Dawn Havens v. McKesson HBOC, Inc.

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
DAWN HAVENS
Complainant 	Complaint #8910
(CIN) 25092899 (28038) 113099
and 	22A – A0 – 0272
McKESSON HBOC, INC.
Respondent
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Judith B. Goldstein, Esq. 	Diane C. Reichwein, Esq.
Assistant Attorney General 	Porter, Wright, Morris & Arthur
Civil Rights Section 	41 South High Street
State Office Tower, 15th Floor 	Columbus, OH 	43215-6194
30 East Broad Street 	(614) 227-2000
Columbus, OH 	43215-3428
(614) 466-7900 	Counsel for Respondent
Counsel for the Commission
Mary Anne Brown-Schwart, Esq. 	Dawn Havens
Schwart & Schwart 	3978 Main Street, S.E.
1620 West First Avenue 	Washington Court House, OH 43160
Columbus, OH 	43212-3347
(614) 488-6005 	Complainant
Counsel for Complainant
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Chief Hearing Examiner
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Dawn Havens (Complainant) filed a sworn charge affidavit with the Ohio
Civil Rights Commission (Commission) on November 30, 1999.
The Commission investigated and found probable cause that McKesson
HBOC, Inc. (Respondent) engaged in unlawful discriminatory practices in
violation of Revised Code (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 November 16, 2000. 	The Complaint alleged that Complainant was
discharged for reasons related to her sex (pregnancy).
Respondent filed a timely Answer to the Complaint on December 18,
2000. Respondent admitted certain procedural allegations but denied that it
engaged in any unlawful discriminatory practices. 	Respondent also pled
affirmative defenses.

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A public hearing was held on June 28-29, 2001 at the Municipal Court
House in Washington Court House, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 248 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on October 10,
2001 and by Respondent on October 31, 2001. 	The Commission filed a reply
brief on November 8, 2001.
FINDINGS OF FACT
The following findings are based, in part, upon the Hearing Examiner's
assessment of the credibility of the witnesses who testified before him in this
matter. 	The Hearing Examiner has applied the tests of worthiness of belief
used in current Ohio practice. 	For example, he considered each witness's
appearance and demeanor while testifying. 	He considered whether a witness
was evasive and whether his or her testimony appeared to consist of
subjective opinion rather than factual recitation. 	He further considered the
opportunity each witness had to observe and know the things discussed; each

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witness's strength of memory; frankness or the lack of frankness; and the
bias, prejudice, and interest of each witness. 	Finally, the Hearing Examiner
considered the extent to which each witness's testimony was supported or
contradicted by reliable documentary evidence.
1. 	Complainant filed a sworn charge affidavit with the Commission on
November 30, 1999.
2. 	The Commission determined on October 26, 2000 that it was
probable that Respondent engaged in unlawful discrimination in violation of
R.C. 4112.02(A).
3. 	The Commission attempted to resolve this matter by informal
methods 	of 	conciliation. 	The 	Commission 	issued 	the 	Complaint 	after
conciliation failed.
4. 	Respondent is a corporation doing business in Ohio and an
employer. 	Respondent 	is 	a 	distributor 	of 	wholesale 	pharmaceuticals,
over-the-counter 	drugs, 	sundries, 	and 	services 	to 	its 	customers. 	Its

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customers are independent retail pharmacies, hospitals, and regional and
national chain stores.
5. 	Complainant began working for Respondent as a warehouse laborer
on March 9, 1998. 	Complainant became pregnant in February or March
1999. Complainant’s pregnancy was complicated by a previously-existing
heart condition. 	This caused Complainant’s doctor to take her off work for a
week in March 1999 and a week in April 1999. 	After the absence in April,
Complainant’s doctor ordered her to take a leave of absence from work to the
end of her pregnancy because of her pregnancy-related condition.
6. 	Respondent provides all employees who have to leave work for
health-related reasons, including pregnancy, with twelve weeks of unpaid
leave, pursuant to the Family Medical Leave Act (FMLA). 	In addition, any
employee whose medical condition rises to the level of a disability is entitled
to 26 weeks of disability benefits. 	The short-term disability policy runs
concurrently with the FMLA leave. 	Thus, an employee could exhaust their

