14-000880 Jamey M. Favillo vs. Remedy Intelligence Staffing Status: Closed Recommended Order on Wednesday, December 31, 2014.

Summary: Employment agency who provided temp employees to client was not Title VII employer for purposes of client's decision to terminate Petitioner. No discrimination based on race shown by name calling incident. No disability or perceived disability shown.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMEY M. FAVILLO,

Petitioner,

vs. Case No. 14 - 0880

REMEDY INTELLIGENCE STAFFING,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before the Honorable

Diane Cleavinger, Administrative Law Judge, Division of

Administrative Hearings on October 21, 2014, in Panama City,

Florida.

APPEARANCES

For Petitioner: Jamey M. Favillo

ansmitter Road, Lot 35

Panama City, Florida 32401

For Respondent: Collin A. Thakkar, Esquire

Jackson Lewis, Attorneys at Law

501 Riverside Avenue, Suite 902

Jacksonville, Florida 32202

ST ATEMENT OF THE ISSUE

The issue in this proceeding is w hether the Respondent

committed an unlawful employment practice against Petitioner in

violation of the Florida Civil Rights Act.

PRELIMINARY STATEMENT

On September 17, 2013, Petitioner filed a Complain t of

Employment Discrimination a gainst Respondent, Remedy Intelligence

Staffing (Respondent or Remedy), with the Florida Commission on

Human Relations (FCHR). The Complaint alleged that Respondent

discriminated against Petitioner on the basis of disabilit y, a

minor hand condition , by denying his request for a ten - day light

duty assignment with the RespondentÓs client , Trane, because he

was physically incapable of performing his work duties as a

Production Technician with the client while recovering from hi s

hand condition. Petitioner also alleged that Remedy sub sequently

discriminated against him based on his race , Caucasian , by

terminating his temporary assignment with Trane.

FCHR investigated the Complaint. On February 7, 2014, it

issued a Notice of Det ermination finding no cause to believe that

an unlawful employment practice had occurred. The Notice also

advised Petitioner of his right to file a Petition for Relief.

On February 24, 2014, Petitioner filed a Petition for Relief with

FCHR. Thereafter, the Petition for Relief was forwarded to the

Division of Administrative Hearings (DOAH) for formal hearing.

At the hearing, Petitioner testified on his own behalf , but

did not offer any exhibits that were admitted into evidence.

Respondent presented the t estimony of one witness and offered

RespondentÓs Exhibit No s . 1 - 7, 10, 12 - 15, 17 - 18 , and 20 , which

were admitted into evidence.

After the hearing, Respondent filed a Proposed Recommended

Order on November 17, 2014. Petitioner filed a Proposed

Recommended Order on November 18, 2014. PetitionerÓs Proposed

Recommended Order referenced documents and alleged facts based on

documents that were not authenticated, introduced, or admitted at

hearing. As such, none of the documents or alleged facts based

thereon w as evidence that could be considered in this matter and

were not utilized in the preparation of this Recommended Order.

FINDING S OF FACT

1. Remedy provide s staffing services for temporary

employment positions with a variety of independent business

client s. The relationship between Remedy and its clients is

governed by contracts it has entered into with those clients.

Towards that end, Remedy solicits applications and/or maintains

an applicant pool of people known as ÐassociatesÑ for temporary

work assig nment to RemedyÓs clients. However, Remedy does not

operate or manage its clients ' business or employment dec isions .

2 . At the commencement of an associate Ó s staffing

relationship with Remedy, all a ssociates are require d to review

Remedy Ós policies and procedures, including its Discrimination

and Harassment Policy .

3. Under that policy, a Remedy a ssociate who believes he or

she has been discriminated against while performing an assig nment

for a Remedy client is encouraged to notify Remedy of th e

perceived discrimination. After notification, Remedy

investigates and advises the client of its findings.

4. After investigation, i f a Rem edy a ssociate engaged in

misconduct while at a temporary assignment, Remedy is entitled to

take d isciplinary action against the a ssociate, including removal

of the a ssociate from the assignment. However, Remedy cannot

tak e disciplinary action against a direct employee of the client,

nor can it require the client to take disciplinary action against

the clientÓs d irect employee. Similarly, if a client demands

that a Remedy a ssociateÓs assignment be terminated, Remedy has no

authority to second - guess that decision or to refuse to terminate

the associateÓs assignment with the client . Importantly, w hen a

Remedy a sso ciateÓs assignment w ith a client is terminated early

by the client , the associateÓs relationship with Remedy remain s

in place unless and until either party expressly advises the

other that the relationship is being terminated.

