Rhett v. Carnegie Center Associates Petition for Rehearing and Suggestion for Rehearing In Banc

    IN T H E
U N ITED  STATES C O U R T O F APPEALS 

FO R  T H E  T H IR D  C IR C U IT

IN RE:
C A RN EG IE C EN TER  ASSOCIATES, 

D ebtor

DEBO RAH  RH ETT,
A ppellant

V.

CA RN EG IE C EN TER  ASSOCIATES, 
Appellee

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

PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING IN  BANC

ELA IN E R. JO NES 
Director-Counsel

CHARLES STEPH EN  RALSTON 
NORM AN J. CHACHKIN 
C A TH ER IN E PO W ELL 
NAACP Legal Defense And 
Educational Fund, Inc.

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

LA N IER  E. W ILLIAM S 
C H R ISTO PH ER  M O RK ID ES 

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

Attorneys for Plaintiff-Appellant



TABLE OF CONTENTS

Table of Authorities ................................................................................................. ................ j

Local Appellate Rule 35.1 S ta tem en t...............................................................................  iii

I. Courts Must Look To The Specific Context To Determine Which Employees Are 
Similar In Their Ability or Inability To Work for PDA P u rp o ses..................................  3

II. Plaintiffs Absence Was Inextricably Linked To Her Pregnancy 6



TABLE OF AUTHORITIES

CASES

Cashing v. Moore,
970 F.2d 1103 (2d Cir. 1 9 9 2 )..................................................................................  11

Ensley-Gaines v. Runyon,
72 Fair Empl. Prac. Cas. (BNA) 602 (6th Cir. 1 9 9 6 ).................................. : . 3, 4

Florsheim Shoe Co. v. Illinois Fair Employment Practices 
Commn.,

99 111. App. 3d 868, 425 N.E.2d 1219 (1981) .....................................................  12

Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978) ...................................................................................................  5

Marzano v. Computer Science Corp.,
91 F.3d 497 (3d Cir. 1996)................................................................................ 1, 4, 5

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ..............................................................................................  1, 5

Smith v. F.W. Morse & Co.,
76 F.3d 413 (1st Cir. 1996) ................................................................................  9, 10

St. Mary’s Honor Center v. Hicks,
509 U .S ._ , 125 L. Ed. 407 (1993) ...........................................................................  5

Teahan v. Metro-North Commuter R.R. Co.,
951 F.2d 511 (2d Cir. 1991) .............................................................................. 10, 11

Trans World Airlines, Inc. v. Thurston,
469 U.S. I l l  (1985) .......................................................................................... 1, 7, 8

Troupe v. May Dep’t Stores Co.,
20 F.3d 734 (7th Cir. 1994) .......................................................................................  6

UAW v. Johnson Controls,
499 U.S. 187 (1991) ..............................................................................................  1, 8

United States Postal Service Board of Governors v. Aikens,
460 U.S. 711 (1983) ...................................................................................................  5

l



STATUTES AND LEGISLATIVE HISTORY

H.R. Rep. No. 948, 95th Cong., 2d Sess. 2-4 (1978) in 1978 U.S. Code Cong. & Ad. News
4749-65 .......................................................................................  ............................................  7

Pregnancy Discrimination Act, Pub. L. No. 95-555, 92
Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k)...................................................passim

li



Local Appellate Rule 35.1 Statement

I express a belief, based on a reasoned and studied professional judgment, that the 

panel decision is contrary to decisions of the United States Court of Appeals for the Third 

Circuit or the Supreme Court or the United State, and that consideration by the full court 

is necessary to secure and maintain uniformity of decisions in this Court, to-wit, the panel’s 

decision is contrary to the decision of this Court in Marzano v. Computer Science Corp., 91 

F.3d 497 (3d Cir. 1996), and two decisions of the Supreme Court in Trans World Airlines, 

Inc. v. Thurston, 469 U.S. I l l  (1985), UAW v. Johnson Controls, 499 U.S. 187 (1991), and 

Patterson v. McLean Credit Union, 491 U.S. 164 (1989).

This appeal also involves a question of exceptional importance, to-wit, whether 

selecting an employee’s position for elimination because of her absence due to pregnancy 

violates Title VII when no evidence exists regarding an employer’s treatment of non­

pregnant employees absent due to other types of medical leaves (i.e., due to temporary 

disability). This question is of central importance for the development of Title VII doctrine 

generally and for the purpose of providing guidance to courts weighing claims from 

pregnant women who seek equal opportunity in the labor force.

iii



PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING IN BANC

Appellant Deborah Rhett, by undersigned counsel, respectfully prays that this Court 

grant rehearing of this cause and suggests the appropriateness of rehearing in banc. 

Although this is an individual Title VII case tried as part of bankruptcy proceedings, the 

opinion of the panel majority rests upon a fundamentally flawed interpretation of the 

Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 

U.S.C. § 2000e(k), that will have significance far beyond the facts of this matter.

The panel majority accepted, for purposes of its decision, appellant’s contentions 

that she was granted an unpaid medical leave of absence from her employment with 

Carnegie Center Associates because of her pregnancy and was still an employee, although 

out on that leave, when the employer determined to make a reduction in force (slip op. at 

7). It is also uncontested that Carnegie decided to eliminate Rhett’s secretarial position 

(effectively terminating her employment) because she was absent — on medical leave — 

from the job site at the time the reduction in force was effectuated. See slip op. at 4 (citing 

testimony that "Carnegie did not make a performance-based evaluation as to which 

secretary’s employment it should terminate because it did not consider Rhett an employee 

at that time1'1 and it was easy to abolish her former position by not hiring any more temps, 

thus reducing the number of secretaries from four to three"); id. at 5 (bankruptcy court 

"held that Carnegie abolished Rhett’s position for the legitimate non-discriminatory reason *

'As the panel majority noted later in its opinion, "Carnegie had no formal maternity 
leave policy, but it did have a practice of allowing employees to return from leave to the 
same or similar position if one was available. It is undisputed that Carnegie maintained 
Rhett’s medical insurance until it eliminated her position on March 26, 1991. Therefore, 
it appears that Rhett was an employee of Carnegie on an unpaid leave of absence who 
sought reinstatement" (slip op. at 7).



that she was away from work, and not because of discrimination on the basis of race, 

gender or pregnancy").

The panel majority thus correctly framed the "main issue on this appeal [a]s whether 

an employee’s absence on maternity leave can be a legitimate non-discriminatory reason 

for her termination" (slip op. at 5). However, the majority answered this question in a 

manner that eviscerates the intended protections of the Act, especially for women employed 

by companies with relatively few employees, by placing the burden upon the terminated 

employee to demonstrate that "a non-pregnant employee absent on disability leave" would 

have been treated differently by the company (see slip op. at 11). That approach, as Judge 

McKee forcefully demonstrated in his dissent, vitiates the protections of the statute by 

allowing employers to base termination upon a factor inextricably connected to pregnancy 

-  the very medical leave that employers must grant pregnant employees under the terms 

of the Act.2 It also affords small employers virtually unlimited discretion to terminate 

pregnant workers who have taken pregnancy leaves in the guise of "reductions in force" so 

long as the employer avoids making a "reduction in force" at a time when non-pregnant 

employees are out on medical leave:

Rhett has not made a showing that Carnegie treated her differently 
than it would have treated a non-pregnant employee absent on disability 
leave. Of course, it was difficult for her to make such a showing because 
Carnegie never has had an employee on disability leave for a protracted 
period for a reason other than pregnancy. Thus, we must affirm the district 
court’s denial of her PDA claim for the reasons indicated.

2A s discussed more fully below, it is undisputed that Rhett’s leave was solely due to her 
pregnancy, childbirth, and a related medical condition. Her leave involved nothing more 
and nothing less. The plain language of the PDA protects "women affected by pregnancy, 
childbirth, or related medical conditions" 42 U.S.C. § 2000e(k).

2



(Slip op. at 11). It is particularly ironic to affirm a judgment against Rhett on this basis, 

since none of Carnegie’s witnesses ever stated that the company’s "reduction in force" policy 

would be applied to a non-pregnant employee absent on temporary disability leave.

This Court should grant rehearing or rehearing in banc to correct these serious 

misinterpretations of the Pregnancy Discrimination Act.

I. Courts Must Look To The Specific Context To Determine Which Employees Are 
"Similar In Their Ability or Inability To Work" for PDA Purposes

The plain language of the Pregnancy Discrimination Act (PDA), which amended 

Title VII, requires that "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) (emphasis added). Elaborating on this point, the Sixth Circuit notes, "While Title 

VII generally requires that a plaintiff demonstrate that the employee who received more 

favorable treatment be similarly situated ‘in all respects’, Mitchell [v. Toledo Hospital], 964 

F.2d [577], 583 [(6th Cir. 1992)], the PDA requires only that the employee be similar in his 

or her ‘ability or inability to work.’ 42 U.S.C. § 2000e(k)." Ensley-Gaines v. Runyon, 72 Fair 

Empl. Prac. Cas. (BNA) 602, 607 (6th Cir. 1996) (finding limited duty and light duty 

employees were similarly situated for PDA purposes). "Therefore, under the PDA, an 

individual employee alleging discrimination based upon pregnancy need not meet ‘the same 

supervisor test’ as enunciated in Mitchell, but need only demonstrate that another employee 

who was similar in her or his ability or inability to work receive employment benefits denied 

to her." Id.

3



The panel majority rigidly relies on one type of evidence that does not even exist on 

the facts of this case (i.e., non-pregnant employees with comparable temporary disabilities), 

rather than taking into account the undisputed facts of the case (i.e., that three non­

pregnant secretaries were retained who were similarly situated to plaintiff in their ability 

or inability to work). In concluding that the lower courts had in fact erred in failing to find 

that Rhett had made out a prima facie case (slip op. at 12), the panel majority implicitly 

recognizes that Rhett carried her burden of demonstrating the fourth prong of the prima 

facie case in the reduction-in-force context: while plaintiff was terminated, others outside 

the protected group were retained (i.e., the three non-pregnant secretaries) who were 

similarly situated to Rhett in their ability or inability to work.3

Once plaintiff had demonstrated that she was treated differently than the three non­

pregnant secretaries, she should not have been required to show any "additional evidence", 

even if her situation could be viewed as unique, given that she was the only secretary on 

medical leave at the time. Marzano v. Computer Science Corp., 91 F.3d 497, 507 & 510-11 

(3d Cir. 1996).4 It was error for the majority panel to insist that plaintiff provide evidence

3A s indicated in the Brief for Plaintiff-Appellant, plaintiff was on the verge of returning 
to her job and the company knew she expected to return soon after March 26th, 1991 (the 
day she was terminated). Br. of Pl.-App., at 15. Plaintiff had given actual notice to 
defendant that she expected to return from pregnancy leave on April 15, 1991. J.A., 177 
(Exhibit C-4). Additionally, the lower courts specifically found that Rhett and the three 
non-pregnant secretaries held virtually interchangeable positions.

4In Marzano, this Court stated:

All employees can be characterized as unique in some ways and as sharing 
common ground with ‘similarly situated employees’ in some other ways, 
depending on the attributes on which one focuses . . . .The relevant issue for 
our purposes is not whether there is some way in which an employee can be

4



about the treatment of non-pregnant employees on temporary disability leave, when, 

according to the company, no employee had occasion to take such leave. Defendant did 

not offer any evidence suggesting it would have afforded similar treatment to an absent 

non-pregnant employee with a temporary disability; nor that there was any policy in this 

regard. In fact, the defendant did not even try to argue it would have made the same 

decision with regard to a non-pregnant employee who was absent due to the flu, a broken 

leg, or any other illness that would have kept an employee away from the workplace 

temporarily.

The Supreme Court has stated quite clearly that Title VII cannot be mechanically 

applied and does not depend upon rigid reliance on a certain type of evidence. Patterson 

v. McLean Credit Union, 491 U.S. 164, 187-88 (1989) ("petitioner is not limited to 

presenting evidence of a certain type"); Fumco Construction Corp. v. Waters, 438 U.S. 567, 

577 (1978); United States Postal Service Board of Governors v. Aikens,. 460 U.S. 711, 715

(1983); St. Mary’s Honor Center v. Hicks, 509 U.S.__, 125 L.Ed. 407, 424 (1993). Instead,

courts must look at the totality of the circumstances and view the evidence as a whole. St. 

Mary’s Honor Center v. Hicks, 125 L.Ed. at 424.

The only relevant evidence that was available regarding the treatment of non­

pregnant employees who were similarly situated in their ability or inability to work was the 

evidence concerning the three non-pregnant secretaries who were similarly situated in their

classified as unique but, rather, whether the employee can be classified as 
unique in some way relevant to his or her layoff.

Id. at 510-11 (emphasis in original).

5



ability or inability to work, given that plaintiff was on the brink of returning to work. These 

three non-pregnant secretaries were retained, while plaintiffs position was selected for 

elimination during the period of downsizing, because of her pregnancy-related absence. To 

require that plaintiff provide evidence concerning defendant’s treatment of other types of 

absences (other than pregnancy leave), where apparently no such absences had yet occurred 

would allow a company to continue selecting women on pregnancy leave for termination 

during "downsizing", and such a practice could not be stopped until an employee took a 

leave for a comparable temporary disability yet was treated more favorably (i.e., was 

retained) during a similar period of downsizing. The PDA does not require such a rigid 

approach.

II. Plaintiffs Absence Was Inextricably Linked To Her Pregnancy

It was error for the panel majority to hold that a pregnancy-related absence from 

the workplace is a legitimate, non-discriminatory criterion for selection in determining 

which of several interchangeable positions to eliminate during a period of downsizing. In 

fact, with the arguable exception of Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th 

Cir. 1994), all of the cases on which the panel relies involve pregnancy-neutral justifications 

(i.e., reasons other than pregnancy-related medical leave), which are viewed as legitimate 

bases for the employment action at question. See cases cited in slip op. at 9-10. Even in 

Troupe, the decision turned on the employee’s tardiness to work, not her pregnancy-related 

leave.

The majority’s analysis ignores the inescapable and undisputed facts of this case -

6



that plaintiffs leave was solely due to her pregnancy, childbirth, and a related medical 

condition. Her leave involved nothing more and nothing less. The plain language of the 

PDA protects "women affected by pregnancy, childbirth, or related medical conditions" 42 

U.S.C. § 2000e(k). As Judge McKee notes, "‘[I]n using the broad phrase ‘women affected 

by pregnancy, childbirth and related medical conditions,’ the [PDA] makes clear that its 

protection extends to the whole range o f matters concerning the childbearing process.'' H.R. 

