                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                               NO. 97-20242



                             MONICA M. GARCIA,

                                                         Plaintiff-Appellant

                                     VERSUS

                      WOMAN’S HOSPITAL OF TEXAS,

                                                          Defendant-Appellee


           Appeal from the United States District Court
                For the Southern District of Texas

                               June 22, 1998

Before KING, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:

                                       I.

                      FACTS & PROCEDURAL HISTORY

     The district court entered judgment as a matter of law under

Fed. R. Civ. P. 50 (a) against appellant for the second time and

she again appeals that decision.            This Court’s first opinion in

this case sets out the relevant factual basis for Garcia’s claims

in sufficient detail, and we need not cover that ground again here.

See Garcia v. Woman’s Hosp. of Texas, 97 F.3d 810, 811-12 (5th Cir.

1996). In short, Garcia became pregnant while working as an LVN in

the Family Care Center Unit (maternity ward) at Woman’s Hospital of

Texas   (“the   hospital”)    and,    due     to   pregnancy   related   health


                                       1
problems, was forced to convalesce at home for just over a month

from January 28 to March 1, 1993. Thereafter her obstetrician, Dr.

Debra Gunn, who also worked at the hospital, released her to return

to work, believing that Garcia was fit to perform the duties of an

LVN in the maternity ward at the hospital, as Dr. Gunn understood

those   duties.    The    hospital    administration,     consistent   with

hospital policy, required Dr. Gunn to certify on a prepared form

that Garcia could perform a variety of ostensibly required tasks.

Dr. Gunn certified that Garcia could perform all of the listed

tasks with the exception of pushing, pulling or supporting 150

pounds. Consistent with hospital policy, Garcia was not allowed to

return to work with the above limitation, and after she was on

leave for more than six months the hospital terminated her, again

consistent with hospital policy.

     Garcia sued the hospital for violation of Title VII of the

Civil   Rights    Act    of   1964,   as   amended   by    the   Pregnancy

Discrimination Act of 1978. 42 U.S.C. § 2000e(k).            The district

court denied the hospital’s motion for summary judgment and the

case went to trial.     At the close of plaintiff’s case, the district

court granted the hospital’s Rule 50 motion on the grounds that the

hospital’s policies were applied to all employees equally, whether

pregnant or not, and therefore, Garcia could not make out a case of

disparate treatment. Before the district court granted the Rule 50

motion, Garcia sought permission to reopen her case to call Dr.

Gunn to testify that no pregnant woman could push, pull or support

150 pounds, thereby demonstrating that the policy had a disparate


                                      2
impact on pregnant women.         The motion to reopen was denied and the

Rule 50 motion was granted.

     Garcia appealed and this Court reversed and remanded.                  This

Court ordered the district court to allow Dr. Gunn to testify and

to reconsider the Rule 50 motion in light of that testimony.                   On

remand, Garcia asked the district judge to recuse himself, which he

declined to do.        Thereafter, Garcia called Dr. Gunn, and her

testimony was taken by the Court, without a jury.                   The district

court then reviewed all the evidence in the case, including Dr.

Gunn’s testimony, and again granted the hospital’s Rule 50 motion,

whereupon    Garcia    filed   the    instant    appeal.     Garcia’s     appeal

essentially raises the following issues:

1.   Whether the district judge should have recused himself;

2.   Whether the district court erred by taking Dr. Gunn’s
     testimony without a jury, rather than retrying the entire case
     to a jury, and then reconsidering any Rule 50 motion urged by
     the hospital at the close of Garcia’s case;

3.   Whether the district court erred by granting the hospital’s
     Rule 50 motion for judgment as a matter of law for the second
     time.

                                       II.

                               LAW & ANALYSIS

                                        A.

                           STANDARDS OF REVIEW

     The    district    judge’s      decision   not   to   recuse    himself   is

reviewed for abuse of discretion.            In re Chevron U.S.A., Inc., 121

F.3d 163, 165 (5th Cir. 1997), citing In re City of Houston, 745

F.2d 925 (5th Cir. 1984).      The procedural question of how to handle

the taking of Dr. Gunn’s testimony on remand is committed to the

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sound discretion of the district court, and like all matters of

docket management and trial procedure, it is reviewed for an abuse

of that discretion.      Sims v. ANR Freight System, Inc., 77 F.3d 846,

849 (5th Cir. 1996). Finally, the district court decision to grant

the hospital’s motion for judgment as a matter of law is again

reviewed de novo.        Garcia I, 97 F.3d at 812, citing Resolution

Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir. 1993).