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FMLA benefits but still continue to collect short-term disability benefits up to
26 weeks.1
7. 	Pursuant 	to 	its 	usual 	policies, 	Respondent 	did 	not 	replace
Complainant when she first went on leave. 	Instead, Complainant’s duties
were assumed by other employees who were asked to work faster or work
overtime.
8. 	Complainant’s 	12 	weeks 	of 	leave 	ended 	in 	mid-July 1999.
Pursuant to its policies, Respondent could have replaced Complainant at this
time. 	Instead, Respondent continued to use existing employees to absorb
Complainant’s work load.
9. 	In September 1999 one of Complainant’s supervisors expressed
concern to the Human Resources Department about Complainant’s vacant
position. 	On 	September 	28, 	1999, 	the 	other 	supervisor 	told 	the
Director of Operations that he needed a replacement for Complainant’s
position.
1 The disability benefits plan provides 100% of an employee’s base salary for the
first four weeks of disability, and 70% up to an additional 22 weeks of disability.

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This resulted in a letter being sent to Complainant notifying her, that effective
September 28, 1999, her employment was terminated. 	The letter advised
Complainant that she was eligible for rehire once she was released for full-
time employment by her physician. 	Complainant was also advised that she
would continue to receive her short-term disability benefits for 26 weeks.
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. 2
2 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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1. 	The Commission alleged that Complainant was discharged because
she became pregnant and took maternity leave. (Comm.Br. 4)
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” for the purposes of R.C. 4112.02(A)
includes, but it is not limited to, discrimination based upon pregnancy,
pregnancy-related illnesses, childbirth, or related medical conditions. 	R.C.
4112.01(B). 	This division further provides that:
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 . . . .
4. 	The Commission has the burden of proof in cases brought under
R.C. Chapter 4112. 	The Commission must prove a violation of R.C.

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4112.02(A) 	by 	a 	preponderance 	of 	reliable, 	probative, 	and 	substantial
evidence. 	R.C. 4112.05(G) and 4112.06(E).
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”
(PDA) of 1978. 	Priest v. TFH-EB, Inc. d/b/a Electra Bore, Inc., 127 Ohio App.
3d 159, 711 N.E. 2d 1070, 1073 (Ohio App. 10th Dist. 1998); 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. Under Title VII case law, the Commission is normally required to first
establish a prima facie case of unlawful discrimination by a preponderance of
the evidence. McDonnell Douglas Co. v. Greene, 411 U.S. 792, 5 FEP Cases
965 (1973). The proof required to establish a prima facie case may vary on a
case-by-case 	basis. 	Id., 	at 	802, 	5 	FEP 	Cases 	at 	969, 	n.13. 	The
establishment of a prima facie case creates a rebuttable presumption of

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unlawful discrimination. 	Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 25 FEP Cases 113 (1981).
7. Once the Commission establishes a prima facie case, the burden of
production 	shifts 	to 	Respondent 	to 	“articulate 	some 	legitimate,
nondiscriminatory reason” for the employment action.3 McDonnell Douglas,
supra at 802, 5 FEP Cases at 969. 	To meet this burden of production,
Respondent must:
. . . “clearly set forth, through the introduction of admissible
evidence,” reasons for its actions which, if believed by the trier of
fact, would support a finding that unlawful discrimination was not
the cause of the employment action.
3 Although the burden of production shifts to Respondent at this point, the
Commission retains the burden of persuasion throughout the proceeding. 	Burdine, supra
at 254, 25 FEP Cases at 116.
The defendant’s burden is merely to articulate through some proof a facially
nondiscriminatory reason for the termination; the defendant does not at this
stage of the proceedings need to litigate the merits of the reasoning, nor
does it need to prove that the reason relied upon was bona fide, nor does it
need to prove that the reasoning was applied in a nondiscriminatory fashion.
EEOC v. Flasher Co., 60 FEP Cases 814, 817 (10th Cir. 1992) (citations and
footnote omitted).

