vs.
Respondent.
) Case No. 02-3356
A formal hearing in the above-styled case was held before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on December 12, 2002, in Orlando, Florida.
For Respondent: Paul J. Scheck, Esquire
Whether Respondent violated Section 760.10, Florida Statutes, by denying Petitioner employment with Respondent because of her sex (female).
These proceedings were commenced by Petitioner's, Carmen Christensen, filing of a charge of discrimination, against the City of Winter Park, Respondent, dated April 19, 2002, with the Florida Commission on Human Relations ("FCHR"). The FCHR issued a Determination, dated August 6, 2002, and on or about
August 19, 2002, Petitioner timely filed a Petition for Relief regarding such discrimination. This matter was referred to the Division of Administrative Hearings for a formal administrative hearing on August 23, 2002. Following pre-hearing discovery, a formal administrative hearing was held on December 12, 2002, before the Administrative Law Judge ("ALJ"). At the hearing, testimony of several fact witnesses, and seven exhibits were admitted evidence. Petitioner testified in her own behalf, and offered the testimony of six witnesses: Joyce Carter, Human Resource Coordinator for Respondent; David L. Zusi, Assistant Public Works Director and Utility Manager for Respondent; Charles E. McDonald, Supervisor, Wastewater Treatment Division for Respondent; William J. Harley, Section Manager, Orange County Wastewater Utility Department; Richard L. Burns, Wastewater Treatment Division for Respondent; and James L. Anselmo, Supervisor, Wastewater Treatment Division for Respondent. Respondent presented testimony from the same six witnesses and offered nine exhibits into evidence. The hearing
transcript reflects that these nine exhibits were offered, but inadvertently, the ninth exhibit was actually labeled as Respondent's Exhibit No. 10.
A Transcript of the hearing was prepared and filed on December 30, 2002. Petitioner filed her proposed findings of fact on January 17, 2003, following her request for an extension of time, and filed an amended findings of fact on January 23, 2003. Respondent filed its Proposed Recommended Order on January 14, 2003. Both parties' proposals have been give careful consideration.
Petitioner, a female and a member of a protected class, completed an application for employment with Respondent in or about February of 2002 for the position of Wastewater Operator "C." The particular position she applied for was a night shift position which runs from 11:00 p.m. to 7:00 a.m.
In February of 2002, Respondent had an opening for a Class "C" Wastewater Operator's position. Prior to that time, this position had been open for approximately one year.
Respondent's standard interview process for a wastewater position is that Charles McDonald ("McDonald"), the Wastewater Production Supervisor, reviews the applications to see if they have the minimum qualifications for the open position. If the applicant possesses the minimum requirements,
McDonald will schedule an initial appointment with the applicant. At this initial appointment, McDonald reviews the duties of the position with the applicant and finds out some general background on the applicant. Once that is accomplished, McDonald will arrange for an interview with his superior, James Anselmo ("Anselmo"), the Division Chief over the water and wastewater treatment facilities of Respondent.
Anselmo, in his capacity as a Division Chief, oversees the operations of the water and wastewater treatment facilities of Respondent, as well as all the personnel matters in those departments. Anselmo has served as a supervisor for Respondent for fourteen (14) years, and during that time has not had any grievances or complaints of discriminatory treatment filed against him.
The Wastewater Operator "C" that Respondent was seeking to hire was to perform chemical analysis and perform general preventative maintenance work. This chemical analysis work on the water samples consists of performing "solids determination, chlorine residual and pH determination; perform [ing] sludge volume tests; measure dissolved oxygen levels; perform [ing] chlorine residual test; turbidity and telemetry monitoring."
These chemical testing duties consist of more than gathering samples, but also include taking them to the lab, actually performing the tests and then reading and recording the
results. These lab-testing duties are considered an essential function of this position.
