No. 12-2408

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

 

JENNIFER LATOWSKI,

          Plaintiff - Appellant,

 

v.

 

NORTHWOODS NURSING CENTER,

          Defendant - Appellee.

 

On Appeal from the United States District Court

for the Eastern District of Michigan

No. 1:11cv11086

 

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL

 

P. DAVID LOPEZ

General Counsel

 

CAROLYN L. WHEELER

Acting Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

ELIZABETH E. THERAN

Attorney

 

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

TABLE OF CONTENTS

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

 

STATEMENT OF INTEREST........................................................................ 1

 

STATEMENT OF THE ISSUES..................................................................... 2

 

STATEMENT OF THE CASE....................................................................... 2

 

A.    Statement of the Facts........................................................................... 2

 

B.     District Court’s Decision.................................................................... 18

 

ARGUMENT................................................................................................ 21

 

I.... A Reasonable Jury Could Find That NWNC’s Policy of Requiring Pregnant CNAs to Obtain a Doctor’s Clearance in Order to Avoid Termination Constitutes Discrimination on the Basis of Sex and Pregnancy in Violation of Title VII.          21

 

II.. A Reasonable Jury Could Find That NWNC’s Assertion of A “No Restrictions” Policy For CNAs Was A Pretext for Pregnancy Discrimination in Violation of Title VII.......................................................................................................... 27

 

CONCLUSION............................................................................................. 38

 

CERTIFICATE OF COMPLIANCE............................................................ 39

 

CERTIFICATE OF SERVICE

 

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS.. A-1

 

Table of Authorities

CASES

Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000)............ 28, 31

Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996)............................. 20

Provenzano v. LCI Holdings, Inc., 663 F.3d 806 (6th Cir. 2011)................... 28

Reeves v. Swift Transp. Co., 446 F.3d 637 (6th Cir. 2006)................ 18, 27, 32

Spees v. James Marine, Inc., 617 F.3d 380 (6th Cir. 2010)....................... 23, 24

Tysinger v. Police Dep’t of Zanesville, 463 F.3d 569 (6th Cir. 2006)....... 27, 28

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

Wexler v. White’s Fine Furniture, Inc.,
317 F.3d 564 (6th Cir. 2003) (en banc).............................................. 29, 35

White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008).................... 35

 

Statutes & Rules

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq... passim

42 U.S.C. § 2000e(k)............................................................................. 1, 22

Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978).. 1

Fed. R. App. P. 29(a)....................................................................................... 1

Fed. R. App. P. 29(d).................................................................................... 39

Fed. R. App. P. 32(a)(5)................................................................................ 39

Fed. R. App. P. 32(a)(6)................................................................................ 39

Fed. R. App. P. 32(a)(7)(B)........................................................................... 39

6th Cir. R. 28(a)(1).......................................................................................... 2

 

Other Authorities

Dana Romero, Inclined Plane, available at http://scienceworld.wolfram.com/physics/InclinedPlane.html............ 33

Prometric Clinical Skills Test Checklist, available at https://www.prometric.com/en-us/clients/Nurseaide/Pages/MI.aspx........................................................ 4

Stedman’s Medical Dictionary for the Health Professions & Nursing (6th ed. 2008)................................................................................................................... 34

Webster’s Third New Int’l Dictionary (1976 ed.)....................................... 34

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.  This appeal presents an important issue concerning the proper interpretation of Title VII, as amended by the Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978).  See 42 U.S.C. § 2000e(k).  In its analysis of this case, the district court fundamentally misunderstood the Supreme Court’s explicit teachings in UAW v. Johnson Controls, 499 U.S. 187 (1991), as well as this Court’s own precedent, on what constitutes pregnancy discrimination.  Because resolution of this issue will affect the EEOC’s enforcement of Title VII, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a).

 

 

STATEMENT OF THE ISSUES[1]

1.  Whether a reasonable jury could find that NWNC’s policy of requiring pregnant CNAs to obtain a doctor’s clearance in order to avoid termination constitutes discrimination on the basis of sex and pregnancy in violation of Title VII.

2.  Whether a reasonable jury could find that NWNC’s assertion of a “no restrictions” policy for CNAs was a pretext for pregnancy discrimination in violation of Title VII.

STATEMENT OF THE CASE

A.        Statement of the Facts

The plaintiff, Jennifer Maier Latowski, is licensed in the state of Michigan as a Certified Nurse Aide (“CNA”).  R.32-2/Latowski dep. 10/PID-326.[2]  From September 12, 2007, through October 2, 2008, Latowski worked as a CNA at the defendant, Northwoods Nursing Center (“NWNC”) in Farwell, Michigan.  R.32-18/EEOC charge/PID-428-29.  She testified that her general duties involved “vital signs, water, cleaning up the patients’ rooms, helping them with [activities of daily living], which could consist of showering, washing them up, helping them get dressed, transferring them to or from the toilet, getting them up or down out of bed, assisting them with something to eat, drink, television, comfort measures, repositioning them, as well as companion.”  R.32-2/Latowski dep. 17/PID-327.  NWNC’s job description for the CNA position lists forty-two job functions consistent with Latowski’s testimony and adds some general performance standards regarding punctuality, following directions, safety, cleanliness, and recordkeeping.  R.32-13/Job Description & Performance Standards/PID-403-05; see also R.32-17/Employee Job Description: Nursing Assistant/PID-424 (listing physical aspects of CNA job for ADA purposes; lifting not included).  According to Latowski, there were between twenty and twenty-two residents (or fewer) on a hall at NWNC, and on a given shift three CNAs would share responsibility for two halls.  R.32-2/Latowski dep. 16-17/PID-327.

