UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

96-21115

__________________________

MIRTHA URBANO,

Plaintiff-Appellant,

versus

CONTINENTAL AIRLINES, INC.,

Defendant-Appellee.

______________________________________________________________ ___

Appeal from the United States District Court for the Southern

District of Texas

_______________________________________________________________ April 15, 1998

Before REAVLEY, JONES, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Urbano challenges the district court’s holding

that a company policy of granting light-duty assignments only to

workers who suffer occupational injuries does not violate Title

VII, as amended by the Pregnancy Discrimination Act (“PDA”).

Because the PDA protects pregnant women on ly from being treated

differently than similarly-situated non-pregnant employees, it does

not guarantee light-duty assignments. We affirm the judgment as a

matter of law for Continental Airlines, Inc.

BACKGROUND

In 19 90, Mirtha Urbano began working for Continental

Airlines in various capacities, most recently as a Ticketing Sales2

Agent. In that job, she assisted customers with sales and

checking-in passengers and their baggage, often lifting l oads in

excess of twenty pounds.

In October of 1994, Urbano learned sh e was pregnant.

Shortly thereafter, she began suffering low-back disco mfort and

went to see her doctor. The doctor ordered her to refrain from

lifting anything over twenty pounds for the balan ce of her

pregnancy.

Pursuant to these instructions, Urbano requested to work

i n a Service Center Agent position, which does not require

employees to lift heavy loads. The request was denied because

Continental’s transitional duty policy grants light-duty

assig nments only to employees who suffer an occupational injury.

Employees with a nonoccupational injury or illness who would like

a less physically demanding position must go through Continental’s

normal duty assignment system , in which employees bid for the

positions of their choice, and the positions are assigned by

seniority. Continental deemed Urbano ineligible under its policy

for a mandatory light duty transfer. Unable to return to work and

comply with her doctor’s restrictions, Urbano was forced to use her

accrued sick days, followed by a ninety-day family leave and then

unpaid medical leave.

By March of 1995, Urbano filed charges of discrimination

with the E.E.O.C. On March 30, 1995, Urbano received her right-tosue letter and timely filed suit in federal district court,1 In addition to her claim of discrimination under the theory

of disparate treatment, Urbano challenges the district court’s

o rder granting judgment as a matter of law on her claims of

disparate impact and retaliatory discharge under the PDA, as well

as her claim of ret aliatory discharge under the FMLA. We have

reviewed the briefs and the pertinent portions of the record and

find no reve rsible error. Urbano did not adduce evidence

sufficient to create a genuine issue of material fact on those

claims. Accordingly, we affirm on these issues for essentially the

reasons relied upon by the district court.

3 alleging, inter alia

, a disparat e treatment theory of pregnancy

discrimination.

After the district court granted Continental’s motion

judgment as a matter of law, this appeal followed. 1

STANDARD OF REVIEW

This court reviews the grant of summary judgment de

novo , applying the same standards as the district court. See

Duffy v. Leading Edge Prods., Inc. , 44 F.3d 308, 312 (5th Cir.

1995). Summary judgment is appropriate, when, viewing the

evidence in the light most favorable to the nonmoving party, the

record reflects that no genuine issue of any material fact

exists, and the moving party is entitled to judgment as a matter

of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106

S. Ct. 2548, 2252-53 (1986); see also Fed. R. Civ. P. 56(c).

Once the movant carries his burden, “the nonmovant must go beyond

the pleadings and designate specific facts showing that there is

a genuine issue for trial.” Little v. Liquid Air Corp ., 37 F.3d

1069, 1075 (5th Cir. 1994).4 DISCUSSION

Title VII of the 1964 Civil Rights Act “prohibits various

forms of employment discrimination, including discrimination on the

b asis of sex.” C alifornia Fed. Sav. & Loan Ass’n v. Guerra

, 479

U.S. 272, 276-77, 107 S. Ct. 683, 687 (1987). With the passage of

the PDA in 1978, Congress amended the definitional section of Title

VII 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 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) (1994). A claim under the PDA is analyzed

like Title VII discrimination claims in general. S ee Garcia v.

Women’s Hosp. , 97 F.3d 810, 812-13 (5th Cir. 1996).

To establish a prima facie case of discrimination under

Title VII, a plaintiff may prove her claim either through direct

evidence, statistical proof, or the test established by the Supreme

Court in McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 93 S. Ct.

1817 (1973). The M cDonnell Douglas test requires the plaintiff to

show: (1) she w as a member of a protected class, (2) she was

qualified for the position she lost, (3) she suffered an adverse

employment action, and (4) that others similarly situated were more

favorably treated. S ee Geier v. Medtronic, Inc.

