[Cite as McFee v. Nursing Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744.]




   MCFEE; OHIO CIVIL RIGHTS COMMISSION, APPELLEE, v. NURSING CARE
           MANAGEMENT OF AMERICA, INC., D.B.A. PATASKALA OAKS
                             CARE CENTER, APPELLANT.
                [Cite as McFee v. Nursing Care Mgt. of Am., Inc.,
                       126 Ohio St.3d 183, 2010-Ohio-2744.]
An employment policy that imposes a uniform minimum-length-of-service
        requirement for leave eligibility with no exception for maternity leave is
        not direct evidence of sex discrimination under R.C. Chapter 4112.
   (No. 2009-0756 — Submitted January 13, 2010 — Decided June 22, 2010.)
     APPEAL from the Court of Appeals for Licking County, No. 08CA3000,
                       181 Ohio App.3d 632, 2009-Ohio-1107.
                                 __________________
                               SYLLABUS OF THE COURT
An employment policy that imposes a uniform minimum-length-of-service
        requirement for leave eligibility with no exception for maternity leave is
        not direct evidence of sex discrimination under R.C. Chapter 4112.
                                 __________________
        CUPP, J.
                                             I
        {¶ 1} In this case, a pregnant employee who took maternity leave before
she was eligible under her employer’s uniform minimum-length-of-service
requirements for leave eligibility of any kind was terminated for absence from her
job. We are asked whether the termination of that employee for violation of the
uniform leave policy is direct evidence of sex discrimination under Ohio law.
        {¶ 2} For the reasons that follow, we hold that a uniform minimum-
length-of-service leave policy is not direct evidence of a violation of R.C.
4112.02(A). The judgment of the court of appeals is reversed.
                            SUPREME COURT OF OHIO




                                        II
       {¶ 3} Tiffany McFee was employed by appellant, Nursing Care
Management of America, Inc., d.b.a. Pataskala Oaks Care Center (“Pataskala
Oaks”).   Upon hire, McFee received an employee handbook that contained
Pataskala Oaks’ employment policy. That policy required that an employee be
employed for a period of one year before he or she would be eligible for any leave
for any purpose.
       {¶ 4} Approximately eight months later, McFee presented to Pataskala
Oaks a doctor’s note that stated that she was unable to work due to conditions
related to pregnancy. Soon thereafter, McFee gave birth. Three days after the
birth, McFee’s employment was terminated. The basis for the termination was
McFee’s absence from her employment before she had become eligible for leave
under the written employment policy.
       {¶ 5} McFee filed a charge with the Ohio Civil Rights Commission,
appellee, claiming that her termination constituted unlawful sex discrimination on
the basis of pregnancy. An administrative law judge recommended that the charge
be dismissed. Nevertheless, the Civil Rights Commission rejected that
recommendation and found instead that Pataskala Oaks’ policy constituted
unlawful sex discrimination. Pataskala Oaks appealed.
       {¶ 6} On review, the Licking County Common Pleas Court held that
Pataskala Oaks’ leave policy did not violate the antidiscrimination laws of Ohio
and reversed the decision of the Civil Rights Commission.
       {¶ 7} On further appeal, the Fifth District Court of Appeals reversed the
judgment of the common pleas court.          The court of appeals held that the
antidiscrimination laws of Ohio expressly require that employers provide
employees with a reasonable period of maternity leave. Because Pataskala Oaks’
leave policy did not provide maternity leave for employees with less than one
year of service, the court of appeals held that the policy violated the sex-




