11-000641 Ian Simpson vs. Auto Nation/Courtesy Chevrolet Status: Closed Recommended Order on Thursday, August 25, 2011.

Summary: Petitioner failed to prove that he was terminated based on age discrimination or retaliation. He was terminated because of poor work performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IAN SIMPSON , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0641

)

AUTO NATION/COURTESY CHEVROLET , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notic e, the final hearing was held in this case

on May 5, 2011, by video teleconference with sites in Orlando

and Tallahassee, Florida, before Administrative Law Judge

Elizabeth W. McArthur of the Division of Administrative

Hearings.

APPEARANCES

For Petitione r: Peggy Underbrink, Esquire 1/

5737 Lowell Avenue

Indianapolis, Indiana 46219

For Respondent: Richard A. Ivers, Esquire

Law Office of Richard A. Ivers

2421 N orth University Drive, Third Floor

Coral Springs, Florid a 33065

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent engaged in an

unlawful employment practice by terminating Petitioner because

of his age and in retaliation for complaining about age

discrimination, or whether, instead, Respon dent had a legitimate

non - discriminatory reason for terminating Petitioner that was

not a pretext for discrimination or retaliation.

PRELIMINARY STATEMENT

On July 8, 2010, Ian Simpson (Mr. Simpson or Petitioner)

filed a Charge of Discrimination with the Florida Commission on

Human Relations (FCHR) against Courtesy Chevrolet, an automobile

dealership, and AutoNation, the owner of Courtesy Chevrolet

(collectively, Respondents). Petitioner alleged that he was

subjected to discrimination and retaliation when he was

terminated from employment by Courtesy Chevrolet because of his

age and because he complained to Respondents about age

discrimination.

Following its investigation of Petitioner ' s charges, FCHR

determined that there was no reasonable cause to belie ve that an

unlawful employment practice had occurred and issued its Notice

of Determination: No Cause. The notice advised Petitioner that

he had the right to request an administrative hearing, and

Petitioner timely exercised that right. On February 8, 20 11,

the case was forwarded to the Division of Administrative

Hearings for assignment of an Administrative Law Judge to

conduct the hearing requested by Petitioner.

At the final hearing, Petitioner testified on his own

behalf. Petitioner ' s Exhibits 1 thro ugh 3, 5 , 6, and 8 were

received into evidence. Respondents presented the testimony of

Ryan Matthews, Michael Stachowicz, Todd Tyree, and Bibi Bickram.

Respondents ' Exhibits 1 through 3, 5, 7 through 10, 13 , 14,

17 through 26, 33 and 34 were received int o evidence.

The two - volume Transcript of the final hearing was filed on

May 20, 2011. On May 23, 2011, Ms. Underbrink filed a motion to

withdraw as counsel of record for Petitioner. After compliance

with conditions precedent imposed to ensure that Petit ioner was

not prejudiced by the withdrawal, the motion to withdraw was

granted. Petitioner filed a motion for enlargement of time for

filing post - hearing submittals pursuant to Fl orida

Admin istrative Code Rule 28 - 106.215, and that motion was

granted. Bot h parties timely filed post - hearing submittals,

which have been considered to the extent they are based on

matters of record, 2/ in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is a male whose date of birth is June 23,

1958. Petitioner completed high school and had specialized

training in welding. He has been working since he was 14 years

old and has a varied employment history.

2. Before 2006, Petitioner was a welder for a few months

with Gencor Industries. He left that position because of what

he described as unsafe working conditions. Before working for

Gencor, he was a warehouse manager and shop foreman for

Structural Waterproofing, but was terminated when he had a

disagreement with the boss. Before that job, he was self -

employed in construction and photography.

3. In 2006, Petitioner was hired as a sales consultant

with the Holler Classic Group, a car dealership. Petitioner had

never had a job in car sales previously, but had worked as a

travel agent for 13 ye ars. He explained that there was no money

to be made in travel anymore, but he heard that there was money

to be made in car sales, so he thought he would try it.

4. Petitioner left Holler Classic after about two years,

because he found it was getting ha rd to compete against

salespersons who he claimed " were being given deals by

management. "

5. Petitioner was hired on July 11, 2008, as a sales

associate at Courtesy Chevrolet on West Colonial in Orlando.

Courtesy Chevrolet is an employer within the mean ing of the

Florida Civil Rights Act and is a subsidiary of Respondent

AutoNation.

6. Petitioner was hired by Courtesy Chevrolet as an

at - will employee. The terms of his employment were that he

would be paid by commissions earned on car sales and would b e

given a draw against commissions so that there would be

compensation in case there were periods of low sales. According

to Petitioner, there was no fixed amount of cars he had to sell,

except that, as he acknowledged, " [y] our commissions had to

outdo yo ur draw[.] " In other words, Petitioner understood that

while the draw might cover an occasional low - sales month, there

could not be continual low - sales months such that earned

commissions were not sufficient to cover the draw.

