Garcia v. Woman's Hospital ( 1996 )

United States Court of Appeals
Fifth Circuit.
No. 95-20727.
Monica M. GARCIA, Plaintiff-Appellant,
v.
WOMAN'S HOSPITAL OF TEXAS, Defendant-Appellee.
Oct. 22, 1996.
Appeal from the United States District Court for the Southern
District of Texas.
Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Monica Garcia appeals the district court's grant of judgment
as a matter of law to her former employer on her claim of pregnancy
discrimination under Title VII. Finding error, we REVERSE the
judgment of the district court and REMAND this case for further
proceedings in accordance with this opinion.
I. Facts and Summary of Proceedings
Woman's Hospital of Texas (hereinafter Hospital or employer)
hired Garcia on April 22, 1991 as a licensed vocational nurse (LVN)
in its Family Care Center Unit, a combined postpartum and newborn
nursery unit. In December 1992, Garcia learned she was pregnant
with what would be her first child. In January 1993, she began to
experience pregnancy-related complications including dehydration
and chronic vomiting and, as a result, took a medical leave of
absence beginning January 28. By the end of February, her
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condition had improved and Garcia felt she was ready to return to
work. Her obstetrician, Dr. Debra Gunn, agreed and cleared her to
return to work in a March 1 letter sent to Judith Squyres, the
Hospital's occupational health nurse. The letter did not go into
detail, but stated: "It is recommended that Ms. Garcia may return
to work on 3/1/93." Dr. Gunn, incidentally, also worked for the
Hospital in obstetrics and was familiar with Garcia's job duties.
At no time did Dr. Gunn warn Garcia that she was in any way
restricted by her pregnancy in the tasks she could perform upon her
return to work.
The Hospital initially informed Garcia that it would return
her to the duty roster, but after some in-house discussion it
delayed her return. It sent to Dr. Gunn a form purporting to
recite all of Garcia's job requirements and asked her to place a
check mark next to any requirement that Garcia could not meet
because of her pregnancy. Dr. Gunn checked a box indicating that
Garcia was not to "push, pull, lift, and support over 150 lbs."
Upon receipt of the form from Dr. Gunn, the Hospital informed
Garcia that she could not return to work because of a Hospital
policy disallowing employees on medical leave to return with any
medical restrictions. Another Hospital policy provided that
employees on medical leave more than six months were to be
discharged. After six months, Garcia would be in her eighth month
of pregnancy and still under the medical restriction. Pursuant to
the Hospital policy, Garcia was effectively terminated.
2
Garcia sued the Hospital in the United States District Court
for the Southern District of Texas alleging that the Hospital's
policies constituted a violation of Title VII of the 1964 Civil
Rights Act, as amended by the Pregnancy Discrimination Act of
1978.1 She contended that the lifting requirements listed on the
form sent to her obstetrician were artificial in that no nurse was
actually required to lift that amount at work. The hospital
confessed that it did not test Garcia when it hired her to
ascertain whether she could in fact lift that amount, that it does
not test any job applicants, and that it does not test current
employees either. The hospital maintains, nevertheless, that the
requirements are bona fide.
The district court denied a motion by the Hospital for summary
judgment finding that Garcia could establish a prima facie case of
disparate treatment under Title VII. At the conclusion of Garcia's
case at trial, however, the court granted the Hospital's Rule 50
motion on the basis that the Hospital applied its policy of
requiring employees to return to work without restrictions to all
employees equally. Garcia asked the court at this time to allow
her to reopen her case to permit the testimony of Dr. Gunn, who had
been subpoenaed but was temporarily out of town. The court
impliedly denied this motion and entered judgment for the Hospital.
1
Garcia also alleged in her complaint that the Hospital's
actions violated the Americans with Disabilities Act. The district
court dismissed this claim on the first day of trial, however, and
Garcia does not contest this dismissal in her appeal.
3
Garcia appeals.
II. Standard of Review
We review de novo the lower court's grant of judgment as a
matter of law under Rule 50. Resolution Trust Corp. v. Cramer, 6
F.3d 1102, 1109 (5th Cir.1993). We consider all of the evidence
"in the light and with all reasonable inferences most favorable to
the party opposed to the motion." Id. If the facts and inferences
point so strongly and overwhelmingly in favor of the moving party
that the reviewing court believes that reasonable jurors could not
have arrived at a contrary verdict, then we will conclude that the
motion should have been granted. Boeing Co. v. Shipman, 411 F.2d
365, 374 (5th Cir.1969) (en banc).
