[Cite as Allen v. totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231.]




      ALLEN, APPELLANT, v. TOTES/ISOTONER CORPORATION, APPELLEE.
  [Cite as Allen v. totes/Isotoner Corp.,123 Ohio St.3d 216, 2009-Ohio-4231.]
Employment discrimination — Burden of proof — Summary judgment — Failure
        to follow directions is a legitimate reason for discharge — Judgment
        affirmed.
   (No. 2008-0845 — Submitted March 11, 2009 — Decided August 27, 2009.)
   APPEAL from the Court of Appeals for Butler County, No. CA2007-08-196.
                                  __________________
        Per Curiam.
        {¶ 1} This case arises from a grant of summary judgment in favor of
totes/Isotoner Corporation, LaNisa Allen’s employer, on a discrimination
complaint arising out of the Ohio Fair Employment Practices Act, R.C. Chapter
4112, as amended by the Pregnancy Discrimination Act, 138 Ohio Laws, Part I,
1430, 1431-1432. We originally accepted Allen’s discretionary appeal, which
sought review of the issue whether Ohio law prohibits an employer from
discriminating against a female employee because of or on the basis of lactation.
For the reasons stated below, we find that summary judgment was properly
granted for appellee, totes/Isotoner Corporation (“Isotoner”), against appellant,
LaNisa Allen, on her claims for wrongful termination. Accordingly, we affirm the
judgment of the court of appeals.
        {¶ 2} In its opinion affirming the grant of summary judgment to the
employer, the Twelfth District Court of Appeals ruled that Allen had failed to
establish a prima facie case of sex discrimination on the basis of pregnancy, and it
concluded that Allen’s termination does not violate Ohio public policy against
discrimination on the basis of pregnancy. The appellate court ruled that Allen
“was simply and plainly terminated as an employee at will for taking an
                            SUPREME COURT OF OHIO




unauthorized, extra break.” Allen v. totes/Isotoner (Apr. 7, 2008), Butler App.
No. CA2007-08-196, ¶ 3.
       {¶ 3} Allen admitted in her deposition that for approximately two weeks,
she had taken breaks without her employer’s knowledge or authorization to do so
and that her supervisor had told her that she was being terminated for her failure
to “follow directions.”
       {¶ 4} As a general matter, if a plaintiff establishes a prima facie case of
disparate-treatment employment discrimination under R.C. Chapter 4112, the
burden of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its treatment of the plaintiff. See, e.g., Plumbers &
Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66
Ohio St.2d 192, 197-198, 20 O.O.3d 200, 421 N.E.2d 128; St. Mary’s Honor Ctr.
v. Hicks (1993), 509 U.S. 502, 506-507, 113 S.Ct. 2742, 125 L.Ed.2d 407
(analyzing the federal employment-discrimination statute). The ultimate burden of
persuading the trier of fact that the employer intentionally discriminated against
the plaintiff based upon an impermissible category remains on the plaintiff. Id. at
507.
       {¶ 5} Legitimate, nondiscriminatory reasons in Ohio law include
insubordination. Hood v. Diamond Prods., Inc. (1996), 74 Ohio St.3d 298, 302,
658 N.E.2d 738. If the employer carries its burden of articulating a legitimate,
nondiscriminatory reason for its employment decision, the plaintiff must prove
that the employer’s stated nondiscriminatory reasons were a pretext for
impermissible discrimination. Id.; see also St. Mary’s Honor Ctr., 509 U.S. at
519, 113 S.Ct. 2742, 125 L.Ed.2d 407. If an employment-discrimination plaintiff
fails to establish a triable factual issue on an essential element of her case,
summary judgment for the employer is appropriate. See, e.g., Simpson v. Des
Moines Water Works (C.A.8, 2005), 425 F.3d 538, 542.




