07-002655 Carol Tucker vs. Chipola College Status: Closed Recommended Order on Friday, November 2, 2007.

Summary: Petitioner failed to establish a disability; thus, she failed to establish discrimination based on a handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL TUCKER , )

)

Petitioner , )

)

vs. ) Case No. 07 - 2655

)

CHIPOLA COLLEGE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hear ing was held in this case

on August 30, 2007, in Shalimar, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Carol L. Tucker, pro se

Post O ffice Box 378

Mary Esther, Florida 32569 - 0378

For Respondent: Michael Mattimore, Esquire

Mark L. Bonfanti, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street , Suite 100

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has been

subject ed to an unlawful employment practice.

PRELIMINARY STATEMENT

On October 24, 2006, Petitioner, Carol Tucker ( Ms. Tucker),

filed an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (Commission), alleging that

Respondent, Chipola College (Chipola) , discriminated against her

when Chipola failed to hire her after learning of her “ medical

history/disabilities.” On April 20, 2007, the Commission issued

a Determination: No Cause, finding that no reasonable cause

existed to believe that an unlawful employment practice had

occurred. Ms. Tucker filed a Petition for Relief (Petition)

w ith the Commission, and the Petition was received by the

Division of Administrative Hearings on June 13, 2007, with a

request from the Commission to assign an Administrative Law

Judge to conduct the necessary proceedings.

At the final hearing, Ms. Tucker t estified in her own

behalf and Petitioner’s Exhibit 1 was introduced in evidence.

Chipola called Karan Davis and Wendy Pippen as its witnesses.

Respondent’s Exhibit 1 was proffered but not received in

evidence. Respondent’s Exhibits 2 and 3 were admitte d in

evidence.

The one - volume Transcript of the final hearing was filed on

October 5, 2007. At the final hearing, the parties were

instructed to file their proposed recommended orders within ten

days of the filing of the Transcript. Ms. Tucker filed her

proposed recommended order and closing statement on

September 10, 2007. Chipola filed its proposed recommended

order and brief on October 15, 2007. The parties’ proposed

recommended orders have been given consideration in the

rendering of this Recommend ed Order.

FINDINGS OF FACT

1. Chipola is a college located in Marianna, Florida, and

offers two - year and four - year degrees.

2. In August 2005, Ms. Tucker contacted personnel at

Chipola i nquiring about a faculty position. She sent an e - mail

to Karan Davi s (Ms. D avis), Chipola’s a ssociate v ice p resident

of Human Resources and included a brief r é sum é . No positions

were available at that time.

2. On or about May 18, 2006, Ms. Tucker submitted an

application for employment at Chipola as an adjunct instructo r.

An adjunct instructor position is a temporary position on an as -

need ed basis to instruct a specific course. Health benefits are

not provided for adjunct instructors.

3. The employment application which Ms. Tucker submitted

requested that applicants c omplete a section on educational

employment and a section on non - educational employment. In each

section, the application provided space for the listing of three

present or former employers. The application stated, “If you

wish to further describe your w ork experience, please attach a

resume to this application.” Ms. Tucker did not attach a r é sum é

to the application.

4. In the section for educational employment, Ms. Tucker

listed employment as a substitute teacher for two school

districts and one privat e school. In the section for non -

educational employment, Ms. Tucker listed employment in 2006 at

Florida State University, employment from 1979 to 1988 with the

United States Postal Service, and a position as a legal

secretary from 1975 to 1977.

5. The a pplication asked, “Have you ever been discharged

or forced to resign from a previous position?” to which Ms.

Tucker replied, “No.” The application contains an applicant

certification, which states:

I am aware that any omissions,

falsifications, misstateme nt or

misrepresentations may disqualify me for

employment consideration, and if I am hired,

may be grounds for termination at a later

date.

Ms. Tucker signed the applicant’s certification.

6. Wendy Pippen (Ms. Pippen) is employed by Chipola as the

h uman r esources c oordinator. She is responsible for

coordination of the daily activities and tasks in the Human

Resources Department, including review of employment

applications and r é sum é s. She did not receive a r é sum é from

Ms. Tucker at any point during the hiring process.

