Plaintiff Bonnie M. Kerzer appeals from a grant of summary judgment entered in the United States District Court for the Southern District of New York, (Haight, J.), against her on her claim of employment discrimination based on pregnancy, brought pursuant to the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).
Reversed and remanded.
BACKGROUND
Kingly Manufacturing (“Kingly”) is a clothing wholesaler located in Manhattan engaged primarily in the sale of women’s house coats and sleepwear. In July 1990, Kingly hired James Folkoff (“Folkoff’) to establish a women’s sportswear division at Kingly. On Folkoffs recommendation, Kingly also hired Kerzer in July 1990 to work as a clothing designer in the sportswear division. Sometime thereafter, and also on Folkoffs recommendation, Kingly hired Zenaida DeLeon (“DeLeon”) to work as a pattern maker in the sportswear division. Kerzer, Folkoff, and DeLeon formerly worked together at Colonial Corporation, a now defunct clothing wholesaler.
Kingly’s sportswear division services two clients, the GAP and Target Stores (“Target”). According to Kerzer, although her position at Kingly was that of “designer,” she had additional responsibilities and performed different services for the GAP and Target. With respect to the GAP, Kerzer claims she performed product development, including researching and developing fabrics, embroideries, and trims, and ensuring the accuracy of prints, colors, specifications, and garment construction. With respect to both customers, Kerzer claims she performed duties related to sales, including,
inter alia,
meeting
In or about June 1992, Kerzer informed Kingly that she was pregnant and would be taking maternity leave beginning in December 1992. On December 14, 1992, Kerzer began her maternity leave. On January 17, 1993, she gave birth. According to Kerzer, Folkoff called her about two weeks later to ask her to move her return date up to March 1, 1993, because there was much work that Kingly needed her to do. According to Kingly, March 1 had always been Kerzer’s scheduled return date.
On February 25, 1993, Kerzer, who was physically able to return to work on March 1, called Kingly to confirm her return date. Later that day, Mintz returned Kerzer’s call and told her she was fired. By letter dated March 2, 1993, Kingly confirmed that Ker-zer’s employment had been terminated and informed her that her health insurance would continue until March 31, 1993. Kingly also included a check for two weeks’ severance pay with the letter.
On June 24, 1993, Kerzer filed a charge of pregnancy discrimination with the United States Equal Employment Opportunity Commission (“EEOC”). On September 30, 1994, the EEOC issued a right to sue letter. On December 27, 1994, Kerzer commenced the instant action claiming that Kingly discriminated against her on the basis of pregnancy in violation of the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k), contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991.
In support of her allegation of pregnancy discrimination, Kerzer presents both direct and circumstantial evidence. Specifically, Kerzer states by affidavit that Mintz once said in late 1990 “that an employer could easily get away with [discharging a pregnant employee], by stating that the position was eliminated,” Kerzer Aff. ¶ 35, and that in the summer of 1992, following her announcement that she was pregnant, “Mintz became downright unfriendly toward [her],” id. ¶ 38. Furthermore, Judith Badillo (“Badillo”), a former Kingly employee, states by affidavit that she once heard Mintz remark that Kerzer’s pregnancy “was a sign that [Kerzer] “was lazy.’” Badillo Aff. ¶ 37.
Moreover, Kerzer claims that Mintz informed her, in early December 1992, that when she returned to work after her maternity leave she would be trained on a Computer Aided Design (“CAD”) system. Kerzer asserts, however, that shortly after her discharge, Kingly hired “another designer named Heather” who was assigned to Ker-zer’s former office and who used the CAD. The “Heather” to whom Kerzer refers is Heather Bahorsky (“Bahorsky”), an employee who began working at Kingly on a part-time basis in May or June 1993, and on a full-time basis in July 1993, approximately two to four months after Kerzer was fired. Bahor-sky was not pregnant when Kingly hired her. 1 Badillo corroborates Kerzer’s assertions and states that:
Shortly after [Kerzer’s] departure, a designer named Heather was hired by Kingly; they stated that her purpose was solely to design women’s sleepwear; but she actually did design children’s wear as well, and performed a number of other tasks previously performed by [Kerzer]. It was obvious that this person was hired to replace [Kerzer], even though Kingly made efforts to disguise this fact. Heather was put in [Kerzer’s] former office.
See id. ¶ 8.
Kerzer further claims that Folkoff telephoned her at her home in early February 1993 and asked her to move her anticipated return date up because there was a high volume of work to be done at Kingly. She argues that this demonstrates that her services were still needed at Kingly. Kerzer also points to the fact that she was dismissed over the telephone shortly before her sched
In defense, Kingly claims that it eliminated Kerzer’s position because Kerzer’s services were no longer required due to the fact that the sportswear division’s two clients, the GAP and Target, designed their own garments. Kingly further claims that it did not replace Kerzer with Bahorsky or anyone else. In support of these assertions, Kingly submits affidavits from Mintz, Folkoff, Ba-horsky, and other Kingly employees.
On August 28, 1996, Kingly filed a motion for summary judgment. The district court granted Kingly’s motion holding that Kerzer failed to establish a prima facie case of pregnancy discrimination. Furthermore, the district court held that even if Kerzer had established a prima facie case, she had failed to demonstrate that Kingly’s proffered reason for terminating her employment— namely, its realization during Kerzer’s maternity leave that Kerzer’s services were no longer required—was pretextual.
This appeal followed.
