                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 27, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    CYNTHIA ANDERSON,

                Plaintiff-Appellant,
                                                        No. 11-3003
    v.                                         (D.C. No. 2:10-CV-02022-JWL)
                                                          (D. Kan.)
    THE CATO CORPORATION,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.



         Cynthia Anderson appeals from the district court’s entry of summary

judgment in favor of The Cato Corporation on her claim of discrimination under

the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). We have jurisdiction

under 28 U.S.C. § 1291 and affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND 1

      Anderson began working for Cato as a part-time sales associate in Cato’s

Leavenworth, Kansas, store in February 2008. Beginning on April 8 or 9, 2008,

she had to leave the sales floor and go to a restroom and vomit “once or twice”

per shift. App. at 85 (Anderson depo. at 49:21 to 50:24). Anderson discovered

she was pregnant on April 9. The next day she informed assistant manager Kassie

Bechtold that she was pregnant. On Friday, April 11, Anderson realized she

needed to see her doctor and get some medication for her nausea. On that day,

she asked the store manager, Colleen May, if she could take a few days off to see

her doctor and get her medications squared away. May told Anderson to take a

couple of days off to get some medication and get back on her feet, and to keep

May informed of her status. According to Anderson, May seemed “okay” with

this plan. Id. at 86 (Anderson depo. at 54:24).

      Anderson saw her doctor on April 12 and appears to have missed some

scheduled shifts. On April 15, dehydrated from vomiting, she was admitted to the

hospital. According to Anderson, she called May on April 15, who told her that

May’s manager, Cynthia Canada, had determined that Cato had to terminate her

employment as an associate, but May would try to hold open as long as possible


1
      In construing the facts, we view the evidence and all reasonable inferences
from it in the light most favorable to Anderson as the party opposing summary
judgment. See E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190
(10th Cir. 2000).

                                        -2-
an assistant manager position for which Anderson was being considered.

Anderson was discharged from the hospital on April 17. When she again

contacted May on April 17 or 18, she learned that the assistant manager position

had been given to another employee.

      On April 21, Anderson saw her doctor again, who wrote a note prescribing

bed rest for three weeks. The note was faxed to Cato from the home of

Anderson’s live-in boyfriend’s grandparents. Anderson claimed she had never

seen this note. Id. at 226-27 (Anderson depo. at 71:18 to 74:25). She claimed

that when she was discharged, she was told just to take it easy, but she could go

back to work. Id. at 227 (Anderson depo. at 76:6-14). Anderson’s medical

records related to her hospital stay were faxed to Cato on April 25.

      Anderson’s personnel file contained a “Change Notice” form that May

filled out and signed. It had an effective date of “4/21/08.” Id. at 156. A box

was checked indicating a voluntary termination because Anderson was “[n]ot

Eligible for Leave of Absence/FMLA.” Id. In the explanation box, May wrote

that Anderson was “having complications with pregnancy. Will return to be

rehired in a few weeks.” Id. The “Yes” box for “Recommended for Rehire” was

checked. The form recorded Anderson’ s last day of work as “4/11/08.” Id. The

form was dated “4/29/08.” Id. May testified that employees like Anderson who

did not qualify for leave under Cato policy could not be kept on the payroll but

could be rehired later. Anderson never sought to be rehired by Cato.

                                         -3-
       A month or two after Cato terminated her employment, Anderson asked

May for a letter stating the reasons for her termination so that she could apply for

public assistance (apparently health benefits). May wrote that “[w]e terminated

her employment on 4/11/2008 due to complications with her pregnancy resulting

in bedrest.” Id. at 177. May’s undisputed testimony was that Anderson asked for

the letter to indicate termination on April 11, 2008, which was the last day

Anderson worked, so Anderson could get benefits as of that date.

       Bechtold became store manager in October 2008. Sometime thereafter,

Anderson asked Bechtold to draft a letter explaining the reason Cato terminated

her employment in order to get unemployment and health insurance. Bechtold

wrote that Anderson

       was terminated due to pregnancy related illnesses. Cynthia needed
       off three weeks for bed rest required by a doctor. However,
       according to Cato policy a part time sales associate has to be
       release[d] if she/he needs off for longer than seven days unless
       she/he has been employed for 365 days. Cynthia did not apply to the
       guidelines; therefore she was forced to be terminated. . . . To my
       knowledge, Cynthia Anderson should be capable of working now.

Id. at 179. Bechtold’s undisputed testimony was that Anderson “told me that she

needed me to put on there it was because of her pregnancy.” Id. at 137 (Bechtold

depo. at 119:10-11). Bechtold also stated that she added the clarification that

Cato terminated Anderson’s employment because she needed leave she was not

entitled to.




                                         -4-
      After Anderson filed this action, Cato moved for summary judgment. In

granting Cato’s motion, the district court first determined that May’s letter was

not direct evidence of discrimination, reasoning that the reference to bed rest

made clear that Cato terminated Anderson’s employment because she was unable

to work and was not entitled to leave. The court reached the same conclusion

regarding Bechtold’s letter, focusing on the clarifying language Bechtold had

included as well as the fact that Anderson told her the letter had to state she was

terminated because of her pregnancy. The court also considered it significant that

Anderson asked for the letters and told May and Bechtold what those letters

should state as reasons.

