Filed: Apr. 26, 2016
Latest Update: Mar. 02, 2020
Summary: 14-3636 (L) Legg et al. v. Ulster County et al. In the United States Court of Appeals For the Second Circuit _ August Term, 2015 No. 14-3636 (L), No. 14-3638 (XAP), and No. 14-4635 (CON) ANN MARIE LEGG, Plaintiff-Appellant, and PATRICIA WATSON, Plaintiff-Cross-Appellee, v. ULSTER COUNTY and PAUL J. VANBLARCUM, in his official capacity as Sheriff of the County of Ulster and individually, Defendants-Appellees-Cross-Appellants.1 _ Appeals from the United States District Court for the Northern Distr
Summary: 14-3636 (L) Legg et al. v. Ulster County et al. In the United States Court of Appeals For the Second Circuit _ August Term, 2015 No. 14-3636 (L), No. 14-3638 (XAP), and No. 14-4635 (CON) ANN MARIE LEGG, Plaintiff-Appellant, and PATRICIA WATSON, Plaintiff-Cross-Appellee, v. ULSTER COUNTY and PAUL J. VANBLARCUM, in his official capacity as Sheriff of the County of Ulster and individually, Defendants-Appellees-Cross-Appellants.1 _ Appeals from the United States District Court for the Northern Distri..
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14‐3636 (L)
Legg et al. v. Ulster County et al.
In the
United States Court of Appeals
For the Second Circuit
________
August Term, 2015
No. 14‐3636 (L), No. 14‐3638 (XAP), and No. 14‐4635 (CON)
ANN MARIE LEGG,
Plaintiff‐Appellant,
and
PATRICIA WATSON,
Plaintiff‐Cross‐Appellee,
v.
ULSTER COUNTY and PAUL J. VANBLARCUM, in his official capacity as
Sheriff of the County of Ulster and individually,
Defendants‐Appellees‐Cross‐Appellants.1
________
Appeals from the United States District Court
for the Northern District of New York.
No. 09 Civ. 550 (FJS) ― Frederick J. Scullin, Judge.
________
Argued: October 8, 2015
Decided: April 26, 2016
________
1
The Clerk of Court is directed to amend the caption as set forth above.
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
Before: PARKER, LYNCH, and CARNEY, Circuit Judges.
________
Appeals from a judgment and post‐judgment orders of the
United States District Court for the Northern District of New York
(Scullin, J.). At the close of her direct case, the court dismissed
plaintiff‐appellant Ann Marie Legg’s claim for pregnancy
discrimination. The court also denied for want of jurisdiction
defendants‐appellees‐cross‐appellants Ulster County and Paul
VanBlarcum’s post‐trial motions pursuant to Rule 50(b) and 59(b) on
plaintiff‐appellee Patricia Watson’s claim of a hostile work
environment. We conclude that under Young v. United Parcel Service,
Inc., 135 S. Ct. 1338 (2015), decided after this appeal was filed, Legg
has presented sufficient evidence to support a claim of pregnancy
discrimination and therefore VACATE the judgment in part and
REMAND with instructions to conduct a new trial. We also
conclude that the district court erred in denying the defendants’
post‐trial motions for want of jurisdiction and accordingly VACATE
the post‐judgment orders and REMAND for further proceedings
consistent with this opinion.
________
STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP,
Chester, New York; Brendan Klaproth, Klaproth
Law PLLC, Washington, D.C.; and Joseph Ranni,
Ranni Law Offices, Florida, New York, for
Plaintiff‐Appellant and Plaintiff‐Cross Appellee.
MATTHEW J. KELLY (Amanda Davis Twinam, on
the brief), Roemer Wallens Gold & Mineaux LLP,
Albany, New York, for Defendants‐Appellees‐Cross‐
Appellants.
________
2
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
BARRINGTON D. PARKER, Circuit Judge:
Ann Marie Legg, a corrections officer at the Ulster County Jail,
appeals from a judgment of the United States District Court for the
Northern District of New York (Scullin, J.) dismissing her claim
against Ulster County and former Sheriff Paul VanBlarcum for
pregnancy discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy
Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (“PDA”). Legg
claims that the County unlawfully discriminated against her on the
basis of her pregnancy when it denied her request for an
accommodation under its light duty policy, pursuant to which only
employees injured on the job were eligible for light duty
assignments. The district court granted the defendants’ motion for
judgment as a matter of law at the close of Legg’s direct case,
reasoning that the policy could not be discriminatory because it was
facially neutral with respect to pregnancy.
