Thompson v. BD. OF ED. OF ROMEO COMMUNITY SCHOOLS

• Decision Date: 20 November 1981
• Docket Number: No. G75-557 C.A.,G75-557 C.A.
• Citation: 526 F. Supp. 1035
• Parties: Darlene THOMPSON, et al., Plaintiffs, v. BOARD OF EDUCATION OF the ROMEO COMMUNITY SCHOOLS, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

526 F. Supp. 1035

Darlene THOMPSON, et al., Plaintiffs, v. BOARD OF EDUCATION OF the ROMEO COMMUNITY SCHOOLS, et al., Defendants.

No. G75-557 C.A.

United States District Court, W. D. Michigan, S. D.

November 20, 1981.

COPYRIGHT MATERIAL OMITTED

Mary H. Job, Lansing, Mich., for plaintiffs.

Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for defendants; Robert M. Vercruysse, Detroit, Mich., Cholette, Perkins & Buchanan, Bruce M. Bieneman, Grand Rapids, Mich., of counsel.

OPINION

FOX, Senior District Judge.

This is a case wherein plaintiffs, individually and as representatives of a class, seek to challenge the policies and practices pertaining to pregnant teachers of certain named school districts and a class of school districts represented by those defendants. See, 71 F.R.D. 398 (W.D.Mich.1978) and Opinion and Order dated August 21, 1981. In this latter opinion, 519 F.Supp. 1373, the court responded in part to motions for summary judgment by both sides. The court at that time continued under advisement those portions of the motions directly addressing liability under Title VII and the Elliott-Larsen Civil Rights Act. Following plaintiffs' re-evaluation of factual statements in this matter and the resubmission of those statements to this court, those remaining issues will now be addressed.

Both sides have moved for summary judgment on the Title VII claims and the plaintiffs have moved for summary judgment on the claims based on the Elliott-Larsen Civil Rights Act. Federal Rule of Civil Procedure 56 requires a court to render judgment in favor of the moving party if the materials filed with the court indicate "that 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."

Summary judgment is particularly appropriate where the parties have agreed on the facts of the case. Wright and Miller, Federal Practice and Procedure § 2525. In the present case, many of the facts have been agreed to in the briefs discussing summary judgment. (See Appendix.) The party opposing the motion must do more than make allegations that there does exist a genuine issue for trial, SEC v. Bonastia, 614 F.2d 908 (3rd Cir. 1980), or assert legal conclusions. Willetts v. Ford Motor Company, 583 F.2d 852 (6th Cir. 1978).

Both sides to this controversy have outlined the policies of seven named defendant school districts. There is a dispute as to whether violations were alleged in the Three Rivers School District. For purposes of this action, all of these practices are alleged to share the common deficiency of resulting in sex discrimination in violation of Title VII and the Elliott-Larsen Act. Though specific policies may differ in detail, these policies may be categorized for the purpose of determining whether their underlying principles violate Title VII or the Elliott-Larsen Civil Rights Act. The categories are:

(1) Disparate treatment of individuals with pregnancy-related disabilities in the availability of sick leave, employer-paid fringe benefits, and seniority, tenure, retirement and salary increment credit for time on leave as compared to individuals on non-pregnancy disability leave;

(2) Required notice of pregnancy within a certain number of months, often as a prerequisite to receiving pregnancy leave;

(3) Required medical verification of a pregnant teacher's ability to perform her duties;

(4) Mandatory leave commencement dates at a specified month of pregnancy unrelated to individual ability to work;

(5) Length of service requirements for eligibility for pregnancy leaves; and

(6) Disparate treatment of women returning from pregnancy leave as compared to those returning from non-pregnancy disability leave in such matters as placement and date of reinstatement.

At this point of litigation, two of plaintiffs' grounds for relief are being considered by the court, Title VII of the Civil Rights Act of 1964 and the Elliott-Larsen Civil Rights Act, MCLA 37.2101 et seq. Both address the problem of discrimination in the employment field but do so independently of each other. Michigan Department of Civil Rights ex rel. Jones v. Michigan Department of Civil Service, 101 Mich. App. 295, 301 N.W.2d 12, 15-16 (1980), leave to appeal denied, No. 66368 (August 20, 1981); Taylor Federation of Teachers v. Board of Education, 76 Mich.App. 692, 693, 257 N.W.2d 664 (1977).