                                        2
                                January Term, 2009




       {¶ 6} In this case, the evidence in the record demonstrates that Allen
took unauthorized breaks from her workstation, and Isotoner discharged her for
doing so. Thus, the record as it was developed in the trial court fails to provide a
basis from which a jury could conclude that Isotoner’s articulated legitimate,
nondiscriminatory reason for Allen’s termination—failure to follow directions—
was a pretext for discrimination based on Allen’s pregnancy or a condition related
to her pregnancy. This determination defeats Allen’s sex-discrimination claim
under R.C. 4112.02 as a matter of law, and, accordingly, the trial court properly
granted summary judgment to Isotoner. Consequently, this court does not reach
the issue whether alleged discrimination due to lactation is included within the
scope of Ohio’s employment-discrimination statute, R.C. 4112.02, as sex
discrimination under R.C. 4112.01(B).
       {¶ 7} Because summary judgment was properly entered against Allen,
we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur.
       MOYER, C.J., and O’CONNOR, J., concur in judgment only.
       PFEIFER, J., dissents.
       LANZINGER, J., would dismiss the appeal as having been improvidently
accepted.
                                __________________
       O’DONNELL, J., concurring.
       {¶ 8} I concur in the judgment affirming the summary judgment in
totes/Isotoner’s favor, because totes/Isotoner discharged LaNisa Allen for taking
an unauthorized break from her scheduled employment. That fact is undisputed in
the record before us, and Allen failed to carry her burden of proving either that
totes/Isotoner had a discriminatory motive or that its reason for discharging her
was a pretext for discrimination. Consequently – and necessarily, in accordance



                                         3
                               SUPREME COURT OF OHIO




with long-standing prudential considerations widely utilized by the courts – I
would not reach the issue whether adverse differential treatment because of
postpregnancy lactation falls within actionable discrimination as defined by the
General Assembly in R.C. Chapter 4112.
       {¶ 9} It is the long-standing practice of courts to decide only issues
presented by the facts and to refrain from deciding issues that the facts do not
place directly in issue. Because of the relevant and determinative facts of this
case, the resolution of the dispute of the parties before us does not turn on whether
R.C. 4112.02 encompasses alleged discrimination due to lactation. Because the
court need not reach this issue, any opinion expressed on the issue would be
merely advisory and not in accordance with the long-standing practice of courts to
decline to render advisory opinions.
       {¶ 10} It is well-settled law that this court will not issue advisory
opinions. State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-
4848, 775 N.E.2d 508, ¶ 18, citing State ex rel Baldzicki v. Cuyahoga Cty. Bd. of
Elections (2000), 90 Ohio St.3d 238, 242, 736 N.E.2d 893; Egan v. Natl.
Distillers & Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d
904, syllabus. “It has been long and well established that it is the duty of every
judicial tribunal to decide actual controversies between parties legitimately
affected by specific facts and to render judgments which can be carried into
effect.” Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257
N.E.2d 371. Because the court need not reach the issue of whether discrimination
on the basis of lactation is prohibited by R.C. 4112.02, it should not do so. See
PDK    Laboratories,    Inc.    v.   United   States   Drug   Enforcement    Admin.
(C.A.D.C.2004), 362 F.3d 786, 799 (Roberts, J., concurring in part and
concurring in the judgment, “if it is not necessary to decide more, it is necessary
not to decide more”).
       LUNDBERG STRATTON and CUPP, JJ., concur in the foregoing opinion.




                                          4
                               January Term, 2009




                               __________________
       MOYER, C.J., concurring in judgment only.
       {¶ 11} I agree that summary judgment was properly entered against the
appellant, LaNisa Allen, and thus I concur in the judgment. Because I also concur
in Justice O’Connor’s separate discussion of the merits, I join her opinion, not the
per curiam opinion.
                               __________________
       O’CONNOR, J., concurring in judgment only.
       {¶ 12} LaNisa Allen’s complaint alleged that Isotoner discriminated
against her on the basis of pregnancy, “a condition of gender,” in violation of
Ohio’s Fair Employment Practices Act, R.C. Chapter 4112 (“FEPA”), as amended
by Ohio’s Pregnancy Discrimination Act (“PDA”), 138 Ohio Laws, Part I, 1430,
1431-1432; that her termination was against public policy; that her “medical
condition, the act of lactating, constitutes a ‘handicap’ ” for purposes of the
FEPA; and that she had been discriminated against on the basis of her handicap
under the Americans with Disabilities Act (“ADA”).
       {¶ 13} We asserted discretionary jurisdiction to review three propositions
of law that arise from the claims in this case, Allen v. totes/Isotoner Corp., 119
Ohio St.3d 1443, 2008-Ohio-4487, 893 N.E.2d 515, including the assertion that
“lactation is a physical condition associated with pregnancy and childbirth, hence
the FEPA, as amended by the Ohio PDA, prohibits discrimination against females
because they are lactating.”
       {¶ 14} I agree that appellee Allen failed to develop a record from which a
jury could find in her favor.       But because the trial and appellate courts
erroneously applied inapposite federal precedent in their analysis of Allen’s
claims, I believe that this court should reach the merits to clarify the law. I
therefore concur in judgment only. I write separately to set forth why I would
hold that lactation falls within the scope of R.C. 4112.01(B) and that the statute



