Stephanie Hicks v. City of Tuscaloosa, Alabama

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13003
________________________
D.C. Docket No. 7:13-cv-02063-TMP
STEPHANIE HICKS,
Plaintiff-Appellee,
versus
CITY OF TUSCALOOSA, ALABAMA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 7, 2017)
Before WILSON and NEWSOM, Circuit Judges, and WOOD, * District Judge.
WILSON, Circuit Judge:
*
Honorable Lisa Wood, United States District Judge, for the Southern District of Georgia, sitting
by designation.
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Stephanie Hicks brought this action against the Tuscaloosa Police
Department under the Pregnancy Discrimination Act (PDA) and the Family and
Medical Leave Act (FMLA) after her reassignment and constructive discharge.
Hicks prevailed at a jury trial, and the City now appeals the denial of its motion for
judgment as a matter of law, its motion for a new trial, and the allegedly erroneous
jury instructions. After a careful review of the record and the parties briefs, and
with the benefit of oral argument, we find no reversible error on any issue; we
affirm.
I. Background
Hicks worked for the Tuscaloosa Police Department, first as a patrol officer
and then as an investigator on the narcotics task force. She was working on the
narcotics task force when she became pregnant in January 2012. Hicks’s captain at
the time, Jeff Synder, allowed her to work on pharmaceutical fraud cases so she
could avoid working nights and weekends. Lieutenant Teena Richardson, Hicks’s
supervisor, admitted that it bothered her that Captain Synder allowed Hicks to
avoid “on call” duty. Despite Richardson telling Hicks more than once that she
should take only six weeks of FMLA leave, Hicks took twelve weeks of FMLA
leave from August 2012 to November 2012. Meanwhile, Captain Synder was
caught embezzling and was replaced with Captain Wayne Robertson.
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Prior to her FMLA leave, Hicks received a performance review from her
supervisor Richardson that said Hicks “exceeded expectations.” But on Hicks’s
first day back from leave, she was written up. She was also told she should start
working with five to seven confidential informants. Hicks overheard Richardson
talking to Captain Robertson saying “that b****,” 1 and claiming she would find a
way to write Hicks up and get her out of here. And another officer overheard
Richardson talking loudly about Hicks saying “that stupid c*** thinks she gets 12
weeks. I know for a fact she only gets six.”
The City argued that Hicks only met with one informant and never even
spoke to the others. The City also claimed that Hicks did not want to work nights,
declined to meet with an informant after hours because she had to pick up her child
from daycare, and chose not to attend a drug bust on a Saturday. Captain
Robertson said he met with Hicks to determine why she was not working with the
informants and helped her get started by arranging a ride-along with another agent
and his informant. When Hicks did not follow up from the ride-along, Captain
Robertson requested that Chief Steve Anderson reassign Hicks from the narcotics
task force to the patrol division. Hicks countered that she worked several of the
informants, and she was not introduced to the rest by their current agent. Hicks
was also warned by another agent that Richardson had it out for her.
1
Richardson admitted to calling Hicks a “b****.”
3
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Following Captain Robertson’s recommendation, Chief Anderson met with
Hicks in December, only eight days after she returned from FMLA leave. Chief
Anderson testified that Hicks preferred Synder (her old Captain) and was not
willing to comply with her new boss, Captain Robertson. Chief Anderson
reassigned Hicks to the patrol division. Chief Anderson testified that he
transferred Hicks solely based on Captain Robertson’s recommendation and that he
always followed Captain Robertson’s recommendations. Captain Robertson
testified that when he made his recommendation to Chief Anderson, he did not
want it to look like Hicks was transferred because of her pregnancy, given that she
had only been back eight days. As a result of the reassignment, Hicks lost her
vehicle and weekends off, and she was going to receive a pay cut and different job
duties. Additionally, officers in the narcotics task force are not required to wear
ballistic vests all day, whereas patrol officers are.
After the reassignment, Richardson wrote a letter outlining the reasons for
the demotion. The letter critiques Hicks because when officers went to Hicks’s
home to pick up her vehicle Hicks did not come to the door. Yet the letter also
admits that Hicks’s husband came to the door and said Hicks was breastfeeding.
Before she started back in the patrol division, Hicks took time off when a
physician diagnosed her with postpartum depression. Richardson admitted that she
asked Hicks if she was suffering from postpartum because “something was
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different about [her] . . . [she] was a new mom and . . . new moms go through
depressed states.” During this leave for postpartum depression, Hicks’s doctor
wrote a letter to Chief Anderson recommending that she be considered for
alternative duties because the ballistic vest she was now required to wear on patrol
duty was restrictive and could cause breast infections that lead to an inability to
breastfeed. But Chief Anderson did not believe that Hicks had any limitations
because other breastfeeding officers had worn ballistic vests without any problems.
