16-004424 Addie L. Mcmillan vs. Amalgamated Transit Union Local 1395 Status: Closed Recommended Order on Wednesday, May 31, 2017.

Summary: Petitioner failed to demonstrate that Respondent breached any duty of fair representation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADDIE L. MCMILLAN,

Petitioner,

vs. Case No. 16 - 4424

AMALGAMATED TRANSIT UNION LOCAL

1395,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fi nal hearing was conducted in this

case on March 2, 2017, in Pensacola, Florida , before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Addie Landrun McMil lan , pro se

710 West Jordan Street

Pensacola, Florida 32501

For Respondent: M . Linville Atkins, Esquire

902 N orth Gadsden Street

Tallahassee , Florida 32303

STATEMENT OF THE ISSUE

The issue is whether Amalgamated Transit Union Local

1395 (Ðthe Union Ñ) committed an unlawful employment practice

against Petitioner (ÐAddie L. McMillanÑ) by failing to provide

her with the same level of advocacy provided to Union members

and non - African - Ameri cans .

PRELIMINARY STATEMENT

On December 10, 2015, Ms. McMillan filed a Charge of

Discrimination with the Florida Commission on Human Relations

(Ðthe CommissionÑ) alleging that the Union subjected her to

disparate treatment by failing to provide her with the same

level of advocacy pr ovided to Union members and non - African -

Americans . Ms. McMillan needed representation because First

Transit, Inc. (ÐEscambia County Area TransitÑ or ÐECATÑ) fired

Ms. McMillan after she violat ed a company policy prohibiting b us

drivers from usi ng cell phones while driving. Ms. McMillan

alleged that Ð Caucasians and members of the [U]nion committed

infractions and they were terminated and the [U]nion represented

them and they were given their jobs back.Ñ

On June 28 , 2016, the Commission issued a letter notifying

Ms. McMillan that it had determined that there was Ðno

reasonable causeÑ to conclude that an unlawful employment

practice had occurred:

[Ms. McMil lan] was a bus operator

working for a n employer whose employees

were rep resented by [the Union], a labor

organizatio n. [Ms. McMillan] alleged

[the Union] denied her equal representation

in her dispute with her employer over her

termination on the basis of race, religion,

sex, and disa bility. [Ms. McMillan] did

not establish a prima facie case of

discriminatio n. [Ms. McMillan] did not

show that sh e had a disability or that

[the Union] was aware of her religion.

[Ms. McMillan] identified comparators who

may or may not have been outside her

protected class for sex or race, but

[Ms. McMillan] did not show that [the Union]

tre ated them more favorably. [Ms. McMillan]

drew attention to the more favorable

outcomes they achieved in their disputes

with the employer, but [Ms. McMillan] did

not describe how or if they were represented

differently. [Ms. McMillan] does not

identify any other evidence indicating

discri mination on any protected basis.

Ms. McMillan filed a Petition for Relief with the

C ommission on August 2 , 2016, and the Commission transferred the

case to D OAH that same d ay.

Via a Notice of Hearing issued on August 2 2 , 2016, the

undersigned scheduled the final hearing to occur in Pensacola,

Florida , on September 23 , 2016.

On August 23 , 2016, the UnionÓs counsel filed a m otion

requesting that the final hearing be contin ued to a later date.

In support thereof, the UnionÓs counsel cited a scheduling

conflict and noted that she had just been retained by the Union

on August 23, 2016.

After holding a telephonic, pre - hearing conference on

September 8 , 20 16, the undersigned issued an Amended Notice of

Hearing re - scheduling the final hearing to occur on October 27,

2016.

On October 24, 2016, Ms. McMillan transmitted a letter to

the undersigned asking that the final hearing scheduled for

October 27, 2016, be continued to a la ter date. In support

thereof, Ms. McMillan noted that the parties had yet to exchange

documents a s required by the Order of Pre - h earing Instructions .

In addition, Ms. McMillan noted that her husband was

experiencing some unexpected health issues.

The und ersigned determined that Ms. McMillan had shown good

cause for continuing the final hearing. Accordingly, the

undersigned issued an Order on October 25, 2016, canceling the

final hearing scheduled for October 27, 2016. Furthermore, the

undersigned requir ed the parties to provide dates in November

and December 2016, when both parties would be available for a

final hearing.

