14-005506 Johnny L. Torrence vs. Hendrick Honda Daytona Status: Closed Recommended Order on Thursday, February 26, 2015.

Summary: Petitioner failed to meet his burden of proving his termination from employment was the result of unlawful discrimination based on race or age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNNY L. TORRENCE ,

Petitioner ,

vs. Case No . 1 4 - 5506

HENDRICK HONDA DAYTONA ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, this case was he ard on February 9,

2015, by video teleconference at sites in Tallahassee, Florida ,

and Daytona Beach, Florida, before E. Gary Early, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Johnny L. T orrence , pro se

237 North Seneca Street

Daytona Beach, Florida 32114

For Respondent: Leonard T. Hackett , Esquire

Vernis & Bowling of North Florida , P.A.

4309 Salisbury Road

Jacksonville, Florida 32216

STATEMENT OF THE ISSU E

Whether the Petitioner , Johnny L. Torrence, was subject to

an unlawful employment practice by Respondent, Hendrick Honda

Daytona , on account of his r ace or his age in violation of

s ection 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On February 20, 2014 , Petitioner filed a complaint of

discrimination w ith the Florida Commission on Human Relations

(FCHR) which alleged that Respondent violated s ection 760.10,

Florida Statutes, by discriminating against h im on the basis of

h is r ace or his age .

On Jul y 28, 2014 , the FCHR issued a Determinatio n:

No Cause and a Notice of Determination: No Cause, by which the

FCHR determined that reasonable cause did not exist to believe

that an unlawful employment practice occurred. On November 17,

2014 , Petitioner fi led a Petition for Relief with the FCHR . 1/

The Petition was transmitted to the Division of Admini strative

Hearings to conduct a final h earing.

T he final hearing was set for January 13, 2015, and was

convened as scheduled. Due to miscommunication betwee n

Respondent and its corporate office , Respondent was unaware that

the hearing had been scheduled or that it was being held. As a

result, the hearing was rescheduled for February 9, 2015, and

was held on that date as scheduled.

At the final hearing, Pe titioner testified on his own

behal f . Respondent presented the testimony of Ralph Moreford,

RespondentÓs service director; and Dale Lockwood, RespondentÓs

shop foreman. R espondentÓs Exhibits 1 and 2 were received into

evidence.

No transcript of the hea ring was filed. The parties filed

P roposed R ecommended O rder s , which ha ve been considered in the

preparation of this Recommended Order. To the extent the

proposed orders allege facts that were not the subject of

testimony or evidence received during the final hearing, those

alleged facts have not been considered. References to statutes

are to Florida Statutes (201 4 ) unless otherwise noted.

FINDINGS OF FACT

1 . Petitioner , who was at all times relevant to this

matter an employee of Respondent , is African - American.

2. There was no direct evidence of PetitionerÓs age.

However, Petitioner worked at the automobile dealership

currently ow ned by Respondent since October 1987. During

PetitionerÓs questioning of Mr. Moreford, Petitioner indicated

that the two had worked together at the dealership for vir t ually

that entire period, beginning when they were 18 years of age, a

statement with which Mr. Moreford appeared to agree. Thus, a

reasonable inference can be drawn that Petitioner is more than

40 years of ag e.

3 . Respondent owns and operates a n automobile dealership

located in Daytona Beach, Florida , having purcha sed the

dealership in September 2011 . Respondent is part of a larger

group of dealerships, with its corporate offices, including that

of its hu man resources department, located in Charlotte, North

Carolina. Respondent employs more than 15 full - time employees

at any given time.

4 . Petitioner was initially employed by Respondent in

October 1987. He worked as a detailer for some period, and more

recently was employed as a lot attendant. His duties were

generally to greet customers and take vehicle information, and

move vehicles from place to place as needed by sales and

maintenance personnel.

5 . On May 2, 2013, a customer brought his vehicle to

Respondent for maintenance. The customer was a former employee

of Respondent, and was known by Petitioner. The customer was

initially met by an advisor other than Petitioner. The customer

asked that his vehicle mileage be listed on the service ticke t

as 1,000 miles less than its actual mileage. 2 / Recording a

vehicleÓs mileage as anything other than its actual mileage is

contrary to RespondentÓs policies. Thus, t he request was

refused.

