UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-20242
MONICA M. GARCIA,
Plaintiff-Appellant
VERSUS
WOMAN’S HOSPITAL OF TEXAS,
Defendant-Appellee
Appeal from the United States District Court
For the Southern District of Texas
June 22, 1998
Before KING, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:
I.
FACTS & PROCEDURAL HISTORY
The district court entered judgment as a matter of law under
Fed. R. Civ. P. 50 (a) against appellant for the second time and
she again appeals that decision. This Court’s first opinion in
this case sets out the relevant factual basis for Garcia’s claims
in sufficient detail, and we need not cover that ground again here.
See Garcia v. Woman’s Hosp. of Texas, 97 F.3d 810, 811-12 (5th Cir.
1996). In short, Garcia became pregnant while working as an LVN in
the Family Care Center Unit (maternity ward) at Woman’s Hospital of
Texas (“the hospital”) and, due to pregnancy related health
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problems, was forced to convalesce at home for just over a month
from January 28 to March 1, 1993. Thereafter her obstetrician, Dr.
Debra Gunn, who also worked at the hospital, released her to return
to work, believing that Garcia was fit to perform the duties of an
LVN in the maternity ward at the hospital, as Dr. Gunn understood
those duties. The hospital administration, consistent with
hospital policy, required Dr. Gunn to certify on a prepared form
that Garcia could perform a variety of ostensibly required tasks.
Dr. Gunn certified that Garcia could perform all of the listed
tasks with the exception of pushing, pulling or supporting 150
pounds. Consistent with hospital policy, Garcia was not allowed to
return to work with the above limitation, and after she was on
leave for more than six months the hospital terminated her, again
consistent with hospital policy.
Garcia sued the hospital for violation of Title VII of the
Civil Rights Act of 1964, as amended by the Pregnancy
Discrimination Act of 1978. 42 U.S.C. § 2000e(k). The district
court denied the hospital’s motion for summary judgment and the
case went to trial. At the close of plaintiff’s case, the district
court granted the hospital’s Rule 50 motion on the grounds that the
hospital’s policies were applied to all employees equally, whether
pregnant or not, and therefore, Garcia could not make out a case of
disparate treatment. Before the district court granted the Rule 50
motion, Garcia sought permission to reopen her case to call Dr.
Gunn to testify that no pregnant woman could push, pull or support
150 pounds, thereby demonstrating that the policy had a disparate
2
impact on pregnant women. The motion to reopen was denied and the
Rule 50 motion was granted.
Garcia appealed and this Court reversed and remanded. This
Court ordered the district court to allow Dr. Gunn to testify and
to reconsider the Rule 50 motion in light of that testimony. On
remand, Garcia asked the district judge to recuse himself, which he
declined to do. Thereafter, Garcia called Dr. Gunn, and her
testimony was taken by the Court, without a jury. The district
court then reviewed all the evidence in the case, including Dr.
Gunn’s testimony, and again granted the hospital’s Rule 50 motion,
whereupon Garcia filed the instant appeal. Garcia’s appeal
essentially raises the following issues:
1. Whether the district judge should have recused himself;
2. Whether the district court erred by taking Dr. Gunn’s
testimony without a jury, rather than retrying the entire case
to a jury, and then reconsidering any Rule 50 motion urged by
the hospital at the close of Garcia’s case;
3. Whether the district court erred by granting the hospital’s
Rule 50 motion for judgment as a matter of law for the second
time.
II.
LAW & ANALYSIS
A.
STANDARDS OF REVIEW
The district judge’s decision not to recuse himself is
reviewed for abuse of discretion. In re Chevron U.S.A., Inc., 121
F.3d 163, 165 (5th Cir. 1997), citing In re City of Houston, 745
F.2d 925 (5th Cir. 1984). The procedural question of how to handle
the taking of Dr. Gunn’s testimony on remand is committed to the
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sound discretion of the district court, and like all matters of
docket management and trial procedure, it is reviewed for an abuse
of that discretion. Sims v. ANR Freight System, Inc., 77 F.3d 846,
849 (5th Cir. 1996). Finally, the district court decision to grant
the hospital’s motion for judgment as a matter of law is again
reviewed de novo. Garcia I, 97 F.3d at 812, citing Resolution
Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir. 1993).
