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The full background of the case is set forth in the Memorandum and Order

Granting Defendant’s Motion for Summary Judgment. (Doc. 39).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION,

Plaintiff,

Case No. 09-13116

-vs- HON. AVERN COHN

DECKER TRANSPORT COMPANY, INC.,

Defendant.

 /

MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR

RECONSIDERATION

I.

This is a pregnancy discrimination case under Title VII of the Civil Rights Act of 1964

in which plaintiff Equal Employment Opportunity Commission (EEOC) claims that defendant

Decker Transport Company, Inc. (Decker), a truckload carrier and former employer of Anita

Pilette-Phillips (Phillips), terminated Phillips because she was pregnant. Decker responds

that Phillips was terminated because she violated a nondiscriminatory company policy

when she drove the cab of a company tractor-trailer without authorization.1

 Decker

filed a motion for summary judgment. (Doc. 19). The Court granted the motion and

dismissed the case. (Doc. 39). 

Before the Court is EEOC’s motion for reconsideration. (Doc. 43). Decker has

responded. (Doc. 45). For the reasons that follow, the motion is DENIED.

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II.

E.D. Mich. LR 7.1(h) governs motions for reconsideration, providing in relevant

part:

Generally, and without restricting the court’s discretion, the court will not

grant motions for rehearing or reconsideration that merely present the

same issues ruled upon by the court, either expressly or by implication. 

The movant must not only demonstrate a palpable defect by which the

court and the parties have been misled but also show that correcting the

defect will result in a different disposition of the case.

E.D. Mich. LR 7.1(h). 

III.

The EEOC does not proffer direct evidence of pregnancy discrimination. Thus, the

Court applied the McDonnell Douglas framework. White v. Baxter Healthcare Corp., 533

F.3d 381, 391 (6th Cir. 2008)(“Absent direct evidence of discrimination, claims brought

pursuant to Title VII's antidiscrimination provision [is] subject to the tripartite burden-shifting

framework first announced by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), and subsequently modified in Texas Dept. of Comm. Affairs v.

Burdine, 450 U.S. 248 (1981).”). Decker did not challenge whether the EEOC set forth a

prima facie case of pregnancy discrimination. Rather, it argued that it had a legitimate

reason for terminating Phillips: she drove the cab of her Decker tractor-trailer without

authorization while on a medical hold, in violation of a Decker policy. See id. at 391 (“Once

the plaintiff establishes this prima facie case, the burden shifts to the defendant to offer

evidence of a legitimate, non-discriminatory reason for the adverse employment action.”).

The burden then shifted to the EEOC to show that Decker’s reason was pretext. See id.

at 391-92 (“the plaintiff [must] show that the defendant's proffered reason was not its true

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reason, but merely a pretext for discrimination”). Particularly, the EEOC’s burden was to

produce “enough evidence to convince a reasonable jury that [Decker’s] proffered reasons

for [terminating Phillips] may have been a mere pretext for [pregnancy] discrimination. Id.

at 395; see also id. at 392 (“Although the burdens of production shift, the ultimate burden

of persuading the trier of fact that the defendant intentionally discriminated against the

plaintiff remains at all times with the plaintiff.”); see also Burdine, 450 U.S. at 256. 

IV.

The EEOC argues that it produced sufficient evidence to rebut Decker’s legitimate

termination reason. Accordingly, it says that the Court should have denied Decker’s

summary judgment motion. The standard for granting summary judgment is as follows.

Summary judgment will be granted when the moving party demonstrates that there is “no

genuine issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56(c). There is no genuine issue of material fact when

“the record taken as a whole could not lead a rational trier of fact to find for the non-moving

party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

In deciding upon a motion for summary judgment, the Court views the factual

evidence and draws all reasonable inferences in favor of the non-moving party. See id.

Thus, any direct evidence offered by the plaintiff in response to a summary judgment

motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004).

However, the nonmoving party may not rest upon his pleadings and “must set forth specific

facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Showing that

there is some metaphysical doubt as to the material facts is not enough; “the mere

existence of a scintilla of evidence” in support of the nonmoving party is not sufficient to

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show a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986). Rather, the nonmoving party must present “significant probative evidence” in

support of its opposition to the motion for summary judgment in order to defeat the motion.