Neither the job requirements for the CNA position nor the state licensing requirements require candidates to demonstrate any particular lifting capacity or pass any strength tests.  Rather, testing is focused on the skills required of CNAs on the job, such as repositioning a patient in bed, transitioning a patient from his/her bed to a wheelchair, or helping him/her in and out of the shower.  R.32-4/Doyle dep. 10, 37-41/PID-356, 361-62; see also Prometric Clinical Skills Test Checklist, available at https://www.prometric.com/en-us/clients/Nurseaide/Pages/MI.aspx (last visited Jan. 2, 2013).  Judy Doyle, Latowski’s supervisor and NWNC’s Director of Nursing, testified that she had no knowledge of whether Latowski physically could have lifted fifty pounds even before her pregnancy.  R.32-4/Doyle dep. 63/PID-366.

Latowski testified that NWNC was considered a “no-lift” facility, meaning that “they emphasize not doing heavy lifting so they do not issue back braces.  They have lift machinery, so they have other lifting devices to assist their staff with lifting.”  R.32-2/Latowski dep. 28-29/PID-330.  In fact, Doyle testified that NWNC had strict policies and procedures regarding the assistance of residents who were not independently ambulatory; the residents’ individual care plans specified the degree of assistance, and what lifting devices, if any, they required.  R.32-4/Doyle dep. 43, 46-48/PID-363-64.  Latowski and Doyle testified extensively about the range of assistive lifting and positioning devices available to CNAs at NWNC, including gait belts, “blue pads” or draw sheets, wedge pillows, beds that raised/lowered and tilted, Hoyer lifts, and sit-to-stand lifts.  Thus, if a patient required assistance with standing or moving, or even if a patient were about to fall, CNAs were trained in methods that minimized or eliminated the amount of actual lifting required, which was safer for both CNA and patient.  R.32-4/Doyle dep. 46-48/PID-364; R.32-2/Latowski dep. 26-29/PID-330.  During her time at NWNC, Latowski testified, she had assisted patients ranging in weight from less than 100 pounds to more than 400 pounds, with male patients averaging around 200 pounds and female patients around 150 pounds.  R.32-2/Latowski dep. 20/PID-328.

Latowski testified at length about the methods she had been trained to use to assist patients without needing to lift them physically.  R.32-2/Latowski dep. 18-33/PID-328-31.  For example, she explained, when a patient trips or falls, CNAs are trained not to catch him/her because “by catching them, most likely I will hit the floor as well, … I am trained to brace their fall if I can without injuring myself and slowly.”  Id. at 20-21/PID-328.  Or, if a patient required repositioning in bed, Latowski testified, two CNAs would use a “blue pad,” or heavy-duty sheet, under the patient, combined with pillows, to move the patient’s body; they could also raise or lower the bed, or tilt its surface to “let gravity help you,” and “if the patient can help, they’re going to help.”  Id. at 23-25/PID-329.

In a typical eight-hour shift, Latowski testified, she would be involved in two-person assists at least fifty times, and would perform at least twenty transfers or moves of patients on her own.  Id. at 32/PID-331.  As Doyle testified, “if a CNA at any time felt … uncomfortable; in other words, maybe the person seemed too large for them, maybe the person seemed unsteady or weak, then they could always opt for more assistance.  So they could always request the help of another person.  They could never use less assistance than what was care planned.”  R.32-4/Doyle dep. 47/PID-364.

Notwithstanding the lack of any lifting or strength prerequisites in the job description, Doyle testified that a CNA could not do her job with a fifty-pound lifting restriction because “just common knowledge tells you that if this person weighs 150 pounds and they’re not bearing any of the weight themselves then you, on that side of the bed, are bearing 75 pounds and I, on this side of the bed, [am] bearing 75 pounds. That’s over 50 pounds.”  R.32-4/Doyle dep. 71/PID-367.  Thus, Doyle stated, “when she is in her process of doing her job …, she is absolutely going to at some point be responsible for 50 pounds or more.”  Id. at 73/PID-367.

In August 2008, Latowski learned she was pregnant and began seeing Dr. Diane Traenkle for prenatal care.  R.29-2/Latowski dep. 40/PID-218; R.32-15/Traenkle notes/PID-412.  According to Dr. Traenkle’s notes, Latowski “had a normal uneventful pregnancy except for vaginal bleeding at approximately 8 weeks gestation…. There is no documentation that she was considered high risk at any time.”  R.32-15/Traenkle notes/PID-412.

