Meadors et al v. Ulster County et al
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiff Legg's disparate impact claim pursuant to 42 U.S.C. § 2000e(k) is DISMISSED. Signed by Senior Judge Frederick J. Scullin, Jr. on 7/27/2017. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANN MARIE LEGG; NANCY REYES;
ULSTER COUNTY; PAUL J. VANBLARCUM,
in his official capacity as Sheriff of the County of
Ulster and individually; RICHARD BOCKELMANN,
in his official capacity as Sheriff of the County of Ulster
and individually; BRADFORD EBEL, in his official
capacity as Superintendent of the Ulster County Jail and
individually; and RAY ACEVEDO, in his official capacity as
Deputy Superintendent of Ulster County Jail and
KLAPROTH LAW PLLC
406 5th Street, NW
Washington, D.C. 20001
Attorneys for Plaintiffs
BRENDAN J. KLAPROTH, ESQ.
RANNI LAW FIRM
148 North Main Street
Florida, New York 10921
Attorneys for Plaintiffs
JOSEPH J. RANNI, ESQ.
BERGSTEIN & ULRICH, LLP
5 Paradies Lane
New Paltz, New York 12561
Attorneys for Plaintiffs
STEPHEN BERGSTEIN, ESQ.
ROEMER WALLENS GOLD &
13 Columbia Circle
Albany, New York 12203
Attorneys for Defendants
EARL T. REDDING, ESQ.
MATTHEW J. KELLY, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
Pending before the Court are the parties' proposed findings of fact and conclusions of law
with regard to Plaintiff Legg's disparate impact claim pursuant to the Pregnancy Discrimination
Act 1 ("PDA"). See Dkt. Nos. 191, 192.
Plaintiff Legg was a corrections officer at the Ulster County Jail and, on May 11, 2009,
she filed this lawsuit along with three other corrections officers, pursuant to Title VII of the Civil
Rights Act of 1964 ("Title VII"), New York State Human Rights Law ("NYSHRL"), and 42
U.S.C. § 1983. Among various other claims, Plaintiff Legg asserted claims of pregnancy
The PDA added a definitional provision to Title VII, which provided, in relevant part, that
[t]he terms "because of sex" or "on the basis of sex" include, but are not limited to,
because of or on the basis of pregnancy . . .; and women affected by pregnancy, . .
. 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. § 2000e(k).
discrimination against all Defendants under the PDA and state law. The basis for her claim was
that Defendants denied her request for light-duty assignments during her pregnancy, and she was
consequently required to work directly with inmates.
On January 7, 2011, Defendants filed a motion for summary judgment arguing that
Plaintiffs' claims failed for various reasons. See Dkt. No. 29. In a Memorandum-Decision and
Order, the Court dismissed several of Plaintiffs' claims. However, the Court determined that a
trial was necessary to adjudicate, among others, Plaintiff Legg's PDA claim against Defendant
County. See generally Dkt. Nos. 55, 98.
After Plaintiffs presented their case-in-chief, Defendants moved for a directed verdict on
all of Plaintiffs' claims, including Plaintiff Legg's PDA claim. The Court granted Defendants'
motion as to Plaintiff Legg's PDA claim after concluding that Defendants' light-duty policy was
applied neutrally to all employees and, thus, could not form the basis for a PDA claim. See Dkt.
No. 101; see also Dkt. No. 165 at 613-15.
Plaintiff Legg appealed to the Second Circuit Court of Appeals, arguing that the Court
had erred in dismissing her PDA claim. See Dkt. Nos. 113. The Second Circuit first noted that,
while the appeal was pending, the Supreme Court had held in Young v. United Parcel Serv., Inc.,
135 S. Ct. 1338 (2015), "that an employer's facially neutral accommodation policy gives rise to
an inference of pregnancy discrimination if it imposes a significant burden on pregnant
employees that is not justified by the employer's non-discriminatory explanation." Legg v. Ulster
Cty., 820 F.3d 67, 70 (2d Cir. 2016). Therefore, based on this new controlling precedent, the
Second Circuit vacated the Court's directed verdict regarding Plaintiff Legg's PDA claim and
instructed the Court to hold a new trial.
