16-004124 Kurt Shannon vs. Amalgamated Transit Union, Local 1593 Status: Closed Recommended Order on Friday, December 2, 2016.

Summary: Petitioner failed to prove that he was subject to an unlawful employment practice by Respondent based on his race. Respondent presented a legitimate, non-discriminatory reason for its decision not to assign an attorney to represent Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KURT SHANNON,

Petitioner,

vs. Case No. 16 - 4124

AMALGAMATED TRANSIT UNION,

LOCAL 1593,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this m atter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on September 29, 2016, by

video teleconference with sites in Tallahas see and Tampa,

Florida.

APPEARANCES

For Petitioner: Kurt Shannon , pro se

3751 Beneraid Street

Land O Ó Lakes, Florida 34638

For Respondent: Tobe M. Lev, Esquire

Egan, Lev and Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner, Kurt Shannon, was subject to an unlawful

employment practice by Respondent, Amalgamated Transit Union,

Local 1593, based on his race in violatio n of the Florida Civil

Rights Act.

PRELIMINARY STATEMENT

On January 16, 2016, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(the ÐCommissionÑ) alleging that Respondent, Amalgamated Transit

Union, Local 1593 (the ÐUnionÑ) , violated section 760.10 , Florida

Statutes, by discriminating against him based on his race.

On June 16, 2016, the Commission notified Petitioner that

reasonable cause did not exist to believe that the Union had

committed an unlawful employment p ractice.

On July 16, 2016, Petitioner filed a Petition for Relief

with the Commission alleging a discriminatory employment practice

in violation of the Florida Civil Rights Act. The Commission

transmitted the Petition to the Division of Administrative

Hea rings (ÐDOAHÑ) to conduct an evidentiary hearing.

The final hearing was held on September 29, 2016. At the

final hearing, Petitioner testified on his own behalf.

Petitioner Exhibits 1 through 20 were admitted into evidence.

The Union presented the testi mony of Daniel Silva (the UnionÓs

current president) and Henry Marr (the UnionÓs financial

secretar y). Respondent Exhibits A, C through F, and H through K

were admitted into evidence.

A one - volume Transcript of the final hearing was filed on

October 31, 2 016. At the close of the hearing, the parties were

advised of a ten - day timeframe following DOAHÓs receipt of the

hearing transcript to file post - hearing submittals. Both parties

filed post - hearing submittals which were duly considered in

preparing this Recommended Order.

FINDING S OF FACT

1. Petitioner is a former bus operator for the Hillsborough

Area Regional Transit (ÐHARTÑ). Petitioner worked for HART fr om

2006 through January 2014.

2. At all times relevant to this proceeding, Petitioner was

a memb er in good standing with the Union. Petitioner joined the

Union in 20 06 as soon as he was eligible.

3. The Union is the bargaining unit for HART. The Union

has approximately 350 - 600 members. The UnionÓs membership

consists of a majority of African - Amer ican and Latino members .

The UnionÓs executive board is also majorit y African - American and

Latino.

4. HART terminated Petitioner based on an incident that

occurred on December 6, 2013. At the time, Petitioner was

operating his bus and had stopped to all ow passengers to board.

A young male patron climbed onto the bus and attempted to pay his

bus fare with a pass card. The patronÓs pass card would not

work. Petitioner questioned the patron as to whether his pass

card was expired. The patron became unru ly and began cursing.

Petitioner admonished him and ordered him off the bus.

5. Immediately, thereafter, Petitioner left his seat

(revealing he was not wearing his seatbelt) and followed the

patron off the bus. Petitioner explained that he wanted to

ens ure that the patron did not attempt to re - enter the bus. When

he stepped off the bus, however, Petitioner recounted that the

two men exchanged heated words. Without warning, the patron

lunged at Petitioner and hit him in his face. Petitioner

testified t hat he could not retreat. Therefore, he punched the

patron back in an attempt to defend himself. Several bus

passengers stepped in to stop the fight. One of them called the

police.