Latowski testified that NWNC discovered her pregnancy in late September 2008, when she told Maurine Roberts, the Ward Clerk, that she needed a waiver for a required tuberculosis test.  R.32-2/Latowski dep. 42/PID-332; R.32-18/EEOC charge/PID-429.  Latowski testified that Roberts deduced she was pregnant and told her “I had to bring a note from my doctor in order to return to work otherwise I would be taken off the schedule, it was their policy.”  R.32-2/Latowski dep. 42/PID-332.  According to Latowski, Doyle told her that the doctor’s note would have to say that she “had no restrictions.”  Id. at 42-43/PID-332.  Both Roberts and Aaron Woods, the Administrator of NWNC who was in charge of setting facility policy, testified that it was NWNC’s “practice” or “policy” to require all pregnant CNAs, regardless of their actual medical condition or whether they sought accommodation of any kind, to obtain such notes from their doctors in order to continue working.  R.29-4/Roberts dep. 6-8/PID-258; R.29-6/Woods dep. 11/PID-274; R.32-3/Ackerman dep. 15-16/PID-351 (testifying that the choice to impose the no-restrictions policy was “Aaron’s call”).[3]

Latowski testified that she subsequently called Dr. Traenkle’s office and requested “a note with zero restrictions.”  R.32-2/Latowski dep. 43/PID-332.  On Wednesday, October 1, 2008, Dr. Traenkle’s office faxed a note over to NWNC, signed by “K Jackler MA,” stating that Latowski could “return” to work that day with “only restriction no lifting over #50.”   R.32-15/Traenkle note/PID-410.  That same day, Latowski testified, Roberts left her a voice mail informing her that she’d been taken off the work schedule for that evening due to some problems with her doctor’s note and that she “needed to call her ASAP.”  R.32-2/Latowski dep. 51/PID-334.  Latowski testified that, when she returned the call, Roberts told her about the fifty-pound lifting restriction and said not to come in to work that evening.  Id. at 52/PID-334.  Latowski related that she tried several times over the next two days to reach Dr. Traenkle to request that the restriction be removed, but was only able to leave messages.  Id. at 47-48/PID-333.

On October 1, 2008, Latowski called NWNC and spoke with Doyle.[4]  R.32-2/Latowski dep. 52/PID-334; R.32-19/Doyle stmt./PID-440.  According to Latowski, Doyle told her that “[my stomach] was a liability and that I was probably a high risk pregnancy, and that she couldn’t have me … on the floor, and that … I would not be able to do my job function.  I would not be able to do lifting without harming my child.”  R.32-2/Latowski dep. 121/PID-345.  Doyle, for her part, wrote in her statement:

I was very sympathetic, but said gently, “Jennifer, you wouldn’t want to lose your baby.”  She then said she had already had several miscarriages.  She continued to cry, but said maybe her doctor would lift the restriction.  I explained that if she had already lost babies, she would be high risk and the doctor would probably not agree to lift them.  However, I told her that if the restrictions were lifted, and she brought a memo stating that she could work with no restrictions, she would be able to work.  I made it very clear that she could not work until I received word of “no restrictions”.

 

R.32-19/Doyle stmt./PID-440.  In fact, Latowski had only had one miscarriage prior to this pregnancy, which, as Dr. Traenkle noted, was never considered high-risk.  R.32-15/Traenkle notes/PID-412.  Doyle also testified that she construed the “lifting” restriction in Dr. Traenkle’s note to mean “in the medical field to me …, they do not want that person to physically bear weigh [sic] of more than 50 pounds.  So … it’s a pulling type of bearing the weight, rather it’s, … sudden, whatever.”  R.32-4/Doyle dep. 61/PID-365.

On Thursday, October 2, 2008, after another unsuccessful attempt to see Dr. Traenkle, Latowski showed up for work at NWNC.  R.32-2/Latowski dep. 53/PID-334.  When she got there, she testified, the on-call nurse said that Doyle “had told her that I had self-resigned and that if I showed up I was to be walked out and that I was not to be in the building.”  Id. at 53-54/PID-334-35.  Latowski testified that she called Doyle at home to see if there was any further information from Dr. Traenkle, but Doyle told her there was nothing further and that she would not be allowed to work with restrictions.  Id. at 54/PID-335.  According to Latowski, “I asked her, … ‘So you’re terminating me then?’ and she said, ‘Yes, you need to leave.  You will be escorted out.  You will not work at North Woods.’”  Id. at 56/PID-335.  In her statement, Doyle recounted:

I repeated that [Latowski] would not be able to perform her job as a CNA if she can lift no more than 50#, because I would not be able to guarantee that she would not do that, which means we would be liable if something happened to her baby and we had allowed her to work against her doctor’s advice….  I called the facility back and spoke to Erin [Burns], telling her the jest [sic] of the conversation and asked her to make sure Jennifer left the building right away and to call if there were any further problems.

 

R.32-19/Doyle stmt./PID-440-41.

