UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHRISTINE THOMAS, 

Plaintiff, 

 Case No. 15-11344 

v. Hon. Terrence G. Berg 

MONROE COUNTY 

SHERIFF’S DEPARTMENT, 

Defendant. 

 / 

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT (DKT. 10) 

I. Introduction 

This is a pregnancy discrimination case. Plaintiff Christine Thomas alleges that 

Defendant Monroe County Sheriff’s Department did not re-hire her to the position 

of Deputy Sheriff because she was pregnant. Defendant has moved for summary 

judgment under Federal Rule of Civil Procedure 56. Plaintiff opposes the motion. 

Because there are genuine issues of material fact concerning whether there is a 

nexus between Plaintiff’s pregnancy and Defendant’s decision not to rehire her, and 

whether Defendant’s proffered non-discriminatory reasons for not rehiring her are 

pretextual, Defendant’s motion is DENIED. 

II. Factual and Procedural History 

Defendant hired Plaintiff as a Deputy Sheriff on Halloween of 2006. Dkt. 10, 

¶ 1. Plaintiff served as a road patrol Deputy, and her performance in that position 

had both peaks and valleys. She received multiple outstanding evaluations, but also 

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had trouble with report writing, keeping track of evidence, and investigating cases 

thoroughly. Dkt. 11 ¶ ¶ 80-83; Dkt. 10 ¶ ¶ 21, 30, 31, 36-42.

In December of 2010, budget cuts forced Defendant to lay off a number of 

Deputies, including Plaintiff. Dkt. 10, ¶ 2. Plaintiff went to work for Defendant in 

another capacity, as a Corrections Officer. Id. During her time with Corrections, 

Plaintiff talked to people in the Sheriff’s Department about returning to road patrol 

if the opportunity arose. Sometime in 2012, she spoke with then-Major Dale Malone 

about going to work for the Dundee Police Department for a few hours each week in 

order to maintain her certification. Dkt. 11, Ex. 1, pp. 38-42. Malone told her that if 

she did not go to Dundee, he would put her through the recertification process 

before putting her back on the road. Id. at p. 41. And sometime in July 2013, Major 

Troy Goodnough and Chief Deputy John Plath spoke to Plaintiff’s jail sergeant 

about whether Plaintiff was interested in returning to road patrol. Id. at p. 42. The 

sergeant confirmed Plaintiff’s interest. Id.

Under a collective bargaining agreement, the Deputies had call-back rights in 

order of seniority for a year after the layoffs. Dkt. 10, ¶ 3. Defendant called back 

two Deputies within the one-year period. Dkt. 11, ¶ 94. After the period expired and 

the call-back rights ended, Defendant rehired another three Deputies, also in the 

order of their seniority. Id. at ¶¶ 94-95. After Defendant rehired those Deputies, 

Plaintiff was next in order of seniority; she was the most senior Deputy who had yet 

to be rehired. Id. at ¶ 96.

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In the late summer of 2013, another Deputy position opened. Dkt. 11, ¶ 97. At 

that time, Plaintiff was pregnant. Id. at ¶ 5. She informed Major Goodnough of her 

pregnancy on August 9, 2013. Id. Instead of rehiring Plaintiff, Defendant hired 

Patrick Davison—an officer from an outside agency—on September 12, 2013. 

Id. at ¶ 96. That same day, Defendant posted another vacant Deputy position. Id. at 

¶ 96. Plaintiff submitted a letter of interest and resume, but Defendant hired 

someone else. Id. at ¶104-105. During the remainder of Plaintiff’s pregnancy, 

Defendant passed over Plaintiff twice more, hiring instead two new Deputies 

straight from the police academy. Id. at ¶105.

While Defendant was hiring for those vacant Deputy positions, Plaintiff went on 

light-duty at the corrections department because of her pregnancy. Dkt. 11, Ex. 1, 

p. 28. Later that fall, during a conversation with Union President Mike Grodi, 

Plaintiff states that she learned that Grodi had been a party to a conversation with 

now-Sheriff Malone and Major Jeff Kemp. Dkt. 10, ¶¶ 48, 53. The conversation 

between Grodi, Malone, and Kemp—which Defendant does not admit occurred—is 

alleged to have happened in September, 2013. Dkt. 11, Ex. 2, p. 14. When 

discussing possible candidates for road patrol, Plaintiff’s name came up. Dkt. 10, 

¶ 53. According to Grodi, Malone responded by saying: “what good is she going to do 

us?” Id.

