McFee v. Nursing Care Management of America, Inc.

[Cite as McFee v. Nursing Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744.]

MCFEE; OHIO CIVIL RIGHTS COMMISSION, APPELLEE, v. NURSING CARE

MANAGEMENT OF AMERICA, INC., D.B.A. PATASKALA OAKS

CARE CENTER, APPELLANT.

[Cite as McFee v. Nursing Care Mgt. of Am., Inc.,

126 Ohio St.3d 183, 2010-Ohio-2744.]

An employment policy that imposes a uniform minimum-length-of-service

requirement for leave eligibility with no exception for maternity leave is

not direct evidence of sex discrimination under R.C. Chapter 4112.

(No. 2009-0756 — Submitted January 13, 2010 — Decided June 22, 2010.)

APPEAL from the Court of Appeals for Licking County, No. 08CA3000,

181 Ohio App.3d 632, 2009-Ohio-1107.

__________________

SYLLABUS OF THE COURT

An employment policy that imposes a uniform minimum-length-of-service

requirement for leave eligibility with no exception for maternity leave is

not direct evidence of sex discrimination under R.C. Chapter 4112.

__________________

CUPP, J.

I

{¶ 1} In this case, a pregnant employee who took maternity leave before

she was eligible under her employer’s uniform minimum-length-of-service

requirements for leave eligibility of any kind was terminated for absence from her

job. We are asked whether the termination of that employee for violation of the

uniform leave policy is direct evidence of sex discrimination under Ohio law.

{¶ 2} For the reasons that follow, we hold that a uniform minimum-

length-of-service leave policy is not direct evidence of a violation of R.C.

4112.02(A). The judgment of the court of appeals is reversed.

SUPREME COURT OF OHIO

II

{¶ 3} Tiffany McFee was employed by appellant, Nursing Care

Management of America, Inc., d.b.a. Pataskala Oaks Care Center (“Pataskala

Oaks”). Upon hire, McFee received an employee handbook that contained

Pataskala Oaks’ employment policy. That policy required that an employee be

employed for a period of one year before he or she would be eligible for any leave

for any purpose.

{¶ 4} Approximately eight months later, McFee presented to Pataskala

Oaks a doctor’s note that stated that she was unable to work due to conditions

related to pregnancy. Soon thereafter, McFee gave birth. Three days after the

birth, McFee’s employment was terminated. The basis for the termination was

McFee’s absence from her employment before she had become eligible for leave

under the written employment policy.

{¶ 5} McFee filed a charge with the Ohio Civil Rights Commission,

appellee, claiming that her termination constituted unlawful sex discrimination on

the basis of pregnancy. An administrative law judge recommended that the charge

be dismissed. Nevertheless, the Civil Rights Commission rejected that

recommendation and found instead that Pataskala Oaks’ policy constituted

unlawful sex discrimination. Pataskala Oaks appealed.

{¶ 6} On review, the Licking County Common Pleas Court held that

Pataskala Oaks’ leave policy did not violate the antidiscrimination laws of Ohio

and reversed the decision of the Civil Rights Commission.

{¶ 7} On further appeal, the Fifth District Court of Appeals reversed the

judgment of the common pleas court. The court of appeals held that the

antidiscrimination laws of Ohio expressly require that employers provide

employees with a reasonable period of maternity leave. Because Pataskala Oaks’

leave policy did not provide maternity leave for employees with less than one

year of service, the court of appeals held that the policy violated the sex-

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January Term, 2010

discrimination laws. The court also held that the policy was direct evidence of

discrimination and, therefore, McFee did not have the burden to offer other

evidence of sex discrimination. See McDonnell Douglas Corp. v. Green (1973),

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.

{¶ 8} Pataskala Oaks appeals here from the decision of the Fifth District.

