12-001554 Jimmy L. Mcclain vs. St. Andrews Bay Status: Closed Recommended Order on Friday, August 31, 2012.

Summary: Evidence did not show that Petitioner was not hired for an in-house position due to race (black) even though white male was hired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMY L. MCCLAIN , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1554

)

ST. ANDREWS BAY , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice a Final Hearing was held in this matter

before the Division of Administrative Hearings by Administrative

Law Judge Diane Cleavinger, on July 2, 2012, in Panama City,

Florida.

APPEARANCES

For Petitioner: Ji mmy McClain, pro se

1527 Grace Avenue, Apartment C

Panama City, Florida 32405

For Respondent: Maureen McCarthy Daughton, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in t his case is whether Petitioner was the subject

of an unlawful employment practice by Respondent.

PRELIMINARY STATEMENT

On October 3, 2011, Petitioner, Jim my L. McClain (Petitioner)

filed an Employment Complai nt of Discrimination against

Respondent, Pinna cle Health Facilities XXIV, LP , d/b/a/

St. Andrews Bay Skilled Nursing and Rehabilitation Center

( Respondent or St. Andrews Bay), with the Florida Commission on

Human Relations (FCHR) alleging discrimination based on race.

FCHR investigated the complaint. On February 29, 2012, FCHR

issued a det ermination of cause and advised Petitioner of his

right to file a Petition for Relief. Thereafter, on April 27,

2012, Petitioner filed a Petition for Relief with FCHR. The

matter was then forwarded to the Division of Administrative

Hearings.

At the hearing, Petitioner testified on his own behalf and

called two witnesses to testify. Additionally, Petitioner offered

Exhibits B, C, D, E, and S into evidence. However, only Exhibit C

was admitted. Respondent presen ted the testimony of one witness

and offered 8 exhibits which were admitted into evidence.

After the hearing, Petitioner file d a Proposed Recommended

Order o n July 16, 2012. Petitioner also filed a Proposed

Recommended Order titled Conclusion and Recomm ending Order on

August 9, 2012. Respondent filed its Proposed Recommended Order

on August 7, 2012.

FINDING S OF FACT

1. Responden t , St. Andrews Bay , is a licensed nursing home

that provides in - patient care to its residents. Its facility is

located in P anama City, Florida.

2. In order to provide its service, Respondent employs a

variety of racially diverse personnel, consisting of both

permanent and contract employees. Towards that end , Respondent

maintains a variety of employment discipline and tran sfer policies

that are contained in the Employee Handbook for St. Andrews Bay.

3 . The April 2011 Employee Handbook, which was in effect in

Augus t 2011, set forth the policy regarding transfers , as follows,

in relevant part :

Employees who wish to be cons idered for a

transfer or promotion to a vacant position may

apply if the employee is of " Good Standing. "

In addition to being in " Good Standing, " the

employee must possess the following:

1. The minimum qualifications for the

position:

2. Received no progressive disciplinary

action within the past six months (emphasis

add ed) .

* * *

4 . The Employees Handbook , also , provided for p rogressive

discipline. Such d iscipline included , in ascending order,

coaching, first/second written warning s , suspension s , and

Performance Improvement Plan s .

5 . Petitioner is a black male. As such, Petitioner is a

protected person under chapter 760, Florida Statutes.

6 . In January 20 06, Petitioner was employed by Respondent as

a Dietar y Aide. As a n employee, Petitioner received a copy of , or

had access to , Respondent ' s discipline and transfer policies.

7. At some point, tardiness for work became a problem for

Petitioner. Indeed, his supervisor considered him a competent

employee with some tardiness issues and, o n April 6, 2011,

disciplined Petitioner with a " coaching " for being two hours late

for work without notifying anyone that he would be late.

8 . Although the dates are unclear, the evidence showed that

Mr. Munn , who is a white male , worked as a lab orer for ManPower.

Through a contract between ManPower and St. Andrews Bay, Mr. Munn

was performing pai nting, maintenance , and any other work the

Maintenance Director assig ned, for approximately four to five

weeks , beginning sometime in July 2011 .