B.
Recusal
Title 28 U.S.C. § 455 governs recusal of federal district
judges. “Section 455(a) requires that a judge ‘shall recuse
himself in any proceeding in which his impartiality might
reasonably be questioned.’ Section 455(b)(1) provides that the
judge ‘shall also disqualify himself ... [w]here he has a personal
bias or prejudice concerning a party....’” In re Chevron, 121 F.3d
at 165 n. 3 (emphasis added). The tenor of § 455's language is
mandatory, but this Court has recognized that disqualification
under this section “is committed to the sound discretion of the
district court.” Id.
The district judge did not abuse his discretion by refusing to
recuse himself. His comments on remand regarding the plaintiff’s
case reflected no personal animus against Garcia or in favor of the
hospital. His comments regarding Garcia’s ability to prove her
case were perhaps unflattering, but reflected only the district
judge’s considered opinion upon having viewed the evidence and law
in this case. It was no violation of judicial impartiality for the
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district judge to form an opinion regarding the merits of the
plaintiff’s case, otherwise he could not have decided the motion
for judgment as a matter of law, as the decision of that motion
required the district judge to formulate an opinion about the
sufficiency of the plaintiff’s case under the applicable law. The
district judge’s comments did not indicate that he would ignore the
probative value, if any, of Dr. Gunn’s testimony when reevaluating
the hospital’s Rule 50 motion. Ultimately, nothing about the
district court’s ruling evinced any personal bias, prejudice or
impartiality, therefore, we find no abuse of discretion in the
district judge’s refusal to disqualify himself in this case.
C.
Dr. Gunn’s Proffer
There was considerable confusion below concerning whether this
Court’s previous opinion required the district court to give Garcia
a new trial, wherein she would have the opportunity to call Dr.
Gunn to testify, followed by an appropriate ruling on any Rule 50
motion reurged by the hospital. This Court’s opinion carefully
identifies the sort of testimony Dr. Gunn might have given, which
would have affected the propriety of the hospital’s Rule 50 motion.
Garcia I, 97 F.3d at 814. The district court determined that it
would be more efficient to take Dr. Gunn’s testimony by proffer
before selecting a jury, and determine based thereon whether to
allow Garcia a new trial. We are unwilling to say that such
approach was an abuse of discretion. It would have been a waste of
resources for the district court to grant a new trial, if Dr.
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Gunn’s testimony was not helpful to Garcia’s case. If Dr. Gunn’s
testimony failed to establish disparate treatment (i.e.,
discriminatory application of the hospital’s policies to pregnant
women), then the jury would have to be dismissed, because the
disparate impact claim standing alone cannot be tried to a jury. 1
Furthermore, if Dr. Gunn’s testimony failed to establish that the
hospital’s policies had a disparate impact on pregnant women, then
judgment as a matter of law would be appropriate. Therefore, one
can easily see the wisdom in taking Dr. Gunn’s testimony and
assessing its probative value prior to incurring the expense of a
new trial, and we find no abuse of discretion by the district court
in doing so.
D.
Merits of Rule 50 Motion
The district court was correct on the law and facts in this
case that, as a matter of law, Garcia’s evidence was insufficient
to make out a prima facie disparate impact or disparate treatment
claim under the Civil Rights Act of 1964, as amended by the
1
Prior to the Civil Rights Act of 1991, Title VII claims could not be
tried to a jury, and compensatory and punitive damages could not be
awarded. The Civil Rights Act of 1991 amended Title VII to allow
compensatory and punitive damages in cases of intentional discrimination
(i.e., not in cases involving disparate impact only), and jury trials were
permitted only in cases where compensatory and punitive damages were
proper, in other words, in disparate treatment cases. See Rev.Stat. §§
1977A(a) & (c), 42 U.S.C. §§ 1981a(a) & (c), as added by § 102 of the 1991
Act. Therefore, a jury may not determine the disparate impact claim, and,
if that is the only claim left, there is no need for a jury.
