STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURA COKER,

Petitioner,

vs.

COUNTY OF MARION SENIOR SERVICES AND HELPING HAND OF NORTH FLORIDA,

Respondents.

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) Case No. 10-9038

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RECOMMENDED ORDER

A formal hearing was conducted in this case on November 9, 2010, by video teleconference with hearing sites located in Tallahassee, Florida and Gainesville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laura Coker, pro se

10098 Southwest 87th Terrace Ocala, Florida 34481

For Respondent: Jemith Rosa

Authorized Representative Marion County Senior Services 1101 South West 20th Court Ocala, Florida 34471

For Respondent: Helping Hand of North Florida

(No appearance)

STATEMENT OF THE ISSUE

The issue is whether either of the Respondents is responsible for discriminating against Petitioner based on her age.

PRELIMINARY STATEMENT

On or about January 19, 2010, Petitioner Laura Coker (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The complaint alleged that Respondent Marion County Senior Services (MCSS) had discriminated against Petitioner based on her age.

On August 27, 2010, FCHR issued a Determination: No Cause. FCHR's determination listed MCSS and Helping Hand of North Florida (HHNF) as Respondents.

On September 8, 2010, Petitioner filed a Petition for Relief with FCHR. The petition alleged that MCSS and HHNF had committed an unlawful employment practice against Petitioner by not paying her for her last month of work.

FCHR referred the case to the Division of Administrative Hearings on September 10, 2010. The undersigned unsuccessfully attempted to arrange a telephone conference with the parties during September 2010. Subsequently a Notice of Hearing by Video Teleconference, dated October 4, 2010, scheduled the hearing for November 9, 2010.

On October 8, 2010, the United States Postal Service returned the Notice of Hearing mailed to HHNF. The undersigned then made another unsuccessful attempt to contact Robert Kogsnow of HHNF by telephone. On October 13, 2010, the undersigned issued an Amended Notice of Hearing by Video Teleconference, sending the amended notice to MCSS and HHNF at their respective addresses in Ocala, Florida, and Gainesville, Florida.

During the hearing, Petitioner testified on her own behalf. Petitioner offered no exhibits as evidence. MCSS presented the testimony of one witness. Pursuant to the agreement of the parties, MCSS filed two exhibits on November 16, 2010. MCSS's exhibits are hereby accepted as evidence.

There is no transcript of the hearing. Additionally, neither party filed proposed findings of fact or conclusions of law.

Except as otherwise noted, references hereinafter shall be to Florida Statutes (2009).

FINDINGS OF FACT

1. At all times relevant here, Petitioner was employed by HHNF to provide homemaker, personal care, and/or in-home respite services to elderly clients of MCSS. Petitioner began her employment with HHNF in January 2006, receiving a Form 1099 from HHNF for each year of service. The record indicates that

   
   

   Petitioner did not receive payment for working the entire month of November 2009.

2. MCSS and HHNF entered into a contract on September 11, 2008, for HHNF to provide homemaker services for MCSS' elderly clients. The contract was effective January 1, 2009, through December 31, 2009. The contract clearly states that individuals performing direct care services under the contract would be HHNF's employees. HHNF was responsible for hiring and firing all individuals providing direct care.

3. In the September 11, 2008, contract, HHNF agreed to enforce all state and federal laws that prohibit discrimination in any form. HHNF also agreed to establish procedures to handle complaints of discrimination involving services or benefits under the contract.

4. On June 30, 2009, MCSS signed another contract with HHNF for the period July 1, 2009, through June 30, 2010. The contract required HHNF to provide homemaker, personal care, and in-home respite services to MCSS' elderly clients.

5. The June 30, 2009, contract required all individuals performing direct care to MCSS's clients to be considered as HHNF's employees. Additionally, HHNF agreed to comply with all state and federal laws relating to discrimination of any kind. The contract could be terminated by either party upon no less

   
   

   than 30 days’ written notice, or in case of a contract breach, upon no less than 24 hours’ written notice.

6. In a letter dated November 25, 2009, Sarah Stroh, MCSS’s Executive Director, advised HHNF as follows:

   This is formal notification that effective November 30, 2009, Marion County Senior Services (MCSS) is terminating our contract with Helping Hands of North Florida (Provider). Under Section III, Item 2D, of our contract, MCSS has determined that the Provider's general financial condition is not sufficient to assure that the Provider can continue to perform its duties in the manner required by this rate agreement. We have received notification that the employees of the Provider have not been paid for approximately two weeks, and we have submitted payment to the Provider for services rendered in a timely manner. As it is apparent that there are significant financial concerns with the Provider, it is necessary for MCSS to terminate our contract with the Provider effective November 30, 2009.

   
   

   An authorized representative of HHNF acknowledged receipt of the letter on November 30, 2009.

7. During the hearing Petitioner admitted that none of HHNF's direct-care employees received payment for their services for the month of November 2009. She also acknowledged that MCSS called her and her co-workers on November 30, 2009, to advise that HHNF's employees would not be able to work anymore because HHNF was bankrupt.

   
   

8. Petitioner presented no evidence that she was treated differently from other persons providing direct care to MCSS' clients as employees of HHNF. She was not discriminated against by MCSS or HHNF based on her age.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes (2010).

10. It is unlawful for an employer to discriminate against an individual based on the individual’s age. See

    § 760.10(1)(a), Fla. Stat.

    
    

11. The Florida Civil Rights Act (FCRA), Sections 760.01 - 760.11, Florida Statutes, as amended, was patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C Section 2000e et seq. Federal case law interpreting Title VII is applicable to cases arising under the FCRA. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); and Valenzuela v. Globeground North America, LLC, 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

12. Petitioner has the burden of proving by a preponderance of the evidence that Respondent discriminated against her. See Valenzuela, 18 So. 3d at 22.

    
    

13. Petitioner can establish a case of discrimination alleging disparate treatment through direct, statistical, or circumstantial evidence. See Valenzuela, 18 So. 3d at 22.

14. Petitioner presented no evidence of any kind relative to age discrimination. Petitioner admits that she, along with all of her co-workers, were terminated at the same time without payment for their services for the month of November 2009. Petitioner's employment was terminated because her employer, HHNF, was experiencing financial difficulties and lost the contract to provide direct care to MCSS's clients.

15. The record indicates that Petitioner was not treated differently from younger direct care personnel. Petitioner has not met her burden of age discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 14th day of December, 2010.

COPIES FURNISHED:

Laura Coker

10098 Southwest 87th Terrace Ocala, Florida 34481

Robert Kogsnow

Helping Hand of North Florida 7241 Northwest 4th Boulevard Gainesville, Florida 32607

Marion County Senior Services 1101 Southwest 20th Court Ocala, Florida 34471

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.

Docket for Case No: 10-009038

Orders for Case No: 10-009038