STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY R. STARNES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5387

)

LEON F. STEWART TREATMENT )

CENTER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Stephen F. Dean, on January 9, 1992, in Daytona Beach, Volusia County, Florida.

APPEARANCES

For Petitioner: Anthony R. Starnes

7610 Hellman

Corona, California 91720

For Respondent: Charles D. Hood, Jr., Esquire

Monaco, Smith, Hood, Perkins, Loucks & Stout

Suite 900

444 Seabreeze Boulevard Daytona Beach, Florida 32118

STATEMENT OF THE ISSUES

In June 1989, Leon F. Stewart Treatment Center, Inc. ("Stewart"), advertised to the community that it had a job available as a counselor, for which Anthony R. Starnes ("Starnes") applied. Stewart declined to hire Starnes, who is wheelchair bound.

Starnes filed a complaint alleging unlawful employment discrimination with the Florida Commission on Human Relations ("Commission"). On July 25, 1991, the Commission determined that there was no reasonable cause to believe than an unlawful employment practice occurred. Starnes has appealed the determination by the Commission of "no cause" to the Division of Administrative Hearings.

The Respondent filed a proposed finding which was read, considered and adopted except for paragraphs 7 and 8. The Petition did not file proposed findings.

FINDINGS OF FACT

1. In June 1989, Stewart advertised an opening for an adolescent chemical dependency counselor ("counselor"). The counselor job description required the individual to work with adolescents, who were chemically dependent, with activities involving extensive physical interaction with the adolescents such as camping trips, weight lifting, playing various sports, and other outdoor activities. The counselor position was an entrance level position paying approximately $14,000.00 annually to individuals with either an associates degree or bachelors degree in mental health or human services.

   
   

2. Anthony R. Starnes applied for the position as a counselor with Respondent. Starnes has an advance degree in Pastoral Counseling and experience as a counselor. He is wheelchair bound and disabled physically.

   
   

3. John Mullins ("Mullins"), a supervisor with Stewart, was the individual in charge of hiring the counselor.

   
   

4. As a matter of practice, Mullins utilized form letters to advise job applicants that they were not being hired; a certain form letter going to individuals who were not interviewed and a different form letter going to individuals who were interviewed, but not hired.

   
   

5. Because of the nature of the work, Mullins required female counselors to work with female adolescents and male counselors to work with male adolescents. The counselors worked in shifts and remained with the patients overnight. Although the advertisement did not so state, the counselor to be hired was to work with female adolescents.

   
   

6. Mullins never met and never saw Starnes prior to rejecting Starnes' application.

   
   

7. Mullins never knew and was not advised Starnes was orthopedically handicapped or wheelchair bound prior to declining Starnes.

   
   

8. Mullins testified that he did not hire Starnes

   because he felt he was over qualified and did not have inpatient counseling experience. This testimony lacks credibility; however, the policy restricting counselors to the same gender as the adolescents being counseled is reasonable. This was the actual basis upon which Mullins made his decision.

   
   

9. Starnes' physical handicap was not a factor in Mullins' decision not to hire Starnes.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties in the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

11. Starnes failed to produce any evidence that specifically or generally substantiated his allegation that his physical handicap was known by the individual making the hiring decision, or even if known, was pertinent to the hiring decision.

    
    

12. Even if one assumes that Mr. Mullins was aware of the Petitioner's handicap, Mr. Mullins had a non-discriminatory ground for not hiring Mr. Starnes. Mr. Starnes did not present any evidence which contravened Respondent's reasons for not hiring him to work with female patients.

    
    

13. Mr. Starnes did not carry his burden of proof that the Respondent discriminated against him because of Starnes' physical handicap.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations issue a final order denying Starnes' application seeking a determination of unlawful employment practice.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of January 1992.

COPIES FURNISHED:

Anthony R. Starnes 7610 Hellman

Corona, California 91720

Charles D. Hood, Jr., Esquire Monaco, Smith, Hood, Perkins,

Loucks & Stout Suite 900

444 Seabreeze Boulevard Daytona Beach, Florida 32118

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January 1992.

Margaret Jones Agency Clerk

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Dana Baird, Esquire General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO 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: 91-005387

Orders for Case No: 91-005387