Rep. 95-948 (emphasis added)." Slip op. at 30 (McKee, J., dissenting). "Indeed, the 

historical underpinnings of Title VII suggest that it was the fear that women would get 

pregnant and be absent from their jobs that was, at least in part, responsible for the 

longstanding discrimination against women (especially younger women) in the workplace." 

Id. at 36. See H.R. Rep. No. 948, 95th Cong., 2d Sess. 2-4 (1978), at 3, reprinted in 1978 

U.S. Code Cong. & Ad. News 4749-65.

An employer "relies" on a pregnancy when it justifies termination based on an effect 

of pregnancy -  that is, the inevitable temporary absence from the workplace that 

accompanies pregnancy, childbirth, and related medical conditions.5 Since the termination 

decision was based on the effects of pregnancy, this case is properly governed by Trans 

World Airlines, Inc. v. Thurston, 469 U.S. I l l  (1985). That is, persons unaffected by 

pregnancy were retained while plaintiffs position was eliminated solely because she was 

affected by pregnancy. In Thurston, captains disqualified as pilots for reasons other than 

age were allowed to bump less senior flight engineers, while captains disqualified by reason

5The plain language of the PDA protects "women affected by pregnancy, childbirth, or 
related medical conditions" 42 U.S.C. § 2000e(k) (emphasis added).

7



of age were not. Although TWA was not prohibited from retiring all disqualified captains, 

the Court held that it could not make the availability of a transfer to another job 

"dependent upon the age of the individual" without violating the law against age 

discrimination.6 469 U.S. at 124. Similarly here, while it could eliminate some or all of 

the jobs in question, Carnegie Center Associates could not make the decision whether to 

eliminate a particular job dependent on whether the person occupying the job was affected 

by pregnancy.

Under Thurston, the burden shifts to the defendant employer to prove that the 

action was justified by an affirmative defense recognized by Title VII (such as a BFOQ). 

469 U.S. at 121-22. While plaintiff raised this argument in the district court and before the 

panel of this Court, both courts decided instead to evaluate this case under either 

McDonnell Douglas or Price Waterhouse. For reason discussed more fully in Brief for 

Plaintiff-Appellant, at 16-24, and Reply Brief for Plaintiff-Appellant, at 4-5, Thurston 

provides the most appropriate framework for analyzing the instant case. Even under the 

McDonnell Douglas analysis, none of the justifications for the company’s actions advanced 

by the courts below are legally sound for the reasons discussed in Brief for Plaintiff- 

Appellant, at 21-24.

As recognized by Judge McKee in dissent, Smith v. F.W. Morse & Co., 76 F.3d 413 

(1st Cir. 1996), provides guidance for the Court’s consideration of the instant case. Slip 

op. at 26 (McKee, J., dissenting). As with the instant case, Smith involves the elimination

6See UAW v. Johnson Controls, 499 U.S. 187, 199 (1991) ("Whether an employment 
practice involves disparate treatment through explicit facial discrimination does not depend 
on why the employer discriminates but rather on the explicit terms of the discrimination.").

8



of an employee’s position during a reduction-in-force. See id. at 434 (Bownes, J., 

concurring) (distinguishing Troupe and other inapposite cases that deal with discharge in 

contrast to elimination of a position during downsizing). In Smith, the Court found that 

the employer relied on a factor other than plaintiffs pregnancy-related absence in selecting 

her position for elimination. In that case, plaintiff Kathy Smith’s position was found to be 

redundant — a conclusion serendipitously reached only after plaintiff had gone on 

pregnancy leave. The Smith Court correctly found that "[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." Id. at 424 (emphasis added). While in Smith, plaintiffs 

position was selected for elimination while on pregnancy leave for reasons independent of 

her pregnancy leave, in the instant case, plaintiffs pregnancy leave was the reason the 

company selected her position was for termination.7

Under the majority’s reasoning, by contrast, an employer could line up a group of 

employees, select a pregnant woman from the line up, and tell her that her position would 

be selected for elimination because in two months time she would be on pregnancy leave 

in any event. Certainly this interpretation is at odds with the spirit and the letter of the 

PDA. Under the majority’s reasoning, a pregnant woman’s position could be selected for

7The Smith Court cautions:

[A]n employer who selectively cleans house cannot hide behind convenient 
euphemisms such as "downsizing" or "streamlining." Whether 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, 76 F.3d at 422 (citing cases).

9



elimination because she happens to be out of the office that day as a result of having gone 

into labor in the delivery room of a hospital. Certainly this interpretation would eviscerate 

the very essence of the PDA.8

Contrary to the majority’s holding in the instant case, plaintiffs absence from work 

was not a pregnancy-blind justification for termination. Rather, this case is analogous to 

Teahan v. Metro-North Commuter R.R. Co., 951 F.2d. 511 (2d Cir. 1991). See slip op. at 33- 

35 (McKee, J., dissenting). In Teahan, an employee challenged his discharge (which had 

been based on his excessive absenteeism), claiming that the discharge was in violation of 

§ 504 of the Rehabilitation Act of 1973 because his absences had been caused by a 

handicap (alcoholism). Teahan argued that "because the ground upon which he was 

terminated was his excessive absenteeism, and since his absenteeism was ‘caused by’ his 

substance abuse problem, the district court improperly shifted the burden to him to present 

evidence of pretext." Id. at 514. The Second Circuit agreed, holding that "termination by 

an employer . . . which is justified as being due to absenteeism shown to be caused by 

substance abuse is termination "solely by reason of' that substance abuses for purposes of 

§ 504." Id. at 517.9 Indeed, the Court found that "an employer ‘relies’ on a handicap when

8Under the majority’s reasoning in the instant case, an employer could fire an employee 
because of her absence from work for religious observance purposes. While an employer 
cannot fire an employee for absence from work for religious observance purposes without 
violating Title VII’s ban on religious discrimination, Smith illustrates through a hypothetical 
that an employer could fire an employee if, for instance, drugs were found in her desk 
while she was absent from the office to observe Passover. Id. at 425, n.9.

9Judge Mckee notes that the "solely by reason of' inquiry in the §504 context is 
"‘designed to weed out [] claims where an employer can point to conduct or circumstances 
that are causally unrelated to the plaintiffs handicap.’" Slip op. at 34, n.5 (McKee, J., 
dissenting) (quoting Teahan, 951 F.2d at 516). "In the context of the PDA, the analogue

10



it justifies termination based on conduct caused by that handicap." Id. at 516.10 Relying 

on Teahan, the Second Circuit found in a later case that "the key determination becomes 

the factual issue of whether an employee’s conduct (such as absenteeism), which forms the 

articulated basis for a job termination, is actually caused by a handicap (such as substance 

abuse)." Cushing v. Moore, 970 F.2d 1103, 1108 (2d Cir. 1992). See also slip op. at 34-35 

(McKee, J., dissenting) (discussing cases).

In the instant case, there is no dispute that plaintiffs conduct (absence from work) - 

- which formed the employer’s articulated basis for terminating plaintiff -  was actually 

caused by the pregnancy. Selecting plaintiffs position for elimination based on her 

absenteeism shown to be caused by pregnancy is termination "because of or on the basis 

of pregnancy" (just as termination justified by absenteeism shown to be caused by a 

handicap is termination "solely by reason of' the handicap in the § 504 context). Such a 

reason for termination can therefore only be justified by a BFOQ.

is the ‘because of or on the basis of pregnancy’ inquiry." Slip op. at 34, n.5 (McKee, J., 
dissenting).

While the recognizing that "the causal connection between absenteeism and 
alcoholism is ordinarily a question of fact", the Court in Teahan accepted that the plaintiffs 
excessive absences were "caused by" his alcoholism because its review on appeal required 
it to examine the facts in the light most favorable to the party against whom summary 
judgment was granted.

‘"Under the Rehabilitation Act, "[t]he question then becomes whether the employee is 
qualified despite his or her handicap to perform the essential functions of the job." Teahan, 
951 F.2d at 516. The employer bears that burden: "[A]fter complainant proves a prima 
facie case, the employer is required to rebut the inference that the handicap was improperly 
considered by demonstrating that it was relevant to the job qualifications." Id. at 515. This 
burden operates similar to the bona fide occupational qualification (BFOQ) defense in the 
PDA context.

11



In sum, when defendant decided to eliminate one of the secretarial positions, it was 

required by Title VII, as amended by the Pregnancy Discrimination Act, to do so 

uninfluenced by plaintiffs pregnancy and its effects on her. The employer had to use 

pregnancy-neutral criteria to determine whether her position, as opposed to other 

equivalent positions, should have been eliminated. Clearly if plaintiff were pregnant but 

still on the job and scheduled to go on leave in the future, her employer could not 

terminate her because of that effect of her pregnancy.11 It could also not terminate her 

because she was already on leave due to her pregnancy, and scheduled to return.

Carnegie Center Associates has advanced no other reason or justification for its 

decision to terminate Ms. Rhett. Therefore, this case must be remanded with instructions 

that judgment must be entered in her favor.

Respectfully submitted,

ELAINE R. JONES LANIER E. WILLIAMS
Director-Counsel CHRISTOPHER MORKIDES

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

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

Attorneys for Plaintiff-Appellant *

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

nSee Florsheim Shoe Co. v. Illinois Fair Employment Practices Commn., 99 111. App. 3d 
868, 425 N.E.2d 1219 (1981) (policy of laying off pregnant employees on the ground that 
it was thought "they would be leaving anyway" violated Illinois’ analogue to Title VII; state 
court relied on interpretation of Title VII in Nashville Gas Co. v. Satty, 434 U.S. 136 
(1977)).

12



Certificate of Service

I hereby certify that I served two (2) copies of the foregoing Petition for Panel 

Rehearing and Suggestion for Rehearing In Banc upon counsel for defendant-appellee on 

this 13th day of November 1997, by first-class mail, postage prepaid, addressed as follows: 

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

Catherine Powell

13



Attachments

Judgment

Opinion of the Court



UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

No. 96-5566 

IN RE:
CARNEGIE CENTER ASSOCIATES,

Debtor
DEBORAH RHETT,

Appellant
v.

CARNEGIE CENTER ASSOCIATES

On Appeal from the United States District Court 
for the District of New Jersey 

(D.C. Civ. No. 96-00852)

Present: Greenberg, McKee, and Wellford,* Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the United 
States District Court for the District of New Jersey and was 
argued by counsel on June 23, 1997.

On consideration whereof, it is now here ordered and 
adjudged by this Court that the judgment of the said District 
Court entered August 6, 1996, be, and the same is hereby



affirmed. Costs taxed against appellant. All of the above in 
accordance with the opinion of this Court.

ATTEST:

Clerk

Dated:



Filed October 31, 1997

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

No. 96-5566

IN RE:
CARNEGIE CENTER ASSOCIATES,

Debtor 
DEBORAH RHETT,

A ppellant
v.

CARNEGIE CENTER ASSOCIATES

On Appeal from the United States District Court 
for the District of New Jersey 

(D.C. Civ. No. 96-00852)

Argued June  23, 1997
BEFORE: GREENBERG, MCKEE, and WELLFORD,* 

Circuit J u d g es

(Filed: October 31, 1997)

•Honorable Hany W. Wellford. Senior Judge of the United States Court 
of Appeals for the Sixth Circuit, sitting by designation.



2

Elaine R. Jo n es  
D irector-C ounsel 
C harles S tephen  R alston 
Norm an J .  C hachkin  
C atherine  B. Powell (argued) 
NAACP Legal Defense & 
E ducational F und 
99 H udson S tree t 
16th Floor
New York, NY 10013
Lanier E. Williams 
C hristopher Morkides 
P.O. Box 6584 
Philadelphia, PA 19138

Attorneys fo r  Appellant
Ja m e s  E. S tah l (argued)
Remy M. Q uinones
B orrus, Goldin, Foley, Vignuolo,
Hym an & S tahl
2875  United S ta tes  Highway 1
P.O. Box 7463
North Brunsw ick, NJ 08902

Attorneys fo r  Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.
This case  com es on before th is  co u rt on appeal from the  

d istric t co u rt’s o rder affirm ing a  bank ru p tcy  co u rt o rder 
expunging  th e  claim  of the  appellan t D eborah R hett, a  
b lack  female, w hich a rose  ou t of the  term ination  of h e r 
em ploym ent w hen h e r employer, appellee Carnegie C enter 
A ssociates (Carnegie), abolished h e r position. The 
b an k ru p tcy  co u rt h ad  sub jec t m a tte r ju risd ic tion  u n d e r 28 
U.S.C. § 157(b)(2)(B), (O) an d  28  U.S.C. § 1334(b). The 
d is tric t cou rt had  appella te  ju risd ic tion  over the b an k ru p tcy  
co u rt’s  order p u rs u a n t  to 28 U.S.C. § 158. We have 
ju risd ic tio n  u n d e r 28  U.S.C. § 1291, 28 U.S.C. § 158(d), an d  
42  U.S.C. § 2000e-5(j).



3

A. FACTUAL AND PROCEDURAL HISTORY
The facts in th e  case w ere developed a t  the  tria l of the  

adversary  proceeding in th e  b an k ru p tcy  court. R hett began 
w orking for Carnegie, a  real e s ta te  com pany Allan Landis 
owned an d  controlled, a s  a  tem porary  secre tary  In April 
1989. She becam e a  full-tim e p e rm an en t secre tary  in 
C arnegie’s A ccoun ting /F inance  D epartm en t on J u ly  17, 
1989, an d  received a  salary  increase  of $1 ,500  in J a n u a ry  
1990 based  on h e r satisfacto ry  perform ance.

In J u n e  1990, R hett inform ed h e r superv isors an d  co- 
w orkers th a t  she  w as p regnan t. W hen sh e  told Keith 
Gorm isky, the  controller, a n d  G ary T um dorf, th e  chief 
financial officer an d  counsel, of h e r p regnancy  bo th  asked  
if she  w as going to get m arried . T u m d o rf com m ented  th a t 
being a  single p a ren t w as difficult, an d  R hett claim ed th a t 
G orm isky said  th a t getting m arried  w as: “in society’s eyes 
. . .  the  righ t th ing  to do .” N evertheless, T u m d o rf testified 
th a t  the  fact th a t R hett w as u n m arried  played no role in 
C arnegie’s la te r decision to abolish  h e r position. R hett also 
claim ed th a t  Gorm isky becam e ira te  w ith h e r ju s t  before 
sh e  left on m atern ity  leave an d  s ta ted  th a t she  w as on “th in  
ice.” The b an k ru p tcy  court, apparen tly  a ttr ib u tin g  th is  
com m ent to T um dorf, found It re la ted  to h is  view of the 
quality  of R hett’s work.

