19-004490 Maurice Hargrove vs. Honda Of Bay County/Volkswagen Of Panama City Status: Closed Recommended Order on Tuesday, March 17, 2020.

Summary: Petitioner failed to prove, as alleged, that Respondent discriminated in employment against Petitioner by failing to hire him based upon his race or handicap disability.

Statutes, 1 by discriminating against Maurice Hargrove (Petitioner) because

of his disability and race.

P RELIMINARY S TATEMENT

Petitioner filed an Employment Complaint of Disc rimination dated

February 2, 2019, with the Florida Com mission on Human Relations

(the Commission or FCHR), which was assigned FCHR No. 201915501

(Complaint). The Complaint alleged that Respondent discriminated against

Petitioner by failing to hire him bec ause of his disability and race.

After investigating Petitioner’s allegations, the Commission’s executive

director issued a Determination on July 23, 2019, finding that “no reasonable cause exists to believe that an unlawful practice occurred. ” An accompa nying

Notice of Determination notified Petitioner of his right to file a Petition for

Relief for an administrative proceeding within 35 days of the Notice. On

August 16, 2019, Petitioner timely filed a Petition for Relief, and the

Commission forwarded the petition to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a

hearing.

The case was assigned to the undersigned and was scheduled for a n

administrative hearing to begin October 21, 2019 . During the hear ing , which

was held as scheduled , Petitioner testified on his own behalf, and called

Respondent’s service manager, Michael Boatwright, as a witness. Petitioner

offered two exhibits , received into evidence as Exhibit P - 1 (a doctor’s letter

dated August 7, 2 0 18 - a copy of which Petitioner f iled, with permission, after

the hearing on November 4, 2019 ), and Exhibit P - 2 (Petitioner’s Petition for

1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative

Code, and federal laws are to the current version s , which have not substantively changed

since the time of the alleged discrimination.

Relief , which is part of a larger exhibit marked Exhibit P - 3 ; only those pages

of P - 3 con taining Exhibit P - 2 were re ceived into evidence ) . Respondent ’s case

was presented through cross - examination of Petitioner and Mr. Boatwright .

N o further witnesses were called and Respondent did not introduce any

exhibits into evidence.

The proceedings were recorded and a tra nscript was ordered. The parties

were given 30 days from the filing of the transcript to submit thei r proposed

recommended orders. The filing of the one - volume Transcript of the hearing

was delayed until February 5, 2020 . Thereafter, the parties timely fil ed their

respective Proposed Recommended O rders, which have been considered in

the preparation of this Recommended Order.

F INDINGS OF F ACT

1. Petitioner, Maurice Hargrove, is an individual of African - A merican

descent , who resides in Chipley, Florida.

2. Respondent, Honda of Bay County and Volkswagen of Panama City are

automobile dealerships located in Panama City, Florida.

3. Petitioner alleges that he was not hired by Respondent because of his

race and because of a disability.

4. Petitioner’s alleged di sability relates to his wearing a supportive brace

on one of his legs at the time he applied for the job position with Respondent.

5. Petitioner fi rst made contact with Respondent’s business after seeing a

“now hiring” sign in front of Respondent’s facili ty in Panama City . According

to Petitioner, after seeing the sign, he walked in to the building and filled out

a job application. Petitioner could not recall when this occurred, but he

believed it was sometime prior to Hurricane Michael, which struck the

Pa nama City area in October 2018.

6. Exact t ime frames and sequence of events as to what happened after

Petitioner initially filled out the application are less than clear because

Petitioner repeatedly changed his testimony during the final hearing.

Neverth eless, the findings set forth below , de rived from the combined

testimonies of Petitioner and Respondent’s manager, Mr. Boatwright , detail

the pertinent facts .

7. Petitioner initially inquired about a job as a service technician working

on vehicles at the d ealership . When Petitioner met with Respondent’s

manager , however, Mr. Boatwright told Petitioner that he did not need a

service technician at the time. Further, Petitioner had no prior experience

working on vehicles.

8. Mr. Boatwright further informed Pe titioner that , although he did not

need a service technician, he needed a shuttle driver for the dealership.

According to Petitioner , because of his conversation with Mr. Boatwright, he

marked through “service tech” on the job application and wrote in “dri ver . ”

9. Mr. Boatwright’s testimony, and sometimes Petitioner’s testimony, was

that when Mr. Boatwright first met Petitioner, Mr. Boatwright noticed a

brace on Petitioner’s leg and asked Petitioner what was the situation with

the brace . Petitioner told Mr. Boatwright that he had injured his leg in a

workplace fall for which he received workers’ compensation, but that he was

no longer on workers’ compensation. 2 Mr. Boatwright asked Petitioner to

obtain a note from a doctor clearing Petitioner to work, to wh ich Petitioner

agreed.

