STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT CHEESEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1917

) LINCOLN CONSTRUCTION COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on August 8, 1989, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Cheeseman, pro se

1404 River Road

Orange Park, Florida 32073

For Respondent: Denise McCain, Esquire

Post Office Box 3542

St. Petersburg, Florida 33731 STATEMENT OF THE ISSUES

The issue in this case is whether Lincoln Construction Company (Respondent) unlawfully discriminated against Robert Cheeseman (Petitioner), based upon handicap, by terminating or failing to employ him on February 9, 1988.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf, and introduced one exhibit. The Respondent called Bill Blanc, superintendent of the job for which Petitioner claims to have applied, and Gary W. Lincoln, Respondent's Vice- President. Respondent introduced two exhibits. No transcript of the hearing or posthearing filings were timely filed.

FINDINGS OF FACT

1. On February 9, 1988, Petitioner saw an advertisement in a local newspaper for a trim carpenter at Respondent's job site in Palm Harbor, Pinellas County, Florida.

   
   

2. He travelled from south Pinellas County to the job site, and arrived at approximately 8:00 a.m. on February 9, 1988. The job superintendent, Bill Blanc, talked with Petitioner about the job, and explained that no applications were available for him to complete. He told Petitioner that the applications

   were being brought by messenger from the Respondent's office in south Pinellas County, and that when they arrived he would have to fill one out. However, because Petitioner was extremely anxious to start work, and because Blanc was desperately in need of a trim carpenter on the job, Blanc violated Respondent's established policy by allowing Petitioner to begin work at approximately 8:00

   a.m. on February 9, 1988, without first completing an application or being interviewed by Gary W. Lincoln, Respondent's Vice- President. Blanc did not have the authority to hire anyone.

   
   

3. Petitioner worked on the job until approximately 12:00 p.m.. (Noon) on February 9, 1988, when the applications arrived. Blanc gave Petitioner the application, and told him to fill it out. While Petitioner was completing the application, Blanc called Gary Lincoln to tell him that he was going to send Petitioner to him for an interview. When Lincoln heard that Petitioner was already on the job, he ordered Blanc to have him leave the job site, and come to his office right away for an interview. Blanc was subsequently reprimanded for allowing Petitioner to begin work without filling out an application, and without an interview. He admits that he acted hastily, and without authority.

   
   

4. When Blanc told Petitioner he would have to go for an interview at Respondent's office in south Pinellas County, Petitioner exploded in anger, and left the job site. Blanc testified that he was anxious and concerned for his own safety due to Petitioner's reaction. Petitioner admits he was upset when told he would have to be interviewed. Petitioner left the job site in anger without finishing the application papers, and failed to appear for an interview with Gary Lincoln.

   
   

5. Petitioner claims he was discriminated against by the Respondent due to his handicap in their failure to hire him, or in their actions terminating him on February 9, 1988, since he was already on the job. However, at the time Blanc talked with Lincoln on the telephone on February 9, 1988, Blanc had not seen Petitioner's application since he was still completing it, and Lincoln did not know of any handicap Petitioner may have had. Lincoln was simply following the normal policy of the Respondent, which was to require a completed application and an interview before any persons were hired.

   
   

6. Petitioner testified he has a 17 percent disability rating due to a prior back injury. He correctly completed a Medical Questionnaire (Form 7/86), which was included with the application, by disclosing he had a prior surgical disc removal in 1962, but that he did not have any permanent physical condition with a 20 percent impairment rating. However, although Petitioner claims that Respondent's actions resulted from the answers he gave on this form, there is no evidence that Respondent was even aware of these answers when the telephone conversation between Blanc and Lincoln took place on February 9, 1988.

   
   

7. Although he left the job at approximately 12:30 P.M., Respondent paid Petitioner for seven hours work on February 9, 1988. This was done since Respondent's superintendent had erred by allowing Petitioner to begin work on that day, and Lincoln felt it was only fair to pay him for the rest of the day since Petitioner had been prevented from finding work at some other job that day due to Blanc's unauthorized actions.

   
   

8. It was established that Respondent has hired many employees with disabilities similar to, or more severe, than Petitioner's. In fact, Blanc has a 15-20 percent disability rating due to an impairment of his left foot.

9. On February 25, 1988, Petitioner filed a Charge of Discrimination based on handicap with the Clearwater Office of Community Relations. Respondent is an employer within the meaning of Pinellas County Ordinance 84-10.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.65(9), Florida Statutes; Pinellas County Ordinance 84-10.

    
    

11. The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains his initial burden, the Respondent would then have to establish some legitimate,

    non- discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S.

    248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).

    
    

12. There is no evidence in the record to support Petitioner's allegation of discrimination based upon handicap. Respondent treated Petitioner the same as other employees in that he was required to complete an application and have an interview. While he was allowed to begin work without these regularly required pre-conditions, this was an admitted error by the job superintendent, Bill Blanc, due to Blanc's own concerns about getting the job finished on time. There is no evidence that Respondent was aware of Petitioner's handicap at the time he was asked to leave the job site and go for an interview. It was the Petitioner who became very angry and left tie job site, without ever completing his application or going for the interview.

    
    

13. Respondent has rebutted any inference of discrimination which might be drawn in this case. There was a reasonable basis for requiring all employees to fill out an application, and be interviewed prior to hiring. It was shown that Respondent has hired many employees with handicaps which are equal to, or even more severe, than Petitioner's. In this case, Petitioner was not employed by the Respondent due solely to his own actions resulting from his anger when told he would have to go for an interview after he had already worked on the job for half a day. If he had simply gone for the interview, as requested, there is a reasonable likelihood that he would have been hired, since Respondent has hired many other employees with similar handicaps, and the quality of the work which he completed before storming off the job was very good, according to Blanc.

RECOMMENDATION

Based upon the foregoing, it is recommended that the City of Clearwater, Office of Community Relations, enter a Final Order dismissing the Petitioner's charge of discrimination against Respondent based upon handicap.

DONE AND ENTERED this 22nd of August, 1989, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1989.

COPIES FURNISHED:

Robert Cheeseman 1404 River Road

Orange Park, FL 32073

Denise L. McCain, Esquire

P. O. Box 3542

St. Petersburg, FL 33731

Ronald M. McElrath, Director Office of Community Relations

P. O. Box 4748 Clearwater, FL 34618

Miles Lance, Esquire

P. O. Box 4748 Clearwater, FL 34618

Docket for Case No: 89-001917

Orders for Case No: 89-001917