6. Upon learning of the incident, HART initiated

termination proceeding s. HART asserted that Petitioner should

never have left his seat. Instead, once the patron exited the

bus, Petitioner should have closed the bus door and proceeded on

his route. HART charged Petitioner with three infractions:

1) use of threat or force , other than self - defense (a class ÐAÑ

violation w hich may result in termination);

2) disorderly/inappropriate conduct by leaving his seat and

following the patron off the bus (a class ÐBÑ violation); and

3) failing to actively and properly engage in wor k

duties/responsibilities by not having his seat belt fas tened (a

class ÐCÑ violation).

7. On January 14, 2014, HART formally notified Petitioner

that it was terminating his employment. HART dismissed

Petitioner bas ed on the class ÐAÑ violation.

8. HART and the Union are parties to a collective

bargaining agreement entitled Contract Between Hillsborough Area

Regional Transit Authority and Amalgamated Transit Union Local

1593 (the ÐBargaining AgreementÑ). The Bargaining Agreement

provides a grievance pro cedure to process complaints by aggrieved

HART employees. The grievance procedure culminates in final and

binding arbitration. The Union is required to process grievances

for its members.

9. Following his termination, Petitioner requested the

Union take his case to arbitration. The Union executive board

agreed. The Union timely notified HART that it was initiating

the grievance process to contest PetitionerÓs discharge.

PetitionerÓs grievance culminated in an arbitration hearing which

was held on Dece mber 9, 2014.

10. The crux of PetitionerÓs complaint of unlawful

discrimination, as more fully set forth below, is that the Union

did not provide an attorney to represent him at his arbitration

hearing. Instead, then - Union President James Saunders, a non -

lawyer, d ecided to personally represent Petitioner at the

arbitration.

11. Unfortunately for Petitioner, his arbitration was not

decided in his favor. Petitioner testified at the arbitration

and asserted that his actions were simply self - defense. The

A rbitrator agreed that Petitioner did not commit the alleged

class ÐAÑ violation of assault because the evidence failed to

show that Petitioner had placed the patron in fear of imminent

harm. However, the Arbitrator concluded that Petitioner did

commit two class ÐBÑ violations by leaving his seat and exiting

the bus, and by gesturing in a provocative manner towards the

patron. Moreover, the Arbitrator found PetitionerÓs testimony to

be less than credible because his version of events was

inconsistent with his prior statements and other relevant

evidence. Under the Bargaining Agreement, Article 74, Section 1,

the penalty for two class ÐBÑ violations in close proximity

includes discharge. Consequently, on or about March 13, 2015,

the Arbitrator issued an op inion denying PetitionerÓs request for

relief and upholding the termination.

12. At the final hearing, Petitioner asserted that he lost

his grievance proceeding because of inferior representation at

the arbitration hearing. Petitioner complained that Pre sident

Saunders did a very poor job of defending him. Petitioner

thought President Saunders was ineffective and unprepared, and

made no effort on his behalf at the hearing. Petitioner

complained that President Saunders did not offer any substantive

comme nts and failed to present PetitionerÓs prim ary defense to

the Arbitrator -- that Petitioner was not the aggressor and did not

initiate the confrontation. As an example, Petitioner claimed

that President Saunders did not offer the police report into

evidence which would have supported his version of the incident. 2 /

Neither did President Saunders contest HARTÓs witnessesÓ

testimony or argue for a more appropriate punishme nt based on

similar incidents.

13. At the final hearing, Petitioner insisted that he had a

good case. He asserted that he would have prevailed at the

arbitration if he had an attorney representing him. 3 /

14. Petitioner claims that the Union deliberately decided

not to provide him an attorney based on his race. Petitioner

testified that the Union obtained attorneys to represent other

Union members at their arbitration hearings. Petitioner did not

believe that the Union took his case seriously.

