STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS M. PRESSON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1904

)

CRAFT MAINTENANCE COUNCIL, ) CARPENTERS LOCAL UNION NO. 1820, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings (Division), held a formal hearing in this matter on July 18, 1996, in Orlando, Florida.

APPEARANCES

For Petitioner: Dennis M. Presson, Pro se

2816 4th Street

Orlando, Florida 32820

For Respondent: Thomas F. Egan, Esquire

Thomas F. Egan, P.A.

56 East Pine Street, Suite 300 Orlando, Florida 32801

STATEMENT OF THE ISSUE

Did Respondent discriminate against Petitioner because of his handicap and in retaliation for filing an earlier discrimination complaint with the Florida Commission on Human Relations, as alleged in Petitioner's Petition For Relief, in violation of Sections 760.01 - 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992?

PRELIMINARY STATEMENT

On May 14, 1994, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission) alleging that Respondent, Craft Maintenance Council, Carpenters Local Union No. 1820, had discriminated against him because of his handicap and in retaliation for filing an earlier Charge of Discrimination with the Commission, in violation of the Florida Civil Rights Act of 1992, as Amended. On March 11, 1996, after concluding its investigation, the Commission issued its determination that there was no reasonable cause to believe that an unlawful employment practice had occurred. Subsequently, Petitioner filed a Petition For Relief with the Commission which was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer (Administrative Law Judge) and the conduct of a hearing.

At the hearing, Petitioner testified on his own behalf and presented the testimony of Serapio S. Munoz and Michael F. Brewer. Petitioner's exhibits one through five were received as evidence. Respondent subpoenaed Serapio S. Munoz and Michael F. Brewer as its witnesses. However, Petitioner called them as witnesses, and Respondent did not offer any witnesses. Respondent's exhibits one through four were received as evidence.

A transcript of this proceeding was filed with the Division on August 28, 1996. Respondent filed a Motion to Extend Time to File Proposed Findings of Fact and Conclusions of Law which Petitioner did not timely oppose. The motion was granted with the understanding that any time constraint imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q- 2.031(2), Florida Administrative Code. The Respondent timely filed its proposed findings of fact and conclusions of law under the extended time frame. On October 2, 1996, Petitioner, through telephone conversation with the undersigned's secretary, indicated that he would be filing a motion for extension of time beyond that already granted in order to obtain a copy of the transcript without cost based on indigence. No motion has been filed by Petitioner to either extend the time for filing Proposed Findings of Fact and Conclusions of Law or to receive a free copy of the transcript based on indigence.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:

1. Petitioner checked the boxes for both Handicap and Retaliation in the section titled "Cause of Discrimination Based On" of the Charge of Discrimination filed by Petitioner on May 14, 1994.

   
   

2. In the section titled "Date Most Recent or Continuing Discrimination Took Place" of the Charge of Discrimination Petitioner indicated December 22, 1992.

   
   

3. In the section titled "The Particulars Are" of the Charge of Discrimination Petitioner indicated:

   
   

   1. PERSONAL HARM:

      
      

      On a continuing basis I have not been referred for work by my union, with the last occurrence on December 22, 1992.

      
      

   2. RESPONDENT'S REASON FOR ADVERSE ACTION:

      
      

      Mr. Mike Brewer, Union Business Agent, said that I was not wanted in the department in which I had previously worked.

      
      

   3. DISCRIMINATION STATEMENT:

I believe I have been discriminated against because of retaliation for filing (FCHR No. 90-8052) for the following reasons:

1. The last time I contacted Mr.

   
   

   Brewer he hung up on me.

   
   

   
   

   continuing

   
   

2. Mr. Brewer has referred other union

   
   

   members for work on a

   
   

   basis.

   
   

   1. A NOTICE OF DETERMINATION: NO CAUSE was issued by the Commission on March 11, 1996.

      
      

   2. In Section 3 of the Petition For Relief filed with the Commission on April 15, 1996, Petitioner alleges that Respondent violated the Florida Civil Rights Act of 1993, as Amended, as follows:

      
      

      1. Conspiring with company to isolate the HANDICAPPED Petitioner in a classification essentially made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990 signing of the A.D.A. (singling him out for "layoff") F.S. 760.10(4b).

         
         

      2. Filing a grievance to deter the Petitioner from filing any HANDICAP Discrimination complaints, and refusing to process it.

         
         

      3. Referring others for employment on a continuing basis, (F.S. 760.104(b).

         
         

      4. Refusing representation. (Foreman/union steward?)

      
      

   3. At all times material to this proceeding, Petitioner Dennis M. Presson was a member of the bargaining unit of the Craft Maintenance Council, Carpenters Local Union No. 1820.

   4. Respondent Craft Maintenance Council, Carpenters Local Union No. 1820 Statutes.

Commission and the courts.

as a Property Craftworker Assistant, and assigned Petitioner to the Furnishings

10. During August, 1990, the work in Furnishings declined and, in lieu of craftworker assistants, including Petitioner, were temporarily assigned on through the first week of October 1990.

October 11, 1990, was laid off due to lack of work in Furnishings. Petitioner

12. On November 2, 1990, the remaining six property craftworker assistants higher in seniority than Petitioner.

transferred back to Furnishings so that he could be laid off is without merit. department until their function could no longer be justified in lieu of laying

1. The lay-offs on October 11 and November 2, 1990, were caused by lack get back at Petitioner because of his handicap or in retaliation for filing an

   
   

2. On October 11, 1990, when Petitioner was laid off, Disney offered

   
   

   as custodians. Although other property craftworker assistants accepted work as

   
   

3. On October 12, 1990, Michael Brewer, Shop Steward filed an Employee of seniority - another worker with lower seniority had been retained.

