Rhett v Carnegie Center Reply Brief Plaintiff-Appellant

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

IN RE:
CARNEGIE CENTER ASSOCIATES, 

Debtor

DEBORAH RHETT,
Appellant

V.

CARNEGIE CENTER ASSOCIATES, 
Appellee

)
)
)
)
) NO. 96-5566 
)
)
)
)

REPLY BRIEF FOR PLAINTIFF-APPELLANT

ELAINE R. JONES 
Director-Counsel

CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKIN 
CATHERINE POW ELL 
NAACP Legal Defense And 
Educational Fund, Inc.

99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

LANIER E. WILLIAMS 
CHRISTOPHER MORKIDES 

P.O. Box 6584 
Philadelphia, PA 19138 
(215) 848-7239

Attorneys for Plaintiff-Appellant



TABLE OF CONTENTS

I. Legal Standards ................................................................................................  2

II. The Evidence Establishes a Per Se Violation
of the Pregnancy Discrimination Act ............................................................  4

III. Defendant Has Failed to Offer Any Plausible,
Valid Ju s tifica tio n s...........................................................................................  8

A. At the Time She Was Terminated,
Plaintiff Still Had an Employment 
Relationship With Carnegie That Was
Covered By the P D A ............................................................................ 8

B. R hett’s Position Was Interchangeable With 
Other Secretarial Positions, Not Necessarily
Tied to Particular Supervisory P o s itio n s ..........................................  11

IV. Analyzing Race And Gender As Interrelated Claims 
Is Fundamentally Different From Evaluating Them As 
Distinct, Alternative Claims, And It Was Error For 
the Courts Below To Follow The Latter Approach
In The Instant Case .........................................................................................  16

CONCLUSION 18



TABLE OF AUTHORITIES

Cases: Pages:

Crnokrak v. Evangelical Health Sys. Corp.,
819 F. Supp. 737 (N.D. Ill 1993) ......................................................  15, 16, 18

EEOC v. Ackerman, Hook & McQueen, Inc.,
956 F.2d 944 (10th Cir. 1992) ........................................................................ H

Furnco Constr. Corp. v. Waters,
438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957
(1978)....................................................................................................................... 6

Griffin v. Carlin,
755 F.2d 1516 (11th Cir. 1985)..........................................................................  3

Hogan v. Pierce, 31 Fair Empl. Prac. Cases 115, 126
(D.D.C. 1983)   4

Jones v. Washington M etropolitan Area Transit Authority,
Civil Action No. 89-0552,
1996 WL 681115 (D.D.C., Oct. 15, 1 9 9 6 ) ....................................................... 4

Marzano v. Computer Science Corp.,
91 F.3d 497 (3d Cir. 1996)................................................................... 3, 5, 6, 14

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ...............................................................................  1, 3, 5, 6

Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669 (1983) ......................................................................................... 16

Ostrowski v. Atlantic Mutual Ins. Co.,
968 F.2d 171 (2d Cir. 1992)   18

Price W aterhouse v. Hopkins,
490 U.S. 228 (1989) ....................................................................................  4, 18

ii



Pages

Rodgers v. Peninsular Steel Co.,
542 F. Supp. 1215 (N.D. Ohio 1982) ..............................................................  7

EEOC v. Metal Serv. Co.,
892 F.2d 341 (3d Cir. 1990) ............................................................................. 7

Smith v. F.W. Morse & Co.,
76 F.3d 413 (1st Cir. 1996) ........................................................................ 14< 15

Sprogis v. United Air Lines, Inc.,
444 F.2d 1194 (7th Cir. 1971) ........................................................................ 18

St. Mary’s Honor Ctr. v. Hicks,
509 U .S .___, 125 L. Ed. 2d 407 (1993) .........................................................  7

Taxman v. Board of Educ. of Township of Piscataway,
91 F.3d 1547 (3rd Cir. 1996) ........................................................................ 19

Texas D ep’t of Community Affairs v. Burdine,
450 U.S. 248 (1981) ......................................................................................  7> 8

Trans World Airlines, Inc. v. Thurston,
469 U.S. I l l  (1985) .................................................................................  3, 4, 5

Troupe v. May D ep’t. Stores,
20 F.3d 734 (7th Cir. 1994) ............................................................................. 15

United States v. International Union of Elevator 
Constructors,

538 F.2d 1012 (3d Cir. 1 9 7 6 ) ............................................................................. 7

Walters v. M etropolitan Educational Enterprises,
No. 95-259, 1997 U.S. LEXIS 462, 65 U.S.L.W. 4059
(U.S. S.Ct. Jan. 14, 1997) .................................................................................  9

iii



Federal and State Statutes: Pages.

42 U.S.C. § 2000e (Title V I I ) ............................................................................  passim

N.J.S.A. § 34:llB-7 (New Jersey Family Leave A c t) ............................................. 15

N.J.S.A. § 10:5-12(a) et seq. (New Jersey L A D ) .......................................................18

IV



IN THE
UNITED STATES COURT OF APPEALS 

FO R THE THIRD CIRCUIT

IN RE:
CARNEGIE CENTER ASSOCIATES )

Debtor )
)
)
)
)
)
)
)

DEBORAH RHETT,
Appellant NO. 96-5566

v.