Latowski testified that she contacted Dr. Traenkle’s office again on October 4, 2008, after hearing nothing further from them since her October 2 office visit.  R.32-2/Latowski dep. 48/PID-333.  At that time, considering herself terminated and concerned about further mixups, she instructed the doctor’s office not to send NWNC any further medical information.  Id. at 48-49, 91-92; PID-333, 341.  At her next prenatal appointment on October 9, Latowski testified, she saw a resident physician rather than Dr. Traenkle, but the office staff told her they saw “nothing in [her] chart to indicate that [she] would be placed on restriction.”  R.32-15/Traenkle records/PID-411; R.29-2/Latowski dep. 77/PID-226.[5] 

On October 15, 2008, Doyle telephoned Latowski and asked her if she would be interested in taking FMLA leave, since she was eligible to do so.  R.32-2/Latowski dep. 62-63/PID-336.  Latowski testified that she said no, because she was still very early in her pregnancy and FMLA leave only lasted twelve weeks, so it wouldn’t have helped her remain employed.  Id.  According to Latowski, Doyle urged her to consider taking FMLA leave, stating that “it would buy me time, that in that 12 weeks I could get a second opinion from a physician.…  She also said that, ‘You never know, you might not even be pregnant.’”  Id. at 64/PID-336.  Latowski nonetheless refused.  Id. at 65/PID-336.

According to NWNC, a total of fourteen NWNC employees either disclosed that they were pregnant or took maternity leave during the period between January 1, 2005, and the present.  R.32-23/Employee Comparison/PID-455.  Five were listed as terminated because they were “unable to work due to restrictions, does not qualify for FMLA”; a sixth was listed as “resigned” for the same reason.  Id.  One other employee was listed as on “Non FMLA Medical Leave of Absence”; the remaining seven were listed as having no employment status change due to “FMLA Benefit Used.”  Id.

Latowski filed a charge of discrimination with the EEOC on November 12, 2008, alleging discrimination on the basis of sex and pregnancy in violation of Title VII and the ADA.  R.32-18/EEOC charge/PID-428-36.  On December 1, 2008, Latowski returned to NWNC to examine and copy parts of her personnel file.  R.32-2/Latowski dep. 84/PID-339.  While she was there, she met with Woods and Rick Ackerman, part owner of NWNC and executive vice president of the Peplinski Group, a company that offers management support to long term care centers.  Id.; R.32-3/Ackerman dep. 4/PID-349.  At the meeting, Latowski, Woods, and Ackerman all testified, they discussed NWNC’s policy of not allowing CNAs to work with restrictions, whether Latowski could perform her job while pregnant, and whether she should take FMLA leave.  Latowski recounted:

Rick proceeded to do hypothetical questions as far as about taking FMLA, getting a second opinion, my abilities during the pregnancy, what I felt that I would be able to do at 7 months pregnant versus 15 weeks pregnant, the job functions that I did. We discussed lifting very heavy—at that time, and he was very argumentative in his tone of voice with me and the direction of his questions.  He stated that he felt it was a personal conflict between me and Judy Doyle.  He also stated that he felt that it was a financial problem, that I needed the job.  And we just went through a lot of scenarios … with ADL’s, patient care.  We talked about being a liability and not being able to perform my job functions .…

 

R.32-2/Latowski dep. 85/PID-339.  See also id. at 87/PID-340 (“I felt that they made it very clear to me that I was a liability and my restrictions were my pregnancy in itself and my ability to do my job while I was pregnant, …. It was made apparent that because I was pregnant my belly would be in the way.”). Ackerman testified that he recalled going over the potential benefits of FMLA leave with Latowski, including the possibility that she might not still be pregnant in January 2009 if “the pregnancy terminates or something else happens,” although he “[didn’t] remember how I would have said it exactly.”  R.32-3/Ackerman dep. 24-25/PID-353.

With respect to why NWNC maintained a policy of not allowing CNAs to work with any medical restrictions, Latowski testified, she was told that “whether or not I … could do my job with a 50-pound weight restriction they would not allow me to work …, because if something happened they were liable because they allowed me to work on their floor with restrictions.” R.32-2/Latowski dep. 93/PID-341.

In his memo summarizing the meeting, Woods recounted:

Ackerman pointed out a couple of scenarios whereby a caregiver may need to physically assist a resident who is falling, or when pushing or pulling residents in wheelchairs or carts, etc.  Ackerman noted that residents commonly weigh 150 pounds or more, and [Latowski’s] position as a nursing assistant required an immediate intervention which could have exceeded her safe lifting capacity and jeopardized her health or that of her unborn child.  It was explained to [Latowski] that this is why the building has a policy and must comply with physician care requirements when restrictions are presented for any reason.

 

R.32-21/Woods mem./PID-447.  Woods testified at his deposition that he believed there were “job risks” associated with a pregnant woman working as a CNA at NWNC, in fact at “any job.”  R.29-6/Woods dep. 12/PID-274.  According to Woods, those risks included “Aggressive residents that may swing or hit or kick or bite.  Simple transferring onto the toilet, off of the toilet.  Simple, you know, ambulation, somebody falling forwards, backwards, to the sides…. The amount of the lifting.  The amount of force you have to use.  It’s all the same for whether you’re pregnant or nonpregnant.  It's still a risk.”  Id.

On December 5, 2010, the EEOC found reasonable cause to believe that NWNC had violated Title VII.  R.32-18/EEOC Determination/PID-437.  Conciliation was unsuccessful, and Latowski brought suit in federal court in March of 2011.  R.1/Complaint/PID-1-2; R.1/Conciliation Failure/PID-7.  As later clarified in her Second Amended Complaint, and in relevant part, she alleged that NWNC discriminated against her on the basis of her sex and pregnancy in violation of Title VII by requiring her to get a doctor’s note clearing her to work upon learning she was pregnant and subsequently terminating her employment when the doctor’s note contained restrictions.  R.17/Second Amended Complaint/PID-108-09.  NWNC moved for summary judgment on all claims on February 28, 2012.  R.28/Mot. for Summ. J./PID-178.

