               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0052n.06
                          Filed: January 18, 2006

                                         No. 04-6435

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


D. MICHELLE BERGMAN,                            )
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
BAPTIST HEALTHCARE SYSTEM, INC.,                )    WESTERN DISTRICT OF KENTUCKY
                                                )
       Defendant-Appellee                       )


Before: KENNEDY, Senior Circuit Judge and GIBBONS, Circuit Judge; DONALD, District
Judge.*

JULIA SMITH GIBBONS, Circuit Judge.

       D. Michelle Bergman alleges that she was terminated by her employer because of her

pregnancy. She sued the employer, Baptist Healthcare System, Inc. (“BHS”), under Title VII of the

Civil Rights Act of 1964 and the Kentucky Civil Rights Act (KCRA). Bergman also brought

contract and quasi-contract claims. The district court granted summary judgment to BHS, and

Bergman appealed. For the following reasons, we AFFIRM the district court’s grant of summary

judgment.



       *
        The Honorable Bernice Bouie Donald, United States District Judge for the Western District
of Tennessee, sitting by designation.

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                                                 I.

       Western Baptist Hospital, a healthcare facility operated by BHS in Paducah, Kentucky, hired

Bergman on February 4, 2002, as an infant teacher in its daycare center. Bergman was in charge of

infants aged four- to six-months. Her job responsibilities consisted of feeding and changing the

babies, as well as getting them to sleep and engaging in age-appropriate developmental activities

with them. Bergman was an at-will employee.

       Approximately two months into her employment at the daycare center, Bergman learned that

she was pregnant with her second child. After she learned of her pregnancy, she informed her

supervisor, Child Development Center Coordinator Pat Hayes, and Hayes congratulated her.

       Bergman’s pregnancy immediately was plagued by complications. Approximately two

weeks after she discovered she was pregnant, on or around April 18, 2004, Bergman nearly

miscarried. To prevent a miscarriage, Bergman’s doctor ordered bed rest, which required Bergman

to be absent from work for two weeks. Bergman provided a note from her doctor and informed

Hayes that she would be absent. Hayes granted Bergman two-weeks leave.

       Unfortunately, Hayes failed to comply with BHS’s leave policy when she permitted Bergman

to take two weeks off. Bergman was ineligible for BHS’s Personal Leave of Absence (LOA).1 A


       1
         BHS grants employees leaves of absence for their serious health conditions as well as for
their family members’ serious health conditions. The family medical leave is granted pursuant to
29 U.S.C. §§ 2601-2619, and the eligibility requirements are set by the Family Medical Leave Act.
The personal illness leave is granted pursuant to a BHS policy, and the sole eligibility requirement
is employment with BHS for at least three months. Employees who have worked for BHS for three
months can take up to three months of leave, but their jobs are not necessarily guaranteed for the
duration of their leaves. Their jobs are guaranteed only until they exhaust their paid time off
(“PTO”) and accrued sick time. After the employees’ PTO and sick time are depleted, they no longer
have the right to return to their former positions.

                                                -2-
LOA is available to BHS employees suffering from serious health conditions but only if BHS has

employed them for at least three months. At the time Bergman needed the two-weeks-leave, she had

not yet been a BHS employee for three months. Bergman’s ineligibility was noticed by the human

resources department. A member of the human resources department, Blanche Hensley, called

Hayes to inquire about “what was going on with Michelle Bergman.” After Hayes explained that

Bergman had been ordered to bed for two weeks after a threatened miscarriage, Hensley asked

Hayes, “[D]o you realize she’s not eligible for family medical leave?” Because Bergman was

ineligible for the leave she was taking, an employee in the human resources department called

Bergman and informed her that she would lose her job if she did not return to work. Bergman “told

[the employee that she] would return to work because [she] could not afford to lose [her] job.”