The job description for this position also states that an operator "performs general preventive maintenance work" on machines. Anselmo considered this requirement to include changing packing on pumps, changing oil, greasing motors and pumps, making adjustments on machines and fixing broken lines. He feels this requirement is important because it is necessary to have all of his wastewater employees cross-trained to perform multiple functions.
Petitioner's application was initially forwarded to Anselmo, who reviewed it and was impressed with the fact that the applicant possessed an "A" license. As a result, he forwarded the application to McDonald to initiate the interview process. It made no difference to Anselmo whether the applicant was a male or a female.
In or about March 2002, McDonald contacted Petitioner by telephone and arranged for her to come meet him for an initial interview. During this initial interview with McDonald, Petitioner indicated to him that she did not perform any maintenance duties at her previous employment with the City of Orlando. McDonald mistakenly understood Petitioner to say that she did not do any lab work at the City of Orlando, but rather it was done at the laboratory by others.
After the initial interview with McDonald, he spoke with Anselmo and informed him that he had a lady that had put in for the Wastewater Operator "C" position, and suggested that he interview her. McDonald did not emphasize the fact that Petitioner was a female, but rather made his usual comment that it was either a lady or a guy that was coming in for the interview. Anselmo indicated that McDonald should bring her over immediately for the second interview.
Petitioner then had an interview with Anselmo in his office later that same day. This interview began by Anselmo and Petitioner shaking hands. McDonald was present and handed Anselmo a copy of Petitioner's application. Prior to this meeting, Anselmo had not been in possession of a copy of Petitioner's application, other than his very brief initial review of it.
Before getting into the substantive interview, Anselmo initially said to Petitioner "Carmen Christensen, that's a very unique name. I went to school with a friend, and his name was Carmen also." Anselmo intended this comment simply to be small talk, and to serve as an "ice breaker."
Anselmo and McDonald both testified that Anselmo never stated to Petitioner: "I thought you were a man with the name Carmen." They also denied that Anselmo stated "I went to school with a twin by that name." Anselmo made no references to
Petitioner's gender during the interview. This testimony is credible.
After this initial "ice breaker," Anselmo then reviewed Petitioner's application and began asking her questions about it. As a result of not seeing the application prior to this, Anselmo got a few of the minor items on her application wrong.
On her application, Petitioner indicated that her duties at the City of Orlando had required her to "grab samples." In reading this, Anselmo assumed that this meant that Petitioner simply gathered water and did not perform any laboratory tests on the sample. Thus, Anselmo was hoping that Petitioner would elaborate and demonstrate to him that she had actually performed laboratory testing on these samples. During the interview, Anselmo asked Christensen questions about her duties at the City of Orlando. Petitioner responded that she simply collected samples and carried them to the lab, and occasionally, ran a few tests. Petitioner did not share any specific types of tests that she had done while at the City of Orlando. Anselmo encouraged Petitioner to take the opportunity during the interview to elaborate on these duties, but she failed to do so. When he asked her whether she had performed specific tests, she respondent that she did not because laboratory employees had performed those tests at the City of
Orlando. Petitioner also did not present Anselmo with any of the written certificates that she now claims she possesses. At no time during the interview did Petitioner give Anselmo sufficient reason to believe that she did more than gather water samples at her previous job and bring them to the lab.
During the interview, Anselmo also asked Petitioner questions about her maintenance duties while at the City of Orlando. Petitioner responded that maintenance work at the City of Orlando was done by maintenance personnel and, thus, she had not done any such work.
Finally during the interview, Anselmo asked Petitioner about the reasons for her termination by her previous employer, the City of Orlando. Petitioner informed Anselmo that she had been terminated from the City of Orlando based on allegations of "falsified records." The City considers allegations of falsification of records to be a serious violation. Anselmo was not able to verify the reasons for Christensen's termination from the City of Orlando because she had indicated on her application that they could not contact her previous employers. Based on this request by Petitioner, Anselmo made no independent efforts to verify the reason for her termination.
At no time during the interview did Anselmo ever tell Petitioner that he did not want females working at the facility. In fact, Anselmo testified that he hires employees based simply
on their qualifications, not their gender; although no other female operator is employed by Respondent.
