*1 TYSINGER, Plaintiff-Appellant, Teresa
POLICE DEPARTMENT OF the ZANESVILLE,
CITY OF
Defendant-Appellee.
No. 05-3785. Appeals,
United States Court
Sixth Circuit. 9, 2006.
Argued: June Sept.
Decided and Filed: *2 III, F. Benjamin Riek
ARGUED: Cleveland, Ohio, for Appellant. Christo- Walsh, Earl, Warburton, pher R. & Adams Davis, Columbus, Ohio, Appellee. for ON III, Benjamin Cleveland, BRIEF: F. Riek Ohio, Christopher R. Appellant. for Earl, Warburton, Davis, Walsh, Adams & Columbus, Ohio, for Appellee. MARTIN, NORRIS, and Before McKEAGUE, Judges. Circuit J., McKEAGUE, opinion delivered court, NORRIS, J., joined. in which MARTIN, 580-83), (pp. J. delivered opinion. separate dissenting OPINION McKEAGUE, Judge. Circuit Tysinger, a Plaintiff-appellant Teresa eight-year member patrol officer Department, Zanesville City of Police brought against employer alleging suit subject to pregnancy she was discrim- discrimination, ination, a form of sex violation of federal and law. Ohio After completion discovery, police depart- ment for and moved judgment. found that The district court plaintiff had failed make out consideration, due we af- case. On firm for the reasons that follow.
I. BACKGROUND by the hired Teresa Department Sep- of Zanesville Police patrol tember She worked became August officer. Although pregnant. aware that she was prior her husband had one child with the Zanesville Police employment Department, her first police officer. Con- becoming since duties, “push- like cerned that some suspects,” ing fighting vehicles filing child, Tysing- complaint. tion a two-count her unborn might endanger superiors with her I asserts a claim er raised her concern Count VII, immediately. Various alternative almost under Title U.S.C. 2000e-(k). assignments 2000e-(2)(a)(l) were discussed temporary §§ Count II *3 (ie., vehi- processing of detective bureau a parallel pregnancy sets forth discrimina- lots, and to a impound assignment cles in law, under tion claim Ohio R.C. calls), job answering phone no desk but 4112.02(A), Essentially, Tys- §§ 4112.99. 2000, September In af- action was taken. alleges that inger the Zanesville Police alter- physical ter in a Tysinger had been Department engaged in sex discrimination suspect, pre- cation her doctor with a when it her accommodation of denied her restriction, providing that scribed work despite suitable pregnancy, having posi- light duty during “Teresa is to be on available, despite having granted tions and presented she this to pregnancy.” When similarly accommodations to other situated Lambes, he Police Chief Eric advised past. in the non-pregnant workers light duty position within there was no Department The Zanesville Police department that she have to summary on both moved for fed- off be work until able to return she state pregnancy eral and discrimination duty. active full claims. The district court concluded that commenced Tysinger’s leave absence had out a failed to make 27, September on In October case because she had failed adduce 2000, November she learned Detective demonstrating had been Bryant Cameron to leave the de- planned subjected disparate treatment because 2001, thereby tective January bureau in addition, pregnancy. the court creating an open pre- within position failed to held rebut de- scribed work restrictions. She advised legitimate nondiscriminatory fendant’s rea- Chief Lambes of her interest posi- by showing son for its actions it to be tion when it available, became nothing but pretextual. The court awarded sum- thus came of it. Tysinger later learned that the mary judgment police department detective bureau had been over-staffed Tysinger’s pregnancy on 2000, since July Sergeant when Richard claims. Roush department returned to the from the prosecutor’s However, office. Hence, when insofar com- Bryant left, his duties by were assumed plaint setting could be construed as forth the existing staff in the detective bureau. federal and state sex discrimination claims essentially concedes apart the alleged discrimi- from Bryant’s departure did not result in an nation, complaint Specifical- survived. opening in the detective bureau that need- ly, the district court determined that the 76-79, ed filled. dep. pp. included complaint allegations supportive JA 175-76. of federal and state that Tysinger claims applied rejected open for for an
Tysinger gave 2001, birth on 26, March positio'n in the detective because and returned to work bureau June 2001. On 30, 2001, April is a woman. charge she filed a Defendant filed second of dis- motion crimination Equal Employment judgment attacking with the surviving Opportunity May 2, 2005, claims. Commission and the Ohio Civ- On Rights il district right Commission. Her court well, EEOC this motion as to sue letter was issued on September concluding, closer inspection of the timely 2001. Tysinger this ac- complaint, commenced that Tysinger had not in fact 572 subject to suit apart juridical entity claims under Ohio