7. Ms. Tucker was interviewed for the position as adjunct

instructor. During a conversation with Ms. Pippen following

Ms. Tucker’s interview, Ms. Tucker mentioned that she had worked

at the University of South Florida. Ms. Pippen did n ot recall

seeing the University of South Florida listed as an employer on

Ms. Tucker’s application. She checked Ms. Tucker’s application

and confirmed that the University of South Florida was not

listed on the application. Ms. Pippen immediately advised her

supervisor, Ms. Davis, of the omission.

8. Ms. Tucker told Ms. Pippen that she had omitted her

employment with the University of South Florida because an

employment agency had advised her to do so due to the potential

for a negative reference. Ms. Tucker vehemently testified at

the final hearing that the reason she did not list employment

with the University of South Florida was that she was terminated

for medical reasons , and it was “no one’s business.” However,

she also testified that the Univers ity of South Florida gave

“bad references.” She had told others that she was concerned

that the University of South Florida would give her a bad

reference. It was her opinion that the University of South

Florida was not ethical in giving references on fo rmer

employees. Having judged the demeanor of the witnesses,

Ms. Pippen’s testimony is credited that Ms. Tucker told her the

reason that she did not put the University of South Florida on

her application was that she felt the University of South

Florida would not give her a good reference.

9. Upon being informed by Ms. Pippen that Ms. Tucker had

worked at the University of South Florida, Ms. Davis contacted

the University of South Florida to check Ms. Tucker’s past

employment. Ms. Davis was advised that Ms. Tucker had been

employed by the University of South Florida and that she had

been terminated for medical reasons. Ms. Davis did not inquire

why Ms. Tucker was terminated. That information was volunteered

by personnel at the University of South Flori da. Ms. Davis did

not ask for an explanation of the medical reasons, and no

explanation was volunteered. Ms. Davis did not inquire whether

Ms. Tucker had a disability, and no one from the University of

South Florida told Ms. Davis that Ms. Tucker had a d isability.

10. The decision was made not to hire Ms. Tucker as an

adjunct instructor because she had failed to include the

University of South Florida on her application and had stated in

her application that she had not been discharged or forced to

resig n from a previous position. Ms. Davis perceived that the

omission of the University of South Florida from the application

and the failure to indicate that she had been discharged from

previous employment amounted to falsification of the

application, which was a reason for disqualification from

employment as clearly stated in the application form.

11. Ms. Tucker contends that Ms. Davis was aware that she

had been employed by the University of South Florida because she

had included the employment on the r é s um é that she sent to

Ms. Davis in 2005. Ms. Davis did not recall seeing the r é sum é

and given that there was a lapse of seven months from the time

that Ms. Tucker sent her r é sum é in 2005 until she submitted an

application in May 2006 without a r é sum é , it is reasonable that

Ms. Davis would not recall seeing the r é sum é or was not aware

that Ms. Tucker had listed the University of South Florida on a

r é sum é .

12. After Ms. Tu c ker was advised that she would not be

hired as an adjunct instructor, she wrote Dr. Spires at Chipola,

stating that she had not put the University of South Florida on

her employment application because she had been advised by an

employment agency to omit the University of South Florida

because it had a long history of illegal employment p ractices.

13. Ms. Tucker does not contend that she has a particular

disability which served as the basis for Chipola’s failing to

hire her, and she did not inform staff at Chipola that she has a

disability or identify any medical condition she ha s . Her c laim

is that she was not hired because of a history of medical

problems. The evidence overwhelmingly established that

Ms. Tucker was not hired because she had made misrepresentations

on her application and not because of any history of medical

problems. It is clear that Ms. Tucker did not include the

University of South Florida on her application and did not

inform Chipola that she had been discharged because she was

afraid that the University of South Florida would give her a bad

reference.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

15. Subsection 760.10, Florida Statutes (2006) , 1 provides:

(1) It is an unlawfu l 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 employment, because of such

individ ual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

16. The Florida Civil Rights Act of 1992, Section 760.01,

Florida Statutes, et seq. , is construed in accordance with the

Americans with Disabilities Act (ADA), 42 U.S.C. Section 12101,

et seq. , when the charge of discrimination is based on handicap.

