STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES LAWRENCE BALKAN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3783

)

BLOCK DRUG COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 9, 1992, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rebecca J. Covey, Esquire

500 Northeast 4th Street Suite 100

Fort Lauderdale, Florida 33301

For Respondent: C. Graham Carothers, Esquire

Post Office Box 391 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

1. Whether Respondent committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes, 1/ as alleged by Petitioner, by failing to offer Petitioner employment as an oral health sales consultant?

   
   

2. If so, what affirmative relief should Petitioner be provided?

PRELIMINARY STATEMENT

After the investigation of Petitioner's complaint had been completed, the Executive Director of the Florida Commission on Human Relations (hereinafter referred to as the "Commission") had issued a Notice of Determination: Cause, and conciliation efforts had failed, Petitioner filed a Petition for Relief (hereinafter referred to as the "Petition") with the Commission in which he alleged that Respondent committed an unlawful employment practice in violation of the Human Rights Act of 1977 by failing to hire him as an oral health sales consultant because he is HIV-positive. Thereafter, Respondent filed an answer to the Petition in which it denied committing the unlawful employment practice alleged by Petitioner.

On June 23, 1992, the Commission transmitted the Petition to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Hearing Officer. The Division received the Petition the following day.

At the final hearing held before the assigned Hearing Officer a total of seven witnesses testified: Petitioner; Beatrice Balkan, Petitioner's mother; Benson Balkan, Petitioner's father; Dr. Archie McClain, Petitioner's physician; Sam Durden, who is employed by Respondent as a division manager; Monty Allison, a regional manager with Respondent and Durden's supervisor; and Sandra Blanc, the president of Comprehensive Health Services. In addition to the testimony of these witnesses, a total of 20 exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing on December 9, 1992, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 21 days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received the hearing transcript on January 7, 1993.

On January 27, 1993, Respondent filed a proposed recommended order.

Petitioner filed his proposed recommended order the following day.

The parties' proposed recommended orders contain, what are labelled as, "findings of fact." These "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Respondent is a firm engaged in the promotion and sale of dental products in the State of Florida and elsewhere.

   
   

2. It conducts such business in the state through oral health sales consultants (hereinafter referred to as "consultants").

   
   

3. Each consultant covers an assigned "sales territory."

   
   

4. There are five such "sales territories" in the state, including Territories 41 and 43, which have Fort Lauderdale and Orlando, respectively, as their "home bases."

   
   

5. Sam Durden is Respondent's Gulf Coast Division Manager. He is the immediate supervisor of ten consultants, including those operating in Territory

   41 (hereinafter also referred to as the "Fort Lauderdale Territory") and Territory 43 (hereinafter also referred to as the "Orlando Territory").

   
   

6. Monty Allison is Respondent's Southern Regional Manager. He is Durden's immediate supervisor.

   
   

7. In February of 1991, the Territory 41 consultant position, as well as the Territory 43 consultant position, were vacant.

   
   

8. Respondent therefore went about recruiting a pool of applicants from which it intended to fill both positions.

9. Among the things it did was to place a classified advertisement in the February 3, 1991, edition of a local Fort Lauderdale newspaper.

   
   

10. Petitioner, who at the time was living with his parents in Tamarac, Florida, saw the advertisement. He was interested in the advertised position. Consequently, he sent his resume to Respondent.

    
    

11. Petitioner was not the only one to express an interest in being hired to work for Respondent as a consultant. Respondent received approximately 1,100 telephone inquiries in response to its advertising campaign.

    
    

12. Of those who contacted Respondent, approximately 300 were invited to meet with representatives of Respondent at an Orlando hotel on one of two days, either February 11, 1991, or February 12, 1991.

    
    

13. Petitioner was one of the invitees. He met with company representatives on February 12, 1991. During his visit, he was asked to fill out certain forms.

    
    

14. One of these forms was an application for employment. The following was among the questions on the application form: "Do you have any physical or mental limitations that would interfere with your performance in this position?"

    
    

15. Petitioner truthfully answered "no" in response to this question.

    
    

16. While Petitioner is now, and has been at all times material to the instant case, HIV-positive, he is asymptomatic and does not have full blown AIDS.

    
    

17. At no time has his condition prevented him from the full and normal use of his sensory, mental or physical faculties, or from functioning normally in any way.

