LaBarbera v. NYU Winthrop Hospital

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ALLISON LABARBERA,

Plaintiff, MEMORANDUM AND ORDER

- against - 2:18-cv-6737 (DRH) (SIL)

NYU WINTHROP HOSPITAL,

Defendant.

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APPEARANCES

LEEDS BROWN LAW P.C.

Attorneys for Plaintiff

1 Old Country Road

Carle Place, NY 11514

By: Rick Ostrove, Esq.

Brandon Okano, Esq.

BAKER & HOSTETLER LLP

Attorneys for Defendants

45 Rockefeller Plaza, 14th Floor

New York, NY 10111

By: Amy J. Traub, Esq.

Amanda L. Van Hoose Garofalo, Esq.

HURLEY, Senior District Judge:

INTRODUCTION

This case concerns whether the Pregnancy Discrimination Act entitles

pregnant women—absent complications, risk factors, or other pregnancy-related

conditions—to a medical exemption from her employer’s mandatory flu vaccination

policy, which was adopted due to “a real question as to the usefulness of face masks,

even when properly used, to prevent transmission [of infectious disease] from an

infected person.”1 Plaintiff Allison LaBarbera (“Plaintiff”) brings this action against

1 Winthrop asserts: “[T]here is no convincing evidence that N95 respirators

protect against the spread of flu.” Def. Reply 56.1 ¶ 14.

her former employer, Defendant NYU Winthrop Hospital (“Defendant” or

“Winthrop”), alleging her termination as a result of her non-compliance with the

Mandatory Influenza Vaccination Program Policy (the “Policy”) reflects

discrimination against pregnant women through failure to accommodate, disparate

treatment, and disparate impact violations of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e, as amended by the Pregnancy Discrimination Act, 42

U.S.C. § 2000e(k) (the “PDA”), and the New York State Human Rights Law

(“NYSHRL”), N.Y. Exec. Law § 296. Presently before the Court is Defendant’s motion

for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff

unfortunately fails to offer evidence in support of her prima facie case. For the

reasons set forth below, Defendant’s motion is GRANTED.

BACKGROUND

The following facts, taken from the parties’ Local Rule 56.1 statements, are

undisputed unless otherwise noted.2 See Def.’s Rule 56.1 Statement of Undisputed

Material Facts (“Def. 56.1”) [DE 22-2]; Pl.’s 56.1 Counterstatement in Opp’n to

Summary Judgment (“Pl. 56.1”) [DE 22-51]; Def.’s Reply to Pl.’s Rule 56.1

Counterstatement of Facts (“Def. Reply 56.1”) [DE 23].

I. Defendant’s New Influenza Vaccination Policy

Defendant NYU Winthrop Hospital in Mineola, New York offers diagnostic and

therapeutic care across nearly every specialty of medicine and surgery and provides

a full suite of inpatient and outpatient services to many ill and immunocompromised

2 See infra Discussion Section I.

patients. (Def. 56.1 ¶¶ 1, 3, 5). As a New York hospital, Winthrop is subject to state

regulations that require, at a minimum, all healthcare personnel not immunized

against the flu to wear a surgical mask during the flu season whenever they are in

the vicinity of patients. (Id. ¶ 9 (citing 10 N.Y.C.R.R. 2.59(d))). The New York State

regulation guidance identifies “a large body of evidence that healthcare workers can

pose a risk to patients and residents by transmitting influenza infection” and that

the regulation “protect[s] healthcare workers who are unvaccinated from acquiring

influenza from patients and residents.” (Id. ¶ 10 (citing Frequently Asked Questions

(FAQ) Regarding Title 10, Section 2.59, https://www.health.ny.gov/diseases/

communicable/influenza/seasonal/providers/prevention_of_influenza_transmission/

docs/faq_flu_mask_requirements.pdf (last updated Jan. 2, 2015))). The regulation

does not prohibit hospitals “from adopting policies that are more stringent than” the

regulation. (Id. ¶ 11 (citing 10 N.Y.C.R.R. § 2.59(h))). Until late 2017, Defendant

complied by requiring that all employees “either receive the flu vaccine[] or take a

required education course and wear a mask in the hospital.” (Jan. 4, 2018 Letter

from President and CEO John F. Collins, Ex. M [DE 22-30] to Decl. of Derek Forte

(“Forte Decl.”) [DE 22-30]).

In late 2017, the Centers for Disease Control and Prevention (“CDC”) reported

a particularly severe flu season, with increases in illnesses, hospitalizations, and

deaths. (Def. 56.1 ¶¶ 16–17). This prompted Defendant to adopt the Mandatory

Influenza Vaccination Program Policy (the “Policy”), citing a “moral obligation” and

a “commitment to protecting [its] patients,” including “pregnant women[] and those

with medical conditions that compromise immunity.” (Id. ¶¶ 18, 20, 26–27; 2017-

2018 NYU Winthrop Influenza Vaccination Flu FAQs, Ex. F [DE 22-40] to

Declaration of Marlene Davis (“Davis Decl.”) [DE 22-34]; Ex. M to Forte Decl.).

Defendant states the Policy “was designed to ensure the highest quality of care,” “to

create the safest possible environment,” and to maintain its reputation as “a leader

in healthcare” and as a medical institution “holding itself to a higher standard than

other[s].” (Def. 56.1 ¶ 19).

The Policy, effective September 2017, required every employee (not just those

with access to patient care areas) to either get vaccinated by December 1, 2017 or

apply for an exemption by November 1, 2017. (Def. 56.1 ¶¶ 18, 20, 26–27, 30, 33, 35–

36; Aug. 15, 2017 Letter from President and CEO John F. Collins, Ex. E [DE 22-39]

to Davis Decl.). The vaccination deadline was later extended to December 21, 2017.

(Def. 56.1 ¶¶ 36, 39).

In previous years, Defendant gave its employees the option of wearing a mask

as an alternative to vaccination. (Jan. 4, 2018 Letter from President and CEO John

F. Collins, Ex. M to Forte Decl.). With the new Policy, however, Defendant no longer

offered this option. (Mandatory Influenza Vaccination Program, Ex. A [DE 22-35] to

Davis Decl.). Winthrop justifies this change by citing a “real question as to the

usefulness of face masks, even when properly used, to prevent [flu] transmission from

an infected person,” as their effectiveness depends on “how [they are] worn, the

duration of use, and the circumstances.” (Def. 56.1 ¶¶ 14–15, 30 (“[S]urgical masks

worn by unvaccinated individuals may not offer the same level of protection as the

vaccine.”)). Plaintiff contests the import of this supposed “real question,” suggesting

the relevant factors counsel against generalization, such as “the type of mask used”

and the difference in use between the “general population[]” and “properly train[ed]”

healthcare workers. (Pl. 56.1 ¶¶ 14–15). Winthrop replies, “[T]here is no convincing

evidence that N95 respirators protect against the spread of flu,” and highlights the

difficulties (supply-wise, training-wise, efficacy-wise) in offering a mask alternative.

(Def. Reply 56.1 ¶ 14).

To roll out the new Policy, Defendant provided a set of Frequently Asked

Questions and Answers, held a “town hall meeting,” and sent several email

reminders. (Def. 56.1 ¶¶ 26–28, 33–35). Defendant also asked every employee to

complete a Flu Vaccine Survey to disclose his or her intention to get the flu vaccine.

(Id. ¶¶ 31–32, 123). The survey did not require employees to reveal which exemption

they would seek (medical or religious) nor specify the basis therefor; “[t]o complete

the Survey, employees simply indicated whether they were receiving the flu vaccine

or whether they were requesting an exemption.” (Id. ¶¶ 123–25; Davis Decl. ¶ 24).

Defendant offered, free of charge, four flu vaccines: Fluarix Quadrivalent,

Flucelvax Quadrivalent, Fluzone Quadrivalent, and Flublok. (Davis Decl. ¶¶ 18, 38;

Ex. O [DE 22-49] to Davis Decl.). Each vaccine’s prescribing insert discloses risk

summaries applicable to certain population groups, including one intended for

pregnant women. (Ex. O to Davis Decl.). The dispute in this case is largely premised

upon certain disclosures in each insert: “There are insufficient data on Fluarix

Quadrivalent in pregnant woman to inform vaccine-associated risks,” (id. at 143);

“There are, however, no adequate and well-controlled studies in pregnant women.

Because animal reproduction studies are not always predictive of human response,

this vaccine should be used during pregnancy only if clearly needed,” (id. at 36

(Flucelvax Quadrivalent); id. at 58 (Fluzone Quadrivalent)); “Available data on

Flublok administered to pregnant women are insufficient to inform vaccine-

associated risks in pregnant women,” (id. at 89).

Employees could seek an exemption from the Policy on religious or medical

grounds. (Def. 56.1 ¶¶ 18, 37). Employees seeking a medical exemption had to

submit both a Request for Medical Exemption from Influenza Vaccination form and,

on “Attachment A,” their healthcare provider’s description of a medical

contraindication to the flu vaccine. (Id. ¶¶ 38, 40, 132). An interdisciplinary team

comprised of individuals across several hospital departments, the Influenza Vaccine

Exemption Review Board (“IVERB”), reviewed and decided every exemption

application. (Id. ¶¶ 21–22, 41). IVERB adopted the medical contraindication criteria

from the CDC, requiring (1) a previous serious reaction or anaphylactic reaction to

the flu vaccine; (2) a documented history of Guillain-Barré syndrome occurring within

six weeks of receiving the flu vaccine; or, via a catch-all provision, (3) a medical

condition preventing the employee from receiving the flu vaccine, accompanied by a

medical provider’s documentation as to the condition’s nature, duration, and severity.

(Id. ¶¶ 42–43). IVERB did not accept pregnancy, in and of itself, an acceptable

3 Exhibit O page citations refer to those listed in the red docketing header.

medical contraindication, (Def. 56.1 ¶¶ 52–55, 57–58, 133, 188; see id. ¶¶ 51, 59–61),

which aligned with the CDC’s determination that “[p]regnant women may receive

any licensed, recommended, age-appropriate influenza vaccine.” (Prevention and

Control of Seasonal Influenza with Vaccines: Recommendations of the Advisor

Committee on Immunization Practices – United States, 2017–18 Influenza Season,

Ex. C at 5, 8 [DE 22-37] to Davis Decl.; 2017–18 Summary of Recommendations, Ex.

D at 1–2 [DE 22-38] to Davis Decl.; see also Def. 56.1 ¶¶ 56–57).