R hett c ircu lated  a  m em o to the  m anagerial officers 
(including Landis, T u m d o rf an d  Gormisky) on D ecem ber 
18, 1990, s ta tin g  th a t sh e  p lanned  to be on m atern ity  leave 
from D ecem ber 21, 1990, u n til ab o u t April 15, 1991. 
Carnegie h ired  a  tem porary  sec re ta iy  to fill in w hile sh e  w as 
gone. Carnegie did no t have a  form al m atern ity  leave policy, 
b u t  T u m d o rf testified th a t Its p ractice  w as to “tiy  an d  hold 
it open for them  if we cou ld” so th a t “[w]hen they w anted  to 
com e back , if they con tacted  u s  an d  there  w as som ething  
open th a t  w as su itab le, we would offer it to th em .” See  
b an k ru p tcy  co u rt opinion a t 5-6 (d iscussing  two em ployees 
who left on m atern ity  leave an d  su b seq u en tly  re tu rn ed  to 
th e  sam e or sim ilar positions).

C arnegie h ad  experienced financial difficulties p rio r to 
R hett’s d ep artu re  th a t w orsened while sh e  w as gone, 
forcing it to m ake staff cu tb ack s  to decrease costs.

/  /



4

C onsequently , ju s t  before R hett originally h a d  p lanned  to 
re tu rn , Carnegie elim inated several positions, inc lud ing  
R hett’s  secretaria l position, an d  te rm ina ted  several 
em ployees, including h e r supervisor, Geoff H am m ond. On 
M arch 26, 1991, Gorm isky w rote R hett to tell h e r th a t  h e r 
position had  been elim inated .1 T u m d o rf testified th a t 
Carnegie did n o t m ake a  perform ance-based  evaluation  a s  
to w hich secre tary ’s em ploym ent it sh o u ld  te rm in a te  
b ecau se  It did no t consider R hett a n  employee a t  th a t  tim e 
an d  it w as easy  to abolish  h e r form er position by n o t h iring  
any  m ore tem ps, th u s  reducing  the  n u m b er of sec re ta ries  
from  four to three. At th a t  tim e R hett w as still aw ay from 
w ork b ecause  she  w as u n d e r m edical care  (counseling) for 
p o s t-p a rtu m  depression , w hich she  con tinued  u n til J u n e  of 
1991. W hen R hett called Gorm isky after receiving the  le tter, 
he  re itera ted  th a t h e r position h ad  been  abolished . She 
asked  ab o u t two o th er positions w ith Carnegie a n d  w as told 
they  w ere n o t available to her. In fact, C arnegie did n o t 
interview  Rhett, or consider h iring her, for any  o th er 
position.

R hett filed a  su it in th e  d istric t cou rt u n d e r Title VII an d  
th e  New Je rsey  Law A gainst D iscrim ination ag a in s t 
Carnegie on November 26, 1993, alleging d iscrim ination  on 
the  b asis  of h e r race, gender, an d  m arita l s ta tu s .1 2 The 
d is tric t co u rt action w as au tom atically  stayed  b ecau se  
Carnegie w as undergoing b an k ru p tcy  reorganization. T hu s, 
R hett p u rsu e d  the  m a tte r  by filing a  proof of claim  w ith  the  
b an k ru p tcy  co u rt on February  19, 1994. T hereafter the  
d is tric t cou rt te rm inated  the  d istric t co u rt action  w ith o u t 
prejudice an d  the  case  con tinued  a s  an  adversary  
proceeding in the b an k ru p tcy  court. The b an k ru p tcy  co u rt 
found in C arnegie’s favor after a  th ree-day  ben ch  trial. It 
held th a t Carnegie h ad  to reduce costs  b ecau se  of financial

1. March 26, 1991, is the date Carnegie listed with the EEOC as Rhett’s 
“Date of Termination.” In addition. Rhett's medical coverage continued 
with Carnegie until this date, as two weeks later she received COBRA 
information. The bankruptcy and district courts, however, found that 
Carnegie did not consider Rhett an employee at the time it abolished her 
position.
2. She also made a claim under 42 U.S.C. §1981 but she has not 
advanced that claim in these proceedings so we do not discuss it.



5

difficulties a n d  th a t  it e lim inated staff a t  bo th  the 
m anagem ent a n d  su p p o rt levels. The co u rt held th a t 
C arnegie abolished R hett’s  position for the legitim ate non- 
d iscrim inatory  reason  th a t she  w as away from work, and  
n o t b ecause  of d iscrim ination  on the  basis  of race, gender 
or pregnancy. The co u rt fu rth er held th a t sh e  w as not 
qualified for any  of the  o ther positions for w hich she 
a sse rted  C arnegie shou ld  have interviewed her. The d istric t 
co u rt affirmed in an  opinion an d  order en tered  A ugust 6, 
1996, holding th a t the  b an k ru p tcy  cou rt’s factual findings 
w ere n o t clearly erroneous an d  these  findings “com pelled 
th e  conclusion th a t th e ' secretaria l position held by 
appellan t w as abolished for legitim ate, non-discrim inatory  
reaso n s.” R hett th en  appealed  to th is court.

The m ain  issu e  on th is  appeal is w hether an  em ployee’s 
absence  on m atern ity  leave can  be a  legitim ate non- 
d iscrim inatory  reason  for h e r  term ination . Inasm uch  as the 
d is tric t co u rt s a t a s  an  appellate  court, we exercise p lenary  
review of its decision. Universal Minerals, Inc. V. C. A. 
H ughes & Co., 669  F.2d 98, 101-102 (3d Cir. 1981). 
Findings of fact by the  b an k ru p tcy  judge, however, a re  only 
reversible if clearly erroneous. B ankrup tcy  Rule 8013.

B. PREGNANCY, RACIAL AND GENDER 
DISCRIMINATION

On th is  appeal R hett claim s th a t Carnegie term inated  her 
em ploym ent becau se  of her pregnancy an d  on acco u n t of 
h e r race and  gender in violation of Title VII an d  the  New 
Je rsey  Law A gainst D iscrim ination. We confine our 
d iscussion  to Title VII b ecause  h er s ta te  law claim s are 
analyzed in the  sam e way a s  h e r Title VII claim s. See  
M arzano v. Computer Science Corp., 91 F .3d 495, 502 (3d 
Cir. 1996). Indeed, R hett apparen tly  recognizes th is  point 
becau se  she  does no t cite a  single New Je rsey  s ta te  cou rt 
opinion in e ither of h e r briefs on th is appeal.

Title VII p roh ib its  em ploym ent discrim ination based  on 
an  individual em ployee’s sex. 42 U.S.C. § 2000e-2(a). The 
Pregnancy D iscrim ination Act (“PDA”), a  1978 am endm en t 
to Title VII, s ta tes:



6

The te rm s ‘becau se  of sex’ o r ‘on the  b a sis  of sex’ 
include, b u t  a re  no t lim ited to, becau se  o f or on the  
b asis  of pregnancy, ch ildb irth , or re la ted  m edical 
conditions; an d  wom en affected by pregnancy, 
ch ildbirth , or re la ted  m edical conditions sh all be 
trea ted  th e  sam e for all em ploym ent-related  pu rp o ses  
. . .  a s  o th e r persons no t so affected b u t sim ilar in  their 
ability or inability  to work. . . .

42  U.S.C. §2000e(k). There is em ploym ent d iscrim ination  
w henever an  em ployee’s p regnancy is a  m otivating factor 
for the  em ployer’s adverse  em ploym ent decision. 42 U.S.C. 
§ 2000e-2(m ).

The b an k ru p tcy  and  d istric t co u rts  analyzed R hett’s 
claim  a s  being based  on c ircu m stan tia l evidence im plicating 
th e  b u rd en  sh ifting  fram ew ork of McDonnell Douglas Corp 
v. Green, 411 U.S. 792, 93  S.C t. 1817 (1973). In a  Title VII 
case  su ch  a s  th is  one involving a  reduction  in force, in 
o rder to m ake o u t a  prim a fa c ie  case  the  p lain tiff m u s t 
show  th a t  (1) sh e  belonged to a  pro tected  class, (2) sh e  w as 
qualified for the  position from w hich she  w as term inated , 
(3) she w as term inated  an d  (4) persons ou tside  o f the 
p ro tec ted  c lass  w ere re ta ined . S ee  Arm bruster v. U nisys 
Corp., 32  F.3d 768, 777 (3d Cir. 1994). W hile n e ith e r cou rt 
m ade specific reference to the  applicability  of the  modified 
McDonnell Douglas fram ew ork In reduction  in force 
s itu a tio n s, th e  record clearly estab lishes th a t C arnegie did 
reduce its force, so we will apply  the  approp ria te  
fram ew ork. O nce th e  p lain tiff e stab lish es  a  prim a fa c ie  
case , th e  b u rd en  sh ifts  to the  defendan t to a rticu la te  a  
legitim ate non-d iscrim inatory  reason  for the  p la in tiff’s 
te rm ination . Texas D ep’t o f  Com m unity A ffairs v. B ur dine, 
45 0  U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981). If the  
defen d an t a rticu la tes  su ch  a  reason , the  p lain tiff th en  m u s t 
prove th a t  the  facially legitim ate reason  w as a  p re tex t for a  
d iscrim inatory  motive. Id.3

3. Rhett argues that this case involves a per se  violation of the PDA. so 
that she has presented direct evidence of discrimination. Accordingly, in 
her view we should analyze the case under Trans World Airlines, Inc. v. 
Thurston. 469 U.S. I l l ,  105 S.Ct. 613 (1985). rather than’ under 
McDonnell Douglas. We reject this argument because, as we discuss 
below, consideration of an employee’s absence on maternity leave is not 
a per se  violation of the PDA. Furthermore, the bankruptcy and district 
courts did consider Rhett's claim of direct evidence of discrimination and 
properly rejected it. Thus, this is a McDonnell Douglas case.



7

The b an k ru p tcy  an d  d is tric t co u rts  held  th a t  R hett did 
no t e stab lish  a  prim a fa c ie  case. We d isagree w ith  th is  
conclusion b u t a re  satisfied  th a t  the  c o u rts ’ e rro r is 
harm less becau se  the  b an k ru p tcy  co u rt considered  the  
issues re levant to a  reduction  in force an a ly sis  a t  a  trial 
and  m ade the  requ isite  findings for su ch  an  analy sis . T hus, 
insofar as  th is  case  involves a  reduction  in force, we focus 
on C arnegie’s reason  for te rm ina ting  R hett’s  em ploym ent.

This case  largely bolls down to a  d isp u te  over one issue: 
w hether te rm inating  an  employee b ecau se  sh e  is a b se n t on 
m atern ity  leave is a  violation of th e  PDA. The b an k ru p tcy  
and  d istric t co u rts  found th a t C arnegie e lim inated  R hett’s 
position b ecause  she  w as no t a t h e r  p lace of em ploym ent a t  
th a t tim e, no t becau se  of h e r pregnancy. C arnegie argues, 
an d  the  b an k ru p tcy  an d  d is tric t co u rts  found  a t  leas t 
implicitly, th a t  R hett w as n o t em ployed by C arnegie a t  the  
tim e Carnegie elim inated h e r position. R hett a s s e r ts  th a t 
she  w as an  employee on u n paid  leave a t  th a t  time. 
Carnegie h ad  no formal m atern ity  leave policy, b u t it did 
have a  practice  of allowing em ployees to re tu rn  from leave 
to the sam e or sim ilar position if one w as available. It is 
u n d isp u ted  th a t Carnegie m ain ta ined  R hett’s m edical 
in su ran ce  un til It elim inated h e r position  on M arch 26, 
1991. Therefore, it ap p ears  th a t  R hett w as a n  em ployee of 
Carnegie on an  unp a id  leave of ab sen ce  w ho so u g h t 
re in sta tem en t. We need not, however, definitely so 
determ ine because  even a ssu m in g  th a t  C arnegie still 
employed R hett w hen it abolished h e r position , u n d e r  the  
Armbruster reduction  in force fram ew ork, sh e  is n o t en titled  
to relief.

Regulations prom ulgated u n d e r Title VII provide:
D isabilities cau sed  or con tribu ted  to by pregnancy, 
ch ildbirth , or re la ted  m edical conditions, for all Job- 
re la ted  p u rposes, shall be trea ted  th e  sam e  a s  
d isabilities cau sed  or con tribu ted  to by o th e r m edical 
conditions. . . . W ritten or u n w ritten  em ploym ent 
policies an d  p rac tices involving m a tte rs  su c h  a s  th e  
com m encem ent an d  d u ra tio n  of leave . . . [and] 
re in s ta tem en t . . . shall be  applied to d isability  d u e  to 
p regnancy . . .  on the  sam e term s an d  conditions as  
they a re  applied to o ther disabilities.

/ l



8

29  C.F.R. § 1604.10(b). The in terpretive question  and  
answ er section accom panying the  regulation  specifies th a t 
a n  em ployer m u s t hold open the  jo b  of a  w om an ab sen t 
b ecau se  of p regnancy “on th e  sam e b asis  as  jo b s  a re  held 
open for em ployees on sick  o r d isability  leave for o ther 
reaso n s .” 29 C.F.R. Pt. 1604 App. Q uestion  9. On the  o ther 
h an d , th e  PDA does no t requ ire  th a t em ployers trea t 
p reg n an t em ployees be tte r th a n  o th er tem porarily disabled 
em ployees. TYoupe v. M ay D ep't Stores Co., 20  F .3d 734, 
738 (7th Cir. 1994); M aganuco v. L eyden  Community High 
Sch. D is t 212, 939  F.2d 440, 444  (7th Cir. 1991); H. Rep. 
No. 95-948 a t  4 -5  (1978), reprinted, 1978 U.S.C.CA.N. 
4749, 4752-53  (basic principles of the  PDA); see  also 
California Fed. Sav. an d  Loan A s s ’n  v. Guerra, 479  U.S. 
272, 289  & n .29 , 107 S.Ct. 683, 694  & n .29  (1987) (holding 
th a t  th e  PDA n e ither requ ires n o r proh ib its s ta te s  from 
m andating  m atern ity  leave an d  re in sta tem en t policies).

