Plaintiff, Mary Cleveland, appeals from an order, entered by the district court on January 11, 2002, granting summary judgment to Defendant, Federal Express Corporation, on claims pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12211, and the Pregnancy Discrimination Act, § 42 U.S.C. § 2000e(k), and various other federal and state law claims. For the reasons set forth below, we AFFIRM the district court in part and REVERSE the district court in part.
BACKGROUND
Procedural History
On May 8, 2000, Plaintiff filed a complaint alleging disability discrimination in violation of the ADA and Ohio Rev.Code § 4112.02, race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., pregnancy discrimination in violation of the PDA and Ohio Rev.Code § 4112.02, and breach of contract under state law. Defendant filed a motion for summary judgment, which the district court granted on January 11, 2002.
On February 8, 2002, Plaintiff filed a timely notice of appeal. On appeal, Plain
Substantive Facts
As set forth by the district court, Plaintiff was employed by Defendant for more than a decade, during which time she received several promotions. In January of 1987, Plaintiff began work as a Customer Service Representative at Defendant’s Blue Ash, Ohio call center, which is in the Cincinnati, Ohio area. Approximately six months later, she was promoted to be an Operations Manager. In 1995, she was promoted to be a Customer Service Support Manager.
While employed by Defendant, Plaintiff gave birth to three children. While working as a Senior Customer Service Representative, Plaintiff took her first maternity leave from Defendant, to give birth to her second child, who was born in 1988. While working as an Operations Manager, Plaintiff took her second maternity leave to give birth to her third child, who was born in 1995. Due to difficulties with this pregnancy, her leave extended to 128 days. Shortly after her return from her second leave. Plaintiff was promoted to be a Customer Service Support Manager. Soon after the 1995 birth, Plaintiff was diagnosed with systemic lupus. Plaintiff’s deposition states that after learning about Plaintiffs diagnosis, Randy Overton, her direct supervisor (Respondent’s Brief at 3), made disparaging statements about lupus:
I believe ... his wife was [formerly] married to someone who had lupus.... Her ex-husband had lupus, and Randy was dealing with the effect of taking on a relationship with her and her disabled son---- [H]e would make comments] about her [ex-]husband just being lazy, that he really didn’t have an illness, that lupus really didn’t exist. He made comments about he was just sick of it in terms of how it impacts his family.
(J.A. at 964-66.) Plaintiff stated that “every single manager ... at one time or another” had “probably heard” a statement by Overton on the topic of lupus. (J.A. at 966.)
In June or July of 1997, Plaintiff learned that she was pregnant with her fourth child. Although normally her lupus was treated with medication, Plaintiffs medications could not be taken during pregnancy. Thus, upon learning that she was pregnant with her fourth child, Plaintiff was advised by physicians to take medical leave in July 1997. Plaintiff initially informed Defendant that she would begin her leave on July 28, 1997. But she did not start leave until August 20, 1997. On August 14, 1997, Plaintiff had sent an email to Randy Overton-who had also been her supervisor during her 1995 leave-informing him that once her leave commenced she would not be able to return until the delivery of her child, during or after February of 1998.
Defendant’s medical leave policy prohibited employees on leave from returning prior to receiving a release from a treating physician. The leave policy also stated,
Positions for employees on medical leave remain available for a minimum of 90 calendar days. At the end of the 90 days, the employee’s manager makes a determination based on departmental operating requirements to either replace the employee on leave or allow the position to remain unfilled. If a decision is made to fill the position, the manager must notify the employee in writing of the manager’s intention to fill the position. Under no circumstance should this be done earlier than the 91st day.
(J.A. at 272.) On October 29, 1997, Greg Barkdull, a manager from the Human Capital Management Committee responsi
On March 30, 1998, Plaintiffs physician gave her a release to return to work. Soon thereafter she forwarded the release to Barkdull. On April 14, 1998, Plaintiff was offered a position in the Fort Lauder-dale Customer Service Center. She declined this position, because she did not want to relocate. She was then placed on personal leave for a ninety-day period, to allow her to seek another position with Defendant. She was denied the positions she applied for, being told that one position had already been filled, that she lacked qualifications for a second, and that her application for a third was late. On August 13, 1998, some time after her ninety-day personal leave ended, Plaintiffs employment was terminated.
DISCUSSION
On appeal, Petitioner challenges the district court’s grant of summary judgment for defendant on the claims under the Americans with Disabilities Act and the Pregnancy Discrimination Act. We review the grant or denial of summary judgment de novo. Eastman Kodak Co. v. Image Technical Servs., Inc.,
The “mere possibility” of a factual dispute is not sufficient to create a triable ease. Gregg v. Allen-Bradley Co.,
I.