15. President Saunders was not present at the final

hearing. Henry Marr, the UnionÓs financial s ecretary, testified

regarding why President Saunders represented Petitioner instead

of an attorney. Mr. Marr explained that the Union is not

required to retain an attorney to represent its members in

grievance proceedings. It is only requir ed to provide

representation. Mr. Marr relayed that the Union has conducted

many hearings with non - lawyer representatives. 4 /

16. Mr. Marr recounted that in PetitionerÓs grievance

proceeding, after the Union agreed to take the case to

arbitration, President Saunders de cided that PetitionerÓs matter

did not warrant an attorney. Mr. Marr expressed that the Union

felt comfortable with President SaundersÓ decision to represent

Petitioner himself. President Saunders had significant

experience advocating for Union members. The Union had arranged

for President Saunders to receive training from the George Meany

Institute in Maryland on how to advocate for employees in

arbitrations. President Saunders had also participated in many

arbitration hearings on behalf of Union membe rs. Mr. Marr

believed that President SaundersÓ decision to represent

Petitioner himself was appropriate because PetitionerÓs grievance

did not present any technical questions and did not involve the

application or inter pretation of Florida Statutes.

17. In 2015, following PetitionerÓs arbitration decision,

President Saunders resigned from his post with the Union. The

U nion replaced him with its vice - president, Daniel Silva. At the

final hearing, President Silva testified regarding President

SaundersÓ de cision to represent Petitioner. President Silva

opined that President Saunders was sufficiently knowledgeable and

experienced t o present PetitionerÓs case.

18. President Silva also relayed that financial concerns

factor into the UnionÓs decision on wheth er to provide private

legal counsel to represent members. The Bargaining Agreement

states that each party Ðshall bear the cost of preparing and

presenting its case.Ñ 5 / The Union is conscious of the need to

conserve its funds whenever possible , including attorneysÓ fees.

19. At the final hearing, Petitioner presented the names of

three other Union members for whom the Union provided legal

counsel at arbitration hearings. Petitioner did not provide

details regarding the circumstances of HARTÓs employment actions

or whether the underlying facts of each matter were substantially

similar to his incident. At the final hearing, the Union

conceded that for most arbitration hearings it offers its members

the services of an attorney. However, President Silva tes tified

that President Saunders represented at least one other white

Union membe r at an arbitration in November 2014. This member,

Robert Rackham, did not prevail at his arbitration. 6 /

20. President Silva and Mr. Marr testified that

PetitionerÓs race had no bearing in President SaundersÓ decision

not to assign an attorney to represent Petitioner at his

arbitration hearing. Rather, President Saunders made his

decision because he believed he could competently represent

Petitioner on his own. Mr. Marr testi fied that he is not aware

of any decision the Union has m ade based on a memberÓs race.

21. Based on the evidence and testimony presented at the

final hearing, Petitioner did not demonstrate, by a preponderance

of the evidence, that the Union discriminated against him based

on his race in violation of the Florida Civil Rights Act.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to s ections 120.569 and 120.57(1) , Florida

Statutes .

23. Petitioner claims that the Union discriminated against

him in violation of the Florida Civil Rights Act of 1992

(ÐFCRAÑ). The FCRA protects individuals from race discrimination

by a labor organization. See §§ 760.10 and 760.11, Fla . Stat.

Section 760.10(3) states, in pertinent part:

(3) It is an unlawful employment practice

for a labor organization:

(a) To exclude or to expel from its

membership, or otherwise to discriminate

against, any individual because of race,

color, relig ion, sex, pregnancy, national

origin, age, handicap, or marital status.

24. Section 760.11(7) permits a party who receives a no

cause determination from the Commission to request an

administrative hearing before DOAH. Following an administrative

hearing , Ð[i]f the administrative law judge finds that a

violation of the [FCRA] has occurred, he or she shall issue an

appropriate recommended order to the commission prohibiting the

practice and recommending affirmative relief from the effects of

the practice, including back pay.Ñ Id.

25. Petitioner carries the burden of proving by a

preponderance of the evidence that the Union committed the

unlawful employment practice. See Fla. DepÓt of Transp. v.

J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).

26. The FCR A is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Specifically regarding the

subject matter of PetitionerÓs complaint, t he statutory language

in section 760.10(3) is very similar to that found in its fe deral

counterpart in 42 U.S .C. § 2000e - 2(c). Florida c ourts hold that

federal decisions construing Title VII are applicable when

considering claims under the FCRA. Harper v. Blockbuster Entm't

Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998); Valenzuela v.

