                Case: 18-14687      Date Filed: 04/17/2020       Page: 1 of 23



                                                                                  [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 18-14687
                              ________________________

                         D.C. Docket No. 4:16-cv-01604-ACA



KIMBERLIE MICHELLE DURHAM,

                                                                         Plaintiff-Appellant,

versus

RURAL/METRO CORPORATION,

                                                                       Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                      (April 17, 2020)

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

PER CURIAM:



         *
        The Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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      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 (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.




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      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 non-

pregnant 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


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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.”




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      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.”



      1
          Crowell served as general manager for some of Rural’s other nearby operations as well.
      2
          See Fed. R. Civ. P. 30(b)(6).
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       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.


       3
         The district court appears to have viewed this statement of Durham’s from a declaration
Durham submitted after her deposition as contradictory to Durham’s deposition testimony that she
was not aware of any available light-duty positions when she spoke with Crowell. But Crowell’s
testimony, Durham’s testimony, and Rural’s Light-duty Policy make it clear that the dispatcher
position was not “light duty” as contemplated by Rural’s Light-duty Policy. Unlike light-duty
positions, which were created to address the temporary needs of an employee injured or sickened
on the job, dedicated dispatcher positions existed independently of the need for light-duty
positions, and employees did not have to have been injured on the job to qualify for the dispatcher
position. Of course, on summary judgment, we must view the evidence in the light most favorable
to the nonmoving party and draw all reasonable inferences in that party’s favor. Williamson v.
Brevard Cty., 928 F.3d 1296, 1304 (11th Cir. 2019). Since a reasonable way to understand
Durham’s two statements as not contradictory exists, we must construe Durham’s statements that
way.
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      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


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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.

        Durham sought to continue working as an EMT, despite the lifting

restrictions, since she could not go without pay. But in light of what Durham had

already told Rural about her doctor’s restrictions, Rural required a medical release

clearing Durham for full active duty as an EMT in order for Durham to be eligible

to continue her work. Durham did not provide one. She also did not seek unpaid

personal leave. After September 28, 2015, Rural did not again schedule Durham to

work.

        On November 16, 2015, Durham filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”). She alleged that Rural had

discriminated against her because of her pregnancy when it declined to provide her

with a dispatcher position or light duty during her pregnancy. In support, Durham

stated that “non-pregnant employees with lifting restrictions [had] been


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accommodated with temporary transfers to dispatch and/or light/modified duty

assignments.” Discovery later revealed that Rural had offered accommodations

under its Light-duty Policy to four employees with lifting restrictions imposed as a

result of having been injured on the job. Two of these individuals were limited to

lifting no more than ten pounds, one was constrained to sedentary work, and one had

to wear a knee immobilizer.

      In discovery, Rural also provided its Employee Handbook, which stated that,

on a case-by-case basis, Rural accommodated employees who were “unable to

perform some of their job functions due to a medical condition.” By its terms, the

policy did not limit its applicability to only those employees who were injured on

the job. Indeed, Rural explained in its brief on appeal that this policy was available

to all employees—whether injured on the job or not—who became unable to perform

some or all of their job functions as the result of a medical condition. This policy

was explicitly designed to comply with the Americans with Disabilities Act.

      Durham stated in her EEOC charge that she viewed Rural’s actions in denying

her light-duty or dispatcher work “as effectively terminating [her] employment,”

since the only option[] presented to [her] . . . preclude[d] [her] ability to earn

income.”

      After Durham filed her charge with the EEOC, Rural’s Human Resources

Office checked in with Crowell and asked, “Just so that I am clear. [sic] We do not


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have any Dispatch positions or shifts open or her restrictions would not allow her to

even do dispatch?” Crowell responded that he did not “have any dispatch positions

posted but if [he] needed to create a position for [Durham,] [he] could.” He clarified

that “[o]pen spots are normally filled with part-time dispatchers or cross trained

Bessemer [another office] employees,” but he “could possibly create a position from

1400-2200 M[onday]-F[riday] call taking.” Rural made no such offer.

       This lawsuit followed. In her complaint, Durham alleged a single count that

Rural, in deciding not to allow Durham to continue working, had discriminated

against her, in violation of the Pregnancy Discrimination Act of 1978.

