TABLE OF CONTENTS................................................................................... i

TABLE OF AUTHORITIES............................................................................. ii

STATEMENT OF INTEREST.......................................................................... 1

STATEMENT OF THE ISSUE......................................................................... 1

STATEMENT OF THE CASE......................................................................... 2

A. Statement of the Facts............................................................................ 2

B. District Court’s Decisions...................................................................... 5

May 5, 2017 Opinion and Order..................................................................... 5

June 29, 2017 Opinion and Order................................................................... 8

ARGUMENT................................................................................................. 10

The district court erred in dismissing LaCount’s amended complaint because it alleged facts that state a plausible claim of pregnancy discrimination under Title VII......................................................................................................................... 10

CONCLUSION.............................................................................................. 27

CERTIFICATE OF COMPLIANCE.............................................................. 28

CERTIFICATE OF SERVICE......................................................................... 29

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................. 11

Asmo v. Keane, Inc., 471 F.3d 588 (6th Cir. 2006).......................................... 16

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).............................. 10, 11, 26, 27

Carney v. Martin Luther Home, Inc., 824 F.2d 643 (8th Cir. 1987)............. 16, 18

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)................................................ 14

E.E.O.C. v. Ecurie Alford, Ltd., No. CIV.A. 91-113-NN, 1993 WL 389433

(E.D. Va. July 15, 1993).............................................................................. 20

E.E.O.C. v. PVNF, LLC, 487 F.3d 790 (10th Cir. 2007)................................... 13

Hamilton v. Southland Christian Sch., 680 F.3d 1316 (11th Cir. 2012)............ 20

Iselin v. Bama Cos., 690 F. App’x 593 (8th Cir. 2017)..................................... 21

Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012)........................ 12, 22

Latowski v. Northwoods Nursing Ctr., 549 F. App'x 478 (6th Cir. 2013).... 16, 23

Legg v. Ulster Cty., 820 F.3d 67 (2d Cir. 2016)................................................ 25

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)................ 13, 14, 19, 20

McPherson v. Kids N Play, LLC, No. 1:15-CV-340-WSD, 2015 WL

8179769 (N.D. Ga. Dec. 7, 2015)................................................................ 19

Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)................................ 11, 26

Rodgers v. U.S. Bank, N.A., 417 F.3d 845 (8th Cir. 2005)................................ 20

Skinner v. Switzer, 562 U.S. 521 (2011)........................................................... 14

Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013)......................................... 18

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)........................... 14

Young v. United Parcel Serv., 135 S. Ct. 1338 (2015)............. 9, 12, 13, 23, 24, 26

Statutes and Rules

Title VII of the Civil Rights Act of 1964

42 U.S.C. § 2000e-5................................................................................. 1

42 U.S.C. § 2000e(k).............................................................................. 13

Fed. R. of App. P. 29(a).................................................................................... 1

Fed. R. Civ. P. 8(a).................................................................................... 10, 14

Other Authorities

EEOC Enforcement Guidance: Pregnancy and Related Issues, No. 915.003 (June 25, 2015), available at https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm............................................................................................................................

..................................................................................................... 5, 6, 17, 21, 22

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See 42 U.S.C. § 2000e-5. Here, the complaint alleged that after the plaintiff informed her employer she was pregnant and submitted a lifting restriction from her doctor, her employer told her that she was “a liability,” placed her on involuntary medical leave, and then terminated her when her leave expired. Despite these allegations, the district court dismissed the plaintiff’s amended complaint, ruling that it failed to state a plausible pregnancy discrimination claim under Title VII. The EEOC has a strong interest in ensuring that plaintiffs are not precluded from vindicating their statutory rights in federal court by the premature and incorrect dismissal of complaints of employment discrimination. We therefore offer our views to the Court pursuant to Federal Rule of Appellate Procedure 29(a).

STATEMENT OF THE ISSUE

Whether the district court misapplied the governing legal standards in determining the sufficiency of LaCount’s amended complaint.

