20-003317 Willende S. Jean vs. Ahmed Temple No. 37 Grenadier &Amp; Shrine Club Incorporated, Deserts Of Florida, And Ancient Egyptian Arabic Order Noble Mystic Shrine Status: Closed Recommended Order on Friday, March 12, 2021.

Summary: Petitioner did not prove Respondent had the requisite number of employees to be an "employer," and her Petition for Relief must be dismissed.

S TATE O F F LORIDA

D IVISION O F A DMINISTRATIVE H EARINGS

W ILLENDE S. J EAN ,

Petitioner,

vs. Case No. 20 - 3317

A HMED T EMPLE N O . 37 G RENADIER &

S HRINE C LUB I NCORPORATED , D ESERTS

O F F LORIDA , A ND A NCIENT E GYPTIAN

A RABIC O RDER N OBLE M YSTIC S HRINE ,

Respondent s .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was held in this case on February 11,

2021 , by Zoom conference before E. Gary Early, a designated Administrative

Law Judge of the Division of Administrative Hearings (ÑDOAHÒ) .

A PPEARANCES

For Petitioner: Louis J . Baptiste, Esquire

Webster Baptiste, PLLC

1615 Village Square B oulevard , #5

Tallahassee, F lorida 32309

For Respondent: Linda Bond Edwards, Esquire

Kayla Elizabeth Platt Rady, Esquire

Rumberger, Kirk & Caldwell , P.A.

101 North Monroe Street , Suite 120

Tallahassee, F lorida 32301

S TATEMENT O F T HE I SSUE

Whether P etitioner demonstrated that the Ahmed Temple No. 37

Grenadier & Shrine Club , Incorporated ( the ÑGrenadier ClubÒ) , employ ed 15

or more employees for each working day in each of 20 or more calendar weeks

in the current or preceding calendar year , thus making it her ÑemployerÒ for

purposes of the Florida Civil Rights Act of 1992 (Ñthe ActÒ). If Petitioner

proves that the Grenadier Club is an employer under the Act , then a second

hearing will be scheduled on the issue of whether she w as subject to an

unlawful employment practice as a result of the Grenadier Club maintaining

a sexually - hostile work environment .

P RELIMINARY S TATEMENT

On April 18, 2019 , Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations ( Ñ FCHR Ò ) naming the Ahm e d

Temple 37/Gr e nadier Club Lounge Ñ S hr iners Club Ò and the Ancient Egyptian

Arabic Order Noble Mystic Shrine , collectively, as her employer, and as the

entity responsible for sexual harass ment and maintaining a sexually - hostile

work environment in violation of the Act . The allegations were investigated,

and on June 11 , 20 20 , FCHR entered a Determination: No Reasonable Cause

and a Notice of Determination: No Reasonable Cause .

A Petition for Relief was filed by Petitioner on July 1 6 , 20 20 . FCHR

transmitted the case to DOAH on July 2 3, 20 20 . A Notice of Hearing was

issued setting the case for f inal hearing on September 2 2 , 20 20 . On

September 11, 2020, Respondent filed a Motion fo r Sixty - Day Continuance of

Hearing, to which Petitioner objected. On September 17, 2020, this case was

transferred to the undersigned. The motion for continuance was granted, and

the final hearing was rescheduled to commence on October 26, 2020.

On Octob er 19, 2020, Petitioner filed a Motion for Judicial Notice,

requesting that the undersigned take judicial notice of sections of Leon

County Ord i nance Chapter 9: Human Rights . Petitioner has argued that it is

appropriate for the Leon County O rdinance to be applied in this case. This

case is not before the undersigned under a contractual assignment from Leon

County. In its absence, the undersigned does not have jurisdiction to

interpret or apply Leon County ordinances. See, e.g. Bradshaw v. Bot t ,

205 So. 3d 815, 819 ( Fla. 4th DCA 2016)(ÑAlthough the Sheriff cannot pass

ordinances, he could contract with [DOAH] to satisfy the provisions of the

Act. Section 120.65(6), Florida Statutes (2016), provides: Ó The division is

authorized to provide admini strative law judges on a contract basis to any

governmental entity to conduct any hearing not covered by this section. Ô Ò) .

On October 20, 2020, Respondent filed a Dispositive Motion for Summary

Judgment (ÑDispositive MotionÒ) in which it argued that the Grenadier Club

did not meet the definition of an employer under the Act, thereby depriving

DOAH of subject matter jurisdiction . The Dispositive Motion was

accompanied by an Unopposed Motion to Continue Hearing Pending Outcome

of Dispositive Jurisdictional Motion .

The October 26, 2020 , hearing was canceled . On November 4, 2020,

Petitioner filed a Response to the Dispositive Motion. Included with the

Response was an Affidavit from Henry Parker , a former Deputy of Oasis for

the Ahmed Temple No. 37 . On November 17, 2020, a telephonic status

conference was held.

