Carter v. A & E Supported Living, Inc.

Filing 25

MEMORANDUM OPINION AND ORDER 40 defendant's motion for summary judgment is DENIED. Signed by Magistrate Judge Katherine P. Nelson on 11/29/17. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CORRINE CARTER,
Plaintiff,
v.
A & E SUPPORTED LIVING, INC.,
Defendant.

)
)
)
)
)
)
)

CIVIL ACTION NO. 16-00574-N

MEMORANDUM OPINION AND ORDER
This action is before the Court on the motion for summary judgment under
Federal Rule of Civil Procedure 56 (Doc. 21) filed by Defendant A & E Supported
Living, Inc. (“A & E”). Plaintiff Corrine Carter has timely filed a response (Doc. 23)
in opposition to the motion, and A & E has timely filed a reply consisting of
objections (Doc. 24) to certain of Carter’s submissions in her response.1

The motion

is now under submission (see Doc. 22) and is ripe for disposition.

Upon

consideration, the Court finds that A & E’s motion for summary judgment (Doc. 40)
is due to be DENIED.
I.

Legal Standards

“A party may move for summary judgment, identifying each claim or
defense--or the part of each claim or defense--on which summary judgment is sought.
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a

With the consent of the parties, the Court has designated the undersigned Magistrate
Judge to conduct all proceedings and order the entry of judgment in this civil action, in
accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala.
GenLR 73. (See Docs. 11, 12).

1

matter of law.”

Fed. R. Civ. P. 56(a). “An issue of fact is ‘material’ if it might affect

the outcome of the suit under governing law and it is ‘genuine’ if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”

Ave. CLO

Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013) (quotations
omitted). “Summary judgment is only appropriate if a case is ‘so one-sided that one
party must prevail as a matter of law.’ ”

Quigg v. Thomas Cty. Sch. Dist., 814 F.3d

1227, 1235 (11th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)) (citation omitted).

However, a “ ‘mere scintilla’ of evidence is

insufficient; the non-moving party must produce substantial evidence in order to
defeat a motion for summary judgment.”

Garczynski v. Bradshaw, 573 F.3d 1158,

1165 (11th Cir. 2009) (per curiam). In other words, “there must be enough of a
showing that the jury could reasonably find for that party … Where the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party,
there is no genuine issue for trial.”

Allen v. Tyson Foods, Inc., 121 F.3d 642, 646

(11th Cir. 1997) (quotations omitted).
“[C]ourts are required to view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment motion.”
Jackson v. West, 787 F.3d 1345, 1352 (11th Cir. 2015) (quoting Scott v. Harris, 550
U.S. 372, 378 (2007) (alteration adopted) (quotations omitted)). See also Allen, 121
F.3d 642, 646 (11th Cir. 1997) (“The evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.” (quotations omitted)).
“The Court ‘must avoid weighing conflicting evidence or making credibility

determinations.’ ”

Ave. CLO Fund, 723 F.3d at 1294 (quoting Stewart v. Booker T.

Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000)). However, “ ‘an inference
based on speculation and conjecture is not reasonable.’ ”

Id. (quoting Blackston v.

Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985)).
“Where, as here, the non-moving party bears the burden of proof on an issue
at trial, the moving party, in order to prevail, must do one of two things: show that
the non-moving party has no evidence to support its case, or present ‘affirmative
evidence demonstrating that the nonmoving party will be unable to prove its case at
trial.’ ” Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting United
States v. Four Parcels of Real Property, 941 F.2d 1428, 1437–38 (11th Cir. 1991) (en
banc)). “Once the movant adequately supports its motion, the burden shifts to the
nonmoving party to show that specific facts exist that raise a genuine issue for trial.”
Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). “For issues
on which the non-moving party will bear the burden of proof at trial, the non-moving
party must either point to evidence in the record or present additional evidence
‘sufficient to withstand a directed verdict motion at trial based on the alleged
evidentiary deficiency.’ ”

Hammer, 20 F.3d at 1141 (quoting Fitzpatrick v. City of

Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993)).
“A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1).

“The nonmoving party may avail itself of all facts and justifiable inferences in the
record taken as a whole.”