Other than the alleged comment about her name, Petitioner did not offer any other evidence that Anselmo had any problem with women working in the wastewater facility. Instead, Petitioner gave her "opinion" that she was not hired because she is a female.
At the end of the interview, Anselmo informed Petitioner that Respondent was still accepting applications for the position.
Following the interview, Anselmo and McDonald discussed Petitioner's qualifications as a candidate. They agreed that she appeared to be inexperienced based on her responses during the interview. In particular, they were concerned with her lack of maintenance and laboratory testing experience.
Anselmo completed an Applicant Referral form on or about March 12, 2002, in which he indicated that Petitioner had been "rejected" for the position of Wastewater Operator "C." On that form, Anselmo indicated that Petitioner had been rejected for employment because she "said she had no lab experience or did not perform any maintenance. Performing lab tests and maintenance is crucial to this position." Anselmo testified
that this form accurately sets forth the reasons on which he made the decision to reject Petitioner for employment.
Subsequent to Petitioner's interview, McDonald and Anselmo had the opportunity to interview two additional candidates, Richard Neitling ("Neitling") and Richard Burns ("Burns").
Neitling set forth more laboratory testing experience than Petitioner in his interview and on his resume. He indicated during his interview with Anselmo that he had done the specific laboratory tests that Respondent does at its wastewater facility, including BOD's, suspended solids, mixed liquid suspended, sludge samples and TSS. He also indicated during his interview that he had maintenance experience, including tearing down pumps, changing filters and oiling and greasing machines.
Based on these expressed qualifications and experience set forth in his application and presented during his interview, as well as the fact that he was a "C" Operator and that was the actual position being offered, Neitling was offered the position of Operator "C." It was later discovered, however, that Neitling had provided false information on his application, and, therefore, he was never actually hired for the position.
Respondent then turned its attention to the application of Burns. On his application and resume, Burns indicated that he could perform "all aspects of treatment plant
op's." In addition, he indicated that he had 15 years experience as a wastewater plant operator, and that he possessed a Level "A" operator's license, the same license possessed by Petitioner. After submitting his application for employment to Respondent, Burns received an interview from McDonald and the lead operator, Tad Blazer ("Blazer"). During this interview, Burns informed McDonald and Blazer that he had previously done laboratory testing including OUR's, BOD's, fecal's and others.
They also asked Burns about his maintenance skills, and he informed them that he had received cross-training in maintenance, preventive maintenance and pulling of pumps while at Orange County.
Approximately a week after this initial interview, Burns had an interview with Blazer, McDonald and Anselmo. In this second interview, Burns again shared his laboratory testing experience, his maintenance skills and his cross-training. In particular, Burns represented that he could do all of the laboratory testing that the position required, and that he had extensive background in equipment maintenance. Burns also indicated to Anselmo that he had 15 years of experience in all aspects of the treatment process, including lab work and maintenance duties. In addition, Burns informed them that he had spent two months at Orange County in a cross-training program that consisted of him performing strictly maintenance
duties. During this interview, Burns also shared with Anselmo the reasons for his leaving Orange County. He informed Anselmo that he had been terminated by mutual agreement, but that the reasons for the termination involved a conflict with one supervisor, not actual performance problems.
Following this interview, but prior to hiring him, Anselmo and McDonald visited Orange County's personnel department and reviewed Burns' file. In reviewing his file, they discovered that he had exceptional evaluations except for his last year, and that the only negative comments in his file involved failure to give proper notice prior to taking a vacation. There were no allegations of falsification of any records in Burns' file at Orange County.
Based on his background and hands-on experience, Burns was eventually hired by Respondent for the Operator "C" position in May of 2002. At the time he was hired, Burns could perform all of the functions set forth on Respondent's job description for the position of an Operator "C." More importantly, he had conveyed to McDonald and Anselmo that he was capable of performing all of those duties.
