vs.
Respondent.
) Case No. 05-3280
Pursuant to notice, a formal hearing was held in this case on December 13, 2005, in Orlando, Florida, before Carolyn S. Holifield, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Wayne L. Helsby, Esquire
Allen, Norton & Blue, P.A.
The issue is whether Respondent engaged in an unlawful employment practice by terminating Petitioner due to her pregnancy.
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission) on February 28, 2005. The Commission entered a Notice of
Determination: No Cause on or about August 3, 2005. Petitioner then filed a Petition for Relief, which was forwarded to the Division of Administrative Hearings on September 12, 2005, for assignment of an Administrative Law Judge to conduct a formal hearing.
The matter was initially set for hearing on November 14, 2005, but was continued at the request of Respondent. The case was, subsequently, rescheduled and conducted as noted above.
At the final hearing, Petitioner testified on her own behalf and presented the testimony of Annabel Agudo and Jennifer Fitzpatrick. Petitioner's Exhibits 1, 2 and 3 were received into evidence. Respondent presented the testimony of Christina Hernandez-Lilly, store manager. Respondent's Exhibits 1 through 19 were received into evidence.
At the conclusion of the hearing, the parties agreed to file proposed recommended orders ten days after the transcript was filed. The hearing Transcript was filed on January 9, 2006. The time for filing proposed recommended orders was extended to January 30, 2006, upon issuance of an Order granting the Joint Motion for Extension of Time. Both parties timely filed
Proposed Recommended Orders, which have been considered in preparation of this Recommended Order.
Petitioner, Teresa Mercado, is a female, who was employed by Respondent from March 31, 2003, until April 20, 2004, when she was terminated.
Respondent is engaged in the retail sales of second- hand merchandise and operates a retail store (No. 1095) located at 8901 West Colonial Drive in Orlando, Florida.
Respondent first employed Petitioner as a "production floater." As a production floater, Petitioner "floated" between the sorting and pricing positions. She later became a "pricer." As a production floater and pricer, Petitioner reported directly to a production supervisor, Celia Roe, who, in turn, reported to the store manager, Hernandez-Lilly. As store manager,
Hernandez-Lilly was responsible for, among other things, personnel matters, such as discipline and conducting performance evaluations.
In her capacity as a women's clothing pricer, Petitioner was required to price women's clothing and place it on the sales floor. Petitioner was required to meet a quota of 800 pieces per day.
Over the course of her employment, Petitioner's job performance frequently did not meet Respondent's expectations.
Respondent's policy is to discuss performance issues with employees and afford them the opportunity to correct the deficiencies. This is ordinarily done through either performance logs, verbal corrective actions, or written corrective actions.
Respondent was given a series of documents over a six-month period prior to her termination of employment. In each instance, the situation was discussed directly with Petitioner, and she was physically handed the documentation.
Moreover, Petitioner signed each performance and corrective action, which detailed her deficiency. The disciplinary actions were as follows:
On October 6, 2003, Petitioner was given a verbal corrective action relating to attendance.
On January 28, 2004, Petitioner was given a performance log relating to her leaving merchandise in the back area.
On February 20, 2004, Petitioner was given a performance log relating to not meeting her quota. The performance log noted that Petitioner's quota had averaged only 525 pieces and that "any further occurrence will result in further documentation."
On March 16, 2004, Petitioner was given another performance log, this time relating to attendance issues.
On March 16, 2005, Petitioner was given a verbal corrective action for not meeting her quotas on a daily basis. The document stated that Petitioner must consistently "meet her quota and that any further occurrences with this issue will result in additional disciplinary action, up to and including termination." Petitioner admitted that she was aware at this point in time that her not meeting quota was a problem, that it was getting more serious, and that if it continued, she might be terminated.
On March 29, 2004, Petitioner received a written corrective action dated March 22, 2004, relating to her failure to meet her quota. The written corrective action stated that Petitioner's "quota is a minimum requirement that is to be met daily" and that "any further occurrences with this issue will result in further disciplinary action up to and including termination."
On April 5, 2004, after Petitioner continually failed to meet her quotas on a daily basis, she was given a final corrective action. The
final corrective action again stated that if Petitioner did not meet her daily quotas, she would be subject to additional disciplinary action, up to and including termination of employment.
