16-006582 Addie L. Mcmillan vs. First Transit, Inc. Status: Closed Recommended Order on Wednesday, May 31, 2017.

Summary: Petitioner failed to prove that other similarly situated employees were not terminated for violating the company's cell phone policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADDIE L. MCMILLAN,

Petitioner,

vs. Case No. 16 - 6582

FIRST TRANSIT, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was c onducted 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 McMillan , pro se

710 West Jordan Street

Pensacola, Florida 32501

For Respondent: Matthew Dunning, EEO Manager

First Transit, Inc.

600 Vine Street, Suite 1400

Cincinnati, Ohio 45202

STATE MENT OF THE ISSUE

The issue is whether First Transit, Inc. (ÐEscambia County

Area TransitÑ or ÐECATÑ) 1/ committed an unlawful employment

practice against Petitioner (ÐAddie L. McMillanÑ) by subjecting

her to disparate treatment and/or by retaliating agains t her .

PRELIMINARY STATEMENT

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

Discrimination with the Florida Commission on Human Relations

(Ðthe CommissionÑ) alleging that ECAT subjected her to disparate

treatment by firing Ms. McMillan from her j ob as a bus driver.

The firing occurred after Ms. McMillan violat ed a company policy

prohibiting drivers from usi ng cell phones while driving.

Ms. McMillan alleged that those outside her protected class had

committed the same infraction without losing th eir jobs.

Ms. McMillan further alleg e d that she was experiencing Ðmedical

problemsÑ that she had incurred while working .

On October 5, 2016, the Commission issued a letter

notifying Ms. McMillan that it had determined that there was Ðno

reasonable cause Ñ to conclude that an unlawful employment

practice had occurred:

[Ms. McMillan] filed a charge of

discrimination against [ ECAT ] alleging

that she w as subjected to different

terms and conditions of employment and

discharged based on her race, religion,

sex and disability and that she was denied a

reasonable accommodation based on her

disability. The facts and evidence as set

forth in the Investigative Memorandum do

not support [Ms. McMillan]Ós allegation.

The evidence in this ma tter reveals that

[Ms. McMil lan] was terminated because she

did not comply with [ ECAT ]Ós rule and policy

against talking on her cell phone while

operating [ ECAT ]Ós city bus. [Ms. McMillan]

was not subjected to different terms and

conditions of employment and discharged

based on her race, religion, sex and

disability or denied a reasonable

accommodation and no credible evidence was

provided to prove otherwise. [ 2/ ]

Ms. McMillan filed a Petition for Relief with the

C ommission on November 9, 2016, and the Commission transferred

the case to DOAH that same day.

Via a Notice of Hearing issued on November 28, 2016, the

undersigned scheduled the final hearing to occur in Pensacola,

Florida , on December 15, 2016.

On December 8, 2016, Matthew H. Dunning, Esquire , filed a

request to appear a s ECATÓs qualified representative. After

considering the assertions set forth therein, the undersigned

issued an Order on December 8, 2016, granting that request.

After holding a telephonic, pre - hearing conference on

December 13, 2016, the undersigned d etermined that the parties

were not adequately prepared to proceed with the December 15,

2016, final hearing. Accordingly, the undersigned issued two

O rders on December 15, 2016 . One O rder cancel ed the final

hearing , and the other requir ed the parties to : (a) identify

every witness expected to testify at the final hearing; and

(b) provide days in January and February of 2017 , when both

parties would be available for a final hearing.

Ms. McMillan also filed an unlawful discrimination claim

against the Amalgamated Transit Union Local 1395 (Ðthe UnionÑ),

the union that represents ECAT bus drivers. That case was also

referred to DOAH and assigned C ase N o. 16 - 4424.

Because the cases originated from the same facts and

several of the witnesses w ere 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 w ill be issu ed 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

hearing: 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 relevance .

ECAT ten dered no witnesses and relied on cross - examination

of Ms. McMillanÓs witnesses in support of its case. ECATÓs

Exhibits 1 through 13 were accepted into evidence.

