STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS M. PRESSON, )

)

Petitioner, )

)

vs. ) CASE No. 92-1675

)

WALT DISNEY WORLD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on January 29, 1993 at Orlando, Florida.

APPEARANCES

For Petitioner: Dennis M. Presson, pro se

2816 Fourth Street

Orlando, Florida 32820

For Respondent: Susan K. McKenna, Esquire

GARWOOD & McKENNA

322 East Pine Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment by the Respondent.

PRELIMINARY STATEMENT

By Petition for Relief, transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations on March 13, 1992, Dennis

1. Presson, Petitioner, seeks relief from an alleged unlawful employment practice. As grounds therefor Petitioner alleges that Walt Disney World, Respondent, retaliated against him in employment in retaliation for Petitioner's filing FCHR complaint #89-4968 before he was employed by Respondent. Petitioner further alleges that he was harassed with shift changes, reprimands and menial job assignments in an effort to force Petitioner to quit. Petitioner's initial charge of discrimination dated October 24, 1990 was investigated by the Florida Commission on Human Relations and resulted in a Determination: No Cause before this Petition for Relief was filed.

   
   

   This case was initially scheduled to be heard July 15, 1992, but was continued twice before being finally heard January 29, 1993. At the hearing Petitioner called two witnesses, including himself, Respondent called three

   witnesses, and 29 exhibits were admitted into evidence. Proposed findings were not submitted by either party. Having fully considered all evidence presented I submit the following:

   
   

   FINDINGS OF FACT

   
   

   1. In 1989 Dennis Presson filed a complaint of discrimination against Walt Disney World Co., Respondent, alleging he was denied employment with Disney by reason of his handicap (epilepsy). This complaint was settled between the parties by a Settlement Agreement (Exhibit 1) on June 23, 1989 at which time Respondent agreed to employ Petitioner as a Property Craftsworker Assistant and Petitioner was so employed on June 28, 1989.

      
      

   2. On October 6, 1989 Petitioner was given a written reprimand for refusing to follow a directive given by his shop foreman. (Exhibit 20.)

      
      

   3. On November 11, 1989 Petitioner was given an oral reprimand for disruptive behavior in the shop. (Exhibit 24.)

      
      

   4. On November 29, 1989 Petitioner was given an oral reprimand for excessive absences and tardiness. (Exhibit 26.) Over a period of four months Petitioner had been absent (or tardy) a total of 25.5 hours.

      
      

   5. On February 6, 1990 Petitioner was given a written reprimand for disrupting the harmonious and productive working atmosphere of the shop. (Exhibit 25.)

      
      

   6. On May 16, 1990 Petitioner was given a written reprimand for unprofessional craftsmanship for using chewing gum as a woodfiller to repair a chair. (Exhibit 22.)

      
      

   7. On July 23, 1990 Petitioner was given a written reprimand for using shop machinery in a unsafe manner. (Exhibit 23.)

      
      

   8. In August 1990 while Petitioner was working in the Furnishings Department to which he was originally assigned, the work in that department declined and, in lieu of laying off some of the workers in the Furnishings Department, three of these property craftsman assistants, including Petitioner, were temporarily assigned to the Resorts Decorating Department to work there through the first week of October 1990. (Exhibit 27.)

      
      

   9. On or about October 10, 1990 Petitioner was returned to the Furnishings Department and on October 11, 1990 was laid off due to lack of work.

      
      

   10. On November 2, 1990 the remaining six property craftworker assistants employed by Respondent in the Furnishings Department were laid off. All craftworker assistants who had been employed by Respondent for one year or more were given a right to return within 12 months if jobs became available. This is pursuant to a contract between Respondent and the employees' union.

       
       

   11. None of those property craftsworker assistants laid off at or about the time Petitioner was laid off were rehired as property craftsworker assistants during the ensuing 12 months.

       
       

   12. Petitioner contends that after he was laid off four new people were hired as property craftsworkers, a position for which he deemed himself qualified. However, the position of property craftsworker required carpentry

       experience which the four new hires had and Petitioner did not. Property craftsworker's assistant does not require carpentry experience to qualify for hiring in that position. During the time Petitioner was employed by Respondent no craftsworker assistant was promoted to craftsworker.

       
       

   13. Credible evidence was presented that while Petitioner was employed as a property craftsworker assistant the quality of his work was satisfactory so long as he was closely supervised by his foreman; however, when not closely supervised both the quality and quantity of his work output declined. Petitioner's testimony that he worked best when someone was not looking over his shoulder is not credible.