                                         5
                             SUPREME COURT OF OHIO




prohibits employment discrimination against lactating women. R.C. 4112.02. In
doing so, I am fully aware of the assertion that my opinion is advisory. I disagree.
The lead opinion’s failure to address the legal framework in which this case arises
is disappointing, and it is even more troubling that we fail to address the scope of
Ohio law under the guise that reaching the merits would result in an advisory
opinion.
       {¶ 15} The bald assertion that any opinion analyzing Allen’s claim would
be advisory is patently unpersuasive. Indeed, the cases cited by the concurring
opinion, essentially, are ones in which we found an issue to be moot on appeal
and therefore refused to provide advisory opinions. The cases cited are wholly
distinguishable from this appeal, however. See State ex rel. White v. Kilbane
Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18 (holding that
relators’ appeal, which arose from the denial of extraordinary writs to prevent a
trial judge from proceeding with a temporary restraining order that enjoined
relators from using taxpayer funds to communicate with the public about an
election issue, was moot because the election had passed); State ex rel. Baldzicki
v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 242, 736 N.E.2d
893 (declining to reach the merits of the relators’ claim for a writ of prohibition in
an election protest after concluding that the writ would not lie because the
respondents had not engaged in quasi-judicial acts); Egan v. Natl. Distillers &
Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 904, syllabus
(in an employer-intentional-tort claim, holding, “Where the grant of summary
judgment favorable to a defendant neither considers nor awards damages, an issue
pertaining to damage setoffs raised by the defendant-appellant for the first time on
appeal to the Supreme Court will not be entertained because it is not a justiciable
issue”).




                                          6
                                January Term, 2009




       {¶ 16} In the cases cited, we properly refused to entertain the question
presented because the question need not be answered to give proper resolution to
the case. But that is not the dynamic in this case.
       {¶ 17} A case or controversy is lacking and the “ ‘case is moot when the
issues presented are no longer “live” or the parties lack a legally cognizable
interest in the outcome.’ ” Los Angeles Cty. v. Davis (1979), 440 U.S. 625, 631,
99 S.Ct. 1379, 59 L.Ed.2d 642, quoting Powell v. McCormack (1969), 395 U.S.
486, 489, 89 S.Ct. 1944, 23 L.Ed.2d 491. “Not every conceivable controversy is
an actual one. * * * [I]n order for a justiciable question to exist, ‘[t]he danger or
dilemma of the plaintiff must be present, not contingent on the happening of
hypothetical future events * * * and the threat to [her] position must be actual and
genuine and not merely possible or remote.’ ” Mid-American Fire & Cas. Co. v.
Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9, citing
League for Preservation of Civ. Rights & Internal Tranquility, Inc. v. Cincinnati
(1940), 64 Ohio App. 195, 197, 17 O.O. 424, 28 N.E.2d 660, quoting Borchard,
Declaratory Judgments (1934) 40.
       {¶ 18} “ ‘No actual controversy exists where a case has been rendered
moot by an outside event. “It is not the duty of the court to answer moot
questions, and when, pending proceedings in error in this court, an event occurs,
without the fault of either party, which renders it impossible for the court to grant
any relief, it will dismiss the petition in error.” Miner v. Witt (1910), 82 Ohio St.
237, 92 N.E. 21, syllabus.’ ”       McClead v. McClead, Washington App. No.
06CA67, 2007-Ohio-4624, ¶ 13, quoting Tschantz v. Ferguson (1991), 57 Ohio
St.3d 131, 133, 566 N.E.2d 655. “ ‘A cause will become moot only when it
becomes impossible for a tribunal to grant meaningful relief, even if it were to
rule in favor of the party seeking relief.’ ” Id., quoting Joys v. Toledo (Apr. 29,
1997), Franklin App. No. 96APE08-1040, 1997 WL 217581, *3.




