This matter was heard pursuant to notice on October 21, 2005, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in St. Augustine, Florida.
For Petitioner: Karen J. Gallagher
For Respondent: Thomas J. Leek, Esquire
Kelly V. Parsons, Esquire Cobb & Cole
The issue for determination in this proceeding is whether the Respondent discriminated against Petitioner on the basis of handicap under Section 760.10, Florida Statutes, or disability
under the Americans with Disabilities Act (ADA), by failing to award him the physical science/chemistry teaching position at Nease High School.
Petitioner filed a complaint of discrimination with the Florida Commission on Human Relations (FCHR) on September 14, 2004. A "no cause" determination was issued by the FCHR on July 18, 2005. Petitioner filed a request for hearing and the case was forwarded to the Division of Administrative Hearings (DOAH).
At hearing Petitioner and Respondent called the same three witnesses. Petitioner introduced Exhibits numbered 1 through 3 and Respondent introduced Exhibits numbered 1 through 4.
A Transcript was filed on November 14, 2005.
Both parties have timely-filed their Proposed Recommended Order's, which have been considered in the rendition of this Recommended Order.
Petitioner applied for a position in 2002 and renewed the application in 2003. As a result of the 2002 application, Petitioner was offered a job, which he declined before attending orientation.
On the 2002 application, Petitioner fully disclosed that he had been found guilty of DUIs in 1986 and 1988.
In 2004, Petitioner became aware of a teaching position as teacher at Nease High School in the Respondent's school system. He was very interested in the position, called about the position, and was told that he must update his application on-line, which he hurriedly did.
He was interviewed by Robert Corson, who was then the vice principal of Nease, who found that he was well qualified as a graduate of the U.S. Naval Academy with a degree in engineering who had taken three or four courses in physics. Petitioner was not certified, but there would have been no problem in getting him a temporary certificate that would permit him to teach while taking education courses to qualify him for certification in Florida.
Corson observed that there were not a large number of quality applicants for hard science positions today, and Petitioner was the best qualified of the three candidates who applied.
Just before orientation, Respondent's Human Relations (HR) office called and advised Corson that there was a problem with Petitioner's application because he had failed to report an arrest. It was normal for HR to tell the school the nature of the problem. HR told them that they would have to repost or re- advertise for the position, which they did.
Corson reported that he failed to establish contact with Petitioner, but that the HR office was able to stop him at the orientation as he entered, and have Petitioner call the HR office. When Petitioner called, the HR office advised him that the employment offer was withdrawn.
Petitioner first went to Corson. Petitioner wanted to see the principal of Nease, Mr. Schiavone, but Petitioner was so upset that Corson told him that he would not help himself unless he calmed down. Petitioner and Corson discussed the fact that Petitioner reported the arrests on the initial application, and Corson explained that it was out of his hands, and was an HR issue. Petitioner told Corson that he was going to the HR office.
Petitioner went to the HR office and spoke with
Mr. Springfield, the head of HR. Ms. Geiger, the head of the Instructional Employees' branch of HR sat in on the meeting.
From the testimony of Mr. Springfield, it is fairly certain that he presented the problem as a matter of Petitioner lying on his application. This was the term that Springfield used in testifying at hearing. Petitioner explained that, while he may not have completed the on-line application correctly, he certainly did not intentionally misrepresent the matter of his arrest because he had reported them in his initial application.
Ms. Geiger looked in the files under O'Brien's previous job offer, and found his initial application, which reported the DUIs as Petitioner had stated. Therefore, Springfield knew on the day the offer of employment was withdrawn that there had been no intent by Petitioner to misrepresent his qualifications.
There was testimony presented by the Board about its procedures, and the superintendent's requirement that all job offers be withdrawn when a background check failed to agree with an applicant's application.
After the matter of the "lie" had been resolved, the position of Springfield was that Petitioner would have to reapply for the position. This Petitioner did on that afternoon. There was no conflict regarding the correctness of his second application, which did report the DUIs. It is at this point that conflicts develop in the testimony, and there is a departure from normal procedures.
