12-002422 Julia Griffith vs. Bradford County Farm Bureau Status: Closed Recommended Order on Monday, May 6, 2013.

Summary: Petitioner failed to prove that Respondent had the requisite number of employees to be considered an "employer" under the Florida Civil Rights Act of 1992, either individually or as a part of an integrated enterprise.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIA GRIFFITH , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2422

)

BRADFORD COUNTY FARM BUREAU , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on January 18, 2013, by video teleconference at sites in

Tallahassee, Florida and Gainesville, Florida, before E. Gary

Early, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona, Florida 32 728

For Respondent: Robert E. Larkin, III , Esquire

Allen, Norton & Blue , P.A.

Suite 100

906 North Monroe Street

Tallahassee , Florida 32 303

STATEMENT OF THE ISSUE

Whether the Petitioner proved the elements necessary to

demonstrate that she w as subject to an unlawful employment

practice as a result of Respondent, Bradford County Farm Bureau,

maintaining a sexually - hostile work environment .

PRELIMINARY STATEMENT

On or about November 22, 2011 , Petitioner filed a Charge of

Discrimination with t he Florida Commission on Human Relations

( FCHR ) naming the Bradford County Farm Bureau as her employer,

and as the entity responsible for sexual harass ment and

maintaining a sexually - hostile work environment in violation of

the Florida Civil Rights Act of 1992. The allegations were

investigated, and on June 8, 2012 , 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

July 12, 2012 . FCHR transmitted the case to the Division of

Administrative Hearings on July 13, 2012 . A Notice of Hearing

was issued setting the case for f inal hearing on September 20,

2012. On August 18, 2012, Petitioner moved fo r a continuance.

The motion was granted, and the final hearing was rescheduled

for October 29, 2012. On October 26, 2012, Petitioner filed an

U nopposed Motion for Continuance , which was granted. Upon the

filing of an Updated Status Report, an Order Resc heduling

Hearing was entered on November 9, 2012, which set the final

hearing for January 18, 2013 . The final hearing was thereupon

held as scheduled.

At the final hearing, Petitioner testified on her own

behalf, and offered the testimony of James Gaskins, the

President of the Board of Directors of the Bradford County Farm

Bureau ; Brent Huber, an insurance agent authorized to transact

business on behalf of the Florid a Farm Bureau Insurance Company;

and Virginia Linzy, a part - time secretary for the Bradford

County Farm Bureau. PetitionerÓs Exhibits 1 - 3 were received

into evidence. Respondent offered the testimony of Mr. Huber

and Mr. Gaskins. RespondentÓs Exhibits 1 , 2, and 5 - 7 were

received into evidence. After having left the record open at

the c onclusion of the final hearing, t he undersigned entered an

order closing the record effective on February 26, 2013.

The hearing was not transcribed. The time for filing

proposed recommended orders was extended to March 15, 2013.

Petitioner filed a notice advising that she would not be filing

a proposed recommended order. Respondent timely filed its

Proposed Recommended Order, which ha s been considered in the

preparation of this Recommended Order.

References to statutes are to Florida Statutes (201 2 )

unless otherwise noted.

FINDINGS OF FACT

1. At all times material to this proceeding, Petitioner

was employed by Respondent, Bradford County Farm Bureau ( BCFB or

Respondent ). She worked for the BCFB from December 15, 2006

until January 1, 2012 .

2. The BCFB is an organization created to work for and

provide support to farmers in Bradford County. The BCFB has its

office in Starke, Florida.

3 . At all times relevant to this proceeding, James Gaskins

was the President of the BCFB Board of Directors. He served in

that capacity as an unpaid volunteer. The alleged actions of

Mr. Gaskins towards the Petitioner form the basis for her claim

of employmen t discrimination.

4 . Section 760.10(1), provides that:

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 compensatio n, terms, conditions,

or privileges of employment, because of such

individualÓs 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 wo uld deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individualÓs status as an employee, because

of such individualÓs race, color, religion,

sex, national origin, age, handicap, or

marital status.

5 . Secti on 760.02(7) defines "employer" as follows:

Ò Employer Ó 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.

6 . The threshol d issue in this proceeding is whether the

BCFB had the requisite number of employees to bring it under the

jurisdiction of the Florida Civil Rights Act of 1992 as

PetitionerÓs Ð employer. Ñ If Petitioner fails in her proof of

that issue, any discussion of acts that may have constituted

sexual harassment or resulted in the creation of a sexually -

hostile work environment become superfluous and unnecessary.

