STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERDA J. FAITH, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4433

) ACOPIAN MANUFACTURING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Formal hearing in this proceeding was held on January 19, 1989, in Melbourne, Florida, before Mary Clark, Hearing Officer from the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Patrick J. Deese, Esquire

Post Office Box 361937 Melbourne, Florida 32936-1037

For Respondent: Edward H. Feege, Esquire

Post Office Box 2165

Lehigh Valley, Pennsylvania 18001-2165 BACKGROUND AND PROCEDURAL MATTERS

Petitioner filed a complaint of discrimination alleging that Respondent discriminated against her on the basis of sex by failing to pay disability benefits for a period of her pregnancy. After an investigation, the Executive Director of the Florida Commission on Human Relations (FCHR) issued his notice of determination: "No Cause", on August 10, 1988. Thereafter, Petitioner filed a timely Petition for Relief, and the matter was referred to the Division of Administrative Hearings for conduct of a formal proceeding, pursuant to Section 120.57(1), Florida Statutes.

At the hearing Petitioner testified and presented the testimony of Respondent's employees, Evan Martin and Doris Hayden. The testimony of Eugene Wawrzniak, M.D., was presented through deposition taken on December 1, 1988.

Petitioner offered the testimony of Carol Sue Edwards, an avowed expert in writing company policy and procedure manuals, for the purpose of establishing that Respondent did not have a clear medical leave policy. (See proffer by counsel for Petitioner, transcript, p. 135.)

Ms. Edwards' testimony was excluded as irrelevant.

At the close of Petitioner's case, Respondent moved for dismissal based on Petitioner's failure to present a prima facie case of discrimination. The Hearing Officer agreed that a prima facie case was not made and that the Respondent should not have to go forward with its case. However, leave was granted for the parties to submit memoranda of law or briefs in writing.

Both parties submitted post-hearing memoranda and Respondent submitted proposed findings of fact and conclusions of law. The proposed findings of fact are substantially adopted herein.

ISSUE

The issue for determination is whether, as alleged, Respondent discriminated against Petitioner based on her sex, thereby violating Section 760.10, Florida Statutes. If that violation occurred, the remaining issue is what relief is appropriate.

Petitioner contends that she should have received disability benefits during her pregnancy from July 21, 1987 through September 10, 1987 and that Respondent's refusal to pay constituted discrimination.

FINDINGS OF FACT

1. In their joint prehearing statement, filed at hearing, the parties stipulated to the following:

   
   

   1. During the calendar year 1987 the Petitioner was employed by the Respondent at its Melbourne, Florida, plant.

   2. During 1987 the Respondent provided weekly income benefits for non-occupational disability pursuant to the provisions of a document entitled "Addendum to Weekly Income Benefits for Non-Work Related to Disability." (Exhibit R-4)

   3. The Petitioner was off from work for the Respondent from April 21, 1987 through October 26, 1987.

   4. The Petitioner delivered a child on September 10, 1987.

   5. The Petitioner received weekly income benefits of $189.33 for the period from April 21, 1987 through July 21, 1987 and from September 10, 1987 through October 23, 1987.

   6. On Monday October 26, 1987, Petitioner returned to work with Respondent at her regular position and rate of pay.

      
      

2. Respondent (Acopian) is a manufacturer of electronic components with a plant in Melbourne, Florida.

   
   

3. Commencing in October 1979, and at all times relevant, Petitioner was employed by Acopian as an assembly worker. Her assigned duties required her to assemble and solder personal computer boards, a task performed primarily in a seated position and requiring little physical exertion.

   
   

4. When she was hired, Ms. Faith was instructed regarding the company's benefit plan by Evan Martin, Vice President for the company. Mr. Martin is responsible for overall operations of the plant and for personnel matters.

5. Ms. Faith filed the requisite forms and received disability benefits under the company's plan between November 9, 1981 and January 18, 1982, when she was unable to perform her duties due to pregnancy and childbirth.

   
   

6. Sometime prior to April 20, 1987, Ms. Faith learned that she was pregnant again. Her treating physician was Dr. Eugene F. Wawrzyniak, an obstetrician with offices in Palm Bay, Florida.

