19-005134 Jeff B. Parsons vs. Monro D/B/A Mcgee Tire And Auto Status: Closed Recommended Order on Tuesday, August 31, 2021.

Summary: Petitioner demonstrated that his dismissal was based on age discrimination.

S TATEMENT OF T HE I SSUE

The issue is whether R espondent, Monro d/b/a McGee Tire & Auto,

discriminated against Petitioner based upon his age and/or disability, in

violation of section 760.10, Florida Statutes. 1

P RELIMINARY S TATEMENT

On February 27, 2019, Petitioner, Jeff B. Parsons (“Mr. Parsons” or

“ Petitioner”) , filed with the Florida Commission on Human Relations

("FCHR") an Employment Complaint of Discrimination against Monro d/b/a McGee Tire & Auto (“McGee Tire”) . Mr. Parsons alleged that he had been

discriminated against pursuant to chapter 760 a nd Title VII of the Federal

Civil Rights Act, based upon age and disability/handicap. Mr. Parsons

essentially stated that he had been injured on the job and, upon being

released by his physician to return to light duty, was told the company had nothing for him. Mr. Parsons was never given a definitive notice of dismissal.

He was simply never called back to work.

The FCHR conducted an investigatio n of Mr. Parsons’s allegations. On

August 23, 2019, the FCHR issued a written determination that there was no r easonable cause to believe that an unlawful practice occurred. The FCHR’s

amended determination stated as follows, in relevant part:

Complainant worked for Respondent as a Sales

Manager. Complainant is still receiving benefits

from Respondent, but has not been working with Respondent since he was injured on the job and

went on medical leave. Complainant alleged that

Respondent discriminated against him due to his disability and age. However, the investigation did not support his allegations. Respondent stat ed that

1 Citations sh all be to Florida Statutes (2019 ) unless otherwise specified. Section 760.10 has

been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of

classificatio ns protected from discri minatory employment practices. Ch. 2015 - 68, § 6, Laws of

Fla.

Complainant had the opportunity to return to work

after his doctor released him from leave with a weight lifting restriction, but that Complainant did

not return to his assignment. Complainant alleged

that he could not work for a different company

because he had a non - compete agreement, but

Respondent denied that there is a non - compete

agreement. Complainant did not provide any

documentation to support that he has a disability

that limits one or more major life functions, so it is

not reasonable to believe that Respondent

discriminated against him based on a disability.

Complainant did not make any specific allegations

regarding age discrimination, so it is not reasonable to believe that Respondent discriminated against him due to his age.

On Septem ber 23, 2019, Mr. Parsons timely filed a Petition for Relief with

the FCHR. On September 25, 2019, the FCHR referred the case to the

Division of Administrative Hearings (“DOAH”) for the assignment of an ALJ

and the conduct of a formal hearing. The final he aring was scheduled for

December 13, 2019, on which date it was convened and completed.

At the hearing, Mr. Parsons testified on his own behalf and presented the

testimony of Tory Irving, the manager of the McGee Tire location in

Cantonment , Florida ; and of Tyler Thompson, a sales representative at the

McGee Tire location in Cantonment. Mr. Parsons also offered brief rebuttal

testimony on his own behalf. Petitioner’s Exhibits 1 through 5 were admitted

in to evidence without objection. Respondent presented the testimony of Anita

McGuinness, Director of Commercial Operations for Monro Muffler Brake,

Inc. (“Monro”), the parent company of McGee Tire. Respondent offered no

exhibits into evidence.

The one - volume Transcript of the final hearing was filed with DOA H on

January 13, 2020. Petitioner’s unopposed Motion for Extension of Time to

File Response was granted by Order Granting Extension, dated January 16,

2020. On January 31, 2020, both parties timely filed Proposed Recommended

Orders in accordance with the O rder Granting Extension. The Proposed

Recommended Orders have been duly considered in the writing of this

Recommended Order.

F INDINGS OF F ACT

Based on the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. McGee Tire is an employer as that term is defined in section 760.02(7).

McGee Tire is in the business of selling, servicing, and installing commercial

tires.

2. Mr. P arsons is a white male who was employed by McGee Tire in

commercial sales and operations. At the time of the hearing, Mr. Parsons was

55 years old. At all times relevant to the determination of this case,

Mr. Parsons was older than 40 years old.

3. Mr. Parsons entered the tire business in 1985, when he was 21 years

old, taking a position as an outside sales representative for

Bridgestone/Firestone. Mr. Parsons worked in commercial fleet sales,

developing business with governmental entities such as the Navy, Air Force,

cities, school boards, and concrete companies. He went through every

training program offered by Bridgestone /Firestone and became certified in

off - road, agricultural, industrial, heavy truck, and bu s tires , as well as

retreading. Mr. Parsons was employed by Bri dgestone/Firestone for about

16 years, working his way up to district ma nager in Pensacola.