The Court thereafter held a trial regarding Plaintiff Legg's PDA claim. In that regard, the
Court bifurcated the case to allow a jury to decide whether Plaintiff had established a disparate
treatment claim 2 and directed the parties to file proposed findings of fact and conclusions of law
with respect to Plaintiff Legg's disparate impact claim.
Findings of fact
1. The Ulster County jail and posts available 3
The Ulster County Jail ("Jail") has three shifts, A Line, B Line, and C Line. See Dkt. No.
194 at 3. In 2008, correction officers did not bid for their posts but were allowed to bid on their
shifts. See id. at 79. With regard to posts, Sergeant Ferro and Corporal Reeves had discretionary
authority to prepare the schedule. See id. at 8-9. Officers were therefore rotated to posts
throughout the Jail. See id. at 163. In 2008, Plaintiff was qualified to work any position in the
Jail. See Dkt. No. 195 at 16.
The Jail had eight Pods, each of which was a 48-cell housing unit that housed up to 60
inmates. See Dkt. No. 194 at 9. In each Pod, inmates were able to walk freely and socialize in a
common area. See id. at 10. A-Pod housed 16-18 year-old men. See id. at 11. B-Pod housed
rapists, sex offenders, and suicide risks. See id. at 18-22. C-Pod housed "maximum security"
male inmates, who had committed dangerous crimes. See id. at 12. D-Pod, G-Pod and I-Pod
housed male inmates in the general population. See id. at 12-14. F-Pod housed female inmates.
See id. at 13. H-Pod housed disciplinary/classification male inmates. See id. at 13. Dorm 2 was
The jury found that Plaintiff had failed to establish a disparate treatment claim.
This section largely adopts Plaintiff's uncontradicted recitation of the facts.
a smaller male housing unit that included a bathroom. See id. at 14-15. One correction officer
supervised each Pod as well as Dorm 2. See id. at 11, 15. In these Pods and Dorm 2, the
correction officer had direct contact with inmates. See id. at 14, 16, 152.
Correction officers had more limited inmate contact in Medical, K-Pod and Dorm 1. See
id. at 22, 26. Dorm 1 was the "trustee's pod," where up to 24 inmates were housed who were
pre-screened to ensure they did not have a violent background. See id. at 22, 23. One officer
worked in Dorm 1 per shift. See id. at 23. K-Pod was a work-release program that housed
inmates who were preparing to leave the Jail. See id. at 24, 25. One officer supervised K-Pod
per shift. See id. at 24. Furthermore, one officer was assigned the Medical Unit per shift. See
id. at 26.
At the Jail, light-duty assignments were Central Control and Reception. See Dkt. No. 195
at 29; see also Dkt. No. 191-7 at 5. Correction officers had no contact with inmates while
working in Central Control. See Dkt. No. 194 at 16, 18, 85, 154. Officers in Central Control did
not respond to emergencies in the Jail. See id. at 78. Officers did not bid for Central Control;
rather, they were assigned the position at the chart officer's discretion. See id. at 18, 163, 127128. Each day, five officers worked in Central Control: two each on the day and evening shifts
and one on the overnight shift. See id. at 89. Correction officers also had no contact with
inmates when they worked in Reception. See id. at 16, 19. Officers in Reception did not
respond to emergencies in the Jail. See id. at 78. Officers did not bid to work in Reception;
rather, they were assigned the position. See id. at 19.
2. Defendant's light-duty policy
The parties agree that the relevant policy is the "Line of Duty Injuries/Light Task
Assignment" (hereinafter, the "Policy") procedure guide. See Dkt. No. 191-7. However, the
parties disagree on how Defendant implemented the Policy. Defendant, on the one hand, argues
that its Policy was not intended to provide light-duty accommodations for employees; rather, it
was meant to provide the Sheriff with a tool to force employees who were injured on the job to
return to at least light-duty because, pursuant to N.Y. Gen. Mun. Law § 207-c, the County had to
pay their full salary regardless of whether they worked. To the contrary, Plaintiff argues that the
Policy allowed only those injured on the job to request light-duty accommodations; and the
Sheriff would then, at his discretion, choose whether to assign such duties.
a. The Policy and testimony presented at trial
The Policy's stated purpose is "[t]o establish procedure concerning employee's (sic)
injured in the line of duty and light task assignments." See Dkt. No. 191-7 at 2. Furthermore,
the Policy provides that "[i]t is the policy of the Ulster County Sheriff's Office . . . to provide,
whenever practicable, light duty task assignments for injured employees capable of performing
such tasks." See id. In the section discussing line-of-duty injury status leave, the Policy explains
[i]n a case where an employee is on line of duty injury status leave or authorized
sick leave and that employee is injured or recovering from injury and the extent of
the injury would prevent the employee from performing full duty status
assignments, whenever possible, the employee may be required to perform light
See id. at 5.
