Guarino v. Potter , 102 F. App'x 865 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 28, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 03-31139
Summary Calendar
_____________________
LISA GUARINO,
Plaintiff - Appellant,
versus
JOHN E. POTTER, POSTMASTER GENERAL,
as agent for the UNITED STATES POSTAL SERVICE,
Defendant - Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CV-3323-K
_________________________________________________________________
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Lisa Guarino is a part-time postal service distribution clerk.
She filed a complaint against the local postmaster alleging sex and
pregnancy discrimination. After the ALJ found against her, she
brought this suit in the district court against Postmaster General
John E. Potter, as agent of the United States Postal Service. Both
parties filed cross-motions for summary judgment, and the district
court granted Potter’s motion and dismissed Guarino’s complaint
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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with prejudice. For essentially the reasons stated by the district
court, we affirm.
I
At the time the dispute arose, Guarino was employed by the
Postal Service as a part-time flexible distribution clerk. While
employees in this position are not guaranteed any set schedule or
number of hours beyond a minimum of two hours per week, Guarino was
regularly scheduled for 30-35 hours. The Postal Service offers
“light duty” to part-time flexible employees who are injured, sick,
or pregnant. It also offers light duty work to full-time employees
who are injured off the job, although the nomenclature is
different. “Light duty” does not guarantee any level of work
assignment. Full-time employees injured on the job qualify for
“limited duty,” which guarantees the prior level of work hours.
The collective bargaining agreement between the Postal Service and
Guarino’s union provides that assignment of any employee to light
duty shall not be made to the detriment of any full-time employee,
and that a reassigned part-time employee, such as Guarino in this
case, shall not be given preference over other part-time employees.
Guarino learned that she was pregnant in January 1995 and,
after Guarino’s physician placed restrictions on Guarino’s work,
she requested light duty from her postmaster, Harvey Shoemake.
Shoemake did not let Guarino work for about three weeks while she
had her doctor fill out the appropriate light duty forms; he then
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approved Guarino’s request in mid-February. Shoemake approved a
second light duty request in March that further restricted
Guarino’s work. Guarino was then given an assignment of driving a
Postal Service vehicle to deliver mail, until her doctor restricted
this activity in her April light duty request. Subsequent light
duty forms contained the same restrictions as the April forms.
In May, after a letter from Guarino’s attorney complained
about “discriminatory labor practicies” and requested that Shoemake
reinstate Guarino to her “normal hours,” Shoemake rescinded
Guarino’s light duty assignment because of “numerous absences.”
From January 1 to May 15, 1995, Guarino was absent on 41 of 96 days
she was scheduled to work. The rescission of light duty resulted
in Guarino’s absence from work from May 15 to May 23, at which
point Shoemake reinstated Guarino’s light duty after receiving
assurances from Guarino’s immediate supervisor and union steward.
Though subsequent light duty forms were not signed by Shoemake,
Guarino continued to be scheduled for light duty until she stopped
working for medical reasons in August.
Between January and July, Guarino’s schedule had decreased
from 30-35 hours per week to 12-16 hours per week. She was
assigned work within her medical restrictions when such work was
available, and was sent home when no work was available within her
limitations. The Postal Service, in accordance with the collective
bargaining agreement, would not take work away from a full-time
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employee to provide work to Guarino.
In July, Guarino contacted an EEO counselor and initiated an
informal complaint against Shoemake, alleging pregnancy
discrimination based on incidents that had occurred between January
and July. She filed a formal complaint in September 1995, and in
June 2002 had a hearing before an EEOC ALJ, who found that Guarino
had produced insufficient evidence to support a finding of
discrimination. Guarino then brought the instant suit in the
district court, alleging in relevant part that the Postal Service
violated the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k),
by: making her employment more difficult during pregnancy; refusing
her light duty and rejecting the light duty forms she submitted;
cutting her work hours and deducting leave hours wrongfully;
scrutinizing her work, harassing her and treating her more harshly
than other employees; and establishing an agency-wide policy that
employees on “limited duty” because of work-related injuries be
treated more favorably than similarly situated employees who were
pregnant or suffered non-work-related absences.
The parties stipulated that the case would be submitted on
cross-motions for summary judgment in lieu of trial, and the
district court held in favor of Potter, which decision Guarino now
appeals.
