05-003280 Teresa Mercado vs. Tvi, Inc., D/B/A Savers Status: Closed Recommended Order on Friday, March 31, 2006.

Summary: Petitioner`s pregnancy was not the basis for her termination. Rather, she was terminated because she continually failed to meet her required daily quota. Thus, Respondent did not engage in an unlawful employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA MERCADO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3280

)

TVI, INC., d/b/a SAVERS, )

)

Respondent. )

)

RECOMMENDED ORDER

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.

APPEARANCES

For Petitioner: John Bolanovich, Esquire

Bogin, Munns & Munns

Post Office Box 2807

Orlando, Florida 32802

For Respondent: Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice by terminating Petitioner due to her

pregnancy.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations (Commissi on) 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

assign ment 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 , st ore manager . Respondent's Exhibit s 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 t ranscript

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 Order s, which have been considered in

prepa ration of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Teresa Mercado, is a female , who was

employed by Respondent from March 31, 2003, until April 20,

2004, when she was terminated.

2. Respondent is engaged in the retail sales of second -

ha nd merchandise and operates a retail store (No. 1095) located

at 8901 West Colonial Drive in Orlando, Florida.

3. Respondent first employed Petitioner as a "production

floater . " As a production floater, Petitioner "floated" between

the sorting and prici ng 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 respon sible for, among other things,

personnel matters , such as discipline and conducting performance

evaluations.

4. 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 w as required to meet a quota of

800 pieces per day.

5. Over the course of her employment, Petitioner's job

performance frequently did not meet Respondent's expectations.

6. 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.

7. Respondent was given a series of documents over a

six - month period prior to her termi nation 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 discipl inary actions

were as follows:

a. On October 6, 2003, Petitioner was given a

verbal corrective action relating to attendance.

b. On January 28 , 2004, Petitioner was given a

performance log relating to her leaving merchandise in

the back area.

c. On F ebruary 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."

d. On Marc h 16, 2004, Petitioner was given

another performance log, this time relat ing to

attendance issues.

e. 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

mus t 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.

f. 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 a ction 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."

g. On April 5, 2004, after Petitioner

c ontinually 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

in cluding termination of employment.

h. 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.

8 . On or about April 9, 2004, prior to Petitioner's

t ermination, 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. He rnandez - 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 sale s clerk position ,

which did not r equire 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.

9 . When the conversation , described in p aragraph 8, took

place, t here was , in fact , an opening for a sales clerk

available t o 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 n ot 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 .

10. I n January or February 2004, prior to her termination,

Petitioner had been offered anot her 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 gro up meeting. Employees

were told that if they were interested in a transfer, they

needed to put it in writing and give it to R oe. Fitzpatrick

submitted a written document indicating an interest in the

position. Petitioner submitted nothing in writing. W hile this

position did have a quota, it was not as stringent as that for

the pricer position.

11. Other employees who have experienced problems with

meeting their quotas , in the positions that imposed such quotas ,

have been offered positions in other area s. 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 ho urs,

she likewise would have been offered a sales clerk position.

1 2 . 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 1 6, 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.

1 3 . At the time Petitioner first made t he 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.

1 4 . Despite knowing that Petitioner was pregnant at the

time of her termination, Hernandez - Lilly testified that

Petitioner's p regnancy had nothing to do with her discharge.

1 5 . In the year 2000, while Hernandez - Lilly was working

for Respondent as a p roduction s upervisor, 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.

1 6 . R oe 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.

1 7 . Re spondent'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 child ren and was returned to her former

position.

1 8 . 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.

1 9 . Respondent's employee , Ashley Ball , became pregnant

while working for Respondent and while under the supervision of

Hernandez - Lilly . She was permitted to ta ke paid time off to

deliver and care for her child and was returned to her former

position.

20 . 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

21 . 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).

2 2 . Under the provisions of Section 760.10, Florida

Statute s (200 3 ) 2/ :

(1) 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.

2 3 . Florida courts interpret Ch apter 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.

2 4 . The Petition for Relief alleges that R espondent

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 discri mination,

Congress amended the Civil Rights Act by enacting the Pregnancy

Discrimination Act of 1978, 42 U.S.C. Section 2000e(k), which

s tates that discrimination on the basis of pregnancy is sex

discrimination .

2 5 . 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 pregna ncy

constitutes discrimination based upon sex. See O'Loughlin v.

Pinceback , 579 So. 2d 788, 791 (Fla. 1st DCA 1991).

2 6 . 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" incl ude, 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, . . . .

2 7 . 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.

2 8 . Absent direct evidence of discrimination, Petitioner

must prove discrimination by indirect or circumstantial

evidence. To prove discrim ination 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 acti on; 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).

2 9 . 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.

30 . 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).

31 . 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.

3 2 . Assuming arguendo that Petitioner established a p rima

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 acti ons ," was the

s ole basis for her termination.

3 3 . 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.

3 4 . In support of her claim, Petitioner asserted that

non - pregnant employees who did not meet th e 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, R espondent present ed persuasive evidence that

Petitioner was not transferred to another such position because

she had indicated that she was not interested in such a

p osition.

3 5 . For the reasons stated in the foregoing paragraphs,

Respondent met its burden of showing a legitimate, non -

discriminatory reason for terminating Petitioner's employment.

3 6 . Petitioner did not present any credible evidence that

Respondent's r easons 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 t he Petition for Relief.

DONE AND ENT ERED this 31st day of March , 2006 , in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March , 2006 .

ENDNOTE S

1/ Gatewood was l ater 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 (200 3 ).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalache e Parkway, Suite 100

Tallahassee, Florida 32301

John Bolanovich, Esquire

Bogin, Munns & Munns

Post Office Box 2807

Orlando, Florida 32802

Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32 789

Cecil Howard, 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 d ate 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.