       Following discovery, Rural moved for summary judgment, and Durham

opposed the motion. The district court granted Rural’s motion and entered summary

judgment for Rural. It did so after concluding that Durham had failed to establish a

prima facie case of pregnancy discrimination because she had not shown that Rural

treated Durham less favorably than others who were not pregnant but were similar

to Durham in their ability or inability to work. It thus granted Rural’s motion and

entered summary judgment for Rural. Durham now appeals.4




       4
        The EEOC and a number of other organizations have filed amicus curiae briefs in support
of Durham.
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                                         II.

      We review de novo the district court’s grant of summary judgment. Pesci,

935 F.3d at 1165. Summary judgment should be granted only if the moving party

demonstrates that no genuine dispute exists over the material facts, and the moving

party is entitled as a matter of law to judgment. Fed. R. Civ. P. 56(a).

                                         III.

      Among other things, Title VII, 42 U.S.C. § 2000e et seq., prohibits employers

from “discharg[ing]” or “otherwise . . . discriminat[ing] against any individual with

respect to [her] compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

      In 1976, the Supreme Court construed this language to uphold as

nondiscriminatory a company plan that provided “nonoccupational sickness and

accident benefits to all employees” but did not authorize “disability-benefit

payments for any absence due to pregnancy.” Gen. Elec. Co. v. Gilbert, 429 U.S.

125, 128, 129 (1976). To reach this conclusion, the Court reasoned that the plan did

not discriminate on the basis of sex since “there was no risk from which men are

protected and women are not.” Young v. United Parcel Serv., Inc., 575 U.S. 206,

227 (2015) (quoting Gilbert, 429 U.S. at 138) (internal quotation marks omitted). In

the Gilbert Court’s view, the company did “not distinguish between pregnant women




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and others of similar ability or inability because of pregnancy.” Id. at 242 (Scalia,

J., dissenting).

       Congress responded to Gilbert with the PDA. Young, 575 U.S. at 222–23

(citing S. Rep. No. 95-331, p. 8 (1978)). In relevant part, the Act clarifies that the

phrase “because of sex” includes “because of . . . pregnancy . . . ; and women

affected by pregnancy . . . 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 . . . .” 42 U.S.C. § 2000e(k). The Supreme Court has observed that

“Congress’ unambiguous intent in passing the Act was to overturn both the holding

and the reasoning of the Court in the Gilbert decision.” Young, 575 U.S. at 227

(cleaned up).

       In Young, the Supreme Court announced a new, modified McDonnell

Douglas 5 burden-shifting framework to be used in PDA cases involving indirect

evidence of disparate treatment. Young, 575 U.S. at 228. Under that framework, a

plaintiff may make out a prima facie case of discrimination by “showing actions

taken by the employer from which one can infer, if such actions remain unexplained,

that it is more likely than not that such actions were based on a discriminatory

criterion illegal under” the Act. Id. (cleaned up). The prima-facie-case burden the

plaintiff bears is not an “onerous” one. Id. Rather, to establish a prima facie case


       5
           McDonnell Douglas v. Green, 411 U.S. 792 (1973).
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of discrimination under the Act, a plaintiff must show only that (1) she is a member

of the protected class; (2) she requested accommodation; (3) the employer refused

her request; and (4) the employer nonetheless accommodated others “similar in their

ability or inability to work.” Id. at 229.

      After a plaintiff satisfies her prima facie burden, the employer may come

forward with “legitimate, nondiscriminatory reasons” for denying the plaintiff’s

requested accommodation. Id. (cleaned up). Normally, though, an employer cannot

simply say “that it is more expensive or less convenient to add pregnant women to

the category of those (‘similar in their ability or inability to work’) whom the

employer accommodates,” since that reason alone would generally be

“[in]consistent with the Act’s basic objective.” Id.

      If the employer presents an ostensible “legitimate, nondiscriminatory” reason

for what it has done, the plaintiff then has the opportunity to attempt to demonstrate

that the employer’s stated reason is “in fact pretextual.” Id. (internal quotation marks

omitted). The Supreme Court has explained that a plaintiff does enough to survive

summary judgment if she shows both that “the employer’s policies impose a

significant burden on pregnant workers” and that “the employer’s ‘legitimate,

nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but

rather—when considered along with the burden imposed—give rise to an inference

of intentional discrimination.” Id.