4. Mr. Parsons left Bridgestone/Firestone to open his own shop, Florida

Commercial Tire, which was renamed Florida Tire Service in 2010.

5. Mr. Parsons testified that, after some growing pains, Florida Tire

Service was a successful busi ness. He discussed the difficulties faced by a

small local shop trying to compete with large national companies.

Mr. Parsons tried to offset the lower prices offered by the big chains with

superior service. If a trucker was stuck on the side of the road at 2 a.m.,

Mr. Parsons answered their call and sent out his service trucks.

6. Despite his success, Mr. Parsons believed the days were limited when

an independent dealership such as his could stay competitive. In 2016, he

was approached by George Bradshaw, w ho for some years had been a friendly

competitor of Mr. Parsons in the commercial tire business. Mr. Bradshaw

stated that he was now working for a subsidiary of Monro called McGee Tire ,

and that his company was interested in entering the Pensacola market. They wanted to talk about buying Mr. Parsons’s company and/or having him come

to work for them.

7. Mr. Parsons testified that he was not eager to sell but neither was he

“stupid to the business.” He had several meetings with Mr. Bradshaw and

Bob Lanpher, a nother executive in McGee Tire’s Florida operation. On

September 19, 2016, they completed a deal for Mr. Parsons to sell his company to Monro.

8. The Asset Purchase Agreement included a four - year non - compete

clause , under which Mr. Parsons could not compet e against Monro in the

business of operating a tire and/or automotive repair and service facility within 200 miles of the current location.

9. In addition to selling the business, Mr. Parsons negotiated a contract to

come to work for McGee Tire for $120,00 0 per year. The Monro negotiators

told Mr. Parsons that their salary structure would not allow Monro to pay

him a straight salary of $10,000 per month. Mr. Parsons agreed to accept a

base salary of $6,500 per month and a guaranteed bonus of $3,500 per mont h.

The company would give him a truck allowance of $600 per month and pay

for his cell phone. Mr. Parsons would receive bonuses for monthly sales in excess of $150,000.

10. Mr. Parsons testified that “I busted my butt for these guys.” From

September 2016 t hrough January 2017, Mr. Parsons’s main job was finding a

new, larger location for the business and then overseeing the transition to ,

and equipping of , the new store in Cantonment. At the same time,

Mr. Parsons continued to act as the main salesperson and dispatcher for

McGee Tire.

11. On March 9, 2018, Mr. Parsons and McGee Tire M anager Tory Irving

were loading flotation tires into Mr. Parsons’s truck for delivery to a

customer. Mr. Parsons testified that these tires were used on the front of

cement truck s and weighed about 270 pounds each. As he lifted a tire,

Mr. Parsons felt a stabbing pain in his back. He rested a bit then delivered

the tires to the customer.

12. Mr. Parsons continued coming to work for a few days despite the pain.

At the urging of Mr. Irving and Mr. Bradshaw, he took a few days off but the

rest did nothing to lessen the back pain. Mr. Parsons returned to work.

13. Mr. Parsons testified that his pain became so intractable that Kevin

McGee, the manager in charge of commercial operations for Monro, sent him

home and placed him on workers’ compensation. On about March 18, 2018, Monro sent Mr. Parsons to White - Wilson Clinic for treatment.

14. The nurse practitioner at White - Wilson Clinic prescribed steroids and

anti - inflammatory medications. Mr. Parsons was also given a lifting

restriction of 15 pounds.

15. Mr. Parsons testified that subsequent MRIs showed that he had

aggravated the sciatic nerve. He was referred to Dr. Barry Lurate, an orthopedist, who concluded that there w as no surgical so lution for

Mr. Parsons’s back pain. Medical records indicate that Dr. Lurate reached

this conclusion on August 27, 2018. Because Mr. Parsons had back problems that pre - existed the flotation tire incident, Dr. Lurate was uncertain as to

what impairment rati ng to give Mr. Parsons for workers’ compensation

purposes. However, Dr. Lurate did not doubt that Mr. Parsons was suffering

and should continue on lifting restrictions. Mr. Parsons recalled that Dr.

Lurate imposed a 15 - 20 pound lifting restriction and rele ased him to light

duty work.

1 6 . Mr. Parsons testified that he phoned Mr. McGee three or four times to

let him know his status, but was unable to reach him. Mr. Parsons testified

that Mr. McGee had always been difficult to reach by telephone, so he sent

hi m a text message. Mr. Parsons’s message stated that he had been released

to come back to work.

