Rhett v Carnegie Center Petition Hearing and Suggestion Hearing in Banc

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

IN RE:
CARNEGIE CENTER ASSOCIATES, )

Debtor )
)

DEBORAH RHETT, )
Appellant ) NO. 96-5566

v. )
)

CARNEGIE CENTER ASSOCIATES, )
Appellee )

PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING IN  BANC

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

P.O. Box 6584
CHARLES STEPHEN RALSTON Philadelphia, PA 19138
NORMAN J. CHACHKIN (215) 848-7239
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



TABLE OF CONTENTS

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

Local Appellate Rule 35.1 Statem ent........................................................................ jjj

I. Courts Must Look To The Specific Context To Determine Which Employees Are 
Similar In Their Ability or Inability To Work for PDA Purposes................................. 3

II. Plaintiffs Absence Was Inextricably Linked To Her Pregnancy 6



TABLE OF AUTHORITIES

CASES

Cushing v. Moore,
970 F.2d 1103 (2d Cir. 1992)............................................................................... 11

Ensley-Gaines v. Runyon,
72 Fair Empl. Prac. Cas. (BNA) 602 (6th Cir. 1996).....................................  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

i



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

n



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 time111 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

JAs 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. Plaintiff’s 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 of 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

3The 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

"See 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 plaintiff s 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 of1 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 of1 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.

10Under 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: "[Ajfter 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

P.O. Box 6584
CHARLES STEPHEN RALSTON Philadelphia, PA
NORMAN J. CHACHKIN (215) 848-7239
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 *

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 Judgp.c:

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,

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)

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

Circuit Judges

(Filed: October 31, 1997)

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



2

Elaine R. Jones 
Director-Counsel 
Charles Stephen Ralston 
Norman J. Chachkin 
Catherine B. Powell (argued) 
NAACP Legal Defense & 
Educational Fund 
99 Hudson Street 
16th Floor
New York, NY 10013
Lanier E. Williams 
Christopher Morkides 
P.O. Box 6584 
Philadelphia, PA 19138

Attorneys for Appellant
James E. Stahl (argued)
Remy M. Quinones
Borrus, Goldin, Foley, Vignuolo,
Hyman & Stahl
2875 United States Highway 1
P.O. Box 7463
North Brunswick, NJ 08902

Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.
This case comes on before this court on appeal from the 

district court’s order affirming a bankruptcy court order 
expunging the claim of the appellant Deborah Rhett, a 
black female, which arose out of the termination of her 
employment when her employer, appellee Carnegie Center 
Associates (Carnegie), abolished her position. The 
bankruptcy court had subject matter jurisdiction under 28 
U.S.C. § 157(b)(2)(B), (O) and 28 U.S.C. § 1334(b). The 
district court had appellate jurisdiction over the bankruptcy 
court’s order pursuant to 28 U.S.C. § 158. We have 
jurisdiction under 28 U.S.C. § 1291, 28 U.S.C. § 158(d), and 
42 U.S.C. §2000e-5(J).



3

A. FACTUAL AND PROCEDURAL HISTORY
The facts in the case were developed at the trial of the 

adversary proceeding in the bankruptcy court. Rhett began 
working for Carnegie, a real estate company Allan Landis 
owned and controlled, as a temporary secretary in April 
1989. She became a full-time permanent secretary in 
Carnegie’s Accounting/Finance Department on July 17, 
1989, and received a salary increase of $1,500 in January 
1990 based on her satisfactory performance.

In June 1990, Rhett informed her supervisors and co­
workers that she was pregnant. When she told Keith 
Gormisky, the controller, and Gary Tumdorf, the chief 
financial officer and counsel, of her pregnancy both asked 
if she was going to get married. Tumdorf commented that 
being a single parent was difficult, and Rhett claimed that 
Gormisky said that getting married was: “in society’s eyes 
. . .  the right thing to do.” Nevertheless, Tumdorf testified 
that the fact that Rhett was unmarried played no role in 
Carnegie’s later decision to abolish her position. Rhett also 
claimed that Gormisky became irate with her just before 
she left on maternity leave and stated that she was on “thin 
ice.” The bankruptcy court, apparently attributing this 
comment to Tumdorf, found it related to his view of the 
quality of Rhett’s work.

Rhett circulated a memo to the managerial officers 
(including Landis, Tumdorf and Gormisky) on December 
18, 1990, stating that she planned to be on maternity leave 
from December 21, 1990, until about April 15, 1991. 
Carnegie hired a temporary secretary to fill in while she was 
gone. Carnegie did not have a formal maternity leave policy, 
but Tumdorf testified that its practice was to “try and hold 
it open for them if we could” so that “[wjhen they wanted to 
come back, if they contacted us and there was something 
open that was suitable, we would offer it to them.” See 
bankruptcy court opinion at 5-6 (discussing two employees 
who left on maternity leave and subsequently returned to 
the same or similar positions).

Carnegie had experienced financial difficulties prior to 
Rhett’s departure that worsened while she was gone, 
forcing it to make staff cutbacks to decrease costs.

/  i



4

Consequently, just before Rhett originally had planned to 
return, Carnegie eliminated several positions, including 
Rhett’s secretarial position, and terminated several 
employees, including her supervisor, Geoff Hammond. On 
March 26, 1991, Gormisky wrote Rhett to tell her that her 
position had been eliminated.1 Tumdorf testified 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 time 
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. At that time Rhett was still away from 
work because she was under medical care (counseling) for 
post-partum depression, which she continued until June of 
1991. When Rhett called Gormisky after receiving the letter, 
he reiterated that her position had been abolished. She 
asked about two other positions with Carnegie and was told 
they were not available to her. In fact, Carnegie did not 
interview Rhett, or consider hiring her, for any other 
position.

Rhett filed a suit in the district court under Title VII and 
the New Jersey Law Against Discrimination against 
Carnegie on November 26, 1993, alleging discrimination on 
the basis of her race, gender, and marital status.1 2 The 
district court action was automatically stayed because 
Carnegie was undergoing bankruptcy reorganization. Thus, 
Rhett pursued the matter by filing a proof of claim with the 
bankruptcy court on Februaiy 19, 1994. Thereafter the 
district court terminated the district court action without 
prejudice and the case continued as an adversary 
proceeding in the bankruptcy court. The bankruptcy court 
found in Carnegie’s favor after a three-day bench trial. It 
held that Carnegie had to reduce costs because 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 and that it eliminated staff at both the 
management and support levels. The court held that 
Carnegie abolished Rhett’s position for the legitimate non- 
discriminatory reason that she was away from work, and 
not because of discrimination on the basis of race, gender 
or pregnancy. The court further held that she was not 
qualified for any of the other positions for which she 
asserted Carnegie should have interviewed her. The district 
court affirmed in an opinion and order entered August 6, 
1996, holding that the bankruptcy court’s factual findings 
were not clearly erroneous and these findings “compelled 
the conclusion that the* secretarial position held by 
appellant was abolished for legitimate, non-discriminatory 
reasons.” Rhett then appealed to this court.

The main issue on this appeal is whether an employee’s 
absence on maternity leave can be a legitimate non- 
discriminatory reason for her termination. Inasmuch as the 
district court sat as an appellate court, we exercise plenary 
review of its decision. Universal Minerals, Inc. V. C. A. 
Hughes & Co., 669 F.2d 98, 101-102 (3d Cir. 1981). 
Findings of fact by the bankruptcy judge, however, are only 
reversible if clearly erroneous. Bankruptcy Rule 8013.

B. PREGNANCY, RACIAL AND GENDER 
DISCRIMINATION

On this appeal Rhett claims that Carnegie terminated her 
employment because of her pregnancy and on account of 
her race and gender in violation of Title VII and the New 
Jersey Law Against Discrimination. We confine our 
discussion to Title VII because her state law claims are 
analyzed in the same way as her Title VII claims. See 
Marzarw v. Computer Science Corp., 91 F.3d 495, 502 (3d 
Cir. 1996). Indeed, Rhett apparently recognizes this point 
because she does not cite a single New Jersey state court 
opinion in either of her briefs on this appeal.