After learning of this conversation and having seen multiple Deputy openings 

filled without being offered her position back, Plaintiff filed a complaint with the 

Equal Employment Opportunity Commission in January, 2014. Dkt. 11, Ex. 8. 

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Plaintiff alleged that Defendant had discriminated against her because she was 

pregnant. Id. Following an investigation, the EEOC determined that there was 

reasonable cause to believe that Defendant did not rehire Plaintiff because she was 

pregnant. Dkt. 11, Ex. 13. Plaintiff and Defendant were unable to reach a 

settlement, so Plaintiff brought this lawsuit alleging pregnancy discrimination in 

violation Title VII of the Civil Rights Act of 1964. 

III. Analysis 

A. Standard of Review 

“Summary judgment is appropriate if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with any affidavits, show that 

there is no genuine issue as to any material fact such that the movant is entitled to 

a judgment as a matter of law.” Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 

568 (6th Cir. 2013); see also Fed. R. Civ. P. 56(a). A fact is material only if it might 

affect the outcome of the case under the governing law. See Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986). On a motion for summary judgment, the 

Court must view the evidence, and any reasonable inferences drawn from the 

evidence, in the light most favorable to the non-moving party. See Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted); 

Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir. 2001). 

“As the moving parties, the defendants have the initial burden to show that 

there is an absence of evidence to support [plaintiff’s] case.” Selhv v. Caruso, 734 

F.3d 554 (6th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 

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Once the moving party has met its burden, the non-moving party “may not rest 

upon its mere allegations or denials of the adverse party’s pleadings, but rather 

must set forth specific facts showing that there is a genuine issue for trial.” 

Ellington v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012) (citing Moldowan 

v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009)). 

B. Discussion 

As an initial matter, Defendant seeks to limit the scope of the lawsuit to the 

narrow question of whether Defendant was justified in hiring Patrick Davison 

instead of Plaintiff. Defendant attacks Plaintiff’s version of the facts as “erroneous.” 

Dkt. 10, pp. 10-13. Defendant further argues that under the “expected scope of 

investigation test” Plaintiff has not exhausted her administrative remedies for any 

allegations of discrimination based on the hiring of others, and that therefore this 

lawsuit should be restricted to considering whether Defendant engaged in 

discrimination in hiring Patrick Davison instead of Plaintiff. Defendant maintains 

that nothing relating to other hiring decisions is relevant in this case. 

The “expected scope of the investigation test” has been applied to situations 

where a plaintiff includes in her judicial complaint new claims or theories not raised 

before the EEOC. Both cases Defendant cites in support of its argument involve 

plaintiffs who complained to the EEOC of discrimination only, but later sued in 

court for discrimination and retaliation. Dixon v. Ashcroft, 392 F.3d 212, 217 (6th 

Cir. 2004); Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 380 (6th Cir. 

2002). And other cases invoking the test have involved new theories of 

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discrimination, for example when the EEOC complaint alleged discrimination on 

the basis of national origin and then the judicial complaint alleged discrimination 

on the bases of both national origin and race. See, e.g., Ang v. Procter & Gamble Co., 

932 F.2d 540, 546 (6th Cir. 1991). In contrast, Plaintiff’s claim has always been a 

discrimination claim and has always been based on her pregnancy. See Dkt. 10, ¶ 

11. 

Moreover, as Plaintiff notes, in the supplemental document she submitted with 

the EEOC intake questionnaire, she referenced Defendant hiring other Deputies 

after Patrick Davison. Dkt. 11, Ex. 15. Thus, to the extent that the “expected scope 

of the investigation test” were to apply to a judicial complaint alleging more 

evidence of the same kind of discrimination that was alleged in the EEOC 

complaint, the scope of the EEOC investigation reasonably expected to grow out of 

the charge of discrimination would clearly include the information Plaintiff 

provided in the supplement to her intake questionnaire. The EEOC does not require 

a plaintiff’s complaint to detail at length everything that happened: 

http://tinyurl.com/zgmoftf. Plaintiff’s EEOC complaint demonstrates why—the facts 

she did include occupied almost all of the available space: 

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Dkt. 11, Ex. 8. Her intake questionnaire, however, ran five pages. Dkt. 11, Ex. 14. 