R hett a rgues th a t  C arnegie term inated  h er em ploym ent 
solely becau se  of h e r absence  an d  h e r absence w as due 
solely to h e r p regnancy  an d  rela ted  m edical conditions. 
C onsequently , In h e r view Carnegie term inated  her 
em ploym ent becau se  of h e r pregnancy. The S uprem e C ourt 
h a s  held th a t u n d e r th e  Age D iscrim ination in Em ploym ent 
Act an  em ployer m u s t ignore an  em ployee’s age in certain  
em ploym ent decisions, b u t n o t any  o ther characteris tics  
su ch  a s  pension  expense. H azen Paper Co. v. Biggins, 507 
U.S. 604, 612, 113 S.C t. 1701, 1707 (1993). The C ourt of 
A ppeals for the  Seventh C ircuit h a s  held, by analogy to 
H azen, th a t the  PDA “requ ires the  em ployer to ignore an  
em ployee’s pregnancy, b u t  ... no t h e r absence from work, 
u n le ss  the  em ployer overlooks th e  com parable absences of 
no n -p reg n an t em ployees. . . .” Troupe, 20 F.3d a t  738. This 
holding is entirely  co n sis ten t w ith the  p lain  language of the  
PDA an d  th e  regu la tions we d iscu ss  above. This view 
elim inates R hett’s theory of transitivity , th a t if A 
(term ination) is caused  by B (absence) w hich is cau sed  by 
C (pregnancy), then  C cau ses  A. O ther co u rts  sim ilarly have 
held th a t  “the  PDA does n o t force em ployers to p re tend  th a t 
ab se n t em ployees a re  p re sen t w henever their ab sen ces  are 
cau sed  by p regnancy .” C m okrak v. Evangelical H ealth Sys. 
Corp., 819 F. S upp . 737, 743 (N.D. 111. 1993).



9

We recognize th a t Sm ith  v. F.W. Morse & Co., 76 F.3d 413 
(1st Clr. 1996), inc ludes language con tra ry  to th a t  of Troupe 
for In Sm ith  the  co u rt said  th a t “a n  em ployer m u s t p u t an  
em ployee’s p regnancy  (including her departure on m aternity  
leave) to one side in m aking  its em ploym ent decisions.” Id. 
a t  4 24  (em phasis added). In Sm ith, the  p reg n an t employee 
w as a ssu red  before sh e  w ent on m atern ity  leave th a t  her 
position  w as secure , b u t the  em ployer th en  elim inated her 
position  d u rin g  a  reorganization w hile sh e  w as aw ay. Id. a t 
418-19 . The co u rt’s  holding, however, w as th a t  the  
elim ination of th e  position w as n o t an  ac t of p regnancy 
d iscrim ination  m erely b ecause  the  em ployer discovered th a t 
th e  position w as superfluous while the  employee w as on 
m ate rn ity  leave; th u s  there  w as no causa l nex u s betw een 
h e r te rm ination  an d  h e r pregnancy. Id. a t  424-25.

N otw ithstanding  the  passage in  Sm ith  w hich we have 
quoted , C arnegie argues th a t Sm ith  applies here  b ecau se  in 
its view Sm ith  d em o n stra tes  th a t its action in  term inating  
R hett’s  em ploym ent w as justified  a s  it, like the  em ployer in 
Sm ith, h ad  a  legitim ate non-pregnancy  based  reason  to 
d ischarge  th e  p reg n an t employee. Sm ith  m ay be 
d istingu ished , however, becau se  C arnegie elim inated  
R hett’s position, ra th e r th a n  th a t of one of th e  o ther 
secre ta ries, b ecau se  she  w as aw ay on m atern ity  leave. 
W hile it w as ap p a ren t th a t one of the  secretary  positions 
w as n o t needed, it w as only R hett’s  absence  w hich led to 
h e r te rm ination . Carnegie h a s  m ade no show ing th a t 
R hett’s position  would have been elim inated if sh e  h a d  no t 
been  aw ay a t  the  time. Indeed, C arnegie m ade no 
com parative evaluation  of the  secre ta ries’ perform ance. In 
Sm ith, the  p a rticu la r position of the  p reg n an t employee w as 
show n to be su p erfluous while sh e  w as away. S m ith  unlike 
th is  case, did n o t Involve a  choice by the  em ployer a s  to 
w hich of several sim ilar positions to elim inate.

T his case  is u n u su a l in th a t Carnegie te rm ina ted  an  
em ployee who had  perform ed satisfactorily  solely b ecau se  of 
an  econom ically justified  reduction  in force while sh e  w as 
aw ay on m ate rn ity  leave. See Geier v. Medtronic, Inc., 99 
F.3d 238, 2 43  (7th Cir. 1996) (fired p reg n an t em ployee no t 
qualified b ecau se  she  could no t m eet required  perform ance 
quotas); Troupe, 20 F.3d a t 735 (pregnant em ployee fired



10

for chronic ta rd in ess  prior to m atern ity  leave); Soreo-Yasher 
v. First Office M anagem ent, 926  F. S upp . 646, 649  (N.D. 
Ohio 1996) (employee replaced w hile on m atern ity  leave 
b ecause  of b u s in ess  need  and  com pany had  w ritten  policy 
of no t guaran tee ing  re in s ta tem en t after any  leave of 
absence); Morrissey v. Sym bol Techs., Inc., 910  F. S upp . 
117, 121 (E.D.N.Y. 1996) (fired em ployee’s m atern ity  leave 
extended beyond tim e for w hich em ployer’s policy 
guaran teed  re instatem ent); Rudolph v. H echinger Co., 884  
F. Supp . 184, 186, 188 (D. Md. 1995) (employee te rm ina ted  
while on m atern ity  leave b ecause  of reaso n s Independen t of 
h e r absence); Ulloa v. Am erican E xpress Travel R ela ted  
Servs. Co., 822 F. S upp. 1566, 1570-71 (S.D. Fla. 1993) 
(employee term inated  in  reduction  in force w hile on 
m atern ity  leave b ecause  h e r leave ex tended beyond tim e for 
w hich re in sta tem en t guaranteed); C m okrak, 819 F. S upp . 
a t  743 (employer justifica tion  for dem oting employee w hile 
on m atern ity  leave could be pretext); Felts v. Radio Distrib. 
Co., 637  F. S upp. 229, 233  (N.D. 111. 1985) (employer 
justification  of term ination  becau se  of financial difficulties 
w as a pretext). Furtherm ore, in th is  case  C arnegie h ad  need  
after R hett w as gone for an  employee to do the  type of w ork 
she  did before it elim inated  h e r position.

Nevertheless, the  law covering th is  case  is clear for the  
view of the C ourt of A ppeals of th e  Seventh  C ircuit w hich 
it se t forth in Troupe, th a t  an  em ployer legitim ately can  
consider an  employee’s absence  on m atern ity  leave in 
m aking  an  adverse em ploym ent decision, is co n sis ten t w ith 
and , indeed, is com pelled by the  p lain  language of the  PDA. 
T hus, Troupe properly requires th e  plain tiff em ployee 
seeking to recover u n d e r the  PDA to show  th a t the  
em ployer trea ted  her differently th a n  n o n -p reg n an t 
em ployees on disability leave. See  29 C.F.R. § 1604.10. 
W hile we do no t ignore the  con trary  suggestion  in Sm ith, we 
do n o t find it controlling because  it is in consisten t w ith  th e  
language of th e  PDA. T hu s, we can n o t find, a s  R hett urges, 
th a t  the  m ere consideration  of an  em ployee’s ab sen ce  on 
m atern ity  leave Is a  p er se  violation of the  PDA. In sho rt, 
the  PDA does n o t require an  em ployer to re in s ta te  an  
employee m erely b ecau se  sh e  h a s  been  ab sen t on m ate rn ity  
leave. R ather, the  PDA is a  shield ag a in s t d iscrim ination , 
no t a  sword in the  h an d s  of a  p reg n an t employee.



11

R hett h a s  n o t m ade a  show ing th a t  Carnegie trea ted  h er 
differently th a n  It would have trea ted  a  non -p regnan t 
employee a b se n t on disability leave. Of course. It w as 
difficult for h e r to m ake su ch  a  show ing b ecause  Carnegie 
never h a s  h a d  an  employee on disability  leave for a 
p ro trac ted  period for a  reason  o th e r th a n  pregnancy. T hus, 
we m u s t affirm the d istric t co u rt’s denial of h e r PDA claim  
for the  reaso n s  Indicated. See  Ulloa v. Am erican Express  
Travel R ela ted  Servs. Co., 822 F. S upp . a t  1571 (Employer 
is entitled  to ju d g m en t w hen em ployee “h a s  failed to show  
by a  p reponderance  of th e  evidence th a t she  received 
d isp ara te  trea tm en t w hen com pared  to non -p regnan t 
em ployees.”).

The PDA does no t require an  em ployer to g ran t m atern ity  
leave or to re in sta te  an  em ployee after a  m atern ity  leave. 
The PDA m erely requ ires th a t an  em ployer tre a t a  p regnan t 
w om an in th e  sam e fashion a s  any  o ther tem porarily 
d isabled employee. In th is regard , we po in t o u t th a t  it is not 
unlaw ful u n d e r the  A m ericans w ith  D isabilities Act for an  
em ployer w hen reducing  its force to d ischarge  an  employee 
away from w ork by reason  of a  tem porary  disability. See  
Sanders v. A m eso n  Prods., Inc., 91 F.3d 1351, 1354 (9th 
Cir. 1996); Rogers v. International Marine Terminals, Inc., 87 
F.3d 755, 759  (5th Cir. 1996). We acknow ledge th a t 
arguably  it w as unfa ir for C arnegie to fire R hett because 
she  w as on leave ra th e r th an  to decide w hich secretary’s 
position to abolish  on the  b a s is  of seniority  or m erit, b u t it 
w as n o t illegal for it to do so u n less  it w ould no t have 
elim inated the  position of an o th e r employee on disability 
leave who w as n o t p regnan t. The PDA does n o t require 
fairness. S ee  Ulloa v. Am erican E xpress Travel Related  
Servs. Co., 822  F. Supp . a t  1571.

Ju d g e  McKee in h is  d issen t seem s to believe th a t  we are  
equating  “pregnancy with a  tem porary  disability u n d e r the 
ADA." D issen t a t  25. Of course, we a re  doing no su ch  thing. 
R ather, we a re  holding th a t it is n o t unlaw ful u n d e r the 
PDA to te rm inate  an  employee ab se n t by reason  of 
pregnancy if the  em ployer w ould have term inated  an  
employee ab se n t by reason  of a  different tem porary  
disability. T h u s, no tw ithstand ing  th e  in trica te  reason ing  of 
the  d issen t, th is  case  a t  bottom  is qu ite  straightforw ard  and  
uncom plicated .



12

In view of o u r analysis , we conclude th a t a lthough  the 
b an k ru p tcy  a n d  d is tric t co u rts  erred  in finding th a t  R hett 
did n o t m ake  o u t a  prim a fa c ie  case  of p regnancy 
d iscrim ination  (because they did no t apply th e  Arm bruster  
reduction  in  force analytical framework), the  erro r 
w as h a rm less . Carnegie a sse rted  a legitim ate non- 
d iscrim inatory  reaso n  for R hett’s  term ination , th a t  sh e  w as 
aw ay on leave. R hett h a s  no t satisfied  h e r b u rd e n  of 
show ing th a t  th is  reaso n  w as p retex tual. Therefore, we will 
affirm  inso far a s  th is  case  involves the  te rm ination  of 
R hett’s  position . O f course, o u r analysis  requ ires th a t  we 
affirm  th e  d is tric t co u rt in its rejection of h e r race  an d  
gender claim s a s  well, b ased  on the  elim ination of h er 
position .4

In reach ing  o u r resu lt, we have no t overlooked R hett’s 
a rg u m en t th a t th is  case  is som ehow  different th a n  a  case  
based  on a  claim  of d iscrim ination  p redicated  e ither on race 
or gender, b ecau se  sh e  b ases  h e r claim  on bo th  race  and  
gender. T his a rg u m en t ad d s  no th ing  to h e r case  because  
regard less of th e  b a sis  for h er claim  of d iscrim ination , she  
can n o t estab lish  th a t  the  legitim ate reason  th a t  C arnegie 
proffered for te rm ina ting  h er w as p retex tual. F urtherm ore , 
we have n o t ignored R hett’s a rgum en t th a t C arnegie’s 
te rm ination  of h e r position  h ad  a  d iscrim inatory  im pact of 
h e r based  on h e r race. R ather, we reject th is  con ten tion  as  
entirely  In su b stan tia l for an  employee Is n o t in su la ted  from 
having  h e r position  lawfully term ina ted  merely b ecau se  she 
h ap p en s  to be a  m inority.

4. We are aware that Rhett alleged certain comments by her superiors 
which could lead to an inference of discrimination against her, but in 
holding that there is no evidence of racial or gender discrimination, the 
bankruptcy court implicitly found that Rhett’s testimony that Tumdorf 
and Gormisky were abusive toward her regarding her status as an 
unwed mother was not credible, or that the explanation and denials by 
Tumdorf and Gormisky were more credible. We cannot hold this factual 
finding clearly erroneous. Thus, there was no error in not inferring 
discrimination on the basis of these remarks. In any event, Carnegie 
articulated a legitimate non-discrimlnatoiy reason for terminating Rhett 
and the bankruptcy court, in an unassailable finding, accepted that 
reason.



13

R hett also argues th a t Carnegie should  have considered  
h e r for a lte rn a te  positions. S he  says th a t th e  positions of 
property m anagem ent adm in istra tive  a ss is tan t, secre tary  to 
Landis and  receptionist becam e open while sh e  w as on 
m atern ity  leave an d  she  w as qualified for all of them . It Is 
n o t d ispu ted  th a t  she w as n o t considered  for any  of th ese  
positions. B ut th e  b an k ru p tcy  c o u rt found a s  a  fact, an d  
the  d istric t co u rt affirmed, th a t  R hett w as n o t qualified for 
the  property  m anagem ent position  or th e  position of 
a ss is tan t or secre tary  to Landis. The b an k ru p tcy  co u rt also 
found th a t R hett never indicated  th a t  she  would take  a  
lower paying or tem porary  job . R hett a rgues th a t  these  
factual findings are  clearly erroneous.

R hett h a s  offered no m ore th an  h e r own opinion th a t  she  
w as qualified for the property  m anager position. Gorm isky 
testified th a t  the  position required  m ore th a n  basic  
secretarial skills and  he did no t believe th a t R hett 
adequately could perform  in the  job . T u m d o rf also testified 
th a t he  would n o t have h ired  h e r for th a t position becau se  
he did not feel she  would perform  well. This is m ore th an  
enough su p p o rt for the  b an k ru p tcy  co u rt’s finding th a t 
R hett w as no t qualified. Sim ilarly, R hett a sse rts  th a t  she  
w as qualified to be Landis’s personal secre tary  because  of 
her extensive secretaria l experience. The b an k ru p tcy  co u rt’s 
finding th a t R hett w as n o t qualified for th is  job  is 
supported  by T u m d o rf 's  testim ony th a t  the job  required  a 
special a ttitu d e  and  ability to an tic ipate  Landis’s needs 
w hich R hett did no t have. In asm u ch  a s  the  b an k ru p tcy  
court w as no t clearly erroneous in finding R hett n o t 
qualified for these  positions, sh e  h a s  no t m ade ou t a  prim a  
fa c ie  case of d iscrim ination b ecau se  of C arnegie’s failure to 
h ire or Interview her.