The IVERB team reviewing an exemption request could designate one member

to contact the employee or her medical provider should the need arise. (Def. 56.1

¶ 45). Upon granting an exemption, Defendant would perform an Infection Control

Risk Assessment to determine what safety measures Defendant would impose on the

employee, e.g., transferring her to a different position or requiring her to wear a face

mask at all times. (Id. ¶¶ 47–48). Denials were communicated via email and could

be appealed. (Id. ¶¶ 46, 50).

Noncompliant employees—i.e., those unvaccinated without an exemption after

the deadline—faced discipline, including potential discharge for insubordination. (Id.

¶¶ 23, 49, 95, 187).

II. Plaintiff’s Request for a Medical Exemption

Plaintiff Alison LaBarbera worked as a per diem Registered Vascular

Technologist in Winthrop’s Radiology Department – a patient-facing role where she

conducted ultrasounds among other duties. (Id. ¶¶ 87, 91, 93). In 2016, under

Defendant’s previous policy, Plaintiff was vaccinated against the flu. (Pl. 56.1 ¶ 89;

Seasonal Flu Immunization Survey – History, Ex. G [DE 22-24] to Forte Decl.).

When Defendant adopted the Policy, Plaintiff was trying to get pregnant. (Pl.

56.1 ¶¶ 87, 101, 126). On September 14, 2017, Plaintiff disclosed in her Flu Vaccine

Survey her intention to obtain an exemption from the Policy – though she was not yet

pregnant at the time. (Def. 56.1 ¶ 126). Plaintiff became pregnant within the

following month: she believes her son was conceived on September 21, 2017, and she

first learned of her pregnancy on October 12, 2017. (Id. ¶¶ 100–01, 124; Pl. 56.1

¶ 126).

Plaintiff submitted her first exemption request form on November 10, 2017,

without any documentation from a medical provider. (Def. 56.1 ¶ 130; Davis Decl.

¶ 39). Marlene Davis, the designated contact person from the IVERB team reviewing

Plaintiff’s request, called Plaintiff to advise her that her application lacked such

documentation. (Id. ¶¶ 52–53, 131–32). Davis also asked Plaintiff some questions.

(Id. ¶¶ 134–35). In response, Plaintiff confirmed her pregnancy involved no

complications and that “there was no reason besides her pregnancy for requesting the

exemption.” (Id.). Davis informed Plaintiff that a normal pregnancy was not a

medical contraindication to the flu vaccine. (Id. ¶ 133).

The parties dispute Plaintiff’s reasons for requesting an exemption. They

agree she was motivated by her pregnancy, her belief that there is a lack of testing of

the vaccine on pregnant women, the “vaccination box’s [printed advice to] consult

your medical professional, and [the box’s advice that] pregnant women should only

receive [the vaccine] if medically necessary.” (Id. ¶ 108). Plaintiff adds she wanted

to minimize of the risk of miscarriage in the first trimester, believed wearing a mask

rendered the vaccine not medically necessary, and had concerns regarding an alleged

lack of studies focusing on the first trimester of pregnancy. (Pl. 56.1 ¶ 108).

Defendant asserts that Plaintiff never “shared with Defendant that she was in the

first trimester, or that her exemption request related to her being in the first

trimester, nor was there any indication on her Exemption Form regarding her being

in her first trimester.” (Def. Reply 56.1 ¶ 108). That is, Defendant contends no

evidence suggests it ever knew how far into her pregnancy Plaintiff was at the time.

(See id.).

It is undisputed that Plaintiff never “provide[d] any information to Defendant

that she had any inability to work, a temporary disability related to pregnancy, or a

pregnancy-related condition.” (Def. 56.1 ¶ 157; Pl. 56.1 ¶ 157).

On November 14, 2017, Plaintiff had her first appointment with midwife

Jeanette Breen, who served as Plaintiff’s primary healthcare provider during her

pregnancy. (Def. 56.1 ¶ 106). That same day, Breen submitted, on Plaintiff’s behalf,

a completed Request for Exemption (the “Exemption Request”) with Attachment A.

(Id. ¶ 138). The Exemption Request identified Plaintiff’s reason for an exemption—

“pregnant”—which Attachment A elaborated thereon—“There is no evidence proving

the safety of the influenza vaccine for the pregnant woman or her fetus.” (Id. ¶¶ 138–

40). Davis called Breen later that day. (Id. ¶ 143).

The parties dispute the precise details of this conversation. According to

Defendant, Davis unsuccessfully requested clarification from Breen, who simply

restated the reasoning in Plaintiff’s Exemption Request. (Id. ¶ 144). Davis then

“referred Breen to the recommendations from [the American College of Obstetricians

and Gynecologists (‘ACOG’)] and the CDC regarding pregnant women and the flu

vaccine” and questioned the basis of Breen’s opinion. (Id. ¶ 146). When “Breen was

unable to answer Davis’s questions,” Davis labeled Breen’s view a “personal opinion”

and not “compelling medical evidence.” (Id. ¶ 147).

According to Plaintiff, the conversation lasted five minutes, with Davis

informing Breen that pregnancy alone does not warrant an exemption and trying to

convince Breen to “rescind” her opinion. (Pl. 56.1 ¶ 143). Davis did not mention the

ACOG or the CDC; Davis asserted only that “the doctors [at NYU Winthrop Hospital]

recommended the flu vaccine for pregnant women and that . . . should be credible.”

(Id. ¶ 146 (quoting Tr. of Dep. of Jeanette Breen at 52 (“Breen Dep.”), Ex. H [DE 22-

15] to Decl. of Amy J. Traub, Esq. (“Traub Decl.”) [DE 22-3])). Davis asked Breen no

questions, and the call ended “without resolution” and without discussion on next

steps. (Id. ¶¶ 143, 147).

On November 17, 2017, Defendant sent an email denying Plaintiff’s Exemption

Request. (Def. 56.1 ¶ 148). Plaintiff testified that she never saw this email until her

supervisor forwarded it to her on November 29, 2017. (Id. ¶ 150; Pl. 56.1 ¶ 148). On

December 5, 2017, Breen resubmitted, on Plaintiff’s behalf, the Exemption Request

“without any changes or additions.” (Def. 56.1 ¶ 152). The next day, December 6,

Davis contacted Breen for the second time. (Id. ¶ 153).

The parties similarly dispute the details of this second conversation.

Defendant says Davis “confirmed again that the information provided was not

sufficient for a medical exemption.” (Id. ¶ 153). Plaintiff says Breen believed the

“call related to Davis’s attempts to convince her that pregnancy was not a valid basis

for an exemption” and that Breen “did not acknowledge that Davis said the

information provided was insufficient or that Davis requested additional

information.” (Pl. 56.1 ¶ 153).

On December 18, 2017, Defendant informed Plaintiff that, unless she

complied—i.e., was vaccinated—by the end of December 21, she would be terminated.

(Def. 56.1 ¶ 158). Having failed to comply, Plaintiff was terminated on December 22.

(Id. ¶ 159).

III. Results of Winthrop’s Policy

For the 2017–2018 flu season, 99.3% of Winthrop’s ~8,750 employees were

vaccinated. (Id. ¶ 193; Ex. M to Forte Decl.). Defendant received 125 requests for a

medical exemption, of which 42 were granted. (Reply Decl. of Marlene Davis ¶ 6

(“Davis Reply Decl.”) [DE 22-66]). Every individual failing to present an acceptable

medical contraindication to the vaccine had his or her medical exemption application

denied. (Def. 56.1 ¶ 188). All noncompliant employees were terminated. (Id. ¶ 187).

Defendant’s exemption review process was “blind,” such that Defendant did

not know whether an employee requesting an exemption was pregnant unless she

stated so on her application. (Id. ¶ 191). Only three exemption requests, including

Plaintiff’s, disclosed a pregnancy. (Davis Reply Decl. ¶ 6). One such employee

received a “temporary” medical exemption through the end of her first trimester,

warranted according to “medical documentation demonstrating that, based on her

medical history and doctor’s orders, receiving the flu vaccine in the first trimester

was a medical contraindication for her.” (Def. 56.1 ¶ 190; Def. Reply 56.1 ¶ 108; Davis

Reply Decl. ¶¶ 4, 6). The other two requests, Plaintiff’s included, were denied. (Davis

Reply Decl. ¶ 6).4

IV. Procedural History

Plaintiff filed her Complaint on November 27, 2018. (Compl. [DE 1]). She

alleges Defendant violated Title VII and the NYSHRL by terminating her “because

of her gender and/or pregnancy and/or requests for accommodation” and by adopting

a “policy . . . disadvantageous to pregnant women as compared to [its] imposition

upon non-pregnant employees.” (Id. ¶ 39). Plaintiff brings six causes of action:

(1) disparate impact in violation of Title VII; (2) disparate impact in violation of

NYSHRL; (3) disparate treatment in violation of Title VII; (4) disparate treatment in

violation of NYSHRL; (5) failure to accommodate in violation of Title VII; (6) failure

to accommodate in violation of NYSHRL.

4 Defendant speculates “it is possible that Defendant granted many more

pregnant employees’ exemption requests.” (Def. 56.1 ¶ 191). But without an

evidentiary basis for this conjecture, it is just as likely that they did not. (Pl. 56.1

¶ 191). The Court adheres to the known figures provided by the parties.

In discovery, “Plaintiff neither noticed nor took a single deposition in this case.”

(Reply Decl. of Amy J. Traub, Esq. ¶ 2 (“Traub Reply Decl.”) [DE 22-64]). Defendant

took the depositions of Plaintiff Allison LaBarbera and midwife Jeanette Breen. (See

Traub Decl. ¶¶ 10–11).

Plaintiff did not retain an expert witness. (Def. 56.1 ¶ 65; Traub Decl. ¶ 4; see

generally Decl. of Rick Ostrove, Esq. (“Ostrove Decl.”) [DE 22-52]). Defendant

retained Dr. Arnold S. Monto, M.D. (Def. 56.1 ¶ 63; see generally Decl. of Dr. Arnold

S. Monto, M.D. (“Monto Decl.”) [DE 22-31]). Dr. Monto’s report addressed

(1) Defendant’s requirement that employees be vaccinated and (2) the use of the flu

vaccines in pregnant women. (Opinion of Arnold S. Monto, M.D., Ex. B at 3 [DE 22-

33] to Monto Decl.). Dr. Monto first opined to “a real question as to the usefulness of

face masks, even when properly used, to prevent transmission [of the flu] from an

infected person” and that “[t]he influenza vaccination is the most effective

preventative measure.” (Id. at 3–4). Second, Dr. Monto stated that “study after study

has shown that there is no evidence of a negative effect on the mother or the fetus in

taking the [flu] vaccine” and “there is no reason to exempt person from vaccination

simply by being pregnant, and there is no evidence to suggest that the influenza

vaccine is unsafe for pregnant women.” (Id. at 5–6).

