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Home / Complaints / Final Orders / Final Orders 2011 / FCHR Order No. 11-088

FCHR Order No. 11-088

Date of Release: 11/03/2011






FCHR Case No. 2010-02209


DOAH Case No. 11-0641




FCHR Order No. 11-088





Preliminary Matters

Petitioner Ian Simpson filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2009), alleging that Respondent Auto Nation / Courtesy Chevrolet committed an unlawful employment practice on the basis of Petitioner’s age (DOB: 6-23-58) and on the basis of retaliation by terminating Petitioner from employment.

The allegations set forth in the complaint were investigated, and, on January 6, 2011, the Executive Director issued his determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held by video teleconference at sites in Tallahassee and Orlando, Florida, on May 5, 2011, before Administrative Law Judge Elizabeth W. McArthur.

Judge McArthur issued a Recommended Order of dismissal, dated August 25, 2011.

The Commission panel designated below considered the record of this matter and determined the action to be taken on the Recommended Order.

Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

We adopt the Administrative Law Judge’s findings of fact.

FCHR Order No. 11-088

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Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

We note that in determining that a prima facie case of age discrimination had not been established by Petitioner the Administrative Law Judge concluded, among other things, that Petitioner did not establish that he was qualified for the position in question. Recommended Order, ¶ 57.

A Commission panel has noted, “For the purposes of establishing a prima facie case of discrimination, the Commission has accepted a showing that Petitioner is minimally qualified for the position.” Potasek v. The Florida State University, 18 F.A.L.R. 1952, at 1953 (FCHR 1995). Another Commission panel has indicated, “Petitioners being only minimally qualified...does not mean they failed to establish a prima facie case. Only a total lack of qualification would prevent the establishment of a prima facie case.” Little, et al. v. Monsanto Company, 15 F.A.L.R. 621, at 622 (FCHR 1992). In a “termination” case similar to the instant case, a Commission panel concluded that for the purpose of establishing a prima facie case of discrimination Petitioner demonstrated that “she was at least minimally qualified for the position in question by virtue of having been hired for the position.” Kesselman v. Department of Transportation, 20 F.A.L.R. 166, at 169 (FCHR 1996); accord, Hogg v. Arena Sports Cafe, FCHR Order No. 10-049 (May 25, 2010), Jones v. Spherion Staffing, FCHR Order No. 09-056 (July 1, 2009), Hamilton v. The Talking Phone Book, FCHR Order No. 08-002 (January 14, 2008), Ricks v. City of Gainesville, FCHR Order No. 05-018 (February 22, 2005), and Brown v. Volusia County School Board, FCHR Order No. 04-160 (December 23, 2004).

We further note that, while based on the foregoing we would conclude that Petitioner in the instant case was “qualified” for the position in question for purposes of establishing a prima facie case, the conclusion of whether Petitioner was qualified for the position in question in the instant case is not dispositive of the case since the Administrative Law Judge further concluded that a prima facie case was not established since there was no showing that Respondent treated similarly situated employees who were not members of Petitioner’s protected class more favorably. Recommended Order, ¶ 58.

With this comment, we adopt the Administrative Law Judge’s conclusions of law.


On September 16, 2011, the Commission granted Petitioner an extension of time until September 28, 2011, to file exceptions to the Recommended Order. On or about September 28, 2011, Petitioner filed a document entitled “Petitioner Request for Rehearing,” along with an affidavit of an individual who did not testify at the hearing before the Administrative Law Judge, and an untitled document that appears to deal with

FCHR Order No. 11-088

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witness tampering and harassment. In response, Respondent filed “Respondent’s Motion to Strike Petitioner’s Request for Rehearing.”

Read collectively, in our view, Petitioner’s filings do not set out exceptions to the Recommended Order, but rather attempt to insert into the record evidence that was not presented to or received by the Administrative Law Judge at the May 5, 2011, hearing in this matter.

The Commission has declined to accept “exceptions” which seek to introduce evidence into the record that was not presented at the hearing before the Administrative Law Judge. See, e.g., Gantz, et al. v. Zion’s Hope, Inc., d/b/a Holy Land Experience, FCHR Order No. 11-048 (June 6, 2011), Jennings v. Superior Optical Shop, FCHR Order No. 10-077 (October 26, 2010), Bobo v. First Student, Inc., FCHR Order No. 09-032 (April 9, 2009), and Hurtado v. North Florida Rehab and Specialty Care, FCHR Order No. 08-047 (July 29, 2008).

Petitioner’s filings are rejected.

Given our ruling on Petitioner’s filings, we conclude that it is unnecessary to rule on “Respondent’s Motion to Strike Petitioner’s Request for Rehearing.”


This Order disposes of all motions pending before the Commission.

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 3rd day of November , 2011.


Commissioner Donna Elam, Panel Chairperson;

Commissioner Gayle Cannon; and

Commissioner Billy Whitefox Stall

Filed this 3rd day of November , 2011,

in Tallahassee, Florida.

FCHR Order No. 11-088

Page 4


Violet Crawford, Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Ian Simpson

1800 Arlington Street

Orlando, FL 32805

Auto Nation / Courtesy Chevrolet

c/o Richard A. Ivers, Esq.

Law Office of Richard A. Ivers

2421 North University Drive, Third Floor

Coral Springs, FL 33065

Elizabeth W. McArthur, Administrative Law Judge, DOAH

James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 3rd day of November , 2011.

By: _________/s/_________________

Clerk of the Commission

Florida Commission on Human Relations