STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WINSTON S. McCLINTOCK, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5117

) SOUTHLAND CORPORATION, d/b/a ) 7-ELEVEN STORES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on February 11, 1988 in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. Winston S. McClintock (Petitioner) appeared on his own behalf, and E. John Dinkel, III, Esquire, appeared on behalf of the Southland Corporation, d/b/a 7-Eleven Stores (Respondent).

The issue in this case is whether respondent unlawfully discriminated against Petitioner due to physical handicap when he was allegedly ordered to perform duties Respondent allegedly knew he could not perform, and when he was subsequently terminated by Respondent. At the hearing, Petitioner called Richard H. Watley and Tommy Egge, store managers, and also introduced four exhibits. Witnesses called on behalf of Respondent included Debbie Meany, coworker, Robert Rathbun, polygraph operator, Mike McKenzie, field manager, Larry Good, district manager, and Fred Nichols, personnel manager. Respondent also introduced ten exhibits, but one exhibit offered on behalf of Respondent was rejected.

The transcript of the hearing was filed on February 25, 1988. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. Petitioner was employed as a part-time store clerk from January 11, 1983 until January 14, 1986 at Respondent's 7-Eleven Store No. 1413-25564 located at 2990-16th Street, North, St. Petersburg, Florida.

   
   

2. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes.

   
   

3. Upon employment by Respondent, employees must sign an Awareness Form which provides, in pertinent part, that "consumption or possession of alcoholic beverages or illegal drugs while on company property (this includes the parking lot and rear of the store)" is grounds for dismissal. Petitioner signed this Awareness Form, and thereby acknowledged having been informed of Respondent's disciplinary policies set forth on said form.

4. On December 25, 1985, at approximately 1:15 a.m. Petitioner and coworker Debbie Meany consumed one bottle of champagne in 7-Eleven Store 1413- 25564 after closing-up the store at 1:00 a.m. Meany had purchased the champagne during their shift on the evening of December 24, and then drank it with Petitioner "because it was Christmas Eve." Meany testified that she became drunk while she and Petitioner drank the bottle of champagne. Petitioner's testimony at hearing that the champagne he drank with Meany was nonalcoholic is specifically rejected based upon Meany's testimony, the fact that nonalcoholic champagne was not sold in this 7-Eleven store at the time, and the fact that he referred to the champagne as "booze" in a letter written to Fred Nichols, Respondent's personnel manager, on January 10, 1986. Meany was fired along with Petitioner for consumption of alcoholic beverages on the premises, and has no apparent motive to be untruthful in her contention that the champagne was alcoholic.

   
   

5. Due to an audit of 7-Eleven Store 1413-25564 which revealed a merchandise shortage of approximately $1300, polygraphs were ordered for all store employees. Meany's polygraph was on January 6, 1986, and it was during her examination by Robert Rathbun that she admitted to consuming the bottle of champagne with Petitioner. She signed a statement, which she confirmed at hearing, indicating Petitioner opened the bottle, and they drank the champagne together.

   
   

6. Petitioner was polygraphed on January 10, 1986, after executing a consent form, and during the course of his examination, he showed deception in his answers to questions about the use of alcohol on the job. When he was confronted with this indication of deception and with Meany's statement, he admitted to drinking champagne with Meany in 7-Eleven Store 1413- 25564 after they had closed at 1:00 a.m. on December 25, 1987.

   
   

7. Thereafter, Petitioner met with Mike McKenzie, field manager, and Larry Good, district manager, on January 13, 1986 to discuss the results of the polygraph. McKenzie and Good also met with Meany. Petitioner was terminated on January 14, 1986 for consumption of an alcoholic beverage in the 7-Eleven store at which he worked.

   
   

8. Petitioner did not disclose any handicap or physical condition which would prevent him from performing the job of store clerk on his initial application for employment, or on an application he completed and submitted to Respondent on May 27, 1986, subsequent to his termination. There is no evidence that Petitioner ever informed McKenzie or Good of his handicap.

   
   

9. However, Petitioner's immediate supervisors Watley and Egge, store managers, did know of his handicap, and did not require him to "front shelves." This is a normal part of a store clerk's duties by which merchandise is brought forward to the front of a shelf to take the place of products that have been purchased.

   
   

10. It has been established that Petitioner is physically handicapped due to the injury of both his knees while in the Army. He was discharged from the Army due to his disability. This handicap makes it very difficult for him to bend down, and therefore the accommodation which Watley and Egge provided was reasonable and appropriate under the circumstances.

    
    

11. Respondent does hold Christmas parties at which alcoholic beverages are consumed in its district office. However, the district office is a separate office building and there is no 7-Eleven store located at said office. Since

    the district office is not a store licensed to sell alcoholic beverages, the consumption of alcohol at that location is not a violation of Respondent's policy about the consumption of alcohol set forth on the Awareness Form.