Title VII prohibits employment discrimination based on 
an individual employee’s sex. 42 U.S.C. §2000e-2(a). The 
Pregnancy Discrimination Act (“PDA”), a 1978 amendment 
to Title VII, states:



6

The terms because of sex’ or ‘on the basis of sex’ 
include, but are not limited to, because of or on the 
basis of pregnancy, childbirth, or related medical 
conditions; and women affected by pregnancy, 
childbirth, or related medical conditions shall be 
treated the same for all employment-related purposes 
. . .  as other persons not so affected but similar in their 
ability or inability to work. . . .

42 U.S.C. §2000e(k). There is employment discrimination 
whenever an employee’s pregnancy is a motivating factor 
for the employer’s adverse employment decision. 42 U.S.C. 
§ 2000e-2(m).

The bankruptcy and district courts analyzed Rhett’s 
claim as being based on circumstantial evidence implicating 
the burden shifting framework of McDonnell Douglas Corn, 
v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). In a Title VII 
case such as this one involving a reduction in force, in 
order to make out a prima facie case the plaintiff must 
show that (1) she belonged to a protected class, (2) she was 
qualified for the position from which she was terminated, 
(3) she was terminated and (4) persons outside of the 
protected class were retained. See Armbruster v. Unisys 
Corp., 32 F.3d 768, 777 (3d Cir. 1994). While neither court 
made specific reference to the applicability of the modified 
McDonnell Douglas framework in reduction in force 
situations, the record clearly establishes that Carnegie did 
reduce its force, so we will apply the appropriate 
framework. Once the plaintiff establishes a prima facie 
case, the burden shifts to the defendant to articulate a 
legitimate non-discriminatoiy reason for the plaintiff’s 
termination. Texas Dep’t o f Community Affairs v. Burdine, 
450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981). If the 
defendant articulates such a reason, the plaintiff then must 
prove that the facially legitimate reason was a pretext for a 
discriminatory 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 bankruptcy and district courts held that Rhett did 
not establish a prima facie case. We disagree with this 
conclusion but are satisfied that the courts’ error is 
harmless because the bankruptcy court considered the 
issues relevant to a reduction in force analysis at a trial 
and made the requisite findings for such an analysis. Thus, 
insofar as this case involves a reduction in force, we focus 
on Carnegie’s reason for terminating Rhett’s employment.

This case largely boils down to a dispute over one issue: 
whether terminating an employee because she is absent on 
maternity leave is a violation of the PDA. The bankruptcy 
and district courts found that Carnegie eliminated Rhett’s 
position because she was not at her place of employment at 
that time, not because of her pregnancy. Carnegie argues, 
and the bankruptcy and district courts found a t least 
implicitly, that Rhett was not employed by Carnegie at the 
time Carnegie eliminated her position. Rhett asserts that 
she was an employee on unpaid leave at that time. 
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. We need not, however, definitely so 
determine because even assuming that Carnegie still 
employed Rhett when it abolished her position, under the 
Armbruster reduction in force framework, she is not entitled 
to relief.

Regulations promulgated under Title VII provide:
Disabilities caused or contributed to by pregnancy, 
childbirth, or related medical conditions, for all job- 
related purposes, shall be treated the same as 
disabilities caused or contributed to by other medical 
conditions. . . . Written or unwritten employment 
policies and practices involving matters such as the 
commencement and duration of leave . . . [and] 
reinstatement . . . shall be applied to disability due to 
pregnancy . . .  on the same terms and conditions as 
they are applied to other disabilities.



8

29 C.F.R. § 1604.10(b). The Interpretive question and 
answer section accompanying the regulation specifies that 
an employer must hold open the job of a woman absent 
because of pregnancy “on the same basis as jobs are held 
open for employees on sick or disability leave for other 
reasons.” 29 C.F.R. Pt. 1604 App. Question 9. On the other 
hand, the PDA does not require that employers treat 
pregnant employees better than other temporarily disabled 
employees. Troupe v. May Dep’t Stores Co., 20 F.3d 734, 
738 (7th Cir. 1994); Maganuco v. Leyden Community High 
Sch. Dist 212, 939 F.2d 440, 444 (7th Cir. 1991); H. Rep. 
No. 95-948 at 4-5 (1978), reprinted 1978 U.S.C.CA.N. 
4749, 4752-53 (basic principles of the PDA); see also 
California Fed. Sav. and Loan Ass'n v. Guerra, 479 U.S. 
272, 289 & n.29, 107 S.Ct. 683, 694 & n.29 (1987) (holding 
that the PDA neither requires nor prohibits states from 
mandating maternity leave and reinstatement policies).

Rhett argues that Carnegie terminated her employment 
solely because of her absence and her absence was due 
solely to her pregnancy and related medical conditions. 
Consequently, in her view Carnegie terminated her 
employment because of her pregnancy. The Supreme Court 
has held that under the Age Discrimination in Employment 
Act an employer must ignore an employee’s age in certain 
employment decisions, but not any other characteristics 
such as pension expense. Hazen Paper Co. v. Biggins, 507 
U.S. 604, 612, 113 S.Ct. 1701, 1707 (1993). The Court of 
Appeals for the Seventh Circuit has held, by analogy to 
Hazen, that the PDA “requires the employer to ignore an 
employee’s pregnancy, but ... not her absence from work, 
unless the employer overlooks the comparable absences of 
non-pregnant employees. . . .” Troupe, 20 F.3d at 738. This 
holding is entirely consistent with the plain language of the 
PDA and the regulations we discuss above. This view 
eliminates Rhett’s theory of transitivity, that if A 
(termination) is caused by B (absence) which is caused by 
C (pregnancy), then C causes A. Other courts similarly have 
held that “the PDA does not force employers to pretend that 
absent employees are present whenever their absences are 
caused by pregnancy.” Cmokrak v. Evangelical Health Sys. 
Corp., 819 F. Supp. 737, 743 (N.D. 111. 1993).



9

We recognize that Smith v. F.W. Morse & Co., 76 F.3d 413 
(1st Cir. 1996), includes language contrary to that of Troupe 
for in Smith the court said that “an employer m ust put an 
employee’s pregnancy (including her departure on maternity 
leave) to one side in making its employment decisions.” Id. 
at 424 (emphasis added). In Smith, the pregnant employee 
was assured before she went on maternity leave that her 
position was secure, but the employer then eliminated her 
position during a reorganization while she was away. IcL at 
418-19. The court’s holding, however, was that the 
elimination of the position was not an act of pregnancy 
discrimination merely because the employer discovered that 
the position was superfluous while the employee was on 
maternity leave; thus there was no causal nexus between 
her termination and her pregnancy. Id. at 424-25.

Notwithstanding the passage in Smith which we have 
quoted, Carnegie argues that Smith applies here because in 
its view Smith demonstrates that its action in terminating 
Rhett’s employment was justified as it, like the employer in 
Smith, had a legitimate non-pregnancy based reason to 
discharge the pregnant employee. Smith may be 
distinguished, however, because Carnegie eliminated 
Rhett’s position, rather than that of one of the other 
secretaries, because she was away on maternity leave. 
While it was apparent that one of the secretary positions 
was not needed, it was only Rhett’s absence which led to 
her termination. Carnegie has made no showing that 
Rhett’s position would have been eliminated if she had not 
been away at the time. Indeed, Carnegie made no 
comparative evaluation of the secretaries’ performance. In 
Smith, the particular position of the pregnant employee was 
shown to be superfluous while she was away. Smith, unlike 
this case, did not involve a choice by the employer as to 
which of several similar positions to eliminate.

