IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
WAL-MART STORES EAST, L.P.,
On Appeal from the
United States District Court
for the Western District of Wisconsin
GWENDOLYN YOUNG REAMS
Acting General Counsel
JENNIfer s. goldstein
Associate General Counsel
ANNE NOEL OCCHIALINO
Acting Assistant General Counsel
Anne W. KING
Attorney, Appellate Litigation Services
Office of General Counsel
Equal Employment Opportunity Commission
131 M St. NE, Fifth Floor
Washington, DC 20507
CERTIFICATE OF COMPLIANCE........................................
CERTIFICATE OF SERVICE.................................................
STATEMENT CONCERNING SHORT APPENDIX...............
501 U.S. 32 (1991).............................................................. 46
Cooke v. Stefani Mgmt. Servs., Inc.,
250 F.3d 564 (7th Cir. 2001)................................................ 53
Donelson v. Hardy,
931 F.3d 565 (7th Cir. 2019).................................... 27, 45, 49
Durham v. Rural/Metro Corp.,
955 F.3d 1279 (11th Cir. 2020)................................. 17, 29-30
e360 Insight, Inc. v. The Spamhaus Project,
658 F.3d 637 (7th Cir. 2011)............................................... 46
EEOC v. Target Corp.,
460 F.3d 946 (7th Cir. 2006)............................................... 35
Evans v. Griffin,
932 F.3d 1043 (7th Cir. 2019).............................................. 50
Gen. Elec. Co. v. Gilbert,
429 U.S. 125 (1976) .......................................................... 2, 3
Igasaki v. Ill. Dep’t of Fin. & Pro. Regul.,
988 F.3d 948 (7th Cir. 2021) .............................................. 27
Karum Holdings LLC v. Lowe’s Cos.,
895 F.3d 944 (7th Cir. 2018)............................................... 27
820 F.3d 67 (2d Cir. 2016)............................................ passim
Lewis v. City of Union City,
918 F.3d 1213 (11th Cir. 2019) (en banc)............................. 30
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).............................................................. 4
Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669 (1983).............................................................. 3
Ramirez v. T&H Lemont, Inc.,
845 F.3d 772 (7th Cir. 2016).................................... 45, 46, 47
Serednyj v. Beverly Healthcare, LLC,
656 F.3d 540 (7th Cir. 2011)............................................... 30
223 F.3d 605 (7th Cir. 2000).......................................... 48, 52
Skiba v. Ill. Cent. R.R. Co.,
884 F.3d 708 (7th Cir. 2018)............................................... 27
Tex. Dep’t of Cmty. Affs. v. Burdine,
450 U.S. 248 (1981)............................................ 28, 34, 35, 44
Trade Well Int’l v. United Cent. Bank,
778 F.3d 620 (7th Cir. 2015).......................................... 47, 48
Wallace v. McGlothan,
606 F.3d 410 (7th Cir. 2010)........................................... 49-50
Young v. United Parcel Serv., Inc.,
575 U.S. 206, 135 S. Ct. 1338 (2015)............................ passim
Americans With Disabilities Act,
42 U.S.C. § 12102(1)............................................................. 8
Pregnancy Discrimination Act,
Pub. L. No. 95-555, 92 Stat. 2076 (1978),
codified at 42 U.S.C. § 2000e(k)......................................... 1, 2
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq...................................................... 1
42 U.S.C. § 2000e(k)............................................ passim
42 U.S.C. § 1981a(b)(1)............................................... 53
Fed. R. Civ. P. 26(b)(1)........................................................ 25
Fed. R. Civ. P. 37(b)(2)(A)............................................ passim
Fed. R. Evid. 407................................................................ 24
Fed. R. Evid. 801(c)(2)......................................................... 40
The Equal Employment Opportunity Commission (EEOC or Commission) brought this enforcement action against Wal-Mart Stores East, L.P. (Walmart) under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., as amended by the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k). R.1 at 1. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345, and Title VII, 42 U.S.C. § 2000e-5(f)(3). R.1 at 2. On February 19, 2021, the district court granted summary judgment in Walmart’s favor and entered final judgment against the EEOC. R.204 (SA.13-SA.45); R.205 (SA.46). On April 20, 2021, the EEOC timely filed a notice of appeal. R.213. See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.
1. Whether the district court erred in granting summary judgment to Walmart (and denying summary judgment to EEOC) on EEOC’s pregnancy discrimination claims on behalf of eleven claimants who were denied light duty positions, even though Walmart provided light duty to non-pregnant employees who were injured on the job and who were similar to the claimants in their ability or inability to work.
2. Whether the district court abused its discretion in dismissing two claimants from EEOC’s suit as a discovery sanction for EEOC’s inadvertent belated production of claimants’ medical records.
3. Whether the district court abused its discretion in denying EEOC’s motion to compel certain discovery related to Walmart’s light duty program and the program’s exclusion of pregnant employees.
PERTINENT STATUTORY PROVISION
A pertinent statutory provision is reproduced in the Short Appendix to this brief.
This case is about Walmart’s refusal to provide light duty to pregnant employees with lifting restrictions, forcing them to take leave (sometimes unpaid). Walmart offered light duty to each of the eighty-nine employees with on-the-job injuries who requested it during the relevant timeframe but denied it to 100% of employees who needed light duty for pregnancy-related reasons. Walmart never attempted to justify withholding light duty from pregnant employees, and in 2017 it belatedly changed course to offer light duty to pregnant employees. Walmart’s unjustified refusal to provide light duty to pregnant employees violated the PDA under Young v. United Parcel Service, Inc., because it imposed a significant burden on pregnant women without substantial justification.
A. Statutory Background and Young v. United Parcel Service, Inc.
Congress enacted the Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k), to “overturn ‘both the holding and the reasoning of’” General Electric Co. v. Gilbert, 429 U.S. 125 (1976). Young v. United Parcel Service, Inc., 575 U.S. 206, 135 S. Ct. 1338, 1353 (2015) (quoting Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678 (1983)). Gilbert had held that a disability plan that paid “nonoccupational sickness and accident benefits” to all employees but excluded pregnancy-related disabilities from coverage did not violate Title VII’s prohibition on sex discrimination. 429 U.S. at 128-29.
The provision of the PDA prohibiting pregnancy discrimination includes two important clauses. Clause 1 provides that discrimination “because of sex” or “on the basis of sex” under Title VII includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Clause 2 dictates that employers must “treat” pregnant employees “the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Id.
In Young v. United Parcel Service, Inc., the Supreme Court considered how Clause 2 “applies in the context of an employer’s policy that accommodates many, but not all, workers with nonpregnancy-related disabilities.” 135 S. Ct. at 1343-44. The Court concluded that, in Clause 2 suits challenging such policies, the PDA “requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work.” Id. at 1344. The Court explained that the “[u]ltimate” inquiry is “whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination.” Id.
Young articulated a modified version of the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to assess, at summary judgment, whether there is a genuine issue of fact regarding this “ultimate inquiry.” At step 1 of Young’s framework, a plaintiff may establish a prima facie case of pregnancy discrimination by pointing to evidence “that [the employee] belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’” Young, 135 S. Ct. at 1354 (quoting 42 U.S.C. § 2000e(k)). At step 2, the employer may rebut the presumption of discrimination arising from the prima facie case by asserting a legitimate, nondiscriminatory justification for disparate treatment of pregnant employees. Id. This is a modified burden that differs from the employer’s step 2 obligation under McDonnell Douglas because “consistent with the [PDA’s] basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to [accommodate] pregnant [employees].” Id. Finally, at step 3, the employee may prevail by marshalling evidence that the employer’s stated reason is “not sufficiently strong to justify” “a significant burden on pregnant workers,” giving “rise to an inference of intentional discrimination.” Id.
Walmart operates Distribution Center #6025 in Menomonie, Wisconsin. R.150 at 1. Walmart’s employees (whom it calls “associates”) at Distribution Center #6025 load, unload, pack, and process freight and fill orders with Walmart products. Id. EEOC’s claimants all worked at Distribution Center #6025 and held positions that regularly involved lifting items weighing up to forty pounds or more. R.125-5 at 19; R.147-2 at 18; R.157-11 at 13; R.175 at 20-21, 27-28, 30, 32-33, 36, 40, 43-44, 46, 52-53, 55, 57-58, 60; R.181 at 20, 54. Each claimant was pregnant at least once between September 2014 and October 2017, the relevant timeframe in this lawsuit. See R.147-2 at 21, 24; R.175 at 21, 27, 30, 33, 36, 41, 44, 46, 52, 55, 57, 60; R.181 at 34.
Walmart maintains a Temporary Alternate Duty (TAD) Information policy (TAD Policy) that “provides a temporary position or modified job duties to an associate with a work-related injury who has been released to modified duty.” R.48 at 1 (A.91); R.149-1 at 2 (A.102). Under the TAD Policy, such an occupationally injured employee may be assigned to the employee’s “regular job with a minor modification” or to a “TAD position,” while receiving their regular pay. R.149-1 at 2-3 (A.102-A.103); see also R.155 at 34. TAD positions involve less strenuous tasks such as affixing labels, painting, detail cleaning, dusting, verifying bills of lading, and freight verification, and employees performing these TAD duties were permitted to sit when warranted. R.155 at 7-8.
Between September 2014 and October 2017, Walmart provided 100 TAD assignments—extending up to 144 days—to eighty-nine occupationally injured employees at Distribution Center #6025, including employees with lifting and standing restrictions and employees who needed reduced schedules. R.149-1 at 2 (A.102); R.149-2 at 2-6; R.149-3 at 2-5; R.155 at 7-9. When asked during discovery to identify any occupationally injured employee at Distribution Center #6025 who, during the relevant time period, requested TAD and was denied, Walmart was not able to identify anyone. R.147-3 at 3 (A.95). There is no limit to the number of TAD positions that are available at one time. R.154 at 10; R.155 at 8.
