, 11, and 13-17. All exhibits were admitted except Petitioner Exhibit 20, which was proffered.
The parties did not order a transcript. They filed Proposed Recommended Orders on April 26, 2010.
Respondent is a family-owned business engaged in the retail sales of wine, spirits, cigars, specialty gourmet foods, and party favors. Respondent operates about 28 stores, mostly in south Florida. Respondent employs at least 225 employees. Its chief executive officer is Paul (Bubba) Kassal. Other executive officers, superior to Bubba Kassal, are his brother Michael, who also serves as vice-president of personnel, and their father, who, with his father, started the company in 1955.
Respondent hired Petitioner on October 13, 2003, as a human resources manager. As such, Petitioner reported to the human resources director. At the time of hiring Petitioner, Bubba Kassal informed her, presumably secretly, of his intent to fire the existing human resources director. Six months later, after the termination of the human resources director, Respondent promoted Petitioner to the position.
As human resources director, Petitioner's primary duties were to ensure that all of Respondent's employees were paid, file all reports with the appropriate agencies, prepare internal employment policies, train managers in good hiring
practices, run background checks, ensure compliance with all safety, workers' compensation and Family Medical Leave Act (FMLA) issues, terminate employees, counsel employees, file unemployment compensation reports, and participate in the strategic planning for new stores. The Kassals were satisfied with Petitioner's work performance during her entire employment with Respondent.
Respondent's main offices are located in
Ft. Lauderdale. While working for Respondent, Petitioner commuted over one hour each day from her home in Port St. Lucie to her office in the corporate headquarters.
The issues in this case divide neatly into the claims of a hostile work environment and sex discrimination due to pregnancy. The claim of a hostile work environment pertains to Petitioner's first two years with Respondent, which were from late 2003 through late 2005. The claim of discrimination due to pregnancy pertains to Petitioner's last months with Respondent, which were from spring 2008 through fall 2008.
As noted below, there is evidence supportive of a claim of a hostile work environment, although this evidence fails to establish such a claim for the reasons explained below.
However, the limited evidence of a hostile work environment is in no way linked to the termination of Petitioner's employment in 2008 while she was pregnant. This termination, which was due
to complications associated with her pregnancy, was essentially by mutual agreement and in no way was due to some form of quid pro quo sex discrimination or retaliation for her failure to reciprocate Michael Kassal's flirtation or infatuation.
Petitioner's version of events for 2003-05 is credited because Michael Kassal did not testify. Petitioner's version of events for 2008 is largely uncredited due to some inconsistencies in her testimony where she implies, for instance, that she understood that Respondent might not keep open her existing job until after she delivered. Petitioner's version of events for 2008 is less than the more plausible testimony of Bubba Kassal and Respondent's outside counsel, Amy Galloway.
Shortly after starting work, Petitioner began receiving unwelcome attention from Michael Kassal, whose office was near Petitioner's office. Michael Kassal, who was married at all material times, routinely complimented Petitioner's hairstyle, teeth, shoes, and clothes. When Respondent sponsored a wine tasting at its Port St. Lucie store, Michael Kassal invited Petitioner to attend. Michael Kassal repeatedly asked Petitioner to lunch or dinner. Petitioner went to lunch with Michael Kassal only a couple of times because she was uncomfortable with the level of attention that she was receiving.
During her first year of employment, Petitioner was preoccupied with the demands of her job and largely ignored the uninvited attention that Michael Kassal directed toward her. During her second year of employment, Petitioner initiated corporate-wide training sessions in sexual harassment. She used these occasions to remind Michael Kassal, when he made her uncomfortable with his comments or behavior, that he knew better and he needed to stop such inappropriate behavior.
Undeterred, Michael Kassal instead confided in Petitioner that he felt trapped in his marriage, could not leave his wife due to their two children, and believed that he would have been much happier if he had met Petitioner a couple of years earlier because they would have been so good together. Michael Kassal said that his wife, who was, at times, an employee of Respondent, was an alcoholic. Petitioner suggested that Michael Kassal or his wife take advantage of Respondent's employee assistance program. Michael Kassal rejected this advice and instead stated that, if Petitioner would not go out with him, he would go out with a woman at the gym where he worked out.
On Petitioner's birthday, Michael Kassal routinely gave her a card. Petitioner kept only two of the cards and could not identify the years that they were received. One card contains a handwritten note: "And I need you more than want
you[,] and I want you til the end of all time." Michael Kassal printed his name at the bottom of the note, adding a heart- shaped symbol in place of the dot over the "i."
