FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 20 2000

THOMAS K. KAHN

CLERK

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 99-4144

Non-Argument Calendar

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D. C. Docket No. 97-07431-CV-WDF

CARINE ARMINDO,

Plaintiff-Appellant,

versus

PADLOCKER, INC.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 20, 2000)

Before COX and WILSON, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

Plaintiff Carine Armindo appeals the district court’s grant of summary

judgment to defendant Padlocker, Inc., on Armindo’s claim of pregnancy
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discrimination. The district court held that Armindo failed to establish that

Padlocker’s asserted reason for her termination–her poor attendance record–was a

pretext for unlawful pregnancy discrimination. We affirm, holding, among other

things, that the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k), is not

violated by an employer who fires an employee for excessive absences, even if those

absences were the result of the pregnancy, unless the employer overlooks the

comparable absences of non-pregnant employees.

At the outset, we note that only a claim under the Pregnancy Discrimination Act

is at issue. The suit was not brought under the Family and Medical Leave Act, 29

U.S.C. §§ 2601-2654, nor could it have been, because Armindo had been employed

by Padlocker as a permanent employee for only three months and was therefore not

an “eligible employee.” See 29 U.S.C. § 2611(2).

The PDA provides that the prohibition against sex-based employment

discrimination in § 703(a) of Title VII, 42 U.S.C. § 2000e-2(a), applies with equal

force to discrimination on the basis of “pregnancy, childbirth, or related medical

conditions.” See 42 U.S.C. § 2000e(k). Further, the PDA provides that “women

affected by pregnancy, childbirth, or related medical conditions shall be treated the

same for all employment-related purposes . . . as other persons not so affected but

similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). The analysis
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required for a pregnancy discrimination claim is the same type of analysis used in

other Title VII sex discrimination suits. Armstrong v. Flowers Hosp., Inc., 33 F.3d

1308, 1312-13 (11th Cir. 1994).

Armindo argues that she was discriminated against on account of her pregnancy

when she was terminated in July 1996 from her job as an entry level clerical employee

after three months of probationary employment. Padlocker contends, however, that

Armindo was terminated because of her poor attendance record. It is undisputed that

Armindo missed at least six days of work during her three months of employment,

five of which were due to pregnancy-related illnesses and one because of car trouble.

On nine other occasions Armindo either arrived late or left work early. At least some

of these occasions of missed work were pregnancy-related.

The district court assumed without deciding that Armindo had established a

prima facie case of pregnancy discrimination, but held that Armindo failed to establish

that Padlocker’s explanation that she was fired because of her poor attendance was a

pretext for pregnancy discrimination. We review the district court’s grant of summary

judgment de novo. See Armstrong, 33 F.3d at 1309.

The district court properly held Armindo failed to demonstrate that she was

fired for any reason other than her poor attendance. Armindo did not attempt to show

that she was treated differently from similarly situated non-pregnant employees who
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missed a comparable amount of work. A plaintiff alleging pregnancy discrimination

need not identify specific non-pregnant individuals treated differently from her, if the

employer violated its own policy in terminating her. See Byrd v. Lakeshore Hosp., 30

F.3d 1380, 1383 (11th Cir. 1994) (inference of pregnancy discrimination arose where

employer fired pregnant employee for excessive absences despite employee having

missed no more than her sick time allotted under company policy). There was no

evidence, however, that Padlocker violated company policy in terminating Armindo.

In fact, Padlocker’s employee manual provided that employees only received sick

days after successfully completing their initial three-month probationary term of

employment, which Armindo had not completed at the time of her absences. The only

inference to be drawn is that Padlocker fired Armindo for missing work, not for being

pregnant. 

The question becomes whether, as a matter of law, Padlocker violated the

Pregnancy Discrimination Act to the extent that its decision to fire Armindo was based

upon absences and other missed work that were the result of her pregnancy. The

issue, generally stated, is whether the PDA requires an employer to treat favorably a

pregnant employee whose pregnancy caused her to miss work, as compared to a nonpregnant employee who missed work on account of a different medical condition.
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The clear answer is that the PDA does not require favorable treatment in this

respect. In Armstrong v. Flowers Hosp., 33 F.3d 1308 (11th Cir. 1994), a pregnant

nurse who had been fired by her employer for refusing to treat an HIV-positive patient

brought suit under the PDA. A panel of this circuit rejected plaintiff’s argument that

the employer was required by the PDA to provide her with “alternative work” that she

claimed would be safer for her fetus. The panel reasoned that, although the language

of the statute does not address whether employers are required to give favorable

treatment to pregnant employees, statements in the legislative history “make it clear

that the PDA does not require employers to extend any benefit to pregnant women that

they do not already provide to other disabled employees.” See Armstrong, 33 F.3d at

1316-17. In support of its holding, the panel cited the Seventh Circuit case of Troupe

v. May Dept. Stores Co., 20 F.3d 734, 737-39 (7th Cir. 1994), drawing from it the

principle that “[w]hile the PDA requires the employer to ignore the pregnancy, the

employer need not ignore absences, unless the employer likewise ignores the absences

of nonpregnant employees.” See Armstrong, 33 F.3d at 1317.

The Armstrong panel’s holding--that employers may comply with the PDA

without giving preferential treatment to pregnant employees in the form of alternative

work assignments–dictates the outcome of this case. The PDA is not violated by an
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employer who fires a pregnant employee for excessive absences, unless the employer

overlooks the comparable absences of non-pregnant employees.

The district court properly held that Armindo did not show that Padlocker’s

asserted reason for her termination–her poor attendance–was a pretext for

discrimination “because of” her pregnancy. Nor did Padlocker violate the PDA to the

extent that it judged her on the basis of absences that were caused by her pregnancy.

AFFIRMED.