                                          7
                             SUPREME COURT OF OHIO




       {¶ 19} In this appeal, the issues are live ones, not remote possibilities or
based on controversies that may never occur. See Heasley, 113 Ohio St.3d 133,
2007-Ohio-1248, 863 N.E.2d 142, at ¶ 11, quoting Bilyeu v Motorists Mut. Ins.
Co. (1973), 36 Ohio St.2d 35, 37, 65 O.O.2d 179, 303 N.E.2d 871. Allen, a
lactating employee, was terminated from employment for not following directions
— i.e., for taking an unauthorized break from her work station in order to use a
breast pump. The determination of whether that action was lawful cannot be
made in a vacuum. Rather, the determination depends on the facts she marshals
as well as the state of the law in Ohio, not the state of federal law as defined in the
federal courts.
       {¶ 20} The principle of judicial restraint, that “ if it is not necessary to
decide more, it is necessary not to decide more,” PDK Laboratories, Inc. v.
United States Drug Enforcement Admin. (C.A.D.C.2004), 362 F.3d 786, 799
(Roberts, J., concurring in part and in judgment), is an important one. But here, it
is inapplicable because it is necessary to decide “more.”
       {¶ 21} The question whether Ohio law recognizes discrimination claims
based on lactation is one of great general interest. Allen and Isotoner, as well as
all Ohio’s employees and employers, are entitled to the answer and to guidance on
the contours of Ohio’s employment laws. It is our duty to provide that guidance
and to answer the questions posed in this controversy. Fortner v. Thomas (1970),
22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371 (“it is the duty of every
judicial tribunal to decide actual controversies between parties legitimately
affected by specific facts and to render judgments which can be carried into
effect”). I thus proceed.
                                          I
       {¶ 22} In entering summary judgment against Allen, the trial court found
that Allen had not been discriminated against on the basis of pregnancy.
According to the trial court, “Allen gave birth over five months prior to her




                                          8
                                January Term, 2009




termination from [Isotoner]. Pregnant [women] who give birth and chose not to
breastfeed or pump their breasts do not continue to lactate for five months. Thus,
Allen’s condition of lactating was not a condition relating to pregnancy but rather
a condition related to breastfeeding.         Breastfeeding discrimination does not
constitute gender discrimination. See Derungs v. Wal-Mart Stores Inc., 374 F.3d
428, 439 (6th Cir. 2004).” Upon that finding, the court found that postpartum
lactation and the discomfort associated with it are not disabilities.
       {¶ 23} The court of appeals affirmed. In a conclusory decision, it held
that Allen had not presented a prima facie case of sex discrimination on the basis
of pregnancy and that her termination did not offend Ohio public policy. Allen v.
totes/Isotoner Corp. (Apr. 7, 2008), Butler App. No. CA2007-08-196. According
to the court of appeals, “appellant was not terminated because she was lactating,
pumping breast milk, or needed to take a break to pump breast milk. Rather, she
was simply and plainly terminated as an employee at will for taking an
unauthorized, extra break (unlike the restroom breaks which were authorized and
available to all of the employees, appellant included).”
                                          II
           Pregnancy and Lactation as Objects of Sex Discrimination
       {¶ 24} Among other things, the FEPA prohibits an employer from
discharging or discriminating against a person in the tenure, terms, conditions, or
privileges of employment because of the person’s sex or disability.            R.C.
4112.02(A).     Through the PDA amendments to the FEPA, which became
effective in 1980, the General Assembly has made clear that the statutory phrases
“because of sex” and “on the basis of sex” include all claims “because of or on the
basis of pregnancy, any illness arising out of and occurring during the course of a
pregnancy, childbirth, or related medical conditions.          Women affected by
pregnancy, childbirth, or related medical conditions shall be treated the same for
all employment-related purposes * * *.”           R.C. 4112.01(B).      The amended



                                          9
                            SUPREME COURT OF OHIO




statutory framework now embodied in Ohio’s FEPA developed similarly to its
federal counterpart, Title VII of the Civil Rights Act of 1964, section 2000e(k),
Title 42, U.S.Code, the federal Pregnancy Discrimination Act of 1978.
       {¶ 25} In the wake of the controversial decision Gen. Elec. Co. v. Gilbert
(1976), 429 U.S. 125, 139-140, 97 S.Ct. 401, 50 L.Ed.2d 343, in which the United
States Supreme Court rejected a disparate-treatment sex-discrimination claim
based on a disability insurance plan’s refusal to cover pregnancy-related
disabilities, Congress amended Title VII to make clear that sex-discrimination
includes discrimination based on pregnancy. See, e.g., California Fed. S. & L.
Assn. v. Guerra (1987), 479 U.S. 272, 284-285, 107 S.Ct. 683, 93 L.Ed.2d 613;
Newport News Shipbuilding & Dry Dock Co. v. Equal Emp. Opportunity Comm.
(1983), 462 U.S. 669, 678, 103 S.Ct. 2622, 77 L.Ed.2d 89.
       {¶ 26} The federal PDA explicitly expanded the terms “because of sex”
and “on the basis of sex” to include the concepts “because of or on the basis of
pregnancy, childbirth, or other related conditions” and to affirm that “ ‘women
affected by pregnancy, childbirth, or related medical conditions shall be treated
the same for all employment-related purposes * * * as other persons not so
affected but similar in their ability or inability to work.’ ” Fortier v. U.S. Steel
Corp. (June 4, 2002), W.D.Pa. No. 01-cv-2029, 2002 WL 1797796,* 3, quoting
Section 2000e(k), Title 42, U.S.Code. The essential command of the PDA is that
an employer must maintain the same neutrality toward an employee’s pregnancy
as it would an employee’s race, gender, or other protected-class status. Pacourek
v. Inland Steel Co. (N.D.Ill.1994), 858 F.Supp. 1393, 1400. And the legislative
history of the federal PDA suggests strongly that neutrality must be maintained
before, during, and after a pregnancy. Id. at 1402, citing 123 Congressional
Record 29385 (1977).
       {¶ 27} Soon after Congress enacted the PDA amendments to Title VII,
Ohio followed suit. Derungs, 374 F.3d at 436 (after Gilbert and the passage of




