Case: 19-50046 Document: 00515067841 Page: 1 Date Filed: 08/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50046 August 7, 2019
Summary Calendar
Lyle W. Cayce
Clerk
MICHELLE SANTOS,
Plaintiff - Appellant
v.
WINCOR NIXDORF, INCORPORATED,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CV-440
Before HIGGINBOTHAM, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
The district court granted Wincor Nixdorf summary judgment on
Michelle Santos’s pregnancy discrimination claim, concluding that Santos had
not presented sufficient evidence to support her prima facie case of
discrimination. We affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 19-50046
I
This case’s background is laid out in detail in the district court’s
summary judgment order. 1 In brief, Santos was hired through a staffing
agency to work for Wincor as a project analyst; while her employment was
formally administered by the staffing agency, she was directly supervised by
Wincor Nixdorf. As a new project analyst, Santos was expected to undergo on-
the-job training in lieu of a formal training program. About a month after she
was hired, she told her supervisor, Danielle Mathews, that she was pregnant.
Mathews allowed Santos to occasionally work from home if she had medical
appointments or was not feeling well. About two months later, upon
instructions from her doctor, Santos asked Mathews if she could work from
home full-time for the remainder of the pregnancy—from late January to mid-
March—and for a few weeks after she was scheduled to give birth. Although
Mathews expressed concerns about this arrangement to Santos, Wincor’s
human resources director, and Wincor’s contact at the staffing agency, she
granted the request.
Wincor presents evidence that Santos committed multiple work-related
errors both before and after she began working from home full-time, and that
her coworkers were concerned that they were not able to easily reach her.
Shortly after Santos began working from home full-time, Mathews asked the
staffing agency to begin searching for a replacement for Santos. In late
February, Mathews and Santos exchanged emails about whether Santos was
properly logging her hours. Santos stated that she in fact was working more
hours than she had been logging because she had been told that any hours
beyond 45 hours per week required approval from a supervisor, but was unable
1 See Santos v. Wincor Nixdorf, Inc., No. 1:16-CV-440-RP, 2018 WL 1463710 (W.D.
Tex. Mar. 23, 2018).
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to complete her assigned tasks within that timeframe. The next day, Mathews
told the staffing agency that she wanted to replace Santos by mid to late
March. Santos was terminated on March 10, and the staffing agency told her
that it was due to her performance.
Santos sued Wincor, alleging that it had retaliated against her in
violation of the Fair Labor Standards Act and had engaged in pregnancy
discrimination in violation of Title VII of the Civil Rights Act of 1964 and the
Pregnancy Discrimination Act of 1978. 2 The district court granted Wincor
summary judgment on all claims 3 and denied Santos’s motion for
reconsideration regarding her pregnancy discrimination claim. 4
II
“Title VII of the Civil Rights Act of 1964 forbids a covered employer to
‘discriminate against any individual with respect to . . . terms, conditions, or
privileges of employment, because of such individual’s . . . sex.’” 5 The
Pregnancy Discrimination Act clarified that this extends to discrimination
“because or on the basis of pregnancy, childbirth, or related medical
conditions,” and requires employers to treat women affected by such conditions
“the same for all employment-related purposes . . . as other persons not so
affected but similar in their ability or inability to work.” 6
“A claim brought under the [Pregnancy Discrimination Act] is analyzed
like any other Title VII discrimination claim.” 7 When, as here, a plaintiff relies
2 Santos originally also brought a claim for violations of the FLSA and included
Mathews as a defendant. Her amended complaint dropped all claims against Mathews and
only asserted the FLSA retaliation and Title VII claims.
3 Santos, 2018 WL 1463710, at *9.
4 Santos v. Wincor Nixdorf, Inc., No. 1:16-CV-440-RP, 2018 WL 6728483 (W.D. Tex.
Dec. 21, 2018).
5 Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1344 (2015) (quoting 42 U.S.C. §
2000e-2(a)(1)).
6 42 U.S.C. § 2000e(k).
7 Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 966 (5th Cir. 2016).
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on the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 8 she must initially establish her prima facie case. This requires her to
carry her summary judgment burden in showing genuine disputes of material
fact over whether she “(1) is a member of a protected group; (2) was qualified
for the position at issue; (3) was discharged or suffered some adverse
employment action by the employer; and (4) was replaced by someone outside
[her] protected group or was treated less favorably than other similarly
situated employees outside the protected group.” 9
We review the district court’s grant of summary judgment de novo. 10 We
will affirm “where, construing the evidence in the light most favorable to the
non-moving party, ‘there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.’” 11
III
Santos does not appeal the rejection of her FLSA retaliation claim, nor
does she argue that the district court erroneously determined that she had
failed to present direct evidence of discrimination. 12 Santos solely argues that
the district court erred in concluding that she had failed to present sufficient
evidence of a similarly situated, non-pregnant comparator who was treated
more favorably.