, 99 F.3d 238, 241

(7th Cir. 1996) (citing McDonnell Douglas , 411 U.S. at 802, 93 S.5

Ct. at 1824). Once the employer articulates a legitimate,

nondiscriminatory reason for the employment action, howev er, the

scheme of shifting burdens an d presumptions “simply drops out of

the picture,” and “the trier of fact proceeds to decide the

ultimate question: whether plaintiff has proved ‘that the defendant

intentionally discriminated against [her]’ because of [her sex].”

St. Mary’s Honor Center v. Hicks

, 509 U.S. 502, 113 S. Ct. 2742

(1993) (internal citation omitted).

The district court found that Urbano failed to establish

the second prong of her prima facie case for disparate treatment.

Specifically, the district court held that Urbano could not

“provide evidence creating a genuine issue as to whether she was

qualified for transfer into a light-duty position, i.e., that she

sustained a work related injury.” Continental also asserts that

Urbano failed to offer evidence that she was treated differently

un der Continental’s policy than other employees with nonoccupational injuries.

We agree.

Continental treated Urbano in exactly the same manner as

it would have treated any other worker who was injured off the job.

Light duty assignments were at a premium. Each of the forty-eight

employees who received a light-duty assignment in 1994 had suffered

an occupational injury. Urbano was not denied a light-duty

assignment because of her pregnancy, but because her back troubles

were not work related. Under the PDA, an employer is obliged to6

ignore a woman’s pregnancy and “to treat the employee as well as it

would have if she were not pregnant.” Piraino v. International

Orientation Resources, Inc.

, 84 F.3d 270, 274 (7th Cir. 1996).

Thus, Continental was entitled to deny Urbano a light-duty

assignment as long as it “treat[s] similarly affected but

nonpregnant employees” the same. Troupe v. May Dep’t Stores Co.

,

20 F.3d 734, 738 (7th Cir. 1994); see also Guerra

, 479 U.S. at 285-

86, 107 S. Ct. at 692. Without a showing that Continental adhered

to the requiremen ts of the light-duty policy only in cases

involving its pregnant workers, Urbano cannot maintain that she was

a victim of discrimination under the PDA. S ee Rhett v. Carne gie

Ctr. Assocs. (In re Carnegie Ctr. Assocs.) , 129 F.3d 290, 296 (3d

Cir. 1997); Geier , 99 F.3d at 242-43; Troupe , 20 F.3d at 738.

Urbano argues that she wa s physically and mentally

qualified to perform the duties required for light-duty assignment,

but t hat Continental’s policy of granting light duty only to

employees who are injured on the job deprived her of an employment

opportunity on the basis of her pregnancy. Under this theory,

employees who are unable to perform their regular duties because of

t heir pregnancy will never be able to enjoy the same benefits as

employees who suffer occupational injuries, even though these two

groups are no different in their ability or inability to work.

Urbano concludes that Continental’s policy discriminated against

her on the basis of her pregnancy and, therefore, violates the PDA.7 Appellant relies heavily on the Sixth Circuit’s opinion

in Ensley-Gaines v. Runyon

, 100 F.3d 1220 (6th Cir. 1996). At the

heart of Ensley-Gaines was a Postal Service policy of granting

“limited duty” as signments to employees who were injured on the

job, and “light duty” assignments to employee s with non-work

related conditions. Because the “light duty” assignments were

granted at the employer’s discretion and “limited duty” assignments

w ere granted as employee entitlements, a pregnant employee wh o

received light duty for only a few hours a day challenged the

policy as being violative of Title VII. The Sixth Circuit held

that a plaintiff establishes a prima facie case of discrimination

when she can demonstrate that her employer’s policy treats pregnant

women differently than workers who are injured on the job. The

Sixth Cir cuit reasoned that the PDA requires employers to treat

pregnant employees in the same manner as they would other employees

who w ere similarly situated with respect to their ability or

inability to work. See id. at 1226. Because pregnant employees

and employees who were injured on the job are no different in their

ability or inability to do their work, the latter cannot receive

more favorable treatment than the former.

The appellant argues that “[t]he Sixth Circuit’s

reasoning is sound because it would defeat the very purpose of the

PDA to allow an employer to deny pregnant employees opportunities

because they could not meet a ‘quali fication’ that was itself

discriminatory.” On the contrary, the rule advocated by Urbano and8

the Sixth Circuit effectuates discrimination contrary to the PDA

--

in favor of pregnant employees.