This case is unusual in that Carnegie terminated an 
employee who had performed satisfactorily solely because of 
an economically justified reduction in force while she was 
away on maternity leave. See Geier v. Medtronic, Inc., 99 
F.3d 238, 243 (7th Cir. 1996) (fired pregnant employee not 
qualified because she could not meet required performance 
quotas); Troupe, 20 F.3d at 735 (pregnant employee fired



10

for chronic tardiness prior to maternity leave); Sorea-Yasher 
v. First Office Management, 926 F. Supp. 646, 649 (N.D. 
Ohio 1996) (employee replaced while on maternity leave 
because of business need and company had written policy 
of not guaranteeing reinstatement after any leave of 
absence); Morrissey v. Symbol Techs., Inc., 910 F. Supp. 
117, 121 (E.D.N.Y. 1996) (fired employee’s maternity leave 
extended beyond time for which employer’s policy 
guaranteed reinstatement); Rudolph v. Hechinger Co., 884 
F. Supp. 184, 186, 188 (D. Md. 1995) (employee terminated 
while on maternity leave because of reasons independent of 
her absence); UUoa v. American Express Travel Related 
Sews. Co., 822 F. Supp. 1566, 1570-71 (S.D. Fla. 1993) 
(employee terminated in reduction in force while on 
maternity leave because her leave extended beyond time for 
which reinstatement guaranteed); Cmokrak, 819 F. Supp. 
at 743 (employer justification for demoting employee while 
on maternity leave could be pretext); Felts v. Radio Distrib. 
Co., 637 F. Supp. 229, 233 (N.D. 111. 1985) (employer 
justification of termination because of financial difficulties 
was a pretext). Furthermore, in this case Carnegie had need 
after Rhett was gone for an employee to do the type of work 
she did before it eliminated her position.

Nevertheless, the law covering this case is clear for the 
view of the Court of Appeals of the Seventh Circuit which 
it set forth in Troupe, that an employer legitimately can 
consider an employee’s absence on maternity leave in 
making an adverse employment decision, is consistent with 
and, indeed, is compelled by the plain language of the PDA. 
Thus, Troupe properly requires the plaintiff employee 
seeking to recover under the PDA to show that the 
employer treated her differently than non-pregnant 
employees on disability leave. See 29 C.F.R. § 1604.10. 
While we do not ignore the contrary suggestion in Smith, we 
do not find it controlling because it is inconsistent with the 
language of the PDA. Thus, we cannot find, as Rhett urges, 
that the mere consideration of an employee’s absence on 
maternity leave is a per se violation of the PDA. In short, 
the PDA does not require an employer to reinstate an 
employee merely because she has been absent on maternity 
leave. Rather, the PDA is a shield against discrimination, 
not a sword in the hands of a pregnant employee.



11

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. See UUoa v. American Express 
Travel Related Servs. Co., 822 F. Supp. at 1571 (Employer 
is entitled to judgment when employee “has failed to show 
by a preponderance of the evidence that she received 
disparate treatment when compared to non-pregnant 
employees.”).

The PDA does not require an employer to grant maternity 
leave or to reinstate an employee after a maternity leave. 
The PDA merely requires that an employer treat a pregnant 
woman in the same fashion as any other temporarily 
disabled employee. In this regard, we point out that it is not 
unlawful under the Americans with Disabilities Act for an 
employer when reducing its force to discharge an employee 
away from work by reason of a temporary disability. See 
Sanders v. Ameson 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 acknowledge that 
arguably it was unfair for Carnegie to fire Rhett because 
she was on leave rather than to decide which secretary’s 
position to abolish on the basis of seniority or merit, but it 
was not illegal for it to do so unless it would not have 
eliminated the position of another employee on disability 
leave who was not pregnant. The PDA does not require 
fairness. See Ulloa v. American Express Travel Related 
Servs. Co., 822 F. Supp. at 1571.

Judge McKee in his dissent seems to believe that we are 
equating “pregnancy with a temporary disability under the 
ADA.” Dissent at 25. Of course, we are doing no such thing. 
Rather, we are holding that it is not unlawful under the 
PDA to terminate an employee absent by reason of 
pregnancy if the employer would have terminated an 
employee absent by reason of a different temporary 
disability. Thus, notwithstanding the intricate reasoning of 
the dissent, this case at bottom is quite straightforward and 
uncomplicated.



12

In view of our analysis, we conclude that although the 
bankruptcy and district courts erred in finding that Rhett 
did not make out a prima facie case of pregnancy 
discrimination (because they did not apply the Armbruster 
reduction in force analytical framework), the error 
was harmless. Carnegie asserted a legitimate non- 
discriminatory reason for Rhett’s termination, that she was 
away on leave. Rhett has not satisfied her burden of 
showing that this reason was pretextual. Therefore, we will 
affirm insofar as this case involves the termination of 
Rhett’s position. Of course, our analysis requires that we 
affirm the district court in its rejection of her race and 
gender claims as well, based on the elimination of her 
position.4

In reaching our result, we have not overlooked Rhett’s 
argument that this case is somehow different than a case 
based on a claim of discrimination predicated either on race 
or gender, because she bases her claim on both race and 
gender. This argument adds nothing to her case because 
regardless of the basis for her claim of discrimination, she 
cannot establish that the legitimate reason that Carnegie 
proffered for terminating her was pretextual. Furthermore, 
we have not ignored Rhett’s argument that Carnegie’s 
termination of her position had a discriminatory impact of 
her based on her race. Rather, we reject this contention as 
entirely insubstantial for an employee is not insulated from 
having her position lawfully terminated merely because she 
happens to be a minority.

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-discriminatory reason for terminating Rhett 
and the bankruptcy court, in an unassailable finding, accepted that 
reason.



13

Rhett also argues that Carnegie should have considered 
her for alternate positions. She says that the positions of 
property management administrative assistant, secretary to 
Landis and receptionist became open while she was on 
maternity leave and she was qualified for all of them. It is 
not disputed that she was not considered for any of these 
positions. But the bankruptcy court found as a fact, and 
the district court affirmed, that Rhett was not qualified for 
the property management position or the position of 
assistant or secretary to Landis. The bankruptcy court also 
found that Rhett never indicated that she would take a 
lower paying or temporary job. Rhett argues that these 
factual findings are clearly erroneous.

Rhett has offered no more than her own opinion that she 
was qualified for the property manager position. Gormlsky 
testified that the position required more than basic 
secretarial skills and he did not believe that Rhett 
adequately could perform in the job. Tumdorf also testified 
that he would not have hired her for that position because 
he did not feel she would perform well. This is more than 
enough support for the bankruptcy court’s finding that 
Rhett was not qualified. Similarly, Rhett asserts that she 
was qualified to be Landis’s personal secretary because of 
her extensive secretarial experience. The bankruptcy court’s 
finding that Rhett was not qualified for this job is 
supported by Tumdorf’s testimony that the job required a 
special attitude and ability to anticipate Landis’s needs 
which Rhett did not have. Inasmuch as the bankruptcy 
court was not clearly erroneous in finding Rhett not 
qualified for these positions, she has not made out a prima 
facie case of discrimination because of Carnegie’s failure to 
hire or interview her.

On the other hand, It is clear that Rhett was qualified for 
the position of receptionist. But the bankruptcy court held 
that she never expressed an interest in this job, which paid 
less than her prior position. Since this is a failure to hire 
situation, rather than a discharge situation, under 
McDonnell Douglas Rhett must show that she applied for 
the position. It is undisputed that Rhett did not apply for 
this position, or even express any interest in it.



14

Rhett argues that Carnegie had an affirmative duty to 
contact her (but cites no case for this proposition), and she 
would have expressed an interest if she had been 
contacted. The receptionist position was the lowest paying 
job in the office. It was not unreasonable for Carnegie to 
assume that Rhett would not accept this position, 
especially when she did not express any interest in it. On 
this point we observe that the bankruptcy court found that 
Rhett obtained a position with the Robert Wood Johnson 
Foundation and started work there on January 29, 1992, 
and earned $22,500 in 1992. Thus, it is understandable 
why Rhett did not seek a position as a receptionist as she 
was capable of obtaining more financially rewarding 
employment. Further, Tumdorf testified that it was 
customary for employees returning from maternity leave to 
contact Carnegie, rather than Carnegie contacting them 
when a position opened up. Given this custom, we cannot 
find any error in the lower courts’ conclusion that Rhett 
failed to state a prima facie case of discrimination because 
she was not given any of these positions.