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Pregnancy Discrimination Act of 1978.2 To make out a prima facie
violation of the Civil Rights Act of 1964, as amended by the
Pregnancy Discrimination Act of 1978, Garcia had to show: 1) that
the hospital’s policies or their application intentionally treated
her differently than non-pregnant employees because of her
pregnancy (i.e., disparate treatment); or 2) that the hospital’s
policies had a disproportionately negative impact on pregnant
employees like herself as compared to non-pregnant employees (i.e.,
disparate impact). Garcia I, 97 F.3d at 813, citing Griggs v. Duke
Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).
i.
Disparate Treatment
Intentional disparate treatment may be achieved via a policy
which on its face classifies pregnant employees differently from
other non-pregnant employees. See, e.g., International Union, UAW
v. Johnson Controls, 499 U.S. 187, 197-98, 111 S. Ct. 1196, 1202-
1203, 113 L. Ed. 2d 158 (1991). On the other hand, a facially
neutral policy may also be used to intentionally discriminate
against employees because of their pregnancy if selectively applied
to them.3 Garcia failed to make out a prima facie case for facial
or pretextual disparate treatment, because she could not show that
2
There was a debate in the district court on remand as to whether the
district court was to reconsider both Garcia’s disparate impact and
disparate treatment claims in light of Dr. Gunn’s testimony or just the
disparate impact claim. Our resolution of the merits of the district
court’s decision renders the question moot.
3
This is what the Court referred to as pretextual disparate treatment
in Garcia I, supra at 813 n. 2.
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she was treated differently than anyone else. The policies on
their face do not classify pregnant employees differently from all
other employees. Furthermore, the testimony proved that the
policies, were applied equally to all employees. Dr. Gunn’s
testimony in fact reinforced the testimony of Ms. Judith Ann
Squyres, R.N., the hospital’s Employee Health Risk Management
Coordinator in the relevant time period. Ms. Squyres testified
that no employees on sick leave were allowed to return to work,
unless their doctor certified on a prepared form that they could
perform various listed tasks, which ostensibly were requirements of
their jobs. The state of this evidence will not support a finding
that Garcia was intentionally treated differently from other non-
pregnant employees, and judgment as a matter of law was appropriate
on her disparate treatment claim.
ii.
Disparate Impact
The principal reason for remand in this case was so that Dr.
Gunn’s testimony might be taken and so that the district court
might reevaluate the propriety of judgment as a matter of law in
light of her testimony. Garcia I, 97 F.3d at 814. We pointed out
that, if Dr. Gunn testified that no pregnant woman could meet the
requirement of pushing, pulling or supporting 150 pounds, then
Garcia could make out a prima facie case of disparate impact. This
is true because the 150-pound-restriction could be expected to keep
all pregnant women who take sick leave like Garcia from being able
to return to work when their illness abates.
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Dr. Gunn did not testify that no pregnant women could lift 150
pounds. Rather, she testified that she could not accept the
potential legal liability associated with saying that any woman
could lift 150 pounds, whether pregnant or not. That is not an
expert opinion about the likely effect of the 150-pound-restriction
on all pregnant women. The substance of Dr. Gunn’s testimony is
legally insufficient to establish a prima facie case of disparate
impact; therefore, judgment as a matter of law was appropriate.
III.
CONCLUSION
The district judge did not abuse his discretion by refusing to
recuse himself as there was no personal bias or prejudice against
the plaintiff and none of his comments reflect any impartiality,
i.e., inability to decide the merits of the case based on the
controlling law as applied to the evidence. The district court did
not abuse its discretion by taking Dr. Gunn’s testimony by proffer
without a jury, as that was the only sensible course under the
circumstances. Finally, the district court correctly entered
judgment as a matter of law on Garcia’s disparate treatment claim
for lack of evidence of unequal application of the facially neutral
policies, and the district court correctly entered judgment as a
matter of law on Garcia’s disparate impact claim for lack of
evidence that the policies could result in a disproportionately
negative effect on pregnant women. Therefore, we affirm.
AFFIRMED.
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