Spees v. James Marine, Inc., No. 09-5839 (6th Cir. Aug. 10, 2010)

| Aug 9, 2010 | Daily Developments in EEO Law |

A pregnant employee, who was transferred from welding to the tool room, gets a second chance to take her employer to trial under Title VII, the ADA and the Kentucky Civil Rights Act. The panel majority holds that the district court prematurely terminated the discrimination claims on summary judgment. The panel opens a new door for claims associated with pregnancy, holding that long-term conditions associated with pregnancy may qualify as “disabilities” under federal law.

Spees v. James Marine, Inc., No. 09-5839 (6th Cir. Aug. 10, 2010): Plaintiff was a welder-trainee with JMI, the only woman in her unit and one of only four women among the 935 non-office staff. She learned in 2007 (shortly after she began working at JMI) that she was pregnant.  This pregnancy was her third; the second ended in miscarriage. The plaintiff talked to her brother who was also a JMI foreman (Gunder), her own foreman (Milam), and her obstetrician (Dr. Cardenas) who originally cleared her for work without restrictions. Milam told Spees to get another note from her doctor limiting her to light duty; he thereafter assigned her away from welding to the tool room, noting that “for right now, we don’t know what to do with you.”

According to the summary judgment record, Gunder, Milam and others apparently concluded that the risks associated with the welding job (fumes. lifting and dragging, climbing) were excessive, and determined not to allow her to return to those duties. Shortly after the tool-room reassignment, she was shifted to night duty. In August 2007, another doctor ordered Spees on full bedrest, owing to complications associated with an incompetent cervex. Having already exhausted the time allotted for leave for a probationary employee, Spees was terminated. According to Spees, Gunder told her that she “was being fired for being pregnant.”

Spees filed a complaint alleging  (1) pregnancy discrimination on the basis of her transfer to the toolroom position, (2) pregnancy discrimination on the basis of her termination, and (3) disability discrimination. The claims substantially ended in summary judgment. (The district court tried sex-discrimination claims related to allegedly unequal bathroom/locker room conditions before a jury, which ended in a defense verdict.)

The panel majority affirms on (2), but reverses on (1) and (3).

The majority holds first that the district court got off on the wrong foot by analyzing this case as a “determining factor”/single-motive case, instead of a “motivating factor”/mixed-motive case. Because the plaintiff plead the case under the mixed-motive theory, it was only incumbent on her to show that she suffered an adverse employment action and that the action was at least partly motivated by the pregnancy. The majority finds a triable issue of fact as to whether the transfer was adverse:

“In many ways, the tool-room transfer can be seen as a demotion. Spees was required to complete a 30-day training course to become a welder, but there is no evidence that a tool-room position required any specific training or skill. In addition, Spees appears to have felt unchallenged by her tool-room position, testifying that she found it to be ‘more boring’ than welding. This contrast weighs in favor of finding the change in job assignments to be materially adverse. . . . Moreover, Spees was soon assigned to the night shift, which adversely affected her ability to raise her daughter as a single mother. . . .

“Nor does the evidence conclusively indicate that the tool-room position was a more pleasant working environment. Spees testified that working in the tool room was ‘just as hot’ and as ‘physically demanding’ as welding, the only difference being that she did not need to do any overhead handling of the welding equipment. And although Spees was not exposed to toxic fumes while working in the tool room, she could have avoided such fumes by wearing a respirator while welding, as first recommended by Dr. Cardenas.”

There was also considerable evidence that pregnancy was a motivating factor behind the transfer:

“Milam testified that when he first learned of Spees’s pregnancy, he had ‘concerns’ that she would not be able to weld. When Spees read him Dr. Cardenas’s first note clearing her to return to welding, Milam said that ‘there was some question about her being pregnant and being able to safely perform the job that she was required to do.’ He based these concerns on his perception of ‘common sense.’ And according to Spees, Milam told her to obtain a second note from Dr. Cardenas limiting her to light duty and instructing her to avoid toxic fumes. JMI then relied on this note in transferring Spees to the tool room. Other JMI employees superior to Spees exhibited a similar attitude. Tom Freeman, the head of JMI’s Safety Department, told Spees that ‘this a man’s world’ and that the notes from Dr. Cardenas were ‘not acceptable.’ Freeman’s statement that he ‘didn’t know what he was going to do’ with Spees could be construed as further questioning her ability to weld while pregnant. Gunder, the night foreman and Spees’s brother, also partook in the decision to transfer Spees. He stated in his deposition that he did not want Spees welding ‘because she was carrying my niece.’ Gunder and Milam discussed where Spees should be working, and they ‘just decided that it wouldn’t be a good idea for her to [weld].’ In contrast, Spees never told her supervisors at JMI that she was unable to weld. She instead believed that she could weld, with only minimal restrictions, up until the full term of her pregnancy.”

The company’s asserted safety considerations, the panel majority notes, run aground on International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), which barred such lay second-guessing about the possible health effects of an industrial work assignment. Thus, “[a]s a whole, the evidence is sufficient to raise a genuine issue of material fact as to whether JMI management, rather than undertaking an objective evaluation to determine whether Spees could perform her welding job while pregnant, instead subjectively viewed Spees’s pregnancy as rendering her unable to weld.”

The panel majority also remarkably resurrects the plaintiff’s “regarded as” disability claim. Although recognizing that pregnancy itself is not a disability, the majority picks up a thread from several district court cases (including one litigated by my own office in the early days of the ADA, Soodman v. Wildman, Harrold, Allen & Dixon, No. 95 C 3834, 1997 WL 106257,at *6 (N.D. Ill. Feb. 10, 1997)) that abnormalities affecting the ability to carry a baby to term can be at least “regarded as” a disability:

“In the present case, there is evidence that JMI regarded Spees as having an impairment. Milam testified that because Spees had experienced ‘complications with other pregnancies before,’ he thought that she should not be working, and he had ‘concerns about her being around the chemicals, the welding smoke, [and] climbing around on some of the jobs.’ This statement suggests that Milam believed Spees to be especially sensitive to miscarriages in light of the fact that she had experienced one in the past. Milam’s testimony therefore constitutes evidence that JMI perceived Spees as having an impairment.”

The record also established that the employer regarded the employee as significantly restricted in the ability to perform either a class of jobs or a broad range of jobs: she was barred from the class of jobs relating to welding, and from a broad range of jobs owing to the light-duty restriction imposed upon her. Thus, any lawyer evaluating a pregnancy claim should be looking for such evidence in the pre-filing stage that might justify an ADA charge as well as a Title VII charge.

(Dissenting, visiting district court judge Lawarence P. Zatkoff would have affirmed summary judgment in its entirety, finding that there was no triable issue of fact about whether the transfer to the tool room was an “adverse employment action.” The dissent argues that each of the rationales for arguing that the transfer was materially adverse were idiosyncratic to the plaintiff and did not render the transfer objectively inferior to employment as a welder-trainee.)

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