6 . Petitioner was assigned to deliver the customerÓs

vehicle and paperwork to the service lane . After having his

request to reduce the vehicleÓs mileage on the service ticket

refused, the customer asked Petitioner to do the same.

Petitioner complied with the request , scratched through the

correct mileage written o n the service ticket , and wrote in the

lower mileage requested by the customer . Upon delivery of the

service ticket to the service lane manager, the scratched -

through mileage was noticed. Petitioner was asked whether the

mileage he had written on the tic ket was correct , to which he

r eplied in the affirmative. The vehicleÓs mileage was

subsequently confirmed as being 1,000 miles more than that

written by Petitioner.

7 . Petitioner was called into a meeting by RespondentÓs

management to explain the situat ion. Petitioner explained that

he only did what the customer wanted him to do - - a variant of

Ðthe customer is always right.Ñ As a result of his action,

Petitioner was given a written reprimand . Based on the

testimony of Mr. Moreford, it was determined that the Employee

Counseling Report was a business record as defined in s ection

90.802(6).

8 . In late September 2013, a customer brought her vehicle

in to Respondent for two new tir es. Her old tires were removed

and taken to the dealershipÓs holding a rea , at which a ll used

tires are marked for identification and collected for delivery

to a used tire recycling facility. Respondent does not allow

employees to take used tires from the holding area.

9 . After the customerÓs new tires were mounted , the

cu stomer indicated that she wanted one of her old tires for use

as a spare. An employee was sent to the holding area to

retrieve one of the tires. Since the tires are marked, there

would have been no mistaking them. After a search, the employee

was unable to locate the used tires.

10 . Several employees, including Petitioner , were asked if

they knew the whereabouts of the used tires. Petitioner

admitted that his sister needed better tires on her car, and

that he had given the customerÓs used tires to her . Petitioner

was instructed to retrieve the tires and return them so they

could be provided to the customer. Petitioner left the premises

to retrieve the tires.

11 . After having waited a reasonable period of time for

Petitioner to return, Respondent wa s compelled to give the

customer a new tire from its inventory for her to use as her

spare. After the customer left, Petitioner returned to the

dealership with two used tires that were not the ones removed

from the customerÓs vehicle.

12 . On or about Oc tober 2, 2013, Petitioner was called

into a meeting with the service lane manager , Mr. Sandrowicz,

along with Dale Lockwood and Ralph Moreford. Mr. Lockwood and

Mr. Moreford had worked at the dealership , under its current and

prior owners, f or most if not all of the years of PetitionerÓs

employment .

13 . During the meeting, the attendees discussed the

incident with the tires, which was a violation of RespondentÓs

policies. Petitioner stated that a younger Caucasian employee,

Brandon Swift, had done the s ame thing without repercussions.

Nonetheless, Mr. Moreford advised Petitioner that he was

terminated from employment as a result of the incident . On

October 7, 2013, Petitioner was provided with a Separation

Report describing the incident and its consequ ences. Based on

the testimony of Mr. Moreford, it was determined that the

Separation Report was a business record as defined in s ection

90.802(6).

14 . After the meeting was over, Mr. Swift was asked if he

had taken any tires from the used tire holding a rea . Mr. Swift

denied that he had done so . T he used tire holding area was

searched, and the tires alleged to have been taken by Mr. Swift

were located. Petitioner s peculated that Mr. Swift may have

returned the allegedly purloined tires in time to avoid

detection, though there was no support for that supposition.

Thus, Mr. Swift is not a useful comparator of any dissimilar

disciplinary action based on race or age.

15 . Mr. Moreford and Mr. Lockwood testified that

PetitionerÓs race and age had no beari ng on the decision to

terminate Petitioner. Rather, they testified credibly that the

decision was based solely on the fact that Petitioner had

violated company policy after having recently received a written

warning for a different violation. Mr. Lockwoo d knew of no

employee other than Petitioner having taken used tires.

16 . Petitioner identified no instance of any racially

disparaging comments directed at himself or any other employee

by anyone affiliated with Respondent. Petitioner identified no

inst ance of any ill - treatment directed at him due to his age.

17 . Petitioner identified two instances in addition to

that involving Mr. Swift that he believed support his claim of

discrimination.

