17-005779 Kim-Renee Roberts vs. The Keyes Company Status: Closed Recommended Order on Friday, April 6, 2018.

Summary: Petitioner failed to prove that she was subject to a hostile work environment or disparate treatment because of her gender. In addition, she was a real estate agent and independent contractor not covered by the Florida Civil Rights Act, section 760.10.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIM - RENEE ROBERTS,

Petitioner,

vs. Case No. 17 - 5779

THE KEYES COMPANY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was hel d in this matter

before Robert L. Kilbride, the assigned Administrative Law Judge

of the Division of Administrative Hearings, on February 8, 2018 ,

via video teleconference with sites in Tallahassee and West Palm

Beach , Florida.

APPEARANCES

For Petitioner: Jeremy E. Slusher, Esquire

Mahra C. Sarofsky, Esquire

Slusher & Rosenblum, P.A.

324 Datura Street, Suite 324

West Palm Beach, Florida 33401

For Respondent: Bruce D. Friedlander, Esquire

Friedlander & Kamelhair, PL

1520 Ea st Sunrise Boulevard

Fort Lauderdale, Florida 33304 - 2363

STATEMENT OF THE ISSUE

Whether Respondent , The Keyes Company, discriminated against

Petitioner, Kim - Renée Roberts ("Roberts") , during her employment

with Respondent , in violation of the Florida Civil Rights Act,

section 760.10 , Florida Statute s (2017 ) , based on her gender.

PRELIMINARY STATEMENT

On March 10, 2017, Roberts filed an Employment Complaint of

Discrimination ( " Complaint " ) with the Florida Commission on Human

Relations ( " FCHR " ), alleging that she had been discriminated

against based on her gender during her employment with

Respondent.

FCHR investigated the Complaint. On Aug ust 22, 2017,

Michelle Wilson, executive d irector of FCHR, signed a

Determination finding that no reasonable cause existed to believe

that an unlawful discriminatory employment practice had occurred.

Taking exception to that D etermination, Roberts filed a

Petition for Relief ( " Petition " ) on September 26, 2017, which was

forwarded to the Division of Adm inistrative Hearings for a formal

hearing. The case was assigned to the undersigned, Robert L.

Kilbride.

The undersigned conducted a final evidentiary hearing on

February 8, 2018 , in Tallahassee, Florida. All parties and

their counsel appeared by video t ele conference from West Palm

Beach, Florida.

Roberts' counsel invoked the rule of sequestration at the

outset of the final hearing. In response, Respondent objected to

Kevin Spina ("Spina") being sequestered. The undersigned

overruled the objection and o rdered that all witnesses be

sequestere d, other than Roberts and Barbara Kozlow ("Kozlow") ,

the Respondent ' s corporate representative.

At the hearing, Roberts ' counsel made an ore tenus motion in

limine to exclude Respondent from arguing that Roberts ' job

performance was subpar based on the deposition testimony of its

designated corporate representative, Kozlow. The undersigned

denied the motion.

Roberts testified and also called Alisa Farnsworth

( " Farnsworth " ), a former administrative assistant with

Respo ndent, and Lisa Ricci ("Ricci"), marketing d irector of

" Interiors by Steven G, " the design team for the VistaBlue

P roject. Petitioner ' s Exhibits 1 through 29 were entered into

evidence by stipulation of the parties. Respondent objected to

Petitioner's Ex hibit 30, Farnsworth ' s Affidavit. Petitioner

Exhibit 30 was not admitted into evidence.

The deposition transcripts of Kozlow, Spina, and Roberts

( Petitioner's Exhibits 31 through 33, respectively) were admitted

into evidence.

Respondent pr esented the te stimony of Kozlow, Spina, Kay

Grunow ("Grunow") , a current administr ative assistant with

Respondent; Timothy Harris "(Harris") , former real e state sales

associate with Respondent ; and Randall Tuller ("Tuller") , an

executive who works for the project develo per, Third Palm

Capital.

Respondent ' s Exhibits 1 through 12 and 14 through 20 were

entered into evidence by stipulation of the parties. Roberts

objected to Respondent ' s Exhibits 13, 21 , and 22. Those exhibits

were not admitted into evidence.

The undersi gned directed the parties to submit proposed

re commended orders within ten days of receipt of the transcript

of the final hearing. The deadline was extended by the

undersigned based on an unopposed motion filed by Roberts. The

one - volume T ranscript of th e final hearing was filed on

February 28, 2018.

Proposed recommended orders were timely filed by the

parties, reviewed , and given due consideration by the undersigned

in the preparation of this Recommended Order.

References to the Florida Statutes are to the 2016 version,

unless otherwise indicated.

FINDINGS OF FACT

The undersigned makes the following findings of facts based

on the testimony presented at the hearing, the exhibits , and the

record:

1. Roberts is a female and has been a Florida - licensed re al

estate agent since 1988.

2. Respondent is a real estate brokerage company. Mike

Pappas ( " Pappas " ) is Respondent ' s President and CEO.

