17-003818 Rusty Santangelo vs. Owens Facility Services Status: Closed Recommended Order on Wednesday, November 8, 2017.

Summary: Peitioner was not an employee of Respondent. Respondent had no authority to discharge Petitioner. Florida Commission on Human Relations should dismiss the Petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSTY SANTANGELO,

Petitioner,

vs. Case No. 17 - 3818

OWENS FACILITY SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 25, 2017, p ursuant to sec tions 120.569

and 120.57(1), Florida Statutes (2017), 1 / this case was heard by

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (Division) in Orlando, Florida .

APPEARANCES

For Petitioner: Rusty Santangelo , pro se

Post Office Box 536423

Orlando, Florida 32853

For Respondent: Arianne B. Suarez, Esquire

McGinness & Cicero

Suite 590

1000 Sawgrass Corporate Parkway

Sunrise, Florida 33323

STATEMENT OF THE ISSUE S

Whether Petitioner, Rusty Santangelo, was subject to an

unlawful employment practice by Respondent, Owens Facility

Services (Owens), based on his disability , in violation of the

Florida Civil Rights Act; and , if so, what remedy is appropriate.

PRELIMINARY STATEMENT

On May 25, 2016, Mr. Santangelo filed an employment charge

of discrimination with the Florida Commission on Human Relations

(FCHR), alleging that he has a disability , and that he began

working as a custodian for Owens on January 1, 2011 ; and that in

2013 Owens failed to report his work hours to Ace Staffing, and

he was Ðterminated on 10/2/2015, for no reason.Ñ

By letter dated June 30, 2017, FCHR notified Mr. Santangelo

that Owens was not Mr. S antangeloÓs employer, and no reasonable

cause existed to believe that an unlawful practice occurred.

On July 6, 2017, Mr. Santangelo filed his Petition for Relief

with FCHR, and FCHR referred the matter to the Division to

resolve the dispute.

At the hea ring, Mr. Santangelo testified on his own behalf

and presented the testimony of Gregory Lichtarski, the current

general manager of Owens. Mr. Santangelo offered Exhibits 1

through 31 into evidence, and all were admitted. 2/ To the limited

extent that any document is reasonably authentic and is relevant,

and the hearsay statements therein were corroborated by other

competent testimony, the document has been considered.

Respondent was granted wide latitude in cross - examin ing

Mr. Lichtarski as he was listed on it s witness list; however ,

Respondent did not present any other witnesses. Respondent

offered Exhibits 1 through 12 into evidence, and all were

admitted.

Both parties timely filed proposed r ecommended o rders (PRO) .

To the extent that either PRO has information that was not

subjected to cross - examination during the hearing, that

information has not been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. Owens provides maintenance and custodial services to

multiple public fa cilities in Orange County, Florida. Owens does

not own any of the facilities, but oversees the conversions of

the facilities from one event to the next. Owens secures

services from various staffing companies to fulfill its

obligations.

2. In order to accommodate its staffing requirements, Owens

will contact a subcontractor, discuss the event specifics,

determine how many laborers are necessary, and how many laborers

the subcontractor can provide. Once a verbal agreement is

reached, Owens issues an ini tial purchase order to the

subcontractor requesting the necessary staff for an event.

Thereafter , the subcontractor notifies Owens of the specific

laborers, their shift schedules and where those laborers will

report. Once the event is completed, the labo rers complete a

timekeeping report, and the hours are reviewed. The

subcontractor generates an invoice and Owens then pays the

subcontractor. The subcontractor then pays the laborers. The

entire process may take 90 days for payment to be issued to the

l aborers.

3. Ace Staffing (Ace) was one of the subcontracting

companies that provided day laborers to Owens. Mr. Santangelo

was an employee of Ace. Ace could send Mr. Santangelo to various

locations to work. Mr. Santangelo preferred to work for Owens,

a nd specifically wanted to work during the basketball season at

the Amway Center. It is undisputed that Ace set the pay scale

for Mr. Santangelo, and that Mr. Santangelo received his

paychecks from Ace.

4. Owens does not have any ownership interest in Ace .

Owens is not responsible for any hiring decisions by Ace. Owens

has the ability to review the background checks performed on Ace

employees who are sent to work for Owens, but Owens does not hire

or evaluate those workers. Owens has the ability to ask that

certain Ace employees not return to work for Owens, but does not

have the ability to fire or terminate an Ace employee .

5. Mr. Santangelo attempted to resolve a perceived

discrepancy in his pay. Mr. Santangelo brought the pay issue to

the attention of Mr. Lichtarski, who in turn brought the pay

issue to an Ace employee. Communication between Owens, Ace and

Mr. Santangelo deteriorated . Mr. Santangelo was paid, but his

employment by Ace ended .

6. Mr. Santangelo was not employed by Owens. He was, at

all times, employed by Ace. Mr. Santangelo failed to present any

credible evidence that Respondent discriminated against him.

CONCLUSIONS OF LAW

7. The Division has jurisdiction over the parties to and

the subject matter of this proceeding pursuant to sections

120.569, 120.57(1), and 760.11(7) , Florida Statutes.

8. This case involves an alleged violation of the Florida

Civil Rights Act of 1992 (the "Act") , s ections 760.01 through 10 .

9. Section 760.02(7) provides the following definition:

ÐEmployer Ñ 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.

10. Section 760.10(1)(a) provides that it is an unlawful

employment pra ctice for an employer:

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

individualÓs race, color, rel igion, sex,

pregnancy, national origin, age, handicap, or

marital status.

11. Mr. Santangelo has the burden of proving by a

preponderance of the evidence that Owens committed an unlawful

employment practice. See § 120.57(1)(j), Fla . Stat.

12. The pre ponderance of evidence standard requires proof

by "the greater weight of the evidence," Black's Law Dictionary ,

1201 (7th ed. 1999), or evidence that "more likely than not"

tends to prove a certain proposition. See Gross v. Lyons , 763 So.

2d 276, 28 0 n.1 ( Fla. 2000).

13. The facts presented establish that Mr. Santangelo was

not employed by Owens, and therefore, within the meaning of the

Florida Civil Rights Act of 1992, could not have been

discriminated against by Owens.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law , it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition for Relief

filed by Mr. Santangelo in its entirety.

DONE AND ENTERED this 8th day of November , 2017 , i n

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 Fi ling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of November , 2017 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2017),

unless otherwise noted.

2/ Petitioner also req uested that Exhibits 1 through 10, which

were pre - filed on September 6, 2017, with the Division be

admitted to the record. The undersigned admitted these exhibits

to the record. However, Petitioner did not provide any hard

copies of these exhibits at hea ring. The parties have these

ex hibits through the DivisionÓs eALJ portal .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Rusty Santangelo

Post Of fice Box 536423

Orlando, Florida 32853

(eServed)

Arianne B. Suarez, Esquire

McGinness & Cicero

1000 Sawgrass Corporate Parkway , Suite 590

Sunrise, Florida 33323

(eServed)

Cheyanne Costilla, General Counsel

F lorida C ommissions on H uman R elations

4075 E splandade Way, Room 110

Tallahassee, Florida 32399

( eServed )

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.