STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANDY M. LOMBARDO,

Petitioner,

vs.

LIPTON INSURANCE EXAMS, INC.,

Respondent.

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) Case No. 04-1320

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RECOMMENDED ORDER

A formal hearing was conducted in this case on June 14, 2004, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Randy M. Lombardo, pro se

321 Stone House Road Tallahassee, Florida 32301-3355

For Respondent: Julius F. Parker, III, Esquire

Butler Papas Weihmuller Katz Craig LLP 3600 Maclay Boulevard, Suite 101

Tallahassee, Florida 32312 STATEMENT OF THE ISSUE

The issue is whether the Florida Commission on Human Relations (FCHR) has jurisdiction over Petitioner's claim that Respondent discriminated against him in violation of Section 760.10(1), Florida Statutes (2003).

PRELIMINARY STATEMENT

On December 8, 2003, Petitioner Randy M. Lombardo (Petitioner) filed a Charge of Discrimination against Respondent Lipton Insurance Exams, Inc. (Respondent). The charge alleged that Respondent had discriminated against him based on his disability.

FCHR issued a Determination: No Jurisdiction on March 24, 2004. FCHR also issued a Notice of Determination: No Jurisdiction. FCHR found that it lacked jurisdiction because Respondent was not an employer as defined in Section 760.02(7), Florida Statutes (2003).

On April 12, 2004, Petitioner filed a Petition for Relief with FCHR. On April 15, 2004, FCHR referred the case to the Division of Administrative Hearings.

A Notice of Hearing dated April 27, 2004, scheduled the hearing for June 14, 2004.

During the hearing, Petitioner testified on his own behalf and presented the testimony of four witnesses. Petitioner offered one exhibit, which was accepted into evidence.

Respondent presented the testimony of one witness. Respondent offered one exhibit, which was accepted into evidence.

The parties did not file a transcript of the proceeding.

Respondent filed a Proposed Recommended Order on June 23, 2004.

As of the date of issuance of this Recommended Order, Petitioner has not filed proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. Respondent has never employed 15 or more employees at any point in time. At the most, Petitioner has employed three employees, the owner and two other people including Petitioner.

2. Lab One/Exam One may employ more than 15 people.

   
   

   However, Respondent's only relationship with Lab One/Exam One is as an independent contractor. At no time material to this case has Respondent or its owner acted as an agent, representative, or employee for Lab One/Exam One.

3. In his Petition for Relief, Petitioner states that Respondent is an independent contractor that is affiliated with Exam One, a world-wide medical exam company. According to the petition, Respondent uses a computer program known as Exam Link to send bi-monthly bills to Exam One for services rendered. Petitioner also alleges that Lab One/Exam One uses e-mail or facsimile transmissions to request Respondent to perform medical exams.

4. During the hearing, Petitioner testified that Lab One/Exam One had sufficient influence over Respondent to ensure that Petitioner received his final paycheck from Respondent. However, the witness Petitioner subpoenaed to provide testimony in support of this proposition did not make an appearance.

   Petitioner's attempt to show that Respondent's relationship with Lab One/Exam One was based on more than a contract was

   unsuccessful.

   
   

   CONCLUSIONS OF LAW

   
   

5. 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 (2003).

6. Petitioner has the burden of proving by a preponderance of the evidence that Respondent is an employer as defined in Section 760.02, Florida Statutes (2003). See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)(claimant has the burden of proving a cognizable claim of discrimination).

7. Section 760.02 (7), Florida Statutes (2003), states as follows:

   (7) "Employer" 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 person.

   
   

8. Section 760.10, Florida Statutes (2003), prohibits "employers" from engaging in unlawful employment practices. The prohibitions against discrimination apply only if the employer meets the definition in Section 760.02(7), Florida Statutes.

9. In this case, Respondent was not an employer as defined in the statute. Respondent never had 15 or more employees for

   20 or more weeks in either of the two relevant calendar years.

   
   

   FCHR correctly determined that it did not have jurisdiction in this case. It follows that the Division of Administrative Hearings also lacks jurisdiction.

10. Respondent seeks an attorney's fee pursuant to Section 760.11(13), Florida Statutes (2003). That statutory provision gives a "court," not an Administrative Law Judge, discretion to award an attorney's fee to the prevailing party. In any event, the facts of this case do not establish that Petitioner, in his pro se capacity, proceeded to hearing with full knowledge that Respondent, as an independent contractor, was not subject to FCHR's jurisdiction pursuant to Chapter 760, Florida Statutes (2003). Therefore, Respondent is not entitled to an attorney's fee.

RECOMMENDATION

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

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for Relief for lack of jurisdiction.

DONE AND ENTERED this 29th day of June, 2004, 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 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2004.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Randy M. Lombardo

321 Stone House Road Tallahassee, Florida 32301-3355

Julius F. Parker, III, Esquire

Butler Pappas Weihmuller Katz Craig LLP 3600 Maclay Boulevard, Suite 101

Tallahassee, Florida 32312

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: 04-001320

Orders for Case No: 04-001320