3. Kozlow has worked for Respondent for over 28 yea rs and

currently serves as its regional sales and branch m anage r at the

branch located in Palm Beach Gardens, Florida.

4. Third Palm Capital is the developer of a real estate

project called the VistaBlue Project , a condominium located on

the Atlantic Ocean on Singer Island in Palm Beach County,

Florida.

5. Keith S pina was the architect for the VistaBlue Project.

6. Spina, Keith ' s brother, who is a Florida - licensed real

estate agent, was contacted to gauge his interest in securing the

listing for the VistaBlue P roject on behalf of Respondent .

7. After Respondent ' s representatives and Spina

participated in meetings with Third Palm Capital, an exclusive

listing agreement was reached on September 25, 2015, under which

Respondent, through the management of Spina, would serve as the

listing agent for the VistaBlue Pro ject.

8. Spina hired Roberts and Harris, another Florida - licensed

real estate agent, to work as on - site sales people for the

VistaBlue Project. As on - site sales people, it was their primary

job to sell condominium units and interact with potential clien ts

who visited VistaBlue ' s sales gallery.

9. During the relevant time period, Harris was the only

male working under Spina with respect to the VistaBlue Project.

10. Spina also hired Farnsworth and Grunow as his

administrative assistants for the Project . Despite her title,

Farnsworth was also a Florida - licensed real estate agent.

11 . Ultimately, Spina ' s sales team was comprised of

Roberts, Harris, Farnsworth, and Grunow. Spina later repl aced

Harris with Debbie Walker ( " Walker " ) after Harris vo luntaril y

left in February 2016 .

12. This sales team operated under Spina ' s supervision and

he was their boss for all intents and purposes.

13. Spina considered himself the " chief " of the sales team

he assembled, with the understanding that Kozlow and Pappas w ere

the two higher executives in the chain of command at Respondent .

14. Since Spina was considered the sales team leader,

Kozlow deferred to Spina to make daily decisions regarding his

team. She generally did not involve herself in his decisions.

15. As the team ' s boss, Spina had the discretion to hire

and fire people on his team. 1/

16. Spina developed the team ' s work schedule and work

expectations. There was, however, frequent input from the other

team members before he created the work schedule.

17. Most of Spina ' s sales team began working on the

VistaBlue P roject in October 2015. Roberts, who was hired as an

independent contractor on October 1, 2015, started work on the

sales team in November 2015.

1 8. Roberts was employed by Respondent as a real estate

sales associate pursuant to an Independent Contractor Agreement

( " Agreement " ) that contained details of her employment

arrangement and responsibilities . Pet. Ex. 3. The Agreement was

signed by her and dated October 1, 2015. 2/

19. The Agr eement and the meaning of its terms are not in

dispute. The document speaks for itself. However, it contained

several pertinent provisions paraphrased below:

a. Roberts was not subject to the control of Respondent in

the conduct of her business as a r eal estate sales associate .

Pet. Ex. 3, ¶ 2 . 3/

b. As an independent contractor, she would not be treated

as an " employee " with respect to her services for federal taxes

or for any other purposes . Pet. Ex. 3, ¶ 1.

c. She was solely responsible for al l expenses associated

with the conduct of her business . Pet. Ex. 3, ¶ 6d.

d. She had no authority to bind Respondent to any promise

or representation, unless expressly authorized to do so by

Respondent in writing. Pet. Ex. 3, ¶ 8.

e. She agreed to sel l, lease, rent real estate listed with

Respondent , and solicit additional listings on behalf of

Respondent . Pet. Ex. 3, ¶ 6a.

f. The Agreement could be terminated by either party on one

day ' s notice . Pet. Ex. 3, ¶ 13 .

g. She agreed to pay any applicabl e membership or

participation fees imposed by the local Board of Realtors.

Pet. Ex. 3, ¶ 6c.

h. She agreed to maintain her own automobile liability

insurance at her cost. Pet. Ex. 3, ¶ 6g.

20. As far as on - site responsibilities were concerned , th e

Vis taBlue listing agent, Spina, was responsible for the real

estate services required for the successful operation of his

sales team and the promotion and sa le of the condominium units by

Respondent .

21. Regarding compensation, Spina agreed to share some of

his commission from the VistaBlue listing with Respondent sales

associates, Roberts and Harris. The developer agreed to advance

a monthly draw against the commission for the sales associates

that worked at the VistaBlue Sales G allery.

22. On October 1, 2015, prior to the opening of the " on -

site " VistaBlue Sales Gallery, Spina ' s sales team worked full

time, five days a week, at Respondent's Legacy Place branch

office preparing the ground work to launch the VistaBlue P roject.

23. Roberts started workin g on the VistaBlue team in the

beginning of November 2015 and, like t he others, first reported

to Respondent's Legacy Place branch office.

24. Spina expected all the team members, including Roberts,

to attend the Legacy Place branch office from 9:00 a.m. to

5:00 p.m. , five days a week during the start - up period.

