Jennifer Byers, complainant, filed this charge on July 21, 1997, alleging employment discrimination on the basis of pregnancy. She claimed that while she was out on maternity leave after January 31, 1997, respondent failed to keep his promise to pay her, and then replaced her with another employee. When complainant was ready to come back to work, respondent allegedly offered her only part-time hours, instead of her former, full-time position.

Respondent denied discriminating against complainant. The Commission conducted an investigation, and Commissioner Evelyn Hubal found Probable Cause to credit the allegation that respondent did not return complainant to her former position. Conciliation having failed, a hearing was held in this matter on July 20, 1999.

At the hearing, complainant and her sister, Melanie Byers, testified on complainant's behalf. The respondent called the following witnesses: Joseph St. Cyr, owner and president of Joe's Air Express, Inc.; Robert Rheaume, Jr., owner of Queen City Air; Cindy L. Gratton, operations manager of Queen City Air; Debbie Wilber, operations manager of Joe's Air Express; Deborah Norton, employee of respondent; and Rosalie Hodgdon, employee of respondent.

I. Factual Background

Joseph St. Cyr is the president and sole shareholder of Joe's Air Express, Inc., a corporation located on Holt Avenue in Manchester, NH. The company operates out of a building housing other package delivery companies, including Queen City Air. Queen City Air is owned by Robert Rheaume, and managed by Cindy Gratton.

Joe's Air Express, Inc. was managed, during the time in question, by Debbie Wilber, who lived with St. Cyr. St. Cyr came in each morning from approximately 6:30 AM until 8:30 AM, to review the day's work, but was otherwise absent. Wilber took a leave of absence for approximately two months some time during the late summer or early fall of 1996, but had returned to work after that. She continued to call in payroll while on leave.

Complainant was hired by respondent in July 1995, when she was 22 years old. She worked first as a part-time driver, then became an evening dispatcher, becoming a full-time employee sometime in early 1996. In September 1996, complainant became day dispatcher and received a $50.00 wage increase, bringing her salary to $450.00 per week. The parties dispute whether complainant was a supervisor/dispatcher, or just a dispatcher.

On January 31, 1997, complainant worked for the day and then left and went to the hospital, where her third child was born. Prior to going out on maternity leave, complainant had undertaken to arrange coverage of her position during the time she would be out. She asked Adam Chapman, who was then the evening dispatcher, to cover her daytime duties, and asked her sister Melanie to cover Chapman's position temporarily. Melanie Byers had been employed by Joe's since August 1995.

When Wilber saw complainant training Chapman and learned of complainant's plan for covering her position, Wilber stopped the training. Wilber asked a driver, Deborah Norton, to cover complainant's position on a temporary basis when complainant went out on maternity leave. Norton, who had worked for respondent since 1992, had given her two-week notice sometime after Christmas, but agreed to stay on and learn to do dispatching.

Complainant alleges that shortly after her child was born, Wilber introduced Norton as the "new supervisor." Melanie Byers heard this and repeated it to complainant. Complainant called St. Cyr and told him she was concerned. St. Cyr allegedly told complainant not to believe everything she heard, and that her job was there for her. St. Cyr denies that this conversation took place.

Complainant alleges further that several weeks after her son was born, but prior to February 28, she brought her baby to the Holt Avenue location to show Cindy Gratton. She and Cindy talked, and during the conversation, Gratton put her fingers to her lips, said "Shh" and wrote complainant a note (Complainant's Exhibit #l) . The note, which is undated, says: "You have to be hired back @ same level! -- Against law! Suit! Deb. W. introduced Debbie N. to Denise as new supervisor 2 days ago." Gratton admits writing the note but has no recollection of when or why the note was written, to whom, or what the words mean.

Complainant alleges that on February 28, she called St. Cyr to inquire about: coming back to work. She had taken only four weeks leave but needed the money. She states that St. Cyr stuttered and told her he had filled her position. St. Cyr allegedly offered her 15-20 hours in a "floater" position. (St. Cyr denies making these statements.)