5 . In this case, Remedy had a contract with Trane, a

manufacturer of air conditioning units. Under its contract with

Trane, Trane notified Remedy of temporary assignments that need ed

to be filled at its manufacturing plant in Panama City, Florida.

Upon such notification, Remedy ide ntified qu alified associates

for TraneÓs consideration for work at its plant .

6 . On or about February 8, 2013, Petitioner submitted an

application to Remedy, seeking consideration for assignment to an

open temporary position with Trane.

7 . He was selected by Trane for the position and began

working as a Production Technician for Trane on March 4, 2013 .

8 . In performing the duties and responsibilities of his

position as a Production Technician, Petitioner was subj ect to

the supervision of Trane management, including Group Leader ,

Shirley Gunn , and Operations Leader , Jesse Arnold.

9 . On or about May 30, 2013, Petitioner advised RemedyÓs

Staffing Coordinator, Jaime Chapman , that he needed to take

medical leave due to a growth on his fi nger. The growth was

unrelated to his employment at Trane . Petitioner was granted

leave by Trane .

1 0 . On June 17, 2013 , while on medical leave , Petitioner

provided a doctorÓs note to Ms. Chapman , which indicated that

Petitioner was capable of retu rning to work in a light - duty

capacity. The note imposed various restrictions on PetitionerÓs

permissible work duties, including, but not limited to, Ðno

machine, manipulator, compressor, wall rear, no lifting above 15

lb.Ñ

1 1 . Ms. Chapman passed Pe titionerÓs leave request to Trane.

However, Trane 's policy did not permit light duty assignments for

non - work related injuries or medical issues and the request was

denied by Trane . There was no evidence that Trane Ó s policy was

based o n discrimination or that Remedy had any input or control

over Trane Ó s light - duty policy. As such, PetitionerÓs

allegations that denial of such light duty was discriminatory

should be dismissed.

1 2 . Ms. Chapman advised Petitioner of TraneÓs policy on

light - duty assignm ents an d explained to him that he must remain

on leave until he was medically cleared to return to full work

duties.

1 3 . On or about June 27, 2013, Petitioner provided

Ms. Chapman with a new doct orÓs note, stating that Petitioner had

undergone surger y for his medical condition, and would be unable

to work in any capacity from June 27, 20 1 3, until July 1, 2013.

Four days later , on July 1, 20 1 3, Petitioner provided Ms. Chapman

with medical clearanc e to return to full work duties . That same

day he retu rned to his job as a Production Technician at Trane .

14. Clearly, neither the growth on PetitionerÓs hand nor

its subsequent medical treatment significantly impaired a major

life activity of Petitioner since he recovered and returned to

work. More over, there was no evidence that demonstrated

PetitionerÓs medical issue with his hand or treatment thereof

constituted a disability that significantly impaired a major life

activity or was seen as such by Respondent or Trane. Given this

lack of disabilit y, PetitionerÓs allegations regarding

discrimination based on disability should be dismissed.

15 . At 2:00 a.m. , on July 2, 2013, Ms. Chapman received an

email from Ms. Gunn, the Trane manager with supervisory authority

over Petition er, indicating tha t during the July 1 night shift,

Petit ioner and Remedy Associate Tarmecia Jackson , who is Black ,

were involved in a verbal altercation with Ms. Jackson calling

Petitioner an Ðasshole . Ñ In the email, Ms. Gunn requested that

Ms. Chapman counsel Petitioner a s well as Ms. Jackson regarding

the need for each of them to improve their level of

professionalism during their co - worker interactions. The

evidence demonstrated that the n ame - calling incident was only a

verbal feud between co - workers . There was no evid ence that

demonstrated such name - calling was discriminatory or had its

aegis in discrimination.

16 . Ms. Chapman complied with Ms. GunnÓs request, and

conducted separate counseling sessions with Petitioner and

Ms. Jackson. During Ms. JacksonÓs counse ling session,

Ms. Chapman advised her that the conduct she exhibited during the

July 1 , 2013 , incident was unacceptable and would not be

tolerated going forward. In response, Ms. Jackson apologized for

her conduct and assured Ms. Chapman that she would co mply with

TraneÓs conduct requirements going forward.