We first review the Americans with Disabilities Act (“ADA”) claim. The ADA makes it unlawful for an employer to “discriminate against a qualified individual with a disability.” 42 U.S.C. § 12112(a); see also 42 U.S.C. § 12102(2) (defining “disability” as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment”). The ADA defines the protected class: “The term ‘qualified individual with a disability’ means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
The requirements for an ADA claim are that the individual (1) is disabled within the meaning of the Act, (2) is qualified to perform the essential functions of the job held or desired with or without reasonable accommodation, and (3) suffered an adverse employment decision because of the disability. Burns v. Coca-Cola Enters., Inc.,
In the present case, the dispute centers upon the second requirement. The parties disagree as to whether medical leave for the period of time that Plaintiff was pregnant and unable to take her lupus medication would have constituted a reasonable accommodation. The analysis does not end after a plaintiff makes a showing of a reasonable accommodation. Equal Employment Opportunity Commission regulations state that under the ADA an employer need not make a reasonable accommodation if the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” 29 C.F.R. § 1630.9(a); see Gantt v. Wilson Sporting Goods Co.,
In certain instances, it has been held that the reasonable-accommodation-without-undue-hardship standard does not mandate that employers grant medical leave. Where an employee is incapacitated from work by a condition whose end cannot be determined with any certainty, the ADA does not always require that the employer allow indefinite leave. E.g., Boykin v. ATC/VanCom of Colo., L.P.,
However, this Court has declined to adopt a bright-line rule defining a maximum duration of leave that can constitute a reasonable accommodation. In Cehrs v. Northeast Ohio Alzheimer’s Research Center,
The present case does not push us to the boundaries of our reasoning in Cehrs. The initial leave requested by Plaintiff was approximately one-half year, considerably less than the one-year period that we deemed “a very lengthy period,” in Cehrs. Id. The pregnancy that occasioned Plaintiffs first lupus-related leave of absence from her employer was for the bearing of her fourth child. (J.A. at 26.) Unlike the plaintiff in Boykin, Ms. Cleveland was not suffering from an acute medical condition that might well persist indefinitely, so as to lengthen the initial leave period by an indefinite duration. As we stated in Cehrs, “[t]he employee’s initial burden of articulating a reasonable accommodation need not be onerous.”
Even where, as here, a plaintiff might be able to demonstrate a reasonable accommodation, a defendant can still be granted summary judgment, if there are no genuine issues of material fact controverting the conclusion that the reasonable accommodation would impose an undue hardship on the employer. We explained in Cehrs that, to show that a requested reasonable accommodation poses undue hardship, the employer must carry the burden of proof, based upon a systematic analysis:
If the employee establishes that a reasonable accommodation is possible, then the employer bears the burden of proving that the accommodation is unreasonable and imposes an “undue hardship” on the employer. Monette [v. Electronic Data Sys. Corp.J, 90 F.3d [1173,] 1186 n. 12 [ (6th Cir.) (1996) ]. When considering undue hardship, the ADA requires the courts to consider the following factors:
(i) the nature and cost of the accommodation needed under this chapter;
(n) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(in) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity.
42 U.S.C. § 12111(10)(B).
In the present case, we cannot say that Defendant has put forth sufficient evidence probative of the four factors (or other considerations) to allow a grant of summary judgment. Defendant argues that the present case is distinguishable from Cehrs. Defendant states that in Cehrs the plaintiff had presented evidence that medical leave of the duration requested was routinely granted to other employees but had been denied to the plaintiff. In the present case, Plaintiff did not put forth evidence that other employees had received the amount , of leave that Plaintiff would have been needed. (Respondent’s Brief at 15.)
The other undue hardship argument by Defendant relies on the testimony of supervisors Don Bland and Randy Overton. (Respondent’s Brief at 16-17.) Defendant quotes Overton as stating.
With [Plaintiff’s former] position, she’s the only one in the center. The job duties for her group were scheduling, payroll, reception, facilities, things that can’t be covered by ... six other people out in the call center. So at that point, you have to have an acting manager which does put an undue burden on the call center because the acting manager, unless it can be someone else from her work group, which in this case it could not be, the acting manager is going to have to come off the operations floors which means you pull a manager completely off the floor and out of their [sic] work group and then the center is going to have to back that up somehow.