C. CONCLUSION
We hold, in agreement with the Court of Appeals for the 

Seventh Circuit, the plain language of the PDA, and the 
regulations under the PDA, that an employee alleging a 
PDA violation must show that her employer treated her 
differently than it would have treated an employee on leave 
for a temporary disability other than pregnancy. It is not a 
violation of the PDA for an employer to consider an 
employee’s absence on maternity leave in making an 
adverse employment decision if it also would have 
considered the absence of an employee on a different type 
of disability leave in the same way. Inasmuch as Carnegie 
asserted that Rhett’s absence from work, rather than her 
pregnancy, was the reason for her termination, and Rhett 
has failed to show that this assertion was pretextual, her 
claim fails.5

5. We note, however, that there are federal and state laws which do 
require parental leave and reinstatement. See 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. § 2611C4)(a); N.J. Stat. Ann. §34:llB -3f.



15

In view of our conclusions, we will affirm the judgment of 
the district court entered August 6, 1996.



16

McKEE, Circuit Judge, dissenting.
I agree that Deborah Rhett’s claim of racial 

discrimination was properly dismissed. However, I 
respectfully dissent because I believe that the district court 
erred in affirming the bankruptcy court’s dismissal of 
Rhett’s claim of sex discrimination. The bankruptcy court 
concluded that “the uncontradicted testimony of the debtor 
establishes that the debtor had to let someone in the 
secretarial group go and the fact that Rhett was not 
working for the company at the time made it logical that 
she be the one.” Bankr CL Op. a t 15 (1996). I believe that 
the issue is not whether the employer had a logical reason 
for choosing Rhett (It clearly did.), but whether doing so 
when her absence was due solely to her pregnancy was 
illegal sex discrimination under Title VII of file Civil Rights 
Act of 1964 (“Titie VH”), 42 U.S.C. §2000e-2(a). I fear that 
the majority’s failure to hold that it did constitute sex 
discrimination will eviscerate the protections Congress 
intended when it enacted the Pregnancy Discrimination Act 
of 1978 (“PDA”), 42 U.S.C. §2000e(k), as an amendment to 
Title VII.

I. BACKGROUND OF THE PREGNANCY 
DISCRIMINATION ACT

Title VII makes it an unlawful employment practice for an 
employer

to discriminate against any individual with respect to 
his compensation, terms, conditions, or privileges of 
employment, because of such individual’s . . . sex

§2000e-2(a)(l). Congress created the Equal Employment 
Opportunity Commission (“EEOC”) to implement Title VII 
and the EEOC developed guidelines through which 
employers and employees could better understand the 
protections afforded under Title VII. Those guidelines 
“implemented the Title VII prohibition of sex
discrimination”, H.R. Rep. No. 95-948, at 2 (1978), 
reprinted in 1978 U.S.C.C.A.N. 4749, 4752, and they 
expressly extend the protection of Title VII to conditions 
caused by pregnancy.



17

Disabilities caused or contributed to by pregnancy, 
childbirth, or related medical conditions, for all Job- 
related purposes, shall be treated the same as 
disabilities caused or contributed to by other medical 
conditions . . . .  Written or unwritten employment 
policies and practices involving matters such as the 
commencement and duration of leave, the availability 
of extensions, the accrual of seniority and other 
benefits and privileges, reinstatement, and payment 
under any health or disability insurance or sick leave 
plan, formal or Informal, shall be applied to disability 
due to pregnancy, childbirth or related medical 
conditions on the same terms and conditions as they 
are applied to other disabilities . . . .

29 C.F.R. § 1604.10(b). The guidelines also contain an 
interpretive question and answer section in which the 
following exchange is made:

Q: Must an employer hold open the job of an
employee who is absent on leave because she is 
temporarily disabled by pregnancy-related conditions?
A: Unless the employee on leave has informed the 
employer that she does not intend to return to work, 
her job must be held open for her return on the same 
basis as jobs are held open for employees on sick or 
disability leave for other reasons.

29 C.F.R. pt. 1604, app. Question 9. The majority 
concludes that this means that Carnegie Center Associates 
(“Carnegie”) can terminate Rhett for her absence, even 
though it is caused by pregnancy, so long as Carnegie 
would have terminated an absent employee who was not 
pregnant. See Maj. Op. at 7-8.

However, the circumstances leading to Title VU’s current 
proscriptions against sex discrimination undermine the 
majority’s analysis. Title VII, as originally enacted, did not 
explicitly define sex discrimination to include disparate 
treatment based upon, or related to, pregnancy. As a result, 
some courts adopted a narrow view of the extent to which 
Title VU’s proscription against sexual discrimination 
included disparate treatment based upon pregnancy and 
related conditions. In General Electric v. Gilbert 429 U.S.



18

125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme 
Court held that an insurance plan that excluded coverage 
for pregnancy-related disabilities did not constitute illegal 
gender-based discrimination. There, an employer’s 
disability plan provided coverage for nonoccupational 
sickness and accidents, but excluded coverage for 
pregnancy and pregnancy-related disabilities. The plan did, 
though, include coverage for nonoccupational disabilities 
and medical procedures common to men, e.g. 
prostatectomies, vasectomies and circumcisions. Gilbert, 
429 U.S. at 145-46. A group of employees sued under Title 
VII, alleging that the insurance plan was illegal sexual 
discrimination because it excluded a class of disabilities 
unique to women. The district court held that the plan did 
constitute illegal sex discrimination in violation of Title VII 
and the Court of Appeals for the Fourth Circuit affirmed. 
However, prior to the decision of the court of appeals, but 
subsequent to the decision of the district court, the 
Supreme Court decided Geduldig v. Aiello, 417 U.S. 484 94 
S.Ct. 2485, 41 L.Ed.2d 256 (1974).

In Geduldig, the Supreme Court upheld the validity of a 
nearly identical insurance policy against an attack under 
the Equal Protection Clause of the Fourteenth Amendment. 
The Court in Geduldig reasoned that the challenged policy 
was simply a business decision as to which risks an 
employer would insure. “The program divides potential 
recipients into two groups pregnant women and 
nonpregnant persons. While the first group is exclusively 
female, the second includes members of both sexes.” 
Geduldig, 417 U.S. at 496-97 n. 20. The Court in Gilbert 
upheld the challenged disability plan based upon Its earlier 
holding in Geduldig. The Court reasoned that, even though 
Geduldig was based upon an equal protection argument, 
and Gilbert was brought under Title VII, the logic of 
Geduldig still applied. Accordingly, the Court held that 
since there was no risk from which women were protected 
and men were not and no risk from which men were 
protected that women were not, the exclusion of pregnancy- 
related disabilities did not invalidate the Gilbert policy 
under Title VII. The majority minimized the relevance of the 
EEOC guidelines when considering what Congress Intended 
under Title VII.



19

Justice Brennan dissented, arguing that the Court’s 
analysis was “simplistic and misleading” because the plan 
included procedures that were specific to men while 
excluding pregnancy-related procedures that were unique 
to women. 429 U.S. at 252 (Brennan, J., dissenting). He 
noted that “pregnancy affords the only disability, sex- 
specific, or otherwise, that is excluded from coverage.” Id  
Accordingly, he did not think that the classification could 
be saved from a finding of Illegal discrimination under Title 
VII merely because it was a “facially neutral classification.” 
Id. at 154. He concluded that the Court erred in accepting 
the employer’s explanation that the plan merely excluded 
certain risks from coverage in a nondiscriminatory way. 
“[T]he demonstration of purposeful discrimination is not the 
only ground for recovery under Title VII. . . .  [A] prima facie 
violation of Title VII . . . also is established by
demonstrating that a facially neutral classification has the 
effect of discriminating against members of a defined class.” 
Id. at 153-54.

