                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-21-1997

Carnegie Center Assoc. v. Rhett
Precedential or Non-Precedential:

Docket
96-5566




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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_1997/246


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Filed October 31, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5566

IN RE:

CARNEGIE CENTER ASSOCIATES,

         Debtor

DEBORAH RHETT,

         Appellant

v.

CARNEGIE CENTER ASSOCIATES

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 96-00852)

Argued June 23, 1997

BEFORE: GREENBERG, MCKEE, and WELLFORD,*
Circuit Judges

(Filed: October 31, 1997)



_________________________________________________________________
*Honorable Harry W. Wellford, Senior Judge of the United States Court
of Appeals for the Sixth Circuit, sitting by designation.



         Elaine R. Jones
         Director-Counsel
         Charles Stephen Ralston
         Norman J. Chachkin
         Catherine B. Powell (argued)
         NAACP Legal Defense &
         Educational Fund
         99 Hudson Street
         16th Floor
         New York, NY 10013

         Lanier E. Williams
         Christopher Morkides
         P.O. Box 6584
       Philadelphia, PA 19138

        Attorneys for Appellant

       James E. Stahl (argued)
       Remy M. Quinones
       Borrus, Goldin, Foley, Vignuolo,
       Hyman & Stahl
       2875 United States Highway 1
       P.O. Box 7463
       North Brunswick, NJ 08902

        Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This case comes on before this court on appeal from the
district court's order affirming a bankruptcy court order
expunging the claim of the appellant Deborah Rhett, a
black female, which arose out of the termination of her
employment when her employer, appellee Carnegie Center
Associates (Carnegie), abolished her position. The
bankruptcy court had subject matter jurisdiction under 28
U.S.C. S 157(b)(2)(B), (O) and 28 U.S.C. S 1334(b). The
district court had appellate jurisdiction over the bankruptcy
court's order pursuant to 28 U.S.C. S 158. We have
jurisdiction under 28 U.S.C. S 1291, 28 U.S.C.S 158(d), and
42 U.S.C. S 2000e-5(j).

                                  2



A. FACTUAL AND PROCEDURAL HISTORY

The facts in the case were developed at the trial of the
adversary proceeding in the bankruptcy court. Rhett began
working for Carnegie, a real estate company Allan Landis
owned and controlled, as a temporary secretary in April
1989. She became a full-time permanent secretary in
Carnegie's Accounting/Finance Department on July 17,
1989, and received a salary increase of $1,500 in January
1990 based on her satisfactory performance.

In June 1990, Rhett informed her supervisors and co-
workers that she was pregnant. When she told Keith
Gormisky, the controller, and Gary Turndorf, the chief
financial officer and counsel, of her pregnancy both asked
if she was going to get married. Turndorf commented that
being a single parent was difficult, and Rhett claimed that
Gormisky said that getting married was: "in society's eyes
. . . the right thing to do." Nevertheless, Turndorf testified
that the fact that Rhett was unmarried played no role in
Carnegie's later decision to abolish her position. Rhett also
claimed that Gormisky became irate with her just before
she left on maternity leave and stated that she was on "thin
ice." The bankruptcy court, apparently attributing this
comment to Turndorf, found it related to his view of the
quality of Rhett's work.

Rhett circulated a memo to the managerial officers
(including Landis, Turndorf and Gormisky) on December
18, 1990, stating that she planned to be on maternity leave
from December 21, 1990, until about April 15, 1991.
Carnegie hired a temporary secretary to fill in while she was
gone. Carnegie did not have a formal maternity leave policy,
but Turndorf testified that its practice was to"try and hold
it open for them if we could" so that "[w]hen they wanted to
come back, if they contacted us and there was something
open that was suitable, we would offer it to them." See
bankruptcy court opinion at 5-6 (discussing two employees
who left on maternity leave and subsequently returned to
the same or similar positions).

Carnegie had experienced financial difficulties prior to
Rhett's departure that worsened while she was gone,
forcing it to make staff cutbacks to decrease costs.

                                3



Consequently, just before Rhett originally had planned to
return, Carnegie eliminated several positions, including
Rhett's secretarial position, and terminated several
employees, including her supervisor, Geoff Hammond. On
March 26, 1991, Gormisky wrote Rhett to tell her that her
position had been eliminated.1 Turndorf testified that
Carnegie did not make a performance-based evaluation as
to which secretary's employment it should terminate
because it did not consider Rhett an employee at that time
and it was easy to abolish her former position by not hiring
any more temps, thus reducing the number of secretaries
from four to three. At that time Rhett was still away from
work because she was under medical care (counseling) for
post-partum depression, which she continued until June of
1991. When Rhett called Gormisky after receiving the letter,
he reiterated that her position had been abolished. She
asked about two other positions with Carnegie and was told
they were not available to her. In fact, Carnegie did not
interview Rhett, or consider hiring her, for any other
position.

Rhett filed a suit in the district court under Title VII and
the New Jersey Law Against Discrimination against
Carnegie on November 26, 1993, alleging discrimination on
the basis of her race, gender, and marital status. 2 The
district court action was automatically stayed because
Carnegie was undergoing bankruptcy reorganization. Thus,
Rhett pursued the matter by filing a proof of claim with the
bankruptcy court on February 19, 1994. Thereafter the
district court terminated the district court action without
prejudice and the case continued as an adversary
proceeding in the bankruptcy court. The bankruptcy court
found in Carnegie's favor after a three-day bench trial. It
held that Carnegie had to reduce costs because offinancial
_________________________________________________________________

1. March 26, 1991, is the date Carnegie listed with the EEOC as Rhett's
"Date of Termination." In addition, Rhett's medical coverage continued
with Carnegie until this date, as two weeks later she received COBRA
information. The bankruptcy and district courts, however, found that
Carnegie did not consider Rhett an employee at the time it abolished her
position.

2. She also made a claim under 42 U.S.C. S 1981 but she has not
advanced that claim in these proceedings so we do not discuss it.

                                  4



difficulties and that it eliminated staff at both the
management and support levels. The court held that
Carnegie abolished Rhett's position for the legitimate non-
discriminatory reason that she was away from work, and
not because of discrimination on the basis of race, gender
or pregnancy. The court further held that she was not
qualified for any of the other positions for which she
asserted Carnegie should have interviewed her. The district
court affirmed in an opinion and order entered August 6,
1996, holding that the bankruptcy court's factual findings
were not clearly erroneous and these findings "compelled
the conclusion that the secretarial position held by
appellant was abolished for legitimate, non-discriminatory
reasons." Rhett then appealed to this court.

The main issue on this appeal is whether an employee's
absence on maternity leave can be a legitimate non-
discriminatory reason for her termination. Inasmuch as the
district court sat as an appellate court, we exercise plenary
review of its decision. Universal Minerals, Inc. V. C. A.
Hughes & Co., 669 F.2d 98, 101-102 (3d Cir. 1981).
Findings of fact by the bankruptcy judge, however, are only
reversible if clearly erroneous. Bankruptcy Rule 8013.

B. PREGNANCY, RACIAL AND GENDER
DISCRIMINATION

On this appeal Rhett claims that Carnegie terminated her
employment because of her pregnancy and on account of
her race and gender in violation of Title VII and the New
Jersey Law Against Discrimination. We confine our
discussion to Title VII because her state law claims are
analyzed in the same way as her Title VII claims. See
Marzano v. Computer Science Corp., 91 F.3d 495, 502 (3d
Cir. 1996). Indeed, Rhett apparently recognizes this point
because she does not cite a single New Jersey state court
opinion in either of her briefs on this appeal.

Title VII prohibits employment discrimination based on
an individual employee's sex. 42 U.S.C. S 2000e-2(a). The
Pregnancy Discrimination Act ("PDA"), a 1978 amendment
to Title VII, states:

                                5



       The terms `because of sex' or `on the basis of sex'
       include, but are not limited to, because of or on the
       basis of pregnancy, childbirth, or related medical
       conditions; and women affected by pregnancy,
       childbirth, or related medical conditions 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. S 2000e(k). There is employment discrimination
whenever an employee's pregnancy is a motivating factor
for the employer's adverse employment decision. 42 U.S.C.
S 2000e-2(m).