On the o ther hand , it is clear th a t  R hett w as qualified for 
the  position of receptionist. B u t the  b an k ru p tcy  co u rt held 
th a t she  never expressed  an  in te re s t in th is  job , w hich paid 
less th an  h e r prior position. S ince th is  is a  failure to h ire  
situation , ra th e r  th an  a  d ischarge  situa tion , u n d e r 
McDonnell Douglas R hett m u s t show  th a t sh e  applied for 
the  position. It is u n d isp u ted  th a t R hett did no t apply  for 
th is  position, or even express any  in te re st in it.



14

R hett a rg u es  th a t Carnegie had  an  affirm ative du ty  to 
con tac t h e r  (but cites no case for th is  proposition), an d  she 
would have expressed an  in te re s t if sh e  had  been 
con tacted . The receptionist position w as th e  lowest paying 
job  in th e  office. It w as n o t u n reaso n ab le  for C arnegie to 
a ssu m e  th a t  R hett would n o t accep t th is  position, 
especially w hen sh e  did no t express any  in te re s t in it. On 
th is  po in t we observe th a t the  b an k ru p tcy  c o u rt found th a t 
R hett ob tained  a  position w ith th e  R obert Wood Jo h n so n  
F oundation  a n d  s ta rted  w ork there  on J a n u a ry  29, 1992, 
an d  earned  $22 ,500  In 1992. T hus, it is u n d e rs tan d ab le  
w hy R hett did n o t seek a  position a s  a  recep tion ist a s  she 
w as capab le  of obtain ing m ore financially rew arding 
em ploym ent. F u rther, T u m d o rf testified th a t it w as 
custom ary  for em ployees re tu rn in g  from m atern ity  leave to 
con tac t Carnegie, ra th e r th an  C arnegie con tac ting  them  
w hen a  position opened up . Given th is  custom , we canno t 
find any  e rro r in the  lower c o u rts ’ conclusion  th a t R hett 
failed to s ta te  a  prim a fa c ie  case  of d iscrim ination  because 
she  w as no t given any of these  positions.

C. CONCLUSION
We hold, in agreem ent w ith th e  C ourt of A ppeals for the 

Seventh C ircuit, the  plain language of the  PDA, and  the 
regu lations u n d e r the PDA, th a t an  em ployee alleging a 
PDA violation m u s t show  th a t h e r em ployer trea ted  her 
differently th an  it would have trea ted  an  em ployee on leave 
for a  tem porary  disability o th e r th an  pregnancy. It is no t a  
violation of the  PDA for an  em ployer to consider an  
em ployee’s absence  on m atern ity  leave in  m aking an 
adverse em ploym ent decision If it also would have 
considered  the  absence  of an  em ployee on a  different type 
of d isability  leave in the sam e way. In asm u ch  a s  Carnegie 
asse rted  th a t  R hett’s absence  from work, ra th e r  th an  her 
pregnancy, w as the  reason for her te rm ination , and  R hett 
h a s  failed to show  th a t th is  a sse rtio n  w as p retex tual, her 
claim  fails.5

5. We note, however, that there are federal and state laws which do 
require parental leave and reinstatement. S e e  29 U.S.C. §§2612, 2614; 
N.J. Stat. Ann. §34:llB -4 , -7 (West Supp. 1997). These laws are not 
applicable In this case because Carnegie has fewer that 50 employees. 
29 U.S.C. §261 l(4)(a); N.J. Stat. Ann. §34:llB-3f.



15

In view of o u r conclusions, we will affirm th e  ju d g m e n t of 
the  d is tric t co u rt en tered  A ugust 6, 1996.



16

McKEE, C ircuit Ju d g e , d issenting .
I agree th a t D eborah R hett’s  claim  of racial 

discrim ination w as properly d ism issed . However, I 
respectfully d issen t because  I believe th a t the  d is tric t cou rt 
erred in affirm ing the  b an k ru p tcy  co u rt’s d ism issal of 
R hett’s  claim  of sex d iscrim ination . The b an k ru p tcy  co u rt 
concluded th a t “the  u n co n trad ic ted  testim ony of th e  debtor 
estab lishes th a t the  deb tor h ad  to le t som eone In the  
secretaria l group go an d  the  fact th a t  R hett w as no t 
working for the  com pany a t  the  tim e m ade it logical th a t  
she be the  one.” B ankr C t Op. a t  15 (1996). I believe th a t 
the  issue  is no t w hether the  em ployer h ad  a  logical reason  
for choosing R hett (It clearly did.), b u t w hether doing so 
w hen her absence  w as d u e  solely to h e r p regnancy  w as 
illegal sex discrim ination u n d e r Title VII of the  Civil Rights 
Act of 1964 (“Title VH”), 42 U.S.C. §2000e-2(a). I fear th a t 
the  m ajority’s failure to hold  th a t  it did co n stitu te  sex 
discrim ination will eviscerate the  p ro tections C ongress 
Intended w hen it enacted  th e  P regnancy D iscrim ination Act 
of 1978 (“PDA”), 42 U.S.C. §2000e(k), a s  an  am endm ent to 
Title VII.

I. BACKGROUND OF THE PREGNANCY 
DISCRIMINATION ACT

Title VII m akes it an  unlaw ful em ploym ent p ractice  for an  
employer

to d iscrim inate  again st an y  individual w ith respect to 
h is  com pensation , term s, conditions, o r privileges of 
em ploym ent, because  of su ch  individual’s . . . sex

§ 2000e-2(a)(l). Congress created  the  Equal Em ploym ent 
O pportunity  Com m ission (“EEOC”) to im plem ent Title VII 
an d  the  EEOC developed guidelines th rough  w hich 
em ployers an d  em ployees could  b e tte r u n d e rs tan d  the  
pro tections afforded u n d e r Title VII. Those guidelines 
“Im plem ented the  Title VII prohibition  of sex
d iscrim ination”, H.R. Rep. No. 95-948, a t  2 (1978), 
reprinted in  1978 U.S.C.C.A.N. 4749, 4752, an d  they 
expressly extend the protection of Title VII to conditions 
caused  by pregnancy.



17

D isabilities cau sed  or con tribu ted  to by pregnancy, 
ch ildbirth , o r re lated  m edical conditions, for all job- 
re la ted  pu rposes, shall be trea ted  th e  sam e as  
disabilities caused  or con tribu ted  to by o th e r m edical 
conditions . . . .  W ritten or u n w ritten  em ploym ent 
policies an d  practices involving m a tte rs  su ch  a s  the  
com m encem ent an d  d u ra tio n  of leave, th e  availability 
of ex tensions, th e  accrua l of seniority  an d  o ther 
benefits an d  privileges, re in s ta tem en t, a n d  paym ent 
u n d e r any  health  or d isability  in su ran ce  or sick  leave 
plan , form al or inform al, shall be applied to disability 
d u e  to pregnancy, ch ildb irth  o r re la ted  m edical 
conditions on the  sam e term s an d  conditions a s  they 
a re  applied to o th e r d isabilities . . . .

29 C.F.R. § 1 6 0 4 .10(b). The guidelines also contain  an  
in terpretive question  an d  answ er section in w hich the  
following exchange is m ade:

Q: M ust an  em ployer hold open th e  Job of an
employee who is a b se n t on leave becau se  she  Is 
tem porarily  d isabled  by pregnancy-rela ted  conditions?
A: U nless the employee on leave h a s  Informed the 
em ployer th a t she  does no t In tend  to re tu rn  to work, 
h e r job  m u s t be held open for h e r re tu rn  on the  sam e 
b asis  as  jo b s  are  held open for em ployees on sick or 
d isability  leave for o th e r reasons.

29 C.F.R. p t. 1604, app. Q uestion  9. The m ajority 
concludes ttia t th is  m eans th a t Carnegie C enter A ssociates 
( C arnegie ) can  term ina te  R hett for h e r  absence, even 
though  it is cau sed  by pregnancy, so long a s  Carnegie 
would have term inated  an  ab se n t em ployee who w as no t 
p regnan t. See Maj. Op. a t  7-8.

However, the  c ircu m stan ces  leading to Title VII's cu rren t 
p roscrip tions ag ain st sex d iscrim ination  un d erm in e  the 
m ajority’s analysis. Title VII. a s  originally enacted , did no t 
explicitly define sex d iscrim ination  to Include d ispara te  
trea tm en t based  upon, or re la ted  to, pregnancy. As a  resu lt, 
som e co u rts  adopted  a  narrow  view of the  ex ten t to which 
Title VII’s proscrip tion  ag a in s t sexual d iscrim ination 
included d isp ara te  trea tm en t based  upon  pregnancy  an d  
related  conditions. In General Electric v. Gilbert, 429  U S



18

125. 97 S.C t. 401 , 50 L .Ed.2d 343 (1976), the  S uprem e 
C ourt held th a t  an  in su ran ce  p lan  th a t excluded coverage 
tor pregnancy-rela ted  disabilities did n o t co n stitu te  illegal 
gender-based  d iscrim ination . There, an  em ployer’s 
d isability  p lan  provided coverage for nonoccupational 
sickness an d  acciden ts, b u t excluded coverage for 
pregnancy an d  pregnancy-rela ted  disabilities. The p lan  did, 
though, inc lude  coverage for nonoccupational d isabilities 
an d  m edical p ro cedu res com m on to m en. e.g.
p rosta tectom ies, vasectom ies a n d  circum cisions. Gilbert, 
42 9  U.S. a t 145-46. A group  of em ployees su ed  u n d e r Title 
VII, alleging th a t  th e  in su ra n ce  p lan  w as illegal sexual 
d iscrim ination  becau se  it excluded a  c lass of d isabilities 
un ique  to wom en. The d is tric t co u rt held th a t the  p lan  did 
co n stitu te  illegal sex d iscrim ination  in violation of Title VII 
an d  the C ourt of A ppeals for the  F ou rth  C ircuit affirmed. 
However, p rio r to th e  decision of the  co u rt of appeals, b u t 
su b seq u en t to the  decision of the  d is tric t court, the  
S uprem e C ourt decided Geduldig v. Aiello, 417  U S 484 94 
S.Ct. 2485, 41 L.Ed.2d 25 6  (1974).

In Geduldig, the  S uprem e C ourt upheld  the  validity of a 
nearly  identical in su ra n ce  policy ag a in st an  a tta ck  u n d e r 
th e  Equal Protection C lause of the  F o u rteen th  A m endm ent. 
The C ourt in Geduldig  reasoned  th a t  the  challenged policy 
w as sim ply a  b u s in ess  decision a s  to w hich risk s an  
em ployer would Insure . “The program  divides potential 
recip ien ts into two g ro u p s p reg n an t w om en an d  
n o n p reg n an t pe rso n s. W hile th e  first group is exclusively 
female, the  second Includes m em bers of bo th  sexes ” 
Geduldig  41 7  U.S. a t  496-97  n . 20. The C ourt in  Gilbert 
upheld  the  challenged disability  p lan  based  upon  its  earlier 
holding in Geduldig. The C ourt reasoned  th a t, even though  
Geduldig  w as b ased  upon  an  equal pro tection  a rgum en t, 
an d  Gilbert w as b ro u g h t u n d e r T ide VII, the  logic of 
Geduldig  still applied. Accordingly, the  C ourt held th a t 
since there  w as no risk  from  w hich wom en w ere p ro tected  
a n d  m en w ere n o t an d  no risk  from w hich m en w ere 
pro tected  th a t w om en w ere not, the  exclusion of pregnancy- 
re la ted  d isabilities did n o t invalidate th e  Gilbert policy 
u n d e r Title VII. The m ajority  m inim ized the  relevance of the  
EEOC guidelines w hen considering  w h a t C ongress In tended 
u n d e r Title VII.



19

Ju s tic e  B rennan  d issen ted , a rgu ing  th a t th e  C ourt’s 
analysis  w as “sim plistic a n d  m isleading” becau se  the  p lan  
Included p rocedures th a t were specific to m en while 
excluding pregnancy-related  p rocedures th a t were un ique  
to w om en. 429 U.S. a t 252 (B rennan, J . ,  d issenting). He 
noted  th a t “pregnancy affords th e  only disability, sex- 
specific, or otherw ise, th a t is excluded from coverage.” Id. 
Accordingly, he  did no t th in k  th a t the  classification could 
be saved from a  finding of Illegal d iscrim ination  u n d e r Title 
VII m erely because  it w as a  “facially n eu tra l classification.” 
Id. a t  154. He concluded th a t th e  C ourt erred  In accepting 
th e  em ployer’s explanation th a t the  p lan  m erely excluded 
certain  risk s from coverage in a  nondiscrim inatory  way. 
“|T]he dem onstration  of purposefu l d iscrim ination  is no t the  
only ground  for recovery u n d e r Title VII. . . .  [A] p rim a facie 
violation of Title VII . . . also is e stab lished  by
dem onstrating  th a t a  facially n eu tra l classification h a s  the  
effect of d iscrim inating  against m em bers of a  defined c lass .” 
Id. a t  153-54.

