Doe v. C.A.R.S. Protection Plus, Inc.

• Decision Date: 30 May 2008
• Docket Number: No. 06-3625.,No. 06-4508.,06-3625.,06-4508.
• Citation: 527 F.3d 358
• Parties: Jane DOE, Appellant at No. 06-3625 v. C.A.R.S PROTECTION PLUS, INC.; Fred Kohl Jane Doe v. C.A.R.S Protection Plus, Inc.; Fred Kohl, C.A.R.S Protection Plus, Inc., Appellant at No. 06-4508.
• Court: U.S. Court of Appeals — Third Circuit

527 F.3d 358

Jane DOE, Appellant at No. 06-3625 v. C.A.R.S PROTECTION PLUS, INC.; Fred Kohl

Jane Doe v. C.A.R.S Protection Plus, Inc.; Fred Kohl, C.A.R.S Protection Plus, Inc., Appellant at No. 06-4508.

No. 06-3625.

No. 06-4508.

United States Court of Appeals, Third Circuit.

Argued October 31, 2007.

Filed May 30, 2008.

Gary M. Davis, Esq. (Argued), Pittsburgh, PA, for Appellant/Cross Appellee.

Robert J. Waine, Esq., (Argued), C.A.R.S. Protection Plus, Inc. Murrysville, PA, for Appellee/Cross Appellant.

BEFORE: RENDELL and NYGAARD, Circuit Judges, and McCLURE,^* District Judge.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Jane Doe sued her former employer, C.A.R.S. Protection Plus, Inc. (CARS), alleging employment discrimination based on gender, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. The District Court granted the employer's motion for summary judgment, finding that Doe had failed to establish a prima facie case of discrimination. We will reverse.

I.

We exercise plenary review over the District Court's grant of summary judgment and apply the same standard, i.e., whether there are any genuine issues of material fact such that a reasonable jury could return a verdict for the plaintiff. FED.R.CIV.P. 56(c); Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir.2003) (citation omitted). We view the facts of this case in the light most favorable to the nonmoving party and draw all inferences in that party's favor. Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994).

In an employment discrimination case, the burden of persuasion on summary judgment remains unalterably with the employer as movant. The employer must persuade us that even if all of the inferences which could reasonably be drawn from the evidentiary materials of record were viewed in the light most favorable to the plaintiff, no reasonable jury could find in the plaintiff's favor. See Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 201-02 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988).

A.

CARS does business in several states insuring used cars. CARS hired Jane Doe as a graphic artist in June 1999. Doe's sister-in-law, Leona Dunnett, was the CARS office manager. Fred Kohl, Vice-President and part-owner of the company, was Doe's supervisor. In May of 2000, Doe learned that she was pregnant. When she told Kohl she was pregnant, she asked Kohl about making up any time missed for doctor's appointments. Kohl told Doe they would "play it by ear."

On Monday, August 7, 2000, Doe's doctor telephoned her at work to inform her that problems were detected in her recent blood test and that further tests were necessary. An amniocentesis test was scheduled for the next day. Kohl was not in the office on August 7, 2000, so Doe told Leona Dunnett and Alivia Babich (who was Kohl's personal secretary), that she needed to be off work on Tuesday, August 8, 2000. Babich notified Kohl that Doe would be absent.

The amniocentesis test was not performed on the 8th, but a sonogram was, and additional tests were scheduled for the following day. Doe's husband telephoned Kohl and informed him that there were problems with the pregnancy and that the test would be performed on August 9th. Kohl approved the absence and said to contact him the next day.

On Wednesday, August 9th, Doe learned that her baby had severe deformities and her physician recommended that her pregnancy be terminated. That afternoon, Doe's husband again telephoned Kohl and told him that Doe would not be at work the next day. Kohl approved the absence and asked that Doe's husband call him the following day.

Doe had an additional doctor's appointment on Thursday, August 10th. Doe's husband testified that he called CARS again on that Thursday, and first spoke to Leona Dunnett. Then, he spoke with Kohl and told him that the pregnancy would be terminated the following day. Doe's husband requested that she be permitted to take one week of vacation the following week. According to Doe's husband's testimony, Kohl approved the request for a one-week vacation. Her pregnancy was terminated on Friday, August 11, 2000. Neither Doe nor her husband called Kohl over the weekend of August 12th.