And her supplement to that questionnaire ran another page and a half. Dkt. 11, 

Ex. 15. The test examines the scope of the investigation expected to arise out of the 

charge, not the scope of what is contained in the few sentences a plaintiff is able to 

squeeze into the formal EEOC complaint form. Plaintiff’s supplement to her intake 

questionnaire contained information that reasonably would cause the EEOC to 

include in its investigation all of Defendant’s hiring practices from the time Plaintiff 

informed Defendant that she was pregnant to the time Plaintiff gave birth. 

Defendant is therefore incorrect in claiming that this case is limited to the hiring of 

Patrick Davison. 

The Court now turns to whether Defendant is entitled to summary judgment on 

Plaintiff’s claim. 

There are three ways an employee can prove pregnancy discrimination under 

Title VII: “She can proffer direct evidence of discrimination, present circumstantial 

evidence that permits an inference of discrimination, or show that both legitimate 

and illegitimate (discriminatory) reasons—in other words, mixed motives—

motivated the adverse employment decision.” Bergman v. Baptist Healthcare Sys., 

Inc., 167 F. App'x 441, 445 (6th Cir. 2006) (quotations and citations omitted). 

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Neither Plaintiff nor Defendant mentions the mixed-motives method of proof. 

Defendant argues that Plaintiff cannot proffer direct evidence of discrimination. 

Dkt. 10, pp. 18-21. Plaintiff does not address this argument explicitly in her 

opposition brief, but emphasizes the statement “what good is she going to do us?” 

(which Defendant argues is not direct evidence of discrimination). Dkt. 11, pp. 22, 

24. Both parties clearly discuss circumstantial evidence. The Court will therefore 

briefly address Defendant’s argument about direct evidence before turning to the 

arguments about circumstantial evidence. 

1. Direct Evidence 

Defendant argues that Sheriff Malone’s statement “what good is she going to do 

us?” is not direct evidence of discrimination. Dkt. 10, pp. 18-19. Defendant 

maintains that the statement is proof that Sheriff Malone thought Plaintiff was an 

unacceptable candidate for a road patrol position because she was on light-duty 

restrictions and therefore could not go out on road patrol. Id. at p. 19. That is one 

reasonable interpretation of the statement. But the statement also allows the 

inference that Sheriff Malone believed Plaintiff would not do Defendant any good 

because she was pregnant. Because the statement is liable to different 

interpretations, Defendant is correct that it cannot be considered direct evidence of 

discrimination. 

Direct evidence in this context is “evidence [that] requires the conclusion that 

unlawful discrimination was at least a motivating factor in the employer's actions.” 

Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 

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(6th Cir. 1999) (emphasis added). “The discrimination is proven without resort to 

inference: that the employee was a victim of discrimination appears plain on the 

face of the evidence. Bergman v. Baptist Healthcare Sys., Inc., 167 F. App'x 441, 

445–46 (6th Cir. 2006). Because a fact-finder would need to infer that the reason 

Sheriff Malone thought Plaintiff would be no good to the Department was because 

she was pregnant, the statement cannot be considered direct evidence. Plaintiff 

does not explicitly argue to the contrary. To the extent Plaintiff relies upon Sheriff 

Malone’s statement, however, the applicable analysis is that which applies to 

circumstantial evidence rather than direct evidence of discrimination. 

2. Circumstantial Evidence 

When a plaintiff seeks to prove her Title VII claim using circumstantial 

evidence, courts use the McDonnell Douglas test, which takes its name from the 

Supreme Court case McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under 

the test, the plaintiff has “the initial burden” of “establishing a prima facie case” of 

discrimination. Id., at 802. If she carries her burden, the employer can then 

“articulate some legitimate, non-discriminatory reason” for the difference in 

treatment. Id. If the employer articulates a reason, the plaintiff can then prove by a 

preponderance of the evidence that the reason is pretext for discrimination. See id.

at 804; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 

a. Plaintiff’s prima facie showing 

To establish a prima facie case of pregnancy discrimination, a plaintiff must 

show four things: “(1) she was pregnant, (2) she was qualified for her job, (3) she 

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was subjected to an adverse employment decision, and (4) there is a nexus between 

her pregnancy and the adverse employment decision.” Tysinger v. Police Dep’t, 463 

F.3d 569, 573 (6th Cir. 2006). Defendant does not dispute that Plaintiff has satisfied 

the first three prongs of the test, but argues that Plaintiff cannot satisfy the fourth 

prong. Dkt. 10, p. 15. Thus the Court must determine whether, viewing the record 

in the light most favorable to Plaintiff, she has “created a genuine dispute of 

material fact as to the fourth prong of the McDonnell Douglas analysis.” Young v. 

