Upon due notice, a disputed-fact hearing was held in this case on November 17, 2008, in Milton, Florida, before Ella Jane
P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Kimberly D. Webb, Esquire
Littler Mendelson, P.C.
Whether Respondent has committed a discriminatory employment practice against Petitioner by virtue of Petitioner's race. (In deference to Petitioner’s preference, his race will be referred-to as "Black.")
Following an August 14, 2008, Determination: No Cause by the Florida Commission on Human Relations, Petitioner timely- filed a Petition for Relief. This cause was referred to the Division of Administrative Hearings on or about September 18, 2008.
The file of the Division reflects all pleadings and orders intervening before the final disputed-fact hearing on
November 17, 2008.
At hearing, the parties’ Pre-hearing Stipulation was admitted as Joint Exhibit A, as interlineated at TR-62-63. Petitioner presented the oral testimony of Ron Kramer, Lenore Kimmons, James Walker, and Bobbie R. Williams and testified on his own behalf. Petitioner had Exhibits P-1 through P-4 and P-6 through P-7 admitted in evidence. Respondent presented the oral testimony of Bobbie R. Williams and had Exhibit R-1 admitted in evidence.
Respondent's oral motion for a directed verdict was treated as a motion for recommended order of dismissal, and denied, without prejudice to Respondent raising the same issue(s) again in its proposed recommended order.
A Transcript was filed on December 10, 2008.
Despite the undersigned providing copies of all exhibits Petitioner requested by telephone, and the entry, on
December 12, 2008, of a Post-hearing Order giving the date of the filing of the Transcript and explaining how to prepare a proposed recommended order, Petitioner filed no proposed recommended order subsequent to the filing of the Transcript, as had been agreed upon by the parties. However, Petitioner's item, entitled "Rebuttal," and filed November 25, 2008, has been considered as if it were his Proposed Recommended Order. On January 5, 2009, Respondent timely-filed a Proposed Recommended Order, entitled "Respondent's Proposed Recommended Findings of Fact and Conclusions of Law," which also has been considered.
The parties' Pre-hearing Stipulation has been utilized, as appropriate, in crafting this Recommended Order, but non- substantive changes have been made in consideration of space, clarity, chronology, grammar, and punctuation.
Lenore Kimmons is an adult "White" female. She was initially hired in July 2004, in Milton, Santa Rosa County, Florida, by Laidlaw Education Services (Laidlaw) as a school bus driver. At that time, Laidlaw had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 13, 14, and 15.)
Effective April 1, 2005, Laidlaw and Amalgamated Transit Union (Local 1395/AFL-CIO), a mechanics’/maintenance union, entered into a collective bargaining agreement.
(Stipulation 8.) This collective bargaining agreement (mechanics’ union contract) continued to be in effect when Petitioner was initially hired by Laidlaw, and by the use of executed “successor clauses,” continued in effect through the period of alleged discrimination. (Stipulation 8.)
In the absence of any persuasive evidence to the contrary, the undersigned takes the “effective date” of the mechanics’ union contract to constitute its “ratification” date, as well.
Petitioner is an adult “Black” male. Laidlaw initially hired him in Milton, Florida, on September 18, 2006, as a "B Mechanic.” At that time, Laidlaw still had the contract for driving and repairing Santa Rosa County school buses. (Stipulations 1, 2, 3, and 7.)
Petitioner was subject to the mechanics’ union contract, beginning with his September 18, 2006, date of hire and continuing past the alleged date of discrimination in 2008.
Petitioner has had extensive heavy vehicle mechanical experience since 1989. He has worked for the United States Air Force and Department of Defense in Europe, and he supervised two vehicle maintenance shops prior to being hired by Laidlaw. He holds an Associate degree in automotive technology.