GlobeGround N. Am., LLC , 18 S o. 3d 17, 21 (Fla. 3d DCA 2009); and

Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

27. Discrimination may be proven by direct, statistical, or

circumstantial evidence. Valenzuela , 18 So. 3d at 22. Direct

evidence is evidence t hat, if believed, would prove the existence

of discriminatory intent behind the employment decision without

any inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); and Holifield v. Reno , 115 F.3d

1555, 1561 (11th Cir. 1997). Courts have held that ÐÒonly the

most blatant remarks, whose intent could be nothing other than to

discriminate . . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th C ir. 1999)(citations omitted).

28. Petitioner presented no direct evidence of race

discrimination on the part of the Union. Similarly, the record

in this proceeding contains no statistical evidence of

discrimination by the Union in its decisions affecting

Petitioner.

29. In the absence of direct or statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of race discrimination to prove his case. For

discrimination claims involving ci rcumstantial evidence, Florida

c ou rts follow the three - part, burden - shifting framework set forth

in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973), and its progeny. See also

Valenzuela , 18 So. 3d at 21 - 22; and St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455, 458 (Fla. 3d DCA 2011).

30. Adapting the McDonnell Douglas framework to an

allegation of unlawful employment practice by a labor

organization, a petitioner bears the initial burden of

establishing, by a preponderance of the evidence, a prima facie

case of discrimination. To establish a prima facie case, the

petitioner must show that: (1) he belongs to a racial minority

(a protected class) ; (2) the labor organization failed to process

or inadequately processed a meritorious grievance ; (3) the labo r

organization had an obligation to provide representation;

(4) despite its obligation, the labor org anization denied

representation; and (5) similarly situated Union members outside

his protected class were treated differently. Donaldson v.

Taylor Prods . Div . of Tecumseh , 620 F.2d 155, 159 (7th Cir.

1980) 7 / ; see also Dr. James J. Weaver v. Leon Classroom Teachers

Ass Ó n , Case No. 86 - 3715 (Fla. DOAH Apr. 17, 1987) ; and Warren D.

Brown v. Dade Cn ty . Police Benevolent Ass Ó n , Case No. 93 - 3994

(Fla. DOAH Apr. 7, 1994).

31. Demonstrating a prima facie case is not difficult, but

rather only requires the petitioner Ðto establish facts adequate

to permit an inference of discrimination.Ñ Holifield , 115 F.3d

at 1562.

32. If the petitioner establishes a prima facie case, he

creates a presumption of discrimination. At that point, the

burden shifts to the labor organization to articulate a

legitimate, non - discriminatory reason for taking the adverse

action. See Valenzuela , supra , at 22. The reason for the labor

org anizationÓs decision should be clear, reasonably specific, and

worthy of credence. See DepÓt of Corr. v. Chandler , 582 So. 2d

1183, 1186 (Fla. 1st DCA 1991). The labor organization has the

burden of production, not the burden of persuasion, to

demonstrat e to the finder of fact that the decision was non -

discriminatory. See Wilson v. B/E Aerospace, Inc. , 376 F.3d

1079, 1087 (11th Cir. 2004). This burden of production is

Ðexceedingly light.Ñ Holifield , 115 F.3d at 1564. The labor

organization only needs to produce evidence of a reason for its

decision. It is not required to persuade the trier of fact that

its decision was actually motivated by the reason given. See

St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502 (U.S. 1993).

33. If the labor organization meets its burden, the

presumption of discrimination disappears. The burden then shifts

back to the petitioner to prove that the labor organizationÓs

proffered reason was not the true reason but merely a ÐpretextÑ

for discrimination. See Combs v. Plantat ion Patterns , 106 F.3d

1519, 1538 (11th Cir. 1997); Valenzuela , 18 So. 3d at 25.

