STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

JIMMY L. MCCLAIN, EEOC Case No. 15D201200022

Petitioner, FCHR Case No. 2011-02614

v. DOAH Case No. 12-1554

ST. ANDREWS BAY, FCHR Order No. 12-059

Respondent.

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FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Jimmy L. McClain filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (2011), alleging that Respondent St. Andrews Bay committed an unlawful employment practice on the basis of Petitioner’s race (Black) when Respondent, Petitioner’s employer at the time, failed to hire Petitioner for another position for which he had applied.

The allegations set forth in the complaint were investigated, and, on February 29, 2012, the Executive Director issued a determination finding that there was reasonable cause to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

An evidentiary hearing was held in Panama City, Florida, on July 2, 2012, before Administrative Law Judge Diane Cleavinger.

Judge Cleavinger issued a Recommended Order of dismissal, dated August 31,

2012.

The Commission panel designated below considered the record of this matter and

determined the action to be taken on the Recommended Order.

Findings of Fact

We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence.

We adopt the Administrative Law Judge’s findings of fact.

Filed November 16, 2012 8:29 AM Division of Administrative Hearings

Conclusions of Law

We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter.

We adopt the Administrative Law Judge’s conclusions of law.

Exceptions

Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order received by the Commission on or about September 14, 2012.

There is no indication on the document that it was provided to the Respondent as is required by Fla. Admin. Code R. 28-106.104(4) and Fla. Admin. Code R. 28-106.110.

However, the Commission published the document to the Respondent, and placed the document in the record of this case, through the issuance of a notice of ex parte communication, mailed to the parties on September 17, 2012.

Petitioner’s exceptions document contains five numbered exceptions paragraphs.

A review of each exceptions paragraph indicates that the exception takes issue with either facts found (paragraph 4), facts not found (paragraph 2), or inferences drawn (paragraphs 1, 3, and 5) from the evidence presented.

The Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21

F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9

F.A.L.R. 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005) and Eaves v. IMT- LB Central Florida Portfolio, LLC, FCHR Order No. 11-029 (March 17, 2011).

In addition, it has been stated, “The ultimate question of the existence of discrimination is a question of fact.” Florida Department of Community Affairs v.

Bryant, 586 So. 2d 1205, at 1209 (Fla. 1st DCA 1991). Accord, Coley v. Bay County Board of County Commissioners, FCHR Order No. 10-027 (March 17, 2010) and Eaves, supra.

Noting that we have above found the facts as found by the Administrative Law Judge to be supported by competent substantial evidence, Petitioner’s exceptions are rejected.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 16th day of November , 2012. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Gilbert M. Singer, Panel Chairperson; Commissioner Onelia Fajardo-Garcia; and Commissioner James Johns

Filed this 16th day of November , 2012, in Tallahassee, Florida.

/s/ Violet Crawford, Clerk Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, FL 32301

(850) 488-7082

Copies furnished to:

Jimmy L. McClain

1527 Grace Avenue, Apt. C Panama City, FL 32405

St. Andrews Bay

c/o Maureen McCarthy Daughton, Esq. Broad and Cassel

215 South Monroe Street, Suite 400

Tallahassee, FL 32301

Diane Cleavinger, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel

I HEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this 16th day of November , 2012.

By: /s/ Clerk of the Commission

Florida Commission on Human Relations

Docket for Case No: 12-001554

Orders for Case No: 12-001554