07-001334 Philip Porter vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Thursday, September 13, 2007.

Summary: A temporary incapacity that is not current is not notice of an existing handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP PORTER, )

)

Petitioner, )

)

vs. )

) Case No. 0 7 - 1334

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDE R

Upon due notice, a disputed - fact hearing was held in this

case on June 15, 2007 , in Ocala , Florida, before Ella Jane P.

Davis, a duly - assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Philip Por ter, pro se

Post Office Box 946

Silver Springs, Florida 34489

For Respondent: Stephen Donelan, Esquire

Department of Agriculture

and Consumer Services

509 Mayo Building

407 South Calhoun Street

Tallahassee, Fl orida 32399 - 0800

STATEMENT OF THE ISSUE

Whether Respondent Employer is guilty of an unlawful

employment practice by failure to hire Petitioner due to age

and/or handicap .

PRELIMINARY STATEMENT

On August 17, 2006, Petitioner filed a Charge of

Discri mination with the Florida Commission on Human Relations

(FCHR) , alleging disability/handicap (schizophrenia) and age

(over 40).

On March 7, 2007, FCHR issued its Determination: No Cause

and Notice of Determination: No Cause. On or about March 20,

2007, Petitioner filed a Petition for Relief.

The case was referred to the Division of Administrative

Hearings on or about March 26, 2007. The Division's case file

reflects all pleadings, orders, and notices.

At the June 7, 2007, disputed - fact hearing, Petit ioner

testified on his own behalf and had Petitioner's Exhibit P - 3

admitted in evidence. Respondent presented the oral testimony

of Elaine Cooper, Nancy Neely, Mike Long, Anada "Beth" Vaughn,

and Dwight Poole. Respondent's Exhibits R - 1 through R - 11 , were

admitted in evidence. In addition, the Joint Pre - Hearing

Statement [sic. Stipulation] , as interlineated by agreement of

the parties (Joint Exhibit A) , was admitted in evidence.

A Transcript was filed on June 9, 2007. Each party's

timely - filed Proposed Recommended Order has been considered in

preparation of this Recommended Order.

The Joint Pre - Hearing Statement's stipulated facts have

been modified somewhat in this Recommended Order for clarity and

form's sake, but not as to content. Also, some periph eral,

immaterial "fact" stipulations have been modified and included

only as part of this Preliminary Statement because they are

purely procedural.

FINDINGS OF FACT

1. Respondent Department of Agriculture and Consumer

Services is an agency of the State o f Florida and is an

"employer" as defined by Section 760.02(7), Florida Statutes.

2. Petitioner's Charge of Discrimination and Petition for

Relief are based on his age and/or handicap as they relate to

his not being hired a s an Operations and Management C onsultant

II - SES , for position no. 42001640, at Respondent's Forestry

Youth Academy.

3. The Forestry Youth Academy is a low - risk, residential

facility for juvenile offenders, which is operated by

Respondent's Division of Forestry, pursuant to a contra ct with

the Department of Juvenile Justice (DJJ) .

4. The Minimum Requirements published for the employment

position at issue were:

A Bachelor's Degree from an accredited

college or university and four (4) years of

professional experience in system s analysis,

management analysis, program planning,

program research, program evaluation,

engineering or administrative work.

A Master's Degree from an accredited college

or university can substitute for one (1)

year of the required experience .

Professio nal or nonprofessional experience

as described above can substitute on a year -

for - year basis for the required college

education.

5. This means that the minimum requirements for the

position at issue were to have earned a b achelor's d egree from

an accred ited college or university and have four years of

professional experience in systems analysis, management

analysis, program planning, program research, program

e valuation , engineering or administrative work. A m aster's

d egree from an accredited college or university could substitute

for on e year of the four years of professional experience.

Professional or nonprofessional experience as described above

could substitute on a year - for - year basis for the required

college education. Therefore, an applicant wi th a bachelor's

d egree and four years of the specified professional experience

could qualify. Likewise, an applicant with a bachelor's d egree

and a m aster's d egree would need only three years of the

specified professional experience to qualify, and an app licant

without any college education would need four years of

professional or non - professional experience (substituted for the

college education) and four years of specified professional

experience to qualify , i.e. a total of eight years of the

specified e xperience .

