Citations
- 275 F. Supp. 3d 635
Full opinion text
OPINION
Mark R. Hornak, United States District Judge
It is the rare lawsuit in which the record entitles a plaintiff to the grant of summary judgment in its favor. This is one of those cases.
This case stems from the removal of Hayley Nadalin, née Macioce (“Macioce”), who was pregnant-at the time, from the automatic shift scheduling process utilized by the Bob Evans Farms, LLC (“Bob Evans”) restaurant located in West Mifflin, Pennsylvania (“West Mifflin Bob Evans”), where she worked as a server. The Equal Employment Opportunity Commission (“EEOC”) brings this action alleging pregnancy discrimination pursuant to Title VII of the Civil Rights of 1964 (“Title VIF), 42 Ú.S.C. § 2000e et. seq., and certain amendments thereto, including the Pregnancy Discrimination Act of 1978 (“PDA”), 42 U.S.C. § 2000e(k), and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
The EEOC, charged with the enforcement of Title VII, is authorized by 42 U.S.C. § 2000e-5(f)(l) and (3) to bring this action. It seeks compensatory damages, punitive damages, back pay and injunctive relief. Both parties have moved for summary judgment. (ECF Nos. 58 and 61), The EEOC moves for, partial summary judgment, seeking judgment in its favor on liability and as to the “good faith” defense to punitive, damages asserted by Bob Evans. (ECF No. 58). It also sééks an order setting a trial schedule for a jury tb determine damages under 42 U.S.C. § 1981a and for the Court to determine the amount of any back pay to be awarded for the benefit of Macioce. Id. Bob Evans moves for summary judgment on the pregnancy discrimination claim against it, and also alternatively seeks summary judgment on the EEOC’s claims for emotional distress, damages, and injunctive relief. (ECF No. 61).
L STANDARD ON SUMMARY JUDGMENT
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The parties must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).
Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial,” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P, 56(a), (e)) (emphasis in Mat-sushita). To meet its burden, the “opponent must do more than simply show that there is some metaphysical doubt as to the material -facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The non-moving party “must present,affirmative evidence in order to defeat a properly supported motion” and, cannot “simply reassert factually unsupported allegations.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Moreover, a party’s label-ling or characterizing a fact as “disputed” does not maké it so—the record evidence the opposing party points to must support the dispute of fact, whether through reasonable inference or otherwise. If the non-moving party’s evidénce merely is color-able or lacks sufficient probative force, summary judgment must be granted. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find, for the nonmoving party. See id. at 250, 106 S.Ct. 2505. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 2009).
In reviewing the record evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348; Huston, 568 F.3d at 104 (citations omitted). It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit: under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. “Where the defendant is the moving party, the initial burden is on the defendant.to show that the plaintiff has failed to establish one or more essential elements to his case.” See Podobnik v. U.S. Postal Serv., 409 F.3d 584, 589 (3d Cir. 2005) (citing Celotex Corp., 477 U.S. at 323-24, 106 S.Ct. 2548).
“On cross-motions for summary judgment, the law in our Circuit is clear—the Court considers each Motion on its own merits,. tested against the standards of [Federal Rule of Civil Procedure 56].” Wallace v. Nat’l Indem. of Mid-Am., 2:14—cv-1253, 2016 WL 6948781, at *1 (W.D. Pa. July 8, 2016) (citing J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 925 (3d Cir. 2011)); see also Home for Crippled Children v. Prudential Insurance Co., 590 F.Supp. 1490, 1495 (W.D. Pa. 1984). Accordingly, in considering whether either " such motion now before the Court should be granted, “as to the'Plaintiffs Motion, I am to view the record facts in a light most favorable to the Defendant. As to the Defendant’s Motion, the opposite is the rule.” Wallace, 2016 WL 6948781, at *1. On cross-motions, seemingly contradictory positions do “not constitute an agreement that if One is rejected the other is necessarily justified or that the losing party waives ’... determination [of] whether genuine 'issues of material fact exist,” Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968), preventing judgment in favor of the other party. The standards under which a court grants or denies each party' summary judgment do not change by virtue of cross-motions being-presented. Home for Crippled Children, 590 F.Supp. at 1495.
Succeeding on an affirmative summary judgment motion filed by a .plaintiff, such as that filed by the EEOC here, can prove a particularly difficult but not insurmountable task. This is because the .EEOC, as plaintiff:
bears the burden of proof on the [discrimination] claim. “After all, thé burden of proof includes the obligation to persuade .the factfinder that one’s propositions of fact are indeed true. Thus, if ■there is a chance that a reasonable fact-finder would not accept a moving party’s necessary- propositions of fact, pre-trial judgment cannot be granted. Specious objections will not, of course, defeat a motion for summary judgment, but real questions' about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant’s proof, will.”
Wallace, 2016 WL 6948781, at *3 n. 2 (citing El v. Se. Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007)).
n. FACTS
The following material facts are undisputed unless otherwise noted. In 2009, Macioce began working as a server at the West Mifflin Bob Evans. (ECF Nos. 60 [EEOC’s Concise Statement of Material Facts], 72 [Bob Evans’ Response to EEOC’s Concise Statement of Material Facts], at ¶ 1). As a part-time server, Ma-cioce was not guaranteed any set number of work hours. (ECF Nos. 63 [Bob Evans’ Concise Statement of Material Facts], 75 [EEOC’s Response to Bob Evans’ Concise Statement of Material Facts], at ¶ 17). In 2012, at a time when Jay Moreau (“Mor-eau”) was then the Assistant General Manager at her location, (ECF No. 64-1 at 7), Macioce gave birth to her first child. She neither needed nor took leave prior to childbirth in 2012, and she requested and received leave after that childbirth without any problem. (ECF Nos. 63, at ¶¶ 19, 20, 21; 75, at ¶ 17).
By 2014, Jay Moreau (“Moreau”) was the General Manager at the West Mifflin Bob Evans. (ECF Nos. 60, 72, at ¶ 3). As General Manager, Moreau’s responsibilities included shift-scheduling, and he also was one of the people designated by Bob Evans to implement its anti-discrimination policies and procedures. (ECF Nos. 60, 72, at ¶¶ 4, 5, 6). Throughout his employment at Bob Evans, Moreau was aware that it is illegal to discriminate as to terms and conditions of employment on the basis of pregnancy. (ECF Nos. 60, 72, at ¶ 5).