1 7 . Mr. McGee responded with questions about Mr. Parsons’s lifting

restrictions. Mr. Parsons described the lifting restrictions and asserted that he was able non etheless to sell tires. Mr. McGee told Mr. Parsons that he had

no work for him at that time but that he would have “Esther in HR” give him

a call.

2 Mr. Parsons testified that this text conversation with Mr. M cGee took

place in the Fall of 2018 and was the last communication he received from

Monro.

1 8 . Mr. Parsons testified that he later phoned Mr. Irving to ask if he had

heard anything about the company’s intentions. Mr. Irving responded that he

had no news but that he wished Monro would bring Mr. Parsons b ack

immediately.

1 9 . Mr. Parsons reasonably believed that he was fully capable of carrying

out the primary duty of his job: selling commercial tires. Mr. Parsons testified that he could have fully performed every aspect of the job, including loading

heavy tires, if he had been given the accommodation of a lift - gate on his

truck.

20 . A lift - gate is a device that can raise and lower items from ground level

to the level of the truck bed. It would have had the effe ct of allowing

Mr. Parsons to roll the commerci al tires, the lightest of which weighs over

2 At the hearing, it was acknowledged that “Esther in HR” was Esther Neal, who acted as

Respondent’s corporate representative.

120 pounds, onto the lift - gate rather than having to hoist them up and into

the truck.

2 1 . Mr. Parsons testified that he discussed the possibility of a lift - gate

with Mr. McGee but nothing came of their talk. Mr. Parsons testified that he

would have been willing to install the lift - gate at his own expense had McGee

Tire shown interest. He stated that a lif t - gate costs between $1,600

and $2,000.

2 2 . Mr. Parsons testified that he very much wanted to return to work,

having gone from making $10,000 per month to receiving workers’

compensation payments of $925 per week. He testified that he has had

several opportunities to work for competitors of McGee Tire , but was stopped

by the non - compete clause in the Asset Purchas e Agreement with Monro.

2 3 . Mr. Parsons ultimately agreed to a workers’ compensation settlement

of $40,000 with Monro. He testified that by the time of the settlement offer,

he was in desperate financial straits and had little choice but to accept. As

par t of the agreement, Mr. Parsons signed a letter of resignation from McGee

Tire. Mr. Parsons believed that he had been constructively discharged well before he signed the letter of resignation.

2 4 . Mr. Irving testified that he worked for five years at McGee Tire’s

Dundee , Florida, location before moving to the Cantonment store on July 15,

2017. When Mr. Irving started at Cantonment, Mr. Parsons was the outside

salesperson. Mr. Irving described the outside salesperson as the “billboard” of

the company, respon sible for building relationships and developing customers

in the community. According to Mr. Irving, the outside salesperson makes or

breaks the store. Without a good outside salesperson, “nobody knows you

exist.”

2 5 . Mr. Irving testified that Mr. Parsons was highly effective in his job.

Mr. Parsons had extensive relationships in the community. He could pick up

the phone and turn a $2,000 day into an $8,000 day. Mr. Parsons was a team

player, doing whatever needed to be done and asking Mr. Irving where he

needed help. Mr. Irving testified that he never had any problems with

Mr. Parsons.

2 6 . Mr. Irving’s recollection of Mr. Parsons’s injury and consequent events

was consistent with Mr. Parsons’s testimony. Mr. Irving testified that for a

time after his injur y, Mr. Parsons continued to work from his home .

Mr. Parsons was unable to endure driving to customers in Alabama, but he

was able to cover the Pensacola area. Once Mr. Parsons began receiving

workers’ compensation payments, he was no longer allowed to work for

McGee Tire.

2 7 . Mr. Irving testified that Mr. Parsons’s workers’ compensation case was

being handled from Monro’s corporate office in New York , and that the local

McGee Tire store was in the dark as to when or if Mr. Parsons would be

cleared to return to work.

2 8 . Mr. Irving testified that even when Mr. Parsons was on workers’

compensation and not being paid a salary , he continued to funnel business to

McGee Tire. Mr. Irving remembered that Mr. Parsons handed McGee Tire a

$79,000 sale by Esfeller Const ruction at a time he was not working and stood

to receive no compensation for the referral. 3

2 9 . Mr. Irving testified that Monro made the decision to hire someone else

for the outside sales position in about March 2018. 4 Monro hired Scott Rainy.

