STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

JIMMY D. CLIFTON, EEOC Case No. 15D201300275

Petitioner, FCHR Case No. 2013-00616

v. DOAH Case No. 13-3856

BROOKS LOGGING COMPANY, FCHR Order No. 14-013

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Jimmy D. Clifton filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2012), alleging that Respondent Brooks Logging Company committed an unlawful employment practice on the basis of Petitioner’s age (DOB: 10-26-43) by failing to hire Petitioner for employment.

The allegations set forth in the complaint were investigated, and, on August 12, 2013, the Executive Director issued a determination finding that there was reasonable cause to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held by video teleconference at sites in Pensacola and Tallahassee, Florida, on January 22, 2014, before Administrative Law Judge James H. Peterson, III. The hearing was conducted solely on the issue of whether Respondent had sufficient number of employees to be covered by the Florida Civil Rights Act of 1992.

Judge Peterson issued a Recommended Order of dismissal, dated February 11,

2014.

The Commission panel designated below considered the record of this matter and

determined the action to be taken on the Recommended Order.

Findings of Fact

A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. In the absence of a transcript of the proceeding before the

Filed April 16, 2014 10:26 AM Division of Administrative Hearings

Administrative Law Judge, the Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988). Accord, Gantz, et al.

v. Zion’s Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. 11-048 (June 6, 2011), Mack v. Agency for Persons with Disabilities, FCHR Order No. 11-026 (March 17, 2011), Hall v. Villages of West Oaks HOA, FCHR Order No. 08-007 (January 14, 2008), Beach-Gutierrez v. Bay Medical Center, FCHR Order No. 05-011 (January 19, 2005), and Waaser v. Streit’s Motorsports, FCHR Order No. 04-157 (November 30,

2004).

We adopt the Administrative Law Judge’s findings of fact.

Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

We note that the Administrative Law Judge concluded, “Rather than providing proof of the number of Respondent’s employees, Petitioner argues that because Respondent used the services of an agent employee-leasing company, that the number of employees of that leasing company should be attributed to Respondent. Petitioner makes this argument without any evidence of ownership or control between Respondent and the employee-leasing company. On the other hand, evidence submitted by Respondent indicates that there is no common ownership or control between Respondent and the employee-leasing company, and that Respondent retained all authority to hire and fire its employees.” Recommended Order, ¶ 21.

While we agree with the Administrative Law Judge’s application of the law to the facts found in this regard, we note that in some situations employers and employee- leasing companies could be found to be agents of each other, justifying the attribution of the employees of one entity to the other. See, e.g., Broomfield v. Lundell, 767 P.2d 697 (Ariz. App. 1988), in which an individual doctor employer was found to be the “agent” of an employee-leasing company which provided him an employee, thereby justifying the attribution of the employee-leasing company’s employees to the doctor for the purposes of meeting the 15-employee threshold to be covered by the Arizona Civil Rights Act, and thereby enabling the employee provided by the employee-leasing company to bring a discrimination action against the doctor under the Arizona Civil Rights Act (in this case, the Court found the individual doctor employer “shared” with a representative of the employee-leasing company any decisions as to who would work in the doctor’s office and the determination of worker duty assignments was a “joint function” of the doctor and the employee-leasing company).

With this comment, we adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Neither of the parties filed exceptions to the Administrative Law Judge’s Recommended Order.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this

16th

day of April_ , 2014.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Mario M. Valle, Panel Chairperson; Commissioner Tony Jenkins; and

Commissioner Rebecca Steele

Filed this

16th

day of April_

, 2014,

in Tallahassee, Florida.

/s/ Violet Crawford, Clerk

Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Jimmy D. Clifton 4648 Evelyn Street

Milton, FL 32571

Brooks Logging Company

c/o Dewey Parker Destin, Esq. Anchors Smith Grimsley, PLC 909 Mar Walt Drive, Suite 1014 Fort Walton Beach, FL 32547

James H. Peterson, III, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above

listed addressees this

16th

day of April_ , 2014.

By: /s/ Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 13-003856

Orders for Case No: 13-003856