Full opinion text
MEMORANDUM AND ORDER TRAGER, District Judge. Plaintiff, Christine Dimino (“Dimino”) brings a twelve count complaint against defendants, Staten Island Railway/Staten Island Rapid Transit Operating Authority (“SIRTOA”), New York City Transit Authority (“TA”), and John Long individually and in his capacity as General Superintendent of the SIRTOA police department, alleging various charges of discrimination and retaliation based on employment disputes she, a SIRTOA Police Officer, had with her employers when she became pregnant and requested light or restricted duty. Dimino seeks damages as well as declaratory and injunctive relief. Defendants move for summary judgment dismissing all counts. Defendants move separately to strike critical portions of the evidence Dimino has submitted. Background In 1997, Dimino was one of sixteen commissioned SIRTOA police officers. See Defs.’ Local Rule 56.1 Statement (herein R.56.1) ¶ 1. SIRTOA police officers, commissioned by New York State’s Superintendent of Police, carry weapons and have the authority to arrest people. See id. ¶ 2. Their basic duties, however, are to patrol and protect SIRTOA properties. See id. ¶ 3. The position can be hazardous, and plaintiff herself has been injured on the job. In June of 1996, she was struck in the lower abdomen by a falling or dislodged “ballast” while pursuing or apprehending a suspect. See Dimino Accident Report dated 6/20/96, Long Deck, Ex. A. On September 17, 1997, Dimino approached her supervisor, John Long (“Long”), the Chief and General Superintendent of the SIRTOA police department, and requested that she be placed on “restricted duty” because she was pregnant. See Second Am. Compl. (herein “Compl”) ¶¶ 19-21. There is some dispute as to what was actually said in this conversation, as well as disagreement over what was meant by what was said. It is not disputed, however, that at this time Dimino gave Long two notes. The first, a letter from Dimino herself, read as follows: Dear Chief Long, Attached is a letter from my physician indicating I am pregnant. It is at this time I request to be placed on restricted duty to avoid complications in my pregnancy. I am sure you would agree it would be unwise for me to take on work that would involve danger to my abdomen or an exposure to falling which could result in losing my unborn child. There is also a risk of danger to the public I protect, my fellow officers and not to mention a serious liability exposure. Thanking you in, advance for your prompt reply regarding this important matter. Respectfully, P.O. Christine Dimino Pl.Ex. In Opp’n (herein “Pl.Ex.”) 6. The second note was from Dr. Arbucci, Dimino’s OB/GYN. It was handwritten, but reasonably legible: To whom it may concern: Please be advised that Christine Dimi-no is pregnant her work should reflect this accordingly. Frank Arbucci, M.D. Pl.Ex. 7. Defendants have represented that SIR-TOA’s official policy is that no “restricted” or “light” duty is available for medically limited personnel. Plaintiff contends, however, that SIRTOA’s actual policy is not as defendants assert. In any case, in response to Dimino’s request, Long called SIRTOA’s Assistant Director of Personnel, (who was actually the head of personnel because there was no Director) AnnMarie T. Joseph (“Joseph”), who advised Long that Dimino should be sent to Transit Medical (“TMed”), a clinic operated by the TA, for an evaluation. TMed conducts medical evaluations of SIRTOA employees. See R.56.1 ¶ 8. Dimino visited TMed the following day, September 18, 1997, where she was seen by Dr. Johnson who completed a “G-46” medical evaluation form. See Schoolman Deck, Ex. H. The form has spaces where the physician may indicate that an employee is medically qualified to perform “Full Work,” “Full Work in Current Job,” “Restricted Work,” or “No Work.” Id. There is evidence that TMed had been instructed not to recommend either of the middle two work categories. Joseph testified at her deposition that she and an assistant periodically go through stacks of unused G-46 forms crossing out those spaces. See Joseph Dep. at 23-24. Indeed, those spaces had been crossed out on the form Dr. Johnson used September 18. Dr. Johnson made no specific recommendations nor any evaluation of Dimino’s work status. In the space reserved for the physician’s comments, Dr. Johnson stated that he required additional information. In addition Dr. Johnson wrote a note to Dr. Arbucci: Dear Dr. Arbucci: Please give us a diagnosis What in your opinion the work status must be? + the basis for this. If the above client may not work — why? Please write a note completely answering all the above questions[] Give all diagnoses. The employee’s next scheduled visit is 9/25/97 Schoolman Decl., Ex. H. On September 19, 1997, Dimino brought the G-46 form back to Long who put her on “medical leave.” Long Deck ¶ 4(b). Medical leave is unpaid. Long has represented that he was required to do this because: (1) Dimino had represented she was unfit for duty; (2) she had been sent to TMed and not been deemed ready for “Full Work” by a TA doctor; and (8) it was his understanding that SIRTOA did not assign officers restricted duty. See id. At that time, Dimino apparently requested a description of her duties from Long so that she could be evaluated pursuant to that job description. See PL Counsel Letter to Long dated 9/24/97, PLEx. 10. This request was repeated in letter form by Dimino’s attorney on September 24, 1997. See id. On September 25, 1997, or September 30, 1997, Long delivered such a description, See PLEx. 8, but the source of the listed requirements is not clear. Plaintiff contends that the job’s actual, and less onerous requirements, are laid out in a separate description. See PLEx. 9. As far as the record shows, however, neither job description reached Dr. Arbucci before the critical events that form the basis of this lawsuit took place. Certainly, neither job description influenced a diagnosis or recommendation from Dr. Arbucci. On September 24, 1997, Dimino presented Long and TMed with an additional handwritten note from Dr. Arbucci which was presumably in response to Dr. Johnson’s note of September 18,1997: To whom it may concern: Please be advised that [Cjhristine may function as a Police officer I do not want her to have duties which could [unintelligible] in physical trauma to her abdomen. All other work is fine. Frank Arbucci 9/23/97 PLEx. 7. That same day, September 24, 1997, TMed filled out a G-46 form establishing that Dimino was qualified for “No Work” for one week and scheduling another examination on October 1, 1997. Schoolman Deck, Ex. H at 4. This form appears to have been completed by a Dr. Gensor. On September 26, 1997, however, Dr. Gensor filled out an “amended copy” of the G-46 on which he checked the “Restricted Work” box. Id. at 5. It is not clear what prompted the need for this amendment, but it may have been in response to Dr. Arbucci’s note of September 24. Dr. Gen-sor’s diagnosis was applicable again for only one week. It should be noted that this G-46 is the only one in the record on which the “Restricted Work” box does not have a line through it. In the space for physician comments, Dr. Gensor wrote: “Restricted duty as per private MD: Employee should avoid duties which could result in physical trauma to her abdomen.” Id. On October 15, 1997, Dr. Gensor