According to Ju s tic e  B rennan, “the  determ inative 
question  m u s t be w hether the  social policies an d  aim s to be 
fu rthered  by Title VII and  filtered th rough  the  p h rase  'to 
d iscrim inate’ contained in § 703(a)(1) fairly forbid an  
u ltim ate  p a tte rn  of coverage th a t in su res  all risk s except a  
com m onplace one th a t is applicable to wom en b u t n o t to 
m en .” Id. a t 154. He noted th a t the C ourt had  previously 
recognized th a t '‘discrim ination is a  social phenom enon  
encased  in a  social context and  therefore, unavoidably takes  
its m eaning fro m  the desired en d  products o f  the relevant 
legislative enactm ent, end p roducts  th a t  m ay dem and  due 
consideration  to the  u n iq u en ess  of ‘d isadvan taged’ 
indiv iduals.” Id. a t 159. (discussing Lau v. Nichols, 414 U.S. 
563, 94  S.Ct. 786, 39 L.Ed.2d 1 (1974)) (em phasis added). 
Ju s tic e  B rennan  concluded th a t the  EEOC guidelines were 
“reasonab le  responses to the  uniform  testim ony of 
governm ental investigations w hich show  th a t  pregnancy 
exclusions bu ilt into disability p rogram s bo th  financially 
b u rd en  wom en w orkers and  ac t to b reak  down the 
con tinu ity  of the  em ploym ent rela tionsh ip , thereby 
exacerbating  w om en’s com paratively tra n s ien t role in the  
labor force.” Id. a t 158. Ju s tic e  B rennan  believed th a t the  
EEOC guidelines, “(fin d ic ta ting  p regnancy coverage u n d e r



20

Title VII,” h ad  “m erely settled  upon  a  solution now accepted  
by every o th er W estern  in d u stria l co u n try .” Id. (citing Dept, 
of H ealth, E ducation , an d  W elfare, Social Security Programs 
Throughout the World, (Research Project No. 40) pp. ix, xviii, 
xix (1971).1 C ongress reacted  to Gilbert by enac ting  the  
Pregnancy D iscrim ination Act. S ee  N ewport N ew s  
Shipbuilding an d  Dry Dock Co. v. EEOC, 462 U.S. 669, 678, 
103 S.Ct. 2622, 2628, 77 L.Ed.2d 89  (1983). T h a t ac t 
am ended the  “D efinitions” section of Title VII in p a r t  a s  
follows:

The term s ‘b ecause  of sex’ o r ‘on the  b a s is  of sex’ 
include, b u t  are  no t lim ited to, becau se  of o r on the  
b asis  of pregnancy, ch ildb irth , or re la ted  m edical 
conditions; an d  wom en affected by pregnancy, 
childbirth , or related  m edical conditions shall be 
trea ted  th e  sam e for all em ploym ent-related  p u rp o ses  
. . .  a s  o ther persons no t so affected b u t sim ilar in their 
ability or inability  to w ork . . . .

42 U.S.C. §2000e(k).
W hen C ongress am ended  Title VII in 1978, it 
unam biguously  expressed  its disapproval of bo th  the 
holding an d  the  reason ing  of th e  C ourt in the  Gilbert 
decision . . . .  The H ouse R eport sta ted , ‘It is the  
Com m ittee’s view th a t the  d issen ting  J u s tic e s  correctly 
in terp re ted  the  Act.’ Similarly, the  S enate  Report 
quoted p assag es  from the  two d issen ting  opinions, 
s ta tin g  th a t  they  ‘correctly express both  the  principle 
an d  the  m ean ing  of Title VII.’

Newport N ew s, 462 U.S. a t  678. (citing H.R. Rep. No. 95- 
948  an d  S. Rep. No. 95-331, a t  2 -3  (1977)).

II. INTERPLAY OF THE PDA AND THE 
AMERICANS WITH DISABILITIES ACT (“ADA”)

The m ajority  su m s up  its  position as  follows: “(t]he PDA 
m erely requ ires  th a t an  em ployer tre a t a  p reg n an t w om an

1. Justice Stevens also dissented, but his analysis was based upon the 
policies in question treating the risk of absenteeism caused by pregnancy 
differently than any other kind of absence. Id. at 161.



21

the  sam e a s  any  o ther tem porarily  d isab led  employee. In 
th is  regard  we po in t o u t th a t  it is n o t unlaw ful u n d e r  the  
A m ericans w ith D isabilities Act for an  em ployer w hen 
reducing  its force to d ischarge an  em ployee aw ay from w ork 
by reason  of a  tem porary  disability .” Maj. Op. a t  11. T hus, 

1 the  m ajority equates p regnancy-rela ted  disability  w ith
tem porary  disabilities u n d e r th e  ADA, an d  th a t analogy 
drives the  m ajority’s analysis.

I do n o t th ink  th a t R hett’s  claim  can  be decided by 
sim ply sta tin g  th a t the  PDA requ ires h e r to be trea ted  the  
sam e as any  o ther employee an d  reason ing  th a t  h er 
position can  be term inated  b ecau se  an  a b se n t n o n p reg n an t 
employee could have h is or h e r position  te rm ina ted  u n d e r 
the  facts of th is  case. A lthough the  case  law  an d  EEOC 
guidelines refer to Title VII's req u irem en t th a t  p reg n an t 
em ployees be trea ted  the sam e a s  o th e r em ployees, those 
cases usually  involve determ in ing  w h e th er em ployee 
benefits or in su ran ce  policies d iscrim ina te  by excluding 
p reg n an t em ployees or affording them  less pro tection  th an  
afforded n o n pregnan t em ployees. T h a t w as the  issu e  in 
Gilbert an d  Newport N ew s. For exam ple, in G ilbert Ju s tic e  
B rennan  s ta ted  in h is  d issen t: “A realistic  u n d e rs tan d in g  of 
conditions found in today’s labor env ironm ent w a rran ts  
tak ing  pregnancy into acco u n t in fash ion ing  disability 
policies . . . .  C ontem porary  d isability  p rogram s a re  no t 
c rea tu res  of a  social or cu ltu ra l v acu u m  devoid of 
stereotypes and  signals concern ing  the  p re g n a n t w om an 
em ployee.” 429 U.S. a t  160. The C ourt s tru c k  dow n the  

* challenged h ealth  in su ran ce  policies in N ew port N ew s
becau se  they were the  “m irror im age of the  p lan  a t is su e  in 
Gilbert.” Newport N ew s, 462 U.S. a t  685. S ee  also Arizona  

■ Governing Committee fo r  Tax Deferred A nnu ity  a n d  Deferred
Com pensation Plans v. Norris, 4 6 3  U.S. 1073, 1074, 103 
S.Ct. 3492, 3494, 77 L.Ed.2d 1236 (1983) (An em ployer 
who offers “its em ployees the  option of receiving re tirem en t 
benefits from one of several com pan ies selected  by the  
employer, all of w hich pay a  w om an lower m onth ly  
re tirem en t benefits th a n  a  m an  who h a s  m ade the  sam e 
con trib u tio n s ,” violates Title VII.).

T hus, In the health  In su ran ce  an d  em ployee benefits 
context it is now clear th a t p regnancy-rela ted  conditions



22

m u s t be trea ted  the  sam e a s  conditions th a t a re  no t 
p regnancy-rela ted . However, a  sim ple exam ple 
d em o n stra tes  the  danger of carrying th a t basic  prem ise too 
ta r  beyond the  in su ran ce  or benefits context.

Historically, em ployers have been re lu c tan t to h ire 
w om en or have afforded women different conditions of 
em ploym ent becau se  of a  generalized belief th a t a  female 
employee would likely leave h er job  to ra ise  a  family 
Accordingly, th e re  w as a  re luctance  to devote resou rces to 
tra in  or to teach  them  a job  related skill.

I d o u b t th a t  an  em ployer is precluded from refusing to 
h ire  a  m ale em ployee b ecause  of a  reasonab le  belief th a t 
th e  potential em ployee will leave shortly  after he is h ired  
However I th in k  few would argue th a t the  sam e em ployer 
could refuse to h ire  a  female job app lican t ou t of a  concern  
th a t she  would soon becom e p regnan t an d  leave h er job to 
ra ise  a  family. Sim ilarly, ab sen t a  con tract provision to the  
con trary , an  em ployer could term inate  a  m ale employee 
who m issed  two w eeks of work during  h is first year on the  
jo b  n  violation of a  policy prohibiting m ore th an  one week 
oi sick  leave du rin g  the  employee’s first year on the  iob 2 
However, I th in k  it c lear th a t the PDA would p roh ib it th a t 
sam e em ployer from term inating  a  female employee who 
m issed  the sam e two weeks because  of pregnancy or a  
pregnancy-rela ted  condition. Those two employees can  no t 

trea ted  the  sam e because  Congress h a s  alreadv 
differentiated th e ir s itu a tio n s  by enacting  the PDA. O ne can 
n o t avoid a  claim  of d iscrim ination by treating  persons who 
a re  n o t sim ilarly s itu a ted  the sam e. Yet, th is is w hat the  
m ajority’s analysis  does. The m ajority’s reasoning  would 
afiow an  em ployer to te rm inate  a  female employee b ecause  
sh e  m issed  a  crucial m eeting w ith an  im portan t client if a  
m ale employee would be term inated , even if the  female 
m issed  the  m eeting  because  sh e  w as in labor delivering a
auu ’ °u isufferlng from a pregnancy-related  condition. 
A lthough it m ay n o t be fair to te rm inate  the  m ale, it would

2 . As I discuss below. If the employees condition was "temporary" he 
would not be covered by the Americans with Disabilities Act and could 
be terminated absent a contract that prevented such an acUon on the 
part of the employer.



23

n o t be illegal. It is illegal to te rm ina te  th e  fem ale b ecause  of 
the  PDA. Cf. California Savings a n d  Loan v. Guerra, 479  
U.S. 272. 292 n .42 , 107 S.C t. 683. 695. 93 L.Ed.2d 613 
(1987) (“[W]e conclude th a t In enac ting  the  PDA C ongress 
did no t in tend  to p roh ib it all favorable trea tm en t of 
pregnancy . . . .”).

The m ajority no tes th a t p regnancy  is a  tem porary  
condition th a t  gives rise to a  tem porary  disability. It argues 
th a t since the  PDA b a rs  d iscrim ination  based  upon 
pregnancy, it m erely requ ires  th a t p reg n an t em ployees be 
treated  the  sam e as all o th e r tem porarily disabled 
employees, thereby lim iting th e  com parison  group for 
p reg n an t em ployees to n o n p reg n an t em ployees who have 
suffered a  tem porary  disability. The m ajority concludes 
tha t, desp ite  h e r tem porary  disability  du e  to pregnancy, 
R hett can be term inated  u n le ss  C arnegie would no t 
te rm inate  a  m ale employee who w as sim ilarly “tem porarily” 
d isabled. S ee  Maj. Op. a t  11. T hat analysis  re s ts  upon 
equating  a  protected , b u t tem porary, condition (pregnancy) 
w ith a  tem porary  unpro tec ted  disability  u n d e r the  ADA. The 
ADA does not shield a  n o n -p reg n an t employee from 
term ination  becau se  tem porary  d isabilities are  excluded 
from the  ADA. Regulations th a t w ere prom ulgated p u rsu a n t 
to the  ADA define disability as:

(1) A physical or m en ta l im pairm en t th a t  su b stan tia lly  
lim its one or m ore of the  m ajor life activities of su ch  
individual; (2) a  record of su ch  a n  Im pairm ent; or (3) 
being regarded  a s  having su ch  an  im pairm ent.

29 C.F.R. § 1630.2(g). “S u b stan tia lly  lim its” is defined to 
m ean:

(i) U nable to perform  a  m ajor life activity th a t the 
average person  in the  general population  can  perform; 
or

(ii) Significantly restric ted  as  to the  condition, m anner, 
or d u ra tio n  u n d e r w hich an  individual can  perform  a 
p a rticu la r m ajor life activity a s  com pared to the  
condition, m anner, or d u ra tio n  u n d e r w hich the  
average person  in the  general population  can  perform  
th a t  sam e  m ajor life activity.

)



24

§ 1630.2(j)(l). Several factors have been  Identified to a ss is t  
in determ ining  w hether a  p a rticu la r “d isability” is of su ch  
severity a s  to com e w ithin the  protection in ten d ed  u n d e r 
th e  ADA. These factors include:

(i) The n a tu re  an d  severity of the  im pairm ent;
(ii) The d u ra tio n  or expected d u ra tio n  of th e  
im pairm ent; and

(HI) The p e rm an en t or long te rm  im pact, o r the  
expected p erm an en t or long term  im pact of or re su ltin g  
from  the  im pairm ent.

§ 1630.2(j)(2). “D isabilities” th a t a re  tem pora iy  do not, by 
definition, rise to the  level of sub stan tia lly  lim iting a  m ajor 
life function. See Rogers v. International Marine Terminals, 
Inc., 87  F.3d 755, 758 (5th Cir. 1996) (“[Tjem porary 
conditions th a t a re  no t chronic u sually  do n o t rise to 
th e  level of a  ‘d isability .’ ”) and  (Taylor v. Dover E levator  
S ystem s, Inc., 917 F .Supp. 455, 461 (N.D. M iss. 1996) 
(“[TJemporaiy in ju ries w ith no p e rm an en t effects a re  
ordinarily  no t considered disabilities u n d e r the  ADA.”) 
(citing Evans v. City o f  Dallas, 861 F.2d 846, 8 5 2 -53  (5th 
Cir. 1988); R akestraw  v. Carpenter Co., 898 F .S upp . 386, 
390  (N.D. Miss. 1995); O sw alt v. Sara Lee Corp 889  
F .Supp. 253, 257 (N.D. Miss. 1995), a f f 'd ,  74 F.3d 91 (5th 
Cir. 1996)).

However, ju s t  a s  tem porary  disabilities are  excluded from 
the  pro tections of the  ADA by definition, tem porary  
p regnancy-related  conditions are  explicitly covered by  Title 
VU’s prohibition ag a in s t sex d iscrim ination  u n d e r th e  PDA. 
Accordingly, the  protection afforded p regnancy-rela ted  
conditions can  n o t be equated  w ith th a t afforded tem porary  
disabilities m erely because  p regnancy  is tem porary . To do 
so u n d e r the  facts of th is  case  Is con trary  to the  m a n d a te  
of the  s ta tu te , effectively am ends the PDA an d  forces R hett 
to rely upon  the  ADA which provides no pro tection  for 
p regnancy related  conditions because  of the ir tem porary  
n a tu re .

The m ajority relies on Rogers an d  Sanders v. A m e so n  
Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996), cert 
denied, 117 S.Ct. 1247, 137 L.Ed.2d 329  (1997), to



25

su b s ta n tia te  its claim  th a t the  tem porarily d isabled 
employee resides ou tside  of s ta tu to ry  protection—regardless 
of w hether th e  tem porary  disability is due  to pregnancy. 
See  Maj. Op. a t  11. In Rogers, an  employee (“Rogers”) su ed  
u n d e r th e  ADA w hen he  w as laid off p u rs u a n t to a  
reduction  in force (“R IF ”). Rogers had  been ab se n t because  
of h ealth  problem s rela ted  to a n  ankle surgery. The cou rt 
held  th a t Rogers w as no t pro tected  by the ADA becau se  he 
w as n o t “d isab led” w ithin the  m eaning of th e  s ta tu te . 
“In sum . Rogers’ ank le  afflictions were tem porary  and  
did no t co n stitu te  a  p e rm an en t disability . . . .  The EEOC 
regu lations concur, th a t  ‘tem porary, non-chronic
im pairm en ts of sh o rt du ra tion , w ith little or no long term  or 
p e rm an en t im pact, a re  usually  no t d isabilities.’ ” 87  F.3d a t 
759 (quoting 29  C.F.R. § 1630.2(j) (Appendix)). However, the 
fact th a t they  a re  no t “disabilities” u n d e r the  ADA does no t 
m ean  th a t they  a re  no t protected  u n d e r the PDA, if they are 
p regnancy-related .