Mr. Irving testified that Mr. Rainy could not compare to Mr. Parsons in terms

of knowledge about the merchandise and of the Pensacola area. People would

come into the store and ask where Mr. Parsons was. Mr. Irving stated that

“people buy from people,” and McGee Tir e was losing business because

Mr. Parsons was not there to take care of his customers. According to

Mr. Irving, Mr. Rainy lasted in the job only until July 2018.

3 Mr. Parsons testified that Esther Neal w as aware that he was working while receiving

workers’ compensation and told him to stop.

4 Mr. Irving’s recollection as to the date cannot be correct, because Mr. Parsons was not

injured until March 9, 2018. Based on context, it is assumed that the hiring decision was

made in April or May of 2018.

30 . In November 2018, Monro hired Tyler Thompson to replace Mr. Rainy.

Mr. Irving testified th at Mr. Thompson has done a better job but still does

not measure up to Mr. Parsons as a sales person . Mr. Irving stated that

Mr. Parsons is “gold” and Mr. Thompson is “silver” in terms of sales. As of the

hearing date, Mr. Thompson was still working at McGe e Tire.

3 1 . Mr. Irving testified that no one from Monro consulted him as to any

accommodations that could be made to allow Mr. Parsons to return to work.

Mr. Irving specifically suggested to the company that tire technicians could

be used to help Mr. Parso ns load and unload tires, but he received no

feedback on his suggestion.

3 2 . Mr. Irving believed that Mr. Parsons was a “rainmaker.” His ability to

sell tires was far more important than his ability to physically deliver them.

Other staff persons could he lp Mr. Parsons with the deliveries. Mr. Irving

testified that he would have liked to have Mr. Parsons back in the sales job.

3 3 . Mr. Thompson testified that he has worked for McGee Tire off and on

for four years. He was originally hired by Mr. Parsons at Florida Tire Service

as a “tire technician,” i.e., the employee who performs the manual labor of

changing and repairing tires and going out on road service calls.

3 4 . When Monro purchased Florida Tire Service, Mr. Thompson went with

Mr. Parsons to McGee T ire. Mr. Thompson testified that Mr. Parsons insisted

Mr. Thompson be part of the package when Monro bought the company

because Mr. Parsons knew that he could not afford to lose his job.

3 5 . Mr. Thompson had quit his job at McGee Tire and was working in

m arine construction when he was contacted by McGee Tire ’s general

manager Peter Brown in November 2018 and offered the tire sales position.

3 6 . Mr. Thompson testified it was his understanding that he was coming

in to take Mr. Parsons’s old job. Mr. Thompson was 29 years old at the time

he accepted the sales position. He agreed to a salary of less than $50,000.

3 7 . Mr. Thompson testified that he never heard any discussions about

bringing Mr. Parsons back to work. He had the impression that Mr. Parsons

was not coming back.

3 8 . Mr. Thompson was friendly with Mr. Parsons. They sometimes went

hunting together. Mr. Thompson testified that he knew Mr. Parsons wanted to come back to McGee Tire. He recalled Mr. Parsons telling him that McGee

Tire would not let him com e back to work because of his injury.

3 9 . Mr. Thompson testified that he no rmally comes in to work at

7:30 a.m. , and does paperwork for about an h our. From about 8:30 a.m.

until 3:30 p.m., he is on the road. He drives to customers’ businesses, looks

over t heir fleets and assesses their needs. Mr. Thompson stated that most

businesses are beginning to wind up their day by 3:30 p.m. and do n o t want a

sales person “in their face” when they are trying to go home. He finishes up

his day at the office.

40 . Mr. Thom pson testified that while his position mostly involves sales, it

can also be a physical job. Sometimes he must carry tires, load them on a

trailer, drive them to the customer, then unload them at the customer’s place

of business.

4 1 . Mr. Thompson testified that he was injured on the job about three

months prior to the hearing date. He loaded about 30 commercial tires weighing roughly 100 pounds each into his truck and made the two hour

drive to the customer’s location. He dropped off the tires and drove bac k to

McGee Tire to close out the work day. He drove home. When he stepped out of his truck, his back “just kind of took me to my knees.”

4 2 . His physician prescribed anti - inflammatories and placed him on a

five - pound lifting restriction. McGee Tire gave h im the option of sitting at his

desk rather than driving his truck because driving increased his back pain.

Mr. Thompson testified that he tried working from his desk for a couple of

days but decided there was money to be made on the road selling tires and

went back out.

4 3 . Mr. Thompson testified that Mr. Brown directed the tire technicians to

help him load and unload tires while he convalesced. His back improved over

the course of two months. Mr. Thompson testified that his lifting restriction

had recentl y been raised from five to 15 pounds.