United Parcel Serv., Inc., 135 S. Ct. 1338, 1355 (2015). 

In view of the evidence in the record, Plaintiff has met her burden. The fourth 

prong requires Plaintiff to show that Defendant knew she was pregnant when 

making the decision not to hire her and that the hiring of another candidate was 

proximate to Plaintiff’s pregnancy. See Bergman v. Baptist Healthcare Sys., Inc., 

167 F. App'x 441, 446–47 (6th Cir. 2006) (“The fourth element of the prima facie 

case requires [the plaintiff] to show, at a minimum, that [the defendant] knew [the 

plaintiff] was pregnant when making the decision to terminate her and that the 

termination was proximate to her pregnancy”); DeBoer v. Musashi Auto Parts, Inc., 

124 F. App'x 387, 391 (6th Cir. 2005) (“Finally, the temporal proximity between [the 

plaintiff’s] announcement of her pregnancy, her filing for FMLA leave, and her 

demotion satisfies the “nexus” requirement. [The plaintiff] has established a prima 

facie case of pregnancy discrimination”). 

Here, the evidence shows that Plaintiff informed Defendant that she was 

pregnant on or about August 9, 2013, that Defendant was then aware that Plaintiff 

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was seeking to be re-hired as a road patrol Deputy, and that Defendant hired 

Patrick Davison and three others while Plaintiff was pregnant. Dkt. 11, ¶¶ 5, 96, 

104-105; Ex. 1, pp. 38-42. Defendant responds that it determined in early 2013 that 

it would not rehire Plaintiff, that it approached Davison about the position in early 

August of 2013 (which was before Plaintiff informed Defendant of her pregnancy), 

and that Plaintiff cannot establish that anyone with a similar light-duty restriction 

for a reason other than pregnancy received better treatment than Plaintiff received. 

Dkt. 10, pp. 14-16. 

Defendant’s contentions miss the mark. Defendant’s proffered reason for not 

rehiring Plaintiff is irrelevant at the prima facie stage. Defendant’s statement that 

it approached Davison in “early” August does not establish with certainty that this 

approach occurred before Plaintiff communicated that she was pregnant on 

August 9. And the timing of Defendant’s approach of Davison might be relevant, 

but it is not dispositive because the actual hiring of Davison did not take place until 

September. Dkt. 11, ¶ 96. Moreover, although establishing that another person with 

a similar work restriction was treated more favorably is one way to meet the fourth 

prong, it is not the only way. As noted above, a temporal proximity between the 

employer learning that the employee is pregnant and the employer’s allegedly 

discriminatory employment action is also sufficient to meet this element. Plaintiff 

has presented sufficient evidence to show temporal proximity and therefore has met 

her burden to establish a prima facie case. 

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There is some uncertainty in the law concerning the effect of Plaintiff’s having 

made out a prima facie case at the summary judgment stage. The Sixth Circuit has 

noted that “a defendant is not entitled to judgment as a matter of law or summary 

judgment if a plaintiff has proven its prima facie case.” EEOC v. Avery Dennison 

Corp., 104 F.3d 858, 860-61 (6th Cir. 1997). This seems to suggest that the inquiry 

might end here for summary judgment purposes, and that the question should go to 

the jury. But the Sixth Circuit has also discussed whether any burden shifts back to 

the Plaintiff if the Defendant presents a non-discriminatory reason for its actions. 

The Sixth Circuit noted that ‘[t]o survive a motion for summary judgment, the 

plaintiff need not prove that the defendant's proffered rationale is pretextual, as 

that would be enough proof for summary judgment in favor of the plaintiff.” 

Whitfield v. Tennessee, 639 F.3d 253, 260 (6th Cir. 2011). This suggests that the 

summary judgment analysis must include all three steps: the employee’s prima 

facie showing, the employer’s alternative reasons for its actions, and the employee’s 

rebuttal of those reasons as pretextual. The Supreme Court seems to agree with the 

latter approach. In Young v. United Parcel Serv., Inc., it left for remand the 

question of whether the plaintiff had “created a genuine issue of material fact as to 

whether [the defendant’s] reasons for having treated [the plaintiff] less favorably 

than it treated . . . other nonpregnant employees were pretextual.” 135 S. Ct. 1338, 

1356 (2015). This Court will therefore proceed to steps two and three. 