The other birthday card states:
Dear Angella, It[']s presently July 10th and you are in India and I am wishing I were with you riding on Elephants and protecting you from the dangers so far from home. I must tell you we all miss you and only have kind thoughts about how professionally you have with us with Cami and Johanna. You have always blessed us with organization and administrative magic. I sit here and count the days before I can smell Victor[i]a's Secret Rapture perfume. Thank you for your intervention. You have been a breath of fresh air. I know it[']s been a whirlwind to some of us to catch up but it[']s worth the effort. I always have your back. I hope this year[']s birthday brings happiness and fills your heart with songs and sunshine. I hope you get a new pair of shoes and a toothbrush. Thanks again for all your loyalty and dedication. Sincerely, Michael Kassal.
The "i" in "Michael" bears no dot or other symbol.
Bubba Kassal testified that Michael sent birthday cards to all of the employees of the company and that this was part of the family atmosphere that characterizes the company, which continues a tradition of family picnics, employee fitness programs, and comprehensive fringe benefits. Bubba Kassal also testified that he and his brother kiss each morning. However, Bubba Kassal did not testify that the contents of the birthday cards quoted above resemble the contents of the birthday cards
that Michael Kassal sends to, say, the company truck drivers or warehouse workers. The thoughtfulness that Michael Kassal extends daily to his brother and annually to his employees is distinct from the intimacies inherent in the shorter birthday card and the reference to smelling Petitioner's perfume again. These intimacies corroborate the portion of Petitioner's testimony that describes an inappropriate level of emotional attachment from Michael Kassal toward Petitioner; the inference easily follows that this level of emotional attachment is atypical of the conventional employer-employee relationship at Respondent.
Three omissions loom large in Petitioner's proof of her claim of a hostile work environment. These omissions are considered in ascending order of significance.
First, at no time during her employment with Respondent did Petitioner complain to anyone about Michael Kassal's behavior. She testified that she believed a complaint would be futile because Michael Kassal was the boss.
Respondent countered with evidence that complaints about Michael Kassal's wife led to her termination and argument that Petitioner's complaints would likewise have received a fair hearing. Respondent's contention overlooks the fact that Michael's wife was convicted of driving under the influence, and
her continued operation of a company vehicle presented an insurance problem for Respondent that could not be ignored.
Petitioner is right on this point--her complaint would have been futile. Bubba Kassal was not in a position to control his brother, and, on this record, their father does not seem to have been playing a prominent role in the business during the time in question.
Factually, the failure to lodge a contemporaneous objection to unwelcome sexual behavior in the workplace may sometimes undermine the credibility of the complainant. This is not the situation here, though, because, as noted above, Petitioner's version of events from 2003-05 is unrebutted and confirmed by two birthday cards.
Legally, the failure to lodge a contemporaneous objection to unwelcome sexual behavior in the workplace may sometimes preclude a finding of notice to the employer, so as to preclude a conclusion of vicarious liability. This is not the situation here, though, because, as discussed in the Conclusions of Law, Michael Kassal was Respondent for purpose of establishing notice and concluding vicarious liability for his behavior.
The second omission is that nothing in the record establishes that the behavior of Michael Kassal impeded Petitioner's work performance. As discussed in the Conclusions
of Law, this omission is not outcome-determinative, but, as noted above, Petitioner's work was always satisfactory, at least until her health deteriorated during her pregnancy, which is discussed below.
The third omission is that the evidence fails to establish that Michael Kassal continued to lavish inappropriate attention on Petitioner after the end of 2005. The record is silent as to the nature of the relationship between Michael Kassal and Petitioner for the two and one-half years from the end of 2005 until the disclosure of her pregnancy in the spring of 2008. It is at least as plausible that, unfueled by any encouragement from Petitioner, Michael Kassal's infatuation with her tapered off after a couple of years, rather than burned with the same intensity for four and one-half years.
The behavior of Michael Kassal from late 2003 through late 2005 suggests nothing more than an infatuation with Petitioner, which, however inappropriate, excludes the sexually charged actions of offensive touching or sexually explicit invitations or comments. The behavior in this case is limited to unaccepted invitations to lunch, dinner, and dates, inappropriate revelations about Michael Kassal's personal life, and transparent attempts at flattery that, at their best, suggest a failure to recognize boundaries and, at their worst, wander between the narcissistic and infantile.
