USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
`
`
`KATIA HILLS,
`
`Plaintiff,
`
`-against-
`
`AT&T MOBILITY SERVICES LLC a/k/a
`AT&T MOBILITY LLC,
`
`
`
`Civil No.: 3:17-cv-00556-JD-MGG
`
`
`
`
`Defendant.
`
`
`DEFENDANT’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`
`
`
`
`
`
`
`

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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 2 of 24
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`
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`TABLE OF CONTENTS
`
`I.
`INTRODUCTION ................................................................................................................... 1
`II. SUMMARY OF MATERIAL FACTS ................................................................................... 1
`A. Plaintiff’s Employment with AT&T Mobility ................................................................. 1
`B. AT&T’s Neutral Attendance Management Policy ........................................................... 2
`C. Plaintiff’s Attendance History .......................................................................................... 4
`III. ARGUMENT........................................................................................................................... 7
`A. The SAG is facially neutral. ............................................................................................. 8
`B. Plaintiff has not met her burden under Rule 56. ............................................................ 10
`1. Plaintiff fails to meet her prima facie burden. ........................................................... 11
`2. Plaintiff fails to show that no reasonable jury could believe AT&T’s reasons for
`denying Plaintiff excused absences. .............................................................................. 14
`C. Plaintiff fails to demonstrate that AT&T was aware that her unexcused absences were
`pregnancy-related. .......................................................................................................... 16
`IV. CONCLUSION ..................................................................................................................... 18
`
`
`
`
`i
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 3 of 24
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`TABLE OF AUTHORITIES
`
`Cases
`
`Page(s)
`
`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1985) ...................................................................................................................8
`
`Antonetti v. Abbott Labs.,
`563 F.3d 587 (7th Cir. 2009) ...................................................................................................13
`
`Armfield v. Key Plastics, LLC,
`No. 1:08 CV 110, 2011 U.S. Dist. LEXIS 80482 (N.D. Ind. July 22, 2011) ............................7
`
`Durham v. Rural/Metro Corp.,
`955 F.3d 1279 (11th Cir. 2020) ...............................................................................................12
`
`Durham v. Rural/Metro Corp.,
`No. 4:16-cv-01604-VEH, 2018 WL 7892084 (N.D. Ala. Mar. 19, 2018) ..............................12
`
`Hong v. Children’s Mem’l Hosp.,
`993 F.2d 1257 (7th Cir.1993) ..................................................................................................13
`
`Legg v. Ulster Cnty.,
`820 F.3d 67 (2d Cir. 2016).......................................................................................................12
`
`Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
`475 U.S. 574 (1986) ...................................................................................................................8
`
`McDonnell Douglas Corp. v. Green,
`411 U.S. 792 (1973), as modified by Young v. United Parcel Servs. Inc., 575
`U.S. 206 (2015) ........................................................................................................................10
`
`McLaughlin Equip. Co. v. Servaas,
`No. IP98-0127-C-T/K, 2004 WL 1629603 (S.D. Ind. Feb. 18, 2004) ...........................7, 13, 15
`
`Meadors v. Ulster Cnty.,
`No. 1:09-cv-550, 2011 WL 12496693 (N.D.N.Y. Apr. 1, 2011), vacated and
`remanded sub nom. Legg v. Ulster Cnty., 820 F.3d 67 (2d Cir. 2016) ....................................13
`
`Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
`210 F.3d 1099 (9th Cir. 2000) ...................................................................................................7
`
`Santos v. Wincor Nixdorf, Inc.,
`No. 1:16-CV-440-RP, 2018 U.S. Dist. LEXIS 48736 (W.D. Tex. Mar. 23,
`2018) ........................................................................................................................................12
`
`Tex. Dep’t of Cmty. Affairs v. Burdine,
`450 U.S. 248 (1981) ...................................................................................................................7
`
`
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`ii
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 4 of 24
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`Young v. United Parcel Servs.,
`575 U.S. 206 (2015) ......................................................................................................... passim
`
`Statutes
`
`42 USC 2000e(k) .............................................................................................................................8
`
`Other Authorities
`
`Fed. R. Civ. P. 56(a) ........................................................................................................................7
`
`U.S. Equal Employment Opportunity Commission, Enforcement Guidance on
`Pregnancy Discrimination and Related Issues (June 25, 2015), available at
`https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-
`discrimination-and-related-issues ............................................................................................10
`
`
`
`iii
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 5 of 24
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`INTRODUCTION
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`
`
`I.
