STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on June 26, 2007, in Marianna, Florida.

APPEARANCES

For Petitioner: Rodney McMillian, pro se

4052 Old Cottondale Road, Apartment 805

Marianna, Florida 32448

For Respondent: R. W. Tres Long

Chief Financial Officer Community-Based Options, Inc. Post Office Box 438

Panama City, Florida 32402-0438 STATEMENT OF THE ISSUE

Whether Respondent engaged in an unlawful employment

practice.

PRELIMINARY STATEMENT

Petitioner Rodney McMillian (Mr. McMillian) submitted an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (Commission) that was filed on September 29, 2006. Mr. McMillian alleged that he was the victim of an unlawful employment practice because of his race. On March 27, 2007, the Commission made a "Determination: No Cause." On April 5, 2007, Mr. McMillian timely filed a Petition for Relief. The matter was forwarded to the Division of Administrative Hearings and filed on April 7, 2007.

The case was set for hearing on June 26, 2007, and heard as scheduled.

At the hearing, Mr. McMillian testified. He did not offer any exhibits. Respondent Community-Based Options (CBO) presented the testimony of three witnesses and offered two exhibits, which were received into evidence.

A Transcript was filed on July 18, 2007. Neither Petitioner nor Respondent filed proposed findings of fact and conclusions of law.

References to statutes are to Florida Statutes (2005) unless otherwise noted.

FINDINGS OF FACT

1. Mr. McMillian, at the time of the hearing, was a

   
   

   30-year-old resident of Marianna, Florida. He is an African- American.

2. CBO is an employer as that term is defined in Subsection 760.02(7), Florida Statutes, and thus subject to the

   Florida Civil Rights Act of 1992. CBO provides in-home support to clients who need help in addressing their daily needs. The program under which they operate is run by the Agency for Persons with Disabilities (Agency).

3. Mr. McMillian worked for CBO from January 25, 2006, until August 28, 2006. He worked as a caretaker in a private home. He took care of two men with mental disabilities. Both of the men, clients of CBO, were of the Caucasian race.

4. Mr. McMillian was required to keep a "journal of living" that, when kept up-to-date, recorded the activities in the home and provided an account of client funds.

5. CBO did not have enough homes in the Marianna area to warrant a supervisor, so Donald Bradley Graham, Executive

   Vice-President of CBO, was assigned to supervise the single-home maintained in Marianna, which was the home in which

   Mr. McMillian worked. Mr. Graham is of the Caucasian race.

   
   

6. Mr. McMillian had conflicts with one of the clients.

   
   

   Mr. Graham gave Mr. McMillian a cleaning checklist to aid him in maintaining the cleanliness of the home, because there were issues involving sanitation, or more specifically, issues involving deficiencies in sanitation.

7. Mr. Graham also found that Mr. McMillian was not keeping track of spending and was not maintaining receipts.

8. Barbara Williams, a "life coach," also interacted with Mr. McMillian. Ms. Williams is of the Caucasian race. A "life coach" pays the bills for a client's house, makes medical appointments, and addresses the administrative needs of clients. Ms. Williams did not supervise Mr. McMillian.

9. Mr. McMillian and Ms. Williams had a dispute involving the grocery supply for the house. Allegations were made by

   Ms. Williams and a client that Mr. McMillian had purloined raw chicken from the house.

10. Mr. McMillian was informed on August 28, 2006, that CBO had suspended him and that he was the subject of an abuse investigation by the Department of Children and Family Services (DCFS).

11. The allegations of theft were not proven. An abuse investigation conducted by DCFS Investigator Culbreath determined that no abuse had occurred. However, in the interim, the CBO clients in the home informed CBO that they did not want Mr. McMillian to return.

12. If a client served by CBO does not want a particular person to work in his or her home, then that person, by Agency rules, may not work there. The client does not have to offer a reason for not wanting a person working in his or her home.

13. Mr. McMillian was offered other work with CBO in homes in the Panama City area but made no effort to take advantage of

    the offer. The evidence is clear that he was not terminated and was not the subject of discipline.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 760.10(7) Fla. Stat.

15. Subsection 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race or sex. Because direct evidence of discrimination was conspicuous by its absence in this case, Mr. McMillian, in order to prevail, was required to prove his case by indirect evidence.

16. To prove a case by indirect evidence, a charging party, Mr. McMillian in this case, must prove disparate treatment. In order to do so, the charging party generally bears the burden of proof established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine,

    450 U.S. 248 (1981). Under this well established model of proof, the charging party bears the initial burden of establishing a prima facie case of discrimination.

17. If the charging party is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the

    employment action. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).

18. The employer then has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Id. Alexander v. Fulton County, Georgia, 207 F.3d 1303 (11th Cir. 2000). The charging party must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, supra at 1186; Alexander v. Fulton County, Georgia, supra.

19. Mr. McMillian claims he was removed from the home because of race discrimination. To establish a prima facie case of race discrimination, he must prove that: (1) he is a member of a protected class, African-American; (2) he was subject to an adverse employment action; (3) his employer treated similarly situated employees, who are not members of the protected class, more favorably; and (4) he was qualified for the job or benefit at issue. See McDonnell, supra; Gillis v. Georgia Department of Corrections, 400 F.3d 883 (11th Cir. 2005).

20. Mr. McMillian proved was that he was a member of a protected class, African-American.

21. He was not, however, the subject of an adverse employment practice. He was not fired from his job. He was removed because the clients did not want him in their home. As noted above, a client served by CBO, pursuant to Agency rules, may oust a caretaker for any reason.

22. After having been rejected by the clients he served, Mr. McMillian was given the opportunity to work elsewhere for CBO, but did not avail himself of that opportunity.

23. There was no evidence that CBO treated members not of a protected class more favorably. Accordingly, he did not prove a prima facie case of racial discrimination. See Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997).

24. Even assuming that Mr. McMillian had demonstrated a prima facie case of discrimination, CBO demonstrated a legitimate, non-discriminatory reason for refusing to continue to employ him in the home. That is, the clients of CBO did not want him in their home.

25. Even if it were necessary to go to the next level of the McDonnell analysis, Mr. McMillian did not produce any evidence that CBO's asserted legitimate reasons were a pretext for discrimination. Therefore, Mr. McMillian did not meet his burden of showing that a discriminatory reason, more likely than

    not, motivated the decision to remove him from the home. Consequently, Mr. McMillian has not met his burden of showing pretext.

26. In summary, Mr. McMillian has failed to carry his burden of proof that CBO engaged in racial discrimination toward him when it declined to allow him to remain as caretaker in the home to which he was originally assigned.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of August, 2007, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 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 9th day of August, 2007.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Rodney McMillian

4052 Old Cottondale Road, Apartment 805

Marianna, Florida 32448

R. W. Tres Long

Chief Financial Officer Community-Based Options, Inc. Post Office Box 438

Panama City, Florida 32402-0438

Glen Lord

Community-Based Options, Inc. Post Office Box 438

Panama City, Florida 32402

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.

Docket for Case No: 07-001616

Orders for Case No: 07-001616