CAROL D. JOHNSON,
vs.
Respondent.
) Case No. 02-2845
Pursuant to notice, a formal hearing was held in this case on January 8, 2003, in Gainesville, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Carol D. Johnson, pro se
For Respondent: Paul A. Donnelly, Esquire
Laura A. Gross, Esquire Donnelly & Gross
Whether Respondent discriminated against Petitioner on the basis of her race and sex, and whether Respondent retaliated
against Petitioner for making complaints of discriminatory treatment.
On November 7, 2001, Petitioner, Carol D. Johnson (Johnson), filed a complaint with the Florida Commission on Human Relations, complaining that Respondent had discriminated against her based on her sex and race, and that Respondent had taken retaliatory action against her for complaining about discriminatory treatment. On June 11, 2002, the Florida Commission on Human Relations issued a Notice of Determination: No Cause. Johnson filed a Petition for Relief on July 16, 2002, and the case was forwarded to the Division of Administrative Hearings on July 19, 2002, for assignment of an Administrative Law Judge to conduct a formal hearing.
The case was originally assigned to Administrative Law Judge Stephen F. Dean, and was reassigned to Administrative Law Judge Susan B. Kirkland to conduct the final hearing.
tenus motion to have the style of the case changed to reflect the correct name of Respondent. The motion was granted, and the style of the case is changed to reflect the correct name of Respondent as Gainesville Electric Joint Apprenticeship and Training Committee (JATC).
Petitioner testified in her own behalf and submitted Petitioner's Exhibits 1 through 9, which were admitted in evidence. Respondent presented the testimony of the following witnesses: Nelson Lamar Mathis, Jr.; John T. Ward, Jr.; Shawn Clayton Graves; and Lisa Marie Logan. Respondent submitted Respondent's Exhibits 1 through 20, which were admitted in evidence.
The parties agreed to file their proposed recommended orders within ten days of the date of the filing of the transcript. The two-volume Transcript was filed on January 28, 2003. On February 6, 2003, Respondent filed a Consent Motion To Extend Time for Service of Proposed Recommended Orders to February 14, 2003. The motion was granted by order dated February 7, 2003. Respondent filed Respondent's Recommended Order on February 14, 2003. Petitioner did not file a proposed recommended order.
Respondent JATC is an apprenticeship program which provides training to persons who desire to become journeymen electricians. JATC is supervised by the United States Department of Labor and a corresponding State of Florida governmental agency.
JATC is based in Gainesville, Florida, and is headed by a six-member committee of three contractor representatives
appointed by the area's National Electrical Contractors Association and three labor union representatives appointed by the International Brotherhood of Electrical Workers (IBEW), Local 1205. The committee decides disciplinary actions and policy matters involving apprentices. The committee employs a director.
JATC's geographical jurisdiction is bounded at Wildwood, Florida, on the south to the St. John's River on the east, cutting across west of Jacksonville through Tallahassee and Panama City, Florida, to the west, and includes three counties in Georgia to the north. An advisory subcommittee deals with routine matters in and for the Tallahassee area, and a similar advisory subcommittee handles routine matters in and for the Panama City area. For matters which are not considered routine and require final action, the subcommittees refer the matters to the full committee at the Gainesville headquarters. JATC does not have actual offices in Tallahassee or Panama City, but utilizes the union halls for the subcommittees' activities.
Persons desiring to become journeymen electricians apply to JATC to enter the apprenticeship program and, if selected for the program, are required to enter into an apprenticeship agreement with JATC. In order to complete the program, a person must complete 8,000 hours of on-the-job training, complete 144 hours per year of classroom training, and
pass various tests. The apprenticeship program was originally designed as a five-year program, but JATC has condensed the classroom work and the on-the-job training to four years with no summer vacations.
JATC is responsible for the selection, placement, and training of the apprentices as work is available. JATC does not employ apprentices. It refers apprentices for employment to participating electrical contractors for positions which provide wages and on-the-job training within JATC's geographical jurisdiction.