Allen, 121 F.3d at 646 (quotation omitted).

“If

reasonable minds could differ on the inferences arising from undisputed facts, then a
court should deny summary judgment.”

Id. (quotation omitted).

“Conclusory

allegations and speculation are insufficient to create a genuine issue of material
fact.”

Valderrama v. Rousseau, 780 F.3d 1108, 1112 (11th Cir. 2015) (citing

Cordoba v. Dillard's Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does
not create a genuine issue of fact; instead, it creates a false issue, the demolition of
which is a primary goal of summary judgment.”)).
Importantly, “ ‘[t]here is no burden upon the district court to distill every
potential argument that could be made based on the materials before it on summary
judgment. Rather, the onus is upon the parties to formulate arguments; grounds
alleged in the complaint but not relied upon in summary judgment are deemed
abandoned.’ ”

Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012)

(per curiam) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995) (en banc)). Relatedly, while “it may consider other materials in the
record[,]” the “court need consider only the cited materials…”
56(c)(3) (emphasis added).

Fed. R. Civ. P.

II.

Factual Determinations

A & E operates several group homes for intellectually disabled individuals.
(Doc. 21-8 [Defendant’s Ex. 7, Ezell Aff.] at 1, ¶ 3). This involves providing a home
environment for them, and overseeing and assisting with their day-to-day schedule
and certain aspects of their medical treatment, including distribution of medication.
(Id.). Carter was hired by A & E as a certified nurse and began work on or about
May 6, 2015. (Id., ¶ 5; Doc. 21-3 [Defendant’s Ex. 2, Carter Depo.] at 2, p. 28).
Carter’s duties included significant interaction with the group home residents,
including assisting them with adult daily living such as bathing and dressing,
helping them in and out of bathtubs, general hygiene management, behavior
management, and general household duties.

(Doc. 21-8 at 1 – 2, ¶ 5). Due to the

nature of their disabilities, residents could become aggressive towards their
caregivers. (Doc. 21-2 [Defendant’s Ex. 1, Battiste Depo.] at 10).
Pamela Battiste is a registered nurse who works for A & E on a contract
basis as a medication assistant supervisor. (Id. at 2). With Battiste’s approval
and certification, unlicensed nurses such as Carter could, after passing certain
training, distribute medication to A & E residents. (Id. at 2 – 3). Battiste was the
sole decision-maker on whether to allow A & E employees to dispense medication
under her license.

(Id. at 10 – 11).

Unbeknownst to A & E, Carter was several months pregnant when she
started work there, though there is some dispute over whether Carter was aware of
her pregnancy at the time. A & E first became aware of the pregnancy on June 4,

2015, when Battiste met with Carter at one of A & E’s facilities to discuss setting up
a time for medication distribution training.
Carter.

(Id. at 4 – 5).

This was Battiste’s first time meeting

Carter requested that the training take place during

working hours because she often had doctor appointments on her off days due to her
high-risk pregnancy.

(Id. at 5).2

Carter also told Battiste that her doctor had

wanted to admit her to a hospital due to high blood pressure at a recent appointment
but didn’t because Carter’s children were with her. (Id. at 6).
According to Battiste, Carter “went ballistic” when Battiste gave her a date
for training, acted “upset” about another employee, and complained that A & E “was
so unprofessional.”

(Id. at 5 – 6). Battiste determined that she would not permit

Carter to dispense medication under her supervision because, in her opinion,
Carter’s behavior at the June 4 meeting was “unprofessional.”

(Id. at 11). 3

Without Battiste’s approval to dispense medication, Carter would be limited to
working the “third shift,” “ten to six.”

(Id. at 11 – 12).

On June 5, 2015, Carter was called into a meeting with two of A & E’s owners,
Andrella Andrews and Melissa Ezell. (Doc. 21-5 [Defendant’s Ex. 4, Ezell Depo.] at
2 – 3).

Battiste was also present.

(Id.).

Ezell informed Carter that A & E

In her charge of discrimination submitted to the Equal Employment Opportunity
Commission, which is dated July 17, 2015, and was signed by Carter under penalty of
perjury in substantial compliance with 28 U.S.C. § 1746, Carter claims Battiste first
raised the issue of pregnancy at the June 4 meeting by asking Carter if she was
pregnant. (Doc. 23-1 at 6).