After receiving t he partiesÓ response, the undersigned

issued an Order on November 7, 2016, re - scheduling the final

hearing for Decem ber 15, 2016.

Ms. McMillan also filed an unlawful discrimination claim

against ECAT, her former employer. That case was also referred

to DOAH and assigned Case N o. 16 - 6582.

Because the cases originated from the same facts and

several of the witnesses we re expected to testify at both final

hearings, the undersigned elected to conduct the final hearings

for both of Ms. McMillanÓs cases on March 2 and 3, 2017, in

Pensacola, Florida . However, the cases were not consolidated,

and separate recommended orders have been issued for each one.

The final hearing in the instant case was held as scheduled

on March 2, 2017, and completed that day.

In addition to her own testimony, Ms. McMillan presented

the testimony of the following witnesses during the final

hear ing: Roberta Millender, a customer service lead at ECAT;

Mike Crittenden, the G eneral M anager of ECAT; Dianne Hall, a

former general manager of ECAT; Kenneth Edgerton, an ECAT

employee; Gwendolyn McCormick, an ECAT employee; Greg Thomas, an

ECAT employee; Ted Woolcock, the Director of Safety and Training

at ECAT; and Michael Lowery, the President of the Union.

Ms. McMillan Ós Exhibits 1 through 5 were accepted into

evidence. M s . McMillanÓs Exhibit 6 was not accepted into

evidence due to a lack of relevan ce .

The Union tendered no witnesses and relied on cross -

examination of Ms. McMillanÓs witnesses in order to present its

case. The Union moved Exhibits 1, 9 through 12, 15 through 17,

and 20 through 22 into evidence, and the undersigned accepted

all of t he aforementioned exhibits into evidence .

The T ranscript from the f inal hearing was filed on

March 22, 2017.

On April 3, 2017, the attorneys for ECAT and the Union

filed a joint request asking that the due date for the proposed

recommended orders be ex tended to April 28, 2016. The

undersigned issued Order s on April 4, 2017, granting that

request.

Ms. McMillan filed a Proposed Recommended O rder on April 4,

2017, and her P roposed R ecommended O rder was consider ed in the

preparation of this Recommended O rder.

Ms. McMillan filed a series of documents on April 5, 2017,

pertaining to discussion s she had after the final hearing in

this matter. The undersigned reviewed the documents but did not

utilize them in the preparation of this Recommended Order.

T he Union filed a Proposed Recommended Order on May 1,

2017 , that was considered in the preparation of this Recommended

Order .

FINDING S OF FACT

1. Ms. McMillan is a 55 - year - old, African - American female

who had worked at ECAT for 22 years. She began as a part - time

beach trolley operator and progressed to becoming a full - time

bus driver.

2. The Union and ECAT ha d a labor agreement 1/ in place

between October 23, 2013, and September 30, 2016 (Ðthe labor

agreementÑ) . Article 52 of th e labor agreement had a policy

regarding the use of cell phones by ECAT employees and provided

as follows:

While on duty the use of cellular phone or

any other personal communication device is

limited as follows:

SECTION 1: The use by an employee of a

cellular phone or any o ther personal

communication device while behind the wheel

of a transit vehicle, or any other Company

motor vehicle is prohibited while the

vehicle is not secured. Push to talk

communication devices issued by the Company

may be used for work related purpos es only

where authorized by the Company and

permitted by law, but must be used in a

manner, which would not create an unsafe

situation.

Note Î Secured definition: Vehicle must be

in neutral/park position and emergency brake

on.

SECTION 2: If it becomes necessary to use a

cellular phone, employees must be at the end

of the line/trip (on layover, if applicable)

or in a safe location with the bus secure.

At no time is it permissible to use a

cellular phone if the use will cause the

trip to be late at its next scheduled time

point.

SECTION 3: The use of a cellular phone or

other communication device by an employee

while on the shop floor or during work time

(unless previously approved) is prohibited,

other than a Push to Talk communication

device issued b y the Company for work

related purposes, and only where authorized

by the Company and permitted by law.

Federal and State law supersede the above

policy.