When a participating contractor needs to hire electrician apprentices, the contractor contacts JATC. In turn, JATC contacts the requested number of apprentices and refers them to the contractor for possible hiring. The decision to hire an apprentice is made by the contractor, who also determines whether to terminate or layoff an apprentice. The duties of the apprentice on the work site are assigned by the contractor and may include such tasks as carrying trash and digging ditches.
The policies and standards of JATC do not require an apprentice to be under constant supervision on job sites. Apprentices are provided direct supervision, which allows them the opportunity to have direction from persons who are
knowledgeable in the type of work that is being performed by the apprentices.
Opportunities for on-the-job training depend on the needs of the contractors. Jobs can last anywhere from two days to four years, and depend on the amount of building construction in the area at any given time. Due to the fluctuation in the number of jobs available in the various areas within JATC's jurisdiction, apprentices have been referred to and have worked on jobs in areas within JATC's geographical jurisdiction that are away from the apprentices' residences.
Johnson, a black female, entered into an apprenticeship program with JATC in August 1998. She signed an Apprenticeship Agreement, sometimes referred to as an "Indenture," in which she agreed "diligently and faithfully to perform the work of said trade during the period of apprenticeship, in accordance with the registered standards of [JATC]."
The Policy Statements of JATC govern the conduct of the apprentices. Johnson received copies of each Policy Statement in effect during the time that she participated in the apprenticeship program. She signed statements acknowledging that she had read, understood, and would comply with the Policy Statements. The Policy Statements provided: "Violations of
J.A.T.C. rules and policy may lead to or result in termination of indenture or other action deemed appropriate by J.A.T.C."
Johnson was interviewed and accepted for the first JATC class in Tallahassee. During the interviews of apprentices for the first Tallahassee class, the candidates were specifically asked whether they would be able to travel to other cities for work, away from where they normally resided. During her interview, Johnson did not indicate any problems or difficulty with traveling to work in areas away from her Tallahassee home.
On October 16, 1998, Johnson was issued a Notice of Termination from Miller Electric Co. (Miller). She had been employed by Miller on referral from JATC. The reason given on the notice was that Johnson had resigned; however, JATC had actually pulled Johnson away from the job because it understood that Miller was going to terminate Johnson. JATC felt that Johnson had potential as an apprentice so she was referred to another contractor, Raytheon Constructors, Inc. (Raytheon) which had an opening for an apprentice.
On March 12, 1999, Raytheon issued a Termination Notice to Johnson, terminating her employment for "failure to meet job site requirement," and indicating that she was not eligible for rehire with Raytheon. Johnson had failed a drug test.
Johnson informed JATC of the situation with Raytheon.
The Director of JATC advised her to present a clean drug test,
which she did. Although the Policy Statements provided that Johnson could be disciplined for being terminated and receiving a "not for rehire," she was not disciplined. She was referred for more job assignments.
By letter dated December 17, 1999, Johnson complained to the Director of JATC that she was not being given work when work was available. She requested that JATC force her former employer, Hartsfield Electric, to reemploy her, even though she complained that when she worked for Hartsfield that she was given "the hardest and dirtiest jobs they had." She concluded her letter by stating: "I will do what ever it takes to stay in this program, but I won't leave Tallahassee to do so." Johnson resided in Tallahassee and was unwilling to take assignments outside the Tallahassee area.
When the Director of JATC received the December 17, 1999, letter from Johnson, he investigated her allegations, including her work assignments with Hartsfield. He determined that Johnson's assignments were within the duties of an apprentice and, although some of the tasks may have been "crappy work," that was part of being an apprentice. Hartsfield was not satisfied with Johnson's work and was unwilling to rehire her.
Johnson received an "unsatisfactory job performance" evaluation from Atkins Electric Co. for the period April 13, 1999, to May 7, 1999.
Because of her prior job performance, participating Tallahassee contractors were refusing to hire Johnson. JATC continued to accommodate Johnson's desire not to work outside the Tallahassee area. When a new contractor who did not have previous experience with Johnson would come to Tallahassee, JATC would refer Johnson to that contractor.