B.          District Court’s Decision

The district court issued its decision granting summary judgment to NWNC on September 27, 2012.  R.40/Opinion & Order (“Op.”)/PID-596.  In relevant part, the district court found, first, that NWNC’s policy of requiring all pregnant CNAs to obtain a doctor’s note in order to continue to work was “pregnancy-blind” and was not direct evidence of pregnancy discrimination.  Id. at PID-608-09 (citing Reeves v. Swift Transp. Co., 446 F.3d 637, 641 (6th Cir. 2006)).  The court described this Court’s holding in Reeves that “a policy denying light-duty work to employees who could not perform heavy lifting and also were not injured on the job was valid under the PDA.”  Id. at PID-608.  The court observed, “[i]n this case, as in Swift, Defendant’s policy is pregnancy-blind,” because “[t]he policy simply requires that when an employee brings a non-work related medical condition to Defendant’s attention, the employee is required to obtain a doctor’s opinion on whether the employee was free to work without restrictions.”  Id. at PID-609.

The court then held that Latowski failed to establish a prima facie case of pregnancy discrimination under Title VII for two reasons.  First, according to the court, she failed to show that she was treated differently from Chad M---, a male comparator she identified, because she did not avail herself of FMLA leave, while M--- did.  R.40/Op./PID-610.  Second, the court found, Latowski could not demonstrate that she was qualified for her CNA position because she had a medical restriction and thus could not meet the requirements of NWNC’s “pregnancy-blind” policy requiring all CNAs to work restriction-free.  Id. at PID-612-13.

The court also rejected Latowski’s arguments that Ackerman’s and Doyle’s remarks to her about her pregnancy and her inability to do her job constituted direct evidence of discrimination.  As to Ackerman, the court found that neither his attendance at the December 1, 2008, meeting nor any of his remarks at that meeting was direct evidence of discriminatory animus towards Plaintiff’s pregnancy.  R.40/Op./PID-611.  The district court then quoted Doyle’s version of her conversation with Latowski from Doyle’s notes in the record, and concluded that, “[d]rawing all reasonable inferences in Plaintiff’s favor, no reasonable juror would conclude that Ms. Doyle’s comments are evidence of discriminatory animus towards Plaintiff’s pregnancy, much less direct evidence.”  Id. at PID-611-12. 

Finally, the court found, even if Latowski had established that she was qualified for her position, NWNC would still be entitled to summary judgment because she had failed to show that she was treated worse than a similarly situated comparator.  R.40/Op./PID-613.  The court also observed that the plaintiff in Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), had suggested various accommodations and alternative tasks that she could perform that would be consistent “‘with the restrictions imposed on her by her pregnancy.’” R.40/Op./PID-613.  The court then stated that, “unlike the plaintiff in Ensley-Gaines, Plaintiff did not seek any accommodation for her lifting restriction.”  Id. at PID-614.

 

ARGUMENT

I.            A Reasonable Jury Could Find That NWNC’s Policy of Requiring Pregnant CNAs to Obtain a Doctor’s Clearance in Order to Avoid Termination Constitutes Discrimination on the Basis of Sex and Pregnancy in Violation of Title VII.

As multiple NWNC administrators testified, when Latowski worked there NWNC had an unwritten but mandatory policy that all pregnant CNAs were required to obtain a note from their doctors stating that they could work free of any and all restrictions in order to continue in their jobs.  This policy applied regardless of whether the CNA in question was experiencing any limitations as to her ability to work and solely because of her status as a pregnant woman.  As such, NWNC’s mandatory medical clearance policy is the antithesis of “pregnancy-blind”: it singles out pregnant employees and labels them as prima facie incapable of continuing in their jobs unless their doctors certify otherwise. 

Such a policy, regardless of the reason for its adoption, runs squarely afoul of the Supreme Court’s decision and rationale in UAW v. Johnson Controls, 499 U.S. 187 (1991).  In Johnson Controls, the Supreme Court held that an employer’s policy of barring all fertile women from jobs involving lead exposure violated Title VII.  Id. at 192, 198.  In so ruling, the Court laid out several key precepts that are highly relevant to the proper analysis of this case and pregnancy discrimination cases in general.  First, the Court in Johnson Controls rejected the “fetal protection” or “safety exception” BFOQ defense to pregnancy discrimination in all except a very narrow class of cases:

[T]he safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.  This approach is consistent with the language of the BFOQ provision itself, for it suggests that permissible distinctions based on sex must relate to ability to perform the duties of the job….  Unless pregnant employees differ from others “in their ability or inability to work,” they must be “treated the same” as other employees “for all employment-related purposes.”  42 U.S.C. § 2000e(k).  This language clearly sets forth Congress’ remedy for discrimination on the basis of pregnancy and potential pregnancy.  Women who are either pregnant or potentially pregnant must be treated like others “similar in their ability … to work.”  Ibid.  In other words, women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job.