The bankruptcy and district courts analyzed Rhett's
claim as being based on circumstantial evidence implicating
the burden shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). In a Title VII
case such as this one involving a reduction in force, in
order to make out a prima facie case the plaintiff must
show that (1) she belonged to a protected class, (2) she was
qualified for the position from which she was terminated,
(3) she was terminated and (4) persons outside of the
protected class were retained. See Armbruster v. Unisys
Corp., 32 F.3d 768, 777 (3d Cir. 1994). While neither court
made specific reference to the applicability of the modified
McDonnell Douglas framework in reduction in force
situations, the record clearly establishes that Carnegie did
reduce its force, so we will apply the appropriate
framework. Once the plaintiff establishes a prima facie
case, the burden shifts to the defendant to articulate a
legitimate non-discriminatory reason for the plaintiff 's
termination. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981). If the
defendant articulates such a reason, the plaintiff then must
prove that the facially legitimate reason was a pretext for a
discriminatory motive. Id.3
_________________________________________________________________

3. Rhett argues that this case involves a per se violation of the PDA, so
that she has presented direct evidence of discrimination. Accordingly, in
her view we should analyze the case under Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 105 S.Ct. 613 (1985), rather than under
McDonnell Douglas. We reject this argument because, as we discuss
below, consideration of an employee's absence on maternity leave is not
a per se violation of the PDA. Furthermore, the bankruptcy and district
courts did consider Rhett's claim of direct evidence of discrimination and
properly rejected it. Thus, this is a McDonnell Douglas case.

                                6



The bankruptcy and district courts held that Rhett did
not establish a prima facie case. We disagree with this
conclusion but are satisfied that the courts' error is
harmless because the bankruptcy court considered the
issues relevant to a reduction in force analysis at a trial
and made the requisite findings for such an analysis. Thus,
insofar as this case involves a reduction in force, we focus
on Carnegie's reason for terminating Rhett's employment.

This case largely boils down to a dispute over one issue:
whether terminating an employee because she is absent on
maternity leave is a violation of the PDA. The bankruptcy
and district courts found that Carnegie eliminated Rhett's
position because she was not at her place of employment at
that time, not because of her pregnancy. Carnegie argues,
and the bankruptcy and district courts found at least
implicitly, that Rhett was not employed by Carnegie at the
time Carnegie eliminated her position. Rhett asserts that
she was an employee on unpaid leave at that time.
Carnegie had no formal maternity leave policy, but it did
have a practice of allowing employees to return from leave
to the same or similar position if one was available. It is
undisputed that Carnegie maintained Rhett's medical
insurance until it eliminated her position on March 26,
1991. Therefore, it appears that Rhett was an employee of
Carnegie on an unpaid leave of absence who sought
reinstatement. We need not, however, definitely so
determine because even assuming that Carnegie still
employed Rhett when it abolished her position, under the
Armbruster reduction in force framework, she is not entitled
to relief.

Regulations promulgated under Title VII provide:

       Disabilities caused or contributed to by pregnancy,
       childbirth, or related medical conditions, for all job-
       related purposes, shall be treated the same as
       disabilities caused or contributed to by other medical
       conditions. . . . Written or unwritten employment
       policies and practices involving matters such as the
       commencement and duration of leave . . . [and]
       reinstatement . . . shall be applied to disability due to
       pregnancy . . . on the same terms and conditions as
       they are applied to other disabilities.

                                7



29 C.F.R. S 1604.10(b). The interpretive question and
answer section accompanying the regulation specifies that
an employer must hold open the job of a woman absent
because of pregnancy "on the same basis as jobs are held
open for employees on sick or disability leave for other
reasons." 29 C.F.R. Pt. 1604 App. Question 9. On the other
hand, the PDA does not require that employers treat
pregnant employees better than other temporarily disabled
employees. Troupe v. May Dep't Stores Co., 20 F.3d 734,
738 (7th Cir. 1994); Maganuco v. Leyden Community High
Sch. Dist. 212, 939 F.2d 440, 444 (7th Cir. 1991); H. Rep.
No. 95-948 at 4-5 (1978), reprinted, 1978 U.S.C.C.A.N.
4749, 4752-53 (basic principles of the PDA); see also
California Fed. Sav. and Loan Ass'n v. Guerra, 479 U.S.
272, 289 & n.29, 107 S.Ct. 683, 694 & n.29 (1987) (holding
that the PDA neither requires nor prohibits states from
mandating maternity leave and reinstatement policies).

Rhett argues that Carnegie terminated her employment
solely because of her absence and her absence was due
solely to her pregnancy and related medical conditions.
Consequently, in her view Carnegie terminated her
employment because of her pregnancy. The Supreme Court
has held that under the Age Discrimination in Employment
Act an employer must ignore an employee's age in certain
employment decisions, but not any other characteristics
such as pension expense. Hazen Paper Co. v. Biggins, 507
U.S. 604, 612, 113 S.Ct. 1701, 1707 (1993). The Court of
Appeals for the Seventh Circuit has held, by analogy to
Hazen, that the PDA "requires the employer to ignore an
employee's pregnancy, but ... not her absence from work,
unless the employer overlooks the comparable absences of
non-pregnant employees. . . ." Troupe, 20 F.3d at 738. This
holding is entirely consistent with the plain language of the
PDA and the regulations we discuss above. This view
eliminates Rhett's theory of transitivity, that if A
(termination) is caused by B (absence) which is caused by
C (pregnancy), then C causes A. Other courts similarly have
held that "the PDA does not force employers to pretend that
absent employees are present whenever their absences are
caused by pregnancy." Crnokrak v. Evangelical Health Sys.
Corp., 819 F. Supp. 737, 743 (N.D. Ill. 1993).

                                8



We recognize that Smith v. F.W. Morse & Co., 76 F.3d 413
(1st Cir. 1996), includes language contrary to that of Troupe
for in Smith the court said that "an employer must put an
employee's pregnancy (including her departure on maternity
leave) to one side in making its employment decisions." Id.
at 424 (emphasis added). In Smith, the pregnant employee
was assured before she went on maternity leave that her
position was secure, but the employer then eliminated her
position during a reorganization while she was away. Id. at
418-19. The court's holding, however, was that the
elimination of the position was not an act of pregnancy
discrimination merely because the employer discovered that
the position was superfluous while the employee was on
maternity leave; thus there was no causal nexus between
her termination and her pregnancy. Id. at 424-25.

Notwithstanding the passage in Smith which we have
quoted, Carnegie argues that Smith applies here because in
its view Smith demonstrates that its action in terminating
Rhett's employment was justified as it, like the employer in
Smith, had a legitimate non-pregnancy based reason to
discharge the pregnant employee. Smith may be
distinguished, however, because Carnegie eliminated
Rhett's position, rather than that of one of the other
secretaries, because she was away on maternity leave.
While it was apparent that one of the secretary positions
was not needed, it was only Rhett's absence which led to
her termination. Carnegie has made no showing that
Rhett's position would have been eliminated if she had not
been away at the time. Indeed, Carnegie made no
comparative evaluation of the secretaries' performance. In
Smith, the particular position of the pregnant employee was
shown to be superfluous while she was away. Smith, unlike
this case, did not involve a choice by the employer as to
which of several similar positions to eliminate.