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`Plaintiff’s motion is based on speculation and a flawed argument that AT&T violates the
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`Pregnancy Discrimination Act simply because it does not automatically excuse absences that
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`may occur during pregnancy. The PDA neither mandates pregnancy leave nor requires that
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`employers excuse all absences, even if pregnancy related. Rather, it requires that AT&T treat
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`pregnant employees the same as other employees who are similar in their ability or inability to
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`work.
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`In her motion, Plaintiff shows that some of her absences during pregnancy were not
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`excused, but there is a genuine issue as to whether those were pregnancy-related. She ignores the
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`evidence that absences shown to be pregnancy-related were excused by AT&T. Significantly, she
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`fails to show that AT&T treated any non-pregnant employees any differently.
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`Plaintiff bears a high burden on summary judgment. She must establish through
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`admissible evidence that no reasonable jury could find for AT&T on her claim under the PDA.
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`On the record before this Court, a reasonable jury could certainly find that AT&T did not
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`intentionally discriminate against Plaintiff. Therefore, her motion for partial summary judgment
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`on Count One of her Complaint must be denied.
`
`II.
`
`SUMMARY OF MATERIAL FACTS
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`Plaintiff’s Employment with AT&T Mobility
`
`A.
`During the relevant time, AT&T Mobility (“AT&T”) operated retail stores in Indiana,
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`managed by store managers and staffed by non-management, non-exempt bargained for
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`employees (“Sales Employees”). (SMF ¶ 77-78).1 From April 7, 2014 to July 16, 2015, Plaintiff
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`1 Defendant’s Rule 56-1 Statement of Genuine Disputes and Additional Material Facts, hereafter
`referred to as “SMF,” is appended hereto.
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`
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`1
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 6 of 24
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`Katia Hills (née Patino) worked in AT&T’s Cassopolis Street, Indiana store. (Id. ¶¶ 1, 4, 76). She
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`was originally hired as a Sales Support Representative but later transferred to the customer-
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`facing position of Retail Sales Consultant. (Id. ¶ 4-5). Plaintiff was at all times represented by a
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`union. (Id. ¶ 82).
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`Sales Employees like Plaintiff provided various in-store customer services, including the
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`resolution of product inquiries, the sale of cellphones, tablets and data plans, and other
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`administrate aspects of the sale. (Id. ¶ 5). To ensure the best possible service to customers,
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`AT&T depended on Sales Employees to report to work on time and as scheduled, absent a good
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`excuse. (Id. ¶ 83).
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`AT&T’s Neutral Attendance Management Policy
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`B.
`AT&T maintained written guidance regarding discipline for attendance in the form of
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`Sales Attendance Guidelines (“SAG”).2 (Id. ¶ 84). Under the SAG, a Sales Employee incurred
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`“points” (or fractions of points) each time an absence, tardy, or early departure was unexcused.
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`(Id. ¶ 86). The SAG also contained recommended progressive levels of discipline, up to and
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`including dismissal, as a Sales Employee’s point total escalated over time. (Id. ¶ 87). Points did
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`not remain on a Sales Employees’ record forever; they expired within a year. (Id. ¶ 35).
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`AT&T understands that any number of life circumstances may keep an employee from
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`reporting to work as scheduled. (Id. ¶ 83). The SAG therefore recognized a non-exhaustive list of
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`excuses available to Sales Employees who found themselves with attendance problems. (Id. ¶
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`94). For example, Sales Employees were excused from work for approved leaves of absence
`
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`2 There were two versions of the SAG in effect during Plaintiff’s employment: the “2011 SAG”
`(in effect from her hire until April 30, 2015); and the “2015 SAG” (in effect from May 1, 2015
`through the date of her termination). For purposes of this Summary, they can and have been
`discussed collectively. For further detail on the intricacies of each SAG, see Defendant’s
`Statement of Genuine Disputes and Additional Material Facts, appended hereto.
`2
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 7 of 24
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`
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`(FMLA, etc.), approved job accommodations, approved short-term disability leave, or qualified
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`bereavement, among many other reasons. (Id. ¶ 31). These and all other reasons warranting
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`excused absences applied to all Sales Employees, regardless of whether they were pregnant. (Id.