Moore v. Philip Morris Co., 8 F.3d 335, 340 (6th Cir. 1993); see Anderson, 477 U.S. at

249–50.

V.

A.

First, the EEOC argues on several grounds that the Court erred in not finding that

Decker subjected Phillips to a discriminatory pregnancy policy, which it says proves

Decker’s legitimate termination reason is pretext.

i.

 The EEOC suggests that the Court should have found that Decker treated Phillips

differently than other non-pregnant employees based on evidence that a physician’s letter

from the Emergency Room was not sufficient to clear her from a medical hold. The

argument lacks merit. 

The Court considered the physician’s letter, which discharged Phillips and describes

that she was given a prescription for Keflex, for a urinary tract infection, and that she should

follow up with her OB/GYN. (Doc. 23-34, p. 4). The Court also considered Decker’s

medical clearance policy, which states that all drivers who “seek[] medical treatment

through a licensed health care facility or medical provider . . . will need to be cleared

through the Medical Compliance Department (MCD) prior to getting back on the truck,”

(Doc. 23-14), and which gives the MCD discretion about when to clear drivers based on

such factors as: written documentation from the driver’s treating physician as to the reason

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for the visit, whether any drugs were prescribed, and whether the driver is fit to return to

work. Finally, the Court considered the following testimony proffered by the EEOC: Medical

Compliance Department Manager Janice Brown (Brown) said that a physician’s letter is

required for pregnant drivers, but also testified to the EEOC’s attorney in the same line of

questioning that while the physician’s letter is not required under the written policy, one is

“required” of all drivers. (Doc. 23-12, pp. 112, 125, 127); Risk Manager Anthony Longiotti

(Longiotti) said that for all drivers Decker follows more stringent medical clearance policies

than the Department of Transportation (DOT), out of a concern for driver and public safety.

(Doc. 23-11, pp. 84-88). Related to pregnant drivers, Longiotti also said that a physician’s

letter is required in order to confirm that the driver is able to meet the “fairly heavy manual

labor” required to drive a tractor-trailer. (Id. at 92). Longiotti said that whether a driver who

found out she was pregnant would be placed on medical hold during the time she was

waiting for a physician’s letter would depend on whether she was having problems and how

far in the future the driver’s next doctor’s appointment was. (Id.). 

Overall, the EEOC has failed to produce evidence such that a reasonable jury would

conclude that Decker’s medical clearance policy is discriminatory toward pregnant women,

and that it was the actual motivation for Phillips termination. Viewing the evidence in a light

most favorable to the EEOC, the evidence produced demonstrates that Decker has

stringent medical clearance policies in general, and that a pregnant driver may be placed

on medical hold while waiting for a physician’s letter if she has a more serious medical

condition, like in the case of Phillips who was concerned that she had a tubal pregnancy,

which prompted her to visit the Emergency Room. 

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ii.

The EEOC next suggests that the Court improperly accepted Decker’s assertions

that a “no pregnant drivers” policy does not exist when it should have viewed drawn all

inferences in favor of the EEOC, the non-moving party. In support, the EEOC relies

primarily on testimony from Phillips that Brown told her because she was “an insurance

risk” she had “30 days to get rid of [her] problem” at which time she could be working again.

(Doc. 23-3, pp. 73, 82). The EEOC argues that this testimony, which Phillips interprets as

meaning that Phillips had 30 days to get rid of the pregnancy in order to return to work,

demonstrates Smith’s discriminatory animus toward Phillips. The EEOC’s proposed

inference was and is not reasonable. See Matsushita, supra, at 587. 

Particularly, the EEOC’s proffered testimony of Brown describes that she discussed

with Phillips the need for her to follow-up with her physician so that the physician could sign

off on her job responsibilities at which time she could return to work. (Doc. 23-12, p. 165).

The EEOC did not proffer testimony of Brown relating to Phillips’ allegation that Brown told

her she had 30 days to get rid of her problem. In response to Decker’s questioning relating

to the alleged statement, however, Brown described that after Phillips went to the

Emergency Room she told Phillips that she was unable to clear her to drive the cab

because of the “problems” Phillips described as having relating to her pregnancy, referring

to the cramping and possibility of a tubal pregnancy. (Doc. 19-7, pp.186-87). Brown stated

that she was not more specific in the documentation of Phillips’ “problems” because

Phillips would not give her any definite [sic] [as to] what the ER doctor told her.” (Id. at

187). Further, Brown said that Phillips would not “disclose if medications were given to

her,” “confirm if it was a tubal pregnancy” or if “she was in the process of miscarriage.” (Id.

