Bill HARNESS, Plaintiff-Appellant, v. HARTZ MOUNTAIN CORP., Defendant-Appellee , 877 F.2d 1307 ( 1989 )

BAILEY BROWN, Senior Circuit Judge.

This reverse discrimination case involves an interpretation of Kentucky’s statutory counterpart to the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), and the Kentucky statute’s application to the pregnancy leave policy of Hartz Mountain Corporation (Hartz). Harness contends that Hartz’ policy discriminates in favor of pregnant employees and against male employees. We believe that the Supreme Court’s opinion in California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), permits the favorable treatment accorded pregnant employees by the Hartz policy. Accordingly, we affirm the district court’s grant of summary judgment in Hartz’ favor.

FACTS

Bill Harness was employed by Household Research Institute (HRI) in July of 1972. In 1986, HRI was purchased by Hartz and on March 1, 1986, Harness became an employee of Hartz.

On June 6, 1986, Hartz was informed that Harness had suffered a heart attack and would require a leave of absence. Hartz placed Harness on unpaid leave on June 9, 1986, pursuant to the following policy applicable to non-union employees such as Harness:

If your leave is for illness or non-work related injury, you are eligible for a thirty (30) day leave. If you are unable to return after the first 30-day leave, you may request an extension, in writing, with a doctor’s note attached indicating your return to work date. If you are unable to return after 60-days (original leave plus 30-day extension), you may request another 30-day extension, in writing, with another doctor’s note attached indicating your return to work date. If you cannot return after the aforementioned 90-days, you will be considered to have resigned your position because of illness.

Shortly after he was placed on unpaid leave, Harness was sent a copy of this policy by Hartz along with an acknowledgment form, which Harness signed on June 23, 1986, stating: “I have received your letter regarding the Company’s Leave of Absence procedures and agree to abide by them. I understand that failure to follow these procedures will result in my voluntary resignation.”

Harness was granted the two 30-day extensions allowed in the policy. The maximum 90-day period of unpaid leave expired on September 9, 1986. Since Harness was unable to return to work at that time due to his continued illness, Hartz considered him to have resigned as of September 9, 1986.

The next month, Harness obtained a statement from his treating physician advising that Harness could return to work on October 14,1986,125 days from the day his unpaid leave began. Hartz abided by its policy and refused to reinstate Harness.

On August 6, 1987, Harness filed suit against Hartz in Jefferson Circuit Court alleging reverse discrimination in violation of KRS §§ 344.030(6) and 344.040(1). Harness contended that a provision in Hartz’ leave policy accorded more favorable treatment to pregnant employees and thus discriminated against male employees. That policy provision states:

If your leave is for maternity related reasons, you are entitled to a 90-day leave to be used before and after the date of delivery. This type of leave may be extended up to one (1) year, provided a written request is made each sixty (60) days.

At the request of Hartz, the suit was removed to federal district court on October 1, 1987, on the basis of diversity of citizenship. After stipulating to the facts, both parties moved for summary judgment. On June 20,1988, the district court granted summary judgment in favor of Hartz. Harness now appeals to this court.

ANALYSIS

In 1980, Kentucky enacted its counterpart to Title YII’s Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k). The PDA is a definitional amendment to Title VII which was added in 1978 to “clarif[y] that the prohibitions against sex discrimination in the act include discrimination in employment based on pregnancy, childbirth, or related medical conditions.” H.R. Rep. No. 95-948, 95th Cong., 2d Sess. 1, reprinted in 1978 U.S.Code Cong. & Admin.News 4749, 4749. The Kentucky statute, KRS § 344.030(6), mirrors, word-for-word, the pertinent definitional language of the PDA. KRS § 344.030(6) provides:

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, childbirth, 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 similar in their ability or inability to work, and nothing in this section shall be interpreted to permit otherwise.

