00-003845 Beth Mulligan Mcknight vs. Sears Termite And Pest Control Status: Closed Recommended Order on Wednesday, June 6, 2001.

Summary: Petitioner failed to show termination was due to her pregnancy; Petitioner failed and refused to report to work as ordered by supervisor and for that failure was terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETH MULLIGAN McKNIGHT, )

)

Petitioner, )

)

vs. ) Case No. 00-3845

)

SEARS TERMITE & PEST CONTROL, )

)

Respondent. )

)

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Admini strative

Hearings, by its duly-appointed Administrative Law Judge,

Fred L. Buckine, held a formal hearing in this case on March 28,

2001, in Orlando, Florida.

APPEARANCES

For Petitioner : Beth Mulligan McKnight, pro se

3083 Erskine Drive

Oviedo, Florida 32765

For Respondent : Donald C. Works, III, Esquire

Anthony J. Hall, Esquire

Jackson Lewis Schnitzler & Krupman

390 North Orange Avenue

Suite 1285

Orlando, Florida 32802-1641

STATEMENT OF THE ISSUE

Whether Petitioner, Beth Mulligan McKnight, was terminated

from her position with Respondent as a Call Center telephone

operator on or about August 28, 1997, based on her sex,

(pregnancy), in violation of Section 760.10(1)(a), Florida

Statutes (1997).

PRELIMINARY STATEMENT

On December 12, 1997, Petitioner (Mrs. McKnight) filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR) charging Respondent, Sears Termite & Pest

Control (Sears), with employment discrimination based on sex.

FCHR, by letter dated May 22, 2000, advised it had not completed

its investigation of Petitioner's complaint and listed several

options for Petitioner's consideration. Petitioner elected to

withdraw her discrimination charge and file a Petition for

Relief to proceed with an administrative hearing as provided

under Section 760.11(4)(b) and (8), Florida Statutes. On

September 15, 2000, FCHR referred this matter to the Division of

Administrative Hearings for formal hearing de novo .

On December 4, 2000, a Not ice of Hearing was issued setting

the final hearing for January 30, 2001. On January 12, 2001,

Respondent filed a Motion for Continuance, and on January 19,

2001, an Amended Notice of Hearing was issued with the final

hearing rescheduled for February 27, 2001. On February 12,

2001, Petitioner filed a Motion for Continuance, and on

February 19, 2001, a second Amended Notice of Hearing was issued

with the final hearing rescheduled for March 28, 2001.

At the final hearing, Petitioner, Beth McKnight, appea red

pro se . Mrs. McKnight testified in her own behalf and offered

12 exhibits, 11 (P1-11) of which were received in evidence.

Respondent presented the testimony of two witnesses and one

exhibit that was received in evidence. The parties were given

ten days after the filing of the transcript of these proceedings

to file their Proposed Findings of Fact and Conclusions of Law.

On April 5, 2001, Respondent filed the deposition

transcript of Beth McKnight taken March 13, 2001. On April 9,

2001, Respondent filed the Employee Separation Statement for

Erskin Nunn, who was Assistant Manager of the Sears Call Center

during the period of Petitioner's employment and termination.

On April 24, 2001, Respondent filed a Motion for Extension of

Time to file Proposed Findings of Fact and Conclusions of Law,

and the Order granting the motion was issued April 30, 2001. A

Transcript was filed on May 3, 2001. Respondent's Proposed

Findings of Fact and Conclusions of Law was filed on May 15,

2001, as was Petitioner's Motion For Extension of Time to file

Proposed Findings of Fact and Conclusions of Law. The Order

granting Petitioner's Request for an Extension of Time to file

Proposed Findings of Fact and Conclusions of Law was issued on

May, 16, 2001. Based upon all of the evidence, the following

findings of fact are determined:

FINDINGS OF FACT

1. The Respondent, Sears Termite & Pest Control, is an

employer as that term is defined under the Florida Civil Rights

Act of 1992.

2. Petitioner was employed by Respondent as a Termite

Technician. Her duties included servicing existing customers,

solicitation of contract renewals, and the sale of contracts to

new customers during the relevant period April 1, 1997 through

termination on August 28, 1997.

3. Petitioner was earning between $800.00 to $1,300.00 per

month, a combination of hourly wages from servicing existing

customers and from commissions from her sale of renewals and of

new contracts. Each week Respondent paid Petitioner an advance

draw of $225.00 and at the end of the month, previously paid

draws were deducted from Petitioner's commissions earned during

the preceding month. Commissions paid Petitioner were eleven

percent on contract renewals and twelve percent on new contract

sales. Petitioner worked an average of 30 to 60 hours each week

during her employment with Respondent.

