Opinion
No. 3:01-CV-2337-L
February 7, 2003
MEMORANDUM OPINION AND ORDER
Before the court is Defendant's Motion for Summary Judgment, filed Having reviewed the motion, Plaintiffs response, Defendant's reply, the record, and applicable law, the court grants Defendant's Motion for Summary Judgment for the reasons herein stated.
I. Factual and Procedural Background
Jacqualine Coney ("Plaintiff" or "Coney") brought this action against her former employer Dallas Housing Authority ("Defendant" or "DHA"), alleging that DHA constructively discharged her because of her pregnancy and that such discharge was in violation of Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978 ("PDA"), 42 U.S.C. § 2000e(k) et seq.
DHA hired Coney on June 12, 2000 for the full-time position of Clerk Typist/Receptionist. As a new employee, Coney was considered a "probationary employee" for the first six months of her employment and did not receive the same rights and benefits as permanent employees during this probationary period. At the time she left DHA, Coney worked under Tony Fenimore, who reported to Sharon Coleman ("Coleman"). On August 8, 2000, Coney went to a doctor, who told her she was pregnant and that the nausea she had been experiencing was due to the pregnancy. The doctor gave Coney a letter instructing that she could only work part-time until the nausea passed around the sixteenth week of her pregnancy. Coney returned to work the following day, gave Coleman the doctor's letter, and informed her that she was pregnant and could no longer work full time. Coleman met with Vice President of Human Resources Robert S. Wise regarding Coney's situation and DHA's need for a full-time receptionist. Coleman then explained to Coney that the position required a full-time employee. Coney submitted a letter of resignation and left DHA shortly thereafter in August 2000.
These benefits included sick leave, vacation time, short term disability, long term disability, and leave under the Family and Medical Leave Act.
On March 16, 2001, Coney filed a charge of discrimination with the Equal Employment Opportunity Commission. She received a right-to-sue letter on August 24, 2001, and initiated this action against DHA on November 20, 2001. In her Complaint, Coney alleged DHA gave her a choice — quit or be fired — and that this choice constituted a constructive discharge and was based solely on her pregnant condition. DHA, on the other hand, contends that Coney resigned, because she was unable to work full time per her doctor's orders. DHA therefore contends that Coney was not qualified for the full-time position, because she was unable to work full time as required by the position, not because of her pregnancy. On October 10, 2002, DHA filed a motion for summary judgment, which is now before the court. II. Summary Judgment Standard
In her response to DHA's Motion for Summary Judgment, Coney raised a number of objections to DHA's summary judgment evidence, which the court later addresses.
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis A. Title VII and Direct Evidence of Discrimination
Title VII prohibits discrimination in employment against any person on the basis of her race, sex, national origin, color, or religion. 42 U.S.C. § 2000e-2(a)(1). In 1978, the PDA amended Title VII by proscribing discrimination on the basis of "pregnancy and related medical conditions within the definition of sex discrimination." Stout v. Baxter Healthcare Corp., 282 F.3d 856, 859 (5th Cir. 2002). The PDA provides:
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, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . .42 U.S.C. § 2000e(k). Other than as stated above, "[t]he PDA did not amend Title VII in any other way. Therefore, in analyzing a claim of pregnancy discrimination [a district court applies] the same rules used for discrimination claims in general." Garcia v. Woman's Hosp., 97 F.3d 810, 812-13 (5th Cir. 1996).
To establish a prima facie case of discrimination under Title VII, a plaintiff may prove her claim either through direct evidence, statistical proof, or the three-part test established by the Supreme Court in McDonnell Douglas. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Plaintiff contends that she has produced direct evidence of pregnancy discrimination and therefore the McDonnell Douglas test does not apply. The court disagrees.
Direct evidence is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995) (quoting Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993)). In support of her position that she has produced direct evidence of pregnancy discrimination, Coney alleged the following in her Brief in Support of Response to Defendant's Motion for Summary Judgment:
First, Plaintiffs supervisor, upon being informed of Plaintiff s pregnancy and related sickness, flatly asked Plaintiff what was so bad about being pregnant that she could not work full-time, because she (Plaintiffs supervisor) had her own children and worked through her sickness. Plaintiff was not informed she would be eligible for rehire, nor that there were several other positions available to her with Defendant.