                                        10
                               January Term, 2009




the federal PDA, the Ohio General Assembly amended R.C. 4112.02(A) by
adopting the Ohio PDA, R.C. 4112.01(B), in 1980).              The Ohio General
Assembly’s unambiguous intent in passing the Ohio PDA is well understood.
“Having incorporated the [federal] PDA’s language almost verbatim into the
definitional provisions of § 4112, it is clear to us that the Ohio Legislature was
aware of the meaning and rationale of Gilbert, as well as being aware of the PDA.
The Legislature made a conscious choice to extend the definition of
discrimination to include pregnancy even though there cannot be a class of
similarly situated males.” Derungs, 374 F.3d at 436.
       {¶ 28} In evaluating Allen’s claims, the trial and appellate courts ignored
the foregoing history.    Rather, central to both courts’ analysis is the Sixth
Circuit’s decision in Derungs, a public-accommodations case brought by a
woman who had been prohibited from breast-feeding her infant while sitting on a
bench near a dressing room in a Walmart store. Derungs v. Wal-Mart Stores Inc.
(S.D.Ohio 2000), 141 F.Supp.2d 884, 886. In that case, the district court granted
partial summary judgment in favor of Walmart on the plaintiff’s claims for sex
and age discrimination in violation of R.C. 4112.02(G), and the Sixth Circuit
affirmed. Derungs, 374 F.3d at 440.
       {¶ 29} In rendering their decisions, the federal courts applied the Gilbert
analysis that had been rejected expressly by both Congress and the Ohio
Legislature. See Derungs, 141 F.Supp.2d at 889-892. In doing so, the federal
courts decided the case on federal case law. Id. at 889-893.
       {¶ 30} Significantly for purposes here, Derungs did not involve
employment discrimination, but rather, a claim for discrimination in public
accommodations. And as the federal courts recognized, when the Ohio General
Assembly passed the PDA, it did not amend the public-accommodations portion
of R.C. Chapter 4112. See Derungs, 141 F.Supp.2d at 889, fn. 7; see also
Derungs, 374 F.3d at 436.



                                        11
                                 SUPREME COURT OF OHIO




        {¶ 31} I find that fact significant. Derungs is inapposite here because its
analysis revolves around a portion of R.C. Chapter 4112 that was not amended by
the PDA. And evidently, Derungs did not reflect Ohio legislators’ view of the
law:    after Derungs was decided, the Ohio General Assembly enacted R.C.
3781.55, which permits a mother to breast-feed her child in a place of public
accommodation.
        {¶ 32} I recognize that the federal courts’ analysis in Derungs is not
inconsistent     with    the    federal     courts’    continued      reliance     on    Gilbert
notwithstanding the PDA. Reasonable minds may differ about the merit of the
rule set forth in Gilbert. But given our legislature’s clear and unambiguous
rejection of the Gilbert analysis, I decline to apply those rationales in our analysis
of pregnancy-discrimination claims brought under the gender-equity prong of the
FEPA.1 Given the clarity with which our legislature has spoken on this issue and
its insistence that gender-based discrimination can include pregnancy-based
discrimination, we should engage in a meaningful analysis centered on the
statutory language.
        {¶ 33} Ohio’s PDA affords protection to employees “because of or on the
basis of pregnancy” and states that “[w]omen affected by pregnancy, childbirth,
or related medical conditions shall be treated the same for all employment-related
purposes * * * as other persons not so affected but similar in their ability or
inability to work * * *.” R.C. 4112.01(B). That language is broad.
        {¶ 34} “Related” and “affected” are expansive terms. “Related” means
“connected by reason of an established or discoverable relation,” and “relation”
means “an aspect or quality (as resemblance) that connects two or more things or
parts as being or belonging or working together or as being of the same kind.”