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at 187).

 Overall, then, viewing all reasonable inferences in favor of the EEOC, the Court

found that a reasonable jury would not have been able to find that Decker had a “no

pregnant drivers” policy. That is, a reasonable jury, after hearing Phillips and Brown’s

testimony, would not be able to find that a discriminatory pregnancy policy was the actual

motivation for Phillips termination in order to rebut Decker’s legitimate reason for

termination. 

The EEOC has failed to proffer additional evidence in the present motion for

reconsideration. Accordingly, the Court’s finding stands.

B.

The EEOC next argues that the Court erred in finding that the EEOC failed to proffer

sufficient evidence that Safety Manager Patricia Smith (Smith) terminated Phillips for being

pregnant. Particularly, the EEOC sets forth several grounds on which it argues that

sufficient evidence was produced showing discriminatory animus on the part of Smith, or

someone that she relied on in deciding to terminate Phillips, which it says rebuts Decker’s

legitimate termination reason.

i. 

First, the EEOC suggests that, under White, supra, at 401, the Court should have

found sufficient evidence of a discriminatory animus because Smith relied on information

from the MCD when she terminated Phillips. Particularly, the EEOC says that the fact that

Smith relied on information from the MCD, the department that, according to the EEOC,

applies discriminatory policies, proves that Smith, too, discriminated against Phillips. 

As an initial matter, the EEOC’s reliance on White is misplaced because the

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language it relies on, that a “plaintiff is not required to eliminate or rebut all the possible

legitimate motivations of the defendant as long as the plaintiff can demonstrate that an

illegitimate discriminatory animus factored into the defendant’s decision to take the adverse

employment action,” applies to mixed motive Title VII cases: this is a single motive Title VII

case, to which, as stated, the McDonnell Douglas burden shifting framework applies.

White, supra, at 401 (holding that the McDonnell Douglas framework does not apply to

mixed-motive Title VII cases; also describing that in single motive cases “the pretext

requirement is designed to test whether the defendant’s allegedly legitimate reason was

the real motivation for its action”). 

That aside, as stated in the previous section above, the EEOC has failed to proffer

sufficient evidence to show that Decker has a discriminatory pregnancy policy. Thus, the

argument that the Court should have found a discriminatory animus on the part of Smith

because she relied on information from the MCD, without more, lacks merit. 

ii. 

Next, the EEOC suggest that under Automobile Workers v. Johnson Controls, 499

U.S. 187 (1991), testimony by Smith proves her discriminatory animus. Particularly, the

EEOC characterizes a portion of Smith’s testimony as proving that she terminated Phillips

because she believed that Phillips’ pregnancy and possible harm to the fetus placed

Decker in jeopardy. The argument is not persuasive. 

In Johnson Controls, the policy at issue prevented fertile women from working in jobs

involving lead exposure. Id. at 197. Here, however, the EEOC has not proffered evidence

that pregnant women are not permitted to continue driving. Rather, viewing the evidence

in a light most favorable to the EEOC, the evidence shows that Decker’s medical clearance

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The EEOC also argues that reconsideration is warranted on the ground that the

Court improperly drew inferences of fact relating to whether Smith spoke with Phillips on

May 2, 2007. The date on which Smith and Phillips spoke is immaterial. Moreover,

Smith did not terminate Phillips based on this conversation, nor did the Court make this

finding in its decision, as the EEOC asserts. Thus, the argument lacks merit. 

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policy may require pregnant drivers to be placed on a medical hold, like Phillips was when

she went to the ER for fear of a tubal pregnancy, until such time that a physician signs off

on their job responsibilities. In other words, the EEOC has not produced evidence to show

that Decker’s policy prevented Smith from driving completely, like in Johnson Controls.

Thus, the case is inapposite.

