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Pregnant FedEx worker denied temporary reassignment advances disparate impact claim

By Kathleen Kapusta, J.D.

A part-time FedEx employee who was placed on a lifting restriction after becoming pregnant, and who was then not allowed to continue working because the restriction prevented her from being able to lift 75 pounds, can proceed to trial on her disparate impact claim under the Pregnancy Discrimination Act, a federal court in Tennessee ruled. Denying summary judgment, the court found she presented evidence indicating that FedEx’s then-current policy that part-time employees who were placed on non-work related medical leave were categorically ineligible to return to work on temporary reassignments had an adverse impact on pregnant women. Her disparate treatment claim failed however (Adduci v. Federal Express Corp., March 21, 2018, McCalla, J.).

As a material handler, the employee had to be able to lift 75 pounds unassisted in order to load and unload aircraft, containers, and FedEx vehicles. When she became pregnant, her doctor restricted her from lifting more than 25 pounds. Because she could no longer lift 75 pounds unassisted, she was told she could not continue working. Although FedEx allowed employees who were unable to perform the full range of their regular job duties to seek temporary work reassignments through its Temporary Return to Work (TRW) program, at that time, the Air Freight Ground Services division maintained a policy providing that its part-time employees who were placed on non-work related medical leave could not return to work on temporary reassignments.

Unpaid leave. After purportedly verifying that there was no temporary work available that did not require lifting more than 25 pounds, FedEx placed the employee on unpaid medical leave. While she was on leave, it sent her several letters asking for updates on her status and requesting medical documentation. When she failed to comply, she was terminated, purportedly after the company verified that there was no temporary work available within her lifting restriction.

Disparate treatment. As to the employee’s disparate treatment claim alleging she was denied TRW on the basis of her pregnancy, the court found a genuine fact dispute as to whether she was denied a temporary reassignment because there was no work available to someone with her lifting restriction or because of the policy excluding all part-time workers from temporary reassignments based on non-work related medical issues. If her request for leave was denied because no work was available, then her injury was not being given temporary reassignment work, said the court, observing that it would have to consider whether comparable persons were given that benefit. But if her request was denied because the policy excluded her from temporary reassignment work, then her injury was exclusion from applying for temporary reassignment work, and the issue would be whether comparable persons were given that benefit. Nonetheless, this fact was not material to her disparate treatment claim, said the court, finding that it did not affect the outcome of the suit as to this claim.

Denial of reassignment work. If the jury was the denial of reassignment work (she claimed that non-pregnant employees with similar ability or inability to work were given temporary work reassignments), she failed to support that claim with any proof. Her own testimony was not admissible because it was not based on personal knowledge. As to a spreadsheet that listed several FedEx part-time employees’ names, positions at the company, whether the employees worked part-time or full-time, and dates of their work reassignments, it did not contain sufficient information to identify which of these employees had an ability or inability to work similar to the employee’s.

Denial based on policy. Turing to whether FedEx’s then-current policy discriminated against the employee by not allowing her to apply for the TRW program, the court observed that it allowed full-time employees and part-time employees on work-related medical leave to apply for temporary assignment work, even those workers who had similar lifting restrictions. Here, the court found that the employee failed to show that another employee with a similar lifting restriction was allowed to apply for the TRW program. Accordingly, FedEx was entitled to summary judgment on this claim.

Disparate impact. The employee also claimed that FedEx’s policies “cause a disparate impact on pregnant women because the effect of requiring pregnant women to ask their doctors to remove the lifting requirement without determining whether the pregnant women can perform their jobs without requiring them to take unpaid leave falls more harshly on pregnant women than other employees.” In support, she argued the spreadsheet of 261 part-time FedEx employees who were granted work reassignments or light duty in 2014 “indicates a causal link between FedEx’s pre-2015 policies and a ‘statistically significant… imbalance’ in the number of employees denied light-duty work because of pregnancy rather than another condition.” Further, she contended that FedEx’s temporary job reassignment program “is not available to women who are pregnant [and who] have a lifting restriction. Thus, this policy has a disparate impact on women who are pregnant and have a lifting restriction.”

Pointing out again that a fact dispute existed as to why FedEx denied the employee a temporary assignment work, the court found that for her disparate impact claim, it was material for two reasons. First, she only challenged the exclusionary policy under this theory.

Second, said the court, there was record evidence the policy had a disproportionate impact on pregnant women. The policy excluded all part-time employees from seeking TRW placement to return from non-work related medical leave. The employee’s pregnancy was considered non-work related medical leave, and, said the court, reading the record in the light most favorable to the employee, other pregnancies would have been considered non-work related medical leave. “Continuing to read the record in the light most favorable” to the employee, the court observed that the policy was enforced, and 100 percent of TRW requests were denied when made because of pregnancies by material handlers who worked part-time in the employee’s division.

Further, her spreadsheet contained a list of FedEx employees whose TRW requests were granted while the policy was in place. That list contained several material handlers who worked part-time in the offload area. The fact that those employees’ requests were granted means that less than 100 percent of TRW requests were denied when made by members outside of the protected class of pregnant women. Accordingly, the employee presented information, considered collectively in the form of data, indicating that the policy had an adverse impact on a protected group, and there was a genuine issue of material fact as to whether she suffered, as a member of a protected class, a disparate impact under that policy.