Complainant alleges that at that point she contacted Gratton about the possibility of working for Queen City Air. Gratton hired her and she started work on March 17, 1997, at a rate of $9.00 per hour. Gratton gave her the name of an attorney to consult. Complainant continued to work for Gratton until July 3, 1997, when she quit. Complainant testified that she quit because word had gotten out that she was contemplating filing a discrimination charge against St. Cyr, and she could not handle the way people in the building treated her.

II. Legal Standards

Under RSA 354-A:7, it is an unlawful discriminatory practice for any employer to refuse to hire or employ, or to bar or to discharge from employment, any individual because of that individual's sex. RSA 354-A:7, VI states: "For purposes of this chapter, the word "sex"^ includes pregnancy and medical conditions which result from pregnancy."

RSA 354-A:7, VI, requires employers to permit female employees to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions. When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by her employer unless business necessity makes this impossible or unreasonable.¹

The complainant may prevail in her discrimination claim by proving a violation of law through either direct or circumstantial evidence. If the complainant produces direct evidence, the employer must demonstrate by a preponderance of the evidence that the adverse employment decision would have been the same even if discrimination had played no role. See: Smith v. F.W. Morse & Co., Inc., 76 F.3d 413 (1st Cir. 1996), 69 FEP Cases 1687.

Presentation of circumstantial evidence requires the application of the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The complainant must show:

(1) that she is a member of a protected class;

(2) that her job performance has been satisfactory, but

(3) her employer nonetheless dismissed her from her position (failed to return her to her pre-maternity position or offer her a comparable position), while

(4) continuing to have her duties performed by a comparably qualified person.

If the complainant can establish the elements of the prima facie case, a rebuttable presumption that discrimination caused the adverse employment action is created. The burden of production is then shifted to the employer to articulate a legitimate, nondiscriminatory defense to the action. If the employer does so, the presumption of discrimination disappears and the complainant must then prove that the stated reason is a pretext for discrimination.

To prevail at a public hearing, the complainant shall prove his or her case by a preponderance of the evidence. Hum 209.11

III. Analysis

It is undisputed that complainant was pregnant and went out on maternity leave on January 31, 1997, after delivering her third child. Therefore, she is a member of a protected category.

Wilber and St. Cyr both testified that complainant was a good employee while she was at Joe's Air Express. Wilber stated that she saw "take charge" qualities in complainant and found her very handy. Complainant received $8.50 per hour as a full-time dispatcher, and was then offered $450.00 per week in the fail of 1996 because she was going to work on Saturdays in order to relieve Wilber.

It is on the third and fourth elements of complainant's prima facie case that the evidence is contradictory. The complainant alleges that she was the supervisor/dispatcher, promoted to take Wilber's place when Wilber went on leave. Wilber allegedly wanted her old job back and used complainant's maternity leave as a time to get rid of her, replacing her with someone with no dispatching experience (Norton).

Respondent asserts, however, that it never prevented complainant from coming back to her old position. Respondent alleges that complainant did not like Wilber and explored the possibility of working for Queen City Air, because she hoped to make more money there. Respondent alleges that it replaced complainant temporarily with Norton, but continued to hold complainant's position for her and would have returned her to it if she had not quit. According to respondent, complainant was not a supervisor, and Wilber was back from her leave well before these events took place.

The Commission finds that complainant has not met her burden of proof.

Complainant testified to two conversations with Joe St. Cyr, as noted above. In the first, St. Cyr allegedly told complainant her job was waiting for her and not to believe everything she heard. In the second, on February 28, St. Cyr told complainant that her position was filled and that all he could offer was a part-time position. The only witness called to support complainant's version of events was her sister Melanie. Although present in the room during the second conversation, Melanie Byers obviously could not hear what St. Cyr said. She could only testify to what her sister told her when she got off the phone.

The remaining witnesses, St. Cyr, Wilber, Norton, Rheaume and Gratton, all contradict complainant's allegations. St. Cyr denies that the two conversations took place as alleged. He states that he was paged by complainant on the 28th of February and returned her call, already having learned from Rheaume and Gratton that complainant wanted to work for Queen City. During that conversation, complainant told St. Cyr that she wanted to leave him and go to Queen City to "better herself." Although he did not know what position complainant was going to at Queen City, St. Cyr did know that Gratton, the manager, was often working 70 hours per week and needed help.