25. However, at the end of her first day at Respondent's

Legacy Place branch office, Roberts informed Spina that she would

not be coming back to R espondent's Legacy Place branch office

because it was not what she was paid to do. Consequently, for

some period, Roberts worked from home and received emails there. 4/

26. Roberts's refusal to work at Respondent's Legacy Place

branch office during the start - up period did not provide Spina

the cohesiv e " team support " he nee ded during the early stages of

the VistaBlue P roject.

27. The fact that Roberts did not work at Respondent's

Legacy Place branch office on any consistent basis during the

start - up period caused hard feelings, dissension , and frustr ation

with Spina and the others who were working at the office.

28. Eventually, in January 2016, the VistaBlue Sales

Gallery officially opened on the condominium/project site. 5/

29. Under the listing agreement with the developer, there

were staffing re quirements for the VistaBlue Sales Gallery. The

listi ng agreement required Spina to e nsure that two associates

and one administrative assistant were on hand every day of the

week : 10:00 a.m. to 5:00 p.m., Monday through Saturday ; and

12:00 p.m. to 5:00 p .m. on Sunday.

30. Roberts ' late arrivals and sporadic attendance

continued at the new VistaBlue S ales G allery once it opened in

January 2016. During the course of her employment, Spina

discussed with Roberts the issues he had with her. Spina and

Rober ts disagreed, apparently, on many things , including,

operation , sales and marketing decisions , and strategies. 6/

31. Spina and Roberts disagreed, for instance, that she

should go out and do sales calls before the sales gallery was

open, they disagreed o n her calling other agents to seek leads

and market the property, they disagreed on when she should arrive

at the office each day, they disagreed about marketing materials

she did no t like , and they disagreed about the use of a scale

model kept at the site .

32. Harris, the other male sales asso ciate working at the

VistaBlue Sales G allery, testified that Roberts did not arrive at

work on time very often. 7/

33. According to Harris, Roberts would frequently arrive at

the VistaBlue S ales G allery an hour la te. This frustrated Spina

when he came to the sales gallery and she was not there.

34. Grunow, a female who also worked in the sales office,

testified that when Roberts was late, she heard Spina telling her

that he expected her to be there on time and h e expected her to

be working while they were in the sales gallery. However, she

never heard Spina yell at Roberts. Spina just talked loudly.

35. Roberts acknowledged that her late arrivals caused

dissatisfaction and frustration by other members of the s ales

team.

36. It was apparent to the undersigned that Roberts '

recurrent late arrivals at the VistaBlue S ales G allery caused

dissension and some frustration by other sales team members.

37. Roberts could not recall if there were any formal rules

that s he had to follow while working at the sales g allery.

According to Roberts, there were no practices or guidelines for

how work was done at the sales g allery.

38. Roberts ' gender discrimination claim against Respondent

is based upon the way Spina treated her, as opposed to other male

employees in the office.

39. In general , Roberts claimed that in meetings or in

front of other team members , Spina yelled at her, berated her ,

and belittled her under a variety of different scenarios and

circumstances. 8/

4 0. She claimed that Harris was able t o keep his draws, but

she was not ; that Harris could come and g o as he pleased , but she

could not ; that her job was threatened when she spoke up ; and if

she did not do what Spina told her, her job was in jeopardy. She

claims that when she brought up suggestions, she was belittle d

and berated and told she did no t know what she was talking

about. 9/

41. More specifically, Roberts claim of gender

discrimination revolved around several events over the ten months

she work ed on the VistaBlue listing, as outlined below.

a. She claims that when she brought up the subject of an

architectural model for the project at a meeting at the

Respondent's Legacy Place branch o ffice, Spina yelled at her and

said, "We're not going to do that." "We don't need to have

something like that in there." 10/

b. She claims that when she asked abo ut having bottled

water at the sales g allery with the logo on it, Spina said "we're

not going to have that, we're going to have this, this, and

this. "

c. She claimed that when Spina gave her marketing materials

to review, she marked up the materials with her comments. Spina

incorporated her ideas on a new sheet, and sent it off to the

developer, taking credit for the changes she proposed.

d. She cla imed that Harris, a male sales associate, was

able to keep his draws a fter he departed, but she was not .

e. Roberts testified about a meeting at the VistaBlue Sales

Gallery with Harris, Spina , and Farnsworth, where she claims that

Spina told her and Harris that they needed to make 2 , 000 phone

calls a week . W hen she questioned this, Spina yelled at her and

threatened her job.

42. When encouraged by he r attorney to provide any other

details or examples of Spina's belittling or discriminatory

be havior, she said she was " finished " and provided no more

examples.

43. On cross - examination, when Roberts was asked what Spina

said when he yelled at her at the VistaBlue Sales Gallery, the

only thing she could remember is that he wanted the sales

associ ates to make 2,000 phone calls; she did not recall any

other details.