Bob Evans uses an automated computer-based scheduling system to create employee schedules based on factors such as employees’ availability and the anticipated needs of the restaurant. (ECF Nos. 60, 72, at ¶ 8). Subject to manager approval, servers are able to change their own availability in the computer system for the purpose of the automatically generated shift schedule. (ECF Nos. 60, 72, at ¶ 9).
According to Bob Evans’ Employee Handbook, its seven-day workweek runs from the beginning of business on Thursdays and ends at the close of business on Wednesdays. (ECF No. 58-10). In his deposition, Moreau explained the scheduling process. Although the General Manager is responsible for the schedule, the Assistant General Manager also has scheduling duties, including filling in any gaps if there are any glaring holes in the automatically generated schedule and addressing issues such as when a scheduled employee calls in sick. (ECF Nos. 64-3 at 25; 58-3 at 18 [Moreau Dep. at 73, 74]). The automatic scheduling system generates a schedule on the Thursday two weeks in advance of that schedule’s start, to which last-minute changes or adjustments typically may be made by management up until the following Wednesday, and then the next day, on Thursday, employees have access to see the “finalized” schedule on-line and where it is posted on an office door. (ECF No. 58-3 at 11-14 [Moreau Dep. at 40, 42, 43, 44]). Moreau also could handwrite or “pencil-in” someone onto the finalized posted schedule. (ECF No. 64-3 at 21 [Moreau Dep. at 57]). So, for example, the automatically generated schedule for the workweek beginning Thursday, August 7, 2014, initially would have been generated as a draft on Thursday, July 24, 2014, to which last-minute changes or adjustments would have been made in the system by management up until the following Wednesday, July 30, 2014, and then it would have been posted on Thursday, July 31, 2014, detailing for employees the schedule for work hours that began on August 7, 2014. (ECF No. 64-3 at 11-15 [Moreau Dep. at 41-46]).
From January 1, 2014 through July 1, 2014, Macioce averaged approximately 22 hours of work a week. (ECF Nos. 63, 75 at ¶18). The parties, however, dispute the number of “shifts” that Macioce typically was scheduled to work in an average workweek prior to her removal from the automatic scheduling process. The EEOC contends Macioce generally worked on five days in a work week. (ECF Nos. 59 at 3; 60, at ¶ 17). Bob Evans contends that Ma-cioce typically worked bn four days in a week, based not on its own work records but rather the testimony of Moreau that his “understanding” was that on a weekly basis she worked a “approximately four days a week.” (ECF Nos. 72, at ¶ 17, 19; 64-3 [Moreau Dep. at 56-57]). Review of the actual work records that Bob Evans produced in discovery reveals that in the 49 workweek period beginning from Thursday, August 8, 2013 through Wednesday, July 16, 2014, Macioce was scheduled for 4 shifts a week in 9 of those weeks, was scheduled for 6 shifts a week in 2 of those weeks, and was scheduled for 5 shifts a week in 38 of those workweeks. (ECF No. 58-9). Thus, she was far more often scheduled for 5 shifts a week and in thát 49 week period she was scheduled to work shifts on average 4.86 days per week.
In July of 2014, Macioce was pregnant with her second child with a due date in September 2014. (ECF Nos. 60, 72, at ¶ 2). Macioce testified that she was available for work and intended to work up until she gave birth to her second child, (ECF Nos. 60 at ¶ 18; 64-1 at 38), which ultimately occurred on September 12, 2014. (ECF No. 64-1 at 8). In mid-July of 2014, just before Macioce was scheduled to be on vacation from July 21 through July 29, 2014, (ECF No. 58-2 at 8 [Macioce Dep. at 98]), Moreau and Macioce had a conversation about her future work schedule. Because Moreau believed Macioce’s pregnancy due date was “imminent” and that delivery of her child “could happen any day,” Moreau, asked Macioce when she planned to take a leave of absence due to her pregnancy. (ECF No. 72 at 9-10 [Bob Evans’ Separate Concise Statement of Undisputed Material Facts in response to EEOC’s motion for summary judgment, at ¶¶ 19, 20, 22, 23]). Macioce did not state her due date to Moreau at this time, did not request a leave of absence, (ECF No. 72, Bob Evans’ Separate Concise Statement of Undisputed Facts in response to EEOC’s motion for summary judgment, ¶23), and did not request that Moreau change or eliminate her availability in the automated scheduling system. (ECF No. 58-3; 64-3 at 19 [Moreau Dep. at 55] ). Macioce indicated to Moreau that she would work until she had the baby. (Ma-doce Dep. at 100-101, 58-2 at 11; ECF No. 75 at ¶ 26).
The parties also dispute certain aspects of the conversation between Maeioce and Moreau that took place in mid-July, 2014 regarding scheduling. Maeioce testified that. Moreau approached her and asked her when she was going to take a leave of absence, and when she responded that she was going to work until she had the baby, Moreau asked her if she could change her availability in the system. When she asked him why he wanted her to do this, Moreau responded that he didn’t “want to get screwed over if [she had] the baby.” (ECF No. 64-1 at 20-21 [Maeioce Dep. at 101; Moreau Dep. At 100-101]). Moreau then again asked her to change her own availability. Maeioce told him no, told him,she was planning on working until she had the baby, and then walked away. (ECF No. 64-1 at 21 [Maeioce Dep. at 101]). As she was waiting on tables and despite her indication that she did not want a change in her availability, Moreau nevertheless told her: “I’m just taking you off the schedule, but you’re still going to get your hours.” (ECF No. 64-1 at 21 [Maeioce Dep. at 10Í]).