The T ranscript from the final hearing was filed with DOAH

on March 22, 2017.

On April 3, 20 17, the attorneys for ECAT and the Union

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

recommended orders be extended to April 28, 2016. The

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

request.

ECAT filed a timely Propo sed Recommended Order on April 28,

2017 , that was considered in the preparation of this Recommended

Order .

Ms. McMillan filed a Proposed Recommended O rder in her case

against the Union . Because that Proposed Recommended O rder

appeared to be relevant to the instant case, the undersigned

also considered it 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 op erator and progressed to becoming a full - time

bus driver.

2. The Union and ECAT ha d a labor agreement 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 c ell 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 other personal

communication de vice 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 purposes only

where authorized by th e 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 p hone, 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.

SE CTION 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 by 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 June 19, 2012, Ms. McMillan signed a document

entitled Ð Escambia County Area Transit Cellular Phone PolicyÑ

which provided that:

While on duty the use of a cellular phone or

any other personal communication device is

limited as follows:

Employees on Company Business: The use by

an employee of a cellular phone or any other

personal communication device while behind

the wheel of a transit vehicle, or any other

company motor vehicle is prohibited. Push -

to - talk communication devices issued by the

Company may be used for work - related

purposes only where authorized by the

Company and permitted by law, but must be

used in a manner, which would not create an

unsafe situation.

If it becomes necessary to use a cellular

phone, employees must be at the end of the

line/trip (on layover, if applicable),

request a 10 - 7 , a nd exit the driverÓs seat

prior to using the cellular phone. 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.

The use of a cellular phone or other

communications device by an employee while

on the shop floor is prohibited, other than

a Push - to - Talk communications device issued

by the Company for work - related purposes,

and only where authorized by the Company and

permitted by law.

Federal and State law supersede the above

po licy.

4. On th e morning of July 29, 2015, 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 ent ering the navy base had to b e searched, and that

caused Ms. McMillanÓs bus to run behind schedule.

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

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

provided by ECAT.

6. The dispatcher con tacted by Ms. McMillan was not

receptive to her request for a bathroom break and cut off

communications.

7. Because Ms. McMillan was unsuccessful in re -

establishing contact with the dispatcher over the radio, she

used her personal cell phone to call a cow orker, Elaine Wiggins.

Ms. McMillan was hoping that Ms. Wiggins could assist her with

contacting a n ECAT general manager.

8. 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 i n the neutral/park position with the emergency brake

on.

9. 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.

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

driving had a pre - arranged break point at a bowling alley and

that Ms. McMillan could use a bathroom there.

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

suffered any consequences f or her violation of the cell phone

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

2015.

12. Roberta Millender has been a customer service

representative at ECAT for the last four years.

13. On July 28, 2015, at 12:25 p . m . , Ms. Millender

r eceived a phone call from a customer who rep orted that the bus

driver for Rout e 57 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.

14. Ms. McMillan also drives that route.

15. ECATÓs buses are equipped with video cameras.

Therefore, ECAT reviewed the videotape from th e Route 57 bus in

order to investigate the complaint.

16. Because the 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 th e incident on July 28, 2015,

that led to the customer complaint, an ECAT employee noticed

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

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

driver who took the cigarette break on July 2 8, 2015. 3 /

18. 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.

19. Via a letter dated August 3, 2015, Mike Crittenden,

ECATÓs General Manager, notified Ms. McMillan that she was being

terminated for violating Article 52 of the labor agreement.

Mr. CrittendenÓs letter deemed Ms. McMillanÓs cell phone use to

be a violation of section 1 which prohibited cell phone use

while a transit vehi cle is not secured. In addition,

Mr. CrittendenÓs letter noted that the termination was effective

immediately .

20. During the final hearing in this matter, Ms. McMillan

was unable to present any evidence that any other similarly -

situated bus drivers had not been terminated for using a cell

phone while the bus es they were driving w ere unsecured.

21. Mr. Crittenden testified that 4 drivers have been

terminated for violating section 1 of Article 52 since the labor

agreement has been in place. Three of th ose drivers were

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

Caucasian female.

