STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BERNARD BROOKS, MICHAEL HARRISON, MARK SMITHERS, CODY LUCAS, DAVID OKKER, MARVIN L. RAGLAND, JACOB P. MILLER, Case Nos. 17 5010 KYLIE SMITHERS, AND FAITH 17 5066 TAPPAN, 17 5068 17 5070 Petitioners, 17 5072 17 5074 vs. 17 5076 17 5078 XENCOM FACILITY MANAGEMENT, LLC, 17 5080 Respondent. _______________________________/ RECOMMENDED ORDER Adminis trative Law Judge John D. C. Newton, II , of the Division of Administrative Hearings (Division) conducted the final hearing in this matter on December 1, 2017, in Gainesville, Florida. APPEARANCES For Petitioner s : Robert W. Bauer, Esquire Law Office of Robert W. Bauer P.A. Suite 1B 2610 Northwest 43rd Street Gainesville, Florida 32606 For Respondent: Robert E. Luxen, Esquire Hallet & Perrin Suite 2400 1445 Ross Avenue Dallas, Texas 75202 STATEMENT OF THE ISSUE Whether Respondent, Xencom Facility Management, LLC (Xencom) , terminated the employment of Petitioners solely because the contract under which they were working ended. PRELIMINARY STATEMENT Michael Harrison, Mark Smithers, Cody Lucas, David Okker, Marvin L. Ragland, Jacob P. Miller, Kylie Smithers, Faith Tappan, and Bernard Brooks filed charges of discrimination with the Florida Commission on Human Relati ons (Commission) against The MG Herring Group, Inc. (MG Herring) , and Xencom Facility Management, LLC, under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes (2016). 1/ Mark Smithers alleged that MG Herring discriminated against him in employment on account of his sex by harassing him and retaliated against him for complaining. Michael Harrison alleged that MG Herring discriminated against him in employment on account of his sex by harassing him and retaliated against him for complainin g. The other seven Petitioners alleged that MG Herring retaliated against them because they had opposed a practice that was unlawful under section 760.10. All Petitioners asserted that MG Herring was their employer by virtue of a joint employer relations hip with Xencom. The same nine Petitioners filed charges of discrimination by discharge from employment against Xencom under the Florida Civil Rights Act of 1992 with the Commission. Mr. Harrison claimed Xencom discriminated against him on account of his sex and retaliated against him for complaining. Mr. Smithers claimed that Xencom discriminated against him on account of his sex and retaliated against him for complaining. All Petitioners claimed that Xencom retaliated against them for opposing an unlaw ful employment practice. In each case, the Commission issued a ÐDetermination: No Reasonable Cause.Ñ The Commission concluded that MG Herring did not employ Petitioners. The Commission also concluded that Xencom terminated PetitionersÓ employment becaus e it lost the contract under which Petitioners were working, not for the reasons charged. All nine Petitioners filed a Petition for Relief challenging the CommissionÓs determination. The Commission transmitted the cases to the Division to conduct a final hearing and issue a recommended order. The claims against Xencom were consolidated under DOAH Case No. 17 5010. The claims against MG Herring were consolidated under DOAH Case No. 17 5067. For purposes of discovery and final hearing, the consolidated cases traveled together. The undersigned bifurcated the issues of the cases. Whether MG Herring was PetitionersÓ employer and whether Xencom unlawfully terminated PetitionersÓ employment were separated from the issues of whether MG Herring and Xencom com mitted the unlawful actions alleged. The issues of whether MG Herring was PetitionersÓ employer and why Xencom discharged Petitioners were heard first. All evidence admitted at the final hearing was accepted and considered in each case. At the final hear ing, Petitioners presented testimony from Norine Bowen, Michael Harrison, Kylie Smithers, and Tina Wilson. PetitionersÓ Exhibits 3 and 17 were admitted into evidence. MG Herring presented the testimony of Norine Bowen and Tina Wilson. MG Herring Exhibi ts 1 through 3, 8, 9 through 17, 41, 59, 61, and 63 were admitted. Xencom presented testimony from Michael Ponds. Xencom Exhibits 1 through 32 were admitted. After the hearing, the parties ordered a transcript of the proceedings. It was filed January 10 , 2018. The parties timely filed proposed recommended orders. They have been considered in the preparation of this Recommended Order. FINDING S OF FACT 1. Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to ret ail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ H eathbrook (Market Street) in Ocala, Florida. 2. Michael Ponds, XencomÓs president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as m anager for Herring Ocala, LL C. The other was Ber nard E. McAuley, identified as m anager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Proper ty Group, LLC (Property Group) , operated Market Street. 3. The contracts, in terms stated in an exhibit to them, established a fixed price for the yearÓs work, stated the scope of services, and detailed payment terms. They also identified labor and labor related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expens es, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. 4. The contracts specify that Xencom is an independent contractor. Each states: ÐContractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of ContractorÓs Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.Ñ 5. The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contra cts with different facilities. 6. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. 7. I n 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was XencomÓs Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. 8. Xencom hired the remaining Petitioners to work at Market Street under Mr. HarrisonÓs supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, ÐFurther, I understand and agree that my employment is for no def inite period and I may be terminated at any time without previous notice.Ñ All of the Petitioners also received XencomÓs employee handbook. 9. As XencomÓs Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day to day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. 10. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Propert y Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll , procuring supplies, and managing XencomÓs equipment at the site. 11. Xencom provided Petitioners work uniforms that bore XencomÓs name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitio ners used at work. 12. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify PetitionersÓ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. 13. There is no evidence that MG Herring or Property Group employed 15 or more people. 