IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60542
WILMA NICOLE STOUT, on behalf
of herself and all others
similarly situated,
Plaintiff-Appellant,
versus
BAXTER HEALTHCARE CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
February 19, 2002
Before GARWOOD, JOLLY and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
In this putative class action Plaintiff-Appellant Wilma Stout
(Stout) sued Defendant-Appellee Baxter Healthcare Corp. (Baxter)
pursuant to Title VII of the Civil Rights Act of 1964, as amended
by the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. §
2000e(k).1 Stout appeals a summary judgment in favor of Baxter and
the denial of her cross motion for summary judgment. Finding no
error, we affirm.
Facts and Proceedings Below
Stout was hired by Baxter as a material handler in May of
1998. Pursuant to Baxter's standard policy, Stout was a
probationary employee for the first ninety days of her employment.
During this probationary period, Baxter evaluates new hires' job
skills and performance. Probationary employees are subject to a
strict attendance policy: anyone who misses more than three days
during the period is terminated. Baxter does not provide vacation
time or medical leave for probationary employees.
Stout, who was pregnant during the probationary period,
received positive performance reviews and maintained a perfect
attendance record during her first two months. But, beginning on
August 14, 1998, Stout was absent for more than three days of work
after she experienced early labor and suffered a miscarriage that
rendered her medically unable to work for over two weeks. Stout
notified her supervisor of her condition immediately, and provided
a medical excuse a week later, but Baxter terminated Stout on
1
Stout is only asserting a claim under the PDA; the Family and
Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, is not at issue
in this case. The FLMA does not apply to employees, such as Stout, who
have been employed less than twelve months or who have worked less than
1,250 hours during the previous twelve months. See 29 U.S.C. §
2611(2)(A).
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August 21 because her absenteeism was clearly in excess of that
permitted during the probationary period.
After receiving a right-to-sue letter from the Equal
Employment Opportunity Commission (EEOC), Stout sued Baxter
claiming pregnancy discrimination under the PDA and alleging that
she was fired “because of” her pregnancy and that Baxter's
probationary attendance policy has a disparate impact on pregnant
employees. Baxter moved to dismiss, or, in the alternative, for
summary judgment, arguing that Stout had failed to state a cause of
action under the PDA and to create a genuine issue of material fact
as to whether Baxter had discriminated against her on the basis of
her pregnancy. Stout also filed a motion for summary judgment on
the issue of liability, arguing that Baxter had failed to raise a
fact issue as to whether Stout was fired because of her pregnancy
and whether Baxter's probationary policy had a disparate impact on
pregnant women. The district court denied Stout's motion but
granted Baxter's motion for summary judgment.
Discussion
We review a grant of summary judgment de novo. Amburgey v.
Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991).
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
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judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Title VII of the Civil Rights Act prohibits an employer from
“discriminat[ing] against any individual with respect to ...
compensation, terms, conditions, or privileges of employment,
because of such individual's ... sex....” 42 U.S.C. § 2000e-
2(a)(1). The PDA amended Title VII by explicitly including
discrimination based on pregnancy and related medical conditions
within the definition of sex discrimination:
“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
... as other persons not so affected but
similar in their ability or inability to
work....”
42 U.S.C. § 2000e(k). Stout alleged that she was the victim of two
types of discrimination prohibited by Title VII: disparate
treatment and disparate impact.
Disparate Treatment
Stout's claim of disparate treatment has no merit. She argues
that she was fired “because of” her pregnancy. But, to the
contrary, all of the evidence in the record indicates that she “was
fired because of her absenteeism, not because of her pregnancy.”
Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 583 (7th Cir. 2000).
There is no evidence she would have been treated differently if her
absences had been due to some reason unrelated to pregnancy or if
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she had been absent the same amount but not pregnant. Baxter’s
policy does not in any way mention or focus on pregnancy,
childbirth or any related medical condition. So far as here
relevant, it merely limits the permissible absenteeism, on any
basis, of all probationary employees. Although Baxter's policy
results in the dismissal of any pregnant or post-partum employee
who misses more than three days of work during the probationary
period, it equally requires the termination of any non-pregnant
employee who misses more than three days. There is no evidence in
the record that Stout was treated any differently than any other
employee who failed to comply with Baxter's probationary attendance
policy. Such a policy does not violate the PDA: “[T]he [PDA] does
not protect a pregnant employee from being discharged for being
absent from work even if her absence is due to pregnancy or to
complications of pregnancy, unless the absences of nonpregnant
employees are overlooked.” Id. (collecting cases). The district
court properly granted Baxter's summary judgment motion with
respect to her disparate treatment claim.
Disparate Impact
The Supreme Court has explained disparate impact in the
following way: “[Disparate impact claims] involve employment
practices that are facially neutral in their treatment of different
groups but that in fact fall more harshly on one group than another
and cannot be justified by business necessity.” Int'l Brotherhood
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of Teamsters v. United States, 97 S.Ct. 1843, 1854-55 n. 15 (1977)
(citations omitted). To establish a prima facie case of disparate
impact, a plaintiff must both identify the employment practice that
has the allegedly disproportionate impact and establish causation
by offering statistical evidence to show that the practice in
question has resulted in prohibited discrimination. See Watson v.
