STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TABITHA NICHOLS, )

)

Petitioner, )

)

vs. )

) MARCUS POINTE LEARNING CENTER, )

)

Respondent. )

Case No. 10-10317

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 4, 2011, in Tallahassee, Florida, before W. David Watkins, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tabitha Nichols, pro se

8020 Short Drive, No. 1

Pensacola, Florida 32514

For Respondent: Marcus Point Learning Center

c/o Ms. Ellen Welch, Owner 6025 Enterprise Drive

Pensacola, Florida 32505 STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, by refusing to rehire Petitioner following her pregnancy and subsequent childbirth.

PRELIMINARY STATEMENT

Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations (Commission) on May 11, 2010. The Complaint alleged discrimination on the basis of race and sex (pregnancy). The Commission entered a Notice of Determination: No Cause on or about October 18, 2010.

Petitioner then filed a Petition for Relief, which was forwarded to the Division of Administrative Hearings on November 22, 2010, for assignment of an Administrative Law Judge to conduct a formal hearing. A Notice of Hearing by Video Teleconference was issued on December 10, 2010, scheduling the final hearing for February 4, 2011. The hearing was held via video teleconference as scheduled, with participants in Pensacola and Tallahassee, Florida.

At the final hearing, Petitioner testified on her own behalf. Petitioner did not offer any exhibits into evidence. Respondent presented the testimony of Tracy Caraway, Susan French, and Ellen Welch. Respondent's Exhibits 1 and 2 were received into evidence. No court reporter was present at the final hearing, and consequently no transcript of the final hearing was filed.

At the conclusion of the hearing the parties agreed to file proposed recommended orders, if any, within 20 days of the close of the hearing. Petitioner's Proposed Recommended Order was

timely filed on February 18, 2011, and has been considered in preparation of this Recommended Order. No proposed recommended order was filed by Respondent.

All citations are to Florida Statutes (2009) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, Tabitha Nichols, is a black female, who began employment with Respondent in 2008 as a preschool teacher.

2. Respondent, Marcus Pointe Learning Center ("MPLC") is a preschool located in Pensacola, Florida. During the relevant time period MPLC had approximately 13 employees.

3. Sometime in early 2009 Petitioner became pregnant, but continued to work as a teacher at MPLC until shortly before her baby was born.

4. Susan French is the Director of MPLC. Ms. French testified that throughout the course of Petitioner's pregnancy she had several conversations with Petitioner regarding Petitioner's employment plans following the birth of her baby. During those conversations, Petitioner was vague about her intentions, at one point telling Ms. French that "hopefully I will not have to come back to work".

5. Tracy Caraway is a former employee of MPLC. In early November 2009, Ms. Caraway attended a CPR class with Petitioner. At that time Ms. Caraway asked Petitioner whether she planned to

   
   

   return to work at MPLC following the birth of her baby. Petitioner responded that she didn't know if she was going to be returning to work, and that she wanted to stay home with her baby as long as she could.

6. Ellen Welch is the owner of MPLC. The hiring and firing decisions at the preschool are made by Ms. Welch in consultation with Ms. French. As with Ms. French, Petitioner was equivocal about her employment plans when asked by

   Ms. Welch, stating that she was "not sure" if she was going to be returning to MPLC after her baby was born.

7. MPLC does not have a formal maternity leave policy.1/ However, according to Ms. Welch, had she been told definitively that Petitioner intended to return to work following the birth of her child she would have rearranged the schedules of some of the other teachers to accommodate Petitioner's return. On the other hand, if a teacher leaves MPLC without a firm commitment to return, a replacement teacher is hired.

8. Petitioner's last day of work at MPLC was November 13,

   
   

   2009.

   
   

9. Amy Cortez was a former teacher at MPLC who left to

   
   

   have a baby. She is Arabic. Like Petitioner, Ms. Cortez did not commit to return to work at MPLC following the birth of her child. When she left she was told by Ms. Welch that there was no assurance that a job would be available if she chose to

   
   

   return. However, when Ms. Cortez contacted MPLC in November to inquire about returning she was told that a position was available, and she was hired later that month.

10. Petitioner's baby was born on November 28, 2009.

    
    

    Petitioner suffered a "mini-stroke" soon after the baby was born.2/ Shortly prior to her departure from MPLC Petitioner had been assigned to a class of two-year-olds. However, the effects of the stroke would have made it impossible for Petitioner to take responsibility for a class of two-year-olds.

11. Sometime in December 2009, Petitioner contacted Ms. Welch to discuss returning to work. Ms. Welch told Petitioner that there were currently no openings available because enrollment was down, evidently the result of parents losing their jobs due to the economic downturn.

12. While Petitioner was employed at MPLC her job performance was acceptable. Had a position been available at MPLC following the birth of her child, Petitioner would have been re-hired.

13. In the 12 years that Ms. Welch has owned MPLC, no other employment complaints have been filed against Respondent.

14. As noted, there was conflicting testimony as to Petitioner's employment intentions post-childbirth, but the greater weight of the evidence establishes that Petitioner failed to communicate an unequivocal intention to return to work

    
    

    at MPLC. As such, it is found that Petitioner voluntarily resigned her employment at MPLC on November 13, 2009.