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St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 62 FEP
Cases 96, 103 (1993), quoting Burdine, supra at 254-55, 25 FEP
Cases at 116, n.8.
The presumption created by the establishment of a prima facie case “drops
out 	of 	the 	picture” 	when 	the 	employer 	articulates 	a 	legitimate,
nondiscriminatory reason for the employment action. 	Hicks, supra at 511, 62
FEP Cases at 100.
8. 	In 	this 	case, 	it 	is 	not 	necessary 	to 	determine 	whether 	the
Commission 	proved 	a 	prima 	facie 	case. 	Respondent’s 	articulation 	of
legitimate, nondiscriminatory reasons for Complainant’s discharge removes
any need to determine whether the Commission proved a prima facie case,
and the “factual inquiry proceeds to a new level of specificity.” 	U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713, 31 FEP Cases 609,
611 (1983), quoting Burdine, supra at 255, 25 FEP Cases at 116.
Where the defendant has done everything that would be required
of him if the plaintiff has properly made out a prima facie case,
whether the plaintiff really did so is no longer relevant.
Aikens, supra at 713, 31 FEP Cases at 611.

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9. 	Respondent met its burden of production through the testimony of its
witnesses. 	Respondent gave two reasons for its decision: Complainant was
replaced because her leave had exceeded 12 weeks, and Respondent
needed to replace her for business reasons.
10. Respondent having met its burden of production, the Commission
must prove that Respondent unlawfully discriminated against Complainant
because of her sex (pregnancy). Hicks, supra at 511, 62 FEP Cases at 100.
The Commission must show by a preponderance of the evidence that
Respondent’s articulated reasons for discharging Complainant were not the
true reasons, but were “a pretext for discrimination.” 	Id., at 515, 62 FEP
Cases at 102, quoting Burdine, supra at 253, 25 FEP Cases at 115.
[A] reason cannot be proved to be a “pretext for discrimination”
unless 	it 	is 	shown 	both 	that 	the 	reason 	is 	false, 	and 	that
discrimination is the real reason.
Hicks, supra at 515, 62 FEP Cases at 102.
11. Thus, even if the Commission proves that Respondent’s articulated
reasons are false or incomplete, the Commission does not automatically
succeed in meeting its burden of persuasion:

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That the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the . . .
[Commission’s] proffered reason of . . . [sex] is correct. 	That
remains a question for the factfinder to answer . . . .
Id., at 524, 62 FEP Cases at 106.
Ultimately, the Commission must provide sufficient evidence for the factfinder
to infer that Complainant was, more likely than not, the victim of sex
discrimination.
12. 	In order to show pretext, the Commission may directly or indirectly
challenge the credibility of Respondent’s articulated reasons for discharging
Complainant. 	The Commission may directly challenge the credibility of
Respondent’s articulated reasons by showing that the reasons had no basis in
fact or were insufficient to motivate the employment decision. 	Manzer v.
Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
13. 	Such direct attacks, if successful, permit the factfinder to infer
intentional discrimination from the rejection of the reasons without additional
evidence of unlawful discrimination.

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The factfinder’s disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a suspicion
of mendacity) may together with the elements of the prima facie
case, suffice to show intentional discrimination . . . [n]o additional
proof is required.4
Hicks, supra at 511, 62 FEP Cases at 100 (emphasis added).
14. 	The 	Commission 	may 	indirectly 	challenge 	the 	credibility 	of
Respondent’s reasons by showing that the sheer weight of the circumstantial
evidence makes it “more likely than not” that the reasons are a pretext for
unlawful discrimination. 	Manzer, supra at 1084. 	This type of showing, which
tends to prove that the reasons did not actually motivate the employment
decision, requires the Commission produce additional evidence of unlawful
discrimination besides evidence that is part of the prima facie case. 	Id.
15. 	In this case, the Commission argued Respondent’s first reason for
terminating Complainant was pretextual because Complainant was not
provided a reasonable leave time considering her pregnancy-related medical
condition. 	The Commission also argued that Respondent’s second reason
(that Complainant was replaced because of business needs) was not true,
4 Even though rejection of a respondent’s articulated reason is “enough at law to
sustain finding of discrimination, there must be a finding of discrimination.” Hicks, supra at