Upon being hired in July 2004, Ms. Kimmons had begun work as a school bus driver (Stipulation 14) and shortly
thereafter began to train as a mechanic. When she began training as a mechanic, she was reclassified into a “C Mechanic” position. As a “C Mechanic,” Ms. Kimmons ceased to be subject to the bus drivers’ union’s collective bargaining agreement and became subject to the mechanics’ union contract that eventually governed Petitioner. Sometime in 2006, Ms. Kimmons began to clerk in the office, but she continued to be classified as a “C Mechanic” and continued to be subject to the mechanics’ union contract.
The mechanics’ union contract makes a distinction between employees hired before its ratification on April 1, 2005, such as Ms. Kimmons, and employees hired afterwards, such as Petitioner. It does not make a distinction based upon when one became a mechanic.
The mechanics’ union contract provides, in pertinent
part:
MAINTENANCE DEPARTMENT JOB DESCRIPTIONS/CLASSIFICATIONS ARTICLE 28
Section 1 only applies to current employees who are already employed prior to the ratification of this labor agreement.
* * *
“A” Mechanic – required to have a minimum of 2 years experience
Is defined as maintenance employee(s) who hold a Florida State Certification for School Bus Inspections. Required to work with limited supervision. The employee
should have good skills and who is capable of repairing bus and white fleet including brake inspections and repair. The employee is capable of assisting and instructing lower classification mechanics. Must have and maintain a Florida CDL including “S” endorsement.
“B” Mechanic – required to have a minimum of 3 years experience
Is defined as maintenance employee(s) who assist higher classification mechanics. Work with supervision when required. Assists with inspection including all necessary repairs. Must have and maintain a Florida CDL including “S” endorsement.
“C” Mechanic – entry level employee(s) Is defined as maintenance employee(s)
who shuttle, clean, fuel, and as otherwise directed by management. Also responsible for minor cosmetics around shop such as crush oil filters, sweep areas in need, empty trash, dip tanks, and assist mechanics if necessary with full supervision by other Management personnel. Must have and maintain a Florida CDL including “S” endorsement.
* * *
Section 5
As of the ratification of this AGREEMENT the job descriptions for all new hires will be as follows:
* * *
“A” Mechanic
Is defined as a maintenance employee who holds a minimum of three (3) ASE School Bus Certifications to include at least a) Air Brake, b) Steering and Suspensions, c) Diesel Engines and a Florida State Certification for School Bus Inspections.
The employee is required to have a minimum of 3 years of “medium/heavy duty” technician
experience (“B” Mechanic level). The employee must have good skills, is capable of diagnosing and repairing school buses and white fleet including brake inspections and repair in a reasonable length of time, in a professional manner and be able to work with limited supervision. The employee is also capable of assisting and instructing lower classification mechanics. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement.
“B” Mechanic
Is defined as a maintenance employee who holds a minimum of two (2) ASE School Bus Certifications to include at least a) Air Brake[1] and b) any of the other six (6) ASE School Bus Certifications. The employee is required to have a minimum of 2 years of “medium/heavy duty technician experience.
The employee must also have good working skills, be able to assist with any inspection and all repairs as well as work with supervision when required. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement.
“C” Mechanic
Is defined as a maintenance employee who is capable of shuttling, cleaning fueling and as otherwise directed by Management. The employee is responsible for minor cosmetics around the shop such as crush oil filters, sweep areas in need, empty trash, dip tanks and assist mechanics if necessary with supervision by other maintenance personnel. The employee must have and maintain a Florida Commercial Drivers License with an “S” Endorsement. (Emphasis supplied)
At no time material has either Petitioner or
Ms. Kimmons ever been a member of the mechanics’ union, but from its inception, the collective bargaining agreement between
Laidlaw and the mechanics’ union applied to all mechanical employees, regardless of any employee’s union membership or lack of union membership.
Petitioner has been outspoken in his refusal to join the mechanics’ union.
Laidlaw was purchased by First Student, Inc., on October 1, 2007. (Stipulation 9.)
Upon First Student, Inc.’s purchase of Laidlaw, Petitioner and Ms. Kimmons became employees of First Student, Inc. (Stipulation 10.) First Student, Inc., is the only Respondent in this cause.
