USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
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`KATIA HILLS,
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`Plaintiff,
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`-against-
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`AT&T MOBILITY SERVICES LLC a/k/a
`AT&T MOBILITY LLC,
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`Defendant.
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`
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`Civil No.: 3:17-cv-00556-JD-MGG
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`PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
`MOTION FOR PARTIAL SUMMARY JUDGMENT
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`INTRODUCTION
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`In the final 3 weeks of Plaintiff Katia Hills’s (“Plaintiff” or “Hills”) pregnancy, she
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`visited her ob-gyn or the emergency room 10 times, sometimes causing her to miss work.
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`Because of Hills’s pregnancy-related absences, Defendant AT&T Mobility Services LLC
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`(“AT&T”) fired her. It did so because, under its attendance policy, Hills accrued too many
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`“points” – demerits imposed due to absences AT&T deemed “unexcused.”
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`On its face, AT&T’s policy punishes pregnant workers more harshly than non-pregnant
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`workers. Multiple other categories of absence, from jury duty to bereavement leave to disability
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`accommodation, are automatically “excused,” and therefore spared points, but pregnancy-related
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`absences are not. Indeed, in the 15 months of Plaintiff’s employment, she was the only pregnant
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`person working at her AT&T store, and the only person at that store fired for attendance points.
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 2 of 20
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`AT&T’s disparate treatment of pregnancy, and of Hills, violates the Pregnancy
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`Discrimination Act (“PDA”). The PDA demands that pregnant workers be treated “the same” as
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`non-pregnant people “similar in their ability or inability to work.” Here, there is no genuine issue
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`of material fact that AT&T’s attendance policy does not treat pregnancy-related absences “the
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`same” as numerous other categories of absence. There also is no genuine issue of material fact
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`that, due to AT&T’s disparate policy terms, Hills was ineligible to have any pregnancy-related
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`absences excused during most of her pregnancy, while co-workers’ absences due to disability,
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`jury duty, bereavement, among others, were eligible to be automatically excused. There is no
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`genuine issue of material fact that Hills in fact incurred points for pregnancy-related absences.
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`And there is no genuine issue of material fact that, but for those points, AT&T would not have
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`fired Hills in July 2015.
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`AT&T has not provided any justification for refusing to excuse pregnancy-related
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`absences on the same terms as it excuses absences for reasons other than pregnancy.
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`Accordingly, Plaintiff is entitled to summary judgment on her claim that AT&T’s attendance
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`policy violates the PDA.
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`FACTUAL BACKGROUND
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`
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`Hills began working at AT&T’s Cassopolis Street store in Elkhart, Indiana, on April 7,
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`2014, when she was 23 years old. See Local Rule 56.1 Statement of Undisputed Material Facts
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`Regarding Plaintiff’s Motion for Partial Summary Judgment (hereafter, “SMF”), ¶ 1. Although
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`initially hired as a Sales Support Representative, Hills soon was promoted to Retail Sales
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`Consultant (“RSC”). Id. ¶¶ 2-4. As an RSC, Hills’ duties included selling cellphones and tablets
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`to customers, as well as various phone and data plans, and handling “all administrative aspects of
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 3 of 20
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`the sale”; handling “service inquiries from customers”; and generally providing “efficient,
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`courteous customer service. Id. ¶ 5. Hills loved sales and had hopes of eventually progressing to
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`a management position with AT&T. Id. ¶ 6.
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`During Hills’s employment, AT&T maintained a “Sales Attendance Guidelines”
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`(“SAG”) policy. The SAG policy in effect at the time Hills started with AT&T, dated October
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`11, 2011 (the “2011 SAG policy”), was supplanted as of May 1, 2015, by a revised version (the
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`“2015 SAG policy”). SMF ¶¶ 8-9. Both versions of the SAG penalized employees’ absences
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`with “points,” or fractions of points, for late arrivals, early departures, and full-day absences,
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`unless AT&T deemed the absence “excused.”1 Id. ¶¶ 11-12, 29-30. Under the 2011 SAG, AT&T
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`would discharge an employee once she reached 7 total points; the 2015 SAG increased the
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`maximum point threshold to 8. Id. ¶¶ 23, 36.2 Under both policies, interim point thresholds
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`triggered other forms of discipline – first a counseling notice, then a written warning, and then a
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`final written warning. Id.