Moreover, the EEOC mischaracterizes Smith’s statement. When describing the

situation in which Phillips was terminated, Smith testified, “I based my decision on the fact

that she irresponsibly took the truck . . . costing [Decker] money for fuel [and] putting

liability on the company should an accident have occurred,” (Doc. 19-9, pp. 110-13).

When then asked by EEOC’s counsel whether possible injury to the baby would be a

reason to not allow her to drive, Smith replied, “No, I don’t think so but again, that would

be up to a doctor to say.” (Id.). 

In light of the described testimony, the reasonable inference is that Smith was

stating her rationale for terminating Phillips for violating Decker’s medical hold policy, not

that Phillips’ pregnancy alone placed Decker at risk. Thus, the EEOC’s argument lacks

merit.2

 

iii.

The EEOC further argues that the Court erred in not finding that Smith had a

discriminatory animus because she relied on comments by Brown in deciding to terminate

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The EEOC, through a supplemental filing to support is motion for

reconsideration, (Doc. 46), also presents evidence that Brown falsely reported under

oath that she has never been convicted of a crime, when, as the EEOC discovered,

Brown was convicted of a felony theft crime, which took place in 1993. The EEOC

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Phillips. Particularly, the EEOC again relies on Phillips’ assertion that Brown told her she

had 30 days to get rid of her problem. In support of its argument, the EEOC cites Staub

v. Proctor Hospital, __ U.S. __, 131 S.Ct. 1186 (2011). However, Staub is distinguishable

from the present facts because it involves a case in which a plaintiff proffered evidence that

non-terminating supervisors intentionally made a false accusation against him which

ultimately led to his termination. Id. at 1189 (“[A supervisor] informed [the terminating

supervisor] that [plaintiff] had left his desk without informing a supervisor,” in violation of a

corrective action plan). Here, viewing the evidence in a light most favorable to the EEOC,

Smith knew of a conversation between Brown and Phillips, including the alleged statements

made by Brown. Still, there is no evidence that Brown made intentional false statements

to Smith in an attempt to have Phillips terminated. Accordingly, Staub is not instructive to

prove that Smith had a discriminatory animus.

Further, as the Court stated in its summary judgment decision, there is no evidence,

other than Phillips’ assertion, that Brown made the statement. Without more, the EEOC’s

argument lacks merit to survive summary judgment. Moreover, even assuming the

statement was true, it is too isolated and ambiguous to establish discriminatory animus.

See Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025-26 (6th Cir. 1993) (finding “isolated and

ambiguous comments” to be “too abstract” to show discriminatory pretext when the

statements occurred over a year ago and were too ambiguous to establish discrimination).

Thus, the EEOC’s argument lacks merit on this ground.3

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argues that based on this information there is a genuine issue of material fact as to

Brown’s credibility, which should be decided by a jury and not the Court. The EEOC’s

argument does not persuade the Court: the evidence was discovered during an

unrelated case; the theft conviction is unrelated to the employment discrimination at

issue; and the conviction is nearly 20 years old. In other words, the evidence is not

germane to the present matter. Moreover, the Court did not rely solely on Brown’s

testimony in its decision. Accordingly, reconsideration on this ground is not warranted. 

4

Bennett’s recollection is also supported by a message sent through Decker’s

electronic messaging service. (Id.).

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The EEOC further asserts that the Court drew an improper inference in favor of

Decker when, according to the EEOC, the Court stated that Decker was correct in its

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iv.

Third, the EEOC argues that the Court erred in not finding a genuine issue of

material fact relating to Smith’s motive in terminating Phillips on the ground that Phillips had

authorization from Decker dispatcher Eileen Bennett (Bennett) to drive the cab. That is,

Phillips says she did not violate the Decker policy and asserts that Smith knew of the

authorization but fired Phillips anyway because she was pregnant. In support, the EEOC

proffered Phillips’ testimony which describes that Bennett told her to “get to where [she]

had to go” and that she should let her know the location of the cab as quickly as possible.