44. On cross - examination, whe n asked about the meeting at

Respondent's Legacy Place branch office where the architectural

model was brought up, Roberts said that Harris, Grunow,

Farnsw orth , and Spina were present. When asked what Spina said

to her, Roberts said , "He did not know what that [the scale

model] was, what I was referring to, why we needed it, and said

we weren't going to have it." She could not recall anything else

Spina sa id to her other than, " it was not going to be done . "

45. Regarding hiring and firing for the VistaBlue Project ,

if Spina was unhappy with someone, Spina needed to speak to the

developer, discuss it with him , and ask him what h e could do or

not do to chan ge it.

46. When asked if he had the authority to get rid of people

if the y were doing something he did not want them to do, Spina

said, "If the developer allowed me to, yes."

47. Roberts' claim that Spina yelled at her and belittled

her on multiple occ a sions , however, was contradicted by Harris,

Grunow, Farnsworth, Ricci , and Spina himself.

48. Harris testified that when he attended sales meetings

with Roberts (the frequent situs of Spina ' s alleged yelling or

belittling behavior) , the meetings were ve ry open, conversations

flowed freely, ideas were shared , and everyone at the meetings

had the opportunity to express themselves. 11/

49. Significantly, when asked directly about whether Spina

yelled at Roberts during these meetings , Harris responded

emph atically that he had " absolutely " never heard Spina yelling

at Roberts, or anyone else , for any reason.

50. Grunow testified that although Roberts and Spina would

let each other know if either one was not happy with how things

were handled at the sales g a llery, she never heard Spina yell.

51. Farnsworth testified that she overheard several

disputes discussed between Spina and Roberts regarding the

operations of the sales gallery, the layout of the offices, the

project scale model, the project renderings, the sales brochures,

and the business cards. When these " differences of opinion , " as

she put it, were discussed, Spina would tell Roberts his decision

and what he expected her to do. 12/

52. It is also significant that when Farnsworth was pre ssed

for d etails during on - site questioning by the developer ' s agent,

Tuller, she was not able or willing to characterize Spina ' s

behavior towards Roberts as verbally " abusive . " Nor did she ever

suggest to Tuller that Roberts needed protection or suggest that

Tulle r should do something directly to intervene in the ongoing

dispute.

53. Spina testified that in his discussions with Roberts ,

she had the opportunity to express her opinion about the sales

gallery operations, but since he was the listing agent, the team

leader , and the one hired to run the sales gallery for the

developer, his decisions had to be honored and ultimately

followed. They discussed many things , and they disagreed on many

things , but he never yelled at her.

54. Ricci, the marketing/advertisin g director of Interiors

by Steven G, the interi or decorator for the VistaBlue P roject,

was called by Roberts . She testified about her attendance and

observations of the interactions between Spina and Roberts at

several design meetings related to the condo minium units. These

meetings were held at the VistaBlue Sales Gallery.

55. Ricci testified that at the meetings , Roberts was very

out - spoken about her style and design preferences. Based on

Roberts ' input and very active involvement at the meetings, Ri cci

mistakenly concluded that Roberts was the head of sales or the

sales director.

56. Although Spina did no t seem to be interested in what

she had to say and may have cut her off, Ricci testified that

Spina did not raise his voice at Roberts, and she di d not witness

any belittling behavior by Spina towards Roberts.

57. When questioned directly by the undersigned at the

hearing, Ricci testified that Roberts never mentioned to her that

Spina ' s conduct or words were in the nature of sexual harassment.

58 . Likewise, Ricci neve r noticed anything of a sexual

nature in any comments by Spina to Roberts. She never observed

Spina yelling at Roberts.

59. Tuller, the real estate developer ' s executive assigned

to the VistaBlue P roject, was responsible for all a spects of the

VistaBlue P roject. He testified that based upon his personal

observations of Spina's interacti ons with the salesforce at the

sales g allery, he found Spina to be very personable and

professional.

60. Tuller testified about a meeting with Rob erts at a

Marriott Hotel on August 4, 2016. During that meeting, Roberts

complained that there were harsh and dysfuncti onal working

conditions at the sales g allery. She complaine d that Spina was

loud, raised his voice , and wa s short with the staff. Tull er

responded to Roberts that , that was " news to him , " and contrary

to what he had personally observed.

61. When Tuller asked Roberts bluntly if Spina ' s conduct

included any sexual or other forms of harassment, Roberts quickly

remarked , " No, no, not that, not that. It ' s just hard to be

there. " 13/

62. On August 4, 2016, shortly after her hotel meeting with

Tuller, Roberts attempted to call Kozlow but was unable to reach

her . 14/

63. Roberts sent Kozlow a text message that same day and

wrote "I'm not s ure if I should be speaking with you or with Mike

. . . . There are some very serious issues at VistaBlue that I

need to discuss and get some direction . " They agreed to talk the

following day.

64. Later that same day, Kozlow sent an email back to

Rober ts, and copied Spina and Pappas, p resident of Respondent .

She told Roberts that she had the utmost confidence in Spina and

his management of VistaBlue and that she was sure that Spina

could resolve any issues.

65. On August 5, 2016, Roberts replied to K ozlow's email

and wrote, "The reason I reached out to you is that the issue is

with Kevin. I will make another attempt to resolve it with him.