The Elliott-Larsen Civil Rights Act, enacted to replace the Fair Employment Practices Act, MCLA 423.301 et seq., prohibits employers from discriminating against an individual with respect to any condition or term of employment on the basis of sex. Though the Elliott-Larsen Act has an effective date of March 31, 1977, it continued the prohibition against sex discrimination embodied in the FEPA. See MCLA 423.303a.

"Sex" is defined in the Act as including pregnancy or conditions related to pregnancy excluding certain nontherapeutic abortions. MCLA 37.2201(d). This definition was added to the Act in 1978 following the United States Supreme Court decisions in General Electric v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), both discussed below. However, it has been held to be a clarification of existing law rather than a new interpretation. Michigan Department of Civil Rights v. Michigan Department of Civil Service, 101 Mich.App. at 304, 301 N.W.2d at 16. This court also held that pregnancy-based discrimination violated the FEPA. Id. Therefore, any policy or action by defendants that distinguishes or discriminates on the basis of pregnancy violates state law.

The federal law prior to October 31, 1978 is not as clear cut. On that date, legislation was enacted and became effective that defined Title VII's proscription against discrimination "on the basis of sex" and "because of sex," 42 U.S.C. § 2000e-2, to include pregnancy and its related medical conditions for all employment purposes. 42 U.S.C. § 2000e(k). There is an exception to this proscription in the case of a "bona fide occupational qualification reasonably necessary to the normal operation" of the enterprise. 42 U.S.C. § 2000e-2(e).

Therefore, in evaluating employment practices subsequent to October 31, 1978, policies which create distinctions or discriminate on the basis of pregnancy are in violation absent a showing of a bona fide occupational qualification.

Prior to the 1978 amendments to Title VII, the United States Supreme Court had limited liability in such a situation to instances where the action of an employer imposed a burden on the employment opportunities of pregnant women. The Court in Gilbert held that an employer's disability insurance plan that excluded pregnancy-related disabilities did not violate Title VII of the Civil Rights Act of 1964. The Court found that the plan was a facially neutral insurance program that only excluded pregnancy-related disability benefits.

The following year, the Supreme Court in Satty ruled that an employer's policy of denying sick leave benefits for disability due to pregnancy and childbirth did not violate Title VII as interpreted by Gilbert. However, an employer's "policy of depriving employees returning from pregnancy leave of their accumulated seniority acts both to deprive them `of employment opportunities' and to `adversely affect their status as an employee.'" 434 U.S. at 141, 98 S.Ct. at 350. The sick leave of Satty and the insurance exclusion of Gilbert were distinguished by Justice Rehnquist, who authored both opinions of the Court, since by eliminating accumulated seniority the employer had "not merely refused to extend to women a benefit that men cannot and do not receive, but had imposed on women a substantial burden that men need not suffer." 434 U.S. at 142, 98 S.Ct. at 351. It is true that Title VII does not require that pregnancy result in "greater economic benefits" being paid to some, but it does not allow "an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role `in the scheme of human existence,' Gilbert, 429 U.S. at 139, n. 17, 97 S.Ct. at 410." 434 U.S. at 142, 98 S.Ct. at 351. The Court found support for this holding in the 1972 EEOC guidelines which specified that "`written and unwritten employment policies and practices involving ... the accrual of seniority ... and reinstatement ... shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.' 29 CFR § 1604.10(b) (1976)." 434 U.S. at 142, n. 4, 98 S.Ct. at 351. An otherwise facially-neutral disability benefit plan which is challenged as being under-inclusive for excluding pregnancy can be overturned by Title VII only if it is used as a pretext for discrimination. 434 U.S. at 144, 98 S.Ct. at 352. When "the direct effect of the exclusion is merely a loss of income for the period the employee is not at work, such an exclusion has no direct effect upon either employment opportunities or job status." 434 U.S. at 145, 98 S.Ct. at 353.

The liability determination, in accord with the above discussion, is divided into three parts: Elliott-Larsen, post-Gilbert amendment Title VII, and pre-Gilbert amendment Title VII.

It is the holding of this court that the Michigan Civil Rights Act prohibits distinctions in employment practices based on pregnancy or pregnancy-related conditions. Thus, the policies of the defendants violate that Act and the plaintiffs have made out a prima facie case against the defendants, and the plaintiffs are entitled to prevail as a matter of law.

Likewise, defendants' policies constitute disparate treatment on the basis of sex, in violation of Title VII subsequent to October 31, 1978. Plaintiffs have made out a prima facie case for those challenged policies of defendants which continued past that date.

A more detailed discussion is...