Price v. UTI, United States, Inc. et al

Filing 36

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant UTi, United States, Inc.s motion for summary judgement is GRANTED in part and DENIED in part. The motion is GRANTED to the extent defendant is entitled to summary judgment on plaintiffs claims under the Family and Medical Leave Act and for disparate treatment under the Americans with Disabilities Act. In all other respects, the motion is DENIED. [Doc. 31] A Partial Judgment will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 3/5/2013. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JENNIFER PRICE,
Plaintiff,
v.
UTI, UNITED STATES, INC.,
Defendants.

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No. 4:11-CV-1428 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendant UTi, United States, Inc.’s (“UTi”) motion for
summary judgment as to all counts against it. Plaintiff opposes the motion, which is fully briefed
and ripe for review. For the following reasons, the Court will grant defendant’s motion in part, and
deny the motion in part.
I. Background
In her complaint, plaintiff alleges claims of gender and pregnancy discrimination under Title
VII of the Civil Rights Act of 1964 (“Title VII”) (Count I); disability discrimination and failure to
accommodate under the American with Disabilities Act (“ADA”) (Count II); gender, pregnancy, and
disability discrimination under the Missouri Human Rights Act (“MHRA”) (Count III); violations
of the Family and Medical Leave Act (“FMLA”) (Count IV); and breach of implied contract,
promissory estoppel, and equitable estoppel under Missouri law (Count VI).1
Defendant UTi argues it is entitled to summary judgment as to all claims against it. It moves
for summary judgment arguing that: (1) plaintiff received full benefits and protections under the

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Plaintiff also brought FMLA claim against two individual alias defendants “John Doe” and
“Jane Roe” (Count V). Plaintiff has voluntarily dismissed her claims against these defendants. See
Doc. 33.

FLMA in that she was granted 12 weeks leave; (2) plaintiff failed to establish a prima facie case of
pregnancy discrimination under Title VII and the MHRA because she was not pregnant at the time
she was terminated, and she has not identified persons who were not pregnant who were more
favorably treated; (3) plaintiff cannot establish that she was disabled within the meaning of the ADA
because even taking the evidence in a light most favorable to plaintiff, she only had pregnancyrelated complications that did not exist after she gave birth or at the time of the termination of her
employment; (4) there is no evidence that UTi failed to accommodate plaintiff’s alleged disability,
because plaintiff failed to participate in an interactive process, and the company did not have
adequate information as to when plaintiff could return to work; and (5) plaintiff’s claims of breach
of implied contract, promissory estoppel, and equitable estoppel fail because plaintiff’s claims
require the Court to disregard plaintiff’s employment at-will status and enforce a contract of
employment for a definite term that did not exist.
II. Standard
The standards applicable to summary judgment motions are well-settled. Pursuant to Federal
Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the
information before the court shows “there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The initial burden is placed on the moving party. City of Mt. Pleasant, Ia. v. Associated
Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly
establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor).
Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then
shifts to the non-moving party who must set forth affirmative evidence and specific facts showing

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there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings,
but by affidavit and other evidence he or she must set forth specific facts showing that a genuine
issue of material fact exists. Fed. R. Civ. P. 56(e); Herring v. Canada Life Assur. Co., 207 F.3d
1026, 1029 (8th Cir. 2000). The non-moving party “must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). A dispute about a material fact is “genuine” only “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Herring, 207 F.3d
at 1029 (quoting Anderson, 477 U.S. at 248). A party resisting summary judgment has the burden
to designate the specific facts that create a triable question of fact. See Crossley v. Georgia-Pacific
Corp., 355 F.3d 1112, 1114 (8th Cir. 2004). “Self-serving, conclusory statements without support
are not sufficient to defeat summary judgment.” Armour and Co., Inc. v. Inver Grove Heights, 2
F.3d 276, 279 (8th Cir. 1993).
In passing on a motion for summary judgment, it is not the court’s role to decide the merits.
The court should not weigh evidence or attempt to determine the truth of a matter. Rather, the court
must simply determine whether a genuine issue of material fact exists. Bassett v. City of
Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000).
III. Discussion
In her memorandum in opposition to the motion for summary judgment, plaintiff concedes
summary judgment on Count IV for violations of the FMLA. She also states that she is not
proceeding under “a discriminatory disparate treatment” theory under the ADA. The Court will

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grant defendant UTi summary judgment as to these two claims. As for the remaining claims, after
reviewing the record and the parties’ memoranda in support and opposition to summary judgment,
the Courts finds there remain disputes of facts that preclude summary judgment.
A.

