Section 760.02(7), Florida Statutes (2007), for

purposes of conferring jurisdiction on the Florida Commission on

Human Relations (FCHR) to consider the Charge of Discrimination

filed by Petitioner Letonia M. Enzor against Respondent?

PRELIMINARY STATEMENT

On or about June 12, 2007, Petitioner filed a Charge of

Discrimination with FCHR naming "Florida Developers, Inc. of

Tallahassee" as the offending employer. The allegations were

investigated, and on November 13, 2007, FCHR entered a

Determination: No Jurisdiction and issued a Notice of

Determination: No Jurisdiction. The basis for the determination

was that FCHR lacked jurisdiction over the complaint in that FCHR

determined that Coastal was not an "employer" in accordance with

Section 760.02(7), Florida Statutes, because Petitioner was an

employee of Tallahassee Contractors, not Respondent.

A Petition for Relief was filed by Petitioner on or about

March 10, 2008. FCHR transmitted the case to the Division of

Administrative Hearings on or about March 12, 2008. A Notice of

Hearing was issued setting the case for formal hearing June 3,

2008. Petitioner filed a request for continuance which was

granted. The hearing was rescheduled for June 13, 2008, and

proceeded as scheduled.

At hearing, Petitioner testified in her own behalf and did

not offer any exhibits. Respondent presented the testimony of

Frank Williams. Respondent's Exhibits numbered 1 and 2 were

admitted into evidence.

The hearing was not transcribed. The parties timely filed

post-hearing written submissions which have been considered in

preparing this Recommended Order.

Unless otherwise indicated, all references are to Florida

Statutes (2007).

FINDINGS OF FACT

1. Petitioner, Latonia Enzor, was employed by Tallahassee

Contractors, LLC, as a truck driver sometime in 2006. The exact

dates of her employment are not in evidence, but Petitioner's

Employment Complaint of Discrimination alleges that the most

recent discrimination took place on June 1, 2007. Tallahassee

Contractors is a trucking company.

2. Respondent, Florida Developers, Inc. (Florida

Developers), is a general contractor and underground utility

contractor. Florida Developers has been in the contracting

business for 27 years.

3. Frank Williams is President of Florida Developers.

4. Mr. Williams is also a managing partner of Tallahassee

Contractors, which has been in business for about two years.

5. Ms. Enzor acknowledges that she did not fill out an

employment application with Florida Developers, never received a

paycheck from Florida Developers, and was never told that she was

an employee of Florida Developers.

6. Ms. Enzor remembers signing some papers that had Florida

Developers’ name on it when she was first employed by Tallahassee

Contractors. However, the papers themselves nor the nature of

any such papers are in evidence.

7. Ms. Enzor believes that Tallahassee Contractors, Florida

Developers, and a third company, Sandco, Inc., are interrelated

businesses.

8. According to Mr. Williams, the three companies which

Ms. Enzor believes are related, are separate companies. This

testimony is accepted as credible and found as fact.

9. Any action taken by Mr. Williams regarding Ms. Enzor’s

employment with Tallahassee Contractors was in his capacity as a

managing partner for Tallahassee Contractors, not as president of

Florida Developers.

10. No corporate documents are in evidence. No competent

evidence was presented that Respondent and Tallahassee

Contractors are highly integrated with respect to ownership and

operations.

11. Petitioner also filed Employment Complaints of

Discrimination against Tallahassee Contractors and Sandco, Inc.,

see Latonia Enzor v. Tallahassee Contractors, Inc. , DOAH Case

No. 08-1227 (Recommended Order entered May 20, 2008), and Latonia

Enzor v. Sandco, Inc. , DOAH Case No. 08-1229 (Recommended Order

of Dismissal entered June 4, 2008).

CONCLUSIONS OF LAW

12. For purposes of this proceeding the Division has

jurisdiction over the parties and the limited subject matter

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, and

Section 760.02(7), Florida Statutes.

13. This case concerns the question of whether jurisdiction

resides with FCHR to investigate Petitioner's Employment Charge

of Discrimination. In particular, is the named Respondent an

"employer" subject to the Florida Civil Rights Act of 1992.

Section 760.02(7), Florida Statutes, defines the meaning of

"employer" as follows:

'Employer' means any person employing 15 or

more employees for each working day in each

of 20 or more calendar weeks in the current

or preceding calendar year, and any agent of

such a person.

14. Petitioner bears the burden to establish her claim

consistent with the criteria above. See McDonnell Douglas Corp.

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

v. Burdine , 450 U.S. 248 (1981). Petitioner must establish this

proof by a preponderance of the evidence. § 120.57(1)(j), Fla.

Stat.

15. The Florida Civil Rights Act on job discrimination is

patterned after Title VII of the Civil Rights Act 1964, 42 U.S.C.

§ 2000e-2. In instances in which a Florida Statute is modeled

after a federal law on the same subject, the Florida statute will

take on the same construction as the federal law if such

interpretation is harmonious with the spirit and policy of the

Florida legislation. Brand v. Florida Power Corporation , 633 So.

2d 504, (Fla. 1st DCA 1994). See School Board of Leon County v.

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

103 (Fla. 1st. DCA 1981).

16. Petitioner asserts that Respondent, Florida Developers,

and Tallahassee Contractors are interrelated companies. To

establish this, these companies 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 construction pertaining to the term

"employer" set forth in Title VII. See Lyes v. the City of

Rivera Beach, Florida , 166 F.3d 1332, 1341 (11th Cir. 1999). The

court in Lyes explained at 1341:

In keeping with this liberal construction, we

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 determining 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 integrated with

respect to ownership and operations,' we may

count them together under Title VII.

McKenzie , 834 F.2d at 933 (quoting Fike v.

Gold Kist, Inc. , 514 F.Supp. 722, 726

(N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.

1981)). This is the 'single employer' or

"integrated enterprise" test. . . . .

In determining whether two non-governmental

entities should be consolidated and counted

as a single employer, we have applied the

standard promulgated in NLRA cases by the

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

McKenzie , 834 F.2d at 933. This standard

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.' . . .

17. There is no evidence to establish that Ms. Enzor was

ever an employee of Respondent, Florida Developers. Ms. Enzor’s

general beliefs and suspicions about these companies is simply

insufficient evidence to establish that Tallahassee Contractors

and Florida Developers have an interrelation of operations,

centralized control of labor relations, common management, or

common ownership or financial control to be treated as an

integrated enterprise.

18. Therefore, the Commission is without jurisdiction to

proceed with the processing of Petitioner’s Employment Charge of

Discrimination.

RECOMMENDATION

Upon the consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered by the Commission finding that

it is without jurisdiction to proceed in this case based upon

Petitioner's failure to show that Respondent is "an employer" as

defined in Section 760.02(7), Florida Statutes.

DONE AND ENTERED this 10th day of July, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of July, 2008.

COPIES FURNISHED :

Latonia Enzor

3535 Roberts Avenue, Number 274

Tallahassee, Florida 32310

Frank Williams, President

Florida Developers, Inc.

642 West Brevard Street

Tallahassee, Florida 32305

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All 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.