This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on November 8, 2018, and April 12, 2019, at sites in Tallahassee
and Miami, Florida.
For Petitioner: Jose O. Casteñeda, Esquire
For Respondent: Mark R. Antonelli, Esquire
The issue in this case is whether an employment relationship existed between Petitioner and Respondent, which would permit Petitioner to seek an administrative remedy for
Civil Rights Act.
On August 3, 2018, the Florida Commission on Human Relations (the "FCHR") issued a Determination, stating that its investigation into Petitioner Joseph Quinn's complaint that Respondent L.S.P. Officials, Inc., had discriminated against him on the basis of his race (white) and age (over 40) had uncovered no reasonable cause for believing that an unlawful employment practice had occurred. Specifically, the FCHR found that
Mr. Quinn's "charge must fail" because he had been unable "to show that he had an employee-employer relationship with Respondent." Thereafter, Mr. Quinn filed a Petition for Relief, which the FCHR transmitted to the Division of Administrative Hearings ("DOAH") on August 30, 2018.
The final hearing began on November 8, 2018. Soon after the hearing started, however, it became evident to everyone that the parties were not prepared to address adequately the question of whether Mr. Quinn had been an independent contractor of Respondent (as opposed to Respondent's employee)——a point he had conceded, to his detriment, during the FCHR's investigation.
This particular issue is significant because it bears on subject matter jurisdiction. With the parties' agreement, the
undersigned adjourned the hearing, to be reconvened at a later date.
On December 27, 2018, Respondent moved to dismiss the petition based on the allegedly undisputed fact that Mr. Quinn had not been its employee. Mr. Quinn opposed the motion in writing, and, on January 25, 2019, the undersigned entered an Order Denying Motion to Dismiss, being unable to conclude that Respondent had demonstrated the nonexistence of a factual dispute concerning Mr. Quinn's employment status. The undersigned simultaneously severed the employee/independent contractor dispute, so that a hearing limited to that issue could be conducted ahead of the hearing on the merits, should one be necessary.
The hearing to determine Mr. Quinn's employment status ultimately took place on April 12, 2019. Mr. Quinn testified on his own behalf and submitted Petitioner's Exhibits 1 and 2, which were received into evidence. In its case, Respondent called Freddie Williams as a witness. Respondent's Exhibits 1 and 2 were admitted into evidence as well.
The final hearing transcript was filed on May 3, 2019. Each party timely filed a proposed recommended order on or before the deadline established at hearing, which was May 23, 2019.
Unless otherwise indicated, citations to the official statute law of the state of Florida refer to Florida Statutes 2018.
Respondent L.S.P. Officials, Inc. ("LSPO"), is a Florida profit corporation, formed in October 2013 by Freddie Williams, who has been the company's president at all times. Since 2013, Mr. Williams has been the Supervisor of Basketball Officials ("Supervisor") for the Sun Conference, an athletic conference of small colleges in the National Association of Intercollegiate Athletics ("NAIA").
As Supervisor, Mr. Williams assigns referees and umpires, whom he also recruits, to officiate at Sun Conference basketball games. Officials work the games in three-man crews, and each man is paid a flat, per-game fee for his performance. Compensation for the officials comes from the conference, which collects money for this purpose from the member schools, and is paid to the officials through LSPO. After becoming Supervisor, Mr. Williams incorporated LSPO, at the behest of the Sun Conference, to serve as the clearinghouse for distributing officials' fees. LSPO conducts no other business and, according to Mr. Williams, has never had any employees——a matter presently in dispute.
Petitioner Joseph Quinn ("Quinn") is a full-time employee of the U.S. Department of Homeland Security in
south Florida. His avocation is officiating basketball games, which he has done on the side since at least 2003. During this time, Quinn has officiated at the high school level and for small college programs. He worked Sun Conference games from the 2008-09 season through the 2013-14 season (the latter being Mr. Williams's first season as Supervisor).
On August 24, 2013, before the beginning of the 2013-14 season, Quinn signed the following agreement (the "Officials Contract"):
Quinn must establish the existence of an employment relationship because FCHR does not have jurisdiction to hear claims involving alleged discrimination against independent contractors. Not surprisingly, therefore, Quinn's current litigating position is that he was not an independent contractor, but an employee of LSPO——which, awkwardly for Quinn's theory, had not yet come into being as of August 24, 2013. The Officials Contract is obviously a major stumbling block for Quinn inasmuch as it clearly describes him as an independent contractor and conspicuously makes no mention of LSPO. Mr. Williams, moreover, is identified in the Officials Contract as "Supervisor of Basketball Officials," his Sun Conference title, and——for all that appears in the agreement——he seems to have been acting as an agent of the Sun Conference and not in his personal capacity or as an officer of LSPO.
Based solely on the Officials Contract, the most reasonable and natural conclusion is that Quinn agreed to provide basketball officiating services for one season to the Sun Conference as an independent contractor. Other facts bear out this conclusion.
The 2013-14 basketball season began in October or November of 2013 and lasted until March 2014. During that season, Quinn was assigned five games in the Sun Conference, and he officiated each of them, declining none. (As is customary in
this line of work, a sports official for the Sun Conference may "turn back" an assignment for any reason, but doing so is frowned upon.) For each game, regardless of the amount of time involved, Quinn received a fee of $175.00, which, as mentioned, was paid by the colleges in the conference, through LSPO. LSPO did not charge any fee to the officials for its role as middleman. Nor did LSPO (or the Sun Conference) withhold federal income, Social Security, or Medicare taxes from the officials' fees.