18 . For some period of time, ÐJ.D.Ñ was RespondentÓs

servi ce manager. Petitioner did not like the way J.D. talked to

him. On one occasion, J.D. came to the back of the shop area

and said all of the employees gathered there were Ðignorant and

stupid.Ñ The group of employees included three African -

Americans and one or two Caucasians. In PetitionerÓs view, J.D.

was generally unpleasant to everyone. Thus, PetitionerÓs

testimony supports a finding that J.D. Ós disagreeable nature was

visited equally on all subordinate employees regardless of race

or age.

19 . As a second comparator, Petitioner alleged that

RespondentÓs African - American employees were charged for washing

their cars at RespondentÓs car wash, while Caucasian employees

washed their cars, trucks, boats, and motorcycles free of

charge. There was no cor roborating evidence for PetitionerÓs

statement and , standing alone, it is insuffi ci ent to support a

finding that such occurred. Furthermore, the allegation, even

if proven, was not so similar to that forming the basis for the

adverse employment action as to provide a useful comparison.

20 . Petitioner argued that Ðit wasnÓt right the way they

fired me.Ñ He asserted that Respondent should have given him a

written warning for the tire incident rather than firing him.

While the act of taking two used tires that, but for the

customerÓs request to keep one as a spare, would have been

destined for a recycling facility seems a relatively minor

infraction, it was nonetheless a violation of RespondentÓs

policies. More to the point, regardless of the severity of the

infraction and the perceived fairness of the sanction ,

RespondentÓs decision to fire Petitioner was not based on racial

animus or age bias.

Ultimate Findings of Fact

21 . There was no competent, substantial evidence adduced

at the hearing to support a finding that the decision to

terminate Petitioner from employment was made due to

P etitionerÓs race or age. Rather, the decision was based on

PetitionerÓs decision to take two tires from RespondentÓs used

tire holding area in violation of RespondentÓs p olicies, and his

eventual return to the dealership with two tires that were not

those taken.

22 . There was no competent, substantial evidence adduced

at the hearing that persons who were not African - American or

were under the age of 40 were treated dif ferently from

Petitioner, or were subject to dis similar personnel policies and

practices.

CONCLUSIONS OF LAW

23 . Sections 120.569 and 120.57(1), Flo rida Statutes,

grant the Division of Administrative Hearings jurisdiction over

the subject matter of this proceeding and of the parties.

Discrimination

24 . Section 760.10 provides, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate again st any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

25 . Petitioner maintain s that Respondent discrim inated

against him on account of his race and his age .

26 . Section 760.11(1) provides , in pertinent part, that

Ð[a]ny person aggrieved by a violation of ss. 760.01 - 760.10 may

file a complaint with the [FCHR] within 365 days of the alleged

violation.Ñ Pe titioner timely filed his complaint.

27 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no probable cause to believe that a

violation of the Florida Civil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may requ est an administrative hearing

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of the date of determination of reasonable

cause. Ñ Following the FCHR determination of no cause,

Petitioner filed his Petition for Relief requesti ng this

hearing.

28 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as pl aced on

its federal prototype.Ñ Brand v. Fla . Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v . GlobeGround

N . Am, LLC , 18 So. 3d 17 (Fla. 3rd DCA 2009); Fla. State Univ.

v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

29 . Petitioner ha s the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla . 3 rd DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

30 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v .

GlobeGround N . Am . , LLC , 18 So. 3d at 22.

31 . Direct e vidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). Courts have held that ÐÒonly the most

blatant remarks, whose intent could be nothing other than to

discriminate . . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

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

32 . The record of this proceeding contains no direct

evidence of any racial or age bias on the part of Respondent at

any level.

33 . Petitioner presented no statistical evidence of

discrimination by Respondent in its personnel deci sions

affecting Petitioner .

34 . In the absence of any direct or statistical evidence

of discriminatory intent, Petitioner must rely on circumstantial

evidence of such intent. In McDonnell Douglas Corp oration v.

Green , 411 U.S. 792 (1973), and as refined in Texas Dep artmen t

of C om m uni ty Aff airs v. Burdine , 450 U.S. 248 (1981) and

St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993), the

United States Supreme Court established the procedure for

determining whether employment discrimination has occurred wh en

employees rely upon circumstantial evidence of discriminatory

intent.