While this appeal was pending, the Supreme Court decided
Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015). Young held
that an employer’s facially neutral accommodation policy gives rise
to an inference of pregnancy discrimination if it imposes a
significant burden on pregnant employees that is not justified by the
employer’s non‐discriminatory explanation. We conclude that Legg
has presented sufficient evidence to support a pregnancy
discrimination claim under Young and therefore vacate the judgment
in part and remand with instructions to conduct a new trial.
The defendants appeal from post‐judgment orders denying
their motions for judgment as a matter of law or, alternatively, for a
new trial on Patricia Watson’s claim of a sex‐based hostile work
environment. The district court, without objection, initially granted
the defendants an extension of time to file their post‐trial motions.
However, after the motions were filed, the court denied them for
want of jurisdiction, believing that it had lacked authority under
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Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
Federal Rule of Civil Procedure 6(b)(2) to grant an extension and
that the time limitations are jurisdictional. We conclude that the
district court erred in denying the motions for want of jurisdiction
and that, although it lacked authority under Rule 6(b)(2) to grant an
extension, it had discretion to consider whether the plaintiffs waived
compliance with the rule or whether an equitable exception applied.
Accordingly, we vacate the post‐judgment orders and remand for
further proceedings consistent with this opinion.
BACKGROUND
Legg began working as a corrections officer for the Ulster
County Jail in 1996. At the time, the County maintained a policy
under which employees injured on the job were eligible for light
duty assignments, defined as clerical and other duties that would
not aggravate the employee’s condition. Under Sheriff
VanBlarcum’s implementation, the policy did not apply to pregnant
employees because their condition did not result from a line‐of‐duty
injury. Consequently, pregnant employees’ only options were to
continue working full duty, use accrued sick, vacation, or personal
time, or take Family and Medical Leave Act or disability leave.
After a number of pregnancy‐related complications, Legg
became pregnant in 2008. Because the pregnancy was high risk, her
doctor recommended that she work light duty and provided a note,
on July 8, stating that she was “able to work at this time but
shouldn’t have direct contact with inmates.” Joint App’x at 923.
VanBlarcum directed Undersheriff Frank Faluotico to deny her
request to accommodate her doctor’s recommendation. On July 10,
Faluotico informed Legg that “[e]mployees are afforded light duty
assignments at the Sheriff’s discretion for work‐related
injuries/illnesses only,” and she therefore had “the option of being
re‐evaluated by [her] attending physician and returning to work full
duty capacity as a Correction Officer or [to] utilize accrued time
(sick, vacation, personal) and file for [New York State] Disability
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Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
benefits.” Id. at 925. Faluotico requested that Legg notify him of her
response as soon as possible.
Later that day, Legg received a call from Lieutenant Jon
Becker, who said that he would take care of her by assigning her to
light duty positions if she obtained a revised doctor’s note stating
that she was able to work. Legg submitted a new note that day
indicating that she was “able to work with no restrictions.” Id. at
924.
For a time, Legg was assigned to light duty tasks as promised.
By August, however, she was gradually required to work with
inmates again. While working in a cell block in November, by then
approximately seven months pregnant, Legg came upon two
inmates fighting in the bathroom and was bumped as one ran past
her. As a result of this incident, she left work and did not return
until after she gave birth.
After Legg returned to work, she brought this action against
the County and several of its officials, including VanBlarcum,
alleging that the denial of her request for an accommodation
amounted to pregnancy discrimination in violation of Title VII.
Legg, Watson, and two other female corrections officers also
asserted claims for, among other things, a sex‐based hostile work
environment in violation of Title VII and 42 U.S.C. § 1983.
The suit proceeded to trial and, at the close of Legg’s direct
case, the defendants moved for judgment as a matter of law
pursuant to Rule 50 on the ground that all employees who had
“outside line‐of‐duty disabilities” were treated the same under the
light duty policy. Joint App’x at 674. The district court granted the
motion, explaining that in requiring that the injury arise when the
employee is on duty, the policy “applied across the board to
everyone,” “[a]nd when the policy applies across the board to
everybody, there’s no discrimination.” Id. at 675–76. The remaining
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Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
claims were submitted to the jury, which returned a verdict in
Watson’s favor on her hostile work environment claim but in the
defendants’ favor otherwise.