This case is unusual in that Carnegie terminated an
employee who had performed satisfactorily solely because of
an economically justified reduction in force while she was
away on maternity leave. See Geier v. Medtronic, Inc., 99
F.3d 238, 243 (7th Cir. 1996) (fired pregnant employee not
qualified because she could not meet required performance
quotas); Troupe, 20 F.3d at 735 (pregnant employee fired

                                9
for chronic tardiness prior to maternity leave); Soreo-Yasher
v. First Office Management, 926 F. Supp. 646, 649 (N.D.
Ohio 1996) (employee replaced while on maternity leave
because of business need and company had written policy
of not guaranteeing reinstatement after any leave of
absence); Morrissey v. Symbol Techs., Inc., 910 F. Supp.
117, 121 (E.D.N.Y. 1996) (fired employee's maternity leave
extended beyond time for which employer's policy
guaranteed reinstatement); Rudolph v. Hechinger Co., 884
F. Supp. 184, 186, 188 (D. Md. 1995) (employee terminated
while on maternity leave because of reasons independent of
her absence); Ulloa v. American Express Travel Related
Servs. Co., 822 F. Supp. 1566, 1570-71 (S.D. Fla. 1993)
(employee terminated in reduction in force while on
maternity leave because her leave extended beyond time for
which reinstatement guaranteed); Crnokrak, 819 F. Supp.
at 743 (employer justification for demoting employee while
on maternity leave could be pretext); Felts v. Radio Distrib.
Co., 637 F. Supp. 229, 233 (N.D. Ill. 1985) (employer
justification of termination because of financial difficulties
was a pretext). Furthermore, in this case Carnegie had need
after Rhett was gone for an employee to do the type of work
she did before it eliminated her position.

Nevertheless, the law covering this case is clear for the
view of the Court of Appeals of the Seventh Circuit which
it set forth in Troupe, that an employer legitimately can
consider an employee's absence on maternity leave in
making an adverse employment decision, is consistent with
and, indeed, is compelled by the plain language of the PDA.
Thus, Troupe properly requires the plaintiff employee
seeking to recover under the PDA to show that the
employer treated her differently than non-pregnant
employees on disability leave. See 29 C.F.R.S 1604.10.
While we do not ignore the contrary suggestion in Smith, we
do not find it controlling because it is inconsistent with the
language of the PDA. Thus, we cannot find, as Rhett urges,
that the mere consideration of an employee's absence on
maternity leave is a per se violation of the PDA. In short,
the PDA does not require an employer to reinstate an
employee merely because she has been absent on maternity
leave. Rather, the PDA is a shield against discrimination,
not a sword in the hands of a pregnant employee.

                                10



Rhett has not made a showing that Carnegie treated her
differently than it would have treated a non-pregnant
employee absent on disability leave. Of course, it was
difficult for her to make such a showing because Carnegie
never has had an employee on disability leave for a
protracted period for a reason other than pregnancy. Thus,
we must affirm the district court's denial of her PDA claim
for the reasons indicated. See Ulloa v. American Express
Travel Related Servs. Co., 822 F. Supp. at 1571 (Employer
is entitled to judgment when employee "has failed to show
by a preponderance of the evidence that she received
disparate treatment when compared to non-pregnant
employees.").

The PDA does not require an employer to grant maternity
leave or to reinstate an employee after a maternity leave.
The PDA merely requires that an employer treat a pregnant
woman in the same fashion as any other temporarily
disabled employee. In this regard, we point out that it is not
unlawful under the Americans with Disabilities Act for an
employer when reducing its force to discharge an employee
away from work by reason of a temporary disability. See
Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th
Cir. 1996); Rogers v. International Marine Terminals, Inc., 87
F.3d 755, 759 (5th Cir. 1996). We acknowledge that
arguably it was unfair for Carnegie to fire Rhett because
she was on leave rather than to decide which secretary's
position to abolish on the basis of seniority or merit, but it
was not illegal for it to do so unless it would not have
eliminated the position of another employee on disability
leave who was not pregnant. The PDA does not require
fairness. See Ulloa v. American Express Travel Related
Servs. Co., 822 F. Supp. at 1571.

Judge McKee in his dissent seems to believe that we are
equating "pregnancy with a temporary disability under the
ADA." Dissent at 25. Of course, we are doing no such thing.
Rather, we are holding that it is not unlawful under the
PDA to terminate an employee absent by reason of
pregnancy if the employer would have terminated an
employee absent by reason of a different temporary
disability. Thus, notwithstanding the intricate reasoning of
the dissent, this case at bottom is quite straightforward and
uncomplicated.

                                11



In view of our analysis, we conclude that although the
bankruptcy and district courts erred in finding that Rhett
did not make out a prima facie case of pregnancy
discrimination (because they did not apply the Armbruster
reduction in force analytical framework), the error
was harmless. Carnegie asserted a legitimate non-
discriminatory reason for Rhett's termination, that she was
away on leave. Rhett has not satisfied her burden of
showing that this reason was pretextual. Therefore, we will
affirm insofar as this case involves the termination of
Rhett's position. Of course, our analysis requires that we
affirm the district court in its rejection of her race and
gender claims as well, based on the elimination of her
position.4

In reaching our result, we have not overlooked Rhett's
argument that this case is somehow different than a case
based on a claim of discrimination predicated either on race
or gender, because she bases her claim on both race and
gender. This argument adds nothing to her case because
regardless of the basis for her claim of discrimination, she
cannot establish that the legitimate reason that Carnegie
proffered for terminating her was pretextual. Furthermore,
we have not ignored Rhett's argument that Carnegie's
termination of her position had a discriminatory impact of
her based on her race. Rather, we reject this contention as
entirely insubstantial for an employee is not insulated from
having her position lawfully terminated merely because she
happens to be a minority.
_________________________________________________________________

4. We are aware that Rhett alleged certain comments by her superiors
which could lead to an inference of discrimination against her, but in
holding that there is no evidence of racial or gender discrimination, the
bankruptcy court implicitly found that Rhett's testimony that Turndorf
and Gormisky were abusive toward her regarding her status as an
unwed mother was not credible, or that the explanation and denials by
Turndorf and Gormisky were more credible. We cannot hold this factual
finding clearly erroneous. Thus, there was no error in not inferring
discrimination on the basis of these remarks. In any event, Carnegie
articulated a legitimate non-discriminatory reason for terminating Rhett
and the bankruptcy court, in an unassailable finding, accepted that
reason.

                                12



Rhett also argues that Carnegie should have considered
her for alternate positions. She says that the positions of
property management administrative assistant, secretary to
Landis and receptionist became open while she was on
maternity leave and she was qualified for all of them. It is
not disputed that she was not considered for any of these
positions. But the bankruptcy court found as a fact, and
the district court affirmed, that Rhett was not qualified for
the property management position or the position of
assistant or secretary to Landis. The bankruptcy court also
found that Rhett never indicated that she would take a
lower paying or temporary job. Rhett argues that these
factual findings are clearly erroneous.

Rhett has offered no more than her own opinion that she
was qualified for the property manager position. Gormisky
testified that the position required more than basic
secretarial skills and he did not believe that Rhett
adequately could perform in the job. Turndorf also testified
that he would not have hired her for that position because
he did not feel she would perform well. This is more than
enough support for the bankruptcy court's finding that
Rhett was not qualified. Similarly, Rhett asserts that she
was qualified to be Landis's personal secretary because of
her extensive secretarial experience. The bankruptcy court's
finding that Rhett was not qualified for this job is
supported by Turndorf's testimony that the job required a
special attitude and ability to anticipate Landis's needs
which Rhett did not have. Inasmuch as the bankruptcy
court was not clearly erroneous in finding Rhett not
qualified for these positions, she has not made out a prima
facie case of discrimination because of Carnegie's failure to
hire or interview her.

On the other hand, it is clear that Rhett was qualified for
the position of receptionist. But the bankruptcy court held
that she never expressed an interest in this job, which paid
less than her prior position. Since this is a failure to hire
situation, rather than a discharge situation, under
McDonnell Douglas Rhett must show that she applied for
the position. It is undisputed that Rhett did not apply for
this position, or even express any interest in it.

                                13



Rhett argues that Carnegie had an affirmative duty to
contact her (but cites no case for this proposition), and she
would have expressed an interest if she had been
contacted. The receptionist position was the lowest paying
job in the office. It was not unreasonable for Carnegie to
assume that Rhett would not accept this position,
especially when she did not express any interest in it. On
this point we observe that the bankruptcy court found that
Rhett obtained a position with the Robert Wood Johnson
Foundation and started work there on January 29, 1992,
and earned $22,500 in 1992. Thus, it is understandable
why Rhett did not seek a position as a receptionist as she
was capable of obtaining more financially rewarding
employment. Further, Turndorf testified that it was
customary for employees returning from maternity leave to
contact Carnegie, rather than Carnegie contacting them
when a position opened up. Given this custom, we cannot
find any error in the lower courts' conclusion that Rhett
failed to state a prima facie case of discrimination because
she was not given any of these positions.