    
    

18. Had he been hired, he would have been able to perform the duties of an oral health sales consultant without any special accommodations.

    
    

19. The application form also requested information regarding, among other things, the applicant's educational background. Petitioner had received a B.A. degree from Hofstra University in 1973 and a D.M.D. degree from the University of Pennsylvania School of Dental Medicine in 1977, 2/ and he so indicated on the form.

    
    

20. The final page of the application form contained the following certification that Petitioner signed and dated:

    
    

    PRE-EMPLOYMENT PHYSICAL EXAMINATION

    I understand that my employment is contingent upon passing a pre-employment physical which includes a screen for substance abuse. 3/

    
    

    PLEASE READ CAREFULLY

    
    

    I HEREBY CERTIFY that the answers given to the foregoing questions on this application are true and correct to the best of my knowledge and belief and, if employed, I agree to abide by the rules of the Company. I authorize

    investigation of all statements contained in this application and of my work history. I have no objection to taking a medical examination.

    I agree that the making of any false statements in this application will be sufficient cause for discharge. It is understood that termination of employment is at will by either party except where a separate written contract specifies otherwise.

    
    

    FAIR CREDIT REPORTING ACT

    
    

    In the course of processing your application for employment, we may obtain an Investigative Consumer Report within the meaning of the Fair Credit Reporting Act. This report may include information as to your character, general reputation, personal characteristics and mode of living. You have the right to make a written request within a reasonable period of time for a complete and accurate disclosure concerning the nature and scope of any such investigation.

    I understand that my employment is probationary for a period of up to 6 months. I have read the above and my signature below is conclusive proof of this acknowledgment.

    
    

21. Petitioner was also asked to complete an Employment Applicant Voluntary Self-Identification form. Petitioner, however, completed only a portion of the form.

    
    

22. The first three paragraphs of the form provided as follows:

    
    

    We are gathering the following information not for employment decisions but for recordkeeping in compliance with Federal regulations. This information will be kept separate from your Employment Application. Your responses are strictly voluntary and will help in developing and monitoring our Affirmative Action Programs to recruit and employ qualified minorities, females, handicapped individuals and veterans. Information provided will be kept confidential except that (1) supervisors and managers may be informed regarding work restrictions of disabled veterans and handicapped individuals, and regarding necessary accommodations; (2) first aid and safety personnel may be informed when and to the extent appropriate, if the condition might require emergency treatment; and (3) government officials investigating compliance will be informed.

    If you choose not to answer any of these questions, you will not be subject to adverse treatment. If you choose not to

    "self-identify," however, we are required under Federal regulations to maintain race, sex, and handicap information on the basis of visual observations or personal knowledge. If you do not wish to furnish this information, please initial and date below.

    
    

    Petitioner did not place his initials in the space provided beneath these three paragraphs.

    
    

23. Petitioner indicated on the form that he was a white male who was neither a Vietnam-era veteran nor a special disabled veteran.

24. He, however, left blank the following portion of the form: HANDICAP: Are you a handicapped individual?

    A handicapped individual means any person who

    (1) has a physical or mental impairment that substantially limits one or more major life activity; (2) has a record of such impairment; or (3) is regarded as having such an impairment. NO YES.

    Are there any special methods, skills, and procedures that qualify you for positions that you might not otherwise be able to do because of your handicap or disability?

    NO YES. If YES, please explain:

    
    

    Are there any accommodations we could make that would enable you to perform the job properly and safely? NO YES. If YES, please explain:

    
    

25. After working on the forms, Petitioner was interviewed by Sam Durden. The interview lasted more than an hour. Durden was impressed with Petitioner's qualifications. Not only did Petitioner have a doctorate degree in dental medicine, he had sales and managerial experience.

    
    

26. Following the interview, at Durden's request, Petitioner took a personality profile test.

    
    

27. After February 12, 1991, the field of candidates for the two vacant consultant positions was narrowed to 50. Petitioner, who had received high scores on the personality profile test he had taken, was among the candidates selected for further consideration.

    
    

28. Petitioner continued to receive positive feedback from Respondent regarding his candidacy. He ultimately was selected as one of four finalists for the two vacant positions. The other three finalists were Lisa Bechold, Robert Tajchman and Susan Tucker, none of whom were known or perceived to be HIV-positive.