Facts Regarding the BCFB as an ÐEmployerÑ

7 . At all times relevant to this proceeding , t he BCFB ha d

two paid employees . Ms. Griffith was the office manager and

bookkeeper. Ms. Linzy was a part - time secretary and

receptionist , although she worked full - time when Ms. Griffith

was out. Ms. Linzy retired in October, 2012.

8 . In addition to the foregoing employees, the BCFB has a

five - member board of directors. Although Mr. Gaskins, who was a

member of the Board, served as an unpaid volunteer, there was no

evidence as to whether the remaining members were paid for their

servic es. For pur poses of this Recommended O rder, it will be

presumed that they were.

9 . Based solely on the number of its employees, BCFB is

n ot an ÐemployerÑ as defined by s ection 760.10. Therefore, in

order to prove the threshold element of her claim for relief,

Petitioner must establish that employees of other entities

should be imputed to the BCFB due to integrated activities or

common control o f BCFBÓs operations or employees.

10 . Petitioner presented evidence of the relationship

between the BCFB , the Florida Farm Bureau , and the Florida Farm

Bureau Insurance Company (FFBIC) to establish the requisite

integration or common control necessary to impute their

employees to the BCFB.

Florida Farm Bureau

11 . The Florida Farm Bureau has more than 15 employees.

12 . T he Florida Farm Bureau has a mission similar to that

of the BCFB of providing goods, services, and other assistance

to farmers , though on a state - wide basis. Each county in

Florida has an independent county farm bureau.

13 . The Florida Farm Bureau has no common corporate

identity with the BCFB. T he BCFB is incorporated as a legal

entity unto itself.

14 . The Florida Farm Bureau and the BCFB have no common

officers, directors, or employees.

15 . The Florida Farm Bureau does not share or comingle

bank accounts with the BCFB. The BCFB maintains its own

finances, and has a bank account with the Capital City Bank

Group.

16 . The Florida Farm Bureau has no operational control

over the BCFB. T he BC FB Board of Directors makes all employment

decisions for the BCFB , h as exclusive authority to hire and fire

employees of the BCFB , and has exclusive control over the pay

and the terms and conditions of BCFB employees. Employees of

the BCFB are paid by the BCFB, and not by the Florida Farm

Bureau.

17 . The Florida Farm Bureau has the telephone numbers of

all of the county farm bureaus, and can transfer calls received

by the Florida Farm Bureau to any of the county farm bureaus.

Other than that, as stated by Ms. Linzy, the county farm bureaus

Ð are all on their own.Ñ

Florida Farm Bureau Insurance Company

18 . The Florida Farm Bureau Insurance Company is

affiliated with the Florida Farm Bureau. The nature and extent

of the relationship between those e ntities was not established .

The relationship between those two entities does not affect

their relationship, or lack thereof, with the BCFB.

19 . Petitioner introduced no evidence as to the FFBICÓs

total number of employees.

20 . The FFBIC has no common officers or directors with the

BCFB, nor do they share or comingle bank accounts.

21 . Brent Huber and Travis McAllister are insurance agents

authorized to transact business on behalf of the FFBIC. They

are self - employed inde pendent contractor s . Mr. Huber does

business as ÐBrent Huber, Inc.Ñ Neither Mr. Huber nor

Mr. McAllister is an employee of the FFBIC.

22 . Mr. Huber is not employed by the BCFB, and does not

perform duties on behalf of the BCFB. The evidence suggests

that Mr. McAllisterÓs status , vis - à - vis the BCFB , is the same as

that of Mr. Huber.

23 . Local FFBIC agents are selected by the FFBIC. Given

the close relationship with local farmers/customers, the FFBIC

selection of a local agent must be ratified by the county farm

bureau in the county in which the agent is to transact business .

Once ratified, an FFBIC agent cannot be terminated by the county

farm bureaus.

24 . Mr. Huber and Mr. McAllister, having been appointed to

t ransact business in Bradford C ounty as agents of the FFBIC,

maintain an office at the BCFB office in Starke.

