21-001356 Terry Doss vs. Eden Cabaret Status: Closed Recommended Order on Thursday, July 29, 2021.

Summary: Respondent is not an employer within the scope of the Act; and Petitioner did not have an employer/employee relationship with Respondent. If so, Petitioner did not prove discrimination in employment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T ERRY D OSS ,

Petitioner ,

vs. Case No. 21 - 1356

E DEN C ABARET ,

Respondent .

/

R ECOMMENDED O RDER

A duly - noticed final h earing was conducted in this matter on July 6, 2021,

via Zoom conference, before Suzanne Van Wyk, an Administrative Law Judge

with the Division of Administrative Hearings (ÑDivisionÒ).

A PPEARANCES

For Petitioner: Terry Lynn Doss, pro se

12 Adkinso n Drive

Pensacola, Florida 32506

For Respondent: Timothy McEvoy

Eden Cabaret

4001 North Davis Highway

Pensacola, Florida 32503

S TATEMENT OF T HE I SSUE

Whether Respondent, Eden Cabaret (ÑRespondentÒ or ÑEden CabaretÒ ) , is

liabl e to Petitioner, Terry Doss (ÑPetitionerÒ), for employment discrimination

in violation of the Florida Civil Rights Act of 1992, sections 760.01

through 760.11, Florida Statutes (2019). 1

1 Except as otherwise noted, all references to the Florida Statutes herein, are to the 20 19

version, which was in effect when the actions complained of in PetitionerÔs Complaint

occurred.

P RELIMINARY S TATEMENT

On October 20, 2020, Petitioner filed a Complain t of Discrimination

(ÑComplaintÒ) with the Florida Commission on Human Relations

(ÑCommissionÒ) alleging that Respondent violated chapter 760, the Florida

Civil Rights Act. Petitioner alleged that he became employed by Respondent

in May 2019, p erformed mai ntenance work for Respondent through August

2019, when he was terminated, and was never paid wages for his work.

Petitioner maintains he was RespondentÔs only black employee and that

Respondent paid all its white employees.

On April 16, 2021, the Commiss ion issued a Determination: No

Reasonable Cause, and a Notice of Determination: No Reasonable Cause,

determining there was no reasonable cause to believe that unlawful

discrimination occurred in this matter. On April 19, 2021, Petitioner filed a

Petition f or Relief (ÑPetitionÒ) with the Commission, which was transmitted

to the Division on April 20, 202 1 , for assignment of an Administrative Law

Judge to conduct a final hearing.

The undersigned issued an Initial Order in this case on April 21, 2021, but

neit her party responded with the requested information. On May 17, 2021,

the undersigned unilaterally scheduled the final hearing via Zoom conference

for July 6, 2021, and scheduled a pre - hearing conference for May 26, 2021.

The parties attended the pre - hearin g conference via telephone, during which

the undersigned confirmed the partiesÔ availability for the final hearing on

July 6, 2021, and explained the process of the final hearing, including the

presentation of evidence, the requirement to exchange evidence and disclose

witnesses in advance of the final hearing.

The final hearing commenced as scheduled. At the final hearing,

Petitioner testified on his own behalf and offered PetitionerÔs Composite

Exhibit 1, which was admitted into evidence.

Respondent p resented the testimony of its owner Timothy McEvoy, who

testified on behalf of Respondent, but introduced no exhibits into evidence.

The proceedings were recorded, but the parties did not order a transcript.

Petitioner timely filed a Proposed Recommended Order (ÑPROÒ) on July 15,

2021. Respondent did not file a PRO. The undersigned has considered

PetitionerÔs PRO in preparation of this Recommended Order.

F INDINGS OF F ACT

1. Petitioner is a black male who currently resides at 12 Adkinson Drive

in Pensacol a, Florida. Petitioner holds a certification in heating, ventilation,

and air conditioning (ÑHVACÒ) repair and maintenance. The evidence is

unclear whether Petitioner is a licensed HVAC contractor.

2. Respondent is an entertainment club in Pensacola, Flori da, owned by

Timothy McEvoy. The evidence is insufficient to establish how many

employees are employed by Respondent.

3. Mr. McEvoy came to know Petitioner through Mr. McEvoyÔs girlfriend,

Rachel Johnson, in June 2019.

4. At that time, Petitioner had full - time employment, but needed rental

housing and was available for extra part - time work.

5. Mr. McEvoy owned a rental home at 7490 Rolling Hills Road in

Pensacola and informed Petitioner that he could rent a room from him there

for $150.00 per week. The ren tal home was partially occupied by

Mr. McEvoyÔs cousin, Kent Leyonmark, but another room was available in

the home.