SECTION 4: Disciplinary Action:

Failure to comply with any portion of this

policy may result in disciplinary action as

follows:

Violation of Section 2 or Section 3 of this

Article: 1 st offense: 3 - day suspension

2 nd offense: Termination

Violation of Section 1 of this

Article: 1 st offense: Termination

3. On th e morning of July 29, 20 15, Ms. McMillan was

driving a route that went through the Naval Air Station in

Pensacola, Florida. At that time, the navy base had been on

alert status for approximately one month . As a result, every

vehicle entering the navy base had to b e searched, an d that

caused Ms. McMillanÓs bus to run behind schedule.

4. At approximately 10:30 that morning , Ms. McMillan

needed to use a bathroom and called a dispatcher via a radio

provided by ECAT.

5. The dispatcher contacted by Ms. McMillan was not

receptive t o her request for a bathroom break and cut off

communications.

6. Because Ms. McMillan was unsuccessful in re -

establishing contact with the dispatcher over the radio, she

used her personal cell phone to call a co worker, Elaine Wiggins.

Ms. McMillan was h oping that Ms. Wiggins could assist her with

contacting a n ECAT general manager.

7. At this point in time, the bus driven by Ms . McMillan

was in traffic and moving. In other words, it was not Ðs ecured Ñ

by being in the neutral/park position with the emerg ency brake

on.

8. Diane Hall was an assistant general manager for ECAT

during the time period at issue, and Ms. Hall talked to

Ms. McMillan via Ms. WigginsÓ cell phone.

9. Ms. Hall stated to Ms. McMillan that the route she was

driving had a pre - arrange d break point at a bowling alley and

that Ms. McMillan could use a bathroom there.

10. It is possible that Ms. McMillan would not have

suffered any consequences f or her violation of the cell phone

policy but for a customer complaint provided to ECAT on July 28,

2015.

11. On July 28, 2015, at 12:25 p . m . , Roberta Millender ,

a customer service representative at ECAT, r eceived a phone

call from a customer who reported that the bus driver for

Rout e 57 had left the bus at approximately 11:00 a . m . in order

to smoke a cigarette , even though t he bus was 25 minutes behind

schedule.

12. Ms. McMillan also drives that route.

13. ECATÓs buses are equipped with video cameras.

Therefore, ECAT reviewed the videotape from that particular bus

in order to investigate th e complaint.

14. Because the bus video tapes are on a continuous loop,

ECAT had to pull video corresponding to days before and after

July 28, 2015. While l ooking for the incident on July 28, 2015,

that led to the customer complaint, an ECAT employee not iced

that Ms. McMillan w as using her cell phone on July 29, 2015.

15. There is no dispute that Ms. McMillan is not the bus

driver who took the cigarette break on July 28, 2015. 2 /

16. On July 30, 2015, ECA T began an investigation of

Ms. McMillanÓs cel l phone use. ECAT notified Ms. McMillan that

she would continue to work during the investigation.

17. ECAT terminated Ms. McMillan on August 3, 2015, for

violating section 1 of Article 52 of the labor agreement.

18. Article 5 of the labor agreement s et s forth the

procedures that ECAT and the Union follow in order to resolve

labor issues .

19. Pursuant to Section 2 of Article 5, Michael Lowery,

the President of the Union , filed an ÐOfficial Grievance FormÑ

(Ðthe McMillan grievanceÑ) with Mike Critten den, ECATÓs General

Manager.

20. Ms. McMi llan had reservations about Mr. Lowery

handling her grievance. Because she had not joined a recent

strike and was not a Union membe r, Ms. McMillan feared that

Mr. Lowery would not use his best efforts on her behal f.

21. However, Mr. Lowery handles the majority of the

grievances, and he handles all of the grievances involving

termination. 3/

22. The McMillan grievance stated the following:

The employee does not dispute the offered

video and will stipulate that she used her

personal cellphone while operating a transit

bus while not secure. This professional bus

operator understood the Company policy but

did not clearly understand the proper

procedure to request assistance to disembark

her motor coach while unde r tremendous

physical bodily stress to relieve herself of

a bodily function.

Operator McMillan understood the procedure

to request a 10 - 7 (Operator off Motor Coach)

but was concerned with her bodily stress and

finding a safe, clean rest room which was

c ontinuing to cause significant additional

stress.