The Policy continues under the heading "LIGHT TASK ASSIGNMENTS" to state that,
"[i]f it is determined, by physical examination, that a Corrections Officer is able to perform
'Light Task' he/she may be ordered to return to work." See id.
Moreover, in the letter Undersheriff Fallutico sent to Plaintiff explaining why she would
not receive light-duty accommodations, he stated that "Employees are afforded light duty
assignments at the Sheriff's discretion for work-related injuries/illnesses only (207-C or Workers
Compensation)." See Dkt. No. 191-5.
The trial testimony further included the following discussions regarding the light-duty
Policy. Sheriff Van Blarcum testified that he had never provided light-duty to any pregnant
employees. See Dkt. No. 194, Trial Transcript ("TT"), at 66. In explaining why, he stated that
"[w]e have line-of-duty policy which covers 207(c) Municipal Law, which only covers duties if
you get hurt in the line of duty." See id. at 66:23-25-67:1. Sheriff Van Blarcum further testified
that the written Policy did not cover people who were on sick leave. See id. at 67. Moreover, in
explaining why the Policy exists, he testified that, "[i]f somebody is out of work, we have to
replace that person. So it's advantageous to the employer to bring somebody back to fill the slot
so we don't have to backfill that slot." See id. at 70:6-9. Sheriff Van Blarcum also testified that
to his knowledge no officer had shown up to work with a temporary injury or illness and was reassigned to perform only light-duty tasks. See id. at 77. In addition, he stated that "[o]ur policy
is it's line-of-duty injury, it's 207(c) Municipal Law, and even if you get hurt on our job, we will
make accommodations for you. If you can come back light duty, you have to have a doctor's
note saying that you can and then we will find that light-duty spot for you. There's no -anything in our policy about after-duty injuries." See id. at 90:18-24. Moreover, the following
colloquy took place,
Mr. Ranni: If it is determined by physical examination that a corrections officer is
able to perform light tasks, he/she may be ordered to return to work.
Mr. Van Blarcum: Yes, sir. That's if you are hurt in a line of duty.
Mr. Ranni: Okay. So that wouldn't include people on authorized leave?
Mr. Van Blarcum: It's a line-of-duty policy that if you're out on 207(c), you go to
a doctor or our doctor, then, yes, I could order you back.
See id. at 101:16-24.
Then, on re-direct, Sheriff Van Blarcum confirmed that the light-duty Policy only applied to
those who had been injured in the line of duty. See id. at 121.
Sergeant Kerry Winters testified that Defendant did not "make [it] a practice to give
people working conditions. When you hurt yourselves, you have sick time." See id. at 128:1517.
Warden (then-Lieutenant) Becker stated that he was unaware of any persons with an offduty illness or injury being assigned to light-duty posts. See id. at 142. He also testified that
"the sheriff does not allow off-duty, light-duty injuries to work in the facility." See id. at 144:89. Furthermore, Warden Becker testified that "this policy is a line-of-duty injury policy. It's not
a light-duty policy. So I think everything that pertains here pertains to line-of-duty injuries." See
id. at 150:3-5. When asked about the line in the Policy that mentioned "authorized sick leave,"
Warden Becker stated,
Only way I can explain the authorized sick leave is when somebody is out of
work with an injury, with an off-duty injury and they come in to do tasks as in our
training officer, on his own time, on his authorized sick time where he's coming in
and doing light-duty tasks, that is the only way I can say I can explain that.
See id. at 150:24-25-151:1-4.
Lieutenant Ferro testified that he would not assign light-duty posts for Correction
Officers who came to work with minor illness because the work-schedule had already been
made. See Dkt. No. 195 at 8, 10. Further, when asked what "light duty" meant, Lieutenant Ferro
explained, "An officer gets injured on the job, he may be able to come back to work with some
type of restrictions and then he would be given the -- assigned light-duty posts by the sheriff."
See id. at 14:20-23.
Undersheriff Fallutico 4 testified that he and the Sherriff "look[ed] at what problems [the
disability] could present to the facility and [pregnancy was] not an injury that you [could] judge
what's going on." See id. at 27:20-22. Undersheriff Fallutico also testified that he was unaware
of any corrections officers who were assigned light-duty who had non-job related injuries. See
id. at 29. In addition, Undersheriff Fallutico explained that "[t]he sheriff when he took office in
2007 established his policy as far as light duty would only be given to someone who was injured
during working hours performing their duties. And that's the only time light-duty assignments
were given." See id. at 31:2-6.
The testimony from each of the witnesses supports Defendant's interpretation. In that
regard, Sheriff Van Blarcum specifically testified that he was able to order employees to return
to work. See Dkt. No. 194 at 101. Importantly, Plaintiff produced no evidence showing that
Defendant had given light-duty assignments to employees injured off-duty, nor did she introduce
any evidence contradicting Sheriff Van Blarcum's testimony that the policy entitled him to order
employees to work, not grant an accommodation. The only evidence tending to support
Plaintiff's interpretation includes some vague testimony and the ambiguous language of the
Undersheriff Fallutico was unavailable to testify at trial; thus counsel introduced parts of his
deposition into the record.
Policy itself, which includes a reference to "authorized sick leave." See Dkt. No. 191-7 at 5.
However, the testimony explaining the policy confirms that it was created to allow Sheriff Van
Blarcum to obtain limited production from employees who would receive their entire salary
pursuant to § 207-c regardless of whether or not they actually worked.
Therefore, the Court finds that Defendant's policy, as established at trial, operated as
follows: Sheriff Van Blarcum could, at his discretion, order an employee on § 207-c leave to
return to work if a doctor indicated that the employee was capable of returning with restrictions.
In other words, Defendant's Policy did not provide a mechanism for employees to request lightduty assignments; instead, the policy was in place to notify employees who were on § 207-c
leave, but capable of returning at least to light duty, that the Sheriff might order them to return to
3. Plaintiff's requests for light-duty assignments
On July 8, 2008, when Plaintiff was approximately two months' pregnant, she gave
Lieutenant Becker a doctor's note that read, "Ann Marie Legg is under my care for pregnancy.
Ann Marie is able to work but shouldn't have direct contact with inmates." See Dkt. No. 191-4;
see also Dkt. No. 194 at 30. On July 9, 2008, Lieutenant Becker advised Plaintiff that the Jail
was unable to accommodate her request for a modified work assignment and that if she could not
work full-duty, she would have to go out on state disability or use her accrued time-off. See Dkt.
No. 194 at 32-33, 157-158. On July 10, 2008, at Sheriff Van Blarcum's direction, Undersheriff
Fallutico wrote a letter to Plaintiff stating that "Employees are afforded light duty assignments at
the Sheriff's discretion for work-related injuries/illnesses only (207-C or Worker's
Compensation). Therefore you have the option of being re-evaluated by your attending
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physician and returning to work full duty capacity as a Correction Officer or you may utilize
accrued time (sick, vacation, personal) and file for NYS Disability benefits (form attached)
which will run concurrently with FMLA." See Dkt. No. 191-5. On July 10, 2008, Plaintiff
obtained a revised doctor's note stating that she could work without restrictions. See Dkt. No.
For a brief period of time, Plaintiff was primarily assigned to positions that involved no
inmate contact. See Dkt. No. 194 at 37-38. However, in August 2008, Plaintiff was again
assigned to work directly with inmates in Dorms 1 and 2, K-Pod and B-Pod. See id. at 38.
Plaintiff continued to work full duty until November 13, 2008. See id. at 49-50.
Conclusions of law
The parties agree that PDA disparate impact claims track a tripartite test. First, the
plaintiff must establish a prima facie case by showing that the defendant "uses a particular
employment practice that causes a disparate impact on the basis of . . . sex. . . ." 42 U.S.C.
§ 2000e-2(k)(1)(A)(i). In turn, the PDA clarifies that the term "'on the basis of sex' include[s] . .
. because of or on the basis of pregnancy[.]" 42 U.S.C. § 2000e(k). Establishing a prima facie
case, thus, requires that the plaintiff identify a specific employment practice that causally creates
an adverse impact on pregnant employees. See Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135,
151 (2d Cir. 2012) (citations omitted); see also Lehmuller v. Inc. Vill. of Sag Harbor, 944 F.
Supp. 1087, 1092 (E.D.N.Y. 1996) (stating that, "[t]o establish a prima facie case of disparate
impact on the basis of pregnancy, the plaintiff must show that: (1) the defendant engaged in a
specific employment practice that had an adverse impact on pregnant employees; and (2) there is
a causal link between the challenged employment practice and the adverse impact" (citing
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S. Ct. 2777, 2788-89, 101 L. Ed. 2d
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827 (1988)). However, the plaintiff need not prove intentional discrimination to prevail on a
disparate impact claim. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988).
The second step, if a plaintiff can establish a prima facie case, requires that the defendant
establish "that the challenged practice or policy is 'job related for the position in question and
consistent with business necessity.'" Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147,
161 (2d Cir. 2001), abrogated on other grounds by Wal-Mart Stores, Inc., v. Dukes, 564 U.S.
338 (2011) (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)). "If the employer fails to demonstrate a
business justification for the policy or practice, . . . then the plaintiffs prevail." Id. (internal
citation omitted). However, "[i]f the employer succeeds in establishing a business justification, .
. . the disparate impact claim proceeds to a third stage." Id. (citation omitted).
Finally, at the third step, "the burden of persuasion shifts back to the plaintiffs to establish
the availability of an alternative policy or practice that would also satisfy the asserted business
necessity, but would do so without producing the disparate effect." Id. (citing 42 U.S.C.
§ 2000e-2(k)(1)(A)(ii), (C); [EEOC v.] Joe's Stone Crab, Inc., 220 F.3d [1263,] 1275 [(11th Cir.
2000)]) (other citation omitted).
1. Prima facie case
The PDA, instead of merely recognizing that discrimination on the basis of pregnancy
constitutes unlawful sex discrimination under Title VII, provides additional protection to those
"women affected by pregnancy, childbirth or related medical conditions" by expressly requiring
that employers provide the same treatment of such individuals as provided for "other persons not
so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k). As the
Supreme Court has recognized, "'[t]he second clause [of the PDA] could not be clearer: it
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mandates that pregnant employees "shall be treated the same for all employment-related
purposes" as nonpregnant employees similarly situated with respect to their ability or inability to
work.'" Int'l Union, United Auto., Aerospace & Agricultural Implement Workers of Am., UAW v.
Johnson Controls, Inc., 499 U.S. 187, 204-05 (1991) (emphasis added) (quoting California
Federal Savings and Loan Assn. v. Guerra, 479 U.S. 272, 297, 107 S. Ct. 683, 698, 93 L. Ed. 2d
613 (1987) (White, J., dissenting)). "As such, the PDA explicitly alters the analysis to be applied
in pregnancy discrimination cases." Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir.
1996). In that regard, although Title VII generally requires that a plaintiff demonstrate that the
employee who received more favorable treatment be similarly situated in all respects, the PDA
requires only that the employee be similar in his or her "ability or inability to work." 42 U.S.C.
§ 2000e(k). In other words, the PDA makes clear that it is discriminatory to treat pregnancyrelated conditions less favorably than other medical conditions if the employees' ability or
inability to work remains equal.
With that in mind, as discussed above, "[t]o establish a prima facie case of disparate
impact on the basis of pregnancy, the plaintiff must show that: (1) the defendant engaged in a
specific employment practice that had an adverse impact on pregnant employees; and (2) there is
a causal link between the challenged employment practice and the adverse impact." Lehmuller,
944 F. Supp. at 1092 (citation omitted). In other words, the first prong requires that the plaintiff
identify a policy that, although neutral, treats pregnant women differently than those similar in
their ability or inability to work; the second prong requires that the plaintiff establish that the
policy has created an adverse impact on pregnant employees.
With respect to the first prong, Defendant's light duty policy, as established at trial,
operated as follows: If an employee who was on § 207(c) leave provided a doctor's note
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indicating that he or she were capable, Sheriff Van Blarcum could, at his discretion, order the
employee to return to work on a light-duty assignment. That is, Defendant's Policy did not
provide a mechanism for employees to request light-duty assignments; instead, the policy was in
place to make it clear that the sheriff could order employees on § 207(c) leave, who were capable
of returning at least to light duty, to do so.
The result of this policy is that pregnant women will never be afforded light-duty
assignments and will instead be forced to use accrued sick, vacation, or personal time if they are
no longer able to work full duty. In other words, although pregnant women may be similarly
situated to employees injured on-the-job with respect to their inability to work full-duty, those
women are denied the ability to work light-duty merely because the source of their temporary
disability differs from those employees injured on the job. See Ensley-Gaines, 100 F.3d at 1226
(finding that plaintiff had established that pregnant employees were treated differently than
others similarly situated, and recognizing that, although the defendant "must continue to pay
limited-duty employees regardless of whether they work, such a distinction pertains to the terms
of employment, not to an employee's ability or inability to work, as provided in the PDA"); see
also Carney v. Martin Luther Home, Inc., 824 F.2d 643, 646 (8th Cir. 1987) (stating that
"'[p]regnant women who are able to work must be permitted to work on the same conditions as
other employees; and when they are not able to work for medical reasons, they must be accorded
the same rights, leave privileges and other benefits, as other workers who are disabled from
working'" (quoting [S. Rep. No. 95-331] at 3-4, reprinted in Legislative History at 40-41)).
Therefore, the Court finds that Plaintiff has met the first prong of her prima facie case.
With respect to the second prong, Plaintiff "must produce competent evidence which
shows that this adverse impact, [denied light-duty assignments], falls disproportionately on
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pregnant employees." Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1315 (11th Cir. 1994).
In Armstrong, for example, the Eleventh Circuit found that the plaintiff had failed to show that
the adverse policy, i.e., that nurses would be fired if they refused to treat any patient, had a
disparate impact, i.e., termination, on pregnant women because the plaintiff was the only
pregnant woman who had ever been terminated for refusing to treat a patient. See id.
Similarly, Plaintiff has produced very little direct evidence to support her claim. Indeed,
based on the evidence at trial, Plaintiff is the only employee who has ever requested light-duty
accommodation on account of pregnancy. Plaintiff, recognizing as much, argues that she need
not produce statistics or any other evidence in this case because Defendant "has not extended the
light-duty policy to include pregnant women, who are 'similar in their ability or inability to
work,' [thus,] this wholesale exclusion establishes [her] prima facie case." See Dkt. No. 191 at
22. To the contrary, Defendant contends that failing to present evidence regarding the
composition of the workforce, how many people were assigned to light duty, and how many
corrections officers were unable to perform their full duty positions during their pregnancy is
fatal to her claim. See Dkt. No. 192 at 13-14.
In support of her position, Plaintiff relies on Lynch v. Freeman, 817 F.2d 380 (6th Cir.
1987). Lynch concerned the unsanitary conditions of portable toilets at a construction site and
found that "[a]ny employment practice that adversely affects the health of female employees
while leaving male employees unaffected has a significantly discriminatory impact." Id. at 388.
Lynch held that "the plaintiff was not required to prove her case by statistics." Id. at 387. In
sum, the Sixth Circuit found that the plaintiff established a prima facie case because "'all females
were placed at a higher risk of urinary tract infections by using unsanitary portable toilets or by
avoiding the use of such toilets and holding their urine[,]'" and "men were not exposed to the
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same risks from using the toilets because of 'anatomical differences between the sexes.'" Id. at
Plaintiff also cites, Bradley v. Pizzaco of Nebraska, Inc., 939 F.2d 610 (8th Cir. 1991),
which held that the plaintiff had proved his prima facie case "[t]hrough expert medical testimony
and studies," because the defendant's "policy necessarily excludes black males from the
company's work force at a substantially higher rate than white males." Id. at 612. Bradley
involved a black male's challenge to the defendant's no-beard policy. The plaintiff argued that it
was impossible for individuals suffering from "pseudofolliculitis barbae (PFB), a skin disorder
affecting almost half of all black males," to conform with the policy. Id. at 613 (stating that
"PFB prevents a sizable segment of the black male population from appearing clean-shaven, but
does not similarly affect white males"). The Eighth Circuit reasoned that, because PFB affects a
large number of black males but almost no white males, the policy could have a disparate impact
based on race. See id. The court went on to hold that "a case can be made under Title VII by
proving a specific hiring practice has a disparate impact, 'notwithstanding the bottom-line racial
balance in [the employer's] workforce.'" Id. (quotation omitted).
Moreover, Plaintiff cites James v. Nat'l R.R. Passenger Corp., No. 02 Civ. 3915, 2005
WL 6182322 (S.D.N.Y. Mar. 28, 2005), wherein the district court found that the plaintiff had
successfully proven a prima facie case without the need for statistical evidence where the
defendant only provided unsanitary unisex bathrooms and the plaintiff was the only woman. See
id. at *5. The court explained that
[a] jury could have reasonably concluded that any woman needing to use comfort
facilities at Hunter Yard would be subject to the same "impact" as was plaintiff,
namely: (i) an egregious lack of privacy; (ii) potential disciplinary action for using
alternate facilities; and (iii) unsanitary conditions. Although men were certainly
subject to these same conditions, the jury could have reasonably concluded that
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plaintiff and similarly situated women were affected to a greater degree than were
men, and not because of mere "personality differences" between the sexes
Id. (internal citation omitted).
Finally, Plaintiff cities Germain v. Cty. of Suffolk, No. 07-CV-2523, 2009 WL 1514513
(E.D.N.Y. May 29, 2009), which dealt with a substantially similar policy as the one at issue in
this litigation. In Germain, the court found that the plaintiff had made her prima facie case
because "[i]t [was] undisputed that, under the [defendant's] policy, a pregnant officer unable to
perform full-duty because of her pregnancy could never be eligible for a light-duty assignment."
Id. at *4. Thus, the court concluded that, "although the pregnant officer and the non-pregnant
officer are similarly situated in their inability to perform full-duty, the distinction the
[defendant's] policy draws between occupational and non-occupational injuries necessarily
excludes pregnant women from light-duty." Id.
In addition to the cases that Plaintiff cites, Lehmuller v. Inc. Vill. of Sag Harbor, 944 F.
Supp. 1087 (E.D.N.Y. 1996), is analogous. Lehmuller involved a defendant's policy where
"[o]fficers injured in the line of duty who are unable to conduct their patrol duties, but who can
perform routine clerical tasks, [were] required to report for duty at headquarters as their physical
condition permit[ed]." Id. at 1089. The court, without any analysis, concluded that the plaintiff
had "shown that the [defendant had] adopted a light-duty policy that ha[d] an adverse impact on
pregnant officers and, therefore, ha[d] established a prima facie case of disparate impact
discrimination." Id. at 1092. The court, although not saying as much, apparently did not view it
as a problem that the plaintiff was the first pregnant person to request light-duty under the policy.
See id. at 1089.
Based on the foregoing, the Court finds that Plaintiff has failed to establish the second
prong of her prima facie case. What distinguishes this case from the sanitary bathroom cases
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cited above is that in those cases the courts relied on substantive evidence showing that exposure
to unsanitary bathrooms (the adverse policy) disproportionately impacted women. See Lynch,
827 F.2d at 388; James, 2005 WL 6182322, at *5. Thus, the plaintiffs in those cases, through
evidence, successfully connected the impact of the unsanitary working conditions to the
immutable characteristics of the plaintiffs. Likewise, in Bradley, the court found that the
plaintiff had established a prima facie case because he established through evidence that
individuals afflicted with PFB, a condition that only affects black males, could not comply with
the no-beard policy. See Bradley, 939 F.2d at 612.
The same connections cannot be made here. What is absolutely lacking in this case is
any evidence indicating that pregnant women were unable to perform full-duty at the Jail. 5 To
the contrary, Plaintiff and two other women worked full-duty until late in their pregnancies.