CARNEGIE CENTER ASSOCIATES, 
Appellee

REPLY BRIEF FOR PLAINTIFF-APPELLANT

The defendant-appellee’s brief completely fails to address the central issue 

raised by this appeal: did the company rebut plaintiffs prima facia case by

articulating a justification for eliminating plaintiffs particular position that was 

unrelated to a characteristic protected under law?1 There is no disagreement over 

the underlying fact that the company was experiencing an overall reduction-in-force 

that was economically driven, resulting in the elimination of certain positions. But 

this fact, standing alone, was not enough to justify eliminating plaintiffs particular 

position (in contrast to similar positions of other secretaries), and defendant offered 

no other justification in the courts below except the fact that Rhett was out on 

pregnancy leave when the decision over which position to eliminate was made.

d e fe n d an t has also misapplied this Circuit’s standard for determining whether 
a plaintiff has met her burden of establishing a prima facie case under a McDonnell 
Douglas framework. See Brief for Defendant-Appellee, at 14-19.



Defendant has not demonstrated, for instance, that R hett’s position was targeted for 

elimination because her qualifications or performance was less adequate than other 

secretaries or because this position was different from that of other secretaries. 

Since the only justification defendant has put forth is one related to a protected 

characteristic -  pregnancy -  it has failed to rebut plaintiffs prima facie case of 

discrimination under any of the applicable theories of discrimination discussed in the 

parties’ main briefs.

Even assuming arguendo the courts below are correct in concluding that the 

defendant’s decision to terminate plaintiff was based on a neutral criterion, namely 

that she was temporarily "not working" during her pregnancy leave, the application 

of such a criterion to the reduction-in-force among the company’s secretarial 

positions had a disparate impact on the basis of both race and pregnancy that could 

not be justified by business necessity, and was therefore insufficient to rebut the 

prima facie case. It was therefore reversible error for the lower courts to find 

otherwise. I.

I. Legal Standards

Because economic hardship does not explain why the company eliminated 

plaintiff s particular position, this Court must consider whether there are any other 

permissible justifications for defendant-appellee’s actions. It is possible to distill 

only one other justification from the Brief for Defendant-Appellee and from the

2



opinions of the courts below — that plaintiffs particular position was targeted for 

elimination because she was temporarily not working due to her pregnancy leave.2 

The defendant company’s decision to eliminate her position because she was absent 

from work due to her pregnancy is direct evidence of discrimination and compels 

a finding that her termination was discriminatory under the plain meaning of Title 

VII, as amended by the Pregnancy Discrimination Act. Trans World Airlines, 

Inc. v. Thurston, 469 U.S. I l l  (1985). Alternatively, plaintiff is entitled to a 

judgement in her favor under McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973), because she made out a prima facie case of disparate treatm ent in the 

context of a reduction-in-force, in accordance with this Court’s decision in 

Marzano v. Computer Science Corp., 91 F.3d 497 (3d Cir. 1996), and the 

primary reason for her termination articulated by the defendant -  plaintiffs absence 

from work because of pregnancy -  is discriminatory per se and therefore not 

legitimate. Finally, even if selecting plaintiff for termination because of her 

pregnancy-based absence were to be considered facially neutral, its application to 

the reduction-in-force among the company’s secretarial positions had a 100% 

disparate impact on pregnant black women that could not be justified by business 

necessity, and it therefore was insufficient to rebut the prima facie case. Griffin

2Plaintiff s leave involved pregnancy, childbirth, and a related medical condition. 
The Bankruptcy Court specifically found that during her pregnancy leave, Rhett 
"was under medical care until June 1991" for a pregnancy-related medical condition. 
Bankr. Ct. Op., at 9 (finding no. 36).

3



v. Carlin, 755 F.2d 1516, 1526-28 (11th Cir. 1985); Hogan v. Pierce, 31 Fair 

Empl. Prac. Cases 115, 126 (D.D.C. 1983).3

II. The Evidence Establishes a Per Se Violation of the Pregnancy 

Discrimination Act

The proper basis for analysis in this case is Trans World Airlines, Inc. v. 

Thurston, since the facts demonstrate a per se violation of Title VII without resort 

to circumstantial evidence, and defendant has not established an affirmative defense. 

Contrary to defendant-appellee’s brief, (Brief for Defendant-Appellee, at 13), 

plaintiff raised this claim below. See, e.g., District Court Brief for Appellant 

Deborah Rhett, at 14-15 (discussion of Thurston and other cases governing facial

3A mixed-motive analysis, of the sort outlined in Price Waterhouse v. Hopkins, 
490 U.S. 228 (1989), cannot save the employer’s action in this case, because 
defendant argues that "Carnegie’s actions were based solely on economic 
necessity[.]" Brief for Def.-Appellee, at 13 (emphasis in original). See also id., at 
26 (emphasis in original) ("Carnegie’s actions were prompted, as repeatedly shown 
by the evidence, not by any desire to single out Rhett, but solely by economic 
hardships"). In order for a mixed-motive analysis to apply, a defendant must have 
introduced some evidence that a mixture of legal and illegal motives underlay the 
adverse action taken against the plaintiff. Jones v. Washington Metropolitan Area 
Transit Authority, Civil Action No. 89-0552, 1996 WL 681115, at *4-5 (D.D.C., Oct. 
15, 1996). But where, as here, the defendant responds to the McDonnell Douglas 
prima facie case by denying that an improper motive played any part in the 
challenged decision and articulates a claimed proper motive, which is subsequently 
attacked by the plaintiff, there is no occasion for consideration of a "mixed-motives" 
analysis, under which the trier of fact would decide whether the employer would 
have made the same decision anyway, even had an improper motive not entered into 
its decision. Id.

