14-002697 Lamar B. Waters vs. R.H. Motors, D/B/A Kia Of Orange Park Status: Closed Recommended Order on Thursday, October 30, 2014.

Summary: Petitioner did not make a prima facie case necessary to prove discrimination by his employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR B. WATERS,

Petitioner,

vs. Case No. 14 - 2697

R.H. MOTORS, d/b/a KIA OF ORANGE

PARK,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fin al hearing was conducted in this

case on October 6, 2014, in Jacksonville, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings ( " DOAH") .

APPEARANCES

For Petitioner: Adam J. Kohl, Esquire

Law Office of Kohl and Smith

Post Office Box 600049

Jacksonville, Florida 32260 - 0049

For Respondent: Leonard T. Hackett, Esquire

Vernis and Bowling of North Florida , P.A.

4309 Salisbury Road

Jacksonville, Florida 32216

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, R.H. Motors ,

d/b/a K ia of Orange Park ( " Kia " ), discriminated against

Petitioner, Lamar B . Wat ers ( " Waters " ), on the basis of age in

derogation of the Florida Civil Rights Act of 1992.

PRELIMINARY STATEMENT

This matter came to DOAH by way of a letter of transmittal

from the Florida Commission on Human Relations (the " Commission " )

dated June 10, 2 014. The Commission found that no cause existed

to support WaterÓs claim of age discrimination. Waters timely

filed a Petition for Relief, and the matter was forwarded to DOAH

and assigned to the undersigned Administrative Law Judge.

At the final hearin g in this matter, Waters testified on his

own behalf but did not call any other witnesses. No documentary

evidence was offered for admission by Waters at final hearing.

Kia called two witnesses: Robert Hogan, vice president; and

Billy Hutchinson, office manager. RespondentÓs E xhibit 1 was

admitted into evidence.

The parties could not agree as to whether a transcript of

the final hearing would be ordered. By rule, the parties have

ten days from the date of final hearing or ten days from the date

the tr anscript is filed to submit proposed recommended orders

( " PROs " ). As of the date of this Recommended Order, no

transcript has been filed at DOAH but each party has submitted

its PRO.

FINDINGS OF FACT

1. Waters is a 71 - year - old Caucasian male who r esides in

Green Cove Springs, Florida. At all times pertinent hereto,

Waters was employed by Kia at its automobile dealership in Orange

Park, Florida. By all accounts, Waters was extremely well liked

at the dealership. He had a jovial personality and go t along well

with his co - workers. He was generally seen as a nice, retired man

with ample financial wherewithal to enjoy life. Waters himself

says that he is financially comfortable, but does not consider

himself rich. He lives in a nice house that is v alued at around

$900,000 (or was at the time he purchased it). He owns a nice

boat that some fellow employees have used for parties and

gatherings. Waters is a college football fan and enjoys spending

time watching and attending games, especially for his favorite

team, the Georgia Bulldogs. In 2013 , Waters filed for bankruptcy,

but for the purpose of working out a deal on his home mortgage,

not -- apparently -- due to significant financial problems. Waters

often said that he was financially sound and was wo rking Ðonly to

get away from his wife,Ñ but that may have been in jest rather

than serious.

2. Kia is a dealership which sells both new and used

automobiles. It has been in existence since August 2008. It is

owned by R.H. Motors, a Florida corporation . The vice president

of operations for R.H. Motors is Robert Hogan. The dealership,

including the car lot, offices, and service department, is located

on a large tract of land in Orange Park. The new car section of

the dealership is located on a large l ot which includes the office

building and service area. Across from the new car section there

is a smaller lot which was initially used for selling used car s .

There is a mobile home or modular building on the used car lot

which is used as an office.

3. Waters joined the U.S. Navy at age 17; he later entered

flight school with the U.S. Army. He served time in Viet n am

during the conflict with that country. Waters was honorably

discharged from the service in 1975. He took a job flying

airplanes for AFLAC (or its predecessor company) and later became

a general manager for the company. Waters retired from AFLAC in

2004 and then went to work for a Volkswagen dealership in Orange

Park, Florida. He worked as a floor salesman for the Volkswagen

dealership.

4. In November 2009, when Waters was 66 years old, he was

offered a job at Kia. He accepted and started work on December 1,

2009, as a floor salesman, selling new and used cars. Waters had

been hired by Joe Esposito, the general manager for Kia at that

ti me. Waters was compensated at minimum wage plus commission on

cars he sold. While he was a salesman, Waters would take off from

work either Tuesday or Thursday of each week and every Sunday.

