DeLva v. Cont'l Grp., Inc.
Decision Date | 18 September 2012 |
Docket Number | No. 3D11–2964.,3D11–2964. |
Citation | 96 So.3d 956 |
Parties | Peguy DELVA, Appellant, v. The CONTINENTAL GROUP, INC., Appellee. |
Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
McGuinness & Gonzalez, Lawrence J. McGuinness and Juliana Gonzalez, for appellant.
Stearns Weaver Miller Weissler Alhadeff & Sitterson, Andrew L. Rodman and Bayardo Aleman, for appellee.
Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
The discrete, single issue in this case is whether the Florida Civil Rights Act, section 760.10, Florida Statute,1 prohibits discrimination in employment on the basis of pregnancy.2 Although there was no doubt as to the sufficiency of the allegation that the plaintiff was discriminated against on this basis,3 the trial judge dismissed the complaint for failure to state a cause of action on the ground that there was no such right. We agree.
Two district courts have addressed this question. In Carsillo v. City of Lake Worth, 995 So.2d 1118, 1119 (Fla. 4th DCA 2008), review denied,20 So.3d 848 (Fla.2009), the Fourth District held that there was such a right. In O'Loughlin v. Pinchback, 579 So.2d 788, 790 (Fla. 1st DCA 1991), the First District held that there was not, stating:
In General Electric Company v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. However, in 1978, in response to the Gilbert decision, Congress amended Title VII by enacting the Pregnancy Discrimination Act of 1978 (PDA). 42 U.S.C. § 2000e(k). The PDA specifies that discrimination on the basis of pregnancy is sex discrimination, and therefore violative of Title VII. Florida has not similarly amended its Human Rights Act to include a prohibition against pregnancy-based discrimination.
O'Loughlin, 579 So.2d at 791 (footnote omitted).
We believe this holding in O'Loughlin4 is in accord with the Act, and is by far the better reasoned decision. We therefore adopt it as our own. Accord DuChateau v. Camp Dresser & McKee, Inc., 822 F.Supp.2d 1325 (S.D.Fla.2011); Whiteman v. Cingular Wireless, LLC, 273 Fed.Appx. 841 (11th Cir.2008) ( ); Boone v. Total Renal Labs., Inc., 565 F.Supp.2d 1323, 1326 (M.D.Fla.2008) ( ); Fernandez v. Copperleaf Golf Club Cmty. Ass'n, No. 05–286, 2005 WL 2277591 at *1 (M.D.Fla.2005) (); Frazier v. T–Mobile USA, Inc., 495 F.Supp.2d 1185, 1187 (M.D.Fla.2003) (); Swiney v. Lazy Days R.V. Ctr. Inc., No. 00–1356, 2000 WL 1392101 (M.D.Fla.2000) ( ); Zemetskus v. Eckerd Corp., No. 8:02–CV1939–T–27TBM (M.D.Fla. Apr. 1, 2003) ( ); Perrin v. Sterling Realty Mgmt., Inc., No. 3:02–CV–8044–20HTS (M.D.Fla. Nov. 4, 2002) (); Hammons v. Durango Steakhouse of Bradenton, No. 8:01–CV–2165–T–23MAP (M.D.Fla. Mar. 7, 2002).
We certify conflict with Carsillo.
Affirmed.
1. The Florida Civil Rights Act of 1992 (FCRA) provides in section 760.10:
It is an unlawful employment practice for an employer: (a) to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
2. There is no question that the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e–2, explicitly provides that protection:
It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
The Pregnancy Discrimination Act of 1978, (PDA), 42 U.S.C. § 2000e(k), specifies that discrimination because of pregnancy is sex discrimination and violative of Title VII: “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[.]”
After the ruling below, Ms. Delva in fact brought an action under the federal act in the Dade County Circuit Court. After the case was removed to the federal district court, however, she voluntary dismissed the case without explanation.
3. Ms. Delva's complaint alleged in part:
1. Count I is a pregnancy discrimination claim seeking declaratory and injunctive relief and damages to redress violations of Chapter 760, Fla. Stat. (the “Act”).
...
2. Plaintiff is female and she was discriminated against by Defendant because of her pregnancy.
3. Plaintiff worked for Defendant as a Front Desk Manager from October 2005 until October 2010.
4. In February 2010, Pl...
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