C. CONCLUSION

We hold, in agreement with the Court of Appeals for the
Seventh Circuit, the plain language of the PDA, and the
regulations under the PDA, that an employee alleging a
PDA violation must show that her employer treated her
differently than it would have treated an employee on leave
for a temporary disability other than pregnancy. It is not a
violation of the PDA for an employer to consider an
employee's absence on maternity leave in making an
adverse employment decision if it also would have
considered the absence of an employee on a different type
of disability leave in the same way. Inasmuch as Carnegie
asserted that Rhett's absence from work, rather than her
pregnancy, was the reason for her termination, and Rhett
has failed to show that this assertion was pretextual, her
claim fails.5
_________________________________________________________________

5. We note, however, that there are federal and state laws which do
require parental leave and reinstatement. See 29 U.S.C. SS 2612, 2614;
N.J. Stat. Ann. S 34:11B-4, -7 (West Supp. 1997). These laws are not
applicable in this case because Carnegie has fewer that 50 employees.
29 U.S.C. S 2611(4)(a); N.J. Stat. Ann. S 34:11B-3f.

                                14



In view of our conclusions, we will affirm the judgment of
the district court entered August 6, 1996.

                                15



McKEE, Circuit Judge, dissenting.

I agree that Deborah Rhett's claim of racial
discrimination was properly dismissed. However, I
respectfully dissent because I believe that the district court
erred in affirming the bankruptcy court's dismissal of
Rhett's claim of sex discrimination. The bankruptcy court
concluded that "the uncontradicted testimony of the debtor
establishes that the debtor had to let someone in the
secretarial group go and the fact that Rhett was not
working for the company at the time made it logical that
she be the one." Bankr Ct. Op. at 15 (1996). I believe that
the issue is not whether the employer had a logical reason
for choosing Rhett (It clearly did.), but whether doing so
when her absence was due solely to her pregnancy was
illegal sex discrimination under Title VII of the Civil Rights
Act of 1964 ("Title VII"), 42 U.S.C. S 2000e-2(a). I fear that
the majority's failure to hold that it did constitute sex
discrimination will eviscerate the protections Congress
intended when it enacted the Pregnancy Discrimination Act
of 1978 ("PDA"), 42 U.S.C. S2000e(k), as an amendment to
Title VII.

I. BACKGROUND OF THE PREGNANCY
DISCRIMINATION ACT

Title VII makes it an unlawful employment practice for an
employer

       to discriminate against any individual with respect to
       his compensation, terms, conditions, or privileges of
       employment, because of such individual's . . . sex

S 2000e-2(a)(1). Congress created the Equal Employment
Opportunity Commission ("EEOC") to implement Title VII
and the EEOC developed guidelines through which
employers and employees could better understand the
protections afforded under Title VII. Those guidelines
"implemented the Title VII prohibition of sex
discrimination", H.R. Rep. No. 95-948, at 2 (1978),
reprinted in 1978 U.S.C.C.A.N. 4749, 4752, and they
expressly extend the protection of Title VII to conditions
caused by pregnancy.

                                 16



       Disabilities caused or contributed to by pregnancy,
       childbirth, or related medical conditions, for all job-
       related purposes, shall be treated the same as
       disabilities caused or contributed to by other medical
       conditions . . . . Written or unwritten employment
       policies and practices involving matters such as the
       commencement and duration of leave, the availability
       of extensions, the accrual of seniority and other
       benefits and privileges, reinstatement, and payment
       under any health or disability insurance or sick leave
       plan, formal or informal, shall be applied to disability
       due to pregnancy, childbirth or related medical
       conditions on the same terms and conditions as they
       are applied to other disabilities . . . .

29 C.F.R. S 1604.10(b). The guidelines also contain an
interpretive question and answer section in which the
following exchange is made:

       Q: Must an employer hold open the job of an
       employee who is absent on leave because she is
       temporarily disabled by pregnancy-related conditions?

       A: Unless the employee on leave has informed the
       employer that she does not intend to return to work,
       her job must be held open for her return on the same
       basis as jobs are held open for employees on sick or
       disability leave for other reasons.

29 C.F.R. pt. 1604, app. Question 9. The majority
concludes that this means that Carnegie Center Associates
("Carnegie") can terminate Rhett for her absence, even
though it is caused by pregnancy, so long as Carnegie
would have terminated an absent employee who was not
pregnant. See Maj. Op. at 7-8.

However, the circumstances leading to Title VII's current
proscriptions against sex discrimination undermine the
majority's analysis. Title VII, as originally enacted, did not
explicitly define sex discrimination to include disparate
treatment based upon, or related to, pregnancy. As a result,
some courts adopted a narrow view of the extent to which
Title VII's proscription against sexual discrimination
included disparate treatment based upon pregnancy and
related conditions. In General Electric v. Gilbert, 429 U.S.

                                17



125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme
Court held that an insurance plan that excluded coverage
for pregnancy-related disabilities did not constitute illegal
gender-based discrimination. There, an employer's
disability plan provided coverage for nonoccupational
sickness and accidents, but excluded coverage for
pregnancy and pregnancy-related disabilities. The plan did,
though, include coverage for nonoccupational disabilities
and medical procedures common to men, e.g.
prostatectomies, vasectomies and circumcisions. Gilbert,
429 U.S. at 145-46. A group of employees sued under Title
VII, alleging that the insurance plan was illegal sexual
discrimination because it excluded a class of disabilities
unique to women. The district court held that the plan did
constitute illegal sex discrimination in violation of Title VII
and the Court of Appeals for the Fourth Circuit affirmed.
However, prior to the decision of the court of appeals, but
subsequent to the decision of the district court, the
Supreme Court decided Geduldig v. Aiello, 417 U.S. 484, 94
S.Ct. 2485, 41 L.Ed.2d 256 (1974).

In Geduldig, the Supreme Court upheld the validity of a
nearly identical insurance policy against an attack under
the Equal Protection Clause of the Fourteenth Amendment.
The Court in Geduldig reasoned that the challenged policy
was simply a business decision as to which risks an
employer would insure. "The program divides potential
recipients into two groups pregnant women and
nonpregnant persons. While the first group is exclusively
female, the second includes members of both sexes."
Geduldig, 417 U.S. at 496-97 n. 20. The Court in Gilbert
upheld the challenged disability plan based upon its earlier
holding in Geduldig. The Court reasoned that, even though
Geduldig was based upon an equal protection argument,
and Gilbert was brought under Title VII, the logic of
Geduldig still applied. Accordingly, the Court held that
since there was no risk from which women were protected
and men were not and no risk from which men were
protected that women were not, the exclusion of pregnancy-
related disabilities did not invalidate the Gilbert policy
under Title VII. The majority minimized the relevance of the
EEOC guidelines when considering what Congress intended
under Title VII.

                                18



Justice Brennan dissented, arguing that the Court's
analysis was "simplistic and misleading" because the plan
included procedures that were specific to men while
excluding pregnancy-related procedures that were unique
to women. 429 U.S. at 252 (Brennan, J., dissenting). He
noted that "pregnancy affords the only disability, sex-
specific, or otherwise, that is excluded from coverage." Id.
Accordingly, he did not think that the classification could
be saved from a finding of illegal discrimination under Title
VII merely because it was a "facially neutral classification."
Id. at 154. He concluded that the Court erred in accepting
the employer's explanation that the plan merely excluded
certain risks from coverage in a nondiscriminatory way.
"[T]he demonstration of purposeful discrimination is not the
only ground for recovery under Title VII. . . .[A] prima facie
violation of Title VII . . . also is established by
demonstrating that a facially neutral classification has the
effect of discriminating against members of a defined class."
Id. at 153-54.