alleged any sex discrimination Zeitler, discrimination. law. v. Crawford (6th Cir.1964); Johari City v. rul- Tysinger challenges On both appeal, Dep’t, F.Supp.2d Columbus Police ings presents two claims of error. (S.D.Ohio 2002); City Fenstermaker (1) the district court erred She contends Ohio, Dayton, F.Supp. 639, properly consider her evi- failing of (S.D.Ohio 1988). department police non-pregnant dence situated municipal of a corporation, subdivision received more favorable employees who Zanesville, (2) subject which is treatment; by dismissing her alter- § suit. 715.01. The of Zanes R.C. native sex discrimination claims as *4 ville, pleaded. employer, actual having properly Tysinger’s ought to been the named defendant in this been II. ANALYSIS Yet, action. as the inasmuch issue has not been by party raised either the lower A. Review Standard court, considering adjudication and appeals The court of reviews de novo an disfavored, liberally default is we construe summary judgment. order granting John- the complaint having brought been (6th Karnes, 868, son v. 398 F.3d 873 against City of Zanesville proceed the and Cir.2005). Summary judgment proper is Tysinger’s to consider the merits of claims. depositions, “if pleadings, the answers to file, and to- interrogatories, admissions on C.Pregnancy Discrimination affidavits, if gether any, with the show genuine any there issue as Prima Facie Case is no materi- moving party al that the is enti- fact and dis state federal and as a tled to a matter of law.” generally claims are evaluated crimination 56(c). The court must view Fed.R.Civ.P. standards. substantive under the same light the evidence in the most favorable to Cmty. Health Partners Kocak v. non-moving party draw all reason- (6th 466, Ohio, Inc., 471-72 Cir. 400 F.3d just in its favor. able inferences Id. Not 2005); Express Corp., Cleveland v. Federal any dispute factual alleged between Cir.2003). (6th 74, 2 81 n. Fed.Appx. 83 parties properly will defeat otherwise Act Pregnancy Discrimination Under the judgment; supported motion for VII, Title discrimination be provisions of genuine present must issue dispute pregnancy, cause of or on basis Gilley, v. 385 of material fact. Leadbetter childbirth, medical conditions is or related Cir.2005). (6th 683, dispute F.3d A 689-90 kind of sex discrimination and defined as a “genuine” only if based on evidence 2000e(k). § 42 U.S.C. prohibited. jury upon a reasonable could return which by pregnancy, affected who are Women non-moving party. verdict favor are medical conditions childbirth or related Sys., Reserve Care F.3d Hedrick v. W. 355 same, all required to be treated Cir.2004). (6th 444, dispute A 451 factual as other persons employment purposes, fact reso- only concerns a “material” if its are in their not so affected but who similar lution of the suit affect the outcome might inability to work. Id. Id. under substantive law. governing are
Plaintiff Teresa claims Proper B. Defendant premised preg on direct evidence of discriminatory nancy-based animus. outset that the named at the We note Therefore, subject analy action, her claims are Depart in this Police defendant Zanesville, evidentiary under estab ment is not sis framework
573 Green, contends, Douglas 411 lished in McDonnell v. Defendant also re 1817, 792, 802-03, element, garding S.Ct. 36 the third that it U.S. 93 L.Ed.2d did (1973). impose any Gaylord employment v. adverse action Prebilich-Holland (6th that Co., precluded Tysinger continuing from Entertainment as a Cir.2002). patrol work officer. Defendant main claims, To sustain her that Tysinger’s inability tains to continue matter, satisfy must threshold the ele working as a patrol officer was the direct by showing a prima ments of facie her, i.e., taken by result actions becom (2) “(1) pregnant, she was she was ing pregnant presenting doctor-pre (3) qualified job, subjected for her she was prohibited scribed work restrictions which (4) decision, employment to an adverse continuing patrol work as a officer. there ais nexus between her support, defendant language cites employment adverse decision.” Gray Toshiba America Consumer Prod (quoting Id. Cline v. Catholic Diocese of (6th ucts, Inc., Cir.2001), 263 F.3d (6th Toledo, Cir.2000)). to the effect that an employee who was concluded, district court view discharged because of her own misconduct ing in the most the evidence favor had failed even to establish fact Tysinger, able to triable issues *5 case. Defendant’s on Gray reliance is mis presented were to each the first placed. The cited in Gray reference three the Regarding elements. second element, not relate to third the the adverse element, defendant of Zanesville In Gray, plaintiff, action element. who the questions Tysinger whether was fact discharged, was was to deemed have satis “qualified” patrol position for her officer fied the action her adverse element of pregnant. after Although she became prima case. Id. at 598. The court facie had Tysinger competently performed as Gray held rather that failed to adduce patrol eight years, officer for some defen evidence of a sex discrimination-based dant contends that she to had ceased be satisfy causal nexus fourth element qualified perform all the duties of the prima of her Id. In Gray, case. facie pursuant position, physician’s here, to her own controversy the real involved restrictions, Here, prescribed work when fourth element. the district court determined, correctly question posed purposes of sum pregnant. became is defendant, mary