4 4 . Mr. Thompson confirmed that Mr. Parsons had given him the lead

that helped him make a large sale to Esfeller Construction, around 280 tires at $300 per tire. Mr. Thompson also confirmed that Mr. Parsons received

no thing for helping with that sale.

4 5 . Anita McGuinness, Monro’s Director of Commercial Operations,

testified on behalf of her employer. Ms. McGuiness testified that she was

hired to consolidate the operations of three recently acquired tire companies,

incl uding McGee Tire, into one streamlined, profitable entity.

4 6 . Ms. McGuiness testified at some length about the reorganization she

oversaw in 2018, but little of her testimony was directly relevant to the issues

raised by Mr. Parsons. She made a point of stating that a salesperson has no

supervisory authority over tire technicians, presumably as a way of stating that someone in Mr. Parsons’s position could not order a tire technician to

help him load tires into his truck. This statement fails to acknowledg e that

the actual supervisor, Tory Irving, was perfectly willing to order the tire

technicians to assist Mr. Parsons if the company would agree to bring him

back to work.

4 7 . The statement also fails to acknowledge that tire technicians in fact

assisted M r. Thompson when he injured his back. Mr. Thompson testified

that his supervisors have told him that he is above the tire technicians in the

chain of command and has the authority to direct them when something

needs to be done. He characterized the McGee T ire workforce as a “team” and

stated that no one has ever refused to help him load tires.

4 8 . Ms. McGuiness testified that the main difference between Mr. Parsons

and Mr. Thompson was that the former was “an ex - owner.” She stated that

Mr. Parsons’s main jo b was to keep the store profitable during the transition

to Monro, while Mr. Thompson’s job was to sell tires and generate new

business.

4 9 . While it is true that Mr. Parsons spent the first several months of the

transition finding and equipping the new M cGee Tire location, the evidence

was clear that this transition had more or less been accomplished by the time

Mr. Irving came to work at the Cantonment location in July 2017.

Mr. Irving’s undisputed testimony was that Mr. Parsons worked primarily as

a sal es person . Mr. Irving wanted to bring Mr. Parsons back to sell tires.

Mr. Thompson, hired as a tire sales person , explicitly understood himself to be

taking over Mr. Parsons’s position.

50 . Ms. McGuiness testified that Monro employs salespersons who are

over the age of 40. She stated that when the company hires a salesperson, it

first looks at sales knowledge and experience, commercial knowledge and

experience, industry knowledge and experience, and whether the person lives

in the area to be served. She did n ot explain how these criteria would favor

Mr. Thompson over Mr. Parsons.

5 1 . Mr. Parsons testified that he pursued every avenue available to try

and return to work for McGee Tire, but the company’s actions made it clear that “stronger, younger, and less mo ney is what they were after.” Based on

the facts adduced at hearing, Mr. Parsons’s conclusion is persuasive.

5 2 . The evidence presented by McGee Tire offered little more than

testimony that the company employs other sales representatives over

40 years old . No effort was made to directly rebut the prima facie showing

that Mr. Parsons was let go because of his age and disability.

5 3 . McGee Tire never offered a coherent explanation for Mr. Parsons’s

dismissal, aside from a weak assertion that he “resigned” as part of a much later workers’ compensation settlement. Mr. Parsons convincingly testified as to the desperate financial circumstances, caused by McGee Tire, which led him to accept the settlement. The greater weight of the evidence is that

Mr. Parsons h ad been constructively discharged by McGee Tire well before he

signed the resignation letter.

54 . McGee Tire offered no explanation for why it accommodated

Mr. Thompson when he was injured on the job, allowing him to spend more

time in the office and direc ting tire technicians to load his tires, but could not

offer the same accommodations to Mr. Parsons.

5 5 . McGee Tire offered no explanation for why it did not act on

Mr. Parsons’s suggestion that a lift - gate be installed on his truck.

Ms. McGuinness testif ied that the company uses lift - gates. She stated that

any budget request for a lift - gate would come through her office. Nothing in

her records indicated that the question of a lift - gate for Mr. Parsons ever

reached her level in the corporation.

5 6 . Ms. McGuiness attempted to show that Mr. Thompson was not a

proper comparator to Mr. Parsons. Her attempt was refuted by Mr. Irving’s

testimony that Mr. Thompson was doing the same sales job as Mr. Parsons,

and by Mr. Thompson’s testimony that from the outset he understood himself

to be taking Mr. Parsons’s position. It is found that Mr. Parsons and

Mr. Thompson were engaged in the same job, selling commercial tires for

McGee Tire.