22. Mr. Crittenden was unaware of any driver being

retained by ECAT after violating the cell phone policy. 4 /

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

three other ECAT employees , none of whom were aware of any bus

driver being retained after violating the cell phone policy.

24. The greater weight of the evidence demonstrates that

Ms. McMillan was not discharged because of her race.

CONCLUSI ONS OF LAW

25. The Division 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) , 5/ and Florida Administrative Code Rule 60Y -

4.016(1).

26. 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 - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

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

27. S ection 760.10 prohibits discrimination Ðagainst any

individual with respect to compensation, terms, cond itions, or

privileges of employment, because of such individual's race,

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

status.Ñ § 760.10(1)(a), Fla. Stat.

28. Ms. McMillan alleges that she was the victim of

disparate treatment. See Ree ves v. C.H. Robinson Worldwide,

Inc. , 594 F.3d 798, 808 n.2 (11th Cir. 2010)(en banc)(ÐWe

reiterate that disparate treatment under 42 U.S.C. § 2000e -

2(a)(1) is the proper framework under which to evaluate hostile

work environment claims.Ñ). The United Sta tes Supreme Court has

noted that Ð [d]isparate treatment . . . is the most easily

understood type of discrimination. The employer simply treats

some people less favorably than others because of their race,

color, religion, sex, or [other protected characte ristic].Ñ

Teamsters v. U.S. , 431 U.S. 324, 335 n.15 (1977).

29. Liability in a disparate treatment case Ðdepends on

whether the protected trait . . . actually motivated the

employer's decision.Ñ Hazen Paper Co. v. Biggins , 507 U.S. 604,

610 (1993). Ð The ultimate question in every employment

discrimination case involving a claim of disparate treatment is

whether the plaintiff was the victim of intentional

discrimination.Ñ Reeves v. Sanderson Plumbing Prods., Inc. ,

530 U.S. 133, 153 (2000).

30. A part y 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). When a petitioner alleges

disparate treatment under the FCRA, the petitioner must prove

that his or her race Ðactually motivated the employerÓs

decision. That is, the [petitionerÓs race] must have

Ò actually played a role [in the employerÓs decision - making]

process and had a determinative influence on the o utcome.ÓÑ

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

141 ( quoting Hazen Paper Co. v. Biggins , 507 U.S. at 610 )

(alteration in original).

31. Direct evidence is evidence that, Ðif believed, proves

[the] existence of [a] fact in issue without inference or

presumption.Ñ Burrell v. Bd. of Trs. of Ga. Mil. Coll. ,

125 F.3d 1390, 1393 (11 th Cir. 1997). Direct evidence consists

of Ðonly the most blatant remarks, whose intent could be nothing

other than to discriminateÑ on the basis of an impermiss ible

factor. Carter v. City of Miami , 870 F.2d 578, 582 (11 th Cir.

1989).

32. There is no direct evidence of unlawful race

discrimination in the instant case. That is not uncommon

because Ð d irect evidence of intent is often unavailable.Ñ

Shealy v. Ci ty of Albany , 89 F.3d 804, 806 (11th Cir. 1996).

Accordingly , those who claim to be victims of intentional

discrimination Ðare permitted to establish their cases through

inferential and circumstantial proof.Ñ Kline v. Tenn. Valley

Auth. , 128 F.3d 337, 34 8 (6th Cir. 1997).

33. To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, this creates a presumption of discrimination. Then

the bur den shifts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets that burden, then the presumption disappears and

the employee must prove that the legitimate reasons were a

pretext. Vale nzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17,

25 (Fla. 3d DCA 2009) . Facts that are sufficient to establish a

prima facie case must be adequate to permit an inference of

discrimination. Id.