It asserts that (1) an employer’s uniform minimum-length-of-service leave policy

does not constitute direct evidence of a sex-discrimination violation, even when it

is applied to employees who require leave for reasons related to pregnancy, (2)

the laws in question cannot be interpreted to mandate maternity leave for

employees who are not yet otherwise eligible for any leave, and (3) the

McDonnell Douglas burden-shifting framework applies in cases alleging sex

discrimination on the basis of pregnancy leave, thus requiring the claimant to

offer evidence of discriminatory intent in a claim based on an employment policy

that is nondiscriminatory on its face.

III

{¶ 9} R.C. 4112.02(A) provides that pregnant employees must be treated

the same for employment-related purposes as employees who are not pregnant but

who are similar in their ability or inability to work. See also R.C. 4112.01(B).

Because the Ohio Administrative Code Sections promulgated by the Civil Rights

Commission must be harmonized with this policy preference of the General

Assembly, a mandatory maternity-leave requirement is absent from Ohio

Adm.Code 4112-5-05(G)(2). This means that a uniform minimum-length-of-

service leave policy is not direct evidence of sex discrimination and the

McDonnell Douglas burden-shifting analysis should be applied in cases involving

such a policy.

A. R.C. Chapter 4112 does not prohibit uniformly applied

minimum-length-of-service leave requirements.

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SUPREME COURT OF OHIO

{¶ 10} McFee was terminated from employment because she took leave

from her job before she was eligible under Pataskala Oaks’ uniform leave policy.

Regarding termination, R.C. 4112.02(A) provides: “It shall be an unlawful

discriminatory practice * * * [f]or any employer, because of the * * * sex * * * of

any person, to discharge without just cause, to refuse to hire, or otherwise to

discriminate against that person with respect to hire, tenure, terms, conditions, or

privileges of employment, or any matter directly or indirectly related to

employment.”

{¶ 11} R.C. 4112.01(B) provides that the term “because of sex” in R.C.

4112.02(A) “include[s], but [is] not limited to, because of or on the basis of

pregnancy, any illness arising out of and occurring during the course of a

pregnancy, childbirth, or related medical conditions.” The second sentence of

R.C. 4112.01(B) directs that pregnant women “shall be treated the same for all

employment-related purposes * * * as other persons not so affected but similar in

their ability or inability to work.”

{¶ 12} Read together, those statutes provide that it is an unlawful

discriminatory practice for an employer to terminate an employee because of

pregnancy or a related condition without just cause. Because R.C. 4112.02(A)

allows an employer to terminate an employee for any nondiscriminatory reason

and R.C. 4112.01(B) directs that pregnant employees be treated “the same for all

employment-related purposes * * * as other persons not so affected but similar in

their ability or inability to work,” the statutes do not impose a per se ban on the

termination of every employee affected by pregnancy.

{¶ 13} The phrase “treated the same” in R.C. 4112.01(B) ensures that

pregnant employees will receive the same consideration as other employees “not

so affected but similar in their ability or inability to work.” Thus, the statute does

not provide greater protections for pregnant employees than nonpregnant

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January Term, 2010

employees. Other courts that have considered this issue have also applied this

interpretation of R.C. 4112.01(B).

{¶ 14} The wording of the Ohio pregnancy-discrimination statute mirrors

its federal counterpart, including the phrase “treated the same,” which appears in

both Section 2000e(k), Title 42, U.S.Code, and R.C. 4112.01(B). Decisions of

federal courts provide guidance in interpretation of the Pregnancy Discrimination

Act. Plumbers & Steamfitters Joint Apprenticeship Committee v. Ohio Civ.

Rights Comm. (1981), 66 Ohio St.2d 192, 196, 20 O.O.3d 200, 421 N.E.2d 128.

{¶ 15} Federal courts agree that “the Pregnancy Discrimination Act does

not require preferential treatment for pregnant employees. Rather, it mandates

that employers treat pregnant employees the same as nonpregnant employees who

are similarly situated with respect to their ability to work.” (Emphasis sic.)

Tysinger v. Zanesville Police Dept. (C.A.6, 2006), 463 F.3d 569, 575. Accord

Mullet v. Wayne-Dalton Corp. (N.D.Ohio 2004), 338 F.Supp.2d 806, 811;

Armstrong v. Flowers Hosp., Inc. (C.A.11, 1994), 33 F.3d 1308, 1316-1317, and

cases cited therein.