6. The Major Duties and Responsibilities of the position

at issue, as advertised, were:

MAJOR DUTIES AND RESPONSIBILITIES:

This is independent and complex

administrative and consultative work

providing operational and management

coordinatio n for an agency.

Reviews administrative policies,

procedures, guidelines and related

directives to be implemented; evaluates

impact on operations; identifies potential

problems; recommends appropriate action.

Assists Coordinator to develop and

monit or the Contract with the Department of

Juvenile Justice, including Quality

Assurance Codes and Standards for the care,

custody, and treatment of juveniles.

Coordinates with the Department of

Juvenile Justice in the selection of

juveniles with regard to the admissions

process and discharge process.

Identifies statewide operational problems

in the implementation of administrative

service policies and procedures or program

policies and procedures.

Investigates, assesses, analyzes and

makes recommendat ions to resolve issues and

problems presented by administrators.

Provides direction, guidance and counsel

to administrators and their staffs in the

management and operation of service programs

and responsibilities.

Performs firsthand, on - site analysi s of

operational problems of service programs;

serves on interdisciplinary staff teams to

develop optimum resolutions; carries out the

implementation of solutions.

Consults with staff members to develop

solutions for programmatic operational

problems.

Performs related work as required.

7. The vacancy advertisement also included the following

language:

SPECIAL NOTE:

If you need an accommodation because of a

disability in order to participate in the

application/selection process, please notify

the c ontact person in advance. We hire only

US citizens and lawfully authorized alien

workers.

AN EEO/AA EMPLOYER

Requirements:

Certifications Drivers License

Occupation MANAGEMENT ANALYSIS

Education Bachelors (or equivalent

Work experience)

Job Type Full Time

Region/County Levy County

Years of Experience 3 - 5 years

Percent of Travel 1 - 25%

8. The position at issue was initially adv ertised as an

"Internal Agency Opportunity" with a closing date of April 19,

2006 . (Stipulated Fact 1.)

9. The position was subsequently re - advertised as "Open

Competitive," with a closing date of May 19, 2006. (Stipulated

Fact 2.) This was done at th e direction of the Division of

Forestry Director, Mike Long, in order to expand the potential

pool of prospective candidates.

10. The parties stipulated that Petitioner applied for the

position on or about May 6, 2006. (Stipulated Fact 3.) Exhibit

R - 2 , shows that Petitioner " signed electronically using

password " on May 6, 2006.

11. The parties stipulated that Petitioner's application,

among others, was rejected in favor of the successful candidate,

Dwight Poole (age approximately 36; disability unkn own) .

(Stipulated Fact 5.) No e vidence demonstrate d that Mr. Poole

ha s any handicap/disability.

12. The parties did not stipulate that Petitioner is

handicapped/disabled.

13. Petitioner's testimony is the only cognizable evidence

of his present alleg ed handicap . Petitioner testified, without

medical co r roboration, that he has a history of being unable to

work due to impairments brought on by schizophrenia and/or

schizoid personality disorder, first diagnosed in the late

1970's. 1/ Petitioner describe d his alleged handicap as being

unable to have any intimate human contact and being unable to

interact with others in a significant way for 25 - 30 years. He

testified that he could not relate to others as most people can

relate to others .

14. While the foregoing portion of Petitioner's testimony

is unrefuted, Petitioner comported himself appropriately and

with considerable legal finesse throughout the three hours of

final hearing herein . This , and his employment history as found

infra ( see F indings of F act 28 - 37 ) does not support his

contention that he is legally handicapped within the purview of

Chapter 760.

15 . The parties stipulated that Petitioner is a member of

a protected class in that he is over the age of 40. (Stipulated

Fact 6.) 2/

16 . The e mployment application submitted by Petitioner for

the position at issue did not disclose Petitioner's age. (R - 2)

However, in response to written interview questions, Petitioner

disclosed that he had graduated from high school in 1966. Th is

information is in Petitioner’s handwriting and bears his

stipulated interview date of May 15, 2006. (R - 4)

17 . Petitioner was interviewed by Robert King,

Respondent's Coordinator of the Forestry Youth Training Program ,

on or about May 15, 2006. (Stipulated Fact 4.)

18 . Petitioner met the minimum qualifications for the

contested position. (Stipulated Fact 7.)