According to Justice Brennan, "the determinative
question must be whether the social policies and aims to be
furthered by Title VII and filtered through the phrase `to
discriminate' contained in S 703(a)(1) fairly forbid an
ultimate pattern of coverage that insures all risks except a
commonplace one that is applicable to women but not to
men." Id. at 154. He noted that the Court had previously
recognized that "discrimination is a social phenomenon
encased in a social context and therefore, unavoidably takes
its meaning from the desired end products of the relevant
legislative enactment, end products that may demand due
consideration to the uniqueness of `disadvantaged'
individuals." Id. at 159. (discussing Lau v. Nichols, 414 U.S.
563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974)) (emphasis added).
Justice Brennan concluded that the EEOC guidelines were
"reasonable responses to the uniform testimony of
governmental investigations which show that pregnancy
exclusions built into disability programs both financially
burden women workers and act to break down the
continuity of the employment relationship, thereby
exacerbating women's comparatively transient role in the
labor force." Id. at 158. Justice Brennan believed that the
EEOC guidelines, "[i]n dictating pregnancy coverage under

                                19



Title VII," had "merely settled upon a solution now accepted
by every other Western industrial country." Id. (citing Dept.
of Health, Education, and Welfare, Social Security Programs
Throughout the World, (Research Project No. 40) pp. ix, xviii,
xix (1971).1 Congress reacted to Gilbert by enacting the
Pregnancy Discrimination Act. See Newport News
Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 678,
103 S.Ct. 2622, 2628, 77 L.Ed.2d 89 (1983). That act
amended the "Definitions" section of Title VII in part as
follows:

       The terms `because of sex' or `on the basis of sex'
       include, but are not limited to, because of or on the
       basis of pregnancy, childbirth, or related medical
       conditions; and women affected by pregnancy,
       childbirth, or related medical conditions 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. S 2000e(k).

       When Congress amended Title VII in 1978, it
       unambiguously expressed its disapproval of both the
       holding and the reasoning of the Court in the Gilbert
       decision . . . . The House Report stated, `It is the
       Committee's view that the dissenting Justices correctly
       interpreted the Act.' Similarly, the Senate Report
       quoted passages from the two dissenting opinions,
       stating that they `correctly express both the principle
       and the meaning of Title VII.'

Newport News, 462 U.S. at 678. (citing H.R. Rep. No. 95-
948 and S. Rep. No. 95-331, at 2-3 (1977)).

II. INTERPLAY OF THE PDA AND THE
AMERICANS WITH DISABILITIES ACT ("ADA")

The majority sums up its position as follows: "[t]he PDA
merely requires that an employer treat a pregnant woman
_________________________________________________________________

1. Justice Stevens also dissented, but his analysis was based upon the
policies in question treating the risk of absenteeism caused by pregnancy
differently than any other kind of absence. Id. at 161.

                                20



the same as any other temporarily disabled employee. In
this regard we point out that it is not unlawful under the
Americans with Disabilities Act for an employer when
reducing its force to discharge an employee away from work
by reason of a temporary disability." Maj. Op. at 11. Thus,
the majority equates pregnancy-related disability with
temporary disabilities under the ADA, and that analogy
drives the majority's analysis.

I do not think that Rhett's claim can be decided by
simply stating that the PDA requires her to be treated the
same as any other employee and reasoning that her
position can be terminated because an absent nonpregnant
employee could have his or her position terminated under
the facts of this case. Although the case law and EEOC
guidelines refer to Title VII's requirement that pregnant
employees be treated the same as other employees, those
cases usually involve determining whether employee
benefits or insurance policies discriminate by excluding
pregnant employees or affording them less protection than
afforded nonpregnant employees. That was the issue in
Gilbert and Newport News. For example, in Gilbert, Justice
Brennan stated in his dissent: "A realistic understanding of
conditions found in today's labor environment warrants
taking pregnancy into account in fashioning disability
policies . . . . Contemporary disability programs are not
creatures of a social or cultural vacuum devoid of
stereotypes and signals concerning the pregnant woman
employee." 429 U.S. at 160. The Court struck down the
challenged health insurance policies in Newport News
because they were the "mirror image of the plan at issue in
Gilbert." Newport News, 462 U.S. at 685. See also Arizona
Governing Committee for Tax Deferred Annuity and Deferred
Compensation Plans v. Norris, 463 U.S. 1073, 1074, 103
S.Ct. 3492, 3494, 77 L.Ed.2d 1236 (1983) (An employer
who offers "its employees the option of receiving retirement
benefits from one of several companies selected by the
employer, all of which pay a woman lower monthly
retirement benefits than a man who has made the same
contributions," violates Title VII.).

Thus, in the health insurance and employee benefits
context it is now clear that pregnancy-related conditions

                                21
must be treated the same as conditions that are not
pregnancy-related. However, a simple example
demonstrates the danger of carrying that basic premise too
far beyond the insurance or benefits context.

Historically, employers have been reluctant to hire
women or have afforded women different conditions of
employment because of a generalized belief that a female
employee would likely leave her job to raise a family.
Accordingly, there was a reluctance to devote resources to
train or to teach them a job related skill.

I doubt that an employer is precluded from refusing to
hire a male employee because of a reasonable belief that
the potential employee will leave shortly after he is hired.
However, I think few would argue that the same employer
could refuse to hire a female job applicant out of a concern
that she would soon become pregnant and leave her job to
raise a family. Similarly, absent a contract provision to the
contrary, an employer could terminate a male employee
who missed two weeks of work during his first year on the
job in violation of a policy prohibiting more than one week
of sick leave during the employee's first year on the job.2
However, I think it clear that the PDA would prohibit that
same employer from terminating a female employee who
missed the same two weeks because of pregnancy or a
pregnancy-related condition. Those two employees can not
be treated the same because Congress has already
differentiated their situations by enacting the PDA. One can
not avoid a claim of discrimination by treating persons who
are not similarly situated the same. Yet, this is what the
majority's analysis does. The majority's reasoning would
allow an employer to terminate a female employee because
she missed a crucial meeting with an important client if a
male employee would be terminated, even if the female
missed the meeting because she was in labor delivering a
baby, or suffering from a pregnancy-related condition.
Although it may not be fair to terminate the male, it would
_________________________________________________________________

2. As I discuss below, if the employee's condition was "temporary" he
would not be covered by the Americans with Disabilities Act and could
be terminated absent a contract that prevented such an action on the
part of the employer.

                                22



not be illegal. It is illegal to terminate the female because of
the PDA. Cf. California Savings and Loan v. Guerra, 479
U.S. 272, 292 n.42, 107 S.Ct. 683, 695, 93 L.Ed.2d 613
(1987) ("[W]e conclude that in enacting the PDA Congress
did not intend to prohibit all favorable treatment of
pregnancy . . . .").

The majority notes that pregnancy is a temporary
condition that gives rise to a temporary disability. It argues
that since the PDA bars discrimination based upon
pregnancy, it merely requires that pregnant employees be
treated the same as all other temporarily disabled
employees, thereby limiting the comparison group for
pregnant employees to nonpregnant employees who have
suffered a temporary disability. The majority concludes
that, despite her temporary disability due to pregnancy,
Rhett can be terminated unless Carnegie would not
terminate a male employee who was similarly "temporarily"
disabled. See Maj. Op. at 11. That analysis rests upon
equating a protected, but temporary, condition (pregnancy)
with a temporary unprotected disability under the ADA. The
ADA does not shield a non-pregnant employee from
termination because temporary disabilities are excluded
from the ADA. Regulations that were promulgated pursuant
to the ADA define disability as:

       (1) A physical or mental impairment that substantially
       limits one or more of the major life activities of such
       individual; (2) a record of such an impairment; or (3)
       being regarded as having such an impairment.

29 C.F.R. S 1630.2(g). "Substantially limits" is defined to
mean:

       (i) Unable to perform a major life activity that the
       average person in the general population can perform;
       or

       (ii) Significantly restricted as to the condition, manner,
       or duration under which an individual can perform a
       particular major life activity as compared to the
       condition, manner, or duration under which the
       average person in the general population can perform
       that same major life activity.