                                        2
                                January Term, 2010




discrimination laws. The court also held that the policy was direct evidence of
discrimination and, therefore, McFee did not have the burden to offer other
evidence of sex discrimination. See McDonnell Douglas Corp. v. Green (1973),
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.
       {¶ 8} Pataskala Oaks appeals here from the decision of the Fifth District.
It asserts that (1) an employer’s uniform minimum-length-of-service leave policy
does not constitute direct evidence of a sex-discrimination violation, even when it
is applied to employees who require leave for reasons related to pregnancy, (2)
the laws in question cannot be interpreted to mandate maternity leave for
employees who are not yet otherwise eligible for any leave, and (3) the
McDonnell Douglas burden-shifting framework applies in cases alleging sex
discrimination on the basis of pregnancy leave, thus requiring the claimant to
offer evidence of discriminatory intent in a claim based on an employment policy
that is nondiscriminatory on its face.
                                         III
       {¶ 9} R.C. 4112.02(A) provides that pregnant employees must be treated
the same for employment-related purposes as employees who are not pregnant but
who are similar in their ability or inability to work. See also R.C. 4112.01(B).
Because the Ohio Administrative Code Sections promulgated by the Civil Rights
Commission must be harmonized with this policy preference of the General
Assembly, a mandatory maternity-leave requirement is absent from Ohio
Adm.Code 4112-5-05(G)(2). This means that a uniform minimum-length-of-
service leave policy is not direct evidence of sex discrimination and the
McDonnell Douglas burden-shifting analysis should be applied in cases involving
such a policy.
            A. R.C. Chapter 4112 does not prohibit uniformly applied
                  minimum-length-of-service leave requirements.




                                         3
                              SUPREME COURT OF OHIO




        {¶ 10} McFee was terminated from employment because she took leave
from her job before she was eligible under Pataskala Oaks’ uniform leave policy.
Regarding termination, R.C. 4112.02(A) provides: “It shall be an unlawful
discriminatory practice * * * [f]or 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.”
        {¶ 11} R.C. 4112.01(B) provides that the term “because of sex” in R.C.
4112.02(A) “include[s], but [is] not limited to, because of or on the basis of
pregnancy, any illness arising out of and occurring during the course of a
pregnancy, childbirth, or related medical conditions.” The second sentence of
R.C. 4112.01(B) directs that pregnant women “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.”
        {¶ 12} Read together, those statutes provide that it is an unlawful
discriminatory practice for an employer to terminate an employee because of
pregnancy or a related condition without just cause. Because R.C. 4112.02(A)
allows an employer to terminate an employee for any nondiscriminatory reason
and R.C. 4112.01(B) directs that pregnant employees be treated “the same for all
employment-related purposes * * * as other persons not so affected but similar in
their ability or inability to work,” the statutes do not impose a per se ban on the
termination of every employee affected by pregnancy.
        {¶ 13} The phrase “treated the same” in R.C. 4112.01(B) ensures that
pregnant employees will receive the same consideration as other employees “not
so affected but similar in their ability or inability to work.” Thus, the statute does
not provide greater protections for pregnant employees than nonpregnant




                                          4
                               January Term, 2010




employees. Other courts that have considered this issue have also applied this
interpretation of R.C. 4112.01(B).
       {¶ 14} The wording of the Ohio pregnancy-discrimination statute mirrors
its federal counterpart, including the phrase “treated the same,” which appears in
both Section 2000e(k), Title 42, U.S.Code, and R.C. 4112.01(B). Decisions of
federal courts provide guidance in interpretation of the Pregnancy Discrimination
Act.   Plumbers & Steamfitters Joint Apprenticeship Committee v. Ohio Civ.
Rights Comm. (1981), 66 Ohio St.2d 192, 196, 20 O.O.3d 200, 421 N.E.2d 128.
       {¶ 15} Federal courts agree that “the Pregnancy Discrimination Act does
not require preferential treatment for pregnant employees. Rather, it mandates
that employers treat pregnant employees the same as nonpregnant employees who
are similarly situated with respect to their ability to work.” (Emphasis sic.)
Tysinger v. Zanesville Police Dept. (C.A.6, 2006), 463 F.3d 569, 575. Accord
Mullet v. Wayne-Dalton Corp. (N.D.Ohio 2004), 338 F.Supp.2d 806, 811;
Armstrong v. Flowers Hosp., Inc. (C.A.11, 1994), 33 F.3d 1308, 1316-1317, and
cases cited therein.
       {¶ 16} Ohio courts have reached the same conclusion. As stated by the
Tenth District Court of Appeals, “Ohio courts implicitly * * * and expressly * * *
recognize that an employer need not accommodate pregnant women to the extent
that such accommodation amounts to preferential treatment. Accordingly, to
prevail on her pregnancy discrimination claim, plaintiff must show that defendant
treated her differently because of her pregnancy.” Priest v. TFH-EB, Inc. (1998),
127 Ohio App.3d 159, 165-166, 711 N.E.2d 1070.
       {¶ 17} Pataskala Oaks’ length-of-service requirements treat all employees
the same.     Every employee must reach 12 months of employment before
becoming eligible for leave.    In this sense, the policy is “pregnancy-blind.”
Reeves v. Swift Transp. Co. (C.A.6, 2006), 446 F.3d 637, 640-641. Thus, a
pregnant employee may be terminated for unauthorized absence just like any