4



discrimination and the affirmative BFOQ defense under which such cases must be 

evaluated), 28 (arguing that defendant’s justification is facially discriminatory 

because the sole reason advanced by defendant was plaintiffs pregnancy-related 

absence), 31 (arguing that Carnegie’s actions amounted to direct evidence of 

discrimination). Because Thurston was discussed extensively in plaintiffs opening 

brief, it will not be further discussed here.

Even under a McDonnell Douglas analysis, plaintiff is entitled to judgment 

according to law, since the defendant has offered no "legitimate, nondiscriminatory 

reason" for its action. To begin with, it is clear that the plaintiff made out a prima 

facie case of discrimination under the McDonnell Douglas analysis as explicated by 

this Court in Marzano v. Computer Science Corp., 91 F.3d 497 (3d Cir. 1996). The 

Brief for Defendant-Appellee and the courts below have failed to apply the correct 

standards set out in Marzano, which outlines this Circuit’s approach to PDA claims 

in the context of a layoff due to a reduction-in-force. See, e.g, Brief for Defendant- 

Appellee, at 14-19; Bankr. Ct. Op., at 12-13; Dist. Ct. Mem. Op., at 14-16

In circumstances quite similar to the instant case, in Marzano, this Court 

stated that a prima facie case is established by evidence that (1) plaintiff belongs to 

a protected class; (2) she was qualified for the position; and (3) she was terminated 

despite being qualified, while (4) at the same time persons outside of the class were 

retained. In the context of a reduction-in-force, Marzano holds that it is not 

necessary, because it is impossible, to show that the plaintiff was ultimately replaced

5



by a person outside of the protected class. 91 F.3d at 503 (citing cases). In other 

words, "the fourth prong of the prima facie case should be ‘relaxed’ when the 

employee’s layoff occurred in the context of a reduction in force." Marzano, 91 F.3d 

at 503.4 Contrary to the approach of the courts below, it is not necessary for 

plaintiff to prove, in order to establish a prima facie case, that she was "singled out." 

Compare Marzano, 91 F.3d at 497 with Bankr. Ct. Op. at 12, and Dist. Ct. Mem. Op. 

at 10.

As shown in plaintiffs opening brief, a prima facie case of discrimination, 

under the standards announced in Marzano, has been established with regard to her 

termination claim. Brief for Plaintiff-Appellant, at 22. Additionally, the opening 

brief illustrates that plaintiff has made out a prima facie case of discrimination 

regarding defendant’s failure to offer her employment in one of three other 

positions that became available once the company decided to abolish her position. 

Brief for Plaintiff-Appellant, at 34-40.5 The third and fourth prongs of the 

McDonnell Douglas analysis must be relaxed where, as here, the plaintiff was never

*Fumco Constr. Corp. v. Waters, 438 U.S. 567, 577 98 S.Ct. 2943, 2949-50, 57 
L.Ed.2d 957 (1978) ("[t]he method suggested in McDonnell Douglas for pursuing [the 
disparate treatment] inquiry ... was never intended to be rigid, mechanized, or 
ritualistic").

5Plaintiff made out a prima facie case of discrimination by demonstrating that 
she (i) belonged to a racial minority; (ii) was qualified for these three positions; (iii) 
despite her qualifications, she was not hired for these positions; and (iv) the 
employer sought applicants from persons of plaintiffs qualifications. McDonnell 
Douglas, 411 U.S. at 802.

6



actually given an chance to even apply for these positions, and in fact there was 

proof that at least one of these positions, the Administrative Assistant job, was filled 

through word-of-mouth hiring. See EEOC  v. Metal Serv. Co., 892 F.2d 341, 347-51 

(3d Cir. 1990) (citing cases).6 The lower courts further failed to take into account 

the fact that the Administrative Assistant position was filled through word-of-mouth 

recruitment, and that such "informal, secretive and subjective hiring practices are 

suspect because they tend to facilitate the consideration of impermissible criteria[,]" 

EEOC v. Metal Serv. Co., 892 F.2d at 350.7

The plaintiff is entitled to a judgment in her favor unless the employer meets 

its burden of producing evidence of a legitimate, nondiscriminatory reason for the 

action. Texas Dep’t o f Community Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary's

Honor Ctr. v. Hicks, 509 U .S .___, 125 L. Ed. 2d 407 (1993). The defendant has not

met its burden because its reason is neither legitimate nor nondiscriminatory. The

6As this Court there said, referring to word-of-mouth recruiting and hiring: "A 
relaxation of the application element of the prima facie case is especially 
appropriate when the hiring process itself, rather than just the decision-making 
behind the process, is implicated in the discrimination claim or is otherwise suspect," 
892 F.2d at 349.