filled out a third G-46 form on which he repeated his restricted duty diagnosis, extended it for one month, and scheduled another visit for November 13, 1997. Id. at 6. Enter the Legal System In the midst of Dimino’s interactions with Long, SIRTOA personnel, and TMed, Dimino initiated legal action. It is not clear at what point Dimino initially retained counsel in relation to her dispute with SIRTOA; but on September 24, 1997, Dimino’s counsel sent Long a letter referencing an EEOC complaint Dimino had filed two days earlier, on September 22, 1997. That complaint asserted that Dimi-no was able to perform all of her duties, was physically fit, would not be perceived by the public as pregnant (presumably because she was not yet “showing”), and had requested that she receive restricted duty, to which she was entitled, in the future. See EEOC Compl. ¶ 5, quoted at Compl. ¶ 58; Compl. ¶ 67. It also alleged that Dimino was being discriminated against because of her pregnancy and because she was being perceived as disabled. See id. at EEOC Compl. ¶ 4. Counsel’s letter to Long began with the statement that counsel “represented] Christine Dimino in connection with her legal rights related to employment issues including, inter alia, her right to work as a police officer for [SIRTOA] while she [was] pregnant.” PLEx. 10, at 1. The letter advised Long of the EEOC complaint and reiterated the facts outlined supra. The letter ended as follows: “Please refer this letter to legal counsel with a request that I be contacted forthwith. This letter is written without prejudice to Officer Dimino’s legal rights in the event litigation proves necessary. We sincerely hope that will not be the case here.” Id. at 2. Richard Dreyfus (“Dreyfus”), an attorney for the Transit Authority, received a copy of this letter on September 26, 1997. See Decl. of Richard Dreyfus (herein “Dreyfus Decl”) ¶3. That same day he spoke with “high-level SIRTOA personnel, had telephone discussions (and exchanged [versions of a letter for Dimino to sign]) with [plaintiffs counsel] ... in an attempt to settle substantial parts of Ms. Dimino’s claims.” Id. ¶ 4. After receiving a draft of the letter, or statement, Dimino was to sign, plaintiffs counsel faxed Dreyfus a proposal for a statement using different language. Dreyfus phoned plaintiffs counsel and left a message on her answering machine informing her that her changes were not “appropriate,” Dreyfus Decl. ¶ 7, and that he would leave the original statement at the station for Dimi-no to sign. The statement prepared by Dreyfus stated: I, Christine Dimino, at the present time can perform my full duties as a police officer for the Staten Island Rapid Transit Operating Authority. I am physically and medically capable of performing these duties and hereby withdraw my request for restricted duty due to my pregnancy. Should my condition change so that I am not capable of performing my full duties as a police officer, I may submit documentation concerning my medical condition at that time for further consideration consistent with the policies of the Staten Island Rapid Transit Operating Authority. Pl.Ex. 11 at 1. The version plaintiffs counsel had proposed read: I, Christine Dimino, can perform my full duties as a police officer for the Staten Island Rapid Transit Operating Authority at the present time, just as I have performed those same duties in the past. I consider myself to be physically capable to perform the duties to which I am now assigned. Compl. ¶ 47. Dreyfus has asserted that he rejected- the counter-proposal as ambiguous because it referred to the duties to which Dimino was “now assigned” as opposed to all of the duties of a police officer. See Dreyfus Decl. ¶ 7. The following day, Saturday, September 27, 1997, Dimino showed up for work. Long had called her the previous evening and informed her that she could return to wdrk but that there would be a statement for her to sign when she arrived. Dimino does not recall whether she spoke to her counsel regarding the statement prior to arriving at work Saturday. See Dimino Dep. at 63. When Dimino arrived at work, Sergeant Lane, the ranking officer on duty, presented her with the statement. Dimino refused to sign it as written. Instead, Dimino crossed out all but the first sentence of the statement and, thus, signed a statement asserting: I, Christine 'Dimino, at the present time can perform my full duties as a police officer for the Staten Island Rapid Transit Operating Authority. Pl.Ex. 11 at 2. Sergeant Lane then called Long and informed him that Dimino had refused to sign the statement as written. Long talked with Dimino on the phone and told her that if she did not sign the statement as written she could not work. Dimino continued to refuse to sign more than the first sentence, and Long ordered her to leave work. A little more than nine months later, on June 11, 1998, Dimino apparently returned to work following what Joseph characterized as “maternity leave.” Joseph Decl. ¶ 3. Defendants have asserted that, at some point in the intervening time, Dimino apparently received Unemployment Insurance Benefits and Short Term Disability benefits. See Schoolman Decl. ¶ 3. It is not clear whether Dimino is presently working for SIRTOA. Discussion The parties submitted this motion for summary judgment, fully briefed, on May 21, 1999. The record was later supplemented by a letter motion to strike various portions of plaintiffs evidence. Parties presented oral argument on the motion on June 8, 1999. At oral argument, the conclusions the court had tentatively reached on the basis of the papers then submitted by the parties were explained. The parties were then allowed time to dispute the conclusions with which they disagreed. As will become evident from the following discussion, the events surrounding the statement SIRTOA provided to Dimino on September 27,1997, are critical to many of the court’s conclusions on particular counts. Defendants have argued that those events should be excluded from evidence, pursuant to Fed.R.Evid. 408, because they related to negotiations to settle or compromise a dispute and, thus, could not form the basis for a denial of summary judgment. The parties were permitted to file supplemental letter briefs on this issue. Additional evidence on this and, at the request of the court, one other issue was allowed. The evidentiary issue is addressed infra, part (7). The supplemental material has been considered, and the following conclusions have been reached. (1) Counts One, Eight, Nine, and Twelve— Pregnancy Discrimination In Count One, Dimino alleges that defendants violated Title VII and the Pregnancy Discrimination Act either by not allowing Dimino to work at her job, despite the fact that she was capable of so working, or by not assigning to her to “restricted duty,” when such had been available for other employees. In Count Eight, brought pursuant to 42 U.S.C. § 1983, Dimino alleges that defendants violated the Equal Protection Clause through the same behavior which, she alleges, was motivated by an animus toward pregnant women. See Compl. ¶ 126. In Count Nine, Dimino alleges that, through these same actions, defendants violated New York State Human Rights Law, New York Executive Law §§ 290-301. And, finally, in Count Twelve, Dimino alleges that defendants violated Title 8 of the New York City Administrative Code §§ 