    
    

29. Sam Durden and Monty Allison were responsible for making the final hiring decisions. They interviewed the four finalists on February 25, 1991. Following these final interviews, on the evening of February 25, 1991, Durden and Allison decided to offer the Fort Lauderdale Territory position to Bechold and the Orlando Territory position to Tajchman. The offer to Tajchman, however,

    was to be contingent upon his passing the pre-employment physical examination and drug screen, that, as Durden had been informed on February 22, 1991, Bechold had already passed.

    
    

30. Bechold had more relevant sales experience than any of the other finalists and came highly recommended. Furthermore, she lived in the center of the Fort Lauderdale Territory.

    
    

31. Tajchman had ten years of sales experience at the management level, plus extensive experience in business operations, project planning, advertising, leasing and purchasing.

    
    

32. Durden and Allison considered Bechold and Tajchman better qualified than Petitioner to fill the vacant positions, notwithstanding that Bechold and Tajchman did not have the education and background in dental medicine that Petitioner had.

    
    

33. In addition, Durden was somewhat concerned about the difficulty he had encountered in his efforts to verify the representations Petitioner had made on his application regarding his educational background. Prior to the final interviews, Durden had telephoned both Hofstra University and the University of Pennsylvania in an unsuccessful attempt to obtain such verification. 4/ He had been told that Hofstra University had no record of Petitioner's attendance at the school, while the University of Pennsylvania had refused to provide him with any information at all about Petitioner. Thereafter, on February 21, 1992, pursuant to Durden's request, Petitioner had sent to Durden by facsimile transmittal copies of his B.A. degree from Hofstra University and his D.M.D. degree from the University of Pennsylvania. Durden had expected Petitioner to provide him with, by the time of the final interview, additional verification in the form of certified transcripts from each of these institutions. 5/ Petitioner did not do so, which disappointed Durden and caused him to view Petitioner's candidacy less favorably than he otherwise would have.

    
    

34. Durden was also concerned, based upon comments that Petitioner had made during the final interview, that Petitioner would not be content to remain in a nonmanagerial, consultant position for the amount of time that it could reasonably be expected to take for him to become a viable candidate for promotion to a managerial or supervisory position with the company.

    
    

35. In addition to having the foregoing concerns about Petitioner's candidacy, Durden was under the mistaken impression that Petitioner was reluctant to relocate to the Orlando area. Petitioner's perceived reluctance to relocate was among the things Durden took into consideration in deciding not to offer Petitioner the Orlando Territory consultant position.

    
    

36. On February 26, 1991, Durden contacted Bechold and offered her the Fort Lauderdale Territory consultant position. Bechold accepted the offer that same day.

    
    

37. Petitioner took his physical examination on February 26, 1991. He also submitted blood and urine specimens for testing on that date.

    
    

38. Respondent had contracted with Comprehensive Health Services, Inc., (hereinafter referred to as "CHS") to conduct the physical examinations of the finalists for the Fort Lauderdale Territory and Orlando Territory consultant positions and to test their blood and urine.

39. The blood and urine specimens given by the finalists during their physical examinations were sent by CHS to Roche Biomedical Laboratories for analysis.

    
    

40. The results of the testing done on Petitioner's blood and urine specimens were reported in writing to CHS on February 28, 1991, the same day that Durden telephoned Tajchman and advised him that the Orlando Territory consultant position would be offered to him if he passed the physical examination and drug screen.

    
    

41. Petitioner's test results did not reveal that Petitioner was HIV- positive.

    
    

42. There are two tests (the ELISA screening test and the Western Blot confirmatory test) that are currently used in the medical community to determine whether an individual is HIV-positive. Both are blood tests. Neither of these tests were performed on the blood specimen Petitioner gave during his physical examination.

    
    

43. Anxious to find out what hiring decisions, if any, Respondent had made, Petitioner called Durden's home twice on March 2, 1991, in an effort to obtain such information. The second time he called he spoke with Durden. During this telephone conversation, Durden informed Petitioner that he had not been selected for either the Fort Lauderdale Territory consultant position or

    the Orlando Territory consultant position. Although he had not yet received any word on the results of Tajchman's physical examination and drug screen, Durden was confident that the results would not be disqualifying. Moreover, he did not want to "string [Petitioner] along" any longer. Accordingly, he told Petitioner that both positions had been filled.

