Venturelli, Celena v. ARC Comm Services ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2294
CELENA VENTURELLI,
Plaintiff-Appellant,
v.
ARC COMMUNITY SERVICES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 912—Rudolph T. Randa, Chief Judge.
____________
ARGUED DECEMBER 3, 2002—DECIDED JULY 16, 2003
____________
Before EASTERBROOK, MANION, and EVANS, Circuit Judges.
MANION, Circuit Judge. Celena Venturelli, who was sev-
eral months pregnant, worked for a temporary employment
agency and was assigned to work for ARC Community
Services, a social services agency principally devoted to
helping women with various problems. Venturelli per-
formed very well and ARC hoped to hire her full-time for
a vacant administrative assistant position. But when one
of her supervisors discussed the job with her, she was left
with the impression that ARC would not hire her while
she was pregnant, and she quickly lost interest in the job.
She completed her predesignated term as a temporary
2 No. 02-2294
employee and departed, but she did not return ARC’s
calls after she left to have her baby. ARC eventually hired
someone else. Venturelli then sued ARC for unlawful
discrimination in violation of Title VII, 42 U.S.C. § 2000e-
2(a)(1), as amended by the Pregnancy Discrimination Act,
42 U.S.C. § 2000e(k). The district court granted ARC’s
motion for summary judgment. Venturelli appeals, and
we affirm.
I.
ARC Community Services, Incorporated (ARC) is a not-
for-profit corporation that serves women involved with
the criminal justice system, women who have drug prob-
lems, and women who are pregnant. In October 1999, the
Adecco Employment Agency assigned Celena Venturelli,
who was visibly pregnant and due to deliver in March
2000, to work at ARC as a receptionist. Adecco had an
agreement with its clients, including ARC, that a tem-
porarily-assigned employee (“temp”) like Venturelli would
have to work at least 520 hours before the employer could
hire that person permanently. Violation of this agreement
would subject the employer to a monetary penalty.
Venturelli arrived at ARC at a busy time. ARC was in
the process of preparing two important grants that were
essential for funding for the following year. Venturelli
worked closely with Assistant Director Judy Baldwin in
preparing one of those grants. Baldwin was very impressed
with Venturelli’s performance and suggested to Execu-
tive Director Karen Kinsey that Venturelli would be an
excellent candidate for the administrative assistant’s
position that ARC was attempting to fill. At a meeting
with Baldwin and Michael Collins, the ARC services
comptroller, Kinsey concluded that they should offer
No. 02-2294 3
Venturelli the position. Since Collins was the person who
was in charge of monitoring the temporary employees and
keeping track of their time, Kinsey told Collins to meet with
Venturelli and discuss the possibility of Venturelli taking
the job.
That turned out to be an unfortunate assignment. On
two occasions, one shortly before and one shortly after
the Martin Luther King holiday in January 2000, Collins
met with Venturelli in his office. Instead of simply offer-
ing her the job, Collins went into a detailed discussion
about Venturelli’s pregnancy and how she would deal
with it in the event she took a permanent position with
ARC. He made comments about how some women change
their mind once they have the child in their arms. As he
contends in his deposition, he was attempting to let
Venturelli know that there would be no rush to come
back to the job on a permanent basis. Instead, she would
be able to take the time she thought was necessary to stay
at home with her child. Collins may have thought he was
being magnanimous when he suggested that Venturelli
could change her mind about when and if she wanted
to come to work full-time after she had the baby, but
Venturelli was taken aback by this discussion. She inter-
preted Collins’ comments about women and babies as
an indication that ARC did not want to hire pregnant
women. Although Venturelli was “shocked” by this con-
versation, she remained stoic and did not raise any ob-
jections to these references that she perceived as stereo-
typing working mothers.
A few days later, at the direction of Karen Kinsey, Judy
Baldwin spoke with Venturelli, and she also stated that
ARC was interested in hiring Venturelli for the job of
administrative assistant. Venturelli responded to that
overture by saying that she wanted to think about the
matter and talk some more about it. Baldwin assumed
4 No. 02-2294
she wanted to talk it over with her husband and did
not pursue the issue further. Venturelli did not get back
to Baldwin with her response, and when Kinsey learned
of this she simply assumed that they could not force
Venturelli to take the job. Venturelli did not mention her
concern about Collins’ statements when she met with
Baldwin, nor did she make any contact with Kinsey with
the same complaints.