STATEMENT OF THE CASE

A. Statement of the Facts

Whitney LaCount worked as a certified nursing assistant for approximately one year at The Villages at Southern Hills (“The Villages”), an assisted living facility in Tulsa, Oklahoma. Aplt.App. at 38 (Amended Complaint (“AC”) ¶ 10). According to LaCount’s amended complaint, The Villages’ “disabilities” policy provides: “Consistent with its obligations under the Americans with Disabilities Act (“ADA”), the Community [The Villages] provides reasonable accommodation to applicants and team members who are qualified individuals with disabilities within the meaning of the ADA. Individuals with temporary injuries or with work restrictions due solely to pregnancy are generally not disabled for purposes of the ADA. . . . After an otherwise qualified applicant or team member with a disability discloses the need for an accommodation, the Community will engage in an informal, interactive process with the individual to determine the appropriate accommodation. . . .” Aplt.App. at 40 (AC ¶ 22) (emphasis in original). The Villages’ policy on “pregnancy” provides: “Applicants or team members affected by pregnancy or related conditions must be treated in the same manner as other applicants or team members with similar non-work-related limitations.” Id. at 40-41 (AC ¶ 23).

LaCount alleges that she cared for residents at The Villages “in need of minimal care and assistance.” Aplt.App. at 38 (AC ¶ 11). She states that in late January or early February 2015, she informed supervisor Clarissa Brown that she was pregnant. Aplt.App. at 38 (AC ¶ 13). She told Brown that she could perform all her usual work duties except that she was unable to lift one resident, which she typically did once per day. Aplt.App. at 39 (AC ¶ 14). According to LaCount, five other employees worked in the same unit at any one time, and any of them could lift the resident during the time she could not. Id. (AC ¶ 15). LaCount alleges that Brown asked her to provide a doctor’s note documenting the lifting restriction and told her to continue lifting the resident until she presented medical verification. Id. (AC ¶ 16).

According to LaCount’s complaint, on March 5, 2016, she submitted a note from her doctor stating she should not lift more than twenty-five pounds. Aplt.App. at 39 (AC ¶¶ 17-18). The same day, human resources official Amy Upton placed her on medical leave, telling her that she had become “a liability” and there were “no other options” other than placing her on leave. Id. (AC ¶ 19).

LaCount alleges that she was terminated when her benefits under the Family and Medical Leave Act ended. Aplt.App. at 40 (AC ¶ 21). LaCount alleges that she “was capable of performing the majority of her job duties during her pregnancy with reasonable accommodations from The Villages.” Aplt.App. at 41 (AC ¶ 27). She also alleges that although The Villages, inaccordance with its disabilities policy, “has accommodated employees who needed reasonable accommodations for conditions other than pregnancy,” it failed to consider whether there were any other options available to permit her to continue working. Aplt.App. at 41 (AC ¶¶ 24-25).

LaCount sued The Villages, alleging pregnancy discrimination under Title VII and state law. Aplt.App. at 41-42 (AC ¶¶ 26-35). The Villages moved to dismiss the amended complaint, arguing that LaCount’s pregnancy discrimination claim should be dismissed because she failed to allege facts supporting her claim that the defendant treated nonpregnant employees who were similar in their ability or inability to work more favorably than LaCount. Aplt.App. at 56-60.

B. District Court’s Decisions

May 5, 2017 Opinion and Order

The district court granted The Villages’ motion to dismiss. Aplt.App. at 18 (May 5, 2017, Opinion and Order (5/5/17 Op.) at 11). The court did not address LaCount’s argument that Upton’s calling her “a liability,” which coincided with Upton’s decision to place LaCount on medical leave, was direct evidence of pregnancy discrimination and comparator evidence was thus not required. Aplt.App. at 15-16 (5/5/17 Op. at 8-9).

