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United States Court of Appeals

Fifth Circuit.

No. 95-20727.

Monica M. GARCIA, Plaintiff-Appellant,

v.

WOMAN'S HOSPITAL OF TEXAS, Defendant-Appellee.

Oct. 22, 1996.

Appeal from the United States District Court for the Southern

District of Texas.

Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Monica Garcia appeals the district court's grant of judgment

as a matter of law to her former employer on her claim of pregnancy

discrimination under Title VII. Finding error, we REVERSE the

judgment of the district court and REMAND this case for further

proceedings in accordance with this opinion.

I. Facts and Summary of Proceedings

Woman's Hospital of Texas (hereinafter Hospital or employer)

hired Garcia on April 22, 1991 as a licensed vocational nurse (LVN)

in its Family Care Center Unit, a combined postpartum and newborn

nursery unit. In December 1992, Garcia learned she was pregnant

with what would be her first child. In January 1993, she began to

experience pregnancy-related complications including dehydration

and chronic vomiting and, as a result, took a medical leave of

absence beginning January 28. By the end of February, her
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condition had improved and Garcia felt she was ready to return to

work. Her obstetrician, Dr. Debra Gunn, agreed and cleared her to

return to work in a March 1 letter sent to Judith Squyres, the

Hospital's occupational health nurse. The letter did not go into

detail, but stated: "It is recommended that Ms. Garcia may return

to work on 3/1/93." Dr. Gunn, incidentally, also worked for the

Hospital in obstetrics and was familiar with Garcia's job duties.

At no time did Dr. Gunn warn Garcia that she was in any way

restricted by her pregnancy in the tasks she could perform upon her

return to work.

The Hospital initially informed Garcia that it would return

her to the duty roster, but after some in-house discussion it

delayed her return. It sent to Dr. Gunn a form purporting to

recite all of Garcia's job requirements and asked her to place a

check mark next to any requirement that Garcia could not meet

because of her pregnancy. Dr. Gunn checked a box indicating that

Garcia was not to "push, pull, lift, and support over 150 lbs."

Upon receipt of the form from Dr. Gunn, the Hospital informed

Garcia that she could not return to work because of a Hospital

policy disallowing employees on medical leave to return with any

medical restrictions. Another Hospital policy provided that

employees on medical leave more than six months were to be

discharged. After six months, Garcia would be in her eighth month

of pregnancy and still under the medical restriction. Pursuant to

the Hospital policy, Garcia was effectively terminated.
 

1Garcia also alleged in her complaint that the Hospital's

actions violated the Americans with Disabilities Act. The district

court dismissed this claim on the first day of trial, however, and

Garcia does not contest this dismissal in her appeal. 

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Garcia sued the Hospital in the United States District Court

for the Southern District of Texas alleging that the Hospital's

policies constituted a violation of Title VII of the 1964 Civil

Rights Act, as amended by the Pregnancy Discrimination Act of

1978.1 She contended that the lifting requirements listed on the

form sent to her obstetrician were artificial in that no nurse was

actually required to lift that amount at work. The hospital

confessed that it did not test Garcia when it hired her to

ascertain whether she could in fact lift that amount, that it does

not test any job applicants, and that it does not test current

employees either. The hospital maintains, nevertheless, that the

requirements are bona fide.

The district court denied a motion by the Hospital for summary

judgment finding that Garcia could establish a prima facie case of

disparate treatment under Title VII. At the conclusion of Garcia's

case at trial, however, the court granted the Hospital's Rule 50

motion on the basis that the Hospital applied its policy of

requiring employees to return to work without restrictions to all

employees equally. Garcia asked the court at this time to allow

her to reopen her case to permit the testimony of Dr. Gunn, who had

been subpoenaed but was temporarily out of town. The court

impliedly denied this motion and entered judgment for the Hospital.
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Garcia appeals.

II. Standard of Review

We review de novo the lower court's grant of judgment as a

matter of law under Rule 50. Resolution Trust Corp. v. Cramer, 6

F.3d 1102, 1109 (5th Cir.1993). We consider all of the evidence

"in the light and with all reasonable inferences most favorable to

the party opposed to the motion." Id. If the facts and inferences

point so strongly and overwhelmingly in favor of the moving party

that the reviewing court believes that reasonable jurors could not

have arrived at a contrary verdict, then we will conclude that the

motion should have been granted. Boeing Co. v. Shipman, 411 F.2d

365, 374 (5th Cir.1969) (en banc).