2

Carter’s response brief generally disputes that she acted “unprofessionally” at the
meeting with Battiste, but she points to no deposition or affidavit testimony to
contradict Battiste’s statements that Battiste at least subjectively found Carter to have
behaved “unprofessionally.”

3

management was concerned about her high-risk pregnancy.

(Id. at 4 – 5).

Specifically, Ezell shared her concerns that Carter “was at risk to be hurt and [Ezell]
didn’t want that for her or her unborn child, for her baby; nor did [she] want to put
the people that [A & E] serve at risk…”

(Id. at 5). Ezell also informed Carter that

Battiste had declined to certify her to dispense medication due to her purported
“unprofessional behavior.”

(Id. at 5 – 6).

Ezell informed Carter that she would still be willing to let Carter work the
third shift. (Id.). However, Ezell required Carter to first obtain a doctor’s note
saying that it was okay for her to perform her duties at A & E, before she would be
placed back on shift. (Id. at 5). Ezell required that the note be very specific to
indicate that the doctor knew what Carter’s job entailed from a physical standpoint.
(Id.). Carter subsequently gave A & E management a letter dated June 12, 2015,
signed by a registered nurse rather than a doctor, stating that Carter “has not been
placed on any work restrictions and is deemed medically able to maintain her
current work schedule and job functions.”

(Doc. 21-6 [Defendant’s Ex. 5]). The

letter did not specifically indicate that the signatory knew what Carter’s job entailed
from a physical standpoint, as Ezell had requested. (Id.)
According to A & E, on June 16 or 17, 2015, Ezell and Andrews again met with
Carter. (Doc. 21-7 [Defendant’s Ex. 6, Andrews Depo.] at 7). They asked her to get
a supplemental letter providing “additional input from the doctor on…whether or
not he specifically was aware of the job duties [Carter] had to perform and the
conditions under which she had to perform them[.]”

(Id. at 8).

However, they

informed her that she was eligible to work the third shift, as well as the first and
second shifts on weekends where she could work alongside someone that Battiste
would allow to dispense medication.

(Id.). Carter was “instruct[ed] to get in touch

with management about working one of those shifts that she was eligible for” but
“never” did. (Id. See also Doc. 21-5 at 7 (Ezell testified that Carter was asked to let
A & E “know when she wanted to be put back on the schedule” but “was never put
back on the schedule…because she did not…say, okay, I’m ready to be put back on
the schedule.”)).
In her EEOC charge executed under penalty of perjury, Carter agrees that she
“was not returned to the schedule” after she provided the note. (Doc. 23-1 at 6).
However, Carter “denies that a second meeting took place.”

(Doc. 21-1 [Defendant’s

Opening Brief];4 Doc. 23 at 2 [Plaintiff’s Response Brief]).
III.

Analysis

“[E]mployment discrimination, including discrimination on the basis of
sex,” is prohibited by Title VII of the Civil Rights Act. California Fed.
Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 276–77, 107 S. Ct. 683, 687,
93 L. Ed. 2d 613 (1987). In response to a Supreme Court holding that
discrimination on the basis of pregnancy is not sex discrimination,
The deposition pages cited by A & E to support this statement (“Carter Depo. p.
79-80”) are not in the record. However, because Carter agrees in her response brief
that she “never met with nor had any contact with the Defendant after” dropping off the
letter (Doc. 23 at 2 – 3), the Court accepts for purposes of the present motion that Carter
denies the second meeting took place.
However, to the extent Carter’s brief otherwise claims she “never met with nor
had any contact with the Defendant after” dropping off the letter, and as to her claim
that she “tried to call the Defendant to be placed back on the schedule and be allowed to
resume work” (Doc. 23 at 2 – 3), the Court disregards these representations in deciding
the present motion. As A & E correctly points out in its objections to Carter’s response
(see Doc. 24 at 2), Carter cites no record evidence to support them. See Fed. R. Civ. P.
56(c)(1)(A).