                                        5
                              SUPREME COURT OF OHIO




other employee who has not yet met the minimum-length-of-service requirement
but takes leave based upon a similar inability to work. Unless there is other
evidence of discrimination or pretext, R.C. Chapter 4112 does not prohibit
termination of an employee affected by pregnancy under these circumstances.
       {¶ 18} The Civil Rights Commission urges us to read the “treated the
same” clause in the second sentence of R.C. 4112.01(B) as a separate provision
with independent force and effect from the first sentence of the statute,
prohibiting termination “because of or on the basis of pregnancy.” The Civil
Rights Commission argues that the second sentence is a narrower application of
the general prohibition against firing employees because of pregnancy. We find
this argument unpersuasive.
       {¶ 19} First, we do not agree with the premise that McFee was terminated
on the basis of pregnancy. Instead, she was let go for taking unauthorized leave
from her employment. The second sentence of R.C. 4112.01(B) is directly
applicable to this situation and directs that McFee must be treated the same for
purposes of leave eligibility as other employees who are similar in their ability or
inability to work. If McFee believes that the leave policy is merely a pretext for
termination based upon pregnancy, she could have asserted that claim under the
existing antidiscrimination framework of McDonnell Douglas.
       {¶ 20} Second, the United States Supreme Court has held that the second
clause of the Federal Pregnancy Discrimination Act (the treated-the-same clause)
is an explanation and application of the first clause (the because-of-pregnancy
clause) to provide concrete examples of prohibited practices. See California Fed.
S. & L. Assn. v. Guerra (1987), 479 U.S. 272, 285, 107 S.Ct. 683, 93 L.Ed.2d
613, quoting Newport News Shipbuilding & Dry Dock Co. v. Equal Emp.
Opportunity Comm. (1983), 462 U.S. 669, 678, 103 S.Ct. 2622, 77 L.Ed. 2d 89,
fn. 14 (“ ‘The meaning of the first clause is not limited by the specific language in
the second clause, which explains the application of the general principle to




                                         6
                               January Term, 2010




women employees’ ”). It would be contrary to this interpretation of the federal
statute to hold that the first and second sentences of the state statute, which
mirrors the federal statute, serve different purposes. Although the scope of the
second sentence is narrower than that of the first sentence, both serve the same
goal—to ensure that employees who are pregnant are not discriminated against on
the basis of pregnancy. To hold otherwise would be to require that employers
treat pregnant employees more favorably than other employees. The statutes do
not support such a result. See, e.g., California Fed. S. & L. Assn. v. Guerra, 479
U.S. at 287, 107 S.Ct. 683, 93 L.Ed.2d 613 (“Congress * * * extensively
discussed * * * its intent not to require preferential treatment”) and Armstrong v.
Flowers Hosp., Inc., 33 F.3d 1308, 1317 (“Statements in the legislative history
make it clear that the [Pregnancy Discrimination Act] does not require employers
to extend any benefit to pregnant women that they do not already provide to other
disabled employees”).
      B. Properly construed, Ohio Adm.Code 4112-5-05 does not prohibit
           uniformly applied minimum-length-of-service requirements.
       {¶ 21} Ohio Adm.Code 4112-5-05(G)(2), the administrative regulation at
issue, provides: “Where termination of employment of an employee who is
temporarily disabled due to pregnancy or a related medical condition is caused by
an employment policy under which insufficient or no maternity leave is available,
such termination shall constitute unlawful sex discrimination.”
       {¶ 22} The court of appeals held that this provision requires, without
qualification, that an employer provide maternity leave, and because Pataskala
Oaks did not provide McFee a reasonable period of maternity leave, the leave
policy was direct evidence of sex discrimination. We disagree.
       {¶ 23} Appellant and its amici argue that if Ohio Adm.Code 4112-5-
05(G)(2) does mandate that employers provide maternity leave to employees
regardless of whether the employees qualify for leave under the employer’s



