05-003078 Charles F. O`brien vs. St. Johns County School District Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, March 7, 2008.

Summary: Petitioner showed that actions of the Respondent were based upon Respondent`s perception that he couldn`t perform the duties of teaching due to two DUI arrests nearly 20 yrs old. Respondent failed to follow its own procedure in handling Petitioner`s case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES F. O'BRIEN, )

)

Petitioner, )

)

vs. ) Case No. 05-3078

)

ST. JOHNS COUNTY SCHOOL )

DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

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.

APPEARANCES

For Petitioner: Karen J. Gallagher

Qualified Representative

124 North Cove Drive

Ponte Vedre Beach, Florida 32082

For Respondent: Thomas J. Leek, Esquire

Kelly V. Parsons, Esquire

Cobb & Cole

Post Office Box 2491

Daytona Beach, Florida 32115-2491

STATEMENT OF THE ISSUE

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.

PRELIMINARY STATEMENT

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.

FINDINGS OF FACT

1. 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.

2. On the 2002 application, Petitioner fully disclosed

that he had been found guilty of DUIs in 1986 and 1988.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. Petitioner asserts that the withdrawal of the job

offer and denying him the position was discriminatory and based

upon perceived disability.

17. The Respondent asserts that it was just following

standing procedures.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this case

pursuant to Section 120.57, Florida Statutes.

19. 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).

20. 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).

21. 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).

22. 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).

23. The Petitioner was ostensibly qualified for the

teaching position for which he applied except of the issues that

are the subject of this proceeding.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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).

29. 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.

30. 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.

31. 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."

32. 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."

33. 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.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

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.

S

__

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

This 29th day of December, 2005.

COPIES FURNISHED :

Karen J. Gallagher

Qualified Representative

124 North Cove Drive

Ponte Vedre Beach, Florida 32082

Thomas J. Leek, Esquire

Kelly V. Parsons, Esquire

Cobb & Cole

Post Office Box 2491

Daytona Beach, Florida 32115-2491

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 recommended order should be filed with the agency that will

issue the final order in this case.