After the jury was excused, the defendants indicated that they
intended to file post‐trial motions and the district court, without
objection from the plaintiffs, set a deadline of two weeks from the
date that the defendants received the transcript. On August 20,
2014, the court entered final judgment, and on November 5, less than
two weeks after receiving the transcript, the defendants filed their
post‐trial motions for judgment as a matter of law under Rule 50(b)
and, alternatively, for a new trial under Rule 59(b). The next day,
the district court denied the motions as untimely, concluding that
although the defendants had been granted an extension, they were
nonetheless required to file their Rule 50(b) and Rule 59(b) motions
no later than 28 days after the entry of judgment, and under Rule
6(b)(2) these deadlines were jurisdictional. The same day, the court
denied the defendants’ Rule 60 motion for reconsideration for
essentially the same reason. Legg timely appealed from the
judgment. The defendants cross‐appealed and also appealed from
the district court’s November 6 orders denying their post‐trial
motions.
DISCUSSION
I.
We begin with the dismissal of Legg’s pregnancy
discrimination claim. Rule 50 allows a district court to grant a
motion for judgment as a matter of law in favor of the defendant if,
at the close of the plaintiff’s case, a reasonable jury would not have a
legally sufficient basis to find for the plaintiff on an issue essential to
her claim. Fed. R. Civ. P. 50(a)(1)(B). We review the district court’s
decision de novo, drawing all reasonable inferences in the non‐
movant’s favor and disregarding any evidence favorable to the
movant that the jury is not required to believe because it is
6
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
contradicted or impeached. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).
A.
Title VII prohibits discrimination with respect to the terms,
conditions, or privileges of employment because of a person’s sex.
42 U.S.C. § 2000e‐2(a)(1). In 1978, Congress passed the PDA, which
expressly overruled the Supreme Court’s holding in General Electric
Co. v. Gilbert, 429 U.S. 125 (1976), that pregnancy discrimination is
not sex discrimination. The PDA accomplished this by adding the
following to Title VII’s definitional section:
The terms “because of sex” or “on the basis of sex” include, but
are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions; and 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.
Pub. L. 95‐555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. § 2000e(k));
see Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S.
669, 670–71 & n.1 (1983). This provision ”makes clear that it is
discriminatory to treat pregnancy‐related conditions less favorably
than other medical conditions.” Newport News, 462 U.S. at 684.
Like other Title VII discrimination claims, pregnancy
discrimination may be proven under a disparate treatment or
disparate impact theory of liability. Young, 135 S. Ct. at 1345. To
establish disparate treatment, a plaintiff must show that the
defendant’s actions were motivated by a discriminatory intent,
either through direct evidence of intent or by utilizing the three‐part
burden‐shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See, e.g., Quaratino v. Tiffany & Co., 71 F.3d
58, 64 (2d Cir. 1995). Alternatively, a plaintiff may proceed on a
disparate impact theory by showing that even if a policy or practice
7
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
is facially neutral or is not motivated by a discriminatory intent, it
has a discriminatory effect. Ricci v. DeStefano, 557 U.S. 557, 577–78
(2009).
During the pendency of this appeal, the Supreme Court
decided Young v. United Parcel Service, Inc. to resolve how the PDA’s
“same treatment” clause applies to pregnancy discrimination claims
brought under a disparate treatment theory of liability. The
circumstances of Young are similar to those presented here. Young,
a UPS mail carrier responsible for delivering packages weighing up
to seventy pounds, became pregnant and was told by her doctor that
she should not lift more than twenty pounds. UPS refused to
accommodate her, however, even though it provided
accommodations to employees who were injured on the job, had lost
their Department of Transportation certification, or suffered from a
disability covered by the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. 135 S. Ct. at 1344.
Young sued for pregnancy discrimination, claiming that UPS
had a “light‐duty‐for‐injury” policy that excluded pregnant
employees while covering numerous “other persons” who were
similar in their ability or inability to work. Id. at 1347. The District
Court granted UPS summary judgment and the Fourth Circuit
affirmed, reasoning that Young was “different from those ‘injured
on the job because, quite simply, her inability to work did not arise
from an on‐the‐job injury.’” Id. at 1347–48 (quoting 707 F.3d 437,
450–51 (4th Cir. 2013)).
