STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES HINCHEY,

vs.

Petitioner,

Case No. 19-4672

NATIONAL GENERAL MANAGEMENT CORPORATION,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge Hetal Desai of the Division of Administrative Hearings (DOAH) held the final hearing in this matter on October 30, 2019, in New Port Richey, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Michelle McGirt, Corporate Representative National General Management Corporation 5630 University Parkway

Winston-Salem, North Carolina 27105 STATEMENT OF THE ISSUE

Whether Respondent, National General Management Corporation (National General), discriminated against Petitioner,

Charles Hinchey, on the basis of his handicap and age in violation of section 760.10, Florida Statutes (2018).1/

PRELIMINARY STATEMENT

On December 18, 2018, Petitioner filed an Employment Complaint of Discrimination (Complaint) with the Florida Commission on Human Relations (FCHR) asserting Respondent discriminated against him on the basis of his handicap and age. Specifically, in his Complaint, Petitioner states National General hired him as an insurance agent in 2016 and he was terminated in 2018. Petitioner further alleges, "I have been discriminated against based on disability (mental) and age

(81-years-old)" and that he was "targeted and discriminated against" when Respondent changed his work location and later terminated him.2/

On August 15, 2019, FCHR notified Petitioner of its determination that no reasonable cause existed to believe that Respondent engaged in an unlawful employment practice under chapter 760, Florida Statutes, also known as the Florida Civil Rights Act of 1992 (FCRA). On August 29, 2019, Petitioner timely filed a Petition for Relief with FCHR and requested an administrative hearing on his Complaint. On September 5, 2019, FCHR referred this matter to DOAH, where it was assigned to the undersigned to conduct a formal evidentiary hearing.

After the parties failed to timely respond to an Initial Order, on September 23, 2019, the undersigned scheduled a pre- hearing conference to be held on October 21, 2019; and the final

hearing to be held on October 30, 2019.3/ For the pre-hearing conference, the undersigned issued a Notice of Telephonic Pre- hearing Conference notifying the parties of the date, time, and directions to call into the conference. Similarly, for the final hearing, the undersigned issued a Notice of Hearing notifying the parties of the date, time, and location of the final hearing, and other pertinent procedures. The Notices were served on all parties and mailed to Petitioner's address of record on file with FCHR and with DOAH. There was no indication Petitioner did not receive these Notices or that the Notices were undeliverable because of an incorrect address.4/

Petitioner failed to participate in the duly noticed

pre-hearing telephone conference on October 21, 2019. At that hearing, Respondent's representative indicated she had attempted to confer with Petitioner regarding exhibits and witnesses but had been unable to make contact. Moreover, she had not received any exhibits or a witness list from Petitioner.

DOAH staff also spoke with Petitioner prior to the hearing regarding the hearing date and time. On the day of the final hearing, DOAH staff attempted twice to reach Petitioner at his only known phone number, but he did not answer. The courtroom bailiff confirmed no one answered when Petitioner's name was called in the waiting room outside the courtroom, or in the security area at the entrance of the courthouse.

The final hearing was recorded, but no transcript was ordered, nor has a transcript of the proceedings been filed with DOAH.

FINDINGS OF FACT

1. The final hearing was convened at 9:30 a.m., on October 30, 2019.5/

2. Respondent's representatives appeared at the hearing.

   
   

   Petitioner did not appear. Petitioner did not otherwise file any correspondence or evidence for consideration at the final hearing.

3. The Respondent's representatives, who had flown in from out of state, confirmed that they received the Notice of Hearing and were aware of the date, time, and location of the final hearing on October 30, 2019.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause pursuant to sections 120.569, 120.57(1), and 760.11(6) and (7), Florida Statutes. See Fla. Admin. Code R. 60Y-4.016; and McElrath v.

   Burley, 707 So. 2d 836, 841 (Fla. 1st DCA 1998)(finding the FCRA on its face satisfies the right to due process by providing for an administrative hearing followed by judicial appellate review).

   
   

5. The FCRA protects individuals from discrimination in the workplace. See §§ 760.10 and 760.11, Fla. Stat. Section 760.10 states, in pertinent part:

   1. It is an unlawful employment practice for an employer:

      
      

      1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

         
         

6. Because the FCRA is patterned after federal anti- discrimination laws, such as the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), courts rely on ADA and ADEA cases when analyzing handicap/disability and age discrimination claims brought pursuant to the FCRA. See

   Austin v. FL HUD Rosewood LLC, 2019 U.S. App. LEXIS 32257, at *7

   
   

   n.2 (11th Cir. Oct. 28, 2019)("Claims of age discrimination under the FCRA are analyzed under the same framework as the ADEA."); Gonzalez v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 139916, at *19 (S.D. Fla. Sep. 27, 2013)("The analysis of a disability discrimination claim under the FCRA is identical to that employed under the Americans With Disabilities Act").