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`¶ 85).
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`Whether any particular set of circumstances qualified for an excuse under the SAG often
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`depended on other applicable AT&T policies. (Id. ¶¶ 96, 104, 111). For example, the SAG
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`instructed that absences tied to an approved job accommodation should be excused. (Id. ¶ 95). It
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`also directed Sales Employees in need of an accommodation to contact AT&T’s Integrated
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`Disability Service Center (“IDSC”) to request one. (Id. ¶¶ 100, 120). The types of illnesses or
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`conditions that qualified for a job accommodation in the form of time off work depended, in turn,
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`on AT&T’s job accommodation policy, as determined by the IDSC in partnership with retail
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`store management. (Id. ¶¶ 96, 101). At AT&T, job accommodations were not limited to
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`employees with conditions that qualified as disabilities under the ADA. (Id. ¶ 99). Similarly, the
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`SAG identified as excused absences due to an approved FMLA Leave. (Id. ¶ 103). Whether an
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`absence qualified as approved FMLA Leave turned on AT&T’s FMLA policy as applied by
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`AT&T’s FMLA Operations Team (“FMLA Team”). (Id. ¶¶ 104, 107). Again, these policies and
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`their corresponding approval process applied to all Sales Employees equally, whether pregnant
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`or not. (Id. ¶ 85).
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`AT&T provided Sales Employees and supervisors with resources to assist with questions
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`about the SAG, whether an absence should be excused, and the process for obtaining an excuse
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`under the SAG. (Id. ¶¶ 118-122). AT&T trained Sales Employees, store managers, and other
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`3
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 8 of 24
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`
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`supervisors on the SAG and its suite of employment policies related to leaves and attendance.3
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`(Id. ¶¶ 90, 92, 93, 97). From this training, Sales Employees knew that the SAG and AT&T’s
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`attendance-related policies were available to them, on-demand, on AT&T’s intranet
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`(HROneStop), Retail web portal (myCSP), and physical in-store breakrooms. (Id. ¶ 118). Sales
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`Employees could also contact their store manager, their local HR representative, their union
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`representative, or a toll-free hotline with questions. (Id. ¶¶ 82, 119, 121).
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`Plaintiff’s Attendance History
`
`C.
`Plaintiff’s attendance issues began almost immediately upon hire, before she became
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`pregnant. Within her first five months of work, Plaintiff was tardy six times and absent four
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`times. (Id. ¶ 123). On five of these occasions, Plaintiff spoke with her Assistant Store Manager
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`about the extenuating circumstances that caused her to miss work, and he excused her. (Id. ¶
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`124). On the other five occasions, Plaintiff did not request an excuse and therefore incurred
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`points under the SAG. (Id.).
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`On August 9, 2014, after Plaintiff incurred four points, Plaintiff’s store manager gave her
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`a Counseling Notice that reminded her of her responsibility to be at work as scheduled. (Id. ¶¶
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`145, 149). It further warned that failure to improve her attendance could result in further
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`discipline, up to and including dismissal. (Id. ¶ 149). The Counseling Notice instructed Plaintiff
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`to contact AT&T’s FMLA Team or the IDSC if she had questions about how to excuse an
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`absence under an approved leave of absence, job accommodation, or short-term disability leave.
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`(Id. ¶ 150).
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`3 AT&T also trained its Sales Employees and their supervisors on the company’s Equal
`Employment Opportunity (“EEO”) Policy, which expressly prohibited discrimination on the
`basis of sex and pregnancy. (Id. ¶ 91).
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`4
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`
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`Plaintiff’s attendance issues continued after she became pregnant. Between November
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`2014 and April 2014, Plaintiff was absent eight more times. (Id. ¶ 125). Whenever Plaintiff
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`returned to work, and told her store manager that her absence was due to illness, he immediately
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`directed her to contact the IDSC to excuse her absence under an approved job accommodation.