17 . During PetitionerÓs counseling session, Ms. Chapman

advised him that he must refrain from arguing with co - workers at

the Trane worksite, and that if he had any additional issues with

co - worker s, he must report those issues to Remedy. Petitioner

accepted Ms. ChapmanÓs counseling, without objection. At no time

during the counseling session did Petitioner express a perception

that he was being treated unfairly or discriminatorily.

18 . On J uly 12, 2013, Ms. Chapman received a second email

from Ms. Gun n stating that Petitioner and Ms. Jackson were once

again involved in an altercation. However, in the latest

instance, Ms. Gunn determined that Petitioner was responsible for

instigating the co nflict, notin g that his conduct had left

Ms. Jackson Ðin tears.Ñ The email went on to state that when

Ms. Gunn attempted to counsel Petitioner in the wake of the

second incident, Petitioner continually interrupted her and

refused to allow her to proceed w ith the counseling.

19 . On the morning of July 12, 2013, in addition to

reviewing Ms. GunnÓs email, Ms. Chapman received a telephone call

from TraneÓs Operations Leader, Mr. Arnold, who advised her of

TraneÓs decision to request the termination of Petiti onerÓs

assignment.

20 . Prior to the start of PetitionerÓs shift on July 12,

2013, Ms. Chapman called him and notified him of TraneÓs decision

to end his assignment. The evidence was clear that Remedy did

not participate in and was not responsible for Tr aneÓs decision

to terminate PetitionerÓs assignment with it. Moreover, the

evidence was clear that Remedy did not make any adverse decision

regarding PetitionerÓs employment with Trane. 1/ Remedy simply

advised Petitioner of TraneÓs termination. In fact, in light of

PetitionerÓs continuing status as a Remedy a s sociate, Ms. Chapman

advised Petitioner that he should continue to update Remedy

regarding his interest and availability for future assignments,

and likewise, Remedy would continue to consider him f or future

assignments with Remedy clients. In essence, PetitionerÓs status

with Remedy did not change. Based on these facts, Petitioner

failed to establish that Remedy discriminated against him when it

informed him of TraneÓs decision to terminate his as signment and

the allegations in regards thereto should be dismissed.

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 & 120.57(1), Fla. Stat. (2014).

22 . The Florida Civil Rights Act (FCRA) in Section 760.10,

Florida Statutes, states in pertinent part as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire an individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

23 . The Florida Civil Rights Act was patterned after Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. As

such, FCHR and Florida courts have determined federal case law

interpreting Title VII is applicable to cases arising under FCRA.

See Valenzuela v. GlobeGround N . Am . , LLC , 18 So. 3d 17 (Fla. 3d

DCA 2009); Green v. Burger King Corp. , 728 So. 2d 369, 370 - 371

(Fla. 3d DCA 1999); Fla. State Univ. v. Sondel , 685 So. 2d 923

(Fla. 1st DCA 1996); Brand v. Fla. Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994). Fla. Dep t. of Cmty. Affairs v. Bryant ,

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

24 . Under FC RA, Petitioner has the burden to establish by a

preponderance of the evidence that he was the subject of

discrimination by Respondent. In order to carry his burden of

proof , Petitioner can establish a case of discrimination through

direct or circumstantial evidence. See Holifield v. Reno , 115

F.3d 1555, 1561 - 1562 (11th Cir. 1997) ; Schoenfeld v. Babbitt , 168

F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of

discriminatio n is evidence that, if believed, establishes the

existence of discriminatory intent behind an employment decision

without inference or presumption. Maynard v. Bd . of Regents , 342

F.3d 1281, 1289 (11th Cir. 2003). Direct evidence is composed of

Ðonly the most blatant remarks, whose intent could be nothing

other than to discriminateÑ on the basis of some impermissible

factor. Evidence that only suggests discrimination, or that is

subject to more than one interpretation, is not direct evidence.

See Schoenf ield , supra and Carter v. Three Springs Residential

Treatment , 132 F.3d 635, 462 (11th Cir. 1998). Direct evidence

is evidence that, if believed, would prove the existence of

discriminatory intent without resort to inference or presumption

and must in som e way relate to the adverse actions of the

employer. Denney v. City of Albany , 247 F.3d 1172, 1182 (11th

Cir. 2001); see Jones v. BE&K EngÓg, Inc. , 146 Fed. Appx. 356,

358 - 359 (11th Cir. 2005) (ÐIn order to constitute direct

evidence, the evidence must di rectly relate in time and subject

to the adverse employment action at issue.Ñ); see also Standard

v. A.B.E.L. Servs., Inc. , 161 F.3d 1318 (11th Cir. 2002)

(concluding that the statement ÐweÓll burn his black a**Ñ was not

direct evidence where it was made t wo - and - a - half years prior to

the employeeÓs termination).