Springfield testified that he could not remember if Petitioner was told that he must provide proof of "treatment" with regard to the DUIs. Geiger, who was present at the meeting, testified that Petitioner was told that he must provide proof of "treatment." Petitioner did not testify. Geiger testified that she did not follow the normal procedures of writing a letter to Petitioner outlining what he must do in
response to the problems with his first on-line application because he was told these things at the meeting.
Geiger made a memo to herself to follow up on Petitioner's application and on July 22, 2004, sent him an e- mail "reminding" him to submit proof of treatment. On July 27, 2004, Petitioner brought his Navy medical records to Geiger for her review and based thereon she and Springfield cleared him making him an "active" applicant. Unfortunately, Nease filled the position on July 26, 2004, by hiring Ms. Nall, a certified science teacher, who was presumably not handicapped.
Petitioner asserts that the withdrawal of the job offer and denying him the position was discriminatory and based upon perceived disability.
The Respondent asserts that it was just following standing procedures.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57, Florida Statutes.
This is a case of first impression involving perceived disability. There are surprisingly few cases based upon this predicate that have been litigated. The ADA provides an individual is "disabled" within the meaning of the act if he or she has (1) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual, (2) a record of such impairment, or (3) is regarded as having such an impairment. See 42 USC 12102(2). The regulations implementing the ADA delineate the ways in which a person can satisfy the definition of "being regarded as having a disability." See 29 C.F.R. 1630.2(1).
A plaintiff would have to show (1) that the employer treated plaintiff as having an impairment that substantially limited one or more of the plaintiff's major life activities and
(2) that either (a) while he or she had a physical or mental impairment, it was not substantially limiting or (b) that he or she did not suffer at all from a statutorily prescribed physical or mental impairment. If an individual can show that an employer made an employment decision because of a perception of a disability based on "myth, fear or stereotype," the individual will satisfy the 'regarded as' part of the definition of disability." See Cook v. Rhode Island Dept of Mental Health, Retardation & Hospitals, 10 F.3d 17 (1st Cir. 1993).
The analysis otherwise follows McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
To state a prima facie case of discrimination, a plaintiff must demonstrate that he or she is disabled within the meaning of the ADA; that he or she was otherwise qualified to perform his or her job or a job he or she was applying for; that he or she was
subject to an adverse employment action, and was replaced by a non-disabled employee or treated less favorably than non- disabled employees. See Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, (5th Cir. 1990); and Wernick v. Fed. Reserve
Bank of New York, 91 F.3d 370 (2d Cir. 1996).
The ADA prohibits use of employment qualification standards or other selection criteria which screen out "an individual with a disability or a class of individuals with disabilities unless the standard test, or other selection criteria is shown to be job-related for the position in question and is consistent with business necessity." See 42 USC 12112(b)(6).
The Petitioner was ostensibly qualified for the teaching position for which he applied except of the issues that are the subject of this proceeding.
In the instant case, the employer took several actions that were adverse to the Petitioner. The first was revoking its offer of employment. The second was requiring Petitioner to re- apply for employment after the matter of the misrepresentation was clarified. The third was requiring the Petitioner to provide proof of "treatment." The fourth was not following its standard procedure that would have insured that Petitioner was notified of the need to provide proof of treatment in a timely
fashion. And finally, by reposting the job and hiring another individual, who was not disabled.
Revocation of the offer of employment: The employer suggests that its revocation of its offer of employment was based upon the background check revealing a difference between the applicant's application and information based on a criminal records check. This was presented as a universal requirement; however, no rationale was offered for having a procedure requiring revoking the offer of employment. While disagreement between information contained on an application and information developed on a background investigation or criminal records check may warrant an inquiry into the matter, rejecting an application outright without inquiry is unwarranted, although it may not be discriminatory. In the instant case, finding two unreported DUIs was cause for additional inquiry; however, the old DUIs were not a reason for revoking the offer of employment in the absence of additional information.
