10-010016 Arthur T. Brown vs. Flagler County School Board Status: Closed Recommended Order on Tuesday, May 17, 2011.

Summary: Petitioner did not prove that Respondent discriminated against him by failing to hire him based on his disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR T. BROWN , )

)

Petitioner, )

)

vs. ) Case No. 10 - 10016

)

FLAGLER COUNTY SCHOOL BOARD , )

)

Respondent. )

)

RECOMMENDED ORDER

A n administrative h ear ing was conducted in this case on

April 12 , 2011 , by video teleconference in Jacksonville and

Tallahassee , Florida , before James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Arthur T . Brown , pro se

29 - A Louvet Lane

Palm Coast, Florida 32137

For Respondent: Kristy J. Gavin , Esquire

Flagler County School District

1769 East Moody Boulevard , Building 2

Bunnell, Florida 32110

STATEMENT OF THE ISSUE

Whether the Flagler County School Board discriminated

against Petitioner by failing to hire Petitioner based on h i s

disability.

PRELIMINARY STATEMENT

On March 11 , 20 10 , Petitioner filed a complaint (Complaint)

with the Florida Commission on Human Relations (the Commissio n

or FCHR) alleging employment discrimination by the Flagler

County School Board (School Board or Respondent ) . The Complaint

was assigned FCHR No . 20 1001184 .

The Commission investigated the Complaint and o n

September 30 , 2010, issued a Determination which found Ð No

Cause. Ñ On th at same day, the Commission issued a Notice of

Determination of No Cause (Notice) on the Complaint stating that

the Commission Ð has determined that there is no reasonable caus e

to believe that an unlawful employment practi c e occurred. Ñ The

Notice advised Petitioner of h is right to file a P etition for

Relief for an administrative hearing on h is Complaint within 3 5

days. Petitioner timely filed a Petition for Relief .

On Novembe r 2 , 2010, t he Commission filed a Transmittal of

Petition with the Division of Administrative Hearings (DOAH) for

assignment of an administrative law judge to conduct a n

administrative hearing .

Following a telephonic hearing on PetitionerÓs counselÓs

Motio n to Withdraw as Counsel for Petitioner (Motion to

Withdraw) held on December 8, 2010, the Motion to Withdraw was

granted and this case was subsequently scheduled for a final

hearing. At the final hearing, Petitioner testified , through a

sign language int erpreter, on his own behalf and offered one

e xhibit which was received into evidence as Petitioner Ó s E xhibit

P - 1, without objection . Respondent presented the telephone

testimony of Paula Parrella, secre tary to RespondentÓs Director

of Human Resources, and offered one e xhibit which was received

into evidence without objection as Respondent Ó s Exhibit R - 1 .

The evidentiary portion of the hearing concluded on

April 12 , 2011 . The proceedings were not recorded and there is

no transcript of the proceedings. T he parties were given until

May 2, 2011, to file proposed recommended orders. Respondent

filed its Proposed R ecommended O rder on April 29 , 2011 , which

has been considered in pr eparing this Recommended Order.

Petitioner did not file a proposed recommended or der.

FINDINGS OF FACT

1. Respondent is the local gover nment agency responsible

for oversight of the public schools of Flagler County, Florida .

2. Petitioner applied for two positions with the School

Board. In December 2009, Petitioner applied for a job opening

as a bus aide for handicapped students (Transportation

Handicapped Aide position) . On January 29, 201 0, he applied for

a lawn maintenance position at Flagler Palm Coast High School

(Maintenance/Turf Care Worker position) .

3. On February 1, 2010 , Petitioner received a letter from

the School Board thanking him for his interest in the

Transportation Handicapped Aide position , but informing him that

the School Board had selected another applicant.

4. On or about May 31, 2010, Petitioner received another

rejection letter from the School Board, informing him that he

had not been hired for the Maintenance/Turf Care position .

5. Petitioner alleges that Respondent did not hire him for

either position because he is Ð qualified deaf. Ñ

6. Prior to actual ly applying for the two positions, as

part of the application process , Petitioner completed an on - line

employment application with the School Board. Petitioner listed

eight previous positions on his on - line application, including:

dishwasher, assembler, part - time stacker, dock worker,

warehouse/driver, part - time delivery driver, warehouse

associate, and warehouse forklift operator.