The TAD Policy states that the TAD program “aids in assisting the injured associate back to work in a temporary position when the associate has medical restrictions that require alternate duty.” R.149-1 at 2 (A.102). The policy explains that an occupationally injured employee’s “fear about the future and the ability to return to work . . . can be detrimental to recovery” and can render “return to work” “more difficult.” Id. The TAD Policy also lists several “benefits” of TAD, “including (but not limited to)” “[e]nhanced associate loyalty” because TAD “demonstrates a caring attitude and allows the associate to continue to be a contributing part of the facility team,” “[i]ncreased morale of the injured associate,” “[d]ecreased associate recovery time, which allows the associate to remain productive,” “[l]owered accident costs by reducing the payment of lost wages,” and “[r]educed legal exposure by allowing the associate to earn full wages.” Id.
Although numerous employees at Distribution Center #6025 received light duty TAD positions due to restrictions stemming from occupational injuries, “[p]regnant employees with pregnancy-related medical restrictions that were not the result of a work-related injury were not eligible for [TAD].” R.48 at 1 (A.91). In the parties’ stipulation, Walmart did “not dispute that the pregnant employees who were not eligible for [TAD] had medical restrictions that were the same as or similar to the medical restrictions of the employees with work-related injuries who received [TAD].” Id. Human resources (HR) personnel at Distribution Center #6025 could not identify any employees at the Distribution Center who received pregnancy-related accommodations other than leave (intermittent or continuous) before October 2017. R.154 at 17; R.155 at 13.
When asked during discovery to provide the reasons why the TAD program was not available to employees who had limitations as a result of pregnancy, Walmart cited the TAD Policy itself but did not articulate any reasons for excluding pregnant employees from TAD. R.147-5 at 3-4 (A.97-A.98); R.147-6 at 4-5 (A.100-A.101); R.149-1 (A.102-A.104). The TAD Policy says nothing about why the policy did not apply to employees who required accommodations due to pregnancy. R.149-1 (A.102-A.104). When asked during discovery to produce documents showing any analysis of the cost of providing TAD or light duty to pregnant employees, Walmart responded that it had no responsive documents. R.147-6 at 11-12.
Effective October 2017, Walmart amended its policies to make employees requiring accommodation for pregnancy-related reasons eligible for TAD. R.147-7 at 3. Accommodating employees with pregnancy-related medical restrictions has not impeded or interfered with Walmart’s ability to accommodate employees with work-related injuries at Distribution Center #6025. R.154 at 29; R.155 at 35. Walmart established “Pregnancy TAD” “to create a positive working environment for pregnant associates and management” and to treat pregnant employees as “valuable member[s] of the team.” R.150-1 at 3.
Walmart also maintains an Accommodation in Employment – (Medical-Related) Policy (“Accommodation Policy”). R.148-4 at 2-3; R.150 at 15. The Accommodation Policy outlined procedures respecting (1) “reasonable accommodations” for “associates who have a disability,” including “temporary disabilit[ies] caused by pregnancy,” and (2) accommodations for associates with “a medical condition, that is not a disability, but which prevents [the associate] from performing [her] job.” R.148-4 at 2. Accommodations for “medical conditions,” defined as “mental or physical impairment[s],” included “leave[s] of absence,” “transfer to another open position,” and “job adjustment[s].” Id. “Job adjustments” did not include “creating a job, removing or reducing an essential function, . . . transferring a portion of a job to another associate, light duty, or temporary alternative duty or reassignment.” Id. at 2-3. “Reasonable accommodations” for “disabilities,” (defined consistent with the definition of “disability” in the Americans With Disabilities Act, 42 U.S.C. 12102(1) (ADA)) included “part-time or modified work schedules,” “[c]hanging non-essential job functions,” “use of accrued paid leave,” “unpaid leave,” and “reassignment to an open vacant position.” Id. at 3.
EEOC’s claimants all required accommodation because of their pregnancies and Walmart had notice that they needed such accommodations. R.147-2 at 21-22, 24; R.175 at 25-28, 30-31, 34, 36, 38, 42-44, 48-49, 53-56, 58; R.181 at 41. Had the claimants been injured on the job, such notice would have been enough to trigger an exploration of light duty under the TAD Policy. R.149-1 at 3 (A.103).
During their pregnancies, most of the claimants received medical lifting restrictions limiting them to lifting thirty pounds or less. R.175 at 25-28, 30-31, 34, 42-43, 53, 58. These claimants held positions that required incumbents to lift forty pounds or more, see supra p. 5, so their lifting restrictions rendered them unable to perform those lifting duties. Because Walmart limited TAD to occupationally injured employees, claimants were instead forced to take leave, some without pay. R.48 at 1 (A.91); R.155 at 23; R.175 at 26, 28, 31, 34, 43-44, 54, 57, 59. As the Distribution Center’s HR office manager testified, it was “not [the Distribution Center’s] practice” to treat pregnant employees’ lifting restrictions as requests for accommodation because “mainly, when [pregnant employees] came and gave us lifting restrictions, they were ready to go out and go on [a leave of absence].” R.155 at 4, 12. Therefore, Stephanie Kohls took more than five months of leave after receiving lifting restrictions and before giving birth, Shawna Anderson took four months, and Alyssa Gilliam took more than two months. R.157-1 at 27; R.175 at 26-28, 44.
Other claimants, including Stacy Lander and Monica Horner, asked their medical providers not to give them lifting restrictions because they feared Walmart would require them to take leave. See R.156 at 28, 32 (HR representative told Lander that she would not be allowed to work if her doctor imposed a lifting restriction and that a reduction in hours was the only accommodation Walmart could offer); R.157-11 at 24-25 (Horner “was told if I had weight restrictions I was [on] mandatory leave”; Horner conveyed to her medical provider that “[she] would be forced on leave” if she received a weight restriction); see also R.181 at 38, 46 (Leah Hayworth asked her provider not to document a lifting restriction).
Indeed, HR representatives at Distribution Center #6025 repeatedly told claimants that Walmart required employees with pregnancy-related lifting restrictions to take leave. For example, a representative told Gilliam that, if her medical provider imposed a lifting restriction, she would be “forced” to take leave “effective immediately,” because it would be “unsafe for [Gilliam] to be in [the] building.” R.157-1 at 33-34. Similarly, when Anderson submitted a lifting restriction, a HR representative “forced” her to “take [her] leave early” and told her to “come back when [she] wasn’t pregnant.” R.157-5 at 20. See also, e.g., R.157-7 at 29-32 (Amanda Cigan-Diaz was told “once you hand [the lifting restriction] in, you can’t work”); R.157-12 at 33 (HR representative told Brittney Kitchenmaster “if you have restrictions you’re not allowed in the building”); R.157-14 at 21-22, 28 (Kohls was “told that because [her] lifting restrictions were pregnancy-related . . . [she] could not be in the building, [and] that they could not allow [her] to work”).
Some claimants inquired about options to receive light duty or other accommodations that would permit them to continue working during their pregnancies. Evelyn Welch asked to be moved to another position and “begged for light duty,” but Walmart demurred. R.157-18 at 16. When she submitted her lifting restriction, Cigan-Diaz asked if she could remain at work and handle “receiving,” a component of her position that involved cutting boxes rather than lifting, but Walmart rejected this proposal. R.157-7 at 31-34. Similarly, Walmart denied Gilliam’s request to handle a particular task in her work area—“unloading”—that involved paperwork and labeling boxes. R.157-1 at 31-32. During her 2014 pregnancy, Horner could not stand for extended periods, so she inquired about work that could be performed while sitting. R.157-11 at 28-30. Horner’s area managers/coaches told her she could sit while scanning freight, but because this would have left her duty area without coverage and Horner’s assigned work unfinished, Horner took intermittent leave instead. Id.
As for accommodations other than light duty, Gilliam sought several workplace accommodations—including permission to keep drinks, snacks, and a stool at her station—but Walmart denied those requests. R.157-1 at 31-32. Some claimants (including Kohls and Anderson) were deemed eligible for transfer or job reassignment under Walmart’s Accommodation Policy, but nevertheless remained on leave until giving birth because no position or reassignment was available. R.149-23 at 1; R.157-14 at 28-29; R.158-11. HR personnel acknowledged that Walmart did not provide training at Distribution Center #6025 on accommodations for pregnant employees (before October 2017, when Walmart began offering TAD to employees with pregnancy-related restrictions). R.154 at 4, 13; R.155 at 4, 11.
Claimants who were forced to take leave wanted to work and would have continued to work if Walmart had provided accommodations that allowed them to remain at work. For example, Anderson believed that, during her pregnancy, she could have performed the same tasks she assumed when assigned TAD for a work-related injury. R.157-5 at 25. Kohls said, “I was willing and able to work[, but] I just had a few restrictions that could have easily been worked around[,] . . . and instead, I was off for four or five months.” R.157-14 at 27. See also R.157-1 at 27-28 (Gilliam “was looking to work up until [her] son was born”); R.157-7 at 55 (Cigan-Diaz “wanted to work up until [she] had [the baby]”).
Claimants forced to take leave experienced significant financial hardship and emotional distress. Anderson said “[g]oing from two incomes to one income . . . caused a lot of financial stress in our house” and recalled that it was difficult “trying to feed four children and a pregnant woman” and that she “felt embarrassed” to ask family members to “help out” with groceries and milk. R.157-5 at 22, 25. Kohls “wasn’t able to enjoy [her] pregnancy” and experienced sleeplessness “just about every night” due to “worr[ying] financially how [to] support [her] family” with “a new baby coming in.” R.157-4 at 25-26 (“I didn’t know if I had a job to come back to.”). Gilliam did not return to Walmart after giving birth because “we knew that we were going to have a second child” in the future “and I didn’t want to go through the same experience.” R.157-1 at 25-26.
Finally, EEOC’s claimants recounted pregnancy-related animus at Distribution Center #6025. When a supervisor saw Hayworth struggling at work during her pregnancy, he asked “was that 10 seconds of pleasure worth it.” R.181 at 18. He also showed Hayworth a condom package and told her to read the box, “so we don’t end up here again.” Id. Hayworth, Lander, and Cassandra Lein heard coworkers make negative comments about pregnancy, including that pregnant employees didn’t belong at the Distribution Center, that they didn’t want to work, that they couldn’t do the job, or that they were lazy. R.156 at 45; R.157-16 at 27-28; R.181 at 18.