6. Mr. McEvoy took Petitioner to the Rolling Hills property and showed

him around. Mr. McEvoy introduced Petitioner to Mr. Leyonmark, sugge sting

that Petitioner may rent a room there.

7. The rental arrangement at Rolling Hills did not work out, however,

because, as Mr. McEvoy testified, Mr. Leyonmark is a racist and would not

allow Petitioner to move into the house. 2

8. Feeling obliged to Pet itioner, Mr. McEvoy suggested Petitioner could

rent a room at the five - bedroom home he and Ms. Johnson were then renting.

9. Sometime in early June 2019, Petitioner moved into Mr. McEvoyÔs

rental home, occupying a bedroom with a private bath. No formal ren tal

agreement, written or otherwise, was ever reached.

10. Mr. McEvoy then hired Petitioner to do some HVAC work for him.

Petitioner performed a number of jobs for Mr. McEvoy at Marcone Supply, a

commercial business located in a building owned by Mr. McEvo y. Petitioner

worked on the AC duct system, installed an air return, and completed an

insulation job. Petitioner further found an airflow problem at the front of the

store and repaired a restriction causing the problem at Marcon e Supply. Over

the next few weeks, Petitioner performed work for Mr. McEvoy at Eden

Cabaret , as well as other rental properties owned by Mr. McEvoy, and at his

beach house on Pensacola Beach.

11. No formal employment agreement was reached between the two men.

Typically, Petitioner se nt a text to Mr. McEvoy informing him that Petitioner

was finished with his regular job and asking if Mr. McEvoy needed him for

any work.

12. After Petitioner informed Mr. McEvoy that he had worked

approximately 20 hours, Mr. McEvoy told Petitioner, ÑIt w ould be best if you

2 Mr. McEvoyÔs testimony is entirely hearsay, but is not being used to prove that

Mr. Leyonmark is a racist, and no finding is made in that regard, but is limited to show that,

for whatever reason, Petitioner did not take a room at the Rolling Hills property.

keep a sheet with start and stop time and [a] brief description of what you

worked on by day.Ò

13. When Petitioner had worked 37 hours, he texted Mr. McEvoy, ÑDidnÔt

know when you was [sic] going to pay me the hrs. I work [sic] .Ò He a lso

stated, ÑI also old [sic] yÔall some rent.Ò

14. Later, Petitioner sent a text asking Mr. McEvoy, ÑDid u need money

for rent[?]Ò The evidence does not support a finding that Mr. McEvoy

responded to that text message.

15. Mr. McEvoy never paid Petitione r for the hours he worked. Petitioner

never paid Mr. McEvoy any rent.

16. In addition to staying at Mr. McEvoyÔs home rent - free, Petitioner had

the use of a car owned by Mr. McEvoy. Petitioner used the car to get to and

from work Ð both his first job and the second part - time work he did for

Mr. McEvoy. Mr. McEvoy testified that he allowed Petitioner to use the car

because the rental house was not near a public bus route. At PetitionerÔs

prior residence he took the bus to work.

17. Petitioner purchased gas for Mr. McEvoyÔs car. Petitioner also

inquired about buying the car from Mr. McEvoy. But, Petitioner never paid

anything to Mr. McEvoy for using the car.

18. In early July, Mr. McEvoy informed Petitioner that the house they

were all living in had been put on the market for sale by the owner .

Mr. McEvoy and Ms. Johnson, who was pregnant at the time, planned to

move before the baby was born. In July, Mr. McEvoy informed Petitioner,

Ñ[W]e have committed to be out of here by the end of this month so you should

pla n accordingly.Ò

19. Petitioner lived with Mr. McEvoy and Ms. Johnson for four to six

weeks. During that time period, Petitioner worked a total of 73.5 hours on

repairs and maintenance at several properties owned by Mr. McEvoy,

including Eden Cabaret .

20. W hen Petitioner requested, via text message, to be paid for the hours

worked, Mr. McEvoy asked Petitioner to call him to discuss the issue.

Mr. McEvoy did not contest the number of hours Petitioner worked, but

wanted to discuss Ñwhere we stand for the work you did vs. the housing and

transportation we provided.Ò

21. The two men never discussed the issue face - to - face, and never came to

an agreement in a series of text messages either.

22. When asked by the undersigned how Mr. McEvoyÔs failure to pay him

was related to his claim of discrimination, Petitioner explained that he was

the only black man that worked for Mr. McEvoy and that Mr. McEvoy paid

all his other employees.