4. Ed Blumenthal was Petitioner's immediate supervisor and

zone manager. Petitioner was assigned to the Ovedia/Geneva/

Chuluota route for the service of existing customers and for the

solicitation of new customers. Though he could assign

Petitioner routes within his zone, Blumenthal had no authority

to transfer Petitioner from his technician service center to

another service center.

5. Ed Blumenthal assigned Peti tioner a company vehicle and

permitted her to take the vehicle home overnight to provide

technicians more route time to service customers and additional

time for sales of contracts to new customers.

6. On August 4, 1997, at about 7:30 a.m., Petitioner

arrived at the Sears Longwood district office for her daily

assignments. Petitioner informed Ed Blumenthal of her recently

confirmed pregnancy (about three and one-half months at that

time). Petitioner initiated a discussion with Ed Blumenthal

regarding her desire to continue working as a technician until

the end of August, thereby enabling her to earn additional

commissions. Petitioner specifically requested that, if

possible, her requested transfer to the call center become

effective the first Monday of the following month, September 1,

1997.

7. Ed Blumenthal, without promising specific results,

assured Petitioner that he would make some calls and see what he

could do with her transfer request. Within the next few hours,

Ed Blumenthal called Petitioner into his office and informed her

he had a telephone conversation with his manager, Kemp Anderson,

regarding her request for transfer to the call center. Ed

Blumenthal instructed Petitioner to contact Robert Gleeson, call

center director, for further details regarding the requested

transfer. Ed Blumenthal, at that time, reassigned Petitioner to

a new service-solicitation route.

8. Petitioner worked as a service technician on her newly

assigned route until August 19, 1997. On that date, Robert

Gleeson, instructed Petitioner to report to the Edgewater Drive

corporate office and contact Erskin Nunn, call center manager,

for an interview and discussion of her technical and secretarial

skills background.

9. During the course of her interview with Erskin Nunn,

Petitioner alleged Mr. Nunn said, "A woman in your condition

should not be doing that kind of work . . . crawling around

attics with guys." Petitioner understood Nunn's comment to have

been made in reference to her recently announced pregnancy.

10. Petitioner did not report Erskin Nunn's comment about

her pregnancy to Ed Blumenthal, Robert Gleeson, Kemp Anderson or

the Human Resource Director at or near the time the statement

was made. Though upsetting to her, Petitioner did not consider

Nunn's comment to have an impact on her continued employment

with Respondent.

11. Erskin Nunn hired Petitioner and informed her that

August 20, 1997, training class would be her first work day.

Robert Gleeson testified that training class was mandatory for

every call center worker.

12. The actual transfer of Petitioner from the service

center to the call center was accomplished by verbal

communications from Ed Blumenthal to Kempt Anderson to Robert

Gleeson to Erskin Nunn.

13. Petitioner made repeated requests to Ed Blumenthal,

Erskin Nunn, Robert Gleeson, and Kempt Anderson to start her new

assignment on September 1st. The requests were denied.

14. Petitioner's request for a September 1, 1997, starting

day for her transfer to the call center was made to Kempt

Anderson. During the meeting with Petitioner, Anderson said, "A

women in your condition should not be doing this."

15. From August 20 through August 24, there were daily

telephone calls between Petitioner and Robert Gleeson. Gleeson

inquired if Petitioner was coming to work and Petitioner

responded that due to her lack of personal transportation and

her requested starting day of September 1st she would not be in

to work. By September 24th, Petitioner had not appeared for

training as requested, and Robert Gleeson fired Petitioner on

September 25, 1997.

16. On November 26, 1997, three months after Petitioner's

termination on August 28, 1997, Robert Glesson fired Erskin

Nunn. Nunn's termination letter listed the reason for his

dismissal as "inappropriate behavior in the workplace." The

"inappropriate behavior" was two or more sexual harassment

offenses made toward female employees by Erskin Nunn.

17. Petitioner first raised Nunn's sexual harassment

conduct during her cross-examination of Robert Gleeson at the

final hearing.

18. Robert Gleeson acknowledged that his firing of Nunn

was, in fact, because of Nunn's repeated sexual harassment

conduct toward female employees at Sears.

19. Respondent's handbook, "Employee Personnel Policies

Manual," February 1997, was given to Petitioner at the time of

her initial employment. The manual contains the company's

blanket reservation of the "right to transfer employees to

whatever job or location may be necessary to accomplish the

objectives of the company."