According to Justice Brennan, “the determinative 
question must be whether the social policies and aims to be 
furthered by Title VII and filtered through the phrase ‘to 
discriminate’ contained in § 703(a)(1) fairly forbid an 
ultimate pattern of coverage that Insures all risks except a 
commonplace one that is applicable to women but not to 
men.” Id. at 154. He noted that the Court had previously 
recognized that “discrimination is a social phenomenon 
encased in a social context and therefore, unavoidably takes 
its meaning from the desired end products o f the relevant 
legislative enactment, end products that may demand due 
consideration to the uniqueness of ‘disadvantaged’ 
individuals.” Id. at 159. (discussing Lau v. Nichols, 414 U.S. 
563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974)) (emphasis added). 
Justice Brennan concluded that the EEOC guidelines were 
“reasonable responses to the uniform testimony of 
governmental investigations which show that pregnancy 
exclusions built Into disability programs both financially 
burden women workers and act to break down the 
continuity of the employment relationship, thereby 
exacerbating women’s comparatively transient role in the 
labor force.” Id  at 158. Justice Brennan believed that the 
EEOC guidelines, “[ijn dictating pregnancy coverage under



20

Title VII,” had “merely settled upon a solution now accepted 
by every other Western industrial country.” Id. (citing Dept, 
of Health, Education, and Welfare, Social Security Programs 
Throughout the World, (Research Project No. 40) pp. ix, xviii, 
xix (1971).1 Congress reacted to Gilbert by enacting the 
Pregnancy Discrimination Act. See Newport News 
Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 678, 
103 S.Ct. 2622, 2628, 77 L.Ed.2d 89 (1983). That act 
amended the “Definitions” section of Title VII in part as 
follows:

The terms ‘because of sex’ or ‘on the basis of sex’ 
include, but are not limited to, because of or on the 
basis of pregnancy, childbirth, or related medical 
conditions: and women affected by pregnancy,
childbirth, or related medical conditions shall be 
treated the same for all employment-related purposes 
. . .  as other persons not so affected but similar in their 
ability or inability to work . . . .

42 U.S.C. §2000e(k).
When Congress amended Title VII in 1978, it 
unambiguously expressed its disapproval of both the 
holding and the reasoning of the Court in the Gilbert 
decision . . . .  The House Report stated, ‘It is the 
Committee’s view that the dissenting Justices correctly 
interpreted the Act.’ Similarly, the Senate Report 
quoted passages from the two dissenting opinions, 
stating that they ‘correctly express both the principle 
and the meaning of Title VII.’

Newport News, 462 U.S. at 678. (citing H.R. Rep. No. 95- 
948 and S. Rep. No. 95-331, at 2-3 (1977)).

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

The majority sums up its position as follows: “[t]he PDA 
merely requires that an employer treat a pregnant woman

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 same as any other temporarily disabled employee. In 
this regard we point out that it is not unlawful under the 
Americans with Disabilities Act for an employer when 
reducing its force to discharge an employee away from work 
by reason of a temporary disability.” Maj. Op. at 11. Thus, 

i the majority equates pregnancy-related disability with
temporary disabilities under the ADA, and that analogy 

J . drives the majority’s analysis.
I do not think that Rhett’s claim can be decided by 

simply stating that the PDA requires her to be treated the 
same as any other employee and reasoning that her 
position can be terminated because an absent nonpregnant 
employee could have his or her position terminated under 
the facts of this case. Although the case law and EEOC 
guidelines refer to Title VII's requirement that pregnant 
employees be treated the same as other employees, those 
cases usually involve determining whether employee 
benefits or insurance policies discriminate by excluding 
pregnant employees or affording them less protection than 
afforded nonpregnant employees. That was the issue in 
Gilbert and Newport News. For example, in Gilbert, Justice 
Brennan stated in his dissent: “A realistic understanding of 
conditions found in today’s labor environment warrants 
taking pregnancy into account in fashioning disability 
policies . . . .  Contemporary disability programs are not 
creatures of a social or cultural vacuum devoid of 
stereotypes and signals concerning the pregnant woman 
employee.” 429 U.S. at 160. The Court struck down the 

« challenged health insurance policies in Newport News
I because they were the “mirror image of the plan at issue in
■ Gilbert” Newport News, 462 U.S. at 685. See also Arizona

Governing Committee for Tax Deferred Annuity and Deferred 
Compensation Plans v. Norris, 463 U.S. 1073, 1074, 103 
S.Ct. 3492, 3494, 77 L.Ed.2d 1236 (1983) (An employer 
who offers “its employees the option of receiving retirement 
benefits from one of several companies selected by the 
employer, all of which pay a woman lower monthly 
retirement benefits than a man who has made the same 
contributions,” violates Title VII.).

Thus, in the health Insurance and employee benefits 
context it is now clear that pregnancy-related conditions



22

must be treated the same as conditions that are not 
pregnancy-related. However. a simple example 
demonstrates the danger of carrying that basic premisTfoo 
far beyond the insurance or benefits context.

Historically, employers have been reluctant to hire 
women or have afforded women different conditions of 
employment because of a generalized belief that a female 
employee would likely leave her job to raise a family 
Accordingly, there was a reluctance to devote resources to 
train or to teach them a job related skill.

I doubt that an employer is precluded from refusing to
tm HeTemP ?yCe because of a reasonable belief that the potential employee will leave shortly after he is hired

? ™ eVer' 1 few would argue that the same employer
l  h rC 3 female J°b aPPkcant out of a concern

m at she would soon become pregnant and leave her fob to 
raise a family. Similarly, absent a contract provision to the 
contrary, an employer could terminate a male employee

h T eekS,0f W°rk durin§ his first year on die J'°b |n ™lation of a policy prohibiting more than one week
oi sick leave during the employee’s first year on the iob 2 
However, I think it clear that the PDA would prohibit that 
same employer from terminating a female employee who 
missed the same two weeks because of pregnancv or a 
pregnancy-related condition. Those two employees can not 
bf  treated the same because Congress has alreadv 
differentiated their situations by enacting the PDA. One can 
not avoid a claim of discrimination by treating persons who 
are not similarly situated the same. Yet, this is what the 
majority s analysis does. The majority’s reasoning would 
allow an employer to terminate a female employee because 
she missed a crucial meeting with an important client if a 
male^ fmPloyee would be terminated, even if the female 
missed the meeting because she was in labor delivering a
Aifbmmh uSUfferingf u ° ?  a Pregnancy-related condition. Although it may not be fair to terminate the male, it would

2 .As I discuss below, if the employees condition was “temporary" he
ould not be covered by the Americans with Disabilities Act and could

™ j CT ^ ate a,bSCnt 3 contract that Prevented such an action on the part of the employer.



23

not be illegal. It is illegal to terminate the female because of 
the PDA. Cf. California Savings and Loan v. Guerra, 479 
U.S. 272, 292 n.42, 107 S.Ct. 683, 695, 93 L.Ed.2d 613 
(1987) (“[W]e conclude that in enacting the PDA Congress 
did not intend to prohibit all favorable treatment of 
pregnancy . . . . " ) .

The majority notes that pregnancy is a temporary 
condition that gives rise to a temporary disability. It argues 
that since the PDA bars discrimination based upon 
pregnancy, it merely requires that pregnant employees be 
treated the same as all other temporarily disabled 
employees, thereby limiting the comparison group for 
pregnant employees to nonpregnant employees who have 
suffered a temporary disability. The majority concludes 
that, despite her temporary disability due to pregnancy, 
Rhett can be terminated unless Carnegie would not 
terminate a male employee who was similarly “temporarily” 
disabled. See Maj. Op. at 11. That analysis rests upon 
equating a protected, but temporary, condition (pregnancy) 
with a temporary unprotected disability under the ADA. The 
ADA does not shield a non-pregnant employee from 
termination because temporary disabilities are excluded 
from the ADA. Regulations that were promulgated pursuant 
to the ADA define disability as:

(1) A physical or mental impairment that substantially 
limits one or more of the major life activities of such 
individual; (2) a record of such an impairment; or (3) 
being regarded as having such an impairment.