The court rebuffed LaCount’s reliance on an example given in the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, which describes such conduct as discriminatory. Id. at 16 (5/5/17 Op. at 9). In that example, “Evidence of Pregnancy-Related Animus Motivating Denial of Light Duty,” an employee requests light duty because of her pregnancy, but her supervisor denies her a light duty placement despite knowing there are light duty positions available that she could perform. The employer tells the employee that having a pregnant woman in the workplace is too much of a liability for the company. The EEOC’s Guidance states that this demonstrates actionable pregnancy discrimination.

According to the court, even if the EEOC’s example is consistent with Tenth Circuit precedent, LaCount failed “to allege an essential fact that would trigger application of the Enforcement Guidance. The cited language applies only when there is an available light duty job and the employee’s supervisor is actually aware of the opening.” Aplt.App. at 16 (5/5/17 Op. at 9). Because “there are no such allegations [about available light duty positions] in the amended complaint, the Enforcement Guidance is inapplicable.” Id. The court also determined that The Villages’ policies on disabilities and pregnancy “are accurate statements of the law, and the policies do not by themselves show that plaintiff was discriminated against because of her pregnancy.” Id.

Turning to the “facts that would support a claim of pregnancy discrimination based on circumstantial evidence,” the court stated that it would not require a prima facie case of pregnancy discrimination and would instead “consider whether the allegations of plaintiff’s amended complaint give rise to an inference that she was discriminated against because of her pregnancy.” Id. at 16-17 (5/5/17 Op. at 9-10). The court noted that LaCount “alleges that defendant accommodated workers with conditions other than pregnancy, but she does not explain what physical or mental impairments the employees had or how the employees were accommodated.” Id. at 17 (5/5/17 Op. at 10). Nor did the complaint offer facts about similarly situated employees who were treated more favorably. Id. “Plaintiff’s allegations could support an inference that she was placed on medical leave due to a lifting restriction, but there are no allegations tending to suggest that plaintiff was treated differently than other similarly situated employees.” Id. The court said that LaCount “made a vague allegation that defendant accommodated other employees who were actually ‘disabled’ as that term is defined in the ADA, but plaintiff was not disabled and she has not alleged that these other employees were similarly situated to her.” Id.

The court also noted that LaCount was placed on medical leave only after she submitted her doctor’s note restricting her lifting, “not immediately” when she first informed her supervisor that she was pregnant. Id. In the court’s view, “[t]here is no basis to infer that plaintiff was treated differently than any other employee due to her pregnancy, and her pregnancy discrimination claim should be dismissed.” Id. at 17-18 (5/5/17 Op. at 10-11).

June 29, 2017 Opinion and Order

The district court denied LaCount’s motion for reconsideration. Aplt.App. at 24-25 (June 29, 2017, Opinion and Order (6/29/17 Op.) at 5-6). The court rejected LaCount’s argument that Upton’s statement was direct evidence of pregnancy discrimination, deeming it circumstantial evidence of discrimination. Id. at 23-24 (6/29/17 Op. at 4-5). The court stated that although LaCount’s amended complaint states that Upton told LaCount she had become “a liability” before placing her involuntarily on medical leave and eventually terminating her, she did not allege that Upton said that she “had become a ‘liability’ because of her pregnancy.” Id. at 23 (6/29/17 Op. at 4). The court noted that LaCount informed her employer in late January or early February that she was pregnant, and she “continued to work as normal until she reported to work on March 5, 2015, with a lifting restriction.” Id. at 23-24 (6/29/17 Op. at 4-5) (citing amended complaint). “The Court considered Upton’s alleged statement as circumstantial evidence of discriminatory intent, and this was the appropriate way to consider Upton’s remark.” Id. at 24 (6/29/17 Op. at 5).

