Judges: DIANE K. KIESLING
Agency: Commissions
Latest Update: Jan. 10, 1986
Summary: Petitioner fired for falsifying employment application. Handicap or retaliation were not factors. Respondent was not guilty of discrimination.
85-2754.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RICHARD BALLARD )
)
Petitioner, )
)
vs. ) Case No. 85-2754
) THE SOUTHLAND CORPORATION- ) SEVEN ELEVEN STORES, )
)
Respondent. )
)
RECOMMENDED ORDER
A formal hearing was held in this cause on November 19, 1985, in Orlando, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Richard Ballard, Pro Se
1238 Jamine Road
Apopka, Florida 32703
For Respondent: E. John Dinkel, III, Esquire
P. O. Box 1531 Tampa, Florida 33601
The issues in this case are (1) whether Respondent discriminated against Petitioner on the basis of his handicap when it discharged him on September 17, 1984, and (2) whether Respondent retaliated against Petitioner when it discharged him on September 1-7, 1984.
Petitioner presented his own testimony. Respondent presented the testimony of Michael A. Jones and Fred Nichols, and had five exhibits admitted into evidence. The parties have submitted post hearing Proposed Findings of Fact. A ruling has been made on each proposed Finding of Fact in the Appendix to this Recommended Order.
FINDINGS OF FACTS
The Southland Corporation is a corporation engaged in the operation of convenience food stores under the name "Seven Eleven Food Stores."
Petitioner, Richard V. Ballard, was employed by Southland in March of 1984.
Michael Jones, Supervisor of Southland, hired Ballard.
Jones interviewed Ballard and reviewed his application prior to hiring him.
At the time he interviewed Ballard, Jones noticed a gap on the application in Ballard's employment which he asked Ballard about. Ballard stated he had some operations on his arm and leg and that he had omitted a job with Huntley Jiffy Foods Stores where he had been terminated unfairly and had filed a handicap complaint against them.
Jones asked him if he had left anything else out, to which Ballard replied no.
Ballard had been previously employed part-time at Citgo, another convenience food store, and failed to reveal this on his application. He also failed to tell Jones about this previous employment when Jones questioned him prior to his being hired by Southland.
Southland was aware that Ballard was handicapped when he was hired. In fact, Jones had a discussion with Ballard at the time he was hired about any possible limitations which would have an affect on his job performance. Ballard has cerebral palsy.
Jones hired Ballard knowing that he was handicapped and knowing that he had filed a handicap complaint against Huntley Jiffy Foods.
After he was employed, Ballard received two raises including a $0.20 merit increase, which was the highest increase for which he was eligible, and the increase was approved by Jones on May 25, 1984, effective May 11, 1984.
Subsequent to his receiving the merit increase, Ballard was counseled for several incidents involving his job performance.
On September 14, 1984, Jones became aware through a conversation with a former supervisor of Ballard's that Ballard had worked for Citgo previous to his working with Southland. Jones double-checked Ballard's application and found that he had
omitted his employment with Citgo from his application and he had failed to disclose the Citgo employment to Jones during the interview.
Ballard was suspended on September 14, 1984, pending a meeting with Jones on September 17, 1984.
At the meeting on September 17, 1984, Ballard admitted that he had worked for Citgo and that he had omitted it from his application because he did not think he would be hired if he put it on his application because he would have been terminated from two previous jobs. Ballard had omitted two previous jobs in his application, Huntley Jiffy Foods and Citgo.
The application which Ballard filled out contained the statement "I certify the facts set forth in my application for employment are true and complete. I understand that, if employed, false statements on this application shall be considered sufficient cause for dismissal."
Southland has a policy prohibiting falsification of applications and providing for termination of employees for falsifying their applications. Southland had terminated employees other than Ballard for falsification of applications.
While Ballard alleges that he was terminated because he had filed a discrimination complaint against Citgo, in fact, Jones had no knowledge at the time he terminated Ballard that Ballard had filed a charge against Citgo.
