This is an appeal of a pregnancy discrimination case. Durham was an Alabama Emergency Medical Technician (EMT) with Rural/Metro Corporation until the company refused to accommodate her need for a temporary modified duty assignment during pregnancy, despite maintaining a policy and practice of providing for such assignments to EMTs injured on the job.

The district court granted summary judgment to the defendant in an especially poorly-reasoned opinion that misconstrues the standard for such claims announced by the Supreme Court in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015), and relies almost exclusively on pre-Young precedent.

EMTs provided both emergency and non-emergency care; frequently they were required to lift up to 20 pounds and occasionally lift up to 100 pounds. Durham learned in September 2015 that she was pregnant and her doctor imposed a 50-pound lifting restriction. Durham informed her manager of the restriction and asked for a temporary reassignment to a “light duty” position. Her manager stated that the company reserved such positions for EMTs injured on the job, and that her only option was to take unpaid leave. Over the next two months, Durham appealed without success to the company’s HR department, but still only was provided the option of taking an unpaid leave of absence. (Durham had not been employed long enough to qualify for FMLA leave, and in any event, such leave not only would be unpaid but also would expire prior to her due date.) In early November 2015, Durham’s attorney informed the company that Durham considered the company’s offer to amount to a constructive discharge, and she stopped reporting to work.

In its summary judgment filings, the company claimed that while it did maintain a “Transitional Work Program” for workers injured on the job, the company also would provide accommodations, where possible, for those with non-work-related impairments. It represented to the court that no positions existed that would have accommodated Durham’s lifting restriction. Notwithstanding the fact that at the time of her pregnancy, Durham saw several postings on Rural/Metro’s job board for the position of dispatcher – a job that she was qualified to perform – Crowell admitted during discovery that for employees injured on the job, the company would simply “find them . . . work to do.”

During discovery, it was revealed that virtually no documents existed relating to Durham’s employment, including the company’s reasons for denying her accommodation requests. It could not answer interrogatories that sought this information. Nor did company witnesses provide meaningful testimony about the company’s Transitional Work Program, including employees who had benefited from it, or about employees who had non-work-related medical conditions and may have been offered modified duties. Ms. Durham, however, identified at least three individuals with lifting restrictions due to on-the-job injuries who received accommodations.

Nevertheless, on October 9, 2018, the district court granted Rural/Metro’s motion for summary judgment. It concluded that the company’s denial of an accommodation did not violate the Pregnancy Discrimination Act (“PDA”), based on the following erroneous legal conclusions:

  • a) Durham had failed to make out a prima facie case of discrimination under the McDonnell Douglas framework because she could not make out the third prong, i.e., that she had suffered an “adverse employment action” (a conclusion that directly contradicts Young’s directive that a denial of an accommodation satisfies this requirement);
  • b) The three individuals to whom Durham compared herself to raise an inference of discrimination were not valid comparators because they were injured on the job and therefore accommodated pursuant to the company’s “discrete” Transitional Work Program (a conclusion contained nowhere in Young, and in support of which the court cited only pre-Young decisions);
  • c) Because Durham could not cite any comparators not injured on the job, she could not create a triable issue as to intentional discrimination (also antithetical to Young’s holding, in which it found policies of accommodation for similarly-situated workers sufficient to create a triable issue); and
  • d) Because the court deemed workers injured on the job to be inappropriate comparators to pregnant employees, it never even reached the appropriate analysis at summary judgment as directed by Young, namely, is the employer's articulated reason for denying the accommodation "sufficiently strong" to justify the burden on the pregnant worker?

The court further did not address Durham’s arguments raised in opposition to summary judgment that because the company could not substantiate its purported “legitimate, nondiscriminatory reason” for denying Durham an accommodation, that reason was not worthy of credence and thus could not rebut the presumption of discrimination created by the prima facie case.

The legal issues are essentially the same as what we argued in our recent amici appearance in Hicks v. City of Tuscaloosa, Alabama, 870 F.3d 1253 (11th Cir. 2017). We will argue that the lower court fundamentally misapplied Young, for the reasons summarized above. This case is an excellent vehicle for highlighting Young’s most basic precepts and assuring that district courts in the Eleventh Circuit receive clear instructions about those precepts. As evidenced in Hicks, the Eleventh Circuit understands Young better than many courts and we are therefore optimistic that the court will read it so as to assure that pregnancy and pregnancy-related conditions do not force women off the job.

Date filed

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