Razner v. Wellington Regional Medical Center, Inc. , 837 So. 2d

437, 440 (Fla. 4th DCA 2002); McCaw Celluar Communications of

Florida, Inc. v. Kwaitek , 763 So. 2d 1063 (Fla. 4 th DCA 1999);

Greene v. Seminole Electric Co - op, Inc. , 701 So. 2d 646 (Fla.

5th DCA 1997).

17. To be eligible for relief based on a claim of handicap

discrimination, a petitioner must satisfy the same evidentiary

burdens demanded by similar statutes addre ssing claims of

employment discrimination. See Earl v. Mervyns, Inc. , 207 F.3d

1361, 1365 (11th Cir. 2000); Hilburn v. Murata Elecs. North

America, Inc. , 181 F.3d 1220, 1226 (11th Cir. 1999). The

burden - shifting analysis of Title VII employment discrimin ation

claims is applicable to claims based on handicap discrimination.

Earl , 207 F.3d at 1365. The petitioner has the burden to

establish a prima facie case of discrimination. Once a prima

facie case of discrimination is established, the burden shifts

t o the employer to articulate a nondiscriminatory reason for the

adverse employment action. If the employer articulates a

nondiscriminatory reason for its action, the burden shifts back

to the petitioner to establish that the reasons articulated by

the emp loyer were pretexual. The petitioner bears the ultimate

burden of establishing that the employer discriminated against

her. See Cleveland v. H ome Shopping Network, Inc. , 369 F.3 d

1189, 1193 (11th Cir. 2004).

18. In order for Ms. Tucker to establish a pr ima facie

case of handicap discrimination, she must “show: (1) she is

disabled; (2) she is a qualified individual; (3) she was

subjected to unlawful discrimination because of her disability.”

Id.

19. In order to satisfy the first element of a prima fac ie

case of discrimination, a petitioner must establish that he/she

is disabled. A person is disabled when he/ she has a physical or

mental impairment that substantially limits one or more of

his/ her major life activities or has a record of such impairment

or is being regarded as having such an impairment. 42 U.S.C.

§ 12102(2). See also Harris v. H&W Contracting Co. , 102 F.3d

516, 518 - 20 (11th Cir. 1996). “Major life activities” include

“functions such as caring for oneself, performing manual tasks,

walk ing, seeing, hearing, speaking, breathing, learning, and

working.” 29 C.F.R. § 1630.2(i).

20. Ms. Tucker has failed to establish that she has a

disability. She has not identified , mu ch less established , a

physical or mental impairment that substantially limits one or

more of her major life activities. Since she has not identified

or established any disability, she has not established a record

of such impairment. The evidence did not establish that staff

at Chipola perceived Ms. Tucker to have a disabil ity.

Ms. Davis’ discovery that Ms. Tucker was terminated for medical

reasons from her employment at the University of South Florida

does not equate to Ms. Davis ' perceiving Ms. Tucker as having a

disability.

21. Based on the evidence presented, Ms. Tuck er did

establish that she was educationally qualified to be an adjunct

instructor.

22. Ms. Tucker did not establish that she was not hired

because of a disability. Chipola presented convincing evidence

that the reason for not hiring Ms. Tucker was her

mi srepresentations on her employment application. Ms. Tucker

clearly indicated that she had not been discharged from previous

employment when she had been. She was advised by the

application itself that misrepresentation of information would

result in disq ualification from employment.

23. Ms. Tucker has failed to establish that Chipola

discriminated against her based on a handicap or disability.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a f inal o r der be entering finding

th at Chipola College did not discriminat e against Ms. Tucker and

dismissing the P etition for R elief.

DONE AND ENTERED this 2nd day of November, 2007 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 2nd day of November , 2007 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 edition.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human R elations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael Mattimore, Esquire

Mark L. Bonfanti, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street, Suite 100

Tallahassee, Florida 32303

Carol L. Tucker

Post Office Box 378

Mary Esther, Florida 32569 - 0378

Cecil Howard, General Counsel

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.