Upon First Student, Inc.’s purchase of Laidlaw, the mechanics’ union contract then in existence was carried over to bind First Student, Inc.
At no time material has either Petitioner or
Ms. Kimmons possessed an ASE School Bus Certification in Air Brake, an ASE School Bus Certification in Steering and Suspensions, or an ASE School Bus Certification in Diesel Engines. (Stipulations 4, 5, and 6.)
Petitioner and Ms. Kimmons took the examination for the Florida State Certification for School Bus Inspections in February 2008. (Stipulations 11 and 12.)
Petitioner could not demonstrate that Ms. Kimmons did not have the prerequisite number of years of experience or other qualifications to sit for the examination.
Petitioner’s testimony, that in February 2008, and up to the date of hearing herein, he was Respondent's only “Black” mechanic in Mechanic Classes A, B, and C, was not refuted.
In February 2008, Petitioner and Ms. Kimmons both passed the Florida State Certification for School Bus Inspections examination. At that time, both of them believed that successful completion of the examination would entitle them to be appointed as Class A mechanics, to a rise in pay grade, and to a $1.00/per hour raise in pay. (Stipulations 16, 17, and
18.)
Lenore Kimmons requested an increase in pay and an
increase in grade from “C Mechanic” to “B Mechanic” after she completed her Florida State Certification for School Bus Inspections. (Stipulation 16.) Petitioner requested an increase in pay and an increase in grade from “B Mechanic” to “A Mechanic,” after he completed his Florida State Certification for School Bus Inspections. (Stipulation 18.)
In February 2008, Ron Kramer was the immediate supervisor of both Ms. Kimmons and Petitioner. He notified his superiors, up the line of command, that Ms. Kimmons and Petitioner had passed their February examination and that he,
Mr. Kramer, believed that each of them was entitled to a rise in grade and to a commensurate raise in pay. (Stipulations 16, 17, and 18.)
Approximately two months passed after the February 2008, examination, and Ms. Kimmons did not receive her requested rise in grade or raise in pay. Petitioner, likewise, did not receive any rise in grade or raise in pay.
The union filed grievances on behalf of Petitioner and on behalf of Ms. Kimmons, resulting in an increase in pay and a rise to "B Mechanic" for Ms. Kimmons, but no raise and rise to “A Mechanic” for Petitioner. (Stipulations 17 and 20.)
Pursuant to the union contract and Ms. Kimmons’ hire prior to its ratification, the raise/rise from Class C to Class B did not require any ASEs, but a raise/rise from Class B to Class A would have required Petitioner, who was hired after contract ratification, to have three specific ASEs that he did not possess. These ASEs were in Air Brake, Steering and Suspensions, and Diesel Engines.
Ms. Kimmons had been hired in 2004, before the 2005, effective date of the collective bargaining contract for mechanics. Petitioner had been hired in 2006, after the 2005, effective date of the collective bargaining agreement for mechanics.
Petitioner's rate of compensation was $12.99/hour, when his request for a raise in pay and rise in grade was denied. Had his grievance been successful, he would have received $1.00 more per each hour worked as an "A Mechanic." (Stipulation 19.)
First Student, Inc., ceased all operations in Santa Rosa County, effective June 30, 2008. (Stipulation 21.)
Petitioner has not been employed by First Student, Inc., since June 30, 2008. (Stipulation 22.)
Most, if not all, of First Student, Inc.’s employees in Santa Rosa County, including Petitioner, were hired by Durham School Services in July 2008, at the same respective pay and grade at which they were employed by First Student, Inc., on June 30, 2008. (Stipulation 24.)
Petitioner is currently employed by Durham School Services and has been so employed since July 1, 2008. (Stipulation 23.)
Had Petitioner received his raise in pay and rise in grade in February 2008, under First Student, Inc., he would have continued to have received pay and all emoluments at that higher grade and rate after Durham School Services took over in July 2008.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1), 120.569, and 760.10(1)(a), Florida Statutes, (2008).
