capable of becoming pregnant); (2) that she was performing her job well enough to meet her employer's legitimate expectations; (3) that in spite of her performance she was discharged or demoted, and (4) that others who were not pregnant (or were incapable of becoming pregnant) were treated more favorably. Crnokrak meets that initial burden. EHS does not dispute that Crnokrak was pregnant or that her job performance was satisfactory. She was demoted despite her satisfactory performance and was replaced by Chavez, a non-pregnant employee.
Under McDonnell Douglas, once the employee has alleged a prima facie case the burden of production then shifts to the employer to articulate a legitimate non-discriminatory reason for the employee's discharge or demotion. EHS meets that burden by alleging that Crnokrak was demoted not because she was pregnant but because she was absent from work. A crisis had arisen, namely, Chavez's threat to leave, and the only way to address it was to give away Crnokrak's job. With that explanation EHS meets its burden of production.
Crnokrak contends that EHS' explanation "is simply not a non-discriminatory reason" because it involves a decision to treat a non-pregnant person better than a pregnant woman. What Crnokrak fails to appreciate is that the PDA does not force employers to pretend that absent employees are present whenever their absences are caused by pregnancy. See Zoleke v. CNA Insurance Companies, 1992 WL 175526 (N.D.Ill.). According to EHS, Crnokrak's absence and Chavez's short-term indispensability were the only factors it considered in deciding to demote Crnokrak. To be sure, unlawful discrimination may be inferred if pregnancy plays a role in an adverse employment decision, but here defendant claims that pregnancy, as such, played no role at all.
Once the employer has stated a legitimate reason for its decision, the plaintiff employing the McDonnell Douglas method of proof must offer evidence that the employer's explanation is pretextual. Unlike the plaintiff in Zoleke, Crnokrak meets that burden. She contends that the alleged crisis facing the department did not exist and that the department would have gotten by even without Chavez. Both assertions are supported by statements of EHS employees. In any event, she says, she would have returned to the office before her doctor cleared her to work had she been asked to do so. Moreover, only one week separated the date of Chavez's scheduled departure from the date of Crnokrak's scheduled return. A finder of fact reasonably could infer from the timing of the events alone that EHS' explanation was pretextual.
Most significant, perhaps, is Crnokrak's allegation that her supervisor, Patterson, was hostile to pregnant employees. On one occasion he threw a key chain with a condom attached to it at her and urged her to "make sure after you have this baby you use this so that we won't have to worry about you going on maternity leave again." His gesture and comment may have been perfectly innocent, but they also may have reflected agitation at Crnokrak's pregnancy, or his fear that if she became pregnant once she would become pregnant again. Crnokrak also alleges that Patterson did not follow company procedures that were in place to deal with contingencies like emergency staff shortages when he decided to give away her job. A senior EHS official described his actions as "outrageous." Patterson's dispensing with company protocol may have been necessary in light of the dire staffing problem that he perceived, but it also may have been prompted by a desire to avoid formal review by his superiors of a discriminatory decision. This court may not attempt to divine the true motives behind his statements and actions on a motion for summary judgment.
Citing Smith v. Firestone Tire & Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 1989), EHS argues that "stray remarks" cannot be used to demonstrate the use of illegitimate criteria by an employer. Quite aside from the fact that Crnokrak relies on more than the remarks of company officials to meet her burden, that argument misses the point of the Smith case. Smith deals primarily with the allocation of burdens of proof in so-called "mixed-motive" cases, cases in which the burden-shifting analysis of McDonnell Douglas does not apply. The issue in a "mixed-motive" case is not whether the plaintiff can prove that the employer's explanation for its behavior is pretextual. Rather, the issue is whether the employer can prove that it would have acted the same way toward the plaintiff had it not allowed antipathy toward the protected class to affect the decisionmaking process.
Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). In mixed-motive cases the burden of persuasion, not just the burden of production, shifts to the employer.
Hopkins establishes that the burden of persuasion will shift to the employer only if a plaintiff initially proves with direct evidence that animosity toward the protected class played a role in the employment decision. In affirming a directed verdict issued against a plaintiff who claimed that the burden of persuasion had shifted to the defense, the Smith court stated that "stray discriminatory remarks" made by certain company officials were not enough, by themselves, to cause the burden of persuasion to shift to the defendant. 875 F.2d at 1328-30. The court did not hold, as EHS might have it, that biased statements by an employer are never enough to show pretext under McDonnell Douglas. The court did address the sufficiency of the plaintiff's evidence under McDonnell Douglas, but in ruling for the defendant it explained that the comments attributed to the plaintiff's supervisor could not "rebut the weight of the detailed and documented testimony" concerning the plaintiff's "poor" and "sharply deteriorating" job performance. Id. at 1330. In that critical respect, Smith was very different from the case now before the court, in which the defendant's explanation for its decision is aggressively contested and the plaintiff's skillful job performance is undisputed. Accordingly, Crnokrak must be allowed to proceed with her claim.
Disparate Impact Arguments
EHS does not deny that Crnokrak's pregnancy was the "but for" cause of her demotion. She would not have been absent from work but for her pregnancy, and she would not have been demoted but for her absence. Under disparate treatment analysis, however, "but for" causation will not create liability unless it is accompanied by evidence of intentional discrimination. Disparate impact analysis can yield a different result even without such proof, as it did in Abraham, 660 F.2d at 819, because liability under a disparate impact theory does not require proof of intent to discriminate. Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). But in this case, as Crnokrak virtually admits with her formal abandonment of her "discriminatory policies" claim, the evidence cannot support a disparate impact claim.
Crnokrak identifies no specific practice that generally affects women unfavorably, and she offers no statistics to suggest that women as a group suffer adverse employment consequences from the EHS disability policies. Title VII and the PDA are designed to "put an end to an unrealistic and unfair system that forces women to choose between family and career," 124 Cong.Rec 21442 (1978) (remarks of Rep. Tsongas) (quoted with approval in California Federal Savings and Loan Ass'n v. Guerra, 479 U.S. 272, 286, 93 L. Ed. 2d 613, 107 S. Ct. 683 n.19 (1987)), but there is no allegation that the EHS system forced such a choice on its female employees. Crnokrak concedes that her absence was unusually long, and there is no indication that typical mothers-to-be were burdened significantly by the leave limitations that EHS imposed. Cf. Abraham, 660 F.2d at 819. Without additional evidence, the fact that a more generous pregnancy leave policy might have saved her job is not enough to support a discrimination claim. Crnokrak's statements to the contrary notwithstanding, the fact that she was replaced by a non-pregnant employee while she was on pregnancy leave does not automatically establish EHS' liability under Title VII.
For the foregoing reasons, Crnokrak is entitled to proceed on her disparate treatment claim under Title VII and the Pregnancy Discrimination Act.
JAMES B. MORAN,
Chief Judge, U.S. District Court
March 31, 1993.