The inquiry was made, and revealed that the applicant had previously revealed the DUIs on a prior application. While the old application may not have been current or active, the prior disclosure of the DUIs on that application certainly negates any conclusion that the applicant was attempting to misrepresent his past history. Asking the applicant to clarify
the situation and even asking the applicant to reapply or correct his application was not discriminatory.
Requiring proof of treatment: According to the procedures outlined by the Board in the employment process, when certain negative information was developed, a committee determined what information would be appropriate to obtain to make a determination whether the applicant was qualified. In this case, Geiger and Springfield, who were both members of the committee, determined ad hoc that the Petitioner needed to provide proof of treatment to overcome the DUIs on his record.
There is a controversy about when this was communicated to the Petitioner; however, there is no controversy that they determined that this was required. The Board offered no basis or rationale for requiring proof of treatment as a requirement to mitigate two DUIs that were nearly twenty-years old. This requirement's only connection to the job requirements were statements that teachers were sometimes sponsors of student organizations and in that capacity drove students. The perception by the employer that the applicant could not safely drive and teach constitutes a belief that the Petitioner could not perform major activities of daily life. See Equal Employment Opportunity Commission v. Texas Bus Lines, 923 F. Supp. 965 (S.D. Texas, 1996).
No factual evidence was offered that having a driver's license was a requirement for being hired or that state requirements mandated a clean driving record or that persons with DUIs were a greater risk to students in their capacity as a teacher. What is informative was that the requirement to document was couched in terms of showing proof of treatment. I conclude that this requirement to produce proof of treatment for the DUIs was based upon "myth, fear or stereotype," and constitutes a showing of a perceived disability.
A reasonable person would not conclude that two DUIs nearly twenty years ago were relevant to an employment decision today in the absence of any other negative information. No additional information was presented as being a basis for the employer's decision.
Failure to follow procedures: I further conclude and find that, even if the requirement to show proof of treatment was communicated to Petitioner at the meeting on July 8th, the Board's failure to advise the Petitioner in writing of that requirement constitutes disparate treatment. Had the Board advised the Petitioner by letter or even e-mail on July 8th of the need to provide this requested documentation of treatment, if one determined that such a request was not discriminatory, the Petitioner presumably would have provided that information on July 13th, before the position was reposted. The failure to
notify was discriminatory by itself and also based upon and rose out of the Board's requirement for Petitioner to produce proof of treatment for the DUIs, which was based upon "myth, fear or stereotype."
Requiring reposting of the job: I conclude and find that there was no need for reposting the position because the matter of the Petitioner's alleged misrepresentation had been clarified, and he would have been able to show documentation of treatment had the Board followed its procedures. Testimony was received that finding teachers with background to teach the hard sciences was difficult, yet HR mandated to the school reposting. Under the circumstances, the reposting was discriminatory and was based upon "myth, fear or stereotype."
Hiring a non-handicapped person: The evidence shows that Ms. Nall was hired to fill the position, and there is no evidence that she was handicapped. However, I find that showing she was not handicapped is not necessary in this case because there has already been a showing of direct discrimination in requiring documentation of treatment, failing to follow standard procedure in notifying applicants, and reposting the position. The fact that a non-handicapped person was hired ultimately to fill the position does not make a prima facie case, but adds to the evidence of discrimination.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Florida Commission on Human Relations enter its Final Order directing that the Respondent cease and desist in the practices mentioned; that the Respondent be directed to hire the Petitioner upon his submitting an application for employment. Jurisdiction is retained for factual consideration of the damages to include costs and fees upon entry of the Commission's final order.
DONE AND ENTERED this 29th day of December, 2005, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Filed with the Clerk of the Division of Administrative Hearings This 29th day of December, 2005.
Karen J. Gallagher Qualified Representative
Thomas J. Leek, Esquire Kelly V. Parsons, Esquire Cobb & Cole
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.
