11-003130 Georgie Breville vs. Florida Management Solutions, Inc. Status: Closed Recommended Order on Wednesday, September 14, 2011.

Summary: Petitioner failed to establish that Respondent was her employer. Respondent was not guilty of discrimination or of engaging in an unlawful employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGIE BREVILLE , )

)

Petitioner , )

)

vs. ) Case No. 11 - 31 30

)

FLORIDA MANAGEMENT )

SOLUTIONS, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursua nt to notice, a final hearing was held in this case

on August 30 , 2011, in Gainesville , Florida, before E. Gary

Early, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Georgie Breville , pro s e

2678 SW 14 th Drive

Gainesville, Florida 32 608

For Respondent: Carla D. Franklin , Esquire

204 West University Avenue, Suite 3

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Whether the Petitioner demonstrated that she was employed

by Respondent, the ÐemployerÑ identified in her Petition for

Relief, thus allowing her to proceed with her claim that she was

the sub ject of an unlawful employment practice by Respondent .

PRELIMINARY STATEMENT

This case was initiated through the issuance of a ÐN otice

of D etermination : No C ause Ñ by the Florida Commission on Human

Relations, by which the Commission determined that Respondent

was an ÐemployerÑ as defined in the Florida Civil Rights Act of

1992, but that no reasonable cause existed to believe that

Respondent engaged in an unlawful employment practice involving

Petitioner. Petitioner filed a Petition for Relief , which was

referred to the Division of Administrative Hearings (Division)

for disposition, and assigned to the undersigned. T he final

hearing was scheduled for August 30, 2011 , in Gainesville,

Florida. On August 20, 2011, Respondent filed a pleading

entitled Ð Motion to Dismiss Petition, or, in the A lternative, to

Limit the Hearing to the Issue of Whether an Employee - Employer

Re lationship Existed Between the Parties. Ñ The Motion was

served by U.S. Mail, thus leaving insufficient time for a

response prior to the hearing. Given the evidentiary nature of

the issue, the hearing proceeded as scheduled.

At the hearing, the Motion w as taken up in order to

determine the fundamental issue of whether Respondent was

PetitionerÓs employer, or whether Respondent had any degree of

authority or control over the terms and conditions of

Petitioner Ós employment , over the person alleged to have engaged

in discriminatory conduct, or over the alleged unlawful

employment practice, i.e., termination of Petitioner from

employment. The failure to prove the existence of an employe e -

employe r relationship would constitute a failure to prove the

most basi c jurisdictional element of an unlawful employment

practice complaint, and would obviate the necessity of

proceeding with any further evidence of discriminatory acts.

Petitioner testified on her own behalf, and offered

PetitionerÓs Exhibits 1 through 3 , e ach of which was admitted

into evidence. Respondent presented the testimony of Angela

Pate, RespondentÓs Execu tive Director , during all time periods

pertinent to this proceeding. Respondent offered RespondentÓs

E xhibits 1 through 3 , each of which was adm itted into evidence.

FINDINGS OF FACT

1. Workforce Florida, Inc. (WFI) , is a not - for - profit

corporation created by the Legislature as the policy organization

for the state of Florida charged with implementing the federal

Workforce Investment Act of 1998, Pub. L. No. 105 - 220. WFI was

administratively housed within the Agency for Workforce

Innovation (AWI) but was not subject to its control, supe rvision ,

or direction. 1/ WFI provides oversight and policy direction to

ensure the proper administration of a nu mber of job counseling,

placement , and training programs funded by the federal

government.

2. The Alachua - Bradford Regional Workforce Board d/b/a

FloridaWorks (Board) is one of 24 regional workforce boards

established by law to provide ongoing oversight related to

administrative costs, duplicated services, career counseling,

economic development, equal access, compliance and

accountability, and performance outcomes , and to o versee the

Ð one - stop Ñ delivery system in its local area. The regional

boards are chartered by W FI upon a determination that the

membership and workforce development plans are consistent with

state law and the overall state workforce development strategy.

The members of the Board are appointed by the county commissions

of Alachua and Bradford Counties. The Board itself has no

employees.

3. Ð One - stop Ñ services include a variety of services

related to employment, c areer counseling, education, skills

training, and support services.

4. C ertain federally - funded services provided at one - stop

service centers , including Wagner - Peyser Act labor exchange

services, are required to be administered by state employees,

rather than local or contracted providers. For those services,

AWI places AWI employees at the one - stop centers.

