STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES A. WADE, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 84-0210

)

LI'L GENERAL STORES, INC. )

(little General Sores, a )

Division of General Host )

Corporation), )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to a Notice of Hearing issued by the undersigned, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in DeLand, Florida, on April 19, 1984. The issue for consideration was whether Petitioner, herein, James A. Wade, Jr., was discriminated against because of his race when he was discharged from employment with Respondent.

APPEARANCES

For the Petitioner: Diana Kilpatrick, Esquire

Post Office Box 2009

Daytona Beach, Florida 32017

For the Respondent: Not represented by counsel.

However, hearing was attended by Management Representative Phil Youtz Personnel Manager, Gold Coast Region 4191 North State Road 7

Lauderdale Lakes, Florida 33319 BACKGROUND INFORMATION

On February 25, 1982, Petitioner herein, James A. Wade, Jr., filed a Charge of Discrimination (EEOC Form 5B) against Respondent, Li'l General Stores, Inc., indicating that his discharge from employment as a store manager with Respondent corporation was based on his race--black. An inquiry was conducted into Petitioner's allegations by a representative of the Florida Commission on Human Relations which resulted in an investigation report being forwarded to the Commission's General Counsel on July 25, 1983. Based on that investigation, on August 22, 1983, a Determination of No Cause was entered by the Executive Director.

Thereafter, Petitioner filed a Request for Redetermination of the Executive Director's Determination of No Cause and on December 2, 1983, the original Determination of No Cause was affirmed.

Petitioner then filed a Petition for Relief from an Unlawful Employment Practice which, on January 17, 1984, was transmitted to the Division of Administrative Hearings for formal hearing under Section 120.57(1), Florida Statutes (1983).

At the hearing, Petitioner testified in his own behalf and presented the testimony of Phillip S. Youtz and Valencourt T. Draper. He also introduced Petitioner's Exhibits 1 and 2. Respondent introduced Respondent's Exhibits A and B.

FINDINGS OF FACT

1. Petitioner, James A. Wade, Jr., began employment with Respondent, Li'l General Stores, Inc. (Li'l General), on October 4, 1979. He had responded to an advertisement in the Orlando, Florida, newspaper for applicants for its management candidate program, one of the criteria for which was a college degree. There was no other training called for as a prerequisite, though an examination was required. Petitioner was a college graduate with a bachelor of science degree in Business Administration.

   
   

2. The examination Petitioner took showed he lacked adequate retail experience, but he was kept in the program with the understanding he would be retested within one year. Though Petitioner requested retesting of his superior several times (he contends at least six), he was never retested, and whenever he requested retesting, he was told the prior failure to do so was an oversight and that someone would be up to test him in a few days. No one ever came to do so, however, even though Respondent's division manager over Petitioner, Val Draper, admits he recommended that Petitioner be retested.

   
   

3. Petitioner worked for Respondent for two and one-half years as a store manager, even while awaiting retesting, having overall supervision of the stores in his charge. His immediate supervisor during the majority of this time was Ed Curtis, who, Petitioner contends, rated him on several occasions. All of these ratings, he contends, were good even though, for the most part, they were oral ratings not reduced to writing. There is, however, included in Respondent's Composite Exhibit A, a "Training Supervisor Orientation Program Training Report" dated January 20, 1981, and signed by Harry Economou, a training supervisor for Respondent, which bore "good" ratings (the highest available) in all four rated areas and the additional comment, "qualified for training supervisor." It is also noted that a payroll change form signed by Ed Curtis on December 17, 1980, when Petitioner was given a promotion and pay raise from $4.40 per hour to $4.80 per hour, bears the comment, "James has been doing a good job as manager at Store 1402-69 and is being transferred to Store 1402-44 (later properly identified as Store 1402-09), as the training store manager."

   
   

4. During all this time, claims Petitioner, the position he wanted in the management candidate program was still open, as evidenced, he states, by the fact that the recruitment advertisements were still being run in the commercial paper and the position was listed in the internal newsletter received in the store. The management candidate program trains personnel for employment as district managers. The store manager positions he held do not come within the program.