During Venturelli’s meeting with Baldwin, they dis-
cussed insurance and whether pregnancy would be a
preexisting condition under ARC’s policy. Baldwin did
not know, so she called ARC’s insurance carrier while
Venturelli was in the room. After attempting to contact
two people who turned out not to be available, Baldwin
talked with a third person at the insurance company, whom
Baldwin cannot identify. That person, it turns out incor-
rectly, informed Baldwin that pregnancy was a preexist-
ing condition. Baldwin passed on the information to
Venturelli, thus implying that, if Venturelli were immedi-
ately to begin working for ARC full-time, her pregnancy
would not be covered. As it was, Venturelli’s husband was
employed and she was then receiving benefits on his
employer’s medical plan. And, as Kinsey later acknowl-
edged, putting Venturelli on ARC’s medical plan would
have had no impact on the organization’s premiums.
After this conversation, Venturelli continued the remain-
ing time at ARC in her temporary status. Her last day of
work was February 24, a date she had set early on in
anticipation of her March 12 due date. The office workers
gave her a baby shower on that day, and then she left,
never to return.
After Venturelli’s departure, ARC officials made sev-
eral attempts to contact her, but no one was able to reach
No. 02-2294 5
her personally and so they simply left voicemail mes-
sages. Venturelli purposely did not return those calls
because, at that point, she had decided that she did not
want to return to ARC. After remaining at home with
her baby for about five months, Venturelli applied for,
and obtained, employment with a different employer.
In the meantime, in hopes that Venturelli would accept
the full-time administrative assistant position, ARC hired
in succession two temporary employees to perform the
job. However, after ARC finally did not hear back from
Venturelli, it hired another person, Laura Schleif, for the
full-time position. Schleif was pregnant at the time ARC
expressed interest in hiring her, and ARC told her that
she could begin the job after she delivered her baby. That
is what Schleif did, even though she had left to have
her baby before completing the 520-hour requirement.
Schleif’s hiring occurred at approximately the same time
that Venturelli took a new job with a different corporation.
As it turned out, Venturelli herself had met the 520-
hour requirement on February 14, approximately ten
days before her last day at ARC. The record does not
show how much Venturelli would have been paid had
she been given a full-time position sometime between
February 14 and February 24. Nor is there any indication,
had she taken a full-time position and had the expenses
for the delivery of her child placed on ARC’s medical plan,
whether there would have been any difference in cov-
erage of expenses from her husband’s employer’s medical
plan.
Venturelli eventually filed a complaint with the Equal
Employment Opportunity Commission, and then sued
under Title VII, accusing ARC of refusing to hire her
because she was pregnant. The district court granted ARC’s
motion for summary judgment and Venturelli appeals.
6 No. 02-2294
I.
This court reviews the district court’s grant of summary
judgment de novo, construing all facts in favor of Venturelli,
the nonmoving party. Rogers v. City of Chicago, 320 F.3d
748, 752 (7th Cir. 2003). Summary judgment is proper when
the “pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any ma-
terial fact and that the moving party is entitled to a judg-
ment as a matter of law.” Fed. R. Civ. P. 56(c). Thus,
“[s]ummary judgment is appropriate if, on the record as
a whole, a rational trier of fact could not find for the
non-moving party.” Rogers, 320 F.3d at 752.
Under Title VII, it is unlawful for most employers “to fail
or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to . . .
compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s . . . sex. . . .” 42 U.S.C.
§ 2000e-2(a)(1). The phrase “because of sex” has been de-
fined by the Pregnancy Discrimination Act (PDA), through
which Congress amended Title VII in 1978, to mean
“because of or on the basis of pregnancy, childbirth, or
related medical conditions.” 42 U.S.C. § 2000e(k).
Venturelli’s complaint is that ARC violated Title VII when
it failed to hire her in January or February 2000 because
of her pregnancy. As it is undisputed that ARC is an
employer subject to Title VII, the question on appeal is
whether a reasonable jury could conclude that ARC
failed to hire Venturelli at some point because she was
pregnant. She has available the direct method or the indi-
rect method to prove her case. Troupe v. May Dep’t Stores
Co., 20 F.3d 734, 736 (7th Cir. 1994).