{¶ 16} Ohio courts have reached the same conclusion. As stated by the

Tenth District Court of Appeals, “Ohio courts implicitly * * * and expressly * * *

recognize that an employer need not accommodate pregnant women to the extent

that such accommodation amounts to preferential treatment. Accordingly, to

prevail on her pregnancy discrimination claim, plaintiff must show that defendant

treated her differently because of her pregnancy.” Priest v. TFH-EB, Inc. (1998),

127 Ohio App.3d 159, 165-166, 711 N.E.2d 1070.

{¶ 17} Pataskala Oaks’ length-of-service requirements treat all employees

the same. Every employee must reach 12 months of employment before

becoming eligible for leave. In this sense, the policy is “pregnancy-blind.”

Reeves v. Swift Transp. Co. (C.A.6, 2006), 446 F.3d 637, 640-641. Thus, a

pregnant employee may be terminated for unauthorized absence just like any

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SUPREME COURT OF OHIO

other employee who has not yet met the minimum-length-of-service requirement

but takes leave based upon a similar inability to work. Unless there is other

evidence of discrimination or pretext, R.C. Chapter 4112 does not prohibit

termination of an employee affected by pregnancy under these circumstances.

{¶ 18} The Civil Rights Commission urges us to read the “treated the

same” clause in the second sentence of R.C. 4112.01(B) as a separate provision

with independent force and effect from the first sentence of the statute,

prohibiting termination “because of or on the basis of pregnancy.” The Civil

Rights Commission argues that the second sentence is a narrower application of

the general prohibition against firing employees because of pregnancy. We find

this argument unpersuasive.

{¶ 19} First, we do not agree with the premise that McFee was terminated

on the basis of pregnancy. Instead, she was let go for taking unauthorized leave

from her employment. The second sentence of R.C. 4112.01(B) is directly

applicable to this situation and directs that McFee must be treated the same for

purposes of leave eligibility as other employees who are similar in their ability or

inability to work. If McFee believes that the leave policy is merely a pretext for

termination based upon pregnancy, she could have asserted that claim under the

existing antidiscrimination framework of McDonnell Douglas.

{¶ 20} Second, the United States Supreme Court has held that the second

clause of the Federal Pregnancy Discrimination Act (the treated-the-same clause)

is an explanation and application of the first clause (the because-of-pregnancy

clause) to provide concrete examples of prohibited practices. See California Fed.

S. & L. Assn. v. Guerra (1987), 479 U.S. 272, 285, 107 S.Ct. 683, 93 L.Ed.2d

613, quoting Newport News Shipbuilding & Dry Dock Co. v. Equal Emp.

Opportunity Comm. (1983), 462 U.S. 669, 678, 103 S.Ct. 2622, 77 L.Ed. 2d 89,

fn. 14 (“ ‘The meaning of the first clause is not limited by the specific language in

the second clause, which explains the application of the general principle to

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January Term, 2010

women employees’ ”). It would be contrary to this interpretation of the federal

statute to hold that the first and second sentences of the state statute, which

mirrors the federal statute, serve different purposes. Although the scope of the

second sentence is narrower than that of the first sentence, both serve the same

goal—to ensure that employees who are pregnant are not discriminated against on

the basis of pregnancy. To hold otherwise would be to require that employers

treat pregnant employees more favorably than other employees. The statutes do

not support such a result. See, e.g., California Fed. S. & L. Assn. v. Guerra, 479

U.S. at 287, 107 S.Ct. 683, 93 L.Ed.2d 613 (“Congress * * * extensively

discussed * * * its intent not to require preferential treatment”) and Armstrong v.

Flowers Hosp., Inc., 33 F.3d 1308, 1317 (“Statements in the legislative history

make it clear that the [Pregnancy Discrimination Act] does not require employers

to extend any benefit to pregnant women that they do not already provide to other

disabled employees”).