5. In June 2010 -- or thereabouts -- Waters was offered a

differen t position at Kia. Waters described the position as the

Ðwholesale managerÑ for the dealership. He said his duties

included buying and selling cars at auctions. He also managed the

used car lot, did appraisals for cars being traded in, and

continued to sell cars.

6. In April 2013, general manager Esposito placed Waters on

indefinite leave due to Ðinternal issuesÑ at the dealership. In

May 2013 , Esposito asked Waters to attend a class on managing

customers. The class was to be held at KiaÓs primary hea dquarters

in South Carolina. Waters and another employee traveled to South

Carolina, but there was no training provided. An employee at

headquarters talked with the two men briefly, but there were no

classes or training. Waters had understood the reason he was sent

to South Carolina was so that he could be assigned a new job as

some kind of customer manager. There was obviously some

disconnect between what Waters was told and what he understood to

have been said.

7. When Waters returned from South Car olina, he found that

Esposito had been fired as the general manager at Kia. Waters

somehow met with Robert Hogan (described by Waters as " the owner " )

when Hogan came to visit the dealership even though Waters was

supposedly on indefinite leave at that tim e. When Hogan found out

Waters had been placed on leave by Esposito, he immediately

reinstated Waters and made sure he was paid back - pay for the time

he was out of work.

8. At that time, Hogan also asked Waters to manage the used

car side of the dealers hip. Waters remembers that he was hired as

the Used Car Manager. Hogan says he was hired as the Budget Car

Manager, i.e., that Waters was only to be responsible for selling

the least attractive used cars. Those cars generally came onto

the lot as trade - ins by persons purchasing new vehicles. Waters

said that as part of this new job, he was tasked with going to

auctions for the purpose of obtaining additional used cars for the

Kia dealership. Hogan said Waters was never authorized to

purchase cars for t he dealership, and that the dealership already

had too many used cars. No additional testimony was provided to

rectify this disparity. Either one of the witnesses was not

telling the truth or Waters was mistaken about his duties.

9. A brief explanation of the dealership is warranted: Kia

sells both new and used cars. Used cars come from various

sources, including trade - ins by customers buying new cars,

purchases from rental car fleets, and purchases from auctions.

The used cars were for a time sold f rom a lot adjacent to the main

Kia lot. Later, Kia moved all used cars over to the same lot with

the new cars. The used car lot was then used as a place to store

new car inventory.

10. When Waters was reinstated to his job and began working

with used ca rs, a new general manager -- Mr. Record -- had been hired.

Record was instrumental in the change that moved all used cars

over to the new car lot. He was also very harsh and unfriendly

with employees at the dealership, so Hogan eventually fired him as

genera l manager as well. He was replaced by Jeff Norman.

11. Norman continued the practice of keeping all the cars,

new and used, on one lot -- except, it appears, for the cars deemed

" budget " cars. Norman also took over some of WatersÓ tasks and

responsibiliti es, e.g., Norman began doing the appraisals of used

automobiles. Norman also took over the acquisition of used cars,

although Waters would sometimes disagree with the choices Norman

made. Norman told Waters a new policy of Kia was to get rid of

the budge t cars as quickly as possible rather than trying to

repair them for higher re - sale.

12. At some point in time after Waters had been reinstated

to his job, Hogan began to have concerns about the number of hours

the used car lot office was being manned. He expected that office

to be open whenever the main lot office was open, i.e., from

9:00 a.m. until 10:00 p.m. Hogan had called and/or gone by the

used car lot on numerous occasions around 5:30 p.m. or 6:00 p.m.

in the evening and found it closed.

13. Hogan raised his concerns about WatersÓ work schedule

with the new GM, Norman, and asked him to talk to Waters, get him

back on track, and tell him what was expected of him as an

employee of Kia. Norman called Waters into his office on

October 16 or Oct ober 17 (the date is in dispute) to discuss the

matter.

14. Norman told Waters that things were changing at Kia. He

said the dealership would be trying to sell 250 cars a month. To

do that, employees were going to be expected to work long, 12 - hour

days, six or even seven days a week. Norman allegedly asked

Waters how old he was, and then said Waters was about the same age

as NormanÓs father. Norman allegedly told Waters that the

dealership did not want to put him under that kind of stress.

15. Waters told Norman he would not like the proposed new

work schedule and hours. Norman allegedly told Waters that he

(Norman) was worried that a man WatersÓ age could not stand the

stress of working those hours. 1/ Waters took NormanÓs words to

mean, in essence, that Waters was being terminated from

employment. He replied to Norman only, " I appreciate it, " and

walked toward the door. As he was exiting, Norman said that he

would check with the sister Kia dealership in the Southside area

of Jacksonville to see if they had any sales positions open.

Waters apparently did not accept that offer.