   
   

7. On April 20, 1987, Ms. Faith was given a note by her physician stating that she should be excused from work until the estimated date of her delivery, October 8, 1987.

   
   

   Ms. Faith's mother took the note to Acopian, delivering it to Doris Hayden, Evan Martin's Administrative Assistant, and the person responsible for maintaining the personnel files and disability claims.

   
   

8. Ms. Faith was given the claim forms and completed portions of the form on May 10, 1987, indicating that her period of disability was to commence April 22, 1987. She also indicated on the form that her sickness or injury arose out of the course of her employment.

   
   

9. Because of that, Ms. Hayden submitted the form to the state worker's compensation agency. She understood that the agency required forms be sent anytime an employee claims a work- related illness or injury. On May 18, 1987, Ms. Faith received notice of denial of the worker's compensation claim based on no injury arising out of employment.

   
   

10. On June 15, 1987, Acopian received another note from Dr. Wawrzniak indicating that Ms. Faith must remain home due to threat of a miscarriage.

    
    

11. Dr. Wawrzniak also completed the physician's portion of the disability claim form on June 15, 1987, indicating that Ms. Faith would be disabled from April 21 through six weeks post-partum. The condition he listed was "pregnancy with threatened spontaneous abortion." (Respondent's Exhibit 7.)

    
    

12. Ms. Faith completed her portion of the form on June 19, 1987, and this time did not indicate the condition arose out of her employment.

    
    

13. Evan Martin routinely reviews all claims for non-work related benefits. The company is self-insured as to that benefit plan. Mr. Martin had never seen a case at Acopian where a physician stated so early in pregnancy that the patient would be disabled for virtually the entire term of pregnancy. Because he was confused as to Dr. Wawrzniak's statement, he sent the doctor a letter, dated July 17, 1987, requesting medical facts in support of his diagnosis.

    
    

14. Although Dr. Wawrzniak later testified, at his deposition on December 1, 1988, that his clinical impression in 1987 was that Petitioner could not have returned to her duties at Respondent after July 18, 1987, his response to Mr. Martin dated July 18, 1987 was not consistent with that conclusion.

15. Specifically, he indicated in his July 18, 1987 correspondence that: Gerda Faith is a 27 year old white female, G-

    3, P-1, who had a natural delivery in 1981

    with a miscarriage of June 1986. She was seen in this pregnancy on 2/13/87 initial

    visit with a positive pregnancy test. She subsequently followed in the next two months with post coital bleeding and lower abdominal cramping. This would suspect [sic] a threatened abortion or miscarriage at this time and [sic] was told to rest and work would have to be curtailed. Otherwise, presently in the pregnancy on 7/28/87 she was examined fetal size [sic] approximately 30 weeks gestation which is consistent with her due date of 10/8/87. She is doing well and there is no sign of threatened [sic] miscarriage at this point in time, otherwise, there is no vaginal bleeding as in the first trimester of pregnancy and the patient is doing well. (Emphasis added) (Respondent's Exhibit 10.)

    
    

16. Insofar as there appeared to be inconsistencies between this latest report and Dr. Wawrzyniak's statements as to the period of anticipated disability, and no supporting medical documentation was provided, Mr. Martin again requested medical evidence from the physician on August 31, 1987.

    
    

17. Mr. Martin's August 31, 1987 correspondence stated in pertinent part that:

    
    

    It appears to us while Gerda had difficulties during the first trimester of her [sic] pregnancy, thereafter she could have returned to work until some time in late September, 1987. This is based upon your statement that she is now doing well, and there is no sign of threatened miscarriage at this point in time. However, this appears to be inconsistent with your statement on Gerda's health insurance claim form that she would be continuously and totally disabled and unable to work from April 21, 1987 through six weeks after the birth. (Emphasis supplied)

    We would appreciate it if you could provide the medical evidence upon which you relied in stating that she was continuously disabled and unable to work for the entire period of time rather than after the first trimester had passed and the threat of miscarriage had subsided. This information is necessary so that we may evaluate further whether to provide disability payments for the entire period claimed. (Respondent's Exhibit 11.)