35 . Under McDonnell Douglas , Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination. To establish a prima facie case of rac ial

discriminat ion, Petitioner must demonstrate by a preponderance

of the evidence that 1) he is a member of a protected class;

2) he was qualified for the position; 3) he was subjected to an

adverse employment action; and 4) his employer treated

similarly - situated emplo yees outside of his protected class more

favorably than he was treated. Burke - Fowler v. Orange Cnty. ,

447 F.3d 1319, 1323 (11th Cir. 2006) .

36 . To establish a prima facie case of age discrimination,

Petitioner must demonstrate by a preponderance of the evidence

that 1) he is a member of a protected 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. O'Connor v. Consol. Coin Caterers Corp. ,

517 U.S. 308 (1996); City of Hollywood v. Hogan , 986 So. 2d 634,

641 (Fla 4th DCA 2008).

37. When determining whether similarly - situated employees

have been treated differently in cases of di scriminatory

discipline, an evaluation must be made that the employees

engaged in similar conduct but were disciplined in different

ways. In making that determination, Ðthe quantity and quality

of the comparator's misconduct [must] be nearly identical to

prevent courts from second - guessing employersÓ reasonable

decisions and confusing apples with oranges.Ñ Burke - Fowler v.

Orange Cnty. , 447 F.3d at 1323 ( citing Maniccia v. Brown , 171

F.3d 1364, 1368 (11th Cir. 1999) ) .

3 8 . If Petitioner is able to prove h is prima facie case by

a preponderance of the evidence, the burden shifts to Respondent

to articulate a legitimate, non - discriminatory reason for its

employment decision. Tex . DepÓt of Cm ty . Aff. v. Burdine ,

450 U.S. at 255; DepÓt of Corr. v. Chandler , 58 2 So. 2d 1183

(Fla. 1 st DCA 1991). An employer has the burden of production,

not persuasion, to demonstrate to the finder of fact that the

decision was non - discriminatory. DepÓt of Corr. v. Chandler ,

supra . This burden of production is "exceedingly ligh t."

Holifield v. Reno , 115 F.3d at 1564; Turnes v. Amsouth Bank,

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

3 9 . If the employer produces evidence that the decision

was non - discriminatory, then the complainant must establish that

the proffered reason wa s not the true reason but merely a

pretext for discrimination. St. Mary's Honor C tr. v. Hicks , 509

U.S. at 516 - 518. In order to satisfy this final step of the

process, Petitioner must Ðshow[] directly that a discriminatory

reason more likely than not mot ivated the decision, or

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief.Ñ DepÓt of Corr. v.

Chandler , 582 So. 2d at 1186 ( citing Tex. Dep't of Cmty. Aff. v.

Burdine , 450 U.S. at 252 - 256 ) . Petitioner wou ld have to prove

not only that the employerÓs stated reason for the employment

decision was false, but also that discrimination was the real

reason for the decision. Jiminez v. Mary Washington Coll . , 57

F.3d 369, 378 (4th Cir. 1995). The demonstration of pretext

Ðmerges with the plaintiff's ultimate burden of showing that the

defendant intentionally discriminated against the plaintiff.Ñ

Holifield v. Reno , 115 F.3d at 1565.

40 . In a proceeding under the Civil Rights Act, Ð[w]e are

not in the business of adjudging whether employment decisions

are prudent or fair. Instead, our sole concern is whether

unlawful discriminatory animus motivates a challenged employment

decision.Ñ Damon v. Fleming Supermarkets of Fla., Inc. , 196

F.3d at 1361. As set forth by the Eleventh Circuit Court of

Appeals, Ð[t]he employer may fire an employee for a good reason,

a bad reason, a reason based on erroneous facts, or for no

reason at all, as long as its action is not for a discriminatory

reason.Ñ Nix v. WLCY Radio/Rahall Co mmcÓns , 738 F.2d 1181, 1187

(11th Cir. 1984). Moreover, Ð[t]he employerÓs stated legitimate

reason . . . does not have to be a reason that the judge or

jurors would act on or approve.Ñ DepÓt of Corr. v. Chandler ,

582 So. 2d at 1187.

Prima Facie Case

4 1 . Petitioner demonstrated that he is a member of a

protected class , that he was qualified to hold his position with

Respondent , and that h e was subjected to an adverse employment

action, i.e., termination from employment.

4 2 . Where Petitioner ha s faile d in the establishment of

his prima facie case is his failure to demonstrate that other

persons outside of his protected racial classification, or

persons who were substantially younger than he were subject to

personnel decisions that dif fered from those a pplied to him .

