STATE OF FLORIDA COMMISSION ON HUMA N RELATIONS

JOHNNY L. TORRENCE, EEOC No. 15D201400293

Petitioner, FCHR Case No.

v. DOA H No. 14-5506

HENDRICK HOND A DAYTONA . FCHR Order No. 15-027

Respondent.

/

FINAL ORDER DISMISSING FOR

RELIE F FROM AN UNLAWFUL EMPLOYMENT PRACTIC E

Preliminary Matters

Petitioner Johnny L. Torrence filed a complaint o f discrimination pursuant to the Florida Civil Rights Act of Sections - Florida Statutes

alleging that Respondent Hendrick Honda Daytona committed an unlawful employment practice on the bases of Petitioner's age (DOB: 2-23-53) and race (African American) by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on October

the Executive Director issued a determination finding that there was no 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.

A n evidentiary hearing was held by video teleconference at sites in Daytona Beach and Tallahassee, Florida, on February 9, before Administrative Law Judge E. Gary Early.

Judge Early issued a Recommended Order o f dismissal, dated February 26,

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 o f the proceeding before the Administrative Law Judge was filed with the Commission. In the absence of a transcript of the proceeding before the 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 527 So. 2d 894, at 897, 898 5th DC A 1988). Accord, Coleman v. Daytona Beach, Ocean Center Parking Garage, FCHR Order No. 14-034 (September 10,

Filed May 26, 2015 3:21 PM Division of Administrative Hearings

FCHR Order No.

2

2014), Gantz, et al. v. Zion's Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. (June 6, and Hall v. Villages of West Oaks A, FCHR Order No. 08-007

(January 14, 2008).

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

Conclusions o f Law

We the Administrative Law Judge's application of the law to the facts to result in a correct disposition o f the matter.

We note that the Administrative Law Judge concluded that to establish a prima facie case of age discrimination Petitioner must show that "1) he is a member of a

class, i.e., at least forty years of age; 2) he was qualified for the position; 3) he was subjected to an adverse employment action; and 4) his employer treated substantially younger employees more favorably than he was treated." Recommended Order, 36.

We disagree with the content of elements (1) and (4) o f this test as set out by the Administrative Law Judge. Accord Chun v. Dillard's, FCHR Order No. (August 21, 2014), Collins v. Volusia County Schools, FCHR Order No. 12-029 (June 27, 2012), Bratcher v. City of High Springs, FCHR Order No. (December 7, and Brown v. SSA Security, Inc., FCHR Order No. 10-062 (August 10, 2010).

With regard to element (1), Commission panels have concluded that one o f the elements for establishing a prima facie case o f age discrimination under the Florida Civil Rights Act of is a showing that individuals similarly-situated to Petitioner o f a "different" age were treated more favorably, and Commission panels have noted that the age "40" has no significance in the interpretation of the Florida Civil Rights Act of 1992. See, e.g., Downs v. Shear Express, Inc., FCHR Order No. 06-036 (May 24, 2006), and cases and analysis set out therein; see also, Boles v. Santa Rosa County Office, FCHR Order No. (February 8, 2008), and cases and analysis set out therein.

Consequently, we yet again note that the age "40" has no significance in the interpretation o f the Florida Civil Rights Act of 1992. Accord, e.g., Grasso v. Agency for Health Care Administration, FCHR Order No. 15-001 (January 14, 2015), Cox v. Gulf Breeze Resorts Realty, Inc., FCHR Order No. 09-037 (April 13, 2009), Toms v. Marion County School Board, FCHR Order No. 07-060 (November 7, 2007), and Stewart v.

Pasco County Board o f County Commissioners, Pasco County Library System, FCHR Order No. 07-050 (September 25, 2007). But, cf , City o f Hollywood, Florida v. Hogan, et al , 986 So. 2d 634 (4 t h DCA 2008).