34. In order to satisfy this final step of the process, the

petitioner must show Ðdirectly that a discriminatory reason more

likely than not motivated the decision, or indire ctly by showing

that the proffered reason for the . . . decision is not worthy of

belief.Ñ Chandler , 582 So. 2d at 1186 (citing Tex. Dep't of

Cmty. Aff . v. Burdine , 450 U.S. 248, 252 - 256 (1981)). The

proffered explanation is unworthy of belief if the pet itioner

demonstrates "such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons for its action that a reasonable factfinder

could find them unworthy of credence.Ñ Combs , 106 F.3d at 1538;

see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133,

143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). The petitioner

must prove that the reasons articulated were false and that the

discrimination was the real reason for the action. Cit y of Miami

v. Hervis , 65 So. 3 d 1110, 1117 (Fla. 3d DCA 2011) (citing

St. Mary's Honor Ctr . , 509 U.S. at 515) ("[A] reason cannot be

proved to be 'a pretext for discrimination ' unless it is shown

both that the reason was false, and that discrimination was t he

real reason.").

35. Despite the shifting burdens of proof, Ðthe ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.Ñ Burdine , 450 U.S. at 253, 10 1 S. Ct.

at 1089, 67 L. Ed. 2d 207; Valenzuela , 18 So. 3d at 22.

36. Applying the burden shifting analysis to the facts

found in this matter, Petitioner did not meet his burden of

proving that the Union discriminated against him based on his

race. Beyond the first prong of the prima facie case, that

Petitioner belongs to a racial minority, Petitioner did not

sufficiently demonstrate that the Union inadequately processed

his grievance ; did not adequately represent him during the

arbitration ; or was obligat ed to retain an attorney to represent

him at the arbitration hearing. The evidence in the record shows

that, following PetitionerÓs request, the Union agreed to

represent him in his grievance. The evidence also establishes

that the Union properly followe d the procedures outlined in the

Bargaining Agreement and dutifully arranged for PetitionerÓs

matter to be presented to an arbitrator. Finally, the Union

provided Petitioner a representative to accompany and assist him

during the arbitration hearing.

37. Turning to PetitionerÓs specific complaints, Petitioner

did not establish that the UnionÓs alleged inadequate

representation directly led to the ArbitratorÓs decision to deny

his grievance. At his hearing, Petitioner was given the

opportunity to testify before the Arbitrator and present his

primary argument of self - defense. In addition, the ArbitratorÓs

decision reveals that he considered the documentary evidence (the

police reports) which Petitioner asserts President Saunders

failed to submit for consid eration. Further, the ArbitratorÓs

decision divulges that he based his ruling on facts that

Petition er admitted during the hearing -- that Petitioner was not

wearing his seatbelt and that he left the bus to confront a

belligerent patron.

38. Furthermore, P etitioner did not prove that the Union

was required to provide an attorney to represent him during the

grievance proceeding. Petitioner did not produce evidence or

documentation that the Union had a contractual, statutory, or

legal obligation to assign it s members legal counsel to assist

with an arbitration. 8 / N o provision of the Bargaining Agreement

required the Union to obtain an attorney to represent a member at

an arbitration hearing. Accordingly, the Union could lawfully

decide to provide Petitioner a lay representative instead of an

attorney. Therefore, t he Union fulfilled its legal obligation to

Petitioner when President Saunders decided to represent

Petitioner personally.

39. Finally, Petitioner failed to establish that the Union

represented sim ilarly situated, white members differently. In

determining whether employees are similarly situated for purposes

of establishing a prima facie case, Ð[w]hen comparing similarly

situated individuals to raise an inference of discriminatory

motivation, these individuals must be similarly situated in all

relevant respects.Ñ Jackson v. BellSouth Telecomm. , 372 F.3d

1250, 1273 (l1th Cir. 2004). The standard is a Ðfairly rigorous

one.Ñ Rioux v. City of Atlanta , 520 F.3d 1269, 1281 (11th Cir.

2008); Holifield , 115 F.3d at 1562.

40. At the final hearing, Petitioner did not present

evidence or testimony identifying a non - minority Union member

Ðsimilarly situated in all relevant respectsÑ who was provided an

attorney during the grievance process. Although Petitio ner

offered the names of several Union members for whom the Union

allegedly provided legal counsel, Petitioner did not demonstrate

that these individuals were terminated based on the same class

ÐBÑ violations or set of circumstances that led to the

Arbitra torÓs decision to uphold his termination. Accordingly, no

competent substantial evidence in the record supports

PetitionerÓs allegation that he was treated d ifferently than

other similarly situated employees because of his race.