On November 17, 2020, an Order Bifurcating Case and Notice of Hearing

was entered which bifurcated the issue of RespondentÔs status as an

Ñemployer,Ò and set a n evidentiary hearing on that issue , pursuant to chapter

120, Florida Statutes, for December 14, 2020. The Notice of Hearing included

an expedited discovery schedule for the December 14, 2020, hearing. On

December 11, 2020, Petitioner filed a Motion to Continue which, after a

telephonic moti on hearing, was granted. An Order Granting Continuance

and Rescheduling Hearing by Zoom Conference was entered on December 11,

2020, which set the final hearing for February 11, 2021 . The hearing was

the n held as scheduled.

At the final hearing, Petitioner offered no testimony or evidence, relying

instead on cross examination of RespondentÔs witnesses to establish that the

Grenadier Club, either on its own or by attribution, had the requisite number

of employees to meet the d efinition of an ÑemployerÒ pursuant to section

760.02, Florida Statutes. Upon discussion on the record, the Affidavit of

Henry Parker filed with the Response to the Dispositive Motion was accepted

and given the weight merited. Since the Affidavit contained no averment that

it was based on Mr. ParkerÔs personal knowledge, the statements are

hearsay, and insufficient on their own to support a finding of fact.

§ 120.57(1)(c), Fla. Stat. Petitioner also expressed the intent to use the

depositi on transcript of Mr. Parker. Mr. Parker was not deposed as a

representative of any party, and there was no evidence that he met any of the

criteria for using his deposition established in Florida Rule of Civil Procedure

1.330 (a)(3) . T he transcript was ulti mately not offered or received in evidence.

Respondent offered the testimony of Theophilus Baker, the Illustrious

Potentate of Ahmed Temple 37; Pierre Rutledge, Deputy of the Desert; and

Dr. William Hudson, Jr., a member of Ahmed Temple 37 and Chair of t he

Board of Governors of the Grenadier Club . Although Respondent submitted

an exhibit book containing proposed exhibits 1 through 14, only RespondentÔs

Exhibit 10 , being the Book of Laws of the Ancient Egyptian Arabic Order

Nobles of the Mystic Shrine of North and South America and its

Jurisdictions, Inc. (ÑBook of LawsÒ) , was received into evidence. Tr. 40:19

through 41:3.

The record was held open to allow for the review and filing of a current

version of RespondentÔs Exhibit 10. Upon further investigati on, it was

determined that the 2015 printing of the Book of Laws filed as RespondentÔs

Exhibit 10 is the most current version. On February 17, 2021, a Notice

Regarding Supplemental Exhibit was filed confirming that no supplemental

exhibit was necessary .

A one - volume Transcript of the proceedings was filed on February 24,

2021 . The time for filing proposed recommended orders was established as

March 8, 2021 . The parties each timely filed p roposed r ecommended o rder s , 1

which ha ve been considered in the preparation of this Recommended Order.

References to statutes are to Florida Statutes (20 18 ) unless otherwise

noted. 2

F INDINGS O F F ACT

Based on the stipulated facts, the testimony and documentary evidence

adduced at hearing, and the record as a whole, the following Findings of Fact

are made:

Stipulated Facts

1. Prince Hall is the first African - American Masonry , establish ed in

Boston, Massachusetts. The Ancient Egyptian Arabic Order Nobles of the

Mystic Shrine of North and South America and its Jurisdictions , Inc. (the

ÑImperialÒ) , is the international Prince Hall of Shriners, a Masonic society,

established in 1893. The Imperial Potentate, elected by its members, serves

as the head member of the Imperial.

1 PetitionerÔs Proposed Recommended Order was filed after 5:00 p.m., and docketed at

8:00 a.m. on March 9, 2021. It is, nonetheless, deemed to have been timely filed and

considered as such.

2 Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding

pregnancy to the list of classifications protected from discriminatory employment practices.

Ch. 2015 - 68, § 6, Laws of Fla. Likewise, s ec tion 760.02 has been unchanged since 1992, save

for the addition of a definition for the term Ñpublic accommodationsÒ in 2003. Ch. 2003 - 396 ,

§ 4, Laws of Fla.

2. Desert of Florida Temples and Courts (the ÑDesertÒ) operates at the

state l evel, and is composed of approximately 25 local temples in the s tate of

Florida, including Ahmed Temple No. 37.

3. Ahmed Temple No. 37 (hereinafter referred to as the ÑTempleÒ) is the

local temple for members in Tallahassee, Florida. The Illustrious Poten tate

serves as the head member of the Temple.

4. The Imperial , the Desert, and the Temple are membership - based

organizations.

5. The Grenadier Club is a social - club - and - bar business for persons

25 years of age and older.

6. The Grenadier Club is managed and controlled by a Board of Governors

(the ÑBOGÒ) . The BOG is composed of the Chairman, Vice Chairman,

Treasurer, Secretary, and five additional members of the Temple. Members of

the Temple vote to elect members of the BOG. Members of the BOG vote to

elec t the BOG Chairman. The Illustrious Potentate of the Temple is the Ex -

Officio Chairman of the BOG.