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because a temporary worker could have been utilized to fill her position.
16. 	In support of the first argument, the Commission relies on the
Commission’s Administrative Rules, specifically Rule 4112-5-05(G)(3), which
provides, in pertinent part, that “. . . Written and unwritten employment policies
involving 	commencement 	and 	duration 	of 	maternity 	leave 	shall 	be 	so
construed as to provide for individual capacities and the medical status of the
woman involved . . . .” 	The Commission argues that this section requires
employers to provide unlimited maternity leave for women if such leave
is justified by their pregnancy-related medical conditions. 	This argument is
not supported by the Administrative Code, the statute, or Ohio and federal
case law interpreting the PDA.
17. 	Ohio law does not require that pregnant employees be given
preferential treatment. Priest, supra at 1074 (“Ohio courts implicitly, . . . and
expressly recognize that 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
511, 62 FEP Cases at 100, n.4.

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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 	a 	pregnant 	employee 	from 	being 	discharged 	for
absenteeism, even if absences are due to complications of pregnancy, unless
absences of non-pregnant employees are overlooked).
18 	Furthermore, an Ohio court has held in a case very similar to this
one that a policy that provides for termination of employment after 12 weeks
of leave does not violate R.C. 4112.02(B). 	Violation of the policy is a
legitimate, nondiscriminatory reason for termination and is not a pretext for
sex discrimination. 	Parker v. Bank One, 2001 WL 303284 (Ohio App. 2 Dist.
2001).
19. 	Respondent’s policy is applied equally to males and females, and
provides a reasonable length of time for pregnancy leave. 	A 	total of 12
weeks of leave is reasonable since most pregnancies only require a six-week
recuperation period. 	An additional six weeks is reasonable for those

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pregnancies where complications arise and some additional absence is
necessary. 	Such a policy balances the employees’ need to be off work for
pregnancy and pregnancy-related reasons and still retain their jobs and the
needs of the employer to have a stable and trained work force to run their
business.
20. 	Congress envisioned this when they passed the FMLA and
provided 	that 	covered 	employers 	must 	offer 	12 	weeks 	annual 	unpaid
leave for medical reasons, specifically including pregnancy and pregnancy-
related 	illnesses. 	In 	this 	case, 	Respondent 	considered 	Complainant’s
situation, which was unusual, and allowed her to be off an additional 10
weeks. 	When 22 weeks had passed, Complainant’s supervisors made a
business judgment that they could no longer ask other employees to work
harder, work faster, or work overtime to pick up the slack.
21. The Commission did not offer any evidence which conflicted with
Respondent’s evidence that Respondent needed to replace Complainant.
Instead, the Commission argued that Complainant could have been replaced
by a temporary worker. 	However, Respondent’s witnesses testified that

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Respondent does not have a policy or practice of using temporary labor to
replace warehouse employees who fill orders, or as Complainant did, process
returns. 	Temporary workers are only used to perform special projects.
Thus, 	Respondent 	would 	have 	to 	deviate 	from 	its 	normal 	practice 	to
accommodate Complainant’s absence. 	The PDA does not require such an
accommodation. Cf. Priest, supra at 1076 (employer had no duty to change
smoking policy to accommodate pregnant employee).
22. 	Respondent’s policy decision not to use temporary workers to
replace employees on short-term disability is a business judgment. 	The
Commission cannot second guess good faith business judgment decisions.
See Goad v. Sterling Commerce, Inc., 2000 WL 756386 (Ohio App. 10 Dist.
2000) (“. . . it is important that the judiciary be careful to not second guess, in
a discrimination action brought by an employee, a business judgment by an
employer making personnel decisions”) (citation and quote within a quote
omitted).
[A] plaintiff may not establish that an employer’s proffered reason
is pretextual merely by questioning the wisdom of the employer’s
reason, at least not where, as here, the reason is one that might
motivate a reasonable employer.

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Combs v. Meadowcraft, Inc., 73 FEP Cases 232, 249 (11th Cir.
1997).
23. 	Since the Commission was unable to prove that Respondent
discharged Complainant because she was pregnant and took a reasonable
maternity leave, the Complaint must be dismissed.
RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8910.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
January 9, 2002