21-001376 Quanesha L. Thomas vs. Family Dollar Status: Closed Recommended Order on Thursday, October 7, 2021.

Summary: Petitioner proved that as a result of her pregnancy she was subjected to unlawful employment discrimination by her former employer and is entitled to compensation and reinstatement.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

Q UANESHA L. T HOMAS ,

Petitioner ,

vs. Case No. 21 - 1376

F AMILY D OLLAR ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to n otice, a final hearing in this cause was held in Tallahassee,

Florida, via Zoom video conference on August 10 , 2021, before

Linzie F. Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

A PPEARANCES

For Petitioner: Quanesha LaGwen Thomas , pro se

929 Gilmore Avenue , Apartment 53

Lakeland, Florida 33801

For Respondent: J. Wes Gay, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

Monica M. Karrenbauer, Esquire

Family Dollar

500 Volvo Parkway

Chesapeake, Virginia 23320

S TATEMENT OF T HE I SSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as

alleged in the Employment Complaint of Discrimination filed by Petitioner on

October 12, 2020.

P RELIMINARY S TATEMENT

ÑThe Pregnancy Discrimination Act [PDA] commands that pregnant

women Óbe treated the same È as other persons not so affected but similar in

their ability or inability to work[.]Ô 42 U.S.C. £ 2000e. [Six] years ago, in

Young v. United Parcel Service , 575 U.S. 206, 135 S.Ct. 1338, 19 L.Ed.2d 279

(2015), the Supreme Court addressed anew the doctrine courts are to use to

assess indirect evidence of intentional discrimination in violation of the

PDA.Ò Durham v. Rural/Metro Corp. , 955 F.3d 1279, 1280 (11th Cir. 2020).

Quanesha L. Thomas (Petitioner) filed an Employment Complaint of

Discrimination with the Florida Commission on Human Relations (FCHR),

and alleges therein that her former employer, Family Dollar (Respondent),

violate d section 760.10, Florida Statutes (2018), by discriminating against

her on the basis of sex, which includes pregnancy, and retaliated against her

for engaging in protected activity. Respondent terminated PetitionerÔs

employment on or about December 28, 20 19.

The allegations were investigated, and on April 5, 2021, FCHR issued its

Determination: No Reasonable Cause. A Petition for Relief was filed by

Petitioner on April 21, 2021. FCHR transmitted the case on April 22, 2021, to

the Division of Administrativ e Hearings for assignment of an administrative

law judge.

At the final hearing, Petitioner testified on her own behalf and did not

offer the testimony of any other witnesses. Respondent offered the testimony

of its only witness, Taunya S. Uzzle. Petitione r did not offer any exhibits into

evidence. RespondentÔs Exhibits 1 through 21 were admitted into evidence.

A Transcript of the final hearing was filed with the Division of

Administrative Hearings on August 31, 2021. On August 23, 2021, an Order

was enter ed grant ing RespondentÔs Consented Motion for Extension of Time

to File Post - Hearing Submissions. Petitioner elected not to file a proposed

recommended order. On September 13, 2021, Respondent filed a Proposed

Recommended Order, and the same was considered by the undersigned.

F INDINGS OF F ACT

1. On October 12, 2020, Petitioner filed a Complaint of Discrimination

with FCHR and alleged therein that Respondent committed an unlawful

employment practice by discriminating against her on the basis of sex, and

ret aliating against her for engaging in protected activity. PetitionerÔs

Complaint of Discrimination states, in part, the following:

Complainant (CP), an African American female,

began her employment with Respondent on

03/24/2019, and held the position of Cas hier. CP

was subjected to different terms and conditions of

employment because of her pregnancy. CP became

pregnant and notified her Manager, Anderson

Guzman. CP states during her pregnancy she

worked long hours and did overtime. CP had to

request a leave of absence earlier than expected

due to going into labor early. CP states she left on

12/20/2019, and filled out the necessary paperwork

but, it was denied twice. Respondent cited policy,

stating CP had not worked for them long enough to

qualify for a leav e of absence. However,

Mr. Guzman informed CP that he would give her

90 - days to come back to work. CP understood this

as still being employed, but someone would work in

her stead until her return. Some time had lapsed,

and CP was given the ok to return to work. CP

notified Mr. Guzman and he informed her that she

needed to fill out another application and wait; CP

filled out the application on 05/04/2020. CP was

eventually called and told that she failed the

background check however, CP had worked for

Respon dent for almost a year prior to her leave. CP

had a misdemeanor back in 2014, which has been

closed. CP believes Mr. Guzman discriminated

against her because of her pregnancy and or

condition relating to pregnancy. CP states prior to

her leave he had reduc ed her hours to just one day

or half a day.

On the Employment Complaint of Discrimination form, Petitioner checked

the boxes for ÑsexÒ and ÑretaliationÒ as grounds for her charge of unlawful

discrimination.

