Turic v. Holland Hospitality, Inc.

• Decision Date: 24 July 1996
• Docket Number: Nos. 94-1424,94-1467,s. 94-1424
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 28, 64 USLW 2806 Kimberly TURIC, Plaintiff-Appellee, Cross-Appellant, v. HOLLAND HOSPITALITY, INC., d/b/a Holiday Inn and Conference Center of Holland, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1211

85 F.3d 1211

71 Fair Empl.Prac.Cas. (BNA) 28, 64 USLW 2806

Kimberly TURIC, Plaintiff-Appellee, Cross-Appellant, v. HOLLAND HOSPITALITY, INC., d/b/a Holiday Inn and Conference

Center of Holland, Defendant-Appellant, Cross-Appellee.

Nos. 94-1424, 94-1467.

United States Court of Appeals, Sixth Circuit.

Argued May 25, 1995.

Decided June 17, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied July 24, 1996.

William J. Heaphy (argued and briefed), Vandeveer & Garzia, Holland, MI, for plaintiff-appellee, cross-appellant.

Sheila A. Kinney (argued and briefed), Patterson, Kinney & Ruga, Grand Rapids, MI, for defendant-appellant, cross-appellee.

Karen M. Moran (argued and briefed), E.E.O.C., Washington, DC, for amicus curiae.

Louise Melling, American Civil Liberties Union Foundation, New York City, Paul Denenfeld, Detroit, MI, for American Civil Liberties Union, American Civil Liberties Union of Michigan in No. 94-1467.

Before: KRUPANSKY, MILBURN, and BATCHELDER, Circuit Judges.

KRUPANSKY, J., delivered the opinion of the court, in which MILBURN, J., joined. BATCHELDER, J., delivered a separate concurring opinion.

KRUPANSKY, Circuit Judge.

Defendant-Appellant, Holland Hospitality, Inc. ("Holland Hospitality"), appealed the district court's award of compensatory damages, punitive damages and backpay to plaintiff, a former restaurant busser and room service attendant at its Holiday Inn in Holland, Michigan, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1991), as amended by the Pregnancy Discrimination Act ("PDA"). The court found that Holland Hospitality discharged Turic because she had become the subject of controversy among the hotel staff as a result of her perpended abortion. The court concluded, as a matter of law, that Turic's termination for the stated reason constituted gender-based discrimination which violated Title VII. Holland Hospitality appealed, asserting Turic's termination resulted from her failure to perform her assigned responsibilities. Holland Hospitality also appealed the court's legal conclusions that Title VII and the broad language of 42 U.S.C. § 2000e-2(a)(1) extend equal protection to contemplated abortions and permit the award of compensatory damages, punitive damages and backpay. ¹

In considering Turic's first assignment of error, this Court notes that Title VII of the Civil Rights Act of 1964 prohibits employers from "discharg[ing] any individual ... because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). In 1978, Congress enacted the Pregnancy Discrimination Act ("PDA"), an amendment to Title VII, to insure that discrimination against women because of pregnancy was covered by Title VII. Section 2000e(k) states:

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, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements with regard to abortion.

42 U.S.C. § 2000e(k). The lower court concluded that pregnancy "related medical conditions" included the right to an abortion. The EEOC guidelines interpreting this section, which are entitled to a high degree of deference under Griggs v. Duke Power, 401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55, 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. 1604 (1986) (emphasis added). Similarly, the legislative history of section 2000e(k) provides 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, 95th Cong., 2d Sess. 4, reprinted in 1978 U.S.C.C.A.N. pp. 4749, 4765-66 (emphasis added). Thus, the plain language of the statute, the legislative history and the EEOC guidelines clearly indicate that an employer may not discriminate against a woman employee because "she has exercised her right to have an abortion." Additionally, the Supreme Court has already considered the impact of the PDA in broadening the scope of prohibited sex discrimination under Title VII. In International Union v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991), the Court held that Title VII, as amended by the PDA, "prohibit[s] an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job." Id. at 206, 111 S.Ct. at 1207. In light of the plain language of the statute, the legislative history of the PDA, the EEOC guidelines, and the principles of Johnson Controls, the panel concludes that an employer who discriminates against a female employee because she has "exercised her right to have an abortion" violates Title VII.

Turic, however, did not claim, nor did the district court find, that she was terminated because she had exercised her right to have an abortion. Turic v. Holland Hospitality, Inc., 849 F.Supp. 544, 551 (W.D.Mich.1994). (In fact, Turic did not terminate her pregnancy, but carried it to term.) Rather, Turic's claim, and the district court's conclusion, was that she was fired because she contemplated having an abortion. The panel concludes, however, that this distinction has no effect on its result. A woman's right to have an abortion encompasses more than simply the act of having an abortion; it includes the contemplation of an abortion, as well. Since an employer cannot take adverse employment action against a female employee for her decision to have an abortion, it follows that the same employer also cannot take adverse employment action against a female employee for merely thinking about what she has a right to do. As a result, the district court's legal conclusion that Title VII, as amended by the PDA, applies to the action of Holland Hospitality in discharging Turic, is affirmed.

The district court's factual findings, including a finding of discriminatory intent in a Title VII nonjury case, are reviewed under a clearly erroneous standard. Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) ("If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it.") In Title VII cases, the plaintiff bears the initial burden of establishing a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (6th Cir.1991).

Once an employee has carried her initial burden, the burden of going forward shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for the adverse treatment. Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the employer satisfies its burden, the presumption of unlawful discrimination is nullified, and the burden returns to the employee to prove that the employer's reason was pretextual. Id.

In the instant case, the trial judge found that Turic's pondered abortion, which precipitated a controversy among the other employees, was a motivating factor for her discharge. The judge credited evidence that Turic's initial disciplining occurred only after other employees became aware of her contemplated action. Also, the record reflects that poor job performance was not discussed during the first meeting with Turic. At trial, the supervisors admitted that they had later edited Turic's personnel file and "expounded" on the record to add derogatory information about Turic's prior failure to properly call in sick and her failure to fill coffee urns. Furthermore, the judge, after viewing the defendant's witnesses and weighing their testimony, assigned greater credibility to Turic's evidence. He concluded that Turic was discharged because she was considering an abortion. Because the trial court's factual findings were not clearly erroneous, the court's decision regarding liability under Title VII is affirmed.

Holland Hospitality has also appealed the award of compensatory damages, punitive damages and backpay. The Civil Rights Act of 1991 amended Title VII to authorize an award of compensatory damages where an employer is found to have "engaged in unlawful intentional discrimination...." 42 U.S.C. § 1981a(a)(1). To be eligible for compensatory damages, Turic was required to prove that Holland Hospitality's unlawful actions caused her emotional distress. Carey v. Piphus, 435 U.S. 247, 263-64, 98 S.Ct. 1042, 1052-53, 55 L.Ed.2d 252 (1978). A plaintiff's own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff's burden in this...