23. Petitioner did not introduce any evidence of particular individuals

employed by Re spondent, what type of work they performed, or their rate of

pay.

24. Mr. McEvoy claims Petitioner was never RespondentÔs employee.

Rather, Mr. McEvoy testified that he engaged Petitioner, as he does many

workers, as an independent contractor to work on an y number of properties

he owns.

C ONCLUSIONS OF L AW

25. The Division has initial jurisdiction over this matter, and the parties

thereto, pursuant to section 120.569 and 120.57, Florida Statutes (2021).

26. The Florida Civil Rights Act of 1992 (the ÑActÒ) i s codified in sections

760.01 through 760.11. When Ña Florida statute [such as the Act] is modeled

after a federal law on the same subject, the Florida statute will take on the

same constructions as placed on its federal prototype, insofar as such

interpre tation is harmonious with the spirit and policy of the Florida

legislation.Ò Brand v. Fla. Power Corp ., 633 So. 2d 504, 509 (Fla. 1st DCA

1994). Therefore, the Act should be interpreted, where possible, to conform to

Title VII of the Civil Rights Act of 19 64, which contains the principal federal

antidiscrimination laws.

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

practice for an employer:

To discharge or to fail or refuse to hire any

individual, or otherwise to discriminate against a ny

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.

28. The Act defines ÑemployerÒ as Ñany 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 person.Ò

§ 760.02(7), Fla. Stat.

29. Petitioner has the burden of proving that Respondent is an ÑemployerÒ

sub ject to the Act. See DepÔt. of Banking and Ins. v. Osborne Stern and Co. ,

670 So. 2d 932, 934 (Fla. 1996)(the party asserting the affirmative of an issue

has the burden of presenting evidence as to that issue).

30. Based on the foregoing Findings of Fact, there is no competent

evidence to support a conclusion that Respondent is an ÑemployerÒ subject to

the Act.

31. Additionally, only an employee may bring a suit under Title VII for

redress of an unlawful employment practice. See Llampallas v. Mini - Circuits ,

Inc. , 163 F.3d 1236, 1242 (11th Cir. 1998). As the court explained, without

such limitation, Ñany person could sue an ÓemployerÔ under the statute

regardless of whether she actually had an employment relationship with that

employer.Ò Id . at 1243. The sco pe of the Act is limited to specific employment

relationship s , just as Title VII is so limited.

32. The concomitant questions , i.e., whether Respondent is an ÑemployerÒ

subject to the Act, and whether Petitioner is RespondentÔs Ñemployee,Ò bear

on subject matter jurisdiction. Llampallas , 163 F.3d at 1242; see also

Lombardi v. Lady of Am. Franchise Corp. , 2002 WL 459717, at *2 (S.D. Fla.,

Mar. 4, 2002).

33. Because an independent contractor is not an employee, an

independent contractor cannot maintain a cla im under Title VII Ð or,

correspondingly, under the Act Ð based on an alleged unlawful employment

practice. See Cobb v. Sun Papers, Inc. , 673 F.2d 337, 342 (11th Cir.

1982)(affirming dismissal of Title VII action on grounds that plaintiff was an

independent co ntractor); Perry v. Health Mgmt. Assocs ., 2014 WL 5780514,

at *2 (M.D. Fla. Nov. 5, 2014)(ÑThe protection against discrimination afforded

by Title VII does not extend to independent contractors; thus, a plaintiff must

be an employee to bring a Title VII su it.Ò).

34. Mr. McEvoy contends Petitioner performed HVAC maintenance and

repairs as an independent contractor. Petitioner has the burden of proving

that the relationship he ha d with Respondent is that of employer - employee.

See Osborne Stern, 670 So. 2d at 934.

35. In Cantor v. Cochran , 184 So. 2d 173, 174 - 75 (Fla. 1966), the Supreme

Court adopted, as the Florida common law test for determining whether an

employment relationship exists, the nonexclusive list of factors set forth in

Restatement of the Law, A gency (Second) § 220 (Am. Law Inst. 1958), as

follows:

(2) In determining whether one acting for another

is a servant or an independent contractor, the

following matters of fact, among others, are

considered:

(a) the extent of control which, by the agree ment,

the master may exercise over the details of the

work;

(b) whether or not the one employed is engaged in a

distinct occupation or business;

(c) the kind of occupation, with reference to

whether, in the locality, the work is usually done

under the direction of the employer or by a

specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies

the instrumentalities, tools, and the place of work

for the person doing the work;

(f) the length of time for which the person is

employed;

(g) the method of payment, whether by the time or

by the job;

(h) whether or not the work is a part of the regular

business of the employer;

(i) whether or not the parties believe they are

crea ting the relation of master and servant; and

(j) whether the principal is or is not in business.