15. Of the 13 employees at MPLC during the period in question, five were White, six were African-American, and two were Asian.

16. Although Petitioner alleged racial discrimination in the Complaint of Discrimination filed with the Commission, her Petition for Relief filed with the Commission contains no allegation of racial discrimination. Moreover, no evidence was presented by Petitioner at hearing that she had been discriminated against on the basis of her race.

    CONCLUSIONS OF LAW

    
    

17. 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. (2010).

18. Pursuant to section 760.10:

    
    

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

       
       

       1. 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.

          
          

19. Florida courts interpret chapter 760, Florida Statutes, 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.

20. As noted, the Petition for Relief at issue herein does not allege discrimination on the basis of race, and no evidence was offered at hearing that Petitioner was the victim of racial discrimination. Accordingly, even if Petitioner has not expressly abandoned her claim of discrimination based upon race, no evidence exists in this record that would remotely support a prima facie case of racial discrimination.

21. Rather, the Petition for Relief alleges that Respondent violated subsection 760.10(1)(a), by terminating and/or refusing to rehire 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 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.

22. As a result of the foregoing amendments, subsection 760.10(1)(a) 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).

23. 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 medical

    conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, . . . .

    
    

24. Petitioner has the ultimate burden to prove discrimination by direct or indirect evidence. Texas Dep’t

    of Cmty. Aff. 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.

25. 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).

26. 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.

27. If the employer produces evidence of a nondiscriminatory 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).

    
    

28. Petitioner has failed to prove a prima facie case of discrimination. Here, Petitioner proved that she was pregnant (a protected group), and that an adverse employment action was taken against her.3/ However, she did not establish that she was treated any differently than other similarly qualified male or non-pregnant female employees. Rather, the evidence established that MPLC did not have a formal maternity leave policy, but that if an employee left for reasons of childbirth, having first stated a clear intention to return, reasonable efforts would be made to ensure that a position was available when the employee

    
    

    was ready to return to work. Conversely, if an employee left MPLC without communicating an explicit intent to return following childbirth, a new teacher would be hired to fill the vacated position. In this instance, Petitioner failed to clearly communicate her intention to return to work following the birth of her child, and accordingly, her position was filled following her departure.4/ There is no competent substantial evidence of record that she was treated any differently than any other person would have been based upon her race, gender, or any other basis.

29. Even assuming, arguendo, that Petitioner established a prima facie case of discrimination, Respondent presented persuasive evidence that Petitioner was not re-hired because there were no positions available at the time Petitioner was ready to resume employment. As articulated by the owner of MPLC, enrollment at the preschool had fallen (as an indirect result of the economic downturn) and there was simply no need to add another teacher at the time Petitioner applied.

30. During Petitioner's employment at MPLC she performed satisfactorily and she would have been rehired had there been an opening, according to Ms. Welch. While it is unfortunate that Petitioner may have been under the misapprehension that she was taking "maternity leave" to give birth to her child, and that her job would be awaiting her upon her return, she failed to

    
    

    clearly communicate her intention to return to her job. As such, it was reasonable from a business perspective for MPLC to fill the position being vacated with a new hire. More importantly, there was no evidence presented that others in similar circumstances were treated differently than Petitioner.

31. For the reasons stated in the foregoing paragraphs, Respondent met its burden of showing a legitimate, nondiscriminatory reason for declining to offer Petitioner employment.

32. Petitioner did not present any credible evidence that Respondent's reason for the adverse employment action was a pretext for discrimination.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 10th day of March, 2011, in Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2011.

ENDNOTES

1/ There is no evidence in this record that Respondent was required, pursuant to the federal Family Medical Leave Act or other authority, to adopt a formal maternity leave policy.

2/ Petitioner has not asserted a claim of discrimination based upon handicap or disability.

3/ As noted in the findings of fact, there was disagreement as to Petitioner's status with MPLC as of November 13, 2009. Did Petitioner remain an employee on "maternity leave" after that date, as asserted by Petitioner, or was Petitioner's employment terminated as of that date? Based upon the evidence of record it is concluded that Petitioner voluntarily resigned her employment with MPLC (rather than being placed on an unpaid leave of absence) on November 13, 2009. Therefore the "employment practice" at issue is the refusal to re-hire Petitioner on the basis of her "pregnancy, childbirth, or related medical conditions".

4/ Amy Cortez was the only other instance of an employee leaving MPLC for reasons of childbirth reflected in this record. As

with Petitioner, Ms. Cortez did not clearly indicate her intention to return to MPLC following the birth of her child, and as explained by Ms. Welch, it was mere happenstance that a position was available when she chose to return.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Tabitha Nichols

8020 Short Drive, No. 1

Pensacola, Florida 32514

Ellen Welch

Marcus Pointe Learning Center 6025 Enterprise Drive

Pensacola, Florida 32505

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 10-010317

Orders for Case No: 10-010317