25 . Herein , Petitioner presented no direct evidence of

discriminatory intent on the part of the Respondent . Therefore,

Petitioner must establish his case through inferential and

circumstantial pro of. Shealy v. City of Albany, Ga. , 89 F.3d

804, 806 (11th Cir. 1996); Kline v. Tenn. Valley Auth. , 128 F.3d

337, 348 (6th Cir. 1997) ; Walker v. Prudential Prop. & Cas. Ins.

Co. , 286 F.3d 1270, 1274 (11th Cir. 2002).

26 . Where a complainant attempts to pr ove intentional

discrimination using circumstantial evidence, the shifting burden

analysis established by the United States Supreme Court in

McDonnell Douglas v. Green , 411 U.S. 792 (1973), and Texas

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

is applied. Under this well - established model of proof, the

complainant bears the initial burden of establishing a prima

facie case of discrimination. When the charging party, i.e.,

Petitioner, is able to make out a prima facie case, the burden to

go forward with the evidence shifts to the employer to articulate

a legitimate, non - discriminatory explanation for the employment

action. See Dep Ó t of Corr. v. Chandler , 582 So. 2d 1183 (Fla.

1st DCA 1991) . Importantly, t he employer has the burden of

production, not persuasion, and need only present the finder of

fact with evidence that the decision was non - discriminatory. Id.

See also Alexander v. Fulton Cnty . , G a. , 207 F.3d 1303 (11th Cir.

2000). The employee must then come forward with specific

e vidence demonstrating that the reasons given by the employer are

pretexts for discrimination. Schoenfeld v. Babbitt , supra at

1267. The employee must satisfy this burden by showing that a

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief. Dep Ó t of Corr.

v. Chandler , supra at 1186; Alexander v. Fulton Cnty . , Ga. ,

supra .

2 7 . Notably, "although the intermediate burdens of

production shift back and forth, the ultimate burden of

persuading the trier of fact that the employer intentionally

discriminated against the [Petitioner] remains at all times with

the [Petitioner]." EEOC v. Joe's Stone Crabs, Inc. , 296 F.3d

1265, 1273 (11th Cir. 2002); see also Byrd v. RT Foods, Inc. ,

948 So. 2d 921, 927 (Fla. 4th DCA 2007) ("The ultimate burden of

proving intentional discrimination against the plaintiff remains

with the plaintiff at all times."). Reeves v. Sanderson Plumbing

Products, Inc. , 530 U.S. 1 33, 148 (2000).

28. On the other hand , this proceeding was not halted based

on a summary judgment, but was fully tried before the Division of

Administrative Hearings. Where the administrative law judge does

not halt the proceedings for "lack of a prima f acie case and the

action has been fully tried, it is no longer relevant whether the

[Petitioner] actually established a prima facie case. At that

point, the only relevant inquiry is the ultimate, factual issue

of intentional discrimination . . . . [W]het her or not [the

Petitioner] actually established a prima facie case is relevant

only in the sense that a prima facie case constitutes some

circumstantial evidence of intentional discrimination." Green v.

Sch. Bd. of Hillsborough Cnty. , 25 F.3d 974, 978 (1 1th Cir.

1994); Beaver v. Rayonier, Inc. , 200 F. 3d 723, 727 (11th Cir.

1999). See also U. S. Postal Serv. Bd. of Governors v. Aikens ,

460 U.S. 711, 713 - 715 ("Because this case was fully tried on the

merits, it is surprising to find the parties and the Cour t of

Appeals still addressing the question of whether Aikens made out

a prima facie case. We think that by framing the issue in these

terms, they have unnecessarily evaded the ultimate question of

discrimination vel non . . . . [W]hen the defendant fails to

persuade the district court to dismiss the action for lack of a

prima facie case, and responds to the plaintiff's proof by

offering evidence of the reason for the plaintiff's rejection,

the fact - finder must then decide whether the rejection was

discrim inatory within the meaning of Title VII. At this stage,

the McDonnell - Burdine presumption 'drops from the case,' and 'the

factual inquiry proceeds to a new level of specificity.'").

