STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANA D. RIPLEY,

Petitioner,

vs.

PINELLAS COUNTY SHERIFF'S OFFICE,

Respondent.

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) Case No. 04-2347

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 9, 2004, in Clearwater, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The appearances were as follows:

APPEARANCES

For Petitioner: Andrea Bateman, Esquire1/

1936 Lee Road, Suite 100 Winter Park, Florida 32789

For Respondent: Jean H. Kwall, General Counsel

Pinellas County 10750 Ulmerton Road

Largo, Florida 33779 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether Respondent discriminated against Petitioner based upon his handicap in violation of the Florida Civil Rights Act of 1992,

as amended ("FCRA"), more specifically Section 760.10, Florida Statutes (2004).2/

PRELIMINARY STATEMENT

On February 27, 2004, Petitioner, Dana D. Ripley, filed an "Amended Employment Charge of Discrimination" with the Florida Commission on Human Relations ("FCHR") against Respondent, the Pinellas County Sheriff's Office ("PCSO"). Despite being styled an "amended" charge, this was the one and only charge filed by Mr. Ripley against the PCSO. The charge alleged as follows:

My former employer, Lake City Police Department, provided an unfavorable reference to Respondent on/about November 26, 2002, which included medical

information about my disability. I received a letter from Respondent dated January 29, 2003 to the effect that I was no longer being considered for employment with Respondent and that my application was administratively closed.

I believe that Respondent used the unfavorable reference (retaliation)[3/] and/or my disability as grounds for not hiring me for the position of Deputy Sheriff, for which I was highly qualified.

On May 26, 2004, the FCHR informed Mr. Ripley that it had determined that there was no reasonable cause to believe an unlawful employment practice had occurred. In response to that determination, Mr. Ripley filed a Petition for Relief ("Petition") on July 6, 2004. The Petition contains allegations that Mr. Ripley had a physical or mental impairment that limited

his major life activities and that the PCSO discriminated against him because of his impairment. On July 7, 2004, the FCHR forwarded the Petition to the Division of Administrative Hearings ("DOAH") for the assignment of an Administrative Law Judge and the conduct of a formal hearing.

On July 21, 2004, the PCSO filed a Motion to Dismiss based upon Mr. Ripley's alleged failure to comply with the statute of limitations set forth in Subsection 760.11(1), Florida Statutes: "Any person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the alleged violation. . . ." The motion noted that Mr. Ripley's charge was filed on February 27, 2004, more than 365 days after January 29, 2003, the date of the most recent discriminatory act claimed in the charge. On July 22, 2004, an Order to Show Cause was issued, directing Mr. Ripley to respond to the Motion to Dismiss within seven days. On July 30, 2004, counsel for

Mr. Ripley filed a response stating that the charge "was timely filed when the retaliation was discovered," and promising a subsequent elaboration on that statement. On August 5, 2004, counsel for Mr. Ripley filed an amended response stating that Mr. Ripley was unaware that the Lake City Police Department had provided unfavorable references to the PCSO until the FCHR investigated an earlier complaint Mr. Ripley had made against the Lake City Police Department in October 2003.

A telephonic hearing was held on the Motion to Dismiss that resulted in an Order dated August 18, 2004, reserving ruling on the motion and giving Mr. Ripley until September 1, 2004, to submit documents and affidavits in support of his position opposing the motion. Based on Mr. Ripley's second amended response filed September 2, 2004, which included his sworn affidavit concerning the circumstances of his learning of the negative references by the Lake City Police Department, an Order was entered on September 14, 2004, denying the PCSO's Motion to Dismiss, without prejudice. Nothing adduced at the final hearing in this matter gave the undersigned cause to revisit the earlier denial of the Motion to Dismiss.

Following one continuance, the cause came on for hearing, as noticed, on November 9, 2004, in Clearwater, Florida.

Mr. Ripley testified on his own behalf and had his Exhibits 1 through 7 admitted into evidence. The PCSO offered the testimony of Cpl. B. J. Lyons, a background investigator in the PCSO's Human Resources Division; Lt. Dean LaChance, the administrative lieutenant in the PCSO's Human Resources Division; and Herman Vincent, director of the PCSO's Human Resources Division. PCSO's Exhibits A through C and E were admitted into evidence. PCSO's Exhibit A was a 132-page composite exhibit comprising all of the documents in

Mr. Ripley's employment application file with the PCSO.