Moreau could not recall all of what was said in the conversation with Maeioce, (ECF No. 64-3 [Moreau Dep. at 49, 50, 55, -56]), but disputed that Maeioce ever objected when he told her that he was taking her. off of the 'automatic scheduling. (ECF No. 72, Bob Evans’ Separate Concise Statement of Undisputed Facts in Response to EEOC’s Motion for Summary Judgment, ¶ 29)., According to Moreau, at that time, Maeioce told him that, she was pregnant but did not tell him her due date, (ECF No. 64-3 at 17, 19 [Moreau Dep. at 49, 55]), and Moreau told Maeioce that he was going to adjust the automatic scheduling system and set her availability to “zero” so that Maeioce would not continue to be automatically scheduled, (ECF Nos. 72, Bob Evans’ Separate Concise Statement of Undisputed Facts in response to EEOC’s Motion for Summary Judgment, ¶ 25; 58-3 at 14, ■ 11 [Moreau Dep. at 50, 55]), but that he would continue to give her shifts, and that she needed to continue to call-in. to indicate that she was still available to work. (ECF No. 64-3 at 17-18, 19 [Moreau Dep. at 49-50, 55]). Mor-eau testified that he did not recall what Maeioce said in response to his final determination that he would remove her availability for automatic scheduling in the automated system, but he did specifically recall that she did not object. (ECF No. 64-3 at 19 [Moreau Dep. at 55] ). ,
Moreau, as he said he would, took Ma-cioce out of the automated scheduling system. (ECF No: 72, Bob Evans’ Separate Concise Statement of Undisputed Facts in Response to EEOC’s Motion for Summary Judgment, ¶ 26). He indicated that he did so because she was pregnant, he believed her need for leave was imminent, and he wanted to ensure that the restaurant’s staffing needs were met. (ECF Nos. 58-3 at 18 [Moreau Dep. at 74]; ECF No. 72, Bob Evans’ Separate Concise Statement of Undisputed Facts in Response to EEOC’s Motion for Summary Judgment, ¶ 26). Moreau’s belief that Macioce’s due date was imminent-was based on the fact that she-was pregnant and that he had heard “hearsay” from other employees that “she was close.” (Moreau Dep. at 54). Moreau expected Macioce to keep him apprised if she wished to continue to work and was able to work. (ECF No. 72, Bob Evans’ Separate Concise Statement of Undisputed Facts in Response to EEOC’s Motion for Summary Judgment, ¶ 28).
After the mid-July 2014 conversation, Macioce went on her previously scheduled vacation, (ECF No. 58-2 at 8 [Macioce Dep. at 98]), and returned to a change in the way she was to be scheduled for shifts at Bob Evans. The evidence regarding Ma-cioce’s work schedule after she returned from vacation is somewhat less certain. Certain exhibits produced by Bob Evans and attached to the EEOC’s filings are in rather miniscule print. At times the parties refer to shifts being handwritten onto the schedule and shifts being penciled in, which the Court takes to be functionally the same thing. Additionally, copies of the actual schedules on which Macioce was penciled in or handwritten in are unavailable because they are not retained, (ECF No. 64-S at 23 [Moreau Dep. at 61]), but the computer generated schedules and “raw punch” records of shifts actually worked are. See, e.g., (ECF Nos. 58-7; 70-12; 70-22). The Court has therefore plowed through these filings to assess just what the record establishes in these regards.
On or about August 1, 2014, Moreau changed Macioce’s availability in the scheduling system to “zero” effective for shifts beginning the week of August 7, 2014. (ECF Nos. 60, 72, at ¶ 10, 15; 72, at ¶ 19). After removing her from the automatic scheduling, Moreau only added her onto the schedule by handwriting (or penciling) her in for shifts for the first week that she was no longer automatically scheduled for shifts, but not for any other weeks. (ECF No. 64-3 at 22, 23 [Moreau Dep. at 67, 60]). Moreau did not speak with Macioce regarding these shifts, and instead Giaquinto, also responsible for scheduling duties, informed Macioce when she was put on the schedule. (ECF No. 64-3 at 22, 25 [Moreau Dep. at 60, 73]).
To obtain shifts after Moreau removed her from the automatic scheduling, Ma-eioee spoke with Giaquinto, shift leader Heather Hathaway, and another manager, Kathy Schneider, but did not discuss additional shifts with Moreau. (ECF No. 64-1 [Macioce Dep. at 102]). Macioce told Giar quinto that Moreau had taken her off of the schedule and Giaquinto used Macioce to supplement the schedules she was working on and to fill in the gaps in the schedule for that upcoming week. (ECF No. 70-8 at 10-11, 12). Giaquinto understood that Macioce was not pleased at being taken off of the automated schedule, (ECF No. 70-8 at 11, 12 [Giaquinto Dep. at 26, 32]). Gia-quinto, however, was not instructed by Moreau to give Macioce any number of work hours in the wake of Moreau “zeroing” out Macioce’s availability in the automated system. (ECF No. 70-8 at 10, 12, 13). Additionally, Macioce could not simply be scheduled for the number of shifts or days she usually worked prior to being removed from the automated scheduling or for any work when she was not needed, but could only be scheduled if there was a “hole” in the automatically generated schedule or an additional need for a particular shift. (ECF Nos. 58-8 at 5-6; 70-8 at 12,13).
Macioce asked for shifts from Giaquinto at least three times in person, (ECF No. 72, Bob Evans’ Separate Concise Statement of Undisputed Facts in Response to EEOC’s Motion for Summary Judgment, ¶ 31), and sat down with Giaquinto when Giaquinto was going over the schedule. Heather Hathaway was able to find shifts for Maeioce to work on Saturday August 16th and Sunday August 17th. (ECF No. 58-2 at 5 [Maeioce Dep. -at 126]). When Maeioce called in and spoke with Kathy Schneider regarding being added to the schedule, Maeioce was told no one had called off for that morning. (ECF No. 58-2 at 14 [Maeioce Dep. at 125]).
Bob Evans produced in discovery a document displaying shifts that were auto-scheduled by the scheduling system, shifts manually added in the system and shifts manually deleted in the system for the relevant time period. (ECF No. 58-7; see also ECF No. 70-22). After the mid-July conversation, in addition to Moreau eliminating Macioce’s availability in the automated system so that she would no longer be automatically scheduled for shifts effective August 7, 2014, on three separate occasions he deleted shifts for which Ma-cioce previously had ‘been automatically scheduled to work, amounting to a total of twelve out of fifteen such shifts being actively deleted from the schedule. (ECF No. 58-7 at 4). Specifically, on July 18, 2014, Moreau deleted in the scheduling system shifts that had been auto-scheduled for Maeioce to work on July 31, 2014 and August 1, 2014. (ECF No. 70-1, ¶ 6, Exhibit F at 3). Then, on July 27, 2014, Moreau deleted shifts that had been auto-scheduled for Maeioce to work on August 7, 8, 10, 11 and 12, 2014. Id. Finally, on August 1, 2014, Moreau deleted shifts that had been auto-scheduled for Maeioce to work on August 15, 17, 18, 19, and 20. Id. Thus, Moreau removed Maeioce from the automated schedule system for shifts to be worked by her on July 31, 2014 and on August 1, 7, 8, 10, 11,12, 15. 17,18, 19 and 20, 2014. Maeioce, however, worked shifts previously automatically scheduled for August 3,' 4, and 5, 2014. (ECF Nos. 60, at ¶ 20).