1 See also United States v. International Union o f Elevator Constructors, 538 F.2d 
1012, 1016 (3d Cir. 1976) (word-of-mouth hiring resulting in a relatively small 
number of minority applicants constitutes circumstantial evidence which helps to 
establish a reasonable inference of an employer’s discrimination); Rodgers v. 
Peninsular Steel Co., 542 F. Supp. 1215, 1220 (N.D. Ohio 1982) (an employer’s 
failure to notify its own employees of a job vacancy and its subsequent pursuit of 
outside white applicants over qualified internal black employees can constitute a 
prima facie case of discriminatory hiring practices).

7



only reason advanced by Carnegie Center Associates (and relied on by the courts 

below) -- that plaintiff was selected for termination through elimination of her 

position because she was absent due to her pregnancy -  is illegal under Title VII, 

and is therefore discriminatory per se and cannot be legitimate and 

nondiscriminatory within the meaning of Burdine.

III. Defendant Has Failed to Offer Any Plausible, Valid Justifications

A. At the Time She Was Terminated, Plaintiff Still Had an Employment 
Relationship With Carnegie That Was Covered By the PDA

Defendant’s effort to point to plaintiffs pregnancy leave as evidence that she 

was somehow no longer "officially employed" at the time of her termination, and was 

therefore not covered by the PDA, is contrary to the specific findings of the 

Bankruptcy Court and is wrong as a matter of law. While defendant argues in its 

brief that "Rhett was not officially employed by Carnegie at the time of her 

termination" and that therefore the PDA "does not apply to R hett’s particular claim" 

(Brief for Defendant-Appellee, at 10 (emphases added)), in fact the testimony, the 

findings below, and statutory construction support the conclusion that plaintiff had 

an employment relationship with the company and that this employment relationship 

was covered under the PDA.

The Bankruptcy Court specifically found that the company did not send Rhett 

her COBRA separation benefits until after her position was eliminated, and that the

8



company hired temporary employees to perform her duties while she was on leave. 

Bankr. Ct. Op., at 8 (finding no. 31), and 9 (finding no. 35).8 Furthermore, the 

company informed the EEOC that R hett’s "date of separation" from employment 

was March 26, 1991, demonstrating that Rhett was still "officially employed" by 

Carnegie until her position was eliminated. This, of course, was consistent with the 

company s policy of keeping women who were out on pregnancy leave on the payroll 

during their leave,9 which is determinative in considering who is an "employee" for 

purposes of Title V II’s jurisdictional requirement. See Walters v. Metropolitan 

Educational Enterprises, No. 95-259, 1997 U.S. TEXTS 462, 65 U.S.L.W. 4059 (U.S. 

S.Ct. Jan. 14, 1997) (the "payroll method" — which looks to whether an individual 

appears on the employer’s payroll -  is determinative in Title VII case for 

establishing who is an "employee" for purposes of meeting statutory requirement 

that limits coverage to employers with fifteen or more employees).

Despite the Bankruptcy Court’s findings and the record evidence, the District 

Court wrongly concluded that R hett’s claims "appear to present a failure to rehire 

case as much as they do one for discharge, particularly since there was unrebutted 

testimony at trial that [Carnegie Center Associates] did not consider her to be an

8Moreover, R hett’s medical insurance benefits were continued in force until her 
position was terminated. See discussion, Brief for Plaintiff-Appellant, at 7 - 8, 18.

9See, e.g., J.A. 199 (Exhibit 10, Tab J, at 2 (letter from Mr. Lucas to Mr. Stahl) 
(Linda Krauss "was never removed from the payroll" while she was on pregnancy 
leave before returning to Carnegie in another position).

9



employee there on March 26, 1991 when Gormisky notified her that [Carnegie 

Center Associates] abolished her position." Dist. Ct. Mem. Op., at 16 (emphasis 

added) (citing Turndorf testimony). In fact, defendant’s testimony on this point was 

rebutted as is indicated above and as the Bankruptcy Court’s findings clearly 

illustrate.10

In any event, under the PDA, plaintiffs technical employment status is not 

relevant, since the plain language of the PDA applies to "women", "persons", and 

"employment-related purposes." It is not limited to employees. The PDA, which 

amends and therefore tracks Title VII for statutory construction purposes, prevents 

discrimination against "any individual with respect to his compensation, terms, 

conditions, or privilege of employment," 42 U.S.C. § 2000e-2 (emphasis added), 

which is why, for instance, job applicants who are not yet officially employed but are 

applying to be hired or rehired are protected.

