Durham v. Rural/Metro Corp., No. 18-14687

955 F.3d 1279

Kimberlie Michelle DURHAM, Plaintiff-Appellant,

v.RURAL/METRO CORPORATION, Defendant-Appellee.

No. 18-14687

United States Court of Appeals, Eleventh Circuit.

April 17, 2020

Heather Newsom Leonard, Heather Leonard, PC, BIRMINGHAM, AL, Randall C. Marshall, American Civil Liberties Union, MONTGOMERY, AL, Gillian L. Thomas, American Civil Liberties Union Foundation, NEW YORK, NY, for Plaintiff-Appellant KIMBERLIE MICHELLE DURHAM.

Steven W. Moore, Heidi Wilbur, Attorney, Constangy Brooks Smith & Prophette, LLP, DENVER, CO, Kacy L. Coble, Constangy Brooks Smith & Prophete, MEMPHIS, TN, Tammy Cecile Woolley, Constangy Brooks Smith & Prophete, LLP, BIRMINGHAM, AL, for Defendant-Appellee RURAL/METRO CORPORATION.

Dina Bakst, Christine Tschiderer Dinan, A Better Balance, NEW YORK, NY, Elizabeth Gedmark, A Better Balance, NASHVILLE, TN, Elizabeth Cara Morris, Hastings College of the Law (U.C.) Center for Gender & Refugee Studies, SAN FRANCISCO, CA, for Amicus Curiae A BETTER BALANCE.

Elizabeth Cara Morris, Hastings College of the Law (U.C.) Center for Gender & Refugee Studies, SAN FRANCISCO, CA, for Amicus Curiae CENTER FOR WORKLIFE LAW.

Julie Loraine Gantz, Equal Employment Opportunity Commission Office of General Counsel-Appellate Services, WASHINGTON, DC, for Amicus Curiae EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

Before ED CARNES, Chief Judge, and ROSENBAUM and BOGGS,^* Circuit Judges.

PER CURIAM:

The Pregnancy Discrimination Act commands that pregnant women "be treated the same ... as other persons not so affected but similar in their ability or inability to work[.]" 42 U.S.C. § 2000e. Five years ago, in Young v. United Parcel Service , 575 U.S. 206, 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015), the Supreme Court addressed anew the doctrine courts are to use to assess indirect evidence of intentional discrimination in violation of the PDA. This case presents a question of first impression as to how to implement the Young test.

Plaintiff-Appellant Kimberlie Durham’s job as an emergency medical technician ("EMT") for Defendant-Appellee Rural/Metro Corporation ("Rural") required her to lift 100 pounds regularly. So when Durham’s physician advised her to refrain from lifting more than 50 pounds while she was pregnant, Durham asked Rural for a temporary light-duty or dispatcher assignment for the duration of her pregnancy. Rural had provided these same accommodations to other EMTs who had suffered injuries on the job and were restricted to lifting no more than 10 or 20 pounds as a result. On the other hand, Rural had a policy of not granting such accommodations to employees who had been injured off the job. Rural also had a policy that allowed it to accommodate those with disabilities on a case-by-case basis.

Rural declined Durham’s request for accommodation, and Durham filed suit, alleging discrimination under the PDA. Rural moved for summary judgment.

The district court granted Rural’s motion after concluding that Durham had failed to establish a prima facie case of discrimination under the PDA. To reach this conclusion, the district court mistakenly determined that Durham and the nonpregnant Rural EMTs who could not lift the required 100 pounds were not "similar in their ability or inability to work." The court arrived at this determination because it erroneously factored into the "similar in their ability or inability to work" evaluation the distinct, post-prima-facie -case consideration of Rural’s purported legitimate, non-discriminatory reasons for treating Durham and the non-pregnant employees differently.

We therefore vacate the grant of summary judgment. Neither a non-pregnant EMT who is limited to lifting 10 or 20 pounds nor a pregnant EMT who is restricted to lifting 50 pounds or less can lift the required 100 pounds to serve as an EMT. Since neither can meet the lifting requirement, they are the same in their "inability to work" as an EMT. And that satisfies the plaintiff’s prima facie requirement to establish that she was "similar [to other employees] in their ability or inability to work."

But because the district court determined that Durham did not make a prima-facie- case showing, it did not have occasion to separately evaluate Rural’s purported legitimate, non-discriminatory reasons for denying Durham her requested accommodation. Nor did it consider whether Durham had pointed to sufficient evidence to raise a genuine issue of fact concerning whether Rural’s stated reasons for treating Durham differently than other EMTs with lifting restrictions were pretextual. We therefore remand to the district court to make these assessments in the first instance.