7. Petitioner also testifi ed that shortly after he started

at Courtesy Chevrolet, in August 2008, the manufacturer, General

Motors ( GM ) imposed a rule that required car salesmen to sell at

least six cars per month. Petitioner testified that he was

aware this rule went into effect in August 2008, but that he did

not think that the new rule applied to him , because he believed

he was under the " old system. "

8. No evidence was presented to establish that certain car

salespersons were allowed to continue under an " old system " that

was exempt from the new minimum monthly sales quota. Instead,

the more credible, consistent testimony of all witnesses ,

besides Petitioner , was that the six - car minimum monthly sales

quota applied to all dealerships with GM franchises and to all

car salesper sons at Courtesy Chevrolet, including Petitioner.

9. When Petitioner began working at Courtesy Chevrolet,

the general manager was Paul Letso, who was eight or nine years

older than Petitioner. Shortly thereafter, Mike Taylor was

hired as the sales manag er, and he was Petitioner ' s supervisor.

Mike Taylor also was older than Petitioner, approximately

59 years old.

10. Right away, Petitioner had problems working as a car

salesman at Courtesy Chevrolet. Within a month or so after

starting, he complained o f " theft of my commissions " by other

employees. He first spoke with the local human resources person

at the dealership. She told him to report the problem to Bibi

Bickram, who was the head of human resources for the region.

Petitioner was given Ms. Bick ram ' s cell phone number, and he

contacted her, reaching her while she was at an airport. She

got back with him a month later and told him that his manager,

Mike Taylor, was handling the complaint. However, Mr. Taylor

denied having heard about it, and Pet itioner was not happy with

the handling of his complaint.

11. When Petitioner was first hired, he underwent training

and orientation and was given a large amount of material,

including an AutoNation Code of Business Ethics and an Associate

Handbook, for w hich Petitioner signed acknowledgement forms.

The form that Petitioner signed to acknowledge receipt of the

Code of Business Ethics informed Petitioner that he had a number

of options for reporting complaints, problems, or suspected

violations of the code , of the law, or of any company policies.

These options included notifying a manager, contacting someone

in AutoNation ' s corporate or regional human resources

departments, or calling the ACT - AlertLine. The ACT - AlertLine is

a third - party administered , tip /complaint hotline where problems

or complaints regarding any AutoNation dealership can be raised,

anonymously or otherwise. The toll - free number for the

ACT - AlertLine was provided in the document signed by Petitioner.

In addition, the undisputed testimo ny was that flyers with the

ACT - AlertLine are on display at the Courtesy Chevrolet employee

break room. There was no credible evidence that before

Petitioner was notified that he was being terminated, Petitioner

ever utilized any of these options to notif y anyone of problems

or complaints, except for the single instance discussed above

when Petitioner called Ms. Bickram ' s cell phone to complain

about theft of his commissions.

12. Petitioner ' s first full calendar quarter at Courtesy

Chevrolet was Octob er to December 2008. Based on his sales

figures for his first full quarter, Petitioner was given a

documented verbal counseling for inadequate work performance,

followed by a written corrective action record. In pertinent

part, this record provided:

Fact s and Events:

Your performance for the months of October,

November and December of 2008 were below

target. They were as follows:

** October - you saw 20 customers, sold 1

unit - 5% closing

** November - you saw 22 customers, sold 3

units - 13.6% closin g

** December - you saw 15 customers, sold 2

units - 15.1% closing

Dealership closing percentage is 27%. Due

to your low performance, it has negatively

impacted your income and you are currently

in the rears [sic: arrears] $2751.54.

Required Improvemen t:

The level of performance is below target and

you must take action to improve. As a Sales

Associate of Courtesy Chevrolet West

Colonial, you are responsible for utilizing

the company ' s processes and tools while

maintaining an acceptable level of

perfor mance. You must maintain a 20%

closing ratio each month. . . .

Failure to achieve sustained improvement in

units sold or other performance issues

related to your role as Sales Associate

. . . will result in further disciplinary

action up to and including termination.

13. Petitioner signed this corrective action record,

without commenting in the space provided. At the final hearing,

Petitioner claimed that some of the sales figures may have been

incorrect, although Petitioner was not specific in this r egard

and presented no evidence to support his vague claim.

Petitioner ' s claim, more than two years after the fact, is not

credible, in light of Petitioner ' s failure to attempt to correct

any errors that may have been in the report at the time he

signed i t or to otherwise complain about errors in his sales

figures.

14. Petitioner acknowledged that he was having trouble

meeting his sales goals, but claimed that it was because he " was

being harassed " by Paul Letso and Mike Taylor. Petitioner

admitted that this asserted harassment had nothing to do with

age discrimination, as he was substantially younger than either

one of his managers. Petitioner claimed that these two older

managers were always trying to blow up his deals, such as by

starting arguments wi th Petitioner in front of potential

customers.