No. 02-2294 7
A. The Direct Method
Under the direct method, there are two types of per-
missible evidence. First, there is direct evidence, or evi-
dence that, if believed by the trier of fact, would prove
the fact in question “without reliance on inference or
presumption.” Rogers, 320 F.3d at 753 (internal quotation
omitted). Direct evidence “essentially requires an admis-
sion by the decision-maker that his actions were based
upon the prohibited animus.” Id. (internal quotation omit-
ted). For obvious reasons, we rarely encounter direct
evidence. Id. The second type of evidence permitted
under the direct method is circumstantial evidence, or
evidence that allows a jury to infer intentional discrimina-
tion by the decisionmaker. Id.
1. Direct evidence.
Venturelli contends that “[t]he three key members of
ARC’s management team—Kinsey, Baldwin, and Collins—
each provide direct proof” that ARC violated the PDA by
refusing to hire her while she was pregnant. As to Kinsey,
Venturelli first puts forth Collins’ statement to the effect
that Kinsey told him to offer Venturelli a job “when she
came back” from delivering her baby. In Venturelli’s view,
this remark is direct evidence; i.e., it is tantamount to
Kinsey’s admission that ARC would not hire Venturelli
because of pregnancy. We disagree. An offer of employ-
ment to a pregnant woman beginning some time after
she delivers her baby does not, in itself, prove that the
employer would hire that same woman immediately, but
for her pregnancy. This information does not in any way
equate to an admission of discrimination, and cannot
be direct evidence of discrimination. We therefore con-
clude that there is no direct evidence in relation to Kinsey.
8 No. 02-2294
Nor is there any direct evidence attributable to Baldwin.
Venturelli relies on page 59 of her own deposition to
establish that “Baldwin told Venturelli that ARC was go-
ing to wait to hire her until she had her baby.” What
that reference actually refers to, however, is Venturelli’s
recalled conversation where she told the temp agency
(Adecco) representative that she was interested in the
position but “Mike Collins told me that they wanted me
to wait until my pregnancy was over before they hired me.”
In her February 1 meeting with Baldwin, the discussion
centered on insurance. There is no dispute that Venturelli
had planned to leave ARC on February 24 in anticipation
of her baby’s birth. According to Venturelli, Baldwin
told her ARC would like to offer her a job and a salary level,
but that it would not be an advantage to her at that time
because she would not be eligible for any benefits. At
the time Venturelli was covered by her husband’s em-
ployer’s benefit program. It turned out that Baldwin’s
information on benefits was incorrect, but the point of the
discussion was that Venturelli would continue her pres-
ent job as a temp until her predesignated departure
date (February 24) and return as a regular employee as
the administrative assistant. There is no indication from
Baldwin that ARC wouldn’t hire Venturelli simply because
she was pregnant.
That leaves Collins’ message about new mothers and
their desire to stay home with their babies. Assuming
that Collins was a decisionmaker, which is a question we
need not reach, the quoted statement could arguably
constitute direct evidence. Collins, of course, casts this in
a different light—his intent was not to rush her, and in-
stead was to offer her all the time she needed before de-
ciding to come back full-time. But even under Venturelli’s
interpretation, whether or not she would return was a
valid concern. When Collins told Venturelli that they liked
No. 02-2294 9
her and wanted to hire her as the administrative assistant,
but “we want to see how this pregnancy thing turns out,”
his concern was clearly not her pregnancy, but rather her
willingness to come back and take on the new job. His
remark that “[o]nce you hold that baby, you’re just not
going to come back to work” was a less than tactful way of
expressing that ARC was willing to hold the job open to
give her time to decide if she wanted to return.
In Troupe v. May Dep’t Stores Co., 20 F.3d 734 (7th Cir.
1994), we encountered an employer whose adverse em-
ployment action was motivated by the belief that the
pregnant woman would not “return to work after her
maternity leave was up,” and held that discrimination
so motivated did not violate the PDA because an em-
ployer can legitimately consider an employee’s potential
absence from work, even where that absence is because
of pregnancy. Troupe, 20 F.3d at 737-38; see also Rhett v.