Defendant moved for summary judgment on February 24, 2020. [DE 22]. The

briefing narrows the issues to three legal theories: (1) disparate treatment in

violation Title VII, (2) disparate impact in violation of Title VII, and (3) violations of

the NYSHRL. (See Def.’s Mem. in Supp. (“Def. Mem.”) [DE 22-1]; Pl.’s Mem. in Opp’n

(“Pl. Opp.”) [DE 22-50]; Def.’s Reply Mem. (“Def. Reply”) [DE 22-63]).

LEGAL STANDARD

Summary judgment, pursuant to Federal Rule of Civil Procedure 56, is

appropriate only where the movant “shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The relevant governing law in each case determines which facts are

material; “[o]nly disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary judgment.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When making this determination, a

court must view all facts “in the light most favorable” to the non-movant, Tolan v.

Cotton, 572 U.S. 650, 656–57 (2014), and “resolve all ambiguities and draw all

permissible factual inferences in favor of the [non-movant],” Johnson v. Killian, 680

F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.

2003)). Thus, “[s]ummary judgment is appropriate [only] where the record taken as

a whole could not lead a rational trier of fact to find for the [non-movant].” Id.

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))

(internal quotation marks omitted).

To defeat a summary judgment motion properly supported by affidavits,

depositions, or other documentation, the non-movant must offer similar materials

setting forth specific facts demonstrating that there is a genuine dispute of material

fact to be tried. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The non-movant

must present more than a “scintilla of evidence,” Fabrikant v. French, 691 F.3d 193,

205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252), or “some metaphysical doubt

as to the material facts,” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)

(quoting Matsushita, 475 U.S. at 586–87), and “may not rely on conclusory allegations

or unsubstantiated speculation,” id. (quoting FDIC v. Great Am. Ins. Co., 607 F.3d

288, 292 (2d Cir. 2010)).

The district court considering a summary judgment motion must also be

“mindful . . . of the underlying standards and burdens of proof,” Pickett v. RTS

Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252),

because the “evidentiary burdens that the respective parties will bear at trial guide

district courts in their determination[s] of summary judgment motions,” Brady v.

Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). “[W]here the [non-movant] will

bear the burden of proof on an issue at trial, the moving party may satisfy its burden

by pointing to an absence of evidence to support an essential element of the [non-

movant’s] case.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.

2014) (quoting Brady, 863 F.2d at 210–11) (internal quotation marks omitted).

Where a movant without the underlying burden of proof offers evidence that the non-

movant has failed to establish his claim, the burden shifts to the non-movant to offer

“persuasive evidence that his claim is not ‘implausible.’” Brady, 863 F.2d at 211

(citing Matsushita, 475 U.S. at 587). “[A] complete failure of proof concerning an

essential element of the [non-movant’s] case necessarily renders all other facts

immaterial.” Crawford, 758 F.3d at 486 (quoting Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)).

DISCUSSION

Plaintiff’s six causes action are addressed below in three broad sections: Title

VII disparate treatment, Title VII disparate impact, and the NYSHRL violations. As

a preliminary matter, the Court must address the parties’ Local Rule 56.1

statements.

I. Local Rule 56.1 Statements

Local Rule 56.1 requires, inter alia, that both the summary judgment movant

and nonmovant submit “separate, short and concise statement[s]” of the undisputed

“material facts.” Local Rules of the United States District Courts for the Southern

and Eastern Districts of New York, Rule 56.1. These statements ought to “streamline

the consideration of summary judgment motions by freeing district courts from the

need to hunt through voluminous records without guidance from the parties.” Holtz

v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001).

Given the submissions, it is worth repeating: “Rule 56.1 statements are not

argument. They should contain factual assertions with citation to the record. They

should not contain conclusions.” U.S. Info. Sys., Inc. v. Int’l Brotherhood of Elec.

Workers Loc. Union No. 3, 2006 WL 2136249, at *1 (S.D.N.Y. Aug. 1, 2006) (emphasis

in original) (internal quotations omitted) (quoting Rodriguez v. Schneider, 1999 WL

459813, at *1 n.3 (S.D.N.Y. June 29, 1999), aff’d, 56 Fed. App’x 27 (2d Cir. 2003)).

Despite this instruction, Plaintiff’s Counterstatement and Defendant’s Reply

Statement are rife with argument and conclusions contesting their respective

opponent’s “unsupported, inadmissible” assertions. The parties’ submissions reflect

four categories of facts: (1) those on which both parties agree;5 (2) those to which

Plaintiff adds qualification that Defendant does not dispute on reply;6 (3) those on

which the parties disagree;7 (4) those to which Plaintiff adds qualification that

Defendant disputes on reply.8 The first two categories are deemed undisputed.

The latter two categories implicate facts and argument too voluminous to

discuss in detail here. Nevertheless, upon analyzing the admissible evidence, the

Court has disregarded the inappropriate portions of Rule 56.1 Statements. Monahan

v. N.Y.C. Dep’t of Corrections, 214 F.3d 275, 292 (2d Cir. 2000) (“[T]he trial court has

discretion to conduct an assiduous review of the record in an effort to weigh the

propriety of granting a summary judgment motion.” (internal quotation marks

omitted)); Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 569 (E.D.N.Y.

1999) (“[R]ather than scrutinizing each line . . . and discussing whether they contain

conclusory allegations, legal arguments, or hearsay . . . the court . . . will only

consider . . . evidence that is admissible.”).

5 Facts on which the parties agree: ¶¶ 1–6, 9, 13, 16–50, 52–55, 57–58, 62–65,

67–68, 73, 77, 87–88, 90–91, 93–94, 96–107, 109, 111, 116–18, 121–25, 127–31, 133–

35, 137, 139–40, 151–52, 157–60, 163–64, 168, 177, 181, 185, 187, 192–94. See Def.

Reply 56.1 at 2.

6 Facts for which Plaintiff adds qualification that Defendant does not dispute on

reply: ¶¶ 10, 92, 95, 113–15, 126, 150, 161–62, 173. See Def. Reply 56.1 at 2 n.2.

7 Facts on which the parties disagree: ¶¶ 7–8, 12, 14, 51, 71, 76, 79, 83, 86, 132,

136, 142, 146, 147–48, 149, 153, 156, 165–67, 169, 171–73, 191.

8 Facts for which Plaintiff adds qualification that Defendant disputes on reply:

¶¶ 11, 15, 56, 59–61, 66, 69–70, 72, 74–75, 78, 80–82, 84–85, 89, 95, 108, 110, 112,

119–20, 138, 141, 143–45, 154–55, 170, 174–76, 178–80, 182–84, 186, 188–190.

Some statements—e.g., “Defendant is committed to equal opportunity, non-

discrimination, and non-retaliation in employment”—are quintessentially

immaterial for present purposes. E.g., Def. Reply 56.1 ¶¶ 7–8, 89, 95, 148–49; see

Anderson, 477 U.S. at 248 (“Factual disputes that are irrelevant or unnecessary will

not be counted.”). Others contain clearly impermissible legal arguments and

conclusions. E.g., Def. Reply 56.1 ¶¶ 11, 14–15, 51, 59, 68, 78, 80, 86, 112, 142, 182;

see Congregation Rabbinical Coll. of Tartikov, Inc. v. Village of Pomona, 138 F. Supp.

3d 352, 394 (S.D.N.Y. 2015) (“[T]he Court can . . . disregard legal conclusions or

unsubstantiated opinions in a Local Rule 56.1 statement.”). To the extent disputed

facts quote documentary evidence, expert opinion, or sworn testimony, such facts are

considered on this motion – but any of counsel’s unsupported factual assertions or

legal conclusions drawn therefrom are not. E.g., Def. Reply 56.1 ¶¶ 56, 59, 60, 66,

69–71, 74, 76, 78–86, 140–42, 154, 169–71, 176, 178–80, 182, 188–91; see Holtz, 258

F.3d at 74 (“[A] Local Rule 56.1 statement is not itself a vehicle for making factual

assertions that are otherwise unsupported in the record.”); Epstein v. Kemper Ins.

Cos., 210 F. Supp. 2d 308, 314 (S.D.N.Y. 2002) (“Statements in an affidavit or Rule

56.1 statement are inappropriate if they are not based on personal knowledge,

contain inadmissible hearsay, are conclusory or argumentative.”). Certain factual

disputes are moot as a result of Plaintiff’s failure to demonstrate a prima facie case

of discrimination. E.g., Def. Reply 56.1 ¶¶ 12, 14–15, 51, 165–67, 169–72, 174–75,

182–84, 186; see Crawford, 758 F.3d at 486 (quoting Celotex Corp., 477 U.S. at 323).

Other facts are disputed with evidence supporting two opposing views; the

Background Section thus includes both views where pertinent. E.g., Def. Reply 56.1

¶¶ 14, 108, 132, 143–47, 153, 155–56, 165–67; see Halberg v. United Behavioral

Health, 408 F. Supp. 3d 118, 146 (E.D.N.Y. 2019) (“Where genuinely disputed, ‘the

Court will consider the sources for the claims made in dueling Rule 56.1

Statements . . . , rather than rely on the Rule 56.1 Statements themselves[.]’”

(alteration in original) (quoting Congregation Rabbinical Coll. of Tartikov, Inc., 138

F. Supp. 3d at 396)). “To the extent that there is some variance between the

defendant’s Rule 56.1 Statement and the plaintiff[’s Counterstatement], the facts will

be viewed in the light most favorable to the plaintiff[] as [she is] the non-moving

part[y].” Morris, 37 F. Supp. 2d at 569.

Two paragraphs are worth detailing. First, Paragraph 108 identifies the

reasons “Plaintiff claims she requested a medical exemption.” Def. Reply 56.1 ¶ 108;

Pl. 56.1 ¶ 108. Plaintiff’s corresponding counterstatement paragraph adds additional

reasons; Defendant objects that these facts are “inadmissible lay opinion and

conclusory, self-serving statements that are inadmissible as a matter of law.” Def.

Reply 56.1 ¶ 108. To the extent Plaintiff’s statements are offered to prove Plaintiff’s

reasons were accurate or justified (e.g., as to the true medical necessity of getting

vaccinated or the existence of studies of the vaccine in the first trimester of

pregnancy), they are not considered. See In re Mirena IUS Levonorgestrel-Related

Prods. Litig. No. II, 387 F. Supp. 3d 323, 344 (S.D.N.Y. 2019). Plaintiff’s additional

contentions—for example, that her “concerns . . . are verified by the medical

literature provided by Defendant’s expert”—are likewise not properly considered on

this motion. Pl. 56.1 ¶ 108; Congregation Rabbinical Coll. of Tartikov, Inc, 138 F.