B. Properly construed, Ohio Adm.Code 4112-5-05 does not prohibit

uniformly applied minimum-length-of-service requirements.

{¶ 21} Ohio Adm.Code 4112-5-05(G)(2), the administrative regulation at

issue, provides: “Where termination of employment of an employee who is

temporarily disabled due to pregnancy or a related medical condition is caused by

an employment policy under which insufficient or no maternity leave is available,

such termination shall constitute unlawful sex discrimination.”

{¶ 22} The court of appeals held that this provision requires, without

qualification, that an employer provide maternity leave, and because Pataskala

Oaks did not provide McFee a reasonable period of maternity leave, the leave

policy was direct evidence of sex discrimination. We disagree.

{¶ 23} Appellant and its amici argue that if Ohio Adm.Code 4112-5-

05(G)(2) does mandate that employers provide maternity leave to employees

regardless of whether the employees qualify for leave under the employer’s

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SUPREME COURT OF OHIO

uniform minimum-length-of-service leave policy, then the rule is unconstitutional,

because the General Assembly has the constitutional authority to require

employers to provide maternity leave, but the Civil Rights Commission does not.

{¶ 24} If an administrative rule exceeds the statutory authority established

by the General Assembly, the agency has usurped the legislative function, thereby

violating the separation of powers established in the Ohio Constitution. Burger

Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 384-385, 71 O.O.2d 366, 329

N.E.2d 693 (the General Assembly may not delegate lawmaking power). Rules

that exceed the authority of the agency will be held unconstitutional. Id. at 384.

{¶ 25} The General Assembly sets public policy, and administrative

agencies, when granted rulemaking power, “develop and administer” those

policies. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250,

2002-Ohio-4172, 773 N.E.2d 536, ¶ 41. An agency exceeds its grant of authority

when it creates rules that reflect a public policy not expressed in the governing

statute. Id. Consistent with that principle, R.C. 4112.04(A)(4) provides that the

Civil Rights Commission shall “[a]dopt, promulgate, amend, and rescind rules to

effectuate the provisions of this chapter and the policies and practice of the

commission in connection with this chapter.”

{¶ 26} Because R.C. 4112.02 and 4112.01 establish that employers must

treat employees affected by pregnancy the same as employees who are not

pregnant but who are similar in their ability or inability to work, the Civil Rights

Commission would unconstitutionally expand the public policy set by the

legislature if Ohio Adm.Code 4112-5-05 required preferential treatment for

employees affected by pregnancy as compared to the treatment of employees who

are not pregnant but who are similar in their ability or inability to work.

{¶ 27} Under the rules of statutory construction, if an ambiguous statute is

susceptible of two interpretations and one of the interpretations comports with the

Constitution, then that reading of the statute will prevail and the court will avoid

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January Term, 2010

striking the statute. E. Cleveland v. Evatt (1945), 145 Ohio St. 493, 496, 31 O.O.

167, 62 N.E.2d 325. We apply the rules of statutory construction to

administrative rules as well. See, e.g., State ex rel. Brilliant Elec. Sign Co. v.

Indus. Comm. (1979), 57 Ohio St.2d 51, 54, 11 O.O.3d 214, 386 N.E.2d 1107 (the

“ordinary meaning rule” of statutory construction applies equally to

administrative rules).

{¶ 28} Thus, a construction of an administrative rule that is consistent

with the public policy choices of the General Assembly preserves the rulemaking

role of the agency and avoids constitutional conflicts.

{¶ 29} As explained above, the General Assembly intended to ensure

equal treatment for employees affected by pregnancy, but not to impart greater

rights or preferential treatment to employees affected by pregnancy. The rules

promulgated by the Civil Rights Commission must be read, if possible, in a

manner that effectuates the purpose of the General Assembly in enacting the

statutes.

{¶ 30} Ohio Adm.Code 4112-5-05(G)(2) plainly prohibits termination of

an employee under a policy that provides insufficient leave for temporary

disability due to pregnancy or a related medical condition. Ohio Adm.Code

4112-5-05(G)(5)1 instructs that women shall not be penalized in the conditions of

their employment when they take time off for childbearing, if they are eligible to

do so. Additionally, (G)(5) provides that when an employee is entitled to

childbearing leave, that leave must be reasonable in duration.