2. On March 29, 2019, Petitioner was hired, for the second time, by

Respondent to work as a regular status, part - time customer service

representative. 1 Petitioner became pregnant soon after she began working for

Respondent, and according to information provided by Petitioner,

January 19, 2020, was the d ate on which it was expected that her child would

be born. Petitioner notified her supervisor soon after she learned of her

pregnancy.

3. Petitioner testified that about two weeks after being told by her doctor

that Ñher six weeks were up,Ò and being medic ally cleared to return to work

following the birth of her child, she submitted to Respondent on March 31,

2020, an application for re - employment. In piecing together PetitionerÔs

testimony, it appears that her child was born on or about February 15, 2020.

4. RespondentÔs Exhibit 1 is the June 2018 version of the Family Dollar

Retail Stores Associate Handbook (Handbook) , and it provides, in part, as

follows:

Employment is available to individuals at least 18

years of age on a regular or temporary basis. Full

or part - time status is based on the number of hours

worked per week, with full - time Associates

regularly working 35 or more hours per week.

Regular - status Associates are eligible for Company

benefits based on criteria set forth in each plan.

1 The Complaint references March 24, 2019, as PetitionerÔs date of hire. However,

PetitionerÔs employment file indicates that March 29, 2019, was the date when she was

actually hired by Respondent.

Petitioner Ôs Work Hours

5 . According to the Handbook, part - time associates, like Petitioner, Ñare

regularly scheduled to work, on average, between five and 30 hours per

week.Ò The Handbook also provides that an associateÔs Ñwork schedule is

established based on proj ected needs of the business È [and] work schedules

are not guaranteed.Ò

6. According to RespondentÔs Exhibit 9, Petitioner worked a total of 944.44

hours between March 29, 2019 , and December 2 0 , 2019, for an average of

approximately 2 5 hours per week. As m ore fully explained below,

December 20, 2019, was the last date that Petitioner worked for Respondent,

and December 28, 2019, is the employment terminus date used by

Respondent. Petitioner was earning $9.15 per hour when her employment

with Respondent ende d.

7. RespondentÔs Exhibit 11 contains copies of PetitionerÔs pay statements ,

which reflect wages earned and hours worked between March and December

2019. The bi - weekly pay statements show fluctuations in the hours worked

by Petitioner during the entirety of her employment, but there is no

discernable pattern that supports PetitionerÔs claim that her hours were

significantly reduced as she advanced with her pregnancy. Succinctly stated,

the evidence does not support PetitionerÔs allegation that her work hou rs

were reduced as a result of Respondent learning of her pregnancy.

Ways Family Dollar Accommodates Employees who are Unable to Work

8. The Handbook states that the company offers Ñ[a]pproved leaves, such

as Family and Medical Leave, Sick Leave, Disabilit y Leave, work - related

injury leave or any other approved paid or unpaid time off.Ò According to page

18 of the Handbook:

Dollar Tree provides leave under the Uniformed

Services Employment and Reemployment Rights

Act (USERRA), the Family Medical Leave Act

( FMLA) and applicable federal, state and local

laws. Please see the poster and policy at the end of

this handbook and go to dollartree.com/mytree for

more specific detail regarding leave. Associates

interested in taking leave should contact Human

Resources.

Other than information contained in the Handbook, the record herein does

not contain copies of policies that provide Ñmore specific detail regarding

leave.Ò

9. According to the Handbook, ÑSick leave is provided to full - time hourly -

paid store managers È unless otherwise provided by state law.Ò ÑSalaried

Store Managers are eligible for up to six days of sick leave per each

occurrence while hourly - paid Store Managers are eligible for up to 96 hours

of sick leave annually.Ò ÑExcept as provided by law, sick l eave benefits are

available for use only in the case of an AssociateÔs own personal illness or

injury È [and] Associates who require more than three daysÔ sick leave

benefits for any single illness or injury must provide the Company with a

satisfactory sta tement from a health care provider to qualify for sick leave

benefits.Ò The evidence suggests that Petitioner, as a part - time employee,

was not eligible to earn sick leave.

10. Full - time associates and part - time assistant managers are eligible for

Ñpaid ti me off leave.Ò Paid time off leave (PTO) Ñis intended to encourage

Associates to take time off periodically to relax away from the job or handle

personal matters.Ò ÑUnder certain of Dollar TreeÔs Leave Policies, Associates

may be required to deplete all PT O at the beginning of a leave of absence.Ò

The evidence suggests, once again, that Petitioner, as a part - time employee,

was not eligible to earn PTO.

11. As for FMLA, the Handbook provides as follows:

To qualify for FMLA leave, you must: (1) have

worked fo r Dollar Tree for at least 12 months,

though it need not be consecutive; (2) worked at

least 1,250 hours in the last 12 months; and (3) be

employed at a work site that has 50 or more

Associates with in 75 miles. You may take up to

12 weeks of unpaid FMLA le ave in a 12 - month

period È for any of the following reasons:

[T]he birth, adoption, or placement of a son or

daughter and in order to care for such son or

daughter (leave to be completed within one year of

the childÔs birth); [or]

* * *

[T]o care for [th e employeeÔs] own serious health

condition, which renders [the employee] unable to

perform any of the essential functions of [the

employeeÔs] position.