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       With this framework in mind, we consider the evidence at issue here. We

begin, of course, with Durham’s burden to set forth a prima facie case.

       First, the parties do not dispute that Durham satisfies the first two prongs of

the Young prima facie test. As a pregnant woman, she was obviously part of the

class protected by the Pregnancy Discrimination Act. See also 42 U.S.C. § 2000e(k)

(“The term[] ‘because of sex’ . . . include[s] . . . because of or on the basis of

pregnancy . . . .”). And she sought an accommodation from Rural in the form of

light-duty or dispatcher work.

       As for the third prong—whether Rural refused Durham’s request for

accommodation—we conclude Durham established that as well. Rural declined to

offer Durham light-duty or dispatcher work. Indeed, Rural does not meaningfully

contest Durham’s satisfaction of this consideration.

       That brings us to the fourth prong—whether Rural accommodated others who

were not pregnant but were “similar in their ability or inability to work.” Because

the Court’s discussion in Young is instructive, we take the time to review that case

in further detail.

       Young worked for UPS as a driver, picking up and delivering packages—a

job that required her to be able to lift up to 70 pounds by herself. 575 U.S. at 215.

When she became pregnant, her doctor recommended that she not lift more than 20

pounds during the first half of her pregnancy and 10 during the second. Id. at 214.


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So Young sought a temporary work assignment during her pregnancy, but UPS

rejected her request. Id. at 215. Instead, it informed her that she could not return to

work while pregnant because she did not satisfy UPS’s lifting requirements and she

did not qualify for a temporary alternative work assignment. Id. UPS therefore

required Young to take an unpaid leave of absence. Id. at 216.

      Despite its refusal to accommodate Young, UPS gave other categories of

employees who could not perform their normal work assignments temporary

alternative work. Id. For example, among others, it accommodated employees

injured on the job; employees disabled on the job (including those with resulting

lifting limitations); those who had lost their Department of Transportation

certifications because of a failed medical exam, a lost driver’s license (including an

employee who had lost his license for driving under the influence), or involvement

in a motor-vehicle accident; and some employees who had been disabled off the

job. Id. at 216–17. The Supreme Court held that, viewed in the light most favorable

to Young, a genuine dispute existed as to whether UPS gave more favorable

treatment to at least some employees “whose situation cannot reasonably be

distinguished from Young’s.” Id. at 231.

      We have explained that Young’s analysis of the prima facie case’s fourth

prong means that, in contrast to Title VII’s more general comparator analysis, “the

comparator analysis under the PDA focuses on a single criterion—one’s ability to


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do the job.” Lewis v. City of Union City, Ga., 918 F.3d 1213, 1228 n.14 (11th Cir.

2019) (en banc). Here, as in Young, Durham’s temporary inability to lift more than

50 pounds and her colleagues’ inabilities to lift more than 10 or 20 pounds rendered

Durham, and her colleagues injured on the job, equally unable to perform the 100-

pound lifting duties of an EMT. Thus, Durham and her colleagues who were injured

on the job were “similar in their ability or inability to work.” Also, Rural’s

Employee Handbook also left open the possibility that Rural similarly

accommodated some of those disabled off the job, including those with resulting

lifting restrictions. For these reasons, Durham has satisfied the fourth prong of her

prima facie case.6 See Legg v. Ulster Cty., 820 F.3d 67, 74 (2d Cir. 2016) (“Legg

has . . . established a prima facie case of discrimination under Young. She sought a

light duty accommodation while pregnant. The County did not accommodate her.

And, as a matter of policy, the County provided light duty accommodations to other

employees who were similar in their ability or inability to work, namely those who

were unable to perform non-light-duty tasks as a result of injuries incurred on-

duty.”).

       Because Durham has established a prima facie case, we must turn to Rural’s

ostensible “legitimate, non-discriminatory” reasons for refusing to offer Durham



       6
        To the extent Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309 (11th Cir. 1999), holds
otherwise, it has been abrogated by Young.
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light duty or a dispatcher position. Here, Rural offered two: Rural’s Light-duty

Policy applies to only those injured on the job, and Rural had no dispatcher positions

available at the time Durham sought accommodation.