4 3 . The only evidence of a similarly - situated employee

comparator produced by Petitioner was the allegation that

Mr. Swift, a younger Caucasian man, allegedly took used tires

from the holding area without adverse consequences. However,

t h e comparison was undermined by evidence that Mr. Swift did not

take any used tires, with the tires allegedly taken having been

located in the holding area, where they were supposed to be.

4 4 . In short, Petitioner failed to prove that RespondentÓs

deci sion to terminate him was the result of any consideration of

or discriminatory intent based on race or age , or that his

treatment as an employee differed in any material way from the

treatment afforded other employees, regardless of their r ace or

their age . Therefore, Petitioner failed to prove a prima facie

case of discrimination, and his petition for relief should be

dismissed.

Legitimate, Non - discriminatory Reason

4 5 . Assuming -- for the sake of argument -- that

Petitioner made a prima facie showing, the burden would shift to

Respondent to proffer a legitimate non - discriminatory reason for

its action.

4 6 . Respondent met its burden by producing credible

evidence that Petitioner was terminated solely on the basis of

his having taken two tires from th e used tire holding area

without permission, and in violation of RespondentÓs policies

prohibiting the same, and for no other reason.

47 . Although Respondent Ós burden to refute PetitionerÓs

prima facie case was light, the evidence showing the reason for

its personnel decision to be legitimate and non - discriminatory

was substantial .

Pretext

48 . Assuming -- again, for the sake of argument -- that

Petitioner made a prima facie showing, then upon Respondent Ós

production of evidence of a legitimate non - di scriminatory reason

for its action, the burden shifted back to Petitioner to prove

by a preponderance of the evidence that Respondent Ós stated

reasons were not its true reasons, but were a pretext for

discrimination.

49 . T he record of this proceeding d oes not support a

finding or a conclusion that Respondent Ós proffered explanation

for its personnel decisions was false or not worthy of credence ,

nor does it support an inference that the explanation was

pretextual.

Conclusion

5 0 . Respondent put forth p ersuasive evidence that

Petitioner was terminated from employment as a result of his

violation of RespondentÓs policy against taking property,

regardless of its intrinsic value, and not as a result of race

or retaliation.

5 1 . Section 760.10 is designed t o eliminate workplace

discrimination, but it is Ðnot designed to strip employers of

discretion when making legitimate, necessary personnel

decisions . Ñ See Holland v. Washington Homes, Inc. , 487 F.3d

208, 220 (11th Cir. 2007) . Because Petitioner failed to put

forth sufficient evidence that Respondent had some

discriminatory reason for its personnel decision , his petition

must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida C ommission on Human

Relations issue a final order finding that Respondent, Hendrick

Honda Daytona , did not commit any unlawful employment practice

as to Petitioner, Johnny L. Torrence , and dismissing the

Petition for Relief filed in FCHR No. 201 4 - 00303 .

DON E AND ENTERED this 26th day of February, 2015, in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 26th day of February, 2015.

ENDNOTE S

1/ The period of time between the issuance of the Determination:

No Cause and the Notice of Determination: No Cause, and the

filing of the Petition for Relief was not explained. Though it

facially appears that the Petition was filed more than 35 days

from the date of the FCHR action, there was no evidence to

suggest t hat a timely request for extension of time or other

acceptable means of enlarging the time to file a Petition had

not been filed. The FCHR forwarded the Petition to the Division

for assignment of an Administrative Law Judge in the normal

course , and no mo tion to dismiss the Petition as untimely was

filed. Thus, the Petition is accepted.

2/ The customerÓs vehicle had over 138,000 miles on its

odometer, and the request was to reduce the recorded mileage by

1,000 miles. How such a seemingly inconsequenti al change would

benefit the customer was not explained. There was, however, no

dispute that the request was made by the customer and carried

out by Petitioner.

COPIES FURNISHED :

Jenny Mann, HR Regional Manager

Hendrick Honda Daytona

330 North Nova Ro ad

Daytona Beach, Florida 32114

Johnny L. Torrence

237 North Seneca Street

Daytona Beach, Florida 32114

Brian Burnette

Hendrick Honda Daytona

330 North Nova Road

Daytona Beach, Florida 32114

Leonard T. Hackett, Esquire

Vernis and Bowling of North Flo rida, P.A.

4309 Salisbury Road

Jacksonville, Florida 32216

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

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 Reco mmended Order should be filed with the agency that

will issue the Final Order in this case.