                                23



S 1630.2(j)(1). Several factors have been identified to assist
in determining whether a particular "disability" is of such
severity as to come within the protection intended under
the ADA. These factors include:

       (i) The nature and severity of the impairment;

       (ii) The duration or expected duration of the
       impairment; and
       (iii) The permanent or long term impact, or the
       expected permanent or long term impact of or resulting
       from the impairment.

S 1630.2(j)(2). "Disabilities" that are temporary do not, by
definition, rise to the level of substantially limiting a major
life function. See Rogers v. International Marine Terminals,
Inc., 87 F.3d 755, 758 (5th Cir. 1996) ("[T]emporary
conditions that are not chronic usually do not rise to
the level of a `disability.' ") and (Taylor v. Dover Elevator
Systems, Inc., 917 F.Supp. 455, 461 (N.D. Miss. 1996)
("[T]emporary injuries with no permanent effects are
ordinarily not considered disabilities under the ADA.")
(citing Evans v. City of Dallas, 861 F.2d 846, 852-53 (5th
Cir. 1988); Rakestraw v. Carpenter Co., 898 F.Supp. 386,
390 (N.D. Miss. 1995); Oswalt v. Sara Lee Corp., 889
F.Supp. 253, 257 (N.D. Miss. 1995), aff'd, 74 F.3d 91 (5th
Cir. 1996)).

However, just as temporary disabilities are excluded from
the protections of the ADA by definition, temporary
pregnancy-related conditions are explicitly covered by Title
VII's prohibition against sex discrimination under the PDA.
Accordingly, the protection afforded pregnancy-related
conditions can not be equated with that afforded temporary
disabilities merely because pregnancy is temporary. To do
so under the facts of this case is contrary to the mandate
of the statute, effectively amends the PDA and forces Rhett
to rely upon the ADA which provides no protection for
pregnancy related conditions because of their temporary
nature.

The majority relies on Rogers and Sanders v. Arneson
Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996), cert.
denied, 117 S.Ct. 1247, 137 L.Ed.2d 329 (1997), to

                                24



substantiate its claim that the temporarily disabled
employee resides outside of statutory protection--regardless
of whether the temporary disability is due to pregnancy.
See Maj. Op. at 11. In Rogers, an employee ("Rogers") sued
under the ADA when he was laid off pursuant to a
reduction in force ("RIF "). Rogers had been absent because
of health problems related to an ankle surgery. The court
held that Rogers was not protected by the ADA because he
was not "disabled" within the meaning of the statute.
"In sum, Rogers' ankle afflictions were temporary and
did not constitute a permanent disability . . . . The EEOC
regulations concur, that `temporary, non-chronic
impairments of short duration, with little or no long term or
permanent impact, are usually not disabilities.' " 87 F.3d at
759 (quoting 29 C.F.R. S 1630.2(j) (Appendix)). However, the
fact that they are not "disabilities" under the ADA does not
mean that they are not protected under the PDA, if they are
pregnancy-related.

Similarly, in Sanders, employee Sidney Sanders
("Sanders") was terminated while on leave for a cancer-
related psychological disorder. While he was away other
employees assumed his responsibilities and employer
Anreson Products decided to replace Sanders rather than
allow him to return at the end of his sick leave. Although
Sanders suffered from cancer, he conceded that his
absence was related only to his psychological disorder that
was temporary. Accordingly, the court framed the issue
before it as "whether Sanders' temporary psychological
impairment qualifies as a disability under the ADA." Id. at
1353. The court held that it did not because that
impairment did not "substantially limit" a major life
function. Id.

If Congress intended to equate pregnancy with a
temporary disability under the ADA, it afforded pregnant
women precious little protection when it enacted the PDA.
Pregnancy is by its nature temporary. Holding that it is
therefore the equivalent of a "temporary disability" is hardly
consistent with "the social policies and aims to be furthered
by Title VII and filtered through the phrase `to discriminate'
contained in [that Act]" Gilbert, 429 U.S. at 155 (Brennan,
J., dissenting). Accordingly, we can only give effect to the

                                25



intent behind this statute by viewing the term "temporarily
disabled" as it applies to pregnancy as referring to the
duration of the disability, not to the quality of it.

The majority also relies upon Troupe v. May Dept. Stores
Co., 20 F.3d 734, 738 (7th Cir. 1994). However, I am not
persuaded by the reasoning of Troupe and believe that we
should be guided instead by Smith v. F.W. Morse & Co.,
Inc., 76 F.3d 413 (1st Cir. 1996).

III. TROUPE v. MAY DEP'T STORES CO.

In Troupe, pregnant employee Kimberly Hern Troupe was
fired from a Lord & Taylor department store for tardiness
due to pregnancy. Troupe sued her employer, May
Department Stores (doing business as Lord & Taylor),
alleging illegal sex discrimination under Title VII. The
district court granted Lord & Taylor's motion for summary
judgment and Troupe appealed. On appeal, the Court of
Appeals for the Seventh Circuit affirmed, noting that "[t]he
great, the undeniable fact is the plaintiff's tardiness." Id. at
737. The court analogized the plaintiff's plight to that of a
hypothetical Black employee who is fired after a kidney
transplant because the employer either wants to avoid
paying the employee while on sick leave or doubts that the
employee will return. The court reasoned that, infiring the
Black employee, the employer may be breaking a contract,
but it would not be violating Title VII's protections against
racial discrimination as long as the employer would also
fire a similarly situated White employee.3 Id. at 738. The
failure of the Troupe analogy, however, is that absence from
work is not endemic to a protected racial trait. Absence is,
_________________________________________________________________

3. The Seventh Circuit notes that "[e]mployers can treat pregnant women
as badly as they treat nonpregnant employees, even to the point of
`conditioning the availability of an employment benefit on an employee's
decision to return to work after the end of the medical disability that
pregnancy causes.' " Troupe, 20 F.3d at 738 (quoting Maganuco v. Leyden
Community High School Dist. 212, 939 F.2d 440, 445 (7th Cir. 1991). In
treating pregnant women as badly as other nonpregnant employees, an
employer cannot, however, impose policies that disparately impact
pregnant women because of their pregnancy. See Maganuco, 939 F.2d at
445.

                                26



however, endemic to "pregnancy, childbirth, or related
medical conditions." S 2000e(k). Indeed, the historical
underpinnings of Title VII suggest that it was the fear that
women would get pregnant and be absent from their jobs
that was, at least in part, responsible for the longstanding
discrimination against women (especially younger women)
in the workplace.

As noted above, employers have assumed that female
employees may become pregnant and that pregnancy would
make them unavailable for work. See Gilbert, 429 U.S. at
150 n.1 (Brennan, J., dissenting) ("General Electric's
disability program was developed in an earlier era when
women openly were presumed to play only a minor and
temporary role in the labor force. As originally conceived in
1926, General Electric offered no benefit plan to its female
employees because `women did not recognize the
responsibilities in life, for they were probably hoping to get
married soon and leave the company.' ") (quoting D. Loth,
Swope, G.E.: Story of Gerard Swope and General Electric in
American Business (1958)). Yet, here the majority finds that
"[i]t is not a violation of the PDA for an employer to consider
an employee's absence on maternity leave in making an
adverse employment decision if it also would have
considered the absence of an employee on a different type
of disability leave in the same way." Maj. Op. at 14. This is
a simplistic interpretation of the PDA and the EEOC
guidelines. In a different Title VII context, the Supreme
Court noted that interpreting the prohibitions of Title VII to
only prohibit overt intentional discrimination would leave
employers free to enact facially neutral policies based on
factors that were a proxy for race and thereby circumvent
Title VII's protection. See Griggs v. Duke Power, 401 U.S.
424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d (1971). The
approach taken in Troupe, under the PDA, and adopted by
the majority here, suffers from the same infirmity.

It is jurisprudential sleight of hand to suggest that the
PDA does not require that pregnant women be treated
better than their male counterpart. That is a misleading
statement of the issue. Thus, the court in Troupe misses
the analytical mark when it states that "[e]mployers can
treat pregnant women as badly as they treat similarly

                                27



affected but nonpregnant employees," 20 F3d at 738,
unless it defines "similarly affected" employees as other
employees having a protected trait that is endemic to the
behavior at issue. However, Troupe fails to do so and
assumes that the pregnant employee is the "equal" of her
nonpregnant coworker. Similarly, the majority erroneously
concludes that "the PDA does not require that employers
treat pregnant employees better than other temporarily
disabled employees." See Maj. Op. at 8.

