STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD J. MILLER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-154

)

ROADWAY EXPRESS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on June 4, 1980, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mr. Leonard J. Miller

3244 North Fulton Avenue, Apartment H-3 Hapeville, Georgia 30354

For Respondent: C. Graham Carothers, Esquire and

Charles L. Early, Jr., Esquire Post Office Box 391 Tallahassee, Florida 32302

and

William F. Klug, Esquire 1077 Gorge Boulevard Post Office Box 471 Akron, Ohio 44309

On or about September 12, 1978, Leonard J. Miller ("Petitioner") filed a Complaint of Discrimination with the Florida Commission on Human Relations requesting relief from an alleged unlawful employment practice. Petitioner alleges that Roadway Express, Inc. ("Respondent") denied employment to Petitioner as a truck driver with that company on the basis of his race.

By Transmittal of Petition dated January 24, 1980, the Commission on Human Relations requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the formal hearing in this cause.

Thereafter, by Answer dated February 13, 1980, Respondent denied the material allegations of Petitioner's Petition for Relief, and asserted affirmatively that Respondent's decision not to hire Petitioner was based upon Petitioner's prior employment record, and that the percentage of minority workers employed by Respondent affirmatively demonstrates the absence of any general pattern or practice of discrimination by Respondent in the employment of minority groups.

Final hearing in this cause was scheduled for June 4, 1980 by Amended Notice of Hearing dated May 27, 1980.

At final hearing, Petitioner testified in his own behalf and called his wife, Laura Miller, as his only other witness. Petitioner offered no exhibits for introduction into the record in this proceeding. Respondent called William Klug as its witness, and offered Respondent's Exhibits 1 through 13, inclusive, each of which was received into evidence.

FINDINGS OF FACT

1. Petitioner is a black male who, on July 3, 1978, applied for employment at Respondent's West Palm Beach, Florida terminal. On that date, Petitioner completed a "Job Seeker Form" and an Application for Employment. In these documents, Petitioner requested employment by Respondent as a "city driver" or as a dock worker. Petitioner did not indicate that he sought employment as a "road driver".

   
   

2. The "Job Seeker Form" utilized by Respondent is a form which Respondent is required to use in its hiring process by the terms of a consent decree entered by the United States District Court for the Northern District of Ohio. This form is used to provide basic information about a job applicant. By use of this device, job applicants having a current Job Seeker Form on file with one of Respondent's local terminal offices can be contacted when a position for which employment is sought becomes available. By the terms of the aforementioned consent decree, and by the terms of the form itself, the Job Seeker Form is valid for either 15 or 42 days, depending upon the position sought, and may be renewed indefinitely either in person or by mail. In Petitioner's case, the Job Seeker Form was valid for a period of 15 days by virtue of his application for employment as either a "city driver" or "dock worker". Petitioner's Job Seeker Form was renewed on at least five occasions, the last occasion occurring on September 8, 1978. Thus, by its terms, Petitioner's Job Seeker Form expired 15 days after the last renewal date on September 8, 1978.

   
   

3. In accordance with Respondent's company policy, Petitioner was required to obtain a physical examination, back X-ray and polygraph test at his own expense prior to being considered for employment.

   
   

4. Respondent requested that Petitioner report for work to its West Palm Beach facility as a "casual" dock worker on August 12, 1978. Petitioner worked on that date, and received a total of $39.88 in wages. After August 12, 1978, Petitioner never again worked for Respondent, and when he inquired about additional work, was informed that work was "slow", and that he would be contacted when additional work was available.

   
   

5. It appears from the record in this proceeding that Respondent utilizes job applicants whose "Job Seeker Forms" are on file as "casual" workers until such time as a full-time position becomes available. As indicated above, Petitioner was used as such a "casual" worker on August 12, 1978.

   
   

6. Respondent admits that it employs no black full-time employees and only one black part-time employee at its West Palm Beach facility. However, this record reveals that there were no full-time job openings available as either a "city driver" or "dock worker" at Respondent's West Palm Beach terminal during the period in which Petitioner's "Job Seeker Form" was properly on file with Respondent. In fact, no full-time employees were hired at Respondent's West

   Palm Beach terminal as either a "city driver" or dock worker prior to the expiration of Petitioner's "Job Seeker Form".