Ultimately, Moreau penciled Maeioce onto the schedule for shifts she worked on August 9 and 10, 2014, and another manager penciled her onto the schedule for August 22, 2014. (ECF Nos. 72, at ¶ 19; 74-4 at 14-15 [McFarland Deck, at ¶ 9 & Ex 5]), Beginning on August 13, 2014, Assistant Manager Giaquinto added Ma-cioce to the schedule. (ECF No. 58-7 at 4). Maeioce was manually added to the schedule for shifts on August 16, 17, and 18. (ECF Nos. 72, at ¶19; 74-4 at 14-15 [McFarland Deck, at ¶ 9 & Ex 5]). Thus, from the workweek beginning on August 7, 2014 through September 12, 2014, when Maeioce delivered her baby, Maeioce was scheduled for six shifts. (ECF No. 72, at ¶ 20). Bob Evans did not schedule Maeioce for any work after August 22, 2014. Ma-cioce did not “call-in” regarding work after August 22,2014, (Maeioce Dep. at 130), but she never,indicated to Bob .Evans that she was unable to or did not want to work, and in the wake of being removed from the automatic schedule she affirmatively, indicated that she desired shifts via her prior requests for shifts from the assistant managers, by putting her name and phone number on shift cards, and by indicating to co-workers her availability via “facebook” messages. (ECF Nos. 70-2 at 69-71; 70-4, at ¶¶ 5-6 [Macioce Deck]).
The document described as Macioce’s “raw punches,” meaning shifts Macioce actually worked, reveals that after Macioce returned from her July 2014 vacation, she ultimately was scheduled for and worked shifts as follows:
• For the workweek beginning July 31, 2014, she was scheduled for and worked three shifts—one on August 3rd, 4th and 5th.
• For the workweek beginning August 7, 2014, she was added to the schedule and worked two shifts—one on August 9th and 10th.
• For the workweek beginning August 14, 2014, she-was added to the schedule for three shifts, but worked only the shifts on August 17th and 18th, 2017.
• For the workweek beginning August 21, 2014, she was added to the sched- - ule and worked one shift on- August 22nd. ■ . ■
• For the workweeks beginning August 29, September 4, and' September 11, 2014, she was not added to the schedule for any shifts.
(ECF No. 70-12 at 3).
After having her baby, Macioce decided not to return to work at Bob Evans. (Ma-cioce Depo at 48); (ECF No. 72, Bob Evans’ Separate Concise Statement of Undisputed Facts in Response to EEOC’s Motion for Summary Judgment, ¶ 43). Subsequently, Moreau ceased what he referred to as his “practice” of telling a person taking a leave of absence that he would change their availability in the system to zero. (Moreau Dep. at 75). Moreau resigned employment with Bob Evans on October 27, 2016. (ECF No. 74-4 at ¶ 10).
A. Bob Evans’ Anti-Discrimination Policy
Bob Evans’ February 2013 employee handbook, in its section labelled “Equal Employment Opportunity Policy,” states:
Bob Evans Farms, LLC offers equal employment opportunity to all job applicants and gives all employees equal consideration in our employment practices. Bob Evans abides by all local, state, and federal laws regarding equal employment opportunity. Bob Evans will .... administer all personnel actions such as compensation, benefits,. . promotions, transfers, and all other aspects of employment in a= consistent and non-discriminating manner.
If you believe that you have been subject to conduct which violates this policy, of if you have questions concerning this policy, please- contact any member of the management team, the Human Resources Department, or use the Open Door Policy.
(ECF No. 58-10 at 3). The “Open Door Policy” in the 2013 Handbook provides that it encourages employees to raise concerns and address situations with their supervisor or a member of human resources, including decisions the employee thinks are “unfair.” (ECF No. 58-10 at 3). The Bob Evans May 2014 employee handbook includes the virtually identical “Equal Employment Policy” and “Open Door Policy,” (ECF No. 64-4 at 6), but it also includes a section labelled as its “Harassment & Discrimination Policy,” that further provides: ■
Harassment, discrimination, or retaliation of any kind toward fellow employees, guests, or business affiliates which is based on race, color, religion, genetic information, gender, national origin, age, disability, citizenship, military status, ancestry, sexual orientation, or any other protected characteristic is prohibited.
If you feel you are the subject of harassment, discrimination, or retaliation, please report it to your supervisor, the Human Resources Department or use the Open Door Policy. Where investigation confirms the allegation, prompt disciplinary action will be taken, up to and including termination of the offending employee(s).
(ECF No. 64-4 at 5; ECF No. 72, at ¶ 23). Prohibited discrimination on the specific basis of pregnancy is not mentioned in any of the policy provisions.
Moreau was responsible .for ensuring that employees at the West Mifflin Bob Evans were aware of company policies and procedures, which included him going over the open-door, anti-harassment and anti-discrimination policies with them.' (ECF No. 58-3 at 6-7 [Moreau Dep. at 35-36]). He was required to acknowledge receipt of the Bob Evans Employee Handbook, (ECF No. 64-3 at 5-6-[Moreau Dep. at 12, 23]), but did not recall any video training or anyone else coming to the restaurant to do in-person staff training. (ECF No. 58-3 at 8 [Moreau Dep. at 37]). Macioce could not recall taking anti-discrimination policy training or that Bob Evans had anti-discrimination and open door policies, yet she acknowledged receipt and review of the May 2014 Handbook by her signature dated April 30, 2014. (ECF Nos.. 64-1 at 18; 64-4 at 8; 70-4, at ¶ 3).