(Respondent’s Brief at 17.) Overton’s statement speaks to the first and fourth factors for undue hardship. Cehrs,
Moreover, Overton’s testimony relating to undue hardship analysis need not be accepted as factually accurate at this stage in the proceedings. Viewing the evidence and drawing all reasonable inferences in the light most favorable to Plaintiff as the non-moving party, we must accept as true Plaintiffs allegations about the numerous disparaging statements that Overton had previously made about lupus. Thus, all of the testimony by Overton as to the undue hardship of Defendant, as a business, must be substantially discounted in our review of Defendant’s motion for summary judgment. We must draw the inference that Overton’s business judgment was clouded by his animosity towards individuals who have lupus. Overton’s testimony is central to Defendant’s undue hardship argument,
Because Defendant is silent as to the second and third factors for undue hardship, and because, in the present posture of the case, we cannot accord Overton’s statement as to undue hardship controlling weight, it is clear that Defendant has not presented sufficient evidence of undue hardship to sustain a summary judgment motion. A genuine issue of material fact remains as to whether granting Plaintiff medical leave until Plaintiff delivered her baby and was able to resume taking lupus medication would have imposed an undue hardship on Defendant. Accordingly, we reverse the district court’s grant of summary judgment on the ADA claim.
II.
We next review the Pregnancy Discrimination Act (“PDA”) claim. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of ... race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
The PDA prohibits any adverse employment action in which pregnancy is among the factors motivating the employer. Unlawful discrimination need not be the only reason for an adverse employment action in order to violate Title VII, but rather need only be part of an employer’s mixed motive. Price Waterhouse v. Hopkins,
In a Title VII case, a plaintiff bears the ultimate burden of persuading the factfin-der that the defendant intentionally dis
Where, as here, a plaintiff’s evidence is circumstantial, the case proceeds through a three-step framework. First, the plaintiff bears the burden of making a prima facie showing by demonstrating that 1) she is a member of a protected class; 2) she was qualified for the job and performed it satisfactorily; 3) despite her qualifications and performance, she suffered an adverse employment action; and 4) she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside her protected class. Id. at 567 (citing McDonnell Douglas Corp. v. Green,
Plaintiff makes out a prima facie case. Being pregnant, she was a member of the protected class under the PDA. She was qualified for the job and performed it satisfactorily, prior to the pregnancy. She suffered an adverse employment action, i.e., termination. She was replaced by someone outside of the protected class, Jerry Kamphaus. Defendant produced a legitimate, nondiscriminatory reason for the termination, stating that it was not possible to fill Plaintiffs position on a temporary basis. (Respondent’s Brief at 14, 16-17.) From here, Plaintiff faced the burden of persuasion, to assert that the business reason offered was a false explanation and that Defendant’s motives included discrimination because of pregnancy.
In ruling on the summary judgment motion, we may strongly doubt the veracity of Randy Overton’s testimony as it relates to Defendant’s proffered reason for the termination. However, our reason for devaluing the Overton testimony is the evi
Plaintiff must do more than show that Defendant’s stated reason for the adverse employment action is false. Rather, in making the pretext argument, Plaintiff must also carry the burden of persuading the trier of fact that intentional discrimination was part of the employer’s real motive for the adverse employment action. There is no evidence on the record to support an inference of intentional discrimination because of pregnancy. Plaintiff does not allege adverse treatment during either of the two prior pregnancies that she had while employed by Defendant. Plaintiff concedes that during her difficult 1995 pregnancy, Defendant had allowed her to take 128 days of leave and to resume her position after the leave, soon after which she was promoted. (Petitioner’s Brief at 3.) There is not a genuine issue of material fact that might allow Plaintiff to show that Defendant intentionally discriminated against her on the basis of pregnancy. Summary judgment was appropriate on the PDA claim.
CONCLUSION
There is a genuine issue of material fact as to whether medical leave would have constituted a reasonable accommodation of Plaintiff’s disability, without posing an undue hardship for Defendant. Accordingly, we REVERSE the district court’s grant of summary judgment to Defendant on the ADA claim. There are no genuine issues of material fact that could support a finding of discrimination on the basis of Plaintiff’s pregnancy. Thus, we AFFIRM the district court’s grant of summary judgment to Defendant on the PDA claim.
Notes
. As quoted, the policy states, "Under no circumstance should this be done earlier than the 91st day.” (emphasis added). It is not clear if "this” refers to filling the position or to the manager's notifying the employee in writing of the intent to fill the position.
. Petitioner's claim under the Ohio Pregnancy Discrimination Act would ordinarily not merit additional analysis, because the Ohio PDA is governed by the same principles that govern the federal claim of pregnancy discrimination. E.g., Birchard v. Marc Glassman, Inc.,
2000e et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112.”) (citation and internal quotation marks omitted).
Petitioner argues on appeal that her burden is much lighter under Ohio Admin. Code § 4112-5-05(0), an Ohio PDA regulation that mandates leave for pregnancy-related medical conditions, than under federal law. But Plaintiff failed to raise this issue below, and in general "[i]ssues not presented to the district court but raised for the first time on appeal are not properly before the court." J.C. Wyckoff & Assoc., Inc. v. Standard Fire Ins. Co.,
