STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAJIHA KHAN, )

)

Petitioner, )

)

vs. )

) GOLD & SILVER RESERVE, INC., ) d/b/a JACKSON TRADING COMPANY, )

)

Respondent. )

Case No. 02-2729

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on September 9, 2002, in Titusville, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Wajiha Khan, pro se

640 Emerson Drive, Northeast Palm Bay, Florida 32907

For Respondent: Douglas W. Desmarais, Esquire

Smith & Downey, P.A.

One West Pennsylvania Avenue Suite 950

Baltimore, Maryland 21204

STATEMENT OF THE ISSUE

The issue is whether Respondent is an "employer" as defined by Sections 760.02(7), Florida Statutes (2000). (All references

to statutes are to Florida Statutes (2000) unless otherwise stated.)

PRELIMINARY STATEMENT

On June 4, 2002, the Florida Commission on Human Relations (the Commission) issued a "Notice of Determination: No Jurisdiction." The Commission found that Respondent was not an employer during the time at issue in this proceeding because Respondent did not employ 15 or more employees for each working day in each of 20 or more calendar weeks in the current (2000) or preceding year (1999) within the meaning of Section 760.02(7). On or about July 8, 2002, Petitioner filed a Petition for Relief, and the Commission referred the matter to DOAH to conduct an administrative hearing.

At the hearing, Petitioner testified in her own behalf, presented the testimony of another witness, and submitted

10 exhibits for admission into evidence. Respondent presented the testimony of one witness and submitted seven exhibits for admission into evidence. The identity of the witnesses and exhibits and any attendant rulings are set forth in the Transcript of the hearing filed on September 27, 2002.

During the hearing, the ALJ granted Petitioner permission to file three additional exhibits after the hearing as "late- filed exhibits." Petitioner submitted 16 new exhibits and re- submitted Petitioner's Exhibit Number 2 that had been previously

rejected by the ALJ. Respondent timely filed a Motion to Strike on October 4, 2002, requesting that the ALJ strike all but a portion of one of Petitioner's late-filed exhibits. The Motion to Strike is granted. The parties timely filed their Proposed Recommended Orders (PROs) on October 7, 2002.

FINDINGS OF FACT

1. Section 760.02(7) defines an "employer" as any person employing 15 or more employees for each working day in each of

   20 or more calendar weeks in the current or preceding year. The current year, in this case, is the calendar year 2000, and the preceding year is the calendar year for 1999.

2. Petitioner presented no evidence of the number of employees employed by Respondent for the current and preceding years at issue in this case. Petitioner submitted several documents and called two witnesses, including herself. None of the evidence which was submitted by the Petitioner identified the number or names of employees employed by Respondent during the calendar weeks at issue.

3. Petitioner argued during the hearing that several companies are related entities either as sibling companies with a common parent or as members of an affiliated group. However, Petitioner failed to submit any evidence of their relationship by stock ownership or common operating control that may have demonstrated their status as related entities. Moreover,

   Petitioner failed to show the number and identity of the employees of those entities was such that the alleged related group of entities satisfied the statutory definition of an employer.

4. Petitioner called one witness beside herself (Dawson).

   
   

   Dawson was a subcontractor for Respondent and not an employee.

   
   

5. Assuming arguendo that Dawson was Respondent's "employee" for the year 2000, it does not affect the outcome of this case. Respondent's records and testimonial evidence show that Respondent would only have had 15 or more employees for seven weeks during the 2000 calendar year. Those weeks are the weeks of September 4, 11, 18, 25, 2000; and October 2, 9, and 16, 2000. Even with the hypothetical addition of Dawson as an employee, Respondent would still be 13 weeks short of satisfying the statutory definition of an employer in Section 760.02(7).

6. Dawson suggested in his testimony that other individuals may have been present at Respondent's place of business during the period in which he performed services for Respondent. However, no testimony or evidence showed the precise weeks those individuals were supposedly working on behalf of Respondent or identified all of those individuals.

7. Petitioner's testimony consisted of her blanket statement that Respondent had 15 or more employees during the 2000 calendar year. Petitioner did not identify the employees,

   did not identify the weeks such employees worked for Respondent, and did not show that the employees worked each calendar day for the 20 weeks mandated by statute.