       Bergman immediately returned to work but with restrictions. Her doctor instructed her not

to lift anything that weighed more than twenty pounds. Generally, BHS permits employees to work

with restrictions for only thirty days and only if the restrictions can be accommodated in the

workplace. Despite this policy, Hayes was willing to permit Bergman to work with the lifting

restriction for the duration of her pregnancy. This was largely because the lifting restriction did not

interfere with Bergman’s job duties; her job as an infant teacher did not require her to lift many

things that weighed more than twenty pounds. Nonetheless, Hayes did provide two accommodations

for Bergman: she permitted Bergman to change diapers on mats on the floor to avoid lifting and to

ask another teacher to lift the only baby in Bergman’s care that weighed twenty pounds. Bergman

worked with these accommodations from April 2004 until early August 2004.

       In early August, Bergman went into labor, well in advance of her December due date. To



                                                 -3-
prevent a premature delivery, Bergman’s doctor ordered a surgical procedure called a cervical

closure to stop the dilation that already had begun. Bergman scheduled the surgery for August 8 and

advised Hayes on August 6 or August 7 that she needed to take one week off from work to recover

from the surgery and that after she recovered she could work only half-days on light-duty for the

remainder of her pregnancy. Bergman interpreted light-duty as a total restriction on lifting,

regardless of weight. Bergman never contacted the human resources department to take a LOA, and

Hayes never recommended that she take a LOA instead of working part-time on light-duty.2 Instead,

Hayes and Bergman focused on accommodating the total lifting restriction, while keeping Bergman

at work.

       Initially, Hayes indicated to Bergman that the total lifting restriction could be accommodated

by letting Bergman work as a “breaker” who relieved other teachers. After consideration and

discussions with the Executive Director of Human Resources, Dick Thomas, and the Employee

Health Nurse, Ann Croft, Hayes decided that Bergman’s restriction could not be accommodated.

Hayes concluded that she had no position, not even the breaker position, that required no lifting.

Accordingly, Hayes decided to terminate Bergman and informed her of it on the morning of her

surgery. Bergman recalls Hayes telling her that “Dick Thomas said that I could not work in the


       2
          Even if Bergman had opted for a LOA and BHS had granted it, her job would not have been
secure. Bergman only had 16.84 hours of accrued sick time and 17 hours of Paid Time Off (“PTO”),
which would not have guaranteed her job even for the week she needed to recover from the cervical
closure. Even construing these facts in the light most favorable to Bergman, BHS’s failure to grant
Bergman a LOA is not a distinct adverse employment action. Had she received the LOA she would
have been subject to termination within a week. Not receiving a LOA that would have left her
vulnerable to job loss cannot be characterized as an adverse employment action. Therefore, the
district court did not need to analyze BHS’s failure to grant Bergman a LOA as an adverse
employment action.

                                                -4-
breaker position and that I could no longer work there, that I would be a risk . . . . and they couldn’t

have that.” Hayes encouraged Bergman to apply for another position at the daycare center when she

could work restriction-free after giving birth.

       After Hayes terminated Bergman, Bergman sued BHS for pregnancy discrimination, breach

of contract, and promissory estoppel in Kentucky state court. BHS removed the case from state court

to the United States District Court for the Western District of Kentucky. The district court granted

summary judgment to BHS and dismissed all of Bergman’s claims. Bergman moved to vacate the

summary judgment, and the district court denied her motion, even though it acknowledged that it

erred in its original analysis of her pregnancy discrimination claim. Notwithstanding, the district

court concluded that the summary judgment need not be vacated because BHS was entitled to a

judgment as a matter of law when the claims were properly analyzed. Bergman appealed the

summary judgment to this court.

                                                  II.

       This court reviews the district court’s grant of summary judgment de novo, reapplying the

standard used by the district court to each of Bergman’s claims. Williams v. Mehra, 186 F.3d 685,

689 (6th Cir. 1999). Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine

issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c). Although all “inferences to be drawn from the underlying facts . . . must be viewed

in the light most favorable to the party opposing the motion,” United States v. Diebold, 369 U.S.