Supp. 3d at 394. Second, Plaintiff’s Counterstatement Paragraph 110 reflects

inadmissible hearsay, except for the assertion that Plaintiff consulted Breen and

other healthcare providers regarding the safety of the flu shot. Pl. 56.1 ¶ 110; Fed.

R. Evid. 801; Morris, 37 F. Supp. 2d at 568.

With the evidence properly sorted, the Court now addresses the merits. The

Court begins by addressing Title VII generally, before specifically analyzing

disparate treatment and disparate impact violations thereof. The Court ends its

analysis by examining the NYSHRL claims.

II. Title VII

Title VII prohibits “discriminat[ion] against any individual with respect to . . .

[his or her] compensation, terms, conditions, or privileges of employment, because of

the individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). In 1978, Congress enacted the

PDA to amend Title VII’s definition section, clarifying

The terms ‘because of sex’ or ‘on the basis of sex’ include . . . 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.

Id. § 2000e(k). The PDA “makes clear that it is discriminatory to treat

pregnancy-related conditions less favorably than other medical conditions.” Legg v.

Ulster County (“Legg I”), 820 F.3d 67, 72 (2d Cir. 2016) (internal quotation marks

omitted) (quoting Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C. (“Newport

News”), 462 U.S. 669, 684 (1983)).

Title VII “proscribes not only overt discrimination but also practices that are

fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S.

424, 431 (1971). The former, known as “disparate treatment,” occurs when an

employer “treats some people less favorably than others” because of a protected

characteristic, like pregnancy. Int’l Brotherhood of Teamsters v. United States, 431

U.S. 324, 335 n.15 (1977). The latter, known as “discriminatory impact,” occurs when

facially-neutral employment practices “in fact fall more harshly on one group than

another and cannot be justified by business necessity.” Id. Proof of discriminatory

motive is a critical difference between the two theories: disparate treatment demands

it, but disparate impact does not. Id. “Either theory may . . . be applied to a

particular set of facts.” Id.

Plaintiff brings both disparate treatment and disparate impact causes of

action. Each is separately analyzed in that order.9

III. Disparate Treatment

“[A] plaintiff can prove disparate treatment either (1) by direct evidence that a

workplace policy, practice, or decision relies expressly on a protected characteristic,

or (2) by using the burden-shifting framework set forth in McDonnell Douglas [Corp.

9 Defendant says Plaintiff “concede[d]” she has no viable disparate treatment

claims because she “failed to respond to Defendant’s motion” on this issue. Def. Reply

at 2. Yet Plaintiff’s third Argument section is titled “Disparate Treatment via Failure

to Accommodate.” Pl. Opp. at 13. Because “a plaintiff [may allege] that the denial of

an accommodation constituted disparate treatment under the Pregnancy

Discrimination Act’s second clause,” the Court disagrees with Defendant. Young v.

United Parcel Serv., Inc., 575 U.S. 206, 135 S.Ct. 1338, 1354 (2015).

v. Green, 411 U.S. 792 (1973)].” Young v. United Parcel Serv., Inc., 575 U.S. 206, 135

S.Ct. 1338, 1345 (2015). Plaintiff designates her case as one of “direct” discrimination

but nonetheless contends the facts suffice to satisfy the “indirect” McDonnell Douglas

framework. Pl. Opp. at 13–19. In addition to disputing these arguments, Defendant

contends “Plaintiff’s theory in this case – that the simple fact of pregnancy entitled

her to accommodation – is a theory that has already been rejected by the United

States Supreme Court in Young.” Def. Mem. at 8–9. As of the time of this Order,

Young is the most recent Supreme Court decision analyzing “indirect” evidence of

disparate treatment in violation of the PDA.

In the interests of clarity, the Court first assesses Plaintiff’s argument

regarding “direct” evidence of disparate treatment, then recounts the Supreme

Court’s holding in Young to assess Defendant’s argument that it precludes Plaintiff’s

case, and then applies the Young-modified McDonnell Douglas framework to

Plaintiff’s “indirect” evidence of disparate treatment.

A. Direct Evidence of Discrimination

Direct evidence of discrimination exists where “an impermissible criterion,”

like race, “was in fact a ‘motivating’ or ‘substantial’ factor in the employment

decision.” de la Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16,

23 (2d Cir. 1996) (emphasis in original) (quoting Price Waterhouse v. Hopkins, 490

U.S. 228, 258 (1989)). It can take the form of “a workplace policy, practice or decision

[that] relies expressly on a protected characteristic” or “conduct or statements by

persons involved in the decisionmaking process.” Young, 135 S.Ct. at 1345; Lightfoot

v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997); Ostrowski v. Atl. Mut. Ins.

Cos., 968 F.2d 171, 182 (2d Cir. 1992). In a direct evidence case, a plaintiff’s burden

is greater than in a McDonnell Douglas indirect evidence case. de la Cruz, 82 F.3d

at 23; Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d. Cir. 1992).

The Policy is facially neutral: it applies to “all healthcare workers” without

mention of pregnancy or any other protected characteristic. Def. 56.1 ¶ 18. Plaintiff

cites no evidence of Defendant’s conduct or statements directly reflecting an attitude

discriminatory to pregnant women. See Pl. 56.1 ¶¶ 108–59. Instead, Plaintiff says

“direct” evidence of discrimination exists due to

a clear difference in treatment of pregnant women as compared to others

not in their protected class – that difference manifests itself in a

difference in the terms, conditions, or privileges of employment in that

pregnant women are subjected to substantially worse employment

conditions than non-pregnant employees.

Pl. Opp. at 14. Specifically, Plaintiff alleges “[t]here is direct evidence that” pregnant

women are the only class of persons who would require” an accommodation based on

“the lack of research” into the vaccine’s safety and the label’s warning that pregnant

women should get the vaccine “only if clearly needed.” Id. at 15.

Plaintiff’s assertion, however, does not turn the facially neutral Policy into

direct evidence, as Plaintiff has not “show[n] that the impermissible criterion played

some part in the decision-making process.” Tyler, 958 F.2d at 1183–84 (internal

quotation marks omitted) (quoting Barbano v. Madison County, 922 F.2d 139, 145

(2d Cir. 1990)). Nothing in the record suggests that Plaintiff’s understanding of the

vaccine’s safety and reading of the label, even if accurate,10 motivated Defendant’s

actions. de la Cruz, 82 F.3d at 23; Tyler, 958 F.2d at 1181 (“[A plaintiff] must focus

his proof directly at the question of discrimination and prove that an illegitimate

factor had a ‘motivating’ or ‘substantial’ role in the employment decision.”); e.g., Cai

v. Wyeth Pharm., Inc., 2012 WL 933668, at *7 (S.D.N.Y. Mar. 19, 2012) (“There is no

evidence that the people responsible . . . ever said anything suggesting a

discriminatory animus.”).

Marlene Davis’s remark to Plaintiff and Jeannette Breen—that the Policy does

not accept pregnancy as a medical contraindication—is not direct evidence of an

intent to discriminate against pregnant woman. The Second Circuit has rejected the

idea that pregnancy-blind policies illustrate such direct evidence by virtue of their

failure to consider of pregnancy. See Legg I, 820 F.3d at 74. For example, the Legg

plaintiff contended a policy accommodating only employees injured on the job was

direct evidence of discrimination “because it excluded pregnant women.” Id. at 70,

74. The Second Circuit disagreed. Id. at 74. “[T]he policy did so on a facially neutral

basis . . . making it impossible to conclude, without inferring, that the distinction was

based upon an intent to discriminate against pregnant employees.” Id. The Second

10 While the vaccine label uses the “only if clearly needed” language strictly with

reference to pregnant women, Ex. O at 36 to Davis Decl., the label advises individuals

with Guillain-Barré syndrome that “the decision to [vaccinate] should be based on

careful consideration of potential benefits and risks.” E.g., Ex. O at 28, 31 to Davis.

Decl. Presumably, to determine whether a vaccine is “clearly needed” requires

“careful consideration of potential benefits and risks.” Plaintiff, however, does not

read the label in this manner. See Pl. Opp. at 9 (“[P]regnant women are the only class

of persons for whom the vaccination should be used ‘only if clearly needed.’ Such a

restriction does not exist for other classes of persons.” (internal citation omitted)).

Circuit bolstered its conclusion by analogizing the policy to the one in Young, whose

eligibility criteria likewise did not consider pregnancy. Id. (citing Young, 135 S.Ct.

at 1354). “Were [plaintiff] correct, the [McDonnell Douglas] burden-shifting

framework would have been unnecessary because [the Young] policy would have

amounted to direct evidence of [defendant UPS’s] alleged discriminatory intent.” Id.

at 74 (internal citations omitted). This logic commands the same result here.

Because the Court cannot conclude, without inferring, that the Policy reflects

an intent to discriminate against pregnant employees, Plaintiff presents no “direct”

evidence of discriminatory intent.

B. Indirect Evidence of Discrimination

The McDonnell Douglas burden shifting framework enables plaintiffs alleging

disparate treatment to support their cases with indirect and circumstantial evidence

engendering an inference of intentional discrimination. Vega v. Hempstead Union

Free Sch. Dist., 801 F.3d 72, 82–83 (2d. Cir. 2015). The Supreme Court in Young v.

United Postal Service, Inc., 575 U.S. 206, 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015),

modified this framework as applied to PDA claims. Young bears significantly on

Plaintiff’s case not just for this modification, but also because Defendant argues the

Young Court “rejected” Plaintiff’s theory of her case. Thus, the Court begins by

recounting the Young decision.

1. Young v. United Postal Service, Inc.

a. Background and Holding

Young was a mail carrier for UPS responsible for delivering packages weighing

up to seventy pounds. Young, 135 S.Ct. at 1344; Legg I, 820 F.3d at 72–74

(summarizing Young). When she became pregnant, she sought an accommodation

from this requirement based on her doctor’s recommendation against lifting more

than twenty pounds at a time. Young, 135 S.Ct. at 1344. UPS refused to

accommodate Young, sticking to its official policy of granting exemptions only to

employees (i) suffering from an Americans with Disabilities Act (“ADA”) covered

disability, (ii) without Department of Transportation certification, or (iii) injured on

the job. Id. Young claimed disparate treatment discrimination against pregnant

employees by virtue of their exclusion from accommodations granted to others similar

in their ability or inability to work. Id. at 1347. UPS contended its “pregnancy-blind

policy” treated Young like any other employee with lifting restrictions ineligible

under its policy, e.g., one “who injured his back while picking up his infant child.”

Young, 135 S.Ct. at 1344, 1348 (internal quotation marks omitted) (quoting the

underlying Fourth Circuit’s opinion, 707 F.3d 437, 448 (4th Cir. 2013)).