Gender and Pregnancy Discrimination

Based on the record before the Court, plaintiff has met her burden of establishing that there
are facts in the record to create a genuine issue of material fact that she was disparately treated based
on her gender and pregnancy.2 The fact that plaintiff was not pregnant at the time of her termination
does not preclude her claim under Title VII or the MHRA. “[S]ex-based discrimination under Title
VII includes discrimination based on “pregnancy, childbirth, or related medical conditions.” 42
U.S.C. § 2000e(k). Wierman v. Casey’s General Stores, 638 F.3d 984, 993 (8th Cir. 2011) (citing
to 42 U.S.C. § 2000e(k)). See also Snyder v. Yellow Transp., Inc., 321 F.Supp. 2d 1127, 1131 (E.D.
Mo. 2004) (Title VII pregnancy discrimination applied to woman who was fired while she was
recovering from a difficult pregnancy); Self v. Midwest Orthopedics Foot & Ankle, P.C., 272
S.W.3d 364, 371 (Mo. Ct. App. 2008) (discharged related to pregnancy is covered under MHRA).
There is evidence in this case to establish a prima facie case of gender and pregnancy discrimination
in that: 1) plaintiff was a member of a protected group; 2) she was qualified for her position; 3) she
suffered an adverse employment action; and 4) she was discharged under circumstances giving rise
to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973);

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In her response memorandum, plaintiff argues, among other things, that defendant’s leave
policies disparately impacted pregnant women in violation of Title VII. Plaintiff did not plead
disparate impact under Title VII in her complaint and, therefore, she cannot go forward on this
claim. Jackson v. United Parcel Service, Inc., 643 F.3d 1081, 1087 (8th Cir. 2011) (holding district
court properly granted summary judgment on claims not raised in complaint).
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Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002);Spencer v. Stuart Hall Co., 173 F.3d
1124 (8th Cir. 1999). Plaintiff is not required to show that a comparable non-protected employee
was treated better, Wierman, 638 F.3d at 993; she need only show that she was discharged under
circumstances giving rise to an inference of discrimination, which plaintiff has done in that she was
terminated approximately three weeks after she gave birth and while she was still recovering from
a cesarean section. Smith v. Allen Health Sys., Inc., 302 F.3d 827, 835 (8th Cir. 2002) (holding that
a two-week interval between an employee’s FMLA leave and subsequent discharge was “sufficient,
but barely so, to establish causation,” and noting that the McDonnell Douglas framework “requires
only a minimal showing before requiring the employer to explain its actions”). UTi has offered a
nondiscriminatory reason for her discharge, but plaintiff has also pointed to evidence in the record
to suggest that UTi’s stated non-discriminatory reason for her discharge was pretexual in that the
company has given conflicting information regarding her leave and the reasons for her discharge.
Id. There is also evidence in the record to suggest that plaintiff’s pregnancy was a contributing
factor in the decision to terminate her employment. See Daugherty v. City of Maryland Heights, 231
S.W.3d 814, 821 (Mo. 2007) (“contributing factor” standard is appropriately applied to a summary
judgment analysis in employment discrimination cases).
B.

Disability Discrimination - Failure to Accomodate

Defendant is also not entitled to summary judgment on plaintiff’s ADA claim for failure to
accommodate. The ADA mandates that companies like UTi provide “reasonable accommodations
to the known physical . . . limitations of an otherwise qualified individual with a disability who is
an . . . employee, unless [it] can demonstrate that the accommodation would impose an undue
hardship.” 42 U.S.C. § 12112(b)(5)(A) (1994).