The Supreme Court reversed. Writing for the majority, Justice
Breyer held that an employer violates the PDA when it treats
pregnant employees “less favorably” than non‐pregnant employees
similar in their ability or inability to work to such an extent that it is
more likely than not that the disparity is motivated by intentional
discrimination. Id. at 1344. To facilitate this inquiry, the Court
established a modified McDonnell Douglas analysis which focuses on
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Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
“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.
First, as with any other discrimination claim, the plaintiff must
establish a prima facie case by “showing actions taken by the
employer from which one can infer, if such actions remain
unexplained, that it is more likely than not that such actions were
based on a discriminatory criterion illegal under Title VII.” Id. at
1354 (internal quotation marks omitted). This burden is “not
onerous” and requires the plaintiff to show only (i) “that she belongs
to the protected class,” (ii) “that she sought accommodation,” (iii)
“that the employer did not accommodate her,” and (iv) “that the
employer did accommodate others ‘similar in their ability or
inability to work.’” Id.
If the plaintiff satisfies her initial burden, a presumption of
discriminatory intent arises and the burden shifts to the employer to
articulate a legitimate, non‐discriminatory reason for its policy or
action. See id.; Quaratino, 71 F.3d at 64. But “consistent with the
Act’s basic objective, that reason normally cannot consist simply of a
claim 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.” Young, 135 S. Ct. at
1354; see also Ariz. Governing Comm. for Tax Deferred Annuity &
Deferred Comp. Plans v. Norris, 463 U.S. 1073, 1084 n.14 (1983)
(Marshall, J., concurring in the judgment) (recognizing that
Congress’s passage of the PDA indicates that the greater cost of
providing benefits for a protected class cannot justify differential
treatment based upon the protected trait).
If the employer puts forth a legitimate, non‐discriminatory
justification, the presumption drops out of the analysis and the
plaintiff must establish, by a preponderance of the evidence, that the
employer’s justification is a pretext for discrimination. See Young,
9
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
135 S. Ct. at 1354. The plaintiff may rebut the justification through
circumstantial proof of discriminatory intent. In the pregnancy
discrimination context in particular, Young recognized that a
plaintiff can make this showing by presenting “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 alongside the burden imposed – give rise to an
inference of intentional discrimination.” Id. (emphases added)
(internal quotation marks omitted). Young went on to explain that a
plaintiff may create a genuine issue of fact as to the existence of a
significant burden by showing “that the employer accommodates a
large percentage of nonpregnant workers while failing to
accommodate a large percentage of pregnant workers.” Id. Young,
for instance, could do so by demonstrating that UPS accommodated
most non‐pregnant employees with lifting limitations “while
categorically failing to accommodate pregnant employees with
lifting limitations.” Id. To establish that UPS’s reasons were not
sufficiently strong, she could point to the fact that UPS had multiple
policies to accommodate non‐pregnant employees. Id. at 1354–55.
“That is, why, when the employer accommodated so many, could it
not accommodate pregnant women as well?” Id. at 1355.
B.
Legg argues to us that she presented sufficient evidence to
support a discrimination claim under either Young’s disparate
treatment framework or a disparate impact analysis. We agree that
Legg has adduced sufficient evidence for a jury to have considered
whether the County’s policy was motivated by a discriminatory
intent. Consequently, we do not reach her disparate impact
arguments.
As an initial matter, we do not believe that Legg has presented
direct evidence of discriminatory intent. Although she contends that
10
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
the County’s policy is itself direct evidence because it excluded
pregnant women, the policy did so on a facially neutral basis – the
source of one’s inability to work – making it impossible to conclude,
without inferring, that the distinction was based upon an intent to
discriminate against pregnant employees. See Tyler v. Bethlehem Steel
Corp., 958 F.2d 1176, 1183–85 (2d Cir. 1992); see also Young, 135 S. Ct.
at 1354 (direct evidence is “a workplace policy, practice, or decision
[that] relies expressly on a protected characteristic”). This
conclusion is apparent to us from Young. Were Legg correct, the
burden‐shifting framework would have been unnecessary because
UPS’s policy would have amounted to direct evidence of UPS’s
alleged discriminatory intent.
