UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
96-21115
__________________________
MIRTHA URBANO,
Plaintiff-Appellant,
versus
CONTINENTAL AIRLINES, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Southern
District of Texas
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April 15, 1998
Before REAVLEY, JONES, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Urbano challenges the district court’s holding
that a company policy of granting light-duty assignments only to
workers who suffer occupational injuries does not violate Title
VII, as amended by the Pregnancy Discrimination Act (“PDA”).
Because the PDA protects pregnant women only from being treated
differently than similarly-situated non-pregnant employees, it does
not guarantee light-duty assignments. We affirm the judgment as a
matter of law for Continental Airlines, Inc.
BACKGROUND
In 1990, Mirtha Urbano began working for Continental
Airlines in various capacities, most recently as a Ticketing Sales
Agent. In that job, she assisted customers with sales and
checking-in passengers and their baggage, often lifting loads in
excess of twenty pounds.
In October of 1994, Urbano learned she was pregnant.
Shortly thereafter, she began suffering low-back discomfort and
went to see her doctor. The doctor ordered her to refrain from
lifting anything over twenty pounds for the balance of her
pregnancy.
Pursuant to these instructions, Urbano requested to work
in a Service Center Agent position, which does not require
employees to lift heavy loads. The request was denied because
Continental’s transitional duty policy grants light-duty
assignments only to employees who suffer an occupational injury.
Employees with a nonoccupational injury or illness who would like
a less physically demanding position must go through Continental’s
normal duty assignment system, in which employees bid for the
positions of their choice, and the positions are assigned by
seniority. Continental deemed Urbano ineligible under its policy
for a mandatory light duty transfer. Unable to return to work and
comply with her doctor’s restrictions, Urbano was forced to use her
accrued sick days, followed by a ninety-day family leave and then
unpaid medical leave.
By March of 1995, Urbano filed charges of discrimination
with the E.E.O.C. On March 30, 1995, Urbano received her right-to-
sue letter and timely filed suit in federal district court,
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alleging, inter alia, a disparate treatment theory of pregnancy
discrimination.
After the district court granted Continental’s motion
judgment as a matter of law, this appeal followed.1
STANDARD OF REVIEW
This court reviews the grant of summary judgment de
novo, applying the same standards as the district court. See
Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.
1995). Summary judgment is appropriate, when, viewing the
evidence in the light most favorable to the nonmoving party, the
record reflects that no genuine issue of any material fact
exists, and the moving party is entitled to judgment as a matter
of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106
S. Ct. 2548, 2252-53 (1986); see also Fed. R. Civ. P. 56(c).
Once the movant carries his burden, “the nonmovant must go beyond
the pleadings and designate specific facts showing that there is
a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994).
1
In addition to her claim of discrimination under the theory
of disparate treatment, Urbano challenges the district court’s
order granting judgment as a matter of law on her claims of
disparate impact and retaliatory discharge under the PDA, as well
as her claim of retaliatory discharge under the FMLA. We have
reviewed the briefs and the pertinent portions of the record and
find no reversible error. Urbano did not adduce evidence
sufficient to create a genuine issue of material fact on those
claims. Accordingly, we affirm on these issues for essentially the
reasons relied upon by the district court.
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DISCUSSION
Title VII of the 1964 Civil Rights Act “prohibits various
forms of employment discrimination, including discrimination on the
basis of sex.” California Fed. Sav. & Loan Ass’n v. Guerra, 479
U.S. 272, 276-77, 107 S. Ct. 683, 687 (1987). With the passage of
the PDA in 1978, Congress amended the definitional section of Title
VII as follows:
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, childbirth, or related medical
conditions; and 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 . . . .
42 U.S.C. § 2000e(k) (1994). A claim under the PDA is analyzed
like Title VII discrimination claims in general. See Garcia v.
Women’s Hosp., 97 F.3d 810, 812-13 (5th Cir. 1996).
To establish a prima facie case of discrimination under
Title VII, a plaintiff may prove her claim either through direct
evidence, statistical proof, or the test established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817 (1973). The McDonnell Douglas test requires the plaintiff to
show: (1) she was a member of a protected class, (2) she was
qualified for the position she lost, (3) she suffered an adverse
employment action, and (4) that others similarly situated were more
favorably treated. See Geier v. Medtronic, Inc., 99 F.3d 238, 241
(7th Cir. 1996) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.