In December 2019, Walmart served discovery requests seeking records relating to “examination and/or treatment for [claimants’] pregnancy at any time during [claimants’] employment with Walmart.” R.69-2 at 5, 7, 28; R.80 at 38 (A.38). EEOC wished to manage collection of these records to protect claimants’ privacy and to avoid producing irrelevant but highly sensitive medical records. R.130 at 2-3. In EEOC’s experience, the prospect of disclosing such records deters discrimination victims from participating in EEOC lawsuits. Id.
The process of collecting claimants’ medical records involved several steps. EEOC obtained releases from the claimants, submitted releases to the claimants’ medical providers, and followed up with providers (issuing subpoenas when necessary). R.80 at 3 (A.3); R.130 at 3-4. Many providers outsourced records management to third-party companies. R.130 at 4. Upon receipt of paper records, EEOC sent them to an outside vendor for scanning and processing, reviewed the scanned documents, and identified documents responsive to Walmart’s discovery requests. Id. at 3-4. Because EEOC requested each claimant’s entire medical file from each provider she saw during each pregnancy, and because some claimants saw their providers for many years, EEOC received numerous records dating years before or after claimants’ pregnancies. Id. at 3 & n.1. For example, Cigan-Diaz’s records encompassed 20 years, beginning when she was five years old. Id. at 3 n.1; see also R.157-7 at 11-12.
By March 12, 2020, EEOC had produced medical records for all claimants. R.130 at 4. (During claimant discovery, EEOC produced approximately 6,000 pages of medical records. Id. at 1.) Walmart deposed some claimants in January and February 2020. See, e.g., R.110; R.157-1; R.157-5; R.157-22. Then, in March and April 2020, the court entered orders (1) providing that, due to the COVID-19 pandemic, subsequent depositions would be held via video or telephonically and (2) extending the claimant-deposition deadline. R.97 at 2-3 (A.79-A.80); R.99. Walmart deposed all of EEOC’s claimants by the new deadline, August 31, 2020. R.130 at 4.
On August 10, 2020, the day before claimant Hayworth’s scheduled deposition, EEOC learned that it had inadvertently neglected to produce 57 records (totaling about 600 pages) related to Hayworth’s pregnancy. R.125-7 at 1; R.126 at 1: R.130 at 4. EEOC immediately notified Walmart of the problem and produced the documents the same day. R.125-7 at 1: R.130 at 4. Walmart canceled the deposition, EEOC promptly proposed new dates, and Walmart deposed Hayworth on August 25, 2020. R.130 at 4; R.181 at 18. Most of the omitted documents related to Hayworth’s treatment and monitoring during labor and delivery. R.130 at 4. At the deposition, Walmart’s counsel did not question Hayworth about the omitted documents, and EEOC’s counsel inquired on redirect about one page from the omitted batch. Id. at 4-5; see R.181; see id. at 52-55.
On August 5, 2020, Walmart deposed claimant Shannon Sonnentag. R.125-5 at 1. At the deposition, Walmart confirmed that EEOC had not produced several of Sonnentag’s medical records. R.130 at 6. The omitted documents included 26 pages relating to Sonnentag’s second pregnancy—pages that were duplicative of the records Walmart already had in its possession and had obtained from its leave-of-absence administrator—and 5 pages of post-partum records. Id. Most of these omitted documents included information that Walmart already possessed, in its own documents and in other documents that EEOC had already produced. Id. EEOC believes the inadvertent production error was due to incorrect unitization of these documents by EEOC’s third-party vendor. Id. EEOC had received hundreds of records (spanning about 25 years) from Sonnentag’s providers, and many of these records were not responsive to Walmart’s discovery requests. Id. at 5.
On multiple occasions, Walmart also belatedly produced relevant documents ahead of claimants’ depositions. Id. at 7. On July 31, 2020, Walmart produced to EEOC over 1200 pages of relevant documents, including documents relating to claimants whose depositions were scheduled within days. R.130 at 7; see, e.g., R.125-5 at 2: R.157-18 at 2. EEOC complained to Walmart of the late production but continued with the scheduled depositions. R.130 at 7. Also, during Emily Wiedmaier’s deposition, Walmart exhibited several documents that it had never produced to EEOC. Id.; R.131-1 at 2. EEOC noted the issue on the record and requested production of the documents after the deposition. R.130 at 7; R.131-1 at 2. Three weeks later, Walmart produced 159 pages of highly relevant documents related to Wiedmaier’s accommodation requests. R.130 at 7.
C. Procedural Background
EEOC challenges on appeal (1) the district court’s February 19, 2021, order denying EEOC’s motion for partial summary judgment and granting Walmart’s motion for summary judgment on EEOC’s PDA (sex-discrimination) claims, R.204 (SA.13-SA.45); (2) the court’s dismissal of two claimants as a discovery sanction in its September 18, 2020, order, R.142 (SA.1-SA.12); (3) the court’s denial in the September 18 order of certain discovery related to Walmart’s TAD Policy, id.
The district court determined that EEOC articulated a prima facie case to satisfy the first step of the Young burden-shifting inquiry. R.204 at 18 (SA.30). The parties disputed only whether the record offered sufficient evidence to establish the fourth prong of the prima facie case: “that the employer did accommodate others ‘similar in their ability or inability to work.’” Young, 575 U.S. at 1354 (quoting 42 U.S.C. § 2000e(k)). See R.204 at 16 (SA.28).
The district court determined that EEOC “satisfied the fourth prong of the prima facie case.” Id. at 18 (SA.30). In reaching this conclusion, the court agreed with the Second and Eleventh Circuits—“the only two federal appellate courts [that have] consider[ed] Young in detail”—that “employees who receive light duty for occupational injuries are appropriate comparators [under Young] to pregnant employees who are not eligible for light duty.” Id. (citing Durham v. Rural/Metro Corp., 955 F.3d 1279, 1285-86 (11th Cir. 2020); Legg v. Ulster Cnty., 820 F.3d 67, 74 (2d Cir. 2016)). The court rejected Walmart’s argument that EEOC “cannot use employees who received TAD as comparators to [the] claimants” “because [Walmart’s] TAD policy was pregnancy-neutral.” Id. at 16 (SA.28). The court reasoned that Young abrogated Walmart’s primary authority for this argument. Id. at 17-18 (SA.29-SA.30).
The district court apparently assumed that Walmart met its obligation at step 2 of the Young framework. Id. at 19 (SA.31). The court stated that Walmart identified reasons why it “provid[ed] TAD only to employees who had been injured on the job,” including “increasing morale and loyalty, speeding up [occupationally injured] employee[s’] recovery time[,] and decreasing costs and legal exposure.” Id.; see also R.169 at 16. The court acknowledged EEOC’s arguments that Walmart merely cited “generic reasons” for offering workers compensation programs and never explained why it did not offer TAD to pregnant employees, which “was feasible,” given that Walmart later did so. R.204 at 19 (SA.31). But the court proceeded directly to its step 3 analysis rather than fully assessing whether Walmart offered a sufficient justification to satisfy step 2. Id. at 19, 22 (SA.31, SA.34).
The district court concluded that EEOC could not prevail at step 3 of Young’s modified inquiry. Id. at 16 (SA.28). As the court explained, “a plaintiff ‘may reach a jury [at step 3] by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.’” Id. at 21-22 (SA.33-SA.34) (quoting Young, 135 S. Ct. at 1354). The court acknowledged record evidence “show[ing] that pregnant employees suffered a burden,” namely that “100 percent of employees injured on-the-job who were able to work at all were accommodated under TAD, while no pregnant employees with medical restrictions were even eligible for TAD.” Id. at 22 (SA.34). However, the court deemed this evidence insufficient because, the court said, EEOC “ha[d] not presented any evidence about what percentage of non-pregnant workers injured off the job were provided accommodations or forced to take leave.” Id. at 22-23 (SA.34-SA.35) (opining that Young requires plaintiffs to present “evidence related to percentages” to establish “significant burden”). The district court added its view that EEOC inappropriately “shift[ed] the burden” to Walmart at step 3 by asserting that Walmart failed to “allege any burden on its side of the scale and has not attempted to compare its actual burden to the burden placed on pregnant women, or to compare the percentages of employees burdened by the discriminatory policy.” Id. at 22 (SA.34).
The court noted EEOC’s argument that employees with disabilities constituted another group of employees who could receive accommodations for lifting restrictions, and acknowledged evidence that “some of the claimants sought and were considered for an accommodation” under Walmart’s Accommodation Policy “but had to remain on leave because a suitable open position was not available.” Id. at 23-24 (SA.35-SA.36). But the court said “it is undisputed that all workers not injured on the job were subject to the same rules [as pregnant employees] regarding job transfers, reassignment and leave,” and further opined that EEOC “fail[ed] to develop this argument or cite specific evidence to support it.” Id.
Relatedly, the district court acknowledged claimants’ testimony that local HR personnel or supervisors “told them that if they had lifting restrictions, they had to take a leave of absence . . . and in some cases told [claimants] they could not be in the building if they had lifting restrictions.” Id. at 27 (SA.39). But the court said EEOC failed to develop this evidence, and further deemed such statements “inadmissible hearsay.” Id.
Accordingly, the district court concluded that “[a]part from the TAD policy’s exclusion of pregnant workers, [EEOC] has not presented sufficient evidence to call into question [Walmart’s] motives for not offering pregnant employees light-duty work.” Id. at 26 (SA.38). The court distinguished the Second Circuit’s reasoning in Legg, which, the court said, deemed the employer’s justification pretextual based on evidence of inconsistent justifications, evidence that “cost was a factor,” and “the policy categorically denied accommodation with light duty.” R.204 at 26-27 (SA.38-SA.39) (citing Legg, 820 F.3d at 77). Here, the court said, EEOC did not cite examples of inconsistent applications of TAD or inconsistent explanations for the policy. Id. at 26 (SA.38). And the court also rejected EEOC’s arguments that other evidence of discriminatory attitudes against pregnant employees bolstered record evidence under the Young framework. Id. at 25-26, 29-32 (SA.37-SA.38; SA.41-SA.44).