15. Business was not good in the auto industry during the

time that Petitioner was employed by Courtesy Chevrolet in 2008

and 2009. Overall, there was a lot of consolidation in the

industry and staff reduc tions. Several Chrysler dealerships

closed as a result of Chrysler ' s bankruptcy, including two

AutoNation dealerships in the region: Courte sy Chrysler Jeep in

Casselberry and Courtesy Chrysler Jeep in Sanford.

16. Other dealerships were under pressure a s well. As

noted above, one example of how the industry pressures came to

bear on the dealerships was the establishment by GM of a new

requirement in August 2008 that all car salespersons at its

franchise dealerships had to sell at least six cars each mon th.

17. Courtesy Chevrolet was not doing well. By May 2009,

the general manager of Courtesy Chevrolet (one of the managers

whom Petitioner claimed had been harassing him), was terminated.

In June 2009, several managers and sales associates from the

clos ed Chrysler dealerships were brought over to Courtesy

Chevrolet, consolidating the sales forces.

18. Todd Tyree, former manager of the Casselberry Chrysler

dealership, was made general manager of Courtesy Chevrolet.

Mr. Tyree, though young -- in his 30s -- h ad nearly 20 years of

experience in the car dealership business, with substantial

managerial experience. He was charged with the task of

overhauling the dealership to upgrade its facilities, improve

its operations, and conform its processes to AutoNation

standards, which had been loosely followed or not followed at

all previously.

19. Two former managers from the Sanford Chrysler

dealership, Mike Stachowicz and Ryan Matthews, were brought over

to serve in managerial/supervisory positions in the sales

de partment. Mr. Stachowicz was in his late 40s, approximately

three years younger than Petitioner, with 28 years of experience

in the car business. Mr. Matthews was younger, but he still had

seven years ' experience in the car business.

20. The three manag ers embarked on an immediate effort to

tighten up on procedures, spruce up the facilities, review and

evaluate employees, and work with the sales staff to turn around

the performance of the dealership.

21. According to Petitioner, a sales meeting was held the

day after the new managers arrived at Courtesy Chevrolet.

Petitioner claims that at this meeting, Mr. Tyree stated that he

wanted a young, aggressive sales staff. Petitioner stated that

all three of the new managers were present at this meeting and

that there were a number of other witnesses to the statement.

22. D espite Petitioner ' s claim that there were many

witnesses to Mr. Tyree ' s statement, no witness corroborated

Petitioner ' s claim. Mr. Tyree denied making that statement and

his testimony was credible in this regard. M essrs . Stachowicz

and Matthews confirmed that they never heard Mr. Tyree make such

a statement, although according to Petitioner, they were present

at that meeting. Petitioner did not produce any other witness

who could support Petitioner ' s claim that the statement was

made.

23. There is no evidence that Petitioner complained to

anyone in the human resources department , to someone at the

dealership , at a regional or national AutoNation office, or even

anonymously to the ACT - A lertLine , right after Petitioner claimed

the statement was made by Mr. Tyree on June 6, 2009. The first

mention by Petitioner of the alleged statement by Mr. Tyree

about a " young, aggressive " sales staff was after Petitioner

received a monthly sales assoc iate evaluation on June 15, 2009,

putting in writing to him for the second time that improvement

was needed for his sub - par sales performance; after Petitioner

received another monthly sales associate evaluation on July 8,

2009, giving him the lowest ratin g of " below target " in the

categories of meeting sales objectives and meeting profit

objectives; and after Petitioner received a " final warning "

counseling and corrective action record on July 13, 2009,

reporting another three - month period of below - par sal es and

commissions that did not cover Petitioner ' s draw.

24. Petitioner ' s June 15, 2009, evaluation was signed by

Ryan Matthews, who was the general sales manager. It indicated

that Petitioner had only " sometimes " achieved acceptable

performance goals for sales and profit margins, a grade of " C "

on a scale of " A " to " D. " The evaluation comment was that

one - on - one training was needed to improve performance.

Mr. Matthews confirmed that he conducted one - on - one training

sessions with Petitioner, including sales menu training, which

focuses on how numbers are presented to customers ; and training

in product knowledge, an area found to be critically lacking at

this dealership when the three new managers arrived.

25. However, Mr. Matthews testified, as did th e other new

managers, that Petitioner was not at all receptive to training,

improvement, or doing anything to change how he was used to

doing things. Instead, he was stubbornly resistant to change

and very combative with the new managers. Petitioner appa rently

resented being told that he was not performing up to standards

and needed to improve.

26. Petitioner tacitly acknowledged the new managers '

point by testifying that he did not understand how the new

managers could come in and evaluate sales associa tes after only

a few short days at the new dealership and expressing skepticism

that they could have any kind of meaningful perspective.

