15-001294 Harry (Hal) Hingson vs. Coastal Properties Status: Closed Recommended Order on Monday, July 6, 2015.

Summary: Petitioner failed to show that Respondent discriminated against him based on race or age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY (HAL) HINGSON,

Petitioner,

v s . Case No. 15 - 1294

COASTAL PROPERTIES,

Respondent.

________________________________ /

RECOMMENDED ORDER

An administrative hearing wa s conducted in this case on

May 20, 2015, in Tallahassee, Fl orida before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Harry (Hal) Hingson, pro se

504 Talquin Avenue

Quincy, Florida 32351

For Respondent: Ginger Barry Boyd, Esquire

Broad and Cassel

4100 Legendary Drive, Suite 280

Destin, Florida 32541

STATEMENT OF THE ISSUE

Whether Respondent , Coastal Properties ( Ð Respondent Ñ or

Ð Coastal Properties Ñ ) , discriminated against Petitioner , Harry

(Hal) Hingson ( Ð Petitioner Ñ ) , based upo n his age and race in

violation of the Florida Civil Rights Act of 1992 , sections

760.01 - 760.11 and 509.092, Florida Statutes. 1/

PRELIMINARY STATEMENT

On August 29, 2014 , Petitioner filed a complaint of

discrimination with the Florida Commis sion on Human Relations

( Ð FCHR Ñ or Ð Commission Ñ ) , which was assigned FCHR No. 201401271

( Ð Discrimination Complaint Ñ ). The Discrimination Complaint

alleges t hat Coastal Propert y discriminated against Petitioner

by subjecting him to different terms and conditions and

terminating his employment based upon his age and race . After

investigation , the Commission Ós executive director issued a

Determination finding that Ðno reasonable cause exists to

believe that an unlawful employment discrimination practice

occurred.Ñ On February 6, 2015, a notice of the Commission's

determination (Notice) was sent to Petitioner which notified

Petitioner of his right to file a Petition for Relief for a

formal administrative proceeding within 35 days from the date

of the Notice. On March 11, 2015, Petitioner timely filed a

Petition for Relief with the Commission . The Commission

forwarded the Petition for Relief to the Division of

Administrative Heari ngs on March 13, 2015, for the assignment

of an administrative law judge to conduct an administrative

hearing. The case was assigned to the undersigned and an

administrative hearing was scheduled and heard May 20, 2015.

At the administrative hearing , Peti tioner offered the

testimony of his supervisor, Clint Creel; testified on his own

behalf ; and offered a Gadsden County Sheriff's Offense Report

as an exhibit which was received into e vidence as Petitioner's

Exhibit P - 1. Respondent offered the testimony of Respon dent's

President, Dennis Fuller; and Vice - President of Operations, Ray

Allen ; and offered two exhibits , which were received into

evidence as Respondent's Exhibits R - 1 and R - 2.

The proceedings were recorded and a transcript was

ordered. The parties were given 10 days from date of filing

the transcript to submit their proposed recommended orders.

The one - volume Transcript was filed on June 2, 2015.

Respondent timely filed its Proposed Recommended Order, which

was considered in the prepa ration of this Recommended Order.

Petitioner did not file a proposed r ecommended o rder.

FINDINGS OF FACT

1. Petitioner is a Caucasian male who was 60 years old in

May of 2014 , when Respondent allegedly discriminated against him

by terminating his employment because of his age.

2. Respondent is a management company for third - party

owners of apartment communities, home owners associations , and

condominium associations.

3. Resp ondent employed Petitio ner as a maintenance worker

at the Twi n Oaks apartment complex, a 242 - unit apartment complex

in Tallahassee, Florida.

4. On May 6, 2014, after work, Petitioner and his

supervisor, Clint Creel, were involved in a physical altercation

off the job site, while fishing together on a boat.

5. After the boat returned to the dock, Petitioner went

inside his home. Rather than securing himself in his residence

and calling law enforcement, Petitioner retrieved a gun from his

residence, exited his residence, and fired the gun multiple

times at Mr. Creel. Mr. Creel was struck in the back of the leg

by a bullet and received medical treatment for his gunshot

wound.

6. Although he was shot, Mr. Creel returned to work the

next day .

7. Petitioner did not return to work the day after the

incident as he was seeking medical treatment for the injuries he

sustained during the physical altercation.

8. Two days after the shooting, Respondent terminated

Petitioner's employment.