4

Congress amended Title VII to include the Pregnancy Discrimination
Act (PDA). The PDA amended Title VII to add that discrimination
“because of sex” or “on the basis of sex,” includes discrimination “on the
basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C.
§ 2000e(k).
Hicks v. City of Tuscaloosa, Ala., 870 F.3d 1253, 1258 (11th Cir. 2017) (footnote
omitted). See also Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1254–55 (11th
Cir. 2012) (“As amended by the Pregnancy Discrimination Act, Title VII prohibits
employers from discriminating against employees because of pregnancy. 42 U.S.C. §
2000e–2(a)(1)–(2) (prohibiting discrimination ‘because of ... sex’); id. § 2000e(k) (‘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 ....’).”).

Carter’s complaint (Doc. 1 at 6 – 16)

alleges a single cause of action against A & E under Title VII for discrimination on
the basis of pregnancy or related medical conditions.
The analysis required for a pregnancy discrimination claim is the same
type of analysis used in other Title VII sex discrimination suits.
Maddox v. Grandview Care Center, Inc., 780 F.2d 987, 989 (11th Cir.
1986).
There are two types of discrimination actionable under Title VII. The
first is “disparate treatment,” or intentional discrimination. The
Supreme Court has provided the following explanation of disparate
treatment:
The employer simply treats some people less favorably than
others because of their race, color, religion, sex, or national
origin. Proof of discriminatory motive is critical, although it can
in some situations be inferred from the mere fact of differences in
treatment. Undoubtedly disparate treatment was the most
obvious evil Congress had in mind when it enacted Title VII.

Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.
15, 97 S. Ct. 1843, 1854-55 n. 15, 52 L. Ed. 2d 396, 415 n. 15 (1977)
(citations omitted)…
The second type of discrimination prohibited by Title VII is “disparate
impact.” The Supreme Court explains disparate impact as follows:
[Claims of disparate impact] involve employment practices that
are facially neutral in their treatment of different groups but
that in fact fall more harshly on one group than another and
cannot be justified by business necessity. Proof of discriminatory
motive, we have held, is not required under a disparate impact
theory.
Int'l Brotherhood of Teamsters v. United States, 431 U.S. at 335-36
n.15, 97 S. Ct. at 1854-55 n.15, 52 L. Ed. 2d at 415 n.15 (1977) (citations
omitted). Although a plaintiff must establish intentional discrimination
to prevail on a claim of disparate treatment, a claim of disparate impact
may succeed without any evidence whatsoever of intentional
discrimination.
Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312–13 (11th Cir. 1994).
Considering the allegations in Carter’s complaint and the parties’ briefing on the
present motion, it is clear that Carter is not asserting a Title VII disparate impact
claim.

Cf. Armstrong, 33 F.3d at 1314 (“Since a plaintiff need not establish

intentional discrimination, the analysis in cases alleging disparate impact involves
different issues of fact and types of evidence than the analysis required in disparate
treatment cases.

Disparate impact cases typically focus on statistical disparities

and on the various explanations for those disparities, rather than on specific
incidents.” (citation omitted)); Young v. United Parcel Serv., Inc., 135 S. Ct. 1338,
1345 (2015) (“[E]mployment discrimination law also creates what is called a
‘disparate-impact’ claim. In evaluating a disparate-impact claim, courts focus on the