Similarly, in Sanders, employee Sidney S anders
(“S an d ers”) w as term inated  while on leave for a  cancer- 
re la ted  psychological disorder. While he w as away o ther 
em ployees a ssu m ed  h is responsibilities an d  employer 
A nreson P roducts decided to replace S anders  ra th e r th an  
allow h im  to re tu rn  a t  the  end of h is  sick leave. A lthough 
S anders  suffered from cancer, he  conceded th a t his 
absence  w as re lated  only to h is psychological d isorder th a t 
w as tem porary . Accordingly, the  cou rt fram ed the  issue  
before it a s  “w hether S an d e rs’ tem porary  psychological 
im pairm ent qualifies a s  a  disability u n d er the  ADA." Id. a t 
1353. The co u rt held th a t it did no t b ecause  th a t 
im pairm en t did no t “substan tia lly  lim it” a  m ajor life 
function. Id.

If C ongress in tended  to equate  p regnancy w ith a  
tem porary  disability u n d e r the  ADA, it afforded p regnan t 
wom en p recious little protection w hen it enac ted  the  PDA. 
Pregnancy is by its n a tu re  tem porary. Holding th a t  it is 
therefore th e  equivalent of a  “tem porary disability” is hard ly  
con sis ten t w ith “the  social policies an d  aim s to be fu rthered  
by Title VII an d  filtered th rough  the  p h rase  ‘to d iscrim inate’ 
con tained  in [that Act]” Gilbert, 429 U.S. a t  155 (B rennan, 
J . ,  d issenting). Accordingly, we can  only give effect to the

/  I



26

in te n t beh ind  th is  s ta tu te  by viewing th e  term  “tem porarily  
d isab led” as  It app lies to p regnancy  a s  referring to the  
d u ra tio n  of the  disability, no t to the  quality  of it.

The m ajority  also relies upon  Troupe v. M ay D ep t Stores  
Co., 20  F.3d 734, 738 (7th Cir. 1994). However, I am  no t 
p e rsu ad ed  by th e  reason ing  of Troupe an d  believe th a t we 
shou ld  be guided Instead  by Sm ith  v. F.W. Morse & Co., 
Inc., 76  F .3d 41 3  (1st Cir. 1996).

III. TROUPE v. MAY DEP'T STORES CO.
In Troupe, p reg n an t em ployee Kimberly H em  Troupe w as 

fired from a  Lord & Taylor d ep artm en t store  for ta rd in ess  
d u e  to pregnancy. T roupe su ed  h e r em ployer. May 
D epartm en t S tores (doing b u s in ess  a s  Lord & Taylor), 
alleging illegal sex d iscrim ination  u n d e r Title VII. The 
d is tric t co u rt g ran ted  Lord & Taylor’s m otion for sum m ary  
ju d g m e n t an d  T roupe appealed. On appeal, the  C ourt of 
A ppeals for the  Seventh  C ircuit affirmed, no ting  th a t “|t)he 
great, th e  unden iab le  fact is the  p la in tiff’s ta rd in e ss .” Id. a t  
737. The co u rt analogized the  p la in tiff’s plight to th a t of a  
hypothetical B lack employee who is fired after a  kidney 
tra n sp la n t because  the em ployer e ither w an ts  to avoid 
paying the  employee while on sick leave or dou b ts  th a t  the 
em ployee will re tu rn . The co u rt reasoned  th a t, in firing the  
B lack employee, th e  em ployer m ay be b reak ing  a  con tract, 
b u t it would n o t be violating Title VII’s pro tections ag a in st 
racial d iscrim ination  as  long as  th e  em ployer would also 
fire a  sim ilarly s itu a ted  W hite em ployee.3 Id. a t  738. The 
failure of the  Troupe analogy, however, is th a t ab sen ce  from 
w ork is n o t endem ic to a  pro tected  racial trait. A bsence Is,

3. The Seventh Circuit notes that "[ejmployers can treat pregnant women 
as badly as they treat nonpregnant employees, even to the point of 
'conditioning the availability of an employment benefit on an employee’s 
decision to return to work after the end of the medical disability that 
pregnancy causes.'" Troupe. 20 F.3d at 738 (quoting Maganuco v. Leyden 
Community High School Dist. 212. 939 F.2d 440. 445 (7th Cir. 1991). In 
treating pregnant women as badly as other nonpregnant employees, an 
employer cannot, however, impose policies that disparately impact 
pregnant women because of their pregnancy. See Maganuco. 939 F.2d at 
445.



27

however, endem ic to “pregnancy, ch ildb irth , o r re la ted  
m edical conditions.” §2000e(k). Indeed, th e  h isto rical 
underp inn ings of Title VII suggest th a t  it w as the  fear th a t 
wom en would get p reg n an t an d  be a b se n t from  th e ir  jo b s  
th a t w as, a t  leas t in part, responsib le  for the  longstand ing  
discrim ination ag a in st wom en (especially younger women) 
in the  workplace.

As noted above, em ployers have a ssu m e d  th a t  fem ale 
employees m ay becom e p reg n an t an d  th a t p regnancy  would 
m ake them  unavailab le  for work. S ee  G ilbert 429  U.S. a t  
150 n . l  (B rennan, J . ,  d issenting) (“G eneral E lectric’s 
disability program  w as developed in an  earlier e ra  w hen 
wom en openly were p resum ed  to play only a  m ino r an d  
tem porary  role in the  labor force. As originally conceived In 
1926, G eneral Electric offered no benefit p lan  to Its fem ale 
employees b ecause  ‘women did n o t recognize the  
responsibilities in life, for they w ere probably  hop ing  to get 
m arried  soon and  leave the  com pany.’ ”) (quoting D. Loth, 
Swope, G.E.: Story o f  Gerard Sw ope a n d  General Electric in 
Am erican B u sin ess  (1958)). Yet, here  the m ajority  finds th a t 
“(lit is no t a  violation of the  PDA for an  em ployer to consider 
an  em ployee’s absence  on m atern ity  leave in m ak ing  an  
adverse em ploym ent decision If it also w ould have 
considered the absence  of an  employee on a  different type 
of disability leave in the  sam e way.” Maj. Op. a t  14. T his is 
a  sim plistic in terp re ta tion  of th e  PDA an d  the  EEOC 
guidelines. In a  different Title VII context, th e  Suprem e 
C ourt noted  th a t in terpre ting  the  p roh ib itions of Title VII to 
only p rohib it overt in ten tional d iscrim ination  w ould leave 
em ployers free to en ac t facially n eu tra l policies b ased  on 
factors th a t  were a  proxy for race an d  thereby  c ircum vent 
Title VII’s protection. S ee  Griggs v. D uke Power, 401 U S  
424, 430, 91 S.Ct. 849, 853, 28 L .Ed.2d (1971). The 
approach  taken  in Troupe, u n d e r the  PDA, a n d  ad op ted  by 
the  m ajority here, suffers from the  sam e infirm ity.

It is ju risp ru d en tia l sleight of h an d  to su g g est th a t  the 
PDA does n o t require th a t p reg n an t w om en be trea ted  
be tte r th a n  their m ale co u n terp art. T h a t is a  m isleading  
s ta tem en t of the  issue . T hus, the co u rt in Troupe  m isses 
the  analytical m ark  w hen it s ta te s  th a t  “(e)mployers can  
trea t p reg n an t wom en a s  badly a s  they  tre a t sim ilarly



28

affected b u t  non p reg n an t em ployees,” 20 F3d a t  73R 
u n le ss  It defines “sim ilarly affected” employees a s  o ther 
em ployees having a  protected  tra it th a t  is endem ic to i k e  
behavior a t  issue. However, Troupe fails to do so and  
a ssu m es  th a t the  p reg n an t employee is the “eq u al” of her 
n o n p reg n an t coworker. Sim ilarly, the  m ajority erroneously
t r f S f UdeS th a ! 1116 ,PDA does no t re<lu ire  th a t em ployers 
H ^ l , Pa egnaV em Plo/ ees be tte r th an  o ther tem porarily 
d isabled  em ployees. See  Maj. Op. a t  8. ^

Relying upon  H azen  Paper C om pany v. Biaains 507  n  R 
604. 113 S .ct. 1701, 123 L . E d . 2 d ^  ( 1 9 9 l T e  m i l o r d
A^e Di hH 7 t]ha  Sl!p r^m e ,C ourt h a s  th a t u n d er th J  Age D iscrim ination in Em ploym ent Act an  em ployer m u st

em ployee’s age in certain  em ploym ent decisions, 
b u t n o t any  o ther charac te ris tic s  su ch  a s  pension  expense ” 
Maj Op. a t 8. However, I believe th a t H azen Paper requires 
th a t  we reject Troupe. In H azen  Paper, a  62 year old 
employee sued  h is em ployer, alleging th a t he h ad  been 
term inated  based  upon  age discrim ination, in violation of 
the  ^ d i s c r i m i n a t i o n  in Em ploym ent Act (“ADEA”), 26 
U.b.C. § 6 2 6 , an d  the Em ploym ent R etirem ent Income 
S ecurity  Act (“ERISA”), 29  U.S.C. § 1140. A ju ry  found for 
Hie employee on both  claim s, an d  the  employee appealed 
The  C ourt of A ppeals for the F irst C ircuit affirmed relying 
heavily on evidence th a t the  p lain tiff had  been fired in order

penSi° "  fr° m  vesting. The cou rt determ ined 
th a t the  ju iy  could have concluded th a t “age w as 
inextricably in tertw ined w ith the  decision to fo-e fthe 
plaintiff). If it w ere not for |h is | age . . . h is pension  J £ s

have been w ithin a  ha irb read th  of vesting.” 953 
F.2d 1405, 1412 (1st Cir. 1992), an d  he would n o t have 
been fired. The S uprem e C ourt reversed as  to the  ADEA 
claim . The cou rt reasoned  th a t firing an  older employee to 
p reven t pension  benefits from vesting based  on years  of 
service d °es no t am o u n t to “willful" age discrim ination 
u n d e r the  ADEA. 507 U.S. a t  608. The C ourt s ta ted , “[W]e
AnRAC f ?  ^  1 cCrf  iS n °  d isPa ra te  trea tm en t u n d e r the

EA w hen the factor m otivating the  em ployer Is some 
fea tu re  o th er th an  the em ployee’s age.” Id. a t 609. The case 
before it w as a  d isp ara te  trea tm en t case an d  the  C ourt 
concluded th a t “a  d isp ara te  trea tm en t claim  canno t 
succeed  u n less  the  em ployee’s protected tra it actually



29

played a  role In th a t p rocess an d  h ad  a  determ inative 
in lluence on th e  ou tcom e.” Id. a t 611.

D isparate  trea tm en t, th u s  defined, c ap tu res  the  
essence  o f w h a t C ongress sough t to proh ib it in the  
ADEA. It Is th e  very essence  of age d iscrim ination  for 
an  older em ployee to be fired becau se  th e  em ployer 
believes th a t  productivity  an d  com petence decline with 
old age. . . .

T h u s  th e  ADEA com m ands th a t ‘em ployers a re  to 
evaluate  (older) em ployees . . .  on th e ir m erits  an d  no t 
the ir age.’ The em ployer can n o t rely on age as  a  proxy 
for an  em ployee’s rem ain ing  charac te ris tics, su ch  as  
productivity , b u t m u s t in stead  focus on those  factors 
directly.

W hen th e  em ployer’s decision is wholly m otivated by 
factors o th e r th a n  age, the  problem  of in accu ra te  and  
stigm atizing stereotypes d isappears . This is tru e  even if 
the  m otivating factor is correlated  w ith age, a s  pension  
s ta tu s  typically is . . .  . B ecause age a n d  y ears  of 
service a re  analytically  d istinct, an  em ployer can take 
acco u n t of one while ignoring the  o ther, an d  th u s  it is 
incorrec t to say  th a t a decision based  on years  of 
service is necessarily  ‘age b a sed .’

507 U.S. a t 610-611 .

Pregnancy an d  absence  are not, however, analytically 
d istinc t, an d  an  em ployer can  no t p u n ish  for th e  absence  
occasioned by pregnancy  u n d e r Title VII. As noted  above, 
th a t  s ta tu te  s ta te s  th a t  it is an  unlaw ful em ploym ent 
p rac tice  to “d ischarge  any  individual . . .  o r otherw ise 
d iscrim inate  . becau se  . . .  of sex ,” 42 U.S.C. § 2 0 0 0 e- 

u ’ a n d ’ a fte r the  PDA’ th a t Includes d iscrim ination  “on 
^oT7?.SiS ° f  Pregnancy • • • or re la ted  m edical cond itions.” 
42 U.S.C. §2000e(k). T h a t protection is m eaningless u n less  
it is in tended  to ex tend  to the  “tem porary” absence  from 
em ploym ent th a t  is unavoidable in m ost p regnancies T hus 
th e  ab sen ce  endem ic to pregnancy, unlike factors th a t m ay 
som etim es be a  proxy for age. h a s  to be pro tected  u n d e r the 
facts of th is  case. In H azen Paper, it w as th e  em ployee’s 
y ears  of service, n o t h is  age, th a t  occasioned th e  vesting of 
h is  pension . The C ourt w as very careful to no te  th a t



30

fW]e do no t consider the special case  w here an  
employee is ab o u t to vest . . .  a s  a  re su lt of h is  age 
ra th e r th an  years of sendee, an d  the  em ployer fires the 
employee in order to prevent vesting. T h a t case  is no t 
J  sen  ed J ere;  ° a r  holding is sim ply th a t an  em ployer 
does no t violate the  ADEA J u s t by in terfering w ith an  
older em ployees pension  benefits th a t w ould have 
vested by virtue of years  of service.

507 U.S. a t 613. I believe th a t R hett’s s itua tion  u n d e r the  
PDA is m uch closer to the  situa tion  of an  em ployee w hose
nfilnHff i YfsUng because  of age th an  to th e p l ig h t  of the  
plaintiff in H azen Paper. Accordingly, the  holding in  H azen
ap p S rs°4eS n0t aSSlSt thC maJorlty  nearly  as m uch as first

II] n using  the  broad  p h rase  ‘women affected bv 
childbirth  an d  rela ted  m edical cond itions,’ the  

I A] m akes clear th a t its  protection extends to the  w hole  
R ^ eQ^ o T ? ierS concerning the childbearing p rocess .” H.R 
Rep. 95-948  (em phasis added). The holding in Troupe an d  
the  m ajority 's holding here, remove a  su b s tan tia l portion of 
the  Protection C ongress in tended. T roupe’s position w as 
term inated because  of conditions related  to p regnanev  
(tardiness occasioned by her m orning sickness). I do no t 
u n d e rs tan d , therefore, why she  w as not te rm inated  
T h l^ V I?  ° f ' ‘ ' hCr PreSnancy ’” § 2000e(k), in violation of

I believe th a t we should  reject the  holding in Troupe, an d

4. I do not mean to suggest by this that the PDA requires an employer 
to necessarily take affirmative steps to make it easier for a pregnlnt 
employee to work. S ee  Troupe. 20 F.3d at 738 (“The Pregnancy 
Discrimination Act does not . . . require employers to . . .  take s te S  
to make it easier for pregnant women to work.’). The PDA does not 
provide for accommodation as does the ADA.