 

Id. at 204.  Thus, the Supreme Court drew a distinction in Johnson Controls between circumstances where an employee’s pregnancy might actually interfere with her ability to do her job and those where an employer might seek—benignly or otherwise—to “protect” her or her unborn child from potential harm.  The latter circumstance would not constitute legitimate grounds for disparate treatment under Title VII, as the Court emphasized: “With the PDA, Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself.”  Id. at 206; see also Spees v. James Marine, Inc., 617 F.3d 380, 393 (6th Cir. 2010) (same).

Next, the Johnson Controls Court observed that “the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect.  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.”  Id. at 199.  Thus, to the extent the district court relied on NWNC’s lack of “animus” or its administrators’ purported concern for Latowski’s well-being to support its conclusion that the policy in question was non-discriminatory, that reliance was misplaced.

The Supreme Court in Johnson Controls also rejected the notion of an employer’s potential tort liability for injury to a pregnant employee or her baby as a justification for pregnancy discrimination.  The Court observed:

Without negligence, it would be difficult for a court to find liability on the part of the employer.  If, under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best…. If state tort law furthers discrimination in the workplace and prevents employers from hiring women who are capable of manufacturing the product as efficiently as men, then it will impede the accomplishment of Congress’ goals in enacting Title VII.

 

499 U.S. at 208-10.  See also Spees, 617 F.3d at 394.

There is abundant evidence in the record to support a reasonable jury’s finding that NWNC’s doctor’s clearance policy discriminates against pregnant CNAs, including Latowski, on the basis of their pregnancy.  Indeed, NWNC’s policy is every bit as facially discriminatory as that at issue in Johnson Controls, with the only difference being that it wasn’t reduced to writing.  The record evidence reflects that NWNC’s doctor’s clearance policy was applied consistently and uniformly to pregnant employees simply because they were pregnant, and not to other employees unless they had a condition that required them to be out on medical leave or to seek an accommodation.  In effect, NWNC classified pregnant employees as prima facie injured, sick, or disabled for purposes of requiring a doctor’s clearance solely based on the fact of their pregnancy. 

As the record reflects, NWNC’s application of this policy resulted in each and every pregnant CNA who could not obtain a restriction-free medical clearance either being terminated or having to use FMLA leave until she was no longer pregnant.  R.33-2/Ackerman dep. 12/PID-467; R.33-5/Woods dep. 35/PID-497; R.32-23/Employee Comparison/PID-455.   Moreover, in light of Woods’s testimony that he believed that working as a CNA was too risky for pregnant women (and risky for all women), R.29-6/Woods dep. 12/PID-274, a reasonable jury could find that NWNC was using its medical clearance policy systematically to rid itself of pregnant CNAs.  As a result of this policy, a jury could find, Latowski was placed in the position of having to obtain a doctor’s note that turned out to be factually erroneous, that she never should have had to obtain in the first place, and that directly resulted in her termination.

Lastly, as Johnson Controls makes clear, NWNC’s motivation for its doctor’s clearance policy—its desire to avoid liability for potential injury to pregnant employees—is not a sufficient justification for discriminating against them.  Both Woods and Ackerman testified that this was in fact NWNC’s “economic” motivation, not only for the doctor’s clearance policy, but more broadly for its policies against accommodating pregnant employees.  R.32-21/Woods mem./PID-447; R.29-6/Woods dep. 26-27, 34-35/PID-275, 277; R.33-2/Ackerman dep. 12/PID-467.  As the Supreme Court observed, the remote specter of state tort liability in negligence does not justify subversion of Congress’s goal in Title VII to eradicate sex and pregnancy discrimination.  499 U.S. at 208-10.  While an employer’s desire to protect its own pocketbook may not constitute anti-pregnancy “animus”— not a prerequisite for a pregnancy discrimination claim in any case—neither does it warrant imposing additional and unnecessary barriers to the employment opportunities of pregnant women.

II.         A Reasonable Jury Could Find That NWNC’s Assertion of A “No Restrictions” Policy For CNAs Was A Pretext for Pregnancy Discrimination in Violation of Title VII.

As this Court has observed, “[p]regnancy-blind policies of course can be tools of discrimination.  But challenging them as tools of discrimination requires evidence and inference beyond such policies’ express terms.” Reeves, 446 F.3d at 641.  Based on the evidence in the record, a reasonable jury could find that, even if NWNC did rely on a facially “pregnancy-blind” policy of not allowing CNAs to work with medical restrictions, NWNC used that policy as a pretext to discriminate against Latowski on the basis of her pregnancy.

With respect to Latowski’s prima facie case of pregnancy discrimination, the record would plainly support a finding that “(1) she was pregnant; (2) she was qualified for her job, (3) she was subjected to an adverse employment decision, and (4) there is a nexus between her pregnancy and the adverse employment decision.”  Tysinger v. Police Dep’t of Zanesville, 463 F.3d 569, 573 (6th Cir. 2006) (internal citations and quotation marks omitted).  As this Court has put it:

The prima facie requirement for making a Title VII claim “is not onerous,” and poses “a burden easily met.”  The prima facie phase “merely serves to raise a rebuttable presumption of discrimination by ‘eliminat[ing] the most common nondiscriminatory reasons for the [employer’s treatment of the plaintiff].’”

 

Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000) (internal citations omitted).