effects of an employment practice, determining whether they are unlawful
irrespective of motivation or intent.”).5
“[A] plaintiff can prove disparate treatment either (1) by direct evidence that
a workplace policy, practice, or decision relies expressly on a protected
characteristic, or (2) by using the burden-shifting framework set forth in McDonnell
Douglas” Corp. v. Green, 411 U.S. 792 (1973). Young, 135 S. Ct. at 1345 (citing
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)).
Direct evidence is “evidence that, if believed, proves the existence of a
fact without inference or presumption.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1086 (11th Cir. 2004) (quotation marks omitted). “[O]nly
the most blatant remarks whose intent could mean nothing other than
to discriminate on the basis of some impermissible factor constitute
direct evidence of discrimination.” Id. (quotation marks omitted).
In cases involving circumstantial evidence, [courts] apply the
burden-shifting framework of McDonnell Douglas...The Supreme Court
developed this framework because it recognized that “direct evidence of
an employer's motivation will often be unavailable or difficult to
acquire.” Combs v. Plantation Patterns, 106 F.3d 1519, 1537 (11th Cir.
1997) (quotation marks omitted). Thus, the burden-shifting scheme of
McDonnell Douglas is a procedural device designed to help the parties
progressively “sharpen the inquiry into the elusive factual question” of
the employer's motivations. Tex. Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 n.8, 101 S. Ct. 1089, 1095 n.8, 67 L. Ed. 2d 207 (1981).
Under McDonnell Douglas, the plaintiff must initially establish a
prima facie case, which generally consists of the following: 1) the
plaintiff was a member of a protected class, 2) she was qualified to do
the job, 3) she was subjected to an adverse employment action, and 4)
similarly situated employees outside of the protected class were treated
differently. See Wilson, 376 F.3d at 1087, 1091. The prima facie case
serves the basic function of “eliminat[ing] the most common
Nor does the record support a finding that Carter is asserting what the Supreme Court
has “called a ‘pattern-or-practice’ claim.” Young, 135 S. Ct. at 1345.

5

nondiscriminatory reasons for the plaintiff's rejection”—namely, that
the employee was not qualified for the position. Burdine, 450 U.S. at
253–54, 101 S. Ct. at 1094. “The burden of establishing a prima facie
case ... is not onerous.” Id. at 253, 101 S. Ct. at 1094.
The prima facie case creates a presumption of discrimination, the role
of which is to “forc[e] the defendant to come forward with some
response.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510–11, 113 S.
Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993). Thus, once a plaintiff makes a
prima facie case, “the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions.”
Wilson, 376 F.3d at 1087. “The employer need not persuade the [finder
of fact] that it was actually motivated by the proffered reasons.” Id.
(quotation marks omitted). However, “the defendant must clearly set
forth ... the reasons for the plaintiff's rejection.” Burdine, 450 U.S. at
255, 101 S. Ct. at 1094.
Once the employer identifies a legitimate, nondiscriminatory reason for
its decision, the presumption of discrimination disappears, and the
burden shifts back to the plaintiff “to demonstrate that the proffered
reason was not the true reason for the employment decision.” Id. at 256,
101 S. Ct. at 1095. The plaintiff “cannot recast the reason but must
meet it head on and rebut it.” Wilson, 376 F.3d at 1088. The plaintiff
must
show
“weaknesses,
implausibilities,
inconsistencies,
incoherencies, or contradictions” in the employer’s rationale. Combs,
106 F.3d at 1538 (quotation marks omitted). To do so, the plaintiff may
rely on the evidence offered initially to establish the prima facie case.
Wilson, 376 F.3d at 1088.
At this stage, the plaintiff's burden of rebutting the employer's
proffered reasons “merges with the [plaintiff's] ultimate burden of
persuading [the finder of fact] that she has been the victim of
intentional discrimination.” Burdine, 450 U.S. at 256, 101 S. Ct. at
1095. Thus, “the question becomes whether the evidence,” when viewed
as a whole, “yields the reasonable inference that the employer engaged
in the alleged discrimination.” Smith v. Lockheed–Martin Corp., 644
F.3d 1321, 1326 (11th Cir. 2011). Put another way, the issue is whether
there is “a convincing mosaic of circumstantial evidence that would
allow a jury to infer intentional discrimination.” Id. at 1328 (quotation
marks and footnote omitted).

Holland v. Gee, 677 F.3d 1047, 1055–56 (11th Cir. 2012).
A & E’s opening brief assumes that Carter cannot present direct evidence of
pregnancy discrimination and argues she cannot establish a prima facie case of
discrimination under McDonnell Douglas/Burdine, because she cannot present
evidence that she was either subject to an adverse employment action or treated
differently than a similarly situated non-pregnant employee.