judgment analysis, that qualifications a plaintiffs whether are as by denying Tysinger work accommodating sessed or after the or cir before events requiring within her restrictions and her to complained cumstances precipitating the absence, take an leave of partly extended action. For purposes adverse subjected pay, without her to an adverse analysis, a prima plaintiffs facie employment decision. qualifications are to be in terms assessed meeting he or she was whether In to satisfy order the fourth ele employer’s expectations prior to and inde case, showing prima ment facie pendent of the that events led the ad pregnancy and causal nexus between her Borg-Wamer verse v. action. Cicero Au accommodation, re Tysinger denial (6th Inc., tomotive, Cir. primarily similarly lies on evidence situ Cline, 2002); 206 F.3d 662-63. Prior non-pregnant employees ated who were becoming pregnant, dispute there is no de more favorable treatment meeting employ Indeed, that “comparables” such evi fendant. expectations. er’s element of may second rise that give dence to an inference prop case was therefore was the reason for the less erly only if deemed satisfied. favorable treatment—but the com- sim- similarly Both Landerman and Madden were employees situated
parable were Ercegovich they v. in that respects.” ilarly “in all relevant situated to Co., 154 F.3d Goodyear perform Tire & Rubber all the temporarily unable to Cir.1998). (6th specifi In relation In this positions. respect, duties of their claim, cally to a satisfy “compara- the first half of they compara respects” the “relevant which they did receive requirement. bles” But are situated bles must Tysinger? than more favorable treatment inability Ensley- “ability or work.” undisputed they grant- It were not is 1220, 1226 Runyon, Gaines an accommodation in the form of ed (6th Cir.1996) (citing U.S.C. more or duties. This 2000e(k)). Hence, satisfy § the fourth Tysinger request- favorable treatment element, required Tysinger is “demon respect, Lan- In this ed and denied. sim employee strate that another who was not receive more derman Madden did inability ilar in to work his Tysinger. There favorable treatment than to her.” Id. the benefits denied received officer received no evidence either experiences on the relies claims to the accommodation who non- employees two male' sustained wrongfully denied. have been injuries work related that affected then- fact, is no either there evidence that ability to work. Officer Tom Landerman sought any an accommodation of officer officer, duties includ- a warrant whose or even advised kind Chief Lambes officer, in- patrol ed of a when he those him off work or physician his ordered jured in a quadriceps his muscle non-work prescribed Despite restrictions. His physician related accident. ordered inability all temporary recovery during peri- him to work *6 they positions, duties of their continued od, though even working, but he continued working assigned capacities. in their usual he not able to run not have was and would in this that Lander- respect It is crucial suspect to if re- apprehend been able similarly man and Madden situat- quired Though to. was Chief Lambes Despite temporary to their Tysinger. ed injury, did not aware Landerman infirmities, they presented themselves to physician him that had ordered advise his employer willing their and able to con- him not require off work and Lambes did ordinary in their working capacities. tinue him A to take of absence. second leave hand, Tysinger, distinguished on the other comparable employee was Officer Jeff by asserting herself the need for and re- the assigned Madden. Madden was to questing job a temporary alteration in her detective bureau when he fractured a toe respect, In sought duties. this she right off-duty. on his foot while He was the treat- employer equal her same or days, off for a returned couple work but Madden, by ment received Landerman and recovered, fully to before he was work more treatment. Chief but favorable ability physical when his to run and use affirmatively that stated limited, force without ad- would have been would have received same treatment as the any Lambes of need for a vising Chief Madden, and if she had elect- Landerman duty assignment. Tys- Plaintiff patrol ed to continue as a officer inger contends that both officers were sim- her “Had despite pregnancy: she been ilarly to her in that both were situated work, duty willing to full perform temporarily to all the perform unable from the have been removed yet their positions; duties of neither ¶ 4, aff. JA active roster.” Lambes required them a leave ab- was take sence. record, district cor- ployer’s perspective, similarly this court situated
On
comparables.
to the asserted
This differ-
rectly
“plaintiff
concluded that
has not
ence undermines
the asserted inference
non-
proved
any
that
other
defendant’s
that her adverse treatment was the prod-
pregnant employees similarly situated in
pregnancy
uct of unlawful
discrimination.1
any
work received
more
As the
court
district
was careful to ob-
genu-
treatment
as to create
favorable
so
serve,
Pregnancy
Act
Discrimination
fact.” Opinion
ine issue
material
preferential
does not require
treatment
Order, July 13, 2004,
In
p.
JA 74.
