STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENARO P. HIGUERO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1235

) COMMERCIAL CARRIER CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on May 10, 1989, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented as follows:

For Petitioner: Jenaro P. Higuero, pro se

1099 Leeway Court

Orlando, FL 32810

For Respondent: Samuel L. Bare, III

Bare & Parsons

6601 S.W. 80th Street, Suite 109

Miami, FL 33143 STATEMENT OF THE ISSUES

The issue is whether Respondent is guilty of discrimination in employment on the basis of national origin.

PRELIMINARY STATEMENT

On August 19, 1988, Petitioner filed a Charge of Discrimination against Respondent. Petitioner alleged that Respondent declined to hire him on July 1, 1988, due to discrimination based on national origin. Petitioner alleged that he was Hispanic (Columbian).

On February 15, 1989, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. On March 6, 1989, Petitioner filed a Petition for Relief. He alleged that Respondent had refused to hire him due to Petitioner's Hispanic ethnic group and Columbian national origin.

On March 27, 1989, Respondent filed an Answer denying the material allegations of the Petition for Relief and setting forth several nondiscriminatory bases for the refusal to hire Petitioner.

At the hearing, Petitioner called himself as his sole witness and offered into evidence one exhibit. Respondent called one witness and offered into evidence three exhibits. All exhibits were admitted into evidence.

No transcript was ordered. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. On June 1, 1988, Petitioner Higuero, who is from the country of Columbia, visited one of Respondent's truck terminals and expressed an interest in working for the company as a driver of a tractor-trailer combination. He spoke with the Orlando terminal manager, Brad Schneider, who gave Petitioner an application.

   
   

2. In the course of their brief conversation, Petitioner told Mr. Schneider that Petitioner had recently completed a course at Mid-Florida Technical Institute in commercial vehicle driving. Mr. Schneider informed him that Respondent's policy was to require that all new drivers have at least one year's verifiable prior experience or certification of completion of a truck- driving course. Petitioner expressed some concern that he might not have passed the Mid-Florida Tech course. He explained that he had ground the transmission gears several times during the driving test.

   
   

3. Shortly after this visit, Petitioner received from Mid-Florida Technical Institute a certificate of competency for having satisfactorily completed a program in commercial vehicle driving.

   
   

4. The reverse side of the certificate contained Petitioner's grades. The five-point grading scale ranged from "5," which signifies that the student can perform without supervision and exceeds minimum industry standards, to "1," which signifies that the student has not performed the skill. A "3" means that the student "can perform this skill satisfactorily but requires some assistance and/or supervision. Meets minimum industry standard." A "2" means that the student "can perform parts of this skill satisfactorily, but requires considerable assistance and/or supervision. Does not meet minimum industry [sic] for entry into this occupation."

   
   

5. Petitioner received an overall score of "3." He received no grades of "4" and received eight grades of "2" out of a total of 33 grades. He received grades of "2" in coupling and uncoupling a set of double trailers, backing into a parking space on the blind side, and knowledge of applicable laws and load characteristics.

   
   

6. During the road test at Mid-Florida Technical Institute, Petitioner's unsteadiness resulted in a minor mishap. While attempting to allow the steering wheel to spin so as to straighten the wheels, Petitioner injured his finger when it became caught in the spinning spokes.

   
   

7. Having obtained the certificate and filled in the application, Petitioner visited the Orlando terminal on June 8, 1988. Mr. Schneider accepted the materials and informed Petitioner that Respondent would begin without delay processing the paperwork. Petitioner requested a road test, but Mr. Schneider told him that Respondent did not administer road tests until the personnel department had reviewed the application and checked, among other things, references for three years of past employment. As he had done when giving the application to Petitioner, Mr. Schneider underscored the importance that the

   application be filled-in completely and, after quickly reviewing Petitioner's application, told him that he would need to document the three years that he claimed he had been self-employed.

   
   

8. About a week later, Petitioner returned to the Orlando terminal and demanded to know why he had not yet been contacted. In a somewhat agitated state, he insisted upon a road test. When Mr. Schneider asked him if he had brought with him the documentation concerning the period of his self-employment, Petitioner became more agitated, began to speak more loudly, and raised his demands from a road test to a job. Mr. Schneider told Petitioner to leave, but Petitioner refused until Mr. Schneider threatened to call the Sheriff's Office.

   
   

9. Respondent's personnel office in Auburndale, Florida ultimately rejected the application, which was sworn to and notarized, because of numerous falsifications contained within it. The misrepresentations include statements that Petitioner had never received workers' compensation benefits when he had on several occasions; Petitioner had never suffered from, or been treated for, a mental ailment when he had, on both counts; and Petitioner had never been known by another name when, quite recently, he had worked at Disney World under an assumed name. Material omissions include the failure to note the Disney World employment and service in the U.S. Navy.

   
   

10. On June 21, 1988, Petitioner submitted an application to be a tractor- trailer operator with an affiliate of Respondent. The application contained the same misrepresentations contained in the above-described application dated June

1. Another application to Respondent dated July 7, 1988, contained the same misrepresentations and added a new one. The application stated that the duration of his service in the U.S. Navy had been from 1984 to 1985. In fact, Petitioner served for only one month, at which time he separated from the service due to unsuitable temperament.

   
   

   CONCLUSIONS OF LAW

   
   

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

      
      

   2. It is an unlawful employment practice for an employer to fail or refuse to hire or otherwise discriminate against any individual with respect to employment because of such individual's national origin. Section 760.10(1) (a), Florida Statutes. It is an unlawful employment practice for an employer to limit, segregate, or classify employees in any way that would deprive any individual of employment opportunities or adversely affect his status as an employee because of his national origin. Section 760.10(1)(b), Florida Statutes.

      
      

   3. The provisions of Chapter 760 are analogous to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq. Cases interpreting Title VII are therefore applicable to Chapter 760. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

      
      

   4. In a case of this type, Petitioner must prove a prima facie case of employment discrimination by showing that he belongs to a protected group, applied for a job for which he was qualified and for which Respondent was seeking applicants, and was rejected despite his qualifications, after which time Respondent continued to seek applicants with Petitioner's qualifications. School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Having proven a prima facie case, the burden of going forward with the

      evidence shifts to Respondent to articulate a legitimate, nondiscriminatory reason for rejecting Petitioner. If Respondent succeeds in meeting this burden, the burden of going forward with the evidence shifts to Petitioner to show that the proffered legitimate reason is pretextual. Id.

      
      

   5. Petitioner has failed to prove a prima facie case of discrimination in employment. Petitioner was unqualified for the job that he sought. At best, he possessed marginal skills, which Respondent could justifiably find rendered Petitioner unqualified for the work that he sought, especially in light of the temperamental outburst that Petitioner displayed during his last visit to the terminal. An additional job requirement was a properly completed application. Petitioner failed to satisfy this requirement as well.

      
      

   6. Even if Petitioner had proven a prima facie case of discrimination, Respondent articulated legitimate, nondiscriminatory reasons for rejecting Petitioner's application, and Petitioner failed to show that the proffered reasons were pretextual.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 16th day of June, 1989, in Tallahassee, Florida.

ROBERT E. MEALE

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 on the 16th day of June, 1989

COPIES FURNISHED:

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Margaret Agerton, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Jenaro P. Higuero, pro se 1099 Leeway Court

Orlando, FL 32810

Samuel L. Bare, III Bare & Parsons

6601 S.W. 80th Street Suite 109

Miami, FL 33143

Docket for Case No: 89-001235

Orders for Case No: 89-001235