Zuniga v. Kleberg County Hosp., Kingsville, Tex.

• Decision Date: 06 December 1982
• Docket Number: No. 81-2061,81-2061
• Citation: 692 F.2d 986
• Parties: 30 Fair Empl.Prac.Cas. 650, 30 Empl. Prac. Dec. P 33,213 Rita ZUNIGA, Plaintiff-Appellant, v. KLEBERG COUNTY HOSPITAL, KINGSVILLE, TEXAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 986

692 F.2d 986

30 Fair Empl.Prac.Cas. 650,

30 Empl. Prac. Dec. P 33,213

Rita ZUNIGA, Plaintiff-Appellant, v. KLEBERG COUNTY HOSPITAL, KINGSVILLE, TEXAS, Defendant-Appellee.

No. 81-2061.

United States Court of Appeals, Fifth Circuit.

Dec. 6, 1982.

Texas Rural Legal Aid, Inc., Robert J. Parmley, Kerrville, Tex., for plaintiff-appellant.

Joan E. Bertin, New York City, amicus curiae, for American Civil Liberties Union Women's Rights Project, et al.

Gary, Thomasson, Hall & Marks, Richard A. Hall, Corpus Christi, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, GEE and GARWOOD, Circuit Judges.

THORNBERRY, Circuit Judge:

This is a sex discrimination case. Rita Zuniga, an x-ray technician, appeals the decision of the district court that her rights under Title VII of the Civil Rights Act of 1964 were not violated when her employer, Kleberg County Hospital, terminated her employment upon learning that she was pregnant.

I. FACTS

In July 1971, Rita Zuniga was hired by Kleberg County Hospital as an x-ray technician. She was the first female x-ray technician ever employed by the Hospital.

Two years later, in January 1973, Zuniga mentioned to Wayne Aycock, the Hospital's administrator, that she and her husband were planning to start a family. Aycock informed Zuniga that if she became pregnant, she would have to resign her position or be terminated. She was told that she would not be granted a leave of absence, and would not be entitled to either sick leave, the maternity benefits generally available to female employees, or her Blue Cross-Blue Shield insurance coverage. Aycock also told her that he could not guarantee her reemployment after the birth of her baby. At the time Zuniga was informed of this unwritten termination policy for pregnant x-ray technicians, the Hospital had a discretionary leave of absence policy applicable to all other employees which guaranteed them their jobs upon their return. ¹ Zuniga, who was the only x-ray technician to become pregnant while Aycock was the Hospital's administrator, was also the only person ever denied a leave of absence during that period.

On May 8, 1973, Zuniga filed a charge with the Equal Employment Opportunity Commission [EEOC] alleging that Kleberg County Hospital's unwritten termination policy for pregnant x-ray technicians discriminated against women on the basis of sex.

On August 14, 1973, Zuniga discovered that she was pregnant and immediately informed Aycock of her condition. Aycock told her that she would have to resign or be fired. His decision was based solely on his concern over the possible effects of exposing the fetus to x-ray radiation, and his fear of a lawsuit against the Hospital by a future child.

Zuniga resigned on August 15, 1973. The Hospital offered her a job as a nurse's aide earning the minimum wage, which was substantially less than she earned as a technician. However, even that position did not become available until more than a month after Zuniga was fired. Although a vacancy did occur in the Hospital's x-ray department after the birth of Zuniga's child, she did not accept the Hospital's offer of reemployment at that time.

On April 23, 1976, the EEOC issued Zuniga a Notice of Right to Sue after informal methods of conciliation had failed. Zuniga filed suit against Kleberg County Hospital on July 20, 1976, alleging violations of section 703(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-2(a), ² and the equal protection clause of the fourteenth amendment. The case went to trial without a jury on February 13, 1980, and on January 23, 1981 the district court issued a final judgment for the Hospital. In its accompanying memorandum order, the court found that the Hospital had not discriminated against Zuniga on the basis of sex. The court concluded that the decision to terminate her was based on a valid business purpose that was not a pretext for sexual discrimination. ³ 3] The court also found that the Hospital's policy of prohibiting pregnant x-ray technicians from working in the x-ray department was the only effective means the Hospital had of carrying out its business purpose. ⁴

II. ANALYSIS

Zuniga raises two points of error on appeal. First, she argues that she established a prima facie case of sex discrimination below by showing that the Hospital's facially neutral policy of terminating pregnant x-ray technicians burdened women's employment opportunities without affecting those of men. Second, she asserts that the district court erred in finding that the Hospital established a valid business necessity defense to her prima facie case. We shall address these claims in the order in which they were raised.