When she returned from leave, Chief Anderson met with Hicks again. In
accordance with her doctor’s suggestion, Hicks requested a desk job where she
would not be required to wear a vest and assurances that she would be allowed to
take breaks to breastfeed. But because Chief Anderson did not consider
breastfeeding a condition that warranted alternative duty, he replied that Hicks’s
only options for accommodations were (1) not wearing a vest or (2) wearing a vest
that could be “specially fitted” for her. He also told her that she would be assigned
to a beat that allowed her access to lactation rooms, and that she could get priority
to take two breastfeeding breaks per shift. But to Hicks, not wearing a vest was no
accommodation at all because it was so dangerous. Furthermore, the larger or
“specially fitted” vests were also ineffective because they left gaping, dangerous
holes. Hicks resigned that day.
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Hicks then filed this suit against the City of Tuscaloosa, and a jury
considered four claims: (1) pregnancy discrimination, (2) constructive discharge,
(3) FMLA interference, and (4) FMLA retaliation. The jury returned with a verdict
for the City on the FMLA interference claim, but in favor of Hicks on all of the
other claims. The jury found that the reassignment was discriminatory, in violation
of the PDA, and retaliatory, in violation of the FMLA. The jury also found that the
City’s failure to accommodate Hicks’s breastfeeding requests constituted
discriminatory constructive discharge, in violation of the PDA. The jury awarded
Hicks $374,000. The magistrate judge reduced the award to $161,319.92 plus
costs and attorneys’ fees.
II. Standard of Review
We review “a district court’s denial of a motion for judgment as a matter of
law de novo,” reviewing all evidence “in a light most favorable to the nonmoving
party.” Williams v. Dresser Indus., Inc., 120 F.3d 1163, 1167 (11th Cir. 1997).
And we review a district court’s ruling on a motion for new trial for abuse of
discretion. United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009)
(per curiam).
III. Reassignment
Hicks argued that her reassignment from the narcotics task force to the
patrol division was both a discriminatory violation of the PDA and retaliation in
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violation of the FMLA. The City argues that Hicks did not prove that each of the
reasons proffered by the City for her reassignment were false and that
discrimination was the real reason. The City maintains that Hicks was reassigned
for her poor job performance. The jury found, and we agree, that there was
sufficient evidence of discrimination.
The PDA amended Title VII to include discrimination “on the basis of
pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). After
a jury trial, our job is to decide the ultimate question, which is “whether the
evidence, when viewed as a whole, yields the reasonable inference that the
employer engaged in the alleged discrimination . . . . Put another way, the issue is
whether there is ‘a convincing mosaic of circumstantial evidence that would allow
a jury to infer intentional discrimination.’” See Holland v. Gee, 677 F.3d 1047,
1056–57 (11th Cir. 2012) (internal citation and quotation marks omitted);
Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir. 1984).
To prove her claim under the FMLA, Hicks must show that: “(1)[s]he
availed [her]self of a protected right under the FMLA; (2) [s]he suffered an adverse
employment decision; and (3) there is a causal connection between the protected
activity and the adverse employment decision.” Wascura v. City of S. Miami,
257 F.3d 1238, 1248 (11th Cir. 2001) (internal quotation marks omitted).
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The evidence taken in the light most favorable to Hicks provides ample
evidence that Hicks was both discriminated against on the basis of her pregnancy
and that she was retaliated against for taking her FMLA leave. Multiple overheard
conversations using defamatory language plus the temporal proximity of only eight
days from when she returned to when she was reassigned support the inference that
there was intentional discrimination.
Additionally, the City’s focus on comparator evidence is misplaced.
Title VII does not require employees to show comparator evidence at this stage of
the proceedings; it only requires evidence that there was discrimination. Both
parties structure their briefs under the McDonnell Douglas 2 framework, but in
doing so, both parties failed to take into account the change in role of that
framework at this stage in the proceedings. While the McDonnell Douglas
framework still has some application after a jury verdict, that role is a diminished
one. See Holland v. Gee, 677 F.3d 1047, 1056 (11th Cir. 2012) (“At this stage [in
the proceedings, i.e., after a jury returned a verdict], the plaintiff's burden of
rebutting the employer’s proffered reasons merges with the plaintiff’s ultimate
burden of persuading the finder of fact that she has been the victim of intentional
discrimination.” (internal quotation marks omitted)). At this stage, our job is only
to decide if there was enough evidence for the jury to infer discrimination. See id.