Legg has, however, established a prima facie case of
discrimination under Young. She sought a light duty
accommodation while pregnant. The County did not accommodate
her. And, as a matter of policy, the County provided light duty
accommodations 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.
These facts are enough, if left unexplained, for a reasonable jury to
conclude that it is more likely than not that the policy was motivated
by a discriminatory intent.
The defendants claim that they had a legitimate, non‐
discriminatory reason for the distinction because New York General
Municipal Law § 207–c(1) requires municipalities to continue to pay
corrections officers injured on the job but does not require the same
for employees who become unable to work for other reasons. We
agree that compliance with a state workers’ compensation scheme is
a neutral reason for providing benefits to employees injured on the
job but not pregnant employees. UPS offered the same justification
for its policy in Young, see 135 S. Ct. at 1360 (Alito, J., concurring)
(citing Md. Lab. & Empl. Code Ann. § 9–614 (2008)), and the
majority implicitly determined that this was a legitimate, non‐
11
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
discriminatory reason for the distinction, remanding for
consideration of whether Young had raised a genuine issue of
material fact as to pretext, see id. at 1355–56. So too, here, once the
County represented that its policy was based upon a workers’
compensation scheme, the burden of production shifted back to
Legg to show by a preponderance of the evidence that this
justification was a pretext for intentional discrimination. For several
reasons, we believe that a reasonable jury could find that Legg
carried her burden.
First, even before Young, a plaintiff could establish pretext and
intentional discrimination by pointing out significant inconsistencies
in the employer’s justification. See, e.g., Zann Kwan v. Andalex Grp.
LLC, 737 F.3d 834, 846 (2d Cir. 2013). At trial, the defendants
presented several different justifications for declining to extend light
duty accommodations to pregnant employees and for denying
Legg’s request. While VanBlarcum testified that he limited light
duty accommodations to employees injured on the job because he
wanted to “encourage everybody to build up sick time” and did not
“believe” in providing light duty accommodations to employees
who were injured off the job, Joint App’x at 520, Faluotico testified
that VanBlarcum made the determination as to Legg “for her safety,
not only her but her unborn child, in the facility,” id. at 349.
VanBlarcum also conceded on cross‐examination that it would be
more costly to provide light duty accommodations to pregnant
employees. And although the defendants now claim that the policy
was based upon compliance with state law, the only testimony in the
record on this point was VanBlarcum’s explanation of the meaning
of abbreviations listed in the minutes from a sergeant’s meeting, and
he simply noted that “207‐c is a section of law that allows people
that get hurt on duty to be out and still receive pay.” Id. at 459.
Neither VanBlarcum, nor anyone else, ever testified that this was his
12
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
reason for denying accommodations to pregnant employees.2 Under
these circumstances, a reasonable jury drawing all reasonable
inferences in Legg’s favor could find that the defendants’ current
explanation – compliance with state law – is pretextual, and the real
reason for the distinction was unlawful discrimination.
Second, Legg has offered sufficient evidence to proceed to trial
under the framework articulated in Young. A reasonable jury could
conclude that the defendants imposed a significant burden on
pregnant employees because, like UPS, the County categorically
denied light duty accommodations to pregnant women. Indeed, the
defendants represent that of 176 corrections officers during
VanBlarcum’s tenure, just one – Legg – was pregnant, and she was
denied an accommodation. Defs.’ Opp’n Br. at 27. VanBlarcum also
testified that another employee came to him “stating she wanted to
get pregnant and wanted to know if [he] would allow light‐duty
employment.” Joint App’x at 528. He advised the employee that
she would not be accommodated. Id. Although it is unclear from
the record whether the County accommodated a large percentage of
non‐pregnant employees in practice, they at least were eligible. By
contrast, as one would expect, the County failed to accommodate
100% of its pregnant employees. This disparity counsels in favor of
a finding that the policy imposed a significant burden on pregnant
employees. See Young, 135 S. Ct. at 1354.
The defendants perplexingly suggest that these figures show
that pregnant employees were not significantly burdened because
“only one of 176 COs were affected by this policy.” Defs.’ Opp’n Br.
at 27. But under Young, the focus is on how many pregnant
employees were denied accommodations in relation to the total
number of pregnant employees, not how many were denied
2
We doubt that this testimony would permit a reasonable jury to conclude, without
speculating, that the defendants even offered G.M.L. § 207‐c as a neutral justification
for denying accommodations to pregnant employees. However, because the
defendants clearly offered other justifications, we assume arguendo that this testimony
was adequate.