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`The 2011 SAG listed 11 express categories of “excused” absences – that is, absences that
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`would not trigger imposition of a point or fraction of a point:
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`[A]pproved leave of absence, scheduled vacation, scheduled excused days with
`pay, jury duty, bereavement, court subpoenas, military leave, short term disability,
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`1 Under both the 2011 and 2015 SAG policies, employees were assessed points for each
`unexcused absence, tardy, or early departure according to the following progression: 0 points for
`the first five minutes an employee is tardy, after 6–15 minutes .25 point accrues, after 16–30
`minutes .5 point accrues, after 31–120 minutes .75 point accrues, after 121 minutes 1 point
`accrues, and a day of absence is also 1 point. SMF ¶¶ 20, 34.
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` 2
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` The 2015 SAG policy also increased the length of time that an accrued point remained on
`an employee’s record, from 6 months to a full year, thus largely negating any benefit to
`employees from the higher points threshold. SMF ¶¶ 22, 35.
`3
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 4 of 20
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`FMLA (or other federal or state mandated leave), contractual time off for union
`business and any other absence that is mandated by law or Company policy.
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`SMF ¶ 13.3
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`Under the 2015 SAG policy, the list of excused absences was even longer, and
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`included certain new express categories (noted with italics, below):
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`• Approved Leave of Absence
`• Scheduled/Approved Vacation
`• Jury Duty
`• Qualified Bereavement
`• Military Leave
`• Company recognized Holidays
`• Approved Short Term Disability
`• Approved Job Accommodations
`• Federal/State/Municipal mandated Leaves (i.e., FMLA, ADAAA, etc.)
`• Company initiated closings (i.e., inclement weather, etc.)
`• Contracted Time Off (Union Business)
`• Court Subpoena (excused to extent as outlined per Labor Agreement)
`• Approved/Company Mandated Time Off (i.e., [Excused Work Days with Pay]
`vacation, disciplinary time, etc.)
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`SMF ¶ 31.4
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`Additionally, though the 2011 policy afforded supervisors the discretion “to
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`consider extenuating/extreme circumstances where appropriate,” and accordingly, to
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`3 Under the 2011 SAG, absences caused by a qualifying disability under the
`Americans with Disabilities Act (“ADA”) were excused under two of these categories:
`“[O]ther federal . . . mandated leave” and “any other absence that is mandated by law.”
`SMF ¶ 14.
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` 4
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` Under this version of the policy, workers with ADA-qualifying disabilities fit under
`both the “Approved Job Accommodations” excused absence category and the
`“Federal/State/Municipal mandated Leaves (i.e., FMLA, ADAAA, etc.)” category. SMF
`¶ 32.
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`4
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 5 of 20
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`decline to impose a point or fraction of a point, as well as any corresponding discipline,
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`id. ¶¶ 15-16, the 2015 SAG eliminated this option. Id. ¶ 37.
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`As reflected by the above lists, while both versions of the SAG policy in place
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`during Hills’s employment expressly envision numerous bases for automatic excused
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`absence, neither version recognize pregnancy as a reason for an automatic excused
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`absence. Rather, as AT&T’s corporate representative confirmed, the only way for a
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`pregnancy-related absence to be deemed excused, and therefore spared punishment, is for
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`the pregnant worker to shoehorn her absence into one of three other categories on the
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`SAG policy list: short-term disability (“STD”) leave, Family and Medical Leave Act
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`(“FMLA”) leave, or leave as an accommodation of disability under the ADA. Id. ¶¶ 39,
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`41. In other words, pregnancy alone is never sufficient to avoid penalty; instead, the
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`pregnant worker must also qualify for protection under a separate statutory scheme
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`(FMLA, ADA), or under an AT&T-created exemption (STD leave).
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`AT&T’s approach imposes harsh consequences on pregnant workers, as Hills’s
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`experience reflects. For most of her pregnancy, which dated from the fall of 2014 until
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`she gave birth on June 1, 2015, id. ¶¶ 7, 68, Hills was ineligible to avoid punishment for a
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`pregnancy-related absence.
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`• The option to use FMLA leave only is available to pregnant workers who satisfy that
`statute’s eligibility requirements, including having worked for the company for one year.5
`At the time Hills learned she was pregnant in October 2014, she had worked for AT&T
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`5 See 29 U.S.C. § 2611(2)(A)(i) (defining “eligible employee”). Of course, a pregnant worker
`who satisfies the FMLA’s eligibility requirements still might not qualify for an excused absence
`if she already has exhausted her 12 weeks of FMLA leave for another reason, such as to care for
`a seriously ill family member. See 29 U.S.C. § 2612(a)(1).
