Equal Employ Opportunity Comm. v. Horizon/CMS Healthcare, No. 98-2328

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: MURPHY
• Citation: 220 F.3d 1184
• Parties: (10th Cir. 2000) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. HORIZON/CMS HEALTHCARE CORPORATION, Defendant-Appellee
• Decision Date: 31 July 2000
• Docket Number: No. 98-2328

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220 F.3d 1184 (10th Cir. 2000) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,
v.
HORIZON/CMS HEALTHCARE CORPORATION, Defendant-Appellee. No. 98-2328 UNITED STATES COURT OF APPEALS TENTH CIRCUIT July 31, 2000

Appeal from the United States District Court for the District of New Mexico. D.C. No. CIV-97-362-RLP

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Lisa J. Banks, Associate General Counsel, (C. Gregory Stewart, General Counsel, Philip B. Sklover, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, and Robert J. Gregory, Senior Attorney, Equal Employment Opportunity Commission, Washington, D.C., on the briefs), for Appellant.

Dean E. Westman, of Millisor & Nobil Co., L.P.A., Cleveland, Ohio, (Jim M. Dines and Cindy Lovato-Farmer, of Dines, Gross & Esquivel, P.C., Albuquerque, New Mexico, with him on the brief), for Appellee.

Before MURPHY and HOLLOWAY, Circuit Judges, and COOK,^* Senior District Judge.

MURPHY, Circuit Judge.

Plaintiff-Appellant, the Equal Employment Opportunity Commission (the "Commission"), brought a public enforcement

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action against Defendant, Horizon/CMS Healthcare Corporation. Seeking relief for four charging parties (the "Charging Parties") under the Pregnancy Discrimination Act, 42 U.S.C. 2000e(k), the Commission filed a complaint with the United States District Court for the District of New Mexico alleging Defendant had unlawfully denied the Charging Parties and a group of similarly-situated pregnant employees the opportunity to work modified duty when they became temporarily unable to perform heavy lifting due to their pregnancies. Defendant purportedly based its decision on a company policy allowing modified duty only for those employees injured on the job.

The district court granted Defendant's motion for summary judgment on the Commission's claim of disparate treatment. The summary judgment was premised on the Commission's twofold failure to establish a prima facie case of intentional discrimination: (1) the Charging Parties' lack of qualification for modified duty because they were not injured on the job; and (2) the absence of evidence the Charging Parties were treated less favorably than non-pregnant but otherwise similarly situated-employees.

The matter is before this court only on the Commission's appeal of the grant of summary judgment in favor of Defendant on the disparate treatment claim. Exercising jurisdiction pursuant to 28 U.S.C. 1291, 636(c)(3),¹ we reverse the grant of summary judgment and remand.

1. BACKGROUND

A. Facts

The following facts are undisputed or, because the Commission is the party opposing summary judgment, construed in the Commission's favor. See Curtis v. Oklahoma City Pub. Schs. Bd. of Educ., 147 F.3d 1200, 1214 (10th Cir. 1998). During the time period relevant to this lawsuit, Defendant owned and operated twenty-six, long-term care facilities in the state of New Mexico. The Charging Parties are former employees of Defendant. Three of the Charging Parties held the position of Certified Nursing Assistant ("CNA"). The job description for the position of CNA contained a requirement that the CNA be able to lift up to seventy-five pounds. The fourth Charging Party worked as an Activity Assistant. All four Charging Parties became pregnant during the term of their employment with Defendant. As a result of their pregnancies, the Charging Parties were placed under work restrictions by their respective physicians. The work restrictions included various limitations on the amount each Charging Party was allowed to lift. The work restrictions arose from the Charging Parties' pregnancies and not from any injury sustained by a Charging Party at work. Each Charging Party could have performed all of her job duties with the exception of the heavy-lifting.

Defendant had instituted and maintained a policy pursuant to which it allowed employees to work modified-duty positions consistent with any work restrictions imposed by the employee's physician (the "Modified Duty Policy" or the "Policy"). The terms of the Modified Duty Policy expressly limited its availability to those employees who had sustained "a work-related injury while working for Horizon Healthcare Corporation."² Pursuant to the terms of the Policy, Defendant had provided modified-duty assignments to employees who had suffered work-related injuries. Each Charging Party, however, applied for and was denied a modified-duty assignment. Because their work restrictions prevented them from performing all

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of their job duties, the Charging Parties were terminated, laid off, or placed on an unpaid leave of absence by Defendant.

B. Procedural History

The Charging Parties each filed a charge with the Commission alleging violations of Title VII of the Civil Rights Act of 1964 by Defendant. On March 19, 1997, the Commission filed a complaint³ asserting a claim that Defendant had engaged in unlawful employment practices on the basis of sex (pregnancy) by refusing to provide the Charging Parties with modified-duty assignments.

Construing the complaint to include both disparate treatment and disparate impact claims, Defendant moved for summary judgment. The Commission filed a cross-motion for summary judgment. The district court granted Defendant's motion for summary judgment on the Commission's disparate treatment claim but denied it on the disparate impact claim. The Commission's cross-motion for summary judgment was denied.

The Commission's disparate impact claim was tried to the district court. At the close of the Commission's evidence, Defendant filed a motion to dismiss which was granted by the district court. The Commission filed its notice of appeal on November 24, 1998, seeking to appeal both the district court's grant of summary judgment to Defendant on the disparate treatment claim and the district court's grant of Defendant's motion to dismiss on the disparate impact claim. The Commission has since abandoned its appeal of the grant of the motion to dismiss. Thus, this matter is before this court solely on the Commission's appeal of the grant of summary judgment on its disparate treatment claim.

II. DISCUSSION

A. Standard of Review

This court reviews de novo a grant of summary judgment. See Trujillo v. University of Colorado Health Sciences Ctr., 157 F.3d 1211, 1213 (10th Cir. 1998). Summary judgment is appropriate only if the admissible evidence shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995) (noting that only admissible evidence is considered when reviewing an order granting summary judgment). A fact is "material" if, under the governing law, it could have an effect on the outcome of the lawsuit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is "genuine" if a rational jury could find in favor of the nonmoving party on the evidence presented. See id.

The burden of showing that no genuine issue of material facts exists is borne by the moving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). When, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy this burden by identifying "a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671. This court draws all reasonable inferences in favor of the nonmoving party. See Curtis, 147 F.3d at 1214. If no genuine issue of material fact is in dispute, this court then determines whether the substantive law was correctly applied by the district court. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).

B. The Commission's Prima Facie Case of Disparate Treatment

Title VII of the Civil Rights Act of 1964 prohibits, among other things, unlawful employment discrimination on the basis of an individual's sex. See 42 U.S.C. 2000e-2. In 1976, the Supreme Court held that an employer's disability plan did

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not violate Title VII although it excluded pregnancy-related disabilities. See General Elec. Co. v. Gilbert, 429 U.S. 125, 140-41 (1976). In response to Gilbert, Congress passed the Pregnancy Discrimination Act ("PDA"). See Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. 2000e(k)); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678-79 & nn.15-17 (discussing legislative history of the PDA). Pursuant to the PDA, the definitional section of Title VII was amended by the addition of the following language:

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 Commission's disparate treatment claim was brought pursuant to Title VII of the Civil Rights Act of 1964 , as amended by the PDA. Claims brought under the PDA are analyzed in the same way as other Title VII claims of disparate treatment. See EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 947 (10th Cir. 1992). To prevail under Title VII, a plaintiff must show, through either direct or indirect evidence, that the discrimination complained of was intentional. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999). A plaintiff who lacks direct evidence of intentional discrimination may use the burden-shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04...