Second, and significantly, another employee of Defendant informed Plaintiff that other pregnant women who occupied the same position as Plaintiff "had to resign or get fired." In short, Plaintiff was fired because of her pregnancy, and has offered direct evidence of that discrimination. Summary judgment is not appropriate given the overwhelming direct evidence of discrimination.Id. at 6 (internal citations omitted). The other evidence that Plaintiff contends is direct evidence of pregnancy discrimination is Coleman's statement that she (Coney) "had to either resign or be fired."
First, Coleman's statement that she could not understand why Coney was unable to work full time does not meet the definition of direct evidence, because one necessarily has to draw an inference or make a presumption regarding the discriminatory animus or intent of the statement. One could easily interpret Coleman's statement to mean that she preferred to see Coney stay with DHA as a full-time employee rather than resign or be discharged. Coleman could have also been expressing her frustration that if Coney was unable to remain as a full-time employee, DHA would now have to go through the hiring process again to replace Coney, who had begun her employment only two months earlier. Since Coleman's statement is susceptible of multiple meanings, a reasonable person would be required to make an inference or presumption that DHA intended to discriminate against Coney because of her pregnancy. The statement made by Coleman therefore does not constitute direct evidence of intentional pregnancy discrimination. While Coleman's statement may not have been politically correct and could have been worded more artfully, it is a far cry from any evidence of intentional pregnancy discrimination.
Second, Coleman's statement that Coney "had to resign or be fired," and DHA's alleged failure to inform Coney that other positions were available or that she would be eligible for rehire is not direct evidence of pregnancy discrimination. Coney was hired as a full-time employee, and she fully acknowledges in her deposition that she was told she had to resign or be discharged, because Coleman "was not going to be able to have me working part-time in a full-time position." This statement simply does not establish an intent to discriminate because of pregnancy. Moreover, under the PDA, employers do not have an affirmative duty to accommodate pregnant employees. See Stout, 282 F.3d at 861. The PDA only requires that pregnant employees be treated the same for all employment-related purposes as other employees with respect to their ability or inability to work. Id. at 86 1-62 (citing 42 U.S.C. § 2000e(k)). Thus, DHA had no duty to accommodate Coney or otherwise give her special treatment because of her pregnant condition. Because DHA had no such affirmative obligation, neither Coleman's statement nor DHA's corresponding refusal to accommodate Coney by placing her in a part-time position can serve as direct evidence of pregnancy discrimination.
Third, the testimony of some unidentified DHA employee that other pregnant women who occupied the same position as Plaintiff "had to resign or get fired" is of no moment, because it constitutes inadmissible hearsay. See Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245 F.3d 507, 510 (5th Cir. 2001) (hearsay statements are not competent summary judgment evidence). Moreover, Plaintiff misconstrues the PDA in this regard. As stated previously, the PDA only prohibits treating pregnant employees differently from non-pregnant employees. It does not require employers to give pregnant employees special treatment. Thus, even if admissible, the statement does nothing to establish discrimination on account of pregnancy, because it does not raise a genuine issue of material fact that Coney was treated differently than non-pregnant employees.
For all of the stated reasons, the court concludes that no direct evidence of pregnancy discrimination exists. Accordingly, contrary to Plaintiffs argument, the three-part test set forth in McDonnell Douglas does apply to the present case. See McDonnell Douglas, 411 U.S. at 802-04.
B. McDonnell Douglas Test
Coney alleged in her Complaint that she was discriminated against because she was pregnant; that DHA gave her a choice of quitting or being fired after informing her supervisor that she was pregnant and could no longer work full-time. Coney contends that this ultimatum amounted to a constructive discharge and she had no choice but to resign. DHA, on the other hand contends that it is entitled to summary judgment, because there is no genuine issue of material fact that Coney's employment was terminated on the basis of her pregnancy. Specifically, DHA argues that Coney failed to establish a prima facie case of discrimination and establish that its reason for terminating her employment was a pretext.
Under the applicable burden-shifting paradigm for Title VII discrimination claims, Coney must establish a prima facie case of discrimination; DHA must then articulate a legitimate, nondiscriminatory reason for its action; and finally, if the parties satisfy their initial burdens, the case reaches the "pretext stage," and Coney must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. McDonnell Douglas Corp., 411 U.S. at 802-04. When there is no direct evidence of discrimination, the court applies the test established by the Supreme Court in McDonnell Douglas, which requires the plaintiff to show: (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated. Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525 U.S. 1000 (1998); Rutherford v. Harris County, 197 F.3d 173, 184 (5th Cir. 1999); Ward v. Bechtel, 102 F.3d 199, 202 (5th Cir. 1997).