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Contrary to defendant’s argument, there is evidence in the record that plaintiff was disabled
within the meaning of the ADA. The term “disability” includes a physical or mental impairment that
substantially limits one or more major life activities. 42 U.S.C. § 12102(1). The ADA Amendments
Act expanded the standard for determining whether an impairment substantially limits a major life
activity. See ADA Amendments Act of 2008, Pub.L. No. 110-325, § 8, 122 Stat. 3553-54, 3559
(2008).3 The regulations specify that “substantially limits” is to be “construed broadly in favor of
expansive coverage” and “is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i).
Under these regulations, an impairment “need not prevent, or significantly or severely restrict, the
individual from performing a major life activity” to be substantially limiting. Id. § 1630.2(j)(1)(ii)
(abrogating Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002)).
In addition, an impairment need not be permanent or long-term, and it meets the definition
of “substantially limits” under the ADA if it is “episodic or in remission . . . [and] would
substantially limit a major life activity when active.” 29 C.F.R. § 1630.2(j)(1)(vii). The Equal
Employment Opportunity Commission Interpretive Guidance excludes pregnancy itself as a physical
impairment. 29 C.F.R. Pt. 1630, App. § 1630.2(h) (“conditions, such as pregnancy, that are not the
result of a physiological disorder are also not impairments”). However, a “physical impairment”
includes any physiological disorder or condition that affects the reproductive systems, which can
be an impairment or complication related to pregnancy. See 29 C.F.R. 1630.2(h)(1). Taking the
evidence in a light most favorable to plaintiff, there is evidence in the record that plaintiff was

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The ADA Amendments Act, which broadened the definition of what constitutes a disability,
applies to this case. Congress enacted the amendments in 2008, which became effective January 1,
2009. Plaintiff went on leave on December 1, 2009, and her employment was terminated on or about
March 31, 2010.
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disabled within the meaning of the ADA because there is evidence that plaintiff suffered multiple
physiological disorders and conditions that affected her reproductive system.
Defendant is also not entitled to summary judgment on plaintiff’s failure to accommodate
claim based on its arguments that plaintiff failed to participate in an interactive process, and that the
company did not have adequate information as to when plaintiff could return to work. There remain
factual disputes that preclude summary judgment as to these issues.
C.

State Law Claims

In Count VI, plaintiff brings claims of breach of implied contract, promissory estoppel, and
equitable estoppel under Missouri state law.4 The essential elements of a claim of promissory
estoppel are: a promise, detrimental reliance on the promise in a way in which the promisor should
have or did foresee, and an injustice which can only be avoided by enforcement of the promise.
Clark v. Washington Univ., 906 S.W.2d 789, 792 (Mo. Ct. App. 1995); Townes v. Jerome L. Howe,
Inc., 852 S.W.2d 359, 360 (Mo. Ct. App. 1993). “An employee must prove his [or her] employer
made a promise in a contractual sense and may not use promissory estoppel to recover against a
former employer where an employment contract could not be proven.” Clark, 906 S.W.2d at 792.
For example, the doctrine of promissory estoppel cannot remove oral employment contracts from