III. DISCUSSION
As to its motion for summary judgment on liability, Bob Evans asserts that the EEOC 'cannot' raise an inference of discriminatory motive under the familiar burden-shifting framework for indirect evidence cases and also cannot establish the existence of an adverse employment action. In no uncertain terms, Bob Evans insists that its General Manager Moreau removed Macioce from the automated employee scheduling system not because of Macioce’s pregnancy, but “because he believed her due date was imminent and, consequently, her attendance in the near future was unpredictable.” (ECF No. 65 at 1). Bob Evans further states that “the sole reason Moreau took Macioce off the schedule was due to the unpredictability of her attendance,” (ECF No. 65 at 13), and her “‘imminent’, unpredictable leave/’ (ECF No. 65 at 14). Bob Evans also argues that Moreau made the decision to remove Ma-cioce from the automated scheduling system “for the predictability of the schedule” to “ensure the restaurant’s staffing needs.” (ECF No. 65 at 14).
In contrast, the EEOC contends that there is no genuine issue of fact on this point, and that the undisputed direct evidence; as further confirmed by the position of Bob Evans in its briefing, unequivocally establishes as a matter of law intentional discrimination against Macioce based on her pregnancy.
■ A. The Pregnancy Discrimination Act (“PDA”)
Title VII prohibits discrimination in employment “because of sex.” 42 U.S.C. § 2000e-2(a). Specifically, § 2000e-2(a) provides:
(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual,, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, be- , cause of, such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status, as an employee, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a).
The PDA, 42 U.S.C. § 2000e(k), was passed by Congress in response to the Supreme Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), in which the Court had held that discrimination “because of pregnancy” was not prohibited discrimination “because of sex” under Title VII. “The PDA specifies that sex discrimination includes discrimination on the basis of pregnancy.” California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 277, 107 S.Ct. 683, 93 L.E.d.2d 613 (1987). The United States Supreme Court explained in Guerra that:
Mather than limiting existing Title VII principles and objectives, the PDA extends them to cover pregnancy. As Senator Williams, a sponsor of the Act, stated: “The entire thrust ... behind this legislation is to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life.” 123 Cong. Rec. 29658 (1977).
Guerra, 479 U.S. at 288-89, 107 S.Ct. 683. Specifically, Congress amended Title VII to add a definition of the term “because of sex.” Section 2000e(k) thus provides:
§ 2000e¡ Definitions
For the purposes'of this subchapter—
(k) 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, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise....
42 U.S.C. § 2000e(k) (emphasis added).
As Johnson Controls explains, passage of the PDA established that “women as capable of doing their jobs as their male counterparts may not be forced to choose between having- a child and having a job.” 499 U.S. at 204, 111 S.Ct. 1196. “The [PDA] has now made clear that, for all Title VII purposes, discrimination based on a woman’s pregnancy is, on its face, discrimination because of her sex.” 499 U.S. at 199, 111 S.Ct. 1196. Therefore, the PDA outlaws discrimination against women because of or on the basis of pregnancy, childbirth or related conditions with respect to compensation, terms, conditions or privileges of employment. 42 U.S.C. § 2000e-2(a).
One specific congressional goal in passage of the PDA was to make it unlawful to force pregnant woman who were not unable to work to take leave that they had not requested. Outmoded notions and paternalistic protections regarding pregnancy were to give way to equal treatment for women. For example, the Senate Report noted:
perhaps the most important effect of the PDA is to prohibit employer policies which forced women who became pregnant to stop working regardless of their ability to continue.... For, as the history of sex discrimination shows, such policies have long-term effects upon the careers of women and account in large part for the fact that women remain in low-paying, dead-end jobs.
S. Rep. No. 331, 95th Cong. 2d Sess. 6 (1978)'.
The history and effect of such policies were addressed in statements by House and Senate members as well as in testimony before the Committees considering the legislation. These statements emphasized the change in the American workforce to include a large percentage of women and the economic hardship faced by these women and their families when discrimination on the basis of pregnancy and' related medical conditions occurs. By enacting the PDA, Congress rejected the outdated notions upon which many “protective” laws and policies were based, policies which often resulted “from attitudes about pregnancy and the role of women who become pregnant which are inconsistent with the full participation of women in our economic system,” and which perpetuated women’s second class status in the workplace. As the Supreme Court has stated, “[t]he reports, debates and hearings make abundantly clear that Congress intended the PDA to provide relief for working women and to end discrimination against pregnant workers.” .
Carney v. Martin Luther Home, Inc., 824 F.2d 643, 646-47 (8th Cir. 1987) (quoting Guerra, 479 U.S. at 285-286, 107 S.Ct. 683) (internal citations omitted).
The protections of the PDA apply regardless of the stage of pregnancy. For example,
[ejmployment late in pregnancy often imposes risks on the unborn child, but Congress indicated that the employer may take into account only the woman’s ability to get her job done. With the PDA, Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for her-sej£.
Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 205-06, 111 S.Ct. 1196, 1207, 113 L.Ed. 2d 158 (1991) (internal citations omitted) (emphasis added).
The Supreme Court clarified in Young v. United Parcel Service, Inc., — U.S. -, 135 S.Ct. 1338, 1352, 191 L.Ed.2d 279 (2015), that the first clause of the PDA, § 2000e(k), that is the language providing “[tjhe 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,” reflects Congressional disagreement with the reasoning of Gilbert by including pregnancy discrimination within the definition of discrimination “because of sex” or “on the basis of sex.” Young, 135 S.Ct. at 1352. The second clause, providing “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, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise,” is not simply a further definition of sex discrimination to include pregnancy discrimination, because that interpretation of the statute would violate the rule against superfluidity. 135 S.Ct. at 1352. Rather, the second clause is directed at overturning Gilbert’s holding that an employer could treat pregnancy less favorably than diseases or disabilities that resulted in a similar inability to work, such as where an employer denies a requested accommodation or benefits that are extended to others. 135 S.Ct. at 1353. The EEOC does not proceed here under the second clause as Macioce had not requested any accommodation or challenged the provision of benefits; The EEOC proceeds instead under the first clause of the PDA. '
With the passage of the Civil Rights Act of 1991, a plaintiff need-only show that the prohibited consideration was “a reason” for the employer’s action challenged under Title VII:
[a]n unlawful employment practice is established when an individual demonstrates, that pregnancy or a pregnancy-. related condition “was a motivating factor for any employment practice, even though other factors also motivated the practice,” 42 U.S.C. § 2000e-2(m), See Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 & n. 8 (3d Cir. 1993) (noting the 1991 Civil. Rights Act “overruled] that portion of Price Waterhouse [v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) ] that permitted an employer' to avoid liability if it could demonstrate that it would have taken the same action in the absence of discriminatory motive”).
Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 435-36 (8th Cir. 1998); see also Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir.), order clarified, 543 F.3d 178 (3d Cir. 2008) (“[T]he prohibition [against pregnancy discrimination] is breached ‘whenever an employee’s pregnancy [or related medical condition] is a motivating factor for the employer’s adverse employment decision.’ ”).
B. Direct v. Indirect Evidence
Disparate treatment based on the prohibited consideration of a woman’s pregnancy is proven by either using direct evidence of intent to discriminate or using indirect evidence from which a court could infer intent to discriminate.” C.A.R.S., 527 F.3d at 364. The parties are fully entrenched in opposing views as to whether this pregnancy discrimination case should be analyzed as a direct evidence case, as the EEOC urges, or as an indirect evidence case employing the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as Bob Evans insists. Under either analysis, the material record evidence regarding the mid-July 2014 conversation and its wake is the same. Several weeks before Macioce went into childbirth and without any request by her .for Moreau to do it, Moreau changed her availability in the scheduling system from a status that would automatically generate a schedule with her- assigned work to a status that would not automatically schedule her for any work and then expected Macioce to call-in that she still was available to work to potentially obtain shifts. The undisputed evidence then establishes that any call-in by Macioce for work shifts could only be granted if shifts were available at that time (“holes”), after the automatic scheduling system already had generated a schedule without Macioce assigned to any work. And that same record conclusively demonstrates that when this happened, Macioce’s level of work materially declined.
In arguing for summary judgment in its favor on liability, the EEOC analyzes this case only as one involving direct evidence. Accordingly, if the Court determines it is an indirect evidence case, it will deny the EEOC’s motion as to liability. Conversely, Bob Evans does not request summary judgment in its favor nor contend that it is entitled to it on liability regarding the element of intent if this is a direct evidence case. Bob Evans does, however, contend that the EEOC cannot show the existence of an adverse employment action, regardless of the evidentiary framework by which the ease proceeds. Thus, if the Court determines this is a direct evidence ease, Bob Evans’ motion on liability will be denied unless Bob Evans can show the lack .of an adverse employment action as a matter of law. The additional matters on which'Bob Evans and the EEOC base, their summary judgment motions, discussed below, are aimed at damages, and injunctive relief and apply whether or not this is an indirect or direct evidence case.
Direct evidence is evidence that would prove the prohibited intent without resort to an inference or presumption. Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994). “When determining whether proffered evidence constitutes direct evidence of discrimination, [the court] consider[s] whether the evidence, if believed, compels the conclusion that [discriminatory] animus played a part in the challenged decision.” Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 383 (6th Cir. 2002). In order to constitute direct evidence, “the evidence must demonstrate that the ‘decision makers placed substantial negative reliance on an illegitimate criterion in reaching their decision.’ ” Anderson v. Consol. Rail Corp., 297 F.3d 242, 248 (3d Cir. 2002) (quoting Connors v. Chrysler Financial Corp., 160 F.3d 971, 976 (3d Cir. 1998)).
Statements made by the decision-maker related to the decision or decision-making process at issue and reflecting the motive for that decision constitute direct evidence of motive. Where statements are made either by a non-decision-maker, or are not related to the challenged decision, those statements might be characterized as “stray remarks” and if such, are not direct evidence of unlawful intent. Weightman v. Bank of N.Y. Mellon Corp., 772 F.Supp.2d 693, 702 (W.D. Pa. 2011) (“Derogatoiy comments or stray remarks in the workplace that are unrelated to employment decisions, even when uttered by decision-makers, do not constitute direct evidence of discrimination.”) Even if so-called stray remarks are not direct evidence, they do provide background evidence and can support a finding of pretext and discriminatory motive. C.A.R.S., 527 F.3d at 368.
If indirect evidence is used to prove discriminatory intent, the court employs:
the familiar McDonnell Douglas burden-shifting framework to analyze her Title VII pregnancy discrimination claims. Under this analysis, the employee must first establish a prima facie case. If the employee is able to present such a case, then the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its adverse employment decision. If the employer is able to do so, the burden shifts back to the employee, who, to defeat a motion for summary judgment,' must show that the employer’s, articulated reason was a pretext for intentional discrimination.
C.A.R.S., 527 F.3d at 364 (internal citation omitted).
The Third Circuit in C.A.R.S. addressed the contours of a prima facie case of pregnancy discrimination in an indirect evidence case, instructing:
We have previously indicated that establishing a prima facie case of pregnancy discrimination differs from establishing a prima facie case of gender discrimination. In Geraci [v. Moody-Trottup, Int’l, Inc., 82 F.3d 578, 580 (3d Cir. 1996) ], we ... modified the first element of a pri-ma facie case of pregnancy discrimination to require that ah employer have actual knowledge of an employees’ pregnancy, reasoning that “pregnancy, of course, is different in that its obviousness varies, both temporally and as between different affected individuals.” Id. at 581. Therefore, in a case alleging pregnancy discrimination, ... a plaintiff must adduce evidence that she was pregnant, and, that the employer knew it. Id. at 580-81; accord Prebilich-Holland v. Gaylord Entm’t. Co., 297 F.3d 438, 444 (6th Cir. 2002).... The next two elements of the prima facie case remain the same as those of gender discrimination. The plaintiff must be qualified for her job and she must have suffered an adverse employment decision. The fourth element requires that a plaintiff show some nexus between her pregnancy and the- adverse employment action.
C.A.R.S., 527 F.3d at 365.
Accordingly, if a plaintiff does not have direct evidence of discrimination, the “nexus” must be established indirectly through evidence that raises an inference of discriminatory intent. 527 F.3d at 366, 370. On the other hand, “[w]hen direct evidence is offered to prove that an employer discriminated, the shifting-burden analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ..., is inapplicable and the case proceeds as an ordinary civil suit.” Torre, 42 F.3d at 829 (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), and Gavalik v. Continental Can Co., 812 F.2d 834, 853 (3d Cir. 1987)).