                                        7
                             SUPREME COURT OF OHIO




uniform minimum-length-of-service leave policy, then the rule is unconstitutional,
because the General Assembly has the constitutional authority to require
employers to provide maternity leave, but the Civil Rights Commission does not.
       {¶ 24} If an administrative rule exceeds the statutory authority established
by the General Assembly, the agency has usurped the legislative function, thereby
violating the separation of powers established in the Ohio Constitution. Burger
Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 384-385, 71 O.O.2d 366, 329
N.E.2d 693 (the General Assembly may not delegate lawmaking power). Rules
that exceed the authority of the agency will be held unconstitutional. Id. at 384.
       {¶ 25} The General Assembly sets public policy, and administrative
agencies, when granted rulemaking power, “develop and administer” those
policies. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250,
2002-Ohio-4172, 773 N.E.2d 536, ¶ 41. An agency exceeds its grant of authority
when it creates rules that reflect a public policy not expressed in the governing
statute. Id. Consistent with that principle, R.C. 4112.04(A)(4) provides that the
Civil Rights Commission shall “[a]dopt, promulgate, amend, and rescind rules to
effectuate the provisions of this chapter and the policies and practice of the
commission in connection with this chapter.”
       {¶ 26} Because R.C. 4112.02 and 4112.01 establish that employers must
treat employees affected by pregnancy the same as employees who are not
pregnant but who are similar in their ability or inability to work, the Civil Rights
Commission would unconstitutionally expand the public policy set by the
legislature if Ohio Adm.Code 4112-5-05 required preferential treatment for
employees affected by pregnancy as compared to the treatment of employees who
are not pregnant but who are similar in their ability or inability to work.
       {¶ 27} Under the rules of statutory construction, if an ambiguous statute is
susceptible of two interpretations and one of the interpretations comports with the
Constitution, then that reading of the statute will prevail and the court will avoid




                                          8
                                     January Term, 2010




striking the statute. E. Cleveland v. Evatt (1945), 145 Ohio St. 493, 496, 31 O.O.
167, 62 N.E.2d 325.              We apply the rules of statutory construction to
administrative rules as well. See, e.g., State ex rel. Brilliant Elec. Sign Co. v.
Indus. Comm. (1979), 57 Ohio St.2d 51, 54, 11 O.O.3d 214, 386 N.E.2d 1107 (the
“ordinary meaning rule” of statutory construction applies equally to
administrative rules).
         {¶ 28} Thus, a construction of an administrative rule that is consistent
with the public policy choices of the General Assembly preserves the rulemaking
role of the agency and avoids constitutional conflicts.
         {¶ 29} As explained above, the General Assembly intended to ensure
equal treatment for employees affected by pregnancy, but not to impart greater
rights or preferential treatment to employees affected by pregnancy. The rules
promulgated by the Civil Rights Commission must be read, if possible, in a
manner that effectuates the purpose of the General Assembly in enacting the
statutes.
         {¶ 30} Ohio Adm.Code 4112-5-05(G)(2) plainly prohibits termination of
an employee under a policy that provides insufficient leave for temporary
disability due to pregnancy or a related medical condition. Ohio Adm.Code
4112-5-05(G)(5)1 instructs that women shall not be penalized in the conditions of
their employment when they take time off for childbearing, if they are eligible to
do so.      Additionally, (G)(5) provides that when an employee is entitled to
childbearing leave, that leave must be reasonable in duration.