8-107, 8-107(6), 8-107(7) et seq. which prohibits discrimination on the basis of sex and provides for remedies. This final count seems to be based primarily on the same factors as the counts previously listed but also alludes to retaliation. See Compl. ¶ 146. (i) Defendants’ refusal to let Dimino work as a police officer Dimino contends that defendants discriminated against her by refusing to let her work as a full duty police officer, despite the fact that she was capable of doing so, solely because she was pregnant. The Supreme Court addressed the issue of pregnancy discrimination in International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). There, in a case in which the defendant, Johnson Controls, had instituted a policy which forbad women from working in positions that exposed them to concentrations of lead which could be harmful to a fetus and increase the possibility of miscarriage, the Court held that a policy which discriminated against fertile women, but not fertile men, violated Title VII. In so holding, the Court specifically noted that the Pregnancy Discrimination Act (“PDA”) established that discriminating against an individual because of her pregnancy is sex discrimination. See id. at 199, 111 S.Ct. at 1203. Furthermore, in addressing the defendant’s bona fide occupational qualification defense, the Court ruled that the PDA mandated that “[u]n-less pregnant employees differ from others ‘in their ability or inability to work,’ they must be ‘treated the same’ as other employees ‘for all employment-related purposes.’” Id. at 204, 111 S.Ct. at 1206 (quoting 42 U.S.C. § 2000e(k)). Dimino’s direct evidence of discriminatory intent is largely limited to statements Long made during his deposition to the effect that he did not want her to work “[b]ecause she advised me it was unwise for me [sic] to take work on that would involve danger to my [sic] abdomen or exposure by falling which would result in losing my [sic] unborn child,” Long Dep. at 107; see also id. at 110, and that he took her gun away because “[he] was afraid for her life and the life of her fetus.” Id. at 132. The probative value of Long’s statements, however, is diminished by the fact that Dimino herself had raised these concerns in her letter to Long. Furthermore, Long’s use of the first person in his deposition testimony suggests that he was not referring to his motivation, but was instead quoting Dimino’s representations. And, finally, in other portions of his deposition Long asserted that “all [he] was looking at was there was a risk of danger to the public she protected and her fellow officers [because] ... possibly she wouldn’t get involved because of her pregnancy.” Id. at 130-131. Nevertheless, while Long’s equivocal statements are not definitive evidence that fetal protection was a substantial motivation for his actions, they may give rise to a question of fact with regard to his overall motivation and the possibility of discriminatory intent. Cf. Catanzaro v. Weiden, 140 F.3d 91, 96 (2d Cir.1998) (where two buildings occupied by minorities were demolished, evidence that may- or’s policies had demolished more minority housing than it had created, that mayor knew of racial makeup of the community, and that mayor had commented that the demolition was “instant urban renewal” was sufficient to sustain equal protection claim in the face of motion for summary judgment). Dimino has also asserted that defendants both withheld a true job description and fabricated a false job description with the purpose of convincing Dimino’s doctor that she was not capable of performing her duties as a SIRTOA police officer. Dimino contends that this is additional proof of defendants’ discriminatory intent. However, as noted above, it does not appear that the job descriptions ever had an impact on any doctor’s evaluation. Furthermore, by October 15th, Dimino and her counsel had apparently decided that she did not wish Dr. Arbucci to make any evaluations of Dimino’s ability to perform her job, despite Dimino’s earlier use of the doctor for those purposes. Finally, although not specifically raised by Dimino as evidence of discriminatory intent, Dimino has asserted that another female officer, Regina Dinkle, was given restricted duty when ill but placed on medical leave when it was discovered that the cause of her illness was pregnancy. See Dimino Aff. ¶ 59. Following oral argument, Dimino was permitted to supplement the record with the depositions of both Regina and Roy Dinkle, but neither deposition supported Dimino’s claim. Dimino’s direct evidence of discriminatory intent seems borderline at best. Dimino’s claims become somewhat more tenable, however, upon consideration of the McDonnell Douglas burden shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). McDonnell Douglas requires, first, that a plaintiff establish a prima facie case of discrimination. Once established, plaintiff is entitled to a presumption of discrimination, and the burden of production shifts to the defendant to provide a non-pretextual, non-diseriminatory reason for its actions. If such a reason is provided, plaintiff must prove by a preponderance of the evidence that the motivation asserted by the defendant is, in fact, pretextual and that the defendant’s actions were, actually, motivated by a discriminatory intent. If a plaintiff is unable to preserve a claim under Title VII, the claim will be similarly unsupportable as an equal protection claim. Under McDonnell Douglas, “[t]he burden that an employment discrimination plaintiff must meet in order to defeat summary judgment at the prima facie stage is de minimis.” McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.1997) (citations omitted)(affirming district court’s dismissal of Title VII action on summary judgment for failure to provide prima facie case). A prima facie case of pregnancy discrimination requires that a plaintiff show: (1) that she belongs to a protected class; (2) that she was performing her duties satisfactorily; (3) that she was discharged or suffered material adverse change in the terms or conditions of her employment; and (4) that her discharge or subjection to adverse conditions occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in the class. See id. Absent any other information, to force a woman to take an unpaid medical leave from the SIRTOA police force for the full term of her pregnancy would certainly violate Title VII. See, e.g., Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158. Indeed, the fact that Dimino was put on medical leave at effectively the same time that she informed defendants that she was pregnant would normally be all that is needed to establish a prima facie case. Here, however, it was Dimino who initially requested restricted duty and raised concerns about the “danger to my abdomen or an exposure to falling which could result in losing my unborn child [as well as] a danger to the public I protect, my fellow officers and not to mention a serious liability exposure.” PLEx. 6. If this fact does not vitiate her prima facie case, by undermining her claim that she was able to perform her duties satisfactorily, it certainly seems to provide defendants with a non-pretextual reason for putting Dimino on medical leave — to wit, not allowing employees to work after they state they are a danger to themselves or the public. Indeed, one could