II
Of the several claims decided by the district court on summary
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judgment, Guarino appeals the disposition of only one: that making
special provisions for federal employees with on-the-job injuries
different from those who are pregnant violates the Pregnancy
Discrimination Act. This claim presents two issues: 1) whether
the Pregnancy Discrimination Act requires the Post Office to treat
pregnancy the same as a job-related injury; and 2) whether the
district court erred in concluding that Guarino failed to show that
the Postal Service’s reasons for adverse employment actions were
pretext for discrimination.
The district court held that the Postal Service’s light duty
policy was not illegally discriminatory as between pregnant and
other employees and that Guarino failed to establish a prima facie
case of discrimination based on adverse personnel actions. It thus
denied Guarino’s motion for summary judgment, and granted Potter’s.
We review grants and denials of summary judgment de novo, applying
the same legal standards as the district court. Hall v. Gillman,
Inc., 81 F.3d 35, 36-37 (5th Cir. 1996).
The crux of Guarino’s argument is that the Postal Service
unlawfully restricted her, as a pregnant woman, to light duty, and
precluded her from limited duty, because limited duty assignments
are only given to employees with on-the-job injuries. This
argument has no merit. While it is true that the Postal Service
decides who is eligible for light duty, subject to its collective
bargaining obligations, Guarino errs in contending that the same is
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true of limited duty. It is Congress, through the Federal
Employees Compensation Act (FECA), that requires that federal
employees injured on the job be compensated for their injuries. 5
U.S.C. § 8102; 39 U.S.C. § 1005(c). And it is the Secretary of
Labor, while administering and enforcing FECA per 5 U.S.C. § 8149,
who has required that the Postal Service make special efforts to
employ those injured employees, who will otherwise be compensated
for doing nothing. See 20 C.F.R. § 10.507(b). The Secretary
oversees restricted duties under FECA, and he has not made special
provisions for pregnant employees. Id. at § 10.507(c).
Moreover, this case falls under Title VII of the Civil Rights
Act of 1964, which equates pregnancy discrimination with sex
discrimination. 42 U.S.C. § 2000e(k). The “central focus” of a
sex discrimination inquiry is whether an employer is treating
employees less favorably because of their sex. See, e.g., Furnco
Constr. Corp. v. Walters, 438 U.S. 567, 577 (1978). The record
shows that Guarino was not denied limited duty because of her sex
-- or because she was pregnant -- but because apparently her
condition was not the result of on-the-job injury, if an injury at
all. And we have twice held that the Pregnancy Discrimination Act
does not require employers to give pregnant women benefits that
other, similarly situated employees do not get. Stout v. Baxter
Healthcare Corp., 282 F.3d 856, 859-62 (5th Cir. 2002); Urbano v.
Continental Airlines, 138 F.3d 204, 206-08 (5th Cir. 1998).
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The facts in Urbano are virtually identical to the facts in
this case, except that the defendant in that case was responsible
for administering its own light duty program, while the Postal
Service must follow the Secretary of Labor’s regulations. Urbano
forecloses Guarino’s argument and, despite her request that we
somehow “revisit” that decision, we find ourselves not only bound
by its force as precedent but by its force as logic. Our precedent
is clear: a distinction between injuries/illnesses incurred off-
versus on-the-job is legal as long as it is applied equally. To
mandate that Guarino, whose condition indisputably places her in
the “light duty” category under the collective bargaining
agreement, be classified as “limited duty” would be to mandate
preferential treatment for pregnant employees over other workers
with non-occupational injuries/illnesses. This the law forbids.
Finally, Guarino’s argument that there is a disputed issue
over pretext for discrimination is meritless. It is based on
nothing more than Guarino’s belief that Congress and the Secretary
of Labor have made an unwise distinction. Further, the Postal
Service has met its burden in proferring legitimate,
nondiscriminatory reasons for the reduction in Guarino’s hours and
all other alleged adverse employment actions; Guarino’s mere
subjective belief is insufficient to rebut this evidence. See,
e.g., Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir.
2000).
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In sum, the district court properly granted summary judgment
to the Postmaster General on the issues that are the subject of
this appeal.
III
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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