7. Five voting members of the BOG constitute a quorum for the

transaction of business.

8. At all times relevant, the BOG employed a manager who oversaw the

o perational management of the Grenadier Club.

9. At all times relevant, the Grenadier Club paid all of its employeesÔ

salaries.

10. At all times relevant, the Grenadier Club paid all of the Grenadier

ClubÔs expenses.

11. At all times relevant, the Grenadier Club kept and maintained its own

books and records separate and apart from the Imperial, the Desert, and the

Temple.

12. At all times relevant, the Grenadier Club filed its own tax returns

separate and apart from the Imperial, the Desert, and the Temple.

13. At all times relevant, 25 percent of the Grenadier ClubÔs monthly net

revenue was submitted to the Temple to be used for charity.

14. At all times relevant, the Grenadier Club paid the Imperial a $250.00

annual operational fee.

15. In December of 2018, Henry Parker was the Deputy of Oasis for the

Desert, which served as a conduit between the Temple and the Imperial.

Mr. Parker was also a member of the Temple.

16. In December of 2018, Mr. Parker was designated by the then - Imperial

Po tentate to remove the then - Illustrious Potentate of the Temple and the

Chairman of the BOG and to take over operations of Grenadier Club.

Thereafter, Mr. Parker unilaterally, without approval, input, or vote by

members of the Temple, appointed members to s erve on the BOG.

17. From December of 2018 to August of 2020, Mr. Parker , as a member of

the Temple, had total oversight over Grenadier Club o perations.

18. From December of 2018 to August of 2020, the Grenadier ClubÔs

operations did not change.

19. From December of 2018 to August of 2020, there w ere no additional

restrictions on the Grenadier Club at the direction of the Imperial.

20. From December of 2018 to August of 2020, when Mr. Pa rker was

acting as the overseer of Grenadier Club, Mr. Parker did not exert any more

control over the Grenadier Club employees than the Temple would have.

21. From December of 2018 to August of 2020, when Mr. Parker was

acting as the overseer of Grenadier Club, Mr. Parker did not impose any

additional financial requirements on the Grenadier Club.

Facts Adduced at Hearing

22 . The Temple meets at a building located in Frenchtown, a locally well -

recognized area near downtown Tallahassee.

23 . The Grenadier Club operates under the auspices of the Temple from a

location separate from the Temple. The current operating hours for the

Grenadier Club are Saturdays from 9:00 p.m. until 2:00 a.m., and Mondays

from 7:00 p.m. to 12:00 a.m. However, Dr. Hudson indicated that the

Grenadier Club has been operating Ño n and offÒ since the Covid - 19 pandemic.

There was no evidence of the operating hours in 2018. 3

24 . At all times material to this proceeding, Petitioner was directly

employed by the Grenadier Club . She worked at the Grenadier Club as a

server/bartender from April 2018 until August 2018.

25 . The members of the Temple , including the BOG, are unpaid

members/ volunteer s . The alleged actions of the then - Chairman of the BOG

towards P etitioner form the basis for her Charge of D iscrimination and

Petition for Relief .

26 . The threshold issue in this proceeding is whether the Grenadier Club

had the requisite number of employees to bring it under the jurisdiction of

the Act as PetitionerÔs Ñ employer. Ò If Petitioner fails in her proof of that issue,

any discussion of acts that may have constituted sexual harassment or

resulted in the creation of a sexually - hostile work environment become

superfluous and unnecessary.

The Book of Laws

27 . The Book of Laws consists of the Constitution, Bylaws, and General

Laws governing the Ancient Egyptian Arabic Order Nobles of the Mystic

Shrine of North and South America and its Jurisdictions, Inc. The Book of

Laws establishes the hierarchy of the organ izational entities that comprise

the Imperial, the Desert, and the Temples. Although there is a hierarchy, and

a general means established to ensure cohesiveness, uniformity, and

compliance with the goals, customs, and governance of the organization, day -

t o - day management and administration is performed at the Temple level.

3 The allegations in the Petition for R elief suggest that the operating ÑshiftsÒ were greater in

2018 than they are now. However, the evidence adduced at the hearing was not sufficient to

establish the 2018 operating hours.

28 . The Book of Laws provides that the Imperial has a committee Ñto

encourage, develop, and promote the establishment of Grenadier Clubs

among the several Temples,Ò and that Ñ[t]he comm ittee shall help improve

club operations and accountability through established guidelines approved

by the Imperial Potentate and the Imperial Divan.Ò

29 . A group of Nobles in a Temple is allowed to operate a Grenadier Club

only by Ñfirst obtaining permis sion and a special dispensation from the

Imperial Potentate.Ò Once such has been received, membership in the

Grenadier Club is limited to Nobles in good standing in their respective

Temples, and all operations related to a Grenadier Club are within the

exc lusive control of the Temple, through the elected B OG . See , Book of Laws,

Appendix II - Uniform Bylaws for Temples, Article XII, Grenadier Clubs.