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b. Defendant’s proffered non-discriminatory reasons for not rehiring 

Plaintiff 

Defendant argues that its decision not to rehire Plaintiff was based entirely on 

her prior work performance and that the decision had nothing to do with her 

pregnancy. Dkt. 10, pp. 16-17. In fact, Defendant argues that it made the decision 

not to rehire Plaintiff in early 2013, before Plaintiff even became pregnant. Id. at p. 

14. Defendant submits that Sheriff Malone and Major Kemp discussed potential 

vacancies that could open within the year, and during that discussion Plaintiff’s 

name came up. Id. at ¶ 20. When discussing whether they would rehire Plaintiff, 

Malone and Kemp purportedly reviewed Plaintiff’s past performance as a Deputy, 

performance that included the following: 

 Plaintiff had a number of disciplinary actions for her performance; 

 Plaintiff at times failed to investigate crimes thoroughly and to 

reduce her findings to writing; 

 Plaintiff failed to book into evidence a counterfeit fifty-dollar bill; 

 Plaintiff failed to search sufficiently a vehicle involved in a hit-andrun accident. The mother of the driver was instructed to take the 

vehicle home, and found a burnt spoon and syringe that the driver 

had used to consume drugs. Plaintiff then went and collected the 

items, and lied on her report of the incident by stating that she 

discovered them; 

 Plaintiff became argumentative with Major Kemp when Kemp 

asked her about whether she had searched the car, saying “who are 

you to say I didn’t search the vehicle, you weren’t there;” 

 Plaintiff forgot a completed preliminary breath test on the hood of 

her patrol car. When she drove off, the test fell off her car and on to 

Interstate 75. Plaintiff had to return to I-75 to search for the test, 

and when she found the test it was damaged. 

Dkt. 10, ¶¶ 30-31, 36-42; Dkt. 11, ¶¶ 87-88. Defendant submits that in August and 

September of 2013, the Department was understaffed and in need of the best 

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possible Deputies, and that Plaintiff’s errors during her time as a Deputy were 

egregious to the point that they disqualified her in the minds of Sheriff Malone and 

Deputy Kemp. Dkt. 10, ¶ 21, p. 14. 

Defendant also submits a second reason that it did not rehire Plaintiff. Given the 

understaffing Defendant faced, it needed Deputies who could go on road patrol right 

away. Id. at pp. 15-16. Thus, Defendant argues, it did not rehire Plaintiff because 

her light-duty restrictions meant that she would be unable to go on road patrol. Id. 

at p. 15. Although Defendant does not say so explicitly, the implication is that 

Defendant also would not have hired or rehired anyone with a similar light-duty 

restriction. For example, if another candidate had a temporary impairment, such as 

a back injury, and could not ride in a patrol car until recovered, Defendant would 

not have hired that candidate. 

Defendant’s first proffered reason for not rehiring Plaintiff is a legitimate one. If 

Sheriff Malone and Major Kemp decided not to rehire Plaintiff because of her poor 

performance record, it would be reasonable to expect that even if Plaintiff had not 

been pregnant in August and September of 2013 Defendant would not have rehired 

her—pregnancy would have had nothing to do with the decision. Defendant’s second 

proffered reason is also legitimate. The Sixth Circuit has noted that “nothing in 

Title VII compels an employer to prefer for alternative employment an employee 

who, because of pregnancy, is unable to perform her full range of duties.” Fields v 

Bolger, 723 F2d 1216 (6th Cir. 1984). And the Supreme Court has recognized that 

“the second clause [of the Pregnancy Discrimination Act] could not be clearer: it 

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mandates that pregnant employees ‘shall be treated the same for all employment 

related purposes’ as non-pregnant employees similarly situated with respect to their 

ability to work.” International Union v Johnson Controls, 499 US 187, 204-05 

(1991). In other words, there is a distinction between not hiring someone because 

she is pregnant and not hiring someone because the effect of her pregnancy is that 

she cannot perform the work the job requires. 