The dispute before the Supreme Court centered on the meaning of the PDA’s

second clause:

[W]omen 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.

Id. at 1348 (ellipses in original) (emphasis removed) (quoting 42 U.S.C. § 2000e(k)).

Young asserted this clause requires employers accommodating any subset of

employees limited in their ability or inability to work to provide the same

accommodation to all pregnant employees with a similar limitation – regardless of

whether certain other nonpregnant employees with the same limitation were

unaccommodated. Id. at 1349. The Supreme Court rejected this interpretation

because it granted “pregnant workers a ‘most-favored-nation’ status.”11 Id. This

status would forbid “an employer [from] implement[ing] policies that are not intended

to harm members of a protected class, even if their implementation sometimes harms

those members, as long as the employer has a legitimate, nondiscriminatory,

nonpretextual reason for doing so,” which Title VII permits employers to do. Id.

UPS read the PDA’s second clause to require employers to provide pregnant

employees only with same accommodations provided to “others within a facially-

neutral category.” Id. at 1349 (emphasis in original). That is, “UPS [contended] that

the second clause simply defines sex discrimination to include pregnancy

discrimination.” Id. at 1352–53. The Supreme Court rejected this view as redundant

to the PDA’s first clause. Id. Further, UPS’s reading accorded with the Supreme

Court’s holding in General Electric Co. v. Gilbert, 429 U.S. 125, 136 (1976)—“that an

employer can treat pregnancy less favorably than diseases or disabilities resulting in

11 A “most-favored-nation status” automatically and unconditionally would

entitle “all pregnant workers” to any accommodation extended by their employer to

even as few as “one or two workers,” so long as they share a “comparable” limitation.

Young, 135 S.Ct. at 1349–50 (emphasis in original); see Most Favored Nation, Black’s

Law Dictionary (11th ed. 2019).

a similar inability to work”—which Congress sought to overrule with the PDA.

Young, 135 S.Ct. at 1352–53.

“Writing for the [Young] 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.” Legg I, 820 F.3d at 73. Accordingly, the Young Court modified the

McDonnell Douglas framework to focus on “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. (internal quotation marks omitted)

(quoting Young, 135 S.Ct. at 1344). Employer policies that impose a “significant

burden on pregnant employees” reflect intentional discrimination if the employer

“accommodates a large percentage of nonpregnant workers while failing to

accommodate a large percentage of pregnant workers.” Young, 135 S.Ct. at 1354–55.

As to Young specifically:

[I]f the facts are as Young says they are, she can show that UPS

accommodates most nonpregnant employees with lifting limitations

while categorically failing to accommodate pregnant employees with

lifting limitations. Young might also add that the fact that UPS has

multiple policies that accommodate nonpregnant employees with lifting

restrictions suggests that its reasons for failing to accommodate

pregnant employees with lifting restrictions are not sufficiently strong—

to the point that a jury could find that its reasons for failing to

accommodate pregnant employees give rise to an inference of intentional

discrimination.

Id. Boiled down, the issue is “why, when the employer accommodated so many, could

it not accommodate pregnant women as well?” Id.

Defendant here reads Young to hold “just because some non-pregnant

employees were provided a medical exemption does not mean that all pregnant

employees were also required to have been provided a medical exemption.” Def. Mem.

at 9. This Court agrees. The Young Court rejected the assertion that one

accommodated nonpregnant employee obliges the employer to accommodate all

pregnant employees, which would recognize a “most-favored-nation” status. Young,

135 S.Ct. at 1349–50.

b. The “Ability or Inability to Work”

Defendant errs, however, in reading Young to support its view of what

constitutes an “ability or inability to work.” Defendant contends Plaintiff “did not

present with an inability to work” because she failed to “provide[] evidence of

temporary disability related to her pregnancy or a pregnancy-related condition that

in some way rendered her unable to work” or eligible for a medical exemption from

the Policy. Def. Mem. at 8, 12–14; Def. Reply at 9–10. This view improperly conflates

Plaintiff’s “ability or inability to work”—a necessary condition to warrant

accommodation under the PDA—with her ability to “present evidence of a medical

contraindication to the vaccine”—a necessary condition to warrant an exemption

under the Policy. See id. at 11. Plaintiff still may warrant accommodation under the

PDA, even without a medical contraindication warranting exemption under the

Policy. The conditions under which the PDA protects pregnant women are not

confined to the terms of Defendant’s Policy.

i. Comparators in Young

The Young Court’s vacatur of the underlying Fourth Circuit decision

illustrates this distinction. The Fourth Circuit held that UPS’s refusal to exempt

Young from its lifting requirement was not pregnancy discrimination. Id. at 1348

(discussing the Fourth Circuit’s opinion, 707 F.3d 437 (2013)). It noted that Young

did not meet any of UPS’s three pregnancy-blind bases for an accommodation—

(i) ADA disability, (ii) lack of DOT certification, or (iii) on-the-job injury. Id. As a

result, held the Fourth Circuit, Young and the nonpregnant employees

accommodated pursuant to these policies were not “similarly situated” – to wit,

“similar in their ability or inability to work”:

Young was different from those workers who were “disabled under the

ADA” (which then protected only those with permanent disabilities)

because Young was “not disabled”; her lifting limitation was only

“temporary and not a significant restriction on her ability to perform

major life activities.” Young was also different from those workers who

had lost their DOT certifications because “no legal obstacle stands

between her and her work” and because many with lost DOT

certifications retained physical (i.e., lifting) capacity that Young lacked.

And 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 1348 (quoting the Fourth Circuit’s decision) (internal citations omitted).

Defendant’s position harmonizes with the Fourth Circuit’s holding: neither plaintiff

“present[ed] with an inability to work” similar to any accommodated coworkers

because they each failed to satisfy their employers’ pregnancy-blind accommodation

criteria.

But this position is untenable as a result of the Supreme Court’s holding.

Defendant, like the Fourth Circuit did, fails to “consider the combined effects of [the]

policies,” official or otherwise, accommodating employees with a similar ability or

inability to work. See id. at 1355. The identification of comparators12 “similar in

the[] ability or inability to work” involves just that: discerning the extent to which

accommodated employees’ limitations resemble the plaintiff’s. In Young, for example,

accommodated injuries included “foot injury,” “arm injury,” “ankle injury,” and

“cancer,” each of which inhibits lifting ability or strength generally. Id. The auspices

under which an employer accommodates a comparator employee are irrelevant. It

did not matter to the Young Court that UPS accommodated its employees with

disabilities pursuant to its legal obligations under the ADA, with suspended DOT

certifications pursuant to efficient business considerations, with injuries “incurred on

the job” pursuant to written policy, or even with injuries “incurred off the job”

pursuant to informal practice. See id. at 1346–48. All that mattered was that the

comparator was accommodated for a similar limitation.13

Accordingly, then, a PDA plaintiff may “present with an inability to work” even

if she does not meet any of her employer’s pregnancy-blind accommodation criteria.

ii. Defendant’s Argument

Defendant’s distillation of this issue is incorrect. The issue is not “Did

[Plaintiff] have a temporary disability related to her pregnancy or a pregnancy-

12 The term “comparators” refers to those “outside the complainant’s protected

class” with a “similar ability or inability to work” whom the employer treats more

favorably than the complainant. Young, 135 S.Ct. at 1345.

13 Justice Alito’s concurrence—which seeks to constrain the universe of

comparators to those with “the same or very similar jobs” accommodated for a non-

neutral business reason—is not binding precedent, as the Young majority included

five other justices. Young, 135 S.Ct. at 1357–61 (Alito, J., concurring).

related condition at the time she requested exemption from the flu vaccine policy?,”

which would constitute a medical contraindication to the vaccine. Def. Reply at 1.

That question is relevant only to whether Defendant correctly denied Plaintiff an

exemption under the Policy. The Policy, however, is not commensurate with the PDA.

The PDA is broader.

The PDA “establishes no assumptions about a pregnant woman’s ability or

inability to work,” Legg v. Ulster County (“Legg II”), 832 Fed. App’x 727, 731 (2d. Cir.

2020) (non-precedential opinion), and never once uses the terms “temporary

disability” or “disability,” see 42 U.S.C. § 2000(e)(k); cf. In re Carnegie Ctr. Assoc., 129

F.3d 290, 303–04 (3d Cir. 1997) (McKee, J., dissenting) (“[T]he protection afforded

pregnancy-related conditions cannot be equated with that afforded temporary

disabilities merely because pregnancy is temporary.”).14 Its use of the inclusive

phrase “ability or inability” connotes a broader meaning than “disability,” a term

evoking its ADA statutory definition. Compare 42 U.S.C. § 2000(e)(k) (emphasis

added), with 42 U.S.C. § 12102 (ADA Definition of Disability). While “disability” may

reveal, by negative implication, one’s ability, the same is true for “inability,” and the

PDA’s inclusion of both “ability” and “inability” should be read to avoid redundancies.

Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152 (1883) (“It is the duty of

14 See generally Deborah A. Calloway, Accommodating Pregnancy in the

Workplace, 25 Stetson L. Rev. 1, 31–33 (1995) (“This reference to ‘temporary’

disabilities raises the possibility of an argument that Congress intended the

disabilities associated with pregnancy to be treated the same as other temporary

disabilities . . . . There is, however, little support for reading congressional intent in

this way.” (emphasis in original) (citing H.R. Report No. 948, 95th Cong., 2d Sess.

(1978) and S. Rep. No. 331, 95th Cong., 1st Sess. (1977))).

the court to give effect, if possible, to every clause and word of a statute, avoiding, if

it may be, any construction which implies that the legislature was ignorant of the

meaning of the language it employed.”). A pregnant woman’s “ability or inability”

can, of course, reflect temporary disability – but it does not have to.

In conclusion, the United States Supreme Court in Young did not reject

Plaintiff’s theory of her case. See Def. Mem. at 8–9.

2. The Young-Modified McDonnell Douglas Framework

While the Young decision does not preclude Plaintiff’s theory of her case, the

application of its modified McDonnell Douglas framework to the facts does.