10. At some point, Petitioner returned to Respondent’s dealership with a

doctor’s note clearing him to work with no restrictions. Mr. Boatwright

interviewed Petitioner for the driver position and said he would contact

2 Petitioner’s statement s regarding his leg brace were inconsistent. Petitioner testified that he wears a brace

on one of his leg s for support after surgery for a broken leg. Petitioner also testified that he broke his leg

“ just walking one day in the neighborhood, and I turne d, and it just ga ve out on me.” According to

Mr. Boatwright, Petitioner told him when he was applying for the job that Petitioner had fallen off a l adder

when working as a painter and received workers’ compensation for a leg injury. Petitioner did not take

issue with this version of the events during his questioning of Mr. Boatwright. Petitioner further testified

that he did not remember the year he b roke his leg, when he had surgery on his leg, or when his doctor

advised him to wear the brace. Regardless of the origin of the leg condition, Petitioner testified that the leg

did not restrict him in any way.

Petitioner abou t the job later. Both Petitioner and Mr. Boatwright believed

that the interview went well. After interviewing ten candidates for the driver

position, Mr. Boatwright believed that , based upon Petitioner’s maturity level

as compared to other applicants, Peti tioner was the best candidate.

11. After Petitioner was interviewed, Mr. Boatwright’s bosses decided not

to fill the driver position, but, instead, decided to have the driving duties

shared amongst existing employees. At the final hearing, Mr. Boatwright

r ecalled communicating this to Petitioner, but that if he did not, he offered

his apologies.

12. Petitioner first testified that Mr. Boatwright contacted him and

told him that he would not be hired, des cribing a conversation with

Mr. Boatwright in which Pet itioner expressed his sadness with

Mr. Boatwright about not getting the job. Later in the hearing, Petitioner

said he did not ever hear back from Mr. Boatwright, and that it was

Respondent’s attorney who advised him that Respondent had decided not to

fill the driver position .

13. Regardless of when and how Petitioner was informed that the job

position was not being filled, Respondent chose not to fill the shuttle driver

position. As of the date of the final hearing, well over a year after Petitioner

applied for the job, Respondent had still not filled the driver position, opting

instead to share driving duties amongst the existing employees.

14. Petitioner presented no evidence that his race played any part in the

decision not to hire him. His sole offering on this point was the fact of his

race.

15. Petitioner’s disability discrimination claim was based on the facts that

Mr. Boatwright noticed the brace on his leg and asked him to get a doctor’s note clearing him to work. Although Petitioner testified late in the hearing

that Mr. Boatwright said something to him about not feeling like he would be

able to do the job, Petitioner’s statement was made after several accounts of conversations with Mr. Boatwright in which Petitioner never made this

allegation. Whe n asked about this new allegation on cross - examination ,

Petitioner could provide no details, quickly trailed off topic, and asked “Say

what?” There was no allegation in his Charge of Discrimination or his

Petition for Relief with the Division of Administra tive Hearings that alleges

that Mr. Boatwright suggested that Petitioner could not do the driver job.

Considering these factors, as well as the inconsistency with Petitioner’s prior recollection that his interview with Mr. Boatwright went well, it is found that

Petitioner’s late - asserted allegation that Mr. Boatwright said something to

him about feeling that Petitioner could not do the job is untimely and is

otherwise not credited.

16. Further, Petitioner testified that his leg did not restrict him in any

w ay, and failed to present evidence that he had a medical condition that

substanti ally impaired any life activity.

3

C ONCLUSIONS OF L AW

17. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding pu rsuant to sections

120.569 and 120.57(1), Florida Statutes, and Florida Administrative Code

Rule 60Y - 4.016(1).

18. The state of Florida, under the legislative scheme contained in

sections 760.01 through 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992 (the Act), incorporates and adopts the legal principals and

precedents established in the federal anti - discrimination laws specifically set

forth under Title VII of the Civil R ights Act of 1964, as amended. 42 U.S.C.

§ 2000e, et seq.

3 Petitioner testified that there was nothing that he could not do because of his leg. He stated

that “the reason for the brace was to support movement, but it wasn’t no restriction for me

not getting a job.” Petitioner admitted at the hearing that he could walk, bend, sit, and take

care of himself , and that there was nothing he could not do as far as the job he was applying

for with Respondent and there was not anything he could not do generally, as well. Petitioner

otherwise failed to present evidence that he had any medical condition that substanti ally

limited any life activity.

19 . The Florida law prohibiting unlawful employment practices is found in

section 760.10. The Act makes it an unlawful employment practice, among

other things, for an employer:

To discharge or to fail or refuse to hire any

individual, or otherwise to discrim inate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

§ 760.10(b)(2), Fla. Stat.

20 . 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).

21. 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 d iscrimination wit hout inference or presumption.

Usually, however, as in this case, 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 Corp. v. Green , 411 U.S. 792 (1973). See Holifield v.

Reno , 115 F. 3d 1555, 1562 (11th Cir. 1997).

22. 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, non - discriminatory

reason” for its action. Third, if [R espondent]

satisfies this burden, [Petitioner] has the opportunity to prove by a preponderance of the

evidence 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. Globe Ground

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 o f the evidence, a prima facie case of

discrimination. ” ).