III. Discussion

A. Pregnancy Discrimination Claims Under Title VII

Title VII of the 1964 Civil Rights Act makes it unlawful for

an employer "to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's race, color, religion,

sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In 1978, the

Congress passed the Pregnancy Discrimination Act (PDA) which

amended the definition of "sex" as follows:

The terms "because of sex" or "on the basis of sex" include

but are not limited to, because of or on the basis of

pregnancy, childbirth, or related medical conditions; and

women affected by pregnancy, childbirth, or related medical
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conditions shall be treated the same for all

employment-related purposes, including receipt of benefits

under fringe benefit programs, as other persons not so

affected but similar in their ability or inability to work....

42 U.S.C. § 2000e(k). The PDA did not amend Title VII in any other

way. Therefore, in analyzing a claim of pregnancy discrimination

we apply the same rules used for discrimination claims in general.

There are different theories by which a plaintiff can make

out a claim of discrimination under Title VII. In Griggs v. Duke

Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the

Supreme Court held that Title VII bans not only intentional

discrimination (so-called disparate treatment), but also those

employment practices that result in disparate impact. Disparate

impact claims, the Court stated, involve employment practices "that

are facially neutral in their treatment of different groups but

that in fact fall more harshly on one group and cannot be justified

on business necessity." International Bhd. of Teamsters v. United

States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1855 n. 15, 52

L.Ed.2d 396 (1977). A plaintiff proceeding under this theory need

not offer proof of discriminatory motive to make out her prima

facie case. Griggs, 401 U.S. at 430-32, 91 S.Ct. at 853-54. She

must, however, isolate and identify a particular employment

practice which is the cause of the disparity and provide evidence

sufficient to raise an inference of causation. Watson v. Fort

Worth Bank and Trust, 487 U.S. 977, 994-95, 108 S.Ct. 2777, 2788-

89, 101 L.Ed.2d 827 (1988). At this point the employer can respond
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with evidence that the "challenged practice is job-related for the

position in question and consistent with business necessity." 42

U.S.C. § 2000e-2(k)(1)(A)(i).

At trial, Garcia pointed to the Hospital's lifting requirement

as the employment practice that was the cause of the disparity.

She must also prove causation, however, and for this needed

testimony to the effect that the 150-pound lifting requirement

would cause pregnant women as a group to be forced onto unnecessary

medical leave and, because of the six-month limit on medical leave,

to be terminated. It would, of course, be insufficient for a claim

under Title VII if Garcia were the only pregnant woman adversely

affected; she must show that pregnant women as a group would be

subject to this medical restriction. If all or substantially all

pregnant women would be advised by their obstetrician not to lift

150 pounds, then they would certainly be disproportionately

affected by this supposedly mandatory job requirement for LVN's at

the Hospital. Statistical evidence would be unnecessary if Garcia

could establish this point. Should she establish her prima facie

case, the burden would then shift to the Hospital to prove that the

lifting requirement was job related and consistent with business

necessity. The PDA does not mandate preferential treatment for

pregnant women and that is not what Garcia is seeking. If the

lifting requirement is found to be bona fide, then Garcia loses.

 The district court granted the Hospital's Rule 50 motion on

the basis that Garcia had not made out a claim for disparate
 

2In addition to our discussion of disparate treatment, the

district court should consider pretextual disparate treatment as

well as facial disparate treatment. 

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treatment. As the preceding discussion makes plain, however,

Garcia can proceed under a number of theories, including disparate

impact. The district court erred by not considering this theory,

among others, in granting the Hospital's Rule 50 motion.2 However,

the district court committed additional error as well.

B. Garcia's Motion to Reopen

Upon the conclusion of Garcia's case at trial, the Hospital

moved for judgment under Rule 50. The court held a hearing on the

motion and stated the following:

Well, let me just say, I think the motion is appropriate under

the evidence. I think that the problem is this, if an

individual—there were testimony that no doctor permitted his

client, once confirmed pregnant, to ever lift more than 150

pounds, not do that, then we have got something that is unique

and specific to pregnant women. I don't know if that makes a

difference or not. But it seems to me that it would make a

difference because there is not a pregnant woman working at

the hospital who would be permitted, at least, to pick up 150

pounds according to a doctor....