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 1824 (1973).
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We find that there was enough convincing evidence that would allow a jury to
infer intentional discrimination; we affirm.
IV. Constructive Discharge
Hicks argued that Chief Anderson’s proffered options––patrolling without a
vest or patrolling with an ineffective larger vest––made work conditions so
intolerable that any reasonable person would have been compelled to resign. The
City argued that Hicks failed to show that Chief Anderson harbored any
discriminatory animus towards Hicks or that he deliberately made her working
conditions intolerable. The City points to the fact that Chief Anderson offered to
accommodate Hicks by assigning her to a safe beat with access to lactation rooms,
priority in receiving breaks, and a tailored vest. However, the jury found that the
conditions offered by Chief Anderson were so intolerable that a reasonable person
would be forced to resign.
Constructive discharge claims are appropriate when “an employer
discriminates against an employee to the point such that his working conditions
become so intolerable that a reasonable person in the employee’s position would
have felt compelled to resign.” Green v. Brennan, 578 U.S. ___, ___, 136 S. Ct.
1769, 1776 (2016). “When the employee resigns in the face of such
circumstances, Title VII treats that resignation as tantamount to an actual
discharge.” Id. at 1776–77.
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“[E]mployment discrimination, including discrimination on the basis of
sex,” is prohibited by Title VII of the Civil Rights Act. California Fed. Sav. &
Loan Ass’n v. Guerra, 479 U.S. 272, 276–77, 107 S. Ct. 683, 687 (1987). In
response to a Supreme Court holding that discrimination on the basis of pregnancy
is not sex discrimination, 3 Congress amended Title VII to include the Pregnancy
Discrimination Act (PDA). The PDA amended Title VII to add that discrimination
“because of sex” or “on the basis of sex,” includes discrimination “on the basis of
pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). The
issue here is whether breastfeeding is a “related medical condition[].” The Fifth
Circuit Court of Appeals has held that lactation is a related medical condition to
pregnancy and thus terminations based on a woman’s need to breastfeed violate the
PDA. See E.E.O.C. v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir.
2013)4 (“Lactation is the physiological process of secreting milk from mammary
glands and is directly caused by hormonal changes associated with pregnancy and
childbirth.”). When a woman was fired after telling her employer that she was
lactating and asking whether she would be permitted to use a back room to pump
milk, the Fifth Circuit looked at dictionary definitions of “medical condition” and
3
See General Electric Co. v. Gilbert, 429 U.S. 125, 136–38, 97 S. Ct. 401, 408–09 (1976).
4
But cf. Wallace v. Pyro Min. Co., 951 F.2d 351, 351 (6th Cir. 1991) (per curiam) (holding in an
unpublished opinion that because the plaintiff had not established that “breastfeeding her child
was a medical necessity” the court would not decide if the PDA was applicable);
Barrash v. Bowen, 846 F.2d 927, 931 (4th Cir. 1988) (per curiam) (stating in dicta that “[u]nder
the [PDA], pregnancy and related conditions must be treated as illnesses only when
incapacitating”).
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found that it includes any physiological condition, which encompasses lactation.
See id. at 428–29. We agree with the Fifth Circuit’s determination that lactation is
a related medical condition and therefore covered under the PDA. 5
A plain reading of the PDA supports the finding that the breastfeeding
likewise is covered under the PDA. 6 The explicit language of the PDA says that it
covers discrimination “because of” or “on the basis of sex” and is “not limited to
[discrimination] because of or on the basis of pregnancy, childbirth, or related
medical conditions.” 42 U.S.C. § 2000e(k) (emphasis added). The frequently used
statutory interpretation canon ejusdem generis states that, “when a drafter has
5
While the City disputes that lactation counts as a medical condition under the PDA, this is not
a novel conclusion. As one court noted, “the trend post-Houston Funding . . . has been to follow
the Fifth Circuit’s reasoning and hold that lactation is a ‘condition related to pregnancy’” under
the PDA.” Mayer v. Prof’l Ambulance, LLC, 211 F. Supp. 3d 408, 417 (D.R.I. 2016); see, e.g.,
Allen-Brown v. D.C., 174 F. Supp. 3d 463, 478 (D.D.C. 2016) (“Although the D.C. Circuit has
yet to address this question, the Court finds the Fifth Circuit’s analysis in [Houston Funding]
persuasive.”); EEOC v. Vamco Sheet Metals, Inc., 2014 WL 2619812, at *6 (S.D.N.Y. June 5,
2014) (finding that allegations that the plaintiff “was harassed for taking lactation breaks and
eventually terminated . . . may [enable her] to state a claim for disparate treatment under
Title VII”); Martin v. Canon Bus. Sols., Inc., 2013 WL 4838913, at *8 n.4 (D. Colo. Sept. 10,
2013) (“[T]he Court agrees with a recent decision of the Fifth Circuit in which it held that
‘discriminating against a woman who is lactating or expressing breast milk violates Title VII and
the PDA.’”).