Both pregnant and non - pregnant part - time employees that meet the

qualifying conditions are eligible for FMLA leave.

12. As for Ñwork - related injury leave,Ò the Handbook provides that

Ñ[t]ransitional duty is a temporary reassignment or realignment of job duties

to assist an Associate in recovery and return to normal work duties, [and] it

may be offered to As sociates who have work restrictions.Ò There is no

indication in the Handbook that part - time employees are ineligible for Ñwork -

related injury leave.Ò

13. As for Ñdisability leave,Ò the Handbook provides that Ñ Dollar Tree will

provide a reasonable accommoda tion for sincerely held religious beliefs and

for disabled applicants and associates if it would allow the individual to

perform the essential functions of the job, unless doing so would create an

undue hardship for the Company.Ò There is no indication in the Handbook

that part - time employees are ineligible for Ñdisability leave.Ò

14. The Handbook is silent on the eligibility requirements for Ñother types

of approved paid or unpaid time off Ò leave. While Respondent offered the

Handbook into evidence, no rea son was provided for why the policies

governing Ñother types of approved paid or unpaid time offÒ were omitted

from the record.

PetitionerÔs Pregnancy

15. Sedgwick is the company hired by Respondent to provide support in

the areas of human resources and p ersonnel management.

16. On or about December 3, 2019, Petitioner contacted Sedgwick for the

purpose of submitting a request for leave due to her pregnancy. Sedgwick

offers automated services which allows an employee to answer a series of

questions related to a request for leave, and while using the automated

service, Petitioner provided the following information:

How many hours of sick time would you like to use?

Answer = 0

How many hours of paid time off would you like to

use? Answer = 30

Would you like to use your paid time off or sick

leave? Answer = YES

First Day Missed from Work: Answer = 12/31/2019

EmployeeÔs Due Date: Answer = 01/19/2020

Return to Work Date: No answer provided

17. Based on the answers provided by Petitioner, Sedgwick, on

Decemb er 3, 2019, prepared a ÑLeave ReportÒ that, in part, provides as

follows:

Client Information

Employer Notified Date: 12/03/2019

Employee Medical Leave Information

Medical Leave Reason: Pregnancy

Employees Due Date: 01/19/2020

Employment Information

Hire Date: 09/03/2015

Is the Injury Work Related?: NO

Leave Information

Missed time is: CONTINUOUS

Leave Type: Employee Medical

18. On December 4, 2019, Sedgwick reviewed PetitionerÔs request for

pregnancy leave and notified her that she was not eli gible for FMLA leave

because she had not worked the requisite number of hours. Also, on

December 4, 2019, Sedgwick notified Respondent of its determination and

stated therein the following:

To: Family Dollar Ï Continuous Ï Leave Denial

Notice

QuaneshaÔs L eave request has been denied under

the Family and Medical Leave Act (FMLA ) , State

and/or local law for the period beginning 12/31/2019

through 12/31/2019.

Reason for denial:

[X] Did not work the require number of hours to be

eligible under the law(s).

Pl ease be aware that if Associate is eligible for paid

time off or sick leave these benefits must be used at

this time. If the Associate does not have these

benefits, they are expected to return to work. If

they do not do so, you are to administratively

term inate their employment, with an eligible for

rehire status. You may rehire this associate once

released by a physician to return to work. If the

Associate is rehired within 90 days, the associate

will retain his/her original hire date with the

company. If rehired with the same position he/she

will retain the same rate of pay.

If the reason for leave is due to a personal illness or

a pregnancy with complications please email

[e-mail] prior to the termination, no

sooner than a week from the date of this email.

There is no indication that Sedgwick evaluated PetitionerÔs leave request for

eligibility for non - FMLA unpaid time off, or for any other type of leave that

was available to associates who were temporarily unable to work due to

either a job - related or non - job - related injury. Furthermore, other than

inquiry about using either paid time off or sick leave, the evidence indicates

that SedgwickÔs automated system, though recognizing that pregnancy was

the basis for PetitionerÔs leave request, did not give Petitioner the option of

requesting other types of leave available to associates who were temporarily

unable to work due to either a job - related or non - job - related injury.

19. After learning that her initial leave request was denied, Petitioner, on

December 9, 2019, submitted a second request for leave related to her

pregnancy. For this leave request, Petitioner modified her answers, in

material part, as follows:

Would you like to use your paid time off or sick

leave? Answer = NO

Return to Work D ate: Answer = 03/09/2020

20. On December 10, 2019, Sedgwick again denied PetitionerÔs pregnancy

leave request due to her failure to meet FMLA eligibility requirements and

notified Respondent of its determination. As with PetitionerÔs previous leave

reques t, Sedgwick did not evaluate PetitionerÔs leave request for eligibility for

non - FMLA unpaid time off, or for any other type of leave that was available

to associates who were temporarily unable to work due to either a job - related

or non - job - related injury.

