* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 United States Court of Appeals

Fifth Circuit



## FILED

June 28, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-31139

Summary Calendar

_____________________

LISA GUARINO,

Plaintiff - Appellant,

versus

JOHN E. POTTER, POSTMASTER GENERAL,

as agent for the UNITED STATES POSTAL SERVICE,

Defendant - Appellee.

__________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 02-CV-3323-K

_________________________________________________________________

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM: *

Lisa Guarino is a part-time postal service distribution clerk.

She filed a complaint against the local postmaster alleging sex and

pregnancy discrimination. After the ALJ found against her, she

brought this suit in the district court against Postmaster General

John E. Potter, as agent of the United States Postal Service. Both

parties filed cross-motions for summary judgment, and the district

court granted Potter ’s motion and dismissed Guarino’s complaint2

with prejudice. For essentially the reasons stated by the district

court, we affirm.

I

At the time the dispute arose, Guarino was employed by the

Postal Service as a part-time flexible distribution clerk. While

employees in this position are not guaranteed any set schedule or

number of hours beyond a minimum of two hours per week, Guarino was

regularly scheduled for 30-35 hours. The Postal Service offers

“light duty” to part-time flexible employees who are injured, sick,

or pregnant. It also offers light duty work to full-time employees

who are injured off the job, although the nome nclature is

different. “Light duty” does not guarantee any level of work

assignment. Full-time employees injured on the job qualify for

“ limited duty,” which guarantees the prior level of work hours.

The collective bargaining agreement between the Postal Service and

Guarino’s union provides that assignment of any employee to light

duty shall not be made to the detriment of any full-time employee,

and that a reassigned part-time employee, such as Guarino in this

case, shall not be given preference over other part-time employees.

Guarino learned that she was pregnant in Ja nuary 1995 and,

after G uarino’s physician placed restrictions on Guarino’s work,

she requested light duty from her postmaster, Harvey Shoemake.

Shoemake did not let Guarino work for about three weeks while she

had her doctor fill out the appropriate light duty forms; he then3

approved Guarino’s request in mid-February. Shoemake approved a

second light duty request in March that further r estricted

Guarino’s work. Guarino was then given an assignment of driving a

Postal Service vehicle to deliver mail, until her doctor restricted

this activity in her April light duty request. Subsequent light

duty forms contained the same restrictions as the April forms.

In May, after a lette r from Guarino’s attorney complained

about “discriminatory labor practicies” and requested that Shoemake

reinstate Gu arino to her “normal hours,” Shoemake rescinded

Guarino’s light du ty assignment because of “numerous absences.”

From January 1 to May 15, 1995, Guarino was absent on 41 of 96 days

she was scheduled to work. The rescission of light duty resulted

in Guarino’s absence from work from May 15 to May 2 3, at which

point Shoemake reinstated Guarino ’s light duty after receiving

assurances from Guarino’s immediate supervisor and union steward.

Though subsequent light duty forms were not signed by Shoemake,

Guarino continued to be scheduled for light duty until she stopped

working for medical reasons in August.

Between January and July, Guarino’s schedule had decr eased

from 30-35 hours per week to 12-16 hours per week. She was

assigne d work within her medical restrictions when such work was

available, and was sent home when no work was available within her

limitations. The Postal Service, in accordance with the collective

bargaining agreement, would not take work away from a full-time4

employee to provide work to Guarino.

In July, Guarino contacted an EEO counselor and initiated an

informal complaint against Shoemake, alleging pregnancy

discrimination based on incidents that had occurred between January

and July. She filed a formal complaint in September 1995, and in

June 2002 had a hearing before an EEOC ALJ, who found that Guarino

h ad produced insufficient evidence to support a finding o f

discrimination. Guarino then brought the instant suit in the

district court, alleging in relevant part that the Postal Service

violated the Pregnancy Discrimination Act, 42 U.S.C. § 20 00e(k),

by: making her employment more difficult during pregnancy; refusing

her light duty and rejecting the light duty forms she submitted;

cutting her work hours and deducting leave hours wr ongfully;

scrutinizing her work, harassing her and treating her more harshly

than other employees; and establishing an agency-wide policy that

employees on “limited du ty” because of work-related injuries be

treated more favorably than similarly situated employees who were

pregnant or suffered non-work-related absences.

The parties stipulated that the case would be submitted on

cross-motions for summary judgment in lieu of trial, and the

district court held in favor of Potter, which decision Guarino now

appeals.