A Transcript of the hearing was filed at DOAH on

November 29, 2004. On December 8, 2004, the PCSO filed a motion seeking an extension of the time for filing proposed recommended orders until December 17, 2004. In a separate filing on December 9, 2004, counsel for Mr. Ripley joined the motion. By Order dated December 10, 2004, the motion for extension was granted. Counsel for both parties timely filed Proposed Recommended Orders, which have been considered in the rendition of this Recommended Order.

On December 29, 2004, Mr. Ripley filed a letter notifying the undersigned that he had discharged his attorney "and will be serving as my own counsel until further notice." On January 11, 2005, Mr. Ripley submitted a second letter, attached to which was a document that Mr. Ripley contended supported his position, but that had been withheld from him by the PCSO prior to the hearing. On January 19, 2005, the PCSO replied that the letter in question had been provided to Mr. Ripley and was, in fact, a part of the PCSO's composite Exhibit A that was admitted at the hearing. The undersigned's review indicates that the document in question was not a part of the PCSO's Exhibit A.

On February 3, 2005, Mr. Ripley filed a reply correctly asserting that the document was not part of the record made at the hearing. On February 11, 2005, the PCSO filed a motion to strike and for entry of an order of prohibition directing

Mr. Ripley to cease filing documents in the case. On February 15, 2005, Mr. Ripley filed a reply in which he agreed

the parties should cease making post-hearing submissions, but in which he, again, requested that the late-discovered document filed on January 11, 2005, be admitted. The PCSO's objection to the document's admission is overruled. It cannot be said that the PCSO is prejudiced by the document's late admission, given that the PCSO believed the document was already part of the record. The document, a letter from Vincent P. Skotko, Ph.D., to Herman Vincent dated November 26, 2002, is hereby ADMITTED as

Mr. Ripley's Exhibit 8.

FINDINGS OF FACT

1. Petitioner, Dana D. Ripley, was, at all times relevant to this proceeding, certified by the Criminal Justice Standards and Training Commission as a law enforcement officer. He was employed as a police officer by the Lake City Police Department from 1997 until March 2002.

2. On March 15, 2002, Mr. Ripley completed a sworn "pre- application" for a deputy sheriff's position with the PCSO. The pre-application is used as a screening device to reject candidates who are ineligible for employment with the PCSO, such as persons with felony convictions or activities related to illegal drugs.

3. The pre-application asked a series of questions regarding criminal convictions and drug activities. One of the questions was, "Have you ever sold, purchased or offered for sale any illegal drug?" Mr. Ripley circled the answer, "Yes." He indicated that he had possessed steroids "5 to 10 times," the last time being in 1994. In the space provided in the pre- application to explain any "yes" answers, Mr. Ripley wrote, "During my years in university [sic] I purchased and used anabolic steroids to assist my athletic pursuits while in school."

4. Cpl. B. J. Lyons, the PCSO background investigator who oversaw Mr. Ripley's application, testified that the answers regarding steroids were a "concern," but not alone sufficient to stop the application process.

5. As part of the pre-application process, Mr. Ripley attested that he had read the job duties and functions for the deputy sheriff's position and was "capable of performing the duties of the job as described with or without a reasonable accommodation." Nowhere in his pre-application or full application did Mr. Ripley indicate that he had a disability, an impairment of a major life function, or the need for any accommodation.

6. Having met the criteria on the pre-application, albeit with one "concern," Mr. Ripley went on to complete the full

   application process, which included signing waivers and obtaining a physician's clearance to take a physical abilities test. On October 30, 2002, Mr. Ripley's physician certified that there was "no unreasonable danger of harm" in Mr. Ripley's undergoing the physical abilities test "with/without a reasonable accommodation."

