Kimberly Turic v. Holland Hospitality, Inc., D/B/A Holiday Inn and Conference Center of Holland, Cross-Appellee
85 F.3d 1211
6th Cir.
1996
Check Treatment

*1 rights, hope I of human principles modest

so, Philip the sake of Chance.

Kimberly TURIC, Plaintiff-Appellee,

Cross-Appellant, INC., HOSPITALITY,

HOLLAND d/b/a

Holiday Inn and Conference Center

Holland, Defendant-Appellant, Cross-

Appellee.

Nos. Appeals,

United States Court of

Sixth Circuit. May

Argued 1995.

Decided June 1996. Rehearing

Rehearing Suggestion July

En Banc Denied *2 briefed), Heaphy (argued and J.

William Holland, MI, Garzia, plain- for Vandeveer & tiff-appellee, cross-appellant. briefed), Kinney (argued A. Sheila Patterson, Ruga, Rapids, Kinney & Grand MI, defendant-appellant, cross-appellee. briefed), (argued and Karen M. Moran E.E.O.C., DC, Washington, amicus curi- ae. Melling, Liberties sure that discrimination American Civil women be-

Louise Foundation, City, York Paul De- cause of was covered New Title VII. Union 2000e(k) Detroit, MI, nenfeld, Section states: for American Civil Lib- Union, American Civil Liberties Union erties terms ‘because sex’ or ‘on the basis Michigan in No. include, to, of sex’ but are not limited *3 pregnancy, because of or on the basis of KRUPANSKY, MILBURN, and Before: childbirth, conditions; or related medical BATCHELDER, Judges. Circuit by pregnancy, and women affected child- birth, or related medical conditions shall be KRUPANSKY, J., opinion delivered the employment-relat- treated the same for all MILBURN, J., court, joined. which purposes, including receipt ed of benefits BATCHELDER, J., separate delivered fringe programs, under benefit as other concurring opinion. persons not so affected but similar in their KRUPANSKY, Judge. Circuit work, ability inability nothing or to and Defendant-Appellant, Holland 2000e-2(h) section of this shall title (“Holland Hospitality”), appealed the Inc. interpreted permit to otherwise. This sub- compensatory dam- district court’s award of require employer section shall not backpay plain- ages, punitive and pay for health insurance benefits for abor- tiff, busser and room a former restaurant tion, except where the life of the mother Holiday Inn in Hol- service attendant at its endangered if would be the fetus were land, Michigan, of the Civil VII term, except carried to or where medical 2000e-2(a)(l) § Rights Act U.S.C. complications have arisen from an abor- (1991), by Pregnancy as Dis- amended Provided, nothing tion: That herein shall (“PDA”). Act The court found crimination preclude providing from abor- Hospitality discharged Turic tion bargaining benefits or otherwise affect subject of con- because she had become the agreements regard with to abortion. troversy among the hotel staff as a result of 2000e(k). § 42 U.S.C. The lower court con- perpended The court conclud- her abortion. pregnancy cluded that “related medical con- ed, law, as a matter of that Turic’s termi- right ditions” included the to an abortion. gen- nation for the stated reason constituted guidelines interpreting The EEOC this sec- der-based discrimination which violated Title tion, high degree which are entitled to a Hospitality appealed, asserting Holland VII. Power, Griggs v. deference under Duke Turic’s termination resulted from her failure 849, 854-55, perform assigned responsibilities. her (1971), expressly L.Ed.2d state that an Hospitality appealed Holland also the court’s abortion is covered Title VII: legal conclusions that Title VII and the broad 2000e-2(a)(l) principle § of 42 The basic is that [PDA] U.S.C. extend equal protection contemplated abortions women affected and related permit and the award of dam- conditions must be treated the same applicants employees on the ba- ages, punitive damages backpay.1 other ability inability to work. A sis of their or considering assign In Turic’s first protected against such woman is therefore error, ment of this Court notes being merely ... be- practices as fired Rights prohibits of the CM Act of 1964 cause she is or has had abor- employers “discharg[ing] any individual tion. ... ... because of such individual’s sex.” 2000e-2(a)(l). 