Southland did not learn that Ballard had filed a discrimination charge against Citgo until sometime in October, 1984, after it terminated Ballard. Southland learned of the charge against Citgo from the documents Ballard filed charging retaliation in this case.
Southland purchased a part of City Service (Citgo) in September, 1983, including the Kwik Mart facilities where Petitioner had worked previously. However, it did not incur liability for charges filed against City Service. The discrimination charge filed by Ballard against City Service is being defended by City Service. Southland is not involved in the that matter in any way.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1) Florida Statutes.
Section 760.10(1)(a), Florida Statutes (1983), provides in pertinent part that:
It is an unlawful employment practice of an employer (a) To discharge or to fail or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's . . . handicap ..."
By his charge Petitioner alleges that Southland unlawfully discriminated against him because of his handicap in violation of Section 760.10(1)(a) by discharging him from employment.
Section 760.10(7), Florida Statutes (1983), provides in pertinent part that:
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 Petitioner has alleged that Southland unlawfully retaliated against him in violation of Section 760.10(7) by discharging him from employment.
Petitioner bears the initial burden of establishing at least a prima facie case of discrimination based on handicap and/or retaliation. See McDonald Douglas Corp. v. Green, 411
U.S. 792 (1973); Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981). Petitioner has failed to establish that his discharge by the Respondent was based on his handicap or retaliation in violation of the Section 760.10, Florida Statutes. The evidence establishes that Petitioner was discharged for falsifying his application. The evidence does not establish that handicap or retaliation was any factor in the Respondent's discharge of the Petitioner.
Even had Petitioner established a prima facie case, Southland has articulated and proven a legitimate non- discriminatory basis for Ballard's discharge, that of falsification of his employment application, and Petitioner has failed to show that this legitimate non-discriminatory basis is pretextual. McDonald Douglas Corp., supra; Burdine, supra.
It is concluded that Respondent, the Southland Corporation, has not discriminated or retaliated against Petitioner, Richard Ballard.
RECOMMENDED ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED:
That the Florida Commission on Human Relations enter a Final Order finding The Southland Corporation not guilty of the unlawful employment practices alleged by Richard V. Ballard and dismissing the Petition for Relief.
DONE and ENTERED this 10th day of January, 1986, in Tallahassee, Florida.
DIANE K. KIESLING, 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 10th day of January, 1986.
COPIES FURNISHED:
E. John Dinkel, III, Esquire P. 0. Box 1531
Tampa, Florida 33601
Mr. Richard Ballard 1238 Jasmine Road
ApopRa, Florida 32703
Donald A. Griffin Executive Director Florida Commission on Human Relation
325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
APPENDIX
Specific rulings on Petitioner's Proposed Findings of Fact contained in a letter dated December 22, 1985.
Page 1, section entitled "Exhibit #1": Rejected as unsupported by the competent substantial evidence.
Page 1, section entitled "Exhibit No.2": Rejected as unnecessary, not supported by the competent, substantial evidence, immaterial and irrelevant. Additionally, portions of this section are so vague and disjointed that the nature of the proposed finding of fact (if there is one) cannot be determined.
Page 2, section entitled "Exhibit #3": Rejected as being argument. Additionally, portions of this section are so vague and disjointed that the nature of the proposed finding of fact (if there is one) cannot be determined.
Specific rulings on Respondent's Proposed Findings of Fact.
Respondent's Proposed Findings of Fact 1-18 are adopted in substance with minor modifications for clarity. See Findings of Fact 1-18 in the Recommended Order.
Docket for Case No: 85-002754
Orders for Case No: 85-002754
| Issue Date |
Document |
Summary |
|
May 20, 1986 |
Agency Final Order
|
|
|
Jan. 10, 1986 |
Recommended Order
|
Petitioner fired for falsifying employment application. Handicap or retaliation were not factors. Respondent was not guilty of discrimination.
|