Harness contends that by virtue of the definition of sex discrimination in KRS § 344.030(6), he was discriminated against under KRS § 344.040(1) which provides:

It is an unlawful practice for an employer:

(1) To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, national origin, sex, or age between forty (40) and seventy (70)

The pregnancy leave policy of Hartz, Harness asserts, does not treat pregnant and non-pregnant employees the same and thus discriminates against male employees on the basis of sex, i.e., on the basis of pregnancy.

As there are no dispositive Kentucky court decisions interpreting KRS § 344.030(6) as it applies to KRS § 344.040(1), we must turn to the federal court decisions interpreting the PDA to decide this case. Irvin v. Airco Carbide, 837 F.2d 724, 726 n. 1 (6th Cir.1987) (“The cases construing Title VII are applicable in determining discrimination under the Kentucky Civil Rights statute, Ky.Rev.Stat. § 344.040 (1983).”); Kentucky Comm’n on Human Rights v. Commonwealth, 586 S.W.2d 270, 271 (Ky.Ct.App.1979) (“The Kentucky statute [KRS § 344.040] is virtually identical to the corresponding section of the U.S. Civil Rights Act of 1964, codified in 42 U.S.C. § 2000e-2(a). Therefore, United States Supreme Court decisions regarding the federal provisions are most persuasive, if not controlling, in interpreting the Kentucky statute. Kentucky Com’n v. Com., Dept. for Human Resources, Ky.App., 564 S.W.2d 38 (1978).”).¹ See also KRS § 344.020(1) (“The general purposes of this chapter are: (a) To provide for execution within the state of the policies embodied in the Federal Civil Rights Act of 1964....”); Evans v. General Tire and Rubber Co., 662 S.W.2d 843 (Ky.Ct.App.1983); Kentucky Comm’n on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350 (Ky.Ct.App.1982), cert. denied, 462 U.S. 1133, 103 S.Ct. 3115, 77 L.Ed.2d 1369 (1983).

The Supreme Court in California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), held that the PDA did not preempt a California statute which provided for up to four months of unpaid pregnancy disability leave and did not require similar leave for other disabled employees. The Court concluded that the PDA permitted some preferential treatment of pregnant employees. “Accordingly, subject to certain limitations, we agree with the Court of Appeals’ conclusion that Congress intended the PDA to be ‘a floor beneath which pregnancy disability benefits may not drop — not a ceiling above which they may not rise.’ 758 F.2d, [390] at 396.” Id. 479 U.S. at 285, 107 S.Ct. at 692 (footnote omitted). After reviewing the legislative history of the PDA, the Court noted: “It is hardly conceivable that Congress would have extensively discussed only its intent not to require preferential treatment if in fact it had intended to prohibit such treatment.” Id. at 287, 107 S.Ct. at 693.

In the present case, the pregnancy leave policy of Hartz gives preferential treatment to pregnant employees. Such employees are permitted to take up to one year of unpaid leave for “maternity related reasons.” Other employees, such as Harness, are allowed only 90 days of unpaid sick leave. Since the Guerra Court held, however, that such preferential treatment is permissible under the PDA, it follows that the preferential treatment accorded pregnant employees under the Hartz policy is permissible under KRS §§ 344.030(6) and 344.040(1). See Kentucky Comm’n on Human Rights, 586 S.W.2d at 271. We conclude that the Hartz policy did not effect discriminatory treatment of Harness in violation of the applicable Kentucky statutes.

We therefore AFFIRM the district court’s grant of summary judgment in favor of Hartz Mountain Corporation.

1 . Not only is a decision by the Supreme Court of the United States interpreting the federal statute "most persuasive ... in interpreting the Kentucky statute," it should also be noted that the decision in the district court in this case was made by Hon. Thomas A. Ballantine, Jr., who was a state circuit judge for thirteen years before he became a federal district judge in 1979. We should give great weight to this district judge’s determination of state law. C. Wright, Law of Federal Courts § 58 (1976).