Durham v. Rural/Metro Corporation
Filing
78
MEMORANDUM OPINION AND ORDER - The court GRANTS IN PART AND DENIES IN PART Rural/Metro's motion for summary judgment. The court GRANTS the motion as to any claim that Rural/Metro discriminated against Ms. Durham by denying her a light duty posi tion, and WILL ENTER SUMMARY JUDGMENT in favor of Rural/Metro and against Ms. Durham on that claim. However, the court DENIES the motion as to the claim that Rural/Metro discriminated against Ms. Durham by denying her a dispatcher position. The court will enter a separate partial judgment consistent with this opinion. Signed by Judge Annemarie Carney Axon on 11/30/2020. (KEK)
FILED
2020 Nov-30 AM 11:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KIMBERLIE MICHELLE
DURHAM,
Plaintiff,
vs.
RURAL/METRO
CORPORATION,
Defendant.
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Case No.: 4:16-CV-01604-ACA
MEMORANDUM OPINION AND ORDER
Before the court is Defendant Rural/Metro Corporation’s (“Rural/Metro”)
motion for summary judgment. (Doc. 40). Plaintiff Kimberlie Durham contends
that Rural/Metro violated Title VII of the Civil Rights Act of 1964, as amended by
the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k),
when it declined to offer her an accommodation for her pregnancy-related lifting
restrictions in the form of either light duty or a dispatcher position. (Doc. 1).
PDA claims like this one, which depend on circumstantial evidence, are
evaluated using a modified McDonnell Douglas framework.
See McDonnell
Douglas v. Green, 411 U.S. 792 (1973); Young v. United Parcel Serv., Inc., 575 U.S.
206, 228 (2015). Under that framework, the plaintiff must first present a prima facie
case of discrimination. Young, 575 U.S. at 228. If she can do so, the employer must
give legitimate, nondiscriminatory reasons for denying the plaintiff’s requested
accommodation. Id. at 229. The plaintiff then must present evidence from which a
jury could find that the legitimate, nondiscriminatory reason is pretext for
discrimination. Id.
This court previously granted summary judgment to Rural/Metro, finding that
Ms. Durham had not satisfied her burden of presenting a prima facie case of
discrimination. (Docs. 55, 56). The Eleventh Circuit reversed, concluding that
Ms. Durham had established a prima face case and that Rural/Metro had presented
two legitimate, nondiscriminatory reasons for its denial of an accommodation:
(1) that it offered light duty jobs only to workers injured on the job; and (2) that it
had no dispatcher positions available at the time she requested an accommodation.
Durham v. Rural/Metro Corp., 955 F.3d 1279, 1286–87 (11th Cir. 2020). That Court
remanded with instructions for this court to determine whether Ms. Durham carried
her burden of presenting evidence of pretext. Id. at 1287. At the parties’ request,
the court permitted supplemental briefing on that issue. (Doc. 72).
The court now GRANTS IN PART AND DENIES IN PART the motion for
summary judgment.
The court GRANTS the motion as to any claim that
Rural/Metro discriminated against Ms. Durham by denying her a light duty position,
and WILL ENTER SUMMARY JUDGMENT in favor of Rural/Metro and
against Ms. Durham on that claim. However, the court DENIES the motion as to
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the claim that Rural/Metro discriminated against Ms. Durham by denying her a
dispatcher position, and will permit that claim to proceed.
I.
BACKGROUND
On a motion for summary judgment, the court “draw[s] all inferences and
review[s] all evidence in the light most favorable to the non-moving party.”
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012)
(quotation marks omitted). The Eleventh Circuit’s opinion set out the facts relevant
to the motion for summary judgment in the light most favorable to Ms. Durham. See
Durham, 955 F.3d at 1281–84. Under the law of the case doctrine, “findings of fact
and conclusions of law by an appellate court are generally binding in all subsequent
proceedings in the same case in the trial court or on a later appeal.” Heathcoat v.
