United States District Court, D. Maine
ORDER ON DEFENDANT'S PARTIAL MOTION FOR SUMMARY
Torresen, United States Chief District Judge
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.
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
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. 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.
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,
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).
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).
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.
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
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 ...