      Therefore, to survive summary judgment, Durham must point to enough

evidence to create a material issue of fact that Rural’s stated reasons for denying

accommodation are pretextual. Young, 575 U.S. at 229. One way she can do this is

by demonstrating that Rural’s policies that provide the basis for its rejection of

Durham’s request for accommodation “impose a significant burden on pregnant

workers,” and that Rural’s reasons for its policies failing to accommodate pregnant

employees such as Durham “are not sufficiently strong to justify the burden, but

rather . . . give rise to an inference of intentional discrimination.” See id. The district

court never reached this part of the analysis because it stopped after determining that

Durham had failed to establish a prima facie case. As we have just explained, that

was error.

      Because the district court never considered whether Durham presented

enough evidence to create a genuine dispute of fact over whether Rural’s reasons for

refusing to provide her with a light-duty or dispatcher position were pretextual, the

parties likewise did not focus their arguments on appeal on this issue. We therefore

remand this case to the district court for a determination in the first instance on the

issue of pretext, after the court conducts a full review of the existing record and any


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additional evidence the district court may choose to allow the parties to present on

this issue. See, e.g., Schwarz v. City of Treasure Island, 544 F.3d 1201, 1228 (11th

Cir. 2008).

                                         III.

      For the reasons we have stated, summary judgment is vacated, and the case is

remanded to the district court for further proceedings consistent with this opinion.

      VACATED and REMANDED.




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BOGGS, Circuit Judge, concurring:

      I fully agree with the court's holding that the district court erred in its

analysis of the requirements of a prima facie case under the Pregnancy

Discrimination Act. I also agree that the case must be remanded for further

proceedings at the post-prima-facie stage to allow the employer to present its

“legitimate, nondiscriminatory reason[s]” and for the plaintiff in turn to argue that

these are pretextual. Young v. United Parcel Serv., Inc., 575 U.S. 206, 208 (2015)

(internal quotation marks omitted). Thus, I concur in the court's opinion and

judgment.

      I write separately, however, because I fear that the lead opinion's

explanation of the seminal Supreme Court case of Young does not fully capture the

complexities of that opinion and the gaps that it leaves in our understanding of how

trial courts should proceed in PDA cases once a prima facie case is made.

      When applying the PDA to employers who grant light-duty work to workers

injured on the job but not to those injured off the job, courts confront a dilemma:

both are similar to a pregnant employee in their “inability to work.” 42 U.S.C. §

2000e. When there is direct evidence of discrimination, of course, this is not a

difficulty—but when a plaintiff relies on indirect evidence, the issue can be

nettlesome. Prior to 2015, this court used a standard Title VII burden-shifting

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framework to evaluate such claims and, as the fourth element of the prima facie

inquiry, required the plaintiff had to show that “she suffered from a differential

application of work or disciplinary rules.” Spivey, 196 F.3d at 1312. Like most

other circuits, we held that “[t]he correct comparison is between [the plaintiff] and

other employees who suffer non-occupational disabilities, not between Appellant

and employees who are injured on the job.” Id. at 1313. In cases such as this one,

such a rule was fatal to the plaintiff’s case.

       As today’s opinion notes, p. 13, Young marked a significant shift in PDA law.

Young was a distinctive case, due to the large number of categories of workers whom

UPS accommodated. Cf. Lewis v. City of Union City, Ga., 918 F.3d 1213, 1228 n.14

(11th Cir. 2019) (en banc).1 Therefore, it is not altogether clear the accommodation

of which categories of employees triggered the Court’s conclusion that “a genuine

dispute existed as to whether UPS gave more favorable treatment to at least some



1
 As we noted in Lewis:
       The plaintiff in Young, who had sought a waiver of a lifting requirement during
       her pregnancy, met her prima facie burden by pointing to seven separate classes
       of non-pregnant employees whom her employer had accommodated—three of
       those classes enjoyed group-wide accommodations pursuant to a collective
       bargaining agreement, and four other classes of “[s]everal employees” had been
       accommodated on an ad hoc, but seemingly regular, basis. See id. at 1346–47.
       The sheer numbers were overwhelming. The plaintiff’s allegations in Young
       showed that the employer had “accommodate[d] most nonpregnant employees
       with lifting limitations while categorically failing to accommodate pregnant
       employees with lifting limitations.” Id. at 1354. As the Court put the matter,
       rhetorically, “why, when the employer accommodated so many, could it not
       accommodate pregnant women as well?” Id. at 1355.
918 F.3d at 1228 n.14.
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employees ‘whose situation cannot reasonably be distinguished from Young’s.’”