5 . The Flor ida Institute for Workforce Innovation (FIWI) is

the BoardÓs contracted one - s top delivery system operator.

Employment services offered in Alachua and Bradford Counties are

provided through the one - stop delivery system, under the guidance

of FIWI. FIWI is the Ðhands onÑ service provider responsible for

the day - to - day operation of the service programs.

6 . Respondent is the Board Ós contracted administrative

entity responsible for program compliance, quality assurance , and

monitoring. Respondent provides ad ministrative services to the

Board itself, and is responsible for the BoardÓs fiscal

activities and disbursements to contracted providers. Respondent

does not perform any human relations or personnel evaluations,

supervision, or oversight for the Board or for any entity

operating from the one - stop center .

7 . In addition to responsibilities prescribed by statute,

the descriptions and delineations of authority under which AWI

and the Board operate are established in the Ð Master Cooperative

Agreement Between FloridaWorks and the Agency for Workforce

Innovation (AWI). Ñ The Master Agreement Ðsets forth the terms

and conditions that FloridaWorks . . . agrees to [for] the

receipt of federal workforce funds from [AWI].Ñ

8. Exhibit ÐAÑ to the Master Agreement co nsist s of a

Ð Memorandum of Understanding between FloridaWorks and the Agency

for Workforce Innovation for the Delivery of Wagner - Peyser Funded

Employment Services and Other Workforce Program Services Provided

by the Agency. Ñ The purpose of the Memorandum of Understanding

is to Ðestablish an organizational framework to integrate the

delivery of Agency program services into the One - Stop delivery

system established by the Board.Ñ The Memorandum of

Understanding further provide s that Ð[a]lthough the One - Stop

system operator or managing partner shall have overall authority

for directing agency staff assigned to One - Stop centers,

personnel matters, such as hiring and discipline, shall remain

under the ultimate authority of the agency . Ñ Finally, the

Memorandum o f Understanding provide s that:

AWI staff assigned to the local One - Stop

centers shall deliver [AWI] program services

listed in Section I of this Agreement. The

delivery of these services shall be done in

compliance with all applicable Federal and

State la ws, including equal opportunity and

non - discrimination laws. [AWI] shall be

responsible for funding, directing,

controlling, and delivering the workforce

services provided by the AWI staff consistent

with Federal guidelines and consistent with

the directi on provided by the Board.

9 . The organizational chart in the Memorandum of

Understanding identified Petitioner as an AWI staff member

assigned to deliver AWI program services.

10. Petitioner was employed by FIWI from 2001 to 2002. In

2002, Petitione r accepted employment with AWI. As an employee of

AWI, Petitioner received pay and benefits as an employee of the

state of Florida , including group health insurance and

contributions to the State Retirement System .

1 1 . Petitioner performed her job duties at the Alachua -

Bradford one - stop service center as an AWI employee.

1 2 . The alleged discriminatory acts were directed at

Petitioner by Ms. Betty Holmes, PetitionerÓs supervisor and an

employee of AWI. 2 /

1 3 . The adverse employment practice that resul ted from the

alleged discriminatory acts, i.e. the termination of Petitioner,

was accomplished by a termination letter issued by AWI, and

signed by Tom Clendenning, AWIÓs Assistant Director.

1 4 . Respondent did not hire Petitioner. Respondent did not

di rectly supervise Petitioner. Respondent did not evaluate

PetitionerÓs performance as an employee. Respondent did not have

decision - making authority as to where Petitioner physically

worked. Respondent was not responsible for PetitionerÓs pay or

benefits . Respondent was not involved in the decision to

eliminate PetitionerÓs position or otherwise terminate Petitioner

from employment. In short, Respondent exhibited no indicia of

being PetitionerÓs employer.

1 5 . Ms. Pate was not advised of any discriminat ory acts by

Ms. Holmes or otherwise. Although Ms. Pate indicated that she

had an open door policy, attended regular meetings of one - stop

center personnel, and frequently walked the corridors of the one -

stop center building, none of which Petitioner disput ed,

Petitioner indic a ted that she would not intrude on a person

without a specific reason and an appointment. Petitioner did not

make any such appointment with Ms. Pate, nor does the record

reveal that information regarding Ms. HolmesÓ alleged

discriminat ory acts was ever conveyed to any employee of

Respondent.

CONCLUSIONS OF LAW

1 6 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to s ections 1 20.569 and 120.57(1), Florida

Statute s (2010).

1 7 . U nless specifically stated otherwise herein, all

references to the Florida Statutes will be to the 20 10

codification which was that in effect when the unlawful

employment practice that forms the basis for PetitionerÓs claim

occurred .