13
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
accommodations in relation to all employees, pregnant or not. The
reason is simple enough; this comparison better reveals whether or
not there is a burden on pregnant employees. If an employer has
fifty pregnant employees and only five are adversely affected by its
policy, it will be more difficult to draw an inference of a significant
burden because many pregnant employees are able to or have taken
advantage of the accommodation, providing less reason to believe
that the policy is motivated by animus against pregnant employees.
On the other hand, if 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 – it has
burdened the only one it has. Contrary to the defendants’
implication, an employer cannot justify pregnancy discrimination by
relying upon the fact that pregnant employees constitute an
insignificant part of its workforce.
The defendants also argue that Legg did not suffer a
significant burden because she was able to perform her ordinary job
duties and simply “decided to stop working until after she gave
birth.” Id. at 26. While that is one view of the evidence, a reasonable
jury drawing all reasonable inferences in Legg’s favor could reach a
very different result: Faced with the prospect of going without pay
during her pregnancy, and having been informally promised an
accommodation by Becker, Legg sought a revised doctor’s note
allowing her to work full duty, which reflected her need to work
rather than her ability to do so. She was then gradually required to
return to full duty work, and she acquiesced until she suffered a
serious health scare and decided to take leave from her job. These
circumstances would permit a jury to reasonably conclude that
pregnant employees suffered a significant burden. Moreover,
regardless of Legg’s particular circumstances, we think that when an
accommodation policy excludes pregnant employees from coverage
and thereby places them at risk of violent confrontations, a
reasonable jury could find that the denial itself is evidence of a
significant burden.
14
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
The defendants finally contend that Legg did not suffer a
significant burden because employees who received a light duty
accommodation were also burdened in that they were subject to
“strict rules,” including an inability to leave their homes during their
shifts and random home visits to ensure their compliance. Id. at 25.
We do not doubt that a comparison of the burdens imposed upon
employees who receive an accommodation and those who do not
may, in appropriate circumstances, undermine an inference that
pregnant employees are subjected to a significant burden. We think
it obvious, however, that a reasonable jury could conclude that the
“burdens” imposed upon accommodated employees in this case do
not show that the burden imposed upon Legg and other pregnant
corrections officers was insignificant.
A reasonable jury could also conclude that the defendants’
reasons were not “sufficiently strong,” when considered alongside
the burden imposed, to justify the denial of accommodation to
pregnant employees. The defendants maintained a light duty policy
for employees injured on duty but did not extend that benefit to
pregnant employees, who, during VanBlarcum’s tenure, amounted
to a single corrections officer – Legg. As a result, she was required
to continue working with inmates. The defendants rationalize this
arrangement on the basis that G.M.L. § 207‐c applies only to
employees injured on duty. But of course nothing in the statute
prevented them from offering the same accommodations to
pregnant employees. Under these circumstances, we believe that a
reasonable jury could find that compliance with a state law requiring
accommodation of certain employees was an insufficient reason for
denying accommodation to pregnant employees.
Moreover, although the defendants claim that they were
motivated solely by compliance with state law, a reasonable jury
could find that cost was a factor, as the defendants lacked the same
financial incentive to continue to employ pregnant employees in
some capacity and had a countervailing incentive to replace them.
15
Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
VanBlarcum admitted as much at trial, stating that it would be more
costly to provide benefits to pregnant employees because the County
would have to “find somebody else to fill [the full duty] position”
and “pay them as well.” Joint App’x at 521. The defendants all but
concede the same on appeal, admitting that “[i]f there is an element
of cost associated with the distinction, it is a result of New York State
law and policy.” Defs.’ Opp’n Br. at 30. Young expressly cautioned,
however, that cost alone is generally not a legitimate basis for
refusing to accommodate pregnant employees on the same basis as
other employees similar in their ability or inability to work. 135 S.
Ct. at 1354. To the extent that the defendants’ policy was motivated
by cost, a reasonable jury could conclude that their purported
justification for denying light duty accommodations to pregnant
employees – compliance with state law – is pretextual.