The record is not especially rich in detailing Petitioner's response to the inappropriate attention lavished on her by Michael Kassal, except that there is no indication whatsoever that Petitioner welcomed the attention, reciprocated in any fashion, or was in any way flattered by Michael Kassal's two-year infatuation. There is some evidence that the attention made Petitioner embarrassed and somewhat uncomfortable, but this evidence is insufficient to establish that Petitioner's subjective reaction took the form of a feeling that she was physically threatened or personally humiliated or that she was laboring under an alteration of her working conditions. Such reactions, if they had occurred, would have been disproportionate to the level of attention that Michael Kassal directed toward Petitioner.
Except for the frequency of comments about attire or appearance, which may have occurred on a daily basis, the record fails to establish the frequency of the invitations to lunch, dinner, and dates or the inappropriate revelations about Michael Kassal's personal life, but these occurrences were probably infrequent. Objectively considered, none of Michael Kassal's behavior was physically threatening or humiliating, none of his behavior was so pervasive or severe as to alter the conditions of Petitioner's employment, and none of his behavior could
reasonably have adversely affected Petitioner's work performance.
Based on these findings and the Conclusions of Law below, Petitioner has failed to prove a hostile work environment from 2003-05.
The inception of the claims arising out of Respondent's treatment of her pregnancy is March or April 2008, when Petitioner learned that she was pregnant and due to deliver in November. In June, Petitioner decided to reveal her pregnancy to family, friends, and Respondent.
On the morning that Petitioner had decided to inform Respondent of her pregnancy, the first person who came to her office was Bubba Kassal. He congratulated Petitioner, laughingly saying, in a manner that did not offend Petitioner, that he did not know that she had a boyfriend. Bubba Kassal then spoke of his two boys and added that he was sorry that Petitioner's mother was no longer alive to support her at this time. Bubba Kassal called his mother and told her, and she called Petitioner the next day and congratulated her. The record does not disclose whether Petitioner told Michael Kassal at this time, or, if she did, the nature of his response.
A short while later, on June 13, Petitioner had an office visit with her physician, who became concerned about her high blood pressure. The physician asked if Petitioner could
work at home, and Petitioner assured him that she could. The physician wrote a note to this effect.
Driving back to the office, Petitioner called
Ms. Galloway, with whom Petitioner had worked on human-resource issues. Petitioner told Ms. Galloway about her pregnancy, the health risks, and the support that she had already received from "the Kassals." Ms. Galloway advised Petitioner just to go in and tell them that she needed to work at home. Toward this end, Petitioner arranged a meeting with Michael and Bubba Kassal on June 18.
At the meeting, Petitioner gave the Kassals a copy of her physician's note. Petitioner acknowledged that she had been with Respondent a long time, and she thanked them for the work that she had been allowed to do. She mentioned her pregnancy complications, which included blacking out and falling--these made the long drive between work and home especially dangerous. Petitioner offered to recruit someone to replace her, but she wanted to be kept on the payroll in return for performing various human resource duties as best as she could, mostly from home.
Michael Kassal reacted to the request poorly. He replied that it had not been his idea to purchase a house so far from the office in Port St. Lucie, and the human resources director needed to be onsite. Notwithstanding Michael Kassal's
reaction, Respondent accepted Petitioner's request, as Bubba Kassal and Petitioner generally agreed to an arrangement in which Petitioner would continue to be paid her normal salary through delivery in return for working on human resources matters on a limited basis.
An important component of the understanding reached at the June 18 meeting was its term, which was through the birth of the baby. Bubba Kassal asked what would happen if, after baby was born, Petitioner decided not to return to work. Petitioner was unable to promise that she would return to work, but replied that she needed to work, and she could bring her aunt from Jamaica to watch the baby. Bubba Kassal asked when the work-at- home arrangement would go into effect, and Petitioner replied it was intended to go into effect right away, but she would try to work with them and offered to help find someone to perform her duties in her absence. Bubba Kassal replied that he had someone in mind. Petitioner herself testified that Bubba Kassal asked what would happen if they liked the replacement, and Petitioner replied that she understood that they had a business to run, implying that, consistent with this understanding, they might not have a position for her after the baby were born, just as she might not want to return to work with Respondent. Bubba Kassal promised to memorialize the understandings reached at the meeting.