Respondent's wastewater facility is smaller than the facility that Petitioner worked at while with the City of Orlando. In fact, the City of Orlando's facility has a capacity of 25 million gallons of water a day, while Respondent's
facility can handle only 750,000 gallons per day. In addition, the City of Orlando employs two or three times more employees that Respondent.
William Hurley ("Hurley"), the Section Manager for the Orange County Wastewater Utility, testified that he has been employed in the wastewater industry for 28 years, and has worked at four different facilities during that time. In his experience, larger facilities often require different tasks from their operators than smaller facilities require of operators. Hurley also testified that he plays a role in the hiring of operators at Orange County. In this capacity, he would consider it a serious violation, and it would give him serious concern, if an applicant revealed to him during the interview process that there were allegations of her committing a falsification of records at her previous employer.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter at this proceeding pursuant to Sections 120.57(1) and 120.569 and Chapter 760, Florida Statutes.
The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, 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 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's sex.
Section 760.10(1)(a), Florida Statutes. The Florida Commission on Human Relations and the Florida courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand v.
Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional Medical
Center, 16 FALR 567, 574 (FCHR 1993).
The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981) and again in the case of St. Mary's Honor Center v. Hicks, 509 U.S. 502,
113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). McDonnell Douglas places upon Petitioner the
initial burden of proving a prima facie case of gender discrimination. See also Davis vs. Humana of Florida, Inc.,
15 FALR 231 (FCHR 1992); Laroche v. Department of Labor and Employment Security, 13 FALR 4121 (FCHR 1991).
Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:
The Petitioner is a member of a protected group;
The employee is qualified for the position; and
The employee was subject to an adverse employment decision (Petitioner was not hired);
The position was filled by a person of another gender or that she was treated less favorably than similarly-situated persons outside the protected class:
There must be shown by the evidence that there is a causal connection between a. and c. Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001); Canino v. EEOC, 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982), appeal after remand, 744 F.2d 768 (11th Cir. 1984); Samedi v. Miami-Dade County, 134 F.Supp. 2d 1320 (S.D. Fla. 2001).
Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for Petitioner's disparate treatment. See Teamsters v. U.S., 431 U.S. 324, 358, n. 44
(1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred 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. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978).
Once Petitioner has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only to "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus."
Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . [i]t is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).
Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.
In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center vs. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993).
In the case sub judice, Petitioner has failed to produce any direct evidence of sex discrimination. Only the most blatant remarks whose intent could be nothing other than to discriminate constitute direct evidence of discrimination.
Scott v. Suncoast Beverages, 295 F.3d 1223, 1227 (11th Cir. 2002); Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1359 (11th Cir. 1999); Pashoian v. GTE Directories, 208
F.Supp. 2d 1293 (M.D. Fla. 2002).
In the present case, a case involving lack of direct evidence, Petitioner has failed to establish that she was qualified for the position of Operator "C." According to the record testimony, two of the essential functions of the Operator "C" position are laboratory testing and maintenance duties. In her interview with Anselmo and McDonald, however, Petitioner stated that although she was capable of performing laboratory tests, she indicated to them that her duties at the City of Orlando had been limited to gathering samples and passing them along to others in the laboratory to perform those tests. In fact, when asked to provide the specific testing she could perform, she failed to provide any such examples. She similarly informed Anselmo and McDonald that she lacked maintenance experience from her previous employment. As such, she clearly informed Respondent that she was not qualified for the position of an Operator "C," and thus was not qualified to be hired.
Petitioner has also failed to satisfy the prong of the prima facie test that other equally or less qualified men were hired for the position. The testimony presented at the hearing demonstrates that each of the additional applicants, Neitling and Burns, expressed to McDonald and Anselmo during the interview that they had extensive laboratory testing experience. In fact, both discussed in detail the types of testing that they were qualified to perform. Furthermore, Neitling and Burns,
particularly Burns, had far more extensive maintenance training and experience. In particular, Burns had been cross-trained in maintenance duties at Orange County, thereby possessing far superior maintenance skills compared to Petitioner. Thus, Burns and Neitling were more qualified for the position than Petitioner.