However, if there is no resolution I will reach out to you again.

At a meeting I had with Kevin two weeks ago, he suggested that I

speak to Randal [Tuller] but I wanted to handle this internally

first."

66. On August 5, 2016, Kozlow was copied on Spina's email

to Roberts wherein he attempted to arrange a meeting with her

that day. Later Kozlow wrote to Roberts and commented "Hopefully

you and Kevin can resolve any issues. He is the lead and we will

not be making any changes that he doesn't agree with."

67. At the time of this text and email exchange between

Roberts and Kozlow, Spina had worked for Responde nt in Kozlow ' s

branch office for more than seven years.

68. Kozlow found Spina to be very friendly and respectful

of others. She had not received any other complaints about

Spina's conduct . 15/

69. Kozlow testified that while she was exchanging the tex t

messages with Roberts from Wisconsin, she did not know what the

issues were at VistaBlue and that Roberts never told her what the

nature of the issues were with Spina. Further, despite the

opportunity and exchange of communications, Roberts never told

h er that Spina was discriminating against her on the basis of her

gender or sex.

70. Kozlow also testified about Respondent's policy against

gender discrimination. She was aware of the policy when she

received Roberts August 4 and 5 , 2016 , text messages a nd emails.

71. The policy is published in Respondent's Policy Manual.

The policy was in effect when she first started working for

Respondent in 1990 . Pet. Ex. 8 . I f she became aware that any

associate or employee of Respondent was discriminating on th e

basis of gender or another protected class , she had a duty to

report it to Pappas, the president and owner of the company.

72. Once reported, there woul d be an investigation, and if

the allegations were found to be true , there would be corrective

actio n .

73. After the meeting between Tuller and Roberts at the

Marriott Hotel, Tuller called Spina and arranged a meeting with

him to discuss Roberts' complaints.

74. At the meeting, Tuller testified that Spina admitted he

was frustrated with Roberts beca use she wa s hard to work with,

she would not listen to him, she would not do wha t he asked her

to do, she did not show up on time, and she wa s not professional.

Tuller asked Spina to try to find a solution that would work for

everyone.

75. Spina testifi ed that , subsequently , he talked again

with Tuller and told Tuller that he needed to terminate Roberts

from the sales gallery.

76. When Tuller told Spina that there had been too many

changes with marketing and that the owner of the project would

not supp ort such a change, Spina informed Tuller the only other

option was for Spina to leave. Spina offered to pay for a

manager to take his place.

77. Tuller was amenable to this option , and subsequently ,

Spina and Tuller interviewed several managers to take his place.

However, in the end, Tuller did not agree on a replacement for

Spina.

78. When Tuller asked Spina to stay, Spina told Tuller that

he could not and that he was leaving the VistaBlue P roject.

79. Spina testified that the reason he consulted w ith

Tuller about Roberts was because he felt that he did n o t have the

authority to terminate somebody without consulting with the

developer.

80. As a result of Spina's de cision to withdraw from the

Vista Blue l isting, the listing was terminated, and the d raws

against commission that the developer paid were reconciled

against the commission that was due to Keyes on termination.

At the termination of the listing agreement, the draws that were

paid exceeded the commission that was due to Respondent by

$6,000 .

81. Roberts admits that as a result of the termination of

the VistaBlue listing , her position at the VistaBlue Sales

Gallery came to an end.

82. Spina did not tell her she was fired or terminated.

She simply was not able to continue her position bec ause of the

loss of the listing by Spina and Keyes. She interviewed with the

new broker for VistaBlue but was not hired.

83. Although Roberts complained that she did not receive

all of her draws, Roberts admitted that when she had previously

wanted to t ake a listing for a different condominium unit outside

of the VistaBlue P roject, she had agreed to forego her draw.

84. Spina further explained to her the reason she did not

receive the August 2016 draw was that the draws that she had

been paid exceeded the commission that was due to her upon the

termination of the listing agreement. Although she was not

happy, she agreed with that because that had been her agreement.

CONCLUSIONS OF LAW

85 . The Division of Administrative Hearings has

jurisdiction ove r the parties and subject matter of this

proceeding pursuant to sections 120.569, 120.57(1) , and

760.11(7) , Florida Statutes (2017) .

86 . Roberts is suing Respondent under the Florida Civil

Rights Act of 1992 ( " F C R A " ), section 760.01 through 760.11.

87 . The gravamen of Roberts' charge is gender

discrimination and the existence of a hostile work environment

caused by the conduct and statements of Spina. Her claim is

founded on section 760.10 (1)(a) , which provides:

(1) It is an unlawful employment practic e

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, r eligion, sex,

pregnancy, national origin, age, handicap, or

marital status.

88 . The FCR A is modeled after Title VII of the Federal

Civil Rights Act. When a Florida statute is adopted or modeled

after an act of Congress, the Florida Legislature adopts th e

construction placed on that statute by the federal courts, so

long as that construction is not inharmonious with the spirit and

policy of Florida ' s general legislation on the subject. Green v.

