IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-60542

WILMA NICOLE STOUT, on behalf

of herself and all others

similarly situated,

Plaintiff-Appellant,

versus

BAXTER HEALTHCARE CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

February 19, 2002

Before GARWOOD, JOLLY and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

In this putative class action Plaintiff-Appellant Wilma Stout

(Stout) sued Defendant-Appellee Baxter Healthcare Corp. (Baxter)

pursuant to Title VII of the Civil Rights Act of 1964, as amended

by the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. §1 Stout is only asserting a claim under the PDA; the Family and

Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, is not at issue

in this case. The FLMA does not apply to employees, such as Stout, who

have been emplo yed less than twelve months or who have worked less than

1,250 hours during the previous twelv e months. S ee 29 U.S.C. §

2611(2)(A).

-2- 2000e(k). 1 Stout appeals a summary judgment in favor of Baxter and

the denial of her cross motion for summar y judgment. Finding no

error, we affirm.

Facts and Proceedings Below

Stout was hired by Baxter as a material han dler in May of

1998. Pursuant to Baxter's standard policy, Stout was a

probationary employee for the first ninety days of her employment.

During this probationary period, Baxter eva luates new hires' job

skills and performanc e. Probationary employees are subject to a

strict attendance policy: anyone who misses more than three days

during the period is terminated. Baxter does not provide vacation

time or medical leave for probationary employees.

Stout, who was pregnant during the probationary period,

received positive performance reviews a nd maintained a perfect

attendance record during her first two months. But, beginning on

August 14, 1998, Stout was absent for more than three days of work

after she experienced early labor and suffered a miscarriage that

rendered her me dically unable to work for over two weeks. Stout

notified her supervisor of her condition immediately, and provided

a medical excuse a week later, but Baxter terminated Stout on-3-

August 21 because her absenteeism was clearly in excess of that

permitted during the probationary period.

After receiving a r ight-to-sue letter from the Equal

Employment Opportunity Commission (EEOC), Stout sued Baxter

claiming pregnancy discrimination under the PDA and alleging that

she was f ired “because of” her pregnancy and that Baxter's

probationary attendance policy has a disparate impact on pregnant

employees. Baxter moved to dismiss, or, in the alternative, for

summary judgment, arguing that Stout had failed to state a cause of

action under the PDA and to create a genuine issue of material fact

as to whether Baxter had discriminated against her on the basis of

her pregnancy. Stout also filed a motion for summary judgment on

the issue of liability, arguing that Baxter had failed to raise a

fact issue as to whether Stout was fired because of her pregnancy

and whether Baxter's probationary policy had a disparate impact on

pregnant women. The district court denied Stout's motion but

granted Baxter's motion for summary judgment.

Discussion

We review a grant o f summary judgment d e novo

. A mburgey v.

Corhart Refractories Corp.

, 936 F.2d 805, 809 (5th Cir. 1991).

Summa ry judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the movi ng party is entitled to a-4-

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Title VII of the Civil Rights Act prohibits an employer from

“discrimina t[ing] against any individual with respect to ...

compensation, terms, conditions, or privileges of employment,

because of such individual's

... sex....” 4 2 U.S.C. § 2000e2(a)(1). The PDA amended Title VII by explicitly including

discrimination based on pregnancy and related medical condi tions

within the definition of sex discrimination:

“ 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 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). Stout alleged that she was the victim of two

types of discrimination prohibited by Title VII: disparate

treatment and disparate impact.

Disparate Treatment

Stout's claim of disparate treatment has no merit. She argues

that she w as fired “because of” her pregnancy. But, to the

contrary, all of the evidence in the record indicates that she “was

fired be cause of her absenteeism, not because of her pregnancy.”

Dormeyer v. Comerica Bank-Ill.

, 223 F.3d 579, 583 (7th Cir. 2000).

There is no evidence she would have been treated differently if her

absences had been due to some reason unrelated to pregnancy or if-5-

she had b een absent the same amount but not pregnant. Baxter’s

policy does not in any way mention or focus on pregnancy,

childbirth or any related medical condition. So far as here

relevant, it merely limits the permissible absenteeism, on any

basis, of all probationary employees. Although Baxter's policy

results in the di smissal of any pregnant or post-partum employee

who misses more than three days of work during the probationary

period, it equally requires the termination of any non-pre gnant

employee who misses more than three days. There is no evidence in

the record that Stout was treated any differently than any other

employee who failed to comply with Baxter's probationary attendance

policy. Such a policy does not violate the PDA: “[T]he [PDA] does

not protect a pregnan t employee from being discharged for being

absent from work even if her abse nce is due to pregnancy or to

complications o f pregnancy, unless the absences of nonpregnant

employees are overlooked.” Id . (collecting cases). The district

c ourt properly granted Baxter's summary judgment motion with

respect to her disparate treatment claim.

Disparate Impact

The Supreme Court has exp lained disparate impact in the

following way: “[Disparate impact claims] involve employment

practices that are facially neutral in their treatment of different

groups but that in fact fall more harshly on one group than another

and cannot be justified by business necessity.” I nt'l Brotherhood-6-

of Teamsters v. United States

, 97 S.Ct. 1843, 1854-55 n. 15 (1977)

(citations omitted). To establish a p rima facie case of disparate

impact, a plaintiff must both identify the employment practice that

has the allegedly disproportionate impact and establish causation

by offering statistical evidence to sh ow that the practice in

question has resulted in prohibited discrimination. S ee Watson v.