19 . Mr. King interviewed 18 applicants for the position

herein. He ranked Petitioner thirteenth out of 18 applicants.

He ranked Dwight Poole, an employee a t the Forestry Youth

Academy for nearly eight years, as first out of the 18

applicants.

20 . Mr. King's typed priority sheet , which ranked the 18

candidates he interviewed (R - 6 ) and Mr. Poole's handwritten and

signed interview question sheet (Part of R - 3 ) , each show that

Mr. King interviewed Mr. Poole on April 20, 2006. Another typed

item is labeled "Florida First Application" ( Part of R - 3 ) , and

bears a date of May 28, 2006 , which date, if it refers to the

date the application was first submitted , would d emonstrate that

successful candidate Poole did not apply for the position at

issue until more than a month after he had interview ed with

Mr. King. 3/ However, t he May 28, 2006, date on this exhibit

bears no “ signed electronically ” notation as appears on

Pe titioner’s application. (See Finding of Fact 10 and Exhibit

R - 2 .) Therefore, o n the successful candidate’s so - called

application, the May 28, 2006, date could symbolize almost

anything, including but not limited to, the most recent date

Mr. Poole's appli cation was printed in preparation for hearing .

21 . Upon orders from Director Long, Beth Vaughn, Manager

of the Department of Agriculture and Consumer Services'

Administrative Unit in Tallahassee , journeyed to the Forestry

Youth Academy in Ocala and inter viewed the three candidates whom

Mr. King had ranked highest . Ms. Vaughn concurred with Mr.

King's top r anking of Dwight Poole. She was not aware of any

candidate's age or that any candidate had a handicap .

22. On May 31, 2006 , Ms. Vaughn sent to Assist ant Director

Jim Karels, a written recommendation for a 15 percent (rather

than the traditional promotional 10 percent) salary increase for

Mr. Poole. Therein, she stated that Mr. Poole had been

continuously employed by Respondent since November 27, 1998 , and

related his work history and exceptional skills and experience .

(Exhibit R - 7 ). (See also Findings of Fact 39 - 46 .) Ms. Vaughn’s

recommendation logically would have been made after she

interviewed Mr. Poole, using Mr. King’s ranking sheet , and

before Mr. Poole actually assumed the vacant position.

23 . Director Long is based in Tallahassee. He made the

final selection of Dwight Poole for the contested position.

Assistant Director Karels ’ recommendation of Dwight Poole played

a big part in Mr. Long' s ultimate selection of Mr. Poole for the

position at issue. However, n o written recommendation by Mr.

Karels is in evidence. The da te of Mr. Long’s final selection

of Mr. Poole also is not in evidence , but Mr. Long was not aware

of any candidate's disab ility status or the age of any candidate

when he made his selection of Dwight Poole.

24 . The best date tha t can be assigned for Mr. Poole's

assuming the contested position is June 7, 2006, the date

hand written in the printed "official use" portion of h is

application. (R - 3 ) That means that he assumed the position

with only seven years and five months of specialized experience

with the Respondent . H owever, Mr. Poole 's application shows he

had earned an AA Degree in 2005; served as a youth counselor on

a cruise line for six months in 1994 ; served as a Behavioral

Science Specialist with the United States Army for three years;

and had held several years of managerial positions in stores,

working with comput er inventories. (See Finding of Fact 44 .)

25 . I n addition to the contested position herein,

Petitioner has not been hired by Respondent and other S tate

agencies for other positions for which he has applied .

Petitioner feels this is because people do not like his resume,

see him as too old, or because his MBA degree is stale. He

testified that he “can only assume” that his age or handicap

have something to do with his lack of success.

26 . There is no disability status indicated for any of the

38 Florida Youth Academy employees as of September 1 3, 2006.

(Stipulated Fact 9.) Respondent E mployer interprets the

Americans With Disabilities Act (AD A ) as prohibiting any

employer from collecting information on people with

disabilities. Because of t his interpretation, Respondent does

not keep records of which employees or job applicants are, or

are not, legally disabled , pursuant to the ADA . Respondent does

not even keep a record on the item in evidence of which

employees or job applicants are otherwise physically

impaired /handicapped /disabled. The r ecords in evidence do not

even list any workers who are temporarily on medical leave or

out on workers’ compensation. Therefore, there is no way to

assess , from the parties’ stipulation or from the items in

evidence , whether Respondent has in place an eff ective

affirmative action plan pursuant to Section 503 , of the

Rehabilitation Act of 1973. However, Exhibit R - 11 shows that

the federal Equal Employment Opportunity Commission (EEOC) has

investigated Petitioner's allegations that Respondent is in

violatio n of Section 503 , and that the EEOC has determined that

there was insufficient evidence to show a violation. In any

case, federal Section 503 compliance is a "non - issue" in this

proceeding pursuant to Chapter 760 , Florida Statutes .

