18-006781 Shawn Johnson vs. Rosebourne Investments, Llc Status: Closed Recommended Order on Friday, April 5, 2019.

Summary: The evidence did not prove that Respondent was an employer as defined in s. 760.02(7). Petitioner did not prove how many people Respondent employed.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAWN JOHNSON,

Petitioner,

vs. Case No. 18 - 6781

ROSEBOURNE INVESTMENTS, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (D ivision ), conducted the

final hearing in this matter on March 8, 2019, by video

conference at locations in Tallahassee and Altamonte Springs,

Florida.

APPEARANCES

For Petitioner: Shawn Johnson, pro se

2394 Great Harbor Drive

Kissimmee, Florida 34746

For Respondent: W. Nathan Meloon , Esquire

Widerman Malek, PL

Suite 201

199 0 West New Haven Avenue

Melbourne, Florida 32904

STATEMENT OF THE I SSUE

Is Respondent, Rosebourne Investments, LLC (Rosebourne),

along with related entities described in the ÐDetermination: No

Reasonable Cause,Ñ an ÐemployerÑ as defined by section 760.02(7),

Florida Statutes (2018) ? 1/

PRELIMINARY STATEMENT

On May 31, 2018, Petitioner, Shawn Johnson, filed his Charge

of Discrimination with the Florida Commission on Human Relations

(Commission) alleging that Rosebourne unlawfully discriminated

against him on account of race and age and that it retaliated

again st him for complaining of discrimination. On November 20,

2018, the Commission issued a ÐDetermination: No Reasonable

Cause.Ñ It concluded that Rosebourne was not an employer as

defined in section 760.02(7) and, therefore, could not be held

liable for al leged discrimination and retaliation under

c hapter 760. Mr. Johnson filed a Petition for Relief with the

Commission reasserting the claims of his Charge of

Discrimination. The Commission transmitted the Petition to the

Division to conduct a formal heari ng on the charges. The

undersigned conducted the final hearing on March 8, 2019.

Mr. Johnson testified on his own behalf. His Exhibits A, B,

and C were admitted into evidence . Rosebourne presented the

testimony of Marinus Pijpers. RosebourneÓs Exhibit s A and B were

admitted. Neither party ordered a transcript. The parties

timely filed proposed recommended orders. The undersigned

considered them in the preparation of this Recommended Order.

FINDING S OF FACT

1. Mr. Johnson began working for Rosebourne on May 1, 2017.

Mr. Pijpers, RosebourneÓs owner, hired him. Rosebourne was doing

business as Celebration Rental Shop. Mr. Johnson worked in long -

term rental property management. His responsibilities included

managing prope rty, accounting, and vendor oversight and support.

At some point Rosebourne terminated him.

2. Mr. Johnson was RosebourneÓs only employee.

3. At no time did Rosebourne have 15 or more employees for

each working day in each of 20 or more calendar weeks i n 2018 or

in 2017.

4. Mr. Pijpers owned other companies, including one called

Rosebourne Real Estate, LLC. That company used the services of

real estate agents who were independent contractors , not

employees . The record does not establish the number o f real

estate agents. It also does not establish that Mr. Pijpers had

the authority to direct and control the hours or tasks of the

agents.

5. The record does not establish the number of employees of

any Rosebourne - related entity.

6. The evidence does not show that Rosebourne and all of

Mr. PijpersÓ other companies combined ever employed 15 or more

people.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this proceeding.

§§ 120.569, 120.57(1), and 760.11(4)(b) , Fla. Stat.

8. Section 760.10(1) makes it unlawful for an employer to

discriminate against an employee on account of the employeeÓs

race, color, or age, among other characteristics.

Section 760.10(7) makes it unlaw ful f or an employer to

discriminate against any person because that person has opposed

an unlawful employment practice or made a charge under Section

760.10. Mr. Johnson seeks relief under these provisions.

9. Section 760.02(7) defines an employer as Ðan y person

employing 15 or more employees for each working day in each of 20

or more calendar weeks in the preceding calendar year, and any

agent of such person.Ñ

10. Mr. Johnson must prove his claim that Rosebourne

discriminated against him by a preponde rance of the evidence.

DepÓt of Banking & Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d

932 (Fla. 1996). This includes proving that Rosebourne was an

employer as defined in section 760.02(7).

11. The evidence and all reasonable inferences that may be

dra wn from it do not prove by a preponderance that Rosebourne was

an employer as defined by section 760.02(7).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations d ismiss the Petition for Relief of Petitioner, Shawn

Johnson.

DONE AND ENTERED this 5th day of April , 2019 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of April , 2019 .

ENDNOTE

1/ All statutory references are to the 2018 compilation of the

Florida Statutes unless otherwise noted.

COPIES FURNISHED:

Shawn Johnson

2394 Great Harbor Drive

Kissimmee, Florida 34746

(eServed)

Robert Kerr Michael, Esquire

Robert Michael Law Firm

Suite 150

3030 North Rocky Point Drive West

Tampa, Florida 33607

(eServed)

W. Nathan Meloon, Esquire

Widerman Malek , PL

Suite 201

1990 W est New Haven Ave nue

Melbourne, Florida 32904

(eServed)

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPT IONS

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.