02-004810 Carmen Christensen vs. City Of Orlando Status: Closed Recommended Order on Tuesday, June 10, 2003.

Summary: Petitioner dismissed for falsification of city records. Alleged age and gender discrimination not found. When given opportunity to reproduce meter test results earlier entered in records, Petitioner failed to obtain them. Petition dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMEN CHRISTENSEN, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4810

)

CITY OF ORLANDO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a forma l administrative hearing was held

on April 14, 2003, in Orlando, Florida, before Fred L. Buckine,

the designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Carmen Christensen, pro se

5419 Shiloh Drive

Adamsville, Alabama 35005

For Respondent: Amy T. Iennaco, Esquire

City of Orlando

400 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent, City of Orlando, violated

Section 760.10, Florida Statutes (2001) (All references to the

Florida Statutes are to Florida Statutes 2001), when on

January 30, 2002, Respondent terminated Petitioner's employment

as a wastewater treatment plant operator.

PRELIMINARY STATEMENT

On April 2, 2002, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR) charging Respondent with discrimination based on her

gender and age.

By letter dated November 5, 2002, the FCHR informed

Petitioner of its determination finding no cause and advised

Petitioner of the right to request a de novo administrative

hearing by filing a petition for relief within 35 days of

November 5, 2002.

Petitioner tim ely filed her Petition for Relief with the

FCHR. On December 16, 2002, her Petition for Relief was

transmitted by the FCHR to the Division of Administrative

Hearings, requesting assignment of an Administrative Law Judge

to conduct all necessary proceeding s.

On December 17, 2002, an Initial Order was issued,

assigning this matter to Administrative Law Judge Jeff Clark and

requiring the parties to submit a timely response regarding

available dates for the final hearing. Neither party filed a

response.

On Ja nuary 7, 2003, an Amended Initial Order was issued.

On January 13, 2003, Petitioner filed a request for extension of

time to respond to the Amended Initial Order, 1 and on January 15,

2003, a Notice of Ex - Parte Communication was entered. On

January 29, 20 03, Petitioner's request for an extension of time

to respond to the Amended Initial Order was granted, ordering

the parties to respond on or before February 4, 2003. On

January 31, 2003, Petitioner responded to the Amended Initial

Order, and on February 3 , 2003, a Notice of Hearing, scheduling

the final hearing for March 4, 2003, in Orlando, Florida, and an

Order of Pre - hearing Instructions were entered.

On February 6, 2003, an Amended Notice of Hearing was

entered, rescheduling the final hearing for April 4, 2003, and

on March 26, 2003, Respondent's compliance with the Order of

Pre - Hearing Instructions was filed.

On March 31, 2003, Petitioner filed a Request for

Disqualification of Administrative Law Judge Jeff Clark. By

Order of April 1, 2003, Petitioner 's request for assignment of

another Administrative Law Judge was granted, and the case at

bar was transferred to the undersigned. On April 2, 2003, an

Order denying Petitioner's April 1, 2003, request for

continuance was entered.

At the final hearing, Pe titioner appeared pro se .

Petitioner testified in her own behalf and presented the

testimony of four employees of Respondent: Thomas Lothrop,

deputy director of Public Works; Angel Cardona, labor relations

specialist; Colin Benner, chief operator of Wast ewater Conserve

II; and Paul Deuel, plant manager of Wastewater Conserve II.

Petitioner's 42 exhibits were received into evidence.

Respondent called the above - named four employees as witnesses

and presented 12 exhibits that were received into evidence.

O n April 7 and April 10, 2003, Respondent and Petitioner,

respectively, filed motions for extension of time to submit

their proposed recommended orders, and by Order of April 11,

2003, the parties were ordered to file proposed recommended

orders not later t han May 16, 2003. By their joint motion, the

parties waived the requirement that this Recommended Order be

issued within 30 days thereafter. See Rule 28 - 106.216, Florida

Administrative Code.

On May 5, 2003, a one - volume Transcript of this proceeding

was filed. On May 12 and May 16, 2003, Petitioner and

Respondent, respectively, filed Proposed Recommended orders that

have been considered by the undersigned in formulation of this

Recommended Order.

FINDINGS OF FACT

Based upon observation of the witnesses a nd their demeanor

while testifying, the documentary materials received in

evidence, and the entire record compiled herein, the following

evidentiary, relevant, material and ultimate facts are

determined:

1. Respondent, City of Orlando (City), is a municip ality

of the State of Florida and, at all times material to this

cause, was an "employer" as that term is defined in Section

760.02(7), Florida Statutes.