2 9 . In this case, Petitioner alleged that Respondent

discriminated again st him on the basis of his disability and race

in violation of the Florida Civil Rights Act .

3 0 . In order to establish a prima facie case of dis ability

discrimination under FCRA, Petitioner must show: 1) that he was

subject to an adverse employment act ion; 2) that he was qualified

for the job at the time; 3) that his employer knew at the time of

the action that he had a disability; and 4) that the adverse

action took place in circumstances raising a reasonable inference

that the disability was a determi ning factor in the decision.

Luna v. Walgreen Co. , 347 Fed. Appx. 469, 471 (11th Cir. 2009);

Nadler v. Harvey , No. 06 - 12692, 2007 U.S. App. LEXIS 20272 , at

*14 (11th Cir. 2007) .

31. As a first step in any discrimination claim based on

disability, Petit ioner must establish that he has a disability or

that the employer regards him as having a disability. In this

case, Petitioner failed to establish that the medical issue

related to his finger or the treatment related thereto

significantly impaired a majo r life activity or that his employer

regarded his medical condition as a disability. Minor,

transitory impairments are not disabilities since they do not

significantly impair a personÓs life activities. See 29 C.F.R.

1630.15(f). In fact, Petitioner reco vered from his medical

issue, was cleared to return to work without restriction and did

so return. Further, there was no evidence that TraneÓs

termination of PetitionerÓs assignment had any connection to his

medical condition, or that the reason given for such termination

was a pretext for discrimination.

3 2 . Additionally, even assuming Petitioner established he

had a disability, Petitioner must demonstrate that he w as

Ðotherwise qualifiedÑ for his job in that he could perform the

essential functions of t hat job with or without reasonable

accommodation. Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249,

1255 - 56 (11th Cir. 2001) ; see also Wood v. Green , 323 F.3d 1309,

1312 (11th Cir. 2003) (a disabled individual is ÐqualifiedÑ under

the ADA if he can perform the Ðessential functionsÑ of his job

Ðwith or without a reasonable accommodationÑ). Furthermore, an

accommodation can qualify as " reasonable, " and thus be required

by the ADA, only if it enables the employee to perform the

essential functions of his existing job position . Lucas , 257

F.3d at 1255 - 56.

3 3 . As such, an employer is not required to accommodate an

employee in any manner in which that employee desires and is not

required to grant employees preferential treatment. Terrell v.

USAir , 132 F.3d 621, 626 (11th Cir. 1998). Thus, the duty to

provide a reasonable accommodation Ðdoes not require that an

employer create a light - duty position or a new permanent

position Ñ for an employee . Van v. Miami - Dade C nty . , 509 F. Supp.

2d 1295, 1302 (S.D. Fla. 2007).

3 4 . In this case, Remedy was not required to provide

Petitioner a light duty position and did not discriminate against

Petitioner based on his disability when he was not provided such

a position. Further, Remedy did not regard Petitione r as

disabled.

35 . Likewise, there was no evidence that demonstrated a

connection between PetitionerÓs medical condition and the

termination of his assignment with Trane. PetitionerÓs

assignment with Trane was terminated only after Trane reinstated

him pursuant to the belief that his medical condition had been

resolved. Given these facts and the lack of any disability or

perceived disability , PetitionerÓs disability - based claim o f

discrimination should be dismissed .

36 . Similarly, Petitioner failed to establish his claim of

disc rimination based on his race, Caucasian. The only basis for

PetitionerÓs suggestion of race discrimination is the fact that

he is Caucasian , while Ms. Jackson is African - American. There

was nothing in either of the verbal incidents that indi cate race

was a factor . Moreover, both employees were treated the same,

i.e. , counselled, by Remedy.

37 . Finally, Petitio ner must establish that Remedy wa s the

employer responsible for the al leged adverse employment actions .

38. In Watson v. Adecco Em ployment Services, I n c. , 252

F. Supp. 2d 1347 (M.D. Fla. 2003), former temporary employees

sued the employment agency that had contracted with a School

Board to provide temporary employees upon request. Id. at 1349.

The plaintiffs alleged that they were discriminatorily discharged

from the school to which they were assigned, in retaliation for

their refusal to wear Santa hats during the Christmas holidays.

Id. at 1349 - 51. However, the court concluded that even under a

broad definition of Ðemployer,Ñ the employment agency could not

be held liable for the school boardÓs decision to request

termination of the plaintiffsÓ temporary assignments. Id. at

1355.