Facts Regarding the Grenadier Club as an ÑEmployerÒ

30 . The Grenadier Club is incorporated as a legal entity unto itself. The

evidence adduced at the hearing demonstrates that the Grenadier Club has

paid employees, but the number of employees was not proven .

31 . The Grenadier Club occasionally hires DJs and private security . The

evidence established that they are not employees , but rather are independent

contractors. The number of independent contractors and their schedules w as

not proven .

32 . As set forth in the stipulated facts above, The Grenadier Club is

managed and controlled by the nine - member BOG , which consists exclusively

of members of the Temple. T he BOG employed a manager who oversaw the

operational management of the Grenadier Club.

33 . There was no competent substantial evidence offered or received that

the Grenadier Club employed 15 or more employees for each working day in

each of 20 or more calendar weeks in the calendar year during PetitionerÔs

employment at the Grenadier Club or the year preceding her employment at

the Grenadier Club. Thus, based on the evidence adduced at hearing, the

Grenadier Club is n ot an ÑemployerÒ as defined by s ection 760.10.

34 . I n order to prove the threshold element of her claim for relief,

Petitioner mus t thus establish that employees of other entities should be

imputed to the Grenadier Club due to integrated activities or common control

o f the Grenadier ClubÔs operations or employees.

The Temple

35 . The evidence adduced at the hearing demonstrates that the Temple

has no employees. It is an organization operated entirely by its unpaid,

volunteer members.

36 . The members of the BOG are members of the Temple. The evidence

adduced at the hearing demonstrates that the members of the BOG are not

employees of either the Temple or the Grenadier Club.

37 . The Book of Laws provides that, subject to the mandates of the

T emple, the BOG has Ñsole control and management of the [Grenadier] Club,

its property and employees . Ò The Temple, through the BOG, makes all

employment decisions for the Grenadier Club, and has exclusive control over

the pay and the terms and conditions of Grenadier Club employees.

38 . The Book of Laws provides that, subject to the mandates of the

Temple, the BOG may employ a manager and other employees, determine

their duties, and fix their compensation.

39 . The BOG, consisting of and elected by members of the Temple, hired

the manager of the Grenadier Club. Decisions regarding employee hiring,

supervisi on, terms and conditions of employment, discipline, and firing of

Grenadier Club employees were the exclusive responsibility of the BOG and

the Grenadier Club manager .

The Desert

40 . The evidence adduced at the hearing demonstrates that the Desert of

Florida has no paid employees. It is an organization operated entirely by its

unpaid, volunteer members. The Desert has its own organization al and

management structure separate from th at of the Imperial, the Temple, and

the Grenadier Club.

41 . The current Deputy of the Desert, who was the individual filling that

position during the period of PetitionerÔs employment at the Grenadier Club,

is not a member of the Temple.

The Imperial

42 . The I mperial is an organization international in its scope. It maintains

its headquarters in Memphis, Tennessee. Mr. Parker understood -- though

not based on averred personal knowledge - - that the organization as a whole

has approximately 350,000 members from 196 temples in the U.S.A., Canada,

Brazil, Bolivia, Mexico, Panama, the Philippines, Europe, and Australia .

That estimate is accepted not for the truth of the specific matters asserted,

but as providing a general sense of the size and scope of the org anization.

43 . The evidence adduced at the hearing demonstrates that the Imperial

has employees that work for the Imperial Council . The number of employees

was not proven , and there was no competent substantial evidence offered or

received that the I mperial employed 15 or more employees for each working

day in each of 20 or more calendar weeks in the calendar year during

PetitionerÔs employment at the Grenadier Club or the year preceding her

employment at the Grenadier Club.

Relationship of the Imper ial and the Desert to the Grenadier Club

44 . The Book of Laws vests no authority for the management or operation

of the Grenadier Club in either the Desert or the Imperial. Petitioner

introduced no evidence that either the Grenadier Club or the Temple,

thr ough the BOG, delegated any control of traditional rights over its

employees to any other entity.

45 . The evidence adduced at the hearing demonstrates that neither the

Desert nor the Imperial have operational control over the Grenadier Club.

46 . The Deser t and the Imperial have no shared management of the

Grenadier Club, and ha ve no role in the hiring or firing of employees of the

Grenadier Club.

47 . Neither the Desert nor the Imperial had supervisory control over

Petitioner or her work schedule. No member of the Desert or the Imperial

evaluated PetitionerÔs performance or disciplined Petitioner.

48 . Employees of the Grenadier Club are paid by the Grenadier Club, and

not by the Desert or the Imperial.

49 . The Desert neither gives nor receives funds from the Grenadier Club.

50 . Other than the payment of the $250.00 annual operational fee from

the Grenadier Club to the Imperial, t he Imperial neither gives nor receives

funds from the Grenad ier Club.

51 . There was no evidence offered or received that the Grenadier Club has

common of ficers, directors, or employees with either the Desert or the

Imperial.

52 . There was no evidence offered or received that the Grenadier Club

share s or comingl e s bank accounts with either the Desert or the Imperial.