It is instructive to compare the employment decision in this case to the situation 

where the candidate is not pregnant, but is rather experiencing a temporary 

disability such as a back injury. If Defendant were willing, for example, to hire 

someone with a temporary back injury, but not willing to hire Plaintiff when she 

was pregnant, that would suggest that Defendant’s reason for not hiring Plaintiff 

was because she was pregnant, and not because of her light-duty restriction. 

Likewise, if Defendant was basing its decision not to rehire Plaintiff on the effects of 

her pregnancy on her ability to perform the required work, one would expect 

Defendant also to turn down someone who could not go on patrol because of a 

temporary back injury. Defendant submits that it falls into the latter category. 

Defendant has proffered legitimate reasons for not rehiring Plaintiff, so the 

Court must now determine whether Plaintiff has “created a genuine issue of 

material fact as to whether [Defendant’s] reasons . . . were pretextual.” Young, 135 

S. Ct. at 1356. 

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c. Whether Defendant’s proffered reasons are pretextual 

“A plaintiff can demonstrate pretext by showing that the proffered reason (1) has 

no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or 

(3) was insufficient to warrant the challenged conduct.” Tysinger, 463 at 576. In 

response to Defendant’s first non-discriminatory rationale (Plaintiff’s prior poor 

work performance), Plaintiff submits that her performance record is much better 

than Defendant represents and that Defendant rehired other Deputies who had 

made similarly egregious mistakes. Specifically, Plaintiff contends that: 

Plaintiff’s Performance 

 Plaintiff’s troubles with report writing came when she was assigned 

to the busiest district that Defendant services. While she was there, 

Plaintiff wrote 228 incident reports, while other Deputies wrote 

between 60 and 65 reports in the same time period; 

 In a performance evaluation, Major Goodnough gave Plaintiff 17 

out of 18 possible points in the “report writing” category and 76 of 

87 total possible points; 

 In that same evaluation, Plaintiff ranked 2nd in the top 10% of 

Officers submitting complaints to the Prosecutor, 2nd in the top 

10% of Officers submitting Felonies and 3rd in the top 10% of those 

Officers submitting Misdemeanors; 

 Plaintiff’s last disciplinary action was in 2008, years before 

Defendant’s decision not to rehire her; 

 Plaintiff earned a perfect score in the evaluation of her performance 

from October 31, 2008 to November 29, 2009. 

Dkt. 11, ¶¶ 76-83, 91-92.

Performance of others whom Defendant rehired 

 Defendant rehired Rico Galamberti, who worked for the 

Washtenaw County Sheriff’s Department during the layoff and was 

asked by that Sheriff’s Department to resign because he used 

excessive force. 

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 Defendant rehired Jeffrey Hooper, whom Defendant had previously 

suspended because he had alcohol in his system while he was on 

road patrol. 

Dkt. 11, ¶¶ 107-108.

Defendant argues that the prior histories of other rehired Deputies are 

irrelevant. Dkt. 15, ¶¶ 107-108. That is not true; if Defendant overlooked similar, or 

even worse, records of poor performance when rehiring other former Deputies, that 

conduct permits an inference that Plaintiff’s prior performance record is pretext 

and Plaintiff’s pregnancy motivated Defendant’s decision not to rehire her. 

In response to Defendant’s second argument (the need for Deputies who could go 

on road duty), Plaintiff contends that in the past Defendant has provided 

accommodations to other deputies who had light-duty restrictions similar to her 

restrictions. Dkt. 11, p. 21. She supports this statement by citing her own 

declaration: 

Dkt. 11, Ex. 5, ¶ 6. This statement does not address Defendant’s suggestion that, at 

the time Plaintiff sought a position, there was a need for road patrol Deputies, not 

clerical Deputies. But it is proof that Defendant has previously accommodated 

Deputies even when they were on light-duty restriction as Plaintiff was. Though it 

does not carry great weight because Plaintiff has provided no specific details as to 

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the who, what, and when of these alleged accommodations, it does suggest that 

Defendant had discretion to hire deputies on light-duty restriction, thus slightly 

undermining Defendant’s rationale that Plaintiff’s pregnancy made her unqualified 

for the position. 