Beginning with whether Latowski was “qualified” for her job, this Court has held that, “[f]or purposes of the prima facie case analysis, a plaintiff’s qualifications are to be assessed in terms of whether he or she was meeting the employer’s expectations prior to and independent of the events that led to the adverse action.”  Tysinger, 463 F.3d at 573.  Thus, in Tysinger, the court explained, “[p]rior to becoming pregnant, there is no dispute that Tysinger was meeting her employer’s expectations. The second element of her prima facie case was therefore properly deemed satisfied.”  Id.  See also Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 813 (6th Cir. 2011) (cautioning that the court’s analysis of plaintiff’s job qualifications for purposes of prima facie case “must be conducted independently of [the defendant’s] proffered nondiscriminatory reason and must not conflate the prima facie and pretext stages of the McDonnell Douglas test”); Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575-76 (6th Cir. 2003) (en banc) (“At the prima facie stage, a court should focus on a plaintiff’s objective qualifications to determine whether he or she is qualified for the relevant job…. The prima facie burden of showing that a plaintiff is qualified can therefore be met by presenting credible evidence that his or her qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field.”) (emphasis in original).  Thus, there appears to be little dispute that Latowski was qualified for her job, as there is no evidence in the record of any performance deficiencies prior to or after her pregnancy.  R.32-17/Latowski performance evaluations/PID-419-23, 425-26.

Next, particularly in light of the “non-onerous” nature of the burden of establishing a prima facie case of discrimination, there is more than enough evidence in the record to support a reasonable jury’s finding that Latowski’s termination was causally related to her pregnancy.  Latowski was only made to procure a doctor’s note in the first place because she was pregnant—not because she was ill, unable to do part or all of her job, in need of leave, or out on leave.  Latowski could have continued doing her job competently and adequately, as she had been doing it all along, had she not been ordered to obtain a doctor’s note solely because of her pregnancy.  See R.32-17/Latowski Competency Evaluation of Sept. 9, 2008/PID-425-26 (fully satisfactory evaluation given after Latowski was already pregnant).

Second, a reasonable jury could credit testimony from Latowski and Doyle regarding other, non-pregnant CNAs who were allowed to seek extra assistance in doing their jobs, while pregnant CNAs, including Latowski, were not.  Doyle testified that non-pregnant CNAs, male and female, always had the option to request assistance from their coworkers if they were involved in a task that they felt might be too much to handle alone because “the person seemed too large for them” or “the person seemed unsteady or weak.”  R.32-4/Doyle dep. 47/PID-364.  A reasonable jury could thus find that Latowski established a causal link between her pregnancy and her termination because non-pregnant CNAs at NWNC were afforded opportunities to seek assistance with their jobs, specifically including heavier lifting tasks if necessary, while she was not.

NWNC proffered a legitimate, nondiscriminatory reason for its decision to terminate Latowski’s employment sufficient to satisfy its burden of production under McDonnell Douglas: its policy of not allowing CNAs to work with medical restrictions not incurred on the job.  See Cline, 206 F.3d at 658.  However, the record evidence is sufficient to allow a reasonable jury to conclude that NWNC’s proffered reason is a pretext for pregnancy discrimination.  Whether the policy in question is characterized as a requirement that CNAs be able to lift more than fifty pounds or a requirement that they work free of any physical restrictions whatsoever, a reasonable jury could find either that no such job requirement in fact existed or that it was so unreasonable as to be pretextual. 

With respect to the fifty-pound lifting requirement, as described above, NWNC’s own job description for the CNA position makes no reference whatsoever to a strength or lifting requirement, nor does its extensive Employee Competency Evaluation for CNAs.  The lack of any lifting requirement for the CNA job at NWNC explicitly distinguishes this case from Reeves.  See Reeves, 446 F.3d at 638 (“Reeves understood that her job could require her to use a dolly to push or pull freight weighing up to 200 pounds, and occasionally to push freight weighing up to 100 pounds with brute force.  During the job application process, Reeves signed a form that represented to Swift that she could bear this level of physical strain.  Reeves further represented that she could lift 75 pounds and carry it 56 feet, as well as lift 60 pounds over her head.”).  A reasonable jury could thus find, simply put, that there was no such requirement as part of the CNA job at NWNC, based on the very logical assumption that, if such a requirement existed, NWNC would have said so in the job description.

Even as to those activities that do require some degree of weight-bearing on the part of the CNA, a reasonable jury could credit Latowski’s and Doyle’s extensive testimony about the adaptive aids used at NWNC that made it a “no-lift facility”—the mechanical lifts, the beds that lift and tilt, the draw sheets, and so forth—and conclude that a CNA’s daily job tasks would not necessarily require her to lift more than fifty pounds regardless of her patient’s weight.  R.32-4/Doyle dep. 46-48/PID-364; R.32-2/Latowski dep. 26-29/PID-330.  Moreover, a reasonable jury would have ample reasons to disbelieve Doyle’s contrary testimony.  First, a jury could find that Doyle’s testimony regarding CNAs’ lifting a patient being repositioned in bed (R.32-4/Doyle dep. 71/PID-367) violated the basic laws of physics, because sliding a person along the surface of a bed does not involve “lifting” the person’s full weight straight up but rather moving some percentage of that weight along an inclined (or declined) plane.  See, e.g., Dana Romero, Inclined Plane, available at http://scienceworld.wolfram.com/physics/InclinedPlane.html (explaining that an inclined plane, like the beds with tilting surfaces at NWNC, “lowers the force needed to move an object vertically ….”).  This is the same scientific principle that the ancient Egyptians used, for example, to build the Pyramids without modern lifting equipment by moving massive stones up ramps.  Thus, a reasonable jury could find, Doyle was incorrect when she testified that two CNAs repositioning a 150-pound patient in bed would each have to lift 75 pounds.   