W hether or not Carnegie had a written pregnancy leave policy that allowed 

women to continue their employment upon returning from their leave is beside the

10The District Court appears to have been relying on the Bankruptcy Court’s finding 
that "‘the uncontradicted testimony of the [company] establishes that [it] had to let 
someone in the secretarial group go and the fact that Rhett was not working for the 
company at the time made it logical that she be the one.’" Dist. Ct. Mem. Op., at 5, n. 3 
(emphases added) (quoting Bankr. Ct. Op., at 15). The fact that Rhett was "not working 
for the company at the time" her position was abolished merely indicates that she was out 
on pregnancy leave and was therefore not reporting to work. Nowhere did the Bankruptcy 
Court specifically find that plaintiff was no longer officially employed by the company. In 
fact, as demonstrated above, the specific findings of the Bankruptcy Court point in the 
opposite direction, as does the record evidence.

10



point. The fact is that the company held open positions for every woman who took 

pregnancy leave (including Rhett until she was terminated) and who wanted to 

return to work. Such a consistent practice, regardless of whether or not it was 

written down or formally adopted in an employment handbook, cannot be applied 

unequally based on race, marital status, pregnancy, or any other protected 

characteristic. EEO C v. Ackerman, Hook & McQueen, Inc., 956 F.2d 944, 946 (10th 

Cir. 1992) (finding that despite the fact that the company did not have any "written 

policies governing either medical or personal leave," it nevertheless violated the 

PDA by treating pregnant employee differently with respect to requested exemption 

from overtime work than it had consistently treated other employees).11 It was 

therefore error, as a matter of law for the District Court to conclude that the 

differential treatm ent to which plaintiff was subjected was unrelated to her 

pregnancy based on the fact that the company’s practice regarding pregnancy leave 

was "informal" or was not "written". Dist. Ct. Mem. Op., at 14.

B. R hett’s Position Was Interchangeable With Other Secretarial Positions, 
Not Necessarily Tied to Particular Supervisory Positions

It is not clear why appellee focuses in its brief on the elimination of certain 

supervisory positions, since it does not offer this fact as a justification for R hett’s

“Even defendant has not denied that there was an unwritten policy of holding 
open positions for women on pregnancy leave. Brief for Defendant-Appellee, at 10.

11



termination, nor explicitly argue that this was somehow tied to her termination. 

Indeed, defendant cannot contend this in light of the finding below that R hett’s 

position was basically interchangeable with that of at least three other secretaries 

whose positions were not terminated. Neither court below rested its opinion on the 

ground that supervisors were laid off, since neither were the supervisors similarly 

situated with plaintiff (making their elimination irrelevant to R hett’s claim), nor was 

there evidence demonstrating that Rhett worked more closely with the supervisors 

whose positions were abolished than did other secretaries.

Rhett testified that at the time of her pregnancy leave, she had been receiving 

the bulk of her assignments through Gormisky, Dempsey, and Mack, whose positions 

were not eliminated in the reduction-in-force. See, e.g., J.A. 51-52, 55-56 (plaintiffs 

testimony regarding informing them as her supervisors about her pregnancy), 177 

(Ex. C-4) (memo to them as her supervisors about her plans to take pregnancy 

leave). This testimony was not contradicted. The District Court noted in passing 

that Rhett "worked for several [Carnegie Center Associate] executives, including 

Geoff Hammond" and later noted that Geoff Hammond had been among the 

supervisors whose position was eliminated. Dist. Ct. Mem. Op. at 2, 4. However, 

there was no finding that Hammond or other terminated supervisors had played any 

greater supervisory role over Rhett when compared to other secretaries, who were

12



in any event interchangeable.12 The courts below made no such comparison, nor 

did either court find that the elimination of R hett’s position was tied to or justified 

by the elimination of Hammond’s position. In the absence of such a comparison, 

the elimination of supervisory positions does not explain why R hett’s particular 

position was eliminated. As such, it is clear that the courts below instead rested 

their opinions on the fact that plaintiff was temporarily "not working" at the 

company at the time of the reduction-in-force.

Rather than find that R hett’s position was necessarily tied to particular 

supervisory positions, the Bankruptcy Court found the opposite to be the case, in 

finding that "[t]he operation of Carnegie was very loose . . .  all secretaries and office 

personnel covered for one another." Bankr. Ct. Op., at 4 (finding no. 7). The 

parties too had agreed in the courts below that at least four of the secretarial 

positions were basically interchangeable.13 It is clear that the decision to terminate

12While the Bankruptcy Court noted that "three of the people for whom Rhett did 
significant work were let go in December, 1990 [presumably Geoff Hammond], March, 1991 
[presumably Eugene Gold] and April, 1991 [presumably Peter Clark]" (Bankr. Ct. Op., at 
14), again, there was no finding or record evidence that these supervisors played any 
greater supervisory role over Rhett when compared to other secretaries. Rhett was no 
longer working for Gold at the time of her termination because he had been previously 
transferred to another part of the company due to poor job performance and replaced by 
Gormisky, for whom Rhett then worked (J.A. 52), and Clark worked in construction, a 
different part of the company from Rhett. Dist. Ct. Appendix, at 329 (11/30/95, Tr. 69).

uSee, e.g., District Court Oral Arg. Transcript, at 20 (Attachment 1). With regard to 
four secretarial positions, defendant-appellee’s counsel admitted, "I want to agree with Mr. 
Williams [plaintiffs counsel]. The positions were in fact interchangeable." Id. He went 
on to say "they did work as a team." Moreover, when the court asked, "So whether or not 
her boss’ position was abolished or not, [Rhett] could have been switched to someone else 
without any great difficulty?", the defendant-appellee’s counsel replied, "She could have[.]"