7. On November 25, 2002, Mr. Ripley was given a "Notice of Conditional Offer of Employment" by the PCSO. The conditional offer stated that, if Mr. Ripley satisfactorily completed psychological testing, a psychological interview, a drug test, and a medical examination, he would be eligible for appointment to a deputy sheriff's position by the sheriff. The conditional offer expressly stated that placement in the applicant pool does not assure that the sheriff would appoint the applicant to a deputy sheriff's position.

8. On November 26, 2002, Mr. Ripley took the PCSO's physical abilities test, in which he went through a test course that included running 220 yards, climbing a wall, running over hurdles, crawling under obstacles, dragging a 150-pound dummy a distance of 50 feet, and simulated firing of a police weapon. The maximum acceptable time for completing the test course was six minutes and 30 seconds. Mr. Ripley completed the course in two minutes and 50 seconds, which Cpl. Lyons termed a very good time.

9. Also on November 26, 2002, Mr. Ripley sat for a polygraph examination conducted by Allen Stein, an independent polygraph examiner under contract with the PCSO. Mr. Stein's report stated the following in relevant part:

   During the pretest interview, Mr. Ripley said he resigned from the Lake City Police Department following a discussion with the Chief of Police in which they agreed a change of scenery would be desirable for him. Mr. Ripley had been absent from work for about a nine month period because of three colon surgeries because of a colitis condition. Following his return to duty, he had an amnesia episode while on duty, which resulted in the meeting with the Chief. It was suggested to Mr. Ripley that the City Manager wanted him to be terminated. In an earlier instance, he fainted as a result of dehydration resulting from the removal of a large part of his large intestine. A blood test was done after he had fainted which disclosed prohibited substances in his system. He had neglected to tell his supervisor about the various controlled substances that he had to take to assist in weaning him from the narcotics that had been prescribed for him following the surgeries. In both cases mentioned above, internal affairs investigations were conducted that resulted in a written counseling and then, the requested resignation. He resigned in March 2002.

   
   

   Mr. Ripley said he has operated a motor vehicle not more than ten times after having consumed enough alcoholic beverages that if stopped, he might have been charged with driving under the influence. The last time was in June 2002.

   
   

   Mr. Ripley said that in 1988 through 1996, he took steroids to assist him in competing in bodybuilding and power weight lifting

   events. He consumed about two cycles per year. He estimated that he had spent about

   $800.00 to purchase steroids.

   
   

10. Cpl. Lyons was concerned about several of the statements Mr. Ripley made to Mr. Stein during the pretest interview. He took the "change of scenery" in the conversation with the police chief to mean that Mr. Ripley should quit the Lake City Police Department and leave town. This conclusion was supported by the reference to the city manager's wanting

    Mr. Ripley terminated. Cpl. Lyons believed something was "not right" about Mr. Ripley's having an amnesia episode, but then meeting with the chief, rather than going for medical attention. Cpl. Lyons was concerned about the blood test that revealed the presence of prohibited substances in Mr. Ripley's system.

    Cpl. Lyons was concerned regarding Mr. Ripley's admission that he had operated a motor vehicle after consuming enough alcohol that he could have been charged with driving under the influence, particularly the admission that he had done so as recently as June 2002, which was after Mr. Ripley applied for employment with the PCSO. Finally, Cpl. Lyons noted that

    Mr. Ripley's statement that he took two annual cycles of steroids over a period of eight years, ending in 1996, conflicted with his statement in his pre-application that he had possessed steroids only "5 to 10 times," the last time being in 1994.

11. On December 11, 2002, Mr. Ripley and seven other candidates sat for the PCSO's oral examination. Mr. Ripley scored 57 out of a possible 63 points, a passing score, but the lowest of the eight candidates who sat for the oral examination on that day. Cpl. Lyons was surprised at Mr. Ripley's low score because applicants who have prior law enforcement experience usually obtain higher scores on the oral examination than do inexperienced applicants.

12. On or about November 20, 2002, Cpl. Lyons obtained from the Lake City Police Department an offense report regarding Mr. Ripley. On January 25, 2002, at around 4:00 p.m., a Lake City patrol car was dispatched "in reference to a disoriented person running around in the street in his underwear." While the officers in the patrol car were unsuccessfully searching the area to which they had been dispatched, they received a second call concerning the same person. The officers contacted the complainant, who told them she had seen a barefoot man, in long underwear and a shirt, walking down the middle of a residential street mumbling to himself and stumbling around. She saw the man fall several times and was worried he would be run over by a car. She and her son coaxed the man into sitting on their front porch until the police could arrive.

