Norris v. City of Portland

          ORDER ON DEFENDANT'S PARTIAL MOTION FOR SUMMARY JUDGMENT

          Nancy Torresen, United States Chief District Judge

         Before me is the Defendant's partial motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 17). The motion is GRANTED IN PART and DENIED IN PART.

         BACKGROUND

         This matter arises out of the employment termination of Plaintiff Emily Norris. Norris began working for Defendant City of Portland (the “City”) in August of 2015 as a Financial Eligibility Specialist. In her first seven weeks of employment with the City, she took 11 hours of vacation time, 3.5 hours of paid sick time, and 22.5 hours of unpaid sick time, for a total of 37 hours of leave. On October 1, 2015, Norris told her supervisor that she was pregnant. He fired her on October 6, 2015. The City told Norris that it terminated her for excessive absenteeism. This suit followed.

         In her four-count Complaint, Norris alleges that the City discriminated against her in violation of the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k), and the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4572-A, and retaliated against her in violation of the MHRA, 5 M.R.S.A. § 4633. She also brings a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause. The City has moved for summary judgment on Norris's claims for discrimination under the PDA and MHRA, Counts One and Two, as well as her Equal Protection Claim, Count Four.^[1] Def.'s Partial Mot. for Summ. J. 1. The City has not moved for summary judgment on Norris's retaliation claim contained in Count Three.^[2]

         DISCUSSION

         Norris has agreed to dismiss her Equal Protection claim, Pl.'s Opp'n to Def.'s Partial Mot. for Summ. J. 25 (ECF No. 24), which leaves her claims for discrimination under the PDA and the MHRA pending in this motion. These claims are analyzed coextensively. Vachon v. R.M. Davis, Inc., No. 03-cv-234-PH, 2004 WL 1146630, at *9 (D. Me. Apr. 13, 2004).

         Title VII makes it unlawful for an employer “to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's . . .sex.” 42 U.S.C. § 2000e-2(a)(1). The PDA, enacted in 1978, amended Title VII to provide that:

The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and 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.

42 U.S.C. § 2000e(k). Accordingly, “Title VII's ban on gender discrimination encompasse[s] pregnancy-based discrimination.” Smith v. F.W. Morse & Co., 76 F.3d 413, 420 (1st Cir. 1996).

         “The inquiry in a Title VII disparate treatment case is whether the defendant intentionally discriminated against the plaintiff on the basis of a protected attribute.” Cumpiano v. Banco Santander P.R., 902 F.2d 148, 153 (1st Cir. 1990). Where, as here, the plaintiff lacks direct evidence of intentional discrimination, the McDonnell Douglas burden-shifting framework applies. Under this framework, the plaintiff must first establish a prima facie case, which triggers an inference of discrimination. Id. The burden of production then shifts to the employer to articulate “some legitimate, nondiscriminatory reason that justifies the firing.” Id. If the employer meets this burden, then the plaintiff must establish that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

         The City contends that it is entitled to summary judgment because Norris cannot make out a prima facie case of pregnancy discrimination. Def.'s Partial Mot. for Summ. J. 5. According to the City, a prima facie case of pregnancy discrimination requires Norris to show “(1) that she was pregnant; (2) that she was capable of adequately performing her job; (3) that her employer took an adverse action against her; and (4) that her employer treated her differently than it treated other, non-pregnant employees who had a similar ability or inability to work.” Def.'s Partial Mot. for Summ. J. 5 (quoting Green v. New Balance Athletic Shoe, Inc., 182 F.Supp.2d 128, 135 (D. Me. 2002)). The City zeros in on the fourth prong, arguing that Norris's claim fails because she cannot “show that the City treated her differently from similarly situated employees.” Def.'s Partial Mot. for Summ. J. 5.

         The City's argument is foreclosed by First Circuit precedent. Contrary to the City's argument, Norris is not required to show that she was treated differently than other similarly situated employees outside the protected class as part of establishing her prima facie case. Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999). The First Circuit rejected this very argument in Conward, where it held that “the time to consider comparative evidence in a disparate treatment case is at the third step of the burden-shifting ritual, when the need arises to test the pretextuality vel non of the employer's articulated reason for having acted adversely to the plaintiff's interests.” Id. More recently, in Kosereis v. Rhode Island, the First Circuit stated:

Our holding in Conward makes sense and is attuned to the applicable law. We have described the prima facie case as a “small showing, ” that is “not onerous, ” and is “easily made.” The pretext analysis, on the other hand, is more demanding. Thus, Conward presents the applicable rule: in disparate treatment cases, comparative evidence is to be ...