1. {¶ a} Ohio Adm.Code 4112-5-05(G)(5) provides:
   {¶ b} “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. Conditions
applicable to her leave (other than its length) and to her return to employment shall be in
accordance with the employer's leave policy.”




                                                 9
                              SUPREME COURT OF OHIO




         {¶ 31} The tension between subsections (G)(2) and (G)(5) is apparent;
(G)(2) appears to indicate that a policy providing no leave is discriminatory, while
(G)(5)     clearly   contemplates     that   a     uniform   minimum-length-of-service
requirement for leave eligibility is permissible. If possible, we must resolve this
ambiguity in a manner that gives effect to both provisions. D.A.B.E., Inc. v.
Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773
N.E.2d 536, ¶ 19.
         {¶ 32} Reading these rules in light of the statutory purpose, Ohio
Adm.Code 4112-5-05(G)(2) must mean that when an employee is otherwise
eligible for leave, the employer cannot lawfully terminate that employee for
violating a policy that provides no leave or insufficient leave for temporary
disability due to pregnancy or a related condition. Construed in this manner,
(G)(2) effectuates the intent of the General Assembly to prohibit discrimination
based upon pregnancy and to ensure equal treatment of employees affected by
pregnancy. California Fed. S. & L. Assn. v. Guerra, 479 U.S. at 287, 107 S.Ct.
683, 93 L.Ed.2d 613; Reeves v. Swift Trans. Co., Inc., 446 F.3d at 643.
         {¶ 33} This interpretation of the rule harmonizes (G)(2) with (G)(5),
which specifies that when a woman qualifies for leave, the leave provided for
childbearing must be reasonable. Conversely, a holding that interpreted Ohio
Adm.Code 4112-5-05(G)(2) to require maternity leave regardless of whether the
pregnant     employee     satisfied   the    employer’s      minimum-length-of-service
requirements would render meaningless the phrase in Ohio Adm.Code 4112-5-
05(G)(5) that “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.”
 C. The burden-shifting framework of McDonnell Douglas applies in this case.
         {¶ 34} The court of appeals held that Pataskala Oaks’ leave policy was
direct evidence of sex discrimination.            “Direct evidence of discrimination is




                                             10
                                    January Term, 2010




evidence that proves that discrimination has occurred without requiring further
inferences.” Reeves v. Swift Transp. Co., Inc., 446 F.3d at 640.
          {¶ 35} As discussed above, an employer may maintain a uniform
minimum-length-of-service leave policy consistent with Ohio law. Pataskala
Oaks’ policy is “pregnancy-blind” in that it does not treat employees affected by
pregnancy differently from employees “not so affected but similar in their ability
or inability to work.” Reeves v. Swift Transp. Co., Inc., 446 F.3d at 640-641. An
employment        policy that      imposes   a uniform   minimum-length-of-service
requirement for leave eligibility with no exception for maternity leave is not direct
evidence of sex discrimination under R.C. Chapter 4112. Thus, the McDonnell
Douglas analysis should be applied in cases involving such a policy. Id.
          {¶ 36} The parties agree that McFee was terminated because she took
leave from work even though she was not eligible for leave under Pataskala Oaks’
policy. McFee has not alleged any other basis for a finding of discrimination, nor
has she produced independent evidence that the proffered basis for the
termination was a pretext for discrimination. Accordingly, McFee has failed to
make a prima facie case of sex discrimination. The trial court properly dismissed
the case.
                                             IV
          {¶ 37} The judgment of the court of appeals is reversed.
                                                                   Judgment reversed
                                                               and cause dismissed.
          LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and LANZINGER, JJ.,
concur.
          PFEIFER, J., dissents.
          BROWN, C.J., not participating.
                                   __________________
          PFEIFER, J., dissenting.