fairly argue that Dimino’s assertion that her pregnancy presented a “serious risk” to her fetus and, therefore, required light duty work assignments indicated in and of itself that she was not mentally prepared to do those aspects of her job that posed a threat to her pregnancy, e.g., pursue a suspect. Dimino does not directly dispute the validity of this logic; however, she asserts that defendants knew that although she was seeking restricted duty, she was willing and able to do full work, and that is what she told Long when she gave him the notes. Dimino also claims that the various documents and statements she made in September of 1997 never represented that she was not capable of full work at the time. Dimino cites her EEOC complaint, her attorney’s letter of September 24, 1997, her signature on the modified statement on September 27, 1997, stating that she could perform her full duties as a police officer, and her attempts to return to full work as evidence that it was clear to defendants that she did not require “restricted duty” immediately. In support of her contention that her note reflected issues for future consideration, Dimino seems to rely on the fact that the letter closed with “thanking you in advance” and, thus, anticipated future action. See Dimino Aff. ¶ 5. Dimino further contends that in her initial conversation with Long, on September 17, 1997, “she openly communicated her belief she could still do her job in a safe manner just as she had for many years.” Id. ¶¶ 10, 12. Finally, Dimino argues that Dr. Arbucci’s notes did not assert that she could not do full work. Dimino notes that Dr. Arbucci wrote that she “could continue to ‘function as a police officer,’ ” Def. Mem. at 19, quoting Arbucci Note dated 9/23/97, Pl.Ex. 7, but ignores Dr. Arbucci’s statement immediately following: “I do not want her to have duties which could [unintelligible] in physical trauma to her abdomen.” PLEx. 7. Dimino, thus, attempts to dispute defendants’ contention that it was she who initially asserted that she was unfit for work and, thereby, refute defendants’ attack on her prima facie case. However, her note to Long saying: “[A]t this time I request to be placed on restricted duty” is an unqualified request for immediate restricted duty. Nevertheless, her assertion that she “openly communicated” her ability to work seems to create a question of fact as to whether or not defendants actually relied on that note in not allowing her to return to work and, in combination with Long’s statements previously referred to, fulfill her de minimis burden of establishing a prima facie case. Turning to the second step in the McDonnell Douglas analysis, defendants have also provided two non-discriminatory reasons for their actions other than reliance on Dimino’s note. First, defendants suggest that the reason for keeping Dimi-no off the job even after she made clear through counsel her desire to return to work without qualification was fear of liability both to Dimino and to third parties in light of her September 17 note. Second, defendants assert that SIRTOA policy requires that once an employee claims that he or she cannot perform his or her duties, that employee is sent to TMed for an evaluation and cannot return to the job until cleared for “Full Work” by the doctors there. See Joseph Dep. at 12-13; id. at 50-51; Long Decl. ¶ 4(b). The first non-pretextual, non-discriminatory reason offered by defendants, relating to their concerns about tort liability, raises some novel issues. In addressing an employer’s tort liability to mothers or would-be mothers the Supreme Court held that it was the mother who was to make the decision concerning any risks to the fetus, not the employer. See Johnson Controls, 499 U.S. at 209, 111 S.Ct. at 1209 (fear of tort liability does not justify fetal protection policy). In its discussion, the Court noted that Title VII may preempt negligence cases by pregnant or fertile women based on a premise that such women should not have been allowed to do a job. See id. The Court also implied that warning employees of relevant dangers, combined with appropriate control of the workplace environment, was an appropriate means of handling liability concerns. See id. at 211, 111 S.Ct. at 1210. Thus, fear of liability was not a valid justification for preventing Dimino from working. See id. at 209, 111 S.Ct. at 1209. If defendants’ concerns related to potential liability to Dimino or her fetus, defendants should have requested that Dimino sign a waiver, as suggested by Johnson Controls, and that she be fully evaluated— physically and psychologically — by their own personnel to determine whether, in light of her and her doctor’s notes, she was able to do her job. In other words, the issue should have been addressed and disposed of head on. Instead, it appears that defendants attempted to circumnavigate the issue. In so doing, they succeeded only, in creating a confusing chain of events which cannot be definitively said to rule out the possibility of unlawful discrimination, i.e., not allowing plaintiff to work due to the impermissible motivation of protecting the fetus or the pregnant mother. The situation with respect to possible liability on SIRTOA’s part to third parties presents different issues than refusing to allow plaintiff to work because of a concern for her fetus. In his concurring opinion in Johnson Controls, Justice White argued that while the majority had essentially held that mothers could waive their suits against an employer by continuing to work in the face of warnings, mothers could not, in fact, waive suits on behalf of their unborn children in most states. See 499 U.S. at 213, 111 S.Ct. at 1211 (White, J. concurring). By so noting, Justice White raised important concerns not addressed by the majority. While the Johnson Controls decision made it clear that concerns about the fetus were not for the employer but for the mother, the opinion did not have occasion to address the issue raised by this case — -the employer’s liability to third parties whose rights are clearly beyond the reach of Dimino’s waiver. It would appear that if defendants’ concerns were based in substantial part on Dimino’s note of September 17 and her original representations of liability exposure to third parties, acting on those concerns would not necessarily violate Title VII. An employer is put at special risk by an employee who describes herself as dangerous regardless of the reason for the description. Putting on a lawyer’s hat, one might imagine any number of occurrences involving Dimino in her role as police officer which could open SIRTOA up to claims for damages. For example, a SIRTOA commuter is injured by an assailant and the attack is witnessed by an on-duty Dimino, who fails to come to the commuter’s aid. One can easily see a reasonably competent lawyer alleging that SIRTOA was hable because it had allowed an officer who had described herself as .a danger to the public to remain on patrol. It would seem, therefore, that Dreyfus’ demand that Dimino withdraw her request for restricted duty was a reasonable response to third party liability concerns. Although it is not obvious that the statement drafted by plaintiffs counsel or the lines Dimino crossed out on defendants’ statement, including the language relating to the restricted duty request, impacted greatly on the issue of third party