The court rejected LaCount’s argument that it had applied too heavy a burden at the motion to dismiss stage and misapplied Young v. United Parcel Service, 135 S. Ct. 1338 (2015), given that The Villages had a blanket policy of refusing to accommodate pregnant employees and that pregnant employees were treated differently than disabled employees under the policies. Id. Because pregnancy is “not a per se disability,” the court said, LaCount’s “attempts to compare herself to employees with actual disabilities is not the relevant comparison.” Id. The court emphasized that LaCount “does not allege that any other employee with a lifting restriction was granted an accommodation or that similarly situated, non-pregnant and disabled employees ever received an accommodation.” Id. Instead, the court said, LaCount “merely alleges that non-pregnant and disabled employees were given an accommodation in some circumstances, but plaintiff’s allegations are so general that the Court cannot reasonably infer that the other employees were similarly situated to plaintiff.” Id.

ARGUMENT

The district court erred in dismissing LaCount’s amended complaint because it alleged facts that state a plausible claim of pregnancy discrimination under Title VII.

Because LaCount’s amended complaint contained sufficient allegations to raise plausible claims for relief under Title VII, the district court’s dismissal of this case was inconsistent with the Supreme Court’s and this Court’s standards for granting a motion to dismiss, and should be reversed. Under Federal Rule of Civil Procedure 8(a)(2), a civil complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court in Bell Atlantic Corp. v. Twombly explained that to survive a motion to dismiss for failure to state a claim, a complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. . . .” 550 U.S. 544, 555 (2007) (internal quotation marks omitted). In Ashcroft v. Iqbal, the Court elaborated that the complaint must “contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

This Court has instructed, “‘plausible’ cannot mean ‘likely to be true.’ Rather, plausibility in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). Consequently, a complaint “attacked by a [motion to dismiss for failure to state a claim] does not need detailed factual allegations.” Twombly, 550 U.S. at 555. Instead, the facts alleged in the complaint simply “must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact). . . .” Id. This Court has confirmed “Rule 8(a)(2) still lives. There is no indication the Supreme Court intended to return to the more stringent pre-Rule 8 pleading requirements.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Although the 12(b)(6) standard does not require a plaintiff to establish a prima facie case in her complaint, the elements of a cause of action “help to determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d 1188.

The Pregnancy Discrimination Act (PDA) of 1978 added to Title VII a subsection that provides that (1) “[t]he terms ‘because of sex’ or ‘on the basis of sex’” include “because of pregnancy, childbirth or related medical conditions” and (2) “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k); see also Young, 135 S. Ct. at 1344-45. To establish a prima facie case of sex discrimination under Title VII, the plaintiff must offer evidence that (1) the victim belonged to a protected class; (2) suffered an adverse employment action; and (3) the action occurred under circumstances giving rise to an inference of discrimination. E.E.O.C. v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007). In Young, the Supreme Court articulated an evidentiary analysis whereby “a plaintiff alleging the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)], that she 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.’” 135 S. Ct. at 1354.

By focusing on whether LaCount’s factual allegations constituted direct or circumstantial evidence and essentially on whether she satisfied elements of a prima facie case of discrimination, the court lost sight of the only inquiry that matters in evaluating a motion to dismiss: whether the facts alleged support some theory of discrimination. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (plaintiff establishing disparate treatment must establish she was subjected to an adverse employment action “under circumstances which give rise to an inference of unlawful discrimination.”). And, as the Supreme Court explained in Desert Palace, Inc. v. Costa, because Title VII is silent with respect to the type of evidence required, the conventional rule of civil litigation that is generally used in Title VII cases applies. That rule “requires a plaintiff to prove his case ‘by a preponderance of the evidence’ using ‘direct or circumstantial evidence.’” 539 U.S. 90, 100 (2003) (internal citations omitted).

A Title VII plaintiff may establish a claim for unlawful disparate treatment in varying ways, including through direct evidence of discrimination or under the pretext theory set forth in McDonnell Douglas. But as the Supreme Court explained in Skinner v. Switzer, “under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible ‘short and plain’ statement of the plaintiff’s claim, not an exposition of his legal argument.” 562 U.S. 521, 530 (2011).