Apparently Hartsfield changed its position and rehired Johnson at some point, because on May 15, 2000, Hartsfield gave Johnson a Notice of Termination. The notice cited lack of production, the need for constant supervision, and tardiness as the reasons for termination. The notice also indicated that Johnson was not eligible for rehire.
The JATC Policy Statements provided that an apprentice who was terminated from a job or received a "not-for-hire" was to appear before the committee to discuss the termination before any disciplinary action would be taken. The Policy Statements also provided that the apprentice would not be reassigned to any job until JATC reviewed the termination.
Johnson was noticed to appear before the Tallahassee subcommittee, who referred the termination issue to the committee in Gainesville. Johnson was issued a notice to appear before the Gainesville committee. No disciplinary action was taken against Johnson for the termination. The committee gave her the option of going to another location to find employment
and, when work became available in Tallahassee, being sent back to Tallahassee to work.
By letter dated August 9, 2000, Hartsfield wrote to the Local Union 1205, requesting that Johnson not be referred to Hartsfield and giving as reasons that Johnson did not follow orders well, was not dependable, and was irresponsible.
On November 3, 2000, JATC notified Johnson to appear before the Tallahassee subcommittee for absenteeism from class. The class attendance sheets showed that Johnson had been absent from class three times from August to October 2000. No disciplinary action was taken against Johnson because of her absences.
Around November 16, 2000, the Director got Johnson hired by a new participating contractor in Tallahassee. Johnson was terminated by that contractor for having a bad attitude. The contractor would not rehire Johnson.
Johnson appeared before the subcommittee and requested that she be allowed to come up with a plan in which she would wire her home and those hours working on her home would be counted towards her required on-the-job training hours. The Director told her to put the plan in writing so that it could be presented to the committee. Johnson failed to prepare a written plan.
After being on the job with Miller Electric for
28 days, Johnson received a poor performance evaluation on March 3, 2001. The evaluation indicated that Johnson needed improvement in her work habits, needed constant supervision, stood around and showed little interest in her job, was resentful and uncooperative, and had very little mechanical aptitude.
Johnson was noticed to appear before the Tallahassee subcommittee concerning her poor evaluation. The subcommittee referred the issue to the committee in Gainesville. Johnson was notified to appear before the committee in Gainesville, which she did on March 27, 2001. She told the committee that she was getting mixed feelings on what she was expected to do on the job. The committee explained in great detail what was expected of her. Johnson acknowledged that she understood. The committee placed her on one-year probation and advised her in writing that "any further infraction to the policy statement could mean your immediate termination."
Johnson filed an appeal of the action placing her on probation. The Director investigated her claims and spoke to anyone he could find on the job site in question. He interviewed the supervisors, who had been on the job with Johnson. Johnson was given the opportunity to provide the committee with the names of witnesses who could support her
claim that she should have been given a better evaluation and any other information that she had concerning the performance evaluation.
At the April 24, 2001, meeting of the Gainesville committee, the Director advised that he had statements from some of the people he interviewed. Johnson had not supplied the committee with any additional information. Having received no information from Johnson, the committee denied her appeal.
On two occasions, Johnson told the Director that she believed the Tallahassee contractors were discriminating against her. On each occasion, the Director investigated her claims, interviewed individuals on the job site, and interviewed Johnson. Based on his investigation, he was unable to conclude that she had been discriminated against.
Electricians in North Florida or Tallahassee cannot make a living by limiting their job opportunities to the towns in which they live. The supply of workers is greater than the demand for labor.
After Johnson was put on probation, JATC continued to have difficulty finding any contractors in Tallahassee who would hire Johnson. The Director offered her referrals wherever work was available, such as Panama City, Gainesville, and Palatka. She refused the offers, and stated that she would not leave Tallahassee.
Around August 7, 2001, JATC committee member and assistant business manager for IBEW Local 1205, Tommy Ward, attempted to contact Johnson by telephone to provide her referrals for on-the-job training work. He continued to attempt to contact her two times by telephone during the following week. Several referrals for jobs were available at that time. On August 13, 2001, Mr. Ward learned that Johnson had changed and updated her address and telephone number. He attempted twice to contact her using her new telephone number. He was unsuccessful, but he left messages for her to contact him.