14. Property Group hired Tina Wilson as Market StreetÓs on site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His pr imary Property Group contact was General Manager Norine Bowen, who was not located at the property. 15. Ms. WilsonÓs duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, constructio n management, and contract management. She managed approximately 40 contracts at Market Street, including XencomÓs three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. WilsonÓs time. 16. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full time work, Ms. S mithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. 17. Ms. Wilson was XencomÓs point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. 18. Friction and disagreements arose quickly between Mr. Harris on and Ms. Wilson. They may have been caused by having a property manager representative on site after Mr. HarrisonÓs years as either the manager representative himself or as Xencom supervisor without a property manager on site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. 19. On November 21 , 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of ÐOpen your eyes about Market Street.Ñ It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alco hol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drin k and that Ms. Smithers was underage. 20. The email claimed that during a tree lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from a n elementary school and their parents were present and that Ms. Wilson was Ðthree sheets to the wind.Ñ The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. 21. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property GroupÓs office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employeeÓs failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the emailÓs allegations. The participants also discussed a number of dissatisfactions with Mr. HarrisonÓs performance. 22. Near the end of a discussion about the anonymous email, this exchange occurred: 2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Ga rrett, and youÓre meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinki ng on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I donÓt know what to make of it. IÓm just here to do an investigation like IÓm supposed to do and David is here to pick up the pieces and meet with his folks one on one, and weÓll see where this takes us. 23. This exchange and the remainder of the recording do not support a finding that Property Group controlled XencomÓs actions or attempted to control them. The participants were responsibly discu ssing a serious complaint they had received, their plan to investigate it, and pre existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. 24. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. 25. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to XencomÓs Human Resources Manager and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. HarrisonÓs and Mr. SmithersÓ sex life and menÓs genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. Ho wever, they had not executed any. 26. Xencom terminated PetitionersÓ employment on December 21, 2016. Xencom no longer needed PetitionersÓ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners. CONCLUSIONS OF LAW 27 . The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties. §§ 120.569 and 120.57(1), Fla. Stat. (201 7 ). 28. Petitioners seek relief from an unlawful employment practice under section 760.10(1) and (7). These sections prohibit an employer from discriminating against an employee on account of sex and retaliating for an employee opposing an unlawful employment practice. 29. Mr. Harrison and Mr. Smithers argue that Xencom terminated their employment because of their sex, pointing to the allegations about Ms. WilsonÓs alleged comments and questions. All Petitioners allege that Xencom terminated them in retaliation for their complaints about Ms. WilsonÓs alleged comments an d questions. 30. Petitioners must prove t he i r claim s of discrimination and retaliation by a preponderance of the evidence. DepÓt of Banking & Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996); City of Hollywood v. Hogan , 986 So. 2d 634, 642 ( Fla. 4th DCA 2008 ) . 31. What the reason is for an employeeÓs termination is a factual matter. The opinion in Russell v. KSL Hotel Corp oration , 887 So. 2d 372 (Fla. 3d DCA 2004) , illustrates this clearly. Ms. Russell brought an action against her former employer, KSL Hotel Corporation, for sexual harassment and retaliatory discharge. The jury found for her on bo th claims and awarded $1,516,00 in damages. The hotel filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Tri al. The trial court granted the motion. 32. The Third District Court of Appeal reversed because the record contained evidence that would support a factual determination that the hotel harassed and retaliated against Ms. Russell. The courtÓs discussio n of the retaliation claim emphasized the presence of evidence that, reasonably interpreted, showed a causal connection between her sexual harassment complaint and her discharge. Both the occurrence of sexual harassment and the reason for discharge were m atters of fact for the jury. 33. Here the weight of the persuasive, credible evidence does not prove that Xencom terminated Petitioners in retaliation or terminated Mr. Harrison and Mr. Smithers on account of their sex. Xencom terminated Petitioners be cause the contract they were hired to work on was terminated. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final o rder denying the petitions of all Petitioners. DONE AND ENTERED this 1 5 th day of May , 2018 , in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Park way 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 1 5 th day of May, 2018 . ENDNOTE S 1/ All citations to Florida Statutes are to the 201 6 codification unless otherwise noted. 2/ Mr. Harrison testified that he accidentally recorded the meeting by leaving his recorder in the meeting room earlier in the day. The recording was admitted over objection. When Mr. Harrison initially disclosed the recording, he lied about how it was created. This admitted willingness to lie affected the credibility and persuasiveness of Mr. HarrisonÓs testimony. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Espl anade Way , Room 110 Tallahassee, Florida 32399 7020 (eServed) Robert W. Bauer, Esquire Law Office of Robert W. Bauer P.A. Suite 1B 2610 Northwest 43rd Street Gainesville, Florida 32606 (eServed) Robert E. Luxen, Esquire Hallet & Perrin Suite 2400 1445 R oss Avenue Dallas, Texas 75202 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 7020 (eServed) NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right t o 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: 17-005010

Orders for Case No: 17-005010