PollyAnn Martineau
V.
Hawk Transportation, Inc. and
Condor Distribution Services

ES(P) 4694-93

16D920180

DECISION OF THE COMMISSION

PollyAnn Nielsen Martineau was hired by Condor Distribution Services ('Condor') in July 1990 as a clerical employee. Condor was a business providing courier services to film processors. Condor's headquarters were in Londonderry, New Hampshire. The couriers picked up film from commercial outlets such as camera and drug stores in various New England states, delivered the film to processors, and then returned the developed and printed film to those vendors. Condor rented space for the sorting and routing of film from one of these processors, Kodalux of South Boston, Massachusetts.

Condor was owned and operated by Edward L. Smith. In 1991-92, the time in question, it had over 500 accounts and approximately 30 drivers. Pick-up locations were started and stopped on a weekly basis, with as many as 50 changes being made to the route lists in some weeks.

Located at the same Londonderry office as Condor was another business, owned and operated by Smith: Hawk Transportation Services, Inc. ('Hawk'), a bulk liquid transporter. Hawk had no administrative personnel of its own, and it relied on some of the office personnel of Condor to do its office work. Gerald Davichik, for example, testified that he was the general manager for both Condor and Hawk in 1991 and 1992, and that to a certain point he was responsible, among other duties, for the benefits and personnel matters at both companies.

In addition to her clerical duties at Condor, complainant answered the phone for Hawk, taking messages from drivers for Michael Austin, her supervisor, and doing whatever else he asked her to do.

Within a year of her employment, complainant was promoted to assistant manager of Condor. She was responsible for placing new stops on couriers' routes, for removing stops, for overseeing film sorting in the morning at the South Boston office, and for billing and accounts receivable. Complainant went to the South Boston office in the morning two to three times per week. At some point, complainant became an employee of Hawk, although her duties still included the work she had been doing as assistant manager of Condor. She generally worked in excess of 8 hours per day.

In February 1992 complainant began to experience repeated illness. She was generally able to get to work, but sometimes would be ill at work. On February 4, 1992, Laurie Stoddard, a Hawk accounting office employee, went out on maternity leave. Mrs. Stoddard had not been ill during her pregnancy. She was out for 8 1/2 weeks after the delivery of her child, taking some earned vacation pay for part of her leave, the rest being unpaid leave.

Hawk/Condor had no written policy on leave relating to temporary disabilities due to pregnancy, childbirth, or related conditions. Its practice, however, as stated by Smith in response to the charge, and confirmed by testimony of witnesses at the hearing, was that female employees who became pregnant, and who as a result needed to take time off, were allowed to do so on an unpaid leave basis. If a female employee had vacation time available, she could use that for maternity leave. In contrast, the companies' practice with regard to other temporary disabilities was to pay employees who were out on leave because of them. For example, testimony confirmed that an employee named Yvette was out for at least four weeks' paid leave because of a back problem. Smith's view was that pregnancy was a choice a woman made, while other temporary disabilities were accidental.

While Stoddard was out, complainant covered Stoddard's duties: payables, receivables, and opening drivers' envelopes. During that period, complainant's hours of work increased to 10-13 hours per day. On March 20, 1992, however, complainant learned that she was pregnant. She informed her employers of this fact and cut her hours back to the hours she had been working prior to Stoddard's leave. A female driver was brought in to provide additional support in the office.

Unfortunately, complainant's health condition worsened. She had severe nausea and vomiting caused by her pregnancy. The cigarette smoking of Davichik in the office made complainant even sicker. When she asked Davichik to stop smoking in the office, he refused. When complainant asked Smith for help with this problem, which complainant's doctor had told her was making her sicker, Smith refused to get involved. Smith said that Davichik's "bad habit" predated complainant's employment and that she had known Davichik smoked when she came to work for condor.

In April 1992 complainant was hospitalized 3 times and was absent from work several other days because of severe dehydration, and other effects of the nausea and vomiting caused by her pregnancy. On one occasion she had a bad reaction to medication given to her by her doctor to control the problem. Complainant was discharged from the hospital on April 30 in the afternoon. Her doctor's note dated May 1, indicated that she would be able to return to work on May 7, 1992.