Despite the doctor's orders, Petitioner continued to report to the office until the July 4 weekend. At that time, she asked Bubba Kassal about the document to memorialize their understandings, and he said that Amy Galloway was working on it. On July 7, Ms. Galloway emailed to Bubba Kassal a draft letter agreement, which, among other things, confirmed that neither party was committing to Petitioner's ongoing employment after the birth of the baby.
On July 8, Petitioner sent an email to Bubba and Michael Kassal and Ms. Galloway advising them that she was on bed rest and would submit FMLA paperwork as soon as possible. For some reason, the recipients did not receive this email, so they were unaware in early July of the status of Petitioner, who, understandably, did not undertake any unnecessary communications during her period of bed rest in order to save the baby.
On July 11, Petitioner visited the doctor, who found that her blood pressure had soared to 200/100. Petitioner talked him out of ordering an ambulance to take her to the hospital, but the doctor ordered bed rest for Petitioner. By this time, Petitioner realized that, for the remainder of her pregnancy, she would not be able to perform even at the limited level that she had said she would work at the June 18 meeting.
From this point forward, the June 18 understanding was superseded by Petitioner's medical issues.
On July 11, Petitioner returned to the office briefly to advise her staff that she would be going home for the time being. While at the office, she saw an invoice from
Ms. Galloway's law firm that reflected legal research conducted a couple of days after the June 18 meeting and concerned the Title VII ramifications of Petitioner's situations. Petitioner assumed that Respondent was terminating her and began to cry.
On the same day, Petitioner returned to the doctor's office and had him complete the FMLA paperwork, which Petitioner had previously thought was unnecessary. The necessity for FMLA paperwork was as much Petitioner's realization, on July 11, that she could not perform even the limited duties contemplated by the June 18 understanding as her discovery, also on July 11, that Respondent had ordered its counsel to research Title VII.
Later on July 11, Petitioner returned to the office with the completed FMLA paperwork and left it for Bubba Kassal. Pursuant to this paperwork, the FMLA period, during which Respondent would have to keep open her job, expired before the projected delivery date.
On July 14, Petitioner returned a telephone call of Ms. Galloway and updated her on her condition. As Ms. Galloway confirmed in an email of the same date to Bubba Kassal,
Petitioner wanted to take her FMLA time and understood that she would not be able to perform the transitioning tasks contemplated in the June 18 understanding. Ms. Galloway promised Petitioner that she would discuss with Bubba Kassal a reworking of her benefits, including maintaining present health benefits and obtaining disability benefits.
On August 5, Petitioner sent an email to Bubba and Michael Kassal advising that she had not received her paycheck on August 2 and stating that she "continued" to be available to perform her end of the June 18 understanding. This is an attempt to document a fact that was untrue: Petitioner had not been able to perform her responsibilities under the June 18 understanding at any time after July 11. Ten minutes after receiving the email, Bubba Kassal emailed Ms. Galloway stating that they would proceed by paying Petitioner disability benefits through the birth, paying the company's portion of the health insurance until the birth, and giving Petitioner access to her company laptop computer and cellphone until October 1 in return for a release, presumably from any employment-related liability claims. It is impossible to infer that Bubba Kassal was miffed at Petitioner's misstatement, but it is likely that the misstatement motivated Bubba Kassal to define the status of Petitioner's employment relationship.
By letter dated August 5 from a human relations employee to Ms. Galloway, the position of Respondent was documented, at least internally. This letter states that Petitioner's FMLA start date is July 11, 2008, and end date is October 4, 2008. This letter restates the undertakings that Bubba Kassal detailed in his August 5 email and notes that Petitioner has exhausted all of her sick and vacation time. The letter notes that the June 18 understanding was superseded by Petitioner's subsequent incapacitation.
On August 14, Ms. Galloway emailed a letter to Petitioner reiterating much of the contents of the August 5 email and noting that, due to Petitioner's emergent health needs, Respondent had hired an acting human resources director on July 28. Ms. Galloway's letter restates the conditions set forth in Bubba Kassal's email of August 5, adding only that there is no expectation that Petitioner can perform any human resource duties and omitting the request for a release. A couple of weeks later, Petitioner emailed a brief message to Ms. Galloway acknowledging receipt of the letter and thanking
her for all that she "does," but not otherwise responding to the letter.
