STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE J. LONGARIELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5318

) LEARNING CENTERS, INC., d/b/a ) LIGHTHOUSE POINT ACADEMY, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 23, 1996, Learning Centers, Inc., formerly d/b/a Lighthouse Point Academy (Respondent) filed a renewed motion for recommended summary final order, with supporting documents including affidavits, a deposition excerpt, pleadings, and a federal court decision. Petitioner filed a response to the motion.

APPEARANCES

For Petitioner: Steve J. Longariello, Pro Se

9999 Summerbreeze Drive, Apartment 422

Sunrise, Florida 33322

For Respondent: Michael G. Whelan, Esquire

David M. DeMaio, Esquire Whelan & DeMaio, P. A.

1401 Brickell Avenue, Suite 500

Miami, Florida 33131 PRELIMINARY STATEMENT

On or about July 12, 1993, Petitioner filed a complaint, including attachments, with the Florida Commission on Human Relations (FCHR) alleging that Respondent discriminated against him on the basis of sex and marital status in violation of the Florida Human Rights Act. On August 9, 1993, Petitioner filed a complaint with the U. S. Equal Employment Opportunity Commission (EEOC) alleging that Respondent discriminated against him on the basis of sex and marital status in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII).

By Letter of Determination dated May 23, 1995, the EEOC notified Petitioner that it had investigated his claim, and that it had determined that Respondent had not considered his sex (male) or marital status (single) in reaching its decision not to hire him and no violation of Title VII had occurred, and that it was, therefore, dismissing Petitioner's complaint. Further, the EEOC notified Petitioner that he may only pursue the matter by filing suit in federal district court within 90 days. On August 14, 1995, Petitioner filed suit against Respondent in federal district court alleging discrimination on the basis of sex in violation of Title VII.

On or about August 4, 1995, Petitioner requested a formal hearing from the FCHR. By letter dated September 27, 1995, the FCHR requested Petitioner to provide it with a copy of the EEOC determination. On October 20, 1995, the FCHR received from Petitioner a copy of the EEOC determination and of the complaint, with attachments, which had been filed with the FCHR on July 12, 1993.

By notice filed November 1, 1995, this matter was referred to the Division of Administrative Hearings by the FCHR. The formal hearing in this matter is scheduled for June 18 - 19, 1996. The parties have engaged in discovery in the case at hand.

This recommended order is entered pursuant to Rule 60Q-2.016(3), Florida Administrative Code, which provides that whenever ruling on a motion is dispositive of a matter in which the Hearing Officer has recommended agency action authority, the ruling shall be incorporated in a recommended order.

Even though Respondent's renewed motion for recommended summary final order is not a motion for summary final order, it is appropriate to look to Rule 60Q- 2.030, Florida Administrative Code, for guidance. The said Rule provides that a motion for summary final order is appropriate "whenever there is no genuine issue as to any material fact." Consequently, in the instant case, there must be, and there is, an absence of a genuine issue of material fact.

FINDINGS OF FACT

1. On or about July 12, 1993, Petitioner filed a complaint, including attachments, with the Florida Commission on Human Relations (FCHR) alleging that Respondent had discriminated against him on the basis of sex/gender (male) and marital status (single) in violation of the Florida Human Rights Act.

2. In his complaint, Petitioner states in pertinent part: I am writing to file a FORMAL SEX/MARTIAL

   STATUS DISCRIMINATION COMPLAINT against: 7)

   Lighthouse Academy at 3701 NE 22nd Avenue, Lighthouse Point, FL 33064.

   * * *

   6) Lighthouse Point Academy - Many times throughout the year I contacted +/or applied for positions at this private school for special education children. Because of their lack of acknowledgement, I question whether or not their hiring practices are discrim- inating.

   
   

3. On August 9, 1993, Petitioner filed the same complaint with the U. S. Equal Employment Opportunity Commission (EEOC) but alleging that the discrimination was in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII).

   
   

4. On May 23, 1995, the EEOC issued its determination that Respondent had not considered Petitioner's gender or marital status and that no violation of Title VII had been committed. Furthermore, the EEOC notified Petitioner in its determination that he had 90 days in which to file a civil suit in federal district court and that the suit was his exclusive remedy.

5. On or about August 5, 1995, Petitioner requested a formal hearing from the FCHR which had not issued a determination on the complaint filed with it. Petitioner requested a hearing on his claim of discrimination based on gender/sex (male) and marital status (single).

   
   

6. On August 14, 1995, Petitioner filed suit in federal district court alleging that Respondent discriminated against him on the basis of sex in violation of Title VII.

   
   

7. On April 30, 1996, the federal district court issued a final judgment in Respondent's favor, resulting from cross-motions for summary final judgment. 1/ The court determined that, based upon the motions, the record, and the status of the case, and viewing the facts in a light most favorable to Petitioner, Petitioner had failed to raise a genuine issue of fact that he was intentionally discriminated against by Respondent on the basis of sex.

   
   

8. In the instant case, at no time material hereto did Respondent make inquiry as to Petitioner's marital status.

   
   

9. In the case at hand, at no time material hereto did Petitioner inform Respondent as to his marital status.

   
   

10. In the instant case, at no time material hereto did Respondent have any knowledge of Petitioner's marital status.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 760.11, Florida Statutes, provides in pertinent part:

    
    

    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 Act of 1992, the aggrieved person may either:

       1. Bring a civil action against the person named in the complaint in any court of compe- tent 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 admin- istrative hearing under this subsection 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.

12. Moreover, the EEOC notified Petitioner in its determination that bringing civil suit in a federal district court was the exclusive remedy available to Petitioner on his claim of discrimination.

    
    

13. Petitioner chose to file suit in federal district court on his claim of discrimination based on gender/sex (male). This suit was his exclusive remedy. The federal court decided by summary judgment against Petitioner and for Respondent that Respondent had not discriminated against Petitioner on the basis of gender/sex. Petitioner is foreclosed from relitigating his claim of gender/sex discrimination in this administrative proceeding.

    
    

14. The ultimate burden of persuasion that the Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The initial burden is upon Petitioner to establish a prima facie case of discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1973).

    
    

15. Petitioner has failed to establish a prima facie case of discrimination based on marital status (single). 2/ There is no evidence to demonstrate that, at any time material to this case, Respondent had any knowledge of Petitioner's marital status.

    
    

16. All pending motions are moot.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the petition of Steve J. Longariello be DISMISSED.

DONE AND ENTERED this 13th day of June, 1996, in Tallahassee, Leon County, Florida.

ERROL H. POWELL, 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 13th day of June, 1996.

ENDNOTES

1/ Steve J. Longariello v. Learning Centers, Inc., Case No. 95-6767-CIV (S.D. Fla. April 30, 1996). In that case, Petitioner was the plaintiff and Respondent was the defendant.

2/ No issue has been raised as to the timeliness of Petitioner's marital status claim in this administrative proceeding.

COPIES FURNISHED:

Mr. Steve J. Longariello 9999 Summerbreeze Drive

Apartment 422

Sunrise, Florida 33322

Michael G. Whelan, Esquire

1401 Brickell Avenue, Suite 500

Miami, Florida 33131

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

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: 95-005318

Orders for Case No: 95-005318