Potts, 905 F.2d 367, 370 (11th Cir. 1990). The law of the case doctrine does not
apply where “substantially different evidence is produced” because “[w]hen the
record changes . . . the evidence and the inferences that may be drawn from it
change.” Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1283 (11th
Cir. 2005). But here, the parties rely on the same evidence as before. Accordingly,
this court is bound by the Eleventh Circuit’s description of the facts.
The Eleventh Circuit set out the facts exhaustively, and this court will not
repeat all of them. See Durham, 955 F.3d at 1281–84. In brief, Ms. Durham worked
as an emergency medical technician (“EMT”) for Rural/Metro. Id. at 1281. When
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she learned that she was pregnant, her physician advised her not to lift more than 50
pounds. Id. at 1282. She informed a superior, Mike Crowell, about her lifting
restriction, and they agreed that she could not continue to perform her regular work
as an EMT while under that restriction. Id.
Rural/Metro had a Transitional Work Program for employees whose on-thejob injuries or illnesses imposed temporary work restrictions. Durham, 955 F.3d at
1282.
That program offered “light duty” jobs, such as office work, to those
employees, but not to any other employees with work restrictions. Id. Those other
employees could, however, apply for other open positions that accommodated their
work restrictions. Id. For example, Rural/Metro employed dispatchers who sent
ambulances out on calls. Id. If a dispatcher position was open, an employee who
was not eligible for light duty could apply to work as a dispatcher. Id. If no
dispatcher position was available and the employee was not eligible for medical,
annual, or sick leave, Rural/Metro offered an unpaid personal leave policy. Id. at
1282–83.
When Ms. Durham learned that she was pregnant and would not be able to
perform her job as an EMT, she checked Rural/Metro’s job board and saw several
open dispatcher positions. Durham, 955 F.3d at 1282. She asked Mr. Crowell if she
could work either light duty or dispatch. Id. After he consulted with Rural/Metro’s
Human Resources officer, Mr. Crowell informed Ms. Durham that she could not
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work light duty because she had not suffered an on-the-job injury or illness, and that
Rural/Metro had no dispatcher positions open. Id. at 1283. He told her that her only
option was to take unpaid personal leave. Id. Rural/Metro’s Human Resources
Officer later confirmed Mr. Crowell’s explanation.
Id.
Because Ms. Durham
understood the personal leave policy to prohibit her from seeking another job while
on leave, she did not apply for unpaid personal leave.
Id.
Given her work
restrictions, Rural/Metro stopped scheduling Ms. Durham for shifts. Id.
After Ms. Durham filed a charge of discrimination with the Equal
Employment Opportunity Commission, Rural/Metro’s Human Resources Officer
asked Mr. Crowell to verify that it had no open dispatcher positions available for
Ms. Durham. Durham, 955 F.3d at 1284. Mr. Crowell responded “that he did not
‘have any dispatch positions posted but if [he] needed to create a position for
[Durham,] [he] could.’” Id. (alterations in original). But Rural/Metro did not offer
Ms. Durham a dispatcher position, and never again scheduled Ms. Durham for a
work shift. Id.
II.
DISCUSSION
Rural/Metro moves for summary judgment on Ms. Durham’s claim that
Rural/Metro violated Title VII, as amended by the PDA, when it failed to
accommodate her pregnancy-related work restrictions by offering her either a light
duty job or a dispatcher position. (Doc. 40). In deciding a motion for summary
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judgment, the court must determine whether, accepting the evidence in the light most
favorable to the non-moving party, the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); see also Hamilton, 680 F.3d at 1318.
Title VII prohibits an employer from “discriminat[ing] against any individual
with respect to . . . terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). The PDA amended Title VII to
provide that “‘because of sex’ . . . include[s] . . . because of or on the basis of
pregnancy, childbirth, or related medical conditions.” Id. § 2000e(k). “[W]omen
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. . . .” Id.
As the court set out above, a claim of pregnancy discrimination based on
circumstantial evidence is evaluated using a modified McDonnell Douglas test.