23. 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 (“A preponderance of the evidence is ‘the greater

weight of the evidence,’ [citation omitted] or evidence that ‘more than not’

tends to prove a certain proposition.”). Gross v. Lyons , 763 So. 2d 276, 280 n.1

(Fla. 2000)

24. Petitioner failed to establish a prima facie case of disc rimination on

his claim that he was denied employment on the basis of his race .

25. In order to establish a prima facie case of failure - to - hire or failure - to -

promote based upon discrimination, Petitioner must establish: (1) he is a

member of a protected class; (2) he was qualified for and applied for the position; (3) he was rejected despite his qualifications; and (4) other s, equally

or less qualified, but were not members of the protected class, were selected

for the position. Underwood v. Perry Cnty. C omm’n , 431 F. 3d 788, 794

(11th Cir. 2005)(failure to hire); Marable v. Marion Military Inst. , 595 Fed.

App’x. 921, 926 (11th Cir. 2014) (failure to promote).

26. Petitioner presented no evidence that anyone was ever selected for the

driving position for w hich he appl i ed. Rather, the evidence demonstrated that

no one was hired for the position because Respondent decided not to fill the position. Therefore, Petitioner failed to present a prima facie case. Failure to

establish a prima facie case of discrimina tion ends the inquiry. Ratliff v.

State , 666 So. 2d, 1008, 1013 n.6 (Fla. 1st DCA), aff’d , 679 So. 2d 1183

(Fla. 1996).

27. Even if Petitioner was able to establish a prima facie case of race

discrimination, there was no evidence whatsoever that Respondent ’s decision

not to fill the position was mere pretext for discrimination. As explained by

the United States Eleventh Circuit Court of Appeals:

In order to show pretext, the plaintiff must

“ demonstrate that the proffered reason was not the

true reason for t he employment decision . . . . [The

plaintiff] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of cre dence. ” Tex. Dep't of Cmty.

Affairs v. Burdine , 450 U.S. 248, 256, 101 S. Ct.

1089, 1095, 67 L. Ed. 2d 207 (1981) .

Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11 th Cir. 2001) .

The evidence in this case falls woefully short of demonstrating t hat

Respondent’ s proffered reason for deciding not to fill the position was mere

pretext for discrimination against Petitioner .

28. Petitioner also failed to establish a prima facie case of discrimination

based on a disability.

29. T he Act and t he American Disabilities Act (ADA) prohibit

discrimination against a qualified individual on the basis of disability. 42 U.S.C § 12112(a)(uses the term “disability”); § 760.10(a), Fla. Stat. (uses

the term “handicap”). To establish a prima facie case of discriminatio n based

on disability, Petitioner must prove by a preponderance of the evidence: (1) that he is a handicapped [or disabled] person within the meaning of

subsection 760.10(1)(a); (2) that he is a qualified individual; and (3) that

Respondent discriminated a gainst him on the basis of his disability. See Earl

v. Mervyns , 207 F.3d 1361, 1365 (11th Cir. 2000); Byrd v. BT Foods, Inc. ,

948 So. 2d 921, 925 (Fla. 4th DCA 2007).

30. As to the first element, the term “handicap” in the Florida Civil Rights

Act is treat ed as equivalent to the term “disability” in the Americans with

Disabilities Act. Byrd , 948 So. 2d at 926.

31. “The ADA defines a ‘disability’ as ‘a physical or mental impairment

that substantially limits one or more of the major life activities of such

in dividual, a record of such impairment; or being regarded as having such an

impairment.” 42 U.S.C. § 12102(2). “‘Major life activities’ include ‘functions

such as caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, le arning and working.’” 948 So. 2d at 926

(citing Bragdon v. Abbott , 524 U.S. 624 (1998); 45 C.F.R. § 84.3(j)(2)(ii); and

28 C.F.R. 41.31(b)(2)(1997)).

32. The evidence did not show that Petitioner had a handicap or disability.

Rather, the evidence showed th at Petitioner did not have a disability. The

doctor’s note submitted into evidence showed that Petitioner had no

restrictions because of his leg, and Petitioner testified that he had no medical

condition that substantially impaired any life activity .

33. M oreover, even if Petitioner had a disability, the evidence did not

show that Petitioner was not hired because of that disability. Rather, the

Respondent decided not to fill the position for which Petitioner applied.

34. In sum, c onsidering the evidence add uced at the final hearing, it is

concluded that Petitioner failed to prove by a preponderance of the evidence

that Respondent discriminated against him based on his race or a disability

in violation of the Act .

R ECOMMENDATION

Based on the foregoing Findin gs of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order.

D ONE A N D E NTERED this 17th day of March, 2020 , in Tallahassee, Leon

County, Florida.

James H. Peterson, III

Administrative 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 17th day of March , 2020 .

C OPIES F URNISHED :

Maurice Hargrove

1672 Sunny Hills Boulevard

Chipley, Florida 32428

Russell F. Van Sickle, Esquire

Beggs & Lane

Post Office Box 12950

Pensacola, Florida 32591

(eServed)

Tammy Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exce ptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.