The Company has clearly FAILED to work at

providing known secure, clean, safe

facilities for professional bus operators to

utilize while operating ECAT buses. The

Union has brought this topic forward to

Management numerous times and no action has

been taken to formulate the needs of the

professional bus operators on many bus

routes including the bus route that Operator

McMillan was driving on the day in question.

Operator McMillan was dealing with other

related stress on that particular run. The

military base was under alert and traffic

was extremely backed up. She was dealing

with one Dispatcher Supervisor and had

reached agreement with him on how to proceed

on the bus route. But when another Dispatc h

Supervisor came on duty it was clear that

neither of those Supervisors had shared

information on dealing with Route 57 with

the military heighten[ed] alert. The new

Dispatch was difficult to communicate with

about established procedures set earlier

with another Dispatcher. This did not help

the already adverse or very demanding

circumstance.

23. Mr. Lowery concluded the grievance by asking that ECAT

rescind its termination of Ms. McMillan, pay her lost wages and

benefits, and remove any discipline from her file.

24. Ordinarily, the first step in resolving a grievance

involves settlement discussions between ECAT official s and the

Union.

25. However, because Ms. McMillanÓs grievance involved a

termination, it went directly to Mr. Crittenden for his

consideration.

26. Via an e - mail dated August 4, 2015, Mr. Crittenden

notified Mr. Lowery that he was Ðdenying this grievance and

upholding the termination of the subject employee.Ñ

27. Because Ms. McMillanÓs grievance was denied, the next

step in the process called for the Union to decide whether it

wanted to submit the grievance to arbitration. 4/

28. As part of t his next step, Mr. Crittenden prepared a

draft version of a ÐLast Chance AgreementÑ for the Union to

review.

29. A Last Chance Agreemen t is an agreement between an

employee, ECAT, and the Union.

30. The draft Last Chance Agreement pre pared by

Mr. Crittenden contained the following provisions:

1. The employee violated the CompanyÓs cell

phone [policy] which is a serious safety

infracti on that warrants immediate

termination.

2. In lieu of terminating her employment,

the EmployeeÓs discipline record will

reflect this infraction as suspended

without pa y from August 3, 2015 to

August 14, 2015 and returning to work on

August 17, 2015 upo n acceptance of this

agreement, and placed on a twelve month

probation/Last Chance Agreement. The

employee will retain her rate of pay and

security.

3. The employee understands that in the

event she violates company policy by being

charged with any infr action that warrants

immediate termination, her employment will

be terminated without any further

consideration.

4. This agreement will be in effect for a

period of twelve (12) months from the date

of signature.

5. The Employee attests that her signatu re

below was in no way coerced by any party or

by the representative of any party.

6. By entering into this agreement, the

employee acknowledges that she has read and

considered each of the provisions of this

Agreement and that she voluntarily enters

int o this Agreement with full knowledge of

the consequences.

7. This Agreement is made on a one - time

only, non - precedent basis that shall not be

used or referred to in any future discipline

or termination case or during any

grievance/arbitration hearings between the

parties.

31. Mr. Lowery presented the proposed Last Chance

Agreement to the UnionÓs legal counsel, and the Union had an

issue with the seventh provision Ós reference to Ðnon - precedent

basis .Ñ

32. Mr. Lowery attempted to reach an agreement w ith

Mr. Crittenden for amending that provision, but his efforts were

unsuccessful. Mr. Crittenden would not consent to the removal

of that language.

33. Ms. McMillan was disturbed by the fact that she had no

input into the Last C hance Agreement propose d by Mr. Crittenden

and that it was not presented to her for approval.

34. However, after the Union decided not to accept

Mr. CrittendenÓs proposal, Ms. McMillanÓs approval or

disapproval became irrelevant. As noted above, a L ast C hance

A greement invol ves three consenting parties: the employee,

ECAT, and the Union. Thus, e ven if Ms. McMillan had been

satisfied with the Last C hance Agreement proposed by

Mr. Crittenden, it would not go into effect without the UnionÓs

approval.

