14-006142 Michelle M. Benton vs. Cauffield And Associates Status: Closed Recommended Order on Wednesday, April 15, 2015.

Summary: Petitioner did not establish that Respondent met the definition of "employer" in section 760.02(7), Fla. Stat.; Recommend dismissal for lack of jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE M. BENTON,

Petitioner,

vs. Case No. 14 - 6142

CAUFFIELD AND ASSOCIATES,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

February 24 , 2015, via video - teleconference between Fort Myers

and Tallahassee , Florida, before Administrative Law Judge

Lynne A. Quimby - Pennock of the Division of Administrative

Hearings (Division).

APPEARANCES

For Petitioner: Michelle Marie Benton, pro se

Apartment L - 169

4654 DeLeon Street

Fort Myers, Florida 33907

For Respondent: Christine R. Sensenig, Esquire

Sensenig Law Firm, P.A.

Suite 103

2055 Wood Street

Sarasota, Florida 34237

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent engaged in an

unlawful employment practice by discriminating against Pe titioner

on the basis of a handicap in violation of section 760.10,

Florida Statutes.

PRELIMINARY STATEMENT

On September 17, 2014, Petitioner filed a Complaint of

Discrimination (Complaint) with the Florida Commission on Human

Relations (Commission), alleg ing unlawful employment

discrimination by Respondent on the basis of her disability and

in retaliation. The Commission investigated the Complaint. On

December 4, 2014, the Commission issued its ÐNotice of

Determination: No CauseÑ and ÐDetermination: No CauseÑ

regarding the alleged discriminatory practices.

On December 14, 2014, Petitioner timely filed a Request for

Administrative Hearing which was forwarded to the Division for

assignment of an a dministrative l aw j udge. O n February 18,

Respondent filed a Motion in Limine and Request for Expedited

Pre - Hearing Conference and Resolution ( M otion). On February 19,

Petitioner filed a response to the M otion. On February 20,

Respondent filed a notice of s crivenerÓs error on the M otion, and

on February 23, Peti tioner filed a response to the scrivenerÓs

error. The M otion was addressed at the beginning of the hearing,

and for the reasons stated herein , the Motion is denied as moot.

The final hearing was scheduled for February 24, and was

completed on that day.

P etitioner testified on her own behalf and presented the

testimony of Robert Tonetti, Debbie Tonetti, and Valerie Brown.

Respondent presented the testimony of Scott Eller, Christine

Cauffield, and Maureen Terwilliger. Petitioner did not offer any

exhibits . 1/ RespondentÓs Exhibits A through G were admitted into

evidence. 2/

At the conclusion of the hearing , RespondentÓs counsel

requested that the post - hearing submissions be filed within 20

days of the filing of the hearing transcript. Petitioner did not

op pose the request, and it was granted.

The T ranscript of the hearing was filed on March 18, 2015 .

On March 18, 2015 , a Notice of Filing Transcript was issued

wherein the parties were informed that the Transcript had been

filed and their proposed recommende d orders (PROs) were to be

filed before 5:00 p.m. on April 7 . Both parties timely filed a

PRO, and each has been considered in the preparation of this

Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2014 codif ication.

FINDING S OF FACT

1. Petitioner is a female . She was employed by Respondent

beginning in mid - August 2013. Her employment with Respondent

ended in the first quarter of 2014.

2. Respondent is an active limited liability company

established and d oing business pursuant to Florida l aw.

Respondent provides case management services to Medicare and

Medicaid recipients.

3. Christine Cauffield, appearing on behalf of Respondent,

is RespondentÓs founder and CEO. Cauffield testified that

Respondent neve r had more than 14 employees. The undersigned

finds CauffieldÓs testimony credible .

4. Scott Eller is the founder and CEO of Community Assisted

and Supported Living, Inc., a/k/a Renaissance Manor (CASL). CASL

never employed Petitioner, and CASL did not share employees with

Respondent. The two entities had a business agreement, but the

companies are separate and independent of each other.