Rather,
pregnant employees.
it mandates
evidence, Tysinger
of such
absence
was
employers
that
treat pregnant employees
satisfy
is unable
fourth element
nonpregnant employees
the same as
who
case of
dis-
respect
are
situated
crimination. She failed to
demonstrate
ability to
Ensley-Gaines,
work.
causal nexus between
adverse action
1226;
also,
Transp.
see
Reeves
Swift
subjected
she was
to and the fact
her
(re-
Co., Inc.,
(6th Cir.2006)
result of
infirmity
pregnancy.
jecting just
preferential
such a claim for
Rather,
record demonstrates
light duty
beyond
treatment as
the man-
required
to take a leave of absence
Pregnancy
dates
Discrimination
she, in contrast
non-preg-
because
her
Act). The Landerman and Madden evi-
colleagues,
present
nant
did not
herself to
dence,
than showing
rather
ready
her
employer
able to
subjected
to less favorable treatment
all
position.
the duties
She was
they,
than
instead shows
she received
“ability
respect,
this crucial
in terms of
just
Preg-
the same
what the
treatment —
work,”
nancy
inability
as viewed from the em-
Discrimination Act mandates.2
differently.
willing
1. The dissent views the record
had been
and had
this
communicated
Lambes,
viewing
simple
the name of
the evidence
this would have been a
nonmovant,
most
to the
dissent
favorable
matter for
substantiate
affidavit.
unsupported
And,
factually
conceives
scenario.
request
if she
made
been
correctly
denied, then,
observes
dissent
yes,
discrimina-
dialogue
started a
work as-
about alternative
stronger.
tion claim would have been
thisOn
*7
signments, but she did not
it as the
however,
continue
point,
critical
record
the
is silent.
imagines.
presented
dissent
When she
doc-
inescapable
Tys-
The
is
conclusion
thus
that
tor-prescribed
requiring
work restrictions
a
inger
working
a
chose
to continue
assignment,
respond-
Chief Lambes
patrol
that
officer.
notion
the Police
ed,
City-wide policy,
consistent with
that no
Department denied her the choice and forced
light duty assignment was available. There
simply
her to
leave
take a
of absence
finds no
being
prescribed
work available within the
no
support in the record.
restrictions, he
advised
would
further
that she
be off
able
have to
work until
to resume full
Tysinger
asserting
2.
is
to be faulted for
duties.
physician-prescribed
her
for
need
restricted
this,
who,
Department
duty.
colleagues,
the Police
said
In contrast
her
wrongly,
Tysinger
rightly
leave
that
"forced”
take a
of
"assumed the risk”
by denying
they
the
absence
her
choice to continue
able to
the
be
handle
demands
working,
jobs despite
temporary leg
as had
Landerman and Madden.
infirmi-
Yet,
ties,
explanation
Tysinger
Tysinger
regard
Lambes's
that
had to exercise due
for
working
well-being
would have been allowed to continue
the
of another
health and
human
willing
perform
being,
had
if she
been
full
child. This interest unde-
unborn
niably
arguably
had
duties—as
Landerman and Madden—(cid:127)
deserved
even demanded
law,
However,
preferential
stands unrefuted.
is no
that
There
evidence
treatment.
the
Tysinger
requested
rightly wrongly,
pref-
wished or
continue
extend
does not
this
patrol
position.
obligation
employer.
preg-
in her
officer
If she
erential
to the
A
insists,
challenged
dis-
She
conclude that
the
this conclusion.
Accordingly, we
however,
plain-
correctly
pretextual.
determined
that it is
trict court
prima
make
tiff
failed to
out
demonstrating
To
carry her burden
discrimination.
facie
by a
prove
prepon-
must
pretext,
given
the
the
derance of
evidence
2. Pretext
Cline, 206
is not credible.
F.3d at
reason
Assuming,
arguendo, that
658.
case, the
prima
had established a
facie
pretext by
can
plaintiff
A
demonstrate
on to conclude that
district court went
(1)
the
showing
proffered reason
would nonetheless be entitled to
defendant
(2)
fact,
actually
has no
did not
basis
summary judgment because
had
challenged
motivate the defendant’s
non
legitimate
to rebut defendant’s
failed
(3)
conduct, or
insufficient to war-
discriminatory
granting
reason
challenged
rant
the
conduct.....If
duty assignment
request for
plaintiff can show that the defendant’s
by showing
pretext
it to
for unlawful
be
nondiscriminatory
proffered,
reason
discrimination.
pretextual,
may
fact
infer
the trier of
successfully
If a
establishes her
plaintiff
discrimination.....Nevertheless,
the
prima
case of
discrimina-
facie
proof
burden of
to show dis-
ultimate
tion,
production
the burden of
shifts
the
plaintiff
the
crimination remains on
at
employer
legiti-
to articulate a
defendant
all times.
nondiscriminatory
for its ac-
mate
reason
Cline,
at
If
206 F.3d
658.
tions.