1 8 . S ection 760.10(1), Florida Statutes, provides that:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, 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.

19 . The term ÐemployerÑ is defined in section 760.02(7) as

Ð any person employing 15 or more emp loyees 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. Ñ Though not

explicit in the statute, the ÐemployerÑ must have an employe e -

employe r relationship with the person all eging discrimination in

order to be liable for an unlawful employment practice under

sec tion 760.10(1) .

2 0 . Section 20.50(1), Florida Statutes, provides that:

(1) The Agency for Workforce Innovation

shall ensure that the state appropriately

administers federal and state workforce

funding by administering plans and policies

of Workforce Florida, Inc., under contract

with Workforce Florida, Inc. The operating

budget and midyear amendments thereto must

be part of such contract.

(a) All program and fisca l instructions to

regional workforce boards shall emanate from

the agency pursuant to plans and policies of

Workforce Florida, Inc. Workforce Florida,

Inc. shall be responsible for all policy

directions to the regional boards.

( b) Unless otherwise prov ided by agreement

with Workforce Florida, Inc., administrative

and personnel policies of the Agency for

Workforce Innovation shall apply.

2 1 . Section 445.004(2), Florida Statutes, provides that:

(2) Workforce Florida, Inc., is the

principal workforce po licy organization for

the state. The pur pose of Workforce Florida,

Inc. is to design and implement strategies

that help Floridians enter, remain in, and

advance in the workplace, becoming more

highly skilled and successful, benefiting

these Floridians, Fl orida businesses, and the

entire state, and to assist in developing the

state's business climate.

2 2 . Secti on 445.004(11) provides that:

(11) The workforce development system shall

use a charter - process approach aimed at

encouraging local design and cont rol of

service delivery and targeted activities.

Workforce Florida, Inc. shall be responsible

for granting charters to regional workforce

boards that have a membership consistent with

the requirements of federal and state law and

that have developed a pla n consistent with

the state's workforce development strategy.

2 3 . Secti on 445.007(1) provides, in pertinent part, that

Ð[o]ne regional workforce board shall be appointed in each

designated service delivery area and shall serve as the local

workforce inve stment board pursuant to Pub. L. No. 105 - 220. Ñ

Secti on 445.007(4) provides , in pertinent part, that:

In addition to the duties and functions

specified by Workforce Florida, Inc., and by

the interlocal agreement approved by the

local county or city governi ng bodies, the

regional workforce board shall have the

following responsibilities:

(a) Develop, submit, ratify, or amend the

local plan pursuant to Pub. L. No. 105 - 220,

Title I, s. 118, and the provisions of this

act.

(b) Conclude agreements necessary to

designate the fiscal agent and

administrative entity . . . .

(c) Complete assurances required for the

charter process of Workforce Florida, Inc.,

and provide ongoing oversight related to

administrative costs, duplicated services,

career counseling, ec onomic development,

equal access, compliance and accountability,

and performance outcomes.

(d) Oversee the one - stop delivery system in

its local area.

2 4 . Section 445.009 (3) provides, in pertinent part, that:

Beginning October 1, 2000, regional

workfo rce boards shall enter into a

memorandum of understanding with the Agency

for Workforce Innovation for the delivery of

employment services authorized by the

federal Wagner - Peyser Act. This memorandum

of understanding must be performance based.

* * *

(b) Employment services must be provided

through the one - stop delivery system, under

the guidance of one - stop delivery system

operators. One - stop delivery system

operators shall have overall authority for

directing the staff of the workforce system.

Person nel matters shall remain under the

ultimate authority of the Agency for

Workforce Innovation. However, the one - stop

delivery system oper ator shall submit to the

agency information concerning the job

performance of agency employees who deliver

employment s ervices. The agency shall

consider any such information submitted by

the one - stop delivery system operator in

conducting performance appraisals of the

emplo yees.

2 5 . Chapter 760 is analogous to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 200 0e, et seq . Cases

interpreting Title VII are, therefore, applicable in construing

and applying c hapter 760 . DepÓt of C mty. Aff. v. Bryant , 586 So.

2d 1205, 1209 (Fla. 1st DCA 1991) ; Sch. Bd. of Leon Co. v.

Hargis , 400 So. 2d 103, 108 (Fla. 1st DCA 1981); Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1 3 85, 1387 (11th Cir.

1998) , cert. denied , 525 U.S. 1000, 119 S. Ct. 509, 142 L.Ed.2d

422 (1998) .