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`(Id. ¶ 126). Plaintiff never contacted the IDSC. (Id. ¶ 102). As a result, her absences remained
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`unexcused, and she incurred points under the SAG. (Id. ¶ 148). By April 24, 2015, Plaintiff
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`received from her store manager a second Counseling Notice (after 4.25 points, on December 27,
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`2014), a Written Warning (after 5.50 points, on February 14, 2015), and a Final Written Warning
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`(after 6.0 points, on April 24, 2015). (Id. ¶¶ 146-148). Each time Plaintiff and her store manager
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`sat down to review her attendance history, and its resulting discipline, both her store manager
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`and the written discipline document she received instructed Plaintiff to call the IDSC if she
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`wanted a job accommodation to excuse her time off work. (Id. ¶ 150). Still, Plaintiff failed to
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`contact the IDSC, and her absences remained unexcused. (Id. ¶ 102).
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`Plaintiff continued to miss work in April, May, and June 2015. (Id. ¶¶ 56, 72). On one of
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`these occasions, Plaintiff initiated a request to excuse her absence, and submitted to AT&T
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`documentation that certified her need to attend a medical appointment on the date of that absence
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`(May 26, 2015). (Id. ¶ 130). AT&T approved Plaintiff’s request for FMLA. (Id. ¶ 142). As a
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`result, Plaintiff’s May 26 absence was excused and Plaintiff did not incur a point. (Id. ¶ 143). For
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`the remaining dates, however, Plaintiff failed to submit the documentation requested, and her
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`requests to excuse the absence under FMLA were denied.
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`On May 5, 2015, Plaintiff requested an FMLA excuse for her May 4, 2015 absence. (Id. ¶
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`127). That same day, AT&T’s FMLA Team informed Plaintiff that her healthcare provider
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`needed to submit documentation to support this request (i.e., the FMLA4 form) by May 20. (Id.).
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`5
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`On May 9, AT&T received an incomplete FMLA4 form from Plaintiff’s doctor, which was
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`missing two of the four required pages, and aside from Plaintiff’s name and date of birth, was
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`otherwise blank. (Id. ¶ 128). On May 12, the FMLA Team notified Plaintiff of these deficiencies
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`and extended her deadline to May 27. (Id. ¶ 129).
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`On May 26, Plaintiff’s doctor provided to AT&T another FMLA4 form. (Id. ¶ 130). That
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`form certified that Plaintiff (i) would be incapacitated following the birth of her child in June, (ii)
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`had a medical appointment on May 21, and (iii) was scheduled for a follow-up visit on May 26—
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`but it did not indicate that Plaintiff needed to miss work on May 4 as a result of her pregnancy.
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`(Id.). The FMLA Team informed Plaintiff that the documentation “does not indicate you were ill
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`and/or incapacitated on the date(s) for which you are requesting FMLA” and gave her until June
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`17 to remedy that deficiency. (Id. ¶ 131). Plaintiff failed to submit any documentation supporting
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`her May 4 absence by that deadline and, as a result, AT&T denied her request for FMLA. (Id. ¶¶
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`132-33). In discovery, she testified that her doctor refused to certify that the absence was
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`pregnancy-related. (Id. ¶ 132).
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`Then, on May 20, 2015, Plaintiff requested an FMLA excuse for her May 16, 2015
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`absence. (Id. ¶ 136). On three separate occasions, AT&T contacted Plaintiff to inform her that
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`the documentation submitted (i.e. the same FMLA4 form submitted in connection with her prior,
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`May 4 absence, which did not reflect that Plaintiff was unable to work due to her pregnancy on
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`May 16, either) was insufficient. (Id. ¶ 137). Plaintiff failed to later submit any documentation
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`supporting that absence, and as a result, AT&T denied her request for FMLA. (Id. ¶ 139).
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`Indeed, during the course of her employment, Plaintiff never submitted to AT&T a copy of her
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`medical records from the medical center she is now-known to have visited on May 16 (or for that
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`matter any other medical records related to that absence). (Id. ¶ 141).
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`6
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 11 of 24
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`Plaintiff incurred additional points for each of these unexcused absences and, as a result
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`of her persistent history, Plaintiff’s Store Manager terminated her employment on July 16, 2015,
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`for unsatisfactory attendance. (Id. ¶ 73).
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`III.
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`ARGUMENT
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`Plaintiff asks this Court for summary judgment on Count I of the Complaint despite
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`presenting no evidence of discriminatory intent and no evidence even remotely suggesting that
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`others similar in their inability to come to work were treated differently than she was while
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`pregnant. Instead, she wrongly asserts that AT&T’s attendance guidelines are “facially
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`discriminatory” and speculates that those guidelines “automatically excused” absences for
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`certain categories of workers but not others.