Johnson failed to return Mr. Ward's calls, so he sent her a certified letter dated August 15, 2001, advising her that he had been trying to reach her. She signed for the receipt of the letter on August 18, 2001. He continued to attempt to contact her by telephone after he sent the letter. From
August 9, 2001, through September 5, 2001, Mr. Ward attempted to contact Johnson at least ten times, but was unsuccessful.
The Policy Statements require that one unexcused absence from class in any semester may result in apprentices being terminated from the program. Johnson had been absent from class two times in August 2001.
A certified letter dated September 10, 2001, was sent to Johnson by JATC notifying her that action would be taken at the September 25, 2001, Gainesville committee meeting to
terminate her from her indenture with the apprenticeship program for failure to attend classroom training and failure to respond to work assignments. The letter was unclaimed, and the postal service returned the letter to JATC after the September 25, 2001, meeting.
The committee was advised that Johnson had called the Interim Apprenticeship Director the day of the meeting, asking for the telephone number for Mr. Ward. Unaware that Johnson had not received the notice of the committee meeting, the committee voted to terminate Johnson from the apprenticeship program. By letter dated October 23, 2001, JATC notified Johnson that the committee had voted to terminate her from the program.
The Policy Statements of JATC provide procedures for appealing actions of the committee. The procedure is as
follows:
APPEAL PROCEDURE
If an apprentice feels that he or she has been treated unfairly or canceled without due course, he or she may file an appeal within ten (10) days of receipt of notice of the committee's action.
This complaint shall be in writing and signed by the apprentice and shall include his/her name.
No reinstatement shall be considered unless a written appeal is received within ten (10) days after receiving cancellation notice from the J.A.T.C.
The Policy Statements also require that when an apprentice requests to appear before the committee, the apprentice has the responsibility to make certain that he or she is available at the time assigned by the committee.
Johnson appealed the committee's decision to terminate her from the program. By letter dated December 21, 2001, JATC notified Johnson that her appeal would be heard at the Gainesville committee meeting scheduled for January 22, 2002. Johnson advised the committee that she would not be able to attend the January 22 meeting because her house had burned.
JATC notified Johnson by letter dated February 13, 2002, that she could present her appeal to the committee at its meeting on February 26, 2002. Johnson received notice of the meeting, but failed to appear at the February meeting. The committee notified her that it would consider her appeal at the March 26, 2002, meeting. Johnson received notice of the meeting, but failed to attend the March meeting. JATC took no further action on her appeal after her failure to appear.
Johnson claims that the younger white males in the program were treated differently than she. The only person that she could recall was Mark Hoffman, whom she asserted was absent more than she and was not disciplined for his absences. As revealed by the records of JATC, Mr. Hoffman was terminated from the program in December 2001 for a failing average for the year
and for absenteeism. At least three males had been terminated from the program for absenteeism before Johnson was terminated.
Johnson also claims that she was treated differently than the younger white males on the job site because she was given tasks such as cleaning up the work site and digging ditches. All apprentices are given tasks such as cleaning up the work site and digging ditches. It is part of the job. When a person progresses from an apprentice to a journeyman, the person is still expected to do work such as cleaning up the site and digging ditches. The evidence does not support Johnson's claim that she was treated differently in the duties that she was being given on the work site.
Johnson was involved in an automobile accident in September 1999. As a result, she suffered a torn rotator cuff, which required surgical repair. Johnson brought suit against the other driver in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Carol Johnson vs. Kone, Inc., and Kirk Kyle Pope, Case No. 01-CA-2412. Her deposition was taken in that case on June 10, 2002.
In her deposition, Johnson was asked the following questions and gave the following answers:
Q. And I am asking you, okay, do you think, do you think that you would be an electrician today if you didn't have the shoulder problem?