Relying upon Hazen Paper Company v. Biggins, 507 U.S.
604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), the majority
states that "[t]he Supreme Court has held that under the
Age Discrimination in Employment Act an employer must
ignore an employee's age in certain employment decisions,
but not any other characteristics such as pension expense."
Maj. Op. at 8. However, I believe that Hazen Paper requires
that we reject Troupe. In Hazen Paper, a 62 year old
employee sued his employer, alleging that he had been
terminated based upon age discrimination, in violation of
the Age Discrimination in Employment Act ("ADEA"), 26
U.S.C. S 626, and the Employment Retirement Income
Security Act ("ERISA"), 29 U.S.C. S 1140. A jury found for
the employee on both claims, and the employee appealed.
The Court of Appeals for the First Circuit affirmed, relying
heavily on evidence that the plaintiff had beenfired in order
to prevent his pension from vesting. The court determined
that the jury could have concluded that "age was
inextricably intertwined with the decision to fire[the
plaintiff]. If it were not for [his] age . . . his pension rights
would not have been within a hairbreadth of vesting," 953
F.2d 1405, 1412 (1st Cir. 1992), and he would not have
been fired. The Supreme Court reversed as to the ADEA
claim. The court reasoned that firing an older employee to
prevent pension benefits from vesting based on years of
service does not amount to "willful" age discrimination
under the ADEA. 507 U.S. at 608. The Court stated,"[W]e
now clarify that there is no disparate treatment under the
ADEA when the factor motivating the employer is some
feature other than the employee's age." Id. at 609. The case
before it was a disparate treatment case and the Court
concluded that "a disparate treatment claim cannot
succeed unless the employee's protected trait actually

                                28



played a role in that process and had a determinative
influence on the outcome." Id. at 611.

        Disparate treatment, thus defined, captures the
       essence of what Congress sought to prohibit in the
       ADEA. It is the very essence of age discrimination for
       an older employee to be fired because the employer
       believes that productivity and competence decline with
       old age. . . .

        Thus the ADEA commands that `employers are to
       evaluate [older] employees . . . on their merits and not
       their age.' The employer cannot rely on age as a proxy
       for an employee's remaining characteristics, such as
       productivity, but must instead focus on those factors
       directly.

        When the employer's decision is wholly motivated by
       factors other than age, the problem of inaccurate and
       stigmatizing stereotypes disappears. This is true even if
       the motivating factor is correlated with age, as pension
       status typically is . . . . Because age and years of
       service are analytically distinct, an employer can take
       account of one while ignoring the other, and thus it is
       incorrect to say that a decision based on years of
       service is necessarily `age based.'

507 U.S. at 610-611.

Pregnancy and absence are not, however, analytically
distinct, and an employer can not punish for the absence
occasioned by pregnancy under Title VII. As noted above,
that statute states that it is an unlawful employment
practice to "discharge any individual . . . or otherwise
discriminate . . . because . . . of sex," 42 U.S.C. S 2000e-
2(a)(1), and, after the PDA, that includes discrimination "on
the basis of pregnancy . . . or related medical conditions."
42 U.S.C. S 2000e(k). That protection is meaningless unless
it is intended to extend to the "temporary" absence from
employment that is unavoidable in most pregnancies. Thus,
the absence endemic to pregnancy, unlike factors that may
sometimes be a proxy for age, has to be protected under the
facts of this case. In Hazen Paper, it was the employee's
years of service, not his age, that occasioned the vesting of
his pension. The Court was very careful to note that

                                29



       [W]e do not consider the special case where an
       employee is about to vest . . . as a result of his age,
       rather than years of service, and the employer fires the
       employee in order to prevent vesting. That case is not
       presented here. Our holding is simply that an employer
       does not violate the ADEA just by interfering with an
       older employee's pension benefits that would have
       vested by virtue of years of service.

507 U.S. at 613. I believe that Rhett's situation under the
PDA is much closer to the situation of an employee whose
pension is vesting because of age than to the plight of the
plaintiff in Hazen Paper. Accordingly, the holding in Hazen
Paper does not assist the majority nearly as much as first
appears.4

"[I]n using the broad phrase `women affected by
pregnancy, childbirth and related medical conditions,' the
[PDA] makes clear that its protection extends to the whole
range of matters concerning the childbearing process." H.R.
Rep. 95-948 (emphasis added). The holding in Troupe, and
the majority's holding here, remove a substantial portion of
the protection Congress intended. Troupe's position was
terminated because of conditions related to pregnancy
(tardiness occasioned by her morning sickness). I do not
understand, therefore, why she was not terminated
"because of . . . her pregnancy," S 2000e(k), in violation of
Title VII.

I believe that we should reject the holding in Troupe, and
_________________________________________________________________

4. I do not mean to suggest by this that the PDA requires an employer
to necessarily take affirmative steps to make it easier for a pregnant
employee to work. See Troupe, 20 F.3d at 738 ("The Pregnancy
Discrimination Act does not . . . require employers to . . . take . . .
steps
to make it easier for pregnant women to work."). The PDA does not
provide for accommodation as does the ADA.
Nor do I suggest that an employee who is pregnant can not be fired for
reasons that are not occasioned by pregnancy. For example, if Carnegie
decided, in good faith, to eliminate everyone with a certain salary grade
based upon its business judgment, Rhett could be terminated if she was
at that salary grade whether she was on pregnancy leave or not because
the termination would not be based upon a factor endemic to her
pregnancy.

                                30



adopt instead the analysis set forth in Smith, 76 F.3d 413.
There, a female employee ("Smith") worked for a small
company that was undergoing restructuring. She informed
the owner of the company that she was pregnant and would
be taking maternity leave. Although the company had no
maternity leave policy, Smith was assured that her job was
secure and the company would simply divide her duties
amongst its remaining employees in her absence. The
company made this commitment even though it expected
her absence to cause "the sky to fall." Id. at 418. The
company also held regular "reality check" meetings in the
hope that they could minimize the impact of the absence of
such a key employee. However, to the company's great
surprise the sky did not fall. In fact, "the plant functioned
very well," id. at 419, in Smith's absence. Soon after Smith
gave birth, she informed the general manager, Maryann
Guimond, that she wished to return to work a week earlier
than planned. At that time, Guimond made inquiries of
Smith and Smith's sister (who also worked for the
company) regarding Smith's plans to have children in the
future. Days later, Guimond determined that Smith's
position was superfluous and eliminated it. Smith's duties
were then given to another employee who had been
functioning as the operations manager.

Smith sued, alleging, among other things, violation of
Title VII. The Title VII claim was decided in a bench trial in
the district court, and that court entered judgment for the
employer as a matter of law. Smith appealed, and the Court
of Appeals for the First Circuit affirmed. Smith argued that
the company had violated Title VII because her absence on
pregnancy leave afforded the company the opportunity to
learn that it could afford to eliminate her position. The
court disagreed because it concluded that the employer
would have eliminated the position regardless of Smith's
pregnancy, and agreed with the employer's argument that
"even if Smith had not been on maternity leave she would
have been flattened by the downsizing steamroller." Id. at
419. The court reasoned that

       [T]here is little doubt that an employer, consistent with
       its business judgment, may eliminate positions during
       the course of a downsizing without violating Title VII

                                31



       even though these positions are held by members of
       protected groups (pregnant women included)" (citing
       LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 844-45 (1st
       Cir. 1993), cert. denied, 511 U.S. 1018, 114 S.Ct.
       1398, 128 L.Ed.2d 72 (1994); Goldman v. First Nat'l
       Bank, 985 F.2d 1113, 1118-19 (1st Cir. 1993);
       Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100,
       105, 107 (2d Cir. 1989); Dister v. Continental Group,
       Inc., 859 F.2d 1108-1115 (2d Cir. 1988); Pearlstein v.
       Staten Island Univ. Hosp., 886 F.Supp. 260, 268-69
       (E.D.N.Y. 1995)) . . . . [T]he flip side of the coin,
       however, is that an employer who selectively cleans
       house cannot hide behind convenient euphemisms
       such as "downsizing" or "streamlining." Whether or not
       trimming the fat from a company's organizational chart
       is a prudent practice in a particular business
       environment, the employer's decision to eliminate
       specific positions must not be tainted by a
       discriminatory animus.

