Pregnant Employee Unable to Create Genuine Issue of Material Fact to Show Disparate Treatment By Employer

Durham v. Rural/Metro Corporation - United States District Court, Northern District of Alabama, Middle Division

Facts:  Kimberlie Durham ("Durham") worked at Rural/Metro Corporation ("Rural/Metro") as an emergency medical technician ("EMT").  The EMT position required the person be able to respond to emergency and non-emergency requests, transport sick or injured people, and lift/move up to 100 pounds.  Approximately 5 months after being hired, Durham told Mike Crowell ("Crowell"), who managed this particular Rural/Metro location, that she was pregnant.  Durham also told Crowell that her doctor restricted her from lifting more than 50 pounds during her pregnancy.  As an alternative to her usual work, Durham requested that Crowell move her to light duty or dispatch.  Rural/Metro had a written Light Duty Policy "to temporarily modify an employee's existing position or work schedule, or provide transitional assignments to accommodate temporary restrictions identified by an employee's medical provider."  This Light Duty Policy applied only to employees that suffered from work related injury or illness.  Rural/Metro's Human Resources confirmed that Durham was ineligible for light duty because she was not on worker's comp and did not qualify for the Light Duty Policy.

Durham then requested she be put on dispatch, but Crowell told her the office staff was fully staffed and putting Durham on dispatch would be "creating an extra person I did not need."  (During her deposition, Durham stated she was not aware of any light duty positions at time she made her accommodation request, but after the deposition stated that at the time she informed Rural/Metro of her lifting restriction, she was aware of open dispatch positions.)

Since Durham was not eligible for FMLA leave, her only option was to take unpaid personal leave.  Rural/Metro allowed employees to take unpaid leave for up to 90 days with the ability to extend it an additional 90 days thereafter.  However, Rural/Metro does not allow employees to use this leave "for the purpose of pursuing another position, temporarily trying out new work, or venturing into business."  While Rural/Metro notified Durham that she could take a personal leave of absence, Durham did not sign the request because she believed Rural/Metro's policy prohibited her from finding another job or filing for unemployment.

After filing a Charge of Discrimination with the Equal Employment Opportunity Commission, Durham filed suit against Rural/Metro and alleged pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pregnancy Discrimination Act ("PDA").  Rural/Metro moved for summary judgment.

Holding:  A claimant that brings a disparate treatment claim under the PDA has the same burden of proof as a claimant that brings a disparate treatment claim based on sex under Title VII.  Discriminatory intent can be established via either direct or circumstantial evidence.  In the absence of direct evidence, "an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through the application of the McDonnell Douglas framework."  A claimant is therefore required to show that actions taken by the employer can be inferred, if unexplained, to be more likely than not that based upon a discriminatory criteria.  As a result, for Durham to prevail, she must show:  1) she was a member of a protected class; 2) she was qualified to do the job; 3) she was subject to an adverse employment action; and 4) similarly situated employees outside the protected class were treated differently.  The district court noted that the first two elements were undisputed so the analysis turned to the third and fourth factors.

In this instance, the Court pointed out that whether Durham actually suffered an adverse employment action was disputed.  Durham alleged that Rural/Metro subjected her to an adverse employment action by not allowing her to continue to work, denying her a light duty assignment, denying her a transfer to dispatch, and terminating and/or constructively discharging her.  Rural/Metro countered and argued denial of a light duty assignment and denial of a transfer to dispatch did not, by definition, amount to an adverse employment action.

The Court held that even if Durham met her burden of proving an adverse employment action, she must also provide substantial evidence that Rural/Metro intentionally treated her less favorably than other employees in a similar situation.  In an effort to meet this burden, Durham pointed to three other employees that were allowed a light or modified duty assignment.  Durham argued that these three male employees all had lifting restrictions (as she did) that prohibited them from lifting the required amount to be an EMT.  Rural/Metro noted, and Durham conceded, that the difference was Durham's restriction arose from pregnancy as opposed to an on the job injury like with these other employees.

In turning to the requirements of the PDA, the Court pointed out that it did not require an employer provide a special accommodation to its employees; only that pregnant employees be given the same opportunities and benefits as nonpregnant employees that were similarly limited in their ability to work.  Interestingly, the Court pointed out a Seventh Circuit Court of Appeals case that held "[T]he Pregnancy Discrimination Act does not require that employers make accommodations for their pregnant workers; 'employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.'"  However, the Court held that Durham failed to present any evidence of nonpregnant employees with lifting restrictions assigned to light duty when they were injured outside of work.  In the absence of this evidence, Durham was unable to establish a genuine dispute as to whether Rural/Metro provided more favorable treatment to at least some employees whose situation could not be reasonably distinguished from hers.

Judgment:  The District Court granted Rural/Metro's motion for summary judgment on the grounds that the employee failed to establish a valid Title VII and PDA claim because she could not establish a genuine issue of material fact existed that an adverse employment action was taken against her nor could she locate similarly situated employees to show the employer treated them differently.

The Takeaway:  Taking the facts of this case at face value and considering Durham's position (in regard to being limited in her EMT role because of her pregnancy), I do not think it is a stretch to hold that Rural/Metro might have discriminated against her by failing to provide the requested accommodation.  I say "might" because several things worked against Durham here namely the fact that the Light Duty Policy was explicit in that it applied only to those employees who suffered work related injuries (not employees that were pregnant) and Durham's inability to point to a similarly situated employee to show there were given more favorable treatment.  With that being said, it is somewhat easy to say that because Durham was pregnant and not afforded the option for light duty work, she was discriminated against.  However, applying the facts to the statutes and caselaw, Durham was simply unable to establish a genuine issue of material fact as to the third and fourth prong of McDonnell Douglas.

Majority Opinion Judge:  Judge Axon

Date:  October 9, 2018

Opinion:  http://hr.cch.com/ELD/DurhamRural100918.pdf