STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONATHAN W. HARRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3674

) SEVEN ELEVEN SOUTHLAND CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Clearwater, on January 18, 1984. The issue is whether Respondent, Seven Eleven Southland Corporation (Southland) discharged Petitioner, Jonathan W. Harris (Harris), or otherwise discriminated against him because Harris made a charge against Southland and participated in an investigation and proceedings against Southland under Section 760.10, Florida Statutes (1983)

FINDINGS OF FACT 1/

1. Seven Eleven Southland Corporation (Southland) is the corporation engaged in the operation of convenience food stores under the name "Seven Eleven Food Stores.

   
   

2. Jonathan W. Harris was employed by Southland in approximately April, 1980. On September 27, 1981, Harris was demoted from the position of Store Manager to the position of Clerk because of substantial shortages at his store. On approximately October 6, 1981, Harris filed an employment discrimination charge with the Commission. (T. 59; Petition for Relief)

   
   

3. On approximately December 3, 1981, the parties entered into a settlement agreement resolving the discrimination charge which was approved by the Florida Commission on Human Relations (Commission) on February 26, 1982. (T. 47) By the terms of this agreement, Southland agreed:

   
   

   1. To consider Petitioner for any and all store manager positions that became available upon completion of proper training.

   2. That any forms of harassment and improper training that might occur in the future and be brought to the attention

      of Southland would be dealt with properly and in a timely fashion.

      
      

      By the terms of the agreement, Harris agreed to comply with all company policy during his further employment. (T. 47; R. Supp. Ex. 1).

4. During January, 1983, Harris arrived at work at approximately 12:00 midnight, one hour after his scheduled starting time of 11:00 P.M. On this occasion, he directed Edna Butler, the employee whom he was relieving, to complete her time sheet in a manner which would reflect that she left that evening at her scheduled quitting time of 11:00 P.M. instead of midnight. Harris promised to relieve her an hour earlier one day in the future to compensate her for the hour of work which had not yet been accounted for. However, Harris never compensated Butler for the extra hour. Meanwhile, Harris completed his time sheet for that day to reflect that he arrived at 11:00 P.M., his scheduled starting time, instead of the actual time he arrived. As a

   result, Harris was paid for an hour that he did not work. (T. 49, 60-61, 69-71;

   R. Supp. Ex. 2)

   
   

5. At all times pertinent, including the occasion referred to in the immediately preceding paragraph, Harris had full knowledge of Southland's policy as explicitly set forth on every time sheet of hourly paid employees that volunteer time is not permissible, that such employees must be paid for all time worked, that employees advised not to log all time worked must notify the division personnel manager or district manager immediately, and that logging extra time not worked is cause for dismissal. (T. 48)

   
   

6. Southland first became aware that Harris had logged time not worked in approximately August, 1983, when Butler and other employees reported this type conduct to Southland. (T. 33, 34, 38, 77) On August 25, 1983, Southland discharged Harris for falsification of time sheets. Edna Butler was reprimanded for falsification of time sheets, but was not discharged because she did not log time not worked.

   
   

7. During Harris' employment during December, 1981 and August, 1983, Southland conducted meetings for managers and potential managers at which management training seminars were conducted. The purpose of these meetings was to train managers and those employees being considered for management in various management duties, including building gross profit, stopping shortages, increasing sales, and other duties and functions of management. Harris attended these meetings. (T. 76, 77, 80) Additionally, after December, 1981, Southland's district manager spent four hours in the Clearwater office with Harris providing management training, including a review of methods for stopping shortages. (T. 76, 79) The same district manager later spent additional time in Harris' store reviewing with Harris various management policies for the purpose of training him to be a manager. (T. 79-80) Harris believed that the training he received was sufficient not only to give him the knowledge to manage a store, but to give him the knowledge necessary to train other employees how to manage stores.

   
   

8. During Harris' tenure as a store manager, the district manager sent him a memo requiring that cigarettes be organized on the shelf in alphabetical order. This memo was not to harass Harris, as Harris relieves. It was sent to all store managers. (T. 22-23, 76)

   
   

9. During Harris' tenure as a store manager, he had difficulty with merchandise shortages at his stores. In 1982, Harris was given a written warning, commonly referred to as a "pink slip," regarding the shortages at his store. (T. 21) Although Harris believes he was being harassed by issuance of the "pink slip," issuance of a "pink slip" was not proved to be unusual under these circumstances.

   
   

10. In October, Harris continued to have shortages at his store and was directed to take a week off from work. Harris was paid for the week's work as

    sick pay. Although Harris believes that he was being harassed by Southland, it is not unusual for an employee to be given a week off from the store when repeated shortages are discovered. (T. 77) Under the circumstances of Harris' apparent difficulty controlling shortages at the store, and his deeply ingrained feeling that he was being harassed, Southland's district manager advised Harris to seriously consider whether he wanted to continue employment with Southland during his week off. He was assured that if he did want to continue with his employment, every effort would be made to find him a position.