The Matter of Unlawful Animus
■ Bob- Evans contends that the EEOC must have evidence of discriminatory bias for this case to be analyzed as one involving direct evidence, (ECF No. 76 at 3), in essence requiring an ill-will type of motive. The case law at times refers to discriminatory “animus,” as Bob Evans suggests, (ECF No. 76 at 3) (citing Mock v. Univ. of Pittsburgh at Johnstown, Civ. Act. No. 3:04-314, 2007 WL 2253602, at *9 (W.D. Pa. Aug. 3, 2007)); see also Weigel, 302 F.3d at 383, and although animus may refer to hostility, negative feeling or “ill will,” it also simply may mean “intention.” Black’s Law Dictionary 87 (6th Ed. 1990). To be sure, evidence of discriminatory animus in the sense of ill will is relevant to the matter of discriminatory intent and may be sufficient in some cases to establish discriminatory motive. The lack of such evidence, however, will not defeat a discrimination claim.-
The Carney court aptly explained how ill-will is not a sine qua non for pregnancy discrimination, observing:
[wjhile we have no doubt that the [defendant] harbors no ill motive against plaintiff or other .pregnant women, history reveals that, women have consistently been denied equal opportunities based on a professed concern for their well-being and/or unfounded notions about their capabilities. The PDA was enacted to ensure that pregnant women are judged on their actual ability and willingness to work, and although the [defendant] had no mandatory leave policy, its decision as to the plaintiff in effect forced her from the workplace at a time when she was willing and able to perform her job successfully.
Carney, 824 F.2d at 649 (internal citations omitted); see also Deneen, 132 F.3d at 436.
An employee is no less discriminated against where hatred based on their protected class status does not exist, but rather the decision-maker is motivated by perceived stereotypes and even paternalistic notions regarding the protected class status—whether or not any negative feeling or ill-will is harbored. This may be particularly so with pregnancy discrimination, and Congress in passing the PDA expressed its intent to prohibit employment decisions based on such well-meaning assumptions. With this in mind the Court turns to the record evidence of intent.
On the matter of whether this case is a direct évidence or indirect evidence case, consideration of Deane v. Pocono Med. Ctr, 142 F.3d 138 (3d Cir. 1998) (en banc), Deneen, 132 F.3d 431 (8th Cir. 1998), Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4thCir. 1997), Carney, 824 F.2d 643 (8th Cir. 1987), Gillin v. Federal Paper Bd. Co., Inc., 479 F.2d 97 (2d Cir. 1973), Equal Employment Opportunity Comm’n v. Corinth, Inc., 824 F.Supp. 1302, 1309 (N.D. Ind. 1993), and Peralta v. Chromium Plating & Polishing Corp., No. 1:99-CV-3996, 2000 WL 34633645 (E.D.N.Y. Sept. 15, 2000), demonstrates that the direct evidence analysis applies.
In Deane, involving discrimination based on perceived disability, the plaintiff produced uncontroverted evidence in the form of a call from the employer’s human resources vice president indicating to the plaintiff that she was being terminated “because of her ‘handicap.’ ” 142 F.3d at 149. The en banc Court of Appeals held that this was “direct evidence that Deane suffered an adverse employment action because of her employer’s perception of her disability.” 142 F.3d at 149.
Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997), cited with approval by Deane, 142 F.3d at 149, held that the record evidence, which showed the employer concededly took adverse action against an employee on the basis of a statutorily protected' class, required nothing more to establish unlawful intent—that is, unlawful discrimination based on the prohibited consideration. 104 F.3d at 686. Likewise, in Carney, the court of appeals reversed the district court’s decision to analyze the case under the indirect evidence burden-shifting framework. It determined that the plaintiff had presented direct evidence of pregnancy discrimination where the employer admitted its decision was based on a condition that in turn directly arose from pregnancy and the employer had placed the employee on leave without the employee’s request. 824 F.2d at 648.
The Second Circuit in Gillin considered as direct evidence of a discriminatory failure to promote the uncontested statements by the individual tasked -with making recommendations for a position, including statements that the position was not suited to a woman, the position was a “man’s post,” and that he did not consider the female applicant for the position.
Similarly, in Deneen the court held that when the employer required that the pregnant employee have a note from a doctor to show that she could perform her job requirements, the case properly was analyzed as a direct evidence cash. That court explained: “[wjithout any real knowledge of a physical limitation, Mr. Holme stated that Mrs. Deneen could not return to-work from layoff status without a note from her physician because of her pregnancy-related condition.” Deneen, 132 F.3d at 436. The court rejected the employer’s contention, similar to Bob Evans’ position here, that a “simple” reference to protected status without expression of “bias” because of that status cannot constitute direct evidence of discrimination. In rebuffing this approach, the court observed:
[t]his principle may apply with regard to the secretary’s initial inquiry as to whether Mi’s. Deneen was pregnant. There is evidence, however, that NWA did more than merely refer to Mrs. De-neen’s pregnant status in this manner. Mr. Holme’s initial statement that she could not return ,to work was expressly based pn her pregnancy-related condition, a condition he only, assumed to exist, and was made before Mr. Holme knew of any pregnancy-related physical restrictions. He did not simply refer to her pregnant status but made an adverse employment decision on the basis of his discriminatory judgment about her abilities or her propensity to use earned sick leave benefits. Additionally, the cases cited by NWA in support of its contention that mere reference to a protected status is not direct evidence •;of discrimination are distinguishable. For example, In Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 674 (8th Cir. 1995), the plaintiff claimed that one decision maker’s occasional reference to him as “the old man” amounted to direct evidence of age discrimination when he was terminated as part of the defendant’s reduction in force. We held that these references were nothing more than stray' remarks in the workplace, because no evidence linked the remarks to the challenged employment decisión. Id. See also Geier [v. Medtonic, Inc., 99 F.3d 238, 242 (7th Cir. 1996)] (“To'be probative of discrimination, isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process.”). In the present case, Mr. Holme’s remarks about Mrs. Deneen’s pregnancy-related complication were made contemporaneously and directly in connection with the adverse employment decision. Her pregnancy-related condition was the reason [he] took her name off the duty list and refused to permit her to return to work.
We conclude the district court correctly determined that Mrs. Deneen presented direct evidence of discrimination.