35. In order for the Uni onÓs Executive Board to vote on

whether to refer Ms. McMillanÓs case to arbitration , M r. Lowery

put Ms. McMillanÓs grievance on the agenda of the Executive

BoardÓs August 23, 2015, meeting.

36. The five members of the Executive Board who were

present an d eligible to vote unanimously recommend ed against

pursuing arbitration for Ms. McMillanÓs grievance because her

case lacked merit .

37. As for why Ms. Mc MillanÓs case lacked merit,

Mr. Lowery testified that

Well, basically, itÓs pretty simple, we

negotia ted the policy in the labor

agreement, and this was a video. And the

video showed that she had clearly violated

the policy. And so from there, it was going

to be very difficult, based on that

evidence, that we were not going to be able

to go forward. An d thatÓs why the

membership voted not to go forward.

38. The Executive BoardÓs recommendation was considered by

the full Union membership later that day , and the Union voted to

accept the Executive BoardÓs recommendation .

39. When asked to explain why the Union elected not to

arbitrate Ms. McMillanÓs grievance, Mr. Lowery testified that

Simply itÓs the severity of the policy,

which was itÓs in the labor agreement. It

was negotiated between the Union and the

company. And because they had a solid

video , we would not be able to demonstrate a

way to achieve a victory in that arbitration

case. And, potentially, because itÓs in the

Labor Agreement, that would be used against

us in an arbitration because we negotiated

it. We negotiated the policy.

40. When subsequently ask ed a very similar question,

Mr. Lowery reiterated that

Well, basically, itÓs pretty simple, we

negotiated the policy in the labor

agreement, and this was a video. And the

video showed that she had clearly violated

the policy. And so from there, it was going

to be very difficult, based on that

evidence, that we were not going to be able

to go forward. And thatÓs why the

membership voted not to go forward.

41. T he Union has not arbitrated any grievances in which a

driver has been t erminated for using a cell phone while a bus

was not secured.

42. Including Ms. McMillan, f our drivers have been

terminated for violating section 1 of Article 52 since the labor

agreement has been in place. Three of those drivers were

African - American (t wo females and one male), and one was a

Caucasian female.

43. Mr. Crittenden was unaware of any driver being

retained by ECAT after violating the cell phone policy. 5 /

44. In addition to Mr. Crittenden, Ms. McMillan called

three other ECAT employees w ho were unaware of any bus driver

being retained after violating the cell phone policy.

45. Mr. Lowery represents every grievance to the best of

his ability , and he represented Ms. McMillanÓs grievance to the

best of his ability . The greater weight of t he evidence

demonstrates that he handled Ms. McMillanÓs grievance no

differently than any other grievance. 6 /

46. Mr. Lowery did not consider Ms. McMillanÓs race or

religion in the course of representing her. 7 /

47. The Union d id not discriminate agains t Ms. McMillan

based on her race or non - union status. In addition, to whatever

extent that Ms. McMillan is alleging that she was discriminated

against on any other grounds, there is no evidence to support

such allegations.

CONCLUSIONS OF LAW

48. The D ivision of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57, Florida

Statutes (2016) , 8 / and Florida Administrative Code Rule 60Y -

4.016(1).

49. The State of Florida, under the legislative scheme

contained in sections 760.01 Î 760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (Ðthe

FCRAÑ) , incorporates and adopts the legal principles and

precedents established in the federal anti - discrim ination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq .

50. The FCRA protects individuals from discrimination by a

labor organization. See § 760.10(3), Fla. Stat. (providing that

it is an unlawful employment practice for a labor organization

Ð[t]o exclude or to expel from its membership, or otherwise to

discriminate against, any individual because of race, color,

religion, sex, pregnancy, national origin, age, handicap, or

marital status .Ñ).

51. A party may prove unlawful race discrimination by

direct or circumstantial evidence. Smith v. Fla. DepÓt of

Corr. , Case No. 2:07 - cv - 631 (M.D. Fla. May 27, 2009); 2009 U.S.

Dist. LEXIS 44885 (M.D. Fla. 2009). Direct evidence is evidence

that, if believed, would prove the existence of discriminatory

intent behind the employment de cision without any inference

or presumption. Demney v. City of Albany , 247 F.3d 1172,

1182 (11 th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11 th Cir. 1997). Courts have held that Ðonly the most

blatant remarks, whose intent could be nothing other than to

discriminate . . . will constitute direct evidence of

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

196 F.3d 1354, 1358 - 59 (11 th Cir. 1999)(i nternal citations

omitted).