The district court granted in part Walmart’s motion for sanctions, striking claimants Hayworth and Sonnentag for EEOC’s inadvertent late production of documents relating to those claimants. R.142 at 8-11 (SA.8-SA.11). The court did not cite any authority supporting its decision to dismiss EEOC’s claimants as a discovery sanction and did not specify whether it was sanctioning EEOC under Federal Rule of Civil Procedure 37(b)(2)(A) or under its inherent authority. R.142 at 8-11 (SA.8-SA.11). The court declined to award other, less punitive, relief Walmart requested. Id.
The district court acknowledged that EEOC’s late production was “inadvertent.” Id. at 11 (SA.11). But the court stated that EEOC had asked to be in “control of obtaining the records, agreeing to suffer the consequences if it could not perform that role” and added that it had “warned [EEOC] more than once that claimants would be struck if [EEOC] did not produce the claimants’ records in a timely manner.” Id.
In imposing the dismissal sanction, the district court considered a selective history of discovery disputes in this lawsuit. It cited the magistrate judge’s rulings concerning the collection of claimants’ medical records and the deadline for producing claimant records, id. at 8 (SA.8) (citing R.80 (A.1-A.44)), and its own prior order finding that EEOC had “violated” the thirty-days-before-depositions production deadline, but nevertheless denying Walmart’s first motion for discovery sanctions, id. (citing R.97 (A.78-A.88)). Therefore, a detailed summary of the history of discovery disputes provides important context for the court’s claimant-dismissal ruling.
First, the claimant-dismissal ruling stated that EEOC “asked to be the party to request [claimants’] records,” citing the magistrate judge’s ruling, at a February 4, 2020, hearing, that declined Walmart’s bid to obtain claimants’ medical records directly from their providers. Id. at 8-9 (SA.8-SA.9) (citing R.80 (A.1-A.44)). At that hearing, the magistrate judge agreed with EEOC that it should be the party to collect claimants’ medical records from providers. R.80 at 19, 21 (A.19, A.21); see also R.78. The magistrate judge accepted EEOC’s position that it has a de facto attorney-client relationship with the claimants and questioned whether Walmart “would get a quicker response” from the claimants’ providers. R.80 at 17, 37 (A.17, A.37) (“[I]t is common . . . for parties to report to the Court that [medical providers are] not timely providing responses to [records] demands.”).
Second, the claimant-dismissal ruling pointed to the magistrate judge’s ruling—at the same February 4 hearing—requiring that EEOC provide Walmart with claimant-related discovery at least thirty days before each claimant’s deposition. R.142 at 8 (SA.8) (citing R.80 (A.1-A.44)). The district court acknowledged that EEOC “noted its concerns about getting timely responses from claimants and their medical providers” but stated that EEOC agreed “the 30-day deadline was appropriate.” Id. at 8-9 (SA.8-SA.9). At the February 4 hearing, Walmart’s stated reason for requesting a thirty-days-before-depositions production deadline was so that Walmart could review the medical records and return to the court before depositions if it believed EEOC’s production was incomplete. R.80 at 29, 39 (A.29, A.39). The magistrate judge granted Walmart’s request on that basis. Id. at 39 (A.39). EEOC’s counsel explained at the hearing that EEOC had provided signed releases to claimants’ medical providers and had contacted providers to follow up, but underscored that “the time line” for medical-records production was not “within [EEOC’s] control.” Id. at 31-32 (A.31-A.32). However, EEOC’s counsel agreed that claimants’ “depositions would be better” if held after the relevant “documents were collected and produced.” Id. at 32, 39-40 (A.32. A.39-A.40).
At a status conference on March 2, 2020, the magistrate judge clarified this thirty-days-before-depositions production deadline. R.86 at 17 (A.61). Walmart noticed several claimant depositions for dates about six weeks after the February 4 hearing, leaving EEOC only about two weeks after that hearing to produce some claimants’ records. Id. at 4-5 (A.48-A.49); see also R.97 at 4 (A.81). EEOC’s counsel proposed rescheduling these depositions for a date after the EEOC had received the full medical records. See R.86 at 5-6, 10-11 (A.49-A.50, A.54-A.55). The magistrate judge expressed doubt about EEOC’s proposal for rescheduling but acknowledged “some logic to the EEOC’s position” because the February 4 ruling establishing the thirty-days-before-depositions production deadline “left a gap” or a “hole we didn’t see.” Id. at 13, 16-18, 20 (A.57, A.60-A.62, A.64). As the magistrate judge explained, neither he nor the parties “thought about whether early depositions, early March would prevent the EEOC from getting records.” Id. at 13 (A.57). The magistrate judge suggested that Walmart could file a motion with the district court to strike claimants, but only upon a showing of “actual prejudice.” Id. at 14 (A.58). Following that suggestion, Walmart filed a motion to strike nine claimants (out of 15 claimants at the time) because, it said, EEOC failed to meet the thirty-days-before-depositions production deadline for those claimants. R.87.
The district court’s claimant-dismissal order also relied on its own March 27, 2020, order denying Walmart’s first motion to strike. R.142 at 9 (SA.9) (citing R.97 (A.78-A.88)). The March 27 order noted the district court’s view that EEOC had “violate[d]” the thirty-days-before-depositions production deadline for some claimants, but the court nevertheless underscored that the circumstances did not warrant striking the claimants. R.97 at 7 (A.84). The order stated that EEOC “represented” at the February 4 hearing that it would meet the thirty-days-before-depositions deadline if “allowed to be the intermediary for the medical records,” but noted that the magistrate judge recognized that neither he nor the parties had “considered the impact of early depositions.” Id. at 4-5 (A.81-A.82) (citing R.86 (A.45-A.77)).
The March 27 order acknowledged EEOC’s assertion that it had “produced complete medical files for all of” the current claimants by March 12, about seven weeks before the claimant-deposition deadline (May 1) in effect at the time. Id. at 4-5 (A.81-A.82); see also R.91 at 3. Therefore, the court explained, “[n]ow that all of the claimants have been identified and their records have been produced, the possible prejudice to [Walmart] focuses on meeting” discovery deadlines. R.97 at 7 (A.84). The court said it would consider future motions from Walmart seeking extensions of the discovery deadlines or requesting reimbursements of costs related to postponing or rescheduling depositions. Id.
The district court’s September 18 order also largely denied the EEOC’s objections to the magistrate judge’s order denying in part and granting in part EEOC’s motion to compel. R.142 at 1 (SA.1); see R.106 (A.89-A.90) (magistrate judge order). EEOC asked the court to compel, among other things, (1) responses to discovery requests asking Walmart to identify employees responsible for changes to Walmart’s light-duty policy (Interrogatory 19) and (2) production of documents (A) responsive to the question why Walmart’s TAD Policy originally excluded pregnant employees (Document Request 30); (B) responsive to the question why Walmart changed its policies to offer TAD to pregnant employees (Document Requests 31); and (C) relating to trainings at Walmart after the Supreme Court decided Young. R.102 at 4; see also R.102 at 4; R.103-1 at 4; R.103-2 at 4, 10.
In a two-page order, the magistrate judge stated that TAD-related discovery would be limited to “any nonprivileged documents that explain why Walmart changed its TAD policy.” R.106 at 2 (A.90); see also R.103-2 at 4. (The magistrate judge did not mention the other TAD-related discovery requests at issue in EEOC’s motion.) The magistrate judge deemed “extremely unlikely” the prospect that “EEOC will be allowed to use at trial any evidence about why [Walmart] changed its TAD policy both on relevance grounds and pursuant to [Federal Rule of Evidence] 407.” R.106 at 1 (A.89). But the magistrate judge did not “completely shut off this area of inquiry” because “discoverability is not the same as admissibility” and because EEOC’s request was not “clearly outside the scope of” Federal Rule of Civil Procedure 26(b)(1). R.106 at 1-2 (A.89-A.80). The magistrate judge underscored that “production is limited to the documents,” noting that “Walmart does not claim that producing the requested documents will be unduly burdensome.” Id.
The district court largely denied EEOC’s objections to the magistrate judge’s order. R.142 at 1 (SA.1). The district court first noted that the magistrate judge permitted discovery of documents explaining why Walmart changed its TAD Policy in 2017 to include pregnant employees, and the court clarified that EEOC could also obtain “documents relating to why the [TAD] policy originally excluded pregnant women.” Id. at 2, 4 (SA.2, SA.4). But the court held that the magistrate judge’s “‘document only’ mandate” generally precluded EEOC from broader discovery on these topics, including deposition questions to Walmart’s representatives. Id. at 4 (SA.4). And the district court declined to overrule the magistrate judge’s order prohibiting EEOC from seeking discovery “inquir[ing] into who was responsible for the changes in [Walmart’s TAD] policy or what training may have occurred after Young was decided.” Id.
The district court erred in denying EEOC’s motion for summary judgment—and instead granting Walmart’s motion for summary judgment—on EEOC’s claims alleging Walmart violated Title VII by denying the claimants light duty to accommodate pregnancy-related restrictions. Walmart provided light duty to eighty-nine occupationally injured employees—100 percent of those who sought the accommodation—while categorically denying light duty to pregnant employees. Even though EEOC’s claimants could have continued working had Walmart offered light duty, and even though light duty positions were unlimited, Walmart instead required claimants to take leave before giving birth.
Under the modified framework articulated in Young, EEOC should prevail, or at least reach a jury. EEOC has established a prima facie case: Walmart stipulated that occupationally injured employees who received light duty were “similar” to the claimants “in their ability or inability to work.” Walmart failed to satisfy its responsive obligation because it did not articulate any reason why it excluded pregnant employees from TAD. Even if Walmart had offered an explanation, EEOC offered evidence demonstrating that pregnant employees sustained a “significant burden” and that Walmart’s explanations respecting its limited TAD Policy did not justify that burden.
