STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RACHEL WATSON,

vs.

Petitioner,

Case No. 17-6841

ROLLINS RANCHES, LLC,

Respondent.

/

RECOMMENDED ORDER

On February 8, 2018, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing in Vero Beach, Florida. By agreement of the parties, Petitioner and her husband testified by telephone.

APPEARANCES

For Petitioner: Robin Watson, pro se

2921 Old Farm Road

Lancaster, South Carolina 29720

For Respondent: Robert E. Rigrish, Esquire

Qualified Representative

Bodker, Ramsey, Andrews, Rollins, Winograd, & Wildstein

3490 Piedmont Road, Suite 1400

Atlanta, Georgia 30305

STATEMENT OF THE ISSUES

The issues are whether Petitioner was an employee of Respondent and, if so, whether Respondent is guilty of an act of employment discrimination against Petitioner, in violation of section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

By Charge of Discrimination dated April 4, 2017, Petitioner alleged that she is a female over the age of 40 years. From August 2015 through December 2016, she and her husband allegedly worked for Respondent. Petitioner was not paid, but was allegedly informed by Respondent that her pay would be included in her husband's pay, although Respondent failed to do so.

While so employed by Respondent, Petitioner was allegedly sexually harassed on more than one occasion by Bud O'Connor, an employee of Respondent.

On December 13, 2017, the Florida Commission on Human Relations (FCHR) entered a Determination: No Reasonable Cause. The Determination states that Petitioner claimed discrimination based on sex, age, and national origin (United Kingdom). The Determination finds insufficient evidence to support the allegation that Petitioner was an employee of Respondent.

On December 19, 2017, Petitioner filed with FCHR a Petition for Relief (Petition). The Petition claims that Respondent is guilty of employment discrimination based on Petitioner's sex

and British origin. At the start of the final hearing, the Administrative Law Judge confirmed with Petitioner that she was not pursuing a discrimination claim based on age.

At the final hearing, Petitioner called two witnesses and offered into evidence ten exhibits: Petitioner Exhibits 1-10. Respondent called two witnesses and offered into evidence 19 exhibits: Respondent Exhibits 1-19. All exhibits were admitted, although a small part of Respondent Exhibit 8 was stricken as speculative.

Respondent ordered a transcript. The parties filed their proposed recommended orders by March 23, 2018. At that time, the court reporter had not filed the transcript. The administrative assistant of the Administrative Law Judge phoned counsel for Respondent and advised him of this fact. On

March 23, 2018, counsel indicated that the court reporter had advised him that she had sent the transcript to DOAH on

March 12, but he would advise her that it was never received and needed to be filed. The Administrative Law Judge has prepared the recommended order based on his notes of the testimony and exhibits, so the failure to file the transcript with DOAH has been inconsequential and should not preclude the addition of the transcript to the record, if the court reporter later files it.

FINDINGS OF FACT

1. Respondent owns four ranches in Florida, including the Yeehaw Plantation near Yeehaw Junction, as well as a ranch in Texas and a ranch in Georgia. Respondent employs about

   80 persons in its Atlanta offices and at its various ranches.

   
   

2. The Yeehaw Plantation includes 7000 acres of hunt courses, gun dog kennels, and horse stables. To address deficiencies in its gun dog operations at the Yeehaw Plantation, Respondent retained Robin Watson to perform a kennel evaluation in early 2015.

3. A citizen of the United Kingdom, Mr. Watson has earned an international reputation as a breeder, trainer, and handler of gun dogs, mostly British Labradors, and has trained dogs throughout the world. In the United Kingdom, Mr. Watson has served as the highest-level judge for field trials of hunting dogs, and he and his dogs have won several championships.

4. Following the kennel evaluation, Respondent extended Mr. Watson an offer of full-time employment to train its gun dogs and provide his British Labradors for use in Respondent's hunting operations. Upon receipt of the employment offer,

   Mr. Watson informed Respondent that he could accept the job only if he could be joined by Petitioner, who had accompanied him on the kennel evaluation. Petitioner is a female citizen of the United Kingdom and is of British origin.

   
   

5. Respondent agreed to this condition and, to induce

   
   

   Mr. Watson's acceptance, also agreed to pay the visa-application and relocation expenses of Mr. Watson and Petitioner.

   Respondent retained counsel to assist with Mr. Watson's visa. Based on his world-class qualifications as a gun dog trainer, Mr. Watson applied for, and obtained, an 0-1 visa, which is reserved for persons with "extraordinary ability." Petitioner did not qualify for an 0-1 visa, but obtained a B-2 visa, which is reserved for visitors and does not allow employment in the United States. Due to its involvement in securing the visas, Respondent was aware at all times of the type of Petitioner's visa and its prohibition against employment.

6. In August 2015, Petitioner and Mr. Watson moved from the United Kingdom to Florida, where they occupied, as part of Mr. Watson's employment package, a house on the ranch.

   Mr. Watson's supervisor was Bud O'Connor, who is Respondent's ranch administrator. A majority of Mr. O'Connor's time is spent at Respondent's four Florida ranches, but he also visits Respondent's ranch in Texas and ranch in Georgia. While at the Yeehaw Plantation, Mr. O'Connor met with Mr. Watson an average of once weekly.