21. According to the case notes generated by Sedgwick, the start date for

PetitionerÔs pregnancy leave Ñwas changed from 12/31/2019 to 12/10/19,Ò and

the end date for PetitionerÔs leave Ñwas changed from 03/08/2020 to

12/10/2019.Ò The changing of these da tes to December 10, 20 19 , indicates

that Petitioner Ôs leave request was considered Ñdenied,Ò and that no further

action would be taken by Respondent with respect to the same.

22. Petitioner testified that on or about December 10, 2019, her supervisor

info rmed her that her second request for pregnancy leave was also denied.

Following the second denial, Petitioner credibly testified that she met with

her supervisor and Ñshowed him [her] doctorÔs paperwork that [she] was

going in early labor,Ò and, at the ins istence of her supervisor, she submitted

to him a statement explaining that she was Ñlikely going into early labor.Ò

According to PetitionerÔs unrebutted and unimpeached testimony, her

supervisor advised that he would Ñtake the papers from [her] doctor and È

make sure that [the owners of] Family Dollar would get [the papers] so they

could understand why [she] was leaving early.Ò PetitionerÔs former supervisor

did not testify, and neither Petitioner nor Respondent offered into evidence a

copy of the ÑdoctorÔ s paperworkÒ or the written statement that Petitioner gave

to her supervisor.

23. PetitionerÔs actions of submitting an initial pregnancy - related leave

request on December 3, 2019, then submitting a modified pregnancy leave

request on December 9, 2019, fo llowed by giving her supervisor a note from

her doctor along with a personal written statement explaining the

circumstances surrounding her pregnancy, demonstrate that Petitioner was

actively searching for a solution while Respondent, in rebuffing Petition erÔs

efforts, simply rested on PetitionerÔs lack of eligibility for FMLA leave.

24. December 20, 2019, was the last day Petitioner worked for

Respondent. Petitioner testified as follows as to why she ceased working on

this date:

When I left December 20th because I was going to

leave in January but the doctors told me that the

way I was looking that I was going to go in early

labor and they didnÔt know when I was going to

have her. (T r. 20, lines 11 - 15) .

25. Respondent contends that Petitioner voluntarily quit her job when she

failed to return to work subsequent to December 20, 2019. The evidence,

however, establishes that Petitioner stopped working due to complications

related to her pregnancy, and because of this, her employment, as a practical

matter, wa s Ñadministratively terminatedÒ by Respondent. Petitioner did not

voluntarily quit her job. Because Petitioner was unlawfully terminated, she

should not have had to reapply for employment once she was cleared to

return to work by her physician. Furthermore , Petitioner testified that she

found another job after her employment with Respondent ended, but she did

not provide a date for when the subsequent employment commenced.

Background Check

26. On December 29, 2014, Petitioner was convicted of a domestic vio lence

misdemeanor which resulted in the imposition of a $720.00 fine. Petitioner

has no other history of criminal activity.

27. Nine months after her misdemeanor conviction, Petitioner, on or about

September 3, 2015, was hired by Family Dollar to work part - time as a sales

associate. According to the Ñemployee status history,Ò Petitioner ended her

employment with Family Dollar on or about October 11, 2015.

28. On March 29, 2019, Petitioner, more than four years after her

misdemeanor conviction, was again h ired by Family Dollar as a part - time

associate. Petitioner worked for Respondent until her employment was

terminated by the company on December 28, 2019.

29. As previously noted, Petitioner, on or about March 31, 2020, submitted

an employment application to Respondent and requested therein that she be

rehired to her previous position as a customer service representative.

According to the Ñrehire eligibility formÒ generated as part of the application

process, Petitioner was initially deemed eligible for reh ire since she did not

commit any offenses during her previous employment that disqualified her

from rehire eligibility (e.g. violation of the drug and alcohol testing policy).

30. RespondentÔs application process required Petitioner to submit to a

criminal background screening. On or about May 7, 2020, Respondent

informed Petitioner that she was disqualified from future employment with

the company because of her December 2014 misdemeanor battery conviction.

31. Taunya Uzzle works for Respondent as an associ ate relations

specialist, and her job duties include overseeing background checks and

Ñworking with the human resources business partners in the field to ensure

that policies are being upheld.Ò

32. On cross - examination by Petitioner, Ms. Uzzle testified as follows:

Q: And then the other question is, my background.

YÔall hired me the first time, but the second time

yÔall wouldnÔt hire me because it said something

about my criminal record. But on the -- on the

background it says my case is closed. So I donÔt

understand that. Can you explain that to me a

little more?

A: Sure. So, whether the case is closed or not, the

record still remains.

Q: Uh - huh.