However, it should have been clear to Petitioner from his prior

evaluation, counseling, and corrective action record i ssued by

the prior management team that the focal point for the

dealership, and the measure of his performance, would , in large

part , be on sales statistics: how many cars were sold and how

big was the profit margin.

27. The recent sales information fo r Petitioner that was

available for the new management team to review in June 2009

showed that Petitioner was credited with selling a total of 10.5

cars during the months of February, March, April and May 2009.

His best month, and the only month in his em ployment history

with Courtesy Chevrolet in which the evidence showed that he met

a six - car sales minimum, was in March 2009, when he sold six and

one - half units. In February, he sold three cars; in April, he

did not sell a single car; and in May, he sold one car.

28. After Mr. Tyree arrived at Courtesy Chevrolet, he had

Petitioner sign a written acknowledgement memorializing the GM

requirement that sales associates had to sell six cars each

month, with a rolling average of 18 cars every three months.

Mr. Tyree testified that he had all of the Courtesy Chevrolet

sales associates sign the form that he had utilized at his prior

dealership to impress upon them what they already should have

been aware was the requirement imposed by G M for the

dealership. 3/ As noted above, Petitioner was indeed aware of

this requirement, acknowledging that GM adopted this rule in

August 2008, although Petitioner continued to assert that he was

somehow exempt.

29. The monthly sales associate evaluation signed by

Petitioner o n July 8, 2009 , was signed by Mike Stachowicz. This

evaluation of continued low sales production, as well as low

profit - per - vehicle, was based on Petitioner ' s sales performance

in the month of June 2009, during which he sold two cars. By

the end of June 2009, Petitioner had the highest amount of

arrears (draws exceeding earned commissions), more by far than

any other salesperson at Courtesy Chevrolet. Petitioner signed

this evaluation and wrote the following comment on it: " WILL BE

FILING COMMENTS BY NE XT WEEK. " Petitioner did not elaborate, or

explain the nature of the comments he intended to file.

30. Petitioner ' s consistent sub - par performance continued,

as did his resistance to changing how he went about his business

so as to be open to improvi ng his performance. For example,

despite the fact that Saturdays are the busiest days of the week

for car sales, Petitioner took off Saturdays once a month to

pursue his hobby of bird - watching. While the new management was

willing to accommodate Petition er ' s request, the expectation was

that Petitioner would be receptive to making changes to improve

his car sales, whether it be giving up his bird - watching

Saturdays or making up for it in other ways. When this did not

happen, Petitioner received his " fina l warning " and corrective

action record on July 13, 2009, from Michael Stachowicz. This

record summarized Petitioner ' s below - target performance in

April, May, and June, with an average car sale of only one car

per month. The report reminded Petitioner: " You must maintain

a level of 6 units sold monthly. " Petitioner remained in

arrears by several thousands of dollars. Petitioner signed this

record, and his sole written comment in the space provided for

comments was: " WILL BE FILING COMPLAINT SOON. " Pe titioner did

not explain his comment or volunteer any information about the

nature of the complaint he was going to file.

31. The corrective action record signed on July 13, 2009,

stated that there would be a meeting in 30 days to evaluate

Petitioner ' s progress and review his " implementation of specific

actions to improve units sold. " However, after just a few weeks

in which the managers saw no sign of any specific actions being

taken by Petitioner to improve his overall performance and no

change in his attitude with regard to being resistant to change

and combative, Mr. Tyree made the decision to terminate

Petitioner ' s employment. Through the month of July,

Petitioner ' s three - month rolling average was 2.166 units per

month, well below the target of six units per month, and

Petitioner was still in arrears by several thousands of dollars.

Indeed, there was no evidence presented that Petitioner ever

earned more commissions, for any period of time, than he took

out in draws. 4/ The termination action recor d was signed

July 31, 2009, which was Petitioner ' s last day of employment,

and he was terminated effective August 1, 2009.

32. On August 3, 2009, a written complaint by Petitioner

that he sent on July 28, 2009, to the AutoNation Human Resources

Departme nt in Fort Lauderdale, Florida, was received and

provided to the ACT - AlertLine to log in. The complaint was then

turned over to Bibi Bickram, the human resources specialist, to

conduct an investigation. This written complaint by Petitioner

was a five - pag e, single - spaced, rambling diatribe, which lobbed

assorted accusations of harassment by the three new managers a t

Courtesy Chevrolet. The complaint alleged that Mr. Tyree

" gawked " at another employee; that the female employee who was

" gawked " at had viola ted safety regulations by coming to work in

flip flops; that Michael Stachowicz showed favoritism to another

female employee; that some salespersons had to work more hours

than other salespersons; that one employee was absent too much;

that gay customers h ad been made fun of; and that some employees

have already been given evaluations by the new managers that had

" no reflections on actual reality. "

33. Ms. Bickram conducted a thorough investigation in

which she interviewed numerous sales associates, review ed

records, talked to the managers, contacted Petitioner to see if

he wanted to add anything, and then prepared a detailed report

that analyzed, point by point, each and every complaint raised

in Petitioner ' s written complaint. Ms. Bickram found all of th e

complaints unsubstantiated, with the exception of one complaint

regarding scheduling inequity, found to be partially

substantiated and corrected. None of the complaint issues

raised and investigated had anything to do with age

discrimination.

