Schattman v. Texas Employment Commission

• Decision Date: 05 June 1972
• Docket Number: No. 71-1872.,71-1872.
• Parties: Mary Ellen SCHATTMAN, Plaintiff-Appellee, v. TEXAS EMPLOYMENT COMMISSION et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

459 F.2d 32 (1972)

Mary Ellen SCHATTMAN, Plaintiff-Appellee, v. TEXAS EMPLOYMENT COMMISSION et al., Defendants-Appellants.

No. 71-1872.

United States Court of Appeals, Fifth Circuit.

March 1, 1972.

As Amended March 17, 1972.

Rehearing and Rehearing Denied June 5, 1972.

Jack Sparks, J. C. Davis, Sam Lane, Asst. Attys. Gen., Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Samuel D. McDaniel, Staff legal Asst., Austin, Tex., for defendants-appellants.

Phillip B. Sklover, Office of the Gen. Counsel, Equal Employment Opportunity Comm., Washington, D. C., Robert H. Alvis, David G. Stubbeman, Abilene, Tex., for Timex Corp., amicus curiae; Wagstaff, Alvis, Alvis & Leonard, Abilene, Tex., of counsel.

Stanley P. Hebert, Gen. Counsel, John de J. Pemberton, Jr., Deputy Gen. Counsel, Julia P. Cooper, Chief, Appellate Section, Philip B. Sklover, David W. Zugschwerdt, Attys., E.E.O.C., Washington, D. C., for the United States Equal Employment Opportunity Comm. amicus curiae.

Nancy E. Stanley, Atty., E.E.O.C., Washington, D. C., on brief in support of petition for rehearing en banc.

David R. Richards, Clinton & Richards, Austin, Tex., for plaintiff-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 5, 1972.

COLEMAN, Circuit Judge:

This is a case in which a former employee of the Texas State Employment Commission attacked the employer's longstanding policy of terminating employment of pregnant female employees two months prior to expected delivery date. It was alleged that the policy violated the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The District Court so held, 330 F.Supp. 328 (W.D., Texas, 1971). We reverse.

I

Since 1956 the Employment Commission has maintained the following policy with reference to female employees from and after the seventh month of pregnancy:

"No employee anticipating maternity confinement may remain in active service with the commission later than two months before the expected delivery date. An earlier separation will be required if the employee\'s physical condition interferes with satisfactory performance of her normal and customary work assignments.

"Each employee anticipating maternity confinement shall, at the earliest practicable time, inform her immediate supervisor of the expected date of confinement and the name of her attending physician. This information, along with a specific description of the employee\'s work assignments, will be transmitted through channels to the Personnel Office. The appropriate Department Head or District Director shall thereafter, as circumstances warrant, make recommendations consistent with the purposes of this policy.

"An employee separated from the payroll in good standing under this policy, may, upon written application, be granted maternity leave without pay for a period not to exceed six months. If, at the end of that time, she has neither resigned nor been reinstated, she may request in writing one extension of not more than six months. Failure to apply for reinstatement or refusal of reinstatement offered before the expiration of an approved leave of absence will be treated as voluntary resignation.

"Reinstatement following maternity leave is not automatic. Each request for reinstatement will be reviewed and acted upon after consideration of current personnel needs and the employees\' previous work record with the commission."

In April, 1969, Mrs. Schattman was employed by the Texas Employment Commission as an employment interviewer, with the understanding that she would be trained to be a labor market analyst. In December, 1969, after the completion of the necessary courses of instruction, Mrs. Schattman was promoted to the position of Labor Market Analyst I. Her duties as a labor market analyst involved essentially desk work. Her work station consisted of two desks, one where she wrote and the other, containing a calculator and an adding machine, where she worked up computations. None of her duties required public contact, and the only physical exertion involved in her job was the lifting of file folders. It was stipulated by the appellants that Mrs. Schattman was a qualified employee and that her services as an employee were satisfactory.

In December, 1969, Mrs. Schattman advised her immediate supervisor, Mrs. Ivy Maude Smith, that she was pregnant and that the expected date of birth was around August 1, 1970. Thereafter, Mrs. Smith gave Mrs. Schattman a copy of the Texas Employment Commission's maternity leave policy. Notwithstanding this maternity leave policy Mrs. Schattman expressed her desire to continue working until two weeks before the expected date of delivery. Previously, she had been advised by her obstetrician that no reason existed to prevent her from working until two weeks before her expected date of delivery.