C ONCLUSIONS O F L AW

53 . For purposes of this proceeding , DOAH has jurisdiction over the

parties and the subject matter pursuant to s ections 120.569 , 120.57(1), and

760.11, Florida Statutes.

54 . Petitioner has the burden of proving by a preponderance of the

evidence that the Grenadier Club committed an unlawful employment

practice. See St. Louis v. Fla. Int'l Univ. , 60 So. 3d 455 (Fla. 3rd DCA 2011);

Fla. Dep't of Transp. v. J.W.C. Co. , 396 So . 2d 778 (Fla. 1st DCA 1981);

§ 120.57(1)(j), Fla. Stat. 4

55 . Chapter 760, Part I, is patterned after Title VII of the Civil Rights Act

of 1964, as amended. It is well established that Ñif a Florida statute is

modeled after a federal law on the same subje ct, the Florida statute will take

on the same constructions as placed on its federal prototype.Ò Brand v. Fl a.

Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); see also Valenzuela v.

GlobeGround N. Am . , LLC , 18 So. 3d 17 (Fla. 3rd DCA 2009); Fla. State Univ.

v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of Cmty. Aff. v.

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

56 . A threshold question in t his case is whether the Grenadier Club is an

Ñ employer Ò as defined in section 760.02(7) , which is a prerequisite for

PetitionerÔs claim to be actionable under the Act . T he United States Supreme

Court has determined th at question to be a n element of a person's claim for

relief. Arbaugh v. Y & H Corp. , 546 U.S. 500 , 516 (2006) , a ccord , Morrison v.

Amway Corp. , 323 F. 3d 920 (11th Cir. 2003). FCHR has expressed its

agreement with that determination , and has concluded that:

whether a Respondent has the requisite number of

employees to be governed by the Florida Civil Rights

Act of 1992 is n ot a jurisdictional issue, but rather is

an element of PetitionerÔs claim for relief ...

Hill v. Goga Ba p Corp. , d/b/a Subway Store No. 13268 , Case No. 12 - 08 8 6

(DOAH Jan. 7, 2013; FCHR Mar. 11, 2013) .

57 . Section 760.10(1), provides that:

It is an unlawful employment practice for an

employer :

4 This case was tried as a final hearing under chapter 120.57(1). It was not a motion hearing

on the Dispositive Motion. Thus, the burden of proof was not on Respondent to prove th at

summary judgment should be granted, with all allegations being deemed to b e true, and with

every reasonable inference being applied in PetitionerÔs favor. Rather, this case was noticed

and tried as a full evidentiary hearing on the issue of whether Respondent has the requisite

number of employees to qualify as an ÑemployerÒ unde r section 760.02(7) , with the burden on

Petitioner to prove the essential elements of her claim .

(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 individualÔs race, color, religion, sex, national

origin, age, handicap, or marital status.

(b) To limit, segregate, or classify employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of

employment opportunities, or adversely affect any

individualÔs status as an employee, because of such

individualÔs race, color, religion, sex, national origin,

age, handicap, or marital status.

58 . Section 760.02(7) defines Ñ employer Ò as follows:

Ñ Employer Ò 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. [ 5 ]

5 Respondent argued that the definition of ÑemployerÒ in Title VII of the Federal Civil Rights

Act, 42 U.S.C. § 2000e(b), should be applied in this case. Tho ugh Federal interpretive

caselaw is to be applied in cases under the Act, the underlying law to be applied is that

enacted by the Florida Legislature. Thus, the specific Federal exclusion of Ña bona fide

private membership club (other than a labor organiza tion) which is exempt from taxation

under section 501(c) of Title 26 , Ò which does not appear in the Act, is not applicable here.

Furthermore, there was no evidence entered into the record of the 501(c) tax status of any

entity discussed in this proceeding. The undersigned declines to take post - hearing official

recognition of the ImperialÔs 2017 and 2018 Federal tax returns as Ñ[f] acts that are not

subject to dispute because they are capable of accurate and ready determination by resort to

sources whose accu racy cannot be questioned Ò pursuant to s ection 90.202(12) , Florida

Statutes . As to documents of that nature, the Florida Supreme Court has explained:

... first, the facts to be judicially noticed must be of common

notoriety, and second, courts should exer cise great caution

when using judicial notice. As has been held in this state and

elsewhere, judicial notice is not intended to Ñfill the vacuum

created by the failure of a party to prove an essential fact.Ò

Huff v. State , 495 So. 2d 145, 151 (Fla. 1986) ; see also Maradie v. Maradie , 680 So. 2d 538,

541 (Fla. 1st DCA 1996)(Ñ Thus, historically, Ó judicial notice applies to self - evident truths that

no reasonable person could question, truisms that approach platitudes or banalities. Ô Ò ).

59 . Thus, f or Petitioner to meet her burden of proof, she must demonst rate

that the Grenadier Club employed 15 or more individuals for each working

day in 20 or more weeks during the year in question. Walters v. Metr o. Educ.