DISCUSSION
I
A. Summary Judgment
We review a district court’s grant of summary judgment
de novo. See Reeves v. Johnson Controls World Servs., Inc.,
B. Pregnancy Discrimination Act
Kerzer brought this action against Kingly for allegedly discriminating against her on the basis of pregnancy in violation of the PDA. The PDA provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise.” 42 U.S.C.2000e(k).
Because Kerzer alleges discriminatory treatment in violation of Title VII, the Court applies the three-step burden shifting analysis of
McDonnell Douglas Corp. v. Green,
If the plaintiff demonstrates a
prima facie
case, a presumption that the employer unlawfully discriminated against the employee is raised,
see Fisher,
II
A. Proof of Prima Facie Case
Both parties agree that for purposes of Kingly’s summary judgment motion, Ker-zer satisfied the first three elements of a prima facie case. The dispute thus revolves around the fourth element, i.e., whether Ker-zer proved that her position remained open and was ultimately filled by a nonpregnant employee, or, alternatively, whether her discharge occurred under circumstances giving rise to an inference of unlawful discrimination.
In granting summary judgment for Kingly, the district court concluded that Kerzer’s evidence, consisting of her and Badillo’s affidavits, was insufficient to establish a genuine issue of material fact as to whether Kerzer was replaced. This was error.
Kerzer’s evidence in support of her claim pales in volume and comparison to the numerous Kingly affidavits, including those of Mintz, Folkoff, Bahorsky, and other Kingly personnel, stating that Kerzer was not replaced by Bahorsky. Nonetheless, after viewing the evidence in the light most favorable to plaintiff, as we are bound to do, we conclude that Kerzer’s evidence is sufficient to enable a jury reasonably to find that Kingly replaced her with a nonpregnant employee.
As stated above, Kerzer and Badillo state in their affidavits that Kingly hired Bahorsky
Alternatively, Kerzer also submitted evidence from which a jury reasonably could conclude that Kerzer’s discharge occurred under circumstances giving rise to an inference of discrimination. 2 First, Folkoffs alleged call in early February 1993 asking Kerzer to return to work earlier than scheduled because there was much work to be done at Kingly suggests that Kerzer’s services were still needed. Likewise, Kerzer’s dismissal over the telephone shortly before her scheduled return date and directly following her telephone call to Kingly to confirm her return date casts doubt on Kingly’s contention that it decided to terminate Ker-zer’s employment because it realized that Kerzer’s services were no longer needed. This evidence, combined with Mintz’s alleged comments and alleged change in attitude toward Kerzer and the hiring of, and services performed by, Bahorsky, supports Kerzer’s allegation that she was discharged under circumstances giving rise to an inference of discrimination.
In short, viewing the evidence in the light most favorable to Kerzer, we conclude, contrary to the district court, that Kerzer’s evidence was sufficient to raise a genuine issue of material fact as to whether Kerzer was replaced by a nonpregnant employee and as to whether Kerzer’s discharge occurred under circumstances giving rise to an inference of unlawful pregnancy discrimination. Accordingly, the district court erred in holding that Kerzer had failed to submit evidence from which a jury reasonably could find that Kerzer had established a prima facie case of pregnancy discrimination.
B. Kingly’s Reason for Discharging Plaintiff
The district court further determined that even if Kerzer had established a prim a facie case, summary judgment for Kingly was appropriate because Kerzer failed to demonstrate that the legitimate nondiscriminatory reason proffered by Kingly for discharging her was a pretext for discrimination. This too was error.
As discussed above, once a plaintiff establishes a
prima facie
case of pregnancy discrimination, the burden is on the defendant to produce evidence “which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.”
Hicks,
Here, Kingly presented various affidavits to show that it discharged Kerzer because her services were no longer required, a decision Kingly claims it reached during Kerzer’s maternity leave but informed Kerzer of only on the eve of her return. The district court properly concluded that this evidence was sufficient to rebut the presumption of pregnancy discrimination raised by Kerzer’s prima facie case. Accordingly, the burden returned to Kerzer to show by a preponderance of the evidence that Kingly’s stated reason was pretextual.
C. Pretext for Pregnancy Discrimination
To establish that Kingly’s proffered reason for discharging Kerzer was pretextual, Ker-zer must demonstrate through direct, circumstantial, or statistical evidence that Kingly’s reason for discharging her was false and that it was more likely that Kingly discharged her because she became pregnant and took maternity leave.
See Gallo,
To demonstrate pretext, Kerzer relied, as she was entitled to do, on the same evidence she used to support her
prima facie
case.
See id.
Specifically, Kerzer relied on (1) Mintz’s alleged comments that (a) an employer could get away with discharging a
We conclude, viewing all the evidence submitted by Kerzer, that Kerzer has raised a genuine issue of material fact as to whether Kingly’s reason for terminating Kerzer’s employment is false and as to whether it is more likely that Kingly discharged Kerzer because she became pregnant and took maternity leave. Accordingly, the district court erred in finding, as a matter of law, that Kerzer failed to demonstrate pretext.
CONCLUSION
The judgment appealed from is reversed and the case is remanded for further proceedings consistent with this opinion.
Notes
. Although the record is silent on this matter, the parties do not dispute this fact.
. The district court did not consider this alternative means of establishing the fourth element of a prima facie case, presumably because the parlies focused only on whether Kerzer had presented facts from which a jury could find that she had been replaced.