    
    

11. On approximately September 2, 1982, while at work, Harris was contacted by a hospital and advised that his daughter was very ill and that he should come to the hospital. He was not told what was wrong with his daughter. Harris attempted to contact several individuals at work for someone to relieve him, but was unable to reach them. When he reached his supervisor, Harris relayed the message from the hospital. His supervisor called Harris within two minutes, advising him that an employee was on his way to relieve Harris. When the employee arrived, Harris left the store and went to the hospital. (T. 54, 65; Respondent's Ex. 1)

    
    

12. On occasion, Harris reported his suspicion that a fellow store manager had overages at his store because he failed to follow store policies. Each time Harris made such reports, Southland's management investigated Harris' charges but never discovered any evidence that the charges were true. (T. 29-30, 59-60, 84)

    
    

13. After April, 1983, Harris met with his supervisor, the district manager, and store manager regarding his performance. These three meetings were scheduled and conducted either right before or right after Harris' shift. This was done primarily for Harris' convenience. Meetings with other employees were scheduled immediately before or after their shifts, too. (T. 30, 32, 34, 82, 83)

    
    

14. Harris also believes Southland harassed him by retaining in his personnel file certain documents regarding the previous employment discrimination charge Harris filed in 1981. (T. 24) Harris was unable to specify what documents had been retained in his file. (T. 53)

    
    

    CONCLUSIONS OF LAW

    
    

15. Section 760.10(7), Florida Statutes (1983), provides in pertinent part:

    
    

    It is an unlawful employment practice for an employer . . . to discriminate against any person . . . because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

    
    

    By his charge in this case, Harris alleges that Southland unlawfully retaliated against him, in violation of Section 760.10(7), by discharging him from employment and by other discrimination against him.

    
    

16. As petitioner, Harris had the burden to prove his charges. In this case, Harris did not prove that he was discharged in retaliation against him for his 1981 discrimination charge. The settlement agreement resolving the 1981

    discrimination charge included Harris' explicit recognition of the requirement that he comply with all company policy in future employment with Southland. He was discharged for breaking company policy by claiming and being paid for work which he did not perform. Southland was entitled to discharge him for this reason (if not also for others, such as chronic merchandise shortages) and Harris did not prove that it treated other employees any differently in this respect. Other employees who falsified time records at Harris' direction received only reprimand, but those employees were guilty of what Southland reasonably considered to be a less serious offense. The other employees worked hours for Southland free of charge; Harris charged Southland for work he never did. Harris charged, but did not prove, that falsifying time records in the manner he did was widespread, commonly known and unpunished at Southland.

    
    

17. Harris also charged that Southland discriminated against him by giving him a pink slip and, later, by forcing him to take a week of paid sick leave because of chronic merchandise shortages at the stores Harris was managing. But Harris did not prove that he was singled out for issuance of a pink slip. In fact, there was no evidence as to the company's practice with regard to giving pink slips to employees.

    
    

18. Harris charged that he was singled out and required to organize cigarettes on the shelves at his store in alphabetical order, but the evidence was that all store managers, not just Harris, were directed to organize the cigarettes in alphabetical order.

    
    

19. Harris charged that Southland discriminated against him by keeping certain documents regarding his previous employment discrimination charge in his personnel files. But Harris did not prove what documents were in his file. Nor did Harris prove that other employees had filed and settled employment discrimination charges, much less that he was treated differently.

    
    

20. Harris charged that he was harassed when he tried to leave his store to go to the hospital where his daughter was ill. But again, there was no evidence that Southland treated him differently than it treated other employees in similar circumstances. The evidence does not reveal that Southland acted unreasonably under the circumstances known to Harris at the time and communicated to Southland.

    
    

21. Harris charges that he did not receive the management training required by the settlement agreement resolving Harris' 1981 employment discrimination charge. But this is not an action to enforce the settlement agreement. It is an action charging discrimination and retaliation against Harris for having filed the charges which resulted in that settlement agreement. Besides, Harris did not prove his charge.

    
    

22. Harris charges that he was treated differently in regard to his merchandise shortages than another store manager was treated with regard to his cash overages. But again, Harris did not prove this charge. On the contrary, the evidence indicated that the other store manager's cash overages were investigated and were not determined to have been caused by a departure from Southland policy.

    
    

23. Harris charges that he was discriminated against in that his supervisors scheduled meetings with him to discuss his performance just before or after his shift. But the evidence was that the meetings were scheduled at those times primarily for Harris' convenience, a practice Southland also followed when it needed to discuss the performance of other employees.

24. The evidence did not sustain any of the charges Harris leveled against Southland. Harris did not meet his burden to prove that Southland discriminated against him in retaliation against him for having filed the 1981 discrimination charge.

RECOMMENDATION

Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief filed by Jonathan W. Harris in this cause.

RECOMMENDED this 13th day of March, 1985, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 13th day of March, 1985.

ENDNOTE

1/ Both parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.

COPIES FURNISHED:

Saxton R. Gaskin, III, Esquire 1465 San Juan Court Clearwater, Florida 33516

E. John Dinkel, III, Esquire Martha C. Curtis, Esquire

P.O. Box 1531

Tampa, Florida 33601

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F- Suite 240 Tallahassee, Florida 32303

Docket for Case No: 84-003674

Orders for Case No: 84-003674