Burger King Corp. , 728 So. 2d 369, 370 - 71 (Fla. 3d DCA 1999) ; and

Russell v. KSL Hotel Corp. , 887 So. 2d 372 (Fla. 3d DCA 2004).

89. Further, Federal case law interpretations of Title VII

are applied to cases arising under FCRA. Fla. State Univ. v.

Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996) ("The Florida Civil

Ri ghts Act of 1992 . . . was patterned after Title VII of the

Civil Rights Acts of 1964 and . . . the Age Discrimination in

Employment Act. Federal case law interpreting Title VII and the

ADEA is applicable to cases arising under the Florida Act . "). 16/

See also Fla. Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205

(Fla . 1st DCA 1991) .

I. Employee vs. Independent Contractor - Applicable Law and

Conclusions

90. T he protections afforded by Title VII extend to the

traditional employment relationship, and not to independent

contractors. Smith - Johnson v. Thrivent Fin. f or Lutherans ,

2005 U.S . Dist. LEXIS 36715 (M.D . Fla. 2005) ; and Zink v.

Allstate Ins. Co. , 2003 U.S. Dist. LEXIS 27996 (S .D . Fla. 2003).

See , e . g . , Cobb v. Sun Papers, Inc. , 673 F.2d 337 (11 th Cir.

1982) .

91. Said differently, for a successful claim under

Title VII, a claimant must be an "employee" within the meaning

of the statute to be entitled to its protections. If a claimant

is working as an independent contractor, there is no viable claim

under Title VII. Murray v. Principal Fin. Grp. Inc. , 613 F.3d

943 (9th Cir. 2010).

92. In Murray , the Court noted that "We, along with

virtually every other circuit to consider similar issues, have

held that insurance agents are independent contr actors and not

employees for the purpose of various federal employment statutes,

including . . . Title VII." Id . at 944 - 45.

93. Under the line of cases mentioned above, it is

reasonable to conclude that independent contractors are not

covered under the protections or definitions outlined in FCRA.

94. Even more specific to this particular case is a line of

state and federal cases recognizing that real estate agents are

considered to be independent contractors in a variety of

statutory applications. E dwards v. Caulfield , 560 So. 2d 364

(Fla. 1st DCA 1990 ) . See also Fl a . Indus. Comm' n v. Schoenberg ,

117 So. 2d 538 (Fla. 3d DCA 1960) (Workers ' Compensation Law);

In re Moriarty , 27 B.R. 73 (M . D . Fl a . 1983) ; and In re Hanick ,

164 B.R. 165 (M.D. Fl a . 1994) (Bankruptcy exemptions) .

95. The degree of control over the worker is the principal

test used by most courts to assess whether the worker is an

independent contractor or employee. See , e. g. , Baya ' s Bar &

Grill v. Alcorn , 40 So. 2d 468 (Fla. 1949). Of course, the

terms of the A greement used by Roberts and Respondent carries

considerable weight as well.

96. Quoting here from Edwards , nothing in Roberts ' case

suggests that she was " subject to any more control than that

which exists in the typical real estate agent/broker

relationship, a relationship which is recognized by statutory and

case law as involving independent contractor status. " Edwards ,

560 So. 2d at 374 .

97. The expectation that a worker be present at a work

location during a particular time of the day does not, by itself,

transform an independent contractor into an employee. Edwards ,

560 So. 2d at 372 . 17/

98. On balance, the greater weight of the evidence in this

case reveals (1) that the identifying marks of an independent

contracto r were present and (2) an independent contractor

relationship was maintained between Roberts and Respondent .

99. Under the more compelling and persuasive facts, the

undersigned concludes that Roberts was an independent contractor

for Respondent and, as s uch, was not covered by the protections

afforded under the FCRA.

100. For this reason alone, Roberts ' claim is legally and

factually unavailing, and should be dismissed.

II. Hostile Workplace Environment Claim Î Applicable Law and

Conclusions

1 01 . I n order to establish that a hostile work environment

existed , violating section 760.10(1)(a), it was Roberts '

obligation to prove by a preponderance of the evidence that:

(1) She belongs to a protected group;

(2) She was subjected to unwelcome

har assment;

(3) The harassment was based on her gender;

(4) The harassment was severe enough to

affect a term, condition, or privilege of

employment and to create a discriminatorily

abusive working environment; and

(5) The employer knew or should have k nown

of the harassment and failed to intervene.

Russell , 887 So. 2d at 372, 377 Î 378 .

102 . In determining whether harassment is sufficiently

severe and pervasive, the courts consider both a subjective and

objective component. Maldonado v. Publix Supermar kets , 939 So.

2d 290, 294 (Fla. 4th DCA 2006). See also Miller v. Kenworth of

Dothan, Inc. , 277 F.3d 1269, 1276 (11th Cir. 2002). "[T]o be

actionable, this behavior must result in both an environment

'that a reasonable person would find hostile or abusiv e' and an

environment that the victim 'subjectively perceives . . . to be

abusive.'" Id . (quoting Harris v. Forklift Sys. Inc. , 510 U.S.