                                      B.

                                    Recusal

      Title 28 U.S.C. § 455 governs recusal of federal district

judges.     “Section 455(a) requires that a judge ‘shall recuse

himself   in    any    proceeding    in    which   his   impartiality   might

reasonably be questioned.’          Section 455(b)(1) provides that the

judge ‘shall also disqualify himself ... [w]here he has a personal

bias or prejudice concerning a party....’”          In re Chevron, 121 F.3d

at 165 n. 3 (emphasis added).         The tenor of § 455's language is

mandatory, but this Court has recognized that disqualification

under this section “is committed to the sound discretion of the

district court.”       Id.

     The district judge did not abuse his discretion by refusing to

recuse himself.       His comments on remand regarding the plaintiff’s

case reflected no personal animus against Garcia or in favor of the

hospital.      His comments regarding Garcia’s ability to prove her

case were perhaps unflattering, but reflected only the district

judge’s considered opinion upon having viewed the evidence and law

in this case.    It was no violation of judicial impartiality for the


                                       4
district judge to form an opinion regarding the merits of the

plaintiff’s case, otherwise he could not have decided the motion

for judgment as a matter of law, as the decision of that motion

required the district judge to formulate an opinion about the

sufficiency of the plaintiff’s case under the applicable law.    The

district judge’s comments did not indicate that he would ignore the

probative value, if any, of Dr. Gunn’s testimony when reevaluating

the hospital’s Rule 50 motion.        Ultimately, nothing about the

district court’s ruling evinced any personal bias, prejudice or

impartiality, therefore, we find no abuse of discretion in the

district judge’s refusal to disqualify himself in this case.

                                C.

                        Dr. Gunn’s Proffer

     There was considerable confusion below concerning whether this

Court’s previous opinion required the district court to give Garcia

a new trial, wherein she would have the opportunity to call Dr.

Gunn to testify, followed by an appropriate ruling on any Rule 50

motion reurged by the hospital.       This Court’s opinion carefully

identifies the sort of testimony Dr. Gunn might have given, which

would have affected the propriety of the hospital’s Rule 50 motion.

Garcia I, 97 F.3d at 814.   The district court determined that it

would be more efficient to take Dr. Gunn’s testimony by proffer

before selecting a jury, and determine based thereon whether to

allow Garcia a new trial.     We are unwilling to say that such

approach was an abuse of discretion.    It would have been a waste of

resources for the district court to grant a new trial, if Dr.


                                  5
Gunn’s testimony was not helpful to Garcia’s case.         If Dr. Gunn’s

testimony     failed   to   establish   disparate     treatment    (i.e.,

discriminatory application of the hospital’s policies to pregnant

women), then the jury would have to be dismissed, because the

disparate impact claim standing alone cannot be tried to a jury. 1

Furthermore, if Dr. Gunn’s testimony failed to establish that the

hospital’s policies had a disparate impact on pregnant women, then

judgment as a matter of law would be appropriate.         Therefore, one

can easily see the wisdom in taking Dr. Gunn’s testimony and

assessing its probative value prior to incurring the expense of a

new trial, and we find no abuse of discretion by the district court

in doing so.

                                   D.

                       Merits of Rule 50 Motion

        The district court was correct on the law and facts in this

case that, as a matter of law, Garcia’s evidence was insufficient

to make out a prima facie disparate impact or disparate treatment

claim under the Civil Rights Act of 1964, as amended by the




    1
     Prior to the Civil Rights Act of 1991, Title VII claims could not be
tried to a jury, and compensatory and punitive damages could not be
awarded.    The Civil Rights Act of 1991 amended Title VII to allow
compensatory and punitive damages in cases of intentional discrimination
(i.e., not in cases involving disparate impact only), and jury trials were
permitted only in cases where compensatory and punitive damages were
proper, in other words, in disparate treatment cases. See Rev.Stat. §§
1977A(a) & (c), 42 U.S.C. §§ 1981a(a) & (c), as added by § 102 of the 1991
Act. Therefore, a jury may not determine the disparate impact claim, and,
if that is the only claim left, there is no need for a jury.