2 7 . Respondent Agenc y has in place a policy prohibiting

discrimination in the recruitment, hiring, and employment of

persons based on race, color, sex, creed, national origin,

political opinions or affiliations, disability, marital status,

or age. Its policy is contained in a handbook , and supervisors

are required to attend educational courses on non - discrimination

up to three times per year. Respondent also widely disseminates

job vacancy notices and tries to affirmatively post vacancy

notices in a number of locations which would appeal to persons

in the named categories . S ometimes, Respondent's supervisor s

work with the Department of Education, Division of Vocational

Rehabilitation , to educat e or hire that Agency's clients. ( See

also Finding of Fact 7 .)

28 . Petitioner's employment application included an

employment history covering July 1, 1974 , through May 6, 2006.

29 . Petitioner's application related that from July 1,

1974 , until June 1, 1979, Petitioner worked for Electro - Com

Corp. as a project/operations manager.

30 . There was a gap in Petitioner's application from

June 1, 1979 , to April 1, 1980. Petitioner testified that

during this period be became a street person.

31 . Petitioner's application related that from April 1,

1980, until January 1, 1996, Petitioner was self - employed as a

portfolio/property manager, buying and selling stocks and bonds

and managing all aspects of a small portfolio of real property.

Petitioner testified that his family had entrusted two real

estate properties to hi m for his own suppor t and that his family

managed the portfolio when he could not do so during this

period . He further testified that he lived in a van in the

woods during part of this period.

32 . Petitioner's application related that from January 1,

1996 , until March 1, 2 004, Petitioner was pursuing his

Batchelor's and Master's degrees.

33 . Petitioner has, in fact, obtained a b atchelor's degree

and an MBA.

34 . Petitioner's application related that from April 13,

2004, until January 28, 2005, Petitioner was employed as a

substitute teacher in the Marion County School District.

35 . Petitioner's application related that from January 29,

2005, until March 31, 2005, Petitioner was employed in Orlando

by the State of Florida, Department of Financial Services , a s a

Financial Examiner of funeral homes and cemeteries. His stated

reason for leaving that employment was that the commute to

Orlando was too difficult and that the lack of safe, affordable

housing in Orlando made relocation to Orlando undesirable.

36 . Petitioner's application accounted for a gap in

employment by indicating he was on disability from August 1,

2005 to February 1, 2006, and was "ready for employment" status

thereafter. (Stipulated Fact 8.)

37. More specifically, Petitioner listed his job title as

" Ready for Employment" and his duties and responsibilities as

"currently ready for employment status with the Florida

Department of Education Vocational Rehabilitation Service." On

his written interview questions, there was the question, "Are

there any gap s in employment of six months or longer on your

application since leaving high school? If yes, please explain.

(Month/Year.) " Petitioner wrote in " I've been on disability

since 3/1/05. I am currently certified as being able to work by

Florida Vocationa l Rehabilitation. "

38 . Dwight Poole 's employment application contains his

employment history from May 1, 1989 to April 10, 2006.

39 . Mr. Poole served approximately three years in the

United States Army as a Behavioral Science Specialist from 1989

until 1992.

40 . Between 1992 and 1998 , Mr. Poole held warehouse jobs

involving computerized inventories, management skills, and

coordinating several locations of auto parts stores.

41 . Since November 27 , 1998, Mr. Poole has worked

exclusively for Respondent 's Division of Forestry at the Florida

Youth Academy , acquiring the specific skills and expericne

required or desired by the advertisement .