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`5
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 6 of 20
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`for only 6 months, so FMLA leave was out of reach for her until April 7, 2015 – more
`than three-quarters of the way through her pregnancy.6
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`• Under the ADA, the physical effects of a “normal” pregnancy, such as “morning
`sickness” or extreme fatigue – symptoms Hills experienced for most of her pregnancy
`and caused her to be absent – are excluded from the definition of “disability.”7 Until the
`final month of her pregnancy, when Hills was diagnosed with cholestasis8 – a disorder of
`the liver9 – Hills did not experience any of those specific pregnancy-related conditions
`that may qualify under the ADA as “disabilities.”
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`• AT&T’s STD policy applied only to absences of more than 7 consecutive days.10 Until
`Hills went out on maternity leave on May 26, 2015, she did not need to take more than a
`day off at a time (or less) to attend to her pregnancy,11 so STD leave was not an option to
`excuse her absences, either.
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`Under the express terms of AT&T Mobility’s attendance policy, then, for the vast
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`majority of Hills’s pregnancy, it was impossible for her to avoid “points” when her pregnancy
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`made her late, or required a doctor’s visit, or necessitated that she stay home. The record
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`6 SMF ¶¶ 1, 7, 68.
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`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#II (“pregnancy itself is not an impairment within the meaning of the ADA, and
`thus is never on its own a disability”) (citations omitted).
`
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`8 SMF ¶¶ 56-58.
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`
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`9 See, e.g., Cleveland Clinic, “Cholestasis of Pregnancy,” available at
`https://my.clevelandclinic.org/health/diseases/17901-cholestasis-of-pregnancy (“[Cholestasis]
`temporarily impairs . . . liver function in some pregnant women. This liver impairment causes
`bile (a substance made by the liver that helps digestion) to build up in the liver and bloodstream.
`. . . Cholestasis of pregnancy can cause complications for both the expectant mother and baby.”).
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`10 SMF ¶ 40.
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`11 SMF ¶ 48.
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 7 of 20
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`evidence further confirms that Hills did, in fact, accrue points due to her pregnancy during this
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`period of ineligibility. For instance, AT&T’s FMLA Operations records reflect that Hills’s store
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`manager, Dion McGlown, contacted that department in December 2014 – 4 months before Hills
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`qualified for FMLA leave – concerning her “recent abs [sic] due to pregnancy,” SMF ¶ 50, and
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`at deposition confirmed that “most of the points that [Hills] received discipline for” were due to
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`her pregnancy. Id. ¶ 49. Indeed, by the time Hills finally qualified for FMLA leave in April 2015,
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`she had accrued 6 points – just 1 point shy of termination under the terms of the SAG policy then
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`in effect – and had received a final written warning, the last step before firing. Id. ¶ 53.
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`Hills’ final weeks of pregnancy were especially difficult: From May 4, 2015 until she
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`went on maternity leave on May 26, 2015, Hills visited her ob-gyn or the emergency room 10
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`times. Id. ¶¶ 54-66. During that period, she also received her cholestasis diagnosis; in addition to
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`causing the pregnant person to experience intense itching – a symptom that Hills suffered, id. ¶¶
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`56-57,12 cholestasis poses significant danger to the fetus, including stillbirth, and usually
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`necessitates early delivery.13
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`12 See, e.g., Mayo Clinic, “Cholestasis of Pregnancy,” available at
`https://www.mayoclinic.org/diseases-conditions/cholestasis-of-pregnancy/symptoms-causes/syc-
`20363257 (“Intense itching is the main symptom of cholestasis of pregnancy. . . . Most women
`feel itchy on the palms of their hands or the soles of their feet, but some women feel itchy
`everywhere. The itching is often worse at night and may be so bothersome that you can’t
`sleep.”).
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`13 Richard H. Lee, MD, et al., Society for Maternal-Fetal Medicine Consult Series #53:
`Intrahepatic Cholestasis of Pregnancy (Feb. 2021), available at
`https://www.ajog.org/article/S0002-9378(20)31284-9/fulltext. Indeed, due to the cholestasis
`diagnosis, Hills began her maternity leave early, and delivered less than a week later, on June 1,
`2015, after having labor induced. SMF ¶¶ 61, 67, 68.