    
    

18. By letter dated September 1, 1987, Dr. Wawrzyniak responded as follows:

    
    

    In regards to your most recent letter on August 31, 1987 in relation to Gerda Faith,

    my last letter stated that she was doing better after 30 week gestation in which was written on 7/18/87. I felt that at this point and [sic] time there was no sign of threatened miscarriage and that she did not have any complaints regarding these symptoms of second or third trimester bleeding.

    Presently, she is doing well and I feel that under the circumstances she has approximately

    5 weeks to go in her pregnancy and her due date is October that she can go back to work. She is physically fit and is out of danger in regards to her pregnancy at this stage. Mind you that this may change dramatically from week to week and if I so chose [sic] to have her out of work I shall write you a personal letter. (Emphasis supplied) (Respondent's Exhibit 12.)

    
    

19. On September 9, 1987, Ms. Faith went into labor prematurely and delivered her child on September 10, 1987.

    
    

20. It is undisputed that she was out of work from April 21, 1987, through October 23, 1987. She was initially paid benefits for the post-partum period and was later paid for the period April 21, 1987 through July 21, 1987, when Acopian was told by her doctor that there was no sign of threatened miscarriage. She claims she is owed benefits between July 21, 1987 and her delivery.

    
    

21. Ms. Faith acknowledges that under Acopian's plan an employee is not automatically entitled to disability benefits simply because she is pregnant.

    
    

22. The non-work related disability benefits under Acopian's plan are available to male and female employees alike for a wide range of medical conditions. Since 1983, payments have been made to at least seventeen women, including Ms. Faith, for pregnancy or pregnancy-related conditions.

    
    

23. It is not unusual for Acopian, either through Evan Martin or his assistant, Doris Hayden, to seek clarification in medical documentation for both males and females. In such instances the physician usually cooperates fully.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

25. Although Petitioner's claims consistently cite violations of Title VII of the Civil Rights Act of 1964 (42 USC Section 2000e, et seq.), rather than the corresponding Florida Statute (Section 760.10) she filed her claim with the Florida Commission on Human Relations, and it is clear that the agency properly assumed jurisdiction under Florida law, as if it had been specifically cited.

26. Section 760.10, Florida Statutes, provides in pertinent part 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, handicap, or marital status.

    * * *

    
    

27. Since Florida's discrimination statute is patterned after Title VII, the courts in Florida have looked to cases decided under the federal statute for guidance. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).

    
    

28. McCosh v. City of Grand Forks, 628 F.2d 1058, (8th Cir. 1980) distinguishes the burden in a "disparate impact" claim from that in a "disparate treatment" claim in Title VII cases: When a Title VII claim is brought on the theory that a facially neutral employment practice has a disparate impact on a protected group, the initial burden is on the plaintiff to establish a prima facie case, by showing the employer's practice has a discriminatory effect. However, when the individual alleges she has been subjected to "disparate treatment" on account of sex, the standards of proof require that the plaintiff show the existence of "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act.'" (Citations omitted.)

    
    

29. Although a petitioner may proceed under alternative theories, Ms. Faith claimed disparate impact throughout the proceeding. See Petitioner's memorandum of law filed on March 3, 1989. She failed to establish her prima facie case as there was no evidence that Acopian's practice has a discriminatory effect.

    
    

30. The proffered testimony by Carol Sue Edwards could not have supplied that evidence. She admitted she had no knowledge of Acopian's practices and the written policy on its face does not discriminate.

    
    

31. Assuming for the sake of argument that Petitioner did make a prima facie case under either the disparate impact or the disparate treatment theory, the testimony she elicited from the Respondent's officer and employee established a valid, good faith basis for denial of her benefits during that portion of her pregnancy when her own doctor was reporting that she was not disabled.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that Petitioner's Petition for Relief be dismissed.

DONE and ENTERED this 19th day of April, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1989.

COPIES FURNISHED:

Patrick J. Deese, Esquire Post Office Box 361937 Melbourne, Florida 32936-1037

Edward H. Feege, Esquire Post Office Box 2165

Lehigh Valley, PA 18001-2165

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 88-004433

Orders for Case No: 88-004433