1. {¶ a} Ohio Adm.Code 4112-5-05(G)(5) provides:

{¶ b} “Women shall not be penalized in their conditions of employment because they require

time away from work on account of childbearing. When, under the employer's leave policy the

female employee would qualify for leave, then childbearing must be considered by the employer

to be a justification for leave of absence for female employees for a reasonable period of time. For

example, if the female meets the equally applied minimum length of service requirements for

leave time, she must be granted a reasonable leave on account of childbearing. Conditions

applicable to her leave (other than its length) and to her return to employment shall be in

accordance with the employer's leave policy.”

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SUPREME COURT OF OHIO

{¶ 31} The tension between subsections (G)(2) and (G)(5) is apparent;

(G)(2) appears to indicate that a policy providing no leave is discriminatory, while

(G)(5) clearly contemplates that a uniform minimum-length-of-service

requirement for leave eligibility is permissible. If possible, we must resolve this

ambiguity in a manner that gives effect to both provisions. D.A.B.E., Inc. v.

Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773

N.E.2d 536, ¶ 19.

{¶ 32} Reading these rules in light of the statutory purpose, Ohio

Adm.Code 4112-5-05(G)(2) must mean that when an employee is otherwise

eligible for leave, the employer cannot lawfully terminate that employee for

violating a policy that provides no leave or insufficient leave for temporary

disability due to pregnancy or a related condition. Construed in this manner,

(G)(2) effectuates the intent of the General Assembly to prohibit discrimination

based upon pregnancy and to ensure equal treatment of employees affected by

pregnancy. California Fed. S. & L. Assn. v. Guerra, 479 U.S. at 287, 107 S.Ct.

683, 93 L.Ed.2d 613; Reeves v. Swift Trans. Co., Inc., 446 F.3d at 643.

{¶ 33} This interpretation of the rule harmonizes (G)(2) with (G)(5),

which specifies that when a woman qualifies for leave, the leave provided for

childbearing must be reasonable. Conversely, a holding that interpreted Ohio

Adm.Code 4112-5-05(G)(2) to require maternity leave regardless of whether the

pregnant employee satisfied the employer’s minimum-length-of-service

requirements would render meaningless the phrase in Ohio Adm.Code 4112-5-

05(G)(5) that “if the female meets the equally applied minimum length of service

requirements for leave time, she must be granted a reasonable leave on account of

childbearing.”

C. The burden-shifting framework of McDonnell Douglas applies in this case.

{¶ 34} The court of appeals held that Pataskala Oaks’ leave policy was

direct evidence of sex discrimination. “Direct evidence of discrimination is

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January Term, 2010

evidence that proves that discrimination has occurred without requiring further

inferences.” Reeves v. Swift Transp. Co., Inc., 446 F.3d at 640.

{¶ 35} As discussed above, an employer may maintain a uniform

minimum-length-of-service leave policy consistent with Ohio law. Pataskala

Oaks’ policy is “pregnancy-blind” in that it does not treat employees affected by

pregnancy differently from employees “not so affected but similar in their ability

or inability to work.” Reeves v. Swift Transp. Co., Inc., 446 F.3d at 640-641. An

employment policy that imposes a uniform minimum-length-of-service

requirement for leave eligibility with no exception for maternity leave is not direct

evidence of sex discrimination under R.C. Chapter 4112. Thus, the McDonnell

Douglas analysis should be applied in cases involving such a policy. Id.

{¶ 36} The parties agree that McFee was terminated because she took

leave from work even though she was not eligible for leave under Pataskala Oaks’

policy. McFee has not alleged any other basis for a finding of discrimination, nor

has she produced independent evidence that the proffered basis for the

termination was a pretext for discrimination. Accordingly, McFee has failed to

make a prima facie case of sex discrimination. The trial court properly dismissed

the case.

IV

{¶ 37} The judgment of the court of appeals is reversed.

