STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID COLEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5926

)

CITY OF JACKSONVILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 14, 1994, in Jacksonville, Florida.

APPEARANCES

For Petitioner: David Coleman, pro se

1071 Ontario Street

Jacksonville, Florida 32205

For Respondent: Brian M. Flaherty, Esquire

600 City Hall

220 East Bay Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.

PRELIMINARY STATEMENT

This matter arose on April 10, 1991, when petitioner, David Coleman, filed a charge of discrimination with the Florida Commission on Human Relations (Commission) alleging that respondent, City of Jacksonville (City), had violated Section 760.10, Florida Statutes, by unlawfully refusing to hire him because of a handicap. After the Commission conducted a preliminary investigation, its executive director issued a Notice of Determination: No Cause on April 15, 1992. A Notice of Redetermination: No Cause was issued on July 24, 1992.

Petitioner then filed a petition for relief on September 22, 1992. In his petition, petitioner contended that he had not been given a veteran's preference and was denied employment in "traffic control" because of a handicap. The matter was referred by the Commission to the Division of Administrative Hearings (DOAH) on October 2, 1992, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated October 20, 1992, a final hearing was scheduled on December 1 and 2, 1992, in Jacksonville, Florida. At respondent's request,

the matter was subsequently rescheduled to February 9, 1993. Thereafter, the undersigned granted respondent's motion to dismiss on the ground the petition for relief was untimely filed, and a Recommended Order of Dismissal was entered on March 30, 1993. A Supplemental Recommended Order of Dismissal was entered on April 20, 1993. After determining that petitioner had filed an earlier and timely request for hearing that had never been forwarded to DOAH, the Commission remanded the matter to DOAH by order dated January 12, 1994, and a final hearing was rescheduled on April 14, 1994, in Jacksonville, Florida.

At final hearing, petitioner testified on his own behalf and offered petitioner's exhibit 1 which was received in evidence. Also, he was allowed to amend his petition to allege that he had applied for the position of "traffic checker" instead of a position with "traffic control." Respondent presented the testimony of Dr. Richard J. Greenwood, a City industrial psychologist, and Howard Conner, the City's division chief of public parking.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent on May 5, 1994. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. This discrimination case involves an allegation by petitioner, David Coleman, that he was denied employment by respondent, City of Jacksonville (City), because of his handicap. The City denies this allegation. A preliminary investigation by the Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred.

   
   

2. By way of background, petitioner has been employed by the City on four separate occasions, the last time as an employee in the mosquito control department in 1984. He was "released" the same year for "unacceptable leave." Since 1990, he has applied for at least twenty separate positions with the City. In conjunction with those and earlier efforts to obtain a job with the City, he has filed several job applications, including one in December 1987 and another in June 1992. Such applications are valid for a period of two years after they are signed and filed with the City. Therefore, if petitioner applied for a position with the City in March 1991, he did not have a valid job application on file.

   
   

3. The petition for relief filed by Coleman describes the unlawful employment practice allegedly committed by the City as follows:

   
   

   unlawful hired or employment practice: with veteran preference that I have, and a handicap, which is alleged.

   
   

   The petition for relief does not describe the handicap. At hearing, however, petitioner contended he suffers from paranoia schizophrenia.

   
   

4. Petitioner says that he applied for a job as a "traffic checker" with the City's engineering department in March 1991. City records reveal, however, that it has no such position called "traffic checker," and thus it hired no one for that job in 1991. It does have a position called "parking enforcement

   specialist," but since no description of the functions of that job is of record, it is unknown if the two positions are the same. Even so, City records do not show that petitioner made application for that position in March 1991.

   Notwithstanding this shortcoming, petitioner says that he interviewed for the position with an unidentified "supervisor," and he was told to prepare a resume, which he later gave to the interviewer's secretary. Thereafter, he made inquiry with the City's affirmative action office and learned that a veteran, not disabled, had been hired to fill the slot. Petitioner then brought this action charging the City with an unlawful employment practice. It is noted he has subsequently filed a second discrimination claim pertaining to another job application with the City.

   
   

5. At hearing, petitioner contended that he suffers from paranoia schizophrenia. Other than his own assertion, however, no evidence was produced to confirm this disability, and as to this issue it is found that insufficient credible evidence exists to support a finding in petitioner's favor. The City admits that in one of petitioner's job applications filed with the City, petitioner attached a copy of a DD214 form reflecting that he was honorably discharged from the military. Also, the City acknowledges that in one of the applications is found a statement that petitioner had a 30 percent service related disability but the type of disability is not described. Whether the service related disability was still valid in March 1991 is not of record. Finally, petitioner's exhibit 1 is a copy of what purports to be a "statement of patient's treatment" from a VA outpatient clinic prepared in February 1985, but this document is hearsay, and in any event, is so dated as to have no probative value in this case.

   
   

6. The more credible evidence shows that petitioner did not apply for the position of "traffic checker" or parking enforcement specialist in 1991. Moreover, petitioner had no valid application on file at that time, and there is no credible evidence as to who, if anyone, was hired to fill the position or what were the qualifications of the person hired. Even if one assumes an application was filed, the record is silent as to why petitioner's application may have been denied or, assuming he had a handicap, whether he could adequately perform the essential functions of the job. Given these considerations, and the lack of evidence to establish that petitioner is disabled with a handicap, it is found that the City did not commit an unlawful employment practice.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. Subsection 760.10(1)(a), Florida Statutes, which governs this controversy, provides in pertinent part as follows:

   
   

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

      (a) To . . . refuse to hire any individual

      . . . because of such individual's . . . handicap . . .

      
      

      Besides alleging that the City violated this statute by denying him employment because of a disability, petitioner also alleges that respondent

      violated the law by failing to give him a veteran's preference. As to this latter claim, it is deemed to be beyond the jurisdiction of the Commission and has accordingly been disregarded.

      
      

9. The petition for relief filed herein asserts that petitioner was denied employment on account of his handicap. Since there is no competent evidence to establish that petitioner suffered from a handicap in March 1991, when petitioner says the adverse employment decision occurred, a prima facie case for relief cannot be made, and the petition for relief should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition

for relief.

DONE AND ENTERED this 9th day of May, 1994, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 this 9th day of May, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5926

Respondent:

1. Partially accepted in finding of fact 4.

2. Partially accepted in finding of fact 5.

3. Partially accepted in finding of fact 6.

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

Sharon Moultry, Clerk

Human Relations Commissioin Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana C. Baird, Esquire Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Mr. David Coleman 1071 Ontario Street

Jacksonville, FL 32205

Brian M. Flaherty, Esquire 600 City Hall

220 East Bay Street Jacksonville, FL 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the Clerk of the Commision on Human Relations concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the Clerk of the Commission on Human Relations.

Docket for Case No: 92-005926

Orders for Case No: 92-005926