Complainant called Nancy Cormier, the office manager of Hawk, on Monday, May 4. She informed Cormier that she felt better, had a doctor's appointment May 6, and hoped to be back to work after that, because the medication she was being given now seemed to be working. Cormier indicated that they needed to get someone in the office to do the work. Complainant stated that she would be able to come to work as soon as her doctor cleared her, which she expected would be May 6. Cormier asked complainant to come in and continue the discussion regarding her work status on Thursday after her doctor's appointment.

On May 5, however, Cormier called complainant at the end of the day and informed her that the decision had been made to hire someone to take over Condor Distribution Services (i.e. replace complainant). Complainant was told, among other things, that if she were allowed to come back to work, the respondent wouldn't be sure if she was going to be in every day, that they couldn't depend on her. Complainant asked whether there was another less important clerical position she could take if respondent felt this way and was told that this would be impossible, because Complainant had complained about the cigarette smoke of Davichik in that area of the facility.

Complainant filed a charge of pregnancy discrimination against Hawk on July 10, 1992. The charge was amended on November 29, 1994, to name Condor as an additional respondent.

In response to the charge of discrimination, respondent alleges that complainant was fired for poor work performance, specifically that complainant failed to perform her duties in a proper and business-like manner, that her contact with two of their customers resulted in their notifying Smith that they did not want to have any contact with complainant, and that complainant had an absenteeism problem. Respondent alleged that complainant's performance problems predated her pregnancy and had been the subject of a number of meetings.

Legal Analysis

RSA 354-A:7, IV(a) provides that, for the purposes of this chapter, the word "sex" includes pregnancy and medical conditionswhich result from pregnancy. It is an unlawful discriminatory practice for an employer, because of the sex of any individual, to refuse to hire or employ or to bar or discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. RSA 354-A:7, I.

Moreover, "an employer shall permit a female employee 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 the employer unless business necessity makes this impossible or unreasonable." RSA 354-A:7, IV(b). Additionally, "for all other employment related purposes, including receipt of benefits under fringe benefit programs, pregnancy, childbirth, and related medical conditions shall be considered temporary disabilities, and a female employee affected by pregnancy, childbirth or related medical conditions shall be treated in the same manner as any employee affected by any other temporary disability. RSA 354-A:7, IV(c). (emphasis added)

Title VII of the Civil Rights Act of 1964, as amended, also prohibits discrimination based on pregnancy:

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. 42 U.S.C. Section 2000e(k).

Discussion

The evidence, both written and from witnesses, is uncontroverted on the issue of respondent's practice with regard to disability leave resulting from pregnancy or childbirth. Respondent's practice of providing paid leave for those with "accidental" medical disabilities, but to require pregnant women to use earned vacation and then to take unpaid leave, is illegal. The Commission also notes that as a result of his lack of awareness of the law, respondent failed to inform his employees of their rights (Testimony, Stoddard).

Respondent's view is that even if his practice was illegal (and it is not clear whether Smith understands or concedes that point), he never applied that policy to complainant. In support of his argument, respondent points to his having paid complainant while she was out sick. Moreover, respondent argues that complainant was terminated for poor performance, not because she was pregnant.

The evidence, however, supports the Commission's view that respondent terminated complainant while she was out due to temporary disabilities due to pregnancy, that respondent refused to return complainant to her job or a comparable position when it was clear that she would be able to return to work on or about May 6 or 7, and that had complainant not been pregnant, respondent would not have terminated her employment in May 1992.

Respondent asserted that complainant was often absent or tardy without notification. However, respondent was unable to be specific about dates of absence. Cormier's note to complainant's personnel file that she drove her home from work on March 23 is probably not accurate. Although complainant kept attendance records on drivers, no attendance records were produced for complainant showing the dates of alleged attendance problems and witness testimony supports a finding that attendance records were not generally kept on office personnel. The documents relating to complainant's attendance were from after she became pregnant. Stoddard testified that she complained to Cormier about complainant's repeated tardiness while Cormier was on vacation in the fall of 1991, however Stoddard admitted that she did not know whether complainant had gone to the South Boston office on those mornings when she was allegedly late. The evidence was clear that during the period of complainant's illness due to her pregnancy, complainant kept her employer notified.