13. The lead officer, Sgt. Marshall Sova, recognized the disoriented man as Mr. Ripley, who said he was working on a

    robbery case. Sgt. Sova walked Mr. Ripley to the patrol car and placed him in the back seat, told the other officer, Misty Gable, to call Columbia County EMS to the scene, then radioed his lieutenant to come to the scene. Sgt. Sova reported that Mr. Ripley was hallucinating, pointing to the empty yard next door, and telling Sgt. Sova, "There they are, go get them," believing he was seeing the men who "committed the robbery."

14. Sgt. Sova sent Officer Gable to Mr. Ripley's residence, one street away from where he was apprehended, to make sure it was secured. Officer Gable drove to Mr. Ripley's house and found the front door standing wide open. She looked inside and saw "no fewer than two hand guns, two full gun magazines, four boxes of ammunition, two police radios, and the keys to the Lake City Police squad car that was parked in his driveway, along with household electronics such as a large TV, video game players and games, a cable box, etc., in plain view from the open front door." Officer Gable radioed a report to Sgt. Sova, who told her to wait there until he and their superior officer, Lt. Dubose, could come over to the house.

15. Columbia County EMS arrived at the scene and carried Mr. Ripley on a stretcher to the rescue vehicle. The paramedics checked Mr. Ripley's blood sugar and found that it was low.

    Mr. Ripley was transported to the Lake City Medical Center.

16. Lt. Dubose arrived and went with Sgt. Sova to

    
    

    Mr. Ripley's residence for the purpose of obtaining the Lake City Police Department property that Officer Gable reported was inside Mr. Ripley's open apartment. The house was in a state of complete disarray, with standing water in the bathroom. In addition to the Lake City Police Department property, the officers found several prescription drug bottles and body- building supplements. All of the prescription drug bottles were empty, including one that had been refilled with 30 pills two days prior to these events. The officers took possession of the police department property, secured Mr. Ripley's apartment, then returned to headquarters.

17. At the hearing, Cpl. Lyons of the PCSO testified that this police report from the Lake City Police Department caused him great concern about Mr. Ripley's suitability for the position of deputy sheriff. However, nothing in the report caused him to suspect that Mr. Ripley was disabled.

18. At the hearing, Mr. Ripley recounted his medical history and provided his version of events in Lake City. In June 2000, Mr. Ripley suffered a severe sprain of his right ankle while on duty. The medications prescribed for the pain in his ankle exacerbated a colitis condition for which Mr. Ripley was already taking medication. The aggravated colitis required three hospitalizations in the course of one month.

19. In late August 2000, Mr. Ripley underwent surgery to remove his large intestine and rectum, then an ileoanal J-pouch anastomosis, the surgical construction of a fecal reservoir using the lower end of the small intestine. For the better part of a year after the surgery, Mr. Ripley was prescribed large doses of pain medications. He qualified for long-term disability for a period of four months and was sporadically off work for nine months. He returned to work full time in March 2001, then was back in the hospital during June 2001.

20. At the end of July 2001, Mr. Ripley returned to work.

    
    

    His physicians were attempting to wean him from the opiates he was taking for pain. His physician wrote to the Lake City Police Department in support of Mr. Ripley's request for either light duty or night duty. The department placed him on night duty.

21. Mr. Ripley testified that he struggled with his recovery for two years. He suffered from pouchitis, an inflammation of the ileal reservoir created by the reconstructive intestinal surgery. Mr. Ripley suffered from the flu in January 2002 and stated that he was in a state of dehydration when found wandering his neighborhood on January 25, 2002.

22. On January 29, 2002, four days after the "underwear incident" described above, Mr. Ripley entered a substance abuse

    treatment program for his dependence on prescription medications at Shands at Vista, in Gainesville, Florida. He successfully completed the program on February 22, 2002. Mr. Ripley did not inform the PCSO of his participation in or completion of this program while he was an applicant for a deputy sheriff's position. The PCSO did not learn of Mr. Ripley's treatment until after he filed the amended charge of discrimination that initiated this proceeding.