42 . In 1998, Mr. Poole began working at the Forestry Youth

Academy as a House Parent. In 2002, he was promo ted to the

position of a dministrative a ssistant, reporting to Robert King,

who interviewed all the job applicants for the present position

at issue. Mr. King was better acquainted with Mr. Poole than

with the other applicants for the position at issue whe n he

interviewed them. ( See Finding s of Fact 17 and 19. )

43 . From 2003 to 2006, Mr. Poole's title was "HSPS" , with

a wide range of duties organizing a treatment team, ensuring

security, and overseeing numerous operational procedures and

evaluations, and he reported to Ms. Jill Hartl.

44 . In 2005, while continuously employed by Respondent,

Mr. Poole earned an AA degree in psychology from Central Florida

Community College.

45 . Mr. Poole's appointment to the position at issue

herein was his fourth pro motion by Respondent since 1998.

During that time span, he has twice been selected as "staff of

the year" (the equivalent of “employee of the year”) , and once

he was selected "teacher of the year" at Forestry Youth Academy.

Mr. Poole also has received an award from DJJ. He was an

integral part of the Academy's achieving "Deemed Status" by DJJ

in 2005. "Deemed Status" is the second highest ranking that a

residential program can receive.

46 . At the time of interviewing for the contested

position, an d cu rrently, Mr. Poole was/is familiar with the

policies and procedures of DJJ as they relate to operations of

the Forestry Youth Academy. He has helped develop policies for

case management, mental health, substance abuse services,

emergency mental health, su bstance abuse crisis intervention,

and suicide prevention. Likewise , he was/is familiar with

quality assurance codes and standards of DJJ. He also helped

develop the Forestry Youth Academy's continuity of operations

plan.

47 . Petitioner has never worke d in a 24 - hour residential

facility. He has no familiarity with DJJ policies and

procedures relative to such facilities. He has no experience

developing or monitoring a contract with DJJ. He is unfamiliar

with DJJ quality assurance codes and standards. He has no

familiarity with the Forestry Youth Academy or with the

Academy's admission or discharge process. Petitioner has never

worked with juveniles in the criminal justice system. He has

never served on an interdisciplinary staff to develop optimum

r esolutions. With regard to Petitioner's experience in

"review[ing], assess[ing], analyz[ing], and making

recommendations to resolve issues or problems presented by

administrators," ( see Finding of Fact 6) Petitioner's most

relevant experience was in the l ate 1970's.

CONCLUSIONS OF LAW

48 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 , 120.57(1), and Chapter 760,

Florida Statutes (2006).

49. The shifting burdens of proof in discrimination cases

have been cogently explicated in the seminal case Department of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

which stated:

Pursuant to the [ Texas Department of

Community Affairs v. Burdine , 450 U.S. 248,

101 S . Ct. 1089, 67 L.Ed. 2d 407 (1981)]

formula, the employee has the initial burden

of establishing a prima facie case of

intentional discrimination, which once

established raises a presumption that the

employer discriminated against the employee.

If the pre sumption arises, the burden shifts

to the employer to present sufficient

evidence to raise a genuine issue of fact as

to whether the employer discriminated

against the employee. The employer ma y do

this by stating a legitimate,

nondiscriminatory reason fo r the employment

decision, a reason for which is clear,

reasonably specific, and worthy of credence.

Because the employer has the burden of

production, not of persuasion, which remains

with the employee, it is not required to

persuade the trier of fact th at its decision

was actually motivated by the reason given.

If the employer satisfies its burden, the

employee must then persuade the fact finder

that the proffered reason for the employment

decision was a pretext for intentional

discrimination. The empl oyee may satisfy

this burden by showing directly that a

discriminatory reason more likely than not

motivated the decision, or indirectly by

showing that the proffered reason for the

employment decision is not worthy of belief.

If such proof is adequately presented, the

employee satisfies his or her ultimate

burden of demonstrating by a preponderance

of the evidence that he or she has been a

victim of intentional discrimination.

50. Chandler also stands for the peripheral proposition

that provided there i s no invidious discrimination, then

regardless of favoritism, cronyism, or any other maneuvering by

the employer to hire a pre - selected candidate, the unsuccessful

candidates have no recourse. Likewise, the law is clear that an

employer may discriminate f or any reason, good or bad, so long

as that employer does not discriminate for the reasons

prohibited by law. Mehta v. HCA Health Servs. of Fla. , (M .D.

