STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE J. LONGARIELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5317

) MONROE COUNTY PUBLIC SCHOOLS, ) FLORIDA, )

)

Respondent. )

)

SUMMARY RECOMMENDED ORDER

Petitioner and Respondent filed Motions for Recommended Summary Final Order. The motions were heard by telephone conference on June 21, 1996.

APPEARANCES

For Petitioner: Steve J. Longariello, Pro Se

9999 Summerbreeze Drive

Apartment Number 422

Sunrise, Florida 33322

For Respondent: Michael W. Casey, III, Esquire

Richard D. Tuschman, Esquire Muller, Mintz, Kornreich, Caldwell,

Casey, Crosland and Bramnick, P.A. First Union Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2338

STATEMENT OF THE ISSUES

Whether Respondent discriminated against Petitioner on the basis of marital status or sex.

PRELIMINARY STATEMENT

On or about July 12, 1993, Petitioner, Steve J. Longariello (Longariello) filed a complaint with the Florida Commission on Human Relations (Commission), alleging that Respondent, Monroe County Public Schools, had discriminated against him based on marital status and sex.

On or about August 8, 1993, Longariello filed a complaint with the U.S. Equal Employment Opportunity Commission against Respondents alleging discrimination based on sex and marital status. The EEOC investigated the claims. On May 23, 1995, the EEOC issued a Letter of Determination, stating that based on the EEOC investigation no evidence was found to support charges of discrimination based on either sex or marital status.

On August 4, 1995, Longariello wrote to the Commission and requested an administrative hearing on his complaint. On November 1, 1995, in accordance with Section 760.11(8), Florida Statutes, the Commission forwarded Longariello's request for an administrative hearing to the Division of Administrative Hearings.

The final hearing was scheduled for December 12, 1995. On December 7, 1995, Longariello filed a Motion for Continuance. The motion was granted, and the final hearing was rescheduled for February 1, 1996. On January 16, 1996, Longariello filed a Motion to Reinclude Sex Claim and Respondents filed a Motion for Recommended Summary Final Order and a Motion to Continue. Longariello's motion and the motion for a continuance were granted. The final hearing was rescheduled for March 11, 1996.

On January 26, 1996, Longariello filed a Motion for Summary Final Order. The final hearing was rescheduled for July 16, 1996. A telephonic conference was held on the motions for recommended summary order on June 21, 1996. The final hearing was continued pending the issuance of an order on the motions for recommended summary order.

FINDINGS OF FACT

1. In August, 1992, two special learning disabilities (SLD) teaching positions were available at Key Largo Elementary School. Petitioner, Steve J. Longariello (Longariello), a single male, applied for a SLD position with the Monroe County School Board. At the time he applied, Longariello was certified to teach a SLD class.

   
   

2. In addition to Longariello, twelve other candidates, including five men, applied for the two available SLD teaching positions at Key Largo Elementary School.

   
   

3. On August 7, 1992, Longariello interviewed for a SLD position at Key Largo Elementary School. The interview was conducted by the principal of the school, Frances McCormick-St. James, and Annette Hall. At the time of the interview Ms. McCormick-St. James was unmarried.

   
   

4. The interview lasted approximately 20 to 25 minutes. No questions were asked concerning Longariello's marital status, and Longariello did not volunteer any information concerning his marital status. The application did not indicate Longariello's marital status. Longariello has no information available to him to make him believe that either Ms. McCormick-St. James or Ms. Hall was aware of his marital status at the time of the interview. No evidence has been presented to show that either Ms. McCormick-St. James or Ms. Hall knew that Longariello was single.

   
   

5. Longariello recalls that during the interview that Ms. McCormick-St. James had two statues on her desk with comments concerning men on the statues. He does not recall what the comments were or what the statues looked like.

   
   

6. Neither Ms. Hall nor Ms. McCormick-St. James asked him any questions which he considered offensive based on gender.

   
   

7. A couple of days after the interview, Longariello called the school and was told that the position had been filled. The position was filled by a married female, Katherine Walker. The parties have stipulated that Ms. Walker was as qualified as Longariello.

8. Gregory Kickasola, a single male, submitted an application dated September 4, 1992 to Key Largo Elementary School. He was hired for one of the SLD teaching positions for which Longariello applied.

   
   

9. During the 1992-1993 school year, Longariello called the Monroe County School Board to see if any positions were available. He considered his telephoning to be equivalent to applying for whatever positions were available at the time.

   
   

10. In November, 1993, Longariello was offered a teaching position by the Monroe County School Board at Marathon High School. It was a seven-month position. Longariello declined the position because he felt that it would cost him too much money to take the position and not be assured of being rehired the following year. There were no guarantees for a rehire for the next year for any position for which Longariello could have applied.

    
    

11. Longariello did not renew his teaching certificate with the State of Florida in October, 1993, and presently does not have a teaching certificate.

    
    

12. For the 1991-1992 school year, Monroe County School Board hired 30 single teachers and 33 married teachers. Of the single teachers, nine were male. Of the married teachers, 5 were male. During the same school year, six single teachers and five married teachers were hired at Key Largo Elementary. Two of the single teachers were male and two of the married teachers were male.