7. The previous positions listed on PetitionerÓs on - line

application did not involve working with children or lawn care.

8. At the final hearing, Petitioner testified that he had

been around deaf and blind students while attending the Florida

School for Deaf and Blind. He also testified that he thought he

could learn the lawn care maintenance position while on the job.

Petit ioner conceded, however, that his prior employment

positions and experience did not involve working with children

or lawn care maintenance.

9. Qualifications the School Board required for the

Transportation Handicapped Aide position included prior

experie nce or training in the care of children, as well as

knowledge of and ability to use crisis intervention and

prevention techniques, CPR, and first aid.

10. T he Maintenance/Turf Care Worker position was not a

beginning position where qu alifications could be met by on - the -

job training. Rather, t he position required a state - certified

pest control operator's license for lawn and ornamental plants

or the equivalent, and a working knowledge of the rules and

regulations on safe handling and application of pestici des,

herbicides, and fertilizers. The position also required

knowledge of athletic field dimensions and striping, and the

ability to maintain a commercial irrigation system.

11. Review of Petitioner's on - line application , in light

of the qualifications f or the two positions sought , reveals that

Petitioner was not qualified for either position.

12. In contrast, t he successful applicants who were hired

for the two positions possessed the required qualifications and

experience .

13. Ms. Parrella testified t hat , as secretary to the

School Board's Director of Human Relations, it was her

responsibility to monitor the applications for employment

submitted for the two positions for which Petitioner applied.

According to Ms. Parrella, Petitioner was not hired bec ause he

did not possess the required qualifications for the positions.

14. Ms. Parrella further testified that the School Board

would not discriminate against a person who was deaf if he had

the qualifications for the position. She further explained that

Petitioner's handicap or disability played no role in the

decision not to hire him for the two positions. Ms. Parrella's

testimony is credited.

15. Petitioner testified that, at the time he filed the

Complaint, he suspected that he had not been hired by the School

Board because of his disability because he could not think of

any other reason he was not hired. He admitted, however, that

he had no personal knowledge as to the reasons why he was not

hired.

16. Petitioner also admitted during the final hea ring that

he did not list or possess all of the certifications or

qualifications required for either of the two positions.

17. In sum, Petitioner did not show that the School Board

discriminated against him by failing to hire him because of his

disability .

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760. 11 (4 ) ( b) , Fla.

Stat. (20 1 0) 1 / ; see also Fla. Admin. Code R. 60Y - 4.016 .

19. The Florida Civil Rights Act of 1992 (the Act) is

codified in sections 760.01 through 760.11, Florida Statutes.

Ð The Act, Ñ as amended, was patterned after Title VII of the

Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq. ,

as well as the Age Di s cr imination in Employment Act (ADEA),

29 U.S.C. § 623 . Federal case law interpreting Title VII and

the ADEA is applicable to cases arising under the Florida Act.

F la. S tate U niv. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st

DCA 1996) ( citing Fl a. Dep Ó t of C m ty . Aff . v. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991) ) .

20. S ection 760.10 provides, in pertinent part:

(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

discri minate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual Ó s race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual Ó s status as an employee, because

of such individual Ó s race, color, religion,

sex, natio nal origin, age, handicap, or

marital status.

21. The three - part Ð burden of proof Ñ pattern developed in

McDonnell Douglas Corp. v. Green , 4 11 U.S. 792 (1973), applies.

Under that test , f irst, Petitioner has the burden of proving a

prima facie case of d iscrimination by a preponderance of the

evidence. Second, if Petitioner sufficiently establishes a

prima facie case, t he burden shifts to Respondent to Ð articulate

some legitimate, nondiscriminatory reason Ñ for its action.

Third, if Respondent satisfies this burden, Petitioner has the

opportunity to prove by a preponderance of the evidence that the

legitimate reasons asserted by Respondent are in fact mere

pretext. 411 U.S. at 802 - 04 .

22. To establish a prima facie case of discrimination,

Petitioner mus t prove by a pre ponderance of the evidence:

(1) that he is a handicapped person within the meaning of

s ubsection 760.10(1)(a); (2) that he is a qualified individual;

and (3) that Respondent discriminated against him on the basis

of his disability. See Ear l v. Mervyns , 207 F.3d 1361, 1365

(11th Cir. 2000); Byrd v. BT Foods, Inc. , 948 So. 2d 921 , 925

(Fla. 4th DCA 2007).