Enter. , Inc. , 519 U.S. 202, 212 (1997).

60 . Other than the hired manager of the Grenadier Club and Petitioner,

there was no competent substantial evidence offered or received as to any

ÑemployeesÒ of the Grenadier Club . The evidence is not sufficient to support a

conclusion that the Grenadier Club is an Ñ employer Ò as defined in section

760.02.

Attribution of Employees

61 . Given the absence of competent substantial evidence of the number of

employees of the Grenadier Club , an analysis is warranted to determine

whether the employees of another related entity should be aggregated with

those of the Grenadier Club so that the combined number of employees is 15

or more. In establishing the criteria to be applied for such aggregation , the

Eleventh Circuit Court of Appeals has held that :

We have identified three ci rcumstances in which it

is appropriate to aggregate multiple entities for the

purposes of counting employees. First, where two

ostensibly separate entities are ÑÓh ighly integrated

with respect to ownership and operations, ÔÒ we may

count them together under Title VII. ... This is the

Ñ single employer Ò or Ñ integrated enterprise Ò test.

Second, where two entities contract with each other

for the performance of some task, and one company

retains sufficient control over the terms and

conditions of employment of the other company's

employees, we may treat the entities as Ñ joint

emplo yers Ò and aggregate them. ... This is the Ñ joint

employer Ò test. Third, where an employer delegates

sufficient control of some traditional rights over

employees to a third party, we may treat the third

party as an agent of the employer and aggregate the

tw o when counting employees. ... This is the

Ñ agency Ò test. (internal citations omitted)

Lyes v. City of Riviera Beach , 166 F.3d 1332, 1341 (11th Cir. 1999) ; see also

Martinolich v. Golden Leaf Mgmt., Inc. , 786 So. 2d 613, 615 (Fla. 3d DCA

2001).

62 . Petitioner has relied exclusively on the application of the Ñenterprise

testÒ as the basis for her claim that employees of other entities, specifically

those of the Desert and the Imperial, should be attributed to the Grenadier

Club.

ÑSingle EmployerÒ / Ñ In tegrated Enterprise Ò Test

63 . In its analysis of the Ñsingle employerÒ test, the Lyes Court held that:

In determining whether two non - governmental

entities should be consolidated and counted as a

single employer, we have applied the standard

promulgated in NLRA cases by the National Labor

Relations Board . ... This standard sets out four

criteria for determining whether nominally separate

entities should be treated as an integrated

enterprise. (internal citation omitted). Under the so -

called Ñ NLRB test, Ò we look for Ñ (1) i nterrelation of

operations, (2) centralized control of labor relations,

(3) common management, and (4) common

ownership or financial control. Ò

Lyes v. City of Riviera Beach , 166 F.3d at 1341; see also Reeves v. DSI Sec.

Servs. , 331 Fed . App Ô x. 659, 663 (11th Cir. 2009). The Court went on to hold

that Ñ [c] ourts applying the NLRB Ó single employer Ô test to private entities in

Title VII cases have held that not every factor need be present, and no single

factor is controlling. Ò Lyes , 166 F. 3d at 1341, n . 5 ; see also E.E.O.C. v.

Dolphin Cruise Line, Inc. , 945 F. Supp. 1550 (S.D. Fla. 1996).

6 4 . In determining whether the first criteri on of Ñ interrelation of

operations Ò is met, courts look to whether the companies share employees

and resources. Guaqueta v. Universal Beverages, LLC , 2010 WL 2757193

at * 6 (S.D. Fla. 2010) (c iting Walker v. Boys & Girls Club of Am. , 38 F. Supp.

2d 1326, 1331 (M.D. Ala. 1999) ) ( Ñ [T]he National Labor Relations Board has

identified seven indicia of interrelatedness: (1) combined accounting records;

(2) combined bank accounts; (3) combined lines of credit; (4) combined payroll

preparation; (5) combined switchboards; (6) combined telephone numbers and

(7) combined officers. Ò ) .

6 5 . Applying the above analysis, the evidence establishes that none of the

indicia of interrelatedness exist in this case. The factor closest to being

pertinent is that the Illustrious Potentate of the T emple is invited to the

I mperial Ôs annual convention , a tenous thread .

6 6 . In determining whether the second criteri on of Ñ centralized control of

labor relations Ò has been met, courts look to Ñ which company has the power

to hire and fire employees and control employment practices. Ò Guaqueta at * 6

( citing Fike v. Gold Kist, Inc. , 514 F. Supp. 722, 727 (N.D. Ala. 1981) ) (Ñ [T] he

Ó control Ô of labor relations is not potential control but active control of day - to -

day labor relations. Ò ) .

6 7 . The preponderance of the evidence established that neither the

I mperial nor the Desert had any control whatsoever of the day - to - day labor

relations of the Grenadier Club .

6 8 . The third criteri on of Ñ common management Ò is dependent on there

being common directors and officers. Guaqueta at * 7 (citing Fike at

727 )( Ñ Cases treating two separate corporate entities as a single employer

have placed heavy emphasis on the existence of common directors and

officers. Ò ) .