    
    

13. For the 1992-1993 school year, Monroe County School Board hired 45 single teachers and 55 married teachers. Fourteen of the single teachers were male and nine of the married teachers were male. During the same school year, six single teachers and twelve married teachers were hired at Key Largo Elementary. One of the single teachers was male and one of the married teachers was male.

    
    

14. For the 1993-1994 school year, Monroe County School Board hired 55 single teachers and 49 married teachers. Twenty-five of the single teachers were male and 7 of the married teachers were male. During the same school year,

    8 single teachers and 6 married teachers were hired at Key Largo Elementary.

    Six of the single teachers were male and none of the married teachers were male.

    
    

15. At the beginning of the 92-93 school year, the total number of instructional staff in Florida public schools consisted of 92,402 females and 26,467 males. Thus, 22.27 percent of the total instructional staff were male.

    
    

16. At the beginning of the 93-94 school year, the total number of instructional staff in Florida public schools (excluding Monroe County) 1/ consisted of 96,010 females and 27,512 males. Thus, 22.27 percent of the total instructional staff, excluding Monroe County, were male.

    
    

17. At the beginning of the 94-95 school year, the total number of instructional staff in Florida public schools consisted of 100,346 females and 28,883 males. Thus, 22.35 percent of the total instructional staff were male.

    
    

18. On July 8, 1993, Longariello filed a complaint with the Florida Commission on Human Relations, alleging that Respondent had discriminated against him on the basis of sex and marital status.

19. On August 8, 1993, Longariello filed complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging Respondent discriminated against him based on sex and marital status. On May 23, 1995, the EEOC issued a Letter of Determination, stating that the investigation failed to reveal evidence which would support a case of discrimination based either on sex or marital status. Longariello was advised that he could file suit against the Respondent in Federal District Court within 90 days of the receipt of the Letter of Determination.

    
    

20. On August 4, 1995, Longariello wrote to the Commission and requested an administrative hearing on his complaint. In his letter to the Commission, Longariello stated:

    
    

    To date, I have not received a registered letter that would indicate a determination has been made. From what I understand of Title XLIV, Civil Rights, Chapter 760, I can proceed in one of two ways: (1) Bring Civil Action, or (2) Request an Administrative Hearing under Section 120.57.

    * * *

    Because a EEOC investigation has found no violation of T. VII, the main focus of this

    hearing should be MARITAL STATUS DISCRIMINATION. This is because marital status is not a protected class under T.

    VII. If I decide to proceed with my sex discrimination claims in Federal District Court, it may not be necessary to pursue sex disc. at the State level.

    
    

21. On August 17, 1995, Longariello filed a civil action in the United States District Court for the Southern District of Florida against Respondents alleging sex discrimination based on the same facts which are the subject of this administrative proceeding. Steve J. Longariello v. School Board of Monroe County, Florida, Monroe County Public Schools, Case No. 95-10055.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

23. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice to:

    
    

    (1). . . 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 individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

24. Sections 760.11(4) and (8), Florida Statutes, provide:

    1. In the event that the commission determines that there is reasonable cause to believe that discriminatory practice has occurred in violation of the Florida Civil Rights 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 section is the exclusive procedure available to the aggrieved person pursuant to this act.

          * * *

          (8) In the event that the commission fails to conciliate or 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 determined that there was reasonable cause.

          
          

          In accordance with the statutory provisions above, if Petitioner elects to file suit in civil court, the civil action is his exclusive remedy.

          
          

25. Longariello elected to file a civil action in federal court against Respondents on his claim for sex discrimination. Having elected to file a civil action, Longariello's exclusive remedy for his claim of sex discrimination is with the federal court and not in this proceeding.

    
    

26. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000, et seq., (Title VII). School Board of Leon County v. Hargis, 400 So.2d 103, 108 n. 2 (Fla. 1st DCA 1981). As such federal precedent construing the similar provisions in Title VII should be accorded great deference. Pasco County School Board v. Florida Public Employee's Relation Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1979).

    
    

27. The United States Supreme Court set forth that procedure essential for establishing claims of discrimination in McDonnell Douglas Corp. v. Green, 411

    U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668(1973) and clarified the burden of proof in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). Pursuant to the Burdine 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.

    
    

28. Longariello has failed to establish a prima facie case of discrimination based on marital status. Longariello has not established that either Ms. McCormick-St. James or Ms. Hall knew that he was single when he applied for the job and was interviewed.

    
    

29. Longariello has failed to establish that Respondent has any knowledge of his marital status at any time material to this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Longariello's claims

for discrimination based on sex and marital status against Monroe County Public Schools, Florida.

DONE AND ENTERED this 23rd day of January, 1997, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1997.

ENDNOTE

1/ The statistics for the fall of 1993 compiled by the State of Florida, Department of Education were based on a survey which did not include data from Monroe County.

COPIES FURNISHED:

Michael W. Casey, III, Esquire Richard D. Tuschman, Esquire First Union Financial Center

200 South Biscayne Boulevard, Suite 3600 Miami, Florida 33131-2338

Steve J. Longariello

9999 Summerbreeze Drive, Apartment 422

Sunrise, Florida 33322

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commission

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 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.

Docket for Case No: 95-005317

Orders for Case No: 95-005317