23. The incident of January 25, 2002, triggered an internal affairs investigation by the Lake City Police Department. At the conclusion of the investigation, several charges against Mr. Ripley were sustained, including conduct unbecoming a police officer, immoral conduct, possessing prescription drugs in a police station without notifying his supervisor, and violations of department policy on the use and secure possession of weapons. The Lake City Police Department internal investigation report form dated March 1, 2002, contains the following notation: "Actions were sustained; employee resigned prior to disciplinary action."

24. At the hearing, Mr. Ripley's chief contentions were that the PCSO was ready and willing to hire him, that it was dissuaded from doing so entirely due to the Lake City Police Department's report of the January 25, 2002, incident, and that this incident was caused by his disability. The disability

    claimed by Mr. Ripley was prescription drug dependency, subsequently rehabilitated through his successful completion of the Shands substance abuse treatment program in February 2002.

25. Accepting arguendo that Mr. Ripley's claimed disability meets the criteria of "handicap" for purposes of Subsection 760.10(1)(a), Florida Statutes, the evidence did not establish that the PCSO was ever made aware of this disability, much less based its decision not to hire Mr. Ripley on that disability.

26. Cpl. Lyons, who was Mr. Ripley's main point of contact with the PCSO, was unaware of any of Mr. Ripley's medical records, except for the medical clearance form authorizing

    Mr. Ripley to take the physical abilities test. In their discussions, Mr. Ripley never mentioned to Cpl. Lyons that he had a drug dependence problem or any other disability, nor did he request any form of accommodation. Cpl. Lyons believed Mr. Ripley to be "very physically fit," as evidenced by his exceptionally good time in the physical abilities test and saw nothing that made it appear Mr. Ripley would need an accommodation.

27. Cpl. Lyons testified that Mr. Ripley's medical condition was not considered because it could not be used as a factor in eliminating Mr. Ripley from consideration.4/

28. Cpl. Lyons brought Mr. Ripley's file to the attention of Lt. Dean LaChance, his superior in the PCSO's Human Resources Division. Cpl. Lyons told Lt. LaChance that one of the applicants had been seen "in his neighborhood running around in his underwear" and that Lt. LaChance might want to look at

    Mr. Ripley's file and make a hiring decision. Cpl. Lyons sent the file to Lt. LaChance, attaching a note that stated, "Prior [experience with] Lake City. Need to read his [polygraph report]. Also see the report from Lake City [Police Department] . . . Not the greatest pick so far."

29. Lt. LaChance reviewed Mr. Ripley's file, including the pre-application and polygraph. Lt. LaChance recommended that Mr. Ripley's file be closed, meaning that Mr. Ripley should be removed from the pool of eligible applicants. Lt. LaChance based his recommendation on the facts that Mr. Ripley's oral examination scores were low and that "we had better applicants in the file," as well as on the "underwear incident."

    Lt. LaChance also noted the discrepancies regarding steroids between Mr. Ripley's polygraph examination and his pre- application.

30. Lt. LaChance noted other problems with Mr. Ripley's polygraph: his statement that the city manager wanted him fired; the fact Mr. Ripley resigned during an open internal affairs investigation; Mr. Ripley's "change of scenery"

    language, which Lt. LaChance took to mean that Mr. Ripley was told to quit or be fired; and Mr. Ripley's admission that he had operated a motor vehicle at least ten times under the influence of alcohol, even while he was going through the PCSO's background investigation.

31. Lt. LaChance never met Mr. Ripley and never spoke to him prior to the hearing in this matter. He had no knowledge that Mr. Ripley claimed a disability and saw nothing in

    Mr. Ripley's file to make him suspect that Mr. Ripley had a disability. He had no knowledge that Mr. Ripley had gone through a drug abuse treatment program.

32. The only medical information available to Lt. LaChance was Mr. Ripley's polygraph statements regarding his prior surgeries. Based on Mr. Ripley's statements, Lt. LaChance considered Mr. Ripley's medical condition to have been temporary and "fixed" by his surgery. Mr. Ripley had done a "great job" on the physical abilities test, and Lt. LaChance did not consider him to be disabled in any way.