The scheme of proof in disparate impact cases provides that once the employee has proved a prima facie case, the burden shifts to the employer to show that the discriminatory practice is a "business necessity," Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), "necessary to safe and efficient job performance." Dothard v. Rawlinson, 433 U.S. 321, 331 n. 14, 97 S.Ct. 2720, 2728, 53 L.Ed.2d 786 (1977); Clanton v. Orleans Parish School Board, 649 F.2d 1084, 1097-98 (5th Cir.1981). Should the employer meet its burden, the employee can overcome this defense by proving that the stated business necessity is merely a pretext for discrimination. Connecticut v. Teal, --- U.S. ----, 102 S.Ct. 2525, 2531, 73 L.Ed.2d 130 (1982); Dothard, 433 U.S. at 329, 97 S.Ct. at 2726-27; Albemarle Paper Company v. Moody, 422 U.S. 405, 425-26, 95 S.Ct. 2362, 2375-76, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 804-05, 93 S.Ct. 1817, 1825-26, 36 L.Ed.2d 668 (1973); see Lerma v. Bolger, 689 F.2d 589 (5th Cir.1982). ⁵ He may do this by showing that the employer could have used alternative practices to accomplish the same purpose without discriminatory effects. Albemarle, 422 U.S. at 125, 97 S.Ct. at 2375; Clanton, 649 F.2d at 1098; Langley v. State Farm Fire & Casualty Co., 644 F.2d 1124 (5th Cir.1981).

A. Prima Facie Case

In General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme Court held that an employer disability plan which provided non-occupational sickness and accident benefits to all employees but excluded disabilities arising from pregnancy did not violate section 703(a) of Title VII unless the exclusion of pregnancy benefits was shown to be a pretext for discriminating against women. ⁶ However, consistent with its earlier decisions, see, e.g., Washington v. Davis, 426 U.S. 229, 247, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976); Griggs, 401 U.S. at 431, 91 S.Ct. at 853 (1971), the Court held open the possibility of establishing a prima facie case of sex discrimination by showing that a facially neutral plan or classification had the effect of discriminating against the members of one class or another. Gilbert, 429 U.S. at 125, 97 S.Ct. at 408. ⁷

This alternative means of establishing a violation of section 703(a) was first applied in a sex discrimination case the following year in Nashville Gas Company v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977). There, the Court held that although an employer's policy of denying accumulated seniority to women returning from pregnancy leave was neutral on its face in its treatment of male and female employees, it nevertheless violated section 703(a)(2) because its effect was to discriminate against women. The Court distinguished Gilbert as holding only that women were not entitled to special, additional benefits denied men.

Here, by comparison, petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. The distinction between benefits and burdens is more than one of semantics. We held in Gilbert that Sec. 703(a)(1) did not require that greater economic benefits be paid to one sex or the other "because of their differing roles in 'the scheme of human existence,' " 429 U.S. at 139, 97 S.Ct. at 410 n. 17. But that holding does not allow us to read Sec. 703(a)(2) to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.

Id. at 142, 97 S.Ct. at 351.

In Clanton v. Orleans Parish School Board, 649 F.2d 1084 (5th Cir.1981), this Court held that a school board's teacher reinstatement policy violated section 703(a)(2) by vesting discretion in the superintendent of schools to determine when a teacher could return from maternity leave, while granting him no concomitant discretion with respect to teachers returning from sick leave. In that case, we read Satty to stand for at least the following two propositions:

(1) [A] pregnancy-based classification, though neutral on its face, violates Sec. 703(a)(2) of Title VII when its effect is to discriminate on the basis of sex and no showing of sex-based intent is required; and (2) a pregnancy-based classification that has the effect of depriving women of "employment opportunities" or of "adversely affect[ing] [their] status as an employee" [...] "impose[s] on women a substantial burden that men need not suffer," 434 U.S. at 142, 98 S.Ct. at 351, and, therefore, constitutes sex-based discrimination violative of Sec. 703(a)(2) of Title VII.

Id. at 1096. In Clanton, the Board's unique discretionary reinstatement policy for postpartal teachers conditioned their reemployment in such a manner as to deny them employment opportunities because of their pregnancy. Far from merely withholding from women potential benefits that men could not enjoy, this policy actually imposed on women a substantial burden that men did not have to suffer. Id. at 1097.

Applying the rules of Satty to the facts of the present case, we conclude as a matter of law that...