STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN K. HUBERT, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4849

)

DARROCH, INC. d/b/a )

DOCKSIDE IMPORTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 26, 1993, in Gainesville, Florida.

APPEARANCES

For Petitioner: Steven M. Scheck, Esquire

309 North East First Street Gainesville, Florida 32601-3338

For Respondent: Deborah Was

1155 South Semoran Boulevard Winter Park, Florida 32792

STATEMENT OF THE ISSUE

Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.

PRELIMINARY STATEMENT

This cause arose in June 1992 when petitioner, Ann K. Hubert, filed a charge of discrimination with the Florida Commission on Human Relations (Commission) alleging that respondent, Darroch, Inc. d/b/a Dockside Imports, had violated Section 760.10, Florida Statutes, by unlawfully terminating her employment because of her pregnancy. After the Commission conducted a preliminary investigation, its executive director issued a Notice of Determination: No Cause on February 10, 1993. Thereafter, petitioner sought a redetermination of that decision, and this culminated in the issuance of a Redetermination: No Cause on July 22, 1993. Petitioner then filed her petition for relief on August 18, 1993. The matter was referred by the Commission to the Division of Administrative Hearings on August 26, 1993, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated September 30, 1993, a final hearing was scheduled on October 27, 1993, in Gainesville, Florida.

At final hearing, petitioner testified on her own behalf. Respondent presented the testimony of Elizabeth Hill, former manager of the Gainesville store; Elise Dees, assistant store manager; LuAnn Croft, district manager; and Sherry Trigin, manager of the Inverness store. Also, it offered respondent's exhibits 1-3. All exhibits were received in evidence. Finally, Deborah Was, vice president of operations, was authorized to represent respondent as a qualified representative.

The transcript of hearing was filed on November 23, 1993. Proposed findings of fact and conclusions of law were due by December 3, 1993. None were filed.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. Petitioner, Ann K. Hubert, is a thirty-five year old female. On February 4, 1992, she began employment with respondent, Darroch, Inc. d/b/a Dockside Imports (Dockside), as a part-time cashier at respondent's store in Newberry Square in Gainesville, Florida. After a promotion to a full-time position some six weeks later, she continued working until May 11, 1992, when she was terminated for what respondent says was poor job performance. Petitioner contends, however, that she was actually terminated because of her pregnancy. These contentions form the basis for this controversy.

   
   

2. Dockside has a chain of retail stores selling items ranging in size from figurines to furniture. Each store has a manager, assistant manger, and an assistant to the assistant manager known as the first, second and third keys, respectively. In addition, each store employs stock clerks, usually males, to assist in the more physically demanding activities. Except on a few isolated occasions, at least two, and sometimes three, employees would be present in the store at any one time. During petitioner's tenure as a full-time employee at Dockside, she occupied the position of third key. All of the key positions were held by females.

   
   

3. During her first days on the job as a part-time cashier, petitioner was described by her former manager, Betty Hill, as being a "go-getter," "wonderful," and "fantastic." Based on that performance, in March 1992 petitioner was promoted to third key, a full-time position. Within a short period of time, however, her work performance began deteriorating, and Hill began hearing complaints from virtually every other store employee concerning petitioner's performance and attitude. In addition, Hill had at least one customer personally lodge a complaint against petitioner. These complaints began before petitioner learned she was pregnant and continued until her termination.

   
   

4. In March 1992, petitioner first suspected that she might be pregnant and she promptly advised Hill of her suspicions. Hill counseled her to make a doctor's appointment as soon as possible to confirm her pregnancy. This was done in early April 1992 and was reconfirmed "a couple of weeks later." After her second visit to the doctor, petitioner advised Hill that, pursuant to her doctor's orders, she could not lift items weighing more than fifteen to twenty pounds since she had suffered a miscarriage in 1977. Petitioner described Hill's reaction to her pregnancy as being positive, and that Hill "was pretty good about making sure that (she) didn't lift anything heavy." Indeed, Hill

instructed the stock clerk that petitioner was to do no heavy lifting. Except for this precautionary measure, petitioner's job responsibilities were not changed.

1. Before and after she discovered she was pregnant, petitioner's job duties included operating the cash register, waiting on customers, setting up stock, opening the store in the morning, helping customers carry items to their cars, cleaning, shelving, and the like. She was also responsible for moving small boxes from trucks to the stock room several times per week when shipments arrived. When heavy items required moving, the stock clerks were available to perform this task. Because the delivery of heavy items occurred infrequently and was known several days in advance, petitioner was not required to carry heavy furniture items from the truck to the store since extra persons could be scheduled to be on duty and perform that job.