The shifting burdens of proof in discrimination cases, pursuant to Chapter 760, Florida Statutes, have been cogently explicated in the seminal case of Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), which stated:
Pursuant to the [Texas Department of Community Affairs v.] Burdine, [450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207
(1981)] formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision, a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reasons given. If the employer satisfied its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The
employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimination.
Herein, Petitioner, a “Black” man, asserts that he was subjected to racial discrimination when he was not given a pay and grade increase upon successfully obtaining, via examination, a Florida State Certification for School Bus Inspections, when a “White” woman was given a pay and grade increase.
Petitioner attributes the decisional delay and ultimate denial of his upgrade to Class A, to union interference and prejudice against himself, personally, because of his anti- union stance and also to union attempts to prevent Ms. Kimmons, because she is a female and a clerk in the office, from climbing the mechanics’ classification ladder. He simultaneously perceives the union’s and his superiors’ actions of delay and denial as racially discriminatory against himself as a “Black.” Some of these theories, even had they been proven, which they were not, are clearly not directed at Petitioner and/or are outside of any racial motivation by either the Employer or the union.
Although Petitioner’s perceptions of racial animus in the delay of a decision and non-promotion were not verified by the evidence, it is accepted that the union would, and did, automatically oppose any classification or promotion process that deviated from the mechanics’ collective bargaining contract which was in place.
That said, the evidence shows that the Employer’s decision to not grant a pay and grade increase to Petitioner was made, pursuant to the terms of a collective bargaining contract. The “White” woman was “promoted,” as it were, from a “C Mechanic” to a “B Mechanic” because she met the collective bargaining contract’s criteria for that rise in grade and raise in pay under Article 28, Section 1, of the union contract. She was not promoted to Class A.
Petitioner, who was already a “B Mechanic,” was not “promoted” from a “B Mechanic” to an “A Mechanic” either. Neither the “White” woman nor the “Black” man was promoted to “A Mechanic” because neither of them met the collective bargaining contract’s requirements for a Class A mechanic, based on their respective hiring dates.
Both candidates passed the same examination in February 2008, but that was only one criterion that Petitioner, with his hiring date, needed to meet under Article 28, Section 5, of the union contract, in order to become an “A Mechanic.”
To become an “A Mechanic,” whether one were a “Black” or “White,” male or female, union or non-union employee, anyone hired after the contract came into being had to already possess ASE School Bus Certifications in Air Brake, Steering and Suspensions, and Diesel. Petitioner had none of these certifications. Petitioner may, or may not, be objectively correct that his education and years of experience and training should outweigh this requirement, but, pursuant to the employer’s union contract they do not. That said, Petitioner has proven disparate treatment, but he has not proven disparate treatment of similarly situated employees on the basis of race.
“An employee’s feelings and perceptions of being discriminated against are not evidence of discrimination.” See Bickerstaff v. Vassar College, 196 F.3d 435 (2nd Cir. 1999). Employers may make employment decisions that are fair, unfair, good, bad, stupid, or smart, but so long as they do not make them for one of the discriminatory reasons forbidden by Section 760.10(1)(a), Florida Statutes, this forum provides no recourse. “Courts do not sit as a super-personnel department that re- examines an entity’s business decisions.” See Chapman v. A. I.
Transportation, 229 F.3d 1012 (11th Cir. 2000); Cofield v.
Goldkist, Inc., 267 F.3d 1264, 1269 (11th Cir. 2001).
Having failed to establish a prima facie case of discrimination on the basis of race, Petitioner cannot prevail.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein.
DONE AND ENTERED this 6th day of February, 2009, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2009.
1/ This clause leaves open to interpretation whether Petitioner, without an ASE in Air Brake, qualifies as a “B Mechanic.”
Kimberly D. Webb, Esquire Littler Mendelson, P.C.
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.