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`7
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 8 of 20
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`Hills managed to avoid points for most of these May 2015 medical events, but AT&T
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`rejected the medical certifications submitted by her provider for 2 of them. The first of these, on
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`May 4, 2015, was due to Hills’s visit to her ob-gyn for symptoms that ultimately were diagnosed
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`as caused by cholestasis. SMF ¶ 56. The second point-triggering absence was on May 16, 2015 –
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`a little over a week after Hills learned she had cholestasis and was warned that the condition
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`endangered her fetus, and began a regimen of aggressive fetal monitoring, id. ¶¶ 58, 61-63 –
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`when she went to the emergency room because she did not feel the fetus moving. Id. ¶ 64.14
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`The resulting 2 points became final on June 24, 2015. Id. ¶ 69. Those 2 points put Hills at
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`the maximum 8 points under the 2015 SAG policy, and AT&T decided to fire her. Id. ¶ 71. Hills
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`– still on maternity leave – was oblivious to this development, id. ¶ 70, and a few weeks later, on
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`14 Because the May 4 and May 16 absences indisputably were due to Plaintiff’s pregnancy
`and her pregnancy-related disability, Plaintiff contends that AT&T also violated the PDA,
`FMLA, and ADA in deeming those absences “unexcused” and imposing points for them. AT&T
`will, of course, contest those assertions in its anticipated Motion for Summary Judgment. When
`she submits her opposition to that motion, Plaintiff will put forward the extensive record
`evidence showing, among other material facts, that Hills’s top managers and AT&T Human
`Resources personnel knew that the May 4 and May 16 absences were related to pregnancy, that
`Plaintiff attempted repeatedly to satisfy AT&T’s onerous medical certification requirements to
`excuse those absences, and that AT&T failed in numerous respects to inform Plaintiff of her
`statutory rights to intermittent FMLA leave and to accommodation of pregnancy-related
`disability under the ADA – information that could have relieved Plaintiff from the obligation to
`serially submit proof that those absences were pregnancy-related.
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`For purposes of this Motion, however, Plaintiff asserts that AT&T violated the PDA on the
`independent, undisputed grounds that it provided her with no avenue for avoiding penalty for
`pregnancy-related absences until she became eligible for FMLA coverage in April 2015. That
`policy had the undisputed effect of putting Hills within 2 points of discharge, thereby providing
`the “but for” cause of her July firing when AT&T imposed points for the May 4 and May 16
`absences.
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`8
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 9 of 20
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`July 13, 2015, Hills returned to the Cassopolis Street store, expecting to resume work as usual.
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`Id. ¶ 72. Instead, a few days later, McGlown informed her of her discharge. Id. ¶ 73.
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`In contrast, during the same timeframe, Hills’s peers at the Cassopolis Street store who
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`may have been absent for myriad reasons other than pregnancy – including ADA-qualifying
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`disability, jury duty, bereavement, military leave, union business, and court subpoenas, to name a
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`few – were eligible to be per se excused, and did not suffer the same fate as Hills.15
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`Unsurprisingly, in the 15 months of Plaintiff’s employment, she was both the only pregnant
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`person working at her AT&T store, and the only person at that store fired for attendance points.
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`Id. ¶¶ 74-75.
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`15 The record also contains evidence that some of Hills’s non-pregnant co-workers also
`benefited from the “discretion” to excuse points and discipline that the 2011 SAG policy
`extended to supervisors, raising further questions as to discriminatory intent in Hills’s case. Such
`evidence, and the admission by AT&T’s corporate designee knew that store managers were
`applying such discretion inconsistently but did nothing to prevent such inequities, will be
`addressed in Plaintiff’s opposition to AT&T’s Motion for Summary Judgment.
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`So, too, will the facts (among other record evidence) that, (a) prior to her pregnancy, Hills
`herself benefited from store managers’ exercise of discretion under the terms of the 2011 SAG
`policy; (b) store manager McGlown expressed biased attitudes toward pregnant workers and new
`mothers; (c) McGlown repeatedly pestered Hills about her intended duration of maternity leave;
`and (d) when Hills inquired about a post-maternity leave job reassignment, AT&T told her it
`would grant her request only if she took just 4 weeks of leave, rather than the full 12 weeks to
`which she was entitled.