20. The a ctual transfer of Petitioner from the service

center to the call center was accomplished by verbal

communications from Ed Blumenthal to Kempt Anderson to Robert

Gleeson and finally to Erskin Nunn.

21. Robert Gleeson, at all times pertinent hereto, as

director of the Customer Service Center (call center) was

responsible for the overall operational functions of the call

center. Gleeson gave Esrkin Nunn, call center manager, sole

authority to hire and to train personnel to work in the call

center.

22. Erskin Nunn, at all times pertinent hereto, was Robert

Gleeson's assistant. Mr. Nunn reported directly to Robert

Gleeson who reported directly to Kemp Anderson.

23. At all times pertinent hereto, Kemp Anderson was

District Manager, with duties and responsibilities for an area

just north of Vero Beach to Gainesville, consisting of seven or

eight zones offices, several hundred trucks and employees and

administrative staff. He was responsible for sales and renewals

on a monthly basis, employee retention, customer services, and

basic operational functions. Mr. Anderson was Ed Bulmenthal and

Robert Gleeson's immediate supervisor.

24. As district manager, Kemp Anderson was the first

person called by Ed Bulmenthal to convey Petitioner's pregnancy

condition and her transfer request. Robert Gleeson, call center

manager, reported directly to Kempt Anderson. Accordingly, Kemp

Anderson's testimony, that he did not have authority to grant

Petitioner's request for transfer, nor could he alter her

starting date for training in the call center, nor was he

involved in her termination, is suspect.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Section 120.57(1), Florida Statutes.

The parties were duly noticed for the administrative hearing.

26. Petitioner, Beth Mulligan McKnight, is a "person"

within the meaning of Section 760.02(6), Florida Statutes.

Petitioner is an "Aggrieved person" within the meaning of

Section 760.02(10), Florida Statutes.

27. Respondent, Sears, is an "employer" within the meaning

of Section 760.02(7), Florida Statutes.

28. Petitioner claims that Respondent has unlawfully

discriminated against her based upon her sex.

29. The statutory b asis for Petitioner's claim is set

forth in Section 760.10(1)(a), Florida Statutes, which states:

(1 ) It is an unlawful employment practice

for an employer:

(a ) To discharge or to fail or refuse to

hire an 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.

30. The Florida Civil Rights Act of 1992 is patterned

after Title VII of the Civil Rights Acts of 1964 and 1991, 42

U.S.C. Section 2000, et seq. , as well as the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. Section 621, et seq .

Federal case law interpreting Title VII and the ADEA is

applicable to cases arising under the Florida Act. See Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

31. It is unlawful to discriminate against an employee due

to pregnancy. See Francis M. O'Loughlin v. Evelyn Pinchback ,

Sheriff of Saint Johns County , 579 So. 2d 788, 791 (1st DCA

1991) and cases cited therein. The Pinchback Court, addressing

pre-emption, held that:

In Florida there is a long-standing rule of

statutory construction which recognizes that

if a state law is patterned after a federal

law on the same subject, the Florida law

will be accorded the same construction as in

the federal courts to the extent the

construction is harmonious with the spirit

of the Florida legislation. Kidd v. City of

Jacksonville , 97 Fla. 297, 120 So. 556

(1929) ; Massie v. University of Florida ,

570 So. 2d 963 (Fla. 1st DCA 1990); Holland

v. Courtsey Corporation , 563 So. 2d 787

(Fla. 1st DCA 1990). Continuing, the

Pinchback Court, held that "It is undisputed

that Florida's Human Rights Act is patterned

after Title VII of the Civil Rights Act of

1964, 42 U.S.C. Sec. 2000e-2. School Board

of Leon County v. Weaver , 556 So. 2d 443

(Fla. 1st DCA 1990).

32. In General Electric Company v. Gilbert , 429 U.S. 125,

97 S. Ct. 401, 50 L.Ed 343 (1976), the Supreme Court held that:

discrimination on the basis of pregnancy was

not sex discrimination under Title VII.

However, in 1978, in response to the Gilbert

decision, Congress amended Title VII by

enacting the Pregnancy Discrimination Act of

1978 ( PDA). 42 U.S.C. Section 200-e (k).

The PDA specifies that discrimination on the

basis of pregnancy is sex discrimination,

and therefore violative of Title VII. [FN1]

Florida has not similarly amended its Human

Rights Act to include a prohibition against

pregnancy-based discrimination.

FN1. Section 701(k), the definitional

Section of Title VII, provides, in part:

The terms "because of sex" or "on the basis

of sex" include, but 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, including receipt of benefits

under fringe benefit programs, as other

persons not so affected but similar in their

ability or inability to work, and nothing in

Section 703(h) of this title shall be

interpreted to permit otherwise.