1978, Congress Appendix (emphasis 29 C.F.R. added). history Similarly, legislative Pregnancy enacted the Discrimination Act 2000e(k) (“PDA”), VII, provides: an amendment to Title to in- section cross-appealed finding. court’s decision the district court’s trict court’s The district 1. Turic support concerning religious that her evidence was insufficient to religious discrimination claim is claim. The record dis- discrimination therefore affirmed. closed no evidence which contradicted the dis- against employ- a female employment action applies to all situations [the PDA] Because abortion, by pregnan- to have an women are “affected ee for her decision in which childbirth, related medical condi- cannot cy, follows that the same also tions,” language covers women its basic action take adverse pregnancies. to terminate their merely thinking who chose employee for about female Thus, may, example, fire result, no right she has a to do. As a what simply because refuse to hire a woman legal conclusion that Title district court’s right to have an she has exercised PDA, applies to the as amended abortion. Hospitality discharging action of Holland Turic, is affirmed. Cong., H.R.Conf.Rep. No. 95th 2d pp. reprinted in 1978 U.S.C.C.A.N. Sess. findings, district court’s factual added). Thus, (emphasis 4765-66 *4 discriminatory in including a of intent statute, legislative language the plain of the case, nonjury a Title VII are reviewed clearly in history guidelines and the EEOC clearly Anderson v. a erroneous standard. may employer that an not discrimi dicate Bessemer, City 470 105 employee U.S. against a woman because nate (1985) (“If 1504, 1511, 84 L.Ed.2d 518 right exercised her to have an abor S.Ct. “she has Additionally, Supreme the Court has court’s account of the evidence is tion.” the district in already impact the of the PDA plausible light considered of the record viewed its broadening scope prohibited the sex dis entirety, may appeals the court of not re it.”) cases, under Title VII. In Internation crimination plaintiff In the verse Controls, Inc., v. Johnson 499 U.S. al Union establishing initial a bears the burden (1991), 1196, 187, 111 113 L.Ed.2d 158 S.Ct. Douglas Corp. prima facie ease. McDonnell that as amended the Court held Green, 792, 802, 1817, 411 93 v. S.Ct. PDA, “prohibit[s] employer an from dis the (1973); 1824, Ang 668 v. Procter 36 L.Ed.2d criminating against a woman because of her (6th Co., 540, & 932 F.2d Cir. Gamble her re capacity to become unless 1991). prevents per productive potential her from 206, job.” forming the duties of her Id. at employee Once an has carried light plain at 1207. In of the S.Ct. burden, going the burden of forward initial statute, legislative the histo the employer produce to to evidence of shifts the PDA, ry guidelines, and the EEOC nondiseriminatory legitimate, reason Controls, panel principles of Johnson the Dep’t the adverse treatment. Texas concludes that an who discrimi Burdine, 248, 254, v. 450 U.S. Comm. Affairs employee a female because she nates (1981). 1089, 1094, 67 L.Ed.2d right to have an abortion” has “exercised burden, pre If the satisfies its violates Title VII. sumption of unlawful discrimination is nulli fied, employee claim, the burden returns to the Turic, however, not nor did did employer’s pre find, prove to reason was the district court that she was terminat right textual. Id. ed she had exercised her to because Hospi an abortion. Turic v. Holland have case, judge In the instant the trial (W.D.Mich. F.Supp. tality, abortion, pondered which found that Turic’s 1994). (In fact, Turic did not terminate her among precipitated controversy the other term.) Rather, pregnancy, but carried it to employees, motivating was a factor for her claim, Turic’s and the district court’s conclu discharge. judge credited evidence that sion, fired she was she was because only disciplining after Turic’s initial occurred having panel contemplated an abortion. The employees became aware of her con other concludes, however, that this distinction has Also, templated action. the record reflects right A no effect on its result. woman’s job performance poor was discussed encompasses an abortion more than have trial, abortion; during meeting with Turic. At the first simply having act an abortion, they later supervisors admitted that had contemplation includes the of an personnel “expounded” edited Turic’s file cannot take adverse well. Since harm.”); derogatory greater Williamson v. to add information emotional on the record Handy