Anticipating a total absence from her job of six weeks—two weeks before delivery and four weeks after birth—Mrs. Schattman also discussed with Mrs. Smith an arrangement whereby she would complete much of her work in advance of her confinement, whereby she would train a clerk to do the necessary posting during her anticipated absence.

On April 22, 1970, Mrs. Smith sent the following interoffice memorandum to E. C. Logsdon, District Director of the Texas Employment Commission, relative to Mrs. Schattman:

"Reference is made to my memo of 12-4-69 notifying you of the subject employee\'s expected maternity confinement.

"A month ago, her physician told her he saw no reason why she could not work up to two weeks before expected confinement. She plans to seek temporary work elsewhere after TEC\'s seven month requirement.

"In view of the fact our maternity leave policy is some 14 years old, is it possible that this restriction has been relaxed?

"Mary Ellen does not work with the public, but is an analyst in the District Office working at a desk. The work is not of a nature to appear that it would harmful to her to continue past seven months. Once a month she prepares a report and makes one count in the local office, but this is done in the closing hours of the day, 4 P.M., or early in the morning in a booth. We are now training the clerk to do this work as a back up to the analyst during absence, even though the analyst will continue to prepare on regular basis because of information we are able to pick up which is helpful in analysis."

Thereafter, Mrs. Schattman was advised that the maternity leave policy of the Texas Employment Commission would be strictly enforced and that her active employment with the Commission would be closed on June 1, 1970. The Personnel Director of the Commission testified that Mrs. Schattman's employment termination was occasioned simply by the automatic application of the maternity leave policy of the Commission, that no medical opinions were considered, and that the requirements of her job as Labor Market Analyst I were likewise deemed immaterial.

On April 29, 1970, Mrs. Schattman filed her complaint with the Equal Employment Opportunity Commission.

On May 10, 1970, Mrs. Schattman wrote to Mrs. Nancy Sayers, Chairman and Executive Director of the Texas Employment Commission:

"I am a labor market analyst in the Austin District Office. On April 24, 1970, I was informed by my supervisor that May 29, 1970, would be my last day active duty under the TEC maternity leave policy. My expected date of confinement is August 1, 1970, and the doctor anticipates no reason why I could not work until two weeks prior to that date. Attempts were made through channels to secure a regular leave without pay which would allow me to continue until mid-July. Mr. Speer made the final decision on April 23, that the policy would be observed.

"I have filed a charge with the Equal Employment Commission protesting the TEC\'s maternity leave policy as violative of the 1964 Civil Rights Act, Title VII, prohibitions against discrimination according to sex.

"I will not voluntarily sign the separation report. Nevertheless, I wish to preserve my rights to reinstatement, and I will therefore sign the form only if ordered to do so.

"I regret that my action is necessary, but I wish to be a career employee and I do not feel that my condition warrants such a long disruption of my work."

Mrs. Sayers replied on May 14, 1970:

"You (sic) letter of May 10, 1970, indicates you may have some misunderstanding of the Commission\'s maternity leave policy on two points. First, the policy stipulates that no employee anticipating maternity confinement may remain in active service with the Commission later than two months before the expected delivery date. Second, reemployment is not automatic. Each request for reemployment is received and acted upon after consideration of current personnel needs and the employee\'s previous record with the Commission. Reemployment after separation from the payroll for any reason, including maternity, is at the discretion of the Commission in accordance with the Merit System Regulation.

"The Commission\'s maternity leave policy was adopted in 1956 after consideration of many factors including medical opinion, employee welfare, employee efficiency, and practices of other organizations, both public and private. The Commission believes it to be in the best interest of the employee and the agency. I am sorry that you do not agree.

"Please do not be concerned about having to sign a separation report. Employees are not required to sign these reports."

Being unsuccessful in her efforts to maintain her employment past the seventh month termination date, Mrs. Schattman's employment was terminated on May 29, 1970, pursuant to the maternity leave policy. The position remained vacant for over five weeks before another employee was permanently assigned to her job. After being discharged, and before the birth of her child on July 20, 1970, Mrs. Schattman...