Fla.) 2007 U.S. Dist. Lexis 79536; Woodbury v. Sears Roebuck &

Co. , 901 F. Supp. 1560, (M .D. Fla. 1995) ; and Thompson v. C mt y.

Unit Sch Dist. 200 , 2003 U.S. Dist. Lexis 6707; 91 Fair Empl.

Prac. Cas (BNA) 1361.

5 1 . Therefore , the theory that Mr. Poole was hired on a

late application due to Mr. King's greater familiarity with

Poole than with other applican ts , or the theory that the "fix"

was on to hire from within, even if proven, which they were not,

are non - issue s .

52 . Although case law under other anti - discrimination

statutes such as Title VII or the ADA may be instructional in

deciding cases brought pu rsuant to Chapter 760, Florida

Statutes, Petitioner's concept that Section 503 of the

Rehabilitation Act of 1973 creates a private cause of action is

incorrect. See Rogers v. Frito Lay, Inc. , 611 F.2d 1074 (5th

Cir. 1980). The present case constitutes a de novo proceeding

with regard to FCHR's proposed agency action to dismiss the

Charge of Discrimination , and this case is bounded by Section

120.57(1) and Chapter 760, Florida Statutes.

5 3 . This is a "failure to hire," not a "failure to

accommodate , " case , and the first issue is whether or not at the

time of application and hiring Petitioner was discriminated

against on the basis of handicap .

5 4 . To establish a prima facie case of handicap/ disability

discrimination, Petitioner must show that "(1) he is di sabled;

(2) he was a 'qualified individual ' at the relevant time,

meaning he could perform the essential functions of the job in

question with or without reasonable accommodations; and (3) he

was discriminated against because of the disability." Lucas v.

W.W. Grainger, Inc. , 275 F.3d 1249, 1255 (11th Cir. 2001). It

was stipulated that Petitioner met item (2), but Petitioner has

failed to establish the first and third parts of a prima facie

case.

5 5 . Petitioner failed to establish the first element of

the prima facie test, because he did not show that he is

currently "handicapped" within the meaning of Chapter 760,

Florida Statutes, or that his employer perceived him as

handicapped.

5 6 . In Brand v. Florida Power Corporation , 633 So. 2d 504

(Fla. 1st DCA 1 994), the court adopted the definition of

"handicap" found in Section 504 of Title V of the Rehabilitation

Act of 1973, and stated:

i. Section 504 specifically refers to 29

U.S.C. Sec. 706(8)(B) for the definition

thereof. The latter defines an "individu al

with handicaps," subject to certain

exceptions not applicable to this case, as

one "who (i) has a physical or mental

impairment which substantially limits one or

more of such person's major life activities,

(ii) has a record of such impairment, or

(iii) is regarded as having such an

impairment." Examples of major life

activities including caring for oneself,

breathing, learning, and working. (Emphasis

supplied). Id . at 510, FN 10.

5 7 . Almost the identical definition of "disability" is set

out in the Americans With Disabilities Act (ADA). See 42 U.S.C.

Section 12102(2).

58 . The Americans with Disabilities Act defines

"disability" as a physical or mental impairment that

substantially limits one or more major life activities of such

individual; a reco rd of such impairment; or being regarded as

having such an impairment. 42 U.S.C. § 12102(2).

59 . Petitioner testified that he had been diagnosed 25 to

30 years ago as having schizophrenia and schizoid personality

disorder. No competent medi c al or psychi atric opinion of such

diagnoses was admitted in evidence. Petitioner described long

periods of time between 1979 and 1996 when he was so disabled

that he could not take care of himself or interact with others

and testified that this condition precluded hi m from having a

job during these periods. However, moving closer in time to the

situation at hand, Petitioner's employment application shows a

virtually uninterrupted history of work and educational

activities since 19 96 . Not working for a period while p ursuing

a higher education or wh i le recover ing from some illness or

injury do es not bespeak of a permanent , legally defined

" handicap, " and Petitioner's application d id not specify that he

currently had a permanent handicap. The reason stated by

Petitione r for leaving his most recent employment with the State

of Florida was because of a difficult commute and lack of safe,

affordable housing, not because of a handicap . At the time

Petitioner filed his employment application with Respondent , he

indicated th at he was in "ready for employment" status, which

suggest ed that any "disability" had been transient in nature.

