95-005320 Steve J. Longariello vs. Department Of Education Status: Closed Recommended Order on Wednesday, August 14, 1996.

Summary: Teacher who alleged that he was not referred for employment because he was a single male failed to prove referrals not made; no sanctions imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE J. LONGARIELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5320

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in

this case in Fort Lauderdale, Florida on June 4 and 5,

1996, before Stuart M. Lerner, a duly designated Hearing

Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steve J. Longariello, pro se

9999 Summerbreeze Drive, Number 422

Sunrise, Florida 33322

For Respondent: Charles S. Ruberg, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

STATEMENT OF THE ISSUE

1. Whether the Department of Education (Department),

through its Office of Teacher Recruitment and Retention,

committed an unlawful employment practice in violation of

Section 760.10(2), Florida Statutes, as alleged by

Petitioner, by failing or refusing to refer Petitioner for

employment because of his sex (male) and/or marital status

(single)?

2. If so, what affirmative relief should Petitioner

be provided?

PRELIMINARY STATEMENT

On or about July 8, 1993, Petitioner filed a unlawful

employment practice complaint with the Florida Commission

on Human Relations (Commission) alleging that the

Department had discriminated against him because of his sex

and marital status. On November 1, 1995, at Petitioner's

request and without any reasonable cause determination

having been made, the Commission referred the matter to the

Division of Administrative Hearings (Division) for the

assignment of a Division hearing officer to conduct a

formal Section 120.57 hearing.

On November 17, 1995, the Department filed with the

Division a Motion to Deny the Request for Hearing that

Petitioner had filed with the Commission. Petitioner, on

November 30, 1995, filed a response to the Department's

motion. The Hearing Officer treated Petitioner's response

as an amendment of his unlawful employment practice

complaint (filed pursuant to Rule 60Y-5.001(7), Florida

Administrative Code, which allows a complainant to amend

his complaint "any time before service of a Notice of

Determination" "to cure technical defects, or omissions, or

to clarify and amplify allegations made therein.") As so

amended, Petitioner's complaint alleged that the

Department, through its Officer of Teacher Recruitment and

Retention (OTRR), refused to refer Petitioner for

employment as a teacher because of his sex and marital

status.

The formal hearing on Petitioner's amended complaint

was held on June 4 and 5, 1996. During the evidentiary

portion of the hearing, a total of four witnesses

testified: Petitioner; Sherry Thomas, OTRR's program

director; Jerry Moore, the Department's Director of Labor

Relations; and Amy Sykes, a former secretary specialist

with OTRR. In addition to the testimony of these four

witnesses, a total of 21 exhibits (Petitioners' Exhibits 1

through 19 and Respondent's Exhibits 1 and 2) were offered

and received into evidence.

At the conclusion of the evidentiary portion of the

hearing, the Hearing Officer, on the record, advised the

parties of their right to file proposed recommended orders

and established a deadline (twenty days after the Hearing

Officer's receipt of the transcript of the hearing) for the

filing of these post-hearing submittals. The Hearing

Officer received the transcript of the hearing on July 5,

1996. On July 25, 1996, the Department timely filed a

proposed recommended order containing, among other things,

(what are labelled as) "findings of fact." The Hearing

Officer has carefully considered the Department's proposed

recommended order. The "findings of fact" set forth

therein are specifically addressed in the Appendix to this

Recommended Order. To date, Petitioner has not filed a

proposed recommended order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the

record as a whole, the following Findings of Fact are made:

1. The Department is a state agency.

2. Petitioner is a male who is now, and was at all

times material to the instant case, unmarried.

3. He is a teacher by profession.

4. Since moving to Florida in the summer of 1992,

however, he has been unable to obtain a full-time teaching

position.

5. Petitioner received a Bachelor of Arts degree from

the State University of New York at New Paltz in December

of 1984 and a Master of Arts degree (in "teaching/special

education") from Manhattanville College in May of 1989.

6. Prior to moving to Florida in the summer of 1992,

Petitioner was employed as: a music instructor at the

Kingston Conservatory of Music in Kingston, New York (from

May of 1984 to September of 1985); a business instructor

at the Westchester Business Institute in White Plains, New

York (from September of 1985 to June of 1986); a

substitute teacher in Pelham, Eastchester, Tuckahoe and

Bronxville, New York (from September of 1986 to June of

1988); a music and vocational education teacher of 11 to

15 year old special education students at a public school

in New York City (from September of 1989 to March of 1990);

a classroom teacher of fourth grade special education

students at a public school in the Bronx, New York (from

March of 1990 to June of 1990); a classroom teacher of

first through third grade special education students at a

public school in Yonkers, New York (from September of 1990

to June of 1991); and an integration specialist involved

in the provision of educational services to special

education students attending public school in and around

Jacksonville, Vermont (from February of 1992 to June of

1992).

7. On October 15, 1992, the Department's Bureau of

Teacher Certification issued Petitioner a Statement of

Eligibility, which provided, in pertinent part, as follows:

THIS IS YOUR STATEMENT OF ACADEMIC ELIGIBILITY

FOR SPECIFIC LEARNING DISABILITIES (GR, K-12),

PER REQUEST OF 10-9-92, VALID UNTIL OCTOBER 15,

1994.

The State of Florida issues two types of certi-

ficates for full time teaching; a nonrenewable

Temporary Certificate valid for two years and a

Professional Certificate valid for five years.