                                    6
Pregnancy Discrimination Act of 1978.2       To make out a prima facie

violation of the Civil Rights Act of 1964, as amended by the

Pregnancy Discrimination Act of 1978, Garcia had to show: 1) that

the hospital’s policies or their application intentionally treated

her   differently   than    non-pregnant   employees   because    of   her

pregnancy (i.e., disparate treatment); or 2) that the hospital’s

policies had a disproportionately negative impact on pregnant

employees like herself as compared to non-pregnant employees (i.e.,

disparate impact). Garcia I, 97 F.3d at 813, citing Griggs v. Duke

Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).

                                   i.

                           Disparate Treatment

      Intentional disparate treatment may be achieved via a policy

which on its face classifies pregnant employees differently from

other non-pregnant employees.     See, e.g., International Union, UAW

v. Johnson Controls, 499 U.S. 187, 197-98, 111 S. Ct. 1196, 1202-

1203, 113 L. Ed. 2d 158 (1991).         On the other hand, a facially

neutral policy may also be used to intentionally discriminate

against employees because of their pregnancy if selectively applied

to them.3   Garcia failed to make out a prima facie case for facial

or pretextual disparate treatment, because she could not show that



    2
      There was a debate in the district court on remand as to whether the
district court was to reconsider both Garcia’s disparate impact and
disparate treatment claims in light of Dr. Gunn’s testimony or just the
disparate impact claim. Our resolution of the merits of the district
court’s decision renders the question moot.
    3
      This is what the Court referred to as pretextual disparate treatment
in Garcia I, supra at 813 n. 2.

                                    7
she was treated differently than anyone else.         The policies on

their face do not classify pregnant employees differently from all

other employees.     Furthermore, the testimony proved that the

policies, were applied equally to all employees.          Dr. Gunn’s

testimony in fact reinforced the testimony of Ms. Judith Ann

Squyres, R.N., the hospital’s Employee Health Risk Management

Coordinator in the relevant time period.     Ms. Squyres testified

that no employees on sick leave were allowed to return to work,

unless their doctor certified on a prepared form that they could

perform various listed tasks, which ostensibly were requirements of

their jobs.   The state of this evidence will not support a finding

that Garcia was intentionally treated differently from other non-

pregnant employees, and judgment as a matter of law was appropriate

on her disparate treatment claim.

                                ii.

                          Disparate Impact

     The principal reason for remand in this case was so that Dr.

Gunn’s testimony might be taken and so that the district court

might reevaluate the propriety of judgment as a matter of law in

light of her testimony.   Garcia I, 97 F.3d at 814.    We pointed out

that, if Dr. Gunn testified that no pregnant woman could meet the

requirement of pushing, pulling or supporting 150 pounds, then

Garcia could make out a prima facie case of disparate impact.    This

is true because the 150-pound-restriction could be expected to keep

all pregnant women who take sick leave like Garcia from being able

to return to work when their illness abates.


                                 8
     Dr. Gunn did not testify that no pregnant women could lift 150

pounds.     Rather, she testified that she could not accept the

potential legal liability associated with saying that any woman

could lift 150 pounds, whether pregnant or not.     That is not an

expert opinion about the likely effect of the 150-pound-restriction

on all pregnant women.   The substance of Dr. Gunn’s testimony is

legally insufficient to establish a prima facie case of disparate

impact; therefore, judgment as a matter of law was appropriate.

                               III.

                            CONCLUSION

     The district judge did not abuse his discretion by refusing to

recuse himself as there was no personal bias or prejudice against

the plaintiff and none of his comments reflect any impartiality,

i.e., inability to decide the merits of the case based on the

controlling law as applied to the evidence. The district court did

not abuse its discretion by taking Dr. Gunn’s testimony by proffer

without a jury, as that was the only sensible course under the

circumstances.    Finally, the district court correctly entered

judgment as a matter of law on Garcia’s disparate treatment claim

for lack of evidence of unequal application of the facially neutral

policies, and the district court correctly entered judgment as a

matter of law on Garcia’s disparate impact claim for lack of

evidence that the policies could result in a disproportionately

negative effect on pregnant women.    Therefore, we affirm.

AFFIRMED.




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