As an official, Quinn was responsible for purchasing his own uniforms, which needed to comply with the National Collegiate Athletic Association ("NCAA") and NAIA rules, as applicable. At a preseason meeting, Mr. Williams gave the officials a whistle bearing the Sun Conference logo, which they could use for games if they wanted, and a conference polo shirt, which could be worn off court.
Quinn received no reimbursement for travel expenses, including food and lodging, incurred while working as a Sun Conference official——just the flat fee of $175.00 per game.
During the course of a basketball game, the three officials on the court had the exclusive authority to call fouls, stop and resume play, and otherwise control the conduct of the contest. Officiating is a specialized skill that requires not only thorough knowledge of the game and its rules,
but also an ability to exercise good judgment on the fly. Neither Mr. Williams nor anyone else exerted control over Quinn's on-court performance, either in regard to the means he should employ or the results to be obtained.
As Supervisor, Mr. Williams gave Quinn and the other Sun Conference officials a high degree of autonomy. He instructed them to arrive at the game site 60 minutes before a contest and to dress professionally on the job when not in uniform. In addition, at the preseason meeting mentioned previously, Mr. Williams reviewed NCAA rules, noted points of emphasis from the conference's standpoint, provided some guidance regarding the mechanics of officiating, and highlighted differences between NCAA and NAIA rules. Otherwise, however, he left the officials largely to themselves.
Quinn was not precluded by his relationship with the Sun Conference from officiating in other leagues.
Quinn did not receive an IRS Form W-2 from LSPO or the Sun Conference.
Following the 2013-14 season, Mr. Williams, as Supervisor, elected not to renew Quinn's contract as a conference official. Mr. Williams informed Quinn of this decision in the following letter:
Notably, nothing in the foregoing letter suggests that Mr. Williams acted in any capacity other than Supervisor, e.g., as president of LSPO, nor does the letter support the notion that LSPO (which is not mentioned) terminated Quinn's employment.
Ultimate Factual Determinations
It is determined that Quinn was not an employee of LSPO. Rather, Quinn was an independent contractor of the Sun Conference, and, in that capacity, he officiated five basketball games during the 2013-14 season, receiving a fee of $175.00 per game for his services as a sports official.
CONCLUSIONS OF LAW
DOAH has personal jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes. Whether DOAH has subject matter jurisdiction is the issue of law in dispute.
The Florida Civil Rights Act of 1992 (the "FCRA") is codified in sections 760.01 through 760.11, Florida Statutes. When "a Florida statute [such as the FCRA] 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 interpretation is harmonious with the spirit and policy of the Florida legislation." Brand v. Fla. Power Corp.,
633 So. 2d 504, 509 (Fla. 1st DCA 1994). Therefore, the FCRA should be interpreted, where possible, to conform to Title VII of the Civil Rights Act of 1964, which contains the principal federal antidiscrimination laws.
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 any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
Section 760.10(7) provides as follows:
It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
The term "'[e]mployer' 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." § 760.02(7), Fla. Stat. The term "'[e]mployment agency' means any person regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer, and includes an agent of such a person."
§ 760.02(7), Fla. Stat. The term "employee" is not defined.
The U.S. Eleventh Circuit Court of Appeals has held that 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, "any person could sue an 'employer' under the statute regardless of whether [he or] she actually had an employment relationship with that employer." Id. at 1243. The undersigned, following Brand,
concludes that the Florida Legislature intended to limit the scope of the FCRA to specific employment relationships, just as Title VII is so limited.
The concomitant questions of whether the plaintiff/petitioner is an employee and whether the respondent/defendant is an employer bear on subject matter jurisdiction. Id. at 1242.
Because an independent contractor is not an employee, an independent contractor cannot maintain a claim under
Title VII——or, correspondingly, under the FCRA——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 contractor); Perry v. Health Mgmt. Assocs., 2014 U.S. Dist.
LEXIS 156903, at *4 (M.D. Fla. Nov. 5, 2014)("The 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 suit.").
For purposes of Title VII, the term "employee" "is to be construed in light of general common law concepts." Cobb, 673 F.2d at 340-41. The undersigned concludes, again following Brand, that the same common law analysis should be used in deciding, in actions brought under the FCRA, whether a
plaintiff/petitioner was an employee or an independent contractor.
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, Agency (Second) § 220 (Am. Law
Inst. 1958), as follows:
In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
the extent of control which, by the agreement, the master may exercise over the details of the work;
whether or not the one employed is engaged in a distinct occupation or business;
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;
the skill required in the particular occupation;
whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
the length of time for which the person is employed;
the method of payment, whether by the time or by the job;
whether or not the work is a part of the regular business of the employer;
whether or not the parties believe they are creating the relation of master and servant; and
whether the principal is or is not in business.
The undersigned considered and weighed all of these factors in reaching the ultimate determination that Quinn was an independent contractor; it is the undersigned's judgment, as the trier-of-facts, that the totality of the evidence tips the balance so strongly in favor of this finding that a detailed analysis of each individual factor is unnecessary.
LSPO argues that section 440.02(15)(d)11., Florida Statutes, which defines (in part) the term "employee" for purposes of the Workers' Compensation Law, should be taken into account, as well. This statute provides as follows:
A person who performs services as a sports official for an entity sponsoring an interscholastic sports event or for a public entity or private, nonprofit organization that sponsors an amateur sports event [is not an "employee"]. For purposes of this subparagraph, such a person is an independent contractor. For purposes of this subparagraph, the term "sports official" means any person who is a neutral participant in a sports event, including, but not limited to, umpires, referees, judges, linespersons, scorekeepers, or timekeepers. This subparagraph does not apply to any person employed by a district school board who serves as a sports official as required by the employing school board or who serves as a sports official as part of his or her responsibilities during normal school hours.
Section 440.02(15)(d)11. accords with the determination that the undersigned reached independently by