6
The Fifth Circuit held that discriminating against a woman because she is “lactating or
expressing milk” is a violation of the PDA. Houston Funding, 717 F.3d at 430. Any argument
that lactation and breastfeeding should be treated differently is misplaced. Such a distinction
between such intertwined acts would be unworkable for courts. Furthermore, “[t]he fact that
breastfeeding, unlike lactation, is a choice . . . does not change its gender-specific nature.” Diana
Kasdan, Reclaiming Title VII and the PDA: Prohibiting Workplace Discrimination Against
Breastfeeding Women, 76 N.Y.U. L. Rev. 309, 339 (2001). Pregnancy is also a “choice,” but
Congress has made it clear that to discriminate against women for choosing to become pregnant
is indisputably a violation of the PDA. Int’l Union, United Auto., Aerospace & Agr. Implement
Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 206, 111 S. Ct. 1196, 1207
(1991) (“Congress made clear that the decision to become pregnant or to work while being either
pregnant or capable of becoming pregnant was reserved for each individual woman to make for
herself.”).
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tacked on a catchall phrase” to “an emumeration of specifics,” additional
inclusions would be appropriate if they are sufficiently similar. See Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199 (2012).
Given that Congress included pregnancy and childbirth and explicitly used the
words “not limited to,” it is a common-sense conclusion that breastfeeding is a
sufficiently similar gender-specific condition covered by the broad catchall phrase
included in the PDA. Breastfeeding is a gender-specific condition because it
“clearly imposes upon women a burden that male employees need not—indeed,
could not—suffer.” Houston Funding, 717 F.3d at 428.
Furthermore, reading the language of the PDA to cover breastfeeding is
consistent with the purpose of the PDA. The PDA was meant to clarify that the
protections of Title VII “extend[ ] to the whole range of matters concerning the
childbearing process,” and “to include the[] physiological occurrences peculiar to
women.” 7 Indeed the Supreme Court has recognized that the “entire thrust” behind
the PDA was “to guarantee women the basic right to participate fully and equally
in the workforce, without denying them the fundamental right to full participation
in family life.” Guerra, 479 U.S. at 289, 107 S. Ct. at 693–94 (internal quotation
marks omitted); see also Int’l Union, United Auto., Aerospace & Agr. Implement
Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 204,
7
H.R. Rep. No. 95-948, at 5 (1978); S. Rep. No. 95-331, at 4 (1977).
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111 S. Ct. 1196, 1206 (1991) (The PDA provides that “women as capable of doing
their jobs as their male counterparts may not be forced to choose between having a
child and having a job.”). We have little trouble concluding that Congress
intended the PDA to include physiological conditions post-pregnancy. The PDA
would be rendered a nullity if women were protected during a pregnancy but then
could be readily terminated for breastfeeding––an important pregnancy-related8
“physiological process.” See Houston-Funding, 717 F.3d at 428. 9
Our conclusion is not meant to displace the abundance of case law ruling
that employers do not have to provide special accommodations to breastfeeding
workers. The Fifth Circuit and many district courts have held that employers are
not required to provide special accommodations for breast-feeding employees. See
Houston Funding, 717 F.3d at 430 (Jones, J., concurring) (“The panel opinion does
not cast doubt on the holdings of those cases rejecting . . . claims [of women who
wanted to use a breast pump at work]” and that, “if [ the plaintiff] intended to
request special facilities or down time during work to pump or ‘express’ breast
milk, she would not have a claim under Title VII or the PDA.”).
8
The American medical community overwhelmingly recommends breastfeeding. See, e.g., Am.
Acad. of Pediatrics, Policy Statement: Breastfeeding and the Use of Human Milk, 129 Pediatrics
e827 (2016), http://pediatrics.aappublications.org/content/pediatrics/early/2012/02/22/peds.2011-
3552.full.pdf.