8. Petitioner's first day of employment was May 4, 2000, and her last day of employment was on October 20, 2000. Petitioner was not present in the workplace for a significant portion of the 2000 calendar year and is not competent to testify of her own knowledge regarding the number and identity of employees during the weeks Petitioner was not employed by Respondent.

9. Petitioner referred to two other individuals in the course of the hearing as employees of Respondent. They were Mr. Reid Jackson (Jackson) and Mr. Barry Downey (Downey).

10. Jackson began performing subcontracted services for Respondent in August of 2000. He was not an employee of Respondent and was not on Respondent's payroll. He was a subcontractor. Respondent made payments to Jackson & Escher, Inc., for the services provided by Jackson.

11. Assuming arguendo that Jackson was an employee during the period in which he performed services for Respondent, the hypothetical addition of both Jackson and Dawson would not define Respondent as an employer in Section 760.02(7). The hypothetical addition of Jackson and Dawson would mean that Respondent maintained 15 or more employees for only 11 weeks

    during the calendar year of 2000. Those weeks would have been August 7, 14, 21, 28; September 4, 11, 18, 25; and October 2, 9,

    and 16.

    
    

12. Petitioner identified Downey as a Director of Respondent but did not suggest the dates during which Downey served in that capacity. Dawson "think[s]" that Downey is a partner and general counsel for Respondent but cannot identify the dates that Downey purportedly acted in either capacity. Dawson also identified Downey as an "officer" and "owner" of Respondent. Dawson did not identify the purported office held by Downey, nor did he identify any dates on which Downey held a position of employment with Respondent.

13. Respondent did not pay any salary or wages to Downey for the calendar years 1999 and 2000. Even if Downey were a director during the relevant period in this case, Downey was not an employee for 1999 or 2000 for purposes of Section 760.02(7).

14. Respondent employed a maximum of five individuals during the 1999 calendar year. Respondent's evidence regarding its number of employees during 1999 was uncontroverted by Petitioner.

15. Respondent did not employ 15 or more employees for

    
    

    20 weeks during the 2000 calendar year. The week of October 16, 2000, was the single week in which Respondent employed 15 individuals for each working day of a calendar week. Respondent

    showed: the name of each employee employed by Respondent for each and every workweek for the 2000 calendar year; the weeks in which these employees worked for Respondent; and Respondent's total number of employees employed for each working day for each calendar week of 2000.

    CONCLUSIONS OF LAW

    
    

16. DOAH has jurisdiction over the parties and the subject matter of the instant action. Section 120.57(1). DOAH provided the parties with adequate notice of the administrative hearing.

17. Petitioner has the burden of proof in this case.

    
    

    Petitioner must show by a preponderance of the evidence that Respondent was an employer for the purposes of Section 760.02(7). Section 120.57(1)(j). See Singletary v. Photo Plus, Inc., 2002 WL 569479 (Fla.Div.Admin.Hrgs.) (Petitioner's hearing involved a referral to DOAH from the Commission's determination of no jurisdiction based on the definition of an employer.).

    See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

    
    

    S. Ct. 1817 (1973); Texas Dept. of Community Affairs v. Burdine,

    
    

    450 U.S. 248, 101 S. Ct. 1089 (1981); Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).

18. Petitioner failed to satisfy her burden of proof.

Petitioner failed to show by a preponderance of evidence that Respondent was an employer, within the meaning of Section 760.02(7), during the periods at issue in this case. Rather,

the preponderance of evidence shows that Respondent did not employ 15 or more employees for each working day in each of

20 or more calendar weeks in the calendar years 2000 and 1999.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion of Law, it is

RECOMMENDED that the Commission enter a Final Order finding that Respondent is not an employer, within the meaning of Section 760.02(7), and dismissing the Petition for Relief/Charge of Discrimination for lack of jurisdiction.

DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2002.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Douglas W. Desmarais, Esquire Smith & Downey, P.A.

One West Pennsylvania Avenue Suite 950

Baltimore, Maryland 21204

Wajiha Khan

640 Emerson Drive, Northeast Palm Bay, Florida 32907

Robert D. Moses, Esquire Wiederhold, Moses & Rubin

560 Village Boulevard Brandywine Centre II, Suite 240 West Palm Beach, Florida 33409

Cecil Howard, General Counsel 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: 02-002729

Orders for Case No: 02-002729