Moreover, Smith undercut his own position with regard to attendance, and, more importantly, contradicted that of Cormier, by testifying that complainant's absence while she was pregnant did not bother him, that he was "complacent on that issue," and that if somebody did not come in - it was not a concern. Smith indicated that he did not "dock people if they came in late or went to the beach." Cormier testified that they had to get somebody in to replace complainant, to do her work; Smith testified that he didn't hire anyone soon to replace Polly - that Davichik or Austin had done her work.

Complainant was in and out of work with the severe medical difficulties resulting from her pregnancy. At no time was leave discussed with her. The reasonable thing for respondent to do would have been to discuss a temporary leave of absence, if it appeared that the disruption allegedly caused by complainant's absences was going to continue. Complainant was on medical leave, and had just informed her employer that she would probably be released to come back to work in a couple of days, when her employer terminated her, citing the fact that respondent would never know whether complainant was going to be in (a clear reference to absences due to illness due to pregnancy.)

There was insufficient credible and non-contradictory evidence to support a finding that complainant had an attendance or tardiness problem which led to her termination. There was ample evidence that complainant's absences in April and May due to her pregnancy related disabilities did bother her employer, and led to her termination. Respondent failed to produce evidence of business necessity making it unreasonable or impossible to return complainant to her position or a comparable one when she was obviously ready to return to work.

Respondent says that other performance problems contributed to complainant's termination, however respondent kept no disciplinary records on complainant. Complainant offered a Condor Employee Warning form (Complainant's Exhibit #11) as evidence that the company did keep written disciplinary records. Davichik testified that he created Exhibit #11 to use for Hawk drivers, for corrective action and to "cover our butts." The implication of Davichik's testimony was that the form was something required to satisfy certain governmental agencies. He stated that the company was a small one and that no written warnings were used on office personnel. Most significant for the Commission is the fact that notes regarding performance problems were created after complainant became ill due to pregnancy.

Other performance problems were cited as leading to complainant's termination. Specifically, complainant allegedly offended Robert Crisafulli, who was in charge of a Kodak processing plant in South Boston, made mistakes with a Purity Supreme stop, offended someone on the Hercules account by forgetting to give messages to Austin, did not keep vehicle identification lists up to date, failed to keep reports on "late loads" up to date for a customer, and failed to deliver mail to the Manchester post office as directed in January 1992. Complainant testified that she thought she had a good relationship with Smith, went to lunch with him, and had never heard any of the complaints which later appeared in respondent's answer.

Complainant testified that she went to the Londonderry Post office after work on the day in question in January 1992 because the roads were jammed with traffic resulting from an accident on I93. Complainant testified that she did not know what was in the mail other than tax returns. Cormier, respondent's principle witness with regard to the mail issue, was not entirely credible because her memory was poor.

Crisafulli was, and is, employed by Kodak. The Condor sorting center was in the Kodak facility building in South Boston. Kodak contracted with Condor to deliver film for Crisafulli's processing center. Crisafulli stated that complainant offended him by attempting to record a meeting which he was having with Davichik and by not keeping accurate "stop/start lists" resulting in inaccurate billings and failure to pick up film. Complainant testified that she was told to record the meeting by Smith and that when Davichik told her to stop, she did. Davichik stated that he was flabbergasted by complainant's trying to record the meeting. The Commission obviously did not hear the full story with regard to this meeting and is unable to determine what happened or why.

From the testimony, it appears that numerous changes were being made to courier routes, and that Crisafulli had had those problems with complainant's predecessor. Crisafulli and complainant did not get along, apparently due in some part to complainant's having felt pressured to date Crisafulli on one occasion, and having told Crisafulli that if he didn't like something she did or said, he did not have to come into the rented Condor space in the Kodalux facility. It was apparent to the Commission that Crisafulli traveled to the hearing along with respondent's other witnesses, and was not an entirely impartial witness.

Condor had lost the Purity Supreme account a first time prior to complainant's being hired. Complainant did leave the corporate headquarters off the courier route when Condor regained the account sometime during Stoddard's maternity leave (February-March 1992). Complainant alleges that she was to prepare the list, another employee was to type it, and that Davichik was to check the list. Davichik confirmed that he was to check the list. Smith testified that he was asked by Purity Supreme to give the account his "personal attention." The Purity Supreme headquarters stop was omitted twice, however Davichik was not disciplined with regard to his failure to check the listing.

