USDC IN/ND case 3:17-cv-00556-JD document 159 filed 08/18/22 page 1 of 5
`
`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 MOTION FOR LEAVE
`TO SUBMIT SUPPLEMENTAL AUTHORITY
`
`Defendant AT&T Mobility LLC (“Defendant”) respectfully submits that the Seventh
`
`Circuit Court of Appeals’ August 16, 2022 decision in Equal Employment Opportunity
`
`Commission v. Wal-Mart Stores East, L.P., No. 21-1690, 2022 WL 3365083 (7th Cir. Aug. 16,
`
`2022) (“Wal-Mart”) controls the resolution of issues raised in the Motion for Partial Summary
`
`Judgement (ECF 140) filed by plaintiff, Katia Hills (“Plaintiff”). Therefore, pursuant to Local Rule
`
`56-1(d), Defendant seeks permission to file this supplemental authority.
`
`In Wal-Mart,1 the Seventh Circuit reviewed the U.S. Supreme Court’s decision in Young
`
`v. United Parcel Service, Inc., 575 U.S. 206 (2015), and its application of the McDonnell Douglas
`
`analysis to cases under the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. §§ 2000e(k) &
`
`2000e-2(a)(1). The case concerned Wal-Mart’s Temporary Alternate Duty Policy (“TAD Policy”),
`
`which offered light duty work only to workers injured on the job. EEOC filed suit on behalf of a
`
`
`1 A copy of the Seventh Circuit’s decision is attached hereto as Exhibit A.
`1
`
`
`
`

`

`USDC IN/ND case 3:17-cv-00556-JD document 159 filed 08/18/22 page 2 of 5
`
`class of pregnant workers claiming that, “excluding pregnant women from the TAD Policy caused
`
`Walmart to violate” the PDA. (Wal-Mart, at *2.)
`
`The parties cross-moved for summary judgment. Wal-Mart conceded that the EEOC
`
`established a prima facie case but argued that it articulated a legitimate nondiscriminatory reason
`
`for the TAD Policy and the EEOC failed to establish evidence of pretext.2 The district court denied
`
`the EEOC’s motion and granted Wal-Mart’s motion. The Seventh Circuit affirmed. The Court of
`
`Appeals rejected two arguments Plaintiff has advanced in this case.
`
`First, Plaintiff argued that “unless an employer can articulate [at the second step of the
`
`McDonnell Douglas analysis] a compelling reason for failing to equally accommodate pregnant
`
`workers, the employer violates the PDA.” (ECF 141 at 11 (emphasis added).) Similarly, in Wal-
`
`Mart, The EEOC argued that “Young requires Walmart ‘to do more than simply articulate the
`
`reason why [workers injured on the job were offered light duty]. The employer must also articulate
`
`the reasons why it excluded pregnant employees from the benefit.” (Wal-Mart, at *6.). The Seventh
`
`Circuit disagreed that there was a heightened burden for employers at the second step. (Id. at *6.)3
`
`Wal-Mart had satisfied its burden at the second step:
`
`by offering a legitimate reason for the TAD Policy’s limits that was not
`discriminatory. … [I]t had chosen for sound reasons to offer a benefit to a certain
`category of workers, those injured on the job, without intending to discriminate
`against anyone else with physical limitations, whether caused by off-the-job
`injuries, illness, pregnancy, or anything else, to whom its reasons did not apply.
`
`(Id. (emphasis added).)
`
`
`2 The asserted justification for the policy was that it reduced workplace accident costs and
`worker’s compensation costs, among other things. (Id. at *4–5.)
`3 The Agency relied on two passages from Young, one of which the Seventh Circuit said merely
`“refers to the need to focus the disparate-treatment inquiry on evidence of intentional
`discrimination.” (Id.) The second passage, which Plaintiff relies on in this case (see ECF 141 at
`11), was “a fact-focused rhetorical question,” according to the Seventh Circuit. (Id.)
`2
`
`
`
`

`

`USDC IN/ND case 3:17-cv-00556-JD document 159 filed 08/18/22 page 3 of 5
`
`Second, Plaintiff argued that Young relieved her of the requirement to present evidence of
`
`comparators who were similar in the inability to come to work. (ECF 151 at 11–12.) Summary
`
`judgment in favor of Wal-Mart was affirmed, in part, because the EEOC failed to offer evidence
`
`of comparators “other than workers injured on the job.” (Wal-Mart, at *6.) The Court rejected as
`
`“circular” the EEOC’s argument that it met its burden by showing that Wal-Mart “denied light
`
`duty to 100 percent of pregnant workers and granted light duty to 100 percent of occupationally
`
`injured workers.” (Id. at *7.) Otherwise, the Court observed, pregnant workers would be given the
`
`“most-favored-nation” status the Supreme Court in Young said was not required by the PDA. (Id.)
`
`This was precisely the argument Plaintiff advances in this case.
`
`For the reasons set forth in AT&T’s Memorandum in Opposition (ECF No. 150), the Court
`
`should deny Plaintiff’s motion for partial summary judgment.
`
`Dated: August 18, 2022
`
`Respectfully submitted,
`
`By:
`
`Kenneth W. Gage, admitted pro hac vice
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, New York 10166
`212-318-6000 (telephone)
`212-319-4090 (facsimile)
`kennethgage@paulhastings.com
`
`Christine L. Cedar, admitted pro hac vice
`PAUL HASTINGS LLP
`2050 M Street NW
`Washington, D.C. 20036
`202-551-1700 (telephone)
`202-551-0432 (facsimile)
`christinecedar@paulhastings.com
`
`Alex J. Maturi, admitted pro hac vice
`PAUL HASTINGS LLP
`
`3
`
`

`

`USDC IN/ND case 3:17-cv-00556-JD document 159 filed 08/18/22 page 4 of 5
`
`71 South Wacker Drive, Suite 4500
`Chicago, Illinois 60606
`312-499-6076 (telephone)
`312-499-6176 (facsimile)
`alexmaturi@paulhastings.com
`
`Attorneys for Defendant
`AT&T Mobility Services LLC
`
`4
`
`

`

`USDC IN/ND case 3:17-cv-00556-JD document 159 filed 08/18/22 page 5 of 5
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 18, 2022, I caused the foregoing DEFENDANT’S
`
`MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY to be electronically filed
`
`with the Clerk of the Court using the CM/ECF system, which will automatically send e-mail
`
`notification of such filing to all attorneys of record.
`
`Christine L. Cedar
`
`5
`
`