It is well settled law that temporary, nonc h ronic, impairments

of short duration with little or no long - term or permanent

impact are not disabi lities as defined by the Act. Johnston v.

Henderson , 145 F. Supp. 2d 1341, 1352 (S.D. Fla. 2001).

6 0 . Disability can also be demonstrated by an individual

having a record of such impairment. The record requirement is

satisfied if a record relied on (emp hasis added) by an employer

indicates that the individual has or has had a substantially

limiting impairment. The impairment indicated in the record

must be an impairment that would substantially limit one or more

of the individual's major life activities . There are many types

of records that could potentially contain this information,

including but not limited to education, medical or employment

records. 29 C.F.R. § 1630.2(k). Given Petitioner's employment

and educational history , as presented in his e mployment

application , the reference to disability and his "ready for

employment" status does not constitute a "record" of such

impairment. Also, no evidence was presented showing that

Petitioner discussed his condition during his employment

interview; th at any of Respondent's principals was aware

Petitioner had a handicap as Petitioner perceived it, or that

any of Respondent's principals relied upon Petitioner having a

handicap in making their decision to promote the other

candidate .

6 1 . The final defini tion of " disability " is being regarded

as having such an impairment. In order for Petitioner to prove

he was regarded as having a mental or physical impairment that

substantially limits one or more major life activities,

Petitioner must show that Responde nt believed he had a permanent

or long - term impairment. Sutton v. Lader , 185 F.3d 1203, 1209

(llth Cir. 1999). Petitioner presented no evidence that

Respondent's principals believed, or otherwise treated him as

disabled.

6 2 . A prospective employee canno t be discriminated against

on the basis of his or her disability unless the prospective

employer knows of the disability. As stated in Hedberg v.

Indiana Bell Telephone Co., Inc. , 47 F.3d 928, 932 (7th Cir.

1995), "At the most basic level, it is intuitive ly clear when

viewing the [Act's] language in a straight forward manner that

an employer cannot [take adverse action against] an employee

because of a handicap unless it knows of the [handicap]. I f i t

does not know of the [handicap], the employer is [taki ng adverse

action against] the employee 'because of' some other reason.

Vague or conclusory statements revealing an unspecified

incapacity are not sufficient to put an employer on notice."

Morisky v. Broward County , 80 F.3d 445, 448 (11th Cir. 1996).

Pe titioner's two vague references to disability (once on his

employment application and once in response to written interview

questions) and his failure to specify his impairment are

insufficient to impute to Respondent knowledge of the nature and

extent of his alleged disability. Absent that knowledge,

Respondent's decision not to hire Petitioner must have been

"because of some other reason," not because of a disability of

Petitioner.

6 3 . Mere speculation or subjective feelings of an

applicant , or in this case, Petitioner's assumption , that he was

discriminated against due to age or handicap, are insufficient

to find that discriminat ion has occurred. Little Republic v.

Refining Co., Ltd. , 924 F.2d 93 (5th Cir. 1991); Elliott v.

Group Medical & Surgical Ser vice , 714 F.2d 556 (5th Cir. 1983);

and Shiflett v. GE Finance Automation , 960 F. Supp. 1022 (W.D.

Va. 1977).

6 4 . Exhibit P - 3, the list of Respondent's employees which

does not track either any temporary inability to work or

permanent handicap of any of R espondent's employees is

insufficient to show discrimination. Petitioner d id not present

any statistical evidence of the percentage of disabled persons

who reside in the region surrounding the Forestry Youth Academy .

He presented no evidence that any dis abled persons applied for

the positions filled by those on the list; the percentage of

disabled persons who applied to Respondent from any and all

regions; the percentage of disabled persons actually offered

employment by Respondent; or the percentage of d isabled persons

actually employed in Respondent's work force. Lacking such

evidence, Petitioner has not established a prima facie case

based upon statistical evidence. See Evans v. McClain of

Georgia, Inc. , 131 F.3d 957 (11th Cir. 1977), citing Brown v.

American Honda Motor Co. , 939 F.2d 946 (11th Cir. 1991) cert.

denied 502 U.S. 1058 (1992), and holding that "Statistics"

without an analytic foundation are "virtually meaningless";

Culley vak Microwave Co. , 117 F. Supp. 2d 1317 (M.D. Fla.

