02-002845 Carol D. Johnson vs. Gainesville Electric Joint Apprenticeship And Training Committee Status: Closed Recommended Order on Wednesday, March 12, 2003.

Summary: Petitioner failed to establish prima facie case of discrimination or retaliation. Apprenticeship program not responsible for acts of employers to whom the program refers apprentices.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL D. JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2845

)

GAINESVILLE ELECTRIC JOINT )

APPRENTICESHIP AND TRAINING )

COMMITTEE, )

)

Respondent. )

)

RECOMMENDED ORDER

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.

APPEARANCES

For Petit ioner: Carol D. Johnson, pro se

1420 North Meridian Road

Suite 108

Tallahassee, Florida 32303

For Respondent: Paul A. Donnelly, Esquire

Laura A. Gross, Esquire

Donnelly & Gross

Post Office Box 1308

Gainesville, Florida 32602 - 1308

STATEMENT OF THE ISSUES

Whether Respondent discriminated against Petitioner on the

basis of her race and sex, and whether Responden t retaliated

against Petitioner for making complaints of discriminatory

treatment.

PRELIMINARY STATEMENT

On November 7, 2001, Petitioner, Carol D. Johnson

(Johnson), filed a complaint with the Florida Commission on

Human Relations, complaining that Respond ent 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 Determ ination:

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 origi nally assigned to Administrative Law

Judge Stephen F. Dean, and was reassigned to Administrative Law

Judge Susan B. Kirkland to conduct the final hearing.

At the final hearing, Respondent made an unopposed ore

tenus motion to have the style of the case cha nged 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. Respond ent 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 Febr uary 14, 2003. Petitioner did not file a proposed

recommended order.

FINDINGS OF FACT

1. Respondent JATC is an apprenticeship program which

provides training to persons who desire to become journeymen

electricians. JATC is supervised by the United Sta tes

Department of Labor and a corresponding State of Florida

governmental agency.

2. 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.

3. 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 t o 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.

4. Persons desiring to bec ome 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 - th e - 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.

5. 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.

6. 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

contracto r and may include such tasks as carrying trash and

digging ditches.

7. 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 oppo rtunity to have direction from persons who are

knowledgeable in the type of work that is being performed by the

apprentices.

8. Opportunities for on - the - job training depend on the

needs of the contractors. Jobs can last anywhere from two days

to four yea rs, 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.

9. Johnson, a black female, entered into an apprenticeship

program with JATC in August 1998. She signed an Apprenticeship

Agreement, sometimes referred to as an "Ind enture," 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]."

10. The Policy Statements of JATC govern the conduct of

the apprentice s. 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."

11. 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 pro blems or

difficulty with traveling to work in areas away from her

Tallahassee home.

12. 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

a nother contractor, Raytheon Constructors, Inc. (Raytheon) which

had an opening for an apprentice.

13. On March 12, 1999, Raytheon issued a Termination

Notice to Johnson, terminating her employment for "failure to

meet job site requirement," and indicati ng that she was not

eligible for rehire with Raytheon. Johnson had failed a drug

test.

14. 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 Statemen ts 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.

15. By letter dated December 17, 1999, Johnson complained

to the Director of JATC tha t 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 jo bs 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.

16. Wh en 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 so me 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.

17. Johnson received an "unsatisfactory job performance"

evaluation from Atkins Electric Co. for the period April 13,

1999, to May 7, 1999.

18. 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. Wh en a new contractor who did not have

previous experience with Johnson would come to Tallahassee, JATC

would refer Johnson to that contractor.

19. Apparently Hartsfield changed its position and rehired

Johnson at some point, because on May 15, 2000, Hartsf ield 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.

20. The JATC Policy Stat ements 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 apprent ice would not be reassigned to any

job until JATC reviewed the termination.

21. 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

b efore 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 Ta llahassee to work.

22. 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 .

23. 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

disciplinar y action was taken against Johnson because of her

absences.

24. 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 contracto r would not rehire Johnson.

25. 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 trainin g 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.

26. After being on the job with Miller Electric for

28 days, Johnson received a poor performance evaluati on 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.

27 . 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."

28. Johnson filed an appeal of the action placing her on

probation. The Director investigated her claims and spo ke 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 shou ld have been given a better evaluation and

any other information that she had concerning the performance

evaluation.

29. 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.

30. On two occasions, Johnson told the Director that she

believed the Tallahassee contract ors 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.

31. 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.

32. 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.

33. 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 cont act 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 h er using her new telephone number. He was

unsuccessful, but he left messages for her to contact him.

34. 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 wa s unsuccessful.

35. 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.

36. A certified letter date d 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.

37. 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.

38. The Policy Statements of JATC provide procedures for

appealing actions of the committee. The procedure is as

follows:

APPEAL PROCEDURE

A. If an apprentice feels th at 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.

B. This complaint shall be in writing and

signed by the apprentice and shall include

h is/her name.

C. 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.

39. 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.

40. Johnson appealed the committee's decision to terminate

her from the program. By letter dated December 21, 2001, JA TC

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.

41. JATC notif ied 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 i t 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.

42. 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 termi nated 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.

43. Johnson also claims that she was treated differen tly

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 pers on 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 giv en on the work site.

44. 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 Ju dicial

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.

45. In her deposition, Johnson was asked the following

questions and gave t he 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

anoth er 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 t o go back

to agriculture because you have to be able

to work in the field. I will have to find

another career.

46. Part of the duties of an electrician, apprentice, or

journeyman, includes being able to lift and carry over 50 pounds

and having good moti on 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 wou ld not be able to pick up and

handle heavy things like she could do prior to her accident.

CONCLUSIONS OF LAW

47. 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.

48. 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.

49. Section 760.10, Florida Statutes, deals with u nlawful

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 pro grams, 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 u nder 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.

50. The Florida Civil Rights Act, Section 760.10, et seq. ,

Florida Statutes, i s 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 C ommissioners, 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).

51. 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. Ch rysler 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.

52. 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.

53. Johns on 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 discriminatio n. 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.

54. Johnson has failed to establish that JATC is liable

for her claims of discrimination by her employers.

55. 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

with out 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 r equirement 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 app ear 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 exha ust the internal

appeal procedures of JATC.

56. 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 H onor 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).

57. 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.

58. 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 admitte d 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 apprenticeshi p

program. Johnson failed to establish that apprentices outside

the protected classes were not terminated due to failure to

attend classroom training.

59. Assuming, arguendo , that Johnson had made a prima

facie case, JATC offered legitimate non - discrimi natory 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 sh e could

be terminated for violating the Policy Statements. Johnson has

failed to demonstrate that the reasons for her termination were

false or pretextual.

60. To establish a prima facie case of retaliatory

discharge, Johnson must prove: (1) that she wa s 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 Imper ial Bank ,

872 F.2d 1491 (11th Cir. 1989).

61. 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 terminat ed 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 he r 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 progr am in

March 2001.

62. 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

at torney fees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Gainesville Electrical Joint Apprenticeship Training Committee

did not discriminate against Carol D. J ohnson 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 12 th day of March, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of March, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relat ions

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Paul A. Donnelly, Esquire

Donnelly & Gross

Post Office Box 1308

Gainesville, Florida 32602 - 1308

Laura A. Gross, Esquire

Donnelly & Gross

Post Office Box 1308

Gainesville, Florida 32602 - 1308

Carol D. Johnson

1420 North Meridian Road, Suite 108

Tallahassee, Florida 32303

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 filed with the agency that

will issue the Final Order in this case.