Carnegie Center Assoc. (In re Carnegie Center Assoc.), 129 F.3d
290, 297 (3d Cir. 1997) (following Troupe). Even though
the same type of questions are presented here—after
the baby is born, will Venturelli return to work and
when?—Venturelli cites Maldonado v. U.S. Bank, 186 F.3d
759 (7th Cir. 1999), as narrowing Troupe’s holding to em-
ployees who, unlike Venturelli, had a poor attendance
record during pregnancy. Not so. In Maldonado, the evi-
dence showed that the employer admitted that the plain-
tiff was being fired “due to her [pregnant] condition.” She
was fired the day after she announced she was preg-
nant. Maldonado thus presented the unusual circumstance
where the defendant apparently admitted liability, and
thus the plaintiff was entitled to reach a jury with direct
evidence. Maldonado did cite Troupe as authorizing an
employee’s dismissal even when excessive absences were
a direct result of her pregnancy. But although Troupe’s
employer fired her the day before her pregnancy leave was
10 No. 02-2294
to begin, it was not because of past absences. “[S]he was
terminated because her employer did not expect her to
return to work after her maternity leave was up.” Troupe,
20 F.3d at 737. Standing alone, that did not violate the
PDA. Id. at 738. Venturelli wasn’t fired. Rather, she con-
tinued to work, albeit as a temp, until her chosen last day
of February 24. But as she recalls it, the discussion of
her permanent position, something she initially wanted
and ARC wanted her to have, hinged on whether (and
when) she would want to come back. Unlike Maldonado,
Venturelli presented no evidence that ARC said that it
would not hire her because she was pregnant. Not only
was she already pregnant while she was employed at ARC
as a temp, but she had also declared she was leaving
on February 24 to prepare for her baby’s birth. According
to Venturelli, Collins’ statements show that ARC discrimi-
nated against her because it did not believe she would
return to her job after pregnancy, and thus would not offer
her a permanent position until it was assured of a time
when she would return. In light of Troupe, even if ARC
conditioned its offer of a permanent job as administra-
tive assistant on if and when Venturelli would come
back after having the baby, that is not direct evidence of
a violation of the PDA.
Our dissenting colleague disagrees, arguing that this
case is controlled by Maldonado, and not Troupe, because
“the effect of Collins’ uncorroborated belief that Venturelli
would not want to work makes Maldonado a more ap-
propriate comparison.” On two main points, we disagree.
First, the dissent’s interpretation of Troupe is unduly con-
fined. The holding of Troupe is straightforward: an employer
may, without violating the PDA, terminate or not hire
a woman because it does “not expect her to work after
her maternity leave” ends. Id. at 737-38. Nothing in Troupe
No. 02-2294 11
says that the employer’s expectation that the employee
would not return to work must be corroborated.
Second, even if Troupe only applied where the employ-
er’s expectation was corroborated, it would still apply
here. The dissent correctly notes that “[i]f Venturelli had
told Collins that she wasn’t sure if she wanted to return
to work after giving birth, ARC would have been justified
in searching for another employee.” While we certainly
agree with that observation, in this case Venturelli’s ac-
tions were tantamount to telling ARC that “she wasn’t sure
if she wanted to return to work after giving birth.”
As Venturelli admitted in her deposition, even after
the meeting between Venturelli and Collins, Judy Baldwin
had met with Venturelli and “said that she would like
to offer [Venturelli] the admin assistant job,” but that
Venturelli would not be eligible for medical insurance to
cover her pregnancy. Baldwin’s statement, if not itself a
job offer (the district court concluded it was), was exceed-
ingly close to being one. Anyone who was in Venturelli’s
position, and who wanted the job, would have under-
stood that this was an obvious opportunity to express
interest in accepting the position. Venturelli, however,
remained silent, neither expressing an intention to accept
the job as soon as possible, nor telling Baldwin that
she understood Collins’ insensitive comments to mean
that ARC would not hire her while she was pregnant.
(Either choice likely would have nipped this dispute in
the bud.) Silence in these circumstances was corrobora-
tion of ARC’s concern that Venturelli would not resume
working after her maternity leave, as was Venturelli’s later
refusal to return ARC’s telephone calls about the job.