Judgment reversed

and cause dismissed.

LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and LANZINGER, JJ.,

concur.

PFEIFER, J., dissents.

BROWN, C.J., not participating.

__________________

PFEIFER, J., dissenting.

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SUPREME COURT OF OHIO

{¶ 38} The facts of this case are such that an ordinary citizen would think,

“There ought to be a law against that.” Until today, there was.

{¶ 39} R.C. 4112.02(A) makes it unlawful for any employer “to discharge

without just cause” an employee because of his or her sex. R.C. 4112.01(B)

makes clear that the prohibition in R.C. 4112.02(A) includes discrimination and

discharge on the basis of pregnancy and pregnancy-related illness:

{¶ 40} “[T]he terms ‘because of sex’ and ‘on the basis of sex’ include, but

are not limited to, because of or on the basis of pregnancy, any illness arising out

of and occurring during the course of a pregnancy, childbirth, or related medical

conditions. 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.”

{¶ 41} McFee provided a doctor’s note to Pataskala Oaks indicating that

she had a pregnancy-related illness, pregnancy-related swelling, that rendered her

unable to continue her job duties until six weeks after she gave birth. Pataskala

Oaks says that it did not fire McFee because she was ill, but because she missed

work because she was ill. What did the General Assembly mean when it

protected women from discharge based upon pregnancy-related illness? Did it

intend women not to treat their illness, but instead to go to work ill? That they

should follow their doctor’s advice for bed rest by bringing their beds to their

place of employment? Does not the word “illness” connote missed work time?

{¶ 42} The Civil Rights Commission was perfectly in line with R.C.

4112.01(B) when it promulgated Ohio Adm.Code 4112-5-05(G), establishing

what constitutes pregnancy discrimination and including in that definition

protections for women whose employers had no maternity leave available.

McFee is protected under Ohio Adm.Code 4112-5-05(G)(2):

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January Term, 2010

{¶ 43} “Where termination of employment of an employee who is

temporarily disabled due to pregnancy or a related medical condition is caused by

an employment policy under which insufficient or no maternity leave is available,

such termination shall constitute unlawful sex discrimination.”

{¶ 44} Pursuant to the Pataskala Oaks employment policy, there was no

maternity leave available to McFee. Therefore, her termination constituted direct

evidence of unlawful sex discrimination.

{¶ 45} It should be noted that McFee was not asking to be paid for her

time off, and the law does not require her to be paid. The ironic postscript to this

whole matter is that Pataskala Oaks called McFee three weeks after firing her and

offered her a job. The burden of allowing McFee unpaid leave to deal with the

medical effects of her pregnancy had turned out to be not such a burden. Now, as

McFee’s child likely is graduating from kindergarten, Pataskala Oaks is finally

emerging from litigation. It fought the statutorily mandated decency contained in

R.C. 4112.01(B) and 4112.02(A) and won. Who is better for it?

__________________

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,

Alexandra T. Schimmer, Chief Deputy Solicitor General, Stephen P. Carney and

Emily S. Schlesinger, Deputy Solicitors, and Patrick M. Dull, Assistant Attorney

General, for appellee.

Dinsmore & Shohl, L.L.P., Jan E. Hensel, and Patricia Gavigan, for

appellant.

Gordillo & Gordillo, L.L.C., and Gregory A. Gordillo, urging affirmance

for amici curiae Ohio Employment Lawyers Association, Ohio Poverty Law

Center, and Ohio NOW Legal Defense and Education Fund.

Porter, Wright, Morris & Arthur, L.L.P., and Jeffrey J. Weber, urging

reversal for amicus curiae National Federation of Independent Business Small

Business Legal Center.

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Rolf & Goffman Co., L.P.A., Carol Rolf, and Robert C. Pivonka, urging

reversal for amicus curiae Ohio Health Care Association.

Vorys, Sater, Seymour & Pease, L.L.P., Thomas M. Tarpy, and Michael

C. Griffaton, urging reversal for amicus curiae Ohio Management Lawyers

Association.

______________________

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