52. Ms. McMillan presented no direct or statistical

evidence of discrimination by the Union.

53. In the absence of di rect or statistical evidence

of discriminatory intent, Ms. McMillan must rely on

circumstantial evidence of discrimination to prove her case.

For discrimination claims involving circumstantial evidence,

Florida courts 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 (1 973).

54. As explained in Radford v. Union Here Local 2 ,

2011 U.S. Dist. LEXIS 70159 *32 - 33 ( N.D. Cal. 2011):

The standard burden - shifting framework

established in McDonnell Douglas also

applies to a Title VII action against a

union. See Pejic v. Hughe s Helicopters,

Inc. , 840 F.2d 667, 674 (9 th Cir. 1988) .

A union member can make a p rima facie claim

of discrimination by introducing evidence

that the member "was singled out and treated

less favorably than others similarly

situated on account of race or any other

criterion impermissible under the statute."

Gay v. WaitersÓ & Dairy LunchmenÓs Union ,

694 F.2d 531, 537 (9 th Cir. 1982) ; see

also Pejic , 840 F.2d at 674 . As in

McDonnell Douglas , such a showing of

disparate treatment raises an inference of

disc rimination "because experience has

proved that in the absence of any other

explanation it is more likely than not that

those actions were bottomed on impermissible

considerations." Furnco Constr. Corp. v.

Waters , 438 U.S. 567, 579 - 80, 98 S.Ct. 2943,

57 L. Ed.2d 957 (1978) .

A prima facie case of discrimination may be

established against a union by showing that:

"(1) the employer violated the collective

bargaining agreement with respect to the

employee; (2) the union breached its duty of

fair representation b y allowing the breach

to go unrepaired; and (3) there is some

evidence of [illegal] animus among the

union." Beck v. UFCW Local 99 , 506 F.3d

874, 885 (9 th Cir. 2007)(citing Bugg v.

IntÓl Union of Allied Indus. Workers of Am. ,

674 F.2d 595 (7 th Cir. 1982) .

If the plaintiff succeeds in establishing a

prima facie case of discrimination against

the union, the burden of production shifts

to the union to articulate a legitimate,

non - discriminatory reason for the less

favorable treatment. Pejic , 840 F.2d at

674 . The union must provide "reasons for

its actions which, if believed by the trier

of fact, would support a finding that

unlawful discrimination was not the cause of

the . . . action." St. MaryÓs Honor Ctr. v.

Hicks , 509 U.S. 502, 507, 113 S.Ct. 2742,.

125 L.Ed.2d 407 (1993) . Once the defendant

produces suff icient evidence to satisfy

this burden, "'the McDonnell Douglas

framework - with its presumptions and

burdens' - d isappear[s]," Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S.

133, 142 - 43, 120 S.Ct . 2097, 147 L.Ed.2d

105 (2000) (quoting Hicks , 509 U.S. at 510 ),

and the plaintiff "retains that ultimate

burden of persuading the [trier of fact]

that [he] has been the victim of intentional

discrimination." Hicks , 509 U.S. at

508 (internal quotations omi tted).

55. With regard to the instant case, there is no evidence

that the employer, ECAT , violated the labor agreement. As

discussed above, every driver who violated the labor agreementÓs

pertinent prohibition against cell phone use has been

terminated.

56. Even if Ms. McMillan could satisfy the first element

of a prima facie case , she can not demonstrate that the Union

breached any duty of fair representation or treated similarly -

situated ECAT employees more favorably.

57. The greater weight of t he evidence demonstrates that

Mr. Lowery handled Ms. McMillanÓs grievance no differently than

any other grievance involving a similar level of severity.

58. In addition, Mr. Lowery did not consider

Ms. McMillanÓs race or religion in the course of represe nting

her.

59. In sum, t he Union d id not discriminate against

Ms. McMillan based on her race or non - union status. In

addition, to whatever extent that Ms. McMillan is alleging that

she was discriminated against on other grounds, there is no

evidence to support such allegations.