Ft. Worth Bank and Trust, 108 S.Ct. 2777, 2788 (1988). Ordinarily,
a prima facie disparate impact case requires a showing of a
substantial “statistical disparity between protected and non-
protected workers in regards to employment or promotion.” Munoz v.
Orr, 200 F.3d 291, 299-300 (5th Cir. 2000).
Although normally a plaintiff must provide comparative
statistical evidence demonstrating a disparity in impact of a
particular policy, in Garcia v. Woman's Hospital of Texas, 97 F.3d
810 (5th Cir. 1996), we held that a plaintiff could prove a prima
facie disparate impact case without statistical evidence. In
Garcia, the plaintiff attempted to return to her job after
complications from pregnancy required her to miss approximately one
month of work. Garcia's employer refused to allow her to return to
work, on the grounds that her pregnancy disqualified her from being
able to lift 150 pounds. The hospital, Garcia's employer,
contended that lifting 150 pounds was a bona fide job requirement,
but admitted that it did not test Garcia's lifting capabilities
when she was hired, that it did not test any current employees, and
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that it also did not test job applicants. Garcia argued that the
lifting requirements were artificial and that no nurse was actually
required to lift that amount as part of his or her work. Id. at
812. At the conclusion of trial, the district court granted the
hospital's Rule 50 motion on the basis that Garcia had failed to
make out a claim for disparate treatment. Even though Garcia had
not provided any statistical comparison demonstrating a disparate
impact, we remanded the case for further proceedings on this issue.
We held that Garcia did not necessarily have to offer comparative
statistical evidence to prove a prima facie disparate impact case:
“If all or substantially all pregnant women would be advised by
their obstetrician not to lift 150 pounds, then they would
certainly be disproportionately affected by this supposedly
mandatory job requirement for [employees] at the Hospital.
Statistical evidence would be unnecessary if Garcia could establish
this point.” Id. at 813.
There is no evidence that Stout (or any other pregnant
probationary employee) was treated any differently than any other
probationary employee who missed work. In fact, Stout repeatedly
asserts in her brief that Stout was treated exactly the same as any
other employee who was unable to work. Stout's focus is on the
policy itself; Stout claims that the policy affects all pregnant
women and that therefore she has provided sufficient evidence to
prove a prima facie disparate impact case.
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Stout has provided expert testimony that no pregnant woman who
gives birth will be able to work for at least two weeks. We agree
with Stout that this does constitute evidence that “all or
substantially all” pregnant women who give birth2 during the
probationary period will be terminated. Stout argues that under
Garcia, she has provided evidence sufficient to establish a prima
facie case of pregnancy discrimination. If Stout's interpretation
of Garcia was correct, we might agree. However, we decline the
invitation to expand Garcia to the extent Stout's argument
requires.
In effect, Garcia provides a procedural short cut to PDA
plaintiffs. In certain situations a Title VII plaintiff is
relieved of a burden they would ordinarily bear: the production of
statistical evidence comparing the effects of a challenged policy
on protected and unprotected groups of employees. However, when
the Garcia rule is applied to cases (such as this one) in which a
plaintiff challenges only an employer's limit on absenteeism the
rule produces an effect which is contrary to the plain language of
the statute. It is the nature of pregnancy and childbirth that at
some point, for a limited period of time, a woman who gives birth
will be unable to work. All job requirements, regardless of their
nature, affect “all or substantially all pregnant women.” If
2
The PDA applies to “pregnancy, childbirth, [and] related medical
conditions....” 42 U.S.C. § 2000e(k).
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Garcia is taken to its logical extreme, then every pregnant
employee can make out a prima facie case against her employer for
pregnancy discrimination, unless the employer grants special leave
to all pregnant employees. This is not the law–the PDA does not
require preferential treatment of pregnant employees and does not
require employers to treat pregnancy related absences more
leniently than other absences. Urbano v. Continental Airlines,
Inc., 138 F.3d 204, 208 (5th Cir. 1998).
Accordingly, we are unwilling to extend the Garcia rule to
those disparate impact claims, such as this one, in which the
plaintiff's only challenge is that the amount of sick leave granted
to employees is insufficient to accommodate the time off required
in a typical pregnancy. To hold otherwise would be to transform
the PDA into a guarantee of medical leave for pregnant employees,
something we have specifically held that the PDA does not do. See
id. at 206-08. Such a rule would also be distinctly at odds with
the language of the statute, which requires that pregnant employees
be treated the same for all employment related purposes as other
employees with respect to their ability or inability to work. See
42 U.S.C. § 2000e(k) ([Women affected by pregnancy] “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 ....”) (emphasis added). We therefore reject Stout's
argument that she proved a prima facie disparate impact case simply
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by showing that Baxter's policy affected all or substantially all
pregnant women who would give birth during or near to their
probationary period.
The present case does not involve any claim that any of
Baxter's job requirements are not actual, legitimate requirements
of the job. Nor does Stout claim that Baxter's leave policy treats
a class of disabilities which includes pregnancy less favorably
than other classes of disabilities that do not include pregnancy.
And, Stout has no evidence that Baxter has in any way applied its
policy unevenly or has favored non-pregnant employees. In the end,
Stout's claim in this case is simply that she should have been
granted medical leave that is more generous than that granted to
non-pregnant employees. This the PDA does not require.
Conclusion
The order of the district court granting summary judgment for
Baxter is
AFFIRMED.
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