1. I am aware of the debates that surround breast-feeding in forums as divergent as law reviews,
public health journals, and the popular press. But our role as judges is not to substitute our own
views of those issues for those of the legislature as they are embodied in the Revised Code.
Rather, we must follow the laws as written by the legislature and interpret them accordingly.




                                               12
                               January Term, 2009




Merriam-Webster’s Collegiate Dictionary (10th Ed.1993) 987. “Affected,” the
past tense of “affect,” means “[having] produce[d] an effect upon” and “[having]
produce[d] a material influence upon.” Id. at 19.
       {¶ 35} Despite this broad language, the trial court found that
discrimination on the basis of lactation is not the same as discrimination on the
basis of pregnancy because “Allen’s condition of lactating was not a condition
relating to pregnancy but rather a condition relating to breastfeeding.” I find that
conclusion curious and inaccurate.
       {¶ 36} Lactation – the formation and secretion of milk by the mammary
glands – is believed to be stimulated by prolactin, a hormone. 1 Russ, Freeman, &
McQuade, Attorneys Medical Advisor (Aug.2008) Section 4:5.                  During
pregnancy, the level of prolactin in a woman is inhibited by high levels of
estrogen and progesterone. Id. at Section 14:228. Following delivery, levels of
estrogen and progesterone in the woman fall while the level of prolactin remains
high. Id. at Section 14:26. Prolactin then stimulates and maintains the production
of milk. Id. at Section 4:5.
       {¶ 37} Colostrum, a substance that contains more protein and less fat and
sugar than breast milk, is secreted by the breasts during pregnancy and in the days
immediately following childbirth. Russ, Section 14:228. Milk production begins
thereafter, usually on the third or fourth postpartum day, and breast milk appears.
Id. at Section 14:26.
       {¶ 38} As the trial court found, lactation obviously is linked to breast-
feeding. But given the physiological aspects of lactation, I have little trouble
concluding that lactation also has a clear, undeniable nexus with pregnancy and
with childbirth. Therefore, it necessarily follows that lactation is “because of or
on the basis of pregnancy” and that women who are lactating are women
“affected by pregnancy [or] childbirth.” Accord Pacourek, 858 F.Supp. at 1402,
quoting House Report (1978), No. 95-948, 95th Congress, 2d Session 5,



                                        13
                              SUPREME COURT OF OHIO




concluding that a liberal construction of the federal PDA is proper, given its
legislative history, and that “ ‘the bill makes clear that its protection extends to the
whole range of matters concerning the childbearing process.’ ” Accordingly, I
would hold that gender-discrimination claims arising from lactation are
cognizable under Ohio’s FEPA as amended by the PDA. But the analysis of this
appeal does not end with that conclusion.
       {¶ 39} Allen’s claims of discrimination appear predicated on a disparate-
treatment theory. She asserts, “The workrule that [she] allegedly violated was the
one that restricted the time she could pump her breast milk to her lunch break.
Totes placed no such restrictions on any other employee who needed to leave his
or her workstation to tend to a bodily function or bodily discomfort, only upon
lactating women. The work rule was itself discriminatory, since it placed extra
restrictions on women experiencing a physical act of pregnancy.” The appellate
court implicitly addressed that claim, holding that Allen “was simply and plainly
terminated as an employee at will for taking an unauthorized, extra break (unlike
the restroom breaks which were authorized and available to all of the employees,
appellant included).” Allen, Butler App. No. CA2007-08-196, 2-3.
                                          III
       {¶ 40} In order to establish a prima facie case for disparate treatment
based upon pregnancy discrimination in the workplace, the plaintiff must show
that (1) she was pregnant, (2) she satisfactorily performed the duties required by
the position for which she was hired, (3) she was discharged, and (4) her position
was ultimately filled by an employee who was not pregnant. See Donaldson v.
Am. Banco Corp., Inc. (D.Colo.1996), 945 F.Supp. 1456, 1463, citing McDonnell
Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d
668. I would find that a plaintiff may satisfy the first element of this prima facie
test by showing that she was affected by pregnancy or an illness or medical
condition related to pregnancy.




