An employer who fires an employee expressly because she became pregnant before marrying the father obviously violates the federal Pregnancy Discrimination Act. And it did not help the employer, in this case, that it asserted the "ministerial exception," as recently declared in Hosanna-Tabor Evangelical LuTherean Church & Sch. v. EEOC, 132 S.Ct. 694, 706 (2012).
Hamilton v. Southland Christian school, Inc., No. 11-13696 (11th Cir. May 16, 2012): The facts are fairly straightforward on this appeal -
"In January 2008, Jarretta Hamilton began teaching at Southland Christian school. Sometime in January 2009, she and her then-fiancé conceived a child. They got married the next month. On Sunday, April 5, 2009, Hamilton met with John and Julie Ennis, Southland's administrator and assistant administrator, to tell them that she was pregnant and to ask for maternity leave during the next school year. During that meeting, she admitted that she had conceived the child before getting married. Southland fired Hamilton the following Thursday, purportedly because she had sinned by engaging in premarital sex and, as John Ennis put it, 'There are consequences for disobeying the word of God.'"
Strangely, with this record, the district court granted summary judgment (on her federal and state civil rights claims) on the ground that "Hamilton had not established a prima facie case because she had not produced evidence of a nonpregnant comparator who was treated differently." (Hard to picture what such a comparator would look like, in this context.)
The Eleventh Circuit reverses. The panel begins by noting the recent Hosanna-Tabor decision, but then observing that the employer failed to preserve this argument. While the employer argued the defense on summary judgment, the district court rejected that argument in favor of reaching the merits. Then, on appeal, the defendant mentioned the defense just once in its response brief: "The Court determined that the ministerial exception did not apply in this case." The panel holds that "Southland abandoned that exception as a defense by failing to list or Threwise state it as an issue on appeal."
The filing of notice of supplemental authority about Hosanna-Tabor decision did not preserve the issue, either: "a party cannot inject new, non jurisdictional issues into an appeal by filing unrequested supplemental letters or briefs." At any rate, the panel observed that the employer's briefing in court of appeals included a "sentence claiming a right 'to terminate nonminister employees,'" essentially judicially admitting the defense away.
On the merits, the panel holds that the employer's alleged admission that the termination was motivated by the pre-marital pregnancy was enough to support a trial without more. "[S]he does not have to show a comparator if she can show enough non comparison circumstantial evidence to raise a reasonable inference of intentional discrimination, . . . and she has done that." In addition to the above -
"She testified at deposition that, after she told the Ennis about her pregnancy but before she told them she had conceived before getting married, John Ennis 'put his head back and he said, we feared something like this would happen.' Hamilton testified that John Ennis told her that she was going to have to 'take the year off' because replacing a teacher taking maternity leave after the school year had started was hard to do. She also testified that it appeared to her the Ennis primary concern was her request for maternity leave. According to Hamilton's deposition testimony, at some point during the meeting, she asked John Ennis: '[What is the issue here? Is it because of the coverage? Or is it because of the premarital conception? And he said both reasons.'"
There was also conflicting testimony about whether the employer's avowed reason for her termination was legitimate. The decision maker Ennis testified at deposition that, "even though Hamilton committed the sin of premarital sex, '[i]f, in fact, she would have said to us I'm sorry that I've sinned against the Lord and this school, we would not be here. We could have gone in anThere total direction. . . . [But] I never heard her say she was sorry.'" But Hamilton testified that she did in fact offer an apology. The panel concludes, "The ultimate issue is one for a jury to decide."