III. Discussion
A. Pregnancy Discrimination Claims Under Title VII
Title VII of the 1964 Civil Rights Act makes it unlawful for
an employer "to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In 1978, the
Congress passed the Pregnancy Discrimination Act (PDA) which
amended the definition of "sex" as follows:
The terms "because of sex" or "on the basis of sex" include
but are not limited to, because of or on the basis of
pregnancy, childbirth, or related medical conditions; and
women affected by pregnancy, childbirth, or related medical
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conditions shall be treated the same for all
employment-related purposes, including receipt of benefits
under fringe benefit programs, as other persons not so
affected but similar in their ability or inability to work....
42 U.S.C. § 2000e(k). The PDA did not amend Title VII in any other
way. Therefore, in analyzing a claim of pregnancy discrimination
we apply the same rules used for discrimination claims in general.
There are different theories by which a plaintiff can make
out a claim of discrimination under Title VII. In Griggs v. Duke
Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), the
Supreme Court held that Title VII bans not only intentional
discrimination (so-called disparate treatment), but also those
employment practices that result in disparate impact. Disparate
impact claims, the Court stated, involve employment practices "that
are facially neutral in their treatment of different groups but
that in fact fall more harshly on one group and cannot be justified
on business necessity." International Bhd. of Teamsters v. United
States, 431 U.S. 324, 335-36 n. 15, 97 S. Ct. 1843, 1855 n. 15, 52
L. Ed. 2d 396 (1977). A plaintiff proceeding under this theory need
not offer proof of discriminatory motive to make out her prima
facie case. Griggs, 401 U.S. at 430-32, 91 S.Ct. at 853-54. She
must, however, isolate and identify a particular employment
practice which is the cause of the disparity and provide evidence
sufficient to raise an inference of causation. Watson v. Fort
Worth Bank and Trust, 487 U.S. 977, 994-95, 108 S. Ct. 2777, 2788-
89, 101 L. Ed. 2d 827 (1988). At this point the employer can respond
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with evidence that the "challenged practice is job-related for the
position in question and consistent with business necessity." 42
U.S.C. § 2000e-2(k)(1)(A)(i).
At trial, Garcia pointed to the Hospital's lifting requirement
as the employment practice that was the cause of the disparity.
She must also prove causation, however, and for this needed
testimony to the effect that the 150-pound lifting requirement
would cause pregnant women as a group to be forced onto unnecessary
medical leave and, because of the six-month limit on medical leave,
to be terminated. It would, of course, be insufficient for a claim
under Title VII if Garcia were the only pregnant woman adversely
affected; she must show that pregnant women as a group would be
subject to this medical restriction. If all or substantially all
pregnant women would be advised by their obstetrician not to lift
150 pounds, then they would certainly be disproportionately
affected by this supposedly mandatory job requirement for LVN's at
the Hospital. Statistical evidence would be unnecessary if Garcia
could establish this point. Should she establish her prima facie
case, the burden would then shift to the Hospital to prove that the
lifting requirement was job related and consistent with business
necessity. The PDA does not mandate preferential treatment for
pregnant women and that is not what Garcia is seeking. If the
lifting requirement is found to be bona fide, then Garcia loses.
The district court granted the Hospital's Rule 50 motion on
the basis that Garcia had not made out a claim for disparate
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treatment. As the preceding discussion makes plain, however,
Garcia can proceed under a number of theories, including disparate
impact. The district court erred by not considering this theory,
among others, in granting the Hospital's Rule 50 motion.2 However,
the district court committed additional error as well.
B. Garcia's Motion to Reopen
Upon the conclusion of Garcia's case at trial, the Hospital
moved for judgment under Rule 50. The court held a hearing on the
motion and stated the following:
Well, let me just say, I think the motion is appropriate under
the evidence. I think that the problem is this, if an
individual—there were testimony that no doctor permitted his
client, once confirmed pregnant, to ever lift more than 150
pounds, not do that, then we have got something that is unique
and specific to pregnant women. I don't know if that makes a
difference or not. But it seems to me that it would make a
difference because there is not a pregnant woman working at
the hospital who would be permitted, at least, to pick up 150
pounds according to a doctor....