   
   

7. During the period from July 3, 1978, when Petitioner initially applied for employment with Respondent, through September 23, 1978, when his "Job Seeker Form" expired, the Respondent conducted an investigation into Petitioner's prior employment record as a truck driver, as required by applicable federal regulations. This investigation disclosed numerous discrepancies between the facts represented by Petitioner on his Application for Employment with Respondent, and records maintained by his prior employers. In his Application for Employment with Respondent, Petitioner listed Watkins Motor Lines among his prior employers. When Respondent obtained copies of the records of Watkins Motor Lines, it discovered that Petitioner had listed the names of employers and periods of employment with Watkins that were different from those contained in the application filed with Respondent. In addition, Respondent discovered that Petitioner had been discharged from Watkins' employ for abandoning a load of freight, and that Watkins would not reemploy Petitioner or recommend that Petitioner be employed for a position as a truck driver.

   
   

8. Among Respondent's adopted minimum hiring standards are the requirements that a job applicant possess a "(s)atisfactory record of prior employment . . .", and that, if the applicant is a veteran, that he possess a ". . . satisfactory military record and [be] discharged under honorable conditions." In his Watkins application, Petitioner indicated that he had never served in the military, and on his application filed with Respondent, Petitioner failed to respond to an inquiry regarding military status. In fact, in his testimony at the hearing, Petitioner revealed that he had served in the United States Marine Corps, and that he had received a dishonorable discharge on the basis of an inability to "adjust to military life".

   
   

9. The Application for Employment form which Petitioner submitted to Respondent contained a request that Petitioner list all motor vehicle accidents in which he had been involved during the three-year period immediately preceding the date of application. Petitioner listed no such accidents in his application. However, when Respondent checked his prior employment record with Watkins Motor Lines, Respondent discovered that Petitioner had been involved in an accident approximately six months previously, while driving a truck for Watkins Motor Lines. Petitioner testified that he did not list this accident on his application with Respondent because he considered it "minor".

   
   

10. At the time he submitted his application to Respondent, Petitioner did not hold a then current Florida driver's license which would have enabled him to drive a truck for Respondent in the State of Florida.

    
    

11. Employment statistics maintained by Respondent show that as of March 7, 1980, Respondent employed 203 full-time drivers in the State of Florida in the category in which Petitioner had applied for employment. Of these drivers,

    41 were black; one, Oriental; and l7, Hispanic. As a result, approximately 20.2 percent of Respondent's work force in this category were black, which is above the job market availability for black driver employees. In addition, Respondent employs, on a statewide basis, nine full-time dock workers, three of whom are black. These statistics tend to show that Respondent does not engage in a pattern or practice of discrimination against blacks.

    
    

    CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this action. Section 120.57(1), Florida Statutes.

    
    

13. Section 13.26l, Florida Statutes, provides, in part, that:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To . . . fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to com- pensation, terms, conditions, or privileges of employment, because of such individual's race . . .

          
          

14. Respondent is an employer within the meaning of Section 23.162(6), Florida Statutes.

    
    

15. Section 13.261(1), Florida Statutes, partially quoted above, was patterned after and contains language markedly similar to that contained in Title VII of the Federal Civil Rights Act of 1964, as amended. Thus, as pointed out by the Court in Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (4th DCA Fla. 1977):

    
    

    If a Florida Statute is patterned after a Federal law, on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the Federal courts, insofar as such con- struction is harmonious with the spirit and policy of the Florida Legislature on the subject.

    
    

16. In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 36 L.Ed.2d 668, 93 S.Ct. 1817, 1824 (1973), the United States Supreme Court held that in order to establish a prima facie case of racial discrimination, a complainant must show:

    
    

    . . . (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek

    applicants from persons of complainant's qualifications . . .

    
    

17. The McDonnell court went on to point out that once a prima facie case is made by a complainant, the burden then shifts to the employer ". . . to articulate some legitimate, nondiscriminatory reason for the employee's rejection . . ." Id.

    
    

18. In the instant case, Petitioner has not made a prima facie case by his failure to show that there was, in fact, a full-time position available at

Respondent's West Palm Beach facility for either of the two positions for which he applied. Even had Petitioner made such a prima facie case, Respondent, on the basis of the foregoing findings of fact, established a legitimate nondiscriminatory reason for not hiring Respondent, on the basis of Petitioner's poor prior employment record and his lack of candor in responding to legitimate areas of inquiry on his Application for Employment with Respondent.

RECOMMENDED ORDER

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

That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief.

RECOMMENDED this 22nd day of July, 1980, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mr. Leonard J. Miller

3244 North Fulton Avenue., Apt. H-3 Hapeville, Georgia 30354

C. Graham Carothers, Esquire and

Charles L. Early, Jr., Esquire Post Office Box 391 Tallahassee, Florida 32302

William F. Klug, Esquire 1077 Gorge Boulevard

P. O. Box 471 Akron, Ohio 44309

Docket for Case No: 80-000154

Orders for Case No: 80-000154