Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TARA LIBARDI, Appellant, v. PAVIMENTO, INC., a Florida for profit corporation, and ENCORE PEO, INC., a foreign for profit corporation, Appellees. No. 2D22-588 June 9, 2023 Appeal from the Circuit Court for Pinellas County; Amy M. Williams, Judge. Ryan D. Barack and Michelle Erin Nadeau of Kwall Barack Nadeau PLLC, Clearwater, for Appellant. Kristen M. Fiore and Phillip J. Harris of Akerman LLP, Tampa, for Appellee Encore PEO, Inc. No appearance for Appellee Pavimento, Inc. NORTHCUTT, Judge. The circuit court granted final summary judgment to Encore PEO, Inc., in Tara Libardi's employment discrimination suit against Encore PEO and its codefendant, Pavimento, Inc. We reverse because the record did not conclusively demonstrate that Encore was entitled to prevail. Encore, a professional employer organization, assigned Tara Libardi to work at Pavimento as a leased employee. Eventually, Libardi suffered a disabling injury in an automobile accident and was away from her job for a month. As a result of the accident, Libardi lost a leg; when she returned to work, she was temporarily confined to a wheelchair. Within a day or two after her return, Pavimento terminated her. Libardi sued Pavimento and Encore, asserting various claims of discrimination, retaliation, and harassment under the Americans with Disabilities Act and the Florida Civil Rights Act. The issue on appeal is whether Encore met its burden on summary judgment to demonstrate that it was not an employer of Tara Libardi and therefore could not be held liable in her employment discrimination suit. The circuit court granted final summary judgment to Encore on this issue. The parties acknowledge that the circuit court properly employed the summary judgment standard applicable to Florida cases before May 1, 2021. See Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020) (holding that adaptation of the federal summary judgment standard to Florida cases applies prospectively). Under that standard, "[t]he party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail." Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 334 So. 3d 658, 660 (Fla. 2d DCA 2021) (quoting Hervey v. Alfonso, 650 So. 2d 644, 645–46 (Fla. 2d DCA 1995)). We review the circuit court's ruling on the motion for summary judgment de novo. Id. at 660. In employment discrimination cases involving more than one putative employer, the courts have variously described tests to determine whether one entity or another is an employer for purposes of the discrimination claims. Generally, the liability of each alleged employer turns on the extent to which it has either retained or given up control 2 over the terms and conditions of the employment. Thus, the court must examine whether an employer "retains sufficient control over the terms and conditions of employment of the other company's employees," Martinolich v. Golden Leaf Mgmt., Inc., 786 So. 2d 613, 615 (Fla. 3d DCA 2001) (quoting Lyes v. City of Riviera Beach, 166 F.3d 1332, 1341 (11th Cir. 1999)), or whether an "employer delegates sufficient control of some traditional rights over employees to a third party," id. (quoting Lyes, 166 F.3d at 1341), so that the third party becomes the agent of the employer and they become jointly liable. The relationship between the parties determines whether a plaintiff is considered an employee of more than one party. Where there is conflicting evidence, the question should be decided by a jury. Id.; see also Diaz v. Impex of Doral, Inc., 7 So. 3d 591, 593–94 (Fla. 3d DCA 2009) (same). Here, the circuit court granted summary judgment to Encore on the grounds that its only involvement with Libardi's employment was "as the signer of checks for payroll" and that it "had no control over [her]. [Encore] had no notice of her accident, of her amputation or of her firing until after the fact." This was flatly contradicted by evidence in the summary judgment record. For example, when Libardi began working at Pavimento, she was required to sign a form document entitled "Terms and Conditions of Employment," in which she acknowledged that she was an employee of Encore and that Encore could terminate her employment at any time.1 The document set forth several work requirements, including a drug-free 1 The form named Libardi's employer as "Enterprise HR, Enterprise HR II, Encore Business Solutions, Encore PEO, Enterprise III, or Primecore Inc., hereinafter referred to as 'AFFILIATES.' " 3 workplace policy prohibiting Libardi's use of drugs or alcohol in the workplace and on remote job sites. Under the policy, Encore would subject Libardi to substance testing after any job-related injury, and "[a]ll benefits will be denied if tests are positive." The document instructed Libardi that if at any time during her employment she was subjected to any form of prohibited discrimination or harassment, she was to "immediately contact Enterprise HR and affiliates' Human Resource Manager . . . or the on-site supervisor of the leased client in order to obtain assistance in the resolution of such matters." Other provisions of the Terms and Conditions of Employment document addressed workplace safety and workers' compensation requirements, and it set forth contact information for any related questions—all pointing back in whole or in part to "Enterprise HR and affiliates." Finally, the document required Libardi to inform Encore if she was "dismissed" or "reassigned" from any of Enterprise's "leased client[s]." I understand that at the time Enterprise HR and affiliates receives notification from the leased client that I have been either dismissed or reassigned, Enterprise HR and affiliates will mail to my address of record a notice of termination. Upon receipt of this notice I understand that I have 72 hours to call Enterprise HR and affiliates for reassignment. Failure to do so may result in a denial of unemployment benefits. In addition to this writing was the deposition testimony of a Pavimento owner, John Kanne, who recounted that all his company's employees were leased from Encore, which participated in hiring them. Kanne testified that Encore was Pavimento's human resources department and that he relied on Encore to advise him regarding state and federal employment law. He could think of no instance in which 4 Pavimento did not follow Encore's guidance regarding compliance with employment laws. He conferred with the Encore account manager before and about Libardi's return to work following her accident. Kanne also testified that he spoke with Encore before he terminated Libardi after her second day back. Notably, when disputing the latter assertion, Encore's vice president Edgar Rawls testified that if Encore had been consulted in advance, "at the very least I would have instructed them not to terminate her, at the very least, and contemplate putting her on a medical leave of absence"—tacitly confirming that Encore's involvement in Pavimento's employment decision-making ranged well beyond simply signing paychecks. Finally, in addition to evidence that Encore participated in Pavimento's decision to fire Libardi, the summary judgment record showed that Encore also terminated Libardi directly, when Pavimento could no longer be considered her employer. After Libardi was dismissed from her job at Pavimento, Encore sent her a letter stating, "This letter is to inform you that effective 9/30/16, you are no longer an active employee of Encore PEO, Inc." The letter informed Libardi that her last "assignment" to Pavimento had ended the previous month and that her "worker's compensation coverage with Encore PEO, Inc. stopped at the end of [her] assignment with Pavimento, Inc[.] and [would] begin again if [she were] reassigned." "In accordance with the 'Terms and Conditions of Employment,' " the letter continued, "you have 72 hours from the receipt of this notice to contact our offices . . . for re-assignment. Failure to do so could affect your unemployment benefits." Libardi testified that she wrote back to Encore and called to say she would like to be reassigned to a new job. But she was told that she could not be placed anywhere because of her 5 disability and that Encore had no potential referral that could accommodate her wheelchair. Rawls, the Encore vice president, testified that after Libardi called, Encore looked for a job within Encore itself but ultimately had no place for her. Notwithstanding the provisions of its Terms and Conditions of Employment document and the letter it sent to Libardi after her dismissal by Pavimento, Encore made no effort to reassign Libardi to any of its other clients. As can be seen, the circuit court's express basis for granting summary judgment to Encore was directly contrary to substantial evidence in the record. That evidence created an issue of fact regarding the extent to which Encore controlled the conditions of Libardi's employment such that it was her employer for purposes of her discrimination claims. We reverse the summary judgment in favor of Encore and remand for further proceedings consistent with this opinion. Reversed and remanded. LaROSE and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 6