The attached Form CF-106a, FLORIDA TEACHER

CERTIFICATION REQUIREMENTS, outlines the criteria

for the issuance of these certificates. The

Temporary Certificate is issued to allow time

to complete requirements for the Professional

Certificate.

Your application for teacher certification has

been received and evaluated. Based upon current

requirements, you will be eligible for a two-

year nonrenewable Temporary Certificate valid

for two consecutive school fiscal years covering

SPECIFIC LEARNING DISABILITIES (GRADES K-12)

when:

You obtain employment with a Florida public,

state supported, or nonpublic school which has

an approved Florida Professional Orientation

Program and your employer requests issuance of

the certificate.

Your employer submits a finger print card which

has been processed by the Florida Department of

Law Enforcement and the Federal Bureau of

Investigation. . .

Please note that if you are not employed and

the issuance of your certificate is not requested

by October 14, 1994, your Statement of

Eligibility

will expire. . . .

8. At all times material to the instant case, there

was, on a statewide basis in Florida, as determined by the

Department, a "critical" shortage of teachers qualified to

teach students with specific learning disabilities (SLD).

(There were, however, certain school districts, including

the Broward, Palm Beach, Collier and Monroe County school

districts, that, because of the relatively high salaries

they offered or their attractive geographic location, or

for other related reasons, did not have a "critical"

shortage of qualified SLD teachers.)

9. The Department's Bureau of Teacher Certification

suggested to Petitioner that he take advantage of the

services offered by OTRR in his efforts to obtain a

teaching position in Florida.

10. OTRR assists teachers seeking employment in

Florida by, among other things, providing them with an

"information packet" containing: general information

concerning Florida's public school system, its students and

teachers; a map showing the school districts in the state;

the names, addresses and telephone numbers of persons to

contact regarding employment opportunities in each school

district; other useful telephone numbers; salary

information, by district; information concerning Florida's

teacher certification process; and information about the

Great Florida Teach-In, an annual event (held in late

June/early July 1/ ) organized by OTRR at which

recruiters from school districts around the state have the

opportunity to meet and interview with teachers interested

in obtaining teaching positions in their districts. 2/

11. In addition to this "information packet," OTRR

also sends to interested teachers two forms which the

teachers are instructed to fill out, sign and return to

OTRR: an application to register to participate in the

next Great Florida Teach-In; and a Teacher Applicant

Referral form.

12. On the Great Florida Teach-In registration

application form, applicants are asked to provide the

following information: the date of the application; their

name, address and telephone number; the date they will be

able to commence work; the position(s) sought; whether

they hold a valid Florida teaching certificate- if so, in

what subject area(s), and, if not, whether they have

applied for certification and the subject area(s) in which

they expect to receive certification; whether they have

taken and passed the Florida Teacher Certification

Examination and, if so, which part(s); whether they hold a

teaching certificate from another state and, if so, in what

subject area(s); whether they have ever had a teaching

certificate or license revoked, suspended, or placed on

probation and, if so, on what ground(s); whether they have

ever been the subject of any disciplinary action and, if

so, the nature and date of such action and why it was

taken; whether they have ever been dismissed, asked to

resign or not had a contract renewed and, if so, the

reason(s) therefor; the total number of days they have

been absent from school or work in the last three years and

the reason(s) for these absences; and all

colleges/universities from which they have received

degrees, when they attended these institutions, when they

graduated, the kind of degrees they received, the subjects

they studied (major and minor), and whether their grade

point average was higher than 2.5.

13. On the Teacher Applicant Referral form,

applicants are asked to provide the following information:

the date of the application; their name, address,

telephone number and social security number; the date they

will be able to commence work; the position(s) sought;

whether they hold a valid Florida teaching certificate- if

so, in what subject area(s), and, if not, whether they have

applied for certification and the subject area(s) in which

they expect to receive certification; whether they hold a

teaching certificate from another state and, if so, in what

subject area(s); whether they are a U.S. citizen and, if

not, whether they have a resident alien work permit; and

the institutions from which they have received degrees, the

kind of degrees they have received, and their major course

of study at these institutions.

14. On neither the Great Florida Teach-In

registration application form nor the Teacher Applicant

Referral form are applicants asked to provide information

regarding their sex or marital status. (It may be

possible, however, to ascertain an applicant's sex from the

name of the applicant appearing on the form.)

15. Following the suggestion of the Department's

Bureau of Teacher Certification, Petitioner contacted OTRR.

He thereafter received from OTRR an "information packet,"

as well as a registration application form for the 1993

Great Florida Teach-In (scheduled to be held June 27

through July 1, 1993) and a Teacher Applicant Referral

form.

16. Petitioner filled out and signed the Teacher

Applicant Referral form on or about November 10, 1992, and

returned the completed and signed form to OTRR. On the

form, Petitioner indicated, among other things, that he was

interested in "Special Education Teacher Type Positions-

SLD" and that he was "Florida certified [in] Specific

Learning Disabilities."

17. In view of Petitioner's first and middle names

(Steve Joseph), both of which he included on the form, it

should have been obvious to anyone reviewing the form that

it was submitted by a male. Petitioner, however, provided

no information on the form suggesting that he was a single

male.

18. Petitioner kept a copy of the original completed

and signed Teacher Applicant Referral form he submitted to

OTRR. On or about October 2, 1993, he signed the copy and

sent it to OTRR.

19. At all times material to the instant case, it was

the routine practice of OTRR to take the following action

in connection with completed and signed Teacher Applicant

Referral forms it received: Information on the forms was

inputted and stored in OTRR's computer system. The forms

(and copies thereof made by OTRR) were then filed in

alphabetical order and by subject area. They remained on

file for approximately a year, after which they were

purged. When a school district contacted OTRR seeking help

in its efforts to fill a particular teaching position, 3/

OTRR would pull the forms of all those applicants who,

based upon the subject area of the position sought to be

filled and any other criteria specified by the school

district, appeared (from the information contained on their

forms) to meet the needs of the school district. Copies of

these forms, along with a computer printout containing the

names, addresses, telephone numbers, certification status

and citizenship of these applicants, were sent to the

school district. On occasion, information concerning these

applicants was provided to the school district over the

telephone. At no time did OTRR fail to refer an applicant

to a school district because the applicant was a male or

was single. 4/

20. OTRR did not deviate from its routine practice in

its handling and treatment of either the original Teacher

Applicant Referral form that Petitioner submitted on or

about November 10, 1992, or the re-signed copy of the

original he submitted on or about October 2, 1993.

(Petitioner, however, has not been contacted by any school

district purporting to have received his name from OTRR.)

5/

21. Petitioner also filled out and signed the

registration application form for the 1993 Great Florida

Teach-In and sent it to OTRR, 6/ but he did not do so in

a timely manner. (The application was dated June 27, 1993,

the date the 1993 Great Florida Teach-In began.)

Petitioner did not attend the 1993 Great Florida Teach-In,

nor did he attend the event in any subsequent year.

22. Petitioner has applied for teaching positions at

public schools in Broward County (where he has resided

since he moved to Florida in the summer of 1992), Dade

County, Palm Beach County, Collier County, Monroe County

and one other Florida county (located in the northern part

of the state). He also has applied for teaching positions

at at least one Florida private school, Lighthouse Point

Academy, which is located in Broward County.

Notwithstanding these efforts on his part, Petitioner has

not received any offers of full-time, permanent employment

and he remains unemployed. 7/

23. Petitioner has not taken any part of the Florida

Teacher Certification Examination.

24. The Statement of Eligibility that the

Department's Bureau of Teacher Certification issued

Petitioner on October 15, 1992, expired on October 15,

1994.

25. The Department did not in any way discriminate

against Petitioner on the basis of his sex or marital

status.

CONCLUSIONS OF LAW

26. The Florida Civil Rights Act of 1992 (hereinafter

referred to as the "Act") is codified in Sections 760.01

through 760.11 and 509.092, Florida Statutes. Its

provisions apply "to conduct occurring on or after October

1, 1992." Chapter 92-177, Section 13, Laws of Fla.

27. Among other things, the Act makes certain acts

"unlawful employment practices" and gives the Commission

the authority, if it finds, following a Section 120.57

administrative hearing, that such an "unlawful employment

practice" has occurred, to issue an order "prohibiting the

practice and providing affirmative relief from the effects

of the practice, including back pay." Section 760.10, Fla.

Stat.

28. Among the "unlawful employment practices"

prohibited by the Act is that described in Section

760.10(2), Florida Statutes, which provides as follows:

It is an unlawful employment practice for an

employment agency to fail or refuse to refer

for employment, or otherwise to discriminate

against, any individual because of race, color,

religion, sex, national origin, age, handicap,

or marital status or to classify or refer for

employment any individual on the basis of race,

color, religion, sex, national origin, age,

handicap, or marital status.

29. An "employment agency," as that term is used in

Section 760.10(2), Florida Statutes, is "any person

regularly undertaking, with or without compensation, to

procure employees for an employer or to procure for

employees opportunities to work for an employer, and

includes an agent of such person." Section 760.02(8), Fla.

Stat.

30. A "person," as that term is used in the Act

"includes . . . the state; or any governmental entity or

agency." Section 760.02(6), Fla. Stat.

31. As an agency of the state, the Department is a

"person," within the meaning of Section 760.02(6), Florida

Statutes. Section 20.15, Fla. Stat.

32. Among the Department's duties and

responsibilities are those prescribed in Section 231.625,

Florida Statutes, which is entitled "Teacher shortage

recruitment and referral" and provides as follows:

(1) The Department of Education, through

the Center for Career Development Services,

in cooperation with teacher organizations and

district personnel directors, shall expand

its career information system to concentrate

on the recruitment of qualified teachers in

teacher shortage areas.

(2) The Department of Education, through

the Center for Career Development, shall

establish a teacher referral and recruitment

center which shall:

(a) Advertise teacher positions in

targeted states with declining student

enrollments.

(b) Advertise in major newspapers,

national professional publications, and

other professional publications and in

graduate schools of education.

(c) Utilize a nationwide toll-free

number and central post-office box.

(d) Develop standardized resumes for

teacher applicant data.

(e) Conduct periodic communications with

district superintendents and personnel directors

regarding new applicants.

(f) Provide district access to the applicant

database by computer or telephone.

(g) Develop and distribute promotional

materials related to teaching as a career.

(h) Publish and distribute information

pertaining to teacher salaries and benefits

for beginning and continuing teachers.

(i) Publish information related to

alternative certification procedures.

(j) Develop and sponsor the Future

Educator of America clubs throughout the state.

(3) The teacher referral and recruitment

center, in cooperation with teacher organizations

and district personnel directors, shall sponsor

an annual job fair in a central part of the state

to match in-state educators and out-of-state

educators with teaching opportunities in this

state.

33. OTRR is the "teacher referral and recruitment

center" the Department established (in its Division of

Human Resource Development 8/ ) pursuant to the mandate

of subsection (2) of Section 231.625, Florida Statutes.

34. In performing its "teacher referral and

recruitment" functions, OTRR acts as an "employment

agency," within the meaning of Section 760.02(8), Florida

Statutes, subject to the proscriptions of Section

760.10(2), Florida Statutes. If OTRR fails or refuses to

furnish to a school district (requesting OTRR's assistance

in filling a teaching position) the name of and other

information it has on file concerning an educator (who has

provided OTRR with such information for dissemination to

prospective employers) because the educator is a male or is

single, OTRR (and therefore the Department) commits an

unlawful employment practice in violation of Section

760.10(2), Florida Statutes.

35. In the instant case, Petitioner has alleged that

he was the victim of such an unlawful employment practice.

36. A complainant, like Petitioner, who claims to

have been discriminated against by an "employment agency"

based upon his sex and marital status bears the initial

burden of establishing a prima facie case of

discrimination. This burden may be met by the complainant

showing that (1) he enlisted the services of the

"employment agency" and was qualified for a job for which

an employer was seeking referrals from the "employment

agency;" (2) at the time, he was a single male; (3)

despite his qualifications, he was not referred to the

employer by the "employment agency;" and (4) females or

married persons with similar or lesser qualifications were

referred. If the complainant makes such a showing, the

burden shifts to the "employment agency" to state some

legitimate, nondiscriminatory reason for its failure to

have referred the complainant. The reason must be clear,

reasonably specific and worthy of credence. (The

"employment agency," however, need not prove that its

decision was actually motivated by the reason given.) If

the "employment agency" articulates a reason that meets the

foregoing requirements, the burden shifts back to the

complainant to prove that, contrary to the explanation

given by the "employment agency," his sex and marital

status were the real reasons he was not referred by the

"employment agency." See Florida Department of Community

Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991);

Department of Corrections v. Chandler, 582 So.2d 1183 (Fla.

1st DCA 1991).

37. In the instant case, Petitioner did not meet his

initial burden of making a prima facie showing of

discrimination. He failed to prove that OTRR treated him

less favorably than any similarly or lesser qualified

female or married educator who, like Petitioner, (on the

Teacher Applicant Referral form) had expressed an interest

in "Special Education Teacher Type Positions- SLD."

Indeed, Petitioner's proof was insufficient to even

establish that, during the relevant time frame, OTRR failed

to refer him to any school district that had requested

OTRR's assistance in filling "Special Education Teacher

Type Positions- SLD" (much less establish that such a

failure to refer constituted disparate treatment and was

discriminatorily motivated, as alleged in Petitioner's

amended unlawful employment practice complaint.)

38. Given the lack of evidence sufficient to support

a finding that there was such a failure to refer on OTRR's

(and therefore the Department's) part, Petitioner's amended

unlawful employment practice complaint (the cornerstone of

which is the allegation that Petitioner was the recipient

of such unfavorable treatment on OTRR's part) must be

dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and

Conclusions of Law, it is hereby

RECOMMENDED that the Commission enter a final order

dismissing Petitioner's amended unlawful employment

practice complaint on the ground that the evidence is

insufficient to establish that the Department committed the

unlawful employment practice alleged therein.

DONE AND ENTERED in Tallahassee, Leon County, Florida,

this 14th day of August, 1996.

___________________________________

STUART M. LERNER, Hearing

Officer

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-

1550

[phone] SUNCOM 278-9675

Filed with the Clerk of the

Division of Administrative

Hearings

this 14th day of August, 1996.

ENDNOTES

1/ In terms of advertising and filling teaching positions

in Florida's public schools, the busiest months are May,

June and July.

2/ OTRR does not now, nor did it at any time material to

the instant case, maintain a listing of job vacancies

3/ Such contact was typically made by telephone.

4/ Petitioner, however, was led to believe otherwise based

upon comments made to him by Norman MacMillian, a former

employee of the Department's Bureau of Teacher

Certification (who did not testify at the final hearing in

the instant case because Petitioner was unable to locate

him). These comments were made during a conversation in

which Petitioner complained to MacMillian about his

inability to obtain a teaching position in Florida.

5/ OTRR does not, nor did it at any time material to the

instant case, maintain records of requests received by OTRR

from school districts and action taken by OTRR in response

to these requests. Accordingly, no such records were

offered into evidence at the final hearing in this case.

Furthermore, at hearing neither party presented the

testimony of anyone who specifically recalled what

particular action, if any, OTRR took in connection with

either the Teacher Applicant Referral form Petitioner

originally submitted to OTRR or the re-signed copy he

subsequently submitted. The Department, however, did

adduce evidence concerning OTRR's customary practice. Such

evidence was sufficient to establish a presumption, which

Petitioner failed to overcome or negate, that OTRR acted in

conformity with that practice in connection with its

handling and treatment of the materials it received from

Petitioner. See Progressive American Insurance Company v.

Kurtz, 518 So.2d 1339, 1340-41 (Fla. 5th DCA 1987);

Section 90.406, Fla. Stat. ("[e]vidence of the routine

practice of an organization, whether corroborated or not

and regardless of the presence of eyewitnesses, is

admissible to prove that the conduct of the organization on

a particular occasion was in conformity with the routine

practice").

6/ On the form, in response to the question, "Have you

ever been dismissed, asked to resign or had your contract

not renewed?," Petitioner stated as follows: "I have never

had a regular appointed teacher contract. The contracts

were considered regular substitute teacher and expired at

the end of the year."

7/ Petitioner has also filed unlawful employment practice

complaints against Lighthouse Point Academy and the

Broward, Dade, Palm Beach, Collier and Monroe County school

districts alleging that these prospective employers

discriminated against him on the basis of his sex and

marital status.

8/ The Division of Human Resource Development is one of

five divisions within the Department. Section 20.15(2)(a),

Fla. Stat.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific

rulings on the "findings of facts" proposed by the

Department in its proposed recommended order:

1. Accepted as true and incorporated in substance,

although not necessarily repeated verbatim, in this

Recommended Order.

2. First and second sentences: Accepted as true and

incorporated in substance; Third sentence: Rejected as a

finding of fact because it is more in the nature of a

statement of law than a finding of fact.

3-6. Rejected as findings of fact because they are

more in the nature of statements of law than findings of

fact.

7. First, second and third sentences: Accepted as

true and incorporated in substance; Fourth sentence:

Rejected as a finding of fact because it is more in the

nature of legal argument than a finding of fact.

8. To the extent that this proposed finding states

that Petitioner initially submitted a completed and signed

Teacher Applicant Referral form to OTRR in October (rather

than November) of 1992, it has been rejected because it

lacks sufficient evidentiary/record support. Otherwise, it

has been accepted as true and incorporated in substance.

9. First and second sentences: Accepted as true and

incorporated in substance; Third sentence: Not

incorporated in this Recommended Order because it would add

only unnecessary detail to the factual findings made by the

Hearing Officer.

10. Accepted as true and incorporated in substance.

11. First sentence: Not incorporated in this

Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Officer;

Remaining sentences: Accepted as true and incorporated in

substance.

12. First sentence: Not incorporated in this

Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Officer;

Second sentence: Accepted as true and incorporated in

substance.

13. Accepted as true and incorporated in substance.

14. Second sentence: Not incorporated in this

Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Officer;

Remaining sentences: Accepted as true and incorporated in

substance.

15. Not incorporated in this Recommended Order

because it would add only unnecessary detail to the factual

findings made by the Hearing Officer.

16. First and second sentences: Not incorporated in

this Recommended Order because they would add only

unnecessary detail to the factual findings made by the

Hearing Officer; Third sentence: Accepted as true and

incorporated in substance.

17. First sentence: Accepted as true and

incorporated in substance; Second sentence: Not

incorporated in this Recommended Order because it would add

only unnecessary detail to the factual findings made by the

Hearing Officer.

18. Accepted as true and incorporated in substance.

19. Last sentence: Not incorporated in this

Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Officer;

Remaining sentences: Accepted as true and incorporated in

substance.

20. First, third and fourth sentences: Accepted as

true and incorporated in substance; Remaining sentences:

Not incorporated in this Recommended Order because they

would add only unnecessary detail to the factual findings

made by the Hearing Officer.

21. Not incorporated in this Recommended Order

because it would add only unnecessary detail to the factual

findings made by the Hearing Officer.

22. First sentence: Not incorporated in this

Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Office;

Second and third sentence: Rejected as findings of fact

because they are more in the nature of arguments concerning

the state of the evidentiary record than findings of fact;

Fourth sentence: Accepted as true and incorporated in

substance.

23. First sentence: Not incorporated in this

Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Officer.

24. Third sentence: Not incorporated in this

Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Officer;

Remaining sentences: Accepted as true and incorporated in

substance.

25. First sentence: Rejected as a finding of fact

because it is more in the nature of argument concerning the

state of the evidentiary record than a finding of fact;

Second and third sentences: Accepted as true and

incorporated in substance.

26. First and second sentences: Not incorporated in

this Recommended Order because they would add only

unnecessary detail to the factual findings made by the

Hearing Officer; Third and fourth sentences: Rejected as

findings of fact because they are more in the nature of

arguments concerning the state of the evidentiary record

than findings of fact.

27. Accepted as true and incorporated in substance.

28. Not incorporated in this Recommended Order

because it would add only unnecessary detail to the factual

findings made by the Hearing Officer.

29. Accepted as true and incorporated in substance.

30. First sentence: Accepted as true and

incorporated in substance; Remaining sentences: Not

incorporated in this Recommended Order because they would

add only unnecessary detail to the factual findings made by

the Hearing Officer.

31. First, second and third sentences: Not

incorporated in this Recommended Order because they would

add only unnecessary detail to the factual findings made by

the Hearing Officer; Fourth, fifth and sixth sentences:

Rejected as findings of fact because they are more in the

nature of legal arguments than findings of fact.

32. First and third sentences: Not incorporated in

this Recommended Order because they would add only

unnecessary detail to the factual findings made by the

Hearing Officer; Second sentence: Accepted as true and

incorporated in substance.

33. Last sentence: Not incorporated in this

Recommended Order because it would add only unnecessary

detail to the factual findings made by the Hearing Officer;

Remaining sentences: Accepted as true and incorporated in

substance.

34. Not incorporated in this Recommended Order

because it would add only unnecessary detail to the factual

findings made by the Hearing Officer.

35. First sentence: Accepted as true and

incorporated in substance; Second sentence: Not

incorporated in this Recommended Order because it would add

only unnecessary detail to the factual findings made by the

Hearing Officer.

36. Accepted as true and incorporated in substance.

COPIES FURNISHED:

Steve J. Longariello

9999 Summerbreeze Drive, Number 422

Sunrise, Florida 33322

Charles S. Ruberg, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

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 of time 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE J. LONGARIELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5320

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

_____________________________)

FINAL ORDER DENYING RESPONDENT'S MOTION FOR SANCTIONS

On or about July 8, 1993, Petitioner filed a unlawful

employment practice complaint with the Florida Commission

on Human Relations (Commission) alleging that the

Department of Education (Department) had discriminated

against him because of his sex and marital status. On

November 1, 1995, at Petitioner's request and without any

reasonable cause determination having been made, the

Commission referred the matter to the Division of

Administrative Hearings (Division) for the assignment of a

Division hearing officer to conduct a formal Section 120.57

hearing.

On November 17, 1995, the Department filed with the

Division a Motion to Deny the Request for Hearing that

Petitioner had filed with the Commission. Petitioner, on

November 30, 1995, filed a response to the Department's

motion. The Hearing Officer treated Petitioner's response

as an amendment of his unlawful employment practice

complaint (filed pursuant to Rule 60Y-5.001(7), Florida

Administrative Code, which allows a complainant to amend

his complaint "any time before service of a Notice of

Determination" "to cure technical defects, or omissions, or

to clarify and amplify allegations made therein.") As so

amended, Petitioner's complaint alleged that the

Department, through its Officer of Teacher Recruitment and

Retention (OTRR), refused to refer Petitioner for

employment as a teacher because of his sex (male) and

marital status (single).

The formal hearing on Petitioner's amended complaint

was held on June 4 and 5, 1996. At the suggestion of both

parties, the hearing was held in Fort Lauderdale, Florida.

A transcript of the hearing was prepared (at the

Department's request) and filed with the Division. On July

25, 1996, the Department filed a proposed recommended

order, as well a motion requesting that the Hearing

Officer, pursuant to Section 120.57(1)(b)5, Florida

Statutes, "enter an Order assessing against the Petitioner

[the Department's] costs for travel [to the hearing site in

Fort Lauderdale] and transcripts [of the formal hearing]

and any additional sanctions deemed appropriate" in view

of, what the Department argued in its motion was,

"Petitioner's bad faith pursuit of an unfounded claim." On

August 6, 1996, Petitioner filed a response in opposition

to the Department's Motion for Sanctions.

The Hearing Officer issued his Recommended Order in

this case on August 14, 1996. In his Recommended Order

(which is incorporated by reference in this Final Order),

the Hearing Officer recommended that the Commission "enter

a final order dismissing Petitioner's amended unlawful

employment practice complaint on the ground that the

evidence is insufficient to establish that the Department

committed the unlawful employment practice alleged

therein." Remaining for disposition is the Department's

Motion for Sanctions.

Section 120.57(1)(b)5, Florida Statutes, provides as

follows:

All pleadings, motions, or other papers filed

in the proceeding must be signed by a party,

the party's attorney, or the party's qualified

representative. The signature of a party, a

party's attorney, or a party's qualified

representative constitutes a certificate that

he or she has read the pleading, motion, or

other paper and that, to the best of his or

her knowledge, information, and belief formed

after reasonable inquiry, it is not interposed

for any improper purposes, such as to harass or

to cause unnecessary delay or for frivolous

purpose or needless increase in the cost of

litigation. If a pleading, motion, or other

paper is signed in violation of these require-

ments, the hearing officer, upon motion or the

officer's own initiative, shall impose upon the

person who signed it, a represented party, or

both, an appropriate sanction, which may include

an order to pay the other party or parties the

amount of reasonable expenses incurred because

of the filing of the pleading, motion, or other

paper, including a reasonable attorney's fee.

"[T]his statutory provision proscribes the filing of papers

for an improper purpose, including filing for a frivolous

purpose. Its objective is similar to that of its federal

counterpart, Rule 11, Federal Rules of Civil Procedure,

which . . . is 'designed to discover dilatory or abusive

tactics and to streamline the litigation process. The rule

is aimed at deterrence, not fee shifting or compensating

the prevailing party.'" 1/ Department of Health and

Rehabilitative Services v. S.G., 613 So.2d 1380, 1384 (Fla.

1st DCA 1993), citing Mercedes Lighting and Electrical

Supply, Inc. v. Department of General Services, 560 So.2d

272 (Fla. 1st DCA 1990). In determining whether a paper

has been filed for an "improper purpose," the hearing

officer "should not delve into an attorney's or party's

subjective intent or into a good faith-bad faith analysis.

Instead if a reasonably clear legal justification can be

shown for the filing of the paper in question, improper

purpose cannot be found and sanctions are inappropriate."

Mercedes Lighting and Electrical Supply, Inc. v. Department

of General Services, 560 So.2d at 278.

In the instant case, while the proof Petitioner

presented at the formal hearing in this case was

insufficient to meet his burden of proving the claim of

discrimination he had made against the Department in his

amended unlawful employment practice complaint, it appears

that, given his status as a single male, his masculine

first and middle names, Steve Joseph, both of which he

included on the forms he sent to OTRR, the information he

provided on these forms regarding his qualifications to

teach students with specific learning disabilities (SLD),

the "critical" shortage of qualified SLD teachers that

existed statewide at the time, the absence of written

records maintained by OTRR concerning any action it may

have taken with respect to the forms Petitioner submitted,

his failure to hear from any prospective employer

purporting to have received his name from OTRR, and the

comments made to him by Norman MacMillian, a former

Department employee, regarding the Department's

discriminatory practices, Petitioner had a reasonably clear

legal justification for filing his amended unlawful

employment practice complaint with the Division, at least

to the extent that it alleged that he was discriminated

against by the Department because of his sex. Accordingly,

sanctions should not be imposed against him, pursuant to

Section 120.57(1)(b)5, Florida Statutes, for filing this

amended complaint.

In view of the foregoing, the Department's Motion for

Sanctions, which seeks the imposition of such sanctions, is

hereby DENIED.

DONE AND ENTERED in Tallahassee, Leon County, Florida,

this 14th day of August, 1996.

__________________________________

_

STUART M. LERNER, Hearing

Officer

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-

1550

[phone] SC 278-9675

Filed with the Clerk of the

Division of Administrative

Hearings

this 14th day of August, 1996.

ENDNOTE

1/ While "it is the hearing officer under [S]ection

120.57(1)(b)5 [Florida Statutes] who has the authority to

administer the sanctions prescribed by this section,"

(Department of Health and Rehabilitative Services v. S.G.,

613 So.2d 1380 at 1384), under Section 760.11, Florida

Statutes, it is the Commission which is authorized, "in its

discretion, [to] allow the prevailing party [in an

administrative proceeding on an unlawful employment

practice complaint] a reasonable attorney's fee as part of

the costs" (which authority must be exercised by the

Commission, according to the provisions of Section 760.11,

"in a manner consistent with federal case law involving a

Title VII action." Under existing federal case law, in a

Title VII action, a plaintiff may "not be assessed his

opponent's attorney's fees unless a court finds that his

claim was frivolous, unreasonable, or groundless, or that

the plaintiff continued to litigate after it clearly

became so," but such an assessment may be made even though

[the plaintiff's action was] not brought in subjective bad

faith." Christianburg Garment Co. v. Equal Employment

Opportunity Commission, 98 S.Ct. 694, 700 (1978). This

standard is not unlike that which must be applied in

determining whether sanctions should be imposed under Rule

11, Federal Rules of Civil Procedure. See Simons v.

Southwest Petro-Chem, Inc., 28 F.3d 1029 (10th Cir.

1994).)

COPIES FURNISHED:

Steve J. Longariello

9999 Summerbreeze Drive, Number 422

Sunrise, Florida 33322

Charles S. Ruberg, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

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 JUDICIAL REVIEW

A party who is adversely affected by this final order is

entitled to judicial review pursuant to Section 120.68,

Florida Statutes. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing one copy of a notice of appeal with the

Agency Clerk of the Division of Administrative Hearings and

a second copy, accompanied by filing fees prescribed by

law, with the District Court of Appeal, First District, or

with the district court of appeal in the appellate district

where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be

reviewed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE J. LONGARIELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5320

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

_____________________________)

FINAL ORDER DENYING RESPONDENT'S MOTION FOR SANCTIONS

On or about July 8, 1993, Petitioner filed a unlawful

employment practice complaint with the Florida Commission

on Human Relations (Commission) alleging that the

Department of Education (Department) had discriminated

against him because of his sex and marital status. On

November 1, 1995, at Petitioner's request and without any

reasonable cause determination having been made, the

Commission referred the matter to the Division of

Administrative Hearings (Division) for the assignment of a

Division hearing officer to conduct a formal Section 120.57

hearing.

On November 17, 1995, the Department filed with the

Division a Motion to Deny the Request for Hearing that

Petitioner had filed with the Commission. Petitioner, on

November 30, 1995, filed a response to the Department's

motion. The Hearing Officer treated Petitioner's response

as an amendment of his unlawful employment practice

complaint (filed pursuant to Rule 60Y-5.001(7), Florida

Administrative Code, which allows a complainant to amend

his complaint "any time before service of a Notice of

Determination" "to cure technical defects, or omissions, or

to clarify and amplify allegations made therein.") As so

amended, Petitioner's complaint alleged that the

Department, through its Officer of Teacher Recruitment and

Retention (OTRR), refused to refer Petitioner for

employment as a teacher because of his sex (male) and

marital status (single).

The formal hearing on Petitioner's amended complaint

was held on June 4 and 5, 1996. At the suggestion of both

parties, the hearing was held in Fort Lauderdale, Florida.

A transcript of the hearing was prepared (at the

Department's request) and filed with the Division. On July

25, 1996, the Department filed a proposed recommended

order, as well a motion requesting that the Hearing

Officer, pursuant to Section 120.57(1)(b)5, Florida

Statutes, "enter an Order assessing against the Petitioner

[the Department's] costs for travel [to the hearing site in

Fort Lauderdale] and transcripts [of the formal hearing]

and any additional sanctions deemed appropriate" in view

of, what the Department argued in its motion was,

"Petitioner's bad faith pursuit of an unfounded claim." On

August 6, 1996, Petitioner filed a response in opposition

to the Department's Motion for Sanctions.

The Hearing Officer issued his Recommended Order in

this case on August 14, 1996. In his Recommended Order

(which is incorporated by reference in this Final Order),

the Hearing Officer recommended that the Commission "enter

a final order dismissing Petitioner's amended unlawful

employment practice complaint on the ground that the

evidence is insufficient to establish that the Department

committed the unlawful employment practice alleged

therein." Remaining for disposition is the Department's

Motion for Sanctions.