29 C.F.R. § 1630.2(g). “Substantially limits” is defined to 
mean:

(i) Unable to perform a major life activity that the 
average person in the general population can perform; 
or
(ii) Significantly restricted as to the condition, manner, 
or duration under which an individual can perform a 
particular major life activity as compared to the 
condition, manner, or duration under which the 
average person in the general population can perform 
that same major life activity.



24

§ 1630.2(j)(l). Several factors have been identified to assist 
in determining whether a particular “disability” is of such 
severity as to come within the protection intended under 
the ADA. These factors include:

(i) The nature and severity of the impairment:
(ii) The duration or expected duration of the 
impairment: and
(iii) The permanent or long term impact, or the 
expected permanent or long term impact of or resulting 
from the impairment.

a 2 - disabilities” that are temporary do not, by
definition, rise to the level of substantially limiting a major 
life function. See Rogers v. International Marine Terminals
conrim7 Ff u J 55' 758 <5th Cir- 1996) (“fflemporary conditions that are not chronic usually do not rise to
the level of a ‘disability.’”) and (Taylor u. Dover Elevator 
Systems, Inc., 917 F.Supp. 455, 461 (N.D. Miss. 1996) 
( [Tjemporaiy injuries with no permanent effects are 
ordinarily not considered disabilities under the ADA ”) 
(citing Evans v. City of Dallas, 861 F.2d 846, 852-53 (5th 
5?ir- 1988): Rakestraw v. Carpenter Co., 898 F.Supp. 386, 
390 (N.D. Miss. 1995); Oswalt v. Sara Lee Corn., 889 
F.Supp. 253, 257 (N.D. Miss. 1995), a f f ’d, 74 F 3d 91 f5th 
Cir. 1996)). 1 lotn

However, just as temporary disabilities are excluded from 
the protections of the ADA by definition, temporary 
pregnancy-related conditions are explicitly covered by Title 
VII s prohibition against sex discrimination under the PDA. 
Accordingly, the protection afforded pregnancy-related 
conditions can not be equated with that afforded temporary 
disabilities merely because pregnancy is temporary. To do
s° " nder âcts ^ is case ls contrary to the mandate 
ol the statute, effectively amends the PDA and forces Rhett 
to rely upon the ADA which provides no protection for
pregnancy related conditions because of their temDorarv 
nature. y y

The majority relies on Rogers and Sanders v. Ameson 
Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) cert 
denied, 117 S.Ct. 1247, 137 L.Ed.2d 329 (1997), to



25

substantiate its claim that the temporarily disabled 
employee resides outside of statutoiy protection—regardless 
of whether the temporary disability is due to pregnancy. 
See Maj. Op. at 11. In Rogers, an employee (“Rogers”) sued 
under the ADA when he was laid off pursuant to a 
reduction in force (“RIF”). Rogers had been absent because 
of health problems related to an ankle surgery. The court 
held that Rogers was not protected by the ADA because he 
was not “disabled” within the meaning of the statute. 
“In sum, Rogers’ ankle afflictions were temporary and 
did not constitute a permanent disability . . . .  The EEOC 
regulations concur, that ‘temporary, non-chronic 
impairments of short duration, with little or no long term or 
permanent impact, are usually not disabilities.’ ” 87 F.3d at 
759 (quoting 29 C.F.R. § 1630.20) (Appendix)). However, the 
fact that they are not “disabilities” under the ADA does not 
mean that they are not protected under the PDA, if they are 
pregnancy-related.

Similarly, in Sanders, employee Sidney Sanders 
(“Sanders”) was terminated while on leave for a cancer- 
related psychological disorder. While he was away other 
employees assumed his responsibilities and employer 
Anreson Products decided to replace Sanders rather than 
allow him to return at the end of his sick leave. Although 
Sanders suffered from cancer, he conceded that his 
absence was related only to his psychological disorder that 
was temporary. Accordingly, the court framed the issue 
before it as “whether Sanders’ temporary psychological 
impairment qualifies as a disability under the ADA.” Id. at 
1353. The court held that it did not because that 
impairment did not “substantially limit” a major life 
function. Id.

If Congress intended to equate pregnancy with a 
temporary disability under the ADA, it afforded pregnant 
women precious little protection when it enacted the PDA. 
Pregnancy is by its nature temporary. Holding that it is 
therefore the equivalent of a “temporary disability” is hardly 
consistent with “the social policies and aims to be furthered 
by Title VII and filtered through the phrase ‘to discriminate’ 
contained in (that Actl” Gilbert, 429 U.S. at 155 (Brennan, 
J., dissenting). Accordingly, we can only give effect to the



26

intent behind this statute by viewing the term “temporarily 
disabled” as it applies to pregnancy as referring to the 
duration of the disability, not to the quality of it.

The majority also relies upon Troupe v. May Dept Stores 
Co., 20 F.3d 734, 738 (7th Cir. 1994). However, I am not 
persuaded by the reasoning of Troupe and believe that we 
should be guided instead by Smith v. F.W. Morse & Co 
Inc., 76 F.3d 413 (1st Cir. 1996).

III. TROUPE v. MAY DEP’T STORES CO.
In Troupe, pregnant employee Kimberly Hem Troupe was 

fired from a Lord & Taylor department store for tardiness 
due to pregnancy. Troupe sued her employer. May 
Department Stores (doing business as Lord & Taylor), 
alleging illegal sex discrimination under Title VII. The 
district court granted Lord & Taylor’s motion for summary 
judgment and Troupe appealed. On appeal, the Court of 
Appeals for the Seventh Circuit affirmed, noting that “[t]he 
great, the undeniable fact is the plaintiff’s tardiness.” Id. at 
737. The court analogized the plaintiff’s plight to that of a 
hypothetical Black employee who is fired after a kidney 
transplant because the employer either wants to avoid 
paying the employee while on sick leave or doubts that the 
employee will return. The court reasoned that, in firing the 
Black employee, the employer may be breaking a contract, 
but it would not be violating Title VU’s protections against 
racial discrimination as long as the employer would also 
fire a similarly situated White employee.3 Id. at 738. The 
failure of the Troupe analogy, however, is that absence from 
work is not endemic to a protected racial trait. Absence is,

3. The Seventh Circuit notes that “[e]mployers 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 D ist 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, endemic to “pregnancy, childbirth, or related 
medical conditions.” §2000e(k). 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.

As noted above, employers have assumed that female 
employees may become pregnant and that pregnancy would 
make them unavailable for work. See Gilbert, 429 U.S. at 
150 n .l (Brennan, J., dissenting) (“General Electric’s 
disability program was developed in an earlier era when 
women openly were presumed to play only a minor and 
temporary role in the labor force. As originally conceived in 
1926, General Electric offered no benefit plan to its female 
employees because ‘women did not recognize the 
responsibilities in life, for they were probably hoping to get 
married soon and leave the company.’ ”) (quoting D. Loth, 
Swope, G.E.: Story o f Gerard Swope and General Electric in 
American Business (1958)). Yet, here the majority finds that 
“(i]t is not a violation of the PDA for an employer to consider 
an employee’s absence on maternity leave in making an 
adverse employment decision if it also would have 
considered the absence of an employee on a different type 
of disability leave in the same way.” Maj. Op. at 14. This is 
a simplistic interpretation of the PDA and the EEOC 
guidelines. In a different Title VII context, the Supreme 
Court noted that interpreting the prohibitions of Title VII to 
only prohibit overt intentional discrimination would leave 
employers free to enact facially neutral policies based on 
factors that were a proxy for race and thereby circumvent 
Title VIPs protection. See Griggs v. Duke Power, 401 U.S 
424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d (1971). The 
approach taken in Troupe, under the PDA, and adopted by 
the majority here, suffers from the same infirmity.