A: And thatÔs what we make that decision off of.

Prior to the -- Sterling being our third

party vendor for background checks, we did use

another -- vendor. So that might be the reason why

it didnÔt pull the first time. But as it did pull the

second time, thatÔs why you werenÔt -- would have

been disqualified. (T r . 64 - 65).

The import of Ms. UzzleÔs testimony is that Respondent has no explanation

for why PetitionerÔs misdemeanor criminal history was previously missed,

but Petitioner is nevertheless disqualified from future employment because

the new company hired by Respondent to conduct background checks was

abl e to locate the previously unknown information.

C ONCLUSIONS OF L AW

33. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter in this case. §§ 120.569, 120.57, and 760.11, Fla.

Stat. (202 1 ). 2

34. Section 760.10( 1) states that it is an unlawful employment practice for

an employer to discharge or otherwise discriminate against an individual on

the basis of race, color, religion, sex, pregnancy, national origin, age,

handicap, or marital status.

35. FCHR and Florida courts have determined that federal discrimination

law should be used as guidance when construing provisions of section 760.10 .

See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA

2009); Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

36. The Pregnancy Discrimination Act, 42 U.S.C. £ 2000e(k), Ñmakes clear

that Title VIIÔs prohibition against sex discrimination applies to

discrimination based on pregnancy [and it directs] that employers must treat

Ó women affected by pregnancy È the same for all employment - related

purposes È as other persons not so affected but similar in their ability or

inability work. Ô Ò Young v. United Parcel Serv . , Inc ., 575 U.S. 206, 135 S.Ct.

1338, 1343 (2015). The PDA Ñrequires courts to consid er the extent to which

an employerÔs policy treats pregnant work er s less favorably than it treats

nonpregnant workers similar in their ability or inability to work.Ò Id. at 1344.

37. PetitionerÔs asserted claim of discrimination is one of disparate

treatme nt. The United States Supreme Court has noted that Ñ[d]isparate

treatment ... is the most easily understood type of discrimination. The

employer simply treats some people less favorably than others because of

2 All subsequent references to Florida Statutes will be to the 202 1 version , unless otherwise

indicated.

their race, color, religion, sex, or national origin.Ò Teamsters v. U.S., 431 U.S.

324, 335 n.15 (1977).

38. Liability in a disparate treatment case Ñdepends on whether the

protected trait È actually motivated the employerÔs decision.Ò Hazen Paper

Co. v. Biggins, 507 U.S. 604, 610 (1993). ÑThe ultim ate question in every

employment discrimination case involving a claim of disparate treatment is

whether the plaintiff was the victim of intentional discrimination.Ò Reeves v.

Sanderson Plumbing Products, Inc. , 530 U.S. 133, 153 (2000) .

39. Discriminatory intent can be established through direct or

circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir.

1999). Direct evidence of discrimination is evidence that, if believed,

establishes the existence of discriminatory intent behind an employment

decision without inference or presumption. Maynard v. Bd. of Regents , 342

F.3d 1281, 1289 (11th Cir. 2003).

40. ÑDirect evidence is composed of Óonly the most blatant remarks, whose

intent could be nothing other than to discriminateÔ on the basi s of some

impermissible factor.Ò Schoenfeld v. Babbitt , 168 F.3d at 1266. Petitioner

presented no direct evidence of sex - based discrimination.

41. Ñ[D]irect evidence of intent is often unavailable.Ò Shealy v. City of

Albany , 89 F.3d 804, 806 (11th Cir. 199 6). For this reason, those who claim to

be victims of intentional discrimination Ñare permitted to establish their

cases through inferential and circumstantial proof.Ò Kline v. Tenn. Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997).

42. Where a complainant attempts to prove intentional discrimination

using circumstantial evidence, the shifting burden analysis established by

the U.S. Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973), and Texas Department of Community Affairs v. Burdine , 4 50 U.S. 248

(1981), is applied. Under this well - established model of proof, the charging

party bears the initial burden of establishing a prima facie case of

discrimination.

43. As it specifically relates to a charge of discrimination based on

pregnancy, the U.S. Supreme Court in Young Ñestablished a modified

McDonnel l Douglas analysis which focuses on Ówhether the nature of the

employerÔs policy and the way in which it burdens pregnant women shows

that the employer has engaged in intentional discriminatio n.ÔÒ Legg v. Ulster

Cty ., 820 F.3d 67, 73 (2d Cir. 2016). Under the modified framework, a

petitioner may make out a prima facie case of discrimination by showing

that: Ñ(1) she is a member of the protected class; (2) she requested

accommodation; (3) the em ployer refused her request; and (4) the employer

nonetheless accommodated others Ó similar in their ability or inability to

work. Ô Ò Durham v. Rural/Metro Corp ., 955 F.3d 1279, 1285 (11th Cir. 2020)

( quot ing Young , 575 U.S. at 229).