25 . There being only four persons in the office, the

relationship among them was friendly and informal. Mr. Huber

described the group as Ðtigh t - knitÑ and Ðlike a family.Ñ

26 . Mr. Huber had no supervisory control over Petitioner

or her work schedule. Due to the small size of the BCFB office ,

and limited number of persons to staff the office,

Ms. GriffithÓs absences would cause problems for t he office as a

whole. However, Mr. Huber never evaluated Ms. GriffithÓs

performance and never disciplined Ms. Griffith.

27 . The F FBIC provided sexual harassment, employment

discrimination, workersÓ compensation, and minimum wage

informational signs that were placed in the BCFB office break

room. Those signs were ÐsharedÑ between the Florida Farm Bureau

Insurance Company and the BCFB. Thus, the BCFB did not maintain

a separate set of signs.

28 . The BCFB office has a single telephone number, and

calls are routed internally. If Mr. Huber was out of the

office, Petitioner or Ms. Linzy would take messages for him. If

Mr. Huber was alone in the office, he would answer the

telephone.

29 . Petitioner or Ms. Linzy would occasionally make

appointments for Mr. Huber, and assist him when clients visited

the office. Mr. Huber did not pay Petitioner or Ms. Linzy for

those services.

30 . At s ome point, Mr. Huber and Ms. Griffith determined

that it would be mutually advantageous if Ms. Griffith were

allowed to speak with FFBIC customers about insurance when

Mr. Huber was out of the office . To facilitate that

arrangement, Ms. Griffith , at Mr. H uberÓs suggestion, obtained a

license as a customer s ervice representative, which allowed her

to sell policies under Mr. Huber Ó s insurance agent license. The

customer service representative license was not a requirement of

Ms. GriffithÓs position with the BCFB.

31 . Ms. Griffith would sell insurance policies only when

Mr. Huber was out of the office. Mr. Huber compensated

Ms. Griffith for writing insurance policies through Ð Brent

Huber, Inc. Ñ Ms. Griffith continued to be paid as a full - time

employee of the BCFB because she thought the BCFB Ðwould be OK

with it.Ñ

CONCLUSIONS OF LAW

32 . 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.

33 . Petitioner has the burden of proving by a

preponderance of the evidence that the BCFB committed an

unlawful employment practice. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3rd DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co. , 396 So . 2d 778 (Fla. 1st DCA 1981);

§ 120.57(1)(j), Fla. Stat.

34 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. It is well

established that Ðif a Florida statute is modeled after a

federal law on the same subject, the Florida statute will take

on the same constructions as placed on its federal prototype.Ñ

Brand v. Florida Powe r Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); see also Valenzuela v. GlobeGround N. Am . , LLC , 18 So. 3d

17 (Fla. 3rd DCA 2009); Fla. State Univ. v. Sondel , 685 So. 2d

923 (Fla. 1st DCA 1996); Fla. Dep't of Cmty. Aff. v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

35 . A threshold question in t his case is whether the BCFB

is an Ð employer Ñ as defined in section 760.02(7) , which is a

prerequisite for PetitionerÓs claim to be actionable under the

Florida Civil Rights Act of 199 2 . T he United States Supreme

Court has determined th at question to be a n element of a

person's claim for relief. Arbaugh v. Y & H Corp. , 546 U.S.

500 , 516 (2006) , a ccord , Morrison v. Amway , 323 F. 3d 920 (11th

Cir. 2003). The FCHR has expressed its agreement with that

determination, and in that regard ha s determined that:

whether a Respondent has the requisite

number of employees to be governed by the

Florida Civil Rights Act of 1992 is not a

jurisdictional issue, but rather is an

element of PetitionerÓs claim for relief . .

. .

Hill v. Goga Ba p Corp. , d/b/a Subway Store No. 13268 , Case No.

12 - 08 8 6 (DOAH Jan. 7, 2013; FCHR Mar. 11, 2013) .

36 . For Petitioner to meet her burden of proof, she must

demonstrate that the BCFB employed 15 or more individuals for

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

question. Walters v. Metr o. Educ. Enter. , Inc. , 519 U.S. 202,

212 (1997). Counting the members of the Board of Directors as

Ðemployees,Ñ the BCFB has, at most, seven employees, which is

not sufficient for it to mee t the definition of an Ð employer . Ñ

Attribution of Employees

37 . In order for PetitionerÓs claim to be cognizable, it

is necessary that the employees of the BCFB be aggregated w ith

another entity so that the combined number of employees is 15 or

more. In determining whether such aggregation is warranted , the

Eleventh Circuit Court of Appeals has held that :

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 Ð Òh ighly

integrated with respect to ownership and

operations, Ó Ñ we may count them together

under Title VII . . . . This is the Ð single

employer Ñ or Ð integrated enterprise Ñ test.