The district court further erred in dismissing two claimants for EEOC’s “inadvertent” late production of documents, because it failed to make a required finding to justify the harsh sanction of dismissal, and because, in any event, the record does not support such a finding.
This Court reviews de novo a district court’s order granting summary judgment. Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). This Court reviews for abuse of discretion dismissal sanctions under Rule 37 or the district court’s inherent authority, Donelson v. Hardy, 931 F.3d 565, 569 (7th Cir. 2019), and discovery rulings, Karum Holdings LLC v. Lowe’s Cos., 895 F.3d 944, 950–53 (7th Cir. 2018).
Under Young’s three-step framework, this Court should remand and order entry of judgment for EEOC, or, at a minimum, reverse summary judgment for Walmart and remand for trial. As the district court found, EEOC satisfied the first step by establishing a prima facie case. R.204 at 18 (SA.30). But the district court went astray in its evaluation of the next two steps of Young’s modified framework. The district court should have granted EEOC summary judgment at step 2 because Walmart failed to articulate why it refused to provide light duty to pregnant women; instead, Walmart said only why it provided light duty to occupationally injured employees. Even assuming Walmart met its obligation at step 2, EEOC should have prevailed at Young’s third step because there is no genuine dispute that Walmart “impose[d] a significant burden” on pregnant employees that outweighed Walmart’s stated justifications—or, at a minimum, a jury could conclude that the burden on pregnant employees outweighed Walmart’s justifications.
EEOC established a prima facie case, a task that is “not onerous.” Young, 135 S. Ct. at 1354 (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)). In district court, the parties disputed only whether EEOC satisfied the fourth prong of the prima facie case by proffering evidence “that the employer did accommodate others ‘similar in their ability or inability to work.’” Id. (quoting 42 U.S.C. § 2000e(k)).
As the district court correctly concluded, the record establishes that Walmart provided an accommodation of light duty work to occupationally injured employees “similar” to claimants “in their ability or inability to work.” R.204 at 18 (SA.30). Walmart stipulated (1) that “only employees with medical restrictions related to work-related injuries were eligible for [TAD]” and (2) that “pregnant employees who were not eligible for [TAD] had medical restrictions that were the same as or similar to the medical restrictions of the employees with work-related injuries who received [TAD].” R.48 at 1 (A.91). Walmart’s stipulations satisfy both elements of the fourth prong of the prima facie case under Young: (1) provision of accommodation to others (2) who were similar in their ability or inability to work.
Young makes clear that employees accommodated pursuant to pregnancy-blind policies—such as policies reserving light duty positions only for those injured on the job—are valid comparators for pregnant workers denied light duty. As Young explained, a plaintiff is not required “to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways.” 135 S. Ct. at 1354. In drafting Clause 2 of the PDA, Congress articulated a single criterion for determining whether employees are appropriate comparators to pregnant employees: whether they are “similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).
Accordingly, as the district court recognized, “the only two federal appellate courts [that have] consider[ed] Young in detail” have concluded that “employees who receive light duty for occupational injuries are appropriate comparators [under Young] to pregnant employees who are not eligible for light duty.” R.204 at 18 (SA.30). In Legg the Second Circuit compared accommodations offered to pregnant employees to accommodations offered “to other employees who were similar in their ability or inability to work, namely, those who were unable to perform non-light-duty tasks as a result of injuries incurred on-duty.” 820 F.3d at 74. And the Eleventh Circuit concluded in Durham that a pregnant employee “and her colleagues who were injured on the job were ‘similar in their ability or inability to work.” 955 F.3d at 1286. Durham explained that, “in contrast to” the “more general comparator analysis” that applies in traditional Title VII claims, “the comparator analysis under the PDA focuses on a single criterion—one’s ability to do the job,” and not how the limitation arose. Id. (quoting Lewis v. City of Union City, 918 F.3d 1213, 1228 n.14 (11th Cir. 2019) (en banc)).
The district court also correctly rejected Walmart’s argument that Circuit precedent precludes the use of occupationally injured coworkers as comparators in Clause 2 PDA suits. See R.204 at 17-18 (SA.29-SA.30). Young abrogated Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540 (7th Cir. 2011), the decision on which Walmart relied, see Young, 135 S. Ct. at 1348, and in any event, as the district court explained, Serednyj “did not state expressly or otherwise hold that occupationally injured employees are not similarly situated to pregnant workers as a matter of law.” R.204 at 17 (SA.29); see also Serednyj, 656 F.3d at 551-52.
Young imposes a modified standard at step 2 that requires employers to do more than simply articulate the reason why it provided a benefit to non-pregnant employees. The employer must also articulate the reasons why it excluded pregnant employees from the benefit. This more specific burden of production, which differs somewhat from the burden of production under McDonnell Douglas, is rooted in the text and purpose of the PDA. Here, the district court erred by failing to analyze whether Walmart satisfied this modified, more specific burden of production. See R.204 at 19 (SA.31).
Young’s more specific burden of production finds support in the Supreme Court’s analysis of the PDA’s text. The Court rejected the proposition that Clause 2 merely clarifies the scope of Clause 1, because courts should interpret statutes so that “no clause is rendered superfluous, void, or insignificant.” Young, 135 S. Ct. at 1352 (citation and internal quotation marks omitted). Accordingly, Young reasoned, to give full meaning to Clause 2’s text, the “[u]ltimate” question in Clause 2 suits is “whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination.” 135 S. Ct. at 1344. Because “the nature of the employer’s policy” “and the way . . . it burdens pregnant women” are important considerations, it follows that, at step 2, the employer must do more than provide its reasons for conferring a benefit on non-pregnant employees. It must also explain why it did not confer that benefit on pregnant employees. As Young put it, the court must analyze the “strength of the [the employer’s] justification” by considering “why, when the employer accommodated so many, could it not [also] accommodate pregnant women.” Id. at 1355.
The PDA’s purpose—overruling Gilbert—further supports applying a heightened burden of production in Clause 2 suits. As Young explained, “consistent with [this] basic [statutory] objective,” an employer “normally” cannot discharge its burden of production by “simply” asserting “that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.” 135 S. Ct. at 1354. Clause 2 of the PDA requires more of the employer because “the employer in Gilbert could in all likelihood have made just such a claim.” Id.; see also id. at 1355 (emphasizing that “Congress’ intent in passing the [PDA] was to overrule the Gilbert majority opinion, which viewed the employer’s disability plan as denying coverage to pregnant employees on a neutral basis”). Therefore, as a general matter, an employer’s justification is insufficient to satisfy step 2 if it is the type of justification that “the employer in Gilbert could . . . have made.” A justification that explains why the employer conferred a benefit on non-pregnant employees—but does not explain why the employer excluded pregnant employees from that same benefit—is the type of justification that the Gilbert employer could have asserted, and it is therefore insufficient at step 2.
Here, Walmart did not meet its burden of production under Young because it failed to explain why its TAD Policy excluded pregnant employees. In discovery, when asked to explain “any and all reasons” why the TAD program was not available to employees who had limitations as a result of pregnancy, Walmart cited the TAD Policy itself, and nothing else. R.147-5 at 3-4 (A.97-A.98); R.147-6 at 4-5 (A.100-A.101). At summary judgment, as the district court explained, Walmart highlighted certain justifications from the TAD Policy for providing light duty to occupationally injured employees, including “increasing morale and loyalty, speeding up [occupationally injured] employee[s’] recovery time[,] and decreasing costs and legal exposure.” R.204 at 19 (SA.31); see also R.169 at 16. But these justifications, and the rest of the TAD Policy, only explain why Walmart provided TAD to occupationally injured employees, not why it refused to provide TAD to women needing the same accommodations due to pregnancy. At least one of these justifications—increasing morale and loyalty—could also apply to pregnant employees. Indeed, Walmart extended TAD to pregnant employees in 2017 “to create a positive working environment for pregnant associates and management” and to treat pregnant employees as “valuable member[s] of the team.” R.150-1 at 3.
To the extent that the district court accepted Walmart’s justifications on the assumption that compliance with state workers compensation law animated its TAD Policy, see R.204 at 19 (SA.31), that was error. Walmart did not actually rely on that justification, instead pointing to the TAD Policy itself. See R.147-5 at 3-4 (A.97-A.98); R.147-6 at 4-5 (A.100-A.101). Moreover, Young’s statement that courts analyzing an employer’s justification should query “why, when the employer accommodated so many, could it not [also] accommodate pregnant women,” 135 S. Ct. at 1355, makes clear that other statutory mandates can explain why Walmart accommodated “so many,” but not why it declined to accommodate pregnant women. Compliance with workers compensation law does not preclude granting pregnant workers the same accommodations.
We acknowledge that the Second Circuit in Legg accepted “compliance with a state workers’ compensation scheme [as] a neutral reason for providing benefits to employees injured on the job but not pregnant employees.” 820 F.3d at 75. Although Legg correctly interpreted Young in many respects, it erred here. Legg assumed the Young majority “implicitly determined that” a similar justification “was a legitimate, non-discriminatory reason for the distinction.” Id. But Young’s warning that certain rationales will not satisfy step 2 must carry some meaning. See Young, 135 S. Ct. at 1354.
Indeed, because Walmart could have offered light duty to all pregnant women without any operational impact, see R.154 at 10, 29; R.155 at 8, 35, Walmart’s justification for the narrow scope of its TAD program is even less robust than the justifications Young deemed insufficient. An employer “normally” does not meet its burden of production under Young by “simply” asserting “that it is more expensive or less convenient” to accommodate pregnant employees. 135 S. Ct. at 1354. Walmart does not even assert a cost or convenience justification, and it cannot, because the record shows it could offer unlimited light duty positions. R.154 at 10; R.155 at 8. Therefore, Walmart’s explanation—which merely repeats the benefits of providing TAD to occupationally injured employees—is insufficient at step 2.
