Tiffany R. McFee v. Nursing Care Management of America, Inc. dba Pataskala Oaks**

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
Tiffany R. McFee
Complainant
Complaint No. 9816
v. (COL) 71020404 (30932) 030204
22A – A4 – 01414
Nursing Care Management of
America, Inc. d/b/a Pataskala
Oaks Care Center
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO
ATTORNEY GENERAL
Patrick M. Dull, Esq. Brian E. Dickerson, Esq.
Associate Attorney General Jonathan R. Secrest, Esq.
Civil Rights Section Maguire & Schneider
State Office Tower, 15th Floor 250 Civic Center Drive, Suite 200
30 East Broad Street Columbus, OH 43215
Columbus, OH 43215-3428 614 – 224 – 1222
614 – 466 – 7900
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Tiffany R. McFee Chief Administrative Law Judge
114 Pierce Street Ohio Civil Rights Commission
Zanesville, OH 43701 1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
Complainant 614 – 466 – 6684

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INTRODUCTION AND PROCEDURAL HISTORY
Tiffany R. McFee (Complainant) filed a sworn charge affidavit with
the Ohio Civil Rights Commission (Commission) on March 2, 2004.
The Commission investigated the charge and found probable cause
that Nursing Care Management of America, Inc. d/b/a Pataskala Oaks
Care Center (Respondent) engaged in unlawful employment practices in
violation of Revised Code Section (R.C.) 4112.02(A).
The Commission attempted, but failed to resolve this matter by
informal methods of conciliation. The Commission subsequently issued
a Complaint on January 13, 2005.
The Complaint alleged that Respondent discharged Complainant
for reasons not applied equally to all persons without regard to their sex
(condition of pregnancy).
Respondent filed an Answer to the Complaint on February 10,
2005. Respondent admitted certain procedural allegations, but denied

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that it engaged in any unlawful discriminatory practices. Respondent
also pled affirmative defenses.
The Commission and Respondent moved the Administrative Law
Judge (ALJ) to waive the public hearing in this matter in lieu of their
submission of a Joint Stipulation of Facts. The Motion was granted;
the Commission and Respondent submitted the Joint Stipulation of
Facts on August 5, 2005.
The record consists of:
 the previously described pleadings;
 the Joint Stipulation of Facts; and
 the post-hearing briefs and the Commission’s reply:
o filed by the Commission on August 8, 2005;
o filed by Respondent on August 17, 2005; and
o filed by the Commission on August 24, 2005.

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FINDINGS OF FACT
1. Complainant filed a sworn charge affidavit with the
Commission on March 2, 2004.
2. The Commission determined on December 16, 2004 that it
was probable that Respondent engaged in unlawful discrimination in
violation of R.C. 4112.02(A).
3. Respondent is a corporation duly qualified to conduct
business in the State of Ohio. It maintains an office and place of
business in Franklin County, Ohio.
4. Respondent is an “employer” as defined by R.C. 4112.01(A)(2).
5. Prior to the issuance of Complaint No. 9816, the Commission
attempted conciliation, which was unsuccessful.
6. Complainant was hired by Respondent as a Licensed Practical
Nurse on June 9, 2003.

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7. At the time of Complainant’s hire, and at all relevant
times, Respondent had a leave policy that permitted up to twelve (12)
weeks of leave for those employees that had been employed by
Respondent for a minimum of one year. Respondent has applied this
policy consistently to all employees. Complainant was provided a copy
of this policy at the beginning of her employment.
8. When an employee has been employed for less than one
year and requests leave, that employee is told that he or she is not
entitled to leave, and the employee is terminated. The employee is told
that he or she can re-apply for employment when able to resume work.
9. When an employee has been employed for one year or more
and requests leave, that employee is entitled to twelve weeks of leave,
provided that the requested leave is supported by a physician’s note
stating that the employee is medically unable to work. Respondent has,
in fact, provided up to twelve weeks of leave for its employees who have
been employed for one year or more.
10. On January 26, 2004, Complainant provided Respondent
with a physician’s note which stated that she was unable to work due to

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pregnancy-related swelling. The physician’s note stated Complainant
could return to her normal duties six weeks following her delivery.
(Ex. 1 – January 6, 2004 physician’s note).
11. Complainant gave birth on February 1, 2004.
12. Complainant was officially terminated on February 4, 2004.
13. Complainant was terminated because she did not qualify for
the leave provided in Respondent’s policy, since at the time of her request
for leave she had been employed for less than one year.