(Id. at 82). Bennett, on the other hand, says that she “freed [Phillips] off the truck,” i.e.,

freed her to leave it so that she could return home. (Doc. 23-7, p. 171) (emphasis added).4

Outside of Phillips’ assertion, the EEOC did not proffer additional evidence in support of the

theory that Phillips had authorization to drive the cab home. Thus, the Court found that,

without more, the EEOC did not create a genuine issue of material fact as to Smith’s motive

so as to rebut Decker’s legitimate reason as pretext. The EEOC fails to offer new evidence

in its present motion. Thus, the argument lacks merit.5

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finding that “Phillips should have known that Bennett did not have authority to clear her

to drive the truck.” (Doc. 43, p. 8). The EEOC’s argument mischaracterizes the Court’s

finding. The Court’s statement, in its entirety, reads: “Further, Decker asserts Phillips

should have known that Bennett did not have authority to clear her to drive the truck,

especially after Brown, Russell and Smith told her that she could not move the tractortrailer and offered her an alternate way home, which Phillips refused. Again, however,

Decker says that despite Bennett’s alleged authorization, there is still no evidence of

pregnancy discrimination because Smith, not Bennett, was responsible for terminating

Phillips. Decker is correct.” (Doc. 39, p. 11). The Court did not make the described

inference in favor of Decker. The EEOC’s argument lacks merit, and is not well-taken.

 

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C.

Finally, the EEOC argues that the Court incorrectly applied the “same supervisor”

test under Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992) when it found that Phillips’

co-worker Bradley C. was not similarly situated. In support of its argument, the EEOC

relies on Ensley-Gaines v. Runyon, 10 F.3d 1220 (6th Cir. 1996), for the proposition that

the test does not apply to cases involving pregnancy discrimination. Id. at 1226. The

EEOC next proffers Bradley C.’s “medical history notes” from Decker to again argue that

he is similarly situated to Phillips. Particularly, the medical notes describe that a doctor

contacted Decker regarding Bradley C. after a physical revealed that he had high blood

pressure. (Doc. 23-27). Decker told the doctor to have Bradley C. call in so that they

would “know what was going on when he went to the Dr.” (Id.). Based on the medical

history comments, Bradley C. did not call in. Instead, he drove home approximately 60

miles. (Id.). The EEOC argues that because he was not terminated for driving home, and

Phillips was, there is sufficient evidence to rebut Decker’s legitimate termination reason.

As an initial matter, Ensley, supra, indeed holds that under the Pregnancy

Discrimination Act a plaintiff alleging discrimination need not meet the Mitchell same

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supervisor test to establish a prima facie case of pregnancy discrimination. Id. at 1226.

However, Ensley also holds that its “ruling does not alter the plaintiff’s burden in rebutting

any legitimate, nondiscriminatory reasons which may be offered by the defendant for its

employment actions.” Id. Here, Phillips’ prima facie case is not challenged. Thus, Ensley

is distinguishable. 

Further, Ensley is dissimilar to the present facts in two important respects: the EEOC

does not proffer evidence that Bradley C. was on medical hold, or that anyone from Decker

told Bradley C. that he was on medical hold, in order for him to violate the policy in the

same way that Phillips did, which caused her termination. In other words, the EEOC does

not proffer evidence that Bradley C., after being made aware that he was on medical hold

by the MCD, chose to drive anyway, and was afforded the benefit of not losing his job.

Instead, the evidence demonstrates that Decker discovered after the fact that Bradley C.

drove in a situation where he would have likely been put on a medical hold, which is

different than the case of Phillips, who was made aware on several occasions by the MCD

that she was on medical hold and that she could not drive without being cleared. 

Accordingly, unlike Ensley, even without considering that Bradley C. had a different

supervisor than Phillips, there is no evidence to show that he received “more favorable

benefits” than Phillips. See Ensley, supra, at 1223-26 (plaintiff established that a

comparable non-protected person received more favorable treatment when she proffered

evidence that nonpregnant coworkers were afforded a benefit pertaining to their ability or

inability to work, i.e., they were allowed to sit during shifts). Thus, the EEOC’s argument

lacks merit. 

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VI.

In sum, the EEOC’s arguments fail to establish a palpable defect which if corrected

would result in a different disposition of the case. Thus, reconsideration of the Court’s

order granting summary judgment to Decker is not warranted.

SO ORDERED.

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: May 11, 2011

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, May 11, 2011, by electronic and/or ordinary mail.

 S/Johnetta M. Curry-Williams 

For Julie Owens 

Case Manager, (313) 234-5160

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