"Whatever the employer's decision-making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 113 S. Ct. 1701, 1706 (1993). This
standard required Petitioner to establish that "but for" her protected class and the employer's intent to discriminate she would have been hired. Therefore, Petitioner has failed to come forward with sufficient evidence to meet her initial burden of proof on the issue of gender discrimination.
Assuming, arguendo, however, that Petitioner had met her initial burden, Respondent must then articulate some legitimate, non-discriminatory reason for the adverse action that it took. Respondent need not persuade the trier of fact that it was actually motivated by the proffered reasons, but must merely set forth, through the introduction of admissible evidence, the reason for those actions. Texas Department of Community Affairs v. Burdine, at 254-255; Pashoian, at 1309.
In the instant case, Respondent offered credible testimony that Petitioner was not selected for the position because she failed to indicate to McDonald or Anselmo that she had sufficient laboratory testing experience, an essential function of an Operator "C," and because of her lack of maintenance training at her previous job at the City of Orlando lacked another essential function of the Operator "C" position. Furthermore, Petitioner's comments during the interview that she had been terminated from her previous job based on allegations of "falsified records" caused Anselmo great concern, and he considered this a serious violation. Therefore, Respondent has satisfied its requirement of articulating legitimate, non- discriminatory reasons for not hiring Petitioner. See Samedi v. Miami-Dade County, 134 F.Supp. 2d 1320 (S.D. Fla. 2001).
Thereafter, Petitioner retains the burden of persuasion and must prove by a preponderance of the evidence that the legitimate reasons offered by Respondent were not its true reasons, but rather were a pretext for intentional discrimination. Texas Department of Community Affairs, at 253; Samedi, 134 F.Supp. 2d 1346. Thus, the ultimate burden of persuading the trier of fact that Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. 450 U.S. at 253. Indeed, even when the non- discriminatory reason articulated by a respondent has been
demonstrated by the petitioner to be false, the petitioner must still prove that the adverse action truly was based upon unlawful discrimination. St. Mary's Honor Center v. Hicks, supra.
Petitioner has not satisfied her burden of persuasion by making mere conclusory allegations of discrimination or upon her subjective belief that an unlawful discrimination has taken place. Samedi, 134 F.Supp. 2d at 1346. In addition, at the pretext stage, Petitioner may not merely argue that she was more qualified than the male candidates that were hired. Instead, at this point she must show that she was "so much more qualified that the disparity virtually jumps off the page and slaps one in the face." Walker v. Prudential Property and Casualty Insurance Company, 286 F.3d 1270, 1277 (11th Cir. 2002); Lee v. GTE Fla.,
Inc., 226 F.3d 1249, 1253-54 (11th Cir. 2000).
Furthermore, in the absence of evidence of intent to discriminate, courts and administrative agencies are "not in the business of adjudging whether employment decisions are prudent or fair," but rather "whether unlawful discriminatory animus motivates a challenged employment decision." Pashoian, 208 F.Supp. 2d at 1309.
The absence of an intent to discriminate based on Petitioner's sex is demonstrated by the facts that: (1) Petitioner failed to indicate to McDonald or Anselmo that she
had laboratory testing experience, an essential function of the Operator "C" position; (2) Petitioner lacked maintenance training at her previous job at the City of Orlando, another essential function of the Operator "C" position; (3) Petitioner informed Anselmo and McDonald that she had been terminated from her previous job based on allegations of "falsified records"; and (4) the credible testimony that Anselmo has no bias against female employees, but rather hires employees based on their qualifications.
Petitioner has failed to show that the decision not to hire her was based on anything other than legitimate, non- discriminatory reasons.
RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief.
DONE AND ENTERED this 31st day of January, 2003, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2003.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Paul J. Scheck, Esquire Shutts & Bowen LLP
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