LaCount’s amended complaint contains factual assertions sufficient to allege a plausible claim that she was placed on involuntary medical leave and fired because of her pregnancy. LaCount alleges that she informed her supervisor she was pregnant and, approximately a month later, submitted a doctor’s note restricting her lifting to twenty-five pounds because of her pregnancy. Aplt.App. at 38-39 (AC ¶¶ 13, 17-18). She states that “[o]n that same day” she submitted the lifting restriction, a human resources official placed her on involuntary leave, told her she was “a liability,” and told her “no other options” were available to her. Aplt.App. at 39 (AC ¶ 19). After her leave expired, she was terminated. Aplt.App. at 40 (AC ¶ 21). These assertions state a plausible claim that The Villages refused to allow LaCount to continue to work because she was pregnant and could be liable for violating Title VII. The close timing between an adverse employment action and the employer’s knowledge of the employee’s pregnancy suggests the disparate treatment was based on pregnancy. See, e.g., Asmo v. Keane, Inc., 471 F.3d 588, 594 (6th Cir. 2006) (two months between time employer learned of the plaintiff’s pregnancy and her termination showed a causal connection).

LaCount further alleges that she could perform her job notwithstanding her lifting restriction. Aplt.App. at 39 (AC ¶¶ 14-15). An employer may not compel an employee to take leave because she is pregnant as long as she is able to perform her job. Carney v. Martin Luther Home, Inc., 824 F.2d 643, 649 (8th Cir. 1987) (employer violated PDA when it placed pregnant employee on unpaid medical leave which in effect forced her from the workplace at a time when she was willing and able to perform her job successfully); Latowski v. Northwoods Nursing Ctr., 549 F. App'x 478, 484, 486 (6th Cir. 2013) (reversing summary judgment for the employer where jury could find the employer’s “business decision—to implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace injuries, even if those restrictions do not limit the employees’ ability to competently perform their jobs—is so lacking in merit as to be a pretext for discrimination”); EEOC Enforcement Guidance: Pregnancy and Related Issues, No. 915.003 (June 25, 2015), Example 11—Forced Leave, available at https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (describing scenario in which pregnant worker’s discharge was due to stereotypes about pregnancy). The facts alleged in LaCount’s amended complaint, accepted as true, state a plausible claim of pregnancy discrimination and would allow a court to draw the reasonable inference that The Villages terminated her because she was pregnant.

The court ruled that because LaCount did not allege that Upton told her she was “a liability” because she was pregnant, it was properly viewed as circumstantial evidence, not direct evidence. Aplt.App. at 23 (6/29/17 Op. at 4). The court gave this probative statement no weight because LaCount did not offer specific comparator evidence. See Aplt.App. at 24 (6/29/17 Op. at 5); Aplt.App. at 17 (5/5/17 Op. at 10). This was error. Whether viewed as direct or circumstantial evidence, a jury could find based on this statement Upton believed LaCount to be a liability because of her pregnancy.

Upton’s statement, which was made when she communicated the decision to place LaCount on involuntary leave upon learning she had a lifting restriction due to her pregnancy, could be deemed direct evidence. In Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013), this Court explained that “[c]omments in the workplace that reflect personal bias do not qualify as direct evidence of discrimination unless the plaintiff shows the speaker had decisionmaking authority and acted on his or her discriminatory beliefs.” Additionally, “the context or timing of the statements” must be “closely linked to the adverse decision.” Id. LaCount’s allegations stated in the complaint met both criteria.