Moreover, our analysis is not, as the dissent appre-
hends, “only a small step” away from the conclusion that
companies may “avoid hiring women of childbearing
12 No. 02-2294
age altogether out of a fear that the women will some
day become pregnant, take a substantial amount of time
off, and perhaps never want to return to work at all.” To say
the least, that is a giant step away from our holding in
this case. Our dissenting colleague is absolutely correct
that refusing to hire a woman of childbearing age simply
for fear that she might have a baby violates Title VII, and
nothing in this opinion endorses anything of the sort.
2. Circumstantial evidence under the direct method.
As discussed above, circumstantial evidence under the
direct method allows a jury to infer intentional discrimina-
tion by the decisionmaker. There are three categories of
circumstantial evidence under the direct approach, each of
which may suffice by itself to establish discrimination,
or may be used in conjunction with one or both of the
other categories. Troupe, 20 F.3d at 736. The first category
consists of “suspicious timing, ambiguous statements
oral or written, behavior toward or comments directed at
other employees in the protected group, and other bits
and pieces from which an inference of discriminatory
intent might be drawn.” Id. The second type requires a
showing that the employer systematically treated other,
similarly situated, non-pregnant employees better. Id. The
third type is evidence that the plaintiff was qualified for
the position in question but passed over in favor of a per-
son not having the forbidden characteristic and that the
employer’s stated reason for its decision is “unworthy of
belief, a mere pretext for discrimination.” Id. The latter
category “is substantially the same as the evidence re-
quired” under the indirect method. Huff v. UARCO, Inc.,
122 F.3d 374, 380 (7th Cir. 1997).
Venturelli puts forth what she considers two “addi-
tional bits of evidence that lend circumstantial support to
No. 02-2294 13
an inference of discrimination.” First, she cites ARC’s
“schizophrenic . . . assessment of Venturelli’s value as an
employee.” According to Venturelli, although ARC often
praised Venturelli’s performance, in a letter from its at-
torney to the Wisconsin Equal Rights Division it also
complained falsely that Venturelli (1) failed to work a forty-
hour week; (2) worked an inconsistent number of hours; (3)
“simply stopped coming to work after February 24, 2000”;
and (4) “failed to inform ARC and Adecco that she had
no intention of returning to work.” Venturelli relies on
Hasham v. California State Bd. of Equalization, 200 F.3d 1035,
1049 (7th Cir. 2000), for the proposition that where the
employer makes false statements about an employee’s
job performance, “a jury is entitled to view the false state-
ments as circumstantial evidence of a discriminatory
intent.”
Venturelli misplaces her reliance on Hasham. The part
of Hasham to which she cites holds that contradictory
statements about the quality of an employee’s work are
evidence that the employer’s stated reason for the
adverse employment action was pretextual under the
indirect method. Id. Circumstantial evidence under the di-
rect method, however, must allow a jury to infer more
than pretext; it must itself show that the decisionmaker
acted because of the prohibited animus. None of the state-
ments to which Venturelli points fits within any of the three
categories that we delineated in Troupe. All that these
statements show is that, in addition to its praise of
Venturelli’s work, ARC also offered some additional
observations. In fact, there is no dispute that as a temp
she worked less than 40 hours per week, that the hours
worked were somewhat irregular, that she did stop com-
ing to work after February 24, and that she did not return
several calls of inquiry from ARC regarding her intent
to return. Significantly, the attorney’s letter emphasized
14 No. 02-2294
that they wanted to hire her after the 520-hour penalty
period ended, but because of her irregular hours it was
not certain when that time period would expire. She
left before they had that calculation. In short, the rec-
ord verifies the facts set out in a letter that is mislabeled
schizophrenic.
The second piece of circumstantial evidence to which
Venturelli points is Baldwin’s telephone conversation with
ARC’s insurance carrier, made in Venturelli’s presence,
where Baldwin relayed incorrect information that Venturelli
would not be eligible for health benefits were ARC to
hire her immediately. Venturelli argues that the record
would allow a jury (1) to conclude that Baldwin was ly-
ing, as opposed to relying honestly on what the insurance
company told her, and (2) to infer that “the lie could
only have been intended to discourage Venturelli from
pursuing employment at ARC during her pregnancy.”
For such a statement to be sufficient circumstantial
evidence under the direct method, the remark in question
must be “directly related to the employment decision.”
Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 762 (7th
Cir. 2001). Venturelli, however, adduces no evidence
that Baldwin’s alleged lie about the insurance was in any
way related to ARC’s decision not to hire her as of January
or February 2000. The only record evidence concerning
the incorrect information that pregnancy was an unin-
sured preexisting condition is Karen Kinsey’s testimony
that including Venturelli on ARC’s insurance coverage
would have no effect “because our health insurance costs
us the same whether someone is pregnant or not preg-
nant.” We thus conclude that this piece of evidence does
not entitle Venturelli to reach a jury under the direct
method. Because Venturelli puts forth no further evi-
dence under the direct method, we turn to her evidence
in relation to the indirect method.
No. 02-2294 15
B. Indirect Method
Under the indirect method of proof, a plaintiff must
first establish a prima facie case of discrimination. To
make a prima facie case, Venturelli must show that: (1)
she was pregnant; (2) she applied and was qualified for
the position sought; (3) she was rejected; and (4) the posi-
tion remained open and ARC continued to seek appli-
cants from persons of Venturelli’s qualifications. Heerdink
v. Amoco Oil Co., 919 F.2d 1256, 1259 (7th Cir. 1990). An
alternate means of proving prong four is to establish that
someone who was not pregnant received more favorable
treatment. Mills v. Health Care Servs. Corp., 171 F.3d 450, 454
(7th Cir. 1999) (citing E.E.O.C. v. Our Lady of Resurrec-
tion Med. Center, 77 F.3d 145, 148 (7th Cir. 1996)). If
Venturelli were to establish a prima facie case, to avoid
liability ARC would then have to come forward with a non-
invidious reason for its decision. Rogers, 320 F.3d at 755. If
ARC were to meet its burden of production, to avoid
summary judgment Venturelli would then have the bur-
den to present competent evidence that the proffered non-
discriminatory explanation is pretextual.
No dispute exists regarding the first two elements of the
prima facie case. The third element is not so clear. The
district court held, and ARC argues, that Venturelli does
not meet prong three because ARC did, in fact, offer her
the job. A review of the record underscores how the parties
were not connecting in their communications with each
other. Clearly ARC wanted to hire Venturelli as the ad-
ministrative assistant. However, Collins’ ramblings about
motherhood apparently reduced or even eliminated
Venturelli’s desire to accept a permanent job at ARC. Un-
fortunately she said nothing to Collins, Baldwin or
Kinsey about her concern of a perceived negative at-
titude toward pregnant employees at ARC (an organiza-
16 No. 02-2294
tion whose mission included helping pregnant women).
Further muddying the picture was the projected expira-
tion of the 520-hour penalty period that would enable
ARC to hire Venturelli. But when Venturelli met with
Collins and later Baldwin, the date of the expiration of
that time period had not yet been determined. As was
later calculated, that expiration date was February 14, ten
days before Venturelli’s chosen departure date of Feb-
ruary 24. So while there apparently was an offer made
by ARC for Venturelli to be administrative assistant after
the time off she needed after she had her baby, there
is no indication in light of the evidence favorable to
Venturelli of an offer to hire her during that ten-day period
before she voluntarily left the temporary assignment
at ARC.
But that gap does not nail down the third element for
Venturelli—that she was not hired because she was preg-
nant. Not only did she remain silent when, at two sep-
arate meetings, Collins made what she concluded were
offensive comments; she said nothing about her concerns
at her subsequent meeting with Baldwin, an undisputed
employment decisionmaker, when the hiring discus-
sion digressed into whether pregnancy was a preexisting
condition under ARC’s benefits package. Nor did she
return Kinsey’s call (to discuss the administrative assis-
tant position), a clear opportunity to raise her concern
with ARC’s executive director. Their response would
have presented evidence of whether they would or would
not have hired her (or even if she wanted to be hired)
during that ten-day period while she was pregnant. All
that remains is Venturelli’s conjecture of what Collins
meant when he expressed concern about whether and
when Venturelli would return to ARC after she had the
baby. That is not enough.