                                          14
                                January Term, 2009




       {¶ 41} As with other discrimination claims, a prima facie case gives rise
to a presumption of discrimination and shifts the burden of production to the
defendant to articulate a legitimate, nondiscriminatory reason for its treatment of
the plaintiff. St. Mary’s Honor Ctr. v. Hicks (1993), 509 U.S. 502, 506-507, 113
S.Ct. 2742, 125 L.Ed.2d 407. Legitimate, nondiscriminatory reasons for the
action taken by the employer include insubordination on the part of the employee
claiming discrimination. Hood v. Diamond Prods., Inc. (1996), 74 Ohio St.3d
298, 302, 658 N.E.2d 738.
       {¶ 42} If the defendant carries that burden of production, the presumption
of discrimination drops from the case. Gudenkauf v. Stauffer Communications,
Inc. (D.Kan.1996), 922 F.Supp. 465, 471, fn. 7. The plaintiff must then directly
prove that the employer acted on a discriminatory motive or indirectly prove that
the employer’s reasons were a pretext for discrimination. Id. If she fails to do so,
summary judgment is appropriate. Id.
       {¶ 43} The undisputed evidence here is that Allen took unauthorized
breaks from her work station. Isotoner asserts that it discharged her for doing so.
       {¶ 44} Although Allen’s unauthorized breaks may have been to pump
milk, Allen could not properly engage in such actions without her employer’s
knowledge and permission. The FEPA and the PDA mandate that an employer
treat pregnancy with neutrality, but not preferentially.
       {¶ 45} Allen argues that the break policy discriminates against lactating
women because other employees are able to use the bathroom freely to attend to
bodily functions like menstruation and urination. But Allen was not forbidden to
take similar breaks, nor has she presented any evidence that any other employee
routinely used the bathroom for 15-minute breaks on a scheduled basis each day.
Thus, the record in this case would not support a reasonable jury’s verdict in
Allen’s favor on a disparate-treatment theory. Summary judgment was properly
entered against her.



                                         15
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                                          IV
                      Pregnancy and Lactation as Disability
       {¶ 46} I turn now to the issue of whether pregnancy and lactation are
disabilities for purposes of disability-discrimination analysis. I would hold that
they are not.
       {¶ 47} To establish a prima facie case of disability discrimination, the
plaintiff must demonstrate (1) that she is disabled, (2) that an adverse employment
action was taken by an employer, at least in part, because of the disability, and (3)
that the plaintiff, though disabled, can safely and substantially perform the
essential functions of the job in question. Hazlett v. Martin Chevrolet, Inc. (1986),
25 Ohio St.3d 279, 281, 25 OBR 331, 496 N.E.2d 478. Here, there is no showing
that Allen satisfied the first prong of the test, i.e., that she was disabled by virtue
of her pregnancy or lactation.
       {¶ 48} The courts that have considered this issue have found uniformly
that pregnancy, by itself, is not a disability per se for purposes of ADA claims
because “[s]hort term, temporary restrictions are not substantially limiting and do
not render a person disabled.”            Kucharski v. Cort Furniture Rental
(D.Conn.2007), 536 F.Supp.2d 196, 202, reversed on other grounds,
(D.Conn.2008), 594 F.Supp.2d 207.              See also Wenzlaff v. NationsBank
(D.Md.1996), 940 F. Supp. 889, 890; Villarreal v. J.E. Merit Constructors, Inc.
(S.D.Tex.1995), 895 F.Supp. 149, 152. That conclusion is supported by the
interpretative guidelines issued by the Equal Employment Opportunity
Commission, which state that conditions such as pregnancy are not the result of a
physiological disorder and are not impairments. Id., citing 29 C.F.R. 1630.2(h).
Furthermore, the ADA’s express language defines a disability as a “physical or
mental impairment that substantially limits one or more of the major life activities