In Peralta, another direct evidence case, the employer required the plaintiff “to stop working solely on the basis of her pregnancy and her earlier miscarriage.” 2000 WL 34633645, at *4. The defendants required the pregnant employee to provide a doctor’s note to prove her fitness-to continue working (a frequent theme in pregnancy discrimination cases), and placed her on unpaid medical leave when she did not produce a note. Likewise, in Equal Employment Opportunity Comm’n v. Corinth, Inc., 824 F.Supp. 1302, 1309 (N.D. Ind. 1993), where the employer did not schedule the pregnant employee for further work because she was pregnant and had gotten “too big” and could “fall down” in the restaurant at which she was a server, the case was properly analyzed as a direct evidence case. There, the court' stated that “[terminating a pregnant employee, or forcing her to take leave, because of concern for her health or concern for the employer’s potential liability, are employment decision? based upon impermissible factors.” 824 F.Supp. at 1302, 1308.
Weightman v. Bank of New York Mellon Corp., 772- F.Supp.2d 693 (W.D. Pa. 2011), on the other hand, rejected the plaintiffs attempt to proceed on a direct evidence theory in a pregnancy discrimination case. The plaintiffs evidence included: the failure of the plaintiffs supervisor to exhibit joy oyer the plaintiffs announced pregnancy; discipline,for excessive absenteeism and negative performance reviews occurring after she announced her pregnancy; and a statement made outside of the decision-making process and after plaintiff had been issued written warnings and counseled for her failure to .improve that the plaintiff needed to make a decision between being a mom and having a career. 772 F.Supp.2d at 707. The record evidence in Weightman required the consideration of an inference of discrimination in the decision-making, and therefore, was not direct evidence of discrimination. Similarly, in C.A.R.S., involving unequal treatment of persons on leave, the evidence required an inference as to the employer’s intent and properly was considered as an indirect evidence case. There, the plaintiff, who required leave after terminating a pregnancy, had evidence that other employees who were temporarily disabled from work likewise failed to follow the same “required” call-off procedure to continue their leave but were not terminated, as was the plaintiff. 527 F.3d at 366-67.
The record evidence here shows directly and without equivocation that the reason for Moreau’s decision to remove Macioce from automatic scheduling was because she was pregnant and he believed her need for leave because of child birth (and nothing else) was imminent. Bob Evans attempts to argue that the reason Moreau took Macioce off of the schedule was not really because of unlawful consideration of pregnancy, but “because of 'Ma-cioce’s ‘imminent’, unpredictable leave,” (ECF No. 65 at 14), and “was based on Moreau’s understanding that Macioce was taking an imminent leave of absence with an unknown start date.” (ECF No. 69 at 2). This argument simply doesn’t hold water. Remember, Macioce had not requested leave for some undisclosed reason, since she had not requested any leave at all. And, in spite of Macioce personally telling Moreau she was pregnant, he had no discussion with her about her due date. ECF No. 58-3 at 17. Bob Evans argues that the pregnancy discrimination claim fails because “the sole reason Moreau took Macioce off the schedule was due to the unpredictability of her attendance. Specifically, Moreau had notice that an event causing the need for leave with an ‘imminent’ but unknown date was approaching.” (ECF No. 65 at 13). But the testimony of Moreau is clear—his perception of Ma-cioce—several weeks before Macioce actually delivered her baby—was that Ma-cioce’s attendance was “unpredictable” based solely on her pregnancy—and is just the type of stereotypical judgment that Congress legislated against by enacting the PDA. Thus, the “unpredictability” here amounts to nothing more than a proxy for the only thing theoretically generating it—Macioce’s pregnancy. Moreau was plainly aware of Macioce’s pregnancy (she told him), and the only “event” of unpredictability was her then upcoming “childbirth” as a result of her pregnancy. The veil with which Bob Evans seeks to cover knowing and intentional pregnancy discrimination is patently transparent.
A similar justification offered by the employer in Martinson was flatly rejected. Martinson involved a plaintiff with epilepsy. The employer contended that it did not take the adverse action based on a disability, but only acted based on a characteristic of epilepsy—seizures experienced by plaintiff as a result of the disability. The Fourth Circuit observed:
[t]o fire for seizures is to fire for a disability ... Whether [the employer] fired Martinson because he suffered from epilepsy or because of the ‘specific attributes’ of his disease, ie,, his seizures, is immaterial-both are disabilities and an employer may not use either to justify discharging an employee so long as that employee is qualified for the job.
The treatment of Macioce here fares no better than did that of the employee in Martinson. The distinction offered by Bob Evans isn’t really a distinction, but is tantamount to a concession of Title VII liability. To take action because of conditions precisely related to that pregnancy, and arising from that pregnancy alone, is to take action because of pregnancy. Moreover, Bob Evans’ argument ignores that the considered “condition” involved here, childbirth, also is specifically included in Title VU’s definition of “because of sex.” An employment action taken based on the assumption that a woman will at some future date need leave (even unpredictably) because she is pregnant, including for childbirth, directly demonstrates the discriminatory motive for the action. See Wagner v. Dillard Dep’t Stores, Inc., 17 Fed.Appx. 141, 150 (4th Cir. 2001) (determining matter was properly addressed as a direct evidence case and affirming denial of motion for judgment as a matter of law and jury verdict in favor of plaintiff).
Bob Evans adds that “[a]t worst, the removal from the automated schedule was a result of an honest mistake based upon Moreau’s belief that Macioce’ expected leave of absence would begin in the very near future.” (EOF No. 65 at 14). But “beliefs” grounded in assumptions are just the stuff of which pregnancy discrimination claims like those present here are made, and just the stuff motivating Congress to outlaw them—particularly an employer’s “beliefs” or “presumptions” about the work abilities of childbearing women. See Wagner, 17 Fed.Appx. at 150 (“[W]e are certainly unprepared to take judicial notice of the physical abilities or limitations of women who bear children, other than to note that they would surely vary widely from individual to individual. Also, Wagner’s testimony on this precise issue reflects an undisputed intent on her part to work up until delivery and to not take maternity leave.”). This' is a direct evidence case.
Discriminatory Intent as a Matter of Law
The evidence that Moreau acted on presumptions regarding Maeioce’s pregnancy and childbirth is established by un-controverted evidence in the form of Mor-eau’s own testimony, and as set out in Bob Evans’ own papers. Even viewing that record in the light most favorable to Bob Evans, the Court concludes that there is no genuine issue of