33. The law affords no protection from discrimination

unless the employee engages in an adverse employment action.

Bristow v. Daily Press , 770 F.2d 1251 (4th Cir. 1985).

Respondent took adverse employment action against Petitioner by

terminating Petitioner's employment. The remaining issues are

whether the adverse employment action was taken against

Petitioner because of her sex or any other prohibited status or

if Respondent sexually harassed Petitioner.

34. In a case of alleged discrimination, the employee

carries the burden of establishing that an unlawful employment

practice has occurred. In this regard the instructive language

found in Texas Department of Community Affairs v. Burden , 450

U.S. 248, 101 S. Ct. 1089 (1981) bears repeating. There the

Court held that the terminated employee carries the burden of

proving by a preponderance of the evidence a prima facie case of

discrimination. Demonstrating a prima facie case is not

onerous; it requires only that the plaintiff establish facts

adequate to permit an inference of discrimination. Holifield v.

Reno , 115 F.3d 1555 (11th Cir. 1997). If the employee succeeds,

the burden then shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the employee's

termination. Should the employer meet this burden, the employee

must then prove by a preponderance of evidence that the

legitimate reasons offered by the employer were not its true

reasons, but were instead a pretext for discrimination.

Burdine, supra . See also Jones v. Bessemer Carraway Medical

Center , 137 F.3d 1306 (11th Cir. 1998).

35. Petitioner has the initial burden of establishing a

prima facie case of discrimination. Rosenbaum v. Southern

Manatee Fire and Rescue District , 980 F. Supp 1469 (M.D. Fla.

1997); Andrade v. Morse Operations, Inc. , 946 F. Supp 979, 984

(M.D. Fla. 1996). Petitioner must show by a preponderance of

evidence that : she is member of a protected class; she suffered

an adverse employment action; she or others similarly situated

non-protected individuals received dissimilar treatment; and

sufficient evidence of bias to infer a causal connection between

her sex (pregnancy) and the disparate treatment. 980 F. Supp at

1472. Failure to establish the last prong of the foregoing

conjunctive test is fatal to a claim of discrimination.

Mayfield v. Peterson Pump Company , 101 F.3d 1371 (11th Cir.

1996).

36. It is clear that Mrs. Beth Mulligan McKnight is a

member of a protected class based upon her gender and pregnancy

and that she is qualified to accomplish her job as a call center

telephone operator. It is equally clear that she has suffered

an adverse employment action in that she was terminated. Mrs.

McKnight, prompted by her pregnancy, voluntarily made a request

to be transferred from one work-center to another work-center.

Management, aware of her pregnancy, granted her request and

transferred Mrs. McKnight. Management, in keeping with its

training policy and as a pre-requisite for all call center

employees, scheduled a training class session. Management

called and gave Mrs. McKnight several opportunities to report to

work and she refused.

37. It has not been proven that the employer intended to

discriminate in reaching the decision to terminate McKnight's

employment. While there is some evidence that both Erskin Nunn

and Kempt Anderson made comments about her pregnancy, there is

no evidence of any connection between their comments and Mrs.

McKnight's termination. Mrs. McKnight was terminated for her

failure to report to work, as instructed by her supervisor,

Robert Gleeson, on August 25th, 26th and 27th of 1997, and he

terminated her for that reason. Speculation as to another cause

of her termination, such as sexual comments by Erskin Nunn and

his subsequent termination for sexual harassment of other female

employees is insufficient to make out a prima facie case of

sexual discrimination due to her pregnancy with regard to Mrs.

McKnight.

38. Because Petitioner failed to overcome her initial

burden, the remaining elements of proof need not be addressed.

Accordingly, the evidence failed to demonstrate the Respondent

engaged in unlawful employment practices directed to Petitioner,

as defined in Section 760.10(1), Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law,

it is,

RECOMMENDED:

That a final order be entered which dismisses Petitioner's

claim of discrimination based upon her (sex) pregnancy.

DONE AND ENTERED this 6th day of June, 2001, in

Tallahassee, Leon County Florida.

___________________________________

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of June, 2001.

COPIES FURNISHED:

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Donald C. Works, III, Esquire

Anthony J. Hall, Esquire

Jackson, Lewis, Schnitzler & Krupman

390 North Orange Avenue

Suite 1285

Orlando, Florida 32801-1641

Beth Mulligan McKnight

3083 Erskine Drive

Oviedo, Florida 32765

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

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.