2. Petitioner, Carmen Christensen (Ms. Christensen), at

all times material to this cause, was an "agg rieved person" as

that term is defined in Section 760.02(10), Florida Statutes.

3. Ms. Christensen alleged in her petition that on

January 30, 2002, the City terminated her employment for putting

a decimal point in the wrong place on a city document. Sh e

alleged that other male employees put erroneous numbers on city

documents and admittedly falsified city records and that they

were only suspended for three days, but kept their jobs.

Ms. Christensen further alleged her termination by the City was

due, in part, because of her age, 58 years old, and her gender,

female, in violation of Section 760.10(1)(a), Florida Statutes.

4. In 1993, the City's Apprentice Training Program was

hiring and training potential city employees needed in various

trades within the City's workforce. Ms. Christensen entered the

apprentice program and selected to become qualified as a

wastewater treatment plant operator. She completed the training

program, took the State's Treatment Plant Operator Certification

Examination, passe d the examination, and was awarded a

Department of Environmental Protection Class "C" Wastewater

Treatment Plant Operator Certification. In the years between

her initial training in 1993 and her termination in

January 2002, Ms. Christensen progressed thr ough training and

work experience and acquired a Class "A" Wastewater Treatment

Plant Operator Certification.

5. As a wastewater treatment plant operator,

Ms. Christensen's responsibilities and duties included

conducting turbidity meter tests and recordi ng her test results

on the wastewater treatment plant's turbidity tracking sheet

log. The process requires that two tests be performed by the

wastewater treatment plant operator. The results of the first

and second tests are recorded on the tracking shee t, to ensure

that the turbidity of the wastewater is within acceptable

standards.

6. The City, from time to time, would receive from the

Department of Environmental Protection revised standards for

turbidity meter testing. Upon receipt of revised standar ds, the

wastewater treatment plant operator is responsible for

recalibration of the turbidity meter to the revised standards

for the wastewater treatment plant.

7. On January 14, 2002, the City's calibration standard

for the turbidity meter changed from 0 .8 NTU (Nephelometric

Turbidity Units) to 7.9 NTU. The 7.9 NTU turbidity meter

calibration change was made on Wastewater Conserve II turbidity

meters and entered in the plant's logbook. Ms. Christensen, as

a plant operator, is required to read the plant logbook at the

beginning of every work shift.

8. During the period of January 18 through January 25,

2002, during which time the 7.9 NTU turbidity meter standard was

installed, Ms. Christensen made eight daily turbidity meter test

entries of 0.8 NTUs in t he plant's logbook. When, on about

January 25, 2002, her supervisor became aware of

Ms. Christensen's 0.8 NTU turbidity meter test result entries,

he asked her for an explanation. Ms. Christensen explained that

she had made the turbidity meter tests on each date indicated by

putting the standard in and turning the knob to read 0.8 and

always obtained a 0.8 reading, but mistakenly placed the decimal

points in the wrong place. The City placed Ms. Christensen on

suspension with pay, from January 25, 2002, to January 29, 2002,

pending a complete investigation of the circumstances

surrounding the eight 0.8 NTU turbidity meter test result

entries.

9. To provide Ms. Christensen with an opportunity to

vertify her claim of actually having performed eight tests a nd

getting a 0.8 NTU turbidity meter test result each time, and as

a means of verifying Ms. Christensen's claim of placing her

decimal point in the wrong place by mistake, her supervisor and

she agreed that she should perform a turbidity meter test and

pro ve she had gotten the 0.8 NTU test results January 18 through

January 25, 2002, the time the 7.9 NTU turbidity meter standard

had been installed.

10. On January 28, 2002, in the presence of Paul Deuel,

Chief Operator; George Clark, Mechanic IV/Union St eward; and Bob

Hanna, Mechanic VI/Union Representative, Ms. Christensen

performed a turbidity meter test but could not obtain the

0.8 NTU turbidity meter test result she claimed to have gotten

during the eight - day period of January 18 through 25, 2002.

11. Ms. Christensen's inability to obtain the 0.8 NTU

turbidity meter test result she entered in the logbook

conclusively demonstrated that she had not performed the

turbidity meter tests on the dates indicated. Her inability to

obtain the 0.8 NTU test r esult further proved that the turbidity

meter test results of 0.8 NTU entered by Ms. Christensen in the

plant's logbook over the eight - day period between January 18 and

January 25, 2002, were intentional false entries. Under the

observation of her supervi sors and the other persons herein

above with knowledge and experience with turbidity meter

testing, Ms. Christensen appeared to be unfamiliar with the

calibration operation of the turbidity meter.