As Carter correctly

points out in her response, however, A & E itself provides direct evidence of
pregnancy discrimination, admitting that A & E management removed Carter
entirely from the work schedule6 because of her pregnancy and/or the related “high
risk” conditions.7

That A & E may have done this out of benevolent concern for the

health and safety of Carter and her unborn child does not excuse the discriminatory
nature of its actions.8

Thus, because Carter has cited direct evidence of pregnancy

It is uncontroverted that Battiste was not going to permit Carter to dispense
medications, thus drastically limiting what shifts she could work. Nevertheless, the
evidence indicates that Carter still would have had the option to work the third shift
even without being able to dispense medication.

6

See Torres-Skair v. Medco Health Sols., Inc., 595 F. App’x 847, 852–53 (11th Cir. 2014)
(per curiam) (unpublished) (“In Holland[ v. Gee], this Court found direct evidence of
discrimination where the decision maker explicitly testified that part of his reasoning
for transferring the plaintiff was her pregnancy. 677 F.3d at 1058. Clearly, if believed,
the testimony in Holland proved that the plaintiff's pregnancy was a motivating factor
for the transfer decision.”). Cf. Crawford v. Dolgen Corp. Inc., 790 F. Supp. 2d 1361, 1367
(S.D. Ala. 2011) (DuBose, J.) (store manager’s statements that “she didn't think it was
going to work that Plaintiff was pregnant, that she couldn't have her go out on
maternity leave, and that she was going to have to get rid of Plaintiff...constitute direct
evidence that Plaintiff's termination was prompted by her pregnancy” (quotations
omitted)).

7

See Hayes, 726 F.2d at 1547–48 (“Initially, the Hospital argues that we should analyze
this case under the pretext theory as set forth in Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)… The Hospital

8

discrimination, the Court need not determine whether she has presented sufficient
circumstantial evidence under the McDonnell Douglas/Burdine test.9

See Gate

argues that its stated reason for firing Hayes-to protect her fetus from the harmful
effects of radiation-is a sufficient nondiscriminatory reason to shift the burden back to
Hayes to prove pretext. The Hospital then argues that Hayes failed to prove that its
reasons for firing her were a pretext for discrimination. []Prior to passage of the
Pregnancy Discrimination Act, the Hospital’s Burdine argument might have had some
merit, because pregnancy was considered a legitimate, nondiscriminatory basis for
differential treatment. That is no longer the case, however, because the Pregnancy
Discrimination Act mandates that a pregnancy-based rule can never be ‘neutral.’ In
other words, firing Hayes because she was pregnant is just as facially discriminatory
under the Pregnancy Discrimination Act as it would be to fire her solely because she was
black under Title VII. Therefore, Burdine is inappropriate here, since the Hospital
admits that Hayes was fired because of her pregnancy, rather than because of some
other, potentially non-discriminatory reason…”). Cf. Armstrong, 33 F.3d at 1315–16
(“With the PDA, Congress made clear that the decision to become pregnant or to work
while being either pregnant or capable of becoming pregnant was reserved for each
individual woman to make for herself. The right to make this decision rests with the
woman. She may choose to continue working, to seek a work situation with less
stringent requirements, or to leave the workforce. In some cases, these alternatives may,
indeed, present a difficult choice. But it is a choice that each woman must make…An
employer is generally prohibited from deciding for a pregnant employee what course of
action is best for her.” (citation and quotation omitted).
A & E has argued that Carter’s removal from the work schedule does not arise to the
level of an “adverse employment action.” Though A & E makes this argument only in
the context of arguing Carter cannot establish a McDonnell Douglas prima facie case,
“[i]n a Title VII case, an adverse employment action is not only an element of the prima
facie case, but also of the claim itself.” Holland, 677 F.3d at 1056 (citations omitted).