Walmart’s failure to satisfy its burden of production means that EEOC is entitled to summary judgment. Under the McDonnell Douglas framework, a plaintiff is entitled to judgment in its favor when the employer fails to satisfy its obligation at step 2, thereby failing to rebut the presumption of discrimination arising from the plaintiff’s articulation of a prima facie case. See Burdine, 450 U.S. at 254. The same principle applies in Clause 2 PDA suits: when an employer fails to provide a reason for excluding pregnant women from a benefit, the employer fails to rebut the prima facie case, and the plaintiff prevails.
In the alternative, this Court should deem inadequate, as a matter of law, Walmart’s asserted justifications at step 2 because Walmart failed to provide sufficient information to lay the groundwork for step 3 of the Young framework. Under McDonnell Douglas, an employer must provide enough information at step 2 “to frame an issue of fact so that the court and [the plaintiff] can identify what evidence might” satisfy step 3 of the inquiry. EEOC v. Target Corp., 460 F.3d 946, 958 (7th Cir. 2006); see also Burdine, 450 U.S. at 255-56, 60.
The same principle applies under Young’s modified framework, which holds that a plaintiff may prevail at step 3 by proffering sufficient evidence that the employer’s stated reasons for imposing a significant burden on pregnant workers were not sufficiently strong to justify that burden. Because Walmart did not articulate any “reason[s]” for excluding pregnant workers from the TAD program, it did not provide enough information to shed light on whether its justifications were sufficiently strong, and therefore Walmart did not satisfy its burden of production at step 2. Cf. Target, 460 F.3d at 958. Walmart’s failure at step 2 ends the Young inquiry, see Target, 460 F.3d at 958, and warrants entry of summary judgment in EEOC’s favor.
Even assuming Walmart satisfied the step 2 requirement that it explain why it excluded pregnant workers from the TAD program, EEOC has offered sufficient evidence at step 3 to warrant summary judgment in its favor, or at a minimum, to defeat Walmart’s summary-judgment motion. Young explained that a plaintiff satisfies step 3 “by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.” Young, 135 S. Ct. at 1354. Here, there is ample evidence that (1) Walmart’s exclusion of pregnant employees from TAD “impose[d] a significant burden on pregnant workers” and (2) Walmart’s proffered reasons “are not sufficiently strong to justify [that] burden.” Id.
The summary-judgment record includes abundant evidence that Walmart’s TAD Policy imposed a “significant burden on pregnant workers.” As we explain, EEOC met Young, the district court erred in its reading of Young and in discounting the relevance of accommodations for disabilities, and other evidence amplified the “significant burden” on pregnant women.
a. Young described one way a plaintiff may establish this “significant burden”: “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” 135 S. Ct. at 1354. Here, Walmart “fail[ed] to accommodate a large percentage of pregnant workers” through the TAD program. Walmart does not dispute that, during the relevant time period, it denied light duty to 100% of pregnant workers who were “similar in their ability or inability to work” to occupationally injured employees who received TAD. R.48 at 1 (A.91); see also R.154 at 17; R.155 at 13. Thus, it “categorically fail[ed] to accommodate pregnant employees with lifting restrictions.” Young, 135 S. Ct. at 1354; see also Legg, 820 F.3d at 76 (“[I]f an employer has just one pregnant employee and she has been adversely affected, then it has undoubtedly imposed a significant burden on its pregnant employees.”). Walmart also does not dispute that it granted light duty (through the TAD program) to 100% of workers who requested light duty for occupational injuries during the relevant time period, a total of eighty-nine employees. R.147-3 at 3 (A.95); R.149-2 at 2-6; R.149-3 at 2-5. This undisputed evidence shows a “significant burden” on pregnant employees. Legg, 820 F.3d at 75 (“A reasonable jury could conclude that the defendants imposed a significant burden on pregnant employees because, like UPS, the [employer] categorically denied light duty accommodations to pregnant women.”). See also R.204 at 22 (SA.34) (acknowledging that that “100 percent of employees injured on-the-job who were able to work at all were accommodated under TAD, while no pregnant employees with medical restrictions were even eligible for TAD”).
b. In analyzing the TAD Policy’s burden on pregnant workers, the district court erroneously stated that “Young requires plaintiff[s] to establish that [the] employer’s policies impose a significant burden on pregnant workers as compared to non-pregnant workers and to present evidence related to percentages,” and then faulted EEOC for failing to present this kind of statistical evidence. R.204 at 22 (SA.34). In particular, the district court thought that the fact Walmart did not provide TAD to other groups of employees—namely, employees who required accommodations due to disabilities and employees injured off the job—precluded a finding that TAD had a “significant burden” on pregnant employees. But Walmart did not make a showing that any specific member of these groups was similar to pregnant employees in their “ability or inability to work.”
Further, EEOC was not required to develop statistical data as to the percentage of non-pregnant workers accommodated. In Legg, the Second Circuit found sufficient evidence of “significant burden” even though the record was “unclear . . . whether the [employer] accommodated a large percentage of non-pregnant employees” because, “in practice” those employees “at least were eligible” for accommodations, while pregnant employees were categorically denied accommodation. 820 F.3d at 76. Along similar lines, in this case, it suffices that Walmart denied light duty to 100% of pregnant women while a large group of non-pregnant workers were eligible for that accommodation. In any event, Young did not hold that a plaintiff is required to compare percentages of employees accommodated in different groups in order to reach a jury. Instead, that is one method a plaintiff may employ at step 3. Young, 135 S. Ct. at 1354-55.
c. Although Walmart’s categorical denial of TAD to pregnant employees (while providing TAD to numerous occupationally injured employees) is sufficient on its own to establish a “significant burden,” it is also relevant that employees with disabilities were eligible for accommodations under Walmart’s Accommodation Policy. See Legg, 820 F.3d at 76 (evidence that other groups of employees “at least were eligible” for accommodations “in practice” could establish “significant burden”). The Accommodation Policy opened the door to possible accommodations for a group of employees with physical limitations similar to the claimants’ limitations, but Walmart never accommodated EEOC’s claimants in the same way. See R.154 at 17; R.155 at 13 (employees who required pregnancy-related accommodations did not receive accommodations other than leave). Contrary to the district court’s contention otherwise, R.204 at 23 (SA.35), EEOC’s summary-judgment filings sufficiently presented this argument and articulated supporting facts. See R.144 at 11; R.145 at 6-8; R.188 at 6. Moreover, EEOC could not identify particular individual employees with disabilities as comparators because Walmart did not identify any such employees who were similar to claimants in their ability or inability to work. Cf. Legg, 820 F.3d at 76.
The district court erred in disregarding evidence that employees with disabilities were eligible for accommodations on the ground that Walmart’s Accommodation Policy covered all employees. R.204 at 24 (SA.36). To be sure, on its face the Accommodation Policy covers “pregnancy-related disabilities” (as required by the ADA) and “medical conditions,” R.148-4 at 2-3, but in practice the policy did not allow pregnant employees to avoid “forced” leave. For example, as EEOC highlighted (and the district court discounted), several claimants who were eligible for reassignment under the Accommodation Policy remained on leave because a suitable open position was not available before the end of their pregnancies, R.204 at 23-24 (SA.35-SA.36); see also R.149-23 at 1; R.157-14 at 28-29; R.158-11, an unsurprising result given the time-limited nature of pregnancy.
Moreover, repeated statements by Distribution Center HR personnel that pregnant employees with lifting restrictions were “not allowed in the building” further illustrate that, in practice, Walmart’s Accommodation Policy did not help pregnant employees avoid “forced” leave. See, e.g., R. 157-1 at 33-34; R.157-5 at 20; R.157-7 at 31; R.157-12 at 33; R.157-14 at 28. The district court said EEOC did not sufficiently develop this point and deemed the statements hearsay. R.204 at 27 (SA.39). But EEOC’s filings adequately discussed relevant evidence, see R.144 at 2, 7; R.145 at 8-9, 16-17; R.185 at 15-16; R.173 at 13, 19, and, in any event, EEOC did not necessarily offer the statements “to prove the truth of the matter asserted,” Fed. R. Evid. 801(c)(2)—that Walmart’s policies did not offer accommodations to pregnant employees—but to illustrate that, in practice, pregnant employees could not access accommodations other than leave. See also R.154 at 4, 13; R.155 at 4, 11 (Walmart did not provide trainings to HR personnel at the Distribution Center on handling requests for pregnancy-related accommodations).
d. Finally, Young left open that, in addition to evidence that the employer “fail[ed] to accommodate a large percentage of pregnant workers,” plaintiffs asserting Clause 2 claims may offer other evidence to show a “significant burden” on pregnant employees. See, e.g., Legg, 820 F.3d at 76 (jury could find a “significant burden” where a pregnant worker was denied light duty, requested her doctor’s approval for full duty because she needed to work, then took leave after a “serious health scare” stemming from her work duties). Here, Walmart’s denial of TAD to pregnant employees imposed “significant” personal “burden[s]” on claimants. For example, Kohls “wasn’t able to enjoy her pregnancy” due to financial stress and experienced sleepless nights. R.157-4 at 25-26. Anderson’s household went “from two incomes to one income” and she “felt embarrassed” about asking family members to help with groceries. R.157-5 at 22, 25. Lander, Horner, and Hayworth asked their doctors not to impose lifting restrictions because they feared Walmart would force them to take leave. R.156 at 28, 32; R.157-11 at 24-25; R.181 at 38, 46. Gilliam did not return to work at Distribution Center #6025 because she “didn’t want to go through the same experience” if she had a second child. R.157-1 at 25-26.
Moreover, evidence of discriminatory animus toward pregnant workers—particularly those who required accommodations—further bolsters this “significant burden.” At least one manager made egregious statements of pregnancy animus and coworkers commented that pregnant employees didn’t belong at Distribution Center #6025 and that they couldn’t or didn’t want to work. See supra p. 13 (citing R.156 at 45; R.157-16 at 27-28; R.181 at 18).
