STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3094

) YOUNG WOMEN'S CHRISTIAN ASSOCIATION ) OF WEST PALM BEACH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designed Hearing Officer, held a public hearing in this case on April 6, 1983, and June 12, 1984, in West Palm Beach Florida.

The following appearances were entered:

For Petitioner: Lynn E. Szymoniak and

Mark Cullen, Esquires Cullen and Szymoniak, P.A. 1030 Lake Avenue

Lake Worth, Florida 33460

For Respondent: Barbara J. Pariente, Esquire

Pariente and Silber, P.A.

400 Australian Avenue South, Suite 855 West Palm Beach, Florida 33401

The issue for determination at the final hearing was whether the Respondent Young Women's Christian Association of West Palm Beach (hereafter Respondent or Respondent YWCA) discriminated against the Petitioner Patricia Davis because she was pregnant and unmarried, and, if so, what damages and attorney's fees the Petitioner Davis is entitled to collect from the Respondent.

At the final hearing, Petitioner's Exhibits 1-11 and Respondent's Exhibits 1, 5, 6, 11, 12, 14, 15, 16 and 17, were offered and admitted into evidence.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at the final hearing, they were adopted and are reflected in this Recommended order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older.

   
   

2. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.)

   
   

3. Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal."

   
   

4. The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility.

   
   

5. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of

   $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout.

   
   

6. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic.

   
   

7. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant.

   
   

8. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried.

9. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence.

   
   

10. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity.

    
    

11. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged.

    
    

12. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because:

    
    

    1. A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees;

    2. The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and

    3. The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question.

       
       

13. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics.

    
    

14. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months.

    
    

15. Petitioner was removed from probationary status as a result of the transfer.

    
    

16. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16,

    1982, approximately six weeks after it was created, allegedly due to financial streamlining.

    
    

17. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity.

    
    

18. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs.

    
    

19. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position.

    
    

20. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons:

    
    

    1. The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and

    2. In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel

       policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance.

       
       

21. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement.

    
    

22. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits.

    
    

23. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

25. The Petitioner Davis has established by a preponderance of the evidence that the Respondent committed an unlawful employment practice by discharging her from her employment because she was single and pregnant. As such, the Petitioner Davis is entitled to damages totaling $13,551, costs of

$232.55, and an attorney's fee of $5,000.

DONE and ENTERED this 14th day of February, 1985, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 14th day of February, 1985.

COPIES FURNISHED:

Lynn E. Szymoniak and Mark Cullen, Esquires Cullen and Szymoniak, P.A. 1030 Lake Avenue

Lake Worth, Florida 33460

Barbara J. Pariente, Esquire Pariente and Silber, P.A. Suite 855

400 Australian Avenue South West Palm Beach, Florida 33401

Donald A. Griffin Executive Director

Human Relations Commission

105 Collins Building Tallahassee, Florida 32301

Docket for Case No: 82-003094

Orders for Case No: 82-003094