STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL L. FAIRBANKS, )

)

Petitioner, )

and )

) CASE NO. 82-305

EXECUTIVE DIRECTOR FOR THE ) COMMISSION ON HUMAN RELATIONS, )

)

Intervenor, )

)

vs. )

)

CITY OF NORTH PORT )

POLICE DEPARTMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 19 January 1983 at North Port, Florida.

APPEARANCES

For Petitioner: Frank J. Calabrese, Esquire

3830 Bee Ridge Road, Suite 240

Sarasota, Florida 33583

For Intervenor: Dana Baird, Esquire

2562 Executive Center Circle, East Tallahassee, Florida 32301

For Respondent: Allen J. Levin, Esquire

City Attorney

209 Conway Boulevard, Northeast Suite A

Port Charlotte, Florida 33952

By copy of an undated Petition received at the Division of Administrative Hearings on February 5, 1982, Paul L. Fairbanks, Petitioner, seeks payment for lost wages he would have received if hired by the North Port Police Department, Respondent, and other benefits. As grounds therefor it is alleged that Petitioner was not hired by Respondent as a result of illegal discrimination on account of handicap.

Prior to the taking of testimony eight exhibits were marked for identification and offered into evidence. Objections to Exhibits 2, 4, and 8 on grounds of relevance were overruled at the hearing, and these exhibits admitted subject to relevance being shown. Ruling on objections to Exhibits 5, 6, and 7

was reserved at the hearing. Exhibits 6 and 7 are now admitted into evidence. Those exhibits are affidavits of witnesses who testified in these proceedings and the hearsay nature of these documents was corroborated by competent evidence. Exhibit 5, a letter from the North Port Police department to a field representative of the Intervenor, was objected to by Respondent as not the best evidence. No effort was made by either Petitioner or Intervenor to produce the original of this letter or to have Respondent admit the authenticity of the copy through discovery procedures. Objection to Exhibit 5 is now sustained.

Thereafter, Petitioner testified in his own behalf and three witnesses were called by Respondent. Intervenor presented no evidence. Proposed findings submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Paul L. Fairbanks, Petitioner, applied for a vacant position of patrolman with the North Port Police Department by application dated 5/27/79. Several other candidates also applied. Written tests were given to the applicants and at least three, including Petitioner, were invited to appear for an interview before a committee of three members. Included on this committee was the Chief of Police of North Port; the City Commissioner designated head of public safety, who made the final decision to hire the successful candidate; and a civilian, Arnold W. Hautala. This committee individually interviewed each candidate and, following the interview, compared impressions received from each candidate before the final selection was made. In this instance Petitioner was not selected. The successful candidate was Travers Runkle.

   
   

2. During his interview Petitioner advised each individual interviewing member of the committee that he had received a work-related back injury while employed as a deputy sheriff in Sarasota County and had brought a worker's compensation claim against that employer. He also stated he had developed colitis and that was part of his disability claim. He told each interviewer that his back injury had caused him no problem for the past two years and that he could perform the duties of a patrolman on the North Port police force. No one on the committee asked detailed questions about Petitioner's back problem or gave it much, if any, concern in their selection process.

   
   

3. Petitioner testified that after he was advised that another candidate was selected for the position he telephoned the Chief of Police and the City Commissioner to inquire why he was not selected. During those conversations Petitioner again initiated conversation regarding his back injury and Petitioner testified that Chief Purcell told him he was not hired because "the city was not going to buy a medical case."

   
   

4. Petitioner's application showed he had several years' experience as a police officer, that he had a bachelor's degree in criminology and corrections, and that he had completed several law enforcement courses. It also showed that he was fired after four years with the Sarasota County Sheriff's Department. Respondent stipulated that Petitioner was qualified, by education and experience, for the job of patrolman. The successful applicant's application for this position showed he had completed two years of college and had received an AA degree with a major in criminal justice. He had worked for the Charlotte County Sheriff's Department for some four and a half years and left because he was dissatisfied with that job. He too had completed several law enforcement courses.