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Equitable estoppel is not a claim under Missouri law; it is a defense. BancorpSouth Bank
v. Paramont Properties, L.L.C., 349 S.W.3d 363, 367 (Mo. Ct. App. 2011); White v. White, 293
S.W.3d 1, 16 (Mo. Ct. App. 2009) (citing to Black’s Law Dictionary 590 (8th ed. 2004). The Court,
therefore, does not discuss plaintiff’s equitable estoppel claim further.
In her response memorandum, plaintiff asserts that in Court VI she has alleged “an FMLA
equitable estoppel claim” pursuant to Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002).
See Doc. 31 at 13.The Duty case did not involve a claim under Missouri law, but rather the plaintiff
used the doctrine of equitable estoppel as a defense to avoid dismissal of her federal FMLA claim.
Duty, 293 F.3d at 493-94. The Duty case is not applicable to the current dispute, because plaintiff
has conceded UTi is entitled to summary judgment as to her FMLA claims.
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the statute of frauds. Venable v. Hickerson, Phelps, Kirtley & Associates, 903 S.W.2d 659, 663
(Mo. Ct. App. 1995).
Under Missouri law, “a contract implied in law is imposed, or created, without regard to the
promise of the party to be bound . . . . Thus, a contract implied in law is not actually a contract and,
instead, is an obligation to do justice where no promise was ever made or intended.” Johnson v.
Estate of McFarlin ex rel. Lindstrom, 334 S.W.3d 469, 474 (Mo. Ct. App. 2010). Courts sometimes
use the term “quasi-contract” instead of implied contract. See Karpierz v. Easley, 68 S.W.3d 565,
570 (Mo. Ct. App. 2002). “The essential elements of quasi-contract are: (1) a benefit conferred upon
the defendant by the plaintiff; (2) appreciation by the defendant of the fact of such benefit; and (3)
acceptance and retention by the defendant of that benefit under circumstances in which retention
without payment would be inequitable.” Pitman v. City of Columbia, 309 S.W.3d 395, 402 (Mo. Ct.
App. 2010).
Defendant argues that plaintiff’s claims of breach of implied contract and promissory
estoppel fail because plaintiff’s claims require the Court to disregard plaintiff’s employment at-will
status and enforce a contract of employment for a definite term that did not exist. Defendant also
argues plaintiff’s reliance on any alleged promise was not reasonable. The Court finds that
defendant has not met its burden to establish that it is entitled to judgment as a matter of law as to
these claims. With respect to plaintiff’s promissory estoppel claim, although it is disputed, there is
evidence in the record that UTi or its agent CIGNA promised plaintiff a leave of absence of twentytwo weeks or leave up until the time she was able to return to work. In general, Missouri is an atwill employment state. Dake v. Tuell, 687 S.W.2d 191 (Mo. 1985); Boyle v. Vista Eyewear, Inc.,
700 S.W.2d 859 (Mo. Ct. App. 1985). However, it is clear that the doctrine of promissory estoppel

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can create contract-like duties where they otherwise did not exist under at-will employment. Tippit
v. Jepco, Inc., 726 S.W.2d 877, 878 (Mo. Ct. App. 1987). Whether the alleged promise made to
plaintiff was definitive enough, and whether plaintiff’s reliance was reasonable, are matters for the
finder of fact.
As to plaintiff’s implied contract claim, defendant has not articulated the elements of the
claim under Missouri law or explained how plaintiff has failed to establish them. Defendant merely
argued, without citation to legal authority addressing the concept of implied contract, that plaintiff
cannot assert such a claim because she was an at-will employee. Defendant therefore fails to meet
its initial burden on summary judgment and this aspect of its motion is denied.5
IV. Conclusion
Plaintiff concedes summary judgment as to her claims under the FMLA and for disparate
treatment under the ADA. As for plaintiff’s remaining claims, the Court finds defendant has not met
its burden of establishing that it is entitled to summary judgment on plaintiff’s discrimination claims
under Title VII and the MHRA, claim of failure to accommodate under the ADA, and claims of
promissory estoppel and implied contract under Missouri state law.
Accordingly,
IT IS HEREBY ORDERED that defendant UTi, United States, Inc.’s motion for summary
judgement is GRANTED in part and DENIED in part. The motion is GRANTED to the extent
defendant is entitled to summary judgment on plaintiff’s claims under the Family and Medical Leave

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The Court does note that after reviewing the record and the allegations in this case, it
seems unlikely plaintiff could prove the elements of implied contract at trial.
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Act and for disparate treatment under the Americans with Disabilities Act. In all other respects, the
motion is DENIED. [Doc. 31]
A Partial Judgment will accompany this Memorandum and Order.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 5th

day of March, 2013

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