Over the next several weeks, Petitioner was again unable to meet her quotas on a consistent basis. Her employment was, therefore, terminated on April 20, 2004.
On or about April 9, 2004, prior to Petitioner's termination, Petitioner approached Hernandez-Lilly. Because Petitioner had just recently received her final written corrective action from Respondent and was concerned about being terminated, she asked Hernandez-Lilly if she was going to be terminated. Hernandez-Lilly did not answer that question yes or no, but stated that "we need to see some form of improvement" in Petitioner's "piece count." Hernandez-Lilly then suggested to Petitioner that she consider moving to a sales clerk position, which did not require meeting quotas. However, when Hernandez- Lilly reminded Petitioner that by moving to that position, she would have to be available to work nights and weekends, Petitioner stated that she was not interested.
When the conversation, described in paragraph 8, took place, there was, in fact, an opening for a sales clerk available to which Respondent was willing to move Petitioner.
However, given that Petitioner expressly indicated that she was not interested in such a position, Hernandez-Lilly did not seek to transfer Petitioner to a sales clerk position. Furthermore, at no time prior to her termination did Petitioner express any interest in such a transfer.
In January or February 2004, prior to her termination, Petitioner had been offered another opportunity to move to an opening in the shoe department, but she did not indicate any interest in that position. Specifically, there was an opening in the shoe department which was announced to all production employees, including Petitioner, at a group meeting. Employees were told that if they were interested in a transfer, they needed to put it in writing and give it to Roe. Fitzpatrick submitted a written document indicating an interest in the position. Petitioner submitted nothing in writing. While this position did have a quota, it was not as stringent as that for the pricer position.
Other employees who have experienced problems with meeting their quotas, in the positions that imposed such quotas, have been offered positions in other areas. Specifically, Fitzpatrick was having trouble meeting her quotas and was offered a position as a sales clerk. Unlike Petitioner, however, Fitzpatrick was willing to be available to work nights
and weekends. Had Petitioner been willing to work these hours, she likewise would have been offered a sales clerk position.
At the time Petitioner was terminated, Hernandez-Lilly was aware that Petitioner was pregnant. Hernandez-Lilly first learned of Petitioner's pregnancy on or about April 16, 2004, when Petitioner made an announcement at work that she was pregnant. Also, on April 20, 2004, the same day she was terminated, Petitioner took a copy of her sonogram picture and showed it to everybody in the workplace.
At the time Petitioner first made the announcement that she was pregnant, she had been already provided a "final written corrective action" for performance-related matters and told that if she did not consistently make her quota, she would be subject to termination of employment. Since the issuance of that corrective action, Petitioner had not consistently met her quota and was, therefore, subject to termination.
Despite knowing that Petitioner was pregnant at the time of her termination, Hernandez-Lilly testified that Petitioner's pregnancy had nothing to do with her discharge.
In the year 2000, while Hernandez-Lilly was working for Respondent as a production supervisor, she became pregnant. Respondent permitted Hernandez-Lilly to take paid time off to deliver and care for her child and then returned to her former position.
Roe became pregnant in 2000 while employed by Respondent. Like Hernandez-Lilly, Roe was permitted to take paid time off to deliver and care for her child and was returned to her former position.
Respondent's employee, Lashana Bolden, became pregnant on two separate occasions while working for Respondent. She was a pricer who reported to Roe and Hernandez-Lilly. On both occasions, she was permitted to take paid time off to deliver and care for her children and was returned to her former position.
Respondent's employee, Jessie Martinez, became pregnant while working for Respondent. She was promoted to a production supervisor by Hernandez-Lilly while she was pregnant. She was then permitted to take paid time off to deliver and care for her child and was returned to her former position.
Respondent's employee, Ashley Ball, became pregnant while working for Respondent and while under the supervision of Hernandez-Lilly. She was permitted to take paid time off to deliver and care for her child and was returned to her former position.
Respondent's employee, Shanika Gatewood, became pregnant while working for Respondent and while under the supervision of Hernandez-Lilly. She was permitted to take a
leave of absence for her pregnancy, and was later returned to her previous position.1/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat. (2005).