II

Of the several claims decided by the district court on summary5

judgment, Guarino appeals the disposition of only one: that making

special provisions for federal employees with on-the-job injuries

different f rom those who are pregnant violates the Pregnancy

Discrimination Act. This claim presents two issues: 1) whether

the Pregnancy Discrimination Act requires the Post Office to treat

pregnancy the same as a job-related injury; and 2) whether the

district court erred in concluding that Guarino failed to show that

the Postal Service’s reasons for adve rse employment actions were

pretext for discrimination.

The district court held that the Postal Service’s light duty

policy was not illegally discriminatory as between pregnant and

other employees and that Guarino failed to establish a prima facie

case of discrimination based on adverse personnel actions. It thus

denied Guarino’s motion for summary judgment, and granted Potter’s.

We review grants and denials of summary judgment de novo

, applying

the same legal standards as the district court. Hall v. Gillman,

Inc. , 81 F.3d 35, 36-37 (5th Cir. 1996).

The crux of Guarino’s argument is that the Postal Service

unlawfully restricted her, as a pregnant woman, to light duty, and

precluded her from limited duty, because limited duty assignments

are only given to employees with on-the-job injuries. This

argument has no merit. While it is true that the Postal Service

decides who is eligible for light duty, subject to its collective

bargaining obligations, Guarino errs in contending that the same is6

true of limited duty. It is Congress, through the Federal

Employees Com p ensation Act (FECA), that requires that federal

employees injured on the job be compensated for their injuries. 5

U.S.C. § 810 2; 39 U.S.C. § 1005(c). And it is the Secretary of

Labor, while administering and enforcing FECA per 5 U.S.C. § 8149,

who has required that the Postal Service make special efforts to

employ those injured employees, who will otherwise be compensated

for doing nothing. S ee 20 C.F.R. § 10. 507(b). The Secretary

oversees restricted duties under FECA, and he has not made special

provisions for pregnant employees. Id . at § 10.507(c).

Moreover, this case falls under Title VII of the Civil Rights

Act o f 1964, which equates pregnancy discrimination with sex

discrimination. 42 U.S.C. § 2000e(k). The “central focus” of a

sex discrimination inquiry is whether an employer is treating

employees less favorably because of their sex. See

, e.g.

, Furnco

Constr. Corp. v. Walters , 438 U.S. 567, 577 (1978). The record

shows that Guarino was not denied limited duty because of her sex

-- or because she was pregnant

-- but because apparently her

condition was not the result of on-the-job injury, if an injury at

all. And we have twice held that the Pregnancy Discrimination Act

does not require employers to give pregnant women benefits that

other, similarly situated employees do not get. S tout v. Baxter

Healthcare Corp. , 282 F.3d 856, 859-62 (5th Cir. 2002); Urbano v.

Continental Airlines , 138 F.3d 204, 206-08 (5th Cir. 1998).7

The facts in Urbano are virtually identical to the facts in

this case, except that the defendant in that case was responsible

for administering its own light duty program, while the Postal

Service must follow the Secretary of Labor’s regulations. Urbano

foreclose s Guarino’s argument and, despite her request that we

somehow “revisit” that decision, we find ourselves not only bound

by its force as precedent but by its force as logic. Our precedent

is clear: a distinction between injur ies/illnesses incurred offversus on-the-j ob is legal as long as it is applied equally. To

mandate that Guarino, whose condition indisputably places her in

the “light duty” category under the collective bargaining

agreement, be classified as “limited duty” would be to mandate

preferential treatment for pregnant employees over othe r workers

with non-occupational injuries/illnesses. This the law forbids.

Finally, Guarino’s argument that th ere is a disputed issue

over pretext for discrimination is meritless. It is based on

nothing more than Guarino’s belief that Congress and the Secretary

of Labor have made an unwise distinction. Further, the Postal

Service has met its burden in proferring legitimate,

nondiscriminatory reasons for the reduction in Guarino’s hours and

all other alleged adverse employment actions; Guarino’s mere

subjective belief is insuffici ent to rebut this evidence. S ee

,

e.g.

, Vance v. Union Plante rs Corp. , 209 F.3d 438, 444 (5th Cir.

2000).8

In sum, the district court properly granted summary judgment

to the Postmaster General on the issues that are the subject of

this appeal.

III

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.