Co.,
v. A.B. Dick
Dews
231 F.3d
burden,
satisfy
fails
defendant
this
(6th Cir.2000) (citations omitted); see also
If the
sat-
plaintiff prevails. Id.
defendant
Gray,
In Reeves
v. Sand-
burden,
presumption
then the
isfies
Prods., Inc.,
Plumbing
erson
530 U.S.
arising
intentional
147-48,
120 S.Ct.
577 148-49, of Id. at S.Ct. genuine a matter law.” 120 ate a issue of material fact. The district court did not err in its alternative basis for awarding Tysinger relies on the third method of defendant. rebutting defendant’s reason. See John- (6th Co., 858, Kroger
son v. 319 F.3d Cir.2003) (observing Analysis the third method 3. Mixed Motive generally consists of evidence that other Alternatively, Tysinger argues that employees protected not in the class ought her claim analyzed as a “mixed favorably). though treated more Even she Palace, case. Citing motive” Desert Inc. v. Lam- presented refuting no evidence Chief Costa, 90, 539 U.S. S.Ct. position bes’s that the had a of “policy (2003), argues L.Ed.2d 84 that she light duty,” Tysinger poli- no contends the prove pretext by need not a preponder cy was an reason insufficient because evidence, ance despite defendant’s experiences of Landerman and Madden showing legitimate nondiscriminatory demonstrate the of a existence de facto actions, reason its presented for if she has duty “modified policy.” explained As showing that her above, Landerman Madden were not motivating also a factor. In such a “mixed situated to in the rele- case, contends, motive” respect working vant continue Douglas McDonnell burden-allocation capacities. in their normal did Neither framework set forth applica above they receive the more favorable treatment ble; only present need ie., sufficient evi sought by Tysinger, an accommodat- assignment. sim- dence to enable a trier of ing They reasonable fact ply continued their normal ca- that pregnancy conclude pacities despite temporary physical motivating was a factor. She contends the infirmities, an option was available to of a mixed existence motive defendant’s well, her. by exercised but by actions is substantiated evidence that Lambes did not
Hence,
Chief
view
as a
Tysinger has not demonstrated
falsity
disability requiring
accommodation.
defendant’s reason for
Moreover,
accommodating her condition.
all,
Palace,
First of
Desert
dealing with
if
even she were deemed to have
called
issue,
jury
instruction
not purport
sufficiency
question
of the reason into
application
to alter
of the McDonnell
through
ill-fitting comparables
evi-
Douglas
analysis
framework
pretrial
dence,
prima
case of pregnancy
facie
discrimination claims based
circumstan-
discrimination,
explained above,
is not
summary judgment
tial evidence at the
(in fact,
strong
so
it is incomplete) as to
Palace,
stage.
Desert
U.S.
rise
give
to an inference of unlawful dis-
(refusing
depart
F.3d a modifica- requires slight department, responded Palace Lambes that he Desert requirements of the pretext tion a disability did not believe framework). Douglas McDonnell obliged that the accommodate 71-72, way. dep. pp. in this Lambes 95- is evalu- Secondly, whether evidence 96, 145,147. JA case ele- in terms of ated ments, requirements, or a mixed pretext Far indicating from unlawful discrimina analysis apart the McDonnell motive animus, tory appears this statement to be framework, clear, abundantly it is Douglas entirely with the law. See consistent Gov event, plaintiff Tysinger in that bears any America, LLC, Speedway Super er v. 254 by a demonstrating the ultimate burden (S.D.Ohio 2002) (col 695, F.Supp.2d 705 preg- that of the evidence preponderance lecting recognizing pregnancy, cases atwas least a moti- nancy discrimination itself, disability is not a within the deny vating factor in the decision to meaning of the Americans with Disabilities duty assign- accommodating restricted Act); Co., Walker v. Fred Nesbit Distrib. Dews, (citing F.3d at ment. 231 1021 St. (S.D.Iowa 2004) 780, 331 789 F.Supp.2d Hicks, 502, v. Mary’s Honor Ctr. 509 U.S. Service, (same); Inc., Farrell v. Time 2742, 511, 113 S.Ct. L.Ed.2d 407 (N.D.Ga.2001) F.Supp.2d (1993)). also, Hill Lockheed Martin (same). deposition testimony Lambes’s Inc., Logistics Mgmt., F.3d therefore, not, support Tysinger’s (4th Cir.2004) (en banc) (observing post- theory that Lambes harbored an anti- regardless type of the Desert Palace in bias motivated even offered, direct evidence or circumstan- Hence, City’s Tys fluenced the decision. asserted, tial, regardless theory inger, plaintiff like the Reeves v. Swift motive, mixed ulti- single motive or Transp., 446 at has failed even to remains the question mate same: whether substantiating adduce evidence the exis has been produced sufficient evidence tence a “mixed motive.” finding protected a that the trait support Moreover, if Lambes’s testimony even actually employer’s motivated adverse action). constructs, potentially any revealing construed Under these bias, clearly personal could Tysinger’s hardly falls short of such bias have issue of fact. creating genuine motivating material been factor denying Tys- inger’s undisputed It is request. that the contends that depo- Lambes’s deny Tysinger decision testimony sition reveals unlawful dis- assignment City’s was consistent played a role crimination in the defen- policy duty assignments, prohibiting light