                                   Michelle SPIVEY, Plaintiff-Appellant,

                                                       v.

  BEVERLY ENTERPRISES, INC., d.b.a. Boaz Health & Rehabilitation Center, Defendant-Appellee.

                                                 No. 99-6166.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                Nov. 30, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. 98-00500-CV-TMP-
M), Terry M. Putnam, Mag. Judge.

Before BLACK and WILSON, Circuit Judges, and RONEY, Senior Circuit Judge.

        BLACK, Circuit Judge:

        Appellant Michelle Spivey brought this action against her employer, Appellee Beverly Enterprises,

Inc., alleging that she was discriminated against in violation of the Pregnancy Discrimination Act, 42 U.S.C.

§ 2000e(k), after being terminated due to a limitation imposed by her physician because of her pregnancy.

The district court granted Appellee's motion for summary judgment after finding that Appellant had not

established a prima facie case of either disparate treatment or disparate impact discrimination. We affirm.

                                             I. BACKGROUND

        Appellant was employed on June 13, 1996, as a certified nurse's assistant at the Boaz Health and

Rehabilitation Center, which is owned and operated by Appellee. Her primary responsibilities at the Boaz

facility were to lift and reposition patients, assist with patient baths and meals, and provide general patient

care. Soon after discovering she was pregnant, Appellant developed concerns that lifting a patient on her

assigned hall who weighed almost 250 pounds could cause harm to her unborn child. As a result, she

requested assistance in lifting this patient. She was told by Appellee to obtain a doctor's verification of the

restriction and she consequently obtained a restriction from her obstetrician which imposed a lifting limitation

of 25 pounds.
        Upon receipt of the medical restriction, Appellee notified Appellant she would not be provided with

an accommodation due to the company's modified duty policy. Appellee's policy stated that employees were

excused from meeting their job responsibilities only if they qualified for modified duty, which was available

exclusively to employees who suffered from work-related injuries.1 Under this policy, Appellant could be

excused from lifting patients only if she were injured on the job. After being told that she could not be

excused from her job responsibilities under Appellee's modified duty policy, Appellant consequently

attempted to have the lifting restriction removed by her obstetrician. The doctor, however, refused this

request. As a result of the medical restriction that precluded her from lifting more than 25 pounds, Appellant

was terminated. On July 28, 1997, Appellant was rehired by Appellee.

        Appellant instituted this action on March 3, 1998, claiming that Appellee's provision of modified duty

for employees injured on the job, but not for pregnant employees, violated the Pregnancy Discrimination Act,

42 U.S.C. § 2000e(k). Appellant argued that her termination caused her to lose seniority and related benefits.

Appellant alleged both disparate treatment and disparate impact claims. We review de novo the district

court's grant of a motion for summary judgment on these claims. Edwards v. Wallace Community College,

49 F.3d 1517, 1520 (11th Cir.1995).

                                             II. DISCUSSION

        In 1978, Congress amended Title VII by enacting the Pregnancy Discrimination Act (PDA), which

provides that prohibitions of discrimination "because of sex" or "on the basis of sex" include discrimination

on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C. § 2000e(k) (1994). This act

declared that women affected by pregnancy "shall be treated the same for all employment-related purposes,




    1
      Appellee reserves modified duty for employees with occupational injuries because there are only a
limited number of light duty tasks available at any one time. If light duty were made available to all
employees without regard to whether the injury was work-related, the light duty "positions" would be
depleted and unavailable when needed by employees with workers' compensation restrictions.

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including receipt of benefits under fringe benefits programs, as other persons not so affected but similar in

their ability or inability to work...." Id.

         There are two types of discrimination actionable under Title VII, disparate treatment and disparate

impact. Although proof of discriminatory intent is necessary for a plaintiff to succeed on a claim of disparate

treatment, a claim of disparate impact does not require evidence of intentional discrimination. See Armstrong

v. Flowers Hosp., Inc., 33 F.3d 1308, 1313 (11th Cir.1994).

A.      Disparate Treatment

         Appellant has not offered direct evidence that Appellee intended to discriminate against pregnant

employees. Appellant must therefore present circumstantial evidence from which an inference of intentional

discrimination can be drawn. See id. In order to prevail on a disparate treatment claim based on

circumstantial evidence, Appellant is required to first establish a prima facie case that creates a rebuttable

presumption of unlawful discrimination. See id. Appellant must meet four requirements in order to establish

a prima facie case of discrimination: (1) she is a member of a group protected by Title VII; (2) she was

qualified for the position or benefit sought; (3) she suffered an adverse effect on her employment; and (4)

she suffered from a differential application of work or disciplinary rules. See id. at 1314. The only two

requirements in dispute are whether Appellant was qualified and whether she suffered from a differential

application of work rules.

         There is no dispute that Appellant was no longer qualified to work as a nurse's assistant. The lifting

restriction imposed on Appellant clearly prevented her from performing the responsibilities required of this

position. Appellant argues, however, that she should have been given the accommodation of modified duty

because she was as capable of performing the duties required of a modified duty assignment as non-pregnant

employees who were injured on the job. Appellee, however, was under no obligation to extend this

accommodation to pregnant employees. The PDA does not require that employers give preferential treatment

to pregnant employees. See, e.g., Lang v. Star Herald, 107 F.3d 1308, 1312 (8th Cir.1997); Garcia v.



                                                      3
Woman's Hosp. of Texas, 97 F.3d 810, 813 (5th Cir.1996); Troupe v. May Department Stores Co., 20 F.3d

734, 738 (7th Cir.1994). Appellee was therefore free to provide an accommodation to employees injured on

the job without extending this accommodation to pregnant employees.