5 7 . McGee Tire offered no non - discriminatory business reason for failing

to brin g Mr. Parsons back to work after his injury. The evidence adduced at

the hearing leads ineluctably to the finding that McGee Tire constructively

discharged Mr. Parsons and then hired a younger person willing to do the

same job for a lower salary.

5 8 . The evidence further established that McGee Tire treated Mr. Parsons

as unable to perform his job duties due to his back injury, yet made accommodations for Mr. Thompson when he suffered a similar back injury.

McGee Tire offered no explanation for its disparat e treatment of the two

employees or its failure to act on Mr. Parsons’s reasonable request for a lift -

gate to be installed on his truck.

C ONCLUSIONS OF L AW

5 9 . The Division of Administrative Hearings has jurisdiction of the subject

matter of and the partie s to this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat.

60 . The Florida Civil Rights Act of 1992 (the "Florida Civil Rights Act" or

the "FCRA"), chapter 760, prohibits discrimination in the workplace.

6 1 . Section 760.10 states the following, in relevan t 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 against any

individual with respect to compensation, terms,

conditions, or privileges of employm ent, because of

such individual's race, color, religion, sex, national

origin, age, handicap, or marital status.

6 2 . McGee Tire is an "employer" as defined in section 760.02(7), which

provides the following:

(7) "Employer" means any person employing 15 or

more employees for each working day in each of 20

or more calendar weeks in the current or preceding

calendar year, and any agent of such a person.

6 3 . Florida courts have determined that federal case law applies to claims

arising under the Florida Civ il Rights Act, and as such, the United States

Supreme Court's model for employment discrimination cases set forth in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), applies to claims arising under section 760.10, ab sent direct

evidence of discrimination. See Harper v. Blockbuster Entm’t Corp. , 139 F.3d

1385, 1387 (11th Cir. 1998); Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d

1353, 1361 (S.D. Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925

n.1 (Fla. 1st DCA 1996); Fla. Dep’t of Cmty. Aff. v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

6 4 . “ Direct evidence is ‘evidence, which if believed, proves existence of fact

in issue without inference or presumpti on.’” Rollins v. TechSouth, Inc. , 833

F.2d 1525, 152 8 n.6 (11th Cir. 1987)( quoting Black’s Law Dictionary 413 (5th

ed. 1979)). In Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Court has held that not every comment

concerning a person's age presents dire ct evidence

of d iscrimination. [ Young v. Gen. Foods Corp . , 840

F. 2d 825, 829 (11th Cir. 1988)]. The Young Court

made clear that remarks merely referring to

characteristics associated with increasing age, or

facially neutral comments from which a plaintiff

has inferred dis criminatory intent, are not directly

probative of discrimination. Id . Rather, courts have

found only the most blatant remarks, whose intent

could be nothing other than to discriminate on the

basis of age, to constitute direct evidence of

discrimination.

P etitioner offered no evidence that would satisfy the stringent standard of

direct evidence of discrimination.

6 5 . A s noted by the Florida Fourth District Court of Appeal in City of

Hollywood v. Hogan , 986 So. 2d 634 (Fla. 4th DCA 2008):

The Florida Civil R ights Act of 1992 (FCRA)

prohibits age discrimination in the workplace. See

§ 760.10(1)(a), Fla. Stat. (2007). It follows federal

law, which prohibits age discrimination through the Age Discrimination in Employment Act (ADEA). 29 U.S.C. § 623. Federal case law

interpreting Title VII and the ADEA applies to cases arising under the FCRA.

Id . at 641, citing Brown Distrib. Co. of W. Palm Beach v. Marcell , 890 So. 2d

1227, 1230 n.1 (Fla. 4th DCA 2005).

6 6 . As to disability discrimination, the Florida Civil Right Act is construed

in conformity with the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12112. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1175 (11 th Cir. 2005).

“Because Florida courts construe the FCRA in conformity with the ADA, a

disability d iscrimination cause of action is analyzed under the ADA.”

Wimberly v. Sec. Tech. Grp., Inc , 866 So. 2d 146, 147 (Fla. 4 th DCA 2004).

6 7 . Under the McDonnell analysis, in employment discrimination cases,

Petitioner has the burden of establishing by a prepo nderance of evidence a

prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to the employer to rebut this preliminary

showing by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts the prima facie

case, the burden shifts back to Petitioner to show by a preponderance of

evidence that the employer's offered reasons for its adverse employment

decision were pretextual. See Texas Dep’t of Cmt y. Aff. v. Burdine , 450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

6 8 . In order to prove a prima facie case of unlawful age discrimination,

Pe titioner must establish that: 1) he is a member of the protected group, i.e.,

at least 40 years of age; 2 ) he was otherwise qualified for the position; 3) he

was discharged or demoted from the position; and 4) the position was filled by

a person substantially younger than Petitioner. O'Connor v. Consol. Coin

Caterers Corp ., 517 U.S. 308 (1996); City of Hollyw ood v. Hogan , 986 So. 2d

634, 641 (Fla 4th DCA 2008).