Respondent settled with Disney for $2,500 rather than proceed to final and Petitioner received payment.

grievance or delayed or refused to process the grievance so as to deter

1. During the grievance process Disney again offered Petitioner a job as

2. From the time Petitioner was laid off on October 11, 1990, until December, 1992, Respondent referred Petitioner to six or seven jobs. These jobs covered every field where the work required unskilled or slightly skilled employees.

   
   

3. Petitioner declined each and every offer, stating that he was an artist and wanted a job as an artist.

   
   

4. Prior to Petitioner filing this complaint with the Commission, Respondent's last contact with Petitioner was around December 1992, when Petitioner informed Respondent that he had a job as an artist with Dollywood in Tennessee and was moving.

   
   

5. On August 27, 1992, Petitioner filed a charge against Respondent with the National Labor Relations Board alleging that Respondent "has restrained or coerced and is restraining and coercing Dennis M. Presson, a crafts worker assistant, in the exercise of rights guaranteed in Section 7 of the Act by refusing to advise him of the status of his grievance on his layoff, for arbitrary, invidious and discriminatory reasons and therefore has breached its of fair representation". The National Labor Relations Board dismissed the charge for lack of merit.

   
   

6. Respondent has referred Petitioner to jobs where Petitioner's skill matched the classification (unskilled or slightly skilled) of the job being offered.

   
   

7. There was no evidence that Respondent had refused or failed to refer Petitioner to jobs that matched his skill because of Petitioner's handicap or in retaliation for filing an earlier discrimination complaint against Disney with the Commission.

   
   

8. Petitioner presented no evidence of any job that matched his skill that was available through Respondent which Respondent failed or refused to refer Petitioner for any reason.

   
   

9. Based on Petitioner's allegation, Respondent's last refusal to refer Petitioner to an available job occurred in December 1992.

   
   

10. There was no evidence that Respondent: (a) conspired with Disney to isolate Petitioner in a classification made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990, signing of the

    A.D.A. (Americans with Disabilities Act); (b) conspired with Disney to single Petitioner our for lay off; or (c) refuse to represent Petitioner while a member of the union.

    
    

11. Petitioner has neither been employed nor has he attempted to obtain any gainful employment since he was laid off by Disney on October 11, 1990. During this period Petitioner has worked on this case and looked after his mother. Petitioner survives on food stamps and other governmental subsidies.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

(3) It is an unlawful employment practice for a labor organization:

1. To exclude or to expel from its membership, or otherwise to national origin, age, handicap, or marital status.

   
   

2. To limit, segregate, or classify its membership or applicants for

   
   

   individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an

   
   

   color, religion, sex, national origin, age, handicap, or marital status.

   
   

3. To cause or attempt to cause an employer to discriminate against an

32. Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 421 U.S.C., 2000(e-2), resort to

County v. Hargis, 400 So.2d 103, (Fla. 1st DCA 1981).

Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. discrimination cases. Petitioner retains the burden of proof throughout the

the Respondent must articulate some legitimate, nondiscriminatory reason for the evidenced that the reasons offered are not true, but rather a pretext for

34. To present a prima facie case, the Petitioner must present facts which otherwise unexplained, are more likely than not based on the consideration of (1978), cited in Burdine, 450 U.S. 248. The prima facie case serves to treatment. See, Teamsters v. United States, 431 U.S. 324 , 358 and n. 44 (1977).

case by showing: (1) that Petitioner has a handicap; (2) that Respondent has the failed or refused to refer Petitioner for job opportunities; and (4) that McDonald Douglas, 411 U.S. 792; Donaldson v. Taylor Products Division of

1. Petitioner has not established that his handicap was in any way a

   this case simply fails to establish that Respondent failed to refer Petitioner for jobs because of his handicap or for any other reason. Accordingly, it is concluded that Petitioner has failed to establish a prima facie case of discrimination. In any event, even if the Petitioner had succeeded in establishing a prima facie case of discrimination, Respondent has articulated and substantiated legitimate, non-discriminatory reasons for the actions complained of by the Petitioner, and Petitioner has presented no persuasive evidence that the articulated reasons are a pretext for discrimination because of his handicap.

   
   

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

   
   

   (7) It is unlawful practice for ... 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.

   
   

3. To establish a prima facie case of retaliation, Petitioner must show:

   (1) that he has engaged in a statutorily protected activity; (2) that Petitioner was subject to an adverse employment decision by the Respondent; and (3) that a causal connection exists between the two. 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).

   
   

4. Here Petitioner has established that he engaged in a statutorily protected activity of filing a discrimination complaint against Disney. However, Petitioner has totally failed to establish that he was subjected to adverse employment decisions by Respondent for having engaged in such activity.

   
   

5. Absent direct evidence of retaliation, Petitioner may establish retaliation under the shifting burden analysis set forth in Burdine, 450 U.S.

248 and McDonald Douglas, 411 U.S. 792. However, in this case Petitioner has simply failed to establish a prima facie case even under the shifting burden analysis.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly,

Recommended that the Petition for Relief filed by Dennis M. Presson against Craft Maintenance Council, Carpenters Local Union No. 1820 be dismissed.

RECOMMENDED this 27th day of November, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings

COPIES FURNISHED:

Sharon Moultry, Clerk Building F, Suite 240

325 John Knox Road

Dana Baird, General Counsel Human Relations Commission

Building F, Suite 240 Tallahassee, Florida 32303-4149

2816 4th Street

Orlando, Florida 32820

Thomas Egan, P.A.

56 East Pine Street

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-001904

Orders for Case No: 96-001904