Even if this Court holds that Walmart satisfied step 2, Walmart’s failure to articulate why it excluded from TAD pregnant employees who are “similar” to TAD recipients “in their ability or inability to work” means EEOC should prevail outright at step 3, for the reasons explained supra pp. 30-35. For three additional reasons, EEOC offered sufficient evidence at step 3, and the district court’s discussion of Walmart’s justifications misapplied Young in at least two ways.
First, Walmart’s justifications—its reasons for offering TAD to occupationally injured employees—necessarily fail because they were even weaker than the cost and convenience justifications disapproved in Young. See Young, 135 S. Ct. at 1354 (employer “normally” does not satisfy step 2 by “simply” asserting “that it is more expensive or less convenient” to accommodate pregnant women); see also supra p. 34. Walmart does not rely on a cost or convenience rationale. Instead, because unlimited light duty assignments were available, see R.154 at 10; R.155 at 8, accommodating pregnant employees with TAD would not have required the company to deny TAD to occupationally injured workers. See also R.154 at 29; R.155 at 35 (extending TAD to employees with pregnancy-related medical restrictions has not impeded Walmart’s ability to accommodate occupationally injured workers). Accordingly, Walmart’s provision of TAD to eighty-nine occupationally injured employees at Distribution Center #6025 during the relevant time period, see R.149 at 1; R.149-2 at 2-6; R.149-3 at 2-5, begs the question, “why, when [Walmart] accommodated so many, could it not accommodate pregnant women as well?” Young, 135 S. Ct. at 1355.
Second, Walmart’s justifications are further undermined because several of Walmart’s reasons for providing TAD to occupationally injured employees would also justify extending light duty to pregnant employees. As explained supra pp. 32-33, Walmart pointed to the TAD Policy itself when asked why it did not offer TAD to employees who required accommodations due to pregnancy. See R.147-5 at 3-4 (A.97-A.98); R.147-6 at 4-5 (A.100-A.101); R.204 at 19 (SA.31). The policy cited several reasons for offering TAD to occupationally injured employees that would also apply to the extension of TAD to pregnant employees, including “[e]nhanced associate loyalty” because TAD “demonstrates a caring attitude and allows the associate to continue to be a contributing part of the facility team”; “[i]ncreased [associate] morale”; “allow[ing] the associate to remain productive”; and “creat[ing] a positive working environment for all associates and management.” R.149-1 at 2 (A.102). Indeed, Walmart extended TAD to pregnant employees in 2017 “to create a positive working environment for pregnant associates and management” and to treat pregnant employees as “valuable member[s] of the team.” R.150-1 at 3.
Third, although the TAD Policy cites worker’s compensation laws, nothing in those laws “prevented [Walmart] from offering the same accommodation to pregnant employees.” Legg, 820 F.3d at 77. As Legg explained, a reasonable jury could deem compliance with state law requiring accommodation of certain employees an insufficient reason for denying accommodation to pregnant employees. Id.
In discussing Walmart’s justifications, the district court misapplied Young in at least two ways. Contrary to the district court’s assumption, considering Walmart’s weak justification at step 2 does not inappropriately “shift the burden” to the employer at step 3. See R.204 at 22 (SA.34). Instead, because Young articulated a balancing test at step 3, in which the court must weigh the employer’s reason against the burden on pregnant employees, the nature of the employer’s justification is highly pertinent at step 3. See Young, 135 S. Ct. at 1354.
The court further erred in concluding that EEOC “ha[d] not presented sufficient evidence to call into question [Walmart’s] motives for not offering pregnant employees light-duty work” because EEOC did not highlight, for example, evidence that Walmart applied TAD inconsistently or offered inconsistent explanations for the policy. R.204 at 24 (SA.36). Here, the court erred by collapsing traditional methods of showing pretext with Young’s modified test. While Young articulated a modified approach to analyzing Clause 2 claims, it left undisturbed the “longstanding rule that a plaintiff can use circumstantial proof” (that is, traditional pretext evidence) of an employer’s discriminatory animus. 135 S. Ct. at 1355. However, under Young, traditional pretext evidence is not required at step 3 of the modified burden-shifting framework.
In a Clause 2 suit like this one (in contrast to a Clause 1 suit), Young’s modified step 3 inquiry addresses whether the employer’s stated reasons justify denying accommodations to pregnant employees, see Young, 135 S. Ct. at 1354, not whether the employer’s stated reasons are “unworthy of credence,” the analysis under the traditional McDonnell Douglas framework. Burdine, 450 U.S. at 256. The district court’s error in holding otherwise arose from its attempt to distinguish Legg, which concluded that the employer’s shifting explanations showed pretext. But Legg also held that the plaintiff had “offered sufficient evidence to proceed to trial under the framework articulated in Young.” Legg, 820 F.3d at 75. The court conflated these two avenues for satisfying the plaintiff’s burden at step 3.
In summary, under Young’s step 3 balancing inquiry, EEOC has proffered sufficient evidence establishing that Walmart’s stated reasons for accommodating occupationally injured workers through TAD were not “sufficiently strong” to justify the “significant burden” on pregnant women. See Young, 135 S. Ct. at 1354. Therefore, EEOC has demonstrated that Walmart’s exclusion of pregnant workers from TAD stemmed from “intentional discrimination” (or so a jury could determine). See id.
II. The district court abused its discretion in dismissing two claimants as a discovery sanction.
This Court should reverse the district court’s ruling dismissing claimants Sonnentag and Hayworth as a discovery sanction for EEOC’s belated production of certain medical records. See R.142 (SA.1-SA.12). Here, the district court abused its discretion, see Donelson, 931 F.3d at 569, because it dismissed the claimants without making a required finding that EEOC acted with sufficient culpability; because, in any event, the record does not support such a finding; and because the severe dismissal sanction was not proportionate to EEOC’s conduct.
The district court’s sanction amounted to a dismissal with prejudice of Sonnentag’s and Hayworth’s claims. The sanction precluded EEOC from seeking relief for those claimants, effectively nullifying their claims, based on EEOC’s purported misconduct. In general, “[t]he gravity of dismissing a suit with prejudice based on litigation misconduct” requires “careful exercise of the court’s discretion.” Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 779 (7th Cir. 2016).
As noted, the district court failed to specify whether it sanctioned EEOC under Federal Rule of Civil Procedure 37(b)(2)(A) or under its inherent authority. “The exercise of either power requires the court to find that the responsible party acted or failed to act with a degree of culpability that exceeds simple inadvertence or mistake before it may choose dismissal as a sanction for discovery violations.” Ramirez, 845 F.3d at 776. Under Rule 37(b)(2)(A), dismissal is warranted only where failure to comply with discovery obligations involved “willfulness, bad faith, or any fault.” Ramirez, 845 F.3d at 776 (citation omitted). Demonstrating fault “does not require a showing of intent,” but it “involves [a showing of] extraordinarily poor judgment or gross negligence rather than mere mistake or carelessness.” Id. (internal quotation marks omitted); see also id. (noting that this Court has “distinguish[ed] the degree of fault necessary to support dismissal or default from that necessary to support lesser sanctions” (citing e360 Insight, Inc. v. The Spamhaus Project, 658 F.3d 637, 642-43 (7th Cir. 2011)). Under the court’s inherent authority, which should be “exercised with restraint and discretion,” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991), sanctions “must be premised on a finding that the culpable party willfully abused the judicial process or otherwise conducted the litigation in bad faith,” Ramirez, 845 F.3d at 776.
Here, the district court failed to make the “require[d]” finding that EEOC’s conduct met the standards for dismissal under Rule 37(b)(2)(A) or its inherent authority. The court did not specify the source of its authority, articulate the relevant standards for dismissal sanctions, or explain how the EEOC’s conduct met those standards. Moreover, the district court’s own characterization of EEOC’s conduct is wholly inconsistent with the Rule 37(b)(2)(A) and inherent-authority dismissal standards, as the court “accept[ed] [EEOC’s] assertion that its failures to meet the claimant-related production deadline were inadvertent.” R.142 at 11 (SA.11). A court must find “that the responsible party acted or failed to act with a degree of culpability that exceeds simple inadvertence or mistake before” imposing “dismissal as a sanction for discovery violations.” Ramirez, 845 F.3d at 776 (emphasis added). In particular, an “inadvertent” delay in production cannot be characterized as “bad faith” or “abuse of the judicial process,” which the court must find to impose inherent-authority sanctions. See id. At most, such a delay constitutes “negligence,” which “is insufficient to support a finding of bad faith.” Id. (citing Trade Well Int’l v. United Cent. Bank, 778 F.3d 620, 626 (7th Cir. 2015)). Nor does an “inadvertent” discovery delay amount to “willfulness, bad faith, or any fault,” as required to impose a dismissal sanction under Rule 37(b)(2)(A). Ramirez, 845 F.3d at 776. An “inadvertent” delay is “mere mistake or carelessness,” not the showing of “extraordinarily poor judgment or gross negligence” required to demonstrate fault. Id.
To be sure, the court also (1) stated that EEOC “insisted that it be the party in control of obtaining the records, agreeing to suffer the consequences if it could not perform that role” and (2) noted that the court had previously warned that violations of discovery orders could lead to dismissal of claimants. R.142 at 11 (SA.11). But these observations about this lawsuit’s history of discovery are not findings that EEOC engaged in willful conduct, bad faith, fault, or abuse of the judicial process, as required to impose dismissal sanctions under Rule 37(b)(2)(A) or the court’s inherent authority, particularly in light of the district court’s characterization of EEOC’s conduct as “inadvertent.”
Even if this discussion could be interpreted as including an implicit finding intended to justify dismissal, such a finding would constitute abuse of discretion because the record contains “no evidence upon which [a] court could . . . rationally” conclude, Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000), that EEOC engaged in willful conduct, bad faith, fault (including gross negligence), or abuse of the judicial process. When EEOC realized that it omitted medical records relating to Hayworth’s pregnancy, it promptly cured the error, well before the close of discovery. Moreover, the volume of delayed documents—Hayworth’s 57 records (totaling 600 pages) and 26 pages of records relating to Sonnentag’s second pregnancy—was relatively small given the sheer size of the medical record production in this suit. See R.130 at 1, 7.