2000); and Vi llaneuva v. City of Ft. Pierce, Fla. , 24 F. Supp.

2d 1364 (S.D. Fla. 1998).

6 5 . A prima facie case for an age discrimination claim can

be established by (1) showing that Petitioner was a member of

the protected age group; (2) was subjected to adverse empl oyment

action; (3) was qualified to do this job; and (4) was replaced

or otherwise lost a position to a younger individual. Chapman

v. AI Transport , 229 F.3d 1012, 1024 (11th Cir. 2000). The

undersigned has accepted the parties ' stipulation s that

Petitio ner is a member of a protected age group and that he met

the minimum qualifications for the job. It is likewise

undisputed that Petitioner was not hired by Respondent and that

Petitioner , along with 16 other applicants , lost the position to

an individual younger than Petitioner. Therefore, Petitioner

has established a prima facie case of age discrimination.

6 6 . Once a prima facie case of discrimination has been

established, the employer must articulate a legitimate,

nondiscriminatory reason for the chal lenged employment action.

However, the employer's burden is merely one of production . The

employer need not persuade the court that it was actually

motivated by the proffered reason. See supra , and Combs v.

Plantation Patterns , 106 F.3d 1519, 1528 (11th Cir. 1993).

Respondent asserts that its legitimate, nondiscriminatory reason

for not hiring Petitioner was that it hired a more qualified

applicant , Dwight Poole.

67 . This forum does "not sit as a super - personnel

department that re - examines an entity's business decisions."

Chapman supra at 1030. Once, as here, the employer articulates

a legitimate, nondiscriminatory reason for the challenged

action, the presumption of discrimination is eliminated and the

[Petitioner] has the opportunity to come forwar d with evidence

sufficient to permit a reasonable fact finder to conclude that

the reason given was pretextual and the real reason for the

adverse employment decision. Id. at 1528. No competent

evidence was presented herein which would establish that

Res pondent's reason for not hiring Petitioner was pretextual.

See Isenbergh v. Knight - Ridder Newspaper Sales, Inc. , 97 F.3d

436 (11th Cir. 1996), holding that pretext must be shown with

"significantly probative evidence."

6 8 . While Respondent's own evidenc e shows that the

successful younger applicant did not have eight years of related

service experience with the employer herein, it show s that he

did have eight years of related experience overall, plus an AA

degree he had earned while employed by Respondent . This set of

circumstances met the minimum job requirements advertised.

Moreover, Mr. Poole's formidable experience with the employer

and DJJ practices and codes , when pitted against Petitioner's

lack of any DJJ experience or residential rehabilitation

experience, clearly put Mr. Poole ahead in the category of

"major duties and responsibilities."

69 . Petitioner has not persuaded that his or Mr. Poole's

age played any part in Respondent's failure to hire Petitioner

or decision to hire Mr. Poole.

R ECOMME NDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission o n Human Relations

enter a final order dismissing the Petition for Relief and

Charge of Discrimination.

DONE AND ENTERED this 13th day of September , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 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 13th day of September , 200 7 .

ENDNOTES

1/ Exhibit P - 1, a July 26, 1982 , letter, purportedly from a

medi cal physician to a third party, was not admitted in evidence

because it was hearsay outside the parameters of Section

120.57(1)(c), Florida Statutes. The letter was not self -

authenticating , and neither the writer nor the addressee of this

25 - year - old lett er appeared so as to be cross - examined.

2/ Th e parties’ stipulation has been accepted and utilized

herein, even though FCHR has entered several final orders

specifying that it is “age relative to the hired employee that

controls,” rather than any particu lar age category, such as

"over 40."

3/ Petitioner contends that this document/date should be

interpreted to mean that Mr. Poole only applied for the position

as of May 28, 2006, instead of before the April 20, 2006 ,

interview date handwritten on his wri tten interview questions

and typed as his interview date on Mr. King's summary and

prioritization list of all 18 interviews which rank ed all

candidates , and which was then reviewed by Ms. Vaughn.

COPIES FURNISHED :

Philip Porter

Post Office Box 946

Silve r Springs, Florida 34489

Stephen Donelan, Esquire

Department of Agriculture

and Consumer Services

509 Mayo Building

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apa lachee 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 s ubmit 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.