Id. at 422 (citing Goldman, 985 F.2d at 1118 n.4; Maresco
v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992);
Mesnick, 950 F.2d at 825; Pearlstein, 886 F.Supp. at 268-
69.). The court held that the "employer may discharge an
employee while she is on a pregnancy-induced leave so long
as it does so for legitimate reasons unrelated to her
gravidity." Id. at 424. Smith's employer had selected her
merely because it realized that her position was not nearly
as valuable as her supervisors previously believed. The fact
that her absence on maternity leave afforded the employer
an opportunity to learn just how expendable her position
was did not mean that she was terminated "because of her
pregnancy."

However, and most significantly for purposes of our
analysis, the court also stated:

       Title VII mandates that an employer must put an
       employee's pregnancy (including her departure on
       maternity leave) to one side in making its employment
       decisions -- but the statute does not command that an
       employer bury its head in the sand and struthiously
       refrain from implementing business judgments simply
       because they affect a parturient employee.

                                32
Id. at 424 (citing Troupe, 20 F.3d at 738) (emphasis added).
The court added that "[a]t bottom, Title VII requires a
causal nexus between the employer's state of mind and the
protected trait (here, pregnancy)." Id. at 425. In Smith, the
nexus did not exist because the decision to eliminate the
employee's job was based upon the importance (or lack
thereof) of the job. Here, however, the decision to eliminate
Rhett's job was based solely upon her pregnancy related
absence. That causal nexis runs afoul of Title VII's
prohibition of sex discrimination.

Carnegie clearly did not put Rhett's departure on
maternity leave to one side when deciding to terminate her.
Rhett's absence from work was so inextricably intertwined
with pregnancy, her protected trait, as to make the two
inseparable. In its "theory of transitivity," the majority
separates the events in this case into discrete entities that
suggest the causal relationship between Rhett's pregnancy
and her termination. The majority too easily rejects this
position. See Maj. Op. at 8 ("This view eliminates Rhett's
theory of transitivity, that if A (termination) is caused by B
(absence) which is caused by C (pregnancy), then C causes
A.").

IV. TERMINATION BECAUSE OF PREGNANCY

An employer can not insulate itself from the reach of Title
VII by an action that appears neutral, yet has the
functional effect of disparately treating an individual based
upon a protected trait. See Griggs, 401 U.S. at 430.
Carnegie's action is the functional equivalent of terminating
Rhett because she was pregnant. See Teahan v. Metro-North
Commuter R.R. Co., 951 F.2d 511 (2d Cir. 1991).

In Teahan, an employee suffering from alcoholism
brought an action against his employer alleging that his
discharge for excessive absenteeism was in violation of
S 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794,
because his absences had been caused by that disease.
Summary judgment was entered in favor of the employer
because the district court concluded that there was no
issue of material fact as to whether Teahan "was terminated
`solely by reason of ' his handicap." Id. at 514. The district

                                33



court concluded that the employer "had not relied on
Teahan's handicap . . . [and had] a nondiscriminatory
reason for firing him (excessive absenteeism)." Id. Teahan
appealed.
On appeal, Teahan argued that "because the ground
upon which he was terminated was his excessive
absenteeism, and since his absenteeism was `caused by' his
substance abuse problem, the district court improperly
shifted the burden to him to present evidence of pretext."
Id. The Court of Appeals for the Second Circuit agreed,
stating that "it does not inevitably follow that termination
for conduct resulting from a handicap is not termination
`solely by reason of ' that handicap."5 Id. at 515. Indeed,"an
employer `relies' on a handicap when it justifies [its
employment decision] based on conduct caused by that
handicap."6 Id. Because the district court erred in
concluding that Teahan had not established that he was
fired "solely by reason of his handicap," his employer never
had to satisfy its burden of "demonstrating that[Teahan's
handicap] was relevant to the job qualifications." Id. at 515.
Accordingly, the court remanded the case for further
proceedings.7 Similarly, in Cushing v. Moore, 970 F.2d
_________________________________________________________________

5. The "solely by reason of" inquiry, the court explained, is "designed to
weed out [ ] claims where an employer can point to conduct or
circumstances that are causally unrelated to the plaintiff's handicap."
Id. at 516 (emphasis added). In the context of the PDA, the analogue is
the "because of or on the basis of pregnancy" inquiry.

The court accepted that the plaintiff's excessive absences were
"caused by" his alcoholism because its review on appeal required that it
examine all facts in the light most favorable to Teahan. The court
recognized, however, that "the causal connection between absenteeism
and alcoholism is ordinarily a question of fact." Teahan, 951 F.2d at 515.

6. Under the Rehabilitation Act, "[t]he question then becomes whether
the employee is qualified despite his or her handicap to perform the
essential functions of the job." Id. The employer bears that burden:
"[A]fter complainant proves a prima facie case, the employer is required
to rebut the inference that the handicap was improperly considered by
first demonstrating that it was relevant to the job qualifications." Id.
at
515.

7. Other courts of appeals have refused to adopt Teahan's rationale. See
e.g., William v. Widnall, 79 F.3d 1003 (10th Cir. 1996); Maddox v.

                                34



1103, 1108 (2nd Cir. 1992), the court stated that "the key
determination becomes the factual issue of whether an
employee's conduct (such as absenteeism), which forms the
articulated basis for a job termination, is actually caused
by a handicap (such as substance abuse)" (citing Teahan,
951 F.2d at 517; Hogarth v. Thornburgh, 833 F.Supp. 1077,
1085 (S.D.N.Y. 1993) ("[I]f a handicap manifests itself in
certain behavior, and an employee is discharged because of
that behavior, he has been terminated `solely by reason of '
the handicap."); and Ambrosino v. Metropolitan Life Insur.
Co., 899 F.Supp. 438, 444 (N.D.Cal. 1995) (The court chose
to follow the line of cases holding that "termination based
on conduct caused by chemical dependency and status
which results from the dependency and/or the conduct
caused by the dependency is termination based on the
disability of chemical dependency."). However, that
consideration is not present here, and I believe that this
matter should be remanded for a determination of whether
Rhett would have been selected for termination based upon
factors other than her absence. Although it is for the
employer, and not a court, to determine how best to select
those positions that will be eliminated in a reduction in
force, Title VII requires this employer to adopt criteria that
put Rhett's pregnancy-related absence aside and allow for
an individualized determination driven by her own
capabilities.
_________________________________________________________________

University of Tennessee, 62 F.3d 843 (6th Cir. 1995). However, in all
cases, the employee had exhibited either egregious or criminal conduct.
See e.g., Maddox, 62 F.3d at 845 (assistant coach at University of
Tennessee fired because of the bad publicity that the university was
subjected to after he was arrested for DUI). Because of the nature of the
conduct involved, these courts were unwilling to"adopt an interpretation
of the [Rehabilitation Act] which would require an employer to accept
egregious behavior by [a disabled employee] when that same behavior,
exhibited by a nondisabled employee, would require termination."
Williams, 79 F.3d at 1007. Thus, "[a]t first blush, it may appear that the
Second Circuit is out of synchronization with the others. However,
distinction lies in the categorization of the conduct . . . . [In the
cases
rejecting Teahan,] the conduct [at issue] is . . . misconduct." Taylor,
917
F.Supp. at 462 (emphasis added). Rhett's case does not implicate the
concerns of those courts that have rejected Teahan.

                                35



V. CONCLUSION

For the reasons stated above, I would reverse the
decision of the district court and remand this matter to the
bankruptcy court for a determination of whether Rhett
would have been terminated had her pregnancy-related
absence been put aside.

A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

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