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From Health Law Daily, January 28, 2019

Nursing rehabilitation center showed nondiscriminatory reason for firing pregnant nurse assistant

By Brian Craig, J.D.

The Fifth Circuit held that a skilled nursing rehabilitation center showed a nondiscriminatory reason for terminating the employment of a nurse assistant claiming pregnancy discrimination.

In a pregnancy discrimination case brought by a certified nurse assistant, the U.S. Court of Appeals for the Fifth Circuit has ruled the district court properly granted summary judgment in favor of a skilled nursing rehabilitation center which showed a nondiscriminatory reason for terminating the employee. The evidence showed that the nursing rehabilitation center fired the nurse assistant because being able to lift more than 35 pounds was essential to the job so certified nurses could lift residents when needed (Luke v. CPlace Forest Park SNF, L.L.C., January 14, 2019, Per Curiam).

When a certified nurse assistant (CNA) learned that she was pregnant with twins, she told her employer, a skilled nursing rehabilitation center. The nurse assistant gave the nursing rehabilitation center a doctor’s note indicating that she could not lift more than 30 pounds for the duration of her pregnancy. The nursing rehabilitation center responded that all CNAs regularly had to lift more than 35 pounds, and that there was no light duty work available for the employee. The nurse assistant brought an action against the skilled nursing rehabilitation claiming she was fired for pregnancy discrimination in violation of the Pregnancy Discrimination Act. The district court entered summary judgment against the nurse assistant finding that the nurse assistant did not make out a prima facie case of discrimination. The nurse assistant appealed.

On appeal, the Fifth Circuit recognized that employee bears the initial burden of making out a prima facie case by showing 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. Here, the employee relied only on indirect evidence to support her claim. Other decisions allow for burden shifting when circumstantial evidence is enough to defeat summary judgment in a case alleging that denial of an accommodation violated the Pregnancy Discrimination Act. The Fifth Circuit agreed with the nursing rehabilitation center’s argument that the appellate court could affirm the district court decision on the alternative ground that the employer offers a nondiscriminatory reason for termination without deciding whether the employee established a prima facie case. The nursing rehabilitation center pointed to the nurse assistant’s inability to perform an essential aspect of her job—being able to lift more than 35 pounds.

Because the certified nurse failed to point to any other CNAs who were accommodated when they had a similar medical restriction on heavy lifting, there is not any evidence that would allow a jury to conclude that the employer is insincere when it says that such lifting is an essential part of the job. The court recognized that whether the employer engaged in disparate treatment is the question when evaluating whether its nondiscriminatory explanation should be discredited because it has not been consistently applied. Furthermore, workers who allegedly received these accommodations were, like the CAN here, under a doctor’s orders not to engage in heavy lifting. Therefore, the Fifth Circuit affirmed the district court in favor of the employer.

The case is No. 16-30992.

Attorneys: Victor Joseph Woods, Jr. (Dickerson, LeBlanc & Woods, LLC) for Eryon Luke. Christine S. Keenan (Kullman Firm) for CPlace Forest Park SNF, LLC d/b/a Nottingham Regional Rehab Center.

Companies: CPlace Forest Park SNF, LLC d/b/a Nottingham Regional Rehab Center

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