23. While Petitioner established the first element,

Petitioner failed to establish a prima facie case of

discrimination.

24. As to the fi rst element, the undisputed evidence

demonstrated that Petitioner is handicapped by virtue of the

fact that he is deaf. T he term Ð handicap Ñ in the Florida Civil

Rights Act is treated as equivalent to the term Ð disability Ñ in

the Americans with Disabilitie s Act. Byrd , 948 So. 2d at 926.

25. Ð The ADA defines a Ò disabi lity Ó as Ò a physical or

mental impairment that substantially limits one or more of the

major life activities of such individual, a record of such

impairment; or being regarde d as having such a n impairment. Ñ

42 U.S.C. § 12102(2). Ð Ò Major life activities Ó i nclude

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

walking, seeing, hearing, speaking, b reathing, learning and

working. Ó Ñ 948 So. 2d at 926 ( citing Bragdon v. Abbott , 524 U.S.

624 (1998); 45 C.F.R. § 84.3(j)(2)(ii); and 28 C.F.R.

4 1.31(b)(2)(1997) ) .

26. Although Petitioner proved that he is Ð handicapped Ñ or

Ð disabled Ñ within the meaning of the law, Petitioner failed to

prove the other two elements required to prove discrim ination by

failing to show 2) that he is a qualified individual, or

(3) that Respondent discriminated against him on the basis of

his disability .

27. In order to show that he is Ð qualified, Ñ Petitioner

must show that he can perform the essential functions of the

job , either with or without reasonable accommodation . McCaw

Cellular Commc Ó ns of Fla. v . Kwiatek , 763 So. 2 d 1063, 1065

(Fla . 4th DCA 1999) ( citing 42 U.S.C.A. § 1211(8) ) . An employer

is not required to reallocate job duties to change the functions

of a job. Earl , 207 F .3 d at 1367. Ð [ T ] he duty to accommodate

does not require an employer to lower its performance standards,

reallocate essential job functions, create new jobs, or reassign

disabled employees to positions that are already occupied. Ñ

S almon v. Dade Cn ty . Sch. Bd. , 4 F . Supp. 2d 1157, 1162 (S.D.

Fla. 1998) ( citing 29 C.F.R. § 1 630.2(0)(2); 42 U.S.C. 12111(9) ) .

28. As noted in the Findings of Fact, above, Petitioner

did not possess the qualifications for either of the two

positions he sou ght with the School Board. Respondent need not

waive essential elements of a position to accommodate

Petitioner. Id.

29. Finally, Petitioner failed to show that Respondent

discriminated against him because of his disability . The

undisputed testimony sh owed that the School Board did not hire

Petitioner because he was not qualified and that Petitioner's

disability played no role in the School Board's decision.

30. In sum, Petitioner failed to present a prima facie

case. Failure to establish a prima faci e case of discrimination

ends the inquiry. Cf. Ratliff v. State , 666 So. 2d, 1008, 1013

n.6 ( Fla. 1st DCA ) , aff Ó d , 679 So. 2d 1183 (Fla. 1996)( same

rationale in case regarding racial discrimination).

31. Even if Petitioner had established a prima facie c ase,

Respondent Ó s evidence presented at the final hearing refuted

Petitioner Ó s argument that Respondent Ó s actions were

discriminatory. Respondent provided persuasive evidence that

the reason it did not hire Petitioner is that he did not possess

the requir ed qualifications for the positions.

32. Petitioner otherwise failed to demonstrate, as he must

to prevail in his claim, that Respondent Ó s proffered reason for

not hiring Petitioner was not the true reason, but merely a

pretext for discrimination. McDonn ell Douglas , 411 U.S. at 802 -

03.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Complaint and Petition for

Relief.

DONE AND ENTERED this 17th day of May , 201 1 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May , 2011 .

ENDNOTE

1 / Unless otherwise indicated, all references to statutes or

rules are to the current, 2010, versions, which have not been

substantively revised since the relevan t hiring decision in this

case.

COPIES FURNISHED :

Kristy Janda Gavin, General Counsel

Flagler County School Di strict

1769 East Moody Boulevard, Building 2

Bunnell, Florida 32110

Arthur T. Brown

29 - A Louvet Lane

Palm Coast, Florida 32137

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 3 2301

Larry Kranert, 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.