33. Lt. LaChance testified that it is the PCSO's general practice not to hire people who have been terminated or have resigned under investigation from other law enforcement agencies. He stated that his agency has more than enough qualified applicants and has no need to hire an applicant with "the kind of baggage" that Mr. Ripley presented.

34. Mr. Ripley believed that part of the "understanding" between him and the Lake City Police Department was that the internal investigation report of the January 25, 2002, incident would not be circulated to potential employers. This belief explains why Mr. Ripley apparently thought he could finesse the question of why he resigned with casual references to a "change of scenery," and why Mr. Ripley did not mention his prescription drug dependency and rehabilitation in his PCSO application.

35. Based on the foregoing Findings of Fact, it is found that the PCSO had no knowledge of Mr. Ripley's claimed disability. No PCSO employee perceived Mr. Ripley as having a disability. Mr. Ripley's application file was closed based on factors unrelated to his alleged disability.

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat. (2004).

37. Section 760.10, Florida Statutes, provides in relevant

    
    

    part:

    
    

    1. It is an unlawful employment practice for an employer

       
       

       1. 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 employment, because of such individual's race, color, religion, sex,

    national origin, age, handicap, or marital status.

    
    

38. The burden of proof in this proceeding is on Petitioner, who must establish by a preponderance of evidence that the closure of his application file constituted unlawful discrimination within the purview of Chapter 760, Florida Statutes (2003). See Florida Department of Transportation v.

    J.W.C. Company, 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977). Though the burden of going forward with the evidence may shift, the ultimate burden of persuasion to establish proof of an unlawful employment practice remains on Petitioner. St. Mary's Honor Center v. Hicks,

    509 U.S. 502, 507, 113 S. Ct. 2742, 2747 (1993).

    
    

39. To present a prima facie case of employment discrimination based on a handicap or disability under FCRA, Petitioner must show: 1) that he is a person with a handicap or disability; 2) that he is qualified for the position apart from his handicap or disability; and 3) that he was denied the position solely because of his handicap or disability. Smith v. Avatar Properties, Inc., 714 So. 2d 1103, 1106 (Fla. 5th DCA 1998). Petitioner must establish all three elements to meet his burden. See Mont-Ros v. City of West Miami, 111 F. Supp. 2d 1338, 1350 (S.D. Fla. 2000).

40. If Petitioner is able to establish a prima facie case, the burden of production (although not persuasion) shifts to Respondent to show a legitimate, non-discriminatory reason for the adverse action taken. McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824 (1973). Respondent need not persuade the fact-finder that it was actually motivated by the proffered reason, but must merely set forth, through the introduction of evidence, the reasons for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-255, 101 S. Ct. 1089, 1094 (1981). Thereafter, Petitioner retains the burden of persuasion and must prove by a preponderance of the evidence that the legitimate reasons offered by Respondent were not its true reasons, but a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S. Ct.

    at 1093. In determining pretext, Petitioner must demonstrate "such weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable finder of fact could find them unworthy of credence." Wallace v. School Board of Orange County, Florida, 41 F. Supp. 2d 1321, 1330 (M.D. Fla. 1998), quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996).

41. The FCRA employs, but does not define the term "handicap." However, the American Disabilities Act of 1990,

    42 U.S.C. Section 12101, et seq. ("ADA"), provides guidance.

    
    

    Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Smith, 714 So. 2d at 1106-07 (Florida statute modeled after federal law on same subject will take on same construction as is placed on its federal prototype, if such interpretation is harmonious with spirit and policy of Florida legislation).

42. Pursuant to the ADA, "disability" is defined as a physical or mental impairment that substantially limits one or more of the major life activities of an individual, a record of such impairment, or being regarded as having such an impairment.

    42 U.S.C. § 12102(2). The ADA's implementing rules define "physical or mental impairment" to mean:

    1. Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or

       
       

    2. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

    
    

    29 C.F.R. § 1630.2(h).

    
    

43. The same rule defines "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and

    working." 29 C.F.R. § 1630.2(i). An impairment is "substantially limiting" when the individual is unable to perform a major life activity that the average person in the general population can perform or is significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity. 29 C.F.R.