654, 655 (1962), summary judgment must be entered against the opposing party if she “fails to make



                                                  -5-
a showing sufficient to establish the existence of an element essential to . . . [her] case, and on which

. . . [she] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

If “a reasonable jury could return a verdict for the nonmoving party” summary judgment should be

denied. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).

                                 A. Pregnancy Discrimination Claim

        “Title VII of the Civil Rights Act of 1964 prohibits employers from ‘discharg[ing] any

individual . . . because of such individual’s . . . sex.’” Turic v. Holland Hospitality, Inc., 85 F.3d

1211, 1213 (6th Cir. 1996) (quoting 42 U.S.C. § 2000e-2(a)(1)). The Pregnancy Discrimination Act

(“PDA”), an amendment to Title VII, extended the prohibition on discharging employees “‘on the

basis of sex’” to firing women because of pregnancy. 42 U.S.C. § 2000e(k). The PDA requires

employers to treat “women affected by pregnancy, childbirth, or related medical conditions . . . the

same for all employment-related purposes . . . as other persons not so affected but similar in their

ability or inability to work.” Id.

        Likewise, the KCRA prohibits employers from discharging an employee because of sex or

pregnancy. Ky. Rev. Stat. Ann. § 344.040 (2003). In fact, “the Kentucky . . . statute is specially

modeled after the Federal law.” Cf. Harker v. Fed. Land Bank, 679 S.W.2d 226, 229 (Ky. 1984)

(referring to the age discrimination provisions of the KCRA). Consequently, in interpreting the

KCRA, “we must consider the way the Federal act has been interpreted.” Id.

        Under the KCRA and Title VII, an employee can demonstrate discrimination by her

employer in one of three ways. She can proffer direct evidence of discrimination, present

circumstantial evidence that permits an inference of discrimination, or show “that both legitimate



                                                  -6-
and illegitimate (discriminatory) reasons — in other words, ‘mixed motives’ — motivated the

adverse employment decision.” Harris v. Giant Eagle, Inc., 133 F. App’x. 288, 296 (6th Cir. 2005);

see also Johnson v. Kroger Co., 319 F.3d 858, 864–65 (6th Cir. 2003) (identifying methods of proof

for a Title VII claim premised on racial discrimination). Bergman attempts to prove her pregnancy

discrimination claim by direct and circumstantial evidence; she makes no allegation that BHS was

motivated by mixed-motives. Therefore, her claim will be evaluated under the direct and

circumstantial analyses only, but by no method of proof could a reasonable jury return a verdict in

Bergman’s favor.

                                        1. Direct Evidence

       Employment discrimination is established by direct evidence when the employee comes forth

with “evidence [that] requires the conclusion that unlawful discrimination was at least a motivating

factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176

F.3d 921, 926 (6th Cir. 1999). The discrimination is proven without resort to inference: that the

employee was a victim of discrimination appears plain on the face of the evidence. See Rowan v.

Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004) (“Direct evidence is evidence

that proves the existence of a fact without requiring any inferences.”). After the employee comes

forward with direct evidence of discrimination, “the burden of both production and persuasion shifts

to the employer to prove that it would have terminated the employee even if it had not been

motivated by impermissible discrimination.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th

Cir. 2000).

       Bergman has presented no direct evidence of pregnancy discrimination. The only evidence



                                                -7-
that connects her termination to her pregnancy is the time correlation between it and her firing and

the ambiguous “risk” statement that Hayes attributed to Thomas. The mere fact that Bergman’s

termination coincided with her pregnancy does not prove pregnancy discrimination without resort

to inference. The Thomas statement — that Bergman was a risk that they could not have — does not

prove discrimination independently or even in tandem with the timing of her firing. Thomas might

have been referring to risk to the children in the daycare center from being put in the care of a

teacher who could not lift anything. Given this ambiguity, the risk statement cannot be construed

as direct evidence of pregnancy discrimination.