It is jurisprudential sleight of hand to suggest that the 
PDA does not require that pregnant women be treated 
better than their male counterpart. That is a misleading 
statement of the issue. Thus, the court in Troupe misses 
the analytical mark when it states that “(e]mployers can 
treat pregnant women as badly as they treat similarly



28

affected but nonpregnant employees,” 20 F3d at 738, 
unless it defines “similarly affected” employees as other 
employees having a protected trait that is endemic to the 
behavior at issue. However, Troupe fails to do so and 
assumes that the pregnant employee is the “equal” of her 
nonpregnant coworker. Similarly, the majority erroneously 
concludes that “the PDA does not require that employers 
treat pregnant employees better than other temporarily 
disabled employees.” See Maj. Op. at 8

Relying upon Hazen Paper Company v. Biqqins, 507 U S 
604, 113 S.Ct. 1701. 123 L.Ed.2dP338 (1993)! the majority 
states that “[t]he Supreme Court has held that under the 
Age Discrimination in Employment Act an employer must 
ignore an employee’s age in certain employment decisions, 
but not any other characteristics such as pension expense ” 
Maj. Op. at 8. However, I believe that Hazen Paper requires 
that we reject Troupe. In Hazen Paper, a 62 year old 
employee sued his employer, alleging that he had been 
terminated based upon age discrimination, in violation of 
the Age Discrimination in Employment Act (“ADEA”), 26 
U.S.C. §626, and the Employment Retirement Income 
Security Act (“ERISA”), 29 U.S.C. § 1140. A jury found for 
the employee on both claims, and the employee appealed 
The Court of Appeals for the First Circuit affirmed, relying 
heavily on evidence that the plaintiff had been fired in order 
to prevent his pension from vesting. The court determined 
that the juiy could have concluded that “age was 
inextricably intertwined with the decision to fire [the 
plaintiff). If it were not for [his] age . . . his pension rights 
would not have been within a hairbreadth of vesting ” 953 
F.2d 1405, 1412 (1st Cir. 1992), and he would not have 
been fired. The Supreme Court reversed as to the ADEA 
claim. The court reasoned that firing an older employee to 
prevent pension benefits from vesting based on years of 
service does not amount to “willful” age discrimination 
under the ADEA. 507 U.S. at 608. The Court stated, “[W]e 
now clarify that there is no disparate treatment under the 
ADEA when the factor motivating the employer is some 
feature other than the employee’s age.” Id. at 609. The case 
before it was a disparate treatment case and the Court 
concluded that “a disparate treatment claim cannot 
succeed unless the employee’s protected trait actually



29

played a role In that process and had a determinative 
Intiuence on the outcome.” IcL at 611.

Disparate treatment, thus defined, captures the 
f^ence  of what Congress sought to prohibit in the 
ADEA. It is the veiy essence of age discrimination for 
an older employee to be fired because the employer 
believes that productivity and competence decline with 
old age. . . .

Thus the ADEA commands that ‘employers are to 
evaluate [older] employees . . .  on their merits and not 
their age.’ The employer cannot rely on age as a proxy 
for an employee’s remaining characteristics, such as 
productivity, but must instead focus on those factors 
directly.

When the employer’s decision is wholly motivated by 
factors other than age, the problem of inaccurate and 
stigmatizing stereotypes disappears. This is true even if 
the motivating factor is correlated with age, as pension 
status typically is . . .  . Because age and years of 
service are analytically distinct, an employer can take 
account of one while ignoring the other, and thus it is 
incorrect to say that a decision based on years of 
service Is necessarily ‘age based.’

507 U.S. at 610-611.
Pregnancy and absence are not, however, analytically 

distinct, and an employer can not punish for the absence 
occasioned by pregnancy under Tide VII. As noted above, 
that statute states that it is an unlawful employment 
practice to “discharge any individual . . .  or otherwise 
discriminate . . . because . . .  of sex,” 42 U.S.C. §2000e- 
2(a)(1), and, after the PDA, that includes discrimination “on 
the basis of pregnancy . . .  or related medical conditions.” 
42 U.S.C. § 2000e(k). That protection is meaningless unless 
it is intended to extend to the “temporaiy” absence from 
employment that is unavoidable in most pregnancies. Thus, 
the absence endemic to pregnancy, unlike factors that may 
sometimes be a proxy for age, has to be protected under the 
facts of this case. In Hazen Paper, it was the employee’s 
years of service, not his age, that occasioned the vesting of 
his pension. The Court was very careful to note that



30

[W]e do not consider the special case where an 
employee is about to vest . . .  as a result of his age 
rather than years of service, and the employer fires the 
employee in order to prevent vesting. That case is not 
presented here. Our holding is simply that an employer 
does not violate the ADEA just by interfering with an 
older employee’s pension benefits that would have 
vested by virtue of years of service.

507 U.S. at 613. I believe that Rhett’s situation under the 
PDA is much closer to the situation of an employee whose 
pensi°£ .is nesting because of age than to the plight of the 
plaintiff m Hazen Paper. Accordingly, the holding in Hazen 
Paper does not assist the majority nearly as much as first 
appears.

“[I]n using the broad phrase ‘women affected bv 
rar™?anC^’ cppdbirth and related medical conditions,’ the 
[ DA] makes clear that its protection extends to the whole 
range matters concerning the childbearing process " H R  
Rep. 95-948 (emphasis added). The holding in Troupe, and 
the majority's holding here, remove a substantial portion of 
the protection Congress intended. Troupe’s position was 
terminated because of conditions related to pregnancy 
(tardiness occasioned by her morning sickness). I do not 
understand therefore, why she was not terminated 
~  of * • • her Pregnancy,” §2000e(k), in violation of

I believe that we should reject the holding in Troupe, and

4 .1 do not mean to suggest by this that the PDA requires an employer 
to necessarily take affirmative steps to make It easier for a pregnant 
employee to work. See Troupe. 20 F.3d at 738 (“The Pregnancy 
Discrimination Act does not . . . require employers to . . . take . . steps 
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 eveiyone with a certain salary grade 
based upon its business judgment. Rhett could be terminated if she was 
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.



31

adopt instead the analysis set forth in Smith, 76 F.3d 413. 
There, a female employee (“Smith”) worked for a small 
company that was undergoing restructuring. She informed 
the owner of the company that she was pregnant and would 
be taking maternity leave. Although the company had no 
maternity leave policy, Smith was assured that her job was 
secure and the company would simply divide her duties 
amongst its remaining employees in her absence. The 
company made this commitment even though it expected 
her absence to cause “the sky to fall.” Id. at 418. The 
company also held regular “reality check” meetings in the 
hope that they could minimize the impact of the absence of 
such a key employee. However, to the company’s great 
surprise the sky did not fall. In fact, “the plant functioned 
very well,” id. at 419, in Smith’s absence. Soon after Smith 
gave birth, she informed the general manager, Maryann 
Guimond, that she wished to return to work a week earlier 
than planned. At that time, Guimond made inquiries of 
Smith and Smith’s sister (who also worked for the 
company) regarding Smith’s plans to have children in the 
future. Days later, Guimond determined that Smith’s 
position was superfluous and eliminated it. Smith’s duties 
were then given to another employee who had been 
functioning as the operations manager.