Record, vol. IV, pgs. 107-08. At this point, Garcia moved the
court to allow her to reopen her case to obtain the testimony of
Dr. Gunn, who had been subpoenaed but failed to appear. The
district court denied this motion and granted the Hospital's motion
to dismiss under Rule 50.
We review for abuse of discretion a district court's ruling
on a party's motion to reopen its case for the presentation of
additional evidence. Zenith Radio Corp. v. Hazeltine Research,
2
In addition to our discussion of disparate treatment, the
district court should consider pretextual disparate treatment as
well as facial disparate treatment.
7
Inc., 401 U.S. 321, 331, 91 S. Ct. 795, 802, 28 L. Ed. 2d 77 (1971).
The court's decision "will not be disturbed in the absence of a
showing that it has worked an injustice in the cause." Gas Ridge,
Inc. v. Suburban Agric. Properties, Inc., 150 F.2d 363, 366 (5th
Cir.1945), cert. denied, 326 U.S. 796, 66 S. Ct. 487, 90 L. Ed. 485
(1946). Among the factors the trial court should examine in
deciding whether to allow a reopening are the importance and
probative value of the evidence, the reason for the moving party's
failure to introduce the evidence earlier, and the possibility of
prejudice to the non-moving party. See Rivera-Flores v. Puerto
Rico Telephone Co., 64 F.3d 742, 746 (1st Cir.1995); Hibiscus
Assocs. v. Board of Trustees of Policemen and Firemen Retirement
Sys., 50 F.3d 908, 917-918 (11th Cir.1995); Joseph v. Terminix
Int'l Co., 17 F.3d 1282, 1285 (10th Cir.1994). While we are
reluctant to disturb the decision of the district court in an area
peculiarly within its scope of expertise, we believe that its
decision here has worked an injustice and therefore must be
reversed. We come to this decision by applying the factors listed
above.
"Trial courts as a rule act within their discretion in
refusing to reopen a case where the proffered "new' evidence is
insufficiently probative to offset the procedural disruption caused
by reopening." Rivera-Flores, 64 F.3d at 746. The evidence here
could not be more probative or essential for Garcia's case. This
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is especially true given that the district court suggested that its
judgment might be based on the lack of that evidence. As we
mention above in our discussion of disparate impact claims, Garcia
needed to establish the element of causation. Had Dr. Gunn
testified that no pregnant woman would be advised by her doctor to
lift 150 pounds, this would have been sufficient to establish that
element and, as a result, Garcia's prima facie case under the Act.
We find, therefore, that the probity factor counsels the reopening
of her case.
We also determine that Garcia's reason for failing to
introduce the doctor's testimony at trial was bona fide. Should a
district court conclude that a litigant is engaging in any form of
chicanery, it properly denies the motion. The same result obtains
where the litigant was negligent in failing to introduce the
evidence. Here, Garcia's subpoenaed witness did not show up to
testify. She was in Atlanta, due back in Houston two days later.
Garcia made a motion at the beginning of trial to be permitted to
present Dr. Gunn's testimony sometime after the conclusion of her
own case in chief; the record reveals that this motion was not
ruled upon. Nevertheless, it shows that Garcia was aware of the
problem and sought to correct it. Further, Garcia offered to call
her subpoena server to testify that Dr. Gunn had in fact been
served. We find that this factor weighs in Garcia's favor.
Finally, we do not see where the defendant would have been
unduly prejudiced by allowing Garcia to reopen her case for the
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sole purpose of providing this testimony. While there is always
the possibility of some prejudice in that additional testimony is
being introduced against the non-moving party, our concern is with
undue prejudice. Here, Garcia made her motion to reopen after her
concluding her case but before the Hospital had begun its
presentation of evidence. Had the court granted the motion, Garcia
stated that she could put Dr. Gunn on the stand the following
morning, delaying the presentation of the Hospital's case by about
a day. Garcia's satisfaction of this factor is less clear than the
others, but we find that the Hospital would incur no undue
prejudice from the reopening. Weighing these factors, we find an
abuse of discretion in denying the motion.
IV. Conclusion
For the foregoing reasons, the judgment of the district court
dismissing Garcia's Title VII claim under Rule 50 is REVERSED and
this case is REMANDED for further proceedings in accordance with
this opinion.
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