                                   2. Circumstantial Evidence

       An employee proves employment discrimination through circumstantial evidence by

creating a presumption of discrimination and challenging the employer to rebut the presumption by

legitimating its employment action. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252

(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). McDonnell-Douglas and

Burdine set forth the “basic allocation of burdens and order of presentation of proof” for

circumstantial evidence cases. Burdine, 450 U.S. at 252. The plaintiff must prove by a

preponderance of the evidence a prima facie case of employment discrimination. Id. at 252-53. The

nature of the alleged discrimination determines the elements of the prima facie case, compare Cline

v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000) (setting out elements of a prima

facie case of pregnancy discrimination), with Peltier v. United States, 388 F.3d 984, 987 (6th Cir.

2004) (setting out elements of a prima facie case of gender discrimination), but the burden of

establishing it is never “onerous.” Burdine, 450 U.S. at 253. Once the employee has met its burden



                                                -8-
of proving a prima facie case of discrimination, “the burden shifts to the [employer] ‘to articulate

some legitimate, nondiscriminatory reason for [its employment action].’” Id. (quoting McDonnell

Douglas, 411 U.S. at 802). If the employer carries its burden, the burden shifts back to the employee

to prove that the articulated justifications for the employment action are merely pretexts for

discrimination. Id. The employee can show pretext by demonstrating that the nondiscriminatory

reasons offered for the employment action (1) have no basis in fact; (2) did not really motivate the

employment action; or (3) were insufficient to justify the employment action. Manzer v. Diamond

Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). “The ultimate burden of persuading the

trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times

with the plaintiff,” Burdine, 450 U.S. at 253, despite “the division of intermediate evidentiary

burdens.” Id.

       To make out a prima facie case of pregnancy discrimination, Bergman must show: “1) she

was pregnant, 2) she was qualified for her job, 3) she was subjected to an adverse employment

decision, and 4) there is a nexus between her pregnancy and the adverse employment decision.”

Cline, 206 F.3d at 658. Bergman has established the first three elements of her prima facie case. She

was approximately five months pregnant when she was terminated, and, as the district court noted

when it corrected its analytical error, she was qualified for her job as an infant teacher. The fourth

element of the prima facie case requires Bergman to show, at a minimum, that Hayes knew Bergman

was pregnant when making the decision to terminate her and that the termination was proximate to

her pregnancy. See DeBoer v. Murashi Auto Parts, Inc., 124 F.App’x. 387, 391 (6th Cir. 2005)

(finding that temporal proximity satisfied nexus requirement); Prebilich-Holland v. Gaylord



                                                 -9-
Entertertainment Co., 297 F.3d 438, 443-44 (6th Cir. 2002) (finding employer’s knowledge of

pregnancy a requirement of the nexus element). Bergman has made this showing: Hayes knew

Bergman was pregnant and was apprised of Bergman’s pregnancy complications, and Hayes

terminated Bergman while she was pregnant. Thus, Bergman has made out a prima facie case of

pregnancy discrimination.

       BHS, however, has carried its burden of rebutting the presumption of intentional

discrimination. The legitimate, nondiscriminatory motive put forth by BHS is that the daycare center

had no position that Bergman could fill while working half-days with a total restriction on lifting.

       Because BHS indicated that it terminated Bergman because it could not accommodate her

restriction, Bergman must expose this proffered justification as a pretext for pregnancy

discrimination. To establish pretext, Bergman argues that BHS should have probed to determine

precisely what work she could perform while under the light-duty restriction. Bergman cannot

establish pretext by arguing that BHS should have investigated her restriction when she interpreted

the restriction for Hayes and indicated that it prohibited her from lifting anything. BHS can rely on

Bergman’s own interpretation of her doctor’s instructions. But even if BHS should have determined

independently the amount of work that Bergman could perform, that does not indicate that BHS’s

justification for terminating her was pretextual. It does not demonstrate that Bergman in fact could

have performed some job at the daycare center, that BHS really acted on the ulterior motive of

discriminating against her, or that BHS’s belief that the daycare center had no job that Bergman

could perform was insufficient to justify terminating her. See Manzer, 29 F.3d at 1084 (holding that

the employee can establish pretext only by showing that the employer’s proferred non-



                                                -10-
discriminatory reason for the termination had no basis in fact, did not motivate the termination, or

was insufficient to justify the termination).

