STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE J. LONGARIELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5314

) COLLIER COUNTY PUBLIC SCHOOLS, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 15, 1995, the Respondent, Collier County Public Schools, filed a motion to dismiss which was renewed by motion dated January 3, 1996. The Petitioner filed a response to the motion on November 30, 1995, which has been considered in the preparation of this order.

APPEARANCES

For Petitioner: Steve J. Longariello, pro se

9999 Summerbreeze Drive, Apartment 422

Sunrise, Florida 33322

For Respondent: Jonathan D. Fishbane, Esquire

ROETZEL & ANDRESS

850 Park Shore Drive Naples, Florida 33940

STATEMENT OF THE ISSUES

Whether the Respondent's motion to dismiss should be granted.

PRELIMINARY STATEMENT

This case began on August 5, 1993, when the Petitioner filed a complaint with the Florida Commission on Human Relations and the EEOC that alleged discrimination based on sex. The discrimination charge (which is a form) specified that the discrimination took place from August 26, 1992 with continuing action through May 21, 1993. Further, the narrative portion of the complaint set forth the following acts allegedly committed by the Respondent, Collier County Public Schools:

I am an unmarried male. (a) "Early in the academic year I interviewed at Golden Gate Middle School. The next evening the Principal called

me to inform me that the board decided to hire another teacher who applied at the last minute.

Although at the time I accepted it, recently, after examining the statistics, I believe that I was discriminated against because of my sex" and marital status.

1. "On Wednesday, January 13, 1993, I inter- viewed at the Golden Gate elementary School. After about 2 minutes, the Principal left me to be interviewed by the all Female Staff. Although I survived this grueling 45 minute interview, I was not hired. Again, I believe (now) that I was discriminated against."

2. "Throughout the year I have made various attempts to obtain a teaching position. My attempts were ignored by all except Mr. Chatham."

I believe that I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended.

The "statistics" referenced by Petitioner identified employees of the Respondent by gender and race, not marital status. No allegations regarding marital status employment practices were included in the complaint. Only the box labeled "sex" was checked as the basis for Respondent's allegation of discrimination.

A notice from the Florida Commission on Human Relations (Commission) was entered on November 1, 1995, which referred the matter to the Division of Administrative Hearings for formal proceedings. Such notice stated that the provisions of Section 760.11(8), Florida Statutes, govern this proceeding.

Section 760.11(8), Florida Statutes, provides, that should the Commission fail to determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the Commission had determined reasonable cause. Section 760.11(4), Florida Statutes, provides:

1. In the event that the commission deter- mines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights of Act

   of 1992, the aggrieved person may either:

   1. Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or

   2. Request an administrative hearing under s. 120.57.

The election by the aggrieved person of filing a civil action or requesting an administrative hearing under this subsection is the exclusive procedure available to the aggrieved person pursuant to this act.

In resolution of the complaint filed in this case, the EEOC entered its letter of determination on May 23, 1995, and concluded that there was no evidence that the Petitioner's sex or marital status were considered by the Respondent in its decision not to hire the Petitioner. Further, the letter advised Petitioner of his right to pursue the matter in federal district court. The Petitioner has, in fact, filed such suit against the Respondent and is

currently pursuing that remedy. Steve J. Longariello v. Collier County Public Schools, Civil Action No. 95-266-Civ-FTM-25D, is currently pending before the United States District Court, Middle District of Florida.

Petitioner has aggressively sought discovery in the federal suit and in the instant matter. He has sought information from Respondent related to both gender and marital status. However, in his memorandum of law in opposition to the motion to dismiss, Petitioner has maintained that the federal suit deals only with the sex discrimination allegation and not marital status discrimination. Petitioner argues he is entitled to elect to pursue marital status discrimination under Florida law.

This might be accurate if, as Petitioner suggests, he may not claim marital status discrimination under federal law and, if he timely raised such a claim.

In this case, however, he did not. The only petition seeking relief filed in this cause is the EEOC complaint form that is attached to the referral packet. No other pleading has been filed in this case to support Petitioner's claim for marital status discrimination. The material attached to Petitioner's multiple claims do not support discrimination based on marital status but echo Petitioner's allegation that others (females) received jobs he should have gotten. Further, the claims do not allege married individuals (male or female) received preferential treatment for employment.

Assuming the facts most favorable to Petitioner, that women were given jobs that he was more qualified to receive, does not support an allegation of discrimination based on marital status. This order is entered pursuant to Rule 60Q-2.016, Florida Administrative Code, which provides that whenever ruling on a motion is dispositive of a matter, it shall be incorporated in a recommended order.

CONCLUSIONS OF LAW

1. Section 760.11(1), Florida Statutes, provides in part:

   
   

   1. 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, naming the employer, employment agency, labor organization, or joint labor- management committee, or, in the case of an alleged violation of s. 760.10(5), the person responsible for the violation and describing the violation.

      
      

2. In the instant case, the Petitioner's claim based on marital status discrimination should be dismissed as not timely filed.

   
   

3. Secondly, Petitioner has brought a suit in federal court against this Respondent which is the exclusive remedy available to the aggrieved person. The statute provides that bringing a civil suit in any court of competent jurisdiction is the exclusive procedure to Petitioner once that election has been made.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination based on marital status and recognizing Petitioner has elected to bring a civil action in federal court which is a court of competent jurisdiction to resolve all other claims against this Respondent.

DONE AND ENTERED this 10th day of January, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1996.

COPIES FURNISHED:

Jonathan D. Fishbane, Esquire Roetzel & Andress

850 Park Shore Drive Naples, Florida 33490

Steve J. Longariello, pro se 9999 Summerbreeze Drive

Apartment 422

Sunrise, Florida 33322

Sharon Moultry, Clerk Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-005314

Orders for Case No: 95-005314