STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK CATALDO,

Petitioner,

vs.

ST. JAMES EPISCOPAL SCHOOL,

Respondent.

)

)

)

)

) Case No. 03-4674

)

)

)

)

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on February 18, 2004, in Deland, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jack Cataldo, pro se

417 Nautilus Avenue

Daytona Beach, Florida 32118

For Respondent: Thomas J. Leek, Esquire

Cobb & Cole

Post Office Box 2491

Daytona Beach, Florida 32115-2491 STATEMENT OF THE ISSUE

This issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner in violation of Section 760.10, Florida Statutes (2001).

PRELIMINARY STATEMENT

On September 18, 2003, Petitioner Jack Cataldo (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent

St. James Episcopal School (Respondent) had discriminated against Petitioner based on his sex, religion, and marital status by terminating his employment.

On November 4, 2003, FCHR issued a Notice of Determination: No Cause. That same day, FCHR issued a Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred.

On December 4, 2003, Petitioner filed a Petition for Relief. FCHR referred the petition to the Division of Administrative Hearings on December 11, 2003.

A Notice of Hearing dated December 18, 2003, scheduled the hearing for February 16, 2004. An Amended Notice of Hearing dated January 9, 2004, rescheduled the hearing for February 18, 2004.

On January 28, 2004, Respondent filed a Motion for Summary Judgment. The motion stated that Respondent is a religious educational institution, which is exempt from claim of religious discrimination pursuant to 42 U.S.C. Sections 2000e-1(a) and 2000e-2(e)(2).

On February 4, 2004, Petitioner filed a response in opposition to Respondent's Motion for Summary Judgment. The undersigned issued an Order dated February 6, 2004, reserving ruling on the motion, pending oral argument during the hearing.

On February 5, 2004, Petitioner filed a letter seeking an order compelling Respondent to comply with Petitioner's discovery request. On February 6, 2004, the undersigned conducted a conference by telephone to resolve the discovery issues.

When the hearing commenced, the undersigned heard oral argument on Respondent's Motion for Summary Judgment.

Construing the motion as a Motion to Dismiss, the undersigned dismissed Petitioner's allegations of religious discrimination, leaving Petitioner's claims of discrimination based on sex and marital status pending.

During the hearing, Petitioner testified on his own behalf and presented the testimony of one witness. Petitioner offered three exhibits that were accepted into evidence.

Respondent presented the testimony of one witness. Respondent offered two exhibits that were accepted into evidence.

A copy of the Transcript was filed on March 17, 2004.

Petitioner filed an unopposed Motion for Extension on March 22,

2004, seeking additional time to request a copy of the Transcript and to complete his proposed recommended order.

On March 24, 2004, the undersigned issued an Order Granting Motion for Extension. The Order gave the parties an opportunity to file proposed orders on or before April 15, 2004.

On April 14, 2004, Petitioner filed a Proposed Recommended Order. That same day, Petitioner filed a second Motion for Extension, seeking additional time to amend his Proposed Recommended Order.

The undersigned issued an Order Granting Extension on April 16, 2004. The Order advised the parties that proposed orders should be filed on or before April 30, 2004.

On April 29, 2004, Petitioner filed an (Addition) To Proposed Recommended Order. Petitioner also filed copies of exhibits that were not admitted into the record as evidence during the hearing. The post-hearing exhibits have not been considered here as record evidence.

As of the date of issuance of this Recommended Order, Respondent has not filed proposed findings of fact and conclusions of law.

Hereinafter, citation shall be made to Florida Statutes (2001) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is a single male. He is the father of one child. At all times material to this proceeding, Petitioner was attempting to resolve child custody issues with the mother of Petitioner's child. Petitioner wanted to have physical custody of his child at least 50 percent of the time.

2. In March 2002, Petitioner was arrested and charged with Battery/Domestic Violence against the his child's mother. In August 2002, the State Attorney's Office in Volusia County, Florida, filed a nolle prosequi in the criminal case against Petitioner.

3. Petitioner applied for a position as a guitar teacher at Respondent's school. The application package included a Release of Information Agreement form and a Florida Department of Law Enforcement (FDLE) Volunteer & Employee Criminal History System (VECHS) Waiver Agreement and Statement form. Respondent directed all prospective employees to sign the forms so that Respondent could request a criminal history background report.

4. The application package also contained fingerprint cards. Respondent used the fingerprint cards to complete criminal history background investigations on new employees. Petitioner never went to the local police station to complete the fingerprint cards.