“[W]e require that an employee who proffers a fellow employee as a
comparator demonstrate that the employment actions at issue were taken
‘under nearly identical circumstances.’” 13 Specifically, “[t]he employment
8411 U.S. 792, 802–03 (1973).
9E.g., Roberson-King v. La. Workforce Comm’n, 904 F.3d 377, 381 (5th Cir. 2018).
10 E.g., Sims v. City of Madisonville, 894 F.3d 632, 637 (5th Cir. 2018) (per curiam).
11 Id. (quoting Tolan v. Cotton, 572 U.S. 650, 656–57 (2014) (per curiam)).
12 See Santos, 2018 WL 1463710, at *6.
13 Lee v. Kansas City Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting Little v.
Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)) (alteration in original).
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actions being compared will be deemed to have been taken under nearly
identical circumstances when the employees being compared held the same job
or responsibilities, shared the same supervisor or had their employment status
determined by the same person, and have essentially comparable violation
histories.” 14 While the plaintiff must show that a comparator was treated more
favorably in nearly identical circumstances, she need not prove that the
circumstances were identical to her own in every way. 15
The district court concluded that Santos had not presented sufficient
evidence of a similarly situated, non-pregnant employee who was treated more
favorably. 16 We agree. In her opposition to Wincor’s motion for summary
judgment, Santos argued that she had presented direct evidence of
discrimination on the basis of her pregnancy and related medical conditions,
an argument she has now abandoned on appeal. She also argued that she had
presented sufficient circumstantial evidence of pregnancy discrimination,
focusing on the timing of Mathews’s decision to terminate Santos, Wincor’s
failure to give her earlier warnings about poor performance, and ways in which
she was treated differently from other placements by the same staffing agency.
But Santos did not present sufficient evidence to allow the conclusion that a
non-pregnant employee was treated differently in nearly identical
circumstances. She identified one staffing agency placement who was
terminated approximately two weeks after being hired due to his inability to
operate basic, essential software programs. She also identified an unnamed
placement Mathews discussed in her deposition, who, after being allowed to
14 Id. (footnotes omitted).
15 See id. at 260–61.
16 See Santos, 2018 WL 1463710, at *7–8.
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work from home for no more than a few weeks, 17 returned to work and then
“stopped showing up ‘enough’ such that Mathews had to terminate her.” 18
Santos presented no evidence that either of these employees were in nearly
identical circumstances to her own—that is, temp-for-hire placements in the
middle of their on-the-job training periods who sought to work from home for
an extended period of approximately two months. The district court therefore
did not err in determining that under the evidence presented, there was no
genuine dispute of fact over whether a specific comparator or comparators were
treated more favorably than Santos under nearly identical circumstances.
Santos also suggests that the seventeen full-time non-pregnant
employees who worked in the same department under Mathews’s supervision
were all proper comparators for the purpose of her prima facie case of
discrimination. We reject this argument as well. The district court concluded
that Santos did not provide sufficient evidence to conclude that any of these
full-time employees were in nearly identical circumstances to Santos, even
putting aside the fact that none of them appeared to have sought work-from-
home accommodations. 19 More fundamentally, however, it is not enough for
Santos to compare herself to other employees who did not ask for or receive
work-from-home accommodations of any sort. The Pregnancy Discrimination
Act requires that women affected by pregnancy and related medical conditions
“shall be treated the same for all employment-related purposes . . . as other
17 In her deposition, Mathews stated that this employee worked from home for no more
than “a couple” of weeks. Santos does not offer any evidence suggesting that this employee
was actually allowed to work from home for a longer period of time.
18 Santos does not directly argue on appeal that the district court erred in denying her
motion for reconsideration, where she argued in more detail that this specific employee was
a relevant comparator. Even fully crediting the arguments and evidence Santos presented on
her motion for reconsideration, we still conclude that she has not carried her summary
judgment burden of providing sufficient evidence that this employee was situated similarly
to Santos.
19 See Santos, 2018 WL 1463710, at *8.
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persons not so affected but similar in their ability or inability to work.” 20 As we
have explained, Santos has not shown that any other Wincor employee was
similarly unable to work in the office for the same duration and at the same
stage of his or her employment. The district court did not err in concluding that
Santos failed to establish her prima facie case at the summary judgment stage.
IV
We affirm the judgment of the district court.
20 42 U.S.C. § 2000e(k); see Young, 135 S. Ct. at 1354–56 (concluding that the
Pregnancy Discrimination Act would prohibit an employer from giving more favorable
treatment to non-pregnant employees who were comparably limited in their ability to
perform certain physical tasks).
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