Durham, 955 F.3d at 1285. The Eleventh Circuit has already held that Ms. Durham
presented a prima facie case of pregnancy discrimination and that Rural/Metro
presented two legitimate, non-discriminatory reasons for its failure to accommodate
her: (1) light duty jobs are available only to those injured on the job, and
(2) Rural/Metro had no dispatcher positions available when Ms. Durham sought an
accommodation. Id. at 1286–87. The only question remaining for this court is
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whether Ms. Durham has presented evidence that those reasons are pretext for
discrimination. Id. at 1287.
Under Young, one way a plaintiff can carry her burden is by presenting
“sufficient evidence that the employer’s policies impose a significant burden on
pregnant workers, and that the employer’s legitimate, nondiscriminatory reasons are
not sufficiently strong to justify the burden, but rather—when considered along with
the burden imposed—give rise to an inference of intentional discrimination.”
Young, 135 S. Ct. at 1354 (quotation marks omitted). The plaintiff can show the
existence of a significant burden “by providing evidence that the employer
accommodates a large percentage of nonpregnant workers while failing to
accommodate a large percentage of pregnant workers.” Id.
Rural/Metro contends, first, that Ms. Durham cannot establish that its refusal
to provide a light-duty assignment is pretextual because it offered light duty
assignments only to employees injured on the job, and excludes all other employees,
including pregnant employees. 1 (Doc. 73 at 8–9). Ms. Durham does not dispute that
Rural/Metro offered light duty positions only to employees who suffered on-the-job
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Rural/Metro also argues that it did not create light duty positions even for employees who
were eligible for the Transitional Work Program, but instead offered those positions to eligible
employees if the position already existed. (Doc. 73 at 9). Contrary to Rural/Metro’s position, the
Eleventh Circuit held that the evidence, interpreted under the summary judgment standard, shows
that Rural/Metro’s policy required it to “effectively create[ ] temporary positions that otherwise
did not exist” for workers who were injured on the job. Durham, 955 F.3d at 1282. This court is
bound by that holding. See Heathcoat, 905 F.2d at 370.
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injuries. (Doc. 74 at 9). Instead, she argues that Rural/Metro’s reliance on the
Transitional Work Program is pretextual because Rural/Metro has not offered any
evidence about why it offers light duty accommodations to employees injured on the
job but not to pregnant employees. 2 (Id. at 22, 25–27).
Ms. Durham mistakes where the burden lies at the pretext stage of the
McDonnell Douglas test. She contends that Rural/Metro must present evidence
“justify[ing] why the policy excludes pregnant employees.” (Doc. 74 at 25). But at
the pretext stage of the McDonnell Douglas test, the burden rests on the plaintiff to
show why the exclusion of pregnant employees imposes a significant burden on
them that outweighs the employer’s legitimate, nondiscriminatory reasons. See
Young, 135 S. Ct. at 1354; see also Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981) (explaining that, at the pretext stage, “[t]he plaintiff retains the
burden of persuasion. She now must have the opportunity to demonstrate that the
proffered reason was not the true reason for the employment decision”).
Ms. Durham has not presented any evidence at all on the pretext prong,
instead arguing that “a jury could find that [Rural/Metro’s] lack of explanation as to
why it denies light-duty to pregnant employees while providing it to workers’
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Ms. Durham also challenges the sufficiency of the evidence supporting Rural/Metro’s
stated reasons for denying her the requested accommodations. (Doc. 74 at 21–25). But the
Eleventh Circuit has already held that Rural/Metro satisfied its burden on that prong. Durham,
955 F.3d at 1287. This court cannot revisit that holding. See Heathcoat, 905 F.2d at 370.
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compensation employees evidences pretext.” (Doc. 74 at 28). This is an attempt to
shift the burden back to Rural/Metro at the pretext stage, which cannot succeed.
Ms. Durham also argues that she has presented evidence that Rural/Metro’s
Transitional Work Policy imposed a significant burden because she lost her income
and the “opportunity to work at [the] time she needed her paycheck the most—when
she was expecting her first child.” (Doc. 74 at 26). The court cannot accept that
argument. Certainly, a loss of income is a significant burden on any worker. But
Young requires that the plaintiff establish that “the employer’s policies impose a
significant burden on pregnant workers.” Young, 135 S. Ct. at 1354 (emphasis
added) (quotation marks omitted). Ms. Durham has presented no evidence that the
burden of losing income is particular to pregnant workers, nor that the burden
outweighs Rural/Metro’s reasons for offering light duty only to workers injured on
the job.
