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The Eleventh Circuit reminds us that an employee does not have to show that a similarly situated person was treated better if there is other evidence of bias.

June 12th, 2012  |  Lorene Park

In a June 11, 2012 decision (Chapter 7 Trustee v Gate Gourmet, Inc, Carnes, E), the Eleventh circuit determined that a pregnant employee who was denied light duty by her supervisor and then terminated did not need to provide evidence of a nonpregnant coworker who was treated more favorably in order to defeat summary judgment on her pregnancy discrimination claim. The employee worked for a caterer servicing the local airport. Her position required driving a truck to the gate, using the lift to get the container to the airplane, and pushing 30 carts across the ramp. She discussed the pregnancy with her supervisor, insisting that she could do her job, but he required that she get a doctor’s note. She provided a doctor’s note which restricted her from shifts greater than 8 hours, lifting more than 20 lbs, prolonged standing, and working at heights that increased the chance of falling. Without checking whether there were light-duty positions open, the supervisor told her there were no jobs that could accommodate her restriction. She asked him to forget the note but he refused and told her she was terminated.

The employee filed a grievance and EEOC charge alleging pregnancy discrimination, among other claims. Upon receiving the grievance, the general manager met with HR and they decided to offer her a light-duty job. The general manager also issued the supervisor a reprimand letter stating that telling the employee she was terminated due to medical restrictions violated company policy and Title VII. The letter also stated that the supervisor failed to get permission to fire her and that she was not in fact terminated. After the employer received notice of the EEOC charge, it offered to give the employee her job back if she would dismiss the charge. The employee spoke briefly to HR but no further conversations took place and she filed suit. The district court granted the employer’s motion for summary judgment on all claims, and the employee appealed.

No comparator needed. The Eleventh Circuit reversed the decision on the employee’s Pregnancy Discrimination Act claim, finding sufficient indirect evidence to defeat summary judgment. The employer argued that she had failed to identify a nonpregnant comparator who was treated differently, but the appellate court pointed out that the McDonnell Douglas framework was not the only way to use circumstantial evidence and her failure to produce a comparator was not dispositive.

Here, there was other evidence from which a jury could infer that the supervisor discriminated against the employee because of her pregnancy, including telling her he knew she was pregnant and would not be able to do her job eventually; telling her to get a doctor’s note; telling her she was fired though she insisted she could do the job; and failing to contact his superiors to find out if there was a light-duty job available. Further, the HR rep admitted in deposition that the pregnancy was a “motivating factor” in the supervisor’s decision to tell the employee she was fired and the reprimand letter to the supervisor stated his actions violated company policy and constituted discrimination.

Other claims. In addition, the fact that the employer had decided to unconditionally offer a light-duty position to the employee until it learned of her EEOC charge and then made the position conditional on her dismissing the charge was evidence of a causal link between her protected activity (filing the charge) and the adverse action (making the offer conditional) so summary judgment on the retaliation claim was reversed as well. On the other hand, the appellate court agreed with the district court that there was insufficient evidence that the decision maker (who was also white) denied her light duty and told her she was terminated because of her race. Summary judgment on the race discrimination was therefore affirmed.