9. The decision to terminate Petitioner was mad e by the

Respondent's Vice - President, Ray Allen, in consultation with the

President, Dennis Fuller, af ter Mr. Allen spoke to both

Mr. Creel, and Petitioner, about the shooting.

10. Respondent presented the undisput ed testimony of

Mr. Allen and Mr. Ray that Petitioner's employment was

terminated to protect the safety of the other employees and the

residents at the Twin Oaks property. Mr. Creel expressed

concern about his safety to Mr. Allen if he had to continu e

working with Petitioner. Mr. Allen and Mr. Fuller also were

concerned about the safety of Mr. Creel, as well as the other

employees and residents, if Petitioner and Mr. Creel continued

to work together.

11. Petitioner's Discrimination Complaint alleges that

Petitioner was discriminated against based on race and age. In

particular, Petitioner alleges that he was discriminated against

because he was terminated after the off - the - job altercation , but

his younger supervisor was not .

12. The evidence addu ced at the final hearing, however,

failed to substantiate Petitioner's claim of discrimination .

13 . Other than testifying that he at o ne time, prior to

the incident, was told tha t he was moving slow and at another

time was told he was acting feeble, Petitioner did not present

any direct or c ircumstantial evidence sufficient to reasonably

suggest that Respondent discriminated against him in employment

because of his ag e . Even if Petitioner had presented evidence

sufficient to establish a prima facie case of age

discrimination, Respondent provided a legitimate non -

discriminatory reason for terminating Petitioner's employment.

1 4 . Petitioner admit ted that Mr. Allen advised him that he

was being terminated because he no longer wanted Petitioner and

Mr . Creel to work together. P etitioner admit ted Mr. Allen told

him that he would ha ve continued to employ Petitioner by moving

him to another property, but there were no other openings.

1 5 . RespondentÓs evidence demonstrated that the day after

Petitioner was terminated, of its 59 employees, 25 were over the

age of 40, 11 were over the age of 50 , and one employee was

older than Petitioner. The evidence also showed that 54 days

after Petitioner was terminated, of RespondentÓs 64 employees ,

25 were over the age of 40, 10 were over the age of 50 , and one

employee was older than Petitioner.

16 . Petitioner failed to establish Respondent's reason for

terminating his employment was a pretext for age discrimination.

17. Petitioner's Discrimination Complaint further alleges

he was discriminated against based on his race because another

employee, a younger African - American, was arrested for DUI but

was not terminated. Petitioner presented no evidence at the

final hearing to substantia te that allegation, and Petitioner

failed to present any evidence whatsoever to show that

Respondent discriminated against Petitioner because of his race .

18 . In sum, Petitioner failed to show that Respondent

discriminated against Petitioner by treating h im differently, or

terminating his employment because of his race or age.

CONCLUSIONS OF LAW

19 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes, and Florida Administrative Code Rule 60Y - 4.016(1) .

20 . The State of Florida, under the legislative scheme

c ontained in sections 760.01 Î 760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (the

Act), incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq .

21 . The Florida law prohibiting unlawful employment

practices is found in section 760.10. That section prohibits

discrimination "against any individual with respect to

compensation, terms, conditions, or privileges of employment,

because of such individual's rac e, color, religion, sex,

national origin, age, handicap, or marital status."

§ 760.10(1)(a), Fla. Stat.

22 . Florida courts have held that because the Act is

patterned after Title VII of the Civil Rights Act of 1964, as

amended, federal case law dealing with Title VII is applicable.

See, e.g. , Fla. Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205,

1209 (Fla. 1st DCA 1991) .

23 . As developed in federal cases, a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. Usually,

h owever, direct evidence is lacking and one seeking to prove

discrimination must rely on circumstantial evidence of

discriminatory intent, using the shifting burden of proof

pattern established in McDonnell Douglas Corporation v. Green ,

411 U.S. 792 (1973). See Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997).

24 . Under the shifting burden pattern developed in

McDonnell Douglas :

First, [Petitioner] has the burden of

proving a prima facie case of

discrimination by a preponderance of the

evidence. Second, if [Petitioner]

sufficiently establishes a prima facie

case, the burden shifts to [Respondent] to

"articulate some legitimate,

nondiscriminatory reason" for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the

legitimate reasons asserted by [Respondent]

are in fact mere pretext.