9 . A round August 3, 2011, a sign - up sheet was posted at

St. Andrews Bay for the position of Maintenance Assistant. The

sign - up sheet was posted to notify any current employees of the

job opening and allow them to apply for the position by signing

the posted s heet .

10 . Within less than six months of Petitioner being

disciplined, Petitioner, along with two other current employees,

indicated their inte rest in the Maintenance Assistant position by

signing the sign - up sheet. The other two employees who expressed

interest in the maintenance position did not testify at hearing

and no findings are made regarding their qualifications or, more

importantly, Respondent ' s knowledge regarding their

qualifications.

11. Per Respondent ' s policy, Petitioner did not have to

complete an application for the mai ntenance position since he had

two applications , one dated January 4, 2006, and one dated

October 24, 2007, on file with the Respondent. Neither of these

applications reflected that Petitioner had prior maintenance

exper ience. One application reflects that Petitioner owned a

restaurant known as " Daddy ' s Place. " One application reflects

that Petitioner was the cook at Daddy ' s Place. However, neither

ownership nor cooking experience indicate s maintenance experience

and t here was no evidence that Respondent knew that Petitioner

worked other than as a cook in his restaurant or had any other

maintenance experience from such ownership. Moreover, under

Respondent ' s transfer policy, Petitioner was not qualified to sign

up for the maintenance position since he had recei ved disciplinary

action within six months of this transfer opportunity.

12. On the other hand, the evidence showed that Mr. Munn

applied for the positi on of floor tech at St. Andrews Bay in

December of 2010, but was not hired for that position. Unlike

Petitioner, and i n addition to Mr. Munn ' s current maintenance work

experience at Respondent ' s facility, Mr. Munn ' s application

reflected some experience in maintenance, albeit not extensive

experience. However, l ik e Petitioner, Mr. Munn ' s application for

employment was already on file. Therefore, it was not necessary

for Mr. Munn to fill out a second employment application for the

position of Maintenance Assistant. Petitioner ' s policy regarding

on - file application s is reasonable and was applied to both black

and white applicants in this case. There was no competent

evidence that demonstrated this policy was a pretext for

discrimination.

13 . Petitioner was not interviewed for the position.

However, the evidence d id not show that anyone was formally

interviewed for the maintenance position. On these facts, lack of

formal interviews does not demonstrate discrimination by

Respondent aga inst Petitioner since Respondent was already

familiar with the two applicants at issue in this case.

14 . On August 8, 201 1, Wesley Munn was selected for the

Maintenance Assistant position by the maintenance supervisor,

Mr. Emmanuel . Although somewhat unclear, the evidence

demonstrated that Mr. Munn ' s selection was approved by the the n

Administrator of St. Andrews Bay, Tunecia Sheffield, who is black.

Neither of these two individuals testified at hearing. However,

the evidence at the hearing did not demonstrate that Respondent

discriminated against Petitioner when it hired Mr. Munn f or the

maintenance position . Converse ly, the evidence at hearing

demonstrated that Mr. Munn ' s hiring had a reasonable basis since

Mr. Munn had some maintenance experience and was already

performing the duties for which he was hired. There was no

competen t evidence that demonstrated Respondent ' s reasons for

hiring Mr. Munn to be a pretext for discrimination. Therefore,

given these facts, the Petition for Relief should be dismissed.

CONCLUSIONS OF LAW

15 . The Division of Administrative Hearings has juris diction

over the parties to and the subject matter of this proceeding.

§§ 120.5 69, 120.57(1) and 760.11, Fl a . Stat. (2012) .

16 . Sections 760.01 through 760.11 are known as the Florida

Civil Rights Act (FCRA). Section 760.10(1)(a) states as follows:

(1) It is an unlawful employment practice for

an employer:

(a) To discharge or to fail or refuse to hire

any individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or privileges

of employment, becaus e of such individual ' s

race, color, religion, sex, national origin,

age, handicap, or marital status.

17 . The Florida Civil Rights Act was patterned after Title

VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000, et seq.

As such, Federal case law i nterpreting Title VII is applicable to

cases arising under the FCRA. See Green v. Burger King Corp. ,

728 So. 2d 369, 370 - 371, (Fla. 3d DCA 1999); Fla. State Univ. v.

Sondel , 685 So. 2d 923 (Fl a. 1st DCA 1996).