There was little actual evidence regarding the seriousness of the mistake regarding Purity Supreme. Smith implied that Condor closed several months after losing the Purity Supreme account, which was lost within a couple of months of complainant's mistake. However, Cormier testified that Condor was still in business when she retired at the end of October 1992. No evidence was offered as to how the loss of one recently acquired account, even a large one, could have caused the demise of Condor (as Smith implied), if Condor was in good shape.

With regard to Hercules, testimony was scant. Complainant stated that she continued to deal with Hercules, in spite of alleged refusal to deal with her. No one contradicted this testimony.

Austin did not testify (as to whether he was or was not receiving customer messages from complainant.)

Testimony regarding the vehicle identification lists which Smith allegedly wanted each day, was also puzzling. It appears that respondent had numerous vehicles on the road each day, some of them leased and assigned to specific drivers. Respondent was having problems with vehicle breakdowns, resulting in some vehicles being in the shop, and also with drivers abandoning vehicles or swapping vehicles with other drivers. No evidence was offered as to other, more reasonable, steps Smith was taking to solve these problems, besides demanding a daily listing of vehicles from complainant. on top of complainant's other duties during the time in question, the daily listing appeared almost impossible to accurately prepare.

No employee is perfect. The Commission recognized that complainant may well have been having some problems in her performance. It appeared that in February through April 1992, those problems may well have been caused in part by complainant's illness and the long hours she worked, covering her own duties and those of another employee (at least until the latter part of March.) The evidence as a whole however, simply did not convince the Commissioners that those problems were entirely complainant's fault (for example, the vehicle lists, or the loss of the Purity Supreme account), or, more importantly, that the alleged problems were what really motivated respondent to terminate complainant in May 1992. Testimony was contradictory as to the timeframe of some of the alleged problems, leading the Commission to question their relevancy. The seriousness of other alleged problems was questionable (for example, the customers who refused to deal with complainant apparently went on doing so.)

The evidence as a whole did point, however, to a discriminatory view of pregnant employees, shown in respondent's pregnancy and maternity disability practice. The Commission concludes that respondent was motivated by this discriminatory attitude because respondent never discussed leave with complainant when she was obviously ill due to her pregnancy, Cormier said they needed someone to do complainant's work, and Cormier terminated complainant's employment, (i.e. refused to allow her to come back to work when she was ready to do so), citing the need to have someone they could depend on. Having never documented disciplinary problems such as attendance before, respondent began keeping notes of attendance issues, once it became clear complainant was having attendance problems due to her pregnancy. Respondent's alleged concern with attendance and the need to get someone in to do complainant's work was contradicted by Smith's own testimony. The Commission finds that the attendance and tardiness issue is a pretext.

Conclusion

The Commission finds that Hawk Transportation, Inc. and Condor Distribution Services discriminated against PollyAnn Nielsen Martineau based on her sex, female, pregnancy in violation of RSA 354-A:7, VI and 42 U.S.C. Section 2000e(k) when they terminated her employment because of a pregnancy-related disability.

Requests for Findings of Fact and Rulings of Law

The parties submitted Requests for Findings of Fact and Rulings of Law. The commission finds and rules as follows:

Complainant's Requests

Findings of Fact:

1. Granted

2. granted

3. granted, but the commission finds that complainant generally worked in excess of 8 hours per day and increased her hours after Stoddard went on leave

4. granted, but the Commission finds that complainant cut her hours back to the hours she had been working prior to Stoddard's leave

5. granted, but the commission does not find that complainant notified Austin

6. neither granted nor denied

7. granted

8. granted

9. there was no request #9

10. granted

11. granted

12. granted

13. granted, through the phrase "but never paid leave for pregnancy." The Commission deletes all language after that phrase.

14. denied

15. granted

16. granted

17. granted

18. granted, as to the first sentence. The Commission revises the second sentence and grants it as follows: "There were no written criticisms of her work in any file kept by the company."

19. granted, but the commission changes the word "policy" to "practice."

20. denied


Rulings of Law:

1. denied

2. granted

3. granted, but the commission removed the words "codifying Hum 402.03(h)"

4. granted

5. granted, but the Commission changes said finding to read: "Respondent's practice with regard to pregnancy-related disabilities was illegal in that it treated such disabilities differently than it treated other short-term medical disabilities."