2 6 . In cases of discrimination brought under the Florida

Human R ights Act of 1977, s ections 760.01 - 760.1 1 , a P etitioner

has the burden of proving by a preponderance of the evidence that

Respondent committed an unlawful employment practice , a burden

that is ultimately retained by the P etitioner throughout the

proceeding . Bryant , 586 So. 2d at 1209 ( citing Mc Donnell - Douglas

Corp. v. Green , 411 U.S. 792 (1973) ) .

2 7 . T he United States Supreme Court has established the

requirements for proving a prima facie case of discrimination,

which can vary depending on differing factual situations .

McDonnell - Douglas Corp . v. Green , 411 U.S. at 802 n. 13; see

also, Schwartz v. State of Florida , 494 F. Supp. 574, 583 (N.D.

Fla. 1980). In short, those requirements are :

[ t ] hat Ð a Title VII plaintiff carries the

initial burden of showing actions taken by

the employer from wh ich one can infer, if

such actions remain unexplained, that it is

more likely than not that such actions were

Ðbased on a discriminatory criterion illegal

under the Act.Ñ

Furnco Construction Corp. v. Waters , 438 U.S. 567, 576 (1977) ,

citing Teamsters v. United States , 431 U.S. 324, 358 (1977).

2 8 . If a P etitioner proves a prima facie case of

discrimination, the burden shifts to the employer Ðto articulate

some legitimate nondiscriminatory reasonÑ for the adverse

employment action. McDonnell - Douglas Co rp. v. Green , 411 U.S. at

802.

29 . O nce the employer succeeds in carrying its burden of

producing a nondiscriminatory reason for the challenged action,

the employee must show that the employerÓs reason is pretextual.

The final and ultimate burden of pers uading the trier of fact, by

a preponderance of the evidence, remains at all times with the

employee. St. MaryÓs Honor Center v. Hicks , 509 U.S. 502, 507 -

508 (1993) ; Tex. DepÓt of Cmty. Aff . v. Burdine , 450 U.S. 248,

257 (1981) .

3 0 . In this case, Petitio ner failed to prove that

Respondent was her employer, thus fai l ing in her initial prima

facie case of discrimination. Respondent did not discharge

Respondent, or otherwise discriminate against Respondent with

respect to compensation, terms, conditions, or privileges of

employment, because the evidence is uncontroverted that

Respondent was not in an employe e - employe r relationship with

Petitioner.

3 1 . Petitioner simply filed her complaint against the wrong

entity. Although Petitioner worked at the Alachu a - Bradford o ne -

s top service center, and Respondent was the administrative entity

for that center, Respondent was not PetitionerÓs employer , and

had no duties or responsibilities towards Petitioner that would

place it in an employer relationship with Petiti oner . Rather,

Petitioner was an employee of AWI, as was Betty Holmes,

PetitionerÓs supervisor and the source of the alleged

discriminatory acts.

3 2 . The hearing in this case was limited to a determination

of the employee - employer relationship as requeste d in

RespondentÓs Motion to Dismiss Petition, or, in the alternative,

to Limit the Hearing to the Issue of Whether an Employee - Employer

Relationship Existed Between the Parties . Thus, that motion is

granted. Based upon the limitation on the scope of the

proceeding, the issue of whether Petitioner was discriminated

against or was the subject of an unlawful employment practice by

AWI was not reached. Thus, this order should not be construed as

having any stare decisis effect in any subsequent proceeding

in volving PetitionerÓs actual employer.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order dismissing PetitionerÓs Petition for Relief .

DONE AND ENTERED this 14th day of September , 2011 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee , Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of September , 2011 .

1 / The AWI was subject to extensive governmental reorganization

in 201 1, which resulted in its dissolution, with its duties and

responsibilities transferred to the Department of Economic

Opportunity. All acts material to this proceeding occurred

while AWI was still an agency of the state of Florida.

2 / Although the organi zational chart received in evidence shows

PetitionerÓs supervisor to be Arelis Rosario, an employee of

FIWI, both Petitioner and Ms. Pate considered Ms. Holmes to be

PetitionerÓs direct supervisor.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Carla D. Franklin, Esquire

Carla D. Franklin, P.A.

204 West University Avenue, Suite 3

Gainesville, Florida 32601

Georgie M. Breville

2678 Southwest 14th Drive

Gainesville, Florida 32608

Larry 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 of Dismissal .

Any exceptions to this Recommended Order of Dismissal should be

filed with the agency that will issue the Final Order in this

case.