7. At some point roughly coinciding with complaints voiced by a principal of Respondent in connection with a recent hunt, Mr. O'Connor became dissatisfied with Mr. Watson's work. Part

   
   

   of the dissatisfaction involved Petitioner, whom Mr. O'Connor described as "joined at the hip" with Mr. Watson. Petitioner accompanied Mr. Watson even on the hunts, where the support truck was to have been occupied only by Mr. Watson, as the dog handler, and two employees whose duties were to handle the horses. Mr. O'Connor's frustration with the situation is exemplified by his assumption that, when Mr. Watson drove the trailer off a small bridge on the ranch while talking on his cellphone, he must have been talking to Petitioner, who was not present with him at the time.

8. Mr. O'Connor eventually directed Mr. Watson not to allow Petitioner to join them on the hunts. Mr. Watson objected on the ground that she was his secretary and worried that she would be displeased. But Mr. O'Connor was adamant and, in mid- 2016, also forbade her from attending meetings in the Yeehaw Plantation office.

9. While living at Yeehaw Plantation, Petitioner helped Mr. Watson with the dogs, as she had done before and has done after his employment with Respondent. However, at all times, Petitioner provided her services as a volunteer. At no time did Respondent agree to employ her. Foremost among the reasons not to employ Petitioner was the illegality of such employment: Respondent's operation features the internal controls of a large corporation, so that it would be impossible for one or two

   
   

   persons to conceal an illegal employment decision within the corporate ranks.

10. At no time did Respondent agree to, or in fact, compensate Petitioner directly or indirectly through Mr. Watson. The above-described relocation expenses and housing were inducements to Mr. Watson to accept Respondent's job offer. In July 2016, Respondent provided Petitioner health insurance, but as a dependent of Mr. Watson, whom she had married earlier in the month.

11. In November 2017, Mr. Watson informed Mr. O'Connor that he was quitting, as he did the following month. The timing of Mr. Watson's departure at the start of quail hunting season presented a problem for Mr. O'Connor, who reminded Mr. Watson of the provision of his agreement with Respondent that called for repayment of the relocation expenses in the event of an early termination. Notably, Mr. Watson did not respond that he was entitled to an offset for the services that Petitioner had

    provided.

    
    

    CONCLUSIONS OF LAW

    
    

12. DOAH has jurisdiction of the subject matter.

    
    

    §§ 120.569, 120.57(1), and 760.11(7), Fla. Stat. (2017).

    
    

13. Petitioner bears the burden of proving the material allegations by a preponderance of the evidence. § 120.57(1)(j).

    
    

14. It is an "unlawful employment practice" for "an employer" to discriminate against "any individual" regarding compensation due to the individual's sex or national origin.

    § 760.10(1)(a). The three quoted terms lack definitional provisions detailing the requisite employer-employee relationship, § 760.02, but, clearly, an "unlawful employment practice" can occur only in the context of an employment relationship.

15. Federal case law interpreting Title VII of the Civil Rights Acts of 1964 and 1991 is applicable to cases arising under section 760.10. Fla. State. Univ. v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996). Interpreting Title VII, one Florida court has stated in dictum that a volunteer does not qualify as employee. Gates v. Gadsden Cnty. Sch. Bd., 45 So. 3d

    39, 40 (Fla. 1st DCA 2010) (former employee qualifies as an employee).

16. Title VII defines an "employee" as an "individual employed by an employer." 42 U.S.C. § 2000e(f). A majority of federal circuit courts follow the "threshold remuneration rule," which requires a preliminary showing of remuneration in the form of "'direct compensation, such as salary or wages, or indirect benefits that are not merely incidental to the activity performed' (citation omitted)"; if the plaintiff proves remuneration, the court will consider traditional agency factors

    
    

    to determine whether the requisite employment relationship exists. Boone v. Town of Sheridan, 2016 U.S. Dist. LEXIS 108782 (S.D. Ind. 2016). The "threshold remuneration rule" applies in the Eleventh Circuit, so as to require remuneration for a cause of action under Title VII. Llampallas v. Mini-Circuits, Inc.,

    163 F.3d 1236 (11th Cir. 1998).

    
    

17. Indirect benefits incidental to the volunteer activity may include free training, license tags, auto insurance while the vehicle is used on patrol, and life insurance provided by a municipality to a volunteer reserve police officer. Boone.

These benefits were incidental to the volunteer activity because they were "securely tied to his volunteer role." Id. In the

present case, the sole benefits provided to Petitioner are not even tied to her volunteer role, to which Respondent was, at best, entirely indifferent, but were tied to her relationship to Respondent's employee, Mr. Watson. On the present facts, Petitioner was not an employee, Respondent was not her employer, and Petitioner is unable to state a claim upon which relief may be granted under section 760.10.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief.

DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

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 27th day of March, 2018.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399-7020 (eServed)

Robert E. Rigrish, Esquire Bodker, Ramsey, Andrews, Rollins,

Winograd, & Wildstein

3490 Piedmont Road Northeast, Suite 1400

Atlanta, Georgia 30305 (eServed)

Rachael J. Watson 2921 Old Farm Road

Lancaster, South Carolina 29720 (eServed)

Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 (eServed)

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: 17-006841

Orders for Case No: 17-006841