                                             11
                              SUPREME COURT OF OHIO




        {¶ 38} The facts of this case are such that an ordinary citizen would think,
“There ought to be a law against that.” Until today, there was.
        {¶ 39} R.C. 4112.02(A) makes it unlawful for any employer “to discharge
without just cause” an employee because of his or her sex. R.C. 4112.01(B)
makes clear that the prohibition in R.C. 4112.02(A) includes discrimination and
discharge on the basis of pregnancy and pregnancy-related illness:
        {¶ 40} “[T]he terms ‘because of sex’ and ‘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 a 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.”
        {¶ 41} McFee provided a doctor’s note to Pataskala Oaks indicating that
she had a pregnancy-related illness, pregnancy-related swelling, that rendered her
unable to continue her job duties until six weeks after she gave birth. Pataskala
Oaks says that it did not fire McFee because she was ill, but because she missed
work because she was ill.        What did the General Assembly mean when it
protected women from discharge based upon pregnancy-related illness? Did it
intend women not to treat their illness, but instead to go to work ill? That they
should follow their doctor’s advice for bed rest by bringing their beds to their
place of employment? Does not the word “illness” connote missed work time?
        {¶ 42} The Civil Rights Commission was perfectly in line with R.C.
4112.01(B) when it promulgated Ohio Adm.Code 4112-5-05(G), establishing
what constitutes pregnancy discrimination and including in that definition
protections for women whose employers had no maternity leave available.
McFee is protected under Ohio Adm.Code 4112-5-05(G)(2):




                                           12
                               January Term, 2010




       {¶ 43} “Where termination of employment of an employee who is
temporarily disabled due to pregnancy or a related medical condition is caused by
an employment policy under which insufficient or no maternity leave is available,
such termination shall constitute unlawful sex discrimination.”
       {¶ 44} Pursuant to the Pataskala Oaks employment policy, there was no
maternity leave available to McFee. Therefore, her termination constituted direct
evidence of unlawful sex discrimination.
       {¶ 45} It should be noted that McFee was not asking to be paid for her
time off, and the law does not require her to be paid. The ironic postscript to this
whole matter is that Pataskala Oaks called McFee three weeks after firing her and
offered her a job. The burden of allowing McFee unpaid leave to deal with the
medical effects of her pregnancy had turned out to be not such a burden. Now, as
McFee’s child likely is graduating from kindergarten, Pataskala Oaks is finally
emerging from litigation. It fought the statutorily mandated decency contained in
R.C. 4112.01(B) and 4112.02(A) and won. Who is better for it?
                              __________________
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Alexandra T. Schimmer, Chief Deputy Solicitor General, Stephen P. Carney and
Emily S. Schlesinger, Deputy Solicitors, and Patrick M. Dull, Assistant Attorney
General, for appellee.
       Dinsmore & Shohl, L.L.P., Jan E. Hensel, and Patricia Gavigan, for
appellant.
       Gordillo & Gordillo, L.L.C., and Gregory A. Gordillo, urging affirmance
for amici curiae Ohio Employment Lawyers Association, Ohio Poverty Law
Center, and Ohio NOW Legal Defense and Education Fund.
       Porter, Wright, Morris & Arthur, L.L.P., and Jeffrey J. Weber, urging
reversal for amicus curiae National Federation of Independent Business Small
Business Legal Center.



                                        13
                           SUPREME COURT OF OHIO




       Rolf & Goffman Co., L.P.A., Carol Rolf, and Robert C. Pivonka, urging
reversal for amicus curiae Ohio Health Care Association.
       Vorys, Sater, Seymour & Pease, L.L.P., Thomas M. Tarpy, and Michael
C. Griffaton, urging reversal for amicus curiae Ohio Management Lawyers
Association.
                          ______________________




                                       14