5. During the last two weeks of his employment with Respondent, Petitioner worked for a Ms. Porter, who replaced Mr. Curtis as District Manager, the position he had wanted. She came to his store several times during this period, at which times Petitioner asked her about his retesting. He finally told her if he was not retested, he would go to the "EEOC." It was at this point, he contends, his troubles began.

   
   

6. Within a short while of his former comment to Ms. Porter, his store was audited on January 5, 1982, by Respondent's personnel, who found a shortage of in excess of $1,800.00. On the same day, Ms. Porter gave Petitioner a memorandum on the security of the cigarette cabinet, referring to a discussion they had had the week previous on the same subject. This memorandum also reflects two handwritten notations dated January 8, 1983, that the cabinet was found unlocked at 6:00 p.m. that date. Petitioner contends that in the oral discussion with Ms. Porter about the cigarette cabinet, she merely told him to keep it locked. He contends he was not told then that any disciplinary action would be taken against him for failing to do so. That argument is not persuasive, however, as the Respondent's Employee Rules of Conduct clearly reflect "automatic discharge" as the penalty for any "gross negligence which results in substantial cash loss," and permit suspension or termination for "failure to control inventory shortages." Though there is no direct evidence Petitioner was given a copy of this, presumably he was.

1. As to the audit shortage, Petitioner contends that, based on the inventory methods utilized by Respondent, there is no way to show what items are missing--only a dollar amount and that the failure to control security of the cigarette cabinet could not have accounted for the $1,800.00 loss because his physical count of the cigarettes done when Ms. Porter talked with him the first time it was left open revealed the only cigarettes not in there were an off brand which had been sold. Mr. Draper, on the other hand, indicates that shortages can generally be identified through a comparison of section counts to the reports of previous audits. Cigarette and beverage cooler counts are done in the stores on a daily basis. Audits are conducted by a professional auditor who physically counts the store (inventory) and compares that count with the Division figure. While there was no showing by direct evidence that this was done here, again, presumably a regular procedure was followed here.

   
   

2. Petitioner also attacks the accuracy of the shortage found in the audit through his testimony that approximately ten days before the audit, he had trouble with the cash register in the store, and for approximately four days, he had no working cash register. Petitioner contends he reported this to Ms. Porter and also called the supplier, who, he contends, called the Respondent corporation to get permission to put in a noncompany register while the broken one was being fixed. This offer was reportedly refused by Respondent. Again, there is no direct evidence that this happened with the recitation coming only from Petitioner, and Mr. Draper contests this. The ultimate responsibility for insuring a store has a cash register lies with the District Manager, and it is Draper's policy to either have the machine fixed on the spot or replaced with a loaner from Respondent's stocks. To the best of Draper's knowledge, this store was not left without a register for four days. He cannot, however, equivocally state what Petitioner contends is not true. Weighing the probabilities, however, the scale here tilts in favor of Respondent. It is not likely that a firm so large as Respondent, whose operation is so open to theft and pilferage as this is, would allow one of its stores, which evidence shows does from

   $15,000 to $30,000 per month in business, to go without a cash register for 4 1/2 days.

3. Petitioner contends, as an additional basis for his complaint, that he did not receive a pay raise during the 2 1/2 years he was employed by the company and that all he received was a gas premium and pay for a management trainee. He further contends that all of the Caucasian store managers received higher pay raises than he. This latter contention is rebutted in documentation submitted by Respondent without objection by Petitioner which indicates that of

   20 store managers listed, only four were earning more than Petitioner and one of those had prior convenience store experience. As to the former, it appears that on December 11, 1980, Petitioner was given an hourly pay raise from $4.40 to

   $4.80. The increase is identified as "salary" and "hourly," not to gas premium, and is justified by his transfer to another store and assignment as a training store manager. With the increase in responsibility goes the increase in pay.