In Carney, the plaintiff worked with developmentally disabled adolescent girls at an assisted living facility. 824 F.2d at 643-44. Although she performed her duties without difficulty for more than four months while she was pregnant, her employer placed her on unpaid medical leave the day she submitted her doctor’s recommendation that she refrain from pushing or lifting without assistance. Id. at 644. The employer advised her she could reapply for a job after her baby was born. Id. The Eighth Circuit rejected the district court’s reasoning that the employer’s decision to place the plaintiff on leave was based on her medical condition, not her pregnancy per se. Id. at 647. Because the medical recommendation not to lift or push without assistance arose directly from her pregnancy, the court of appeals ruled that the plaintiff “presented direct evidence of discrimination by establishing that the defendant placed her on unpaid leave as a result of a ‘related medical condition,’” and “the district court erred in applying the McDonnell Douglas test under these circumstances.” Id. at 648.

Similarly, accepting the allegations of the amended complaint as true, LaCount was deemed “a liability,” placed on involuntary leave and terminated because of her lifting restriction, which directly arose from her pregnancy. See also McPherson v. Kids N Play, LLC, No. 1:15-CV-340-WSD, 2015 WL 8179769, at *3 (N.D. Ga. Dec. 7, 2015) (where the plaintiff’s manager told her that the owner wanted to terminate her because the owner’s insurance company said she was a liability because she was pregnant, court held that punitive damages were appropriate based on this direct evidence showing the plaintiff was fired because of her pregnancy); E.E.O.C. v. Ecurie Alford, Ltd., No. CIV.A. 91-113-NN, 1993 WL 389433, at *6 (E.D. Va. July 15, 1993) (testimony that plaintiff was fired due to concerns for her safety and the company’s liability because she was pregnant was direct evidence of discrimination and McDonnell Douglas analysis was inapplicable).

Moreover, even if Upton’s statement is characterized as circumstantial evidence, it remains powerful evidence of disparate treatment. No further assertion of comparator evidence was necessary. Whether the plaintiff is presenting a prima facie case of discrimination or establishing pretext, “a discharged employee need not rely on comparisons with similarly situated employees to prove unlawful discrimination.” Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 859 n.9 (8th Cir. 2005) (Colloton, J., concurring). In Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1320 (11th Cir. 2012), the Eleventh Circuit reversed summary judgment for the defendant where the plaintiff alleging discriminatory discharge because of pregnancy offered “enough circumstantial evidence to raise a reasonable inference of intentional discrimination,” and rejected the defendant’s argument that she had failed to offer sufficient circumstantial evidence of discrimination because she could not show a nonpregnant comparator was treated differently.

By dwelling on whether the “liability” statement was direct or circumstantial evidence, the district court failed to consider the only pertinent inquiry: whether the plaintiff’s allegation supports a plausible claim for relief. See Iselin v. Bama Cos., 690 F. App’x 593, 595 (10th Cir. 2017) (“’A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” quoting Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014)).

The district court also erred in rejecting LaCount’s argument that the allegations in her complaint are consistent with the EEOC’s Enforcement Guidance. The court stated that the Guidance’s example of pregnancy-related animus motivating the denial of light duty was “inapplicable” because LaCount failed to allege there was an available light duty job of which her supervisor was aware. Aplt.App. at 16 (5/5/17 Op. at 9). LaCount was not required to plead any specific facts in her complaint. Khalik, 671 F.3d at 1194 (“[W]e do not mandate the pleading of any specific facts in particular . . . .”). More importantly, the point here is not whether LaCount’s circumstances were on all fours with the example in the Enforcement Guidance. Rather, the district court should have considered whether the circumstances were sufficiently similar such that the Guidance could be of some assistance in evaluating the plausibility of LaCount’s allegations. Properly understood, the Guidance suggests that a jury could find, based on the allegations of Upton’s damning statements and their timing, that LaCount was involuntarily placed on leave and then fired because of her pregnancy.