69 . The preponderance of the evidence established that neither the

I mperial nor the Desert had common directors or officers with the T emple or

the Grenadier Club.

7 0 . T he fourth and final criteri on of the Ñsingle employerÒ test is Ñ common

ownership or financial control. Ò Courts have held that a finding of common

ownership or financial control alone is , in itself, insufficient to establish the

single employer or integrated enterprise criterion absent proof of the other

factors. Guaqueta at * 7 - 8 . Even if Petitioner had proven other elements of the

single employer or integrated enterprise test -- which she did not -- t he

following analysis of the necessary degree of financial control is instructive:

In Player v. Nations Biologi c s, Inc. , 993 F . Supp. 878,

883 (M.D. Ala. 1997), the plaintiff established

financial control where the main company

maintained a centralized account pooling the profits

of all the other companies to cover the losses of the

less successful companies. By contrast in Fike , the

district court did not find common ownership where

one company did not exercise financial control over

the other company, revenues and operating

expenses were not comingled, and one company did

not borrow funds from the other. 514 F. Supp. a t 727.

Gu aqueta at * 8 .

7 1 . In another case involving strikingly similar facts, the District Court

for the Northern District of New York dismissed an action under Title VII

brought by a former employee/bartender of a local American Legion post after

concluding that the national and state American Legion offices were not the

P laintiff Ôs employers under Title VII. The Court, in dismissing the complaint

of discrimination, determined that the local Post 489 was a separate entity ,

holding that:

There was no integrated e conomic

relationship between [the American Legion]

and Post 489, nor did it enjoy authority or

control over the post's employment practices

affecting plaintiff.

Plaintiff has not linked the American Legion

with the American Legion Ï NY or Post 489's

operati ons, labor relations, management, and

ownership or financial control. The American

Legion does not share offices, bank accounts

or equipment with any local post. Each

department and local post is responsible for

its own funds, accounts and records. Nor is

there any evidence of an interrelationship

between the administrative operations of the

American Legion and Post 489.

The American Legion, American Legion Ï NY

and Post 489 do not share management,

either. Each has its own management

organization, board of directors and/or

officers. Local posts enjoy exclusive control

over their government, administration and

activities. The American Legion is powerless

to intercede in the affairs and operations of

the local posts; rather, its authority is limited

to the for mation and termination of a local

post's charter.

Additionally, the American Legion does not

have control over labor relations and

personnel of Post 489 or the American

Legion Ï NY. Each local post ascertains its

employment needs and establishes its own

terms and conditions of employment. The

American Legion does not participate in

hiring, training, wage payment, supervision

or disciplining of any of the local posts'

employees. The American Legion and Post

489 have individual I.R.S. employment

identificat ion numbers, these entities do not

have common ownership or consolidated

financial control. Each has its own accounting

system, financial records, and bank accounts.

Brown v. Am. Legion Cortland City Post 489 , 64 F. Supp. 2d 96, 100 Ï 101

(N.D.N.Y. 1999)

7 2 . The preponderance of the evidence established that there is no

common ownership or financial control between the I mperial or the Desert

and either the Grenadier Club or the Temple . The payment of the $250.00

annual operational fee from the Grenadier Club to the Imperial is not

sufficient to form the basis for an attribution of employees to the Grenadier

Club under the Ñsingle employerÒ test.

7 3 . Finally, i n the opening statements at the final hearing , Petitioner

analogized the rela tionship between the Grenadier Club and the higher

echelon entities as akin to that of a McDonaldÔs franchise and McDonaldÔs

Corporation, with the focus being the degree of control McDonaldÔs

Corporation exercises over its franchisees, from granting or rev oking the

franchises to setting the menu and décor. Petitioner argued that the

relationship between the Grenadier Club and the Imperial should be

evaluated using the franchisee/McDonaldÔs Corporation model of pervasive

control, concluding that the Imperial Ôs employees should be attributed to the

Grenadier Club. 6 In that regard, the courts have examined that very

relationship in the context of a claim of discrimination under Title VII. In

Evans v. McDonaldÔs Corporation , 936 F.2d 1087 , 1090 (10th Cir. 1991), t he

Court held that:

Evans contends that control is the key issue in

determining an employer/employee relationship,

and alleges that McDonald's exerted Ñ monumental

control Ò over the operations of Everett Allen's

franchises. Control is, w e agree, an important factor

in any determination of this issue. See [ Wheeler v.

Hurdman , 825 F.2d 257, 2 7 0 (10th Cir.), cert.

denied, 484 U.S. 986, 98 L. Ed. 2d 501, 108 S. Ct. 503

(1987) ] (control over details and results of worker's

performance is the mo st important factor in

determining employer/employee relationship). In

this case McDonald's did not exert the type of control

that would make it liable as an employer under Title

VII. McDonald's may have stringently controlled the

manner of its franchisee' s operations, conducted

frequent inspections, and provided training for

franchise employees. The record also indicates,

however, that McDonald's did not have control over

Everett Allen's labor relations with his franchise

employees. See [ Armbruster v. Quin n , 711 F.2d 1332,

1337 - 38 (6th Cir. 1983) ] (control over elements of

labor relations is a central concern); [ Carter v. Shop

Rite Foods, Inc. , 470 F. Supp. 1150, 116 1 (N.D. Tex.