Therefore, Petitioner fai led to prove a prima facie case of

discrimination by circumstantial evidence.

41. Even assuming that Petitioner established a prima facie

case of discrimination, the Union met its burden of articulating

a legitimate, non - discriminatory reason for the mann er in which

it represented Petitioner during his grievance. The UnionÓs

burden to refute PetitionerÓs prima facie case is light. The

Union provided credible testimony that its decision not to retain

an attorney to represent Petitioner was based on Presid ent

SaundersÓ decision that he could adequately represent Petitioner

on his own without hiring an attorney. The Union representatives

persuasively testified that the Union did not believe that the

complexity of PetitionerÓs matter required legal counsel.

Further, financial concerns restrict ed the UnionÓs ability to

hire an attorney for every arbitration.

42. Completing the McDonnell Douglas burden - shifting

analysis (again, assuming that Petitioner made a prima facie

showing of discrimination), Petitioner did not prove, by a

preponderance of the evidence, that the UnionÓs stated reasons

for not retaining an attorney to represent him at the arbitration

hearing were not its true reasons, but were merely a ÐpretextÑ

for discrimination. The record of this pro ceeding does not

support a finding or conclusion that the UnionÓs proffered

explanation for its decision was false or not worthy of credence.

43. By all accounts, President Saunders believed that he

could competently represent Petitioner at his hearing. President

Saunders was specifically trained to represent Union members and

had prior experience with arbitration hearings. Further,

Petitioner did not show that the Union incorrectly concluded that

PetitionerÓs matter presented a novel or unique legal iss ue that

necessitated the services of an attorney. Finally, the Union

representatives persuasively testified that the Union does not

consider a memberÓs race when deciding whether to assign legal

counsel. The Union has hired attorneys to represent numerou s

African - American members in grievance proceedings. In addition,

during the same time frame in which President Saunders decided to

represent Petitioner, he also represented a white Union member

(who was also terminated). Accordingly, the facts found in this

matter do not support a finding that the UnionÓs proffered

reasons for not assigning an attorney to represent Petitioner

were pretextual.

44. At the final hearing, Petitioner expressed his extreme

frustration with President SaundersÓ decision to repr esent

Petitioner himself. It should be noted, however, that in a

proceeding under the FCRA, the court is Ðnot in the business of

adjudging whether employment decisions are prudent or fair.

Instead, [the courtÓs] sole concern is whether unlawful

discrimin atory animus motivates a challenged employment

decision.Ñ Damon , 196 F.3d at 1361. Not everything that makes

an employee unhappy is an actionable adverse action. Davis v.

Town of Lake Park, Fla. , 245 F.3d 1232, 1238 (11th Cir. 2001).

For example, an em ployer may fire an employee Ðfor a good reason,

a bad reason, a reason based on erroneous facts, or for no reason

at all, as long as its action is not for a discriminatory

reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns , 738 F.2d 1181, 1187

(11th Cir. 1984). An employee cannot succeed by simply

quarreling with the wisdom of the employer's reasons. Chapman v.

AI Transp. , 229 F.3d 1012 (l1th Cir. 2000); see also Alexander v.

Fulton Cnty., Ga . , 207 F.3d 1303, 1341 (11th Cir. 2000) (Ð[I]t is

not the court's role to second - guess the wisdom of an employer's

decisions as long as the decisions are not racially motivated.Ñ).

45. Finally, no evidence establishes that representation by

an attorney, as opposed to President Saunders, would have

guaranteed that Petitioner would have prevailed in his grievance

proceeding. The ArbitratorÓs decision showed that Petitioner was

provided a fair and reasonable opportunity to present arguments

on his behalf. No evidence suggests that the Arbitrator was

bias ed or did not objective ly consider PetitionerÓs case.

46. Accordingly, even though Petitioner woul d have

preferred an attorney represent him at his arbitration hearing

instead of President Saunders, the Union did not violate the

FCRA. No evidence shows that the Union based its decision on a

discriminatory reason. Consequently, as established by the

evidence in the record, Petitioner did not prove, by a

preponderance of the evidence, that the Union discriminated

against him based on his race.