5. In order to maintain its accreditation, Respondent must comply with the By-Laws/Standards of the Florida Council of Independent Schools (FCIS). § 3.4.4 of the FCIS Accreditation Standards state that "[a]ll newly hired full and part-time employees must submit to a background check."

6. At all times pertinent here, Ms. Dana Tate was Respondent's principal. Ms. Tate also was a single parent.

7. Ms. Tate interviewed and hired Petitioner as a part- time guitar teacher in September 2002. Ms. Tate did not know anything about Petitioner's marital status when she hired him. Ms. Tate was especially pleased to hire Petitioner because the school had a difficult time hiring male teachers.

8. Petitioner began working without signing the criminal history consent/waiver forms. Instead, Petitioner gave Respondent oral consent to check his criminal history background.

9. During the hearing, Petitioner admitted that one of Respondent's secretaries asked him about turning in the fingerprint cards. Petitioner explained to the secretary that he had visitation time with his child during the time that the police station was available to take his fingerprints.

10. Petitioner was a competent music teacher. Respondent has never questioned Petitioner's qualifications to teach

    guitar. However, another teacher was always present with students in Petitioner's classes.

11. On one occasion, Respondent assigned Melonie Donnally to sit in Petitioner's class. Ms. Donnally was in the process of getting a divorce. During the class, Ms. Donnally and Petitioner shared their personal experiences in circuit court regarding custody of their children.

12. Petitioner told Ms. Donnally that he had never married the mother of his child but that he had lived with her for many years. Petitioner also stated that he was trying to get 50 percent physical custody of his child. According to Petitioner, Ms. Donnally was shocked to learn that Petitioner was seeking physical custody of his child. The conversation ended when Petitioner suggested that Ms. Donnally share physical custody of her children with her husband.

13. During the hearing, Ms. Donnally did not remember the details of the above-referenced conversation with Petitioner. However, she admitted that she had to fight for 50/50 shared parental responsibility with her ex-husband. There is no evidence that Ms. Donnally communicated the substance of her conversation with Petitioner to Ms. Tate or anyone else at the school.

14. Acting on Petitioner's oral consent Ms. Tate requested FDLE to provide her with criminal history information on

    Petitioner. Ms. Tate received a report from FDLE on

    
    

    September 27, 2002. The report revealed Petitioner's arrest for battery/domestic violence. Ms. Tate decided to terminate Petitioner's employment based on the arrest report.

15. On September 27, 2002, Ms. Tate confronted Petitioner about his arrest for battery/domestic violence in the school office. Ms. Tate told Petitioner that she was terminating his employment and gave him a final pay check. Petitioner explained that the criminal case against him had been dismissed. Because Ms. Tate was not willing to accept Petitioner's explanation, he became angry, speaking loudly and expressing his frustration with the system.

16. Petitioner's body language became menacing. Because Ms. Tate wanted to end the conversation, she agreed to take a look at letters from Petitioner's girlfriend regarding the incident leading to Petitioner's arrest.

17. Petitioner told Ms. Tate that he had other documents in his car that would support his explanation of the incident with his girlfriend. He left the building to retrieve the documents from his car.

18. Ms. Tate was not comfortable with Petitioner being in the building. When Petitioner returned with his documents,

    Ms. Tate requested that he wait outside until she could copy the documents. Before leaving the premises, Petitioner told

    Ms. Tate that the school would be sorry about terminating his employment because he intended to make it public.

19. Ms. Tate was alarmed about the disturbance that Petitioner had created at the school. She called the police. However, Petitioner left the campus before a police officer responded to Ms. Tate's call.

20. On or about October 2, 2002, Petitioner called

    
    

    Ms. Tate on the telephone. Once again Petitioner was loud and intimidating, asking to speak to Ms. Tate's supervisor.

    Petitioner stated that Ms. Tate was an unreasonable woman with too much power. Petitioner also told Ms. Tate that he intended to picket in front of the school because Respondent was discriminating against him. Ms. Tate disconnected the call.

21. After the telephone call a police officer was informed about the disturbing telephone call. The police officer subsequently left Petitioner a voice-mail message.

22. During the hearing, Ms. Tate admitted that she eventually received some letters allegedly written by Petitioner's girlfriend. However, Ms. Tate based her September 27, 2002, decision to discharge Petitioner on the

    criminal history report. His behavior at the school and on the phone subsequent to the receipt of the report confirmed her decision.