1979) ] (without control over labor relations,

stringent control over details of independent

6 Again, even if attribution of employees of the Imperial were appropriate -- which it is not --

there was no proof of the number of employees of the Imperial. Thus, there could be no

finding that even with the ImperialÔs employees added, the total number o f

Imperial/Grenadier Club employees met the standard established in section 760.02(7).

operators did not make defendant an employer of

operator's employees). McDonald's did not have

financial control over Everett Allen's franchises.

Outside of the necessary control over conformity to

standard operational details inherent in many

franchise settings, McDonald's only real control over

Everett Allen was its power to terminate his

franchises. Thus, on the record before us, we hold, as

a matter of law, that McDonal d's did not have the

control over Everett Allen's franchises necessary to

make it liable as an employer of Everett Allen's

employees under Title VII.

7 4 . Similar to a franchise agreement, the Book of Laws sets forth the

general structural relationship bet ween the Imperial and its subordinate , but

independent , entities. It does not establish financial control or control over

labor relations that would make the Imperial liable as an employer of the

Grenadier ClubÔs employees under the Act.

Conclusion

7 5 . H aving applied the criteria set forth in the case law analyzed above ,

there was not sufficient competent, substantial evidence to support a

conclusion that the Grenadier Club has the requisite number of employees to

be an ÑemployerÒ as defined in section 760.02(7).

7 6 . Having applied the criteria set forth in the case law analyzed above,

there was sufficient competent, substantial evidence to support a conclusion

that the Temple had sufficient control over the Grenadier Club to allow for

attributi on of the TempleÔs employees to the Grenadier Club. However, the

Temple has no employees. Thus, the inadequate number of employees of the

Grenadier Club plus zero is still an inadequate number of employees to make

the Grenadier Club an ÑemployerÒ as defined in section 760.02(7).

7 7 . Having applied the criteria set forth in the case law analyzed above,

there was not sufficient competent, substantial evidence to support a

conclusion that either the Desert or the Imperial had sufficient control over

the Grenadier Club to allow for attribution of their employees to the

Grenadier Club.

7 8 . The re being no evidence that the Grenadier Club falls under the

purview of the Act, there is no purpose to be served by proceeding with a

determination of whether Petitio ner met her burden of establishing

discrimination on the basis of sex or as retaliation as alleged in her

Complaint of Discrimination . To do so would amount to, essentially, the

issuance of an advisory o rder, which the undersigned is not at liberty to do.

79 . PetitionerÔs claim is not actionable under section 760.10.

8 0 . This Recommended Order is limited to a determination of whether

Respondent is liable for alleged employment discrimination against

Petitioner pursuant to the Florida Civil Rights Act of 1992. The Petition for

Relief also includes a count for Civil Battery and a count for retaliation

pursuant to section 448.102, Florida Statutes . Furthermore, Petitioner has

raised the issue of compliance with Leon County Ordinance Chapter 9:

Human Rights . This Recommended Order is not intended to, and does not,

rule on either of those counts , or on the application of any Leon County

ordinance , and any rights Petitioner may have to bring an action based

thereon in any court of competent jurisdiction is una ffected.

R ECOMMENDATION

Upon the consideration of the facts found and conclusions of law reached,

it is

R ECOMMENDED :

That a final order be entered by the Florida Commission on Human

Relations dismissing the Employment Complaint of Discrimination , based

upon Petitioner's failure to meet her burden of proof to establish that

R espondent , Ahmed Temple No. 37 Grenadier & Shrine Club, Incorporated ,

is an Ñ employer Ò as defined in s ect ion 760.02(7), either through its own

employees or through attribution .

D ONE A ND E NTERED this 12th day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

E. G ARY E ARLY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of March, 2021.

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Dorian R. Glov er, Esquire

Florida Commission on Human Relations Ancient Egyptian Arabic Order

4075 Esplanade Way , Room 110 Noble Mystic Shrine

Tallahassee, Florida 32399 - 7020 600 Franklin Avenue

Post Office Box 8089

Kayla Elizabeth Platt Rady, Esquire Garden City, New York 11530

Rumberger, Kirk & Caldwell, P.A.

101 North Monroe Street , Suite 120 Linda Bond Edwards, Esquire

Tallahassee, Florida 32301 Rumberger, Kirk & Caldwell P.A.

101 North Monroe Street , Suite 120

Louis J. Baptiste, Esquire Tallahassee, Florida 3230 1

Webster Baptiste, PLLC

1615 Village Square B oulevar d., #5 Cheyanne Costilla, General Counsel

Tallahassee, Florida 32309 Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.