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`But as with the record evidence relating to AT&T’s unlawful refusal to excuse Plaintiff’s
`May 4 and May 16 absences, proof of AT&T’s bias toward pregnant workers need not be
`considered here. It is undisputed that Plaintiff’s managers never exercised their delegated
`discretion to excuse her pregnancy-related absences. McGlown Dep. pp. 154:18–156:18; 162:2–
`163:6; 170:4–23. This evidence, coupled with the undisputed disparate treatment of pregnancy
`under the SAG policy’s terms and the undisputed adverse effect of those terms on Hills, are
`sufficient, independent grounds on which to grant summary judgment on Hills’s PDA claim.
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`9
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 10 of 20
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`STANDARD OF REVIEW
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`Summary judgment is appropriate where there are no genuine disputes of material fact
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`and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(a); Celotex
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`Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This Court is bound to construe all facts in the
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`light most favorable to the non-moving party and to draw all reasonable inferences in its favor.
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`Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012).
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`Disputes concerning material facts are genuine only where “a reasonable jury could
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`return a verdict for the nonmoving party,” Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822
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`(7th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); further, the
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`non-moving party bears the burden of showing that such a genuine dispute exists. See, e.g.,
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`Randall v. Rolls-Royce Corp., 742 F. Supp. 2d 974, 980 (S.D. Ind. 2010), aff’d, 637 F.3d 818
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`(7th Cir. 2011) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
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`(1986)). Moreover, the “mere existence of a factual dispute, by itself, . . . is not sufficient to bar
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`summary judgment. Only factual disputes that might affect the outcome of the suit in light of the
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`substantive law will preclude summary judgment.” Randall, 742 F. Supp. 2d at 981 (citing
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`Anderson, 477 U.S. at 248). “If the nonmoving party fails to establish the existence of an element
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`essential to [its] case, one on which [it] would bear the burden of proof at trial, summary
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`judgment must be granted to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124
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`(7th Cir. 1996).
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`LEGAL ARGUMENT
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`AT&T’s written attendance policy violates the PDA’s clear directive: employers “shall”
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`treat pregnant workers “the same” as non-pregnant colleagues who are “similar in their ability or
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 11 of 20
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`inability to work.” In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), the Supreme
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`Court made clear that unless an employer can articulate a compelling reason for failing to
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`equally accommodate pregnant workers, the employer violates the PDA. Here, where AT&T
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`maintained a facially discriminatory policy that automatically penalized pregnant workers’
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`absences (unless they happened to fit within a separate exception), while automatically excusing
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`a wide range of absences unrelated to pregnancy, where that policy directly caused Plaintiff’s
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`firing, and where AT&T cannot articulate any principled reason for disfavoring pregnancy, Hills
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`is entitled to summary judgment on her PDA claim.
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`I.
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`UNDER YOUNG, EMPLOYER POLICIES THAT TREAT PREGNANT
`WORKERS WORSE THAN OTHERS “SIMILAR IN THEIR ABILITY OR
`INABILITY TO WORK” VIOLATE THE PDA UNLESS THE EMPLOYER
`HAS A “SUFFICIENTLY STRONG” REASON FOR DISFAVORING
`PREGNANCY
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`The PDA comprises two clauses: the first clause makes explicit that discrimination
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`“because of sex” includes discrimination “because of . . . pregnancy, childbirth, or related
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`medical conditions,” while the second clause expressly mandates that pregnant workers “shall . .
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`. be treated the same for all employment-related purposes . . . as other persons not so affected but
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`similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).
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`In Young, the Supreme Court adopted a modified version of the traditional three-part
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`McDonnell Douglas burden-shifting framework for assessing claims brought under the PDA’s
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`second clause. Young, 135 S. Ct. at 1353-55. The new prima facie and pretext standards it
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`articulated recognize that the PDA was enacted specifically to prevent employers from singling
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`11
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 12 of 20
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`out pregnancy for less favorable treatment;16 accordingly, any failure by an employer to treat
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`pregnant workers “the same” as non-pregnant workers is, by definition, a facial violation of the
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`second clause, and the salient inquiry is whether the employer can offer sufficient justification
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`for disfavoring pregnancy.
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`Under Young, a plaintiff makes out a prima facie PDA violation where she shows (1) that
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`she “belongs to the protected class”; (2) “that she sought accommodation”; (3) “that the
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`employer did not accommodate her”; and (4) “that the employer did accommodate others
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`‘similar in their ability or inability to work.’” 135 S. Ct. at 1354.