7. Petitioner has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See

   Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 22 (Fla. 3d

   
   

   DCA 2009); and § 120.57(1)(j), Fla. Stat. "Preponderance of the evidence" is the "greater weight" of the evidence, or evidence that "more likely than not" tends to prove the fact at issue.

   This means that if the undersigned found the parties presented equally competent substantial evidence, Petitioner would not have proved his claims by the "greater weight" of the evidence, and would not prevail in this proceeding. See Gross v. Lyons, 763

   So. 2d 276, 289 n.1 (Fla. 2000).

   
   

8. To establish a prima facie case of discrimination under the FCRA, Petitioner must show: (1) he is handicap; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination by his employer because of his handicap. See

   Fagan v. Palm Beach Cty. Sheriff's Off., 2019 U.S. Dist. LEXIS 147572, at *4 (S.D. Fla. Aug. 27, 2019)(citing Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255-1256 (11th Cir. 2007)).6/

9. To establish a prima facie case of age discrimination under the FCRA, Petitioner must show: (1) he was a member of the protected age group; (2) he was subject to an adverse employment action; (3) a person of a different age filled the position

   from which he was discharged or was treated differently; and (4) he was qualified to do the job from which he was discharged. See

   Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012). 7/

   
   

10. By failing to appear at the final hearing, Petitioner failed to present any evidence to meet his burden of proof for any type of discrimination. Assuming Petitioner and Respondent had an employment relationship under the FCRA, there was no evidence of any of the elements related to the prima facie case for either handicap or age discrimination. Consequently, Petitioner has not proven National General discriminated against him based on his age or handicap.

RECOMMENDATION

It is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Petitioner,

Charles Hinchey, did not prove Respondent, National General Management Corporation, committed an unlawful employment practice under the FCRA based on his age or handicap, and dismissing the Petition in its entirety.

DONE AND ENTERED this 6th day of November, 2019, in Tallahassee, Leon County, Florida.

S

HETAL DESAI

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 6th day of November, 2019

ENDNOTES

1/ All references to the Florida Statutes and Florida Administrative Code are to the 2018 versions (the versions in effect at the time of the alleged violations) unless otherwise noted.

2/ The Complaint also references violations of the Family Medical Leave Act (FMLA) and a dispute relating to insurance benefits or an insurance policy. The undersigned does not have jurisdiction regarding these claims. Instead, enforcement of the FMLA is the responsibility of the U.S. Department of Labor or a court with jurisdiction of civil matters. 29 U.S.C. § 825.400 (allowing a complaint to be filed with the Secretary of Labor or through a private lawsuit). It is also well settled that a DOAH Administrative Law Judge does not have subject matter jurisdiction to adjudicate contract disputes, such as those involving the terms of an insurance policy or employment benefit package. See Point Mgmt., Inc. v. Dep't of Bus. and Prof'l Reg,

449 So. 2d 306, 307 (Fla. 4th DCA 1984)(reflecting that DOAH exceeded its jurisdiction by reviewing and ruling on a settlement agreement, noting that "courts rather than administrative bodies construe contracts.").

3/ Petitioner did eventually submit a response to the Initial Order dated September 10, 2019, but the response was not filed with DOAH until October 24, 2019.

4/ Prior to the final hearing, Petitioner's actions indicated he was aware of these proceedings. For example, he filed an objection to Respondent's request for National General's witnesses to testify via videoconferencing and was in contact with DOAH staff regarding this case.

5/ Although it was duly noticed for 9:00 a.m., the hearing was delayed in an attempt to allow Petitioner's participation in the hearing.

6/ Whereas the FCRA prohibits discrimination in employment on the basis of "handicap," the ADA prohibits discrimination on the basis of "disability." For the purposes of employment discrimination, the FCRA does not define "handicap", but the statute conforms to the ADA definition of "disability," and the terms are interpreted under the same analysis. See Byrd v. BT Foods, Inc., 26 So. 3d 600 (Fla. 4th DCA 2010).

7/ The FCRA differs from the ADEA in one key aspect: the ADEA specifically protects employees aged 40 and older, whereas the FCRA does not set a minimum age for a protected class. According to FCHR, the age "40" has no significance in determining whether age discrimination has occurred under the FCRA. See Ellis v. Am. Aluminum, Case No. 14-5355 (DOAH July 14, 2015), modified (Fla.

FCHR Sep. 17, 2015). Thus, although under the ADEA an employee must be 40 years old and the comparator must be significantly younger, under the FCRA a petitioner can simply show that individuals similarly-situated of a "different" age were treated more favorably.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399-7020 (eServed)

Charles Hinchey 5516 9th Street

Zephyrhills, Florida 33542

Michelle McGirt, Corporate Representative National General Management Corporation 5630 University Parkway

Winston Salem, North Carolina 27105 (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: 19-004672

Orders for Case No: 19-004672