United States District Court, M.D. Florida, Tampa Division
RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE.
THE COURT is Defendant's Motion for Summary
Judgment, Statement of Undisputed Facts, and attachments
(Dkts. 23 & 24), and Plaintiff's Response in
Opposition, Statement of Material Disputed Facts, and various
attachments (Dkts. 28, 29, 30, 31 & 32). After careful
consideration of the submissions of the parties, the
applicable law, and the entire file, the Court concludes the
motion is due to be denied.
sole issue on summary judgment is whether Plaintiff is an
employee or independent contractor of Defendant for purposes
of Title VII of the Civil Rights Act of 1964 (Title VII) and
the Florida Civil Rights Act (FCRA), section 760.01, et
seq., of the Florida Statutes, for civil rights
violations relating to her pregnancy while she worked for
Defendant. Independent contractors may not seek
redress for violations of these civil rights - only employees
are covered under the statutes. Llampallas v.
Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1242
(11th Cir. 1998). The hybrid test for determining
whether an individual is an employee or independent
contractor under Title VII or the FCRA considers both
common-law principles and the “economic
realities” of the situation, focusing on the
employer's right to control. Cuddeback v. Fla. Bd. of
Educ., 381 F.3d 1230, 1234 (11th Cir. 2004);
Cobb v. Sun Papers, Inc., 673 F.2d 337, 341
(11th Cir. 1982); Holland v. Gee, 719
F.Supp.2d 1361, 1365 (M.D. Fla. 2010); Merrick v. Rinker
Materials of Fla., Inc., 2009 WL 10670503, at *6-7 (M.D.
Fla. 2009). Many factors are considered with no one factor
being dispositive. That Plaintiff signed an independent
contractor agreement with Defendant is not the quintessential
element in deciding the control issue. See Holland,
719 F.Supp.2d at 1365; Spirides v. Reinhardt, 613
F.2d 826, 832-33 (D.C. Cir. 1979) (rejecting exclusive
reliance on contract language in finding work relationship
was one of independent contractor).
both skilled and unskilled services to patients in their
homes, a licensed home health agency must follow certain
requirements by law. See docket 30-2, page 9 (Hagan
deposition, page 27). For example, the home health aide
worker is not required to pay for their certification of home
health aide training; rather, a licensed home health agency
may provide the training. § 400.497(1), Fla.
Stat. (2017) (“Licensed home health agencies may
provide this training”); Fla. Admin. Code R.
59A-8.0095(5)(d)-(j) (“For every home health aide, a
home health agency shall have on file documentation of
successful completion of at least forty hours of training in
[particular] subject areas . . . [a] licensed home health
agency may choose to administer the Home Health Aide
Competency Test . . . in lieu of the forty hours of
training”). Licensed home health agencies must provide
home health aide workers with in-service training each year
as well as training for cardiopulmonary resuscitation.
Fla. Admin. Code R. 59A-8.0095(5)(k) (“home
health aides . . . must receive in-service training each
calendar year. Training must be provided to obtain and
maintain a certificate in cardiopulmonary
resuscitation.”). A licenced home health agency is
required to prepare a written assignment of the home health
aide worker's duties, and the worker must abide by them.
Fla. Admin. Code R. 59A-8.0095(5)(1) (“The
performance of all personal care activities contained in a
written assignment by a licensed health professional employee
or contractor of the home health agency”). The agency
must obtain liability and malpractice coverage for home
health aide workers. § 400.471(3), Fla. Stat.
(2017) (“the home health agency must also obtain and
maintain [malpractice and liability insurance] in an amount
of not less than $250, 000 per claim”).
addition to statutory requirements and regulations placed on
a licensed home health agency such as Defendant, which
necessarily require a fair amount of control, the issue of
control is determined with an eye toward whether the employer
“has the right to control and direct the work of an
individual, not only as to the result to be achieved, but
also as to the details by which that result is
achieved.” Cobb, 673 F.2d at 340 (quoting
Spirides, 613 F.2d at 831-32); Merrick,
2009 WL 10670503, at *8. The court must look to whether the
employer had the right to control the “means and
manner” of the worker's performance. Id.
On summary judgment, this Court may consider only those
undisputed, material facts in the light most favorable to the
nonmoving party. Ross v. Jefferson Cnty. Dep't of
Health, 701 F.3d 655, 658 (11th Cir. 2012).
Disputed, material facts prohibit the grant of summary
judgment. Fed. R. Civ.P. 56(a).
following undisputed, material facts exist. Defendant has
been licensed as a home health agency since 2005 by
Florida's Agency for Health Care Administration.
Defendant's caregivers provide unskilled services such as
daily living activities, light housekeeping, meal planning
and preparation, transporting, and companionship.
See docket 31-1, page 44 (Homemaker/companion Job
Description); docket 31-1, pages 49-54 (Caregiver Manual);
and docket 23-1, pages 1-2, ¶ 4 (Hagan declaration).
Plaintiff submitted certification showing that she had
completed her 80-hour training in home health skills.
Although Plaintiff was permitted to work for other home
health agencies, she and others worked full time for
Defendant. See docket 30-7, page 6 (Enriquez
deposition, page 18); and docket 30-3, pages 7-8 (Jabonero
deposition, pages 21-23). She did, however, decline to work
weekends and with proper advance notice, she cancelled about
three to four weekdays. She was paid a non-negotiable hourly
rate and not by the job, and she was paid every two weeks.
See docket 30-3, page 4 (Jabonero deposition, page
10). This fact alone lends itself to a finding that she was
an employee because typically an independent contractor
“has at least an equal say in the rate to be charged
for particular work.” Solis v. A Nursetemps,
Inc., 2013 WL 1395863, at *6 (M.D. Fla. 2013). Plaintiff
filed her 2015 taxes as an independent contractor.