44. In explaining the pr ima facie caseÔs fourth prong, the court in Durham

noted that the Ñfourth prong means that, in contrast to Title VIIÔs more

general comparator analysis, Óthe comparator analysis under the PDA focuses

on a single criterion Ï oneÔs ability to do the job. Ô Ò I d. at 1286, ( quot ing Lewis

v. City of Union City, Ga ., 918 F.3d 1213, 1228 n. 14 (11th Cir. 2019) (en

banc) ) . In Lewis , the Court noted that Ñthe plain text of the Pregnancy

Discrimination Act È requires employers to treat Ówomen affected by

pregnancy È t he same for all employment - related purposes È as other

persons not so affected but similar in their ability or inability to work.ÔÒ Id .

ÑThe prima - facie - case burden the Petitioner bears is not an onerous one. Ò

Young , 575 U.S. at 228.

45. ÑAfter a [Petition er] satisfies her prima facie burden, the employer

may come forward with Ólegitimate, nondiscriminatory reasonsÔ for denying

the plaintiffÔs requested accommodation.Ò Durham , 955 F.3d at 1285.

46. ÑIf the employer presents an ostensible Ólegitimate, nondis criminatoryÔ

reason for what it has done, the [Petitioner] then has the opportunity to

attempt to demonstrate that the employerÔs stated reason is in fact

pretextual.Ò Id . The employee must s atisfy this burden of demonstrating

pretext by directly showing t hat a discriminatory reason more likely than not

motivated the decision or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief. DepÔt of Corr. v. Chandler ,

582 So. 2d 1183, 1186 (Fla. 1st DCA 1991) ; Alexander v. Fulton Cty. , 207 F.3d

1303 (11th Cir. 2000) .

47. ÑAlthough the intermediate burdens of production shift back and forth,

the ultimate burden of persuading the trier of fact that the employer

intentionally discriminated against the [Petitioner] remains a t all times with

the [Petitioner].Ò EEOC v. JoeÔs Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th

Cir. 2002); see also Byrd v. RT Foods, Inc. , 948 So. 2d 921, 927 (Fla. 4th DCA

2007) (ÑThe ultimate burden of proving intentional discrimination against the

plai ntiff remains with the plaintiff at all times.Ò).

48. Once the matter has, as in the instant case, been fully tried, Ñit is no

longer relevant whether the plaintiff actually established a prima facie case

[and] È the only relevant inquiry is the ultimate, factual issue of intentional

discrimination.Ò Green v. Sch. Bd. of Hillsborough Cty. , 25 F.3d 974, 978

(11th Cir. 1994) (citing U.S. Postal Serv. Bd. of Governors v. Aikens , 460 U.S.

711, 714 - 15 (1983)). However, the issue of whether a Petitioner Ñactually

established a prima facie case is relevant È in the sense that a prima facie

case constitutes some circumstantial evidence of intentional discrimination.Ò

Green , 25 F.3d at 978.

49. Petitioner, as a pregnant woman, satisfies the first prong of the Young

p rima facie test, given that she was part of the class protected by the PDA

when the alleged discriminatory act occurred.

50. Petitioner satisfies the second prong of the Young prima facie test,

since the evidence establishes that on December 3, 2019, she f irst sought an

accommodation by requesting to use either PTO or sick leave, and after her

initial request was denied, she again requested, on December 9, 2019, an

accommodation by asking for what was essentially Ñunpaid time offÒ leave. As

for the third pr ong of the Young prima facie test, i t is undisputed that

Respondent denied PetitionerÔs requests for accommodation and therefore

th is prong has also been met.

51. Under the fourth prong of the Young prima facie test, Petitioner must

demonstrate that Respon dent accommodated others who were not pregnant,

yet were similar in their ability or inability to work. Between December 21,

2019, and March 31, 2020, Petitioner, for reasons related to pregnancy and

childbirth, was temporarily disabled from work.

52. It i s well settled Ñthat the PDA and Title VII are violated when

pregnant employees are denied privileges afforded non - pregnant temporarily

disabled employees.Ò Byrd v. Lakeshore Hosp ., 30 F.3d 1380, 1382 (11th Cir.

1994) (citing IntÔl Union UAW v. Johnson Con trols , 499 U. S . 187, 197 (1991)).

53. As noted in the Findings of Fact, Respondent offered into evidence a

copy of its employee Handbook which references Ñdisability leaveÒ and

Ñunpaid time off,Ò but did not tender its policies related thereto. It is likel y

that the policies set forth the eligibility requirements for these types of

leaves. However, in the absence of the policies, the undersigned is unable to

evaluate how these policies might impact PetitionerÔs claim. The record is

sufficient, however, to c ompare PetitionerÔs plight with that of a non -

pregnant, part - time worker seeking temporary leave pursuant to

RespondentÔs Ñwork - related injury leaveÒ policy. 3 See Ensley - Gaines v.