A funeral was arranged for Doe's baby on Wednesday, August 16th. Kohl gave Leona Dunnett (the baby's aunt) permission to take one hour off work to attend the funeral. As she was leaving for the funeral, Leona noticed Babich packing up Doe's personal belongings from her desk. After the funeral, Leona told Doe what she had seen. Doe called Kohl who told her that she had been discharged.

After Doe was discharged from her employment at CARS, she filed a timely charge with the EEOC and was issued a right-to-sue letter. Doe filed this lawsuit, alleging employment discrimination based on gender, a violation of Title VII, as amended by the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k). Doe maintained that CARS terminated her employment because she underwent a surgical abortion.

We note at the outset that Doe does not assert a typical pregnancy discrimination claim. She does not claim, for example, that she was discriminated against because she was pregnant or that she had been fired while on maternity leave. Instead, she argues that she was discharged because she underwent a surgical abortion. Whether the protections generally afforded pregnant women under the PDA also extend to women who have elected to terminate their pregnancies is a question of first impression in this Circuit.

II.

A.

The PDA makes it an "unlawful employment practice for an employer to discriminate against any of his employees because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a); see also Curay-Cramer v. Ursuline Acad. of Wilmington, Delaware, 450 F.3d 130 (3d Cir.2006). In Curay-Cramer, the Appellant argued that Title VII's opposition clause protects any employee who has had an abortion, who contemplates having an abortion, or who supports the rights of women who do so. Id. at 134. Although we did not directly address the question in that case, we pointed to a decision of the Court of Appeals for the Sixth Circuit with approval:

We note that the Sixth Circuit Court of Appeals has held that "an employer may not discriminate against a woman employee because `she has exercised her right to have an abortion.'" Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1214 (6th Cir.1996) (quoting H.R. REP. NO. 95-1786 (1978) (Conf.Rep.), reprinted in 1978 U.S.C.C.A.N. 4749, 4765-66). Extending that principle, the Sixth Circuit further held that an employer "cannot take adverse employment action against a female employee for merely thinking about what she has a right to do." Id. Likewise, the Equal Employment Opportunity Commission (EEOC) has taken the position that it is an unlawful employment practice to fire a woman "because she is pregnant or has had an abortion." 29 C.F.R. pt. 1604, App. (1986).

Id. at 134 n. 2.

The PDA states that

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). The EEOC guidelines interpreting this section, to which we give a high degree of deference under Griggs v. Duke Power, 401 U.S. 424, 433-34, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), expressly state that an abortion is covered by Title VII:

The basic principle of the [PDA] is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired ... merely because she is pregnant or has had an abortion.

Appendix 29 C.F.R. pt. 1604 App. (1986). Similarly, the legislative history of section 2000e(k) provides the following guidance:

Because [the PDA] applies to all situations in which women are "affected by pregnancy, childbirth, and related medical conditions," its basic language covers women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.

H.R. Conf. Rep. No. 95-1786 at 4 (1978) as reprinted in 95th Cong., 2d Sess. 4, 1978 U.S.C.C.A.N. 4749, 4766. Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion. We now hold that the term "related medical conditions" includes an abortion.

B.

We turn now to Doe's pregnancy discrimination claims. As earlier noted, Title VII prohibits employment discrimination based on an individual's sex. 42 U.S.C. § 2000e-2(a). The prohibition is breached "whenever an employee's pregnancy [or related medical condition] is a motivating factor for the employer's adverse employment decision." In re: Carnegie Ctr. Assoc., 129 F.3d 290, 294 (3d Cir.1997). The PDA does not, however, require preferential treatment for pregnant employees. Instead, it mandates that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work. Id. at 297; see also Tysinger v. Police Dept. City of Zanesville, 463 F.3d 569, 575 (6th Cir.2006).

Disparate treatment discrimination is proven by either using direct evidence of intent to discriminate or using indirect evidence from which a court could infer intent to discriminate. Doe supports her claim with evidence from which...