Finally, we emphasize that a jury would not have necessarily
been compelled to reach these conclusions and could have returned
a verdict in the defendants’ favor. As the Supreme Court made clear
in Young, the PDA does not “grant[] pregnant workers a ‘most‐
favored‐nation’ status” requiring employers who grant any
accommodation to any employee to “provide similar
accommodations to all pregnant workers (with comparable physical
limitations),” regardless of other considerations. Id. at 1349–50
(emphasis removed). Indeed, the Court declined to endorse an
Equal Employment Opportunity Commission guideline that
construed the PDA to entirely prohibit policies that “provid[e] light
duty only to workers injured on the job.” Id. at 1351. The legality of
such policies depends, rather, upon a careful analysis of the facts of a
given case.
As we previously noted, a jury may infer a discriminatory
intent where the employer “accommodates a large percentage of
nonpregnant workers while failing to accommodate a large percentage
[here, 100%] of pregnant workers.” Id. at 1354 (emphasis added).
But if, for example, the evidence showed that the County
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Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
accommodated very few injured workers under the light duty policy
and that many non‐pregnant workers were among those denied
accommodation, the jury might reasonably refuse to infer a
discriminatory intent. And while the cost of adding pregnant
workers to an otherwise expansive program of accommodation
cannot justify their exclusion, a policy is not necessarily doomed by
the fact that it was partially motivated by cost. After all, if cost were
not a factor, employers would have little reason not to accommodate
everyone, and the cost of adopting such a policy is presumably
always a factor in limiting accommodations to those injured on the
job. A policy that requires nearly all workers to use sick leave when
injured or ill rather than be accommodated on the job with light duty
is not an unreasonable one. Whether it is appropriate to infer a
discriminatory intent from the pattern of exceptions in a particular
workplace will depend on the inferences that can be drawn from
that pattern and the credibility of the employer’s purported reasons
for adopting them. We simply hold that in this case, based on the
evidence presented, Legg was entitled to have these issues decided
by a jury.
II.
We now consider the district court’s denial of the defendants’
Rule 50(b) and 59(b) motions, as well as its denial of their motion for
reconsideration pursuant to Rule 60. Our review of the denial of a
Rule 50(b) motion is, as noted, de novo. We review the denial of a
Rule 59(b) or Rule 60 motion for abuse of discretion. Stevens v. Miller,
676 F.3d 62, 67 (2d Cir. 2012); Arnold v. Cty. of Nassau, 252 F.3d 599,
602 (2d Cir. 2001).3
3
The defendants appeal the district court’s decision on their post‐trial motions.
Because the notice of appeal of the denial of those motions was filed within the time
prescribed by Federal Rule of Appellate Procedure 4(a)(1)(A) and 26(a)(1), the
December 8, 2014 notice of appeal was timely to appeal the district court’s denial of
those motions for lack of jurisdiction, which is the only issue that we decide based on
that notice of appeal. See Weitzner v. Cynosure, Inc., 802 F.3d 307, 313 n.6 (2d Cir. 2015);
see also Advanced Bodycare Sols., LLC v. Thione Int’l, Inc., 615 F.3d 1352, 1359 n.15 (11th
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Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
This case presents somewhat peculiar circumstances. The
district court initially granted the defendants an extension of time to
file their motions but later denied the motions as untimely on the
ground that it lacked authority to grant an extension and Rule
6(b)(2) renders the 28‐day time limitations under Rules 50(b) and
59(b) jurisdictional. The court denied the defendants’ motion for
reconsideration on the same basis.
We cannot agree. Federal Rule of Civil Procedure 6(b)(2)
provides that a district court may, for good cause, extend the time to
file a motion but “must not extend the time to act under” Rules 50 or
59. While for many years we described the time limitations in the
Federal Rules as “jurisdictional,” see, e.g., Weissman v. Dawn Joy
Fashions, Inc., 214 F.3d 224, 230 (2d Cir. 2000), the Supreme Court has
since clarified the difference between jurisdictional rules and non‐
jurisdictional, claim‐processing rules, see In re Indu Craft, Inc., 749
F.3d 107, 114 (2d Cir. 2014) (discussing Fed. R. App. P. 6(b)(1)). A
time limitation is jurisdictional only if it is prescribed by statute. By
contrast, procedural rules which have no statutory analogue,
although “mandatory” in the sense that a party may insist upon
their enforcement, do not affect the power of the courts and are
subject to waiver or equitable exception. Weitzner v. Cynosure, Inc.,
802 F.3d 307, 311 (2d Cir. 2015). This distinction follows from the
fundamental principle that Congress alone has authority to
determine a lower federal court’s subject matter jurisdiction.