I.

Since we are reviewing an order granting summary judgment in this appeal, we set forth the evidence in the light most favorable to Durham, as the non-moving party, and draw all reasonable inferences in her favor. Pesci v. Budz , 935 F.3d 1159, 1165 (11th Cir. 2019).

Rural provided private ambulance and fire-protection services in 21 states, including Alabama. Durham began working for Rural in St. Clair County, as an emergency medical technician ("EMT"), in the first week of March 2015. She regularly worked more than 40 hours per week.

Durham’s duties, among others, included assisting her medic partner with anything he needed in patient care. That required Durham to help lift the stretcher, which itself weighed more than 100 pounds, and lift the patient to and from the stretcher. In addition, Durham had to move equipment between trucks and restock her truck’s supplies. These duties demanded Durham physically lift things "[p]retty much all day long."

At the end of August 2015, Durham learned she was pregnant. At her next doctor’s appointment, which occurred in September, Durham’s doctor advised Durham not to lift more than 50 pounds during her pregnancy. So following that appointment, Durham told Mike Crowell, then the general manager for Rural’s St. Clair operations,¹ about her pregnancy and the lifting restriction.

In response, Crowell informed Durham that she would not be able to work on the truck. Durham agreed. So Durham asked to work either light duty or dispatch.

Rural had a light-duty-type policy, called the Transitional Work Program ("Light-duty Policy"). Under that Policy, Rural would "temporarily modify an employee’s existing position and/or work schedule, or provide transitional assignments that [would] accommodate the temporary physical restrictions identified by the [employee’s] treating physician." By its terms, though, the Light-duty Policy applied to only those employees "who suffer from a work-related injury/illness." Rural’s corporate representative² testified in his deposition that he did not know the reason why only those with on-the-job injuries were eligible to take advantage of the Light-duty Policy. Nevertheless, he characterized the Policy as recognizing a "difference between an elective condition ... [and] an on-the-job injury."

The Light-duty Policy required Rural to accommodate workers while they were recovering from a work-related injury or illness and effectively created temporary positions that otherwise did not exist. For example, a person on light duty might be assigned to work tasks around the office that the office staff required.

Dispatcher, in contrast, was a dedicated position at Rural. It always existed, whether or not Rural had any workers suffering from an on-the-job injury or illness. Dispatchers sent ambulances out on calls. Durham attested that she checked the job board at work after her doctor informed her of the lifting restriction and saw "several dispatch positions open."³

Crowell spoke with Rural’s Human Resources Office about Durham’s requests. That office asked Crowell whether he had any light-duty-type positions or dispatch positions open. Crowell responded that he did not. In that case, the Human Resources Office said, only Rural’s Unpaid Personal Leave policy was available to Durham.

Rural’s Unpaid Personal Leave policy allowed Rural employees to take unpaid personal leave "for medical or extraordinary personal reasons." The Unpaid Personal Leave Policy explained that Rural would not grant unpaid personal leave "for the purpose of pursuing another position, temporarily trying out new work, or venturing into business." It also limited the leave period to 90 days, with the possibility of a single 90-day extension, warning that "[i]n no event can a personal leave extend beyond 6 months ... under any circumstances." Finally, the Unpaid Personal Leave Policy cautioned that although Rural would "make every effort to restore the employee to the same or a comparable position at the end of an unpaid personal leave, ... restoration [was] not guaranteed."

Crowell told Durham what he learned from the Human Resources Office. He advised her that she could not work light duty, as only those on workers’ compensation could take advantage of Rural’s Light-duty Policy. Crowell also stated that he had no dispatcher positions open. Rather, Crowell explained to Durham that she would have to take leave under Rural’s Unpaid Personal Leave Policy.

On October 6, 2015, Rural mailed Durham a letter instructing that she could seek a personal leave of absence under the Unpaid Personal Leave Policy. But when Durham reviewed the Policy, she recognized that she might not receive an additional 90 days’ leave following completion of the first period, meaning she would run out of leave before her pregnancy was over and, according to the Unpaid Personal Leave Policy, forfeit her employment. She also understood the Policy to prohibit her from seeking another job or filing for unemployment. Because Durham could not be without income for the remainder of her pregnancy, she contacted Rural’s Human Resources Office to request other options. That Office informed her that the Unpaid Personal Leave Policy was her only option, and it did not alleviate Durham’s concerns that the Policy prohibited her from being able to obtain another job while on unpaid leave.

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