       
       

   14. Petitioner's testimony that he was transferred to Resorts Decorating and then transferred back to Furnishings to be laid off was totally discredited by competent evidence that, when faced with lack of work in Furnishings for property craftsworkers assistants, Disney attempted to have these employees temporarily moved other departments where their skills could be used for a short period in lieu of laying them off. When their function could no longer be justified at their temporary employment position, they were returned to the Department from which they were loaned. In the instance of Petitioner's transfer, he and two other craftsworker assistants were transferred to the Resorts Decorating Department from August 20, 1990 until the first week of October 1990. (Exhibit 27.)

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   16. Section 760.10(7), Florida Statutes, provides in pertinent part:

       
       

       It is an unlawful employment practice for an employer ... 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.

       
       

   17. Chapter 760, Florida Statutes is patterned after Title VII of the Civil Rights Act of 1964, 42 USC Section 2000e, et seq. (Title VII) Hargis v. School Board of Leon Count, 400 So.2d 103, 108 n.2 (Fla. 1 DCA 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1 DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).

       
       

   18. Federal courts have used the following three-pronged burden of proof for establishing a prima facie case of retaliation:

       
       

       1. The employee engaged in a protected activity;

       2. The employee was subject to an adverse employment decision; and

       3. There is a causal connection between A and B.

          Canino v. EEOC, 707 F.2d 468, (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982), appeal after remand, 744 F.2d 768, (11th Cir. 1984).

          
          

   19. Here Petitioner has established that he engaged in the protective activity of filing a discrimination complaint and that he was laid off. However, Petitioner has totally failed to establish a causal connection between the two.

       
       

   20. Absent direct evidence of retaliation Petitioner may establish retaliation under the shifting burden analysis set forth in Texas Dept. of Community Affairs v. Burdine, 450 US 248 (1981) and McDonald Douglas Corp. v. Green, 411 US 792 (1973).

       
       

   21. McDonald Douglas places upon the Petitioner the initial burden of proving a prima facie case of discrimination. Where discriminatory discharge is claimed, a prima facie case is proved under the McDonald Douglas approach by showing: 1) the Petitioner is qualified for the position; 2) he was discharged; and 3) he was replaced by a person outside the protected class.

       
       

   22. The facts here presented clearly show that Petitioner was not fired for cause but was laid off due to a lack of work in the Department in which he worked. Prior to Petitioner's termination all property craftsworker assistants in the Furnishings Department with less seniority than Petitioner were laid off before Petitioner was laid off. Following Petitioner's layoff, the remaining six property craftsworker assistants in the Furnishings Department were also laid off due to lack of work. Further, none of these property craftsworker assistants were rehired during the succeeding 12 months following their termination in which, pursuant to the Union contract with Disney, they had first choice for rehire for jobs in their classification.

       
       

   23. Testimony was presented that Petitioner's work performance was less than satisfactory; however, Respondent has never claimed this as a basis laying off Petitioner.

       
       

   24. By failing to present any evidence that his termination from employment was related to Petitioner's filing of a discrimination complaint, Petitioner has failed to present a prima facie case. Even if Petitioner had presented a prima facie case, Respondent has articulated a legitimate non- discriminatory reason for the challenged employment decision, viz. the insufficient work to justify keeping any of the property craftsworker assistants employed resulting in all employees in Petitioner's category being laid off.

       
       

   25. Petitioner here is alleging that his filing of a discrimination complaint against Respondent which led to his initial employment in 1989 was the reason of his being laid off more than one year later. In view of Petitioner's testimony that a subsequent discrimination charge was mailed to Respondent from the Florida Commission on Human Relations on November 2, 1990, the same day the remaining six property craftsworker assistants were laid off, it would appear that Petitioner made a subsequent allegation of discrimination, but this charge was not received by Respondent until well after Petitioner was laid off and could not have been a factor in Petitioner's layoff in October 1990.

       
       

   26. From the foregoing it is concluded that Petitioner has failed to prove a prima facie case of discrimination by Respondent in retaliation for Petitioner alleging discrimination in employment; and, even if Petitioner did present a

prima facie case, Respondent has articulated a legitimate non-discriminatory basis for the employment decision made regarding Petitioner's employment.

RECOMMENDATION

It is RECOMMENDED that the Petition for Relief from an Unlawful Employment Practice filed by Dennis M. Presson against Walt Disney World be dismissed.

DONE and ORDERED this 6th day of April, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1993.

COPIES FURNISHED:

Dennis M. Presson 2816 4th Street

Orlando, Florida 32820

Susan K. McKenna, Esquire

322 East Pine Street Orlando, Florida 32801

Margaret A. Jones/Clerk

Florida Commission on Human Relations Building F, Room 240

325 John Knox Road

Tallahassee, Florida 32302 4149

Dana Baird, Esquire General Counsel Building F, Room 240

325 John Knox Road

Tallahassee, Florida 32302 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 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.

Docket for Case No: 92-001675

Orders for Case No: 92-001675