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of [an] individual.” Section 12102(1)(A), Title 42, U.S.Code.2 State appellate
courts have reached the same conclusion, rejecting arguments that pregnancy-
discrimination claims are cognizable under state laws forbidding disability
discrimination.     See, e.g., Hegwine v. Longview Fibre Co., Inc. (2007), 162
Wash.2d 340, 344, 172 P.3d 688 (“An employer who refuses to hire a job
applicant because of her pregnancy is liable for sex discrimination * * *, not * * *
accommodation analysis like that applicable to disability related employment
discrimination claims”).
        {¶ 49} I agree. “The implicit reasoning in these decisions is persuasive
and sound.        Pregnancy is a physiological condition, but not a disorder.”
Gudenkauf, 922 F. Supp. at 473.             Similarly, “[i]t is simply preposterous to
contend a woman’s body is functioning abnormally because she is lactating.”
Bond v. Sterling, Inc. (N.D.N.Y.1998), 997 F. Supp. 306, 311.
        {¶ 50} To hold that a woman is “disabled” because she is pregnant or
lactating evokes the paternalistic judicial attitudes toward working women that
were apparent in early twentieth century cases. See, e.g., Muller v. Oregon
(1908), 208 U.S. 412, 422, 28 S.Ct. 324, 52 L.Ed. 551. Where, as here, there is
not a medical condition related to pregnancy that would satisfy the definition of
disability, I would hold that pregnancy-related discrimination claims are not
cognizable under the disability-discrimination provisions in the ADA.
        MOYER, C.J., concurs in the foregoing opinion.
                                  __________________
        PFEIFER, J., dissenting.



2. We may look to federal regulations and case law for guidance in interpreting comparable Ohio
law. “Although we are not bound to apply federal court interpretation of federal statutes to
analogous Ohio statutes, we have looked to federal case law when considering claims of
employment discrimination brought under the Ohio Revised Code.” Coryell v. Bank One Trust
Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, 803 N.E.2d 781, ¶ 15. See also Columbus Civ.
Serv. Comm. v. McGlone (1998), 82 Ohio St.3d 569, 573, 697 N.E.2d 204.




                                              17
                            SUPREME COURT OF OHIO




       {¶ 51} This is the Supreme Court, and when the opportunity arises, we
should answer the questions that Ohioans need answered. In this case, we are
asked whether mothers who breast-feed can be fired from their jobs for pumping
their breasts in the workplace. That is, in its protection of pregnant workers in
R.C. 4112.01(B), did the General Assembly include protection of women who are
dealing with the aftereffects of their pregnancy? The lead opinion dodges the
opportunity to provide an answer.
       {¶ 52} Any court’s method of analyzing cases should ask (1) whether the
plaintiff stated a cognizable cause of action and (2) whether the facts of the case
support the alleged cause of action. It is unclear why, on this question of great
general interest, this court has embarked on a backwards analysis, letting stand the
appellate court’s holding that LaNisa Allen was fired for leaving her post without
permission rather than for pumping her breasts in the employee washroom, thus
leaving unanswered the question of whether she even asserted a cognizable cause
of action.   The trial court proceeded properly, although its conclusion was
incorrect: it found as a matter of law that Ohio’s pregnancy discrimination laws
do not apply to protect mothers who breast-feed their babies. It did as it should in
ruling on a summary judgment motion: it gave the benefit of the facts to Allen
and ruled on the law.
       {¶ 53} Somehow, the appellate court lost its way, and this court has
followed. In its six-paragraph decision, the appellate court concludes that Allen
was not fired for pumping her breasts: “Rather, she was simply and plainly
terminated as an employee at will for taking an unauthorized, extra break (unlike
the restroom breaks which were authorized and available to all of the employees,
appellant included).” Allen v. totes/Isotoner Corp. (Apr. 7, 2008) Butler App. No.
CA2007-08-196. The appellate court does not explain why Allen’s trips to the
restroom outside scheduled break times were different from the restroom trips
other employees made outside scheduled break times. There is no evidence in the




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record about any limit on the length of unscheduled restroom breaks and no
evidence that employees had to seek permission from a supervisor to take an
unscheduled restroom break. There is evidence only that unscheduled bathroom
breaks were allowed and that LaNisa Allen was fired for taking them. What made
her breaks different?
       {¶ 54} We accept cases not necessarily because of how the result might
affect the parties in the individual case, but because of how a holding might affect
other persons similarly situated.     Ohio’s working mothers who endure the
uncomfortable sacrifice of privacy that almost necessarily accompanies their
attempt to remain on the job and nourish their children deserve to know whether
Ohio’s pregnancy-discrimination laws protect them.
       {¶ 55} I would hold in this case that employment discrimination due to
lactation is unlawful pursuant to R.C. 4112.01(B), that clear public policy justifies
an exception to the employment-at-will doctrine for women fired for reasons
relating to lactation, and that LaNisa Allen deserves the opportunity—due to the
state of the record—to prove her claim before a jury.
                              __________________
       Repper, Pagan, Cook, Ltd. and John H. Forg III, for appellant.
       Taft, Stettinius & Hollister, Timothy Reilly, and Daniel J. Hoying, for
appellee.
                            ______________________




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