36. In construing employment discrimination statutes, federal courts

apply the Ñhybrid economic realities testÒ to determine whether an individual

is an emp loyee, rather than an independent contractor. See Daughtrey v.

Honeywell, Inc ., 3 F.3d 1488, 1495 n.13 (11th Cir. 1993); Cobb , 673 F.2d at

340 - 41. Under the hybrid approach, the court looks at the common - law

agency test, Ñtempered by a consideration of the Óeconomic realitiesÔ of the

hired partyÔs dependence on the hiring party.Ò Daughtery , 3 F.3d at 1495.

37. ÑIn assessing the amount of control an employer exercises over the

employeeÔs work duties, courts look not only to the results that are to be

achiev ed, but the Ómanner and means by which the work is accomplished.ÔÒ

Dahl v. Ameri - Life Health Serv. of Sara - Bay, LLC , 2006 WL 28894962 , at *4

(M.D. Fla. Oct. 10, 2006) ( citing Daughtrey, 3 F.3d at 1496 ) .

38. Although the relevant evidence was sparse, the fol lowing findings are

relevant to the amount of control Respondent had over PetitionerÔs work:

(1) Neither Mr. McEvoy nor Eden Cabaret had a written employment

agreement with Petitioner establishing how Eden Cabaret would exercise

control over PetitionerÔs w ork; (2) Eden Cabaret, is not in the HVAC repair

and maintenance business; (3) Petitioner maintains a certification and

particular skillset required to perform the work needed by Mr. McEvoy at

Eden Cabaret and his other properties; (4) Neither Mr. McEvoy n or Eden

Cabaret suppl ied the tools and instrumentalities for PetitionerÔs work .

R ather, Mr. McEvoy sent Petitioner to various properties owned by him to

perform repairs and maintenance; and (5) Mr. McEvoy directed that

Petitioner troubleshoot and make repa irs to HVAC equipment -- he had no

control over the means or methods by which Petitioner made repairs or the

details of the work to be performed. In addition, much, if not most, of the

work performed by Petitioner was for the benefit of Mr. McEvoyÔs other

bu sinesses and properties and not for Eden Cabaret.

39. Petitioner argues Respondent was his ÑemployerÒ because Mr. McEvoy

set the number of hours Petitioner was to work each day. Petitioner

highlighted the following text exchange between the two men:

Mr. Mc Evoy to Petitioner: ÑIt would be best if you

could keep a sheet with start and stop time and a

brief description of what you worked on by day.

Thanks.Ò

Petitioner to Mr. McEvoy: ÑK u just want me to

work about 5 hours a day rest of the week[?]Ò

Mr. McEvo y to Petitioner: ÑThat seems reasonable.Ò

Petitioner to Mr. McEvoy : ÑKÒ

40. While this exchange proves th at Mr. McEvoy agreed that Petitioner

should work Ñabout 5 hours a dayÒ that particular week on the particular job

at the time, it is insufficient evi dence to support a conclusion that Petitioner

was RespondentÔs employee. The overwhelming evidence demonstrates that

Petitioner consistently contacted Mr. McEvoy when he got off work from his

regular job and asked if Mr. McEvoy had any work for him. Petiti oner

conducted said work independently and kept track of the hours he worked on

the various jobs.

41. At most, the evidence demonstrates that Petitioner performed odd

jobs, as needed, for Mr. McEvoy, in exchange for transportation and a place to

live. Peti tioner failed to demonstrate by a preponderance of the evidence any

employment relationship with Respondent, Eden Cabaret. 3

3 Assuming, arguendo, Petitioner did have an employee relationship with Respondent, he

failed to prove th at Respondent illegally discriminated against him. Petitioner has the

burden of proving, by a preponderance of the evidence, t hat Respondent committed an

unlawful employment practice. See St. Louis v. Fla. IntÔl Univ. , 60 So. 3d 455 (Fla. 3d DCA

2011); Fla. DepÔt of Transp. v. J.W.C. Co ., 396 So. 2d 778 (Fla. 1st DCA 1981).

Petitioner can meet his burden of proof with either dir ect or circumstantial evidence. See

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17 (Fla. 3d DCA 2009). Direct evidence is

evidence that, if believed, would prove the existence of discrimination without the need for

inference or presumption. See Maynar d v. Bd. of Regents , 342 F.3d 1281, 1289 (11th Cir.