34. Month s later, in October 2009, in connection with

proceedings regarding Petitioner ' s entitlement to unemployment

compensation, Petitioner prepared another detailed document

setting forth a timeline of his view of events at Courtesy

Chevrolet. This document was also logged in with the

ACT - AlertLine and turned over to Ms. Bickram as a follow - up

complaint to the written complaint received on August 3, 2009.

The October 2009 timeline document included Petitioner ' s claim

that in a June 6, 2009, sales meeting, the d ay after Mr. Tyree

assumed the position of general manager, he had allegedly stated

that he wanted a " young, aggressive sales staff. " This claim

was investigated for the first time by Ms. Bickram as part of

her follow - up complaint investigation; Petitione r did not

include this allegation in the July 28, 2009, written complaint.

35. Ms. Bickram ' s report, issued on December 4, 2009,

found that in her interviews of numerous sales associates

regarding the sales meetings conducted by the new general

manager, n one of the associates mentioned anything about

inappropriate comments. Ms. Bickram also interviewed Mr. Tyree

and reported that he denied making any such statement. Further,

Ms. Bickram noted that the " current sales staff ranges in age

from 33 to 54 , " so there had been no youth movement under the

new management, as one would assume would have occurred

following that alleged statement.

36. Petitioner submitted to the FCHR as part of his

complaint in 2010 and offered into evidence at the hearing, a

two - pa ge letter from Petitioner to " Bebe " in human resources.

On the first page, the date is typed in as " July [day obscured],

2009. " On the second page, just above Petitioner ' s signature,

the following date reference is typed in: " Post dated July 9,

2009 to be changed and signed at a later date. " In this letter

of uncertain actual date, Petitioner reported to " Bebe " that

since his first verbal complaint to her " regarding thief [sic]

of my money, " he ha d " been subject [sic] to NON - STOP harassment "

including t he following itemized examples:

1. Deliberately blowing deals by 2 General

Managers, 2 General Sales managers and 3

Sales Managers.

2. Prejudice towards GAY customers. . .

3. Lying to customers.

4. Having other employees, who were friends

of Ian M. Simp son ' s, harassed and

written up . . .

5. At a meeting on June 6, 2009, Todd Tyree

made a comment which insulted most of

the employees at the meeting. He stated

that he wanted a young and aggressive,

sales staff. . . .

37. Petitioner testified that he h and - wrote the number

" 13 " in the date on the first page so that the letter was dated

July 13, 2009. However, a handwritten da te , whether 13 or some

other number, cannot be discerned on the letter admitted into

evidence.

38. Petitioner ' s testimony was tha t he put the letter on

Ms. Bickram ' s desk in her office at the Courtesy Chevrolet

dealership on July 13, 2009. Petitioner claims to have

personally laid the letter on her desk. While Petitioner said

that he " never saw [Ms. Bickram] in the office , " he als o claimed

that he " saw her later on that day reading the complaint. " He

admits he did not discuss the complaint with her at that time,

stating that he " thought she would have to have time to review

it. "

39. Petitioner ' s testimony regarding his delivery o f the

letter on July 13, 2009, was not credible. Ms. Bickram

testified that she never received the letter Petitioner claims

to have left for her on her desk. Ms. Bickram explained,

credibly, that she is in her office that she maintains at

Courtesy Chevro let one or two times per week and that when she

is not in the office, even if she is just out for lunch, she

keeps the office locked. Others do not enter her office to

leave her mail or to take items from her desk; she uses her

other office at a different Courtesy location as the primary

office where she receives and processes her mail. Therefore, it

would not have been possible for Petitioner to have entered her

office when she was not there, as he claimed, to leave a letter

on her desk.

40. It is als o not credible that Petitioner would not have

attempted to discuss the complaint with Ms. Bickram if, as

Petitioner claimed, he had seen her reading the letter later

that day. Petitioner had recently received two sub - par

evaluations from the new managemen t, and on that same day,

Petitioner had received his " final warning " based on his failure

to approach meeting the stated sales target of six cars per

month. Petitioner had to know, with nothing but sub - par

performance evaluations, below - target sales, and consistent

draws exceeding commissions, his time was running out.