A jury could also find that Doyle’s so-called “medical definition” of lifting to encompass any movement of mass in any dimension, not just the vertical, is not credible.  See, e.g., Stedman’s Medical Dictionary for the Health Professions & Nursing 895 (6th ed. 2008) (defining “lift” as “1. To raise or elevate. 2. The act of lifting. 3. A device for lifting.”); Webster’s Third New Int’l Dictionary 1307 (1976 ed.) (defining “lift” as: “1a: to raise from a lower to a higher position (as from the ground into the air): move away from the pull of gravitation: elevate”).  NWNC’s own ADA job description for the CNA position also belies Doyle’s far-reaching definition of “lift”: in addition to not even listing “lifting” as a job requirement, it differentiates between “pushing,” “pulling,” and assisting residents with balance, among other tasks, and specifies average and maximum weights for different tasks where relevant.  R.32-17/Employee Job Description: Nursing Assistant/PID-424.

Alternatively, if the proffered policy is that no CNA was allowed to work with any physical restrictions whatsoever, regardless of the nature of the restrictions, a reasonable jury could find that such a policy made so little sense as to have been unlikely to be NWNC’s real motivation for terminating Latowski.[6]  See, e.g., White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th Cir. 2008) (observing that a Title VII plaintiff may demonstrate pretext “by offering evidence which challenges the reasonableness of the employer’s decision ‘to the extent that such an inquiry sheds light on whether the employer’s proffered reason for the employment action was its actual motivation’”) (quoting Wexler, 317 F.3d at 576-77).  According to Doyle’s testimony, this policy would have applied literally to any conceivable restriction coming from a doctor—she testified that she did not know what would have happened if a CNA came in with a 100-pound or 500-pound lifting restriction.  R.32-4/Doyle dep. 63-64/PID-366.  One could certainly understand how an actual job-related restriction, such as “no bending or stooping” or “no contact with bodily fluids,” might well present a problem for a CNA in performing his/her job.  But, confronted with a literal “zero restrictions” policy (and no evidence that it was actually enforced as such), a reasonable jury could find either that NWNC had no such policy or that, if it existed, it would be so absurd as to be pretextual.

Moreover, viewing this evidence in conjunction with Aaron Woods’s testimony that he believed that there were “job risks” for pregnant women that were associated not only with the CNA job at NWNC, but with “any job,” R.29-6/Woods dep. 12/PID-274, and other record testimony, a reasonable jury could conclude that NWNC used its “no restrictions” policy as a pretext to rid itself of pregnant CNAs, including Latowski, wherever possible.  Doyle and Ackerman repeatedly expressed their views to Latowski that continuing to work might jeopardize her pregnancy, that she had had multiple miscarriages (when she had not), and that FMLA leave at the end of the first trimester of pregnancy might be a good choice for her because she might be mistaken about being pregnant or might miscarry and then still be able to keep her job.  According to Latowski’s testimony, at her meeting with Ackerman on December 1, 2008, he was concerned not only with her actual condition at the time (fifteen weeks pregnant) but with her future capabilities at seven months pregnant and whether her “belly would be in the way.”  R.32-2/Latowski dep. 85, 87/PID-339-40.  Both Latowski and Woods testified that she was told at the meeting that the policy applied to her regardless of whether she could do her job while pregnant because her choice to do so could have “jeopardized her health or that of her unborn child.” R.32-21/Woods mem./PID-447; R.32-2/Latowski dep. 93/PID-341.  A reasonable jury could credit all this testimony and find, consistently with Johnson Controls, that NWNC’s administrators had their own dim views about the capabilities of pregnant women as CNAs and acted on this bias to limit Latowski’s employment opportunities because she was pregnant.

 

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

 

P. DAVID LOPEZ

General Counsel

 

CAROLYN L. WHEELER

Acting Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

 

 

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6982 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Palatino Linotype 14 point.

 

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

U.s. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

 

Dated: March 7, 2013

CERTIFICATE OF SERVICE

I, Elizabeth E. Theran, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 7th day of March, 2013.  I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system:

 

Counsel for Plaintiff-Appellant:

Nicholas B. Roumel

Nacht, Roumel, Salvatore, Blanchard & Walker, P.C.

101 N. Main Street, Ste. 555

Ann Arbor, MI  48104

(734) 663-7550

nroumel@nachtlaw.com

 

Counsel for Defendant-Appellee:

Mark R. Smith

Rhoades McKee, P.C.

161 Ottawa Ave. NW, Ste. 600

Grand Rapids , MI  49503

(616) 233-5216

mrsmith@rhoadesmckee.com

 

 

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

 

 

 

 

 

 

 

 

 

 

 

ADDENDUM

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS