Young v. United Parcel Service, Inc. , 707 F.3d 437 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PEGGY YOUNG, 
Plaintiff-Appellant,
v.
UNITED PARCEL SERVICE, INC.,
Defendant-Appellee,
and
UNITED PARCEL SERVICE OF
AMERICA, INC.; UPS HEALTH
PROGRAM; AETNA LIFE INSURANCE
COMPANY; AETNA DISABILITY AND
ABSENCE MANAGEMENT,
Defendants.  No. 11-2078
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; AMERICAN CIVIL
LIBERTIES UNION FOUNDATION OF
MARYLAND; A BETTER BALANCE;
EQUAL RIGHTS ADVOCATES; LEGAL
AID SOCIETY - EMPLOYMENT LAW
CENTER; LEGAL MOMENTUM;
NATIONAL PARTNERSHIP FOR WOMEN
& FAMILIES; NATIONAL WOMEN’S
LAW CENTER; PUBLIC JUSTICE
CENTER;

2 YOUNG v. UPS
SOUTHWEST WOMEN’S LAW CENTER; 
WOMEN’S LAW CENTER OF
MARYLAND, INC.; WOMEN’S LAW
PROJECT,

Amici Supporting Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District Judge.
(8:08-cv-02586-DKC)
Argued: October 24, 2012
Decided: January 9, 2013
Before WILKINSON, GREGORY, and DUNCAN,
Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Wilkinson and Judge Gregory joined.
COUNSEL
ARGUED: Sharon Fast Gustafson, Arlington, Virginia, for
Appellant. Emmett F. McGee, Jr., JACKSON LEWIS, LLP,
Baltimore, Maryland, for Appellee. ON BRIEF: Jill S. Dis-
tler, JACKSON LEWIS, LLP, Baltimore, Maryland, for
Appellee. Ariela M. Migdal, Lenora M. Lapidus, AMERI-
CAN CIVIL LIBERTIES UNION FOUNDATION, New
York, New York; Deborah A. Jeon, ACLU FOUNDATION
OF MARYLAND, Baltimore, Maryland, for Amici Curiae.
YOUNG v. UPS 3
OPINION
DUNCAN, Circuit Judge:
In 1978, Congress passed the Pregnancy Discrimination
Act (the "PDA"), which amended the definition of discrimina-
tion on the basis of sex in Title VII of the Civil Rights Act
of 1964 ("Title VII") to provide that it included discrimination
in employment "because of or on the basis of pregnancy,
childbirth, or related medical conditions." 42 U.S.C.
§ 2000e(k). Invoking both the PDA and the Americans with
Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq.,
Peggy Young ("Young") appeals the district court’s grant of
summary judgment for her employer, United Postal Service,
Inc. ("UPS"). For the reasons that follow, we affirm.1
I.
A.
In reviewing a grant of summary judgment, we recite the
facts in the light most favorable to Young as the non-moving
party. Dulaney v. Packaging Corp. of America, 673 F.3d 323,
324-25 (4th Cir. 2012). Three UPS policies lie at the core of
this dispute. First, UPS defined among the essential functions
for all drivers the ability to "[l]ift, lower, push, pull, leverage
and manipulate . . . packages weighing up to 70 pounds," and
to "[a]ssist in moving packages weighing up to 150 pounds,"
J.A. 577.
Second, the applicable Collective Bargaining Agreement
(the "CBA") provides temporary alternate work ("TAW")2 to
employees "unable to perform their normal work assignments
due to an on-the-job injury." J.A. 580 (emphasis added). To
1
The American Civil Liberties Union (the "ACLU") submitted an
amicus brief in support of Young.
2
We use TAW and light duty work interchangeably.
4 YOUNG v. UPS
comply with this CBA provision, UPS offers light duty work
to those employees injured while on the job or suffering from
a permanent impairment cognizable under the ADA. Under
UPS policy and the CBA, a pregnant employee can continue
working as long as she can perform the essential functions of
her job, but is ineligible for light duty work for any limitations
arising solely as result of her pregnancy.
Finally, a CBA provision requires UPS to give an "inside
job" to drivers who have lost their certification by the Depart-
ment of Transportation (the "DOT") because of a failed medi-
cal exam, a lost driver’s license, or involvement in a motor
vehicle accident as long as the driver is capable of performing
such a job. Because an inside job often involves heavy lifting,
it is typically not considered light duty work.
Against this backdrop, we turn to the facts before us. We
begin with a general statement of facts, providing additional
information as necessary to the analysis.
Young started working for UPS in 1999, and began driving
a delivery truck in 2002. By 2006 and throughout the relevant
period, Young held a position as a part-time, early morning
driver, also known as an "air driver," apparently in reference
to her responsibility to pick up and deliver packages that had
arrived by air carrier the previous night. Young worked out of
a UPS facility in Landover, Maryland known as the "D.C.
Building." Each morning after clocking in at the D.C. Build-
ing and inspecting her delivery van, Young and other air driv-
ers would meet a shuttle from the airport bearing letters and
packages scheduled for immediate delivery. Air drivers were
then responsible for loading their vans and making deliveries.
Young typically finished her work responsibilities by 9:45 or
10 in the morning, and then proceeded to her second job at a
flower delivery company.
In July 2006, following two unsuccessful rounds of in vitro
fertilization, Young requested a leave of absence to try a third
YOUNG v. UPS 5
round. The UPS occupational health manager, Carolyn Mar-
tin, granted Young’s request. When Young became pregnant,
she sought to extend her leave. At some point in September
2006, she left with her supervisor a note from Dr. Thaddeus
Mamlenski indicating that she should not lift more than
twenty pounds for the first twenty weeks of her pregnancy
and not more than ten pounds thereafter. Young soon fol-
lowed up with a phone call to Martin saying that she was not
yet ready to return to work.
During that September 2006 call, Martin informed Young
that UPS policy would not permit her to continue working as
long as she had the twenty-pound lifting restriction. Young
maintains that she sought to explain to Martin that her job
rarely required her to lift over twenty pounds, that other UPS
employees had in any case agreed to assist her, and that she
was willing to do either light duty work or her regular job.
Young characterized the seventy-pound lifting requirement as
illusory because she rarely had to transport large packages,
and when she did, she could use a hand truck or request assis-
tance from other UPS employees.
On October 11, 2006, Young had a check-up with midwife
Cynthia Shawl. At the conclusion of her check-up, Shawl
drafted and signed a short note on National Naval Medical
Center letterhead stating "Peggy Sue Young is currently preg-
nant and due to deliver on or about May 2, 2007. Due to her
pregnancy it is recommended that she not lift more than 20
pounds." J.A. 510 (the "Shawl note"). The Shawl note also
indicated Shawl was available to provide further information
or answer questions, and listed contact information for her.
Although Shawl did not typically draft such notes, she did so
in this instance because Young had told her she needed "a let-
ter for work stating her restrictions." J.A. 656.3
3
The chronological record of medical care indicates Shawl saw Young
for 40 minutes and includes the notation "Released w/o Limitations." J.A.
509. Although Young emphasizes in her brief the tension between the
Shawl note and the "Released w/o Limitations" notation, she does not sug-
gest, and the record does not support, the conclusion that Martin or anyone
at UPS ever saw the "Released w/o Limitations" notation.
6 YOUNG v. UPS
At some point after her appointment with Shawl, Young
contacted her supervisor at the D.C. Building and requested
to return to work. When Young informed her supervisor of
the note recommending she not lift more than twenty pounds,
her supervisor referred Young to Martin. After speaking with
Young, Martin concluded that, based on UPS policy, Young
was unable to perform the essential functions of her job and
was ineligible for light duty assignment. It is undisputed that
Martin made this determination alone.
Young and Martin spoke by phone at the end of October
2006. In the course of discussing Young’s lifting limitation
and eligibility for work, Martin explained to Young that (1)
UPS offered light duty for those with on-the-job injuries,
those accommodated under the ADA, and those who had lost
DOT certification, but not for pregnancy; (2) Young did not
qualify for short-term disability benefits because she had pre-
sented no note stating she could not work at all; (3) Young
had exhausted her leave under the Family and Medical Leave
Act (the "FMLA"); and (4) UPS policy did not permit Young
to continue working as an air driver with her twenty-pound
lifting restriction. Although Martin "empathize[d] with
[Young’s] situation and would have loved to help her," J.A.
1032, Martin believed she was required to treat Young the
same as she would any other UPS employee who had a lifting
restriction that did not result from an on-the-job injury or ill-
ness and who could not perform his or her regular job.
According to Martin, she would have allowed Young to return
to work if Young could provide a medical certification
removing her lifting restriction and stating she could perform
the essential functions of her job.
The parties do not dispute that Martin based her decision to
disallow Young from returning to work solely on the basis of
the lifting limitations imposed by Mamlenski and Shawl.
Martin did not believe Young had any other restrictions, and
asserts that had she considered Young disabled within the
meaning of the ADA, she would have encouraged Young to
YOUNG v. UPS 7
apply for an accommodation in accordance with UPS’s ADA
policy. J.A. 575. Although Young takes issue with Martin’s
failure to contact Shawl and seek more information regarding
the recommended lifting restriction, Young does not contro-
vert Martin’s assertion.
Still seeking to return to work, Young approached Myron
Williams, the Capital Division Manager in the D.C. Building,
in November 2006. According to Young, when she explained
her desire to return to work, Williams told her she was "too
much of a liability" while pregnant and that she "could not
come back into the [D.C.] [B]uilding until [she] was no longer
pregnant." J.A. 500.
By November 2006, Young’s FMLA leave had expired.
She then went on an extended leave of absence, receiving no
pay and eventually losing her medical coverage by the end of
the year. During this extended leave, someone—the record
does not disclose who—at UPS ascribed Young’s absence to
"disability" by placing the code for disability on her atten-
dance chart. A UPS employee explained at his deposition that
the disability code does not necessarily mean that the
employee is on approved disability leave; it in some cases
means only that an employee is "not working because of an
off the job situation." J.A. 1836.
Young gave birth on April 29, 2007, and returned to work
for UPS at some point thereafter.
B.
Young filed a charge with the Equal Employment Opportu-
nity Commission (the "EEOC") on July 23, 2007, and later
amended it. She alleged discrimination on the basis of race,4
sex, and pregnancy. After the EEOC issued Young a right to
4
Young is white, and alleged that UPS permitted African-American
pregnant employees to work.
8 YOUNG v. UPS
sue letter in September 2008, she filed suit in October 2008.
In an amended complaint filed the same month, Young sought
damages for sex and race discrimination under Title VII and
for disability discrimination under the ADA. When Young
sought to amend her complaint a third time in June 2009 to
add a distinct disparate impact claim, the district court denied
her motion.
Following over eighteen months of discovery, UPS moved
for summary judgment in July 2010. In addition to responding
in opposition to UPS’s summary judgment motion, Young
also sought to compel additional discovery, asked for a con-
tinuance under Rule 56(d) of the Federal Rules of Civil Proce-
dure, and moved to dismiss voluntarily her race
discrimination claim. In an opinion issued in February 2011,
the district court granted summary judgment for UPS and
denied Young’s motions for additional discovery, a continu-
ance, and a dismissal of her race discrimination claim.5 On
Young’s ADA claim, the district court reasoned that UPS had
not discriminated against Young either by asking for a doc-
tor’s note, which it was permitted to do under the circum-
stances, or by deciding not to accommodate her.
Applying the Title VII burden shifting analysis under
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
Young’s PDA claim, the district court concluded Young had
not shown direct evidence of discrimination; failed to estab-
lish a prima facie case of sex discrimination because she
could identify no similarly situated comparator who received
more favorable treatment than she did; and in any case could
not show that UPS’s non-discriminatory rationale for its deci-
sion was pretextual.
The district court denied Young’s motion for reconsidera-
tion in August 2011. This appeal followed.
5
The district court granted summary judgment in favor of UPS on
Young’s race discrimination, and Young does not challenge this on
appeal.
YOUNG v. UPS 9
II.
Young challenges the district court’s grant of summary
judgment on her ADA and PDA claims. First, she claims that
UPS impermissibly regarded her as disabled under the ADA.
Second, Young contends that UPS discriminated against her
on the basis of pregnancy in violation of the PDA.6 In consid-
ering these arguments, we review the district court’s grant of
summary judgment de novo, and construe all the documentary
evidence and inferences available therefrom in the light most
favorable to Young. See Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc). Summary judgment is appropriate
if UPS establishes "that there is no genuine dispute as to any
material fact." Fed. R. Civ. P. 56(a). Thus, a genuine issue of
material fact, and not simply "the mere existence of some
alleged factual dispute between the parties," Anderson v. Lib-
erty Lobby, 477 U.S. 242, 247 (1986), is required to defeat
UPS’s motion. We turn first to Young’s ADA claim.
A.
The ADA prohibits discrimination against "a qualified indi-
vidual on the basis of disability." 42 U.S.C. § 12112(a).7 To
6
Young also makes two arguments we need not consider at length. First,
she contends that the district court erred by denying her motion to amend
her complaint to include a disparate impact claim. See Appellant’s Br. at
65-66. We review a district court’s decision to deny a motion to amend
for abuse of discretion, Matrix Capital Mgmt. Fund, LP v. BearingPoint,
Inc., 576 F.3d 172, 192 (4th Cir. 2009), and find no such abuse here.
Young failed to satisfy the good cause standard under Fed. R. Civ. P.
16(b)(4) to modify the scheduling order. J.A. 126. Second, Young asserts
error in the district court’s decision to deny her motion to compel addi-
tional discovery. The district court had permitted over eighteen months of
discovery, and had already twice granted Young’s motions to compel. Its
decision to cut off discovery when it did was not an abuse of discretion.
7
Congress amended the ADA in 2008 in order to expand the category
of individuals who fall within its ambit. See ADA Amendments Act of
2008 (the "ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553; see also
10 YOUNG v. UPS
establish disability discrimination, Young must demonstrate
that (1) she had a disability as defined in the ADA; (2) she
was a "qualified individual," which entails being able to per-
form the essential functions of her job; and (3) UPS took an
adverse action against her on account of her disability. See
Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir.
1997). Young’s claim fails because she cannot establish the
first of these elements.8
The ADA provides three avenues for establishing the exis-
tence of a disability: "(A) a physical or mental impairment
that substantially limits one or more major life activities of
such individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment." 42 U.S.C.
§ 12102(1). Young does not press the argument that her preg-
nancy alone establishes disability. See, e.g., Wenzlaff v.
NationsBank, 940 F. Supp. 889, 890 (D. Md. 1996) ("With
near unanimity, federal courts have held that pregnancy is not
a ‘disability’ under the ADA."). Rather, she contends that
UPS regarded her pregnancy-related work limitations as such.
A "regarded as" disabled claim "includes the circumstance
when the employer ‘mistakenly believes that an actual, non-
Reynolds v. American Nat’l Red Cross, ___ F.3d ___, No. 11-2278, 2012
WL 6062702, at *5 (4th Cir. Dec. 7, 2012) ("In passing the ADAAA,
Congress was concerned ‘lower courts have incorrectly found in individ-
ual cases that people with a range of substantially limiting impairments are
not people with disabilities.’" (quoting ADAAA, 122 Stat. at 3553)).
Because Young filed her claim before the effective date of the amend-
ments, which Congress did not make retroactive, Reynolds, 2012 WL
6062702, at *6 (ADAAA not retroactive to cases filed before its enact-
ment); see also Boitnott v. Corning Inc., 669 F.3d 172, 174 n.3 (4th Cir.
2012) (same), we do not consider how, if at all, the ADAAA’s amend-
ments would affect Young’s ADA claim.
8
Because Young’s claim founders at the first prong, we do not decide
whether Young was a "qualified individual" or whether the ADA’s "rea-
sonable accommodation" requirement attaches to those who are regarded
as disabled.
YOUNG v. UPS 11
limiting impairment substantially limits one or more major
life activities.’" Wilson v. Phoenix Specialty Mfg. Co., Inc.,
513 F.3d 378, 384-85 (4th Cir. 2008) (quoting Sutton v.
United Air Lines, Inc., 527 U.S. 471, 489 (1999)). Thus, the
employer "must believe . . . that [an individual] has a substan-
tially limiting impairment when, in fact, the impairment is not
so limiting." Sutton, 527 U.S. at 489. Major life activities are
"those activities that are of central importance to daily life,"
such as walking, seeing, and hearing. Toyota Motor Mfg.,
Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002).9
Finally, where an employee relies on a "regarded as" disabled
theory, we focus "on the reactions and perceptions of the
employer’s decisionmakers . . . ." Wilson, 513 F.3d at 385
(quoting Runnebaum v. NationsBank of Md., N.A., 123 F.3d
156, 172-73 (4th Cir.1997), abrogated on other grounds by
Bragdon v. Abbott, 524 U.S. 624 (1998)) (internal alteration
omitted).
Young identifies three actions on Carolyn Martin’s part as
evidence that UPS regarded her as disabled: soliciting from
Young a doctor’s opinion that she was no longer under any
lifting limitations; preventing Young from working based
only on the Shawl note without independently evaluating
Young’s ability to work or contacting Shawl for more infor-
mation; and improperly relying on a mistaken belief about
Young’s capacity for work. We briefly consider each.
The argument that Martin improperly solicited the doctor’s
opinion is unclear. The record reflects no evidence that Young
provided such an opinion to anyone.10 The only doctor’s notes
9
Both Toyota Motor Mfg. and Sutton interpret the ADA before the 2008
amendments. Although the ADAAA effectively overruled the interpreta-
tion offered in these cases, we consider them because we analyze Young’s
claims under the pre-2008 ADA. See supra note 7.
10
The district court had the same concern, noting that Young had not
pleaded in her amended complaint the claim that UPS had improperly
solicited a doctor’s note from her. J.A. 417.
12 YOUNG v. UPS
in the record are those from Dr. Mamlenski and midwife Cyn-
thia Shawl, suggesting Young lift no more than twenty
pounds. Thus, to the extent Young either claims Martin
improperly solicited the Shawl note or takes issue with Mar-
tin’s request that Young provide medical certification that she
was no longer under the lifting restrictions indicated in the
notes from Mamlenski and Shawl, we agree with the district
court’s view that "[b]ecause UPS possessed objective facts
suggesting Young might have lost the ability to perform cen-
tral job functions, it had a legitimate reason to seek some veri-
fication that Young had recovered her ability to perform those
duties." J.A. 420; see also Porter v. U.S. Alumoweld Co., 125
F.3d 243, 247 (4th Cir. 1997) (holding employer’s medical
inquiry was job-related and consistent with business necessity
when employee returned to job involving lifting after back
surgery).
Young’s second contention—that UPS had a duty to seek
additional information from her healthcare providers and
independently evaluate her ability to work—is similarly
unavailing. In Young’s view, UPS should have engaged in an
interactive process to determine whether Young was capable
of performing her job. Although the ADA does advise an
employer to initiate "an informal, interactive process" when
determining whether an individual with a disability needs an
accommodation, see 29 C.F.R. § 1630.2(o)(3), no such coun-
sel applies to the determination of whether an employee is
disabled in the first instance. Young presents no rationale,
compelling or otherwise, for concluding that an employer acts
inappropriately in relying on the employee’s own objective
medical evidence. Cf. Breitkreutz v. Cambrex Charles City,
Inc., 450 F.3d 780, 784 (8th Cir. 2006) ("If a restriction is
based upon the recommendations of physicians, then it is not
based upon myths or stereotypes about the disabled and does
not establish a perception of disability.").11
11
Although the two documents produced by Cynthia Shawl—the "Re-
leased w/o Limitations" notation and the Shawl note—stand in consider-
YOUNG v. UPS 13
Finally, Young fails to marshal evidence creating a genuine
issue of material fact on the question of whether Martin had
a mistaken belief regarding Young’s capacity for work.
Young offers no evidence indicating Martin believed Young’s
pregnancy substantially limited one or more of her major life
activities. The most the record establishes is that Martin
believed Young to be pregnant and under a temporary lifting
restriction on account of her pregnancy, based on the evidence
Young herself provided. Given the relatively manageable
weight restriction—twenty pounds—and the short duration of
the restriction, there is no evidence that Young’s pregnancy
or her attendant lifting limitation constituted a disability
within the meaning of the ADA. See Williams v. Channel
Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996)
("[W]e hold, as a matter of law, that a twenty-five pound lift-
ing limitation—particularly when compared to an average
person’s abilities—does not constitute a significant restriction
on one’s ability to lift, work, or perform any other major life
activity."), abrogated on other grounds by Baird ex rel. Baird
v. Rose, 192 F.3d 462, 470 (4th Cir. 1999); Pollard v. High’s
of Baltimore, 281 F.3d 462, 468 (4th Cir. 2002)
("[T]emporary impairments usually do not fall within the
ADA’s definition of ‘disability.’"). Because Young points to
no more than the objective fact of her pregnancy, and offers
no evidence tending to show that Martin subjectively believed
Young to be disabled, Young cannot adduce evidence to raise
a factual issue on her "regarded as" claim.12
able tension, nothing in the record indicates anyone from UPS ever saw
the former document. Having no reason to believe Young’s doctor-
recommended lifting restriction had abated, Martin was under no obliga-
tion to consult with Shawl or otherwise seek out more information.
12
The fact that Young was coded as "disabled" standing alone does not
alter this conclusion because there is no evidence in the record linking this
coding to a decisionmaker who worked with Young. See Wilson, 513 F.3d
at 385.
14 YOUNG v. UPS
B.
We turn next to the heart of Young’s appeal, that UPS vio-
lated the Pregnancy Discrimination Act. Although not free
from ambiguity, Young’s core contention appears to be that
the UPS policy limiting light duty work to some employ-
ees—those injured on-the-job, disabled within the meaning of
the ADA, or who have lost their DOT certification—but not
to pregnant workers like Young violates the PDA’s command
to treat pregnant employees the same "as other persons not so
affected but similar in their ability or inability to work." 42
U.S.C. § 2000e(k). In a similar vein, the ACLU amicus brief
argues that the PDA requires employers like UPS to provide
pregnant workers like Young light duty work so long as it
does so for any other workers similar in their ability or inabil-
ity to work even though it concededly does not do so for all
nonpregnant employees.
We analyze a PDA claim as a sex discrimination claim
under Title VII. DeJarnette v. Corning Inc., 133 F.3d 293,
297 (4th Cir. 1998) ("A claim of discrimination on the basis
of pregnancy must be analyzed in the same manner as any
other sex discrimination claim brought pursuant to Title VII."
(quoting Boyd v. Harding Academy, 88 F.3d 410, 413 (6th
Cir. 1996) (internal alteration omitted))). Applying the usual
Title VII analytical construct for sex discrimination claims,
we first consider whether Young has shown any direct evi-
dence of discrimination. Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 959 (4th Cir. 1996). In the absence of that,
we apply the familiar burden shifting framework articulated
in McDonnell Douglas and subsequent cases. As Young’s
counsel clarified at oral argument, Young challenges the UPS
policy as both direct evidence of discrimination and under the
McDonnell Douglas framework. Accordingly, we assess the
policy in both contexts.
1.
In asserting direct evidence of discrimination, Young points
to both the UPS policy and to disparaging comments from
YOUNG v. UPS 15
Myron Williams as indicative of UPS’s general corporate ani-
mus against pregnant employees. Evidence is direct if it "both
reflect[s] directly the alleged discriminatory attitude and . . .
bear[s] directly on the contested employment decision."
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir.
2006) (quoting Taylor v. Virginia Union Univ., 193 F.3d 219,
232 (4th Cir. 1999) (en banc)). Thus, evidence is direct if it
establishes discriminatory motive with no need for an infer-
ence or a presumption. We first consider the challenge to the
UPS policy.
a.
Young contends that the UPS policy that does not provide
light duty work to pregnant workers but does for certain other
employees constitutes direct evidence of discrimination. It is
certainly true that an explicit policy excluding pregnant work-
ers would violate antidiscrimination law. See 29 C.F.R.
§ 1604.10(a) ("A written or unwritten employment policy or
practice which excludes from employment applicants or
employees because of pregnancy, childbirth or related medi-
cal conditions is in prima facie violation of title VII."). But no
such policy exists here. By limiting accommodations to those
employees injured on the job, disabled as defined under the
ADA, and stripped of their DOT certification, UPS has
crafted a pregnancy-blind policy, and Young does not contend
otherwise. Such a policy is at least facially a "neutral and
legitimate business practice," and not evidence of UPS’s dis-
criminatory animus toward pregnant workers. Merritt v. Old
Dominion Freight Line, Inc., 601 F.3d 289, 297 (4th Cir.
2010).
Young and the ACLU argue, however, that UPS’s policy of
accommodating certain employees but not pregnant workers
who are otherwise allegedly similar in their ability or inability
to work nonetheless runs afoul of the PDA. In particular, the
ACLU contends that the PDA explicitly alters the traditional
sex discrimination analysis under Title VII by restricting the
16 YOUNG v. UPS
basis upon which employers may compare pregnant workers
with nonpregnant workers. At its core, this argument posits
that the PDA creates a cause of action distinct from that of
§ 703(a)13 by compelling employers to grant pregnant employ-
ees a "most favored nation" status with others based on their
ability to work, regardless of whether such status was avail-
able to the universe—male and female—of nonpregnant
employees. Considering the history and structure of the PDA
and the consequences of interpreting it in this way, we cannot
agree.
Passed in 1978 to overrule the Supreme Court’s decision in
General Electric Co. v. Gilbert, 429 U.S. 125 (1976), the
PDA added pregnancy-related discrimination to Title VII’s
general prohibition on sex discrimination. Congress placed
the entirety of the PDA into the "Definitions" section of Title
VII:
The terms "because of sex" or "on the basis of sex"
include, but are not limited to, because of or on the
basis of pregnancy, childbirth, or related medical
conditions; and women affected by pregnancy, child-
birth, or related medical conditions shall be treated
the same for all employment-related purposes,
including receipt of benefits under fringe benefit
programs, as other persons not so affected but simi-
lar in their ability or inability to work . . . .
42 U.S.C. § 2000e(k). As the Supreme Court subsequently
recognized, the PDA "makes clear that it is discriminatory to
treat pregnancy-related conditions less favorably than other
medical conditions." Newport News Shipbuilding & Dry Dock
Co. v. EEOC, 462 U.S. 669, 684 (1983).
13
Section 703(a) prohibits employers from discriminating against "any
individual with respect to his compensation, terms, conditions, or privi-
leges of employment [ ] because of such individual’s . . . sex." 42 U.S.C.
§ 2000e-2(a)(1).
YOUNG v. UPS 17
In addition to including pregnancy-related conditions
within the definition of sex discrimination in its first clause,
the PDA’s second clause provides that "women affected by
pregnancy . . . shall be treated the same for all employment-
related purposes . . . as other persons not so affected but simi-
lar in their ability or inability to work." 42 U.S.C. § 2000e(k).
Standing alone, the second clause’s plain language is unam-
biguous. See Int’l Union v. Johnson Controls, 499 U.S. 187,
204-05 (1991) ("The second clause could not be clearer: it
mandates that pregnant employees ‘shall be treated the same
for all employment-related purposes’ as nonpregnant employ-
ees similarly situated with respect to their ability to work."
(quoting California Fed. Savings and Loan Ass’n. v. Guerra,
479 U.S. 272, 297 (1987) (White, J., dissenting) (internal
alterations omitted))). But the second clause does not stand
alone; it follows the first clause. Confusion arises when trying
to reconcile language in the first clause suggesting the PDA
simply expands the category of sex discrimination (without
otherwise altering Title VII), and language in the second
clause suggesting the statute requires different—perhaps even
preferential—treatment for pregnant workers.
Although the second clause can be read broadly, we con-
clude that its placement in the definitional section of Title
VII, and grounding within the confines of sex discrimination
under § 703, make clear that it does not create a distinct and
independent cause of action. We further note the anomalous
consequences a contrary position would cause: pregnancy
would be treated more favorably than any other basis, includ-
ing non-pregnancy-related sex discrimination, covered by
Title VII.
Most courts to have considered the potential incongruence
between the PDA’s first and second clauses have concluded
similarly. See Troupe v. May Dep’t Stores Co., 20 F.3d 734,
738 (7th Cir. 1994) ("The Pregnancy Discrimination Act does
not, despite the urgings of feminist scholars . . . require
employers to offer maternity leave or take other steps to make
18 YOUNG v. UPS
it easier for pregnant women to work. Employers can treat
pregnant women as badly as they treat similarly affected but
nonpregnant employees . . . ." (citation omitted)); see also
Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548-49
(7th Cir. 2011); Reeves v. Swift Transp. Co., 446 F.3d 637,
641 (6th Cir. 2006); Spivey v. Beverly Enter., Inc., 196 F.3d
1309, 1312-13 (11th Cir. 1999); Urbano v. Cont’l Airlines,
Inc., 138 F.3d 204, 207-08 (5th Cir. 1998) ("By defining sex
discrimination under Title VII to include pregnancy, Congress
intended to do no more than ‘re-establish principles of Title
VII law as they had been understood prior to the Gilbert deci-
sion,’ and ensure that female workers would not be treated
‘differently from other employees simply because of their
capacity to bear children.’" (citations omitted)); but see
Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir.
1996) ("[W]hen a Title VII litigant alleges discrimination on
the basis of pregnancy in violation of the PDA, in order to
establish a prima facie case of discrimination, she must dem-
onstrate only that another employee who is similarly situated
in her or his ability or inability to work received more favor-
able benefits."). These courts reason that to find otherwise
would be to transform an antidiscrimination statute into a
requirement to provide accommodation to pregnant employ-
ees, perhaps even at the expense of other, nonpregnant
employees.
Interpreting the PDA in the manner Young and the ACLU
urge would require employers to provide, for example,
accommodation or light duty work to a pregnant worker
whose restrictions arise from her (off-the-job) pregnancy
while denying any such accommodation to an employee
unable to lift as a result of an off-the-job injury or illness.
Under this interpretation, a pregnant worker who, like Young,
was placed under a lifting restriction by her healthcare pro-
vider and could not work could claim that the PDA requires
that she receive whatever accommodation or benefits are
accorded to an individual accommodated under the ADA,
because the pregnant worker and the other individual are sim-
YOUNG v. UPS 19
ilar in their ability or inability to work—i.e., they both cannot
work. By contrast, a temporary lifting restriction placed on an
employee who injured his back while picking up his infant
child or on an employee whose lifting limitation arose from
her off-the-job work as a volunteer firefighter would be ineli-
gible for any accommodation. Such an interpretation does not
accord with Congress’s intent in enacting the PDA, see Arm-
strong v. Flowers Hosp., 33 F.3d 1308, 1317 (11th Cir.
1994)("Statements in the legislative history make it clear that
the PDA does not require employers to extend any benefit to
pregnant women that they do not already provide to other dis-
abled employees."), and would thus imbue the PDA with a
preferential treatment mandate that Congress neither intended
nor enacted, see Urbano, 138 F.3d at 208 ("[Plaintiff]’s claim
is thus not a request for relief from discrimination, but rather
a demand for preferential treatment; it is a demand not satis-
fied by the PDA.").
We are unpersuaded that Ensley-Gaines, on which Young
and the ACLU as amicus rely, effects the watershed change
they ascribe to it. Although the court in Ensley-Gaines stated
the second clause "explicitly alters the analysis to be applied
in pregnancy discrimination cases," 100 F.3d at 1226, it ana-
lyzed the plaintiff’s challenge to the United States Postal Ser-
vice’s policy—a policy akin to the one challenged here—not
as direct evidence of sex discrimination, but as circumstantial
evidence under the McDonnell Douglas framework. See
Reeves, 446 F.3d at 641 n.1 (noting Ensley-Gaines primarily
concerned whether the plaintiff had established a prima facie
case under the Title VII analysis). Moreover, given the trou-
bling consequences just outlined of interpreting the PDA in
this broad manner, see Urbano, 138 F.3d at 208 ("The impact
of Ensley-Gaines is unequivocally to treat pregnant employ-
ees who need light duty work better than other employees
with a similar medical need whose conditions arose off-the-
job."), it is unsurprising that no other circuit has followed
Ensley-Gaines. We are similarly compelled to disagree with
its analysis.
20 YOUNG v. UPS
We therefore adhere to the majority view that where a pol-
icy treats pregnant workers and nonpregnant workers alike,
the employer has complied with the PDA. The UPS policy at
issue is not direct evidence of pregnancy-based sex discrimi-
nation.
b.
We next consider whether Myron Williams’s comments
demonstrate "corporate animus" on the part of UPS tanta-
mount to direct evidence of discrimination.14 Young focused
below on Williams’s comments alone, but now contends
those comments amount to evidence of UPS’s "corporate ani-
mus." The district court rejected her previous argument on the
ground that Williams wielded no decisionmaking power over
Young.15 See J.A. 402; see also Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 288-89 (4th Cir. 2004)
(noting that although "the person allegedly acting pursuant to
a discriminatory animus need not be the ‘formal decision-
maker’ to impose liability upon an employer for an adverse
employment action," the plaintiff must present "sufficient evi-
dence to establish that the subordinate was the one ‘princi-
pally responsible’ for, or the ‘actual decisionmaker’ behind,
the action"). Young’s argument on appeal that Williams’s
comments manifest UPS’s corporate animus towards pregnant
workers finds no support in the record; Williams’s statements
stand alone as the only explicit evidence of a pregnancy-
related comment, derogatory or otherwise. Moreover,
Young’s reliance on Merritt, 601 F.3d 289, and Staub v. Proc-
14
Although Williams denies telling Young that her pregnancy made her
a liability and that she should return home until she was no longer preg-
nant, the procedural posture of this case requires us to accept as true
Young’s account.
15
In fact, Young argues that "it is misguided to look to either Martin or
Williams as ‘the’ decisionmaker;" each of them was simply "enforc[ing]
[UPS’s] standing policy by announcing that Young must go home."
Appellant’s Br. at 54. Thus, Young’s "corporate animus" argument is in
essence another attack on UPS’s policy.
YOUNG v. UPS 21
tor Hosp., 131 S. Ct. 1186 (2011), is inapposite as those cases
involved non-decisionmaker colleagues whose pervasive ani-
mus for the plaintiff influenced the ultimate decisionmaker.
No such evidence exists here: Williams neither possessed the
authority to make determinations about Young’s employment
nor sought to influence Martin, who did.16
2.
Because Young presents no direct evidence of pregnancy
discrimination, we next consider whether she offers evidence
sufficient to make out a prima facie case under the McDonnell
Douglas framework. Under this framework, Young must
establish a prima facie case of sex discrimination on her preg-
nancy claim by showing "(1) membership in a protected class;
(2) satisfactory job performance; (3) adverse employment
action; and (4) that similarly-situated employees outside the
protected class received more favorable treatment." Gerner v.
Cnty. of Chesterfield, 674 F.3d 264, 266 (4th Cir. 2012)
(quoting White v. BFI Waste Servs., LLC, 375 F.3d 288, 295
(4th Cir.2004)) (internal alterations omitted).17 Again, the
focus of her challenge is the UPS policy.
Young fell within the protected class, raised at least a genu-
ine issue of material fact regarding her job performance,18 and
16
The single statement Young offers from a co-worker suggesting "no-
body would have stopped" a manager like Williams from placing Young
on light duty because "[t]hat is just how it works," see J.A. 539, is insuffi-
cient to create a genuine issue of disputed material fact. Even assuming
Williams did have such authority to decide whether Young should be
given light duty, Young offers no reason to conclude that he would or
should have interpreted UPS policy regarding the availability of light duty
for pregnant employees any differently than Martin did.
17
We have also described the fourth prong as considering whether the
allegedly adverse employment action occurred "under circumstance[s]
giving rise to an inference of unlawful discrimination." Mackey v. Shalala,
360 F.3d 463, 468 (4th Cir. 2004).
18
UPS argues that Young cannot satisfy the second element of the prima
facie case because the lifting restriction rendered her unqualified for an air
22 YOUNG v. UPS
suffered an adverse employment action when she could not
continue working. Thus, the dispute here centers on the final
element of the prima facie case: whether similarly-situated
employees outside the protected class received more favor-
able treatment than Young, or more broadly, whether UPS’s
decision to prevent Young from either receiving an accommo-
dation or returning to work occurred "under circumstance[s]
giving rise to an inference of unlawful discrimination."
Mackey, 360 F.3d at 468. In particular, Young and UPS
sharply disagree about who constitutes an appropriate "com-
parator" in this context.
At bottom Young seeks to compare herself to employees
accommodated under the ADA, drivers who have lost their
DOT certification for medical reasons, and employees injured
on the job. As we have already noted, however, these accom-
modations were created by a neutral, pregnancy-blind poli-
cy—a policy she can attack indirectly no more successfully
than she could directly.
Moreover, we conclude that a pregnant worker subject to
a temporary lifting restriction is not similar in her "ability or
inability to work" to an employee disabled within the meaning
of the ADA or an employee either prevented from operating
a vehicle as a result of losing her DOT certification or injured
on the job. Young is dissimilar to an employee disabled under
the ADA for the same reason she herself was not disabled: her
lifting limitation was temporary and not a significant restric-
tion on her ability to perform major life activities. She is
driver position. See Appellant’s Br. at 48-51. UPS raised this argument
below, see J.A. 168-69, but the district court did not address it. Although
there is (out-of-circuit) case law supporting UPS’s position, see Spivey,
196 F.3d at 1312 ("The [twenty-five pound] lifting restriction imposed on
[the plaintiff] clearly prevented her from performing the responsibilities
required of this position."), the record also indicates Young may have been
able to perform satisfactorily even with the restriction. At a minimum, this
is a disputed issue of material fact inappropriate for a court to decide at
the summary judgment stage.
YOUNG v. UPS 23
unlike employees guaranteed an inside job or light duty under
the CBA provision19 for drivers who have lost DOT certifica-
tion for at least two reasons. First, no legal obstacle stands
between her and her work. A driver who has lost his or her
DOT certification is legally disabled from operating a vehicle;
Young’s physical impairment only restricted her ability to lift.
Second, as the district court observed, "those with DOT certi-
fication maintained the ability to perform any number of
demanding physical tasks, while Young labored under an
apparent inability to perform tasks involving lifting." J.A.
411. Finally, Young is not similar to employees injured on the
job because, quite simply, her inability to work does not arise
from an on-the-job injury. The CBA provision requiring UPS
to accommodate those employees injured while carrying out
job duties for the company but not while pursuing other activ-
ities reasonably places a heightened obligation on UPS to
accommodate the former group. The PDA does not render this
distinction unlawful.
We are also unpersuaded that Martin’s decision occurred
under circumstances "giving rise to an inference of unlawful
discrimination." Mackey, 360 F.3d at 468. According to
Young, these circumstances consist of (1) Martin’s solicita-
tion of a doctor’s note from Young identifying her restric-
tions; (2) Martin’s statement that UPS policy did not provide
light duty for pregnant workers; and (3) Williams’s comments
about Young as a liability while pregnant. However, with the
exception of Williams’s comments, which played no role in
Martin’s decision, these facts fail to demonstrate the specific
animus Young ascribes to them. Even assuming Martin solic-
ited a note from Young, there is no indication that this was
not done with all employees returning from leave, or that
Martin did so because Young was pregnant. And Martin’s
statement about UPS’s policy providing light duty in three
19
Although Young also contends that the CBA was negotiated and inter-
preted with discriminatory animus, she presents no support for this conten-
tion in the record.
24 YOUNG v. UPS
instances—but not for pregnancy—is simply one of fact. One
may characterize the UPS policy as insufficiently charitable,
but a lack of charity does not amount to discriminatory ani-
mus directed at a protected class of employees.
Accordingly, we conclude that Young cannot establish that
similarly situated employees received more favorable treat-
ment than she did, and therefore cannot establish the fourth
element of the prima facie case for pregnancy discrimination.
While not unsympathetic to Young’s circumstances, we are
nevertheless concerned about the problematic potential of cre-
ating rights not grounded in the text and structure of Title VII
as a whole.
III.
We therefore affirm the decision of the district court.
AFFIRMED