See docket 23-2, pages 55-57 (Plaintiff deposition).
She did not receive annual leave, sick leave, health
insurance or disability insurance.
required Plaintiff and other caregivers to follow the company
manual, policies, and procedures. See docket 30-2,
page 11 (Hagan deposition, page 37); docket 31-1, pages 49-58
(Caregiver Manual); and docket 31-1, page 44
(Homemaker/companion Job Description). Plaintiff provided her
own scrubs and laundered them, which she was required to wear
together with a company identification badge with her name
and her position as one of Defendant's home health aides.
See docket 23-2, pages 71-72 (Plaintiff deposition);
docket 30-1, page 8 (Fanovich deposition, page 24); and
docket 30-7, page 7 (Enriquez deposition, page 21). Plaintiff
performed the home health aide duties defined in the care
plan provided by Defendant and submitted reports concerning
her work upon completion to Defendant. See docket
30-2, page 7 (Hagan deposition, page 20) and docket 23-2,
page 18 (Plaintiff deposition). Some of the policies and
guidelines contained mandates such as restricted use of the
worker's cell phone, a rigid absentee and vacation
policy, and the requirement that the worker contact Defendant
for verification about any uncertainty regarding whether the
worker could perform a certain task. To ensure compliance,
Defendant conducted four nurse supervisory visits of
Plaintiff in one year. See docket 30-6, pages 5-6
(Lang deposition, pages 11-16). In a somewhat similar case
where the worker's hours and work schedule were
controlled by the employer, the worker was supervised while
working, and the employer handled her schedule and decided to
limit her hours, the court denied summary judgment, finding
that whether the worker was an independent contractor or
employee was a factual determination to be made by a jury.
Helm v. J.H. Gate wood Emergency Servs., P.A., 2012
WL 2793134, at *3 (M.D. Fla. 2012).
found thus far that this record could lead to either a
finding of employee or independent contractor, the Court
finds that numerous disputed, material facts abound in the
submissions of the parties. For example, the owner, Ms.
Fanovich, and two employees of Defendant testified that work
performed between the hours of 9:00 a.m. and 5:00 p.m. was
considered employee work, and work performed outside those
hours was considered independent contractor work; yet Ms.
Hagan, the business manager of Defendant, testified that the
characterization did not magically change when the clock
struck 5:00 p.m. See docket 30-7, pages 5 & 11
(Enriquez deposition, pages 11-12 & 35-36); docket 30-1,
page 7 (Fanovich deposition, pages 19-20); docket 30-3, pages
4-5 & 9 (Jabonero deposition, pages 10-12 & 30); and
docket 30-2, pages 7-8 (Hagan deposition, pages 22-23). It is
also disputed whether Defendant reimbursed Plaintiff for any
expenses and whether Defendant was responsible for paying for
training and ongoing education. See docket 31-1,
pages 49-58 (Caregiver Manual); and docket 30-3, page 10
(Jabonero deposition, page 34).
contested is whether Defendant supervises the manner in which
Plaintiff performs her work. Defendant's labeling almost
every worker as an independent contractor does not make it
so. When a worker's duties constitute “an integral
part of the employer's business, this factor weighs in
favor of finding an employer-employee relationship.”
Cardinale v. Southern Homes of Polk Cnty., Inc.,
2008 WL 788460, at *6 (M.D. Fla. 2008). Here, it is difficult
to imagine a licensed home health agency without home health
aides, companions, and transporters. Along the same lines, it
seems axiomatic that unskilled individuals taking care of the
elderly require some type of supervision. Fla. Admin.
Code R. 59A-8.0095(5)(a) (“A home health aide . .
. shall provide personal care services assigned by and under
the supervision of a registered nurse.”); §
400.487(5) & (6), Fla. Stat. (2017) (caregivers must be
“monitored and managed” by the home health agency
and the services “must be supervised and coordinated in
accordance with a plan of care.”). Not only is some
supervision required by law, but the degree and extent of the
supervision is one of the determining factors in the
relationship assessment. The many disputed, material facts in
this record are evident, requiring a factual resolution by a
final observation, the Court finds that the decision of the
appeals referee, which denied Plaintiff's reemployment
assistance benefits, should not be considered on summary
judgment. Under Florida law, the decision of a hearing
officer under Chapter 443 is “not conclusive or binding
in any separate or subsequent action or proceeding”
with certain exceptions not applicable here. § 443.0315,
Fla. Stat. (2010). Additionally, the decision is unduly
prejudicial and irrelevant in that a determination on
reemployment assistance benefits has nothing to do with an
alleged violation of civil rights. Cf. Dagnesses v.
Target Media Partner Operating Co., 2016 WL 10647255, at
*4 (S.D. Fla. 2016) (excluding award of unemployment
compensation on grounds of inadmissibility based on
irrelevancy and undue prejudice in Title VII/FCRA case). The
decision is also inadmissible as hearsay under Federal Rule
of Evidence 803(8)(c). Cf. Claybrone v. Goldring Gulf
Dist., 2015 WL 5619523, at *2-3 (N.D. Fla. 2015)
(striking decision of appeals referee of Florida Department
of Equal Opportunity from summary judgment record because
decision contained legal conclusions and circumstances
indicated lack of trustworthiness). Here, for example, the
appeals referee wrote that the evidence revealed Defendant
did not exercise control over when or how Plaintiff performed
the work. See docket 24-1, page 4. This legal
conclusion does not necessarily follow from the disputed,
material facts regarding control on the record in this case.
therefore ORDERED AND ADJUDGED that
Defendant's Motion for Summary Judgment (Dkt. 24) is