liability or made the two documents much different from defendants’ original draft, their similarity is not enough to create a question of fact as to the motivations involved. Dreyfus’ demand may have been unwise, but that would not be sufficient to create a jury question on the issue of pretext. Dreyfus’ actions, however, are not the whole story. He was not the only decision maker. In this regard, it should be noted that although Long apparently had Dreyfus’ phone number and was told to contact Dreyfus should plaintiffs counsel “make any further effort to negotiate the language of the settlement,” Dreyfus Decl. IT 9, he never checked with Dreyfus on September 27, to determine whether or not Dimino’s amended statement was acceptable. Also, although Dreyfus apparently informed Long that the goal of the statement was protection from liability, Long asserted at his deposition that liability was not a consideration for him when he made his decision. See id.; Long Dep. at 130. In sum, Long’s motivation remains an open question despite defendants’ liability defense. Defendants’ second proffered justification for their continued refusal to allow Dimino to return to work in her normal capacity — that, having been sent to TMed, Dimino needed to be evaluated as qualified for “full work” by TMed — is also open to question. The fact that SIRTOA offered to allow Dimino to return to work if she would sign the September 27 statement stating that she could do her full duties, was healthy, and withdrew her request for light duty, but not if she only indicated that she could do her full duties, raises a question of fact as to this justification. The agreement as originally written would not have been an evaluation for “full work” by TMed. Conversely, since SIRTOA did not feel it needed a full medical evaluation, it could be argued that a medical evaluation was not as essential as claimed and that SIRTOA, and Long in particular, had concerns as to Dimino’s pregnancy independent of her own evaluation. While the September 27 statement defendants wished Dimino to sign seems eminently reasonable, and the reasons for her refusal to sign less so, the fact that her refusal to sign the statement was the determinative factor in her not being allowed to return to work presents conflicting evidence as to defendants’ rules and policies and undercuts their defense of a non-discriminatory reason for placing her on medical leave. This raises at least a question whether the second justification is pretextual. Accordingly, as thin as it is, Dimino has created an issue for a jury with regard to the propriety or impropriety of defendants’ actions. Even if I am convinced, which I am, that Dimino was intent on immediately obtaining restricted duty, that SIRTOA was in an impossible situation in light of her notes, and that Dreyfus was genuinely concerned about SIRTOA’s liability to third parties, SIRTOA’s refusal to allow Dimino to work may well have been an unacceptable response to its fears of liability. More significantly, Long’s concerns were admittedly not about liability. See Long Dep. at 130. It may well be that Long felt that, since Dimino had so explicitly expressed her concerns about her safety and that of the fetus, Dimino was no longer able to do the job required, i.e. her reaction to her pregnancy inspired Long’s behavior, not her pregnancy alone. But Long did not explicitly say that. His ambiguous statements leave open the possibility that a jury could find his motive was an unlawful one. Therefore, defendants’ motion for summary judgment on Dimino’s sex and pregnancy discrimination claims is denied insofar as the claims assert as a theory of recovery that Long and SIRTOA for impermissible reasons prevented Dimino from performing her full duties. (ii) The availability of restricted duty Alternatively, Dimino argues that SIR-TOA discriminated against her by not assigning her to restricted duty when such duty, despite SIRTOA’s assertions to the contrary, is and has been available to other non-pregnant, medically limited, employees. This claim raises two issues for analysis to determine whether there is a prima facie case. First, was Dimino rejected for a position for which she was qualified? And second, were other “similarly situated” employees treated differently? Defendants claim that, at least since 1995 when Long joined the sixteen member SIRTOA police department, SIRTOA has had a policy of not giving restricted duty assignments and, thus, there was no position for which Dimino was qualified. Dimino disputes this assertion. She contends (1) that SIRTOA has had an official policy which allowed restricted duty and never repealed that policy, and (2) that, even if SIRTOA’s official policy forbids restricted duty, SIRTOA’s actual policy is to make allowances for employees who cannot perform their full duties. Dimino bases both statements on minutes from a 1992 union meeting and on the treatment of five other officers whom she claims were placed on light duty despite SIRTOA’s assertion that there is no such assignment. The United Federation of Law Enforcement Officers’ (“U.F.L.E.O.”) Minutes of the Labor Management Meeting held on June 30, 1992, contain the following discussion item: ... E) Restricted Duty — The Authority states and has shown that it has assigned officers light duty non-patrol assignments in the past. They will continue to attempt the same. However, the assignments will not be in the police area due to the size of the department. Assignments will probably be in another title. The union will attempt to further clarify this issue at the next meeting. ... Pl.Ex. 14 (emphasis added). Dimino argues that, despite the ambiguous nature of the underlined language, this paragraph evidenced the presence of a policy involving restricted duty which was never “officially discontinued.” PI. Mem. at 19. As examples that such a policy continued after 1992, Dimino relies primarily, but not exclusively, on SIRTOA’s treatment of Police Officer Anthony Romeo. (Of the employees Dimino discusses, Romeo is the only one whose deposition was originally part of the record.) Romeo was employed by SIRTOA as a police officer. While in training at the New York City Police Academy, Romeo hurt his hamstring, an injury which temporarily prevented Romeo from participating in the calisthenics portion of his training. Dimi-no contends that both Long and Joseph knew of the injury and knew that Romeo was not able to perform everything required of him at the Academy, but, rather than sending Romeo to TMed, or requiring him to go on medical leave, SIRTOA (through Joseph and Long) allowed him to sit down during parts of his training and, thus, essentially placed him on restricted duty. SIRTOA does not dispute Dimino’s statement of these facts. SIRTOA argues, however, that because at the time he was injured Romeo was in training and, therefore, was not yet a patrolling police officer, he was not “similarly situated” to Dimino. Dimino attempts to undermine this argument by pointing out that there is only a single job description for a SIRTOA police officer, but the difference in situations seems so obvious that Dimino’s attempt is unconvincing. This is especially true upon consideration of Romeo’s deposition. During the deposition, Romeo acknowledged that he was injured while jogging in the New York Police Academy gymnasium on September 