Elliott v. Horizon Healthcare

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20711
Summary Calendar
GWEN ELLIOT
Plaintiff-Appellant,
versus
HORIZON HEALTHCARE CORPORATION
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-378)
April 27, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
In this pregnancy discrimination case, appellant Gwen
Elliot challenges the district court’s grant of summary judgment in
favor of Horizon Healthcare Corporation (“Horizon”). The district
court wrote a comprehensive and careful opinion. Because we agree
with the district court that Elliott was no longer qualified as a
nursing assistant, due to medical restrictions imposed on her by
her doctor, and because she produced no evidence that she was
treated differently than non-pregnant employees, we affirm the
grant of summary judgment for Horizon.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
for the limited circumstances set forth in 5TH CIR. R. 47.5.4.
BACKGROUND
On January 4, 1996, Elliott began working for Horizon as
a nursing assistant, a job that required her to perform such
functions as grooming and bathing elderly patients, turning and
repositioning patients, taking patients on walks, and assisting
them into wheelchairs from their beds. Because of the physical
demands placed on nursing assistants, the formal job description
stated that they would be required to “continuously”1 lift objects
from 1-75 pounds. Eight days after beginning work, Elliott
informed her supervisor, Jill Schwartz, that she was pregnant.
Elliott also produced a note from her doctor ordering her to
perform “no lifting.” Schwartz told Elliot that her doctor’s
restriction rendered her unqualified for a nursing assistant
position and unless she could get the lifting restriction raised,
there was no longer a position for her. Thus, Elliott returned to
her doctor (three more times) and eventually obtained a doctor’s
order raising the restriction to 35 pounds.
Elliott then attempted to be reinstated as a nursing
assistant or be reassigned to a different position.2 Her efforts
failed to secure a job because each of the jobs she requested had
lifting requirements that exceeded the 35 pound restriction imposed
1
“Continuously” meant that nurses would be lifting objects at
least 67% of the time.
2
After appellant unsuccessfully requested reinstatement or
reassignment from Schwartz, she made similar requests to Henry
Backstrom, Horizon’s regional manager for human resources, and
Nancy Pearson, the facility administrator.
2
by her doctor.3 Each of the Horizon supervisors she spoke to
reiterated that she did not qualify for any available position due
to her lifting restriction and unless the restriction was raised,
there was no position available for her.
After her attempts at securing continued employment
failed, Elliott resorted to the courts for relief. She brought the
present suit in Texas state court under the Texas Commission on
Human Rights Act (“TCHRA”) alleging that Horizon discriminated
against her because she was pregnant. After Horizon removed the
case to federal court, the district court granted summary judgment
for Horizon, holding that Elliott failed to show a prima facie case
of discrimination.
STANDARD OF REVIEW
This court reviews the grant of summary judgment de novo.
Summary judgment is proper if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with any
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Citrate, 477 U.S. 317, 322-24 (1986). Under this standard, all
fact questions must be viewed in the light most favorable to the
non moving party, and questions of law are reviewed de novo. See
3
The formal job description for each of the three alternative
positions requested by Elliott had lifting requirements that
exceeded her limitations imposed by her doctor. For instance,
Laundry Assistants and Dietary Assistants were required to lift
objects weighing between 36-75 pounds up to 33% of the time while
Housekeepers were required to lift objects weighing between 36-50
pounds up to 10% of the time.
3
Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.
1995).
DISCUSSION
The TCHRA forbids employment discrimination on the basis
of sex. See Tex. Lab. Code Ann. § 21.051 (West 1996). Under the
TCHRA, sex discrimination includes “discrimination because of or on
the basis of pregnancy, childbirth, or a related medical
condition.” Tex. Lab. Code Ann. § 21.106(a) (West 1996).
Texas courts may rely on pertinent federal discrimination
law in interpreting the relevant provisions of the TCHRA. See Gold
v. Exxon Corp., 960 S.W.2d 378, 380 (Tex. App.--Houston [14th
Dist.] 1998, no writ); Specialty Retailers, Inc. v. DeMoranville,
933 S.W.2d 490, 492 (Tex. 1996) (“Because one purpose of the
Commission on Human Rights Act is to bring Texas law in line with
federal laws addressing discrimination, federal case law may be
cited as authority.”). To create a genuine, material fact issue
concerning pregnancy discrimination under the federal and state
standards, a plaintiff may offer either direct evidence or indirect
evidence that satisfies her share of the burden-shifting test
established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). This test requires the
plaintiff to show: “(1) she was a member of a protected class, (2)
she was qualified for the position she lost, (3) she suffered an
adverse employment action, and (4) that others similarly situated
were more favorably treated.” Urbano v. Continental Airlines,
4
Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied __ U.S. __, 119 S.
