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The Fourth Circuit Court Says Pregnant Employee Not Entitled to Accommodation

Posted in Disability Discrimination, Discrimination, FMLA and Other Leaves of Absence, Labor Law

By:    Duyen T. Nguyen

In Young v. UPS, 2013 U.S. App. Lexis 530, a UPS worker sued her employer for sex and race discrimination under Title VII and for disability discrimination under the ADA on the basis of her pregnancy. On January 9, 2013, the Fourth Circuit Appellate Court issued a decision affirming the district court’s grant of summary judgment for the employer.

Plaintiff-employee was a delivery truck driver for UPS.  Her responsibilities included picking up and delivering packages.  In 2006, plaintiff became pregnant and informed her supervisor, via a note from her physician, that she should not lift more than 20lbs for the first 20 weeks of her pregnancy and not more than 10lbs thereafter. UPS’s occupational health manager, Carolyn Martin, informed plaintiff that UPS’s policy would not permit her to continue working as long as she had the 20lbs lifting restriction.  Martin also concluded that based on UPS’s policy, plaintiff was unable to perform the essential functions of her job and was ineligible for light duty assignment, explaining that: (1) UPS offered light duty for those with on-the-job injuries, those accommodated under the ADA, and those who had lost DOT certification, but not for pregnancy; (2) plaintiff did not qualify for short-term disability benefits because she had presented no note stating she could not work at all; (3) plaintiff had exhausted her leave under the FMLA; and (4) UPS’s policy did not permit plaintiff to continue working as an air driver with her 20lbs lifting restriction.  Although Martin conveyed she wanted to help plaintiff, she believed she was required to treat plaintiff the same as she would any other UPS employee who had a lifting restriction that did not result from an on-the-job injury or illness and who could not perform his or her regular job.

After plaintiff’s FMLA leave expired, she went on an unpaid extended leave of absence and after giving birth, returned to work for UPS.  Thereafter, she filed a complaint with the EEOC which issued a right to sue letter, whereupon plaintiff sued.

ADA claim:

The Court held that plaintiff’s claim under the ADA failed because she could not establish the existence of a disability.  The ADA provides three avenues for establishing the existence of a disability:  (1) a physical or mental impairment that substantially limits one or more major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.  Plaintiff did not contend her pregnancy qualified as a “disability” under the ADA but rather that she was discriminated on the basis of being “regarded as having an impairment.”  The Court rejected this argument, noting, among other things, “[b]ecause [plaintiff] points to no more than the objective fact of her pregnancy, and offers no evidence tending to show that Martin subjectively believed [plaintiff] to be disabled, [plaintiff] cannot adduce evidence to raise a factual issue on her ‘regarded as’ claim.”  Id. at 19.

Title VII claim:

The Court analyzed plaintiff’s pregnancy discrimination claim in the same manner as a sex discrimination claim under Title VII.

            Direct Discrimination:

The Court rejected plaintiff’s contention that the UPS policy is direct evidence of pregnancy-based sex discrimination, because the policy treats pregnant workers and non-pregnant workers alike.  “By limiting accommodations to those employees injured on the job, disabled as defined under the ADA, and stripped of their DOT certification, UPS has crafted a pregnancy-blind policy.”  Such a policy is at least facially a “neutral and legitimate business practice,” and not evidence of UPS’s discriminatory animus toward pregnant workers.”  Id. at 22.  The court also found that comments made by plaintiff’s supervisor (who did not possess authority to make determinations about plaintiff’s employment nor sought to influence Martin) did not demonstrate “corporate animus” on the part of UPS tantamount to direct evidence of discrimination.

             McDonnell Douglas test:

The Court also held that plaintiff was unable to establish a prima facie case for pregnancy discrimination.  Under the McDonnell Douglas framework, plaintiff must establish (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) that similarly-situated employees outside the protected class received more favorable treatment.  The Court held that plaintiff could not establish that similarly situated employees received more favorable treatment than she did.  Plaintiff had sought to compare herself to employees accommodated under the ADA, drivers who have lost their DOT certification for medical reasons, and employees injured on the job.  However, the Court concluded that a pregnant worker subject to a temporary lifting restriction is not “similar in her ‘ability or inability to work’ to an employee disabled within the meaning of the ADA or an employee either prevented from operating a vehicle as a result of losing her DOT certification or injured on the job.”   Id. at 34.

It is important to note however that this case may have had a different result if plaintiff had filed her claim after the effective date of the ADA Amendments Act of 2008 (the “ADAAA”) which recognizes temporary disabilities whereas the ADA does not.  As the Court noted in an important footnote, Congress did not make the ADAAA retroactive, and thus the Court did not consider how, if at all, the ADAAA’s amendments would have affected plaintiff’s ADA claim.