03-004674 Jack Cataldo vs. St. James Episcopal School Status: Closed Recommended Order on Friday, June 4, 2004.

Summary: Respondent did not discriminate against Petitioner based upon his religion, sex, or marital status. Petitioner was fired due to his criminal history background report.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK CATALDO, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4674

)

ST. JAMES EPISCOPAL SCHOOL, )

)

Respondent. )

)

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)

fil ed 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 terminat ing 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 He aring

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 reli gious

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, reservi ng

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 conf erence 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 allega tions 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 exh ibits 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 oppo rtunity

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. Petit ioner 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 n ot 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 materia l 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 an d 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 gui tar 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. Resp ondent

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 h istory 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 Petiti oner 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. D uring 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 avai lable 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 o ccasion, 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 Petitio ner,

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. Do nnally 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 su bstance 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 b attery/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 f rom 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 retri eve 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 premise s, 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.

P etitioner 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 wr itten 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 crimin al 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

jurisdictio n 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

compensa tion, 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 Discri mination 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. Gree n , 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 Communi ty 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 tha t 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. Se e 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

mar ital status, Petitioner must prove the following: (a) he is

a member of a protected class (a father who was never married);

(b) he performed his duties in a satisfactory manner;

(c) 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 Owen s 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 ha ve 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, Resp ondent 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 P etitioner.

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.

RECOMMENDAT ION

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

Fi led 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

4 17 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

Tallahasse e, 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 is sue the final order in this case.