I.
FACTS & PROCEDURAL HISTORY
Thе district court entered judgment as a matter of law under Fed.R.Civ.P. 50(a) against appellant for the second time and she again appeals that decision. This Court’s first opinion in this case sets out the relevant factual basis for Garcia’s claims in sufficient detail, and we need not cover that ground again here.
See Garcia v. Woman’s Hosp. of Texas,
Garcia sued the hospital for violation of Title VII of the Civil Rights Act of 1964, as ■ amended by the Pregnancy Discrimination Act оf 1978. 42 U.S.C. § 2000e(k>. The district court denied the hospital’s motion for summary judgment and the case went to trial. At the close of plaintiffs case, the district court granted the hospital’s Rule 50 motion on the grounds that the hospital’s policies were applied to all employees equally, whether pregnant or not, and therefore, Garcia could not make out a case of disparate treatment. Before the district court granted the Rule 50 motion, Garcia sought permission to reоpen her case to call Dr. Gunn to testify that no.pregnant woman could push, pull or support 150 pounds, thereby demonstrating that the policy had a disparate impact on pregnant women. The motion to reopen was denied and the Rule 50 motion was granted.
Garcia appealed and this Court reversed and remanded. This Court ordered the district court to allow Dr. Gunn to testify and to reconsider the Rule 50 motion in light of that testimony. On remand, Garcia asked the district judge to reсuse himself, which he declined to do. Thereafter, Garcia called Dr. Gunn, and her testimony was taken by the Court, without a jury. The district court then reviewed all the evidence in the case, including Dr. Gunn’s testimony, and again granted the hospital’s Rule 50 motion, whereupon Garcia filed the instant appeal. Garcia’s appeal essentially raises the following issues:
1.. Whether the district judge should have recused himself;
2.' Whether the district court erred by taking Dr. Gunn’s testimony without a .jury, rather than retrying the entire case to a jury, and then reconsidering any Rule 50 motiоn urged by the hospital at the close of Garcia’s case;
3. .Whether the district court erred by .granting the hospital’s Rule 50 motion for judgment as a matter of law for the second time.
II.
LAW & ANALYSIS
A.
. STANDARDS OF REVIEW
The district judge’s decision not to recuse himself is reviewed for abusе of discretion.
In re Chevron U.S.A., Inc.,
B.
Recusal
Title 28 U.S.C. § 455 governs recusal of federal district judges. “Section 455(a) requires that a judge ‘shall recuse himself in any proсeeding in which his
impartiality
might reasonably be questioned.’ Section 455(b)(1) provides that the judge ‘shall also disqualify himself ... [w]here he has a
personal bias or prejudice
concerning a par-
The district judge did not abuse his discretion by refusing to recuse himself. His comments on remand regarding the plaintiffs case reflected no personal animus against Garcia or in favor of the hospital. His comments rеgarding Garcia’s ability to prove her ease were perhaps unflattering, but reflected only the district judge’s considered opinion upon having viewed the evidence and law in this case. It was no violation of judicial impartiality for the district judge to form an opinion regarding the merits of the plaintiffs case, otherwise he could not have decided the motion for judgment as a matter of law, as the decision of that motion required the district judge to formulate an opinion about the sufficiency of the plaintiffs case under the applicable law. The district judge’s comments did not indicate that he would ignore the probative value, if any, of Dr. Gunn’s testimony when reevaluating the hospital’s Rule 50 motion. Ultimately, nothing about the distriсt court’s ruling evinced any personal bias, prejudice or impartiality, therefore, we find no abuse of discretion in the district judge’s refusal to disqualify himself in this case.
C.
Dr. Gunn’s Proffer
There was considerable confusion below concerning whether this Court’s previоus opinion required the district court to give Garcia a new trial, wherein she would have the opportunity to call Dr. Gunn to testify, followed by an appropriate ruling on any Rule 50 motion reurged by the hospital. This Court’s opinion carefully identifies thе sort of testimony Dr. Gunn might have given, which would have affected the propriety of the hospital’s Rule 50 motion.
Garcia I,
D.
Merits of Rule 50 Motion
The district court was correct on the law and facts in this case that, as a matter of law, Garcia’s evidence was insufficient to make out a
prima facie
disparate impact or disparate treatment claim under the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978.
2
To make out a
prima facie
violation of the Civil Rights
i
Disparate Treatment
Intentional disparate treatment may be achieved
via
a policy which on its face classifies pregnant employees differently from other non-pregnant employees.
See, e.g., International Union, UAW v. Johnson Controls,
ii
Disparate Impact
The principal reason for remand in this case was so that Dr. Gunn’s testimony might be taken and so that the district court might reеvaluate the propriety of judgment as a matter of law in light of her testimony.
Garcia I,
Dr. Gunn did not testify that no pregnant women could lift 150 pounds. Rather, she testified that she could not accept the potential legal liability associated with saying that any woman could lift 150 pounds, whether pregnant or not. That is not an expert opinion abоut the likely effect of the 150-pound-restriction on all pregnant women. The substance of Dr. Gunn’s testimony is legally insufficient to establish a prima facie case of disparate impact; therefore, judgment as a matter of law was appropriate.
III.
CONCLUSION
The district judge did not abuse his discretion by refusing to recuse himself as there was no personal bias or prejudice against the plaintiff and none of his comments reflect any impartiality, i.e., inability to decide the merits, of the case based on thе controlling law as applied to the evidence. The district court did not abuse its discretion by taking Dr. Gunn’s testimony by proffer without a jury, as that was the only sensible course under the circumstances. Finally, the district court correctly entered judgment as а
AFFIRMED.
Notes
. Prior to the Civil Rights Act of 1991, Title VII claims could not be tried to a jury, and compensatory and punitive damages could not be awarded. The Civil Rights Act of 1991 amended Title VII to allow compensatory and punitive damages in cases of intentional discrimination (i.e., not in cases involving dispаrate impact only), and jury trials were permitted only in cases where compensatory and punitive damages were proper, in other words, in disparate treatment cases. See Rev.Stat. §§ 1977A(a) & (c), 42 U.S.C. §§ 1981a(a) & (c), as added by § 102 of the 1991 Act. Therefоre, a jury may not determine the disparate impact claim, and, if that is the only claim left, there is no need for a jury.
. There was a debate in the district court on remand as to whether the district court was to reconsider both Garcia's dispаrate impact and disparate treatment claims in light of Dr. Gunn’s testimony or just the disparate impact claim. Our resolution of the merits of the district court’s decision renders the question moot.
. This is what the Court referred to as pretextual disparate treatment in Garcia I, supra at 813 n. 2.