13



Rhett instead of other secretaries was not based on a weighing of unique job 

descriptions, tasks and skills associated with particular secretarial positions, nor was 

it based on comparative qualifications or performances of particular the secretaries 

involved. See discussion in Brief for Plaintiff-Appellant, at 9, 15 - 16, n. 6 and 

accompanying text. Compare Marzano, 91 F.3d at 510-11 (emphasis in original) 

( The relevant issue for our purposes is not whether there is some way in which an 

employee can be classified as unique, but, rather, whether the employee can be 

classified as unique in some way relevant to his or her layoff'); Smith v. F. W. Morse 

& Co., 76 F.3d 413 (1st Cir. 1996) (defendant justified in eliminating the particular 

position of an employee who was on maternity leave during retraction because it 

had made a specific determination that the particular position was redundant and 

that the position would have been eliminated even had she not been on leave).

Because defendant has not demonstrated that it would have eliminated 

Rhett’s position even had she not been on pregnancy leave, Smith, of course, has no 

application to this case.14 In that case, the court held that te rm inating a woman

Id. See also id. at 17 (plaintiff-appellant’s counsel had said that, "we’ve got four secretarial 
positions. They’re all interchangeable"); discussion in Brief for Plaintiff-Appellant, at 9, n. 
6 (referring to plaintiffs testimony regarding the virtually interchangeable nature of the 
positions held by Deborah Rhett, Kirsten Wolf, Kathy Buchanan, and Brenda Sirkis J A 
111-12, 114-24). ’ ‘ '

14In contrast to Smith, in the instant case, the fact that Rhett was temporarily 
not working because of her pregnancy leave was the reason the company selected 
her position for termination. In Smith, on the other hand, the plaintiff was 
terminated while on pregnancy leave for a reason independent of her pregnancy 
leave -  namely because her particular position had become redundant.

14



on pregnancy leave was not discriminatory if the employer would have eliminated 

the employee’s position regardless of her pregnancy, a point defendant concedes. See 

Brief for Defendant-Appellee, at 12 (emphasis added) (describing Smith as finding that "the 

employer would have eliminated the employees position regardless of her pregnancy").15 

"[A]n employer may discharge an employee while she is on a pregnancy-induced leave so 

long as it does so for legitimate reasons unrelated to her gravity." Smith, 16 F.3d at 424 

(emphasis added).16

This principle ~  that under Title VII, a termination during a reduction in 
force must be independent of pregnancy leave -  is consistent with the standard that 
applies in other contexts. See, e.g, N.J.S.A. § 34:llB-7 (New Jersey Family Leave 
Act), which requires reinstatement to the same or an equivalent position following 
pregnancy leave unless, because of downsizing, her position has been eliminated for 
reasons unrelated to her pregnancy — a rule which was misstated in defendant’s brief. 
Compare Brief for Defendant-Appellee, at 11 with Brief for Plaintiff-Appellant, at 
18-19. This provides an illuminating analogy to the instant case (even if not directly 
applicable) since it mirrors the rule enunciated in Smith in the Title VII context.

15Indeed, Smith cautions:

[A]n employer who selectively cleans house cannot hide behind 
convenient euphemisms such as "downsizing" or "streamlining." 
W hether or not trimming the fat from a company’s organizational chart 
is a prudent practice in a particular business environment, the 
employer’s decision to eliminate specific positions must not be tainted 
by a discriminatory animus.

Smith, 16 F.3d at 422 (citing cases).

“Another case defendant cites in its brief, Troupe v. May Dep’t. Stores, 20 F.3d 
734 (7th Cir. 1994), is also not applicable, because in that case, the defendant had 
reasons independent of plaintiffs pregnancy leave -  namely her excessive tardiness 
to work -  to justify terminating her. The Cmokrak case, also relied on by 
defendant, is actually more favorable for plaintiff when read in its entirety. In that 
case, the court rejected defendant’s summary judgement motion on the disparate

15



In its brief, defendant concedes that Carnegie "let several administrative and 

executive employees go and downsized the entire operation in an effort to cut costs[,]" not 

just a section or division of the company. Brief for Defendant-Appellee, at 7 (emphasis 

added). Defendant has not explained, then, why Rhett’s position was selected among other 

similar secretarial positions in the face of this across-the-board reduction-in-force.

IV. Analyzing Race And Gender As Interrelated Claims Is Fundamentally Different 
From Evaluating Them As Distinct, Alternative Claims, And It Was Error For the 
Courts Below To Follow The Latter Approach In The Instant Case

As we argued in our opening brief (Brief for Plaintiff-Appellant, at 24-25, 29-37),

the courts below erred as a matter of law by failing to evaluate whether plaintiff suffered

discrimination on account of her race and gender (expressed here as pregnancy).17 This

point was raised below.18 As discussed in our opening brief, the District Court initially

treatment claim, holding that there was a fact issue as to whether the employer’s 
stated reasons for replacing employee who was on pregnancy leave with employee 
who was not pregnant was pretext for discrimination, precluding summary 
judgement. Cmokrak v. Evangelical Health Sys. Corp., 819 F. Supp. 737 (N.D. Ill 
1993). See Brief for Defendant-Appellee, at 36.