47. In sum, the evidence on record does not support

PetitionerÓs claim that the Union discriminated against him

because of his race. Further, no credible evidence shows that

the UnionÓs stated reason for not hiring an attorney (as opposed

to the Union president) to represent him in his gr ievance was a

ÐpretextÑ for race discrimination or t hat the Union treated

similarly situated non - minority members differently. Because

Petitioner failed to put forth sufficient evidence that the Union

had some discriminatory reason for its decision, his P etition for

Relief must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, the Union,

did not commit an y unlawful employment practice against

Petitioner and dismiss his Petition for Relief from an Unlawful

Employment Practice.

DONE AND ENTERED this 2nd day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admin istrative Hearings

this 2nd day of December, 2016 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2016),

unless otherwise noted.

2 / The Arbitrator did, in fact, refer to police reports from the

incident in his decision at pages 7 - 9.

3 / Petitioner also complained that the Arbitrator exceeded 60

days to finalize his decision contrary to the terms of the

Bargaining Agreement. (The Arbitrator issued his decision on

March 13, 2015, which was over 90 days after the arbitration

hearing.) C onsequent ly, Petitioner argues that the A rbitratorÓs

decision was untimely and should be void. However, even if

PetitionerÓs argument ha d merit, the undersigned is unaware of any

statutory or contractual authority that allows DOAH to invalidate

or vac ate the ArbitratorÓs decision.

Further, the undersigned notes that the Bargaining Agreement

provides in Article 13, paragraph 17 that:

The acceptance of an assignment under this

Article by an arbitrator constitutes an

acknowledgment by the arbitrator that th e

arbitrator will render a decision no later

than (60) days after the close of hearing of

arbitration under this Article. The date of

the close of hearing will be agreed to and

established by the parties. . . . By

acceptance of an arbitration under this

Article, the arbitrator further acknowledges

that failure on the part of the arbitrator to

comply with this provision shall render the

arbitrator without any further power or

authority to render a decision in this case

and will be considered parties. Thus , an

arbitration award rendered in an untimely

manner under this Article shal l be void and of

no effect.Ñ (E mphasis added).

Because the Arbitrator did not render an Ðarbitration awardÑ to

Petitioner in the form of back pay or damages, this provision

do es not appear to invalidate HARTÓs termination action based on

untimeliness.

4 / In fact, three years prior, Henry Hollis, a Union officer and

non - attorney, represented Petitioner in another arbitration. The

arbitrator sustained PetitionerÓs grievance in p art and

reinstated him.

5 / Bargaining Agreement, Art . 13, para . 13.

6 / Mr. Rackham was terminated based on two class ÐBÑ violations

involving reckless driving.

7 / See also Jackson v. City of Chi cago , No. 01 - C5542, 2003 U.S.

Dist. LEXIS 4951, at *43 - 4 4 (N.D. Ill. Mar. 27, 2003) ( a plaintiff

must prove : (1) that he belongs to a racial minority ; (2) that

he requested action by the union ; (3) that despite the propriety

of his request he was refused ; and (4) the union assisted members

of a different race w ho made similar requests . ) .

8 / See Sec tion 447.609 , Florida Statutes, which provides: ÐAny

full - time employee or officer of any public employer or employee

organization may represent his or her employer or any member of a

bargaining unit in any proceedi ng authorized in this part,

excluding the representation of any person or public employer in

a court of law by a person who is not a licensed attorney.Ñ

Pursuant to this statute, the Union was authorized to assign

President Saunders, a non - attorney, to re present Petitioner at

the arbitration hearing . See also Fla. Pub. Empl s. Council 79 v.

Jacksonville Empl s. Together , 738 So. 2d 489, 490 (Fla. 1st DCA

1999) , which states that section 447.609 presumes that an officer

of an employee organization is qualifi ed as a lay representative

to represent a party in an administrative proceeding.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Tobe M. Lev, Esquir e

Egan, Lev and Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

(eServed)

Kurt Shannon

3751 Beneraid Street

Land O Ó Lakes, Florida 34638

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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 fil ed with the agency that

will issue the Final Order in this case.