        Appellant also has failed to establish that she suffered from a differential application of work rules.

In Byrd v. Lakeshore Hospital, 30 F.3d 1380 (11th Cir.1994), this Court held that an employer violates the

PDA when it denies a pregnant employee a benefit generally available to temporarily disabled workers

holding similar job positions. See id. at 1383-84. In this case, the benefit Appellant seeks is not generally

available to temporarily disabled workers. To the contrary, Appellee offers modified duty only to a clearly

identified sub-group of workers—those workers who are injured on the job.

         The correct comparison is between Appellant and other employees who suffer non-occupational

disabilities, not between Appellant and employees who are injured on the job. Under the PDA, the employer

must ignore an employee's pregnancy and treat her "as well as it would have if she were not pregnant."

Piraino v. International Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir.1996). Ignoring Appellant's

pregnancy would still have left Appellee with an employee who suffered from a non-occupational injury.

Appellee, as per its policy, was therefore entitled to deny Appellant a modified duty assignment as long as

it denied modified duty assignments to all employees who were not injured on the job.

        This position is consistent with Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir.1998),

cert. denied, --- U.S. ----, 119 S.Ct. 509, 142 L.Ed.2d 422 (1999). In Urbano, the Fifth Circuit addressed a

pregnancy discrimination claim factually similar to the one at issue. The employer in Urbano had a policy

that granted light duty assignments only to employees who suffered an injury on the job. See id. at 205. The

Fifth Circuit held it was not a violation of the PDA for the employer to deny light duty assignments to

pregnant employees even though employees who were injured on the job were provided with such an

opportunity. See id. at 206. The Fifth Circuit found that the plaintiff, a pregnant employee, had not

established a prima facie case of discrimination because she failed to demonstrate that she was qualified for



                                                      4
light duty and that she was treated differently under Continental's light duty policy than other employees with

non-occupational injuries. See id. at 206-07.2

         We therefore hold that an employer does not violate the PDA when it offers modified duty solely to

employees who are injured on the job and not to employees who suffer from a non-occupational injury. Of

course, pregnant employees must be treated the same as every other employee with a non-occupational injury.

Appellant has also asserted that she was not treated equally even to non-pregnant employees who were not

injured on the job. The only evidence she offered was the affidavit of Mary Duran, a former employee of

Appellee who underwent a hysterectomy that required her to refrain from lifting while recuperating. We

agree with the district court that the affidavit does not sufficiently create an issue of material fact as to

whether Appellant suffered from a different application of work rules than non-pregnant employees.3

B.       Disparate Impact

         In addition to her disparate treatment claim, Appellant alleges that Appellee's policy of providing

modified duty only to employees who are injured on the job has a disparate impact on pregnant employees.

Establishing a prima facie case of disparate impact discrimination involves two steps. First, the plaintiff must

identify the specific employment practice that allegedly has a disproportionate impact. See Armstrong v.

Flowers Hosp., Inc., 33 F.3d 1308, 1314 (11th Cir.1994). Second, the plaintiff must demonstrate causation

by offering statistical evidence sufficient to show that the challenged practice has resulted in prohibited


     2
      Appellant has correctly noted that support for her argument can be found in Ensley-Gaines v. Runyon,
100 F.3d 1220 (6th Cir.1996). As in this case, Ensley-Gaines involved an employment policy which provided
limited duty only to employees who were injured on the job. See id. at 1222. The Sixth Circuit concluded
that the proper comparison under the PDA was between pregnant employees and employees injured on the
job, not between pregnant employees and employees injured off the job, as the Fifth Circuit later held in
Urbano. See id. at 1226. Accordingly, the Sixth Circuit held that plaintiffs asserting a PDA claim need to
demonstrate only that a non-pregnant employee similarly situated in his or her ability to work received more
favorable benefits. See id. For the reasons stated above, however, we believe that the better position is that
taken by the Fifth Circuit in Urbano.
     3
    There is no evidence in the record indicating that Duran was actually permitted to avoid any of the lifting
or pulling tasks required by the job. In addition, the record demonstrates that Duran was specifically told that
Appellee did not provide light duty for people who were not injured on the job.

                                                       5
discrimination. See id. If the plaintiff establishes a prima facie case, the employer can then respond with

evidence that the challenged practice is both related to the position in question and consistent with business

necessity. See Garcia v. Woman's Hosp. of Texas, 97 F.3d 810, 813 (5th Cir.1996) (citing 42 U.S.C. § 2000e-

2(k)(1)(A)(i)).

         In this case, Appellant has established the first element of the prima facie case because she has

identified Appellee's modified duty policy as the employment practice that allegedly has a disproportionate

impact on pregnant employees. Appellant, however, has failed to present statistical evidence to demonstrate

that this policy in practice has a disproportionate impact on pregnant employees. In fact, Appellant contends

that a statistical analysis is not needed because Appellee admits that its modified duty policy was the basis

for refusing modified duty to Appellant.

        As noted in Armstrong, Appellant must produce competent evidence showing that termination

because of Appellee's modified duty policy falls disproportionately on pregnant employees. See Armstrong,

33 F.3d at 1314. Appellant has failed to offer any evidence at all that Appellee's modified duty policy results

in a disproportionate termination of pregnant employees. For this reason, the district court was correct to

conclude that Appellant had failed to establish a claim of disparate impact discrimination.

                                             III. CONCLUSION

        We conclude that Appellant has not established a prima facie case of either disparate treatment or

disparate impact discrimination under the PDA. Accordingly, we affirm the district court's grant of summary

judgment in favor of Appellee.

        AFFIRMED.




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