Nor do I suggest that an employee who is pregnant can not be fired for 
reasons that are not occasioned by pregnancy. For example, if Carnegie 
decided, in good faith, to eliminate everyone with a certain salary grade 
based upon its business judgment. Rhett could be terminated if sh fw as  
at that salary grade whether she was on pregnancy leave or not because 
the termination would not be based upon a factor endemic to her 
pregnancy. 1



31

adopt Instead  th e  analysis se t forth  in Smith, 76 F.3d 413. 
There, a  fem ale employee (“S m ith”) worked for a  sm all 
com pany th a t  w as undergoing re s tru c tu rin g . She inform ed 
the  ow ner of the  com pany th a t sh e  w as p reg n an t an d  would 
be tak ing  m atern ity  leave. A lthough th e  com pany h ad  no 
m atern ity  leave policy, Sm ith w as a ssu re d  th a t  h e r job  w as 
secure  an d  the  com pany would sim ply divide h e r du ties  
am ongst its  rem ain ing  em ployees in h e r absence. The 
com pany m ade th is  com m itm ent even though  it expected 
h e r ab sen ce  to cau se  “the sky to fall.” IcL a t 418. The 
com pany also held regular “reality  check” m eetings in the  
hope th a t  they  could m inim ize the  im pact of the  absence of 
su ch  a  key employee. However, to the com pany’s g rea t 
su rp rise  the  sky did n o t fall. In fact, “the p lan t functioned 
veiy well,” id. a t  419, in S m ith ’s absence. Soon after Sm ith 
gave b irth , she Informed the  general m anager, M aiyann 
G uim ond, th a t  she  w ished to re tu rn  to w ork a  w eek earlier 
th an  p lanned . At th a t time, G uim ond m ade inquiries of 
Sm ith an d  S m ith ’s s is te r (who also w orked for the  
com pany) regard ing  S m ith ’s p lans to have children  in the 
fu tu re . D ays later, G uim ond determ ined th a t S m ith ’s 
position w as superfluous and  elim inated it. S m ith ’s duties 
were th en  given to an o th e r employee who had  been 
functioning a s  the  operations m anager.

Sm ith  sued , alleging, am ong o ther th ings, violation of 
Title VII. The Title VII claim  w as decided in a  ben ch  trial in 
the  d is tric t court, an d  th a t cou rt en tered  ju d g m en t for the 
em ployer a s  a  m atte r of law. Sm ith  appealed, an d  th e  C ourt 
of A ppeals for the  F irst C ircuit affirmed. Sm ith  argued th a t 
the  com pany had  violated Title VII because  h e r absence  on 
pregnancy leave afforded the  com pany th e  opportun ity  to 
learn  th a t  it could afford to elim inate h e r position. The 
co u rt disagreed because  it concluded th a t th e  employer 
would have elim inated the  position regard less of S m ith ’s 
pregnancy, an d  agreed w ith th e  em ployer’s  a rg u m en t th a t 
“even if Sm ith  h ad  no t been on m atern ity  leave she  would 
have been flattened by the  dow nsizing steam roller.” Id. a t 
419. The c o u rt reasoned  th a t

(Tlhere is little doub t th a t  an  em ployer, con sis ten t with 
its b u s in ess  judgm ent, m ay elim inate positions during  
the  course  of a  dow nsizing w ithou t violating Title VII



32

n ro "  th ese  Positions a re  held by m em bers of
g ™ p s  (p regnan t wom en included)” (citing 

C l ^ a %  GreaJ  InS■ C° -  6  R 3 d  g36. 8 ^ - 4 5  1st
1398. 9l ! l 1- LS 2dde?2% 95 “  £ L , 10I&  i 14 S C t.
B ank , 985  F .2d 1113, " c ^ i a S f i '

Inc.. 859  F .2d  1108-1115 V 4  C l r '  l a R R v ' p ' ^ ,  
v T v . l ^ r  H osP  ' ^ 6  F .S u p p .'2 6 ea  2 6 8 -69

t i n r  b%r££S4 Ptf^
su ch  a s  “dow nsizing” or “stream lin ing  ” w w £ h ™ mSzrzsx i r r T S r r F
discrim inato iy  an im u s. ta in ted  by a

Id. a t 422  (citing Goldman, 985 F.2d a t 1118 n a - aa 
v. E vans Chem etics, 964  F .2d 106 11 l ro^ ^ aresco

{fe.^ The  ^ourt held \ h a f  th^^enipf^ 886  F SuPP-’at 2W - 

a T t T o e f " :  t r  ' l e X l o  ̂ " V ^ d S  “ o V n g
g rav td lfy " /d  a t f04r2 i e& h e reaS,°nS “ nrelated  to he? 
m erely b e c a u s e i t  ^ea llzerT thaf em ployer had  selected h e r

^  o f ou r

s t e *  “

d e S X l  fte°sni ^ e eJ“ ^ r d P' r ent



33

W- a t 424 (citing Troupe, 20 F .3d a t 738) (em phasis added) 
The cou rt added th a t “Ja]t bottom . Tide VII requ ires a  
causa l nexus betw een the  em ployer’s s ta te  of m ind and  the  
protected  tra it (here, pregnancy).” Id. a t  425. In Sm ith, the 
nexus did no t ex ist becau se  th e  decision to elim inate the 
em ployee's job  w as based  upon the  im portance (or lack 
thereof) of the job . Here, however, the  decision to elim inate 
Fm etts job  w as based  solely upon  h e r p regnancy related 
absence. T ha t cau sa l nexis ru n s  afoul of Title VII's 
prohibition of sex discrim ination.

Carnegie clearly did n o t p u t R hett’s  d ep artu re  on 
m atern ity  leave to one side w hen deciding to te rm inate  her 
R hett’s absence from w ork w as so inextricably in tertw ined 
w ith pregnancy, her p ro tected  tra it, a s  to m ake the  two 
inseparable. In its “theory  of transitiv ity ,” the  m ajority 
sep ara tes  the  events in th is  case  into d iscrete  en tities th a t 
suggest the  causa l rela tionsh ip  betw een R hett’s pregnancy 
an d  h e r term ination. H ie  m ajority too easily rejects th is 
position. See Maj. Op. a t 8  (“T his view elim inates R hett’s 
theory  of transitivity, th a t if A (term ination) is caused  by B
(absence) which is caused  by C (pregnancy), th en  C cau ses  
A. ).

IV. TERMINATION BECAUSE OF PREGNANCY
em pl°yer can  no t in su la te  itse lf from the  reach  of Title 

VII by an action th a t  ap p ea rs  n eu tra l, ye t h a s  the  
functional effect of d isparate ly  trea ting  an  individual based  
upon a  protected tra it. See Griggs, 401 U.S. a t 430. 
Carnegie s action is the  functional equivalent o f term inating  
R hett because  she  w as p regnan t. See Teahan v. Metro-North 
Commuter R.R. Co., 951 F.2d 511 (2d Cir. 1991).

In Teahan, an  employee suffering from alcoholism  
brought an  action ag a in st h is  em ployer alleging th a t  h is  
d ischarge for excessive absen teeism  w as in violation of 
§ 504 of the R ehabilitation Act of 1973, 29 U.S.C. § 794 
b ecause  h is absences had  been cau sed  by th a t d isea se ’ 
Sum m ary  ju d g m en t w as en tered  In favor of the  em ployer 
because  the  d istric t co u rt concluded th a t there  w as no 
issu e  of m aterial fact a s  to w hether T eahan  “w as term inated  
solely by reason o f ’ h is h an d icap .” Id. a t  514. The d istric t



34

TeahlrVc H d̂ «d th a t 016 em ployer “h ad  n o t relied on T r a h a n s  h an d icap  . . . [a n d had] a  nond iscrlm inato iy
appealed01̂ him  êxcessive absen teeism ).” Id. T eahan

ap p f ab Teah an  a r£ued th a t “becau se  th e  ground 
upon  w hich he w as term inated  w as h is  excessive 
absen teeism , an d  since h is  absen teeism  w as ‘cau sed  by’ his

t blT  problem ’ th e  d ls tric t co u rt im properly
/dh  S e t n , 5 - | r d fnAt0 hiim r°  pruesen t evidence of p re tex t.” /d. The C ourt of A ppeals for the  Second C ircuit agreed
s ta tin g  th a t  it does no t inevitably follow th a t  te rm ination  
. l <:OI}d u c t resu lting  from a hand icap  is no t term ination  
solely by reason  o f ’ th a t h an d icap .”5 Id. a t  515. Indeed, “an 

em ployer relies’ on a  hand icap  w hen it ju s tifie s  [its 
em ploym ent decision] based  on co nduct cau sed  by th a t 
hand icap . Id. B ecause the  d istric t co u rt erred  in 
c o n c e d in g  th a t T eahan  had  no t estab lished  th a t he  was 
fired sole y  by reason  of h is h an d icap .” h is  em ployer never 
h ad  to satisfy  its b u rd en  of “dem onstrating  th a t (Teahan’s
A nrd n f P iWaSM.releVant t0 the  Job qualifications.” id. a t 515 Accordingly, the  co u rt rem anded the  case for fu rther 
proceedings. Sim ilarly, in Cushing v. Moore, 970  F.2d

5.The “solely by reason of" inquiiy. the court explained, is “designed to 
weed out [] claims where an employer can point to conduct or 

lHat are CaUSally unrelated to the plaintiff s handicap '
the -L f16 (emPhaSiS at?ded)- ,n 1116 context of the PDA. the analogue^  the because of or on the basis of pregnancy" inquiiy.

- The7 u U.rtu aCCepted that the plaintiff’s excessive absences were 
CaU y„ S alc°bolism because its review on appeal required that it

T l '  th'  llght fav»™ble >» Teahan, Tha coLrtrecognized however, that -the causal connection between absenteeism 
and alcoholism is ordinarily a question of fact.’ Teahan. 951 F.2d at 515
6. Under the Rehabilitation Act. *[t]he question then becomes whether 
the employee is qualified despite his or her handicap to perform 
essentia! functions of the job.* Id. The employer bears that b^dT , 
fAJfter complainant proves a prima facie case, the employer is required 

to rebut the inference that the handicap was improperly considered by 
first demonstrating that it was relevant to the job qualifications." I d  I t

° thu L ,?UrtS ° f aPpeals have refused to adopt T eah an ’s  rationale See 
e.3.. WOlcam u. WidnalL 79  F.3d 1003 (10th Cir. 1996): A f S L I .



35

1103, 1108 (2nd Clr. 1992), th e  co u rt s ta ted  th a t “the  key 
determ ination  becom es the  factual issu e  of w hether an  
em ployee’s co n d u ct (such a s  absenteeism ), w hich form s the 
a rticu la ted  b a s is  for a  Job tenm ination, is actually  caused  
by a  h an d icap  (such  a s  su b s ta n c e  abuse)” (citing Teahan.
? n o / ',o dTf t 517: H °9arth  v- Thornburgh. 833 F .S upp. 1077, 
1085 (S.D.N.Y. 1993) (“(I]f a  hand icap  m anifests  itse lf in
^ n .behaVl0r’ an d  311 em P1°y ee Is d ischarged  becau se  of 
th a t behavdor, he  h a s  been  te rm ina ted  ‘solely by reason  o f ’ 
the  h an d icap .”); an d  Am brosino v. Metropolitan Life Insur  
Co 899  F S upp . 438. 444  (N.D.Cal. 1995) (The co u rt chose 
to follow th e  line o f c ase s  holding th a t “term ination  based  
on co nduct cau sed  by chem ical dependency an d  s ta tu s  
w hich re su lts  from the  dependency  a n d /o r  the  conduct 
caused  by the  dependency  is term ination  based  on the  
disability of chem ical dependency .”). However, th a t 
consideration  is no t p re sen t here, an d  I believe th a t th is 
m a tte r shou ld  be rem anded  for a  de term ination  of w hether 
R hett would have been  selected  for te rm ination  based  upon 
lacto rs o th e r th an  h e r absence. A lthough it is for the 
employer, an d  no t a  court, to determ ine how b est to select 
those positions th a t will be elim inated in a  reduction  In 
l0rf e ’ VI1 requ ires th is  em ployer to adop t crite ria  th a t 
p u t R hett s p regnancy-rela ted  absence  aside  a n d  allow for 
an  individualized de term ination  driven by her own 
capabilities. J

University o f Tennessee. 62 F.3d 843 (6th Clr. 1995). However in all 
cases, the employee had exhibited either egregious or criminal conduct. 
See e.g., Maddox. 62 F.3d at 845 (assistant coach at University of 
Tennessee fired because of the bad publicity that the university was 
subjected to after he was arrested for DUI). Because of the nature of the
Cf ^ UĈ n/ ° l Ved' 111636 Courts were u n c lin g  to "adopt an interpretation 
of the (Rehabilitation ActJ which would require an employer to accept 
egregious behavior by [a disabled employee) when that same behavior
Z i !  *yr , & nondisabled employee, would require termination/ 
WUluxms. 79 F.3d at 1007. Thus, ‘[ajt first blush, it may appear that the 
Second Circuit is out of synchronization with the others. However 
distinction lies in the categorization of the conduct . . . .  [In the cases 
rejecting Teahan.] the conduct [at issue] is . . . misconduct. ' Taylor. 917  
F.Supp. at 462 (emphasis added). Rhetfs case does not implicate the 
concerns of those courts that have rejected Teahan.



36

V. CONCLUSION

d e c is io n ^  th ^ d J s W c f co u rt a n t l ^ '  ' ™ « «  the
b an k ru p tcy  c o u r t f o r  a  det™ S an d  H” * ™ tte r  to th '  
would have been e ^ n a t ^ T i n  L ° f  W hether 
absence been p u t a s id T  h  d h er Pregnancy-related

A True Copy:
Teste:

Clerk o f  th e  U nited S ta te s  Court o f  A ppea ls  
fo r  th e  Third Circuit