6.granted

7.granted

8. granted, but the Commission changes said finding to read: "If a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant must prove that it would have made the same decision even if it had not allowed gender to play such a role. The complainant is not required to identify the precise causal role played by legitimate and illegitimate motivation in the employment decision she challenges. Price Waterhouse, supra. 109 S.Ct. at 1791.11

9. granted

10. granted

11. granted

12. granted

13. granted

14. neither granted nor denied, as the Commission declines to award compensatory damages in this case.

15. granted

16. granted

17. granted, but the commission awards interest through the date of the hearing, with the result that the total amount of interest is $7595.64, and the total amount of lost pay awarded, including interest is therefore $34,327.13.

18. denied

19. denied.


Respondent's Requests


Findings of Fact:

1. granted

2.denied

3. granted

4. granted

5. granted, but the commission changes said finding to read: "Hawk Transportation has an office where the complainant worked with, at any one time, six to seven other people."

6. granted

7. granted, but the Commission finds that complainant did work for Condor Distribution Services at the same time as she worked for Hawk

8. granted

9. granted, as to the fact that this was Davichik's testimony

10. granted, as to the fact that this was Davichik's testimony

11. granted, as to the fact that this was testimony offered at the hearing

12. granted, but the Commission grants only the first three sentences of request #12. The remaining sentences are denied

13. granted, as to the fact that Davichik testified to these matters. Austin did not testify.

14. granted, but the Commission deletes the phrase "which would cause confusion and stress for other members of the office" from the second sentence of request #14

15. granted as to the fact that the first two sentences reflect testimony offered at the hearing. The Commission denies the remaining sentences in request # 15.

16. denied

17. denied

18. granted

19. denied


Rulings of Law:

20. granted, but the Commission changes the second sentence to read: "Therefore, she has the burden of proving that respondent was motivated to terminate her employment because of her pregnancy."

21. denied<<BR>
22. granted

23. denied

24. denied

25. granted, but the commission finds that the mixed-motive analysis of Price Waterhouse v. Hopkins, 409 U.S. 228 (1989), 109 S.Ct. 1775, and the 1991 Civil Rights Act at Section 107 (42 U.S.C. Section 20OOe2(k)(3)) more appropriately applies to the Title VII charge of this case

26. denied

27. denied

28. granted

29. denied

30. denied

31. denied

32. denied

33. granted

34. denied

35. denied

36. denied

37. neither granted nor denied as the commission declines to award compensatory damages in this case

38. denied


Damages

Under RSA 354-A, the Commission has the authority to award back pay to the party who has proven discrimination. E.D. Swett, Inc., v. N.H. Commission for Human Rights, 124 N.H. 404 (1983). As part of the back pay remedy, the Commission has the discretionary authority to award prejudgment interest. Loeffler v. Frank, 486 U.S. 5498, 108 S. Ct. 1965, 100 L. Ed. 2d. 549, 46 FEP 1659 (1988). The rate of interest is established by RSA 336:1, 11 and for 1996, the rate is 7.21%.

The complainant was earning $425 per week at the time of her termination, together with benefits and bonuses. The complainant testified as to her attempts to find work after termination by respondent and to her subsequent earnings. complainant testified that she was well after May 5 and would have been able to work until her baby was born on November 5, 1992. Complainant also testified that she voluntarily removed herself from the workforce in November 1993. Documentary evidence has been submitted supporting complainant's testimony as to her subsequent earnings and the amount of unemployment compensation received. This evidence has not been challenged by the respondent, and the commission finds that complainant mitigated her damages. The Commission therefore adopts the calculation of lost wages provided by the complainant in Complainant's Exhibit 10, and finds that complainant suffered lost wages in the amount of $26,731.49. Interest on the amount of lost wages is awarded through the date of hearing in the amount of $7595.64.


The commission declines to award compensatory damages. Reasonable and necessary attorneys' fees will be awarded. Counsel for complaint shall submit an itemized bill for the commission's review.


ORDER

The Commission orders the Respondent to pay the Complainant the sum of $34,327.13 within 30 days of the date of this order.

So ordered.

Commissioner Gail Paine
Commissioner Ralph Brickett December 3, 1996