12. The eight entries of 0.8 NTU readings entered on the

p lant's log by Ms. Christensen over an eight - day period

beginning January 18, 2002, and ending January 25, 2002, were

not based upon actual turbidity meter test result readings taken

from Wastewater Conserve II's wastewater turbidity meter and did

not, in f act, reflect true turbidity meter test result readings.

Accordingly, the eight 0.8 NTU test result readings entered by

Ms. Christensen were eight intentional false turbidity meter

test result entries made in the City's records.

13. Based upon its investi gation of the totality of

circumstances, including Ms. Christensen's explanation for her

invalid readings, her inability to reproduce the 0.8 NTU

turbidity meter reading, and her unfamiliarity with the

turbidity meter's calibration operation, the City conc luded that

Ms. Christensen's explanation was intentionally false and her

eight log entries were intentionally false. It was upon this

conclusive determination of "falsifying city records," and not

her age or gender, that the City based its decision to ter minate

Ms. Christensen's employment.

14. Ms. Christensen was within the class of City employees

covered by the collective bargaining agreement (CBA) between the

City and the Labor International Union of North America

(L.I.U.N.A.), Local 678. Article 22. 3 of the CBA provides, in

part, that: "[D]ischarge will be imposed if any employee . . .

has committed a major offense." Under subsection 7, major

offenses may include "falsification of records, official

statements, or omitting information on records."

1 5. After her termination, Ms. Christensen exercised her

right to grieve her termination under Article 10 of the CBA.

Subsequent to filing her grievance, Labor Relations Specialist,

Angel Cardona, negotiated a settlement of Ms. Christensen's

grievance whe rein she agreed to drop her grievance in exchange

for her "no rehire" status to be changed to a "rehire" status. 2

16. Ms. Christensen's proffered circumstantial evidence of

both male and female City employees, within the age group of

40 to 58 years old, including wastewater plant employees and

employees in other areas of service, who made mistakes in

completing City documents and were not terminated. In each

example presented by Ms. Christensen, the City successfully

demonstrated that each named employee either voluntarily

resigned his or her position with a "no rehire" notation in his

or her personnel file or was terminated by the City.

Ms. Christensen was given the option to have a "no rehire"

notation in her personnel file, but refused and sought reli ef

through this proceeding.

17. The City proved that both male and female employees

who were terminated were terminated only after it was determined

that each City record entry was not a mistaken entry but was an

"intentional false entry," and, in each ca se, the employee was

terminated as in the instant case.

18. Based upon the Findings of Fact hereinabove and the

evidence of this record, Ms. Christensen has failed to

establish, by circumstantial evidence, a prima facie case that

would support a finding t hat unlawful discrimination was the

cause or was a part of the cause for the City's termination of

her employment.

19. The City articulated a legitimate reason for the

termination of Ms. Christensen's employment as a wastewater

treatment plant operator, " falsification of city records." This

is a legitimate reason for the termination by the City without

regard or consideration of Ms. Christensen's age or gender.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding pursuant to Sections 120.569(1), 120.57(1), and

760.11(7), Florida Statutes.

21. Section 760.10(1)(a), Florida Statutes, provides that

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 because of such

individual's race, color, religion, sex,

national origin, age, ha ndicap, or marital

status.

22. The FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes.

Florida Department of Community Affairs v. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991).

23. The United States Supreme Court established, in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973) and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in case s alleging discrimination

under Title VII, which is persuasive in cases such as that at

bar, as reiterated and refined in the case of St. Mary's Honor

Center v. Hicks , 509 U.S. 502 (1993).

24. This analysis illustrates that a petitioner has the

burden of establishing, by a preponderance of evidence, a prima

facie case of discrimination. If that prima facie case is

established, the defending respondent must articulate a

legitimate, non - discriminatory reason for the action taken

against the petitioner. The burden then shifts back to the

petitioner to go forward with evidence to demonstrate that the

offered reason is merely a pretext for unlawful discrimination.

The Supreme Court stated in Hicks , before finding discrimination

in that case, that: "[T]he fac t finder must believe the

plaintiff's explanation of intentional discrimination."

509 U.S. at 519. In the Hicks case, the Court stressed that

even if the fact finder does not believe the proffered reason

given by the employer, the burden remains with th e petitioner to

demonstrate a discriminatory motive for the adverse employment

action taken.