A plaintiff alleging disparate treatment in violation of the PDA can carry her

prima facie burden through a “presumption of discriminatory intent” that arises if

(1) she belonged to the protected class, i.e. was pregnant; (2) she sought

accommodation; (3) her employer did not accommodate her; and (4) her employer did

accommodate others similar in their ability or inability to work. See Young, 135 S.Ct.

at 1354 (modifying the McDonnell Douglas framework); Legg I, 820 F.3d at 73. The

required showing is not onerous. Young, 135 S.Ct. at 1354 (quoting Texas Dep’t of

Cmty. Affs. v. Burdine (“Burdine”), 450 U.S. 248, 252–53 (1981)). If successful, the

burden shifts to the employer, who can dispel the presumption with “‘legitimate,

nondiscriminatory’ reasons for denying [plaintiff] the accommodation.” Id. (quoting

McDonnell Douglas, 411 U.S. at 802). The plaintiff’s case may nevertheless proceed

if the preponderance of the evidence shows that the employer’s justification is mere

pretext. Id.; Legg I, 820 F.3d at 74. Pretext exists where the “employer’s policies

impose a significant burden on pregnant workers, and the employer’s . . . reasons are

not sufficiently strong to justify the burden.” Young, 135 S.Ct. at 1354; Legg I, 820

F.3d at 74.

The parties agree Plaintiff has satisfied the first three elements of her prima

facie case. Def. Mem. 9–10; Pl. Opp. at 14. Defendant’s argument on the fourth

element is misguided, as explained above, because Plaintiff may still have an “ability

or inability to work” even if she did not meet Defendant’s pregnancy-blind exemption

criteria. See Discussion Section III.B.1.b supra; Def. Mem. 9–12. Plaintiff’s view is

likewise imperfect.

a. The Absence of Comparators to Pregnant Women

Plaintiff states that no employees with a similar ability or inability to work

exist because pregnant women are the “only class of person” whose inability to comply

with Policy is predicated on a “lack of research regarding” the vaccine’s safety and

the vaccine label’s “warning that it should be administered ‘only when clearly

needed.’” Pl. Opp. at 15. That is, there are no employees, accommodated or otherwise,

with a similar limitation. Plaintiff’s framing of her case relies on the unique aspects

of pregnancy, for which there are no comparators.

The approach has appeal.15 Certain limitations and conditions appear to be

unique or “endemic” to pregnancy, such that the absence of comparators with a

15 See Jennifer Bennet Shinall, The Pregnancy Penalty, 103 Minn. L. Rev. 749,

775 (2018) (“The appropriate comparator, according to the statutory language of the

PDA, is a nonpregnant person whose capabilities at work are similar to the pregnant

woman. . . . As an initial matter, such a coworker may not exist . . . .”); Reva B. Siegel,

Pregnancy as a Normal Condition of Employment: Comparative and Role-based

similar limitation outside the pregnant employee’s protected class is a fait accompli.

Judge McKee of the Third Circuit seized on this point when he dissented in In re

Carnegie Center Associates:

Accounts of Discrimination, 59 Wm. & Mary L. Rev. 971, 983 (2018) (“A comparison

of th[e] kind [in the PDA’s text] elides the ‘uniqueness’ of pregnancy and emphasizes

instead functional ability to perform the job.”); Suzanne B. Goldberg, Discrimination

by Comparison, 120 Yale L.J. 728, 762 (2011) (“[T]he comparator heuristic misse[s]

the possibility, recognized by both the [Gilbert] dissent and Congress, that the lack of

a comparator did not necessarily mean the absence of discrimination.”); Joanna L.

Grossman & Gillian L. Thomas, Making Pregnancy Work: Overcoming the Pregnancy

Discrimination Act’s Capacity-Based Model, 21 Yale J.L. & Feminism 15, 34 (2009)

(“Yet, the needs of pregnant workers are likely to differ in significant ways from the

needs of workers disabled by other causes. . . . [T]he uniqueness of the burdens,

which unquestionably exist ‘because of’ the employee’s sex but do not afflict her co-

workers makes it difficult, if not impossible, to identify employees ‘similar in their

ability or inability to work.’”); Judith G. Greenberg, The Pregnancy Discrimination

Act: Legitimating Discrimination Against Pregnant Women in the Workforce, 50 Me.

L.R. 225, 240–47 (1998) (“Although it is unusual for a court to admit that there is no

comparable group of nonpregnant employees with whom the plaintiff can compare

herself, locating such a group is frequently very difficult. This is because pregnancy

is a unique condition and imposes unique burdens on women who become pregnant.”);

Brooks Land, Note, Battle of the Sexes: Title VII’s Failure to Protect Women from

Discrimination Against Sex-Linked Conditions, 53 Ga. L. Rev. 1185, 1213 (2019) (“If

sex-linked conditions related to a woman’s reproductive system are not protected

under the PDA, women seeking the protection of Title VII will be required to compare

themselves to similarly situated males. While it would be beneficial to identify a male

comparator in every sex-discrimination claim, it is essentially impossible in most

situations regarding female-specific medical conditions.”); E. Ashley Paynter, Note,

Defining Disparate Treatment Under the Pregnancy Discrimination Act: Hall v. Nalco

Co., What to Do When You Are in a Class of Your Own, 43 Ind. L. Rev. 207, 229 (2009)

(“But there is no true comparison group for women who are undergoing IVF

treatment; so, the [McDonnell Douglas fourth prong] falls apart upon closer

inspection.”); Jessica Carvey Manners, Note, The Search for Mr. Troupe: The Need to

Eliminate Comparison Groups in Pregnancy Discrimination Act Cases, 66 Ohio St.

L.J. 209, 223 (2005) (“By failing to recognize pregnancy as a unique biological

condition, and comparing pregnancy to injury and illness, employers force pregnant

employees to make the same choice between bearing children and maintaining a

career that the PDA was meant to eradicate.”).

It is jurisprudential sleight of hand to suggest that the PDA does not

require that pregnant women be treated better than their male

counterpart. That is a misleading statement of the issue. Thus, the

[Seventh Circuit] misses the analytical mark when it states that

“[e]mployers can treat pregnant women as badly as they treat similarly

affected but nonpregnant employees,” unless it defines “similarly

affected” employees as other employees having a protected trait that is

endemic to the behavior at issue. However, [the Seventh Circuit] fails

to do so and assumes that the pregnant employee is the “equal” of her

nonpregnant coworker.

129 F.3d at 299–309 (McKee, J., dissenting) (internal citations omitted) (quoting

Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994)). However compelling

the approach is, Plaintiff has not identified any precedent accepting it, see Pl. Opp. at

13–19, and the Court can find none.

Courts eschew from acknowledging PDA disparate treatment claims premised

upon pregnancy’s unique effects. Perhaps this traces to the General Electric Co. v.

Gilbert Supreme Court majority opinion—the case the PDA overruled, Young, 135

S.Ct. at 1350—which permitted an employer’s disability benefits policy to exclude

pregnant women because of pregnancy’s unique effects. 429 U.S. 125, 139–40 (1976)

(recognizing that “pregnancy-related disabilities constitute an additional risk, unique

to women”). Regardless, after the PDA, courts have not endorsed disparate treatment

claims arising from pregnancy-endemic conditions. E.g., Dormeyer v. Comerica Bank-

Ill., 223 F.3d 579, 583–84 (7th Cir. 2000) (“[S]ome of [plaintiff’s] absences may have

been due to morning sickness, which was, of course, a consequence of her pregnancy.

But the [PDA] does not protect a pregnant employee from being discharged for being

absent from work even if her absence is due to pregnancy or to complications of

pregnancy, unless the absences of nonpregnant employees are overlooked.”).

The PDA’s text likely impedes an endorsement. The protections in its second

clause expressly activate only when “other persons not so affected” have a similar

“ability or inability to work.” 42 U.S.C. § 2000e(k) (emphasis added). If that “ability

or inability” stems from a condition unique to pregnancy, then the PDA lies dormant

because, in Catch-22 fashion, all nonpregnant people would never have that ability

or inability. Simply, all employees “so affected” would be among those discriminated

against – and thus not adequate comparators.

Further, the PDA’s text expects comparators to exist, thereby instructing PDA

plaintiffs to find them and to await dismissal when they cannot. 42 U.S.C. § 2000e(k);

Young, 135 S.Ct. at 1354 (requiring “that the employer did accommodate others

‘similar in their ability or inability to work.’” (emphasis added)); Lewis v. City of

Union City, 918 F.3d 1213, 1222–23 (11th. Cir. 2019) (en banc) (“By its very

nature, . . . discrimination is a comparative concept—it requires an assessment of

whether ‘like’ (or instead different) people or things are being treated ‘differently.’”);

Washington v. Donahoe, 692 Fed. App’x 486, 488 (9th Cir. 2017) (affirming a dismissal

where plaintiff “identifie[d] no similarly situated employees who were so

accommodated” and citing Young); Ruddy v. Bluestream Pro. Serv., LLC, 444 F. Supp.

3d 697, 709–10 (E.D. Va. Mar. 12, 2020) (dismissing a PDA claim due to plaintiff’s

failure to provide evidence identifying comparators); E.E.O.C. v. Bloomberg L.P., 967

F. Supp. 2d 816, 855–57 (S.D.N.Y. 2013) (“[T]he PDA expressly requires that she

show that ‘other persons not so affected [by pregnancy] but similar in their ability or

inability to work’ received better treatment.”); Santos v. Wincor Nixdorf, Inc., 2018

WL 6728483, at *3 (W.D. Tex. Dec. 21, 2018) (“Santos has failed to demonstrate that

the Court clearly erred by requiring her to identify a ‘similarly situated’ comparator

in order to establish a prima facie case of pregnancy discrimination.”), aff’d,7 78 Fed.

App’x 300 (5th Cir. 2019).

To be sure, the comparator requirement is “not onerous.” Young, 135 S.Ct. at

1354 (quoting Burdine, 450 U.S. at 252–53). The Second Circuit has described the

burden as “de minimis.” Lenzi v. Systemax, Inc., 944 F.3d 97, 107 (2d Cir. 2019)

(quoting Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009)). In the broader

Title VII context, comparators must “bear a ‘reasonably close resemblance,’ but need

not be ‘identical,’” to a plaintiff. Brown v. Daikin America, Inc., 756 F.3d 219, 230 (2d

Cir. 2014) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39–40 (2d Cir. 2000)).

Specifically for PDA claims, the Young Court observed that while a plaintiff and her

comparators’ “situation[s] [should not] reasonably be distinguish[able],” they need

not be “similar in all but the protected ways.” Young, 135 S.Ct. at 1354–55.

But there must be some comparators, and Plaintiff’s submissions fail to offer

any – by design. Even if Plaintiff or the Court could theoretically articulate a basis

to delineate a comparator class, see supra note 10, an empty record awaits. Plaintiff

offers no concrete particulars revealing to whom, or on what bases, Defendant

actually granted or denied exemptions from the Policy, medical or otherwise. Def.