14, 1998, at which time he went to “Cabrini” emergency room. See Romeo Dep. at 17, 26. On September 18, 1998, Romeo was married and then went on a one-week long honeymoon. Id. at 20-21. Although he saw another personal physician, he did not report to TMed until October 12, 1998. Id. at 18-19. While it is not clear exactly when Romeo was deemed able to fully participate in gym, the limitations of his participation are clear. In response to a letter from Romeo’s personal physician to the effect that Romeo could participate in everything except the jogging, the Police Sergeant in charge of calisthenics at the Police Academy, Sergeant Halloran, told Romeo that if he could not run, he could not participate in any of the other calisthenics. Id. at 32. Thus, in response to a letter from a personal physician and the orders of a New York City Police Sergeant, Romeo was put on somewhat restricted duty. Romeo was allowed to continue training in what the Academy called tactics — how to put handcuffs on a prisoner, disarm a suspect, etc. At the time, apparently, the subject was the placement of handcuffs which did not involve strenuous or violent physical endeavors. Romeo testified that both Long and Joseph knew of the limitations on his training. Id. at 38, 46. Romeo further asserted that Joseph told him that if he could not keep up with the training or did not complete the qualifying runs (running a certain distance at a certain rate at a certain point in the training schedule) he would have to leave the academy. Id. at 39-40. This apparently never happened, because Romeo was able to meet his marks in training, despite his temporary lay off from calisthenics. SIRTOA’s treatment of Romeo does not seem to be comparable to the restricted duty sought by Dimino. As defendants point out, Romeo’s job was to be trained. As long as he was able to fulfill the physical requirements when he went on active duty, it would seem that Romeo was completely trained. Had Romeo’s injuries prevented him from participating in “tactics” training, which would presumably involve practicing skills, or any other type of training, the analogy to limited duty would be closer. However, as conditioning is directed toward the final goal of a certain physical condition, rather than a certain course of training, it cannot truly be said that calisthenics were duties which Romeo was not performing. Dimino also asserts in her affidavit that, while Long was Chief, “P.O. Aubrey Grant was accommodated with a short assignment in a terminal token booth while he was recovering from foot surgery; and P.O. Billy Odum was accommodated with a rescheduling of training because of a temporary partial hearing loss from scuba diving.” Dimino Aff. ¶ 43. Defendants presented evidence strongly disputing Dimino’s representations. Long’s Reply Declaration states that Grant was not put on restricted duty after his leg operation. See Long Reply Decl. ¶¶ 5(b), (c). Furthermore, an unsworn but signed memo from Grant stated that he was never placed on “limited duty.” See id., Ex. K. Finally, in his declaration, Long asserts that “by union agreement, the SIRTOA personnel assigned to work ‘in a terminal token booth’ are not SIRTOA police officers. So ... Officer Grant would not have been so assigned.” Id. ¶ 5(e). Similarly, Long explains in his declaration that Officer Odum was scheduled for a chemical hazard training course which involved listening to “material through earphones.” Id. ¶ 6(b). Because of partial hearing loss due to scuba diving, Odum was allowed to reschedule the training. Long asserts, however, that Odum continued to go on regular patrol assignments and that the precise timing of when Odum took the course was unimportant to SIR-TOA. See id. Furthermore, even if by some stretch these two events could be characterized as “restricted duty,” they surely are not comparable to the long-term limited work that plaintiffs doctor’s letter implied plaintiff required. Dimino also makes references to Roy and Regina Dinkle, who, Dimino claims, were given restricted duty assignments in 1985 and 1990 by SIRTOA because of injuries that prevented them from going on patrol. See Dimino Aff. ¶ 36; Compl. ¶¶ 127(a), (b). Following oral argument, Dimino supplemented the record by submitting depositions of the Dinkles in support of her account. Defendants never contested that the Dinkles were given restricted duty assignments. Instead, defendants rely on the assertion that no light or restricted duty was available in late 1997, or during Long’s tenure as chief — which began in August of 1995. See Long Decl. ¶ 1. Defendants have further asserted that the fact that SIRTOA was moving offices and, thus, had administrative work that needed doing, and the fact that there were organizational differences between SIRTOA in 1990 and SIRTOA in 1997 make comparison between Dimino and the Dinkles useless. Finally, Dimino contends that Police Officers Colini and Schwartz were placed on restricted duty while awaiting their commissions “even though they could have been escorting SIRTOA employees to TMed drug tests, as Dimino could.” PI. Mem. at 18. This is presumably an argument that other police officers have had allowances made for them and, thus, Dimi-no should have had such allowances made for her as well. However the difference between restricted duty for a non-commissioned and, therefore, unauthorized, police officer and restricted duty granted for a medical problem is so great that it clearly overwhelms any argument that such a position existed for medically limited employees. The sum of the various allegations discussed above is that, while SIRTOA may indeed at some point have had a policy of assigning employees to restricted or light duty when they had medical disabilities, there is little evidence that such a policy existed after 1995, when Long was hired, much less in 1997, when Dimino attempted to take advantage of it. To the contrary, defendants have presented uncontradicted deposition testimony from Long and Joseph asserting that no such duty exists. Consistent with this deposition testimony, defendants have also submitted a memo from SIRTOA, dated 1994, instructing the doctors at TMed that no restricted duty should be assigned because it does not exist. See Schoolman Decl., Ex. E. at 2. Furthermore, Dimino has been unable to demonstrate that any similarly situated employees were treated better than she was. Although Dimino asserts that P.O. Grant was briefly placed on restricted duty, while Long was Chief of the department, she has produced no other evidence to support her contention. An unsupported assertion of a single instance, denied by every other involved party, cannot create a genuine question of fact in the mind of a reasonable juror. And, while it is somewhat odd that SIRTOA has been unable to find an official statement changing a policy which apparently existed at some time in the recent past, that failure may be the result of the small size of the employee group involved, but in any case, it cannot be held to create a genuine question of material fact when defendants’ evidence of the change in policy is essentially unrebutted. Thus, no evidence supports Dimino’s claim that she was denied a right granted to others, i.e., restricted duty. Therefore, summary judgment on Counts One, Eight, Nine, and Twelve is granted in favor of defendants insofar as she alleges