41. The more credible testimony and evidence establish

that Petitioner did not lodge his complaint of an age - related

comment by Mr. Tyree until well after Petitioner was terminated,

and t hat claim was contrived and not genuine.

42. With the exception of Petitioner ' s claim of a single

age - related comment attributed to Mr. Tyree and found not

credible, Petitioner presented no direct or circumstantial

evidence of any discrimination against him based on his age. To

the contrary, Petitioner complained equally about harassment by

former managers who were older than h e and by the new management

team who were younger than, or about the same age as,

Petitioner. Petitioner claimed that younger a nd older managers

alike tried to blow up his sales, started arguments with him

while he was with customers, gave deals away to other

salespersons, and were to blame for Petitioner ' s consistent

sub - par sales performance and Petitioner ' s consistent failure t o

earn enough commissions to cover his draws. Petitioner ' s

complaints have nothing to do with his age; instead,

Petitioner ' s complaints are his attempt to blame all others,

young and old alike, for his consistent failure to achieve the

work performance st andards set by Respondents.

4 3. No credible evidence was presented to establish that

Petitioner ' s termination was in retaliation for Petitioner ' s

complaint about age discrimination. The more credible evidence

established that Petitioner did not communi cate any complaint

about age discrimination until after he was given his

termination notice.

4 4. After Petitioner was terminated from Courtesy

Chevrolet, he was hired as a car salesman at Toyota of Orlando,

He started working there on December 15, 2009. After about a

month and a - half, he was terminated. The reason for

Petitioner ' s termination was not established in the record.

4 5. Petitioner has been unemployed since being terminated

by Toyota of Orlando and has gone back to school. No evidence

was p resented regarding Petitioner ' s efforts, if any, to obtain

substantially equivalent employment, besides his brief

experience with Toyota of Orlando.

CONCLUSIONS OF LAW

4 6 . The Division of Administrative Hearings has

jurisdiction over the parties and the s ubject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).

4 7 . Section 760.10(1), Florida Statutes (2009), 5/ states

that it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individua l on the

basis of age. Section 760.10(7) provides that it is an unlawful

employment practice for an employer to discriminate against any

person because that person has opposed any practice which is an

unlawful employment practice.

4 8. FCHR and Florida co urts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See Valenzuela v. GlobeGround

N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); Brand v.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

4 9. Discriminatory intent can be established through

direct or circumstantial evidence. Schoenfeld v. Babbitt ,

168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of

discrimination is evidence that, if believed, establishes the

e xistence of discriminatory intent behind an employment decision

without inference or presumption. Maynard v. Bd. of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003).

50. " [D]irect evidence is composed of ' only the most

blatant remarks, whose intent could be nothing other than to

discriminate ' on the basis of some impermissible factor. "

Schoenfeld v. Babbitt , supra . Petitioner presented no credible,

competent direct evidence of age discrimination.

5 1 . " [D]irect evidence of intent is often unavailable[.] "

Sh ealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

intentional discrimination " are permitted to establish their

cases through inferential and circumstantial proof. " Kline v.

Tennessee Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

5 2. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting

burden analysis established by the United States Supreme Court

in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and

Texas Dep artment of Community Affairs v. Burdine , 450 U.S. 248

(1981), is applied. Under this well - established model of proof,

the complainant bears the initial burden of establishing a prima

facie case of discrimination. When th e charging party, i.e.,

Petitioner, is able to make out a prima facie case, the burden

to go forward shifts to the employer to articulate a legitimate,

non - discriminatory explanation for the employment action. See

Dep ' t of Corr. v. Chandler , 582 So. 2d 11 83, 1186 (Fla. 1st DCA

1991) (discussing shifting burdens of proof in discrimination

cases under McDonnell and Burdine ). The employer has the burden

of production, not persuasion, and need only articulate that the

decision was non - discriminatory. Id. ; Al exander v. Fulton Cnty,

G a. , 207 F.3d 1303, 1339 (11th Cir. 2000). The employee must

then come forward with specific evidence demonstrating that the

reasons given by the employer are a pretext for discrimination.

Schoenfeld v. Babbitt , supra , at 1267. T he employee must

satisfy this burden by showing directly that a discriminatory

reason more likely than not motivated the decision, or

indirectly , by showing that the proffered reason for the

employment decision is not worthy of belief. Dep ' t of Corr. v.

C handler , supra , at 1186; Alexander v. Fulton Cnty., Ga . , supra .

Petitioner has not met this burden.

5 3 . " Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intention ally discriminated against the

[Petitioner] remains at all times with the [Petitioner]. " EEOC

v. Joe ' s Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir.

2002); see also Byrd v. BT Foods, Inc. , 948 So. 2d 921, 927

(Fla. 4th DCA 2007) ( " The ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times. " ).