       Likewise, Bergman’s observation that other employees were permitted to work part-time,

with restrictions, or take extended LOA’s does not establish pretext. This observation does not go

to the issue of whether BHS could accommodate Bergman’s particular restriction in the daycare

center. The employees Bergman identified worked throughout the hospital and had restrictions that

permitted them to work different amounts under different circumstances. No employee Bergman

identified worked in the daycare center and was restricted to working half-days without lifting for

four months. The one daycare center employee who had a total lifting restriction presumably could

work full-time and only was prohibited from lifting for one month. Therefore, her restriction was

much less difficult to accommodate than Bergman’s. Consequently, BHS’s accommodation of her

restriction does not imply that its reason for terminating Bergman was pretextual. More significantly,

however, BHS’s prior accommodation of Bergman’s twenty-pound-lifting restriction suggests that

BHS accommodated Bergman to the greatest extent possible and only terminated her when it

reached the limit of its accommodations.

                                         B. Contract Claim

       Bergman cannot establish that BHS breached an employment contract because she was an

at-will employee. She signed a statement acknowledging that she had no employment contract with

BHS when she received her employee handbook. See Shah v. Am. Synthetic Rubber Corp., 655

S.W.2d 489, 492 (Ky. 1983) (presuming that an employee is terminable at will unless the employer

and employee expressly agreed that the employee could be terminated only for cause); see also



                                                -11-
Williams v. Webster County Coal, 2003 WL 1240474, *2 (Ky. App. Feb. 7, 2003) (requiring a “clear

expression of the parties’ intent to abandon the at will employment relationship”). She was never

converted to a contract employee because neither she nor BHS expressed a clear, explicit intent to

alter the employment relationship. See Shah, 655 S.W.2d at 492 (“If it is their purpose, the parties

may enter into a contract for permanent employment—not terminable except pursuant to its express

terms—by stating clearly their intention to do so . . . .”). Hayes’s initial indication that Bergman

could work as a “breaker” does not constitute a clear, express intent to transform Bergman from an

at-will employee to one terminable only for cause. Given that Bergman was at all times an at-will

employee, she cannot maintain an action for breach of employment contract.

                                    C. Quasi-Contract Claim

       Bergman cannot make out the elements of a quasi-contract claim even though the doctrine

of promissory estoppel applies in the employment context. McCarthy v. Louisville Cartage Co., 796

S.W.2d 10, 12 (Ky. Ct. App. 1990). Promissory estoppel requires: “(1) a promise; (2) which the

promisor should reasonably expect to induce action or forbearance on the part of the promissee; (3)

which does induce such action or forbearance; and (4) injustice can be avoided only by enforcement

of the promise.” See Res-Care, Inc. v. Omega Healthcare Investors, Inc., 187 F. Supp. 2d 714, 718

(W.D. Ky. 2001) (citing Meade Const. Co. v. Mansfield Commercial Elec., 579 S.W.2d 105, 106

(Ky. 1979)). The only statement made on behalf of BHS that could be construed as a promise was

Hayes’s indication that Bergman could work as a “breaker.” Even if this statement was a promise,

Bergman cannot establish the other elements of promissory estoppel. She did not act in reliance on

Hayes’s “promise” that she could be a “breaker” — she would have had the surgery necessary to



                                               -12-
save her pregnancy regardless. In fact, she had scheduled the surgery before Hayes’s alleged

“promise.” Therefore, as a matter of law, Bergman’s quasi-contract claim fails.



                                                     III.

       For the foregoing reasons, the district court’s grant of summary judgment to BHS is

AFFIRMED.




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