Runyon , 100 F.3d 1220, 1226 (6th Cir. 1996) (the Pregnancy Discrimination

Ac t does not concern itself with whether an employee was injured on the job

or off, but, for comparison purposes, Ñrequires only that the employee be

similar in his or her ability or inability to work.Ò).

54. As noted in the Findings of Fact, Sedgwick indic ated that neither of

PetitionerÔs leave requests were due to her having suffered a Ñwork - relatedÒ

3 Since RespondentÔs Handbook limits the leave types that part - time workers are eligible to

receive, PetitionerÔs cla im is considered in light of this limitation. See Byrd , 30 F.3d at 1382

(Ñwomen disabled due to pregnancy, childbirth or other related medical conditions [must] be

provided the same benefits as those provided other disabled workers [such as] temporary and

long - term disability insurance, sick leave, and other forms of employee benefit programs.Ò) .

injury. The significance of this evidence is found in the fact that for

employees who suffer a work - related injury, RespondentÔs policy allows for

the assignm ent of Ñtransitional dutyÒ which Ñis a temporary reassignment or

realignment of job duties to assist an Associate in recovery and return to

normal work duties.Ò It is reasonable to infer that this policy allows for

ÑrecoveryÒ from a period of time during w hich the employee is temporarily

unable to work as result of the work - related injury. While a non - pregnant,

part - time worker who suffers a work - related injury that renders them

temporarily unable to work is allowed a period of ÑrecoveryÒ under

RespondentÔs policy, a pregnant worker who suffers from a temporary

inability to work for reasons related to her pregnancy is not allowed a similar

period of Ñrecovery. Ò Since neither employee is able to work, they are similar

in their Ñinability to workÒ during their respective periods of temporary

disability.

55. Petitioner has satisfied the fourth prong of the Young prima facie test,

and has therefore established a prima facie case of discrimination under the

PDA and Title VII.

56. Since Petitioner has established a prima facie case of intentional

discrimination, it is now RespondentÔs burden to articulate a legitimate,

nondiscriminatory reason for its decision to deny PetitionerÔs request for

pregnancy leave. The evidence establishes that Petitioner did not meet th e

eligibility requirements for FMLA, and that this was the only reason

expressed by Respondent when denying PetitionerÔs request for pregnancy

leave. There is a complete absence of evidence that Respondent, or its agent

Sedgwick, considered PetitionerÔs el igibility for pregnancy leave under any of

the companyÔs other leave policies available to part - time, non - pregnant

employees. While RespondentÔs reliance on PetitionerÔs ineligibility for FMLA

leave constitutes Ña legitimate, nondiscriminatory reasonÒ for denying

PetitionerÔs request for pregnancy leave, this reliance on FMLA, standing

alone, is not sufficient to meet its burden because Respondent completely

failed to articulate any reason for why Petitioner was treated differently from

part - time, non - pregn ant workers who are eligible for temporary leave

pursuant to RespondentÔs Ñtransitional dutyÒ policy.

57. In St. MaryÔs Honor Center v. Hicks , 509 U.S. 502, 511 (1993), the U.S.

Supreme Court explained that Ñ[t]he factfinderÔs disbelief of the reasons put

forward by the defendant È may, together with the elements of the prima

facie case, suffice to show intentional discrimination. Thus, rejection of the

defendantÔs proffered reasons, will permit the trier of fact to infer the

ultimate fact of intentional d iscrimination, and È no additional proof of

discrimination is required.Ò Because Respondent failed to meet its burden,

and Petitioner successfully established the elements of her prima facie case,

it is determined that Petitioner has demonstrated that she was the victim of

unlawful intentional discrimination by Respondent.

Retaliation

58. Under Title VII, there are two distinct clauses that provide protection

against retaliatory conduct by a covered employer. The Ñparticipation clauseÒ

offers protection to an employee when the employee Ñhas made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII].Ò See Merritt v. Dillard Paper Co .,

120 F.3d 1181, 1185 (11th Cir. 1997). The Ñopposition cla useÒ offers protection

against retaliation to an employee when the employee Ñhas opposed any

practice made an unlawful employment practice by [Title VII].Ò Id .

59. To make out a prima facie case of retaliation, Petitioner must show:

(1) that she engaged in an activity protected under Title VII; (2) she suffered

a materially adverse action; and (3) there was a causal connection between

the protected activity and the adverse action. Chapter 7 Tr. v. Gate Gourmet,

Inc ., 683 F.3d 1249, 1258 (11th Cir. 2012). Ul timately, as to the required

causal link in retaliation cases, a petitioner must show that the adverse

action would not have occurred but for the protected activity. Univ. of Tex.

S.W. Med. Ctr. v. Nassar , 570 U.S. 338 (2013).