17Newport News Shipbuilding & Dry Dock Co. v. EEO C , 462 U.S. 669, 684 (1983) 
("The Pregnancy Discrimination Act has now made clear that, for all Title VII 
purposes, discrimination based on a woman’s pregnancy is, on its face, 
discrimination because of her sex").

18Contrary to appellee’s brief (Brief for Defendant-Appellee, at 28), plaintiff 
raised this issue below. District Court Brief for Plaintiff-Appellant Deborah Rhett 
at 2-3 and 12. It was ruled upon by the Bankruptcy Court in its Opinion at 6 
(finding no. 20) and 10 (findings nos. 39 and 40), and by the District Court in its 
Memorandum Opinion at 5-6, 14, 16-19. From its inception, this was an action 
about interrelated claims, not distinct or alternative ones. See, e.g, Complaint, U 20 
("Carnegie’s practice and/ or policy with respect to the termination of its unmarried

16



recited plaintiffs claim of discrimination based on race and gender, but then failed to 

actually apply it in its analysis. Id. at 29. Defendant’s brief serves to further make this 

point by noting the way in which the Bankruptcy Court analyzed race separate and apart 

from gender. Brief for Defendant-Appellee, at 29. A claim of discrimination based upon 

race and gender is not the same as, nor is evidence offered to support it properly analyzed 

as, a claim of discrimination based either upon race or gender. See Brief for Plaintiff- 

Appellant, at 29-34, for discussion of practical impact. The failure of the courts below to 

recognize this fundamental distinction fatally infected and provided the basis for the 

conclusion that plaintiff had failed to prove her case. Separate consideration of Rhett’s 

claims as if they were distinct or alternative claims led the lower courts incorrectly to rely 

on certain evidence that should not have played a role in its conclusion19 and to discount

female employee who becomes pregnant has a disparate impact upon its black 
female employees") (the Complaint was administratively term inated without 
prejudice, per Order by District Court Judge Anne E. Thompson, May 20, 1994, 
once proceedings in the Bankruptcy Court began).

19See discussion in Brief for Plaintiff-Appellant, at 30-31 (court relied on alleged 
favorable treatm ent of nonpregnant black employees). Similarly, to the extent the 
courts below relied on alleged favorable treatm ent of pregnant white female 
employees in finding no discrimination against Rhett, such reliance was incorrect. 
For instance, the fact that secretary Barbara MacGreagor, who was also on leave 
during the reduction-in-force, was allowed to return to her position at Carnegie 
should not serve to undermine plaintiffs claim. Rather it bolsters R hett’s claim 
because it serves to demonstrate that even if pregnancy based-absence is viewed as 
a neutral criterion for terminating employees during the reduction-in-force, this 
criterion had a disparate impact on black pregnant employees. (In contrast to 
defendant’s claim that "[o]ther than Rhett, none of Carnegie’s employees had left 
Carnegie’s employ to have a baby during the time when Carnegie had begun to 
downsize because of financial difficulties" (Brief for Defendant-Appellee, at 6), in 
fact, the District Court found that Barbara MacGreagor took pregnancy leave from 
January - June 1991 during the reduction-in-force and was allowed to return to the

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other evidence that should not have been dismissed.20

CONCLUSION

In summary, there is no dispute that the defendant employer had to eliminate one 

of four interchangeable secretarial positions for economic reasons. The company could 

have had the four persons draw straws or put their names in a hat and drawn one; or, it 

could have reviewed the personnel history of each and used a pregnancy-neutral and race-

company. Dist. Ct. Mem. Op., at 2).

20See discussion in Brief for Plaintiff-Appellant, at 33 n.22, 35-36 n.23 (negative 
comments about Rhett cannot be considered only with regard to R hett’s pregnancy 
discrimination claim, as such remarks reflect stereotypical thinking about pregnant 
black women). The comments about Rhett’s marital status in particular acted as a 
conduit for stereotypical thinking about unwed pregnant black women. While 
marital status discrimination is not necessarily in and of itself prohibited under Title 
VII, Sprogis v. United A ir Lines, Inc., 444 F.2d 1194 (7th Cir. 1971) (while martial 
status discrimination not generally covered by Title VII, defendant airline violated 
Title VII where policy of barring a married women, but not married men, from 
flight attendant jobs had disproportionate impact or women), it does violate the 
New Jersey Law Against Discrimination, which prohibits "an employer, because of 
the race ... marital status or sex ... of any individual" to engage in employment 
discrimination. N.J.S.A. §10:5-12 (a) et seq.

