Defendant AT&T Mobility LLC moved for permission to file a supplemental brief concerning a recent Seventh Circuit decision which it claims directly impacts the plaintiff’s pending motion for summary judgment in a Pregnancy Discrimination Act (PDA) case. According to last week’s motion, the appellate decision shot down two arguments that parallel those made by the plaintiff.
The case concerns the claims of a fired AT&T retail store worker who alleges that she was terminated because she sought to take time off for medical appointments during her pregnancy. In November 2021, the plaintiff moved for partial summary judgment on the claims that AT&T’s attendance policy violates the PDA.
AT&T opposed, arguing that genuine issues of material fact warranted denial of the plaintiff’s motion. The filing countered that AT&T’s policy does not violate the PDA simply because the company “does not automatically excuse absences that may occur during pregnancy.”
Last week’s motion brought the new Seventh Circuit decision to the court’s attention, explaining that in the case, the panel considered a challenge to Walmart’s Temporary Alternate Duty Policy (TAD Policy), which offered light duty work only to workers injured on the job, but excluded pregnant women. The Equal Employment Opportunity Commission (EEOC) sued Walmart over the policy, alleging a violation of the PDA.
The district court found, and the appellate panel agreed, that though the EEOC established a prima facie case, Walmart articulated a legitimate nondiscriminatory reason for the TAD Policy and the EEOC failed to establish evidence of pretext in rebuttal.
AT&T pointed out that the panel declined a heightened standard which the plaintiff in the instant case also advocates for. By contrast, the Seventh Circuit found that Walmart satisfied its burden to show non-discriminatory motive because it “chose to offer a benefit to a certain category of workers, those injured on the job, without intending to discriminate against anyone else with physical limitations.”
Second, the motion pointed to the court’s ruling that PDA plaintiffs must present evidence of “comparators who were similar in the inability to come to work.” AT&T said the plaintiff makes the same “circular” argument advanced by the EEOC and rejected by the Seventh Circuit, and accordingly, that it should be allowed the opportunity to fully brief the issues.
The former employee is represented by the American Civil Liberties Union and AT&T by Paul Hastings LLP.