Reply at 11 n.8. It is undisputed that Plaintiff lacks personal knowledge of any

exemption requests, Pl. 56.1 ¶ 194, and her counsel took no depositions in the case,

Traub Reply Decl. ¶ 2. No documentary evidence on this issue is annexed to the

summary judgment submissions. The only “specifics” come from Marlene Davis’s

Reply Declaration, without which the total number of (i) medical exemptions

requested, (ii) medical exemptions granted, or (iii) medical exemptions involving a

pregnancy would remain unknown. See Davis Reply Decl. ¶ 6 (filed after Plaintiff’s

submissions). There can be no genuine dispute as to whether Defendant “provided

more favorable treatment to at least some employees whose situation cannot

reasonably be distinguished from” Plaintiff’s where no evidence specifies any

employee’s situation, accommodated or otherwise. See Young, 135 S.Ct. at 1355

(emphasis added).

The only recipient to an exemption identified in the evidence is the pregnant

employee discussed in Paragraph 4 of Marlene Davis’s Reply Declaration. That

paragraph’s does not reveal her limitation; it only reveals “she submitted medical

documentation demonstrating that, based on her history and doctor’s orders,” the flu

vaccine was a “medical contraindication for her.” Davis Reply Decl. ¶ 4. The evidence

does not elucidate what that “history,” “doctor’s orders,” or “medical contraindication”

actually were. The Court has no way of determining whether her situation can or

cannot “reasonably be distinguished” from Plaintiff’s: her ability or inability to work

is unspoken. See Young, 135 S.Ct. at 1355. True, like Plaintiff, she was in the first

trimester of a pregnancy. Davis Reply Decl. ¶ 4. But her pregnancy appears

incidental to her medical exemption, and Plaintiff gives the Court no reason to think

otherwise because this employee goes entirely unmentioned in Plaintiff’s

submissions. See id.; Pl. 56.1 ¶ 190; see also Pl. Opp.; cf. Chambers v. TRM Copy Ctrs.

Corp., 43 F.3d 29, 38 (2d Cir. 1994) (“Since the court, in deciding a motion for

summary judgment, is not to resolve issues of fact, its determination of whether the

circumstances ‘giv[e] rise to an inference’ of discrimination must be a determination

of whether the proffered admissible evidence shows circumstances that would be

sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not

the province of the summary judgment court itself to decide what inferences should

be drawn.”). “It is impossible to determine” whether she is a fair comparator “because

only speculation can fill the gaps as to [her] characteristics.” Ruddy, 444 F. Supp. 3d

at 709.

Plaintiff mistakenly states that Defendant bears the burden of offering the

particulars: “Defendant produces no evidence of the nature of the exemption requests

that were denied to” nonpregnant employees. Pl. Opp. at 15. As part of her prima

facie case, however, the burden was hers to carry. Burdine, 450 U.S. 248, 258–59

(1981) (“McDonnell Douglas teaches that it is the plaintiff’s task to demonstrate that

similarly situated employees were not treated equally.”); Mandell v. Cnty. of Suffolk,

316 F.3d 368, 379 (2d Cir. 2003) (“A plaintiff relying on disparate treatment evidence

must show she was similarly situated in all material respects to the individuals with

whom she seeks to compare herself.” (internal quotation marks omitted)). “To allow

a party to defeat a motion for summary judgment by offering purely conclusory

allegations of discrimination, absent any concrete particulars, would necessitate a

trial in all Title VII cases.” Meiri v. Dacon, 759 F.3d 989, 996 (2d Cir. 1985) (“[A]

Title VII plaintiff must carry the initial burden of offering evidence adequate to

‘raise[] an inference of discrimination.’” (quoting Furnco Constr. Corp. v. Waters, 438

U.S. 567, 577 (1978)).

Without a showing that “others similar in their ability or inability to work”

were treated differently, Plaintiff has not carried her burden and cannot withstand

summary judgment. As a result, the Court need not reach the issue of Plaintiff’s

failure to “provide any information to Defendant that she had any inability to work,

a temporary disability related to pregnancy, or a pregnancy-related condition.” Pl.

56.1 ¶ 157.

b. Other Indirect Evidence of Intentional

Discrimination

The absence of comparators may not necessarily be fatal to Title VII claims.

The Second Circuit has observed that “cases occasionally arise where a plaintiff

cannot show disparate treatment only because there are no employees similarly

situated to the plaintiff.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d

Cir. 2001). Such cases are not categorically doomed to dismissal in the Second

Circuit, although they may be in other Circuit Courts. Id.16

Without comparators, a plaintiff must avail herself of the McDonnell Douglas

framework’s “flexible spirit” and “create an inference of discrimination by some other

means.” Abdu-Brisson, 239 F.3d at 467. (internal citations omitted) (citing Meiri, 759

F.2d at 996); see Furnco Constr. Corp., 438 U.S. at 575 (McDonnell Douglas

16 See generally Ernest F. Lidge III, The Courts’ Misuse of the Similarly Situated

Concept in Employment Discrimination, 67 Mo. L. Rev. 831 (2002); Tricia M. Beckles,

Comment, Class of One: Are Employment Discrimination Plaintiffs at an

Insurmountable Disadvantage if They Have No “Similarly Situated” Comparators?,

10 U. Pa. J. Bus. & Emp. L. 459 (2008).

framework “not intended to be an inflexible rule”); see also Young, 135 S.Ct. at 1353–

54 (same). The “other means” cited by the Second Circuit in Abdu-Brisson include an

employer’s “invidious comments about others in the employee’s protected group” or

the “sequence of events leading to the plaintiff's discharge.” 239 F.3d at 468 (quoting

Chambers, 43 F.3d at 37 and listing methods of raising an inference of intentional

discrimination).

It is not clear whether the benefit of Abdu-Brisson extends to PDA plaintiffs,

and one court in the Second Circuit has held it does not. E.E.O.C. v. Bloomberg L.P.,

967 F. Supp. 2d at 857 (citations omitted) (“[Plaintiff’s] reliance on Abdu–Brisson is

misplaced because the PDA expressly requires that she show that ‘other persons not

so affected [by pregnancy] but similar in their ability or inability to work’ received

better treatment.”).

Even assuming arguendo that it does, Plaintiff points to no “pattern of

derogatory statements,” no indicia of Defendant’s “all-consuming interest” in

pregnant employees’ compliance with the Policy, nor any other means envisioned by

the Second Circuit in the absence of comparators. See Abdu-Brisson, 239 F.3d at 468

(citing Chambers, 43 F.3d at 37). Indeed, Plaintiff’s theory of disparate treatment

asks the Court to find intentional discrimination solely in the terms of the Policy

itself, which, as noted, is insufficient for her prima facie case. See Pl. Opp. at 16.

Plaintiff cannot meet her de minimis prima facie burden for disparate treatment

theory, even if it is viable under the PDA, because Plaintiff presents no evidence of

intentional discrimination beyond simply articulating how the Policy works.

O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996) (“[A] prima

facie [case under McDonnell Douglas] requires evidence adequate to create an

inference that an employment decision was based on an illegal discriminatory

criterion.” (emphasis, alterations, and internal quotation marks omitted)); Burdine,

450 U.S. at 252–53 (“[T]he plaintiff has the burden of proving by the preponderance

of the evidence a prima facie case of discrimination.”); Lenzi v. Systemax, Inc., 944

F.3d 97, 107–08 (2d Cir. 2019); Kerzer v. Kingly Mfg., 156 F.3d 396, 401–02 (2d Cir.

1998). Given the Supreme Court emphasizing a “continued focus on whether the

plaintiff has introduced sufficient evidence to give rise to an inference of intentional

discrimination,” Plaintiff’s disparate treatment claims cannot withstand summary

judgment. Young, 135 S.Ct. at 1355 (emphasis in original).

IV. Disparate Impact

Title VII expressly forbids any “employment practice that causes a disparate

impact on the basis of race, color, religion, sex, or national origin,” 42 U.S.C.

§ 2000e-2(k)(1)(A)(i), which, through the PDA, includes on the basis of pregnancy. Id.

§ 2000e(k). In disparate impact cases, what matters are the “the consequences of

employment practices, not simply the motivation.” Griggs, 401 U.S. at 432 (emphasis

in original). Thus, such claims may proceed against facially neutral policies not

motivated by discriminatory intent. See Legg I, 820 F.3d at 72.

A plaintiff’s disparate impact prima facie case requires her “to (1) identify a

specific employment practice or policy; (2) demonstrate that a disparity exists; and

(3) establish a causal relationship between the two.” Chin v. Port Auth. of N.Y. &

N.J., 685 F.3d 135, 151 (2d Cir. 2012) (internal citations and quotation marks

omitted). “An employer may defend against liability by demonstrating that the

practice is ‘job related for the position in question and consistent with business

necessity.’” Ricci v. DeStefano, 557 U.S. 557, 578 (2009) (quoting 42 U.S.C.

§ 2000e-2(k)(1)(A)(i)). A plaintiff may nevertheless “still succeed by showing that the

employer refuse[d] to adopt an available alternative practice that has less disparate

impact and serves the employer's legitimate needs. Id. (citing 42 U.S.C.

§§ 2000e-2(k)(1)(A)(ii) and (C)).

As of the time of the Order, the Second Circuit has analyzed disparate impact

claims in the PDA context only once – in a non-precedential opinion dated October

29, 2020. Legg II, 832 Fed. App’x 727. It held:

[T]o establish a prima facie case, a plaintiff pursuing a disparate impact

claim under the [PDA] must demonstrate, at a minimum, that some

pregnant women are ‘similar in their ability or inability to work’ to

non-pregnant comparators receiving the accommodations sought by the

plaintiff.

Id. at 731 (emphasis removed) (citing 42 U.S.C. § 2000e(k)). That is, even in the

disparate impact context, a PDA plaintiff cannot avoid identifying comparators.

Plaintiff disavows their existence here. See supra Discussion Section III.B.2.a.

Even if she were to have articulated a comparator class, Plaintiff’s proof in

support of a disparity is conclusory. Her statistics are neither “substantial or

significant” nor “of a kind and degree sufficient to reveal a causal relationship

between the challenged practice and the disparity.” Chin, 685 F.3d at 151 (internal

quotation marks omitted). Plaintiff’s position is not founded upon record evidence.

For example, Plaintiff states, “[P]regnant women are disproportionately

affected [by the Policy] in that they are the only class of persons for whom the . . .

disadvantageous conditions exist,” i.e., for whom studies do not exist and for whom

the vaccine insert says “only if clearly needed.” Pl. Opp. at 11–12. Plaintiff’s

statistical argument goes:

[T]he Policy forces 100% of pregnant women to inject themselves and

their unborn children, despite inadequate testing and lack of medical

necessity, or be terminated. As non-pregnant employees are not

carrying unborn children, 0% of those employees are subjected to such

adverse terms or conditions of employment. . . . Thus, the risk of harm

the Policy imposes is experienced by 100% of pregnant employees, and

0% of non-pregnant employees. Such statistical evidence clearly

establishes disparity.