17, 21 - 22, 114 S. Ct. 367, 370 - 71 (1993)). See also Grogan v.

Heritage NH, LLC , 126 So. 3d 262 (Fla. 3d DCA 2010).

10 3 . In analyzing the objective prong of severity, courts

also study the following: (1) t he frequency of the conduct;

(2) t h e severity of the conduct; (3) w hether the conduct is

physically threatening or humiliating, or a mere offens ive

utterance; and (4) w hether the conduct unreasonably interferes

with the employee's job performance. Id. at 264.

104 . Behavior by a supervisor that causes " mere discomfort "

in the workplace , therefore, does not alter the conditions of

employment so as to create a hostile wo rk environment. McElroy

v. Am. Family Ins. , 630 Fed. Appx. 847 (10th Cir. 2015).

105 . Conversely, harassment need not be of a sexual nature

to constitute a hostile work environment. " Rather, any

harassment or disparate treatment of an employee that wou ld not

occur but for the gender of the employee may, if there is a

pattern or pervasiven ess in the conduct, constitute ' hostile work

environment ' at [sic] sexual harassment. " See Russell , 887 So.

2d at 372, 377 - 378 .

106 . In this case, while the undersign concl ude s that the

conduct/statements by Spina were more than isolated, they

were not severe, physically threatening or humiliating, nor

did they unreasonably interfere with Roberts ' job performance.

See Russell , 887 So. 2d at 372, 377 - 378 .

107 . The fr equency of Spina ' s conduct, as it were, is also

far outweighed by the absence of the other factors, resulting in

a firm conclusion by the undersigned that Spina ' s comments to

Roberts were neither severe and pervasive, nor harassing, as

those terms are defi ned.

108 . More succinctly put, it was clear to the members of

the sales team who testified, and the undersigned, that Spina and

Roberts had an ongoing personality conflict, and simply could not

agree on many aspects of the business. This, however, does not

constitute actionable discrimination due to her gender.

109 . Furthermore, Petitioner has failed to prove by the

preponderance of the evidence that Spina's behavior was

objectively harassing in nature.

110 . The conduct, statements , and actions of Sp ina were

frequently driven by disagreements between Spina and Roberts

regarding how the office should be run. Those disputes and

discussions, while heated or intense in some instances, simply

did not rise to the level of being objectively severe and

perva sive enough to create a hostile work environment.

111 . A reasonably objective person may have concluded that

Spina was rude, abrasive , and uncivil at times. However, this

level of conduct by a supervisor does not constitute actionable

harassment. Speed way SuperAmerica, LLC v. Dupont , 933 So. 2d 75

(Fla. 5th DCA 2006) ( " First, and perhaps most important, federal

courts require that the conduct/harassment be more than merely

insulting or rude and boorish behavior. These statutes were not

intended to be " general civility codes.") . 18/

1 12 . T he U. S. Supreme Court has addressed conduct which is

not actionable and does not support a hostile work environment

claim involving a supervisor. In Farragher v. City of Boca

Raton , 524 U.S. 775, 788 (1998) , the Cour t commented:

" These standards for judging hostility are

sufficiently demanding to ensure that Title

VII does not become a "general civility code.

Properly applied, they will filter out

complaints attacking the ordinary

tribulations of the workplace, such a s the

sporadic use of abusive language, gender -

related jokes, and occasional teasing. We

have made it clear that conduct must be

extreme to amount to a change in the terms

and conditions of employment and the Courts

of Appeals have heeded this view. "

III. Disparate Treatment Claim - Applicable Law and Conclusions

113 . To establish a prima facie case for disparate

treatment in a gender discrimination case, the plaintiff must

show that: (1) she is a member of a protected class; (2) she

was subjected to a n adverse employment action; (3) her employer

treated similarly situated employees outside of her protected

class more favorably than she was treated; and (4) she was

qualified to do the job. EEOC v. Joe's Stone Crab, Inc. ,

220 F.3d 1263, 1286 (11th Cir. 2000).

114 . If the plaintiff satisfies these elements, then the

defendant must show a legitimate, non - discriminatory reason for

its employment action. Id.

115 . If it does so, then the plaintiff must prove that the

reason provided by the defendant is a pretext for unlawful

discrimination. Burke - Fowler v. Orange C nty ., Fla. , 447 F.3d

1319 (11th Cir. 2006) .

116 . Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent, without resorting

to inferences or presumptio ns , and must in some way relate to the

adverse action against the complainant. Greene v. Sch. Bd. of

Broward Cnty. , 2014 U.S. Dist. LEXIS 111664 , at *13 - 14 (S.D. Fla.

2014) .

117 . G enerally, only the most blatant or direct remarks,

whose intent could mean nothing other than to discriminate,

constitute direct evidence of discrimination. Id . at 26.

118 . In this case, there was no persuasive or direct

evidence of gender discrimination offered by Roberts . More

specifically, there was no evidence in the form of blatant or

direct verbal statements, emails, memos, or documents offered to

show that Respondent intended to discriminate against Roberts

because of her gender.