No. 02-2294 17
Venturelli’s claim falls short under the fourth element
as well. For the fourth element of the prima facie case,
we determine whether the position remained open and
ARC continued to seek applicants from persons of
Venturelli’s qualifications. In her opening brief, Venturelli
contends that she meets prong four because ARC “contin-
ued to seek applicants for the position.” The undisputed
evidence, however, is to the contrary. In December 1999,
with the decision to offer the administrative assistant
position to Venturelli, ARC canceled all advertising for that
vacancy. Even after its final communications with Venturelli
in February 2000, when any rejection would have had
to have been made, ARC continued for several months
to staff the position of permanent administrative assis-
tant with temporary employees in anticipation that
Venturelli would eventually fill the position. There is no
evidence in the record that ARC continued seeking ap-
plicants. It was only after June 2000, after several attempts
to contact Venturelli and months of not hearing back
from her, that ARC sought new applications for the posi-
tion of administrative assistant. Thus, even if ARC had,
in fact, rejected Venturelli for the position in January
or February 2000, there is not a shred of evidence that it
then continued to seek applicants for the permanent post
of administrative assistant from people of Venturelli’s
qualifications.
Venturelli also argues that she can satisfy prong four by
showing that ARC treated someone who was not preg-
nant more favorably, pointing specifically to ARC’s proc-
ess for hiring Laura Schleif beginning in August 2000,
roughly five months after Venturelli had ceased job-related
contacts with ARC. This argument fails because Venturelli
points to no evidence that would allow a jury to con-
clude that ARC treated Schleif any more favorably than
it treated Venturelli. Like Venturelli, Schleif was preg-
18 No. 02-2294
nant and a temporary employee when ARC decided to
hire her as an administrative assistant. As it had advised
Venturelli, ARC told Schleif that she could begin the job
after she had her baby. The only difference between
Schleif and Venturelli is that Schleif was apparently hired
before she completed the 520-hour requirement. Had
Venturelli, like Schleif, chosen to accept the full-time
position after delivering her baby, she too could have
returned to ARC as soon thereafter as she desired. In
other words, Venturelli and Schleif were, in all relevant
aspects, treated the same: ARC would have allowed
either to begin working in the permanent administrative
assistant position after she had delivered her baby. In
no sense can ARC be said to have treated Schleif any
more favorably than it had treated Venturelli.
We hold that, because Venturelli cannot establish the
third or fourth elements of the prima facie case, she is not
entitled to reach a jury via the indirect method of proving
a Title VII violation.
III.
From start to finish this is an unfortunate sequence
of events. ARC wanted to hire Venturelli as administrative
assistant and at some point she wanted the job. But com-
munications broke down when Collins callously muddled
a job offer by referring to his perceptions of mothers
and their new babies. Although Venturelli was offended,
she said nothing to Collins, nor did she discuss her con-
cerns with Kinsey or Baldwin. She left the temporary job
as scheduled and never returned calls about the job.
Venturelli does not present direct or circumstantial evi-
dence sufficient to proceed under the direct method of
proving discrimination. Also, she is unable to produce
No. 02-2294 19
evidence under the indirect method for establishing the
third or fourth elements of a prima facie case. We there-
fore AFFIRM the district court.
EVANS, Circuit Judge, dissenting. When evaluating cases
under the Pregnancy Discrimination Act, we must deter-
mine whether an employer treated a pregnant employee
as it would have treated a “similarly affected but nonpreg-
nant employee[ ].” Troupe v. May Dep’t Stores Co., 20 F.3d
734, 738 (7th Cir. 1994). But pregnancy is unique, often
making that seemingly simple task a difficult one. This
case demonstrates why it doesn’t always work just to
ask whether an employer would treat a similarly affected
but nonpregnant employee any differently.
According to Celena Venturelli’s story (which, at the
summary judgment stage, we must accept as true), she
told Michael Collins in January that she wanted the job.
Collins didn’t hide the fact that her pregnancy—specifically
the question of whether she would return to work after
having her baby—was the major cause of ARC’s hesita-
tion. “We want to wait,” he told her, because “we want to
see how this pregnancy thing turns out. . . . I know how
you women are. Once you have that baby, you’re not
going to want to return.”
My colleagues consider Collins’ belief that Venturelli
would not want to come back to work to be “a valid con-
cern,” and certainly an employer who is not sure when or
if an employee will return to work has a valid concern
and can act accordingly—to paraphrase our example in
20 No. 02-2294
Troupe (comparing the pregnant plaintiff there to a hypo-
thetical black employee in need of a kidney transplant),
a baseball team can cut a black second baseman with a
bum knee without giving rise to a claim of racial discrim-
ination if it is not sure when or if the knee will recover.
