Frantz v. Beechmont Pet Hosp.

• Decision Date: 31 December 1996
• Docket Number: No. C-960018,C-960018
• Citation: 690 N.E.2d 897,117 Ohio App.3d 351
• Parties: FRANTZ, Appellant, v. The BEECHMONT PET HOSPITAL et al., Appellees. First District, Hamilton County
• Court: Ohio Court of Appeals

Page 351

117 Ohio App.3d 351

690 N.E.2d 897

FRANTZ, Appellant, v. The BEECHMONT PET HOSPITAL et al., Appellees.

No. C-960018.

Court of Appeals of Ohio,

First District, Hamilton County.

Decided Dec. 31, 1996.

Syllabus by the Court

1. A discharged female employee made out a prima facie case of discrimination on the basis of pregnancy, when she presented evidence to show that she was pregnant during the events that led up to her discharge and that her workload was absorbed by two nonpregnant women who were elevated from part-time to full-time status; the employee was not required to present evidence of additional disparate treatment before establishing a prima facie case.

2. When the employer carried its burden to rebut the prima facie case by presenting evidence to show that the employee was terminated for a nondiscriminatory reason, her failure to contact the employer to make arrangements for scheduling her return to work, the burden shifted back to the employee to show that the reason was pretextual; that burden was satisfied so as to render the entry of summary judgment for the employer erroneous when the employee gave deposition testimony directly refuting the accusation that she had not communicated with the employer about her return to work.

Mark J. Byrne, Cincinnati, for appellant.

Ivan L. Tamarkin, Cincinnati, for appellees.

GORMAN, Presiding Judge.

The plaintiff-appellant, Evelyn C. Frantz, appeals from the order of trial court granting summary judgment to the defendants-appellees, the Beechmont Pet Hospital and Stewart Smith, D.V.M., on her claim that she was terminated from her employment in contravention of R.C. 4112.02(A) and 4112.99 because she was female and became pregnant. In her sole assignment of error she asserts that the trial court erred by concluding that there was no evidence of record from which a reasonable person could conclude that the reason given for her discharge was pretextual. We agree and thus reverse the trial court.

I

Although Frantz was approximately two months pregnant at the time she applied for the position of receptionist at the hospital in January 1993, she did not disclose this fact in her application or during a subsequent interview. About one week after starting work, she told Smith of her pregnancy. According to Frantz, she conveyed to Smith that she would, in her own words, "understand if he didn't want me to work or if he only wanted me to work part-time."

By Frantz's own admission, Smith told her that her pregnancy did not present a problem and to let him know when she would be going on maternity leave. Sometime around June 16, following a period of dizziness, Frantz was advised by her obstetrician-gynecologist to begin maternity leave. When she reported this to Smith, he acquiesced without apparent objection, and she went on maternity leave the next day, June 18.

According to Frantz, there was no discussion at that time between her and Smith or anyone else concerning a possible return date. However, Smith and Amy Parker, the office manager, stated that before she left on maternity leave on June 18 Frantz expressed an intention to return to work on August 1, and that she was consequently rescheduled to return to work on August 2.

Frantz testified that her next conversation with anyone at work occurred on July 7, the date that she delivered the baby, at which time she called to tell her co-workers of its sex and weight. Two weeks later she brought the baby into work. Smith was not present on the occasion, but Parker was. Parker gave to Frantz a gift that Smith had bought for her and asked when she thought she would be able to return to work. According to Frantz, she told her that she would not know until she had seen her doctor on August 19. She denied speaking to anyone else concerning a possible return date or ever stating that she would be back earlier.

Frantz testified that she could not have returned at the time because she was still bleeding very heavily. She recounted that she received a telephone inquiry from Parker approximately two weeks before her August 19 doctor's appointment concerning a possible return date. Frantz stated that she advised Parker that she could not return until after she had seen her doctor, and that Parker indicated that this was "fine" and that she should recontact the hospital after the appointment.

Parker disputed Frantz's version of events after her July visit to the hospital with her newborn. According to Parker, she called Frantz on July 28, leaving a message on her answering machine requesting information regarding her scheduled return to work on August 2. Parker stated that when she did not receive an answer, she called Frantz the next day and this time reached her and made the same request. She stated that Frantz told her that she would call her back the next day with a definitive answer, but did not do so.

According to Frantz, she was advised by her doctor on August 19 that she was ready to go back to work. On the evening of August 19, Frantz telephoned Smith and advised him that she wanted to start back to work the next day. The next day, according to Frantz, she had a conversation with Parker in which she was informed that it was a slow season and that, essentially, there would be no work for her until March of the following year. Frantz testified that Parker also indicated that she could not guarantee whether the work would be full-time. According to Frantz, she had no further contact with the hospital and discovered that she had been terminated only after she unsuccessfully applied for unemployment benefits.

In her affidavit, Parker stated that Frantz was terminated effective August 15 because her failure to communicate with the hospital regarding her return date caused scheduling problems and was ultimately interpreted as lack of interest in continuing her employment. Contrary to Frantz's recollection of events, Parker stated that she informed Frantz in their discussion on August 19 that she was terminated.

Frantz's duties were reallocated to two part-time nonpregnant female employees, both of whom were elevated to full-time status.

II

As noted, Frantz raises only a single assignment of error: that from the evidence just summarized there were sufficient facts, drawing all inferences in her favor as is required under Civ.R. 56(E), from which one could reasonably conclude that the reason given for her termination was pretextual, and that she was, in truth, discharged because Smith and the hospital unlawfully discriminated against her by failing to allow her a reasonable period of maternity leave.

R.C. 4112.02(A) provides that the following constitutes an unlawful discriminatory practice:

"For 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."

R.C. 4112.01(B) states:

"For the purposes of division (A) to (F) of section 4112.02 of the Revised Code, 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, any illness arising out of and occurring during the course of 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 * * *."

According to Ohio Adm.Code 4112-5-05(G):

"(2) Where termination of an employee who is temporarily disabled due to pregnancy is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination."

A victim of such conduct has a private right of action under R.C. 4112.99. In Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 196, 20 O.O.3d 200, 202, 421 N.E.2d 128, 131, the Ohio Supreme Court held that "federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112."

As noted recently by the Franklin County Court of Appeals, "an employer need not have a policy allowing unlimited maternity leave: an employer is required only to have a reasonably adequate policy of maternity leave which should be applied on the same terms and conditions as for other disabilities." Frazier v. Practice Resource Mgt. Group, Inc. (June 27, 1995), Franklin App. No. 95APE01-46, unreported, 1995 WL 390792. As further observed by the same court, the Pregnancy Discrimination Act, Section 2000e, Title 42, U.S.Code, "does not require accommodation of pregnant women which amounts to preferential treatment." Id., citing Armstrong v. Flowers Hosp. Inc. (M.D.Ala.1993), 812 F.Supp. 1183.

We note initially that Smith and the hospital do not assert in their arguments that Frantz was fired because she attempted to take a longer maternity leave than hospital policy allowed. They assert, rather, that she was terminated because she failed to adequately communicate to the hospital when she would be returning. We are, therefore, not confronted with the issue of the adequacy of the length of the hospital's maternity leave. Rather, as briefed and argued by the parties, this case is concerned solely with the issue of whether Frantz presented sufficient evidence to create a factual issue of whether the hospital's stated reason for discharging her--her alleged failure to communicate her plans for returning to work--was pretextual.

In order to support a claim of sex discrimination in employment, the employee is required first to establish a prima facie case by a preponderance of the...