3 9 . In support of its decision, the court stated that Ða

temporary employment agency exercising no c ontrol over

PlaintiffÓs responsibilities or duties once on assignment cannot

be considered the Title VII employer of the temporary employees.Ñ

Id. at 1356. Nothing in the Adecco record reflected that the

school and the employment agency co - determined the essential

terms and conditions of plaintiffsÓ employment at the school.

The court held that the mere fact that the agency issued the

plaintiffs their paychecks was not sufficient, alone, to confer

Title VII employer status for the actions of another agenc y that

the employment agency did not control . Id .

40 . In addition to the above, the court in Adecco denied

liability on the basis that the plaintiffs could not show that

the employment agency took any adverse employment action against

them, or that it im properly failed to take corrective measures,

that were within its control, in order to stop the alleged

discrimination. Id. at 1357. T he mere conveyance of a clientÓs

wish to remove an employee did not constitute an adverse action

by the employment agenc y. Id. Further , although Adecco was

apparently aware that the plaintiffs objected to wearing Santa

hats, there was no corrective action that it could have taken in

response to the alleged discrimination, other than to remove them

from their assignments s ince the employment agency had no legal

authority to force another private company not to discriminate or

run its business in a certain manner. Id. at 1358.

4 1 . Similarly , in Neal v. Manpower International, Inc. ,

2001 U.S. Dist. LEXIS 25805, at *24 (N.D . Fla. 2001) , the court

addressed whether a temporary staffing agency could be liable for

sexual harassment under FCRA . Manpower, a staffing agency,

provided temporary employees to Wayne - Dalton, Corp. Id. at *3.

Manpower recruited and interviewed applic ants for positions in

the Wayne - Dalton plant; maintained an office at the plant; and

had on - site supervisors who interacted with Wayne - Dalton

supervisors to identify open positions, and carried out

counseling and termination meetings. Id. at *3 - 4. In add ition,

Manpower was responsible for paying the temporary employees;

provided rules, such as an anti - sexual harassment policy, to

temporary employees; investigated personnel complaints made by

the temporary employees whom it assigned to Wayne - Dalton; and

re ported its investigative findings to Wayne - Dalton. Id. at *5.

On the other hand, Manpower did not have decision - making

authority over Wayne - Dalton personnel decisions, including those

involving temporary employees; and did not exercise any control

over W ayne - Dalton employees. Id. at *4.

4 2 . As in Adecco , the court in Neil examined the claims of

discrimination against the staffing company according to a two -

part inquiry: (1) whether the temporary staffing company was an

ÐemployerÑ; and (2) whether ther e was a basis for holding it

liable as an employer. Id. at *24. The court found that, given

Manpower was not involved in Wayne - Dalton operations and had no

control over Wayne - Dalton employees, it could not be held

responsible for the decisions or conduct of Wayne - Dalton

employees. Id.

4 3 . As in the cases above , Remedy placed Petitioner at the

Trane worksite, counseled him regarding Trane policies that

impacted his temporary assignment, and complied with TraneÓs

decision to have him removed from his assi gnment. Remedy did not

create the policy denying light duty assignments to Remedy

Associates with non - work - related injuries, and did not make the

decision to terminate PetitionerÓs assignment. On the contrary,

it was Trane that made those decisions, and Remedy had no

authority to overrule or circumvent them. Therefore, there is no

basis for holding Remedy liable for TraneÓs policies and

decisions and the Petition f or Relief should be dismissed. See

also Llampallas v. Mini - Circuits Lab, Inc. , 163 F.3d 12 36, (11 th

Cir. 1998).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

R elations enter an Order dismissing the Petition f or Relief .

DONE AND ENTERED this 31st day of Decem ber , 2014 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December , 2014 .

ENDNOTE

1/ Petitioner , at the Final Hearing and in his responses to

FCHRÓs investigative questionnaire , refe rred to Ms. Jackson as a

Ðbuttkisser Ñ and that he was terminated because he was not

inclined to seek favor from his supervisors.

COPIES FURNISHED:

Jamey M. Favillo

ansmitter Road , Lot 35

Panama City, Florida 32401

(eServed)

Heather A. Peter son, Esquire

Remedy Intelligence Staffing

3820 State Street

Santa Barbara, California 93105

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

(eServed)

Collin A. Thakkar , Esquire

Jackson Lewis, Attorneys at Law

501 Riverside Avenue , Suite 902

Jacksonville, Florida 32202

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.