A. Yes.
Q. Okay, and why do you say that?
A. Because eventually I will have to find another career. I have waited all my life to do work in construction. I finally found a job that I like and now I can't, I wouldn't be able to do it much longer.
Q. Well, what, why don't you think you are going to be able to continue in your chosen field as an electrician or apprentice or helper?
A. Because the pills, the pain pills I take they make me sleepy. They make me tired. I can, I can't get up and do like I used to, so eventually I will have to find a desk job.
I won't even probably be able to go back to agriculture because you have to be able to work in the field. I will have to find another career.
Part of the duties of an electrician, apprentice, or journeyman, includes being able to lift and carry over 50 pounds and having good motion ability. Johnson admits that during her apprenticeship and as of the final hearing that she had a physical disability that affected her ability to perform in the apprenticeship program. She stated that she would be slowed down in her work, and she would not be able to pick up and handle heavy things like she could do prior to her accident.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.
Johnson claims that JATC has discriminated against her on the basis of race and sex and has retaliated against her for making complaints about unfair treatment on the job.
Section 760.10, Florida Statutes, deals with unlawful employment practices and provides:
(4) It is an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on- the-job training programs, to discriminate against any individual because of race, color, religion, sex, national origin, age, handicap, or marital status in admission to, or employment in, any program established to provide apprenticeship or other training.
* * *
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
The Florida Civil Rights Act, Section 760.10, et seq., Florida Statutes, is patterned after federal law, Title VII of the Civil Rights Act of 1964. Federal case law construing Title
VII is persuasive when analyzing claims of discrimination and retaliation based on Section 760.10, Florida Statutes. See Bass
v. Board of County Commissioners, Orange County, Florida, 256 F.3d 1095, 1109 (11th Cir. 1994); Gray v. Russell Corp., 681 So. 2d 310 (Fla. 1st DCA 1996); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
JATC argues that since JATC is not an employer, that it can not be held responsible for the actions of the employers to whom JATC refers its apprentices for employment and on-the- job training, citing Angelino v. The New York Times Company, 200 F.3d 73 (3rd Cir. 1999) and Carter v. Chrysler Corporation, 173 F.3d (8th Cir. 1999). In Angelino, the court upheld dismissal of a Title VII complaint of sex-based discrimination and harassment against a union and stated:
We will affirm the dismissal of all claims against the Union because the Union was not the employer of the appellants; this is so even though some of the supervisors and workers who are alleged to have discriminated against the appellants may have been members of the Union. While a Union may be held liable under Title VII, the record here does not demonstrate that the Union itself instigated or actively supported the discriminatory acts allegedly experienced by the appellants. (Emphasis in the original)
200 F.3d at 95-96.
In Carter, the court upheld the dismissal of the appellant's claim against her union, stating that there was no
evidence that the union had caused or attempted to cause an employer to discriminate against the appellant or that the union failed to investigate her complaints about her employer.
Johnson alleged that she was discriminated against by the various employers to whom she had been referred by JATC. The evidence does not show that the employers discriminated against her or that, if they had, that JATC had caused or supported the discrimination. When Johnson complained to JATC about her employers' alleged unfair treatment, JATC investigated the complaints and found there to be no discrimination. Johnson was required to do the same types of work that are required of all apprentices. Johnson's dismissals by her employers were the result of Johnson's own actions. One employer dismissed her for failing a drug test. Other employers found her job performance to be unsatisfactory because of her need for constant supervision, having little interest in the job, having a bad attitude, tardiness, lack of production, and lack of mechanical aptitude.
Johnson has failed to establish that JATC is liable for her claims of discrimination by her employers.
JATC argues that Johnson failed to exhaust the internal appeal procedures of JATC before filing a complaint with the Florida Commission on Human Relations. JATC Policy Statements provided that if an apprentice felt that he or she
were being treated unfairly by an action of JATC or terminated without due course that the apprentice could filed an appeal. The only requirements for the appeal were that it be in writing, be executed by the apprentice, and contain the name of the apprentice. Johnson's letter, date stamped November 9, 2001, fills the requirement of the appeal procedures set forth in the Policy Statements. Although the Policy Statements did not require the apprentice to request to appear before the committee, Johnson made such a request. After she was given several opportunities to appear before the committee and she failed to do so, the evidence does not show that the committee took any final action on her appeal. Based on the Policy Statements, Johnson did all that she was required to do to perfect her appeal. Thus, Johnson did exhaust the internal appeal procedures of JATC.