6 9 . The undersigned is aware that the FCHR has long taken the position

that the protections of FCRA’s age discrimination prohibition are not restricted to person s who are 40 years or over. The FCHR tak es the position

that a prima fac i e case of age discrimination under the FCRA requires only a

showing that individuals similarly - situated to Petitioner were treated more

favorably, regardless of whether Petitioner was over or under 40 years of age.

See, e.g ., Torrence v. Hendrick Honda Daytona , FCHR Order No. 15 - 027

(M ay 26, 2015 ) . In the instant case, application of the FCHR ’ s fo r mula would

not change the outcome, given that Mr. Parsons was 55 years old at the time he was discharged and Mr. Thompson was 2 9 at the time he was hired.

70 . In order to prove a prima facie case of disability discrimination,

Petitioner must show that : 1) he is disabled; 2) he was a “qualified

individual”; and 3) he was discriminated against because of his disability. See

Frazier - Wh ite v. Gee , 818 F.3d 1249, 1255 (11th Cir. 2016); Lucas v. W.W.

Grainger, Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001). The employee may

satisfy the third prong through showings of intentional discrimination, disparate treatment, or failure to make reasonabl e accommodations. Schwarz

v. City of Treasure Island , 544 F.3d 1201, 1212 n.6 (11th Cir. 2008).

7 1 . To prove unlawful discrimination in a failure to accommodate claim,

Petitioner must show that he was discriminated against as a result of Respondent’s failu re to provide a reasonable accommodation. Petitioner bears

the burden both to identify an accommodation and show that it is

“reasonable.” Lucas , 257 F.3d at 1255. “[T]he duty to provide a reasonable

accommodation is not triggered unless a specific demand f or an

accommodation has been made.” Gaston v. Bellingrath Gardens & Home, Inc. ,

167 F.3d 1361, 1363 (11th Cir. 1999).

7 2 . A qualified individual is not entitled to the accommodation of his

choice, but rather only to a “reasonable” accommodation. Stewart v. Happy

Herman's Cheshire Bridge, Inc. , 117 F.3d 1278, 1286 (11th Cir. 1997). An

accommodation is “reasonable” and, therefore required under the ADA, only

if it enables the employee to perform the essential functions of the job. LaChance v. Duffy's Draft Ho use , 146 F.3d 832, 835 (11th Cir. 1998). An

employer need not accommodate an employee in any manner the employee

desires, nor reallocate job duties to change the essential functions of the job. Earl v. Mervyns, Inc . , 207 F.3d 1361, 1367 (11th Cir. 2000). T he intent of the

ADA is that “‘an employer needs only to provide meaningful equal

employment opportunities’ … ‘[t]he ADA was never intended to turn

nondiscrimination into discrimination’ against the nondisabled.” U.S. EEOC

v. St. Joseph's Hosp. Inc. , 842 F .3d 1333, 1346 (11th Cir. 2016)( quoting

Terrell v. USAir , 132 F.3d 621, 627 (11th Cir. 1998) ) .

7 3 . In the instant case, Mr. Parsons set forth a prima facie case of age

discrimination. As to the first element, it was undisputed that Mr. Parsons

was 55 years old at the time of the hearing and was older than 40 years old at

all relevant times. As to the second element, the evidence established not

only that Mr. Parsons was qualified for the position , but that he has a history

of excelling in the job of selling commercial tires. As to the third element, the

evidence established that Mr. Parsons was constructively discharged from his

position. As to the fourth element, the evid ence established that

Mr. Parsons’s position was filled by a 29 - year - old man. Th e evide nce

established that Mr. Thompson, the younger substitute employee, was

treated more favorably by McGee Tire.

7 4 . McGee Tire presented little evidence to rebut the prima facie case

made by Mr. Parsons. The company articulated no clear non - discriminatory

bu siness reason for McGee Tire’s dismissal of Mr. Parsons. Ms. McGuinness

testified as to a company - wide reorganization , but did not link that to

Mr. Parsons’s situation. She attempted to show that Mr. Parsons and

Mr. Thompson were not working the same job, but the greater weight of the

evidence proved otherwise. Mr. Parsons believed that part of the company’s

reasoning was a desire to cut costs, but Ms. McGuinness did not testify that

Mr. Parsons’s salary was a factor in his dismissal. Given the lack of a

le gitimate, non - discriminatory reason for the adverse employment action

taken against Mr. Parsons, it is concluded that McGee Tire discriminated against Mr. Parsons based on his age.