Contrary decision. dant’s policy even Lambes had no Chief author- characterization, however, testi- Lambes’s ity to alter or circumvent. aff. Lambes suggest personal mony does or institu- ¶¶ 3,6, any JA It person- follows against pregnant tional employees. bias had, al may bias unsubstanti- asked Lambes was whether the record, present ated on the could not have an employee’s preg- Zanesville considered factor, a motivating been but would have nancy to a condition that it would have been, worst, at merely redundant of the reasonably accommodate by assisting impact of City’s controlling legiti- pregnant employee performing nondiscriminatory policy. mate insofar as the Further- duties assistance did more, above, unreasonably affect the City. Based on outlined decision to as, he training received Northwestern Uni- treat the same and not more *10 than, employees tempo- original, overly generous other favorably construction. duties rarily perform all their counts, unable to complaint The contains two each require- entirely consistent with the discrimination, alleging “pregnancy a form Pregnancy ments of Discrimination of sex discrimination” under federal law Act. law, respectively. and Ohio There simply viewed, the
However record evidence allegations are no of sex discrimination genuine insufficient to create issue apart pregnancy from discrimination. Summary judgment material fact. court correctly district concluded that Tysing- properly to defendant on awarded Tysinger’s allegations regarding defen- pregnancy er’s discrimination claims. grant position dant’s refusal to in position process- the detective bureau or a D. Sex Discrimination ing impound lot vehicles were included as When the district court awarded for her support claims that defendant summary to defendant on the wrongfully failed to accommodate her claims, pregnancy recog discrimination it pregnancy, separate to substantiate Tysinger may nized that have asserted sex discrimination claims. pregnancy-unrelated other sex discrimina claims, expressly tion to rule declined To extent Tysinger argues on them. the court viewed Specifically, claims, pregnancy discrimination on the complaint possibly alleging hand, one and other sex types of discrimi- absence, had, during her leave of claims, other, nation on the are evaluated applied position detec open standards, under two different she is passed tive bureau in favor and been over wrong. This court recently reiterated that applicant. Ruling a less senior male Douglas McDonnell burden-allocation defendant’s second motion for applies pregnancy framework discrimi- claims, judgment attacking any such just nation it claims does other Title district court as reconsidered its initial Reeves, VII discrimination claims. sessment complaint and concluded analysis Part F.3d at 641. of this has been alleged sex discrimi slightly pregnancy modified or clarified for apart alleged pregnancy- nation from the claims, Ensley-Gaines, per discrimination related there discrimination. court However, at 1224. Ensley- fore second motion for sum merely that compa- Gaines makes it clear mary judgment Tysinger’s and dismissed presented support rables of a putative sex discrimination claims pregnancy discrimination claim must be prejudice. evaluated terms of whether the com- ruling, this challenging similarly pared employees are situated in take with the district court’s issue ability inability Only work. if holding alleged any had not claim are situated in comparables apart of sex discrimination Rather, inability terms the their argues discrimination. any disparate work can received allegations discrimination treatment ought preg- evaluated have been both as pregnancy- to an give rise inference nancy and sex discrimina- Tysinger’s Despite based discrimination. tion claims. protests contrary, factor expressly properly considered in the all,
First of district court’s reconsid- analysis Tysinger’s preg- district court’s ered reading complaint nancy more accurate and reasonable than its discrimination claims. *11 argues I. Tysinger extent
Finally, to the considered ought the district court an veteran Tysinger eight-year Teresa sex separate merits discrimination Depart- Zanesville Police applied evidence that she claims based on pregnant learned Tysinger ment. she was month, August in the in The next after position not for was suspect, had an altercation awith bureau, argument similarly detective on her doctor recommended that she be all, reading unavailing. First of fair light duty during pregnancy. When reveals, as complaint the district court subsequently Police informed concluded, ultimately that no such claims Eric recom- Chief Lambes doctor’s Second, any pleaded. the merits mendation, he told there fatally by Tysing- such claims are undercut light duty positions were no available acknowledgment opening that the er’s own forced her take a leave of until absence in the applied for detective bureau was duty. full she could return to active is, opening an after all. That 2001, Tysinger gave March birth. She acknowledged learning later Cameron in June. returned work Bryant’s from the detective bu- departure Perhaps important the more facts January 2001 did not create an reau Tys- employees case involve two male who opening because the bureau had been inger claims were situated to her Bryant’s were