23. Despite the discussion between Petitioner and Ms. Donnally or any conversation that Petitioner had with

    Respondent's secretary about child custody, Ms. Tate was unaware that Petitioner was an unmarried father who was seeking physical custody of his child. Ms. Tate did not learn these facts until after she confronted Petitioner about his criminal history background report.

24. Petitioner testified that Ms. Tate expressed her concerns about Petitioner's lifestyle problems in addition to his criminal history background report. Petitioner 's testimony in this regard is not credible.

25. It is undisputed that Respondent replaced Petitioner with another male guitar teacher. There is no record evidence about the replacement teacher's marital status. There is no competent evidence that Respondent knowingly allowed any other person with a criminal arrest record, male or female, married or unmarried, to work at the school.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes.

27. It is an unlawful employment practice for an employer to discriminate against any individual with respect to

    compensation, terms, conditions, or privileges of employment, because of such individual’s, sex (gender) or marital status. See § 760.10(1), Fla. Stat. (2003).

28. The provisions of Chapter 760, Florida Statutes (2003), are analogous to those of the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. Section 621, et seq. and the Americans With Disabilities Act (the “ADA”), 42 U.S.C. Section 12101, et seq. Cases interpreting the ADEA and the ADA are therefore applicable to Chapter 760, Florida Statutes

    (2003). See Razner v. Wellington Regional Medical Ctr., Inc., 837 So. 2d 437, 440 (Fla. 4th DCA 2002).

29. A petitioner in a discrimination case has the initial burden of proving a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

30. If the petitioner proves a prima facie case, the burden shifts to the respondent to proffer a legitimate

    non-discriminatory reason for the actions it took. See Texas

    
    

    Department of Community Affairs v. Burdine, 450 U.S. 248, 101

    
    

    S. Ct. 1089, 67 L. Ed.2d 207 (1981). The respondent's burden is one of production, not persuasion, as it always remains petitioner's burden to persuade the fact finder that the proffered reason is a pretext and that the respondent

    intentionally discriminated against the petitioner. See Burdine, 450 U.S. at 252-256.

31. To prove a prima facie case of sex/gender discrimination, Petitioner must prove the following: (a) he belongs to a protected class (male); (b) his job performance was sufficient to meet Respondent's legitimate expectation; (c) he suffered an adverse employment action, i.e. termination of employment; and (d) a similarly situated employee outside the protected class (female) was not discharged. See Andrada v. Morse Operations, Inc., 946 F. Supp. 979, 983 (M.D. Fla. 1996); and Sharon J. Perkins v. Tallahassee Community College, Board of Trustees, Case No. 01-3302 (DOAH, March 26, 2002).

32. To prove a prima facie case of discrimination based on marital status, Petitioner must prove the following: (a) he is a member of a protected class (a father who was never married);

    1. he performed his duties in a satisfactory manner;

       
       

    2. Respondent terminated his employment despite his satisfactory performance; and (d) a similarly situated employee outside the protected class (married or divorced parent) was not discharged. See McDonnell Douglas Corp. v. Green, 411 U.S.

    792 (1973); Texas Department of Community Affairs v. Burdine,

    
    

    450 U.S. 248 (1981); and Owens v. Upper Pinellas Association for

    
    

    Retarded Citizens, 8 FALR 438 (1985).

33. Petitioner did not prove the last element of either of the above-referenced prima facie cases. He did not show that Ms. Donnally was similarly situated because she did not have an arrest record. Additionally, there is no competent evidence regarding the replacement teacher's marital status, parental responsibilities (if any) or criminal history background.

34. To the extent that Petitioner proved his prima facie case, Respondent presented a legitimate, nondiscriminatory reason for discharging Petitioner based on his arrest for domestic violence. Even though Petitioner was not convicted, his conduct in the office and on the phone confirmed Ms. Tate's decision to discharge Petitioner.

35. There is no persuasive evidence that Respondent's mistaken/erroneous reason for firing Petitioner, was a pretext for discrimination. Sempier v. Johnson and Higgins, 45 F.3d 724, 731 (3rd Cir. 1995)(Pretext is not demonstrated by showing simply that the employer was mistaken). In fact, the greater weight of the evidence indicates that Respondent fired Petitioner solely because he had been arrested for domestic violence regardless of the circumstances surrounding the arrest.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 4th day of June, 2004.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jack Cataldo

417 Nautilus Avenue

Daytona Beach, Florida 32118

Thomas J. Leek, Esquire Cobb & Cole

Post Office Box 2491

Daytona Beach, Florida 32115-2491

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.

Docket for Case No: 03-004674

Orders for Case No: 03-004674