9
Indeed we find a narrow reading of the PDA to limit pregnancy discrimination claims to those
that are based on actions that occurred during the pregnancy deeply problematic. This would
provide employers with a liability loophole because they could simply “wait until after the
employee gives birth and then terminate her some time later.” Jacobson v. Regent Assisted
Living, Inc., No. CV–98–564–ST, 1999 WL 373790, at *10 (D. Or. Apr. 9, 1999).
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The line between discrimination and accommodation is a fine one. Taking
adverse actions based on woman’s breastfeeding is prohibited by the PDA but
employers are not required to give special accommodations to breastfeeding
mothers. Hicks’s case presents a scenario that appears to straddle that line. While
the City may not have been required to provide Hicks with special
accommodations for breastfeeding, the jury found that the City’s action in refusing
an accommodation afforded to other employees compelled Hicks to resign. In the
eyes of a jury, this constituted a constructive discharge, which is effectively an
adverse action. See Green, 136 S. Ct. at 1777 (holding that under Title VII,
constructive discharge is “tantamount” to actual discharge). Phrasing Hicks’s
claim as merely a request for special accommodation is misleading. Hicks was not
asking for a special accommodation, or more than equal treatment––she was
asking to be treated the same as “other persons not so affected but similar in their
ability or inability to work” as required by the PDA. 42 U.S.C. § 2000e(k). Hicks
showed that other employees with temporary injuries were given “alternative
duty,” and she merely requested to be granted the same alternative duty.
Recently, in Young v. United Parcel Service, Inc., the Supreme Court said an
employee can show discrimination if she is a member of a protected class,
requested an accommodation, and her employer denied the accommodation but
granted the accommodation to others similarly situated. See 575 U.S. ___, ___,
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135 S. Ct. at 1338, 1354 (2015). Young allowed for a Title VII claim when an
employer failed to accommodate a pregnant woman but accommodated “other
persons not so affected but similar in their ability or inability to work.” See
42 U.S.C. § 2000e(k). While the plaintiff in Young was not seeking a
breastfeeding accommodation, but rather a pregnancy accommodation when she
could not lift weight, the Supreme Court’s logic applies equally to this case, given
that breastfeeding is a similar gender-specific condition covered by the PDA.
The jury found that a reasonable person in Hicks’s position would have felt
compelled to resign. We see no reason to overrule the jury. In this case, the denial
of accommodations for a breastfeeding employee violated the PDA when it
amounted to a constructive discharge.
V. Other Arguments
The City also argues the Hicks failed to mitigate her damages and the district
court erroneously instructed the jury. We find both arguments unavailing.
The City claims that Hicks failed to mitigate her damages when she failed to
seek another full-time job. “While the injured victim has a duty to mitigate
damages by being reasonably diligent in seeking substantially equivalent
employment, the burden of proving lack of diligence is on the employer.” EEOC
v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1251–52 (11th Cir.
1997). Hicks did work multiple other jobs (as a fitness instructor, cleaning houses,
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and taking photographs for friends), and the city failed to meet its burden to show
suitable work was available and Hicks failed to seek the work.
The City also argues that the district court erroneously instructed the jury
when it denied the City’s requests to include the word “each,” and instead used the
phrase “you may consider whether you believe the reasons.” The City argues that
Hicks should have been required to rebut each of the City’s proffered reasons for
Hicks’ reassignment. We review a district court’s refusal to give a particular jury
instruction for abuse of discretion. United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006). Refusal to give a requested instruction is reversible error when
the instruction: (1) was a correct statement of the law; (2) was not substantially
covered by the instruction the court actually gave; and (3) dealt with some aspect
of the trial so important that the court’s failure to instruct “seriously impaired the
defendant’s ability to present his defense.” See United States v. Dohan, 508 F.3d
989, 993 (11th Cir. 2007) (per curiam) (internal quotation marks omitted). The
requested phrase “each reason” was substantially covered by the district court’s use
of the phrase “the reasons.” All of the City’s other arguments regarding jury
instructions fail because they did not “seriously impair[] the [City’s] ability to
present [its] defense.” See id.
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VI. Conclusion
A jury decided that Stephanie Hicks suffered discrimination in violation of
the PDA, and retaliation, in violation of FMLA, when she was reassigned only
eight days after returning from FMLA leave following childbirth. The jury also
found that the City’s failure to accommodate Hicks’s accommodation requests,
when it allowed accommodations to others similarly situated, constituted
discriminatory constructive discharge, in violation of the PDA. We find that a
plain reading of the PDA covers discrimination against breastfeeding mothers.
This holding is consistent with the purpose of PDA and will help guarantee women
the right to be free from discrimination in the workplace based on gender-specific
physiological occurrences.
AFFIRMED.
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