Section 120.57(1)(b)5, Florida Statutes, provides as

follows:

All pleadings, motions, or other papers filed

in the proceeding must be signed by a party,

the party's attorney, or the party's qualified

representative. The signature of a party, a

party's attorney, or a party's qualified

representative constitutes a certificate

that he or she has read the pleading, motion,

or other paper and that, to the best of his

or her knowledge, information, and belief

formed after reasonable inquiry, it is not

interposed for any improper purposes, such

as to harass or to cause unnecessary delay

or for frivolous purpose or needless increase

in the cost of litigation. If a pleading,

motion, or other paper is signed in violation

of these requirements, the hearing officer,

upon motion or the officer's own initiative,

shall impose upon the person who signed it,

a represented party, or both, an appropriate

sanction, which may include an order to pay

the other party or parties the amount of

reasonable expenses incurred because of the

filing of the pleading, motion, or other paper,

including a reasonable attorney's fee.

"[T]his statutory provision proscribes the filing of papers

for an improper purpose, including filing for a frivolous

purpose. Its objective is similar to that of its federal

counterpart, Rule 11, Federal Rules of Civil Procedure,

which . . . is 'designed to discover dilatory or abusive

tactics and to streamline the litigation process. The rule

is aimed at deterrence, not fee shifting or compensating

the prevailing party.'" 1/ Department of Health and

Rehabilitative Services v. S.G., 613 So.2d 1380, 1384 (Fla.

1st DCA 1993), citing Mercedes Lighting and Electrical

Supply, Inc. v. Department of General Services, 560 So.2d

272 (Fla. 1st DCA 1990). In determining whether a paper

has been filed for an "improper purpose," the hearing

officer "should not delve into an attorney's or party's

subjective intent or into a good faith-bad faith analysis.

Instead if a reasonably clear legal justification can be

shown for the filing of the paper in question, improper

purpose cannot be found and sanctions are inappropriate."

Mercedes Lighting and Electrical Supply, Inc. v. Department

of General Services, 560 So.2d at 278.

In the instant case, while the proof Petitioner

presented at the formal hearing in this case was

insufficient to meet his burden of proving the claim of

discrimination he had made against the Department in his

amended unlawful employment practice complaint, it appears

that, given his status as a single male, his masculine

first and middle names, Steve Joseph, both of which he

included on the forms he sent to OTRR, the information he

provided on these forms regarding his qualifications to

teach students with specific learning disabilities (SLD),

the "critical" shortage of qualified SLD teachers that

existed statewide at the time, the absence of written

records maintained by OTRR concerning any action it may

have taken with respect to the forms Petitioner submitted,

his failure to hear from any prospective employer

purporting to have received his name from OTRR, and the

comments made to him by Norman MacMillian, a former

Department employee, regarding the Department's

discriminatory practices, Petitioner had a reasonably clear

legal justification for filing his amended unlawful

employment practice complaint with the Division, at least

to the extent that it alleged that he was discriminated

against by the Department because of his sex. Accordingly,

sanctions should not be imposed against him, pursuant to

Section 120.57(1)(b)5, Florida Statutes, for filing this

amended complaint.

In view of the foregoing, the Department's Motion for

Sanctions, which seeks the imposition of such sanctions, is

hereby DENIED.

DONE AND ENTERED in Tallahassee, Leon County, Florida,

this 14th day of August, 1996.

___________________________________

STUART M. LERNER, Hearing

Officer

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-

1550

[phone] SC 278-9675

Filed with the Clerk of the

Division of Administrative

Hearings

this 14th day of August, 1996.

ENDNOTE

1/ While "it is the hearing officer under [S]ection

120.57(1)(b)5 [Florida Statutes] who has the authority to

administer the sanctions prescribed by this section,"

(Department of Health and Rehabilitative Services v. S.G.,

613 So.2d 1380 at 1384), under Section 760.11, Florida

Statutes, it is the Commission which is authorized, "in its

discretion, [to] allow the prevailing party [in an

administrative proceeding on an unlawful employment

practice complaint] a reasonable attorney's fee as part of

the costs" (which authority must be exercised by the

Commission, according to the provisions of Section 760.11,

"in a manner consistent with federal case law involving a

Title VII action." Under existing federal case law, in a

Title VII action, a plaintiff may "not be assessed his

opponent's attorney's fees unless a court finds that his

claim was frivolous, unreasonable, or groundless, or that

the plaintiff continued to litigate after it clearly

became so," but such an assessment may be made even though

[the plaintiff's action was] not brought in subjective bad

faith." Christianburg Garment Co. v. Equal Employment

Opportunity Commission, 98 S.Ct. 694, 700 (1978). This

standard is not unlike that which must be applied in

determining whether sanctions should be imposed under Rule

11, Federal Rules of Civil Procedure. See Simons v.

Southwest Petro-Chem, Inc., 28 F.3d 1029 (10th Cir.

1994).)

COPIES FURNISHED:

Steve J. Longariello

9999 Summerbreeze Drive, Number 422

Sunrise, Florida 33322

Charles S. Ruberg, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

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 JUDICIAL REVIEW

A party who is adversely affected by this final order is

entitled to judicial review pursuant to Section 120.68,

Florida Statutes. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing one copy of a notice of appeal with the

Agency Clerk of the Division of Administrative Hearings and

a second copy, accompanied by filing fees prescribed by

law, with the District Court of Appeal, First District, or

with the district court of appeal in the appellate district

where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be

reviewed.