What makes our case different, however, is that Collins
never worried that Venturelli would be physically unable
to return to work, just that she would be unwilling to
do so. And Collins’ concern arose not from anything
Venturelli said, but from general notions about pregnant
women and new mothers.
If an employer is allowed to take action based solely on
the stereotype that new mothers are unlikely to return
to work, it requires only a small step for companies to
avoid hiring women of childbearing age altogether out of
a fear that the women will some day become pregnant,
take a substantial amount of time off, and perhaps never
want to return to work at all. “I know how you women
are,” an employer might tell a newly married applicant.
“You decide it’s time to have a child, then once you
have that baby, you’re not going to want to return.” Em-
ployers cannot refuse to hire a woman because they fear
that she will have children and choose not to return to
work—that’s precisely the type of discrimination the PDA
was designed to prevent. See Maldonado v. U.S. Bank, 186
F.3d 759, 763 (7th Cir. 1999) (“[Congress] designed the
PDA specifically to address the stereotype that ‘women
are less desirable employees because they are liable to
become pregnant.’ ” (quoting Sheehan v. Donlen Corp., 173
F.3d 1039, 1045 (7th Cir. 1999))).
As my colleagues point out, Troupe, in which we found
that an employer did not violate the PDA in terminating
an employee because it “did not expect her to return to
work after her maternity leave was up” seems to offer
No. 02-2294 21
protection to ARC. 20 F.3d at 737. But the effect of Collins’
uncorroborated belief that Venturelli would not want to
return to work makes Maldonado a more appropriate
comparison. Because of her pregnancy, the plaintiff in
Troupe was habitually late, and we assumed that the
employer was reluctant to pay the plaintiff during her
maternity leave. With those concerns, we were able to
compare the plaintiff’s situation to that of a similarly
situated nonpregnant employee.
We must imagine a hypothetical Mr. Troupe, who is
as tardy as Ms. Troupe was, also because of health
problems, and who is about to take a protracted
sick leave growing out of those problems at an ex-
pense to Lord & Taylor equal to that of Ms. Troupe’s
maternity leave. If Lord & Taylor would have fired
our hypothetical Mr. Troupe, this implies that it
fired Ms. Troupe not because she was pregnant but
because she cost the company more than she was
worth to it.
20 F.3d at 738. As a result, Troupe asked but never had
to answer the question of whether an employer could fire
an employee solely because of his general belief that
women will not return to work after their children are born.
Maldonado, on the other hand, did not differ from Troupe
simply because the employer there “admitted liability,”
as my colleagues contend. In fact, Maldonado raised a
different issue—the employee there was fired simply
because the employer assumed that she would be absent
from work in the future. As a result, we reversed the dis-
trict court’s grant of summary judgment in favor of the
employer.
There might be some limited circumstances in which
an employer could be justified in taking anticipatory
22 No. 02-2294
adverse action against a pregnant employee. Al-
though the PDA was designed to allow individual
women to make independent choices about whether
to continue to work while pregnant, it was not de-
signed to handcuff employers by forcing them to wait
until an employee’s pregnancy causes a special eco-
nomic disadvantage. . . . But an employer cannot take
anticipatory action unless it has a good faith basis,
supported by sufficiently strong evidence, that the
normal inconveniences of an employee’s pregnancy
will require special treatment.
186 F.3d at 767. Similarly, ARC cannot take the anticipa-
tory action of refusing to hire a pregnant woman because
it is not sure she will return to work unless that assump-
tion is supported by more than a stereotypical belief
that new mothers will not leave their infants. If Venturelli
had told Collins that she wasn’t sure if she would return
to work after giving birth, ARC would have been justified
in searching for another employee. In that case, the com-
parison to a different medical condition works, and ARC
only would have had to have hired Venturelli if it would
have hired a nonpregnant worker who wanted to take
an indefinite and potentially permanent leave soon after
being hired. But that is not the justification ARC has
made at this point, instead claiming only that it didn’t
treat Venturelli any differently because she was preg-
nant. Collins’ statements provide Venturelli with enough
evidence to let a jury decide whether that is true. I would
reverse the grant of summary judgment and remand
this case for trial.
No. 02-2294 23
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-16-03