16. After the meeting with Norman, Waters went to his desk

and gathered his personal belongings. He went back into the

dealership and said goodbye to Hutchinson, the young office

manager who had been friendly to Waters during his tenure at Kia.

Waters hugged Hutchinson, said " IÓm out of here, " and indicated

that he did not want to work on weekends. He then left the

premises. 2/

17. On the 17 th day of October, Hutchinson w as instructed to

fill out a Separation Notice to reflect WatersÓ cessation of

employment at Kia. The reason given on the form for WatersÓ

leaving was " Voluntary [sic] Quit. " WatersÓ term of employment

was listed as December 1, 2009 through October 17, 20 13. WatersÓ

work schedule was listed as 9:00 a.m. until 10:00 p.m., seven days

a week. Hutchinson said that is simply a statement of when the

store is open; each person works the hours necessary to get their

job done. In the description of Waters in the Separation Notice,

Hutchinson wrote, " Great company guy. None better. " There is not

dispute that Waters was a well - liked person at the dealership.

18. Waters did not see the Separation Notice until it was

sent to his attorney in preparation for final h earing. Waters

disagrees with the date of the notice, the work hours listed, and

that he voluntarily quit his job.

19. On October 1, 2013, just two weeks before leaving Kia,

Waters had been given a raise from $1 , 500.00 per month, plus 5% of

profits gener ated by the used car department, to $4 , 000.00 per

month plus 5% of the profits.

20. Waters did not contact Hogan to inquire as to whether

something could be worked out concerning his continued employment.

Hogan had been exceptionally nice to Waters in th e past, but

Waters did not pursue relief with him. Hogan remembers trying to

contact Waters once via telephone but never talked to him about

the matter. As far as Hogan is concerned, Waters voluntarily

terminated his employment with Kia because he did no t want to work

the hours needed. Hogan had hired Waters at age 66 and did not

have any objection to Waters working for as long as he felt

healthy enough to do so.

21. After he left his employment with Kia, Waters has sought

but been unable to locate ano ther management job. He has no

interest in going back into a sales position.

22. No testimony or evidence was presented at final hearing

as to whether WatersÓ position with Kia was filled or, if so,

whether a younger person was hired to replace him.

CON CLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

Unless otherwise specified herein, all references to Florida

Statutes shall be to the 2014 codification.

24. The Florida Civil Rights Act of 1992 (the " Act " ) is

codified in sections 760.01 Î 760.11, Florida Statutes. The ActÓs

general purpose is " to secure for all individuals within the state

freedom from di scrimination because of race, color, religion, sex,

national origin, age, handicap, or marital status and thereby to

protect their interest in personal dignity, to make available to

the state their full productive capacities, to secure the state

against do mestic strife and unrest, to preserve the public safety,

health, and general welfare, and to promote the interests, rights,

and privileges of individuals within the state. " § 760.01, Fla.

Stat. When " a Florida statute [such as the FCRA] is modeled after

a federal law on the same subject, the Florida statute will take

on the same constructions as placed on its federal prototype. "

Brand v. Fla . Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994). Therefore, the FCRA should be interpreted, where possible,

to conform to Title VII of the Civil Rights Act of 1964, which

contains the principal federal anti - discrimination laws.

25. Section 760.10, provides, in relevant part:

(1) It is unlawful employment practice for an

employer:

(a) To discharge or fail to 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 individualÓs

race, color, religion, sex, national origin,

age, handicap, or ma rital status.

26. Complainants alleging unlawful discrimination may prove

their case using direct evidence of discriminatory intent. Direct

evidence is evidence that, if believed, would prove the existence

of discriminatory intent without resort to inf erence or

presumption. Denney v. City of Albany , 247 F.3d 1172, 1182 (11 th

Cir. 2001); Holifield v. Reno , 115 F.3d 1555, 1561 (11 th Cir.

1997). But courts have held that " only the most blatant remarks,

whose intent could be nothing other than to discrimi nate " satisfy

this definition. Damon v. Fleming Supermarkets of Fla., Inc. , 196

F.3d 1354, 1358 - 59 (11 th Cir. 1999) (internal quotations omitted),

cert . denied , 529 U.S. 1109 (2000).

27. In the absence of direct evidence, the law permits an

inference of discriminatory intent, if complainants can produce

sufficient circumstantial evidence of discriminatory animus, such

as proof that the charged party treated persons outside of the

protected class (who were otherwise similarly situated) more

favorably than the complainant was treated. Such circumstantial

evidence constitutes a prima facie case.