`
`Where a plaintiff moves for summary judgment on an employment discrimination claim,
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`she bears both the initial burden of production on the motion and the ultimate burden of
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`persuasion that her claim would prevail at trial. Fed. R. Civ. P. 56(a); Tex. Dep't of Cmty. Affairs
`
`v. Burdine, 450 U.S. 248, 253 (1981). Summary judgment is warranted only where the movant
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`establishes that “there is no genuine dispute as to any material fact and the movant is entitled to
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`judgment as a matter of law.” Fed. R. Civ. P. 56(a). In other words, “a plaintiff moving for
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`summary judgment must essentially show that the evidence is so powerful that no reasonable
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`jury would be free to disbelieve it.” Armfield v. Key Plastics, LLC, No. 1:08 CV 110, 2011 U.S.
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`Dist. LEXIS 80482, at *30 (N.D. Ind. July 22, 2011).
`
`A non-movant, here AT&T, is not required to refute a movant’s assertion if that assertion
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`is unsupported by fact. McLaughlin Equip. Co. v. Servaas, No. IP98-0127-C-T/K, 2004 WL
`
`1629603, at *5 (S.D. Ind. Feb. 18, 2004) (quoting Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
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`210 F.3d 1099, 1102–03 (9th Cir. 2000) (“If a moving party fails to carry its initial burden of
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`production, the nonmoving party has no obligation to produce anything.”). The Court must
`7
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 12 of 24
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`
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`review the record “taken as a whole.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
`
`U.S. 574, 587 (1986). Also, the record and all reasonable inferences that may be drawn from it
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`are to be viewed in a light most favorable to the party opposing summary judgment. Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 247–52 (1985).
`
`On the present record, Plaintiff has not sustained her burden under Rule 56 and her
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`motion for partial summary judgment should be denied.
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`The SAG is facially neutral.
`
`A.
`The Pregnancy Discrimination Act (“PDA”) prohibits employers from discriminating on
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`the basis of “pregnancy, childbirth, or related medical conditions,” and provides that “women
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`affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all
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`employment-related purposes…as other persons not so affected but similar in their ability or
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`inability to work.” 42 USC 2000e(k) (emphasis added). Consistent with the PDA, the SAG treats
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`pregnant and non-pregnant employees who are similar in the ability or inability to work equally.
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`Plaintiff claims that the SAG was “facially discriminatory” because the word
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`“pregnancy” did not appear in the document. (Plf. Br. 5). She is wrong for four reasons.
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`First, on its face, the SAG applied equally to all Sales Employees in Plaintiff’s region,
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`regardless of whether they were pregnant.4 AT&T clearly prohibited discrimination against
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`pregnant employees, including in its application of the SAG. (SMF ¶ 85). Where a policy is
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`facially neutral, it is impossible to conclude, without inferring, that any distinction in wording
`
`
`4 The fact that Plaintiff was the only pregnant Sales Employee and the only person terminated for
`attendance during the 15 months she was employed is hardly evidence to the contrary. (See Plf.
`Br. 15). Plaintiff fails to acknowledge, for example, that during her employment, the Cassopolis
`Street store was staffed by only four other Sales Employees. (SMF ¶ 78). She also fails to
`disclose that only a few months after her employment ended, AT&T terminated one of her male
`co-workers at the Cassopolis Street store due to unsatisfactory attendance, including for an
`absence that occurred during Plaintiff’s employment. (Id. ¶ 79).
`8
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 13 of 24
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`
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`was based upon an intent to discriminate against pregnant employees. See Young v. United
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`Parcel Servs., 575 U.S. 206, 212–13 (2015) (a workplace policy that does not expressly rely on a
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`protected characteristic cannot constitute direct evidence of discriminatory intent).
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`Second, managers were trained not to apply their discretion in a discriminatory manner,
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`and Plaintiff offers no evidence to suggest that they did. Directing attention away from the face
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`of the policy, Plaintiff complains that her store manager never used his discretion to excuse her
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`pregnancy-related absences. But her store manager exercised his discretion on equal terms with
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`respect to all Sales Employees; he only used it to remedy technical timecard errors, such as when
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`a Sales Employee—pregnant or not pregnant—showed up to work but forgot to “punch in.”