Supra, op. 16, quoting Young, 575 U.S. at 231. This is particularly troublesome

because some of the comparators enumerated in Young intuitively support an

inference of deliberate discrimination, while others do not. On the one hand, UPS

was willing to accommodate some employees injured off the job or even who had

lost their licenses for driving while intoxicated, but not pregnant workers. On the

other hand, there were employees who were accommodated because some other law

either mandated or heavily incentivized their accommodation: namely, those

injured-on-the job (who otherwise “would have been eligible for workers'

compensation benefits”) and those whose accommodation was “required by the

ADA.” Young, 575 U.S. at 239 (Alito, J., concurring). As previously noted, pre-

Young, we took account of the fact this second category of accommodations could

not be construed as evidence of intentional discrimination by requiring that the

plaintiff show that coworkers injured off the job had been treated better than she was.

See Spivey, 196 F.3d at 1312.

      Nevertheless, there are three good reasons to conclude, as the court does

today, that Young changed the prima facie test and that the comparator requirement

is now satisfied by the plaintiff’s pointing toward coworkers who were

accommodated after being injured on the job. First, the Supreme Court decision

abrogated a Fourth Circuit ruling that had required the plaintiff to show that all


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coworkers injured off the job had been treated differently than she was. See Young

v. United Parcel Serv., Inc., 707 F.3d 437, 447–48 (4th Cir. 2013), vacated and

remanded, 575 U.S. 206 (2015). Second, the new framework in Young makes

explicit many of the policy considerations that had underlain the choice-of-

comparator discussion in previous appellate court decisions, but moves them to the

legitimate-reason and pretext inquiries. Compare Spivey, 196 F.3d at 1312–13 with

Young, 575 U.S at 229–30. At these later stages of the Young analysis, we are now

told to consider the company’s reasons for treating pregnant workers differently than

those injured on the job. We are not to do so at the prima facie stage.

      Finally, the en banc decision in Lewis is instructive. There, the court indicated

that the prima facie inquiry in PDA cases is to be treated differently than in other

Title VII cases. See Lewis, 918 F.3d at 1228 n.14. In the mine run of Title VII cases,

the comparator analysis is an important way of inferring discrimination (if like cases

are treated differently). See Lewis at 1222–23 (“Treating different cases differently

is not discriminatory, let alone intentionally so.”).      In the PDA context, by

comparison, either available comparator—coworkers injured on the job or

coworkers injured off the job—is going to be at once “like” (because unable to work)

or “unlike” (because their inability to work came through injuries or ailments that

are not pregnancy). The question is rather whether the company’s policy choices




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reflect an intent to discriminate. And that is better evaluated in the post-prima facie

stages.

      For that exact reason, however, an employer can still make the argument that

it has not discriminated by treating a pregnant employee the same as one injured off

the job. Such an argument has been moved as to its proper placement, not done

away with. Young eschews a “most-favored-nation” reading of the PDA, under

which if any benefit were offered to some sub-class of workers, it must be offered

to pregnant workers. See Young, 575 U.S. at 222; see also id. at 239–40 (Alito, J.,

concurring). “[T[he fundamental question in Young, as here, was whether the

employer’s actions gave rise to valid inference of unlawful discrimination.” Lewis,

918 F.3d at 1228 n.14 (citing Young, 135 S.Ct. at 1354). It remains an open question,

both as a matter of law and as to whether this is in fact what happened here. Such

questions are left to the district court to decide in the legitimate-reasons and

pretextual inquiries of the Young test, not at the prima facie stage.

      With the nuances expressed above, I concur.




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