Id. (footnote and citations omitted). While this rationale may have surface appeal,

surviving summary judgment necessitates concrete evidence of a disparity in fact.

“Simply proving that all pregnant women will automatically be denied

accommodations under the [defendant’s] Policy is insufficient” to state a prima facie

case of disparate impact. See Legg II, 832 Fed. App’x at 732; Dimino v. N.Y.C. Trans.

Auth., 64 F. Supp. 2d 136, 158 (E.D.N.Y. 1999) (dismissing PDA disparate impact

claim where “[t]he only statistical evidence” was that the policy discriminated against

“100%” of pregnant women). Although the Second Circuit did not “identify the precise

quantum of proof that would have been sufficient to sustain [plaintiff’s] evidentiary

burden,” it stands to reason that some quantum of proof is needed.17 Legg II, 832

17 Plaintiff challenges the Policy’s impact in its first year, in which only three

pregnant women sought an exemption, which raises a concern noted by the Legg II

Court. 832 Fed. App’x at 732 (“As Legg and amici contend with some force, it is

unclear how statistical evidence could ever be adduced in an environment where only

Fed. App’x at 732; Burkhardt v. Lindsay, 811 F. Supp. 2d 632, 654–55 (E.D.N.Y. Sept.

19, 2011) (“[P]laintiff has presented no evidence regarding how many workers there

were in the entire protected group, and therefore the Court is unable to make any

determination regarding whether there was a disparate impact on the entire group,

or whether plaintiff’s . . . termination[] [was] statistically significant.”); Nathe v.

Weight Watchers Int’l, Inc., 2010 WL 3000175, at *6 (S.D.N.Y. July 26, 2010). (“[T]he

record is devoid of any evidence, other than Plaintiff’s conclusory statements . . . . A

plaintiff cannot proceed with a disparate impact claim when they fail to present any

statistical evidence demonstrating that an employer policy created an adverse impact

based on [the protected trait].”). The record here, as presented, has none.

The limited statistical evidence in the record, however probative, suggests no

disparate impact exists. Def. Reply at 7 n.3. Only one of the three known pregnant

women had her medical exemption request granted – i.e., 33.3%. Davis Reply Decl.

¶ 6. Across Defendant’s entire workforce, only forty-two of one hundred twenty-five

employees were similarly successful in obtaining a medical exemption – i.e., 33.6%.

Id.

Therefore, Plaintiff has not demonstrated the existence of a genuine issue of

material fact on whether Defendant accommodated comparators “similar in their

ability or inability to work,” a necessarily element to a PDA disparate impact claim.

three employees have been pregnant over the span of a decade.”). But Plaintiff’s

failure to adduce any evidence obviates a need to address this concern.

Legg II, 832 Fed. App’x at 731. Defendant is therefore entitled to summary judgment

on the Title VII disparate impact claim.

V. NYSHRL Claims

Plaintiff also alleges three violations of the NYSHRL: disparate impact, failure

to engage in an interactive process, and failure to accommodate.

Disparate impact violations of the NYSHRL disparate impact share the same

rubric as those in the Title VII context. Patane v. Clark, 508 F.3d 106, 113 (2d Cir.

2007) (“New York courts examine claims under [the NYSHRL] with the same

analytical lens as corresponding Title VII-based claims.”); Viscecchi v. Alrose Allegria

LLC, 117 F. Supp. 3d 243, 249 n.1 (E.D.N.Y. 2015) (Bianco, J.); Assistant Deputy

Wardens/Deputy Wardens Assoc. v. City of New York, 2019 WL 4015119, at *1 n.1

(E.D.N.Y. Aug. 26, 2019) (“The standard for disparate impact claims under Title VII

also applies to disparate impact claims under the NYSHRL.”). Plaintiff concedes this

point and argues both in concert. Pl. Opp. at 8 (citing Van Zant v. KLM Royal Dutch

Airline, 80 F.3d 708, 715 (2d Cir. 1996)). Because Plaintiff’s Title VII disparate

impact claim does not survive summary judgment, neither does her NYSHRL

disparate impact claim. See supra Discussion Section IV.

Plaintiff argues her NYSHRL failure to engage in the interactive process claim

and the NYSHRL failure to accommodate claim in tandem because “[engaging] in an

individualized interactive process is itself an accommodation.” Pl. Opp. at 21 (citing

Jochelman v. N.Y.S. Banking Dep’t, 83 A.D.3d 540, 920 N.Y.S.2d 661 (N.Y. App. Div.,

1st Dep’t 2011)).

Under New York Executive Law § 296, it is an “unlawful discriminatory

practice for an employer . . . to refuse to provide reasonable accommodations to the

known disabilities, or pregnancy-related conditions, of an employee . . . in connection

with a job or occupation sought or held.” N.Y. Exec. L. § 296(3)(a). A “pregnancy-

related condition” is any “medical condition related to pregnancy or childbirth that

inhibits the exercise of a normal bodily function or is demonstrable by medically

accepted clinical or laboratory diagnostic techniques.” Id. § 292(21-f).

Plaintiff has no “pregnancy-related condition,” as defined by the statute,

because she fails to articulate an inhibited “normal bodily function.” Plaintiff’s

proposes both (i) the “fostering the healthy growth of the unborn child, from

conception through birth, while at the same time maintaining the health of the

mother” and (ii) “the taking of medication (in this case a flu shot) or declining to take

medication” were her inhibited “normal bodily functions.” Pl. Opp. at 20. Neither

works.

As to the first, Plaintiff does not share how, or to what extent, she was inhibited

from “fostering the healthy growth of [her] unborn child” or maintaining her health.

Even if compulsory vaccination may have done so, that process is not a “medical

condition.” Nor is the vaccine’s label or the absence of studies performed on pregnant

women a “medical condition” contemplated by the NYSHRL statute. See § 292(21-f).

Moreover, pregnancy itself is not a statutory “pregnancy-related condition.” See State

of New York Executive Department, Rights and Responsibilities: A Handbook for

Employees of New York State Agencies at 31 (May 2020) (“The mere fact of being

pregnant does not trigger the requirement of accommodation.”),

https://goer.ny.gov/system/files/documents/2020/10/equal-employment-opportunity-

rights-and-responsibilities-handbook_6_20.pdf. At bottom, Plaintiff asks the Court

to hold that pregnancy could inhibit “fostering the healthy growth of an unborn child”

– a semantically-confusing suggestion considering “pregnancy” denotes the growth of

the unborn child generally. E.g., Pregnancy, Oxford English Dictionary, (3d ed. 2007)

(“[H]aving offspring developing in the uterus.”); Pregnant, Merriam-Webster

Dictionary (“[C]ontaining a developing embryo, fetus, or unborn offspring within the

body.”); Pregnant, Black’s Law Dictionary (11th ed. 2019) (“The period during which

a woman or female animal has a fetus growing inside her body.”); Cf. Krause v. Lancer

& Loader Grp., LLC, 40 Misc.3d 385, 397, 965 N.Y.S.2d 312, 322 (N.Y. Sup. Ct., N.Y.

Cnty. 2013) (holding “plaintiff has failed to allege any ‘impairment’ that she suffered

as a result of her pregnancy which caused any behavior for which she was allegedly

terminated” in the context of disability discrimination claims).

As to the second purported bodily function, it would be strange to include

taking or declining medication among one’s “normal bodily functions.” Medication

affects bodily functions, normal or abnormal, but to partake or not to partake is

essentially a decision, a choice. It does not become a bodily function merely because

it alters how the body functions.

Defendant is therefore entitled to summary judgment on the NYSHRL claims.

CONCLUSION

As a consequence of Plaintiff’s failure to provide evidence in support of her

prima facie case as to her PDA and NYSHRL claims, the Court need not engage with

Winthrop’s rationale in adopting the Policy or applying it to Plaintiff. On that point,

however, the Court is underwhelmed with the position taken by the hospital

concerning masks—taken well-after the onset of the COVID-19 pandemic and

contradicting public statements by both Winthrop and its expert18—but the efficacy

of the masks is not the issue before the Court. The Court’s task here is to determine

whether Defendant discriminated against Plaintiff on the basis of pregnancy, which

begins by analyzing the evidence in support of Plaintiff’s prima facie case.

That analysis demonstrates that Plaintiff has failed to present a prima facie

case of discrimination. Yet, lest it go unsaid, the parties might have been better off

pursuing the compromise within their reach from the outset: (i) Winthrop avers it

18 Compare Def. Reply at 14–15 (dated May 22, 2020), and Def. Reply 56.1 ¶ 14

(advocating in earnest against “the usefulness of face masks, even when properly

used, to prevent transmission [of infectious disease] from an infected person”) (dated

May 22, 2020), and Reply Declaration of Dr. Arnold Monto ¶ 64 (“Monto Reply Decl.”)

[DE 22-65] (dated May 21, 2020), with @NYULangoneLI, Twitter (June 1, 2020 12:56

PM), https://twitter.com/NYULangoneLI/status/1267500161925877763 (“Use of cloth

face covering can help slow the spread of #COVID19.”), and Robin Erb, A Michigan

Guide to Wearing Masks, or Not, During Coronavirus, Bridge Michigan (July 15,

2020) (“‘The evidence is pretty clear and it’s accumulating that [masks] work,’ Monto

told Bridge. ‘It’s not an absolute, but nothing is an absolute.’” (alteration in original)),

https://www.bridgemi.com/michigan-health-watch/michigan-guide-wearing-masks-

or-not-during-coronavirus. Winthrop’s reply papers were served after the CDC

publicly changed its guidance to support masks on April 3, 2020. See CDC,

Coronavirus Disease 2019 (COVID-19): Know How It Spreads,

https://web.archive.org/web/20200403234622/https:/www.cdc.gov/coronavirus/2019-

ncov/prevent-getting-sick/prevention.html (archived website from Apr. 3, 2020).

would have accommodated Plaintiff if she made certain disclosures in her Exemption

Request, Davis Reply Decl. ¶ 5, and (ii) Plaintiff was a per diem employee not

categorically opposed to vaccination, offering not to “pick[] up shifts” until after her

pregnancy, Pl. 56.1 ¶ 89; November 29, 2017 Email from Allison LaBarbera to Patrice

Villa, Ex. J [DE 22-27] to Forte Decl.

Nonetheless, for the reasons stated above, Defendant’s motion for summary

judgment is GRANTED. The Clerk of Court is respectfully directed to enter judgment

accordingly and to close this case.

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

March 16, 2021 Denis R. Hurley

United States District Judge