In December of 2013, the United States Court of Appeals, Sixth Circuit heard a case that involved a certified nursing assistant where her physician imposed a lifting restriction during her pregnancy. (See Latowski v. Northwoods Nursing Center, 549 Fed Appx. 278 (6th Cir. 2013)). The plaintiff claimed she was discriminated against by having to obtain a doctor’s note stating that she had no work restrictions when the defendant learned she was pregnant and terminated her when her doctor imposed a restriction. Id.
Plaintiff began working for the defendant in July of 2007. In September of 2008 she was still receiving good marks. Plaintiff became pregnant in the summer of 2008. Id. After her last good report, the defendant after learning plaintiff was pregnant, asked her to obtain a doctor’s note stating that she had no employment restrictions. Id. She did get a note, but it said she could not lift over 50 pounds. Id. The defendant terminated plaintiff saying that they would not accommodate her but only restrictions resulting from work-related incidents. Id. Plaintiff one day was escorted off the premises when she tried to start her shift. Id.
Plaintiff filed her EEOC charge of pregnancy discrimination. She then filed a pro se complaint. That means she did not have a lawyer. On appeal it is not clear if she had a lawyer.
A pregnancy discrimination case is shown by the plaintiff by showing 1) she was pregnant, 2) she was qualified for her job, 3) she was subjected to an adverse employment decision, and 4) there is a nexus between her pregnancy and the adverse employment decision. (cites omitted). The court found that the plaintiff did show all of these elements. She showed the fourth element by showing that other employees with similar lifting restrictions were treated more favorably by assigning them to “light duty.” Id.
The defendant allegedly showed their legitimate, nondiscriminatory reason by using an economics based policy. The plaintiff then had the burden of showing this as pretext for discrimination. Id. She had to show the proffered reason 1) has no basis in fact, 2) did not actually motivate the defendant’s challenged conduct, or 3) was insufficient to warrant the challenged conduct. Id. To this, the court did find that a jury could find this reasons so lacking in merit as to be pretext for discrimination. Id. Also, the plaintiff gave the court five different statements that supported her position. Id. The remarks are also substantively relevant to show discriminatory animus because they were made directly in relation to plaintiff’s termination. Id.
As to the ADA discrimination claim, this claim was not reversed and still dismissed in that the plaintiff never did present any evidence that the defendant thought the pregnancy was “high risk”. Being pregnant is not a disability under the ADA. Plaintiff has not presented evidence that the defendant regarded her as disabled. Id.
Finally, as the FMLA interference claim, in that she never took the FMLA her claim never ripened and she cannot prove a prima facie case of FMLA interference. Id.
If you have been the subject of a Kentucky Pregnancy Discrimination Act (PDA) ADA and FMLA case, please call and speak to a Kentucky Pregnancy Discrimination Act (PDA) ADA and FMLA lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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