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New boss’s no light-duty policy neither hostile nor discriminatory

By Victoria C. Cohen, J.D.

When a pregnant airline employee asked for light-duty work and her supervisor suggested an unpaid medical leave if she could not perform the essential functions of the job, then required medical documentation that she could work without restrictions, a federal court in Louisiana held that there was no pregnancy discrimination or hostile work environment. The employer had the right to let its supervisor uniformly apply a policy of refusing all light-duty requests and to inform the employee that she must be able to perform the essential functions of the job. Comments from coworkers on several occasions that she was faking illness to avoid work did not rise to the level of a hostile work environment (Price v. American Eagle Airlines Inc., December 22, 2014, Trimble, J.).

The employee worked as a station agent, a job that required checking in passengers for flights, assisting with ticketing or rebooking issues, lifting and transporting luggage to and from various locations in the airport, and loading and unloading luggage from the aircraft. During her first pregnancy, she received an informal light-duty assignment from her supervisor, who told her not to lift heavy bags. During her second pregnancy, the same supervisor placed her on light duty again.

New supervisor, new rules. Shortly afterwards, that supervisor was replaced by a new station manager, who denied her a light-duty assignment and told her that if she could not perform the full duties of her job, she would need to take unpaid maternity leave until the baby was born. She was required to produce documentation from her physician stating that she had no restrictions in order to avoid unpaid leave. Several coworkers harassed her, accusing her of “milking” her pregnancy and faking her difficulties. She was required to lift heavy bags against her wishes. When she was scheduled to fly to Dallas for job training, she felt ill and wanted to rebook but did not tell her supervisor, only coworkers. She attended the training and when she returned, she was admitted to the hospital with preeclampsia, delivering her daughter prematurely two days later. She emailed with her supervisor regarding her plans to return to work, but the supervisor became upset and refused to respond to her.

Resignation and complaints. The employee filed a complaint about the supervisor’s conduct and resigned her position several months later. She filed a charge of discrimination with the EEOC and received a right-to-sue letter, then sued under the Pregnancy Discrimination Act and state law. The employer moved for summary judgment.

No constructive discharge. The court found that the employee could not make out a prima facie case of pregnancy discrimination because she did not suffer an adverse employment action; her resignation did not constitute a constructive discharge. In order to make out a showing of constructive discharge, she had to show harassment greater than a hostile work environment claim as well as aggravating factors such as a demotion, reduction in salary or responsibilities, or badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation. Disparaging remarks about her “milking” her pregnancy to get out of some of her duties or faking her illness on the morning of her training in Dallas, and her supervisor’s refusal to grant light-duty status, requirement that she submit a fitness for duty letter from her doctor, and subsequent refusal to respond to email after her daughter’s birth did not amount to severe and pervasive harassment. Because the alleged treatment did not rise to the level that would cause a reasonable person to resign from her job, there was no adverse action.

Different supervisors, different outcomes. The court also found that the employee failed to identify a similarly-situated non-pregnant employee treated more favorably. The employee identified a station agent who suffered from carpal tunnel syndrome, wore an arm brace, and was allowed to work with a lifting restriction on bags weighing no more than ten pounds. However, this light-duty assignment was approved by the employee’s former supervisor, not her current supervisor. The employer’s HR director stated that there was no company-wide light-duty policy; rather, supervisors had discretion to set their own policies. Because the light-duty assignment was denied by the employee’s current supervisor and not her former supervisor, the employee with carpal tunnel syndrome was not similarly situated.

Policy applied consistently. Even if the employee had made out a prima facie case of pregnancy discrimination, the court found that the employer was able to rebut any presumption of discrimination with its legitimate, nondiscriminatory reason. Here, supervisors were given discretion to set their own light-duty policies for employee injuries and were instructed to apply them consistently. In the event that light-duty work was not available and an employee was not able to perform the full duties of the job, supervisors were told that an employee could be accommodated with a leave of absence to which he or she was entitled. Using her discretion, the employee’s supervisor chose not to offer light-duty status to any employee under any circumstances.

Not severe or pervasive. Nor did the employee’s allegations of harassment rise to the level of a hostile work environment. She claimed that her coworkers accused her several times of faking her illness and that her supervisor had a “combative nature” in emails with her after her daughter was born. This conduct was not severe or pervasive enough to have impacted a term or condition of her employment.

Not harassment to explain rights. As for the employee’s complaints that her supervisor suggested she take unpaid leave and required a doctor’s letter stating that she had no restrictions, the court noted that the employer was within its rights to require the employee to perform the essential functions of her job. Nor could the court conclude that the supervisor’s conduct in explaining that the employee would need to provide documentation that she could perform the essential functions of the job and to take unpaid medical leave if she could not, was harassment as a matter of law.

Faragher/Ellerth defense. The employer submitted evidence of its policies against harassment in the workplace and the procedures for reporting harassment, and it argued that the employee failed to take advantage of them. The employee made no counterargument and in her own testimony admitted that her resignation was probably a surprise to her superiors because she thought only one of her coworkers knew of her unhappiness. This was another reason to grant summary judgment on the employee’s Title VII hostile work environment claim, concluded the court.