2003). ÑOnly the most blatant remarks, whose intent could be nothing other than to

discriminate will constitute direct evidence of discrimination.Ò Damon v. Fleming

Supermarkets of Fla. , 196 F.3d 1354, 13 58 - 59 (11th Cir. 1996). Ñ[D]irect evidence of intent is

often unavailable.Ò Shealy v. City of Albany, Ga ., 89 F.3d 804, 806 (11th Cir. 1996). For this

reason, those who claim to be victims of intentional discrimination Ñare permitted to

establish their cas es through inferential and circumstantial proof.Ò Kline v. Tenn. Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

Petitioner prove d that he did not take a room at the Rolling Hills property on the

(unproven) allegation that Mr. McEvoyÔs brother was a raci st. However, Petitioner has not

charged Mr. McEvoy with discrimination in the provision of housing. He has charged Eden

Cabaret, an entertainment venue, with employment discrimination.

Because Petitioner introduced no direct evidence of unlawful employme nt discrimination,

Petitioner must prove his allegations by circumstantial evidence. Circumstantial evidence of

discrimination is subject to the burden - shifting framework established in McDonnell Douglas

Corporation v. Green , 411 U.S. 792, 802 (1973). Unde r this well - established model of proof,

the complainant bears the initial burden of establishing a prima facie case of discrimination.

If the charging party is able to make out a prima facie case, the burden shifts to the

employer to offer a legitimate, n on - discriminatory reason for the adverse employment action.

See DepÔt of Corr. v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991). If the employer meets

that burden, the presumption disappears and the employee must prove that the legitimate

reasons were a pr etext. See Valenzuela , 18 So. 3d at 17. Facts that are sufficient to establish

a prima facie case must be adequate to permit an inference of discrimination. Id .

Section 760.10 provides, ÑIt is an unlawful employment practice for an employer È to

discrimin ate against an individual with respect to compensation È because of such

individualÔs race[.]Ò £ 760.10(1)(a), Fla. Stat. To establish a prima facie case of unlawful

discrimination based on his race, Petitioner must show that: (1) he is a member of a

42. Based on the foregoing, the Division is without jurisdiction in this case

and it should be dismissed for lack of jurisdiction.

R ECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law herein, the

undersigned R ECOMMENDS that the Commission issue a final order finding

that Petitioner , Terry Doss, failed to prove that Respondent, Eden Cabaret

was his employer, an d dismis s Petition for Relief No. 2021 - 26984.

prote cted class; (2) he was qualified for the position held: (3) he was subjected to an adverse

employment action; and (4) other similarly - situated employees, who are not members of the

protected group, were treated more favorably than Petitioner. See McDonnell - Douglas , 411

U.S. at 802.

P etitioner met the first two elements: he is a member of a protected class; and is

qualified to work in maintenance of HVAC systems. However, Petitioner is unable to prove

the third element, that he suffered an adverse employmen t action. The evidence was

persuasive, and is accepted, that Petitioner was compensated for the work he performed in

the form of lodging and transportation, and not monetarily.

Assuming, arguendo, Petitioner was subjected to an adverse employment action, he

failed to prove the fourth element, that similarly - situated employees, who are not members

of the protected class, were treated more favorably. For purposes of proving disparate

treatment, a comparator must be similar to Petitioner in Ñall material res pects.Ò See Lewis v.

City of Union City, Georgia , 918 F.3d 1213, 1217 (11th Cir. 2019). Similarity among

comparators is required for the comparisons to be meaningful.

Petitioner testified generally that other white employees were paid by Mr. McEvoy for

th eir work. However, he did not introduce any specific comparators who were similarly -

situated. Petitioner did not introduce evidence of the treatment of any non - black workers

who had the use of rooms at Mr. McEvoyÔs rental home or use of Mr. McEvoyÔs person al

vehicle.

Petitioner failed to prove discrimination in compensation based on his race.

D ONE A ND E NTERED this 29th day of July , 2021 , in Tallahassee, Leon

County, Florida.

S

S UZANNE V AN W YK

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 29th day of July , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Terry Lynn Doss

Florida Commission on Human Relations 12 Adkinson Drive

Room 110 Pensacola, Florid a 32506

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020 Timothy McEvoy

Post Office Box 32562

Timothy McEvoy Gulf Breeze, Florida 32562

Eden Cabaret

4001 North Davis Highway

Pensacola, Florida 32503

Stanley Gorsica , General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

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 Recomme nded

Order should be filed with the agency that will issue the Final Order in this

case.