    
    

44. On March 6, 1991, CHS mailed to Respondent a copy of the written results of Petitioner's physical examination and the testing of his blood and urine specimens.

    
    

45. That same day, Durden received a telephone call from the company nurse who told him that both Petitioner and Tajchman had passed their physical examinations and drug screens. Durden was provided no additional information or details by the nurse regarding either Tajchman's or Petitioner's physical condition or test results.

    
    

46. Tajchman was placed on Respondent's payroll effective March 6, 1991.

    
    

47. Bechold had started working for Respondent two days earlier.

    
    

48. Petitioner's HIV-positive status played no role whatsoever in Respondent's decision not to offer him either the Fort Lauderdale Territory consultant position or the Orlando Territory consultant position. Indeed, at the time the decision was made, those agents of Respondents making the decision, Durden and Allison, did not know, nor did they even suspect or perceive, that Petitioner was HIV-positive. 6/

    
    

    CONCLUSIONS OF LAW

    
    

49. The Human Rights Act of 1977 (hereinafter referred to as the "Act") is codified in Sections 760.01 through 760.10, Florida Statutes. 7/ Among other things, it makes certain acts "unlawful employment practices" and gives the Florida Commission on Human Relations the authority, if it finds that such

    an "unlawful employment practice" has occurred, to "issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees." Section 760.10, Fla. Stat.

    
    

50. Among the "unlawful employment practices" proscribed by the Act are those described in Section 760.10(1)(a), Florida Statutes, which provides as follows:

    
    

    It is an unlawful employment practice for an employer:

    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.

    
    

51. An "employer," as that term is used in Section 760.10(1)(a), Florida Statutes, and in the other provisions of the Act, is "any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person." Section 760.02(6), Fla. Stat.

    
    

52. Section 760.50(2), Florida Statutes, provides in pertinent part that "[a]ny person with . . . human immunodeficiency virus [HIV] shall have every protection made available to handicapped persons."

    
    

53. Accordingly, inasmuch as handicapped persons are protected against employment discrimination by the Act, persons with HIV, by operation of Section 760.50(2), Florida Statutes, enjoy the same protection thereunder.

    
    

54. It is therefore an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes, for an employer to refuse to hire a person because that person is HIV-positive.

    
    

55. Petitioner alleges that Respondent committed such an unlawful employment practice in the instant case by declining to offer him either the Fort Lauderdale Territory consultant position or the Orlando Territory consultant position because of his HIV-positive status.

    
    

56. A complainant who claims to have been discriminated against by a propsective employer based upon his HIV-positive status bears the initial burden of establishing a prima facie case of discrimination. This burden may be met by showing that (1) he applied and was qualified for a job for which the employer was seeking applicants; (2) despite his qualifications, he was rejected; (3) at the time of such rejection, he was HIV-positive; and (4) a person with similar qualifications, but not known or perceived to be HIV-positive, was instead hired for the position. If the applicant makes such a showing, the burden shifts to the employer to state some legitimate, nondiscriminatory reason for the complainant's rejection. The reason must be clear, reasonably specific and worthy of credence. (The employer, however, need not prove that its decision was actually motivated by the reason given.) If the employer articulates a reason that meets the foregoing requirements, the burden shifts back to the complainant to prove that, contrary to the explanation given by the

    employer, his HIV-positive status was the real reason he was not hired. See Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991).

    
    

57. In the instant case, Petitioner met his initial burden of making a prima facie showing of discrimination. He presented proof demonstrating that he has been HIV-positive at all material times to the instant case, that he applied for two positions that Respondent was seeking to fill and for which he was qualified, and that the positions were filled by other, similarly qualified applicants who were not known or believed to be HIV-positive.

    
    

58. Respondent, however, did not only articulate a legitimate, nondiscriminatory reason for hiring these other applicants instead of Petitioner (to wit: that, in the opinion of those who made the hiring decisions, Gulf Coast Division Manager Durden and Southern Regional Manager Allison, the applicants selected were better suited to fill the positions than was Petitioner); it also established by a preponderance of the evidence (although it was not its burden to do so) that this stated reason was the real reason Petitioner was not hired by Respondent and that Petitioner's HIV-positive status was not a motivating factor in the determination to not offer him employment. Indeed, it is apparent from a review of the record that neither Durden nor Allison even knew or suspected that Petitioner was HIV-positive at the time they made this determination.