18 . Under FCRA, Petitioner has the burden t o prove by a

prep onderance of the evidence that R espondent discriminated

against him. See Fla. Dep ' t of Transp. v . J.W.C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981). Towards that end, Petitioner can

establish a case of discrimination through direct evidence or

circumstantial evidence. See Holifield v. Reno , 115 F.3d 1555,

1561 - 1562 (11th Cir. 1997).

19 . Direct evidence consists of " only the most blatant

remarks, whose intent could be nothing other than to discriminate "

on the basis of some impermissible factor. Evidence that only

suggests discrimination, or that is subject to more than one

interpretation, is not direct evidence. See Carter v. Three

Springs Residential Treatment , 132 F.3d 635, 462 (11th Cir. 1998).

In this case, there was no direct evid ence of discrimination.

20 . On the other hand, McDonnell Douglas Corp. v. Green ,

411 U.S. 792, 802 - 805 (1973), established that an employment

discrimination case based on circumstantial evidence involves the

following burden - shifting analysis: (a) the E mployee must first

establish a prima facie case of discrimination; (b) the employer

may then rebut the prima facie case by articulating a legitimate,

nondiscriminatory reason for the employment action in question;

and (c) the employee then bears the ultima te burden of persuasion

to establish that the employer ' s proffered reason for this action

is merely pretext for discrimination. See also Brand v. Fla.

Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

21 . Petitioner must establish a prima facie of

di scrimination by demonstrating that: (a) he is a member of a

protected class; (b) he was subjected to an adverse employment

action; (c) his employer treated similarly situated employees

outside of his protected class more favorably; and (d) he was

qualified for the job at issue. See Rice - Lamar v. City of Ft.

Lauderdale , 232 F.3d 842 - 843 (11th Cir. 2000).

22. Importantly, proof that amounts to no more than mere

speculation and self - serving belief on the part of the Petitioner

concerning the motives of the R espondent is insufficient, standing

alone to establish a prima facie case of intentional

discrimination. See Lizardo v. Denny ' s Inc. , 270 F.3d 94, 104

(2d. Cir. 2001)( " The record is barren of any direct evidence of

racial animus. Of course, direct eviden ce of discrimination is

not necessary . . . . However, a jury cannot infer discrimination

from thin air. Plaintiffs have done little more than cite to

their mistreatment and ask the court to conclude that it must have

been related to their race. That is not sufficient. " ).

2 3 . In this case, the evidence demonstrated that Petitioner

is a member of a protected class for purposes of his racial

discrimination claim. The evidence did not demonstrate, however,

that he was qualified to be considered for the Ma intenance

Assistant position. Petitioner was not eligible to be considered

for the position of Maintenance Assistant due to the fact that he

had received progressive discipline within the last six months.

2 4 . Petitioner also failed to present any evidenc e that a

similarly situated employee of another race was treated more

favorably under the same circumstances. Wesley Munn was not

similarly situated since he had no prior disciplinary issue which

disqualified him from consideration. Additionally, Mr. Mun n had

maintenance experience while, as far as Respondent knew,

Petitioner had none.

25. Finally, Petitioner did not establish by a preponderance

of the evidence that he was treated differently than comparable

non - minority applicants, that his failure to be interviewed was

based on his race or that the reasons given were a pretext for

discrimination. Therefore, the Petition for Relief should be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED tha t the Florida Commission on H uman

Relations issue a Final Order dismissing the Petition for Relief.

DONE AND ENT ERED this 31st day of August , 2012 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrativ e Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of August , 2012.

COPIES FURNISHED:

Tiffany A. Minton, Esquire

Preferred Care, Inc.

5500 West Plano Parkway

Plano, Texas 75093

Jimmy L. McClain

1527 Grace Avenue, Apartment C

Panama City, Florida 32405

Lacey Corona, Esquire

Broad and Cassel

Suite 205A

200 Grand Boulevard

Destin, Florida 32550

Maureen McCarthy Daughton, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

[e-mail]

Denise Crawford, Agency Clerk

F lorida Commiss ion on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

[e-mail]

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Flor ida 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 th e Final Order in this case.