   
   

2. Hill's assistant, Elise Dees, came to work daily around 1:00 p. m. which was just before the end of petitioner's shift. Beginning in early March, Dees always found "nothing was done" by petitioner, including such tasks as shelving, cleaning the glass on tables and windows, vacuuming the floor and the like. In addition, petitioner would always complain she was not "feeling good." According to Dees, she found petitioner's job performance to be "unsatisfactory" at least three to four days per week. Dees also observed that petitioner was always sitting on a box at the back of the store rather than in the front area where she could assist customers. At hearing, petitioner says that she was forced to sit down due to dizziness caused by her pregnancy. In any event, Dees suggested petitioner sit on a bar stool by the cash register in the front of the store in order to be closer to the customers but petitioner declined to do so.

   
   

3. During the week of May 4, 1992, petitioner took a previously scheduled one-week vacation to attend a wedding. While petitioner was on vacation, the district manager noticed that store morale and teamwork improved, and a "complete change" in the store environment occurred. Because of this, a decision was made to terminate petitioner immediately upon her return from vacation. It was decided that a demotion would not be practicable since this would not improve the decline in employee morale and teamwork if petitioner stayed in another position.

   
   

4. When she returned to work on May 11, 1992, petitioner was met in the parking lot by Hill, who told her that she was being terminated effective immediately. Her position was filled that day by another individual whose gender is not of record. It is noted that petitioner was not dischargd because of a fetal protection policy, nor was she discharged because her pregnancy prevented her from performing her assigned tasks. Rather, she was terminated because of her poor work performance since early March 1992, including its negative impact on co-worker's morale and performance. Therefore, respondent did not commit an unlawful employment act in discharging petitioner.

   
   

5. There was no evidence that Dockside had any previously articulated policy per se regarding pregnant employees, nor was there evidence that a similar situation had previously ever arisen. At the time of hearing, Dockside was employing at least one pregnant employee and was providing that employee the same type of accommodations offered petitioner.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Subsection 760.10(1)(a), Florida Statutes, which governs this controversy, provides in pertinent part:

   
   

   1. It is an unlawful employment practice for an employer:

      1. to discharge...any individual...because of such individual's...sex...

         
         

         The petition for relief alleges that Dockside violated this statute by unlawfully terminating petitioner by reason of her pregnancy. Although subsection 760.10(1)(a) does not specify that discrimination on the basis of pregnancy is sex discrimination, Congress has amended Title VII of the Civil Rights Act of 1964 by enacting the Pregnancy Discrimination Act of 1978 which specifies that discrimination on the basis of pregnancy is sex discrimination and therefore violative of Title VII. By Congress doing so, subsection 760.10(1)(a) is "pre-empted" by Title VII of the Civil Rights Act of 1964 "to the extent that Florida's law offers less protection to its citizens than does the corresponding federal law." O'Loughlin v. Pinchback, 579 So.2d 788, 792 (Fla. 1st DCA 1991). See also Pinchback v. St. Johns County Sheriff's Department, 7 F.A.L.R. 5369, 5371 (FCHR, August 12, 1985).

8. Under subsection 701(k) of the Pregnancy Discrimination Act The terms because of sex or on the basis

   of sex' (in Title VII) include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment- related purposes . . . as other persons not so affected but similar in their ability or inability to work . . .

   
   

9. Neither party has provided an analysis of the case law governing this type of dispute or the elements necessary to prove a prima facie case. It would appear, however, that in order to make out a prima facie case of discrimination based upon pregnancy under the foregoing statute, petitioner must show that she was pregnant, that she was qualified for her position, that an adverse employment decision was taken against her, and that the employer treated her differently than other persons who were not pregnant but who were similar in their ability to work. Once petitioner establishes a prima facie case of discrimination, respondent has the responsibility of articulating a legitimate, nondiscriminatory reason for its actions. Assuming that burden is satisfied, petitioner may still prevail by proving that respondent's justification was pretextual.

10. Petitioner has failed to prove a prima facie case of discrimination. While she proved that she was pregnant and qualified for her position as third key, and that an adverse employment decision was taken against her, she failed to show that she was treated any differently than other similarly qualified male or non-pregnant female employees.

    
    

11. Assuming arguendo that petitioner presented a prima facie case, respondent articulated a legitimate, non-discriminatory reason for its employment decision, that being petitioner's poor work performance beginning in early March 1992 and continuing until her termination. Petitioner did not show that this reason was pretextual in nature. This being so, the petition for relief should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition

for relief.

DONE AND ENTERED this 9th day of December, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1993.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana C. Baird, Esquire

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Steven M. Scheck, Esquire

309 North East First Street Gainesville, Florida 32601-3338

Ms. Deborah Was

1155 South Semoran Boulevard Winter Park, Florida 32792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to 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: 93-004849

Orders for Case No: 93-004849