Second, where two entities contract with

each other for the performance of some task,

and one company retains sufficient control

over the terms and conditions of employment

of the other company's employees, we m ay

treat the entities as Ð joint employers Ñ and

aggregate them . . . . This is the "joint

employer" test. Third, where an employer

delegates sufficient control of some

traditional rights over employees to a third

party, we may treat the third party as an

agent of the employer and aggregate the two

when counting employees. . . . This is the

Ð agency Ñ test. (internal citations omitted)

Lyes v. City of Riviera Beach , 166 F.3d 1332, 1341 (11th Cir.

1999) ; see also Martinolich v. Golden Leaf Mgmt., Inc. , 786 So.

2d 613, 615 (Fla. 3d DCA 2001).

ÐJoint EmployerÑ Test

38 . In determining the applicability of the Ðjoint

employerÑ test, the courts have applied the following rationale:

The basis of the finding is simply that one

employer while contracting in good faith

with an otherwise independent company, has

retained for itself sufficient control of

the terms and conditions of employment of

the employees who are employed by the other

employer. Thus the joint employer concept

recognizes that the business entitie s

involved are in fact separate but that they

share or co - determine those matters

governing the essential terms and conditions

of employment.

Virgo v. Riviera Beach Assocs., Ltd. , 30 F.3d 1350, 1360 (11th

Cir. 1994)(citing NLRB v. Browning - Ferris Industries, Inc. , 691

F.2d 1117, 1122 (3d Cir. 1982) ) .

39 . Petitioner introduced no evidence of any contract

between the BCFB and either the Florida Farm Bureau or the FFBIC

under which those entities shared or co - determined matters

governing any terms and conditions of employment of BCFB

employees. The only ÐcontractÑ for which evidence was provided

was that between Petitioner and Ð Brent Huber, Inc. Ñ That

agreement did not directly affect either the BCFB or the FFBIC .

Thus, the evidence in this case is not sufficient to form the

basis for an attribution of employees to the BCFB under the

Ðjoint employerÑ test .

ÐAgencyÑ Test

40 . In determining the applicability of the ÐagencyÑ test,

the courts have applied a variant of the common law of agency to

de termine whether one entity is acting as an agent of another,

based on the Ðright to control the manner and means by which the

work is accomplished.Ñ Garcia v. Copenhaver, Bell & Assocs.,

M.D.'s, P.A. , 104 F.3d 1256, 1266 (11th Cir. 1997).

41 . Petitioner introduced no evidence that the BCFB

delegate d any control of traditional rights over its employees

to the Florida Farm Bureau or the FFBIC. Decisions regarding

employee hiring, supervision, terms and conditions of

employment, discipline, and f iring all remained the exclusive

responsibility of the BCFB. Thus, the evidence in this case is

not sufficient to form the basis for an attribution of employees

to the BCFB under the ÐagencyÑ test.

ÐSingle EmployerÑ Test

42 . The final test set forth in Lyes is the Ðsingle

employerÑ test. In its analysis of the Ðsingle employerÑ test,

the Court held that:

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 . . . . This

standard sets out four criteria for

determining whether nominally separate

entities should be treated as an integrated

enterprise. (internal citation omitted).

Under the so - called Ð NLRB t est, Ñ we look for

Ð (1) i nterrelation of operations,

(2) centralized control of labor relations,

(3) common management, and (4) common

ownership or financial control. Ñ

Lyes v. City of Riviera Beach , 166 F.3d at 1341; see also Reeves

v. DSI Servs. , 331 Fed . App Ó x. 659, 663 (11th Cir. 2009). The

Court went on to hold that Ð [c] ourts applying the NLRB Ò single

employer Ó test to private entities in Title VII cases have held

that not every factor need be present, and no single factor is

controlling. Ñ Id. at 1341, fn . 5 ; see also E.E.O.C. v. Dolphin

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

43 . It is Petitioner's burden to establish the existence

of an integrated enterprise. Guaqueta v. Universal Beverages,

LLC , 2010 U.S. Dist. LEXIS 69660 *17 (S.D. Fla. 2010)(citing

Cardinale v. S. Homes of Polk Cnty., Inc. , 310 F. App'x 311, 312

(11th Cir. 2009)).