Ft. Worth Bank and Trust

, 108 S.Ct. 2777, 2788 (1988). Ordinarily,

a prima facie disparate impact case requires a showing of a

substantial “statistical disparity between protected and nonprotected workers in regards to employment or promotion.” M unoz v.

Orr , 200 F.3d 291, 299-300 (5th Cir. 2000).

Although normally a plaintiff must provide comparative

statistical evidence demonstrating a disparity in impact of a

particular policy, in Garcia v. Woman's Hospital of Texas

, 97 F.3d

810 (5th Cir. 1996), we held that a plaintiff could prove a prima

facie disparate impact case without statistical evidence. In

Garcia

, the plaintif f attempted to return to her job after

complications from pregnancy required her to miss approximately one

month of work. Garcia's employer refused to allow her to return to

work, on the grounds that her pregnancy disqualified her from being

able to lift 150 pounds. The hospital, Garcia's employer,

contended that lifting 150 pounds was a bona fide job requirement,

but admitted that i t did not test Garcia's lifting capabilities

when she was hired, that it did not test any current employees, and-7-

that it also did not test job applicants. Garcia argued that the

lifting requirements were artificial and that no nurse was actually

required to lift that amount as part of his or her work. I d

. at

812 . At the conclusion of trial, the district court granted the

hospital's Rule 50 motion on the basis that G arcia had failed to

make out a claim for disparate treatment. Even though Garcia had

not provided any statistical comparison demonstrating a disparate

impact, we remanded the case for further proceedings on this issue.

We held that Garcia did not necessarily have to offer comparative

statistical evidence to prove a prima facie disparate impact case:

“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 [employees] at the Hospital.

Statistical evidence would be unnecessary if Garcia could establish

this point.” Id . at 813.

There is no evidence that Stout (or any other pregnant

probationary employee) was treated any differently than any other

probationary employee who missed work. In fact, Stout repeatedly

asserts in her brief that Stout was treated exactly the same as any

other employee who was unable to work. Stout's focus is on the

pol icy itself; Stout claims that the policy affects all pregnant

women and that therefore she has provided suf ficient evidence to

prove a prima facie disparate impact case.2 The PDA applies to “pregnancy, childbirth, [and] related medical

conditions....” 42 U.S.C. § 2000e(k).

-8- Stout has provided expert testimony that no pregnant woman who

gives birth will be able to work for at least two weeks. We agree

with Stout that this does constitute ev idence that “all or

substantially all” pregnant women who give birth 2 during the

probationary period will be terminated. Stout argues that under

Garcia , she has provided evidence sufficient to establish a prima

facie case of pregnancy discrimination. If Stout's interpretation

of G arcia was correct, we might agree. However, we decline the

invitation to expand Garcia to the extent Stout's ar gument

requires.

In effect, Garcia provides a procedural short cut to PDA

plaintiffs. In certain situations a Title VII plaintiff is

relieved of a burden they would ordinarily bear: the production of

statistical evidence comparing the effects of a challenged policy

on protected and unprotected groups of employees. However, when

the Garcia rule is applied to cases (such as this one) in which a

plaintiff challenges only an employer's limit on absenteeism the

rule produces an effect which is contrary to the plain language of

the statute. It is the nature of pregnancy and childbirth that at

some point, for a limited period of time, a woman who gives birth

will be unable to work. A ll job requirements, regardless of their

nature, affect “all or substantial ly all pregnant women.” If-9-

Garcia is taken to its logical extreme, then every pregnant

employee can make out a prima facie case against her employer for

pregnancy discrimination, unless the employer grants special leave

to all pr egnant employees. This is not the law–the PDA does not

require preferential treatment of pregnant employees and does not

require employers to treat pregnancy related absences more

leniently than other absences. Urbano v. Continental Airlines,

Inc. , 138 F.3d 204, 208 (5th Cir. 1998).

Accord ingly, we are unwilling to extend the G arcia rule to

those disparate impact claims, such as this one, in which the

plaintiff's only challenge is that the amount of sick leave granted

to employees is insufficient to accommodate the time off required

in a typical pregnanc y. To hold otherwise would be to transform

the PDA into a guarantee of medical leave for pregnant employees,

something we have specifically held that the PDA does not do. S ee

id . at 206-08. Such a rule would also be distinctly at odds with

the language of the statute, which requires that pregnant employees

be treated the same for all employment related purposes as other

employees with respect to their ability or inability to work. S ee

42 U.S.C. § 2000e(k) ([ Women affected by pregnancy] “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 ....”) (emphasis added). We therefore reject Stout's

argument that she proved a prima facie disparate impact case simply-10-

by showing that Baxter's policy affected all or substantially all

pregnant women who would give birth during or near to their

probationary period.

The present case does not involve any claim that any of

Baxter's job requirements are not actual, legitimate requirements

of the job. Nor does Stout claim that Baxter's leave policy treats

a class of disa bilities which includes pregnancy less favorably

than other classes of disabilities that do not include pregnancy.

And, Stout has no evidence that Baxter has in any way applied its

policy unevenly or has favored non-pregnant employees. In the end,

Stout's claim in this cas e is simply that she should have been

granted medical leave that is more generous than that granted to

non-pregnant employees. This the PDA does not require.

Conclusion

The order of the district court granting summary judgment for

Baxter is

AFFIRMED.