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`If the employer puts forward “‘legitimate, nondiscriminatory’ reasons for denying her
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`accommodation,” id., the plaintiff
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`may reach a jury on [the issue of pretext] by providing sufficient evidence that the
`employer’s policies impose a significant burden on pregnant workers, and that the
`employer’s . . . [stated] reasons are not sufficiently strong to justify the burden,
`but rather – when considered along with the burden imposed – give rise to an
`inference of intentional discrimination.
`Id. (emphasis added). Significantly, the Court admonished that, “consistent with the Act’s basic
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`objective,” an employer does not meet its burden of producing evidence of a “sufficiently
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`16 Congress enacted the PDA in 1978 as a direct rebuke to the Supreme Court’s decision in
`General Electric Co. v. Gilbert, 429 U.S. 125 (1976). In Gilbert, the Court had approved an
`employer’s exclusion of pregnant workers from an otherwise comprehensive temporary
`disability benefits policy that paid replacement wages to workers absent for a wide range of
`medical conditions. Young, 135 S. Ct. at 1353 (quoting Newport News Shipbuilding & Dry Dock
`Co. v. EEOC, 462 U.S. 669, 678 (1983) (Congress’ “‘unambiguou[s]’ intent in passing the
`[PDA] was to overturn ‘both the holding and the reasoning of the Court in the Gilbert
`decision’”)).
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`12
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 13 of 20
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`strong” reason for disfavoring pregnancy by reference to mere cost or convenience. Id. Rather,
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`the twin touchstones for assessing the sufficiency of the employer’s stated justification under the
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`PDA second clause are feasibility and fairness: “[W]hy, when the employer accommodated so
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`many, could it not accommodate pregnant women as well?” Id. at 1355.17
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`
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`As outlined below, AT&T has not and cannot answer this question. Accordingly, Hills is
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`entitled to summary judgment that AT&T violated the PDA when it fired her for her pregnancy-
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`based absences from work.
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`II.
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`AT&T VIOLATED THE PDA AS A MATTER OF LAW BECAUSE ITS
`POLICY TREATED HILLS WORSE THAN THOSE “SIMILAR IN
`THEIR ABILITY OR INABILITY TO WORK” AND AT&T CANNOT
`JUSTIFY THE BURDEN IMPOSED BY SUCH DISPARATE
`TREATMENT
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`A. AT&T’s policy, by its express terms, establishes a prima facie case of pregnancy
`discrimination under Young.
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`The Supreme Court admonished in Young that the new prima facie standard is “not
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`intended to be an inflexible rule,” “not onerous,” and “not as burdensome as succeeding on an
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`‘ultimate finding of fact as to’ a discriminatory employment action.” 135 S. Ct. at 1353-54
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`(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-76 (1978)). Nor is the plaintiff
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`required to “show that those whom the employer favored and those whom the employer
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`disfavored were similar in all but the protected ways.” Young, 135 S. Ct. at 1354; see also
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`17 Applying these standards, the Court found that Peggy Young, a pregnant UPS delivery
`driver restricted in her ability to perform heavy lifting, arguably had created a triable PDA case
`where UPS afforded “light duty” to others who were limited in their ability to perform all
`delivery driver duties because of occupational injuries, ADA-qualifying disabilities, or lack of
`Department of Transportation certification, but did not extend that benefit to pregnant drivers.
`135 S. Ct. at 1343.
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 14 of 20
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`Durham v. Rural/Metro Corp., 955 F.3d. 1279, 1286 (11th Cir. 2020) (quoting Lewis v. City of
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`Union Cnty., 918 F.3d 1213, 1228 n.14 (11th Cir. 2019) (en banc)) (“[T]he comparator analysis
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`under the PDA focuses on a single criterion – one’s ability to do the job.”).