Johnson has the burden to establish by a preponderance of the evidence a prima facie case of unlawful discrimination and retaliation. If she establishes a prima facie case, the burden shifts to JATC to show that the termination was taken for a legitimate non-discriminatory reason. Once a non- discriminatory reason is offered by JATC, the burden shifts back to Johnson to demonstrate that the offered reason is merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981); McDonnell-Douglas Corporation v.
Green, 411 U.S. 792 (1973).
In order to establish a prima facie case of an unlawful employment practice in the instant case, Johnson must establish that: (1) she is a member of a protected class; (2) she was qualified for the JATC program; (3) she was terminated from the JATC program; and (4) others outside the protected class were not terminated when they committed the same actions for which she was terminated. See Hicks, 509 U.S. at 506.
Johnson established that she is black and a woman, which are protected classes. She failed to establish that she is qualified for the JATC program. Johnson admitted that because of her shoulder injury that she was unable to lift and move heavy materials, which is required of apprentices in the JATC program. She refused to take work referrals outside the Tallahassee area, which was a requirement of the apprenticeship program. Johnson failed to establish that apprentices outside the protected classes were not terminated due to failure to attend classroom training.
Assuming, arguendo, that Johnson had made a prima facie case, JATC offered legitimate non-discriminatory reasons for terminating Johnson. Johnson was terminated because she failed to attend training classes and she failed to respond to job referrals. She committed these offenses while she was on
disciplinary probation and after she was warned that she could be terminated for violating the Policy Statements. Johnson has failed to demonstrate that the reasons for her termination were false or pretextual.
To establish a prima facie case of retaliatory discharge, Johnson must prove: (1) that she was engaged in a protected activity; (2) that an adverse action by the Respondent against Johnson occurred; and (3) that there was a causal connection between her participation and the protected activity and the adverse action. See Tipton v. Canadian Imperial Bank, 872 F.2d 1491 (11th Cir. 1989).
Johnson failed to establish a prima facie case of retaliatory discharge. Johnson proved that she made complaints to JATC about her perceived discriminatory treatment by her employers and that she was terminated from the program. Johnson has failed to show that there was a causal connection between her making the complaints and her being terminated from the program. JATC made every effort to keep Johnson in the program. When she was having difficulty with her first employer, JATC pulled her from the job and placed her with another employer. When none of the contractors in Tallahassee would hire her, JATC made efforts to place her with new contractors who came to Tallahassee and had no experience with Johnson. Johnson was kept in the program when she was terminated from jobs and
received unfavorable performance evaluations from employers. She was advised by JATC what was required of her on the job and placed on probation rather than terminated from the program in March 2001.
JATC has requested an award of attorney fees pursuant to Section 760.11(6), Florida Statutes. Such an award may be ordered by the Florida Commission on Human Relations if it is determined that an action was "frivolous, unreasonable, or without foundation," or "that plaintiff continued to litigate after it clearly became so." Christianburg Garment Co. v. EEOC,
434 U.S. 412, 421-422 (1978). The evidence in this proceeding failed to prove that Johnson's action justifies an award of attorney fees.
RECOMMENDED that a final order be entered finding that Gainesville Electrical Joint Apprenticeship Training Committee did not discriminate against Carol D. Johnson based on race or sex and did not retaliate against her for making complaints of discrimination, dismissing her petition, and denying Gainesville Electrical Joint Apprenticeship Training Committee's request for attorney fees.
DONE AND ENTERED this 12th day of March, 2003, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2003.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Paul A. Donnelly, Esquire Donnelly & Gross
Laura A. Gross, Esquire Donnelly & Gross
Carol D. Johnson
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