as- over-staffed and duties yet preferential received more treat- by remaining sumed staff. The fact that by Department. ment and the passed position over for qua- Tom injured Officer Landerman his open give that was not even rise dricep in a non-work inci- muscle related an inference sex discrimination. It him physician dent. ordered Landerman’s follows that consideration of the merits of not to work he He wore while recovered. any sex claim separate such leg weeks, a metal brace on his for six De- have altered the outcome. significantly, which limited his movement properly granted summary fendant was he to work Depart- but continued at the plaintiff all of removed, ment. After Lan- the brace claims. derman had limp additional four telling He weeks. avoided Lambes Chief injury during of his the two weeks subse- III. CONCLUSION quent receiving injury. After a reasons, foregoing For the find we no conversation regarding judgment, error the district court’s injury, stay Landerman was not ordered hereby which is absence, AFFIRMED. home or into a leave but forced throughout entirety
continued injury. MARTIN, JR., BOYCE F. Circuit Detective Jeff Madden broke a toe on Judge, dissenting. off, taking right days his foot. After a few After reviewing majority’s opinion, I Miller, supervisor, his Captain asked Mad- respectfully must dissent. Given the fac- den to return to work his still despite case, summary judg- tual record in this having movement. limited Madden ment is and the should improper required to take a leave of absence remanded to the court for back district despite injury, request- his but in fact was proceedings. injury. further his superior ed to work with the *12 Landerman nor Detective Madden re-
ii. quested granted lighter or was work. This case comes before this Court at do, they however, What allowed summary stage. a judgment We review working despite was continue clear medi- summary judgment of novo. granting de cal ability infirmities which limited the City Eastpointe, Bennett of jobs. do their This (6th Cir.2005). difference treatment reviewing “In 817 part ways causes motion, majority’s me credibility judgments reasoning. weighing and the evidence Rather, prohibited.
are the evidence The heart of Tysinger’s claim is that she light in the should viewed most favor was treated differently from Landerman non-moving party.” (citing to the able Id. and experienced Madden. Both men Inc., Lobby, Anderson v. Liberty 477 U.S. physically debilitating injury which ren- 242, 255, S.Ct. L.Ed.2d physically incapable dered them of com- (1986)). case, In this the nonmoving party pleting the tasks required them in their Tysinger, and therefore all is evidence job descriptions. superiors Yet when their light should be viewed in the favor most explicitly injuries were made aware of the able to her. injuries and the effect those would have on by pregnancy, child- “[WJomen affected performances, they their were allowed to birth, or related medical shall conditions up,” continue and it “tough “suck employment- be treated the same for all out,” it “grin and bear it”—whichever purposes persons related ... as other not catch-phrase you masculine wish to apply. ability so affected but in their similar contrast, Tysinger given was 2000e(k). inability § to work.” U.S.C. up” option. “suck it ap- When states, majority prima As the proached Chief made him pregnancy discrimination is established aware of her condition that would limit her (1) (2) by showing plaintiff pregnant; was complete duties, physical (3) plaintiff qualified position; was Lambes forced her to take leave of ab- plaintiff employment suffered an adverse opportunity sence. was not given She (4) action; and there is a nexus between reason, it out.” “tough taking The pregnancy and the adverse employ- light to Tysing- facts most favorable Maj. Opn. action. ment 572-73. er, clear: quite pregnant. agree majority I with the Department The Zanesville Police has thus first has demonstrated the three elements two its employees: instituted standards for prima pregnancy of a facie case of discrim- employees complete physi- unable to I Specifically, agree ination. ma- with the cal due to duties a condition other than jority’s em- determination the adverse may working through continue ployment action of Zanesville limitation, pregnant employees while “by denying Tysinger was twofold accom- are to take a forced leave absence. I and, modating work within her restrictions this believe that different treatment of requiring her to take extended leave of similarly situated individuals demonstrates Maj. absence.” at 573 Opn. (emphasis a clear forced nexus between the leave added). I partially agree also with the and, Tysinger’s absence majority’s conclusion that has therefore, would find that she has fulfilled failed to demonstrate she was treated the fourth element of her facie case. differently than her situated male counterparts majority attempts limit this with to the extent that she affidavit, duty. quote work Neither from Lambes’s which Officer position” all the duties willing per- she been