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Ct. at 1824). Once the employer articulates a legitimate,
nondiscriminatory reason for the employment action, however, the
scheme of shifting burdens and presumptions “simply drops out of
the picture,” and “the trier of fact proceeds to decide the
ultimate question: whether plaintiff has proved ‘that the defendant
intentionally discriminated against [her]’ because of [her sex].”
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742
(1993) (internal citation omitted).
The district court found that Urbano failed to establish
the second prong of her prima facie case for disparate treatment.
Specifically, the district court held that Urbano could not
“provide evidence creating a genuine issue as to whether she was
qualified for transfer into a light-duty position, i.e., that she
sustained a work related injury.” Continental also asserts that
Urbano failed to offer evidence that she was treated differently
under Continental’s policy than other employees with non-
occupational injuries.
We agree.
Continental treated Urbano in exactly the same manner as
it would have treated any other worker who was injured off the job.
Light duty assignments were at a premium. Each of the forty-eight
employees who received a light-duty assignment in 1994 had suffered
an occupational injury. Urbano was not denied a light-duty
assignment because of her pregnancy, but because her back troubles
were not work related. Under the PDA, an employer is obliged to
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ignore a woman’s pregnancy and “to treat the employee as well as it
would have if she were not pregnant.” Piraino v. International
Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996).
Thus, Continental was entitled to deny Urbano a light-duty
assignment as long as it “treat[s] similarly affected but
nonpregnant employees” the same. Troupe v. May Dep’t Stores Co.,
20 F.3d 734, 738 (7th Cir. 1994); see also Guerra, 479 U.S. at 285-
86, 107 S. Ct. at 692. Without a showing that Continental adhered
to the requirements of the light-duty policy only in cases
involving its pregnant workers, Urbano cannot maintain that she was
a victim of discrimination under the PDA. See Rhett v. Carnegie
Ctr. Assocs. (In re Carnegie Ctr. Assocs.), 129 F.3d 290, 296 (3d
Cir. 1997); Geier, 99 F.3d at 242-43; Troupe, 20 F.3d at 738.
Urbano argues that she was physically and mentally
qualified to perform the duties required for light-duty assignment,
but that Continental’s policy of granting light duty only to
employees who are injured on the job deprived her of an employment
opportunity on the basis of her pregnancy. Under this theory,
employees who are unable to perform their regular duties because of
their pregnancy will never be able to enjoy the same benefits as
employees who suffer occupational injuries, even though these two
groups are no different in their ability or inability to work.
Urbano concludes that Continental’s policy discriminated against
her on the basis of her pregnancy and, therefore, violates the PDA.
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Appellant relies heavily on the Sixth Circuit’s opinion
in Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996). At the
heart of Ensley-Gaines was a Postal Service policy of granting
“limited duty” assignments to employees who were injured on the
job, and “light duty” assignments to employees with non-work
related conditions. Because the “light duty” assignments were
granted at the employer’s discretion and “limited duty” assignments
were granted as employee entitlements, a pregnant employee who
received light duty for only a few hours a day challenged the
policy as being violative of Title VII. The Sixth Circuit held
that a plaintiff establishes a prima facie case of discrimination
when she can demonstrate that her employer’s policy treats pregnant
women differently than workers who are injured on the job. The
Sixth Circuit reasoned that the PDA requires employers to treat
pregnant employees in the same manner as they would other employees
who were similarly situated with respect to their ability or
inability to work. See id. at 1226. Because pregnant employees
and employees who were injured on the job are no different in their
ability or inability to do their work, the latter cannot receive
more favorable treatment than the former.
The appellant argues that “[t]he Sixth Circuit’s
reasoning is sound because it would defeat the very purpose of the
PDA to allow an employer to deny pregnant employees opportunities
because they could not meet a ‘qualification’ that was itself
discriminatory.” On the contrary, the rule advocated by Urbano and
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the Sixth Circuit effectuates discrimination contrary to the PDA --
in favor of pregnant employees.
The PDA must be understood in the context in which it was
enacted. See Guerra, 479 U.S. at 284, 107 S. Ct. at 691. The
Supreme Court held in General Electric Co. v. Gilbert, 429 U.S.