Ct. 509 (1998); see also Gold, supra.
Appellant claims here, as in the district court, that
Texas has abolished the prima facie requirements and burden
shifting scheme of McDonnell Douglas, and she need only demonstrate
that her pregnancy was a motivating factor in the termination. See
Texas Dep’t of Human Serv. v. Hinds, 904 S.W.2d 629 (Tex. 1995);
Passons v. University of Texas, 969 S.W.2d 560 (Tx. App.--Austin
1998, no writ). These cases, however, do not abrogate the
McDonnell Douglas standard as Elliott contends. Hinds specifically
observes that the McDonnell Douglas burden-shifting scheme is
applicable in employment discrimination cases, although the Texas
court did not find that scheme, which requires the employer to
articulate a legitimate nondiscriminatory reason, compatible with
the plaintiff’s burden of proof under the Texas Whistleblower
Statute. Passons held only that but-for causation is the test of
actionable discrimination rather than sole cause, and Passons held
that federal standards apply to state law discrimination cases, 969
S.W.2d at 563. Elliott’s ingenious argument is completely wrong.
Elliott alleges first that she adduced direct evidence of
discrimination. Direct evidence of discrimination is evidence
which, if believed, would prove discrimination without any
inferences or presumptions. See Bodenheimer v. PPG Indus., Inc.,
5 F.3d 955, 958 (5th Cir. 1993). Appellant’s only direct evidence
of discrimination is the initial conversation she had with Schwartz
5
in which, according to appellant’s brief, Schwartz told her that
she could not keep her job because she was pregnant. Neither
Appellant’s affidavit nor her deposition indicates any such
comment; instead, they show there was no work for her at Horizon
because she could not perform the physical demands of employment.
In her affidavit, Elliott testified that Schwartz “stated that I
could not keep my job at the San Jacinto Manor while I was pregnant
because I could not do the things that I was hired on to do.” In
her deposition, Elliott testified that Schwartz said “that with me
being pregnant and unable to lift, she no longer had a position for
me unless I could have the weight limit lifted.” At the time the
conversation occurred, Elliott showed Schwartz a doctor’s note that
ordered Elliott to perform “no lifting.” Because Elliot could no
longer perform all of the duties for which she was hired, she was
told that she could retain her job only if her doctor raised the
lifting restriction. The employer’s concern was for her physical
capability to do the work, not her pregnancy.
Alternatively, Elliott relies on indirect evidence under
the McDonnell Douglas framework. In making a prima facie case
based on indirect proof of discrimination, Elliott was required to
show that “she was qualified for the position she lost.” Urbano,
138 F.3d at 206. With a lifting restriction of 35 pounds, she was
not qualified to be a nursing assistant or to hold the other
physical labor positions at Horizon which she sought. Thus,
Horizon was entitled to terminate her employment. Neither Texas
law nor its federal counterpart requires employers “to grant
6
preferential treatment to pregnant women.” Id. at 207. Instead,
employers must ignore a woman’s pregnancy and treat her like
similarly situated employees. Id. This is what Horizon did. Each
of the supervisors told Elliott that the lifting restriction -- not
her pregnancy -- resulted in her termination.
Elliott has produced no evidence casting doubt on
Horizon’s policy or suggesting that she was treated differently
than a nonpregnant employee who was physically unable to perform
the demands of the job. In addition, Elliot admitted in her
deposition that, due to her medical restriction, she did not meet
the formal requirements for a nursing assistant, laundry assistant,
dietary assistant, or housekeeper. In short, as the district court
found, Elliott’s indirect proof of discrimination fails because she
failed to create genuine issues of material fact either on her
qualifications or on disparate treatment of others.
CONCLUSION
For the foregoing reasons, the district court’s order,
granting summary judgment for appellee Horizon Healthcare
Corporation is AFFIRMED.
7