The Young decision explains that a plaintiff can establish that an employer’s
policy puts a significant burden on pregnant workers “by providing evidence that the
employer accommodates a large percentage of nonpregnant workers while failing to
accommodate a large percentage of pregnant workers.” Young, 135 S. Ct. at 1354.
In that case, the defendant “accommodate[d] most nonpregnant employees with
lifting limitations while categorically failing to accommodate pregnant employees
with lifting limitations.” Id.; see also Durham, 955 F.3d at 1286 (explaining that the
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defendant in Young accommodated workers were “injured on the job; employees
disabled on the job (including those with resulting lifting limitations); those who had
lost their Department of Transportation certifications because of a failed medical
exam, a lost driver’s license (including an employee who had lost his license for
driving under the influence), or involvement in a motor-vehicle accident; and some
employees who had been disabled off the job,” among others). Ms. Durham has not
presented any similar evidence with respect to Rural/Metro’s Work Transition
Program, which accommodates only workers injured on the job, and excludes all
other workers, including pregnant workers.
Ms. Durham’s argument is insufficient to carry her burden of presenting
evidence by which a factfinder could find pretext, and with it, intentional
discrimination based on pregnancy, with respect to the denial of a light duty
assignment under Rural/Metro’s Worker Transition Program. Accordingly, the
court GRANTS the motion for summary judgment with respect to Ms. Durham’s
claim that Rural/Metro failed to accommodate her pregnancy by offering her a light
duty job.
Rural/Metro’s other legitimate, nondiscriminatory reason for failing to
accommodate Ms. Durham is that it offers the accommodation of a dispatcher job
only if an opening for such a job already existed, and that no such opening existed
when Ms. Durham requested an accommodation. (Doc. 73 at 13–17). It contends
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that Ms. Durham cannot show that this reason is pretextual because Ms. Durham
presented only a “vague, belated, and inconsistent allegation” that a dispatcher
position was available. (Doc. 73 at 13–16). Ms. Durham responds that she has
created a dispute of material fact about whether dispatcher positions were open when
she asked for an accommodation. (Doc. 74 at 28).
Here, the court agrees with Ms. Durham. As the Eleventh Circuit held,
Ms. Durham’s affidavit—in which she attested that she saw job postings for open
dispatcher positions when she requested an accommodation—is sufficient to create
a dispute of fact about whether any dispatcher positions existed at that time.
Durham, 955 F.3d at 1282 & n.3. Rural/Metro’s only argument in support of its
second stated reason for failing to accommodate Ms. Durham is that its evidence that
no dispatcher positions existed outweighs Ms. Durham’s evidence that dispatcher
positions did exist. (Doc. 73 at 13–17; Doc. 77 at 10). The court cannot make
credibility determinations or weigh the evidence at the summary judgment stage.
See Hamilton, 680 F.3d at 1318. A reasonable jury could find that there were open
dispatcher positions when Ms. Durham requested an accommodation.
Rural/Metro makes no other arguments in support of summary judgment as to
the part of Ms. Durham’s claim relating to the denial of a dispatcher position as an
accommodation for her pregnancy-related work restrictions. Accordingly, the court
DENIES the motion for summary judgment with respect to that claim.
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IV.
CONCLUSION
The court GRANTS IN PART AND DENIES IN PART Rural/Metro’s
motion for summary judgment. The court GRANTS the motion as to any claim that
Rural/Metro discriminated against Ms. Durham by denying her a light duty position,
and WILL ENTER SUMMARY JUDGMENT in favor of Rural/Metro and
against Ms. Durham on that claim. However, the court DENIES the motion as to
the claim that Rural/Metro discriminated against Ms. Durham by denying her a
dispatcher position.
The court will enter a separate partial judgment consistent with this opinion.
DONE and ORDERED this November 30, 2020.
_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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