28. In McDonnell Douglas Corp oration v. Green , 411 U.S. 792,

802 - 803 (1973), the U.S. Supreme Court explained that the

complainant has the initial burden of establi shing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So. 2d

1008, 1012 n.6 (Fla. 1 st DCA 1996, affÓd 679 So. 2d 1183 (Fla.

1996) ) . If, however, the complainant succeeds in making a prima

facie case, then the burden shifts to the accused employer to

articulate a legitimate, non - discriminatory reason for its

complained - of conduct. This intermediate burden of production,

not persuasion, is " exceedingly light. " Turnes v. Amsouth Bank ,

N.A. , 36 F.3d 1057, 1061 (11 th Cir. 1994). If the employer

carries this burden, then the complainant must establish that the

proffered reason was not the true reason but merely a pretext for

discrimination. St. MaryÓs Honor Ctr . v. Hicks , 509 U.S. 502,

516 - 518 (1993). At all times, the " ultimate burden of persuading

the trier of fact that the [charged party] intentionally

discriminated against " him remains with the complainant. Silvera

v. Orange Co. Sch. Bd. , 244 F.3d 1253, 1258 (11 th Cir. 2001).

29. To establish a prima facie case of age discrimination in

the present matter, Water is required to show that he " (1) is a

member of a protected class; (2) was qualified for the position at

issu e; (3) was subject to an adverse employment action; and (4)

was replaced by someone outside the protected class, or, in the

case of disparate treatment, shows that other similarly situated

employees were treated more favorably. " Taylor v. On Tap

Unlimited , Inc. , 282 Fed. Appx. 801, 803 (11 th Cir. 2008).

30. There is no dispute that Waters belongs to a protected

class due to his age. As such, Waters satisfied the first prong

of a prima facie case of employment discrimination.

31. As to the second prong, there is no dispute that Waters

had the skills necessary to perform his duties as used car (or

budget car) manager and did an admirable job.

32. Termination of his employment would constitute an

adverse employment action, but there is insufficient evidenc e to

find that Waters was, indeed, terminated from employment. While

he believes he was terminated, his employer believes Waters simply

decided to leave voluntarily. The evidence does not support

either position sufficiently to determine whether the thir d prong

was satisfied.

33. Nonetheless, with respect to the fourth prong, Waters

provided no competent evidence that he was treated any differently

than other similarly situated workers. In fact, he was treated

favorably by management in various respect s. Waters also did not

provide proof that he was replaced by a younger or less qualified

person.

34. Based upon these facts, Waters failed to establish a

prima facie case of age discrimination, and the burden of

production never shifted to Kia to articu late a legitimate, non -

discriminatory reason for the termination of WaterÓs employment

or, in the alternative, that Waters was not fired at all.

35. Waters failed to meet his burden of proving a prima

facie case of discrimination based on his age. That f ailure ends

the inquiry. See Ratliff v. State , 666 So. 2 1008, 1012 n.6 (Fla.

1 st DCA 1996) (citing Arnold v. Burger Queen Systems , 509 So. 2d

958 (Fla. 2d DCA 1987)), affÓd 679 So. 2d 1183 (Fla. 1996).

36. Waters is a pleasant, well - dressed man of adva nced

years, but he appears healthy and able to work for many years to

come. There is no reason to believe he cannot find suitable

employment if he tries, but there is no evidence that his

employment with Kia was terminated -- especially on the basis of age

discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations, upholding its determination that no

cause exists for a finding of discrimination against Petitioner,

Lamar B. Waters, by Respondent, R.H. Motors, d/b/a Kia of Orange

Park.

DONE AND ENTERED this 30th day of October , 2014 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Admini strative 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 30th day of October , 2014 .

ENDNOTE S

1/ Unfortunately, Norman did not testify at final hearing. The

only evidence of his statements to Waters is uncorroborated

hearsay. While such statements could be deemed to be admissions,

Waters did not demon strate sufficiently that the words attributed

to Norman were correct. WatersÓ own response to the alleged

statements militates against their veracity.

2/ Hutchinson remembers telling Waters goodbye on the morning of

October 17 at around 10:00. Waters, o n the other hand, remembers

doing so on the afternoon of October 16. Whichever day and time

the event happened does not affect the findings herein.

COPIES FURNISHED:

Leonard T. Hackett, Esquire

Vernis and Bowling of North Florida, P.A.

4309 Salisbury R oad

Jacksonville, Florida 32216

(eServed)

Adam J . Kohl, Esquire

Law Offices of Kohl and Smith

Post Office Box 600049

Jacksonville, Florida 32260 - 0049

(eServed)

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

2009 Apala chee Parkway , Suite 100

Tallahassee, Florida 32301

(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 Orde r should be filed with the agency that

will issue the Final Order in this case.