LaCount’s amended complaint also contains sufficient facts to state a plausible claim that she was treated less favorably than others similar in their ability or inability to work when The Villages refused to accommodate her pregnancy-related lifting restriction. The Villages’ “disabilities” policy states the company “provides reasonable accommodation to [workers] who are qualified individuals with disabilities within the meaning of the ADA.” Aplt.App. at 40 (AC ¶ 22). The company’s “pregnancy” policy states that employees “affected by pregnancy or related conditions must be treated in the same manner as other applicants or team members with similar non-work-related limitations.” Aplt.App. at 40-41 (AC ¶ 23). How or where the employee’s limitation arose is irrelevant under the PDA and Young. The only relevant comparison is whether the pregnant worker and nonpregnant worker are similar in their ability or inability to work. See Young, 135 S. Ct. at 1347-48, 1355 (reversing Fourth Circuit’s grant of summary judgment where the court of appeals had ruled that workers injured on the job were not similarly situated to pregnant workers). The Villages’ pregnancy policy instructs that pregnant employees are to be treated the same as other workers with “similar non-work-related limitations.” It can be inferred from this that workers injured on the job, as well as those with disabilities, yet similar in their ability or inability to work, are treated more favorably, contrary to the PDA. See Latowski, 549 F. App’x at 483 (“[Plaintiff] has presented evidence that North Woods treated other CNAs with similar lifting restrictions more favorably by assigning them to ‘light duty.’ Although these employees differed from [Plaintiff] because their medical conditions were work-related, they were similarly situated in their ability to work because they were placed under lifting restrictions of up to fifty pounds.”).

According to the amended complaint, that was LaCount’s experience. She alleges that, in accordance with its written policies, The Villages “has accommodated employees who needed reasonable accommodations for conditions other than pregnancy,” those covered by the ADA, and presumably, those injured on the job. Aplt.App. at 41 (AC ¶ 24). She alleges that the company “refused to enter into an informal, interactive process” with her “to determine if there was a reasonable accommodation which would have allowed her to continue working during her pregnancy.” Id. (AC ¶ 25). These allegations state a plausible claim that nonpregnant employees similar in their ability or inability to work were accommodated while LaCount was not. See Young, 135 S. Ct. at 1354 (evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers is evidence the employer’s policies impose a significant burden on pregnant employees); Legg v. Ulster Cty., 820 F.3d 67, 76 (2d Cir. 2016) (“[I]f an employer has just one pregnant employee and she had been adversely affected, then it has undoubtedly imposed a significant burden on its pregnant employees—it has burdened the only one it has.”).

The district court determined LaCount’s allegations were insufficient because she did not provide details of other similarly situated workers who were treated more favorably, the impairments they had, or how they were accommodated. Instead, LaCount’s “vague allegation that defendant accommodated other employees who were actually ‘disabled’” was, in the court’s view, inadequate to allow it to “infer that plaintiff was treated differently than any other employee due to her pregnancy.” Aplt.App. at 17-18 (5/5/17 Op. at 10-11). The court maintained that “plaintiff’s attempt to compare herself to employees with actual disabilities is not the relevant comparison.” Aplt.App. at 24 (6/29/17 Op. at 5).

Again, the court erred. Under the PDA, the simple inquiry is whether the employer treats pregnant employees the same as others similar in their ability or inability to work. The statute makes no exception for individuals with disabilities. Thus, the court was wrong in its belief that LaCount could not compare her treatment to persons with disabilities. Further, the court demanded a level of detail far beyond that required. Young instructs that the burden to establish a prima facie case is “not onerous.” 135 S. Ct. at 1354. The burden on a motion to dismiss is even lighter. Twombly instructs that a complaint “does not need detailed factual allegations,” only “enough to raise a right to relief above the speculative level.” 550 U.S. at 555. The allegations that other nonpregnant employees at The Villages were treated more favorably both pursuant to The Villages’ written policies and in LaCount’s experience are specific enough such that they do not “encompass a wide swath of conduct, much of it innocent.” Robbins, 519 F.3d at 1247.

The question at this preliminary stage is not whether LaCount proffered sufficient evidence to support the allegations in the amended complaint, as would be true on summary judgment. Rather, it is whether, assuming the facts alleged are true, LaCount states a plausible claim for relief. Here she does. See Twombly, 530 U.S. at 336.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

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