5 4. To establish a prima facie case of age discrimination

under the federal Age Discrimination in Employment Act (ADEA),

the complainant must show tha t : (1) he was a member of a

protected age group (i.e., over 40); (2) he was subject to an

adverse employment action; (3) he was qualified for the job; and

(4) he was replaced by a younger person. Benson v. Tocco, Inc. ,

113 F.3d 1203, 1207 (11th Cir. 1997 ), citing McDonnell , supra

(the 11th Circuit has adopted a variation of the McDonnell test

in ADEA violation claims.) .

5 5. However, in cases alleging age discrimination under

section 760.10(1)(a), FCHR has concluded that unlike cases

brought under ADEA, the age of 40 has no significance in the

interpretation of the Florida Civil Rights Act of 1992. FCHR

has determined that to demonstrate the last element of a prima

facie case of age discrimination under Florida law, it is

sufficient for Petitioner to sho w that he was treated less

favorably than similarly situated individuals of a " different "

age as opposed to a " younger " age. See Marchinko v. The

Wittemann Co., Inc. , Case No. 05 - 2062 (Fla. DOAH Nov. 1, 2005),

rejected in part , Case No. 2005 - 00251 (FCHR J an. 6, 2006), and

numerous cases cited therein.

5 6. As to the first element of proving a prima facie case

of age discrimination, Petitioner is, and was at the time of his

termination of employment from Respondent, a member of a

protected age group for pur poses of ADEA. As to the second

element, Petitioner was subject to adverse employment action

when he was terminated. Thus, Petitioner meets the first two

elements of a prima facie case.

5 7. However, Petitioner failed to prove the third and

fourth eleme nts of a prima facie case. As to the third element,

although Petitioner was qualified for the job when hired,

beginning with the January 2009 counseling and corrective action

record, Petitioner failed to meet the minimum performance

standards imposed on c ar sales associates. Petitioner presented

no credible evidence to establish that he , in fact , met those

performance standards; he only presented his unsubstantiated

accusations that it was the fault of various others that he

could not achieve the sales an d profit goals. Thus, Petitioner

failed to prove that at the time he was terminated, he met the

qualifications for a sales associate.

5 8. As to the fourth element of a prima facie case, no

credible evidence was offered to prove that anyone was hired to

r eplace Petitioner, much less from a " different " age group.

Additionally, no credible evidence was offered to prove that

other similarly situated employees of a different age than

Petitioner were treated more favorably than Petitioner.

Petitioner presente d no evidence that other car salespersons

were held to different standards, such as if Petitioner had

evidence that other salespersons had failed to meet their sales

requirements to the same extent as Petitioner over the same

prolonged period of time and h ad failed to earn sufficient

commissions to cover their draws to the same extent as

Petitioner over the same prolonged period of time, but were not

terminated. Indeed, Petitioner presented no competent evidence

as to the actual ages of other car salespers ons so as to

establish in the first instance that there were salespersons of

different age groups, much less than that they were held to

different standards. Thus, Petitioner failed to establish a

prima facie case of age discrimination.

5 9. Even if Petit ioner had established a prima facie case

of age discrimination, Respondent articulated a legitimate,

non - discriminatory explanation of the adverse employment action.

The decision to terminate Petitioner was based on Petitioner ' s

demonstrated failure to me et sales goals and Petitioner ' s

failure to take specific actions to improve his work

performance. Put plainly, Petitioner was a car salesman who was

not selling enough cars. Petitioner was not earning enough in

commissions to offset the draws he took out of the dealership.

60. Applying the McDonnell analysis outlined above, the

burden then shifts to Petitioner to show that a discriminatory

reason , more likely than not , motivated the decision or that the

proffered reason for the employment decision is not worthy of

belief. Dep ' t of Corr. v. Chandler , supra ; Alexander v. Fulton

Cnty, G a. , supra . The " pretext analysis focuses on a narrow

question: Would the proffered evidence allow a reasonable

factfinder to conclude that the articulated reason for the

dec ision was not the real one? " Walker v. Prudential Prop. &

Cas. Ins. Co. , 286 F.3d 1270, 1276 (11th Cir. 2002). Petitioner

has not met its burden of proving pretext.

61. Though Petitioner was quick to blame management or

fellow employees for his shortc omings, Petitioner presented no

credible evidence that his poor work performance, as shown

through consistent evaluations and corrective action records,

was actually the fault of others. No credible evidence was

presented to suggest that the articulated r eason -- not selling

enough cars and not earning enough commissions to cover

Petitioner ' s draws -- was a pretext to mask age discrimination.

Instead, the more credible evidence established that the

decision to terminate Petitioner was legitimately based on

Pet itioner ' s poor work performance.

6 2. Petitioner ' s speculation and personal belief

concerning the motives of Respondents are not sufficient to

establish intentional discrimination. See Lizardo v. Denny ' s,

Inc. , 270 F.3d 94, 104 (2d Cir. 2001)( " [ p ] laintiff s have done

little more than to cite to their mistreatment and ask the court

to conclude it must have been related to their race. This is

not sufficient. " ).