U.S. Dep't of Hous. & Urban Dev. v. Blackwell , 908 F.2d 864, 870

(11th Cir. 1990) (housing discrimination claim); accord

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

DCA 2009) (gender discrimination claim) ("Under the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination.").

25 . Therefore, in order to prevail in his claim against

Respondent, Petitioner must first establish a prima facie case

by a preponderance of the evidence. Id . ; § 120.57(1)(j), Fla.

Stat. ("Findings of fact shall be based upon a preponderance of

the evidence, except in penal or l icensure proceedings or except

as otherwise provided by statute and shall be based exclusively

on the evidence of record and on matters officially

recognized.").

26 . "Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination." Holifield , 115 F.3d at

1562; cf. , Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000)

("A preponderance of the evidence is 'the greater weight of the

evidence,' [citation omitted] or evidence that 'more likely than

not' tends to prove a certain proposition.").

27 . Petitioner did not present any statistical or direct

evidence of d iscrimination, and otherwise failed to present a

prima facie case of discrimination based on disparate treatm ent

based upon his age or race.

28 . In order to establish a prima facie case of

discrimination based on disparate treatment, a petitioner must

show that: 1) he belongs to a protected class; 2) he was

subjected to adverse job action; 3) his employer treated

similarly - situated employees outside his classification more

favorable; and 4) he was qualified to do the job. Holifield ,

115 F.3d at 1562.

29 . To demonstrate that similarly - situated employees

outside his protected class were treated more favorably,

Petitioner must show that a "comparative" employee was

"similarly situated in all relevant respects," meaning that an

employee outside of Petitioner's p rotected class was "involved

in or accused of the same or similar conduct" and treated in a

more favorable way. Id . ; see also , Burke - Fowler v. Orange

C nty . , 447 F.3d 1319, 1323 (11th Cir. 2006) ) (it is required

that the quantity and quality of the comparator's conduct be

nearly identical) .

30 . While Petitioner may believe his termination was

unfair, Petitioner failed to provide sufficient evidence

inferring that discrimination occurred .

31 . Petitioner did not present any evidence that

similarly - situated employees outside Petitioner's protected

class were, or would have been, treated any differently.

32 . Petitione r also failed to present evidence showing

disparate treatment resulting in his discharge . He did not

identify another non - protected class employee engaged in a

physical altercation resulting in the shooting of a supervisor

who was not terminated, as was Petitioner.

33 . When a Petitioner fails to present a prima facie case

the inquiry ends and the case s hould be dismissed. Ratliff v.

State , 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996).

34 . Even if Petitioner had established a prima facie case

of discriminatory treatment or discharge, Respondent met its

burden of demonstrating that it had legitimate,

nondiscriminatory reasons for discharging Petitioner.

35 . Petitioner offered no proof that Respondent's

proffered reason for discharging him was a pretext for unlawful

discrimination. In proving that an employer's asserted reason

is merely a pretext:

A plaintiff is not allowed to recast an

employer's proffered nondiscriminatory

reasons or substitute [her] business

judgment for that of the employer. Provided

that the proffered reason is one that might

motivate a reasonable employer, an employee

must me et that reason head on and rebut it,

and the employee cannot succeed by simply

quarreling with the wisdom of that reason.

Chapman v. AI Transport , 229 F.3d 1012, 1030 (11th Cir. 2000).

36 . PetitionerÓs speculation as to the motives of the

Respondent, standing alone, is insufficient to establish a prima

facie case of discrimination. See , e.g. , Lizardo v. DennyÓs,

Inc. , 270 F.3d 94, 104 (2d Cir. 2001) ( Ð Plaintiff ' s have done

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

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

not sufficient.Ñ).

37 . Considering the evidence adduced at the final hearing,

it is concluded that Respondent did not violate the Act , and is

not liable to Petitioner for discrimination in employment.

RECOMMENDATIO N

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a Final Order dismissing PetitionerÓs Discrimination

Complaint and Petition for Relief consistent with the terms of

this Recommended Order.

DONE AND ENTERED this 6th day of July , 2015, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July , 2015.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal laws are to

the current versions which have not substantively changed since

the time of the alleged discrimination.

COPIES FURNISHED :

Ta mmy 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

Harry Hal Hingson

504 Talquin Avenue

Quincy, Florida 32351

Ging er Barry Boyd, Esquire

Broad and Cassel

4100 Legendary Drive , Suite 280

Destin, Florida 32541

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.