7 5 . Section 760.11(6) provides, in relevant part:

If the administrative law judge, after the hearing,

finds that a violation of the Florida Civil Rights Act

of 1992 has occurred, the administrative law judge

shall issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practice and providing affirmat ive relief from the

effects of the practice, including back pay... In any

action or proceeding under this subsection, the

commission, in its discretion, may allow the

prevailing party a reasonable attorney’s fee as part

of the costs.

7 6 . “[O]nce a plaint iff has proven discrimination, back pay should be

awarded ‘unless special circumstances are present.’” Lengen v. Dep’t of

Transp. , 903 F.2d 1464, (11 th Cir. 1990) ( quoting Parson v. Kaiser Aluminum

& Chemical Corp. , 575 F.2d 1374, 1391 (5 th Cir. 1978) ) . No special

circumstances were stated that would cause this tribunal to decline an award of back pay in this case.

7 7 . Some evidence was presented at the hearing regarding Mr. Parsons’s

salary at McGee Tire, but the evidence was insufficient to determine the exact date of his dismissal ; the amount of workers’ compensation he received

and when those payments began and ended ; whether he received

supplemental income aside from workers’ compensation during his period of unemployment ; what efforts Mr. Parsons made to find other employment and

the impact of the non - compete clause on those efforts ; or any other efforts to

mitigate the damages caused by his dismissal. Based on the record of this

proceeding, it is not possible to determine the amount of back pay/lost wa ges

due to Mr. Parsons.

7 8 . Mr. Parsons failed to set forth a prima facie case of disability

discrimination. To determine whether a person is disabled, a three - step

approach has been mandated: 1) a consideration of whether the Petitioner

has a physical imp airment; 2) the identification of the life activity claimed to

be impaired and a determination whether it is a “major life activity”; and

3) whether the impairment substantially limits the major life activity.

Hudson v. Tyson Farms, Inc. , 769 Fed. Appx. 91 1, 915 (11 th Cir. 2019), citing

Bragdon v. Abbott , 524 U.S. 624, 631 (1998).

7 9 . Mr. Parsons demonstrated that his back injury was a physical

impairment, but did not establish that it was a “disability” for purposes of the

ADA. The claimed major life activ ity identified by Mr. Parsons was working.

“ A plaintiff claiming that she is substantially limited in the major life activity

of working must establish that her condition significantly restricts her ability

to perform either a class of jobs or a broad rang e of jobs in various classes as

compared to the average person having comparable training, skills, and

abilities.” Hudson , 769 Fed. Appx. at 916, citing Rossbach v. City of Miami ,

371 F.3d 1354, 1359 (11 th Cir. 2004). “An impairment does not substantially

limit the ability to work merely because it prevents a person from performing

either a particular specialized job or a narrow range of jobs.” Hudson at 916.

The “inability to perform a single, particular job does not constitute a

substantial limitation in the major life activity of working.” Williamson v.

Int’l Paper Co. , 85 F. Supp. 2d 1184, 1194 (S.D. Ala. 1999).

80 . At best, Mr. Parsons demonstrated that his physical impairment

prevented him from performing all the tasks of his tire sales person position

at McGee Tire. The evidence demonstrated that McGee Tire could easily have

accommodated Mr. Parsons’s impairment in a way that would have allowed

him to continue working. However, the case law cited above establishes that

McGee Tire was not obligated to do so under the ADA.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue an

interlocutory order finding that Monro d/b/a McGee Tire & Auto committed

an act o f unlawful age discrimination against Petitioner , Jeff B. Parsons. It is

further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an

evidentiary proceeding to establish the amount of back pay/lost wages owed

to Petitioner and to determine the amount of costs, including attorney’s fees,

owed to Petitioner.

D ONE A ND E NTERED this 2nd day of March , 2020 , in Tallahassee, Leon

County, Florida.

L AWRENCE P. S TEVENSON

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 2nd da y of March , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Ryan M. Barnett, Esquire

Whibbs and Stone, P.A.

Unit C

801 West Romana Street

Pensacola, Florida 32502

(eServed)

Esther J. Neal

Monro d/b/a McGee Tire & Auto

The Tire Circle

200 Holleder Parkway

Rochester, New York 14615

(eServed)

Cheyanne C ostilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Roo m 110

Tallahassee, Florida 32399 - 7020

(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 exceptions to this Recommended

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

case.