    
    

59. Given the foregoing, the evidence is insufficient to establish that Respondent committed the unlawful employment practice alleged by Petitioner. His Petition for Relief therefore must be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Petitioner's Petition for Relief on the ground that the evidence is insufficient to establish that Respondent committed the unlawful employment practice alleged in the Petition.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of March, 1993.

STUART M. LERNER

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 2nd day of March, 1993.

ENDNOTES

1/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (1991).

2/ Although he has a doctorate degree in dental medicine, Petitioner has not practiced "dentistry," as that term is defined in Section 466.003(3), Florida Statutes, except for a six-month period when he was participating in an externship program in Israel.

3/ Applicants were also orally advised during their interviews of this requirement.

4/ Unbeknownst to Durden, Equifax Services, Inc., the search firm that Respondent was using, had already obtained proof that Petitioner had accurately represented that he had received a D.M.D. degree from the University of Pennsylvania in 1977.

5/ Tajchman, in contrast, upon being contacted by Durden and advised that there was a problem with the verification of his driving record, immediately mailed to Durden a certified copy of the record. Tajchman's prompt response made a positive impression upon Durden.

6/ At no time had Petitioner informed them of his HIV-positive status.

7/ The Human Rights Act of 1977 was amended and renamed the Florida Civil Rights Act of 1992 by Chapter 92-177, Laws of Florida. Section 13 of Chapter 92-177, however, provides that "[t]his act applies only to conduct occurring on

or after October 1, 1992." The conduct in question in the instant case occurred prior to October 1, 1992. Accordingly, the provisions of the Human Rights Act of 1977, not those of the Florida Civil Rights Act of 1992, are applicable to the instant case.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3783

The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in the parties' proposed recommended orders:

Petitioner's Proposed "Findings of Fact"

1-4. Rejected as findings of fact because they are more in the nature of conclusions of law.

5-9. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

10-11. Rejected because they are contrary to the greater weight of the evidence.

1. Rejected because it is inaccurate. Durden "admitted" during his testimony that he did not receive the verbal notification referenced in this proposed finding until March 6, 1991, not March 4, 1991.

   
   

2. Rejected because it is more in the nature of a conclusion of law than a finding of fact.

3. Rejected because it is contrary to the greater weight of the evidence.

15-17. Accepted and incorporated in substance.

1. To the extent that this proposed finding suggests that Petitioner was not unwilling to relocate to Orlando, it has been accepted and incorporated in substance. To the extent that it suggests that during the interview process Petitioner consistently expressed his willingness to relocate in such a manner that his feelings on the matter were clearly understood by Durden, it has been rejected because it is contrary to the greater weight of the evidence.

   
   

2. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

3. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon that testimony.

19-27. Rejected because they relate to Petitioner's claim for damages, which is unnecessary to consider in light of the finding that Respondent did not commit the unlawful employment practice that purportedly resulted in these damages.

Respondent's Proposed "Findings of Facts"

1-4. Accepted and incorporated in substance.

5. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

6-19. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

2. To the extent that this proposed finding suggests that Durden understood Petitioner to have made these representations, it has been accepted and incorporated in substance. To the extent that it states that these representations were actually made by Petitioner, it has been rejected because it is contrary to the greater weight of the evidence.

22-25. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

2. Rejected because it relates to Petitioner's claim for damages, which is unnecessary to consider in light of the finding that Respondent did not commit the unlawful employment practice that purportedly resulted in these damages.

28-29. Accepted and incorporated in substance.

1. Rejected because it relates to Petitioner's claim for damages, which is unnecessary to consider in light of the finding that Respondent did not commit the unlawful employment practice that purportedly resulted in these damages.

   
   

2. Accepted and incorporated in substance.

   
   

3. Rejected as a finding of fact because it is more in the nature of a conclusion of law.

COPIES FURNISHED:

Rebecca J. Covey, Esquire

500 Northeast 4th Street Suite 100

Fort Lauderdale, Florida 33301

C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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 of time 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: 92-003783

Orders for Case No: 92-003783