properly call in Company, Button Machine prior Turic’s failure about 817 F.2d 1290, 1294 (7th Cir.1987) failure to fill coffee urns. Fur- sick and her (“Perhaps [plaintiff] thermore, judge, viewing sensitive, after the defen- unusually but a tortfeasor weighing dant’s witnesses and their testimo- takes its victims as if finds them.... ny, assigned greater credibility Turic’s sensitivity some cases unusual will enhance concluded that Turic was dis- loss; evidence. He in others unusual hardiness will charged considering because she it; payment reduce damage the actual the trial court’s factual abortion. Because compensate each case will both the victim erroneous, findings clearly were not injurer and lead the to take account of the liability regarding under Ti- court’s decision acts.”) Vosburg consequences citing full of its tle VII is affirmed. Putney, 80 Wis. 50 N.W. 403 States, and Stoleson v. United 708 F.2d ap Hospitality Holland has also (7th Cir.1983). vulnerability Turic’s pealed compensatory damages, the award of case, relevant this because her punitive damages backpay. The Civil supervisors knowledge had direct of her vul Rights Act of 1991 amended Title VII nerability they discharged before her. The dam authorize award *5 err, therefore, judge trial did not in consider ages where an is found to have ing the unusual economic and emotional sen “engaged in unlawful intentional discrimina sitivity plaintiff. of this 1981a(a)(1). tion....” 42 To be eligible compensatory damages, for Turic It is well settled that Title VII required Hospitali prove was plaintiffs prove injury by can emotional testi ty’s unlawful actions caused her emotional support. Moody mony v. without medical Piphus, 247, Carey v. distress. 435 U.S. Co., Pepsi-Cola Metropolitan Bottling 915 263-64, 98 55 L.Ed.2d S.Ct. (6th 201, Cir.1990); Williams v. F.2d 210 (1978). plaintiffs testimony, 252 A own Airlines, Trans 1267, World 660 F.2d 1273 along particular with the circumstances of a (8th Cir.1981). However, damages for men case, plaintiffs can suffice to sustain the pre tal and emotional distress will not be regard. Meyers City v. burden in this sumed, proven by “competent and must be Cincinnati, (6th Cir.1994). 1115, 1119 14 F.3d Carey Piphus, 247, v. evidence.” 435 U.S. finding trial fact A court’s on this issue is 20, 1042, 263-64 & n. 98 S.Ct. 1052-53 n.& plain not reversible error “unless manifests 20, (1978); Rodgers v. Fisher 55 L.Ed.2d 252 injustice, grossly or is so excessive as to be Div., Body Corp., General Motors 739 F.2d Id.; City Anderson v. clearly erroneous.” Cir.1984). (6th case, 1102 In the instant Bessemer, 564, 573, 1504, 470 U.S. Carey. Turic offered evidence which satisfied (1985). 1511, 84 L.Ed.2d 518 extremely Witnesses testified that Turic was court, proceeding, upset frightened being discharged, in the instant and after young, meeting found that a in as unwed mother who and that she ran from the tears. Carey walking tightrope” Supreme an in “economic and The Court instructed that just testimony had who discovered she was such witness bolsters a time, “Although essentially Turic second emotional distress: subjective, injury may position highly dependent genuine respect vulnerable and was in this job. upon Vulnerability is relevant be evidenced one’s conduct and observed 20, Carey, Pratt v. Brown See determining damages. at 264 n. 98 others.” Co., (6th 1225, Further, Machine 855 F.2d Cir. S.Ct. at 1052 n. 20. Turic testified Policy 1988); reprint EEOC nightmares, Guide at that she continued to suffer (an ed in 8 Fair weight Employment during Practices Manual loss unde- (BNA) (“The leading at 405:7096-97 fact the sirable occurrence often to low birth complaining party may unusually baby), weight be emotion of the and excessive nervous- ally great testimony distinguishes in- sensitive and incur emotional harm ness. This 1108, Rodgers, discriminatory from conduct will stant from 739 F.2d at not absolve ease respondent responsibility plaintiff testify that he from for the which the failed to BATCHELDER, Judge, Circuit alleged his any manifestations of suffered concurring. distress, Chrysler from Erebia v. and mental (6th Corp., 772 F.2d 1250 Plastic Products in- prohibits Cir.1985), plaintiff testified wherein the tentionally taking any adverse “highly upset” about merely that he was of a against