STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY HIGGINS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3656

)

WEST OF LARGO, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on October 5, 1989, in Pinellas Park, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Thomas D. Lawrence

Vice President and General Counsel Associated Distributors

P. O. Box 7187, Station C Atlanta, Georgia 30309

STATEMENT OF THE ISSUE

The issue in this case is whether West of Largo (Respondent) unlawfully discriminated against Timothy Higgins (Petitioner) based upon race when they failed to hire, or terminated him.

PRELIMINARY STATEMENT

The Petitioner was not present or represented at the hearing. Therefore, no evidence in support of his charge of discrimination was received. The Respondent was represented by Thomas D. Lawrence, Vice President and General Counsel, who testified in his capacity as Vice President. Two exhibits were admitted on behalf of Respondent. No transcript of the hearing or proposed orders were filed.

FINDINGS OF FACT

1. Petitioner applied for employment with Respondent as a truck driver on January 18, 1989. As part of the application form which he signed, and above the space provided for the applicant's signature was the following statement:

   
   

   I understand my employment with West Building Materials is temporary until all paper work

   is approved by the service corporation employed by West Building Materials.

   
   

   The information supplied on my application for employment is true and correct. I understand that any incorrect, incomplete, or false information on this application will subject me to rejection from employment or immediate discharge if employed.

   
   

2. Pending a security check, Petitioner was allowed to work on January 23 and 24, 1989, in probationary status. The Respondent's Personnel Manual states that all employees with less than three months experience are considered to be in probationary status.

   
   

3. An employee security form was also completed by the Petitioner as part of the application process. He answered "NO" to questions about whether he was delinquent on any debt, and whether there was any undisclosed reason why a bonding company might refuse to bond him.

   
   

4. Since Petitioner would be delivering building materials of considerable value, a credit report was run on him which revealed adverse credit information occurring only two months prior to this application. On the basis of this report, Respondent had concerns about the ability of Petitioner to be bonded, and therefore, terminated his probationary employment on January 24, 1989.

   
   

5. Petitioner filed this charge of discrimination based upon race on January 25, 1989. In his charge, he alleges that he was the only black truck driver employed by Respondent. However, since no evidence was received in support of his charge, there is no basis upon which any finding or inference of discrimination can be drawn.

   
   

6. Respondent does not dispute that it is an employer within the meaning of Pinellas County Ordinance 84-10. Although the store location at which Petitioner applied for employment has gone out of business, Respondent is still in business in Florida at approximately 15 locations as West Cash and Carry Building Materials of Panama City, Inc. d/b/a West of Largo, a Florida corporation.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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.

   
   

8. 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).

   
   

9. There is no evidence in the record to support Petitioner's allegation of discrimination based upon race. Respondent treated Petitioner the same as other employees. He was considered a probationary employee until a security check was completed. It is reasonable to require a security check, including a check of a prospective employee's finances, if he is to be employed in a position with custody of a considerable amount of valuable building materials. Petitioner either incorrectly or falsely answered questions on the security form, and thereby did not disclose his true financial status.

   
   

10. It is obvious that Respondent must have been aware of Petitioner's race when he was allowed to work on January 23 and 24, 1989. Thus, race was not a factor in the Respondent's decision to hire him as a probationary employee.

It was only when the credit report revealed information different from that which Petitioner had disclosed on his employment papers, that Respondent terminated his probationary employment. There is no evidence or inference that race played any part in this decision, and to the contrary, Respondent has established a valid, nondiscriminatory basis for its action.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED.

DONE AND ENTERED this 10th day of October, 1989, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1989.

COPIES FURNISHED:

Timothy Higgins

7001 Ulmerton Road, Apt. 3105

Largo, FL 34641

Thomas Lawrence

Vice President and General Counsel

P.O. Box 7187, Station C Atlanta, GA 30309

Ronald McElrath, Manager 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: 89-003656

Orders for Case No: 89-003656