With regard to element (4), while we agree that such a showing could be an element o f a prima facie case, we note that Commission panels have long concluded that the Florida Civil Rights Act of 1992 and its predecessor law, the Human Rights Act of

as amended, prohibited age discrimination in employment on the basis of any age "birth to death." See Green v. ATC/VANCO M Management, Inc., 20 F.A.L.R.

(1997), and v. Niagara Lockport Industries, Inc., 8 F.A.L.R. 3588 (FCHR 1986). A Commission panel has indicated that one of the elements in determining a prima facie

FCHR Order No. 15-027

Page 3

case of age discrimination is that Petitioner is treated differently than similarly situated individuals of a "different" age, as opposed to a "younger" age. See Musgrove v. Gator Human c/o Tiger Success Center, et 22 F.A.L.R. 355, at 356 (FCHR accord v. Avante at Dora, FCHR Order No. 13-016 (February 26, 2013), Collins, supra, Lombardi v. Dade County Circuit Court, FCHR Order No.

(February v. Town of Eatonville, FCHR Order No. 09-039 (May 12, 2009), Boles, supra. But, cf , Hogan, supra.

Further with regard to element (4), we note that it has been concluded that a difference o f three years of age is sufficient to establish a prima facie case. See conclusions of law in the Recommended Order o f Freeman v. L P Mullins Lumber Company, DOA H No. 14-2139, FCHR No. 2013-01700 (August 14, 2014).

We modify accordingly the Administrative Law Judge's conclusions of law regarding the test for the establishment o f a prima facie case o f age discrimination.

The errors in the test used by the Administrative Law Judge to establish whether a prima facie case o f age discrimination existed are harmless, given the Administrative

Law Judge's conclusions that even i f Petitioner had established a prima facie case o f discrimination, Respondent produced evidence o f a legitimate nondiscriminatory reason for terminating Petitioner's employment, and there was no evidence that this explanation was a pretext for unlawful discrimination. Recommended Order, 45 through 49.

In modifying these conclusions of law of the Administrative Law Judge, we conclude: (1) that the conclusions of law being modified are conclusions of law over which the Commission has substantive jurisdiction, namely conclusions of law stating what must be demonstrated to establish a prima facie case of unlawful discrimination under the Florida Civil Rights Act o f (2) that the reason the modifications are being made by the Commission is that the conclusions o f law as stated run contrary to previous Commission decisions on the issue; and (3) that in making these modifications the conclusions o f law being substituted are as or more reasonable than the conclusions of

law which have been rejected. See, Section 120.57(1)(1), Florida Statutes (2014).

With these corrections and comments, we adopt the Administrative Law Judge's conclusions of law.

Exceptions

Neither o f the parties filed exceptions to the Administrative Law Judge's Recommended Order.

Dismissal

The Petition for Relief and Complaint o f 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 days

FCHR Order No. 15-027 4

of the date this Order is filed with the Clerk of the Commission. Explanation o f the right to appeal is found in Section Florida Statutes, and in the Florida Rules of Appellate Procedure

DONE AN D ORDERED this day of 2015.

FOR THE FLORIDA COMMISSION ON RELATIONS:

Commissioner Michael Keller, Panel Chairperson; Commissioner Onelia Fajardo-Garcia; and Commissioner J. Jeff Graber

in Tallahassee, Florida.

Clerk

Commission on Human Relations 4075 Esplanade Way, Room Tallahassee, FL 32399

(850) 488-7082

Copies furnished to:

Johnny L. Torrence North Seneca Street

Daytona Beach, FL

Hendrick Honda Daytona c/o Leonard T. Hackett, Esq.

Vernis & Bowling of North Florida, A. 4309 Salisbury Road

Jacksonville, FL 32216

E. Gary Early, Administrative Law Judge, DOA H James Mallue, Legal Advisor for Commission Panel

FCHR Order No. 15-027

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I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this day of

By:

Clerk o f the

Florida Commission on Human Relations

Docket for Case No: 14-005506

Orders for Case No: 14-005506