60. Accordingly, Ms. McMillan failed to prove her

disparate treatment claim. See Jones v. Bessemer Carraway Med.

Ctr. , 137 F.3d 1306, 1311 (11 th Cir. 1998)(noting that Ð[i]f

Plaintiff fails to identify similarly situated, nonm inority

employees who were treated more favorably, her case must fail

because the burden is on her to establish her prima facie

case.Ñ).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Com mission on Human

Relations issue a final order dismissing Addie L. McMillanÓs

Petition for Relief from an Unlawful Employment Practice.

DONE AND ENTERED this 3 1st day of May , 2017 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

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

Divisi on of Administrative Hearings

this 3 1st day of May, 2017 .

ENDNOTE S

1 / Mike Crittenden, the General Manager of ECAT , described the

labor agreement as follows: Ð[I]tÓs a bargained contract

between employees represented by the Union and management as to

how work will be conducted, how discipline will be carried out,

and a certain number of other work rules, or how the business is

managed, whatÓs determined to be management rights and, also,

contains a grievance process when issues arise that we need to

re solve. ThereÓs a formal process in place to do that.Ñ While

the labor agreement does not apply to all ECAT employees, it did

apply to bus drivers.

2/ Ms. McMillan argued during the hearing that ECAT should not

have disciplined her because she was n ot the subject of the

customer complaint that led ECAT to examine the video from the

bus she drove.

3 / Mr. Crittenden and Mr. Lowery testified that the Union is

required to represent all of the employees covered by the labor

agreement, regardless of whether those employees are Union

members. Mr. Lowery testified that the National Labor Relations

Act requires private sector unions to represent all bargaining

unit employees, regardless of whether they are union members.

4 / Mr. Lowery explained that Ð[a]rbitration is where the

grievance is moved by the membership. ItÓs Î the grievance is

usually taken in front of the Union membership for them to

consider. And based on the merits of the grievance, the

membership will vote to forward the grievance to arbitration or

not to move to arbitration. Then, from there, the Collective

Bargaining Agreement outlines the steps to select an arbitrator

through the Federal Mediation Conciliation Services. And, at

some point, the company will intermingle, once we rec eive a

panel of arbitrators, we will then meet and strike names until

one arbitrator remains. And from there, we will set a date for

an arbitration.Ñ

5 / Mr. Crittenden testified that the African - American male

driver who was terminated for vio lating th e cell phone policy

was involved in an earlier incident in which a customer filed a

complaint alleging that he had been improperly using his cell

phone . Because that complaint could not be substantiated, the

driver received verbal counseling rather than a termination.

6 / Ms. McMillan is of the opinion that Mr. Lowery should have

communicated with her more frequently or in person. However,

Ms. McMillanÓs Exhibit 4 indicates that Mr. Lowery frequently

used text messages to update her on the status of h er grievance.

While Ms. McMillan may have preferred more frequent

communication and for that communication to be transmitted

through telephone calls, the evidence indicates that Mr. Lowery

kept Ms. McMillan informed about the status of her grievance.

7 / In the last sentence of her Charge of Discrimination,

Ms. McMillan stated the following: ÐI was experiencing problems

with the medical problems I received on the job previously this

year.Ñ During the final hearing, Ms. McMillan substantially

expanded on that statement by testifying that she had been

involved in an accident and put on light duty. While on

light duty, Ms. McMillan was using a rolling chair and Ðflipped

over.Ñ During the final hearing, Ms. McMillan alleged that

her termination was in re taliation for Ms. McMillan having a

workersÓ compensation claim. However, t hat allegation pertains

to Ms. McMillanÓs case against ECAT rather than the Union .

Therefore, the undersigned chose not to address that allegation

in the instant case.

8 / Unless stated otherwise, all statutory citations are to the

2016 edition of the Florida Statutes.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Addie Landrun McMillan

710 West Jordan Street

Pensacola, Florida 32501

(eServed)

Michael Alexander Lowery

Amalgamated Transit Union Local 1395, AFL - CIO

4302 Yarmouth Place

Pensacola, Florida 32514

(eServed)

M. Linville Atkins, Esquire

902 North Gadsden Stree t

Tallahassee, Florida 32303

(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 subm it 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.