9

To prove an adverse employment action in a case under Title VII's
anti-discrimination clause, an employee must show a serious and material
change in the terms, conditions, or privileges of employment. The
employment action must be materially adverse as viewed by a reasonable
person in the circumstances…Title VII does not require proof of direct
economic consequences in all cases. Thus, a transfer can be adverse if it
involves a reduction in pay, prestige or responsibility.
Id. at 1057 (citations and quotations omitted). Certainly, being removed entirely from
the work schedule reduced Carter’s responsibility. Moreover, Carter’s response brief
asserts that A & E “did not continue to pay her when she was taken off the schedule.”
(Doc. 23 at 5). While Carter’s brief cites no record evidence to directly support this

Gourmet, 683 F.3d at 1255 (“A plaintiff may use either direct or indirect evidence to
show

that

her

employer

discriminated

against

her

because

of

her

pregnancy…Indirect evidence is circumstantial evidence.” (emphasis added)
(quotation omitted)).10

statement, it is a reasonable inference to draw from the record evidence. Moreover,
while A & E objects to certain statements in Carter’s brief as “purely a statement of
Plaintiff’s counsel…not supported by” evidence, A & E does not specifically object to the
statement that A & E did not continue to pay Carter. Accordingly, the undersigned
finds that the record supports a determination that Carter experienced an adverse
employment action for purposes of Title VII.
While A & E claims that the removal was too temporary to constitute an adverse
action because A & E management offered to return her to the work schedule at the
second meeting, Carter disputes that the second meeting took place. Thus, there is a
genuine issue of material fact as to the temporary nature of the removal.
The Eleventh Circuit Court of Appeals has “identified two separate theories of
disparate treatment.” Armstrong, 33 F.3d at 1313 (citing Maddox v. Grandview Care
Center, 780 F.2d 987, 990 (11th Cir. 1986)). The court of appeals explained these
theories in Maddox as follows:

10

In order to prevail on a claim of disparate treatment under Title VII…, a
plaintiff must prove that her employer unlawfully discriminated against
her because of her protected classification. There are several methods by
which a plaintiff can achieve this. In Hayes v. Shelby Memorial Hospital,
726 F.2d 1543 (11th Cir. 1984), this court provided a concise framework for
the pursuit of claims under the most prevalent theories. Under the
“pretext theory,” a plaintiff must establish a prima facie case, which gives
rise to a rebuttable presumption of unlawful discrimination. Much has
been written concerning what constitutes a prima facie case of
discrimination under Title VII. The Supreme Court first drew a blueprint
for establishing a prima facie case of disparate treatment in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed .2d 668
(1973), and further refined the procedures in Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d
207 (1981). A defendant can then rebut this presumption by articulating a
“legitimate, nondiscriminatory reason” for its actions. In order for the
plaintiff to prevail, she must persuade the factfinder that the proffered
reason is a pretext for discrimination. Under the “facial discrimination”

IV.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that A & E’s
motion for summary judgment (Doc. 21) is DENIED.11
DONE and ORDERED this the 29th day of November 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

theory, the plaintiff establishes a presumption that the case is one of facial
discrimination by showing that the “policy by its terms applies only to
women or pregnant women.” Hayes, 726 F.2d at 1548. The employer can
rebut this presumption by showing that in spite of its appearance of
differential treatment, the policy is neutral in that it equally affects all
employees or that it is a bona fide occupational qualification.
Maddox, 780 F.2d at 989–90 (footnote omitted). It appears Carter’s use of direct
evidence of discrimination supports a “facial discrimination” theory. See Armstrong,
33 F.3d at 1313 (“A plaintiff alleging a claim of disparate treatment must establish that
the employer intended to discriminate against the protected group. If direct evidence
of discriminatory intent is not available, a plaintiff may present circumstantial
evidence from which an inference of intentional discrimination may be drawn…The
first step in a claim of disparate treatment, based on a theory of ‘pretext’ and
supported by circumstantial evidence, is for the plaintiff to establish a prima facie
case which creates a rebuttable presumption of unlawful discrimination.” (emphasis
added)). However, A & E has not addressed this distinction at all in its summary
judgment briefing, much less the heavy burden of rebutting a presumption of “facial
discrimination.” See Hayes, 726 F.2d at 1549 (“We hold that when a policy designed to
protect employee offspring from workplace hazards proves facially discriminatory, there
is, in effect, no defense, unless the employer shows a direct relationship between the
policy and the actual ability of a pregnant or fertile female to perform her job.”).
Any of A&E’s objections (Doc. 24) not expressly addressed herein are MOOT, as the
Court finds it unnecessary to consider those objected-to submissions in deciding the
present motion.

11