    § 1630.2(j).

    
    

44. Even if it is accepted that Mr. Ripley's dependence on prescription drugs qualifies as a "physical or mental impairment" under the catch-all heading of "emotional or mental illness," Mr. Ripley failed to allege or prove that his impairment would substantially limit any of his major life activities or that he "has a record" of such an impairment limiting his major life activities. 29 C.F.R. § 1630.2(k).

45. The rule defines "being regarded as having such an impairment" to mean:

    1. Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;

       
       

    2. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

       
       

    3. Has none of the impairments defined in paragraph (h)(1) or (2) of this section but

       is treated by a covered entity as having a substantially limiting impairment.

       
       

       29 C.F.R. § 1630.2(l).

       
       

46. Mr. Ripley produced no evidence that he has been regarded as having a physical or mental impairment as defined in 29 C.F.R. § 1630.2(l).

47. Because Mr. Ripley failed to establish that he is a person with a handicap or disability, he did not establish a prima facie case of discrimination. Assuming arguendo that Mr. Ripley had been able to prove that he suffered from a protected handicap, he failed to demonstrate that the PCSO had any knowledge whatsoever of his disability. Rather, the facts tended to establish that Mr. Ripley did not wish the PCSO to

    know that he had gone through a rehabilitation program. At the time of his application, Mr. Ripley believed that the PCSO would not learn of the "underwear incident," and, thus, he saw no need to inform the PCSO of his drug dependency problem. See Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 884 (6th Cir.

    1996); Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 932-34 (7th Cir. 1995) (defendant cannot discriminate because of a disability if it has no knowledge of the disability).

48. Further assuming arguendo that Mr. Ripley had been able to prove that he suffered from a protected handicap or disability and otherwise established his prima facie case,

Respondent has articulated legitimate, non-discriminatory reasons for not hiring Mr. Ripley. The PCSO articulated a general policy of not hiring deputies who have been terminated or have resigned under investigation from other law enforcement agencies. Mr. Ripley was less than candid during the application process regarding his use of steroids. He admitted to drinking and driving on many occasions, even after he had applied for a deputy's position with the PCSO. He made the lowest score of the day on the oral examination, despite his law enforcement experience. He did not volunteer information regarding the internal investigation by the Lake City Police Department, an investigation that culminated in his resignation, in lieu of discipline for the confirmed findings of conduct unbecoming a police officer, immoral conduct, possessing prescription drugs in a police station without notifying his supervisor, and violations of department policy on the use and secure possession of weapons. Petitioner failed to meet his burden of showing that these reasons were a pretext for unlawful discrimination based upon his status as a person in recovery from dependence on prescription drugs.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED:

That a final order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety.

DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2005.

ENDNOTES

1/ Ms. Bateman represented Petitioner throughout the proceedings in this case, up to and including the preparation and filing of a proposed recommended order. In a letter filed December 29, 2004, after the filing of Proposed Recommended Orders, Petitioner stated that he had discharged his attorney and would, henceforth, represent himself in this matter. Petitioner did not expressly disavow the Proposed Recommended Order prepared by his former counsel. Petitioner's Proposed Recommended Order was considered in the preparation of this Recommended Order.

2/ The events at issue in this proceeding occurred in 2002 and 2003. However, because Section 760.10, Florida Statutes (2004),

has been unamended since 1992, the current edition of the Florida Statutes is employed for ease of reference.

3/ At the hearing, Petitioner conceded that there were no grounds for a claim of retaliation against the PCSO.

4/ Cpl. Lyons was here referencing 42 U.S.C. Section 12112(d), which generally limits pre-employment medical inquiries to the applicant's ability to perform job-related functions.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jean H. Kwall, General Counsel Pinellas County

10750 Ulmerton Road

Largo, Florida 33779

Andrea Bateman, Esquire 1936 Lee Road, Suite 100 Winter Park, Florida 32789

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dana D. Ripley

3324 West University Avenue PMB 350

Gainesville, Florida 32607

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-002347

Orders for Case No: 04-002347