      Turning to the indirect method of proving discrimination under McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), the district court assumed

Anderson could establish a prima facie case of discrimination but concluded that

the evidence did not raise a disputed issue of material fact whether Cato’s

proffered reason for terminating Anderson’s employment was pretext. This

appeal followed.

II.   DISCUSSION

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

E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.

2000). “The court shall grant summary judgment if the movant shows that there




                                         -5-
is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      The Pregnancy Discrimination Act requires employers to treat pregnant

employees “the same for all employment-related purposes, including receipt of

benefits under fringe benefit programs, as other persons not so affected but

similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). “A woman

unable to work for pregnancy-related reasons is entitled to disability benefits or

sick leave on the same basis as employees unable to work for other medical

reasons.” 29 C.F.R., Pt. 1604, App.

      Anderson first argues that the district court erred in determining that the

May and Bechtold letters were not direct evidence of discrimination. We

consider Anderson’s “direct evidence” argument as invoking the direct method of

proving discrimination as opposed to the indirect method under McDonnell

Douglas. We recently reviewed this distinction: “[T]he term ‘direct

evidence’ . . . refers to a narrow category of ‘evidence, which if believed, proves

the existence of a fact in issue without inference or presumption.’” Twigg v.

Hawker Beechcraft Corp., ___ F.3d ___, No. 10-3118, 2011 WL 4838937, at *18

n.8 (10th Cir. Oct. 13, 2011) (emphasis added) (quoting Hall v. U.S. Dep’t of

Labor, 476 F.3d 847, 854 (10th Cir. 2007)). In contrast, the direct method of

proof requires “evidence that directly reflects the forbidden animus, regardless of

whether that evidence is direct or circumstantial.” Id. Direct evidence of

                                         -6-
employment discrimination is “‘usually impossible to obtain,’” and is generally

limited to “‘an admission by the decisionmaker such as “I fired him because he

was too old.”’” Id. (quoting Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 181

(2d Cir. 1992)). “A statement that can plausibly be interpreted two different

ways—one discriminatory and the other benign—does not directly reflect illegal

animus, and, thus, does not constitute direct evidence.” Hall, 476 F.3d at 855

(quotation omitted).

      Despite the difficulty in obtaining direct evidence of discrimination,

Anderson claims she has it in the form of the May and Bechtold letters. She

argues that the letters plainly state that Cato terminated her employment because

of her pregnancy. However, Anderson’s argument is based on a limited reading

of those letters, one that focuses only on the references to her pregnancy. As

May’s letter states, it was the need for bed rest that led to Cato’s decision. In

order to conclude that May’s letter directly reflects discriminatory animus, one

must infer that Cato would not have made the same decision in the case of another

worker needing bed rest for a condition unrelated to pregnancy. As to Bechtold’s

letter, the first sentence does state that Cato terminated Anderson’s employment

“due to pregnancy related illnesses.” App. at 179. But read as a whole, as it must

be, the letter clearly explains that Cato did not terminate Anderson’s employment

simply because of the fact of Anderson’s pregnancy-related illness, but because

she needed leave to which she was indisputably not entitled. Moreover, there is

                                          -7-
no showing that Bechtold was “involved in the decisionmaking process,” which is

a necessary component of the direct method of proof, see Twigg, 2011 WL

4838937, at *9. Consequently, we conclude that the letters do not constitute

direct evidence of discrimination and do not show discrimination under the direct

method of proof.

      Turning to the indirect method of proof under McDonnell Douglas,

Anderson argues that Cato’s proffered nondiscriminatory rationale—that she

needed leave she was not entitled to—was a pretext for unlawful discrimination. 2

“A plaintiff establishes pretext by revealing such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unworthy of credence.” Horizon/CMS Healthcare Corp., 220 F.3d at 1198

(quotation omitted).

      For her pretext argument, Anderson first points to the May and Bechtold

letters. But as our previous discussion of the letters demonstrates, no reasonable

juror could infer that Cato fired Anderson simply because of her

pregnancy-related illness. Moreover, there is no showing that Cato’s policy of

terminating employees who needed extended leave to which they were not

entitled, then offering to hire them back when they were able to work again, was


2
      We will assume, as the district court did, that Anderson can establish a
prima facie case of discrimination under the Pregnancy Discrimination Act.

                                         -8-
not evenly applied to all employees regardless of whether the employee was

pregnant. See 42 U.S.C. § 2000e(k); 29 C.F.R., Pt. 1604, App.

      Anderson also argues that May was a self-described stickler for policy and

therefore her grant of permission for Anderson to take a couple of days off

without punishment to see her doctor—leave to which Anderson had no

entitlement—shows pretext because it is contrary to Cato policy. However, the

fact that May let Anderson take a couple of days off to see a doctor even though

Anderson did not qualify for any sick leave is not evidence from which a

reasonable fact-finder could infer pretext as to Cato’s later decision to terminate

her employment for needing three weeks of leave to which she was not entitled. 3

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




3
      In the last paragraph of her brief, Anderson argues that given her testimony
that May told her on the telephone sometime before April 17 that her employment
had been terminated, the jury should determine whether May’s letter reciting
“April 11” as the date of her termination is an accurate account. We fail to see
where this argument was raised in the district court. Accordingly, Anderson has
not preserved it for our review. See Daigle v. Shell Oil Co., 972 F.2d 1527, 1539
(10th Cir. 1992).

                                         -9-