5. Chief Purcell acknowledged that he had received a phone call from Petitioner after the selection of Runkle but categorically denied that he said to Petitioner that the latter was not hired because of his worker's compensation claim.

   
   

6. The three members of the panel that interviewed Petitioner all testified that Petitioner was rated poorly by each of them in the interview portion of the examination. The City Commissioner, who was head of the Department of Public Safety, testified that Petitioner, during his interview, presented an aggressive and arrogant attitude which he believed would not auger well with the citizens of North Port if Petitioner became a police officer. It was not an attitude that the Commissioner believed would be acceptable to citizens who expected police officers to be courteous in their dealings with the public.

   
   

7. During his interview with Chief Purcell Petitioner repeatedly attempted to raise the issue that his previous employer, the Sheriff of Sarasota County who had fired him, was engaged in drug smuggling. Since Chief Purcell had known the sheriff for many years and respected the sheriff's integrity, these slurs directed toward the sheriff did not sit well with Chief Purcell and was the prime factor in the low interview grade given Petitioner by Chief Purcell.

   
   

8. All members of the interviewing panel agreed that the matter of Petitioner's worker's compensation claim was brought up by Petitioner, that they did not consider this factor in the interview grade they assigned to Petitioner, and none was favorably impressed by Petitioner's attitude and conduct during the interview. He did not present the appearance of one they wanted as a patrolman on the North Port police force.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If the petitioner succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate reason for the plaintiff's rejection. Should the defendant carry this burden, the plaintiff must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089, 1093 (1981).

    
    

11. Here Petitioner's prima facie case was rebutted when Chief Purcell denied making the comment which, if uttered, would establish Petitioner's prima facie case. No further evidence was presented by Petitioner, while Respondent presented clear and convincing evidence that Petitioner was not hired because of a legitimate reason rather than because of the invalid reason of discrimination by reason of physical handicap. This evidence was unrebutted by Petitioner.

    
    

12. Although not necessary to a resolution of this case, it is noted that Petitioner's claim on the one hand that he was discriminated against because of physical handicap and, on the other hand, contends that he is not physically handicapped but can perform all duties required of a patrolman on the police force of North Port. Although Respondent presented evidence that the person hired, Runkle, was more qualified, by reason of personality, than Petitioner,

    the Respondent does not have this burden. It is sufficient that the Respondent's evidence raises a genuine issue of fact as to whether it discriminated against Petitioner. To accomplish this Respondent must clearly set forth, through the introduction of admissible evidence, the reasons for Petitioner's rejection. Burdine, supra at 1091. Petitioner's prima facie case of discrimination will be rebutted if Respondent articulates lawful reason for its actions. Id. at 1096.

    
    

13. In a discrimination case the ultimate burden of proof remains with the Petitioner to prove by a preponderance of the evidence that the decision not to employ him was motivated by discriminatory reasons. This burden is not satisfied by proof creating an equipoise. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4 DCA 1974).

    
    

14. From the foregoing it is concluded that Petitioner did not prove, by a preponderance of the evidence, that the decision by the North Port Police Department not to hire him as a patrolman was predicated upon Petitioner's alleged handicap, but resulted from the impression that Petitioner gave to the interviewers that his personality was not conducive to good relations with the public with whom he would come in contact as a patrolman on the police force of North Port. It is therefore

RECOMMENDED that the Petition of Paul L. Fairbanks be DISMISSED. ENTERED this 4th day of February, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 4th day of February, 1983.

COPIES FURNISHED:

Frank J. Calabrese, Esquire 3830 Bee Ridge Road, Suite 240

Sarasota, Florida 33583

Dana Baird, Esquire Florida Commission on

Human Relations

2562 Executive Center Circle, East Tallahassee, Florida 32301

Allen J. Levin, Esquire City Attorney

209 Conway Boulevard, Northeast Suite A

Port Charlotte, Florida 33952

Richard Williams, Executive Director Florida Commission on Human

Relations

2562 Executive Center Circle, East Tallahassee, Florida 32301

Docket for Case No: 82-000305

Orders for Case No: 82-000305