The PDA must be understood in the context in which it was

enacted. S ee Guerra

, 479 U.S. at 284, 107 S. Ct. at 691. The

Supreme Court held in General Electric Co. v. Gilbert

, 429 U.S.

125, 136-138, 97 S. Ct. 401, 408-09 (1976), that under Title VII,

discrimination on the bas is of pregnancy was not sex

discrimination. In the wake of this decision, Congress passed the

PDA, Pub. L. No. 95-555, 92 Stat. 2076 (1978). The PDA amended the

d efinitional provision of Title VII “to specif[y] that sex

discrimination includes discrimination on the basis of pregnancy.”

Guerra

, 479 U.S. at 277, 107 S. Ct. at 687. In so doing, Congress

“unambiguously expressed its disapproval” with the Gilbert

decision. Newport News Shipbuilding & Dr y Dock Co. v. EEOC , 462

U.S. 669, 678, 103 S. Ct. 2622, 2628 (1983).

Against this legislative backdrop, most courts have held

that the PDA does not impose an affirmative obligation on employers

to grant preferential treatment to pregnant women. S ee Guerra

, 479

U.S. at 284-86, 107 S. Ct. at 691-92; In re Carnegie Ctr. Assocs.

,

129 F.3d at 295 (“[T]he PDA does not require that employers treat

pregnant employees better than other temporarily disabled

employees.”); Lang v. Star Herald

, 107 F.3d 1308, 1312 (8th Cir.

1997) (“[T he PDA] does not create substantive rights to

preferential treatment.”); G arcia

, 97 F.3d at 813. (“The PDA does

not mandate preferential treatment for pregnant women

. . . .”);9

Armstrong v. Flowers Hosp., Inc.

, 33 F.3d 1308, 1312 (11th Cir.

1994) (“Rather than introducing new substantive provisions

protecting the rights of preg nant women, the PDA brought

discr imination on the basis of pregnancy within the existing

statutory framework prohibiting sex-based dis crimination.”);

Troupe

, 20 F.3d at 738 (“The Pregnancy Discrimination Act does not

. . . require employers to offer maternity leave or take other

steps to make it easier for pregnant women to work . . . .”). By

defining sex discrimination under Title VII to include pregnancy,

Congress intended to do n o more than “re-establish principles of

Title VII law as they had been understood prior to the G ilbert

decision,” Newport News , 462 U.S

. at 679, 103 S. Ct. at 2628, and

ensure that female workers would not be treated “differently from

other employees simply because of their capacity to bear children,”

Johnson Controls, 499 U.S. at 205, 111 S. Ct. at 1206. The Sixth

Circuit drew the opposite conclusion without citing any of the

opposing circuit court decisions and after distinguishing,

unpersuasively, a previous case from its own court. The impact of

Ensley-Gaines is unequivocally to treat pregnant employees who need

light duty work better than other employees with a similar medical

need whose conditions arose off-the-job. This is contrary to

Guerra

. 479 U.S. at 291, 107 S.Ct. at 695 (holding that while the

PDA does not mandate better treatment for pre gnant than nonpreg nant employees, it does not pre-empt a state law that2 Indeed it could be argued that granting pregnant employees a

benefit men are ineligible to receive is not only not required

under the PDA, but it is also not permissible under Title VII, for

such a policy would treat a male employee “‘in a manner which but

for that person’s sex would be different.’” N ewport News

, 462 U.S.

at 683, 103 S. Ct. at 2631 (quoting L os Angeles Dep’t of Water &

Power v. Manhart

, 435 U.S. 702, 711, 98 S. Ct. 1370, 1377 (1978)).

The PDA merely specifies that under Title VII an employer must not

discriminate on the basis of a women’s pregnancy; it does not

“erase the original prohibition against discrimination on the basis

of an employee’s sex.” Newport News , 462 U.S. at 685, 103 S. Ct.

at 2632.

10 “establishes benefits that employers must, at a minimum, provide to

pregnant women”).

In this case, Continental treated Urbano the same as it

treats any other worker who suffered an injury off duty. There is

no probative evidence that Continental’s distinction between

occupational an d off-the-job injuries was a pretext for

discrimination against pregnant women or that it had a disparate

impact on them. Urbano’s claim is thus not a request for relief

from discrimination, but rather a demand fo r preferential

treatment; it is a demand not satisfied by the PDA. 2 As long as

pregnant employees are treated the same as other employees injured

off duty, the PDA does not entitle pregnant employees with non-work

rel ated infirmities to be treated the same under Continental’s

light-duty policy as employees with occupational injuries.

CONCLUSION

For the foregoing reasons, the district court’s order

granting judgment as a matter of law in favor of the employer is

AFFIRMED

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