that she was wrongfully denied an assignment of restricted duty. (2) Counts Three and Four — Disability Discrimination In Counts Three and Four, Dimino alleges that defendants violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. (Count Three) and the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., (Count Four) by perceiving Dimino as disabled, by discriminating against her on the basis of her perceived disability, despite the fact that she was qualified to do her job, and by failing to make reasonable allowances for her disability. Both the Rehabilitation Act (“RA”) and the Americans with Disabilities Act (“ADA”) establish that an otherwise qualified individual may not be discriminated against on the basis of a perceived handicap or disability. In order to establish a prima facie case under either of these statutes, a plaintiff must show that: (1) her employer is subject to the statute; (2) she suffers from a disability or handicap as defined by the relevant statute; (3) she can perform the essential functions of her job with or without reasonable accommodation (in other words that she is otherwise qualified for the job); and (4) she was suspended because of her disability or handicap. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir.1998); Teahan v. Metro-North Commuter Railroad Co., 951 F.2d 511, 514 (2d Cir.1991). As in a Title VII case, once a plaintiff establishes a prima facie case under the statutes, the burden shifts to the defendant to show either that the plaintiff was suspended for a non-discriminatory reason or that the accommodations necessary for employee’s employment would not have been reasonable. The parties here have not disputed that SIRTOA is subject to either statute. Nor do they dispute that plaintiffs pregnancy led, directly or indirectly, to her being placed on medical leave. Because it is Dimino’s contention that she was not disabled or handicapped at the time she was placed on medical leave, in order to sustain her two “disability claims” she must establish that she was perceived or regarded by her employer as disabled or handicapped under the statutes. See Colwell v. Suffolk County Police Dept., 158 F.3d 635 (2d Cir.1998). In other words, her employers must have had the impression that she was prevented from performing a major life function or activity such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 29 C.F.R. § 1630.2(i); see Colwell, 158 F.3d at 646. Dimino does not address this requirement at all. Instead, Dimino asserts that by placing her on medical leave around September 19, 1997, SIRTOA and Long indicated that they considered Dimi-no to be “too medically infirmed [sic] to work at all in any capacity.” PI. Mem. at 21. Despite having been placed on medical leave, there is no evidence that anyone thought that Dimino could not perform a major life activity. To the contrary, defendants’ willingness to reinstate Dimino if she withdrew her request for restricted duty indicates that they acknowledged that there was no fundamental activity Dimino could hot perform. Furthermore, defendants point out that any perception held by Long, SIRTOA, or TMed was created by Dimino through her statements, letters, and doctor’s notes. Defendants contend that a perception of disability or handicap “shaped entirely by Officer Dimino and her doctor [] cannot [support] a perception-of-disability claim.” Def. Mem. at 13. In support of this contention, defendants cite Whitfield v. Pathmark Stores, Inc., 971 F.Supp. 851, 860-61 (D.Del.1997), vacated in part, 39 F.Supp.2d 434 (1999) (vacating previous decision insofar as it held plaintiff not actually disabled). There the district court addressed a situation in which an employee at Pathmark who had been in a car accident sustained back injuries which limited her abilities to move and lift but were, at first, thought to be temporary. The district court ruled that where a store which did not create special positions for employees with permanent disabilities treated an employee as permanently disabled after she produced a note from her doctor establishing the same, that store could not be found to have perceived the employee as disabled because she herself was responsible for the perception. See id. at 860. Thus, after having determined that the employee was not actually disabled as that term is defined by the EEOC, the court granted defendants summary judgment on the employee’s ADA claim. See id. at 861. In discussing the Rehabilitation Act, the Supreme Court has noted that Congress’ extension of coverage to people “regarded as having an impairment, ... reflected Congress’ concern with protecting the handicapped against discrimination stemming not only from simple prejudice, but also from archaic attitudes and laws’ and from the fact that the American people are simply unfamiliar with and insensitive to the difficulties confronting individuals with handicaps.” School Bd. of Nassau County v. Arline, 480 U.S. 273, 279, 107 S.Ct. 1123, 1126, 94 L.Ed.2d 307 (1987) (internal quotations omitted). Similarly, “the purpose of the ADA is to dismantle employment barriers based on society’s accumulated myths and fears.” See Sutton v. United Air Lines, Inc., — U.S. -, -, 119 S.Ct. 2139, 2159, — L.Ed.2d -, - (1999). While an assumption that a pregnant woman could not work might be archaic and prejudicial, defendants’ response to Dimino’s representations that she would not be able to work are merely what one would expect from a concerned and careful employer. If Dimino created the impression she was unable to perform as a police officer, she cannot subsequently contend that she has recourse to statutes meant to protect those who are so considered against their own will and without evidence. Furthermore, while defendants’ willingness to allow Dimino to work if she signed the September 27, 1997 statement counts against them with regard to Dimino’s pregnancy discrimination claims, for these claims that willingness indicates that defendants felt that Dimino was in fact fully capable of work and did not perceive her as disabled. In sum, because Dimino has presented no evidence that she was perceived as disabled as defined by the relevant statutes, her disability claims, Counts Three and Four, are dismissed. (3) Count Two — Retaliation Under the Civil Rights Act Dimino next alleges, in Count Two, that defendants violated § 704(a) of the Civil Rights Act of 1964 by discriminating against her because she opposed an employment practice made unlawful under Title VIL See Compl. ¶ 83. Although Dimi-no does not clarify the factual basis of this claim in her complaint, it appears from her briefs that she is asserting that the September 27, 1997 statement situation was a retaliation for her having filed an EEOC complaint on September 22, 1997. See PI. Mem. at 23. A plaintiff employee establishes a prima facie claim of retaliation by demonstrating that: (1) he or she “was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiffs participation in the protected activity; (3) the employer took adverse action against plaintiff based upon [his or her] activity; and (4) a causal connection existed between the plaintiffs protected activity and the adverse action taken by the employer.” Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir.1993). An adverse employment action may consist of discharge, reduced wages or benefits or even “less flagrant reprisals,” which make a job undesirable. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997). Furthermore, depriving a plaintiff “of the ability to ‘expeditiously ascertain and enforce her rights’ ” may meet this standard. See Penny v. Winthrop-Univ. Hosp., 883 F.Supp. 839, 845 (E.D.N.Y.1995) (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991)). The filing of an EEOC complaint is a protected activity. See Cosgrove, 9 F.3d at 1039. Dimino has submitted a letter from her counsel to Chief Long, dated September 24, 1997, informing him of the EEOC complaint filed two days earlier. See Pl.Ex. 10. Furthermore, while the close temporal connection between the filing of the complaint and the allegedly adverse action may be taken to satisfy the causation requirement, see Cosgrove, 9 F.3d at 1039-40, here, defendants dispute whether there was, in fact, any adverse action related to the EEOC complaint. If SIRTOA refused to allow Dimino to return to work because she had filed an EEOC complaint that would establish a case of retaliation. However, SIRTOA was apparently willing to allow Dimino to return if she signed a statement attesting to her physical capabilities and retracting her request for restricted duty. The language of the statement did not on its face require that Dimino withdraw her EEOC complaint, which might also have been an adverse action. Dimino contends, however, that withdrawing her request would have “mooted” her EEOC complaint and, thus, defendants’ condition was tantamount to a requirement that she withdraw her EEOC complaint. While, apparently, the EEOC may dismiss complaints for mootness, see, e.g., Pendas v. Runyon, 933 F.Supp. 187, 191 (N.D.N.Y.1996) (postal employee who brought EEOC claim had claim dismissed by ALJ on grounds of mootness because employee had retired), it is not clear that such action is required. Moreover, as already discussed with regard to the September 27 statement, there is no evidence that defendants intended that Dimino waive or withdraw her complaint. To the contrary, Dreyfus repeatedly asserted that the statement was intended to preserve Dimino’s rights, and, indeed, the language of the statement indicates no waiver of rights. Furthermore, plaintiff and plaintiffs counsel were concerned with the language of the statement not because of its effect on her EEOC claim of discrimination, but rather because of its seeming effect on Dimino’s right to request restricted duty. See Dimino Dep. at 63. Therefore, because a reasonable juror could not conclude that Dimino’s EEOC complaint resulted in any adverse action on SIRTOA’s part, defendant’s motion for summary judgment on this count is granted. (4) Count Six — First Amendment Retaliation Dimino also alleges, in Count Six, that defendants retaliated against her for requesting restricted duty as a pregnant police officer in violation of her First Amendment right to free speech and to petition the government. See Compl. ¶¶ 99 et seq. She brings this claim pursuant to 42 U.S.C. § 1983. Claims brought under the Right to Petition Clause or the Free Speech Clause of the First Amendment are governed by the same interest balancing test. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.1993). Under either clause, in order to bring a successful cause of action, a plaintiff must establish that: (1) he or she spoke out on matter of public concern, and (2) he or she was retaliated against because of that speech. See id. at 1058. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Here both the form and the content of Dimino’s complaints may indicate that she was raising a matter of public concern. Dimino’s complaint to the EEOC was, arguably, the first step in challenging what she felt was a broad based discriminatory policy. No one could argue that the content of a claim of discrimination on the basis of pregnancy is not an issue of public concern. Indeed, in Lehmuller v. Incorporated Village of Sag Harbor, 982 F.Supp. 132, 138 (E.D.N.Y.1997), it was held that a police officer’s EEOC complaint in which an officer alleged that her police department had discriminated against her by not allowing pregnant women to serve restricted duty assignments could be a matter of public concern. The context of Dimino’s claim, however, is less clear. Defendants contend that, unlike Lehmuller, where the police department already had in place a limited policy of restricted assignments for officers injured in the line of duty, SIRTOA had no light duty policy at all. Defendants further contend that the form of Dimino’s complaint — a filing with the EEOC — was not an attempt to right an injustice to women, but was, instead, an attempt to garner a benefit unavailable to all other employees — restricted duty. Furthermore, as the district court noted in Leh-muller, because the EEOC complaint was brought in the context of a private dispute the public nature of the speech is weakened. Nevertheless, despite the fact that Dimino’s EEOC complaint seemed primarily addressed at her private problems with SIRTOA, it would seem that a complaint touching on the rights of pregnant women to be treated equally must be a matter of public concern. As was the case for her Title VII retaliation claim, however, and for the same reasons, Dimino is unable to satisfy the causation prong of the test. Therefore, defendants’ motion for summary judgment on Count Six, Dimino’s First Amendment claim, is granted. (5) Count Five — Disparate Impact Under Title VII Dimino also asserts that SIRTOA’s job descriptions, assignment policies, and alleged policy of not assigning police officers to restricted duty have a disparate negative impact on pregnant women and, thus, violate Title VII and the Pregnancy Discrimination Act (Count Five). While plaintiffs seeking remedy pursuant to Title VII may generally rely on either proof of disparate impact or disparate treatment, see Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986-87, 108 S.Ct. 2777, 2784-85, 101 L.Ed.2d 827 (1988), disparate impact analysis in the present case raises a troubling issue. Disparate impact analysis affords a Title VII plaintiff relief on the basis of the discriminatory effect of a policy which is facially neutral without regard to whether or not there was any actual discriminatory intent on the part of the creators of the policy. See id. In general, such a claim requires substantial statistical support. See id. at 994-95, 108 S.Ct. at 2788. Furthermore, the Supreme Court has noted that a small statistical sample or incomplete data sets would be standard weaknesses in the support of such a claim. See id. at 996-97, 108 S.Ct. at 2790. Before even evaluating the quality of the evidence Dimino has submitted, however, it is important to note that disparate impact analysis may be particularly inappropriate in the case at hand. It has been repeatedly affirmed that the PDA does not require the creation of special programs for pregnant women; nor does it mandate any special treatment. See, e.g., Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.1998); Lang v. Star Herald, 107 F.3d 1308, 1313 (8th Cir.1997); Piraino v. International Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir.1996). To the contrary, the statute specifically requires that pregnant women be treated the same as all other employees with similar disabilities. See 42 U.S.C. § 2000e(k). Here, Dimino’s disparate