6 3. Finally, Petitioner argued the additional theory that

his termination was an unlawful employm ent practice because it

was retaliation for his complaint of age discrimination. A

prima facie case of retaliation contains three elements:

(1) Petitioner engaged in an activity that Title VII protects;

(2) Petitioner suffered an adverse employment action ; and

(3) there is a causal connection between participation in a

protected activity and the adverse employment decision. Maclean

v. City of St. Petersburg , 194 F. Supp. 2d 1290, 1297 (M.D. Fla.

2002). If a prima facie case is established, the burden shi fts

to Respondents to rebut the presumption of retaliation by

producing legitimate reasons for the adverse employment action.

Then the burden would shift back to Petitioner to prove that the

proffered reasons were pretextual, to mask retaliation. Id.

6 4 . An employee is protected if he opposes any unlawful

employment practice. Id. Petitioner claims this protection,

based on his alleged complaint about age discrimination.

6 5. Although Petitioner has established an adverse

employment action, in that he was terminated, Petitioner ' s

attempt to establish a prima facie case of retaliation fails on

the issue of proof as to causation. As found above, Petitioner

failed to prove that his complaint about age discrimination was

communicated to Respondents before Petitioner was terminated.

Instead, as found above, the more credible evidence establishes

that Petitioner did not make known to Respondents his

allegations of age discrimination until well after Petitioner

was terminated. Thus, Petitioner failed to pro ve that his

termination was in retaliation for his complaint about age

discrimination.

6 6. Even if Petitioner had established a prima facie case

of retaliation for the reasons set forth above with respect to

the age discrimination claim, Respondents have established

legitimate reasons for the adverse employment action, and

Petitioner has failed to prove that such reasons were a mere

pretext for discrimination or for retaliation. Thus,

Petitioner ' s retaliation claim was not proven.

RECOMMENDATION

Based u pon the foregoing Findings of Fact and Conclusions

of Law, it is:

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Ian Simpson ' s Petition for

Relief.

DONE AND ENT ERED this 25th day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of August , 2011 .

ENDNOTE S

1/ Ms. Underbrink represented Petitioner in pre - hearing

proceedings, at the final hearing, and for a short time after

the f inal hearing. Ms. Underbrink subsequently moved for and

was granted leave to withdraw as counsel for Petitioner, and ,

thereafter, Petitioner proceeded pro se, filing a motion for

extension of the deadline to file post - hearing submittals and ,

thereafter, f iling a post - hearing submittal by the extended

deadline.

2/ In large part, Petitioner ' s post - hearing submittal improperly

referred to matters that are not in the record of the final

hearing. The undersigned did not consider any such references,

because F indings of F act in this R ecommended O rder " sh all be

based exclusively on the evidence of record and on matters

officially recognized . " § 120.57(1)(j), Fla. Stat. (2011).

Likewise, the undersigned gave no consideration to a letter

filed by Petitioner on August 18, 2011, which appeared to be in

the nature of evidence improperly tendered months after the

final hearing and evidentiary record were closed.

3/ The form signed by Mr. Simpson and Mr. Tyree, specifying the

monthly six - car sales requirement, had an obvious error on it,

in that it stated that it was issued in February 2009.

Mr. Tyree acknowledged the error, explaining that he utilized

the form he had brought over from the prior dealership and

admitting that he must have overlooked changing the da te.

Petitioner acknowledged that his signature was on the document,

but rather than consider the possibility of a date error, he

jumped to the conclusion that the document was a forgery,

because Mr. Tyree was not at Courtesy Chevrolet in February

2009. S ince it is such a clear matter of record that Mr. Tyree

was not at Courtesy Chevrolet in February 2009, Mr. Tyree ' s

explanation of the error is accepted as more reasonable and

logical than Petitioner ' s unsubstantiated accusation of

" forgery. "

4/ Petitio ner claimed that he must have offset his draws by

commissions earned in July 2009, when he was credited with the

sale of 3.5 units, because his final paycheck paid him several

hundred dollars. However, Petitioner did not establish that he

had earned enoug h in commissions to offset his arrearages.

Instead, Ms. Bickram explained that AutoNation absorbs the

losses of accumulated arrearages when a sales associate leaves.

5/ Unless otherwise indicated, all references to the Florida

Statutes are to the 20 09 version , which was the law in effect

when the alleged unlawful employment practices took place.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Peggy A. Underbrink, Esquire

5737 Lowell Avenue

Indianapolis, Indiana 46219

Richard A. Ivers, Esquire

Law Office of Richard A. I vers

2421 North University Drive, Third Floor

Coral Springs, Florida 33065

Ian Simpson

1800 Arlington Street

Orlando, Florida 32805

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the d ate 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.