60. As noted in the Findings of Fact, Petitioner Ñchecked the boxÒ for

ÑretaliationÒ on the FCHR charge form. A review of the Ñdiscrimination

statementÒ portion of the form fails to reveal any specific allegations of

retaliatory conduct allegedly committed by Respondent. Nevertheless,

Petitioner, based on her testimony, suggests that because she requested leave

for reasons related to pregnancy, Respondent, in turn, retaliated against her

by rejecting her application for reemployment. As it relates to her claim of

retaliation, there is no evidence indicating the Petitioner engaged in

Ñprotected activity,Ò and even if there was such evidence, there is no

connection between any such activity and RespondentÔs decision to not rehire

Petitioner. Succinctly stated, PetitionerÔs application for reemployment was

rejected because Respondent learned of PetitionerÔs criminal history as part

of the employment vetting process.

PetitionerÔs Remedy

61. As Petitioner brought this action as an administrative proceeding

pursuant to section 760.11(4)(b) as opposed to a civil action in court pursuant

to section 760.11(4)(a), the relief under the Act to which she is entitled is

authorized in section 760.11(6), which provides in pertinent part:

If the administrative law judge, after the hearing,

finds that a v iolation of the Florida Civil Rights Act

of 1992 has occurred, the administrative law judge

shall issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief from the

effects of the practi ce, including back pay È.

62. In accordance with section 760.11(6) and federal case law, Petitioner is

Ñpresumptively entitled to back pay.Ò Weaver v. Casa Gallardo, Inc ., 922 F.2d

1515, 1526 (11th Cir. 1991) (superseded by statute on other grounds).

63. As noted in the Findings of Fact, Petitioner, at the time of her

unlawful discharge, was earning $9.15 per hour and worked an average of

approximately 2 5 hours per week for an average weekly wage of $2 28.75 .

Petitioner , on March 31, 2020, submitted her ap plication for reemployment

and advised therein that she was available to return to work. Petitioner also

testified that she found another job after she was notified by Respondent that

she would not be reemployed by the company. 4 Petitioner did not provide a

date for when she began other employment, but the evidence is clear that by

correspondence dated May 14, 2020, Respondent informed Petitioner that she

was disqualified from reemployment. Petitioner is entitled to back pay in the

amount of $1,3 72 . 5 0 for t he six - week period from March 31, 2020, through

May 14, 2020 (6 x $2 28.75 ).

64. In addition, as the evidence showed that Petitioner was wrongfully

terminated because of reasons related to her pregnancy, she should be

entitled to reinstatement. See § 760.11 (6), Fla. Stat.; cf. OÔLoughlin v.

Pinchback , 579 So. 2d 788, 795 (Fla. 1st DCA 1991) (Ñprevailing plaintiff in a

wrongful discharge case is entitled to reinstatement absent unusual

circumstancesÒ) (citations omitted). Therefore, Family Dollar should offer to

reinstat e Petitioner in a position equivalent to her previous position with the

same potential for earnings that she held on December 20, 2019.

R ECOMMENDATION S

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

RECOMMENDED that the Florida Commission on Human Relations enter a

final order:

1. Finding that Family Dollar subjected Quanesha Thomas to unlawful

discrimination in violation of the Florida Civil Rights Act of 1992 by treating

4 See Smith v. American Serv. Co ., 611 F.Supp. 321 (N.D. Ga. 1985) (back - pay period for an

unlawfully rejected applicant ended when she accepted subsequent compara ble employment),

affÔd in relevant part , 796 F.2d 1430 (11th Cir. 1986).

her, as a pregnant worker, less favorably than it treated non - pregnant

workers similar in their ability or inability to work;

2. Prohibiting any future acts of discrimination by Family Dollar;

3. Ordering Family Dollar to pay Petitioner $1,3 72.50 in back pay , with

interest accruing on this amount at the applicable statutory rate from the

date of the CommissionÔs F inal Order;

4. Ordering Family Dollar to offer Petitioner reinstate ment to her former

or an equivalent position with the same potential earnings as the position

that she held on December 20 , 2019; and

5 . Dismissing as unfounded Petitioner Ô s claim against Family Dollar for

unlawful retaliatory conduct.

D ONE A ND E NTERED this 7th day of October , 2021, in Tallahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administrative Law Judge

1230 Apalac hee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of October , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Monica M. Karrenbauer, Esquire

Florida Commission on Human Relations Family Dollar

4075 Esplanade Way , Room 110 500 Volvo Parkway

Tallahassee, Florida 32399 - 7020 Chesapeake, Virginia 23320

Quanesha LaGwen Thomas J. Wes Gay, Esquire

929 Gilmore Avenue , Apartment 53 Allen, Norton & Blue, P.A.

Lakeland, Florida 33801 906 North Monroe Street

Tallahassee, Florida 32303

Stanley Gorsica, Gen eral Co unsel

Florida Commission on Human Relations Robert E. Larkin, III, Esquire

4075 Esplanade Way, Room 110 Al len, Norton & Blue, P.A.

Tallahassee, Florida 32399 906 North Monroe Street

Tallahassee, Florida 32303

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Reco mmended

Order should be filed with the agency that will issue the Final Order in this

case.