44 . In determining whether the first criteri on of

Ð interrelation of operations Ñ is met, courts look to whether the

companies share employees and resources. Guaqueta , supra , at

*18 (c iting Walker v. Boys & Girls Club of Am. , 38 F. Supp. 2d

1326, 1331 (M.D. Ala. 1999) ) ( Ð [T]he National 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 numbers and

(7) combined officers. Ñ ) .

45 . Applying the above analysis, the evidence establishes

that none of the indicia of interrelatedness exist in this case.

The closest factor is that the Florida Farm Bureau is able to

transfer a call received by it directly to a county farm bureau ,

and that Mr. Huber, as an independent contractor agent of the

FFBIC took his calls through the BCFB telephone system . Those

facts do not establish that the telephone numbers of the Florida

Farm Bureau or the FFBIC are ÐcombinedÑ with that of the BCFB in

any real sense of the term.

46 . In d etermining whether the second criteri on of

Ð centralized control of labor relations Ñ has been met, courts

look to Ð which company has the power to hire and fire employees

and control employment practices. Ñ Guaqueta , supra , at * 20

( citing Fike v. Gold Kist, Inc. , 514 F. Supp. 722, 727 (N.D.

Ala. 1981) ) (Ð [T] he Ò control Ó of labor relations is not potential

control but active control of day - to - day labor relations. Ñ ) .

47 . The preponderance of the evidence established that

neither the Florida Farm Bureau nor the FFBIC had any control

whatsoever of the day - to - day labor relations of the BCFB.

48 . The third criteri on of Ð common management Ñ is

dependent on there being common directors and officers.

Guaqueta , supra , at * 22 (citing Fike , supra , at 727 )( Ð Cases

treating two separate corporate entities as a single employer

have placed heavy emphasis on the existence of common directors

and officers. Ñ ) .

49 . The preponderance of the evidence established that the

BCFB had no common directors or officers with the Florida Farm

Bureau or the FFBIC .

50 . T he fourth and final criteri on of the Ðsingle

employerÑ test is Ð common ownership and financial control. Ñ

Courts have held that a finding of common ownership or financial

control alone is , in itself, insufficient to establish the

single employer or integrated enterprise criterion absent proof

of the other factors. Guaqueta , supra , at * 24 . Even if

Petitioner had proven other elements of the single employer or

integrated enterprise test -- which she did not -- t he following

analysis of the necessary degree of financial control is

instructive:

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

Supp. 878, 88 3 (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 losses

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

did not borrow funds from the other. 514 F.

Supp. a t 727.

Guaqueta , supra , at * 24 - 25.

51 . The preponderance of the evidence established that

there is no common ownership or financial control between the

BCFB and either the Florida Farm Bureau or the FFBIC. Thus, the

evidence in this case is not sufficient to form the ba sis for an

attribution of employees to the BCFB under the Ðsingle employerÑ

test.

Conclusion

52 . H aving applied the criteria set forth in the case law

analyzed above, there is not a scintilla of competent,

substantial evidence to support a conclusion that the BCFB has

the requisite number of employees to be an ÐemployerÑ as defined

in section 760.02(7). Thus, PetitionerÓs claim is not

actionable under section 760.10.

53 . The re being no evidence that the BCFB falls under the

purview of t he Florida Civil Rights Act, there is no purpose to

be served by proceeding with a determination of whether or not

Petitioner met her burden of establishing sexual harassment and

the maintenance of a sexually - hostile work environment . To do

so would amoun t to, essentially, the issuance of an advisory

order, which the undersigned declines to do.

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 that , based upon Petitioner's failure to meet

her burden of proof to establish that R espondent , Bradford

County Farm Bureau, is an Ð employer Ñ as defined in s ect ion

760.02(7), the Employment Complaint of Discrimination be

dismi ssed .

DONE AND ENTERED this 6th day of May , 20 1 3 , 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 6th day of May, 2013.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commis sion on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Robert E. Larkin, III, Esquire

Allen, Norton and Blue, P.A.

Suite 100

906 North Monroe Street

Tallahassee, Florida 32303

Jamison Jessup

557 Noremac Avenue

Deltona, Flor ida 32738

Che yanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

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.