Kontrick v. Ryan, 540 U.S. 443, 452–56 (2004).
Although we have yet to address whether Rule 6(b)(2) is
jurisdictional, we have little difficulty in concluding – like every
other circuit to consider the question – that it is not. See, e.g., Mobley
v. C.I.A., 806 F.3d 568, 577 (D.C. Cir. 2015); Blue v. Int’l Brotherhood of
Cir. 2010) (holding that even though the appellant’s post‐trial motions were untimely,
when it “appealed the district court’s order denying the motions within 30 days of the
court’s entry of the order . . . that appeal was timely” and provided “jurisdiction to
review the district court’s . . . order as to [the appellant’s] post‐trial motions”).
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Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
Elec. Workers Local Union 159, 676 F.3d 579, 584–85 (7th Cir. 2012);
Advanced Bodycare Sols., LLC v. Thione Int’l, Inc., 615 F.3d 1352, 1359
n.15 (11th Cir. 2010); Art Attacks Ink, LLC v. MGA Entm’t Inc., 581
F.3d 1138, 1142–43 (9th Cir. 2009); Dill v. Gen. Am. Life Ins. Co., 525
F.3d 612, 618–19 (8th Cir. 2008); Nat’l Ecological Found. v. Alexander,
496 F.3d 466, 474 (6th Cir. 2007). Because the Federal Rules of Civil
Procedure are promulgated and amended by the Supreme Court
pursuant to the Rules Enabling Act, 28 U.S.C. §§ 2071–2077, an
individual rule is jurisdictional only if it is codified by statute in
language that clearly reflects Congress’s intent to treat it as
jurisdictional. See Indu Craft, 749 F.3d at 114. Rule 6(b)(2) has no
such statutory codification. Its language is also virtually identical to
that of Federal Rule of Criminal Procedure 45(b) and Bankruptcy
Rule 9006(b), which the Supreme Court has held are non‐
jurisdictional. See Eberhart v. United States, 546 U.S. 12, 19 (2005);
Kontrick, 540 U.S. at 455–56 & n.10 (observing that Rules 45(b) and
9006 are “modeled on Federal Rule of Civil Procedure 6(b)”).
Accordingly, even though the district court was without
authority to grant an extension under Rule 6(b)(2), it retained the
power to consider whether the plaintiffs had waived compliance
with the rule or whether an equitable exception applied. See
Weitzner, 802 F.3d at 311. The defendants claim that the plaintiffs
never objected to the extension and were not prejudiced by the
delay. Any objection on timeliness grounds may therefore have
been waived. Compare Advanced Bodycare, 615 F.3d at 1359 n.15
(“[S]ince Rule 6(b) is a claims‐processing rule, [defendant‐appellee],
in failing to object to the district court’s violation of the rule (by
extending the time for filing post‐trial motions) forfeited its objection
to the time extension.”), with Dill, 525 F.3d at 619 (no waiver where
party failed to oppose request for extension but subsequently raised
objection in response to Rule 50(b) motion).
We see no reason, however, to resolve that issue now.
Although the plaintiffs never objected in the district court, it is not
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Nos. 14‐3636 (L), 14‐3638 (XAP), 14‐4635 (CON)
clear whether they had an effective opportunity to do so given the
district court’s quick denial of the motion and of reconsideration.
Under the circumstances, we prefer to leave it to the district court to
consider in the first instance whether the plaintiffs waived objection
to the court’s improper grant of an extension of time or whether an
equitable exception to the prohibition of such extensions applied on
the facts of this case. Accordingly, we vacate the district court’s
post‐judgment orders denying the defendants’ motions for lack of
jurisdiction and remand for further proceedings consistent with this
opinion.
CONCLUSION
For these reasons, we VACATE the judgment as to Legg’s
pregnancy discrimination claim and REMAND with instructions to
conduct a new trial, and VACATE the orders denying the
defendants’ post‐trial motions and REMAND for further
proceedings consistent with this opinion.
20