he stated “[h]ad was, therefore, work, different from Madden duty full form Maj. Opn. ros- Landerman. at 575. How- active been removed However, ever, it than the condition Maj. at 574. no different Opn. ter.” of absence was found two men. clear the forced leave in which the those majority knew, choice. As the both men either superiors *13 states, Tysinger Lambes told “she of opinion explicitly, or that because implicitly work until she “ready to be off was injuries, they would have were not and their duty,” Maj. active able to to full return to all the duties” of their able added), and Opn. (emphasis at 571 respective positions. Officer Landerman to take an leave “requir[ed] her extended a metal workplace his walked around absence,” was not Maj. Opn. 573. This of a limp for six and for four brace weeks Tysinger either a case which demanded addition, after In Lam- weeks that. Chief Instead, light duty a leave of absence. inju- explicitly bes was made aware Tysinger pregnan- about the told Lambes after was ry within two weeks Landerman request That cy requested light duty. injured, when the two men discussed denied, then forced was and she was to injury and it would affect Lander- how take a of absence. On the other leave job performance. for Officer man’s As hand, Landerman and Madden found when Madden, was in- Captain Miller knew he to that of themselves in a similar situation jured taking time off because Madden not take Tysinger, they were forced to toe, to his at which Miller point due broken leave. asked called Madden and him come despite physically-limit- back to work majority
The believes that Madden and injury. ing Just because Madden not more Landerman did receive favorable explicitly request Landerman failed Tysinger treatment than because “[i]t duty change fact that light does they undisputed were not an superiors their were aware their limita- of light in the accommodation form silently agreed tions and with the two em- Maj. Opn. at 574. duties.” This ployees ignore those limitations and analysis completely ignores the more se- have them with it.” “bear employment vere action taken in adverse Tysinger’s namely, the leave ab- Tysinger introduced case— has Department sence that the Police forced Tysing- made when Lambes was aware of her to take. While the men two were pregnancy, er’s he forced her into a leave working despite allowed to continue absence, requiring to use her infirmities, Tysinger was forced out of her full, days sick until she could return to job. That told Chief Lambes duty. According Tysinger’s active de- pregnant requested light that she was position, me I was Chief Lambes “told change the fact that she slip got saying done until I I could still situated to Landerman both full, duty.” return to active At a mini- and Madden. Both Landerman and Mad- mum, the record is unclear to whether superiors they den’s knew that were in- force into Lambes intended to jured incapable completely fulfilling using days, her sick thus presenting duties, job yet both allowed on this point. issue material fact Given working. continue the facts of this case and all inferences summary favor of majority Tysinger, by Tysinger, judgment holds that work, light present City favor of the was not requesting “did Zanesville Bennett, employer ready herself at 817 proper. to her and able in reviewing pregnant choice. As to the (holding Tysinger, the motion, judgment “the evidence should be City away. took choice dispa- This viewed in most favorable rate treatment exclu- based non-moving party”). eyes Chief sively ap- and it Lambes, Tysinger “was done” until she pears to have violated Title VII.I longer pregnant. was no grant summary for the and would remand the case further majority believes that proceedings.1 asking for more favorable treatment than Landerman and Madden when she re- continue quested telling after III. Quite pregnancy. Chief Lambes foregoing reasons, For the I respectfully contrary, she was not more requesting dissent the majority opinion. treatment, only *14 but the same favorable
treatment. should had the have similarly-situat- opportunity
same namely, superiors upon
ed men her had— a condition
learning of which limited her duties,
ability she should keep working. allowed to Title been pregnant VII states women “shall be Agnieszka KIJOWSKA, the same for all employment-relat- treated Plaintiff-Appellee, ed ... purposes persons as other not so similar in affected but or ina- 2000e(k). bility § to work.” U.S.C. In Troy HAINES, Defendant-Appellant. L. case, similarly-situated men were al- No. 06-2424. lowed to decide for themselves whether keep despite physical Appeals, United States Court of Looking limitations. at the facts Seventh Circuit. Tysinger, most favorable to she was choice, given but instead was 20, July Argued 2006. forced to take a leave of absence. July Decided 2006. By approaching superior start- Sept. Opinion dialogue ing a about alternative work as- needs, to fit signments physical Tys-
inger attempted prudent to do what was well-being.
for her own Chief Lambes request grounds
took this force her contrast,
into a of absence. leave Mad- supe-
den and Landerman also made their
riors of their physical aware limitations yet were allowed the contin- choice to officers, working. police
ue As to its male appears pro- of Zanesville to be Toledo, (6th Cir.2000), legitimate 1. Because the has offered no nondiscriminatory forcing reason for would not to the lead dismissal of absence, burden-shifting to take a leave of Maj. Opn. claim. 576-77. in Cline enumerated v. Catholic Diocese of