Nor does the history of discovery in this lawsuit support a finding of fault. EEOC’s prior delays in production (which EEOC soon corrected, as the district court acknowledged, see R.97 at 5 (A.82)) largely stemmed from slow responses by the records companies responsible for providing claimants’ medical records to EEOC. Even if EEOC’s belated production was not in full compliance with the court’s orders respecting discovery deadlines, EEOC’s delay did not amount to “willful disobedience of an order,” Trade Well Int’l, 778 F.3d at 627, that warrants sanctions under inherent authority, and did not constitute “gross negligence” or “extraordinarily poor judgment” that would constitute fault under Rule 37(b)(2)(A)’s dismissal standard. Walmart also untimely produced certain records and provided documents on the eve of scheduled depositions, see R.130 at 7, and it is not surprising that both parties in this complex litigation experienced issues with document production ahead of depositions.
Finally, the district court’s dismissal sanction was insupportable because it was not “proportionate to the circumstances.” Donelson, 931 F.3d at 569. “Considerations relevant to proportionality include the extent of the misconduct, the ineffectiveness of lesser sanctions, the harm from the misconduct, and the weakness of the case.” Donelson, 931 F.3d at 569. All these considerations establish that the district court’s dismissal sanction was disproportionately harsh—and an abuse of discretion.
As to the first factor, even if EEOC’s short production delay could be characterized as “misconduct,” the “extent” of that delay was minimal. As explained, EEOC’s error was “inadvertent,” EEOC quickly corrected the error, and the volume of delayed documents was small relative to the scope of discovery in this lawsuit. Moreover, the fact that Walmart also belatedly produced certain relevant documents illustrates that delayed productions were a common occurrence in this lawsuit rather than “misconduct” warranting a harsh sanction.
Second, Walmart sustained little or no “harm,” and certainly not the degree of “prejudice that would justify a sanction like dismissal.” Wallace v. McGlothan, 606 F.3d 410, 427 (7th Cir. 2010). Indeed, the court made no determination of prejudice, and the record does not support such a determination. Walmart was able to reschedule Hayworth’s deposition to allow time to review the late-produced documents. The omission of Sonnentag’s records imposed minimal harm because Walmart possessed documents including the same or similar information and had the opportunity to question Sonnentag about those documents at her deposition. Walmart could have raised concerns about document production before Sonnentag’s deposition but did not do so.
Similarly, the history of discovery does not support a finding of prejudice. Although Walmart had previously sought discovery sanctions against EEOC for delayed disclosures of claimant-related records, the district court never determined that EEOC’s delays caused prejudice to Walmart. See R.97 at 3-7 (A.80-A.84). Moreover, other context from the history of discovery militates against finding prejudice. For example, Walmart sought the documents thirty days before depositions to have time to bring disputes to the court before depositions. And EEOC had good reasons (including concern about chilling claimants’ participation) for taking on the task of collecting the medical records.
Third, even if sanctions were appropriate, “lesser sanctions” would have been effective. Sanctions short of dismissal, including those listed in Rule 37(b)(2)(A), “will often be enough to deter and punish misconduct,” Evans v. Griffin, 932 F.3d 1043, 1049 (7th Cir. 2019), and Walmart itself requested other alternative relief, such as extending deadlines for discovery and dispositive motions, or awarding Walmart costs. See R.126. Indeed, the court failed to cite any authority for the propositions that (1) dismissal is an appropriate sanction for inadvertent discovery violations or (2) dismissal of a claimant in an EEOC suit is warranted when the EEOC engages in inadvertent discovery errors.
The final factor—“weakness of the case”—also weighs against the harsh sanction of dismissal. For the reasons described supra pp. 27-45, Sonnentag’s and Hayworth’s claims, like those of the other claimants, should succeed as a matter of law, or, at a minimum, are sufficiently meritorious for trial.
If this Court reverses the district court’s grant of summary judgment to Walmart and remands for trial, it should also reverse the district court’s ruling limiting discovery respecting the TAD Policy so EEOC may obtain that discovery before trial. See R.142 at 3-4 (SA.3-SA.4). To recapitulate, the district court denied EEOC’s motion to compel discovery “inquir[ing] into who was responsible for the changes in [Walmart’s TAD] policy or what training may have occurred after Young was decided.” Id. at 4 (SA.4). The court permitted EEOC to obtain “documents relating to why [Walmart’s TAD] policy originally excluded pregnant women,” id., and “documents that explain why Walmart changed its TAD policy,” R.106 at 2 (A.90). But the court blocked EEOC from seeking non-document discovery (including deposition testimony from Walmart’s representatives) on those topics. R.142 at 4 (SA.4). The court abused its discretion in several respects by so limiting EEOC’s discovery.
The district court’s limitations on discovery related to Walmart’s TAD Policy appear to stem from its misunderstanding of Young. The court’s misapplication of Young amounted to an “erroneous conclusion of law,” and limiting discovery on that basis therefore constituted an abuse of discretion. See Sherrod, 223 F.3d at 610. As Young explained, the “[u]ltimate” inquiry in Clause 2 suits is “whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination.” 135 S. Ct. at 1344. Accordingly, as explained supra pp. 30-32, 41-44, Clause 2 suits implicate the questions whether the employer explained why it excluded pregnant employees from a benefit and whether the employer’s justifications are adequate. In denying broader TAD-related discovery, the district court failed to see the importance of evidence that may shed light on the nature of Walmart’s TAD Policy and the company’s decisionmaking regarding TAD.
That is, the discovery EEOC sought may well illuminate whether Walmart was ever justified in excluding pregnant employees from TAD in the first place and/or whether that exclusion was rooted in discriminatory attitudes against pregnant employees. For example, testimony from decisionmakers who changed the TAD Policy to include pregnant workers could comment on those questions. And non-documentary discovery respecting Walmart’s reasons for excluding pregnant employees from TAD could offer further relevant information. Such evidence would bolster EEOC’s case at trial.
This Court should also determine on another basis that the district court abused its discretion in denying and limiting TAD-related discovery: because the discovery the EEOC sought is highly relevant to the question of punitive damages. Punitive damages are available when an employer engaged in intentional discrimination under Title VII “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1).
“The terms ‘malice’ and ‘reckless indifference’ refer to the employer’s knowledge that it may be violating federal law, not its awareness that it is engaging in discrimination.” Cooke v. Stefani Mgmt. Servs., Inc., 250 F.3d 564, 568 (7th Cir. 2001). Over two years elapsed between the Young decision and Walmart’s implementation of Pregnancy TAD. The evidence EEOC sought would be probative of the question whether company decisionmakers knew “that [Walmart] may be violating federal law,” Cooke, 250 F.3d at 568, by failing to extend TAD to pregnant employees shortly after Young clarified the scope of the PDA. That is, the discovery EEOC requested—including the identities of decisionmakers who changed the TAD Policy, details on post-Young training, and non-documentary discovery regarding Walmart’s reasons for changing the policies—could allow EEOC to identify evidence supporting an award of punitive damages.
For the foregoing reasons, EEOC asks this Court to reverse the district court’s denial of summary judgment to EEOC. In the alternative, this Court should reverse the grant of summary judgment for Walmart, remand for trial, and reverse the district court’s denial of TAD-related discovery. Finally, EEOC asks this Court to reverse the district court’s ruling dismissing claimants Hayworth and Sonnentag.
GWENDOLYN YOUNG REAMS
Acting General Counsel
JENNIfer s. goldstein
Associate General Counsel
ANNE NOEL OCCHIALINO
Acting Assistant General Counsel
/s/ Anne W. King
AnnE W. King
Office of General Counsel
131 M St. NE, Fifth Floor
Washington, DC 20507
October 5, 2021
This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B)(i) and Seventh Circuit Rule 32(c) because it contains 13,655 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) and Seventh Circuit Rule 32(b) because it was prepared using Microsoft Word for Office 365 ProPlus in Century, a proportionally spaced typeface, in 12-point font in the body of the brief and 11-point font in the footnotes.
/s/ Anne W. King
ANNE W. KING
On October 5, 2021, I filed the foregoing brief with the Clerk of the Court by using the CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the CM/ECF system.
/s/ Anne W. King
ANNE W. King
Pursuant to Circuit Rule 30(d), I certify that all the materials required by Circuit Rules 30(a) and (b) are included. The materials required by Rule 30(a) are bound with this brief in the section labeled “SHORT APPENDIX.” The materials required by Rule 30(b) are included in a separate appendix titled “APPENDIX.”
/s/ Anne W. King
ANNE W. King
“R.__” refers to the district court record, “SA.__” refers to the required short appendix, and “A.__” refers to EEOC’s supplemental appendix.
 EEOC appeals the grant of summary judgment as to eleven claimants, see R.204 (SA.13-SA.45), and the earlier dismissal of two additional claimants, see R.142 (SA.8-SA.11). This factual background includes facts pertaining to all thirteen claimants.
 We recognize that this Court has approved a totality analysis as an alternative to the McDonnell Douglas burden-shifting framework. See, e.g., Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 957-58 (7th Cir. 2021). Here, EEOC applies Young’s burden-shifting analysis because the Supreme Court has endorsed that framework as a means of assessing whether an employer has engaged in intentional discrimination under Clause 2 of the PDA.
 In district court, EEOC cited background evidence of Walmart’s poor treatment of pregnant and breastfeeding employees to bolster its evidence under the Young framework, see R.204 at 25-26, 29-31 (SA.37-SA.38, SA.41-SA.43), but EEOC’s arguments on appeal focus on the Young framework and do not rely on that background evidence.
 This Court need not reach this issue if it agrees with EEOC that the record warrants summary judgment for EEOC. We note that, although claimant discovery closed before the parties filed dispositive motions, other discovery remained open at the time the district court granted summary judgment to Walmart. See R.99; R.101.