125, 136-138, 97 S. Ct. 401, 408-09 (1976), that under Title VII,
discrimination on the basis of pregnancy was not sex
discrimination. In the wake of this decision, Congress passed the
PDA, Pub. L. No. 95-555, 92 Stat. 2076 (1978). The PDA amended the
definitional provision of Title VII “to specif[y] that sex
discrimination includes discrimination on the basis of pregnancy.”
Guerra, 479 U.S. at 277, 107 S. Ct. at 687. In so doing, Congress
“unambiguously expressed its disapproval” with the Gilbert
decision. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462
U.S. 669, 678, 103 S. Ct. 2622, 2628 (1983).
Against this legislative backdrop, most courts have held
that the PDA does not impose an affirmative obligation on employers
to grant preferential treatment to pregnant women. See Guerra, 479
U.S. at 284-86, 107 S. Ct. at 691-92; In re Carnegie Ctr. Assocs.,
129 F.3d at 295 (“[T]he PDA does not require that employers treat
pregnant employees better than other temporarily disabled
employees.”); Lang v. Star Herald, 107 F.3d 1308, 1312 (8th Cir.
1997) (“[The PDA] does not create substantive rights to
preferential treatment.”); Garcia, 97 F.3d at 813. (“The PDA does
not mandate preferential treatment for pregnant women . . . .”);
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Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312 (11th Cir.
1994) (“Rather than introducing new substantive provisions
protecting the rights of pregnant women, the PDA brought
discrimination on the basis of pregnancy within the existing
statutory framework prohibiting sex-based discrimination.”);
Troupe, 20 F.3d at 738 (“The Pregnancy Discrimination Act does not
. . . require employers to offer maternity leave or take other
steps to make it easier for pregnant women to work . . . .”). By
defining sex discrimination under Title VII to include pregnancy,
Congress intended to do no more than “re-establish principles of
Title VII law as they had been understood prior to the Gilbert
decision,” Newport News, 462 U.S. at 679, 103 S. Ct. at 2628, and
ensure that female workers would not be treated “differently from
other employees simply because of their capacity to bear children,”
Johnson Controls, 499 U.S. at 205, 111 S. Ct. at 1206. The Sixth
Circuit drew the opposite conclusion without citing any of the
opposing circuit court decisions and after distinguishing,
unpersuasively, a previous case from its own court. The impact of
Ensley-Gaines is unequivocally to treat pregnant employees who need
light duty work better than other employees with a similar medical
need whose conditions arose off-the-job. This is contrary to
Guerra. 479 U.S. at 291, 107 S.Ct. at 695 (holding that while the
PDA does not mandate better treatment for pregnant than non-
pregnant employees, it does not pre-empt a state law that
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“establishes benefits that employers must, at a minimum, provide to
pregnant women”).
In this case, Continental treated Urbano the same as it
treats any other worker who suffered an injury off duty. There is
no probative evidence that Continental’s distinction between
occupational and off-the-job injuries was a pretext for
discrimination against pregnant women or that it had a disparate
impact on them. Urbano’s claim is thus not a request for relief
from discrimination, but rather a demand for preferential
treatment; it is a demand not satisfied by the PDA.2 As long as
pregnant employees are treated the same as other employees injured
off duty, the PDA does not entitle pregnant employees with non-work
related infirmities to be treated the same under Continental’s
light-duty policy as employees with occupational injuries.
CONCLUSION
For the foregoing reasons, the district court’s order
granting judgment as a matter of law in favor of the employer is
AFFIRMED.
2
Indeed it could be argued that granting pregnant employees a
benefit men are ineligible to receive is not only not required
under the PDA, but it is also not permissible under Title VII, for
such a policy would treat a male employee “‘in a manner which but
for that person’s sex would be different.’” Newport News, 462 U.S.
at 683, 103 S. Ct. at 2631 (quoting Los Angeles Dep’t of Water &
Power v. Manhart, 435 U.S. 702, 711, 98 S. Ct. 1370, 1377 (1978)).
The PDA merely specifies that under Title VII an employer must not
discriminate on the basis of a women’s pregnancy; it does not
“erase the original prohibition against discrimination on the basis
of an employee’s sex.” Newport News, 462 U.S. at 685, 103 S. Ct.
at 2632.
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