                                                                      [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                        FOR THE ELEVENTH CIRCUIT
                                                  U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                               11/30/99
                                 No. 99-6166                THOMAS K. KAHN
                          ________________________              CLERK


                    D. C. Docket No. 98-00500-CV-TMP-M

MICHELLE SPIVEY,

                                                        Plaintiff-Appellant,

                                     versus

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

                                                        Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________
                              (November 30, 1999)


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.




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       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.


       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.

                                                3
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, 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


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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. Woman’s Hosp.


                                           5
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


                                          6
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, 119 S. Ct. 509 (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 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


       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.

                                                  7
       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

       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.

                                                 8
plaintiff must demonstrate causation by offering statistical evidence sufficient to show

that the challenged practice has resulted in prohibited 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




                                           9
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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