On October 8, Ms. Galloway sent another letter to Petitioner noting that the FMLA period had expired and that Respondent continued to perform the conditions detailed in the
August 14 letter. The letter asks for the return of the laptop computer and cellphone.
On November 5, Petitioner delivered her baby. One month later, she spoke with Ms. Galloway exploring, in
Ms. Galloway's opinion, the possibility of returning, if her replacement were not working out, or obtaining additional severance pay. Ms. Galloway explained the company's view that the termination was voluntary, not involuntary. Eventually, Respondent agreed to pay Petitioner another week's salary, through July 18, and extended her insurance through December 31, so that Petitioner would have another chance to exercise her COBRA rights. Respondent advised that it was treating Petitioner's termination date as October 4, which was when the FMLA period had expired.
There is no evidence of discrimination in Respondent's handling of Petitioner's pregnancy. Respondent assigned no role of substance in the 2008 events to Michael Kassal, whose objections to the June 18 understanding were completely ignored. There is no evidence that the company's actions in 2008 were influenced in any way by Michael Kassal's 2003-05 infatuation.
Petitioner testified to a 4-6 week period during which she had previously worked at home. However, this earlier period of working at home was when Petitioner was engaged in the solitary task of converting payroll systems on the computer, and
she needed a quiet place to work. Working at home under these conditions is entirely appropriate. During this period, Petitioner was working exclusively on this task, leaving her other human resources duties to others or deferring them until the conversion was finished.
Any insistence by Respondent in 2008 that Petitioner work in the office is justified because Petitioner's duties generally required her to be in the office, where she would be available for, among other things, drop-in visits by corporate management needing assistance in the wide range of personnel matters that arise daily in a business of this size.
However, Petitioner's claim of discriminatory treatment regarding working at home misses the larger point that, in the June 18 understanding, Respondent allowed her to work at home for the duration of her pregnancy. This understanding was defeated, not by Respondent's insistence that she work in the office, but by Petitioner's deteriorating medical condition.
Petitioner also testified that Respondent allowed other managers to work at home. Again, this proof overlooks the fact that Respondent also allowed Petitioner to work at home under the June 18 understanding, and her subsequent inability to do so was due to her deteriorating health, not the demands of Respondent. Also, the other situations are distinguishable,
even if Respondent had prohibited Petitioner from working at home. While one district manager's wife recovered from a broken leg and another district manager recovered from a heart attack and stroke, they worked in some fashion, either with reduced hours in the office or reduced hours from home. Petitioner's situation was different in the nature of her duties, which were corporate-wide, not district-wide; the fact that she was completely unavailable for an extended period of time; and probably for the fact that, for a substantial period of time, she failed or was unable timely to communicate her situation to Respondent.
Based on these findings, Petitioner has failed to prove any form of sex discrimination in Respondent's handling of her pregnancy in 2008.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 760.11(6), Fla. Stat. (2009).
Section 760.10(1)(a), Florida Statutes, states that it is an unlawful employment practice for an employer:
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, handicap, or marital status.
Florida recognizes claims of sex discrimination based on tangible employment action, such as demotion or firing, and hostile work environment. Blizzard v. Appliance Direct, Inc.,
16 So. 3d 922, 926 (Fla. 5th DCA 2009). To prove a hostile work environment based on harassment by a supervisor, Petitioner must prove:
that she is a member of a protected group; (2) that she was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on the sex of the employee; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) there is a basis for holding the employer liable.
Id. at 927.
The fourth requirement--that the harassment is sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abuse working environment--includes subjective and objective components. Id. In making the objective determination, the court must consider:
the frequency of the conduct; 2) severity of the conduct; 3) whether the conduct was physically threatening or humiliating; and
4) whether the conduct unreasonably interfered with the employee's job performance.
Maldonado v. Publix Supermarkets, 939 So. 2d 290, 294 (Fla. 4th DCA 2006).
Petitioner has satisfied the fifth element--i.e., a basis for holding the employer liable. If the other elements of a hostile work environment were proved, the basis for holding the employer liable would be that Michael Kassal is essentially the employer due to his high standing within Respondent. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 789-90, 118
S. Ct. 2275, 2284 (1998) (dictum); Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559, 564 (8th Cir. 1992) (person committing the harassment owned the plant); Torres v. Pisano, 116 F.3d 625, 634-35 (2d Cir. 1997) (dictum). Cf. Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367 (1993) (no discussion of vicarious liability in case in which perpetrator of inappropriate behavior was corporate president).