Smith sued, alleging, among other things, violation of 
Title VII. The Title VII claim was decided in a bench trial in 
the district court, and that court entered judgment for the 
employer as a matter of law. Smith appealed, and the Court 
of Appeals for the First Circuit affirmed. Smith argued that 
the company had violated Title VII because her absence on 
pregnancy leave afforded the company the opportunity to 
learn that it could afford to eliminate her position. The 
court disagreed because it concluded that the employer 
would have eliminated the position regardless of Smith’s 
pregnancy, and agreed with the employer’s argument that 
“even if Smith had not been on maternity leave she would 
have been flattened by the downsizing steamroller.” Id. at 
419. The court reasoned that

[T)here is little doubt that an employer, consistent with 
its business judgment, may eliminate positions during 
the course of a downsizing without violating Title VII



32

even though these positions are held by members of 
proteeted groups (pregnant women included)” (citing

Greai  InS: Co’ 6 R3d 836- 844-45 (1st Ur. 1993), cert denied, 511 U.S. 1018, 114 S Pt
1398, 128 L.Ed.2d 72 (1994); Goldman v. First Nat’l 
Ban/c, 985 F.2d 1113, 1118-19 (1st Cir. 1993)-
Montana v. First Fed. Sav. & LoanAss'n, 869 F.2d 100 
105, 107 (2d Cir. 1989); Dister v. Continental Group 
Inc-, 859 F.2d 1108-1115 (2d Cir. 1988); PearlsteiriT .’
fF n ^ v ^ Q Q ^ ’’ H°Sp-; 886 F'SuPP- 260. 268-69 (E.D.N.Y. 1995)) . . . .  [T]he flip side of the coin 
however, is that an 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 bv a 
discriminatory animus. J

Id. at 422 (citing Goldman, 985 F.2d at 1118 n.4; Maresco 
v. Evans Chemeti.es, 964 F.2d 106. I l l  (2d Cir 1992)- 
Mesnick, 950 F.2d at 825; Pearlstein, 886 F.Supp. at 268 
69.) The court held that the “employer may discharge an 
employee while she is on a pregnancy-induced leave so long 
aS does so f°r legitimate reasons unrelated to her 
gravidity. Id. at 424. Smith’s employer had selected her 
merely because it realized that her position was not nearly 
f® Ya!Uable as ber supervisors previously believed. The fact 
that her absence on maternity leave afforded the emplover 
an opportunity to learn ju st -how expendable her position 
was did not mean that she was terminated “because of her 
pregnancy.”

However, and most significantly for purposes of our 
analysis, the court also stated:

Title VII mandates that an employer must put an 
employee’s pregnancy (including her departure on 
maternity leave) to one side in making its employment 
decisions but the statute does not command that an 
employer buiy its head in the sand and struthiously 
retrain from implementing business judgments simply 
because they affect a parturient employee.



33 i

i

Id. at 424 (citing Troupe, 20 F.3d at 738) (emphasis added).
The court added that “(a]t bottom. Title VII requires a 
causal nexus between the employer’s state of mind and the 
protected trait (here, pregnancy).” Id. at 425. In Smith, the 
nexus did not exist because the decision to eliminate the 
employee’s job was based upon the importance (or lack 
thereof) of the job. Here, however, the decision to eliminate 
Rhetts job was based solely upon her pregnancy related 
absence. That causal nexis runs afoul of Title VU’s 
prohibition of sex discrimination.

Carnegie clearly did not put Rhett’s departure on 
maternity leave to one side when deciding to terminate her.
Rhett’s absence from work was so inextricably intertwined 
with pregnancy, her protected trait, as to make the two 
inseparable. In its “theory of transitivity,” the majority 
separates the events in this case into discrete entities that 
suggest the causal relationship between Rhett’s pregnancy 
and her termination. The majority too easily rejects this 
position. See Maj. Op. at 8 (“This view eliminates Rhett’s 
theory of transitivity, that if A (termination) is caused by B 
(absence) which is caused by C (pregnancy), then C causes 
A.”).

IV. TERMINATION BECAUSE OF PREGNANCY
An employer can not insulate itself from the reach of Title 

VII by an action that appears neutral, yet has the 
functional effect of disparately treating an individual based 
upon a protected trait. See Griggs, 401 U.S. at 430. 
Carnegie’s action is the functional equivalent of terminating 
Rhett because she was pregnant. 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 against his employer alleging that his 
discharge for excessive absenteeism was in violation of 
§504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, 
because his absences had been caused by that disease! 
Summary judgment was entered in favor of the employer 
because the district court concluded that there was no 
issue of material fact as to whether Teahan “was terminated 
‘solely by reason of’ his handicap.” Id. at 514. The district



34

court concluded that the employer “had not relied on 
Teahans handicap . . . [and had] a nondiscriminatory 
reason for firing him (excessive absenteeism).” Id Teahan 
appealed.

On appeal, Teahan argued that “because the ground 
upon which he was terminated was his excessive 
absenteeism, and since his absenteeism was ‘caused by’ his
Ŝ oStf \ Cue f bu*e Problem- the district court improperly 
fhhhsd the burden to him to present evidence of pretext ” 
M. The Court of Appeals for the Second Circuit agreed 
stating that “it does not inevitably follow that termination 
for conduct resulting from a handicap is not termination 
solely by reason of’ that handicap.”5 Id. at 515. Indeed, “an 
employer ‘relies’ on a handicap when it justifies’ [its 
employment decision] based on conduct caused bv that 
handicap.”6 Id. Because the district court erred in 
concluding that Teahan had not established that he was 
hred solely by reason of his handicap,” his employer never 
had to satisfy its burden of “demonstrating that [Teahan’s 
handicap] was relevant to the job qualifications.” Id. at 515. 
Accordingly the court remanded the case for further 
proceedings. Similarly, in Cushing v. Moore, 970 F.2d

5. The “solely by reason of" inquiry, the court explained, is “designed to 
weed out [] claims where an employer can point to conduct or 
circumstances that are causally unrelated to the plaintiff ’s handicap." 
fd. at 516 (emphasis added). In the context of the PDA, the analogue is 
- e because of or on the basis of pregnancy" inquiry.

. 1116 cou*  accepted that the plaintiff’s excessive absences were 
caused by his alcoholism because its review on appeal required that it 

examine all facts in the light most favorable to Teahan. The court 
recognized, 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 the 
essential functions of the job.” Id. The employer bears that burden:
[Ajfter 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.' Id. at 
515.
7. Other courts of appeals have refused to adopt Teahan's rationale See 

•• William v. WidnaU, 79 F.3d 1003 (10th Cir. 1996): Maddox v.



35

1103, 1108 (2nd Cir. 1992), the court stated 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)” (citing Teahan, 
951 F.2d at 517; Hogarth v. Thornburgh, 833 F.Supp. 1077, 
1085 (S.D.N.Y. 1993) (“[I]f a handicap manifests itself in 
certain behavior, and an employee is discharged because of 
that behavior, he has been terminated ‘solely by reason of’ 
the handicap.”); and Ambrosino v. Metropolitan Life Irtsur. 
Co., 899 F.Supp. 438, 444 (N.D.Cal. 1995) (The court chose 
to follow the line of cases holding that “termination based 
on conduct caused by chemical dependency and status 
which results from the dependency and/or the conduct 
caused by the dependency is termination based on the 
disability of chemical dependency.”). However, that 
consideration is not present here, and I believe that this 
matter should be remanded for a determination of whether 
Rhett would have been selected for termination based upon 
factors other than her absence. Although it is for the 
employer, and not a court, to determine how best to select 
those positions that will be eliminated in a reduction in 
force, Title VII requires this employer to adopt criteria that 
put Rhett’s pregnancy-related absence aside and allow for 
an individualized determination driven by her own 
capabilities.

University o f  Tennessee, 62 F.3d 843 (6th Cir. 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 
conduct involved, these courts were unwilling to “adopt an interpretation 
of the [Rehabilitation Act] which would require an employer to accept 
egregious behavior by [a disabled employee] when that same behavior, 
exhibited by a nondisabled employee, would require termination.’ 
Williams, 79 F.3d at 1007. Thus, “[a]t 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). Rhett’s case does not implicate the 
concerns of those courts that have rejected Teahan.



36

V. CONCLUSION
For the reasons stated above, I would reverse the 

decision of the district court and remand this matter to the 
bank rup ts court for a determination of whether Rhett 
would have been terminated had her pregnancy-related 
absence been put aside.

A True Copy: 
Teste:

Clerk o f the United States Court o f Appeals 
for the Third Circuit