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CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments of
the parties have been considered. To the extent that the proposed
findings and conclusions submitted by the parties and the arguments
made by them are in accordance with the findings, conclusions, and
views stated herein, they have been accepted; to the extent they are
inconsistent therewith, they have been rejected. Certain proposed
findings and conclusions have been omitted as not relevant or as not
necessary to a proper determination of the material issues presented. To
the extent that the testimony of various witnesses is not in accord with
the findings therein, it is not credited.1
1. The Commission alleged in the Complaint that Respondent
discharged Complainant for reasons not applied equally to all persons
without regard to their sex (condition of pregnancy).
1 Any Finding of Fact may be deemed a Conclusion of Law, and any
Conclusion of Law may be deemed a Finding of Fact.

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2. This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides in pertinent part that:
It shall be an unlawful discriminatory practice:
(A) 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.
3. The term “because of sex” includes because of sex on the
basis of pregnancy. R.C. 4112.02(B) provides that:
Women affected by pregnancy, childbirth, or related medical
conditions 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 ….
(Emphasis added.)
4. Ohio Administrative Code (O.A.C.) 4112-5-05(G)(5) provides
that:
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 …. (Emphasis added.)

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5. Federal case law generally applies to alleged violations of R.C.
Chapter 4112. Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio
St.3d 569. Federal case law is especially relevant in this case because
R.C. 4112.01(B) reads “almost verbatim to the Pregnancy Discrimination
Act” of 1978 (PDA). Priest v. TFH-EB, Inc. d/b/a Electra Bore, Inc., 1998
Ohio App. LEXIS 1384; See 42 U.S.C. § 2000e(k). Thus, reliable,
probative, and substantial evidence means evidence sufficient to support
a finding of unlawful discrimination under Title VII of the Civil Rights Act
of 1964 (Title VII), as amended by the PDA.
6. The Commission’s allegations of pregnancy discrimination are
not based on direct evidence of pregnancy-based discriminatory animus.
Therefore, the claims raised are properly analyzed under the evidentiary
framework established in McDonnell Douglas v. Green, 411 U.S. 792,
802-03, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). McDonald Douglas v.
Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973).
7. The proof required to establish a prima facie case is also
flexible and, therefore, may vary on a case-by-case basis. McDonnell
Douglas, supra at 802, 5 FEP Cases at 969, n.13. In this case, the

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Commission may establish a prima facie case of sex discrimination by
proving that:
(1) Complainant was pregnant;
(2) Complainant was qualified for her position;
(3) Respondent subjected Complainant to an adverse
employment action; and
(4) Respondent treated a non-pregnant employee, similar to
Complainant in ability or inability to work, more
favorably than her.
Ensley-Gaines v. Runyon, 72 FEP Cases 602 (6th Cir. 1996).
8. The Ensley Gaines case is distinguishable from the case at
bar because it does not involve a set a facts where the employee was
terminated due to a policy that requires employees to qualify for leave
based on length of service.
9. Another case cited by the Commission, McConaughy v.
Boswell Oil Co., 126 Ohio App. 3d 820, is factually distinguishable
because the discharged employee was granted leave but she was
terminated after twelve weeks. In that case a non-pregnant employee
who was similarly unable to return to work for an extended period of
time was not terminated.

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10. The Commission has not introduced evidence of employees
who were treated better than Complainant that were “similar in their
ability or inability to work”.
11. Based on the Commission’s interpretation of R.C. 411202(A),
O.A.C. 4112-5-05(G)(5) authorizes a length of service requirement for
leave time, as long as it is applied equally.2
12. Ohio law does not require that pregnant employees be given
preferential treatment. Priest, supra, at 1074.
Ohio courts implicitly … and expressly recognize than an
employer need not accommodate pregnant women to the
extent that such accommodation amounts to preferential
treatment. (Citations omitted).
See also Davidson v. Franciscan Health System of the Ohio Valley, Inc., 82
F. Supp. 2d 768, 774 (S.D. Ohio 2000) (“The case law and the statute are
clear – the PDA does not require that employers treat pregnant
employees more favorably.”) (Citations omitted); Dormeyer v. Comerica
Bank of Illinois, 223 F. 3d 579, 583 (7th Cir. 2000) (PDA does not protect
2 A one-year length of service requirement violates Title VII, according to
the Equal Employment Opportunity Commission (EEOC). However, in that
case the collective bargaining agreement provided that males and females could
take leaves of absence for other reasons before they acquired one year of
seniority. Thus, pregnant employees were singled out for adverse treatment.
See EEOC Decision 72-1919, (June 6, 1972), 4 FEP Cases 1163.

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a pregnant employee from being discharged for absenteeism, even if the
absences are due to complications of pregnancy, unless absences of non-
pregnant employees are overlooked).
13. In conclusion, based on the Commission’s regulations and
the lack of evidence to show that similarly situated employees were
similar in their ability or inability to work, the Commission failed to
establish a prima facie case of pregnancy discrimination.
RECOMMENDATION
For all the foregoing reasons, it is recommended that the
Commission issue a Dismissal Order in Complaint No. 9816.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
December 19, 2006