   
   

4. Petitioner contends that when he was discharged, he was given no reason for that action by Ms. Porter or Mr. Draper when he went to Draper's office to request one. He was terminated on January 12, 1982, by Ms. Porter, who on the Employee Action form listed as reasons therefor violations of company policy and continued poor performance, inter alia. It is not known whether these reasons were communicated to Petitioner, but from the state of the evidence, it may be concluded he was not. However, Ms. Porter's reasons for taking the termination action are clearly outlined in her memorandum relating to Petitioner found as the first attachment to Respondent's Composite Exhibit, admitted without objection of the Petitioner. This memo reflects a lack of leadership by Petitioner in correcting his employee attitude and performance and substandard performance in both store condition and the accomplishment of paperwork. The factor culminating in Petitioner's discharge is the repeated failure to control the cigarette cabinet, and Petitioner's contention that it was his assistant manager who was the culprit does not excuse him. As the manager, he was the responsible party and must bear the consequences of his failure to shoulder that responsibility.

   
   

5. This situation is not offset by the fact that he had previously warned Ms. Porter that one of his employees had a record of dishonesty and was prevented from discharging this person, who, it must be added, was working in the store during the period of the inoperative register.

13,. Mr. Wade also contends that on one occasion, he was advised (by whom is unknown) that he must transfer to a different store located in a tough, black neighborhood because he is black. He refused the voluntary reassignment and states that while he was subsequently on vacation, he was involuntarily transferred there and told that if he wanted to stay with the company, he would have to accept the assignment.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

   
   

2. Section 23.167(1)(a), Florida Statutes (1981), makes it an unlawful employment practice for an employer:

   
   

   To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms,

   conditions, or privileges of employ- ment, because of such individual's race, color, religion, sex, national

   origin, age, handicap, or marital status.

   
   

3. In employment discrimination cases where an individual alleges he was subject to disparate treatment because of his race, he has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the complainant succeeds in proving a prima facie case of discrimination, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the actions taken. Texas Dept. of Commonwealth Affairs v. Burdine, 101 S. Ct. 1089 (1981).

   
   

4. Here, while the evidence indicates some irregularities in Respondent's operation in that it could show no reason why Petitioner was not retested, it could not show for certain that Petitioner was given a copy of the employee rules when he was hired, and it could not show that Petitioner was given an immediate explanation of his discharge, these irregularities appear to be more a result of the caliber of the evidence and Respondent's presentation of its case. Respondent could and did show that Petitioner was hired as a store manager and was promoted to training store manager, that he was given an increase in pay with the promotion, that he was warned of his failure to keep adequate control over the cigarette cabinet and failed to heed this warning, and that Petitioner's performance during the last weeks prior to his discharge was unsatisfactory and led to a substantial inventory shortage. Petitioner's testimony, while raising inferences and containing his conclusions, was not supported by independent evidence, aliunde his testimony, of actual discrimination.

   
   

5. Petitioner claims that all his troubles started with the arrival of Ms. Porter as district manager and only after he threatened to go to the "EEOC" if he was not retested. He contends that based on this threat, she retaliated against him. He had not ever been disciplined before, even for the cigarettes (he was warned in writing). To accept this proposition, it would be necessary to believe that the shortage did not, in fact, occur, but was the result of a conspiracy between Ms. Porter, Respondent's management, and the auditor. This is not a conclusion that can readily be drawn from the evidence.

   
   

6. Accordingly, it is concluded that Petitioner was not discharged because of his race, but on the substantial evidence that his performance, culminating in the large inventory shortage, was inadequate and justified it.

   
   

7. The Respondent has submitted Proposed Findings which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED THAT the Petition of James A. Wade, Jr., be denied. RECOMMENDED this 29th day of May, 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1984.

COPIES FURNISHED:

Diana Kilpatrick, Esquire Post Office Box 2009

Daytona Beach, Florida 32017

Mr. Phillip S. Youtz Personnel Manager Gold Coast Region

Li'l General Stores, Inc. 4191 North State Road 7

Lauderdale Lakes, Florida 33319

John R. Ficarro, Esquire Post Office Box 13198 Tampa, Florida 33681

Aurelio Durana, Esquire General Counsel Florida Commission on

Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Mr. Donald A. Griffin Executive Director Florida Commission on

Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Docket for Case No: 84-000210

Orders for Case No: 84-000210