5. At the final hearing, Respondent presented a Florida

Department of Revenue EmployerÓs Quarterly Report covering each

quarterly reporting period commencing o n March 31, 2012 , and

ending September 30, 2014. Each report shows that Respondent

employed fewer than 15 employees for each quarter covered by the

report. These reports, supported by CauffieldÓs testimony,

con stitute competent substantial evidence that Respondent

employed fewer than 15 employees for each working day in each of

the 52 calendar weeks in 2012, the year preceding the alleged

discrimination; that Respondent employed fewer than 15 employees

for each working day in each of the 52 calendar weeks in 2013;

and that Respondent employed fewer than 15 employees for each

working day in each of the first 40 calendar weeks in 2014. 3/

Petitioner did not present any competent substantial evidence to

counter or re but this evidence.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this proceeding.

§§ 120.569 , 12 0.57(1), Fl a. Stat .

7. The Florida Civil Rights Act of 1992 (the Act) is

codified in sections 760.01 through 760.11, Fl orida Stat utes , and

prohibits discrimination in the workplace. When Ða Florida

statute [such as the A ct ] is modeled after a federal law on the

same subject, the Florida statute will take on the same

constructions as plac ed on its federal prototype.Ñ Brand v.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

Therefore, the A ct should be interpreted, where possible, to

conform to Title VII of the Civil Rights Act of 1964, which

contains the principal federal a nti - discrimination laws.

Lack of Jurisdiction under Chapter 760, Florida Statutes

8. Based on the foregoing, it is concluded that Respondent

is not an Ð employer Ñ to which the A ct applies. Ð Employer , Ñ for

purposes of the A ctÓs jurisdiction, means Ð any pe rson 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 . Ñ § 760.02 (7), Fla. Stat.

9. Respondent presented unrefuted evidence establishing

that it employed fewer than 15 employees for each working day in

each of the first 40 calendar weeks in the current year in which

the discrim ination complaint was made (2014 ), and i n the year s

preceding the discrimination claim (201 2 - 2013 ) .

10. Under these ci rcumstances, it is concluded that the

C ommission lacks statutory jurisdiction under the Act to find any

employment discrimination on the part of Respondent or to provide

a remedy to Petitioner . 4/

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismiss ing PetitionerÓs Request for

Administrative Hearing .

DONE AND ENTERED this 15th day of April , 2015 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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

F iled with the Clerk of the

Division of Administrative Hearings

this 15th day of April , 2015 .

ENDNOTE S

1/ On February 17, Petitioner filed a pleading that indicated her

written evidence was being sent via certified mail to the

Division. The materials w ere delivered to the Division on

February 24 ; however , the undersigned did not receive them until

after the hearing was completed. A review of the materials shed

no light on the number of employees for Cauffield and Associates .

The material was hearsay r egarding the alleged discriminatory

conduct , and can not support a finding of fact .

2/ Exhibits B, C, and D were composite E xhibits and each section

was appropriately authenticated by the CEO of the respective

company. Exhibits B and E were admitted ove r objection.

3/ The Department of Revenue EmployerÓs Quarterly Report for the

quarter ending December 31, 2014 , was not provided.

4/ Petitioner did not provide any evidence of discrimination.

However, in light of the fact that Respondent did not emplo y more

than 15 people to invoke the CommissionÓs jurisdiction, such

evidence, if provided, would not have resulted in a

recommendation for Petitioner.

COPIES FURNISHED:

Michelle Marie Benton

Apartment L - 169

4654 DeLeon Street

Fort Myers, Florida 33907

(eServed)

Christine R. Sensenig, Esquire

Sensenig Law Firm, P.A.

Suite 103

2055 Wood Street

Sarasota, Florida 34237

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 111

Tallahassee, Florida 3239 9

Cheyanne Costillo, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the da te 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.