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`(SMF ¶ 116). Indeed, on multiple occasions during her pregnancy, Plaintiff arrived to work but
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`forgot to “punch in”—and her store manager used his discretion to ensure she did not receive a
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`point. (Id. ¶ 117).
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`Third, Plaintiff’s own experience confirms that the SAG is not discriminatory. AT&T
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`excused under the SAG Plaintiff’s absences that were shown to be pregnancy-related. For
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`example, Plaintiff was absent on May 26, 2015, despite being scheduled to work. (Id. ¶ 67). That
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`same day, AT&T received documentation from Plaintiff’s medical provider certifying that she
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`was pregnant and that she needed to be seen by her doctor on May 26. (Id. ¶ 130). AT&T
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`reviewed Plaintiff’s request and determined that she timely submitted documentation justifying
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`her pregnancy-related absence on that date. (Id. ¶ 142). AT&T approved Plaintiff’s FMLA
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`request to excuse her May 26 occurrence, and she did not incur any point. (Id. ¶ 143). On another
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`instance, Plaintiff submitted documentation to AT&T to support that a six-week period of
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`absence beginning June 2, 2015, was pregnancy-related. (Id. ¶ 114). AT&T reviewed the
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`
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`documentation and, seeing evidence of incapacitation due to pregnancy on those dates (she gave
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`birth), granted excused absences for them all. (Id.).
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`Fourth, Plaintiff claims the SAG is facially discriminatory because it did not afford
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`preferential treatment to pregnant workers. But the PDA requires only equal treatment. See
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`Young v. UPS, 575 U.S. 206, 222 (“We doubt that Congress intended to grant pregnant workers
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`an unconditional most-favored-nation status. The language of the statute does not require that
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`unqualified reading.”). The PDA does not require employers to excuse absences just because the
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`employee is pregnant, even according to the EEOC guidance Plaintiff herself cites5: “Title VII
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`does not…require an employer to grant pregnancy-related medical leave or parental leave or to
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`treat pregnancy-related absences more favorably than absences for other medical conditions.”6
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`Any employee with less than a year of tenure would be denied FMLA under AT&T’s policies—
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`whether pregnant, or not.
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`Plaintiff has not met her burden under Rule 56.
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`B.
`Plaintiff has offered no direct evidence of discrimination. Therefore, she is proceeding
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`under the three-prong, burden-shifting framework set forth in McDonnell Douglas Corp. v.
`
`Green, 411 U.S. 792 (1973), as modified by Young v. United Parcel Servs. Inc., 575 U.S. 206
`
`(2015). Under that approach, she bears the burden of first establishing a prima facie case of
`
`
`5 Plaintiff cites two notices by the EEOC (and again, no record evidence) in an effort to support
`her interpretation of the PDA. (Plf. Br. 17, n. 20). It is unpersuasive for several reasons. First,
`one notice is not even “enforcement guidance”; it is a technical assistance document – akin to a
`fact sheet – issued by the EEOC. As to the second, nowhere does it support Plaintiff’s contention
`that AT&T’s policies were “expressly disparate” toward pregnant workers simply because they
`denied FMLA to pregnant workers with less than a year of tenure. Indeed, as quoted above, it
`expressly supports the viability of AT&T’s policies.
`
` 6
`
` U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Pregnancy
`Discrimination and Related Issues (June 25, 2015), available at
`https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-
`related-issues (emphasis added, citations omitted).
`10
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 15 of 24
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`pregnancy discrimination. She must show that: (1) she was pregnant; (2) she sought an
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`accommodation; (3) AT&T did not accommodate her; and (4) AT&T did accommodate others
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`who were “similar in their ability or inability to work” – i.e., whose “situation cannot reasonably
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`be distinguished from” her own. Young, 575 U.S. at 229. If Plaintiff could meet that burden,
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`AT&T would identify its “legitimate, non-discriminatory reasons” for not excusing her
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`absences—namely, that she failed to provide supporting documentation consistent with AT&T
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`policy. (Id.) Then Plaintiff would bear the ultimate burden of proving that any reasonable juror
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`must find that AT&T’s stated reasons were pretextual. (Id.)