There was simply no evidence that Defendant's Policy actually had an impact on pregnant
women the same way that the policies in Lynch, James, and Bradley had an impact on women
and black males. 6
Plaintiff's argument that she has established her prima facie case because Defendant's
Policy is in effect a "wholesale exclusion" of pregnant employees misses the point. Plaintiff's
position would require the Court to assume that pregnant women are inherently incapable of
Although Plaintiff did receive a doctor's note stating that she should not have inmate contact,
see Dkt. No. 191-4, the value of that note is nominal because just two days later the same doctor
claimed that she could work full duty, see Dkt. No. 191-6.
The Court, further, disregards Germain and Lehmuller because, to the extent that their holdings
are contrary, those cases provided no indication about what evidence the plaintiffs presented to
support their cases.
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working full-duty. However, there was no evidence presented at trial that supports this
That is not to say, however, that Defendant's policy is not vulnerable to a disparate
impact claim. For example, although Plaintiff elicited testimony that the other two women who
were pregnant had to use accrued sick leave around the seventh month of their pregnancies, she
failed to connect those women's choice to take sick leave to Defendant's Policy. Plaintiff
provided no evidence showing that these women were capable of performing light-duty
assignments but made the choice to take accrued leave because they knew they would not be
provided an accommodation. Furthermore, Plaintiff did not present any evidence to show that,
before Defendant implemented its restriction on light duty assignments, pregnant women had
used light duty in statistically higher proportions, compared to their total numbers on Defendant's
staff. 8 Moreover, Plaintiff might have, but did not, offer any evidence showing that pregnant
women would be more susceptible to injuries in full-duty because of their pregnancy.
In essence, finding in favor of Plaintiff would require the Court to conclude that
Defendant's policy of not providing light-duty assignments impacts pregnant women per se.
However, facts (not necessarily statistics) must be established to show that the complained-of
For example, although concerning a disparate treatment claim, in Young, the plaintiff presented
evidence from her doctor that she "should not lift more than 20 pounds during the first 20 weeks
of her pregnancy or more than 10 pounds thereafter." See Young, 135 S. Ct. at 1344 (citation
omitted). Here, to the contrary, Plaintiff presented no evidence that she was incapable of
performing full duty because of her pregnancy.
In that regard, the only evidence that Plaintiff adduced at trial that tended to support her
position was her testimony that she was afforded light-duty assignments during her first
pregnancy in 2004; but, under the new policy, she could no longer receive such assignments.
See Dkt. No. 194 at 4-5. However, this evidence alone is simply insufficient to show that
Defendant's policy had a disparate impact on pregnant employees. See, e.g., Armstrong, 33 F.3d
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policy disproportionately impacts pregnant women. See, e.g., Armstrong, 33 F.3d at 1315. 9 It
was Plaintiff's burden to prove at trial that pregnant women could not work full duty and needed
light-duty assignments but were denied them while others similar in their inability to work fullduty could receive light-duty assignments. In other words, Plaintiff's disparate impact claim fails
for lack of evidence. Accordingly, the Court finds that Plaintiff has failed to establish a prima
facie case and, therefore, dismisses her disparate impact claim.
Having reviewed the entire file in this matter, the parties' submissions, and the applicable
law, and for the above stated reasons, the Court hereby
Armstrong involved a policy requiring nurses to treat, without exception, those patients to
whom they were assigned. The plaintiff in Armstrong challenged this policy claiming that it
would disproportionately cause the terminations of pregnant employees. The court disagreed
and reasoned that,
[t]o satisfy the second element of her prima facie case, Armstrong must produce
competent evidence which shows that this adverse impact, termination, falls
disproportionately on pregnant employees. It is the second element that
Armstrong cannot establish. Only two employees have resigned or been
terminated under the HCS policy at issue. Armstrong is one of the two. The
other was a non-pregnant nurse who also refused to see an HIV-positive patient.
No other evidence related to termination has been produced. On this evidence, it
appears the policy does not have a disproportionate impact on pregnant
Armstrong, 33 F.3d at 1315.
The same is true here; Plaintiff simply has failed to produce evidence that Defendant's policy had
a disproportionate impact on pregnant employees.
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ORDERS that Plaintiff Legg's disparate impact claim pursuant to 42 U.S.C. § 2000e(k)
IT IS SO ORDERED.
Dated: July 27, 2017
Syracuse, New York
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