These comments should not be viewed as stray remarks given their timing and 
in light of the fact that they were made by Turndorf and Gormisky, company 
officials in the decision-making structure. See J.A. 136 (T urndorf s testimony about 
his participation in weekly meetings for "key administrative people" in which they 
would discuss a range of issues, including staffing and contractions in staffing), 164- 
65 (Gormisky’s testimony about involvement in the high-level meetings). In any 
event, even stray remarks "may suffice to present a prima facie case under the 
framework set forth in McDonnell Douglas", Ostrowski v. Atlantic Mutual Ins. Co. , 
968 F.2d 171, 182 (2d Cir. 1992), though they would not suffice to warrant a Price 
Waterhouse charge. See also, Cmokrak, 819 F. Supp. at 743-44.

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neutral reason for terminating one person, such as seniority, work performance, etc. What 

it could not do is what is indisputably did — select the plaintiff because she belonged to a 

class protected by Title VII, i.e., a black woman affected by pregnancy. See Taxman v. 

Board of Educ. of Township of Piscataway, 91 F.3d 1547, 1549, 1551 (3rd Cir. 1996)(en 

banc)(Title VII is violated when a protected category is made a factor in selecting which 

of equally qualified employees is laid off).

19



Certificate of Service

I hereby certify that I served two (2) copies of the foregoing Reply Brief for 

Plaintiff-Appellant upon counsel for defendant-appellee on this 6th day of February, 1997, 

by first-class mail, postage prepaid, addressed as follows:

James E. Stahl, Esq.
Bonus, Goldin, Foley, Vignuolo, Flyman & Stahl
2875 U.S. Highway One
North Brunswick, New Jersey 08902

Catherine Powell

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ATTACHMENT 1

(Excerpts From District Court 
Oral Argument Transcript)



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THE COURT: Okay. Well, Mr. Stahl can tell me if he

did. Go ahead.
MR. WILLIAMS: Another point I want to make about the

Smith case, Your Honor, is that the Court was very clear in 
that case, both the majority and the concurring opinion, who 
the concurring Judge had some serious reservations about the 
analytical approach that the majority took in that case, but 
all of them basically arrived at the conclusion that the 
employer was able to demonstrate that even if the plaintiff in 
that case had not gone out on pregnancy leave that position, 
that position would have been abolished anyway. Okay? That's 
in stark contrast to this case, Your Honor, where we've got 
four —

THE COURT: That was my question. Wasn't that the
situation here?

MR. WILLIAMS: No, because we've got —  we've got four
secretarial positions. They're all interchangeable. Okay?

THE COURT: Was that the evidence below —
MR. WILLIAMS: Yes.
THE COURT: —  that they were interchangeable?
MR. WILLIAMS: Oh, yes, you know, that they're —  that

the all worked for different people and what not, you know, and 
as a result of that, Your Honor, it may be that due to economic 
reasons the employer needed to abolish a secretarial position, 
but it didn't necessarily have to abolish the secretarial

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position that my client occupied. The real question in this 
case is, why was my client terminated. And you can't 
terminated just because she's the one out on maternity leave.
If you have to abolish a position, fine. That's the first step 
in the process. But the second step in the process is, well, 
who do we select for termination among these four secretaries, 
and that's the step that's missing here, instead of the 
employer saying, we'll compare qualifications to see who's the 
most qualified and we'll retain the most qualified, or, we'll 
do it on the basis of seniority, or some other basis. That 
wasn't done here.

Instead what's done is, well, oh, she's the one who's 
3ut, she's on maternity leave, that's the basis upon which we 
Mill make a decision to terminate her instead of the others.
^nd that gives a tremendous advantage to the nonpregnant 
secretaries, Your Honor. And the law doesn't tolerate that, 
did I think one of the cases I cite in the brief is the Kearnev 
:ase, which I think is somewhat similar here, where the
smployer said, well, you're going to be going out on maternity 
■eave soon anyway, so we're going to go ahead and terminate you 
tow, rather than terminate somebody who's going to be around a 
ot longer. The Court found that to be a clear case of 
iregnancy discrimination. And I would also say in response to 
he Judge saying there's not a scintilla of evidence of 
iscrimination in this case, the Judge could only make that _

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Stahl 20

THE COURT: Anything further, Mr. Stahl?
MR. STAHL: Well, Your Honor, I want to agree with Mr.

Williams. The positions were in fact interchangeable. She 
did—

THE COURT: Now that was a question I was going to ask
you.

MR. STAHL: Yes. They were —  they did work as a
team. She was —  she was reporting to Mr. Hammond at one case 
she —

THE COURT: So whether or not her boss' position was
abolished or not, she could have been switched to someone else 
without any great difficulty?

MR. STAHL: She could have, but then I have to refer
Your Honor back to the Smith case where the Court there found 
that when the individual took the maternity leave they found a 
redundancy in that position which enabled them to abolish the 
position, and they found the appellant's argument in that case 
circular, that because she was terminate —  because the 
position was abolished while she was on maternity leave that in 
and of itself was discrimination. I think Smith is very 
informative for us here because they —  we had four 
secretaries. They may have been interchangeable. And in the 
Smith case there's nothing here to indicate that she, being Ms. 
Smith, could not have done the job of this Mr. Paradis, 
P-a-r-a-d-i-s, or one of the other managers. They found her

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