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`Under the standard announced in Young, both versions of AT&T’s SAG policy state a
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`prima facie violation of the PDA: (1) pregnant workers are a protected class; (2) during the
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`course of a pregnancy – even a “normal” pregnancy without complication – workers will arrive
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`late, leave early, and be absent because of their pregnancy, and will seek to have those absences
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`excused so as to avoid penalty; (3) AT&T does not excuse pregnancy-related absences and
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`automatically penalizes pregnant workers who miss work unless they happen to fit within a
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`separate exception; and (4) AT&T automatically excuses a wide variety of other occasional
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`inabilities to work due to absences, from jury duty to bereavement to absences caused by ADA-
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`qualifying disabilities.18
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`As to the application of AT&T’s facially discriminatory policy to Plaintiff, the
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`undisputed facts further show:
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`• From October 2014, when Hills learned she was pregnant, until April 7, 2015, when she
`became FMLA-eligible, she had incidents of lateness and full-day absence due to
`“normal” symptoms of pregnancy, SMF ¶¶ 49-51;
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`• Until April 7, 2015, when she became FMLA-eligible, it was impossible for Hills to
`avoid points or fractions of points for those pregnancy-related absences, under the terms
`of the 2011 SAG policy, id. ¶¶ 39-40, 47-48;
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`
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`18 The occasional need for absence due to pregnancy or a related condition renders an
`employee “similar in the ability or inability to work” as any other employee who needs to be
`absent due to jury duty, bereavement, or ADA-qualifying disability, to name a few, in that the
`need may arise unexpectedly and range in duration from a few hours to a few days.
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 15 of 20
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`• Accordingly, AT&T deemed these pregnancy-related absences “unexcused” and imposed
`points, id. ¶¶ 49-50, 53;
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`• Although the operative 2011 SAG policy during this period granted Hills’s “supervisor”
`the discretion to excuse absences and steps of discipline, id. ¶¶ 15-16; neither Hills’s
`Retail Store Manager, Dion McGlown, nor his supervisor, Area Retail Sales Manager
`Jason Jenkins, ever exercised such discretion to excuse any of Hills’s pregnancy-related
`absences or steps of discipline, id. ¶¶ 24, 52;
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`• As of April 7, 2015, when Hills qualified for FMLA leave, she had accrued 6 attendance
`points, at least some of which were attributable to her pregnancy, and received a final
`written warning, id. ¶ 53;
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`• Hills received two additional points due to pregnancy-related absences on May 4, 2015
`and May 16, 2015, id. ¶¶ 54-56, 64;
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`• But for having reached 6 attendance points prior to becoming eligible for FMLA leave to
`excuse pregnancy-related absences, Hills would not have been fired in July 2015, id. ¶¶
`71, 73; and
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`In the 15 months of Hills’s employment, she was the only pregnant person at the
`Cassopolis Street store, and the only one at the store whom AT&T fired for points
`accrued under the SAG policy. Id. ¶¶ 74-75.
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`•
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`These facts plainly satisfy the prima facie case. See Young, 135 S. Ct. at 1355 (where
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`UPS granted “light duty” assignments to at least three categories of delivery drivers unable to
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`perform all job duties, but not to pregnant workers, prima facie case satisfied, because UPS
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`arguably “provided more favorable treatment to at least some employees whose situation cannot
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`reasonably be distinguished from [the plaintiff’s]”); Durham, 955 F.3d. at1286-87 (under Young,
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`policy of automatically giving light duty to EMTs injured on the job while denying it to pregnant
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`workers satisfied prima facie case); Legg v. Ulster Cnty., 820 F.3d 67, 74 (2d Cir. 2016) (prima
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`facie case satisfied where defendant County granted “light duty” to guards injured on the job but
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`not pregnant workers); Elease S., Complainant v. Brennan, EEOC DOC 0120140731, 2017 WL
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`USDC IN/ND case 3:17-cv-00556-JD document 141 filed 11/15/21 page 16 of 20
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`6941010, at *5 (EEOC Dec. 27, 2017) (prima facie case satisfied where pregnant mail carrier at
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`risk of miscarriage denied temporary reassignment to desk work satisfied prima facie case where
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`employer accommodated letter carriers injured on the job); accord Jennifer K., Complainant v.
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`Harker, EEOC DOC 2020001035, 2021 WL 2365946, at *10 (EEOC May 20, 2021) (questions
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`of fact as to fourth prong of prima facie case where pregnant plaintiff denied alternative job
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`assignment that supervisor claimed was reserved for workers with disabilities).
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`Having raised the presumption that AT&T unlawfully “provided more favorable
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`treatment to at least some employees whose situation cannot be reasonably be distinguished from
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`[Plaintiff’s],” Young, 135 S. Ct. at 1355, the burden shifts to AT&T to justify such disparate
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`treatment. As discussed below, it has n