All the witnesses testified that there was a "gentlemen's agreement" or courtesy, in effect among the express businesses that each would get the other's permission before hiring any of the other's employees. Rheaume and Gratton testified that complainant had contacted Gratton about working for Queen City, and that they in turn had contacted St. Cyr to make sure he did not object.

Gratton testified that she was working long hours and needed help in February 1997. She stated that complainant approached her about work, mentioning that she had to come back for financial reasons and did not want to go back to Joe's because of Wilber. Gratton had a part-time morning driving route available and afternoon hours for a dispatcher, and offered both to complainant. Complainant asked if Queen City would match her salary at Joe's. Gratton said Queen City would not match it, but Gratton explained that overtime at the rate of time and a half was available and complainant's earnings would be the same as at Joe's if she worked the hours Gratton had available.

St. Cyr, Wilber, Norton, and Hodgdon all testified that complainant did not occupy Wilber's supervisory position. The evidence showed that important personnel decisions and other operational matters were decided by Wilber during the period Byers claimed she was supervisor. Wilber was back at work by late summer or early fall 1996, around the time complainant received a raise to $450.00 per week. This evidence seriously undermines complainant's argument that respondent's motivation for terminating her employment was Wilber's desire to assume her former position of supervisor. Norton testified that she heard rumors about complainant's becoming supervisor in September 1996. She asked St. Cyr about the rumor and St. Cyr told her complainant was not her supervisor.

Norton testified that there was a meeting at which she had been introduced as the dispatcher after complainant went on maternity leave. However, Norton stated that she was not introduced as a "supervisor" or as a permanent replacement for complainant. She stated that it was her understanding that she was a temporary replacement for complainant, who would return from maternity leave. Norton, who had burnt out as a driver, agreed to stay on and learn dispatching with the idea that she might be able to find work with one of the other companies once complainant came back. She continued in the dispatcher position only when complainant did not return to her position.

While Norton did not have experience as a dispatcher, she had worked for respondent longer than complainant, and was trained by Wilber. Moreover, the position was intended only to be temporary.

Complainant testified that St. Cyr made remarks about her marital status after learning that she was pregnant, and that these statements show bias. St. Cyr denies making the remarks alleged, and complainant's witness was unable to corroborate them. The remaining witnesses testified that they had never heard St. Cyr make derogatory comments about unmarried mothers. Furthermore, complainant admitted that St. Cyr lent her money for a security deposit, had lent her money for her utility bill, and had offered her an apartment when she was looking for one. She stated she had a good relationship with him and that he was a "good boss." Hodgdon testified that she went out on leave in November 1996 because of pregnancy-related problems, and that she returned to her former position with respondent without difficulty. Considering all the evidence, the Commission is not able to credit these allegations or find that, even if they occurred, they are relevant.

Complainant's Exhibit #l has not clarified matters for the Commission, as complainant may have hoped. The witness who wrote this note, Gratton, offered no testimony which helped explain its contents or the time frame in which it was drafted. While complainant testified that Gratton gave her the name of an attorney to consult with, Gratton testified that complainant was at that time threatened with some sort of action by her boyfriend, the father of her children, and that she gave her the attorney's name in that context, not in the context of discussions about discrimination.

IV. Conclusion

Applying the McDonnell Douglas analysis, the Commission finds that the complainant has not met her burden of proof. The evidence is insufficient to show that respondent terminated complainant, or refused her a comparable position when she was ready to return after maternity leave. The testimony of respondent's witnesses, including Gratton, was consistent that complainant did not get along with Wilber and left respondent's employ on her own initiative. The testimony of complainant and her one witness was conclusory on many points, and was contradicted by the testimony of respondent's witnesses.

Accordingly, the Commission rules that the facts of this case do not support a finding that discrimination occurred.

The Commission denies respondent's Motion to Dismiss Joseph A. St. Cyr, as a party. The Commission on its own motion dismisses Airborne Freight Corporation, d/b/a/ Airborne Express, as there is no evidence in the record that Airborne Freight ever received notice of the charge.