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`Here, Plaintiff fails even to meet her prima facie burden. Even if she had met that burden,
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`summary judgment still would be improper because she fails to present admissible evidence that,
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`when considered in light of AT&T’s reasons for denying her an excused absence, would compel
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`a jury to find a showing of intentional pregnancy discrimination.
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`Plaintiff fails to meet her prima facie burden.
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`1.
`Plaintiff’s pregnancy discrimination claim cannot succeed unless she can show her
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`employer “accommodate[d] others similar [to her] in their ability or inability to work.” (Plf. Br.
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`at 12). Yet she fails to identify any person—let alone any similarly-limited person whose
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`situation a reasonable juror could not distinguish from her own—whom AT&T treated more
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`favorably.
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`Plaintiff speculates that other Cassopolis Street store Sales Employees “may have been
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`absent” for “myriad reasons” such as “disability, jury duty, bereavement, military leave, union
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`business, and court subpoenas.” (Plf. Br. 9) (emphasis added). But the theoretical prospect of a
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`comparator cannot satisfy Plaintiff’s prima facie burden to actually identify one. See Young, 575
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`U.S. at 229. Nor does it satisfy her burden, on a motion for summary judgment, to establish that
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`no reasonable juror could view such a comparator’s situation as indistinguishable from her own.
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 16 of 24
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`See, e.g., Santos v. Wincor Nixdorf, Inc., No. 1:16-CV-440-RP, 2018 U.S. Dist. LEXIS 48736, at
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`*23–24 (W.D. Tex. Mar. 23, 2018) (finding no prima facie case of pregnancy discrimination,
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`and granting summary judgment for employer, where plaintiff failed to identify even a single
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`proposed comparator by name, title, or otherwise).
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`Plaintiff cites several cases on the importance of identifying a comparator, but none
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`support her argument that speculation can satisfy the fourth element of a prima facie case of
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`discrimination. (Plf. Br. 15-16).7 Rather, the plaintiffs in each of these cases identified a specific
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`cohort of identifiable persons who did in fact receive a benefit – none of which Plaintiff does
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`here. In Durham, the court considered whether EMTs who could not lift more than 10 or 20
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`pounds were treated more favorably than a pregnant EMT who could not lift more than 50
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`pounds. Durham v. Rural/Metro Corp., 955 F.3d 1279, 1281 (11th Cir. 2020). In her opposition
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`to the defendant’s motion for summary judgment, the plaintiff in Durham presented evidence of
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`three EMTs who were granted more favorable treatment. See Durham v. Rural/Metro Corp., No.
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`4:16-cv-01604-VEH, 2018 WL 7892084 (N.D. Ala. Mar. 19, 2018). Likewise, in Legg, the court
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`considered whether injured corrections officers, who could only perform light-duty versus full-
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`duty assignments, were treated more favorably than pregnant corrections officers similarly
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`limited in their ability to perform full-duty assignments. Legg v. Ulster Cnty., 820 F.3d 67, 70
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`7 These cases are also unpersuasive because, like Young, they involve scenarios where a plaintiff
`and her proposed comparators were similarly unable to perform aspects of their jobs. This is a
`case about attendance, where Plaintiff was allegedly unable to be at work. Moreover, Plaintiff
`relies on decisions concerning whether summary judgment properly was granted to defendants. It
`is one thing for an appellate court to say that a reasonable juror could possibly agree that these
`plaintiffs and their proposed comparators were sufficiently similar to create a question of fact for
`a jury, and quite another to say that they proved their claims so convincingly that no juror could
`reasonably find for the defendant. On the posture before this Court, Plaintiff must show the
`latter. See Section III.B.2, below.
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`USDC IN/ND case 3:17-cv-00556-JD document 150 filed 12/17/21 page 17 of 24
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`(2d Cir. 2016). Again, the plaintiff identified by name five individuals who had in fact received
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`the more favorable, light-duty assignment. See Meadors v. Ulster Cnty., No. 1:09-cv-550
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`(FJS/RFT), 2011 WL 12496693 (N.D.N.Y. Apr. 1, 2011), vacated and remanded sub nom. Legg
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`v. Ulster Cnty., 820 F.3d 67 (2d Cir. 2016).
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`Identifying particular excuses under the SAG gets Plaintiff no further. (Plf. Br. 9). The
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`excuses that Plaintiff invokes, including jury duty, are available to pregn