34. Under the McDonnell Douglas framework, one can

establish a prima facie case of discrimination by demonstrating

that: (a) s he is a member of a protected class; (b) s he was

qualified for the position held; (c) s he was subjected to an

adverse employment action; and (d) other similarly - situated

employees, who are not members of the protected group, were

treated more favorably. See McDonnell Douglas Corp. v. Green ,

411 U.S. 792, 802 (1973). ÐWhen 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 (11 th Cir. 2004).

35. The first three elements of Ms. McMillanÓs

discrimination claim are not in dispute. As a result, the

instant case turns on whether Ms. McMillan can demonstrate that

ECAT treated similarly - situated employees more favorably.

36. As discussed above, there was no evidence that ECAT

has not terminate d any bus drivers who violated the cell phone

policy. Instead, the testimony demonstra ted that there have

been four instances since the labor agreement took effect on

October 23, 2013 of bus drivers (including Ms. McMillan)

violating the cell phone policy, and ECAT terminated each

driver. 6/

37. Accordingly, Ms. McMillan failed to prove h er

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, nonminority

employees who were treated more favorably, her case must fail

becaus e the burden is on her to establish her prima facie

case.Ñ). 7 /

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 dismissing Addie L. McMilla nÓs

Petition for Relief from an Unlawful Employment Practice.

DONE AND ENTERED this 31 th day of May, 2017, in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hea rings

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 Administrative Hearings

this 31 th day of May, 2017 .

ENDNOTE S

1/ Fir st Transit Inc. does business as Escambia County Area

Transit.

2/ The Commission appears to have deemed Ms. McMillanÓs

reference to Ðmedical problemsÑ in her Charge of Discrimination

as an allegation that ECAT denied her a reasonable

accommodation. How ever, Ms. McMillanÓs testimony at the final

hearing indicated this allegation is more appropriately

described as a retaliation claim.

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

have disciplined her because she was not the subject of the

customer complaint that led ECAT to examine the video from the

bus she drove.

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

driver who was terminated for vio lating the 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.

5/ Unless stated otherwise, all statutory cita tions are to the

2016 edition of the Florida Statutes.

6 / Ms. McMillanÓs Pe tition for Relief also contained an

alleg ation that ECAT discriminated against her because of her

age. However, this claim cannot serve as a basis for relief

because Ms. McMill an was unable to demonstrate that ECAT did not

fire any other bus drivers who violated the cell phone policy.

Likewise, to whatever extent that Ms. McMillan alleged any other

basis on which ECAT discriminated against her, such a claim

would be meritless b ecause Ms. McMillan was unable to

demonstrate any disparate treatment.

7/ In the last sentence of he r Charge of Discrimination,

Ms. McMillan stated the following: ÐI was experiencing problems

with the medical problems I received on the job previousl y 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 retaliation for Ms. McMillan having a

workersÓ compensation claim. However, t he undersigned did

not consider the statement in Ms. McMillanÓs Charge of

Discrimination to be sufficie nt to put ECAT on notice that she

was alleging that her termination was retaliation for her filing

a workersÓ compensation claim. See generally Trevisani v. DepÓt

of Health , 908 So. 2d 1108 , 1109 (Fla. 1 st DCA 2005)( reversing a

final order and directing t hat a complaint be dismissed because

the administrative complaint at issue Ðdid not contain any

specific factual allegations that Appellant failed to retain

possession of the medical records. The single reference to the

statute without supporting factual allegations was not

sufficient to place Appellant on notice of the charges against

him.Ñ).

Nevertheless, even if ECAT was sufficiently on notice of

this allegation, the undersigned would conclude that Ms.

McMillan ha s failed to establish a retaliation c laim. In order

to establish a prima facie case for retaliation, a petitioner

must show that she engaged in a statutorily protected activity,

that an adverse employment action occurred, and that the adverse

action was causally related to the petitionerÓs p rotected

activities. Because the evidence indicated that ECAT has

terminated every bus driver who violated the labor agreement Ós

prohibition against cell phone us e , Ms. McMillan cannot

establish that her termination resulted from her workersÓ

compensation claim.

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)

Matthew Dunning, EEO Manager

First Transit, Inc.

600 Vine Street, Suite 1400

Cincinnati, Ohio 45202

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE O F 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.