Record, vol. IV, pgs. 107-08. At this point, Garcia moved the

court to allow her to reopen her case to obtain the testimony of

Dr. Gunn, who had been subpoenaed but failed to appear. The

district court denied this motion and granted the Hospital's motion

to dismiss under Rule 50.

 We review for abuse of discretion a district court's ruling

on a party's motion to reopen its case for the presentation of

additional evidence. Zenith Radio Corp. v. Hazeltine Research,
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Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971).

The court's decision "will not be disturbed in the absence of a

showing that it has worked an injustice in the cause." Gas Ridge,

Inc. v. Suburban Agric. Properties, Inc., 150 F.2d 363, 366 (5th

Cir.1945), cert. denied, 326 U.S. 796, 66 S.Ct. 487, 90 L.Ed. 485

(1946). Among the factors the trial court should examine in

deciding whether to allow a reopening are the importance and

probative value of the evidence, the reason for the moving party's

failure to introduce the evidence earlier, and the possibility of

prejudice to the non-moving party. See Rivera-Flores v. Puerto

Rico Telephone Co., 64 F.3d 742, 746 (1st Cir.1995); Hibiscus

Assocs. v. Board of Trustees of Policemen and Firemen Retirement

Sys., 50 F.3d 908, 917-918 (11th Cir.1995); Joseph v. Terminix

Int'l Co., 17 F.3d 1282, 1285 (10th Cir.1994). While we are

reluctant to disturb the decision of the district court in an area

peculiarly within its scope of expertise, we believe that its

decision here has worked an injustice and therefore must be

reversed. We come to this decision by applying the factors listed

above.

"Trial courts as a rule act within their discretion in

refusing to reopen a case where the proffered "new' evidence is

insufficiently probative to offset the procedural disruption caused

by reopening." Rivera-Flores, 64 F.3d at 746. The evidence here

could not be more probative or essential for Garcia's case. This
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is especially true given that the district court suggested that its

judgment might be based on the lack of that evidence. As we

mention above in our discussion of disparate impact claims, Garcia

needed to establish the element of causation. Had Dr. Gunn

testified that no pregnant woman would be advised by her doctor to

lift 150 pounds, this would have been sufficient to establish that

element and, as a result, Garcia's prima facie case under the Act.

We find, therefore, that the probity factor counsels the reopening

of her case.

We also determine that Garcia's reason for failing to

introduce the doctor's testimony at trial was bona fide. Should a

district court conclude that a litigant is engaging in any form of

chicanery, it properly denies the motion. The same result obtains

where the litigant was negligent in failing to introduce the

evidence. Here, Garcia's subpoenaed witness did not show up to

testify. She was in Atlanta, due back in Houston two days later.

Garcia made a motion at the beginning of trial to be permitted to

present Dr. Gunn's testimony sometime after the conclusion of her

own case in chief; the record reveals that this motion was not

ruled upon. Nevertheless, it shows that Garcia was aware of the

problem and sought to correct it. Further, Garcia offered to call

her subpoena server to testify that Dr. Gunn had in fact been

served. We find that this factor weighs in Garcia's favor.

Finally, we do not see where the defendant would have been

unduly prejudiced by allowing Garcia to reopen her case for the
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sole purpose of providing this testimony. While there is always

the possibility of some prejudice in that additional testimony is

being introduced against the non-moving party, our concern is with

undue prejudice. Here, Garcia made her motion to reopen after her

concluding her case but before the Hospital had begun its

presentation of evidence. Had the court granted the motion, Garcia

stated that she could put Dr. Gunn on the stand the following

morning, delaying the presentation of the Hospital's case by about

a day. Garcia's satisfaction of this factor is less clear than the

others, but we find that the Hospital would incur no undue

prejudice from the reopening. Weighing these factors, we find an

abuse of discretion in denying the motion.

IV. Conclusion

For the foregoing reasons, the judgment of the district court

dismissing Garcia's Title VII claim under Rule 50 is REVERSED and

this case is REMANDED for further proceedings in accordance with

this opinion.