04-002347 Dana D. Ripley vs. Pinellas County Sheriff`s Office Status: Closed Recommended Order on Friday, March 18, 2005.

Summary: Petitioner failed to demonstrate that he was denied employment due to his handicap of a prescription drug dependency. There is no evidence that the prospective employer was ever made aware of the alleged handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANA D. RIPLEY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2347

)

PINELLAS COUNTY SHERIFF'S )

OFFICE, )

)

Respondent. )

)

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, Esquire 1/

1936 Lee Road, Suite 100

Winter Park, Florida 32789

For Respondent: Jean H. Kwall, General Counsel

Pinellas County

10750 Ulmert on 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 199 2,

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 R elations ("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 Jul y 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. Riple y'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, direct ing 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. Ri pley 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, t o

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 refere nces 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 t he 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 Divisi on. 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

Or der 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 no tifying

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 p osition,

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 a t 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 docu ment'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 FA CT

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 Departmen t

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 wi th 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

reg arding 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

ac commodation.

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

tes t. 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 "N otice 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 po lice 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 sa t 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 re sult 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

su bstances 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

meeti ng 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 op erated 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 hi s 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 bare foot 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 sitti ng 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 o fficer, 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 transpo rted 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 h ouse 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 bott les 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. Lyo ns 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 disa bled.

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 quali fied 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 hi s

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

resi gned 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, 20 02, 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 Febru ary 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 les s 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 t ake 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 physic ally 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 co uld 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 th e

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

[expe rience 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. La Chance 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 bet ter 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 b e 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 p rior 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 trea tment 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 tempora ry

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 t he 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

pa rt:

(1) It is an unlawful employment practice

for an employer

(a) 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 employ ment, 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 Rehabi litative 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 Ce nter 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) t hat 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

Resp ondent 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, P etitioner 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 Americ an 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 t ake 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 l imits 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 phys iological 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, dig estive,

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" wh en 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 pr ove 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

impairmen t" 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 l ife

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 disa bility, 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, thu s, 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 discrimina te 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,

Respond ent 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. Ripl ey 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 fin dings 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 h is

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

12 30 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 h e 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 prepa ration 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

Dan a 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 Reco mmended Order should be filed with the agency that

will issue the final order in this case.