All Concurred.

_________________________
^1. The issue whether respondent discriminated against complainant by not providing paid maternity leave, as allegedly promised, was not an issue for hearing. Investigating Commissioner Hubal found no probable cause on this issue. The evidence showed that respondent did not provide paid leave for any employees with short term disabilities. Therefore, respondent was not under an obligation to do so for pregnant employees. NH RSA 354-A:7, VI (c)

Complainant's Proposed Findings of Fact

1. Neither granted nor denied
2. Granted
3. Granted, but add the word "initially" after "driver"
4. Granted, but delete word "sole" and delete everything after semi-colon
5. Granted
6. Granted
7. Denied
8. Denied
9. Granted
10. Denied
11. Neither granted nor denied; irrelevant
12. Neither granted nor denied; irrelevant
13. Granted, but strike first sentence
14. Denied
15. Denied
16. Granted
17. Granted
18. Granted
19. Granted
20. Granted
21. Granted
22. Denied
23. Denied
24. Granted, but strike "in mid-February"
25. Granted
26. Granted
27. Granted, but strike second sentence
28. Denied
29. Granted as to fact that a conversation took place
30. Denied
31. Denied
32. Granted
33. Granted
34. Granted, but replace word "policy" with "understanding" and replace "approval" with "clearance."
35. Granted
36. Granted, but strike "occasional"
37. Granted
38. Granted, but strike everything after "Manchester"
39. Granted, but change second sentence to read: "She contacted present counsel and met with him."
40. Granted
41- Granted, but insert period (.) after "soured" and delete rest of sentence
42. Denied
43. Granted
44. Granted
45. Denied

Complainant's Proposed Rulings of Law

A. Granted
B. Granted
C. Granted
D. Granted
E. Granted
F. Granted
G. Denied
H. Denied
I. Denied
J. Denied
K. Denied
L. Granted
M. Granted
N. Denied
0. Granted
P. Granted
Q. Granted
R. Denied
S. Denied
T. Denied
U. Denied
V. Denied
W. Denied
X. Granted
Y. Denied
Z. Denied
AA. Denied
BB. Granted as to interest rates
CC. Denied

Respondent's Requests for Findings of Fact

1. Granted
2. Granted
3. Granted
4. Granted, but only as to Queen City & Joe's Air Express
5. Granted
6. Granted
7. Granted, but strike "etc."
8. Granted
9. Granted to 1995
10. Granted
11. Granted
12. Granted
13. Granted
14. Granted
15. Granted
16. Granted, but strike "up to 12 weeks"
17. Granted
18. Granted
19. Granted
20. Granted
21. Granted
22. Granted, but replace "On February 17, 1997" with "In February 1997"
23. Granted, but as to 4 1/2 years, not 6 1/2
24. Granted, but replace first sentence with the following: "In late December 1996, Debra Norton advised Debbie Wilber of her decision to leave the employ of Joe's Air Express, Inc."
25. Granted, but delete "Upon being advised of Debra Norton's decision"
26. Granted
27. Granted
28. Granted, but add "and dispatcher" after "driver"
29. Granted
30. Granted, but delete "also received a telephone call from Robert Rheaume," and replace with "also talked with Rheaume on the dock"
31. Granted
32. Denied
33. Granted
34. Granted, replacing "her" with "complainant"
35. Granted, replacing "trash" with "barrel"
36. Granted
37. Granted
38. Granted, but change date to July 3, 1997.
39. Granted, but strike "either" and "Energy North"
40. Granted
41. Granted
42. Denied
43. Granted
44. Denied
45. Granted, as to last sentence only
46. Granted
47. Granted, but place period (.) after second "Byers" and delete remainder of sentence
48. Neither granted nor denied. Complainant did not meet her burden of proof
49. Denied
50. Denied
51. Neither granted nor denied. The Commission finds only that complainant has not shown that respondent's reasons are a pretext for discrimination.

Respondent's Requests for Rulings of Law

1. Granted, but add the protected category of sexual orientation
2. Granted
3. Granted, but add the protected category of sexual orientation
4. Granted
5. Granted
6. Granted
7. Granted, that this is what the law states.

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