From a factfinding perspective, a contemporaneous complaint can sometimes help establish the credibility of the complainant. See, e.g., Blizzard, supra at 927. In this case, though, Respondent chose not to present the testimony of Michael Kassal, so the testimony of Petitioner, which is plausible and persuasive in its own right, is unrebutted.
However, Petitioner has failed to prove the fourth and possibly the second elements of a hostile work environment. The behavior in this case does not involve any touching or sexual suggestiveness; it is essentially flirtatious. In Gupta
v. Florida Board of Regents, 212 F.3d 571, 584 (11th Cir. 2000), the court stated that flirtatious behavior, even if inappropriate, was not sex harassment. In Gupta, over a period of six or seven months, the supervisor of a university professor complimented the woman on her looks one time and repeatedly called her at home on weekday nights and weekends, sometimes asking about her boyfriend or what kind of personal problems she had, but never asking her for a date. The supervisor repeatedly asked the professor to lunch, touched her ring once, stared at her a couple of times, touched her knee once, and touched the hem of her dress once--the last two incidents unaccompanied by any verbal suggestions or advances. Finding this behavior to be consistent with the "normal tribulations of the workplace," the court held that it was not sufficiently severe or pervasive to constitute sex harassment. 212 F.3d at 586. The court noted in passing that all of the complained-of behavior took place between the professor's arrival at the university in August 1994 and February 1995, but evidently no additional behavior had taken place in the two and one-half years between February 1995 and when the trial took place. 212 F.3d at 579.
In Weiss v. Coca-Cola Bottling Company of Chicago, 990 F.2d 333 (7th Cir. 1993), one of the plaintiff's warehouse supervisors asked her for dates several times, tried to kiss her in a bar, placed his hand on her shoulder several times, placed "I love you" signs in her work area, and referred to her several times as a "dumb blond." The court held that these incidents were insufficient to establish sex harassment.
Michael Kassal's flirtatious behaviors were not sufficiently severe or pervasive to alter the terms or conditions of Petitioner's employment. They were neither severe nor frequent; they were not humiliating or threatening; and they never interfered with the performance of Petitioner's duties. The evidence fails to establish even a subjective basis for the requisite finding, as Petitioner herself appears not to have reacted disproportionately to the nature of the behavior.
Florida case law applies the statutory prohibition against discrimination contained in Section 760.10(1), Florida Statutes, to discrimination based on pregnancy. See Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), rev. denied, 20 So. 3d 848 (Fla. 2009); Carter v. Health Management
Associates, 989 So. 2d 1258, 1265-66 (Fla. 2d DCA 2008).
Claims of pregnancy discrimination based on indirect evidence, as here, proceed under the burden-shifting approach of McDonell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817
(1973). Clay v. Holy Cross Hospital, 253 F.3d 1000, 1005 (11th Cir. 2001). To prove a prima facie case of sex discrimination based on pregnancy, Petitioner must prove: 1) she was pregnant, and the employer knew she was pregnant; 2) she was performing her duties satisfactorily; 3) she received an adverse employment action; and 4) similarly situated employees not pregnant were treated more favorably. Id. If Petitioner were to prove a prima facie case, the burden would shift to Respondent to show a legitimate business reason, and, if Respondent made such a showing, the burden would shift to Petitioner to prove that the legitimate business reason is pretextual. Id.
Petitioner has failed to make a prima facie showing of sex discrimination due to her pregnancy because she has failed to prove that she received an adverse employment action. Upon learning of Petitioner's pregnancy, Respondent generously agreed to pay Petitioner's regular salary through delivery in return for limited services, and both parties agreed that Respondent would not necessarily hold the job open that long. Only when Petitioner's medical problems prevented her from performing even limited duties did Respondent revise its undertaking, but it continued to treat Petitioner in a fair, nondiscriminatory manner.
In its proposed recommended order, Respondent seeks attorneys' fees under Section 760.11(13), Florida Statutes. The relevant part of this statute states:
In any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the cost. It is the intent of the Legislature that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action.
This request is denied because it is based on the wrong statute, and the Division of Administrative Hearings is not a "court" within the meaning of Section 760.11(13), Florida Statutes. Cf. § 760.11(6), Fla. Stat. (Florida Commission on Human Relations may, in its discretion, allow a prevailing party a reasonable attorney's fee).