    
    

12. A review of Petitioner's personnel file indicates prior warnings for writing bad checks, and making unacceptable advances on a female coworker.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

14. 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, nondiscriminatory 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, 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).

    
    

15. In order to establish a prima facie case of handicap discrimination, Petitioner must show that: (1) he is handicapped, (2) he performed or is able to perform his assigned duties satisfactorily, and (3) he was terminated despite his satisfactory performance. McDonnell Douglas, supra; Wolfe v. Department of Agriculture and Consumer Services, 8 FALR 426 (FCHR September 27, 1985). Petitioner is handicapped, but he has failed to establish a prima facie case of discrimination because he has not shown he was terminated despite satisfactory performance of assigned duties. He was terminated due to the consumption of alcohol on the premises of a 7-Eleven store at which he was employed, contrary to Respondent's established policy. He insists that the champagne was nonalcoholic, but the evidence does not support this claim. Reasonable accommodation was requested by Petitioner of his immediate supervisors, and it was provided.

    
    

16. Absolutely no evidence has been offered to establish that Petitioner was terminated due to his handicap. Section 760.10(8)(b), Florida Statutes, specifically recognizes that it is not an unlawful employment practice for an employer to observe the terms of a system which measures earnings by quantity or quality of production, and further that it is not unlawful to terminate an employee when he has failed to meet bona fide requirements for the job or position. There has been no showing that Respondent's policy about the consumption of alcohol on the premises of 7-Eleven stores is unreasonable Other employees who did not meet such policies were also terminated. Petitioner was not singled out for discriminatory treatment.

    
    

17. Despite Petitioner's allegation that Respondent has discriminated against him on the basis of his handicap, the overwhelming weight of evidence shows that the Petitioner has not established a prima facie case of discrimination. Additionally, the evidence clearly shows that the Respondent's actions were purely motivated by legitimate, nondiscriminatory reasons. Howard Johnson Co. v. Kilpatrick, 501 So.2d 59 (Fla. 1st DCA 1987). Respondent has articulated legitimate reasons for terminating Petitioner, particularly in view

of his less than exemplary work record which includes prior warnings about improper conduct which could lead to termination. Thus, the Petitioner's charge of discrimination should be dismissed.

RECOMMENDATION

Based on the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent.

DONE and ENTERED this 10th day of March, 1988, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1988.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 9.

2. Rejected as not based on competent substantial evidence.

3. Rejected as irrelevant, unnecessary and as simply a summation of testimony which is not persuasive.

4. Rejected in Findings of Fact 4, 6, 7 and 12.

5. Rejected in Finding of Fact 4.

6. Rejected as irrelevant.

7. Rejected in Finding of Fact 4.

8. Rejected as not based on competent substantial evidence.

9. Rejected in Findings of Fact 5 and 6.

10. Rejected in Finding of Fact 6.

11. Rejected in Finding of Fact 12.

12. Rejected as not based on competent substantial evidence.

Rulings on Respondent's Proposed Findings of Fact:

1. Adopted in Findings of Fact 1 and 2.

2. Adopted in Finding of Fact 1. 3-5. Adopted in Finding of Fact 3. 6-7. Adopted in Finding of Fact 4. 8-10. Adopted in Finding of Fact 5.

11-13. Adopted in Findings of Fact 4 and 6.

14-15. Adopted in Findings of Fact 4 and 7.

1. Rejected as irrelevant and unnecessary.

2. Adopted in Finding of Fact 4. 18-19. Rejected as unnecessary.

1. Adopted in Finding of Fact 11.

2. Adopted in Finding of Fact 12. 22-24. Adopted in Finding of Fact 8.

25. Adopted in Findings of Fact 7 and 8.

COPIES FURNISHED:

WINSTON S. MCCLINTOCK

475 - 41ST AVENUE, NORTH

ST. PETERSBURG, FLORIDA 33703

E. JOHN DINKEL, ESQUIRE POST OFFICE BOX 1531 TAMPA, FLORIDA 33601

DONALD A. GRIFFIN EXECUTIVE DIRECTOR

FLORIDA COMMISSION ON HUMAN RELATIONS

325 JOHN KNOX ROAD BLDG. F, SUITE 240

TALLAHASSEE, FLORIDA 32399-1925

SHERRY B. RICE, CLERK HUMAN RELATIONS COMMISSION

325 JOHN KNOX ROAD BLDG. F, SUITE 240

TALLAHASSEE, FLORIDA 32399-1925

Docket for Case No: 87-005117

Orders for Case No: 87-005117