DHA contends that Coney cannot prevail on her Title VII claim that she was discriminated against on the basis of her pregnancy, because she failed to establish a prima facie case of discrimination. Specifically, DHA argues there is no evidence Coney: (1) was qualified for the position; (2) suffered an adverse employment action; or (3) was treated differently than other similarly situated non-pregnant employees. Coney maintains that the following evidence is proof of DHA's discriminatory intent: (1) DHA's option that she either resign or be fired; (2) DHA's failure to consider her for other available part-time positions and inform her of her eligibility for rehire; and (3) Coleman's remark asking Coney what was so bad about being pregnant that she could not work full time, because she (Coleman) had her own children and had worked through the sickness; (4) Coney's affidavit testimony that another employee told her that other pregnant women that had occupied the same position as Plaintiff "had to resign or get fired."
First, Coney failed to establish the second element of a prima facie case that she was qualified for the full-time position. Coney acknowledges that, pursuant to her doctor's orders, she could not work full time as a receptionist. This fact is not in dispute. Coney was DHA's only receptionist for the main line, and daily calls on this line during business hours could range from 600-900. To perform this task, DHA required that the person filling the Clerk Typist/Receptionist position be a full-time employee, that is, be present at work full time. In particular, Coney acknowledges that answering the phone is a "pretty important" part of her job and that she could not answer calls if she were not present on the job. Based on this evidence, Plaintiff simply was unable and thus not qualified to perform the functions of the job on a full-time basis. Accordingly, she failed to meet the second prong of the test for establishing a prima facie case of pregnancy discrimination.
Second, even if the court assumed that Coney was qualified, her claim of discrimination fails, because she did not establish the fourth element of a prima facie case that others similarly situated were more favorably treated. Coney misses the mark in this regard, because she compares herself to employees who are not similarly situated. Coney, at the time of her hire and resignation, was a probationary employee. Accordingly, the court must consider whether DHA treated its probationary, non-pregnant employees more favorably than it treated its probationary, pregnant employees. See Stout, 282 F.3d at 860. This is key, because probationary employees did not receive the same rights and benefits during the first six months of employment as did permanent employees. In this case, there is no competent summary judgment evidence that DHA would not have required a nonpregnant, probationary employee to resign or be fired if he or she could not be present and work full time for the full-time position that he or she was hired to work. Stated another way, there is no summary judgment evidence that DHA would have permitted a non-pregnant, probationary employee to work part-time in a full-time position during his or her probationary period. DHA's policy applies to all probationary employees who are hired to work full time.
For this reason, the court also finds unavailing Coney's argument regarding DHA's treatment of other pregnant women. Moreover, as DHA points out, and the court agrees, Coney's affidavit testimony regarding the treatment of other pregnant women is not based on personal knowledge. Rather, it is based on the hearsay of another DHA employee. As previously stated, the court may not consider the testimony in deciding Defendant's summary judgment motion. Okoye, 245 F.3d at 510. The court therefore concludes that the hearsay statement in Coney's affidavit is insufficient to raise a genuine issue of material fact as required to defeat DHA's motion for summary judgment on this ground.
Since no genuine issue of material fact exists regarding discrimination on the basis of pregnancy, DHA is entitled to judgment as a matter of law. Having determined that Plaintiff failed to prove the second and fourth prongs of the McDonnell Douglas test, the court need not address DHA's remaining arguments regarding adverse employment action or pretext.
IV. Plaintiffs Objections to Defendant's Summary Judgment Evidence
Plaintiff has raised a number of objections to certain aspects of Defendant's summary judgment evidence. The court has reviewed Plaintiffs objections; however, it is unnecessary to address the objections, because the court reaches the same result even if it were to consider the objected to evidence. Accordingly, Plaintiffs objections are overruled as moot.
V. Conclusion
For the reasons stated herein, there is no genuine issue of material fact regarding Plaintiffs claim of pregnancy discrimination. Accordingly, Defendant's Motion for Summary Judgment is granted; Plaintiffs Objections to Defendant's Summary Judgment Evidence are overruled as moot; and Plaintiffs action against DHA is dismissed with prejudice. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.