Under the provisions of Section 760.10, Florida Statutes (2003)2/:
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 courts interpret Chapter 760, Florida Statutes (2005), in accordance with federal anti-discrimination laws, codified under Title VII of the Civil Rights Act of 1964 (Civil Rights Act), as amended in 42 U.S.C. Section 2000e, et seq.
The Petition for Relief alleges that Respondent violated Subsection 760.10(1)(a), Florida Statutes, by unlawfully terminating Petitioner by reason of her pregnancy. Although Subsection 760.10(1)(a), Florida Statutes, does not specify that discrimination on the basis of pregnancy is sex discrimination,
Congress amended the Civil Rights Act by enacting the Pregnancy Discrimination Act of 1978, 42 U.S.C. Section 2000e(k), which states that discrimination on the basis of pregnancy is sex discrimination.
As a result of the foregoing amendments, Subsection 760.10(1)(a), Florida Statutes, is "pre-empted" by the Civil Rights Act "to the extent that Florida's law offers less protection to its citizens than does the correspondent federal law." Accordingly, discrimination based upon a woman's pregnancy constitutes discrimination based upon sex. See O'Loughlin v.
Pinceback, 579 So. 2d 788, 791 (Fla. 1st DCA 1991).
42 U.S.C. Section 2000e(k), provides, in pertinent part, the following:
(k) The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medication conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, . . . .
Petitioner has the ultimate burden to prove discrimination by direct or indirect evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Direct evidence is admissible evidence, which if believed, would prove the existence of discrimination without any need for inference or presumption. Petitioner offered no such evidence.
Absent direct evidence of discrimination, Petitioner must prove discrimination by indirect or circumstantial evidence. To prove discrimination by indirect or circumstantial evidence, Petitioner must first establish a prima facie case of the following elements: (a) she is a member of a protected group; (b) she is qualified to do her job; (c) she was subjected to an adverse employment action; and (d) similarly-situated employees, who are not members of a protected group, were treated more favorably than Petitioner. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
If Petitioner proves her prima facie case, the employer then must articulate a legitimate, non-discriminatory reason for the challenged employment decision. Burdine, 450
U.S. at 254. The employer is required only to "produce admissible evidence, which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at 257.
If the employer produces evidence of a non- discriminatory reason for the adverse action, the burden shifts back to Petitioner to prove that the employer's reason was a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 503 (1993).
Petitioner has failed to prove a prima facie case of discrimination. Here, Petitioner proved that she was pregnant
and qualified for the portion as pricer and that an adverse employment action was taken against her. However, she did not prove that she was treated any differently than other similarly- qualified male or non-pregnant female employees.
Assuming arguendo that Petitioner established a prima facie case of discrimination, Respondent presented persuasive evidence that Petitioner's job performance, her repeated and continual failure to meet the required quotas, despite receiving numerous written counseling and "corrective actions," was the sole basis for her termination.
The evidence established that Respondent had other employees who became pregnant while being supervised by Hernandez-Lilly, who continued working while they were pregnant and were given leaves of absences to deliver and care for their children.
In support of her claim, Petitioner asserted that
non-pregnant employees who did not meet the required quotas were transferred to or offered other positions, but that no such transfer or offer was made to her because of her pregnancy.
This assertion is not supported by the record evidence. On the other hand, Respondent presented persuasive evidence that Petitioner was not transferred to another such position because she had indicated that she was not interested in such a position.
For the reasons stated in the foregoing paragraphs, Respondent met its burden of showing a legitimate, non- discriminatory reason for terminating Petitioner's employment.
Petitioner did not present any credible evidence that Respondent's reasons for the adverse employment action was a pretext for discrimination.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2006.
1/ Gatewood was later terminated by Respondent for performance- related reasons. Although she was pregnant at the time of her termination, there is no evidence to suggest that she was terminated because of her pregnancy. Hernandez-Lilly credibly testified that Gatewood's pregnancy had nothing to do with the decision to terminate her employment.
2/ Unless otherwise indicated, all citations are to Florida Statutes (2003).
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
John Bolanovich, Esquire Bogin, Munns & Munns Post Office Box 2807 Orlando, Florida 32802
Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
