Troupe v. May Dep't Stores Co. - 20 F.3d 734 (7th Cir. 1994)

Rule:

Three types of circumstantial evidence of intentional discrimination can be distinguished. The first consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn. Second is evidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic (pregnancy, sex, race, or whatever) on which an employer is forbidden to base a difference in treatment received systematically better treatment. And third is evidence that the plaintiff was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination.

Facts:

The plaintiff, Kimberly Hern Troupe, was employed by the Lord & Taylor department store in Chicago as a saleswoman in the women's accessories department. Until the end of 1990 her work was entirely satisfactory. In December of that year, in the first trimester of a pregnancy, she began experiencing morning sickness of unusual severity. The following month she requested and was granted a return to part-time status, working from noon to 5:00 p.m. Partly it seems because she slept later under the new schedule, so that noon was "morning" for her, she continued to experience severe morning sickness at work, causing what her lawyer describes with understatement as "slight" or "occasional" tardiness. In the month that ended with a warning from her immediate supervisor, Jennifer Rauch, on February 18, she reported late to work, or left early, on nine out of the 21 working days. The day after the warning she was late again and this time received a written warning. After she was tardy three days in a row late in March, the company on March 29 placed her on probation for 60 days. During the probationary period Troupe was late eleven more days; and she was fired on June 7, shortly after the end of the probationary period. She testified at her deposition that on the way to the meeting with the defendant's human resources manager at which she was fired, Rauch told her that "I [Troupe] was going to be terminated because she [Rauch] didn't think I was coming back to work after I had my baby." Troupe was due to begin her maternity leave the next day. Troupe brought an action under 42 U.S.C.S. § 2000e(k), claiming that she had suffered unlawful discrimination because of her pregnancy. In granting Lord & Taylor's motion for summary judgment, the district judge said that there is a "direct" and an "indirect" method of proving pregnancy discrimination, that the plaintiff used the direct method, that that method requires "direct evidence" of discrimination, meaning evidence that proves discrimination "without the need for inference or presumption," and that Troupe failed to produce any such evidence.

Issue:

Did Troupe produce sufficient evidence from which a rational trier of fact could infer that she was a victim of pregnancy discrimination?

Answer:

No.

Conclusion:

The court affirmed. The court stated that the Pregnancy Discrimination Act required an employer to ignore an employee's pregnancy, but not her absence from work, unless the employer overlooked the comparable absences of nonpregnant employees. As a result, the court determined that Troupe had produced no evidence from which a rational trier of fact could infer that she was a victim of pregnancy discrimination.