25. In order to establish a prima facie case, Petitioner

must establish that she is a member of a protected group; that

she is qualified for the position in quest ion; that she was

actually subjected to an adverse employment decision; that she

was treated less favorably than similarly situated persons

outside her protected class; and that there is some causal

connection between her membership in the protected group and the

adverse employment decision that was made. See Canino v.

U.S., E.E.O.C. , 707 F.2d 468 (11th Cir. 1983); and Smith v.

Georgia , 684 F.2d 729 (11th Cir. 1982).

26. Here, Petitioner alleges the following adverse and

discriminatory employment actions :

Terminated me for putting my decimal point

in the wrong place on a city document.

Other male employees put erroneous numbers

on or no number at all. Past employees

admittedly falsified city records (all

males) and they were suspended for 3 days,

kept t heir jobs. I had been on light duty

for 2 months, superintendent had to carry

samples, they did not like that.

I rounded off 7.9 to 0.8 - put my decimal

point in wrong place. Did perform samples.

Did not terminate male employees for similar

offenses.

I d id not falsify any records, I was

discriminated against. I had worked

midnights for a long time and had problems

sleeping. City did not terminate male

employees.

27. Petitioner seeks the following relief:

Back pay, retirement, and personal leave,

raise s I would have received. Income I was

deprived of for the next 10 years; yearly

bonuses past and future; insurance; pain,

stress, suffering and inconvenience caused.

28. Viewed most favorably toward Petitioner's position and

argument in her Proposed Rec ommended Order, the preponderance of

the evidence fails to establish a prima facie case of unlawful

discrimination by Respondent and fails to support her position

that her termination was on the basis of her age and gender.

29. To the contrary, the cred ible, material and

substantial evidence shows that Respondent was consistent in its

non - discriminatory termination of employees, both male and

female within the age group as Petitioner, for "falsification of

city records." Respondent clearly established a legitimate

reason for Petitioner's termination, that of "falsification of

city records."

30. Petitioner failed to carry the burden and prove by a

preponderance of the evidence that Respondent's reasons for

Petitioner's termination were either false or pr etextual, or

that her sex (female) or age (58) was the real reasons for

Petitioner's termination. Accordingly, Petitioner's Petition

for Relief should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RE COMMENDED that:

The Florida Commission on Human Relations enter an order of

dismissal of Petitioner's, Carmen Christensen, Petition for

Relief based on gender and age discrimination against

Respondent, the City of Orlando.

DONE AND ENTERED this 10th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

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 10th day of June, 2003.

ENDNOTES

1/ At the time of her termination, Petitioner lived in the city

of Orlando, Florida. After her termination and prior to this

cause being transmitted to the Division of Administrative

Hearings, Petitioner relocated to 5419 Shiloh Drive, Adamsville,

Alabama 35005, resulting in a temporary delay in exchange of

correspondence.

2/ The Depart ment of Environmental Protection, by letter dated

October 2, 2002, signed by Vivian F. Garfein, Director, Central

District, informed Ms. Christensen of the determination, which

was based upon record reviews performed on February 26 and

April 23, 2003, tha t revealed specific violations of

Rule 62 - 602.650(1), Florida Administrative Code, Duties of

Operators, to wit: (1) Perform responsible and effective on -

site management and supervision over personnel and plant

functions including, if applicable, reuse an d disposal systems

within the operator's responsibility; and (2) Submit all

required reports in the manner required by the Department in

Rule 62 - 601.300 or 62 - 550.730, Florida Administrative Code, to

the permittee or supplier of water. The specific violat ions

discovered were: inaccurate information documented in the

turbidity calibration logbook. "On January 14, 2002, the

turbidity standard was changed from 0.8 NTU to 7.9 NTU.

However, over an eight - day period beginning January 18, 2002,

and ending Janu ary 25, 2002, you made seven (7) calibration

entries of 0.8 NTU, which differs from the new standard of 7.9

NTU." As a result, DPR placed Ms. Christensen on probation for

two years from the date of the letter and required her to

complete one Continuing Ed ucation Unit during probation. Ms.

Christensen did not accept this resolution even though it would

have retained her employment with the City of Orlando.

COPIES FURNISHED :

Carmen Christensen

5419 Shiloh Drive

Adamsville, Alabama 35005

Denise Crawford , Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Amy T. Iennaco, Esquire

City of Orlando

400 South Orange Avenue

Orlando, Florida 32801

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 Rec ommended Order should be filed with the agency that

will issue the Final Order in this case.