119 . When direct evidence of discrimination does not exist,

the employee may attempt to e stablish a prima facie case by way

of circumstantial evidence through the burden - shifting legal

framework articulated by the United States Supreme Court in

McDonnell Douglas Corporation v. Green , 411 U.S. 792, 802 - 805

(1973).

120 . However, failure to esta blish a prima facie case of

discrimination by either direct or circumstantial evidence ends

the inquiry. See Kidd v. Mando Am. Corp. , 731 F.3d 1196, 1202

(11th Cir. 2013).

121 . In this case, Roberts failed to prove a prima facie

case of discrimination b ecause she failed to prove two of the

elements: (1) t hat she was subject to any adverse employment

action because of her gender , 19 / and (2) that Respondent treated

similarly situated employees outside of her protected class more

favorably than she was tre ated.

122 . In conclusion, Roberts worked in the capacity of an

independent contractor, and was not protected by the provisions

of the FCRA. Additionally, Roberts did not prove by a

preponderance of the evidence that a hostile work environment

existed or that there was disparate treatment against her due to

her gender or sex.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief and find in

Respondent ' s favor.

DONE AND ENTERED this 6 th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 6 th day of April , 2018 .

ENDNOTE S

1/ However, the evidence showed that S pina sought input from the

developer in some instances .

2/ Spina had an identical Independent Contractor Agreement with

Respondent dated January 23, 2009. Resp. Ex. 1 .

3/ The Agreement did not outline or set any specific hours or

days she was contract ually required to be in the office or at her

desk.

4/ Her first day at work was the only day Roberts worked at the

Legacy Place branch office.

5/ Roberts had bee n working out of the VistaBlue Sales G allery

beginning in approximately mid - December 2015.

6/ While Roberts was licensed and had considerable experience in

the real estate field, Spina was the boss and ultimately

responsible for the project's success. As a result, his

decisions regarding operational and sales and marketing decisions

necessari ly prevailed.

7/ Harris is no longer employed by Respondent , or Spina's sales

team.

8/ The exact frequency or number of times this occurred was not

clear.

9/ Ultimately, the credible and more persuasive weight of the

evidence did not support her perc eption of these events or

claims.

10/ As this case aptly demonstrates, "yelling" can be a relative

term. For instance, some people consider it to be "yelling" when

people speak loudly or raise their voices. Petitioner called it

yelling. Spina called i t speaking in a loud voice. Regardless,

no details were provided regarding the volume, pitch, intensity,

tone, or whether any aggressive facial expressions or body

language accompanied the yelling. Regardless, the undersigned is

unable to draw any helpfu l conclusions about whether Spina's

"yelling" was in the nature of harassment. There simply was not

a sufficient description to draw a conclusion or ascribe a

discriminatory animus, one way or the other.

11/ Harris impressed the undersigned as truthful, unbiased , and

straightforward.

12/ She did not mention during her testimony that Spina yelled at

her or Roberts, but characterized his manner of talking to them

as "not appropriate . " No other details were provided or

solicited from Farnsworth.

13/ Th e undersigned found Tuller to be straightforward as a

witness, unbiased , and credible.

14/ Kozlow was vacationing in a remote area of Wisconsin and

responded to her call by text message and wrote that she would

return her call the following day.

15/ Th ere are more than 100 sales associates and administrative

assistants in Kozlow's office.

16/ The interplay between Federal T itle VII law and Florida's

FCRA prompted the undersigned to ask the parties to brief several

legal issues. In particular, what be aring Roberts' A greement had

on her claims, as well as the substantive law applicable to an

alleged hostile work environment created by a supervisor. The

undersigned is appreciative that both counsel competently briefed

these legal issues and included the m in their proposed

recommended orders .

17/ In addition to the clear and unambiguous terms of the

Agreement, Roberts herself followed a course of conduct and

attendance timetable which was more akin to an independent

contractor schedule, than an employee . For example, she insisted

on coming in when she wanted, worked from home on frequent

occasions , and conducted her marketing and sales strategies as

she felt best. While the undersigned finds no fault in these

practices, it supports a finding that Rober ts understood that she

was an independent contractor and not a traditional employee of

Respondent . Roberts conducted her actions and controlled her

work day independently as she saw fit.

18/ Spina even admitted to Roberts and Farnsworth that his wife

an d others called him an "asshole . " Nevertheless, this

unflattering description of an individual does not set the gage

by which workplace discrimination is measured.

19/ Neither Respondent nor Spina fired or terminated Roberts.

Instead, Spina relinquishe d the listing resulting in Roberts

reapplying with the new broker. She was not re - hired.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Bruc e D. Friedlander, Esquire

Friedlander & Kamelhair, PL

1520 East Sunrise Boulevard

Fort Lauderdale, Florida 33304 - 2363

(eServed)

Jeremy E. Slusher, Esquire

Mahra C. Sarofsky, Esquire

Slusher & Rosenblum, P.A.

324 Datura Street , Suite 324

West Palm Beach, F lorida 33401

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(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.