What carries more weight is the alleged statement Sheriff Malone made to 

Major Kemp during a discussion about Plaintiff. According to Union President Mike 

Grodi, he was present for a conversation between Malone and Kemp where Malone 

said “what good is she going to do us?” when Plaintiff’s name came up as a possible 

candidate for a road patrol position. Dkt. 10, ¶53. This statement could be 

interpreted one of two ways: (1) that Plaintiff was no good to Defendant because she 

was pregnant (which would be impermissible discrimination) or (2) that Plaintiff 

was no good to Defendant because of the effect her pregnancy had on her ability to 

perform the required work (which, as explained above, would be permissible). Grodi 

interpreted the statement to mean that Plaintiff would not do the Department any 

good because she was on light-duty restrictions: in line with the second of the two 

interpretations. Id. at ¶ 55. However, Sheriff Malone denies making the statement, 

id. at ¶ 57, and both Malone and Kemp deny that the conversation ever happened. 

Id. These denials create issues of fact as to whether the conversation took place and 

whether Malone made the statement. To resolve these issues a jury must make a 

credibility determination between Grodi on one hand and Malone and Kemp on the 

other. If a jury resolves this question in Plaintiff’s favor, it might reasonably draw 

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an adverse inference from Malone’s and Kemp’s denials that would suggest that the 

statement showed an intent to discriminate. 

Finally, there is the matter of the collective bargaining agreement and call-back 

rights. Plaintiff emphasizes that Defendant continued to call back Deputies in their 

order of seniority after the call-back period expired. Dkt. 11, p. 22. Defendant 

argues that the decision to rehire Deputies after the call-back period expired is not 

relevant because none of the Deputies had call-back rights and neither did Plaintiff. 

Dkt. 10, pp. 13-14. Although it is true that the former Deputies had no rights to 

their old jobs once the call-back period expired, Defendant’s practice of continuing to 

rehire Deputies in the order of their seniority suggests an informal policy to rehire 

in order of seniority, as if the call-back period were still in effect. When the time 

came that Plaintiff was next on the list given her seniority, she was pregnant and 

Defendant did not rehire her. This does not necessarily weigh in Plaintiff’s favor—

after all, Defendant might have broken its habit for either of the non-discriminatory 

rationales provided in this lawsuit—but it could weigh in her favor. A jury could 

reasonably interpret this series of events as an informal policy that Defendant 

abandoned because Plaintiff was pregnant. 

Taken together, these facts create a genuine issue of material fact concerning 

whether Defendant’s proffered reasons actually motivated its decision not to rehire 

Plaintiff. To be sure, a jury could find that Plaintiff’s performance was subpar; that 

her positive reviews came from Major Goodnough, who was not in charge of hiring 

Deputies; that she did not get along with Major Kemp, who played a role in hiring 

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Deputies; that her interactions with Kemp and her prior performance led Sheriff 

Malone and Kemp to decide not to rehire her months before she informed them that 

she was pregnant; that there was a real need for Deputies who could serve 

immediately on road patrol; that even if Plaintiff had performed well in the past, 

her pregnancy prevented her from immediately performing the functions of a road 

patrol Deputy; that even absent her performance issues Defendant would not have 

rehired her because she could not go on road duty; and that Defendant would not 

have hired anyone who was incapable of performing road duty. But the facts before 

the Court also allow a jury to find the opposite: that Defendant had an informal 

policy of rehiring Deputies in the order of their seniority; that Defendant abandoned 

that policy when it came time to rehire Plaintiff because she was pregnant; that but 

for Plaintiff’s pregnancy Defendant would have overlooked Plaintiff’s previous 

performance problems and rehired her; that Malone and Kemp did have a 

conversation with Union President Grodi, Malone did make the statement “what 

good is she going to do us?,” and the reason Malone thought Plaintiff would not do 

Defendant any good was because she was pregnant and not because she was unable 

to go on road patrol; and that Defendant might have hired someone who had a lightduty restriction from a cause other than pregnancy. 

The evidence of record allows a jury to draw inferences in favor of either party on 

these questions of fact. Consequently, Defendant is not entitled to summary 

judgment, and this dispute must go to a jury. 

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IV. Conclusion 

Because genuine issues of material fact exist concerning whether there is a 

nexus between Plaintiff’s pregnancy and Defendant’s decision not to rehire her and 

whether Defendant’s proffered reasons for not rehiring her were pretextual, 

Defendant’s Motion for Summary Judgment is DENIED. 

SO ORDERED. 

Dated: September 27, 2016 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

I hereby certify that this Order was electronically submitted on September 

27, 2016, using the CM/ECF system, which will send notification to all parties. 

 s/A. Chubb 

Case Manager 

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