employee on the basis action workplace. Id. at made at his racial slims ' employee. Be- attribute of that protected Reyes, 966 F.2d v. 1259. See also DeNieva protected attributes cause most of the Cir.1992) (9th (plaintiff testified facially clear from Title VII are both manifested distress suffering emotional obvious, if not statute and insomnia, vomitting and re dizziness immutable, fact, require- as a matter of $50,000 damages); Sec compensatory ceived intentional is ment discrimination Blackwell, F.2d retary v. HUD ambiguous nor unfair most Title neither Cir.1990) (11th ($40,000 upheld award 872-73 situations, and, indeed, pro- as a serves VII humiliation, testimony regarding on basis employer. An can- for the tection headaches); Moody Pepsi- insomnia face, argue, with a that he did straight Co., F.2d Bottling Metropolitan Cola statute that he not understand from the Cir.1990) (6th ($150,000 up award employee not discriminate could testimony plaintiff was held on basis was, example, employee because forced to five shocked and humiliated black, or Orthodox. or female Russian termination). family apart from because ease, however, protected at- present reasons, the amount awarded For the above statute, in the expressly is not out tribute set grossly damages is not ex compensatory court, at the time Holland and no cessive, of the court below and the decision Turic, “per- discharged included a had affirmed. as to contemplat- “pondered” even a *6 pended” protected as an attribute ed abortion Rights Act of 1991 also The Civil course, part, of that is because statute. punitive damages of provides for awards “pondered” is not an “perpended” or event found to have “en is where all, thought. at but a attribute discriminatory practice ... with gaged to the indifference malice or with reckless readily apparent from the lan- It is not aggrieved rights of an federally protected thoughts in- guage the statute are of 1981a(b)(l). A re § individual.” U.S.C. For protections. covered its tended to be that, although the view of the record reveals matter, readily apparent from it is not employees Hospitality’s actions of Holland having had an of the statute status lack of em duplicitous disclosed a were protected As a mat- is a attribute. abortion sup they not rise to the level pathy, did however, accept I the conclu- logic, of can ter under the punitive damages award port a is sion that since the condition Therefore, the trial Rights Act of Civil regula- specifically and the EEOC protected, damages is re punitive court’s award having under- tions state that the status versed. contempla- protected, gone an abortion undergo an abortion tion of the choice backpay, months court’s award of 15 It is protected also be under Title VII. must (1) month, Turic per $800 at reduced $680 conclude, troubling as the nonetheless Denny’s working at after the realized on the step, that discrimination based next born; attribut- baby the amount contemplation an abortion is employee’s out of the work to the six weeks she was able that re- “unlawful intentional discrimination” baby was not after the birth of her force sults, only backpay under in an award of light her effort to clearly erroneous in but an award various factories and seek at § 1981a. under U.S.C. decision is there- restaurants. The court’s backpay. fore affirmed as to here, where Turic That is so employ- and the AF- center of the vortex Accordingly, below is was the the decision get rid of the source of terminated her to part. er part FIRMED in and REVERSED However, because Turic’s con- uproar. reason for templation of an abortion was the (and thus the uproar, Turic’s termination discrimination) was, part, at least

unlawful “perpended abortion.” Since the

due to the exception no for discriminato-

statute makes

ry would not reason- acts that

ably prohibited, Turic’s have known therefore,

discharge, “unlawful intention-

al discrimination.” majority only opinion

I in the be- concur

cause, light specific language 1981a, I can find no basis on which had to

to hold knowledge thoughts that Turic’s were

have

protected VII in order for its under Title a violation of the statute.

action to be America,

UNITED STATES

Plaintiff-Appellee, GABEL, Defendant-Appellant.

Kermit

No. Appeals,

United States Court

Seventh Circuit.

Argued Nov. 1995. May

Decided