Venturelli, Celena v. ARC Comm Services

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2294

CELENA VENTURELLI,

Plaintiff-Appellant,

v.

ARC COMMUNITY SERVICES, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01 C 912—Rudolph T. Randa, Chief Judge.

____________

ARGUED DECEMBER 3, 2002—DECIDED JULY 16, 2003

____________

Before EASTERBROOK, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge. Celena Venturelli, who was sev-

eral months pregnant, worked for a temporary employment

agency and was assigned to work for ARC Community

Services, a social services agency principally devoted to

helping women with various problems. Venturelli per-

formed very well and ARC hoped to hire her full-time for

a vacant administrative assistant position. But when one

of her supervisors discussed the job with her, she was left

with the impression that ARC would not hire her while

she was pregnant, and she quickly lost interest in the job.

She completed her predesignated term as a temporary

2 No. 02-2294

employee and departed, but she did not return ARC’s

calls after she left to have her baby. ARC eventually hired

someone else. Venturelli then sued ARC for unlawful

discrimination in violation of Title VII, 42 U.S.C. § 2000e-

2(a)(1), as amended by the Pregnancy Discrimination Act,

42 U.S.C. § 2000e(k). The district court granted ARC’s

motion for summary judgment. Venturelli appeals, and

we affirm.

I.

ARC Community Services, Incorporated (ARC) is a not-

for-profit corporation that serves women involved with

the criminal justice system, women who have drug prob-

lems, and women who are pregnant. In October 1999, the

Adecco Employment Agency assigned Celena Venturelli,

who was visibly pregnant and due to deliver in March

2000, to work at ARC as a receptionist. Adecco had an

agreement with its clients, including ARC, that a tem-

porarily-assigned employee (“temp”) like Venturelli would

have to work at least 520 hours before the employer could

hire that person permanently. Violation of this agreement

would subject the employer to a monetary penalty.

Venturelli arrived at ARC at a busy time. ARC was in

the process of preparing two important grants that were

essential for funding for the following year. Venturelli

worked closely with Assistant Director Judy Baldwin in

preparing one of those grants. Baldwin was very impressed

with Venturelli’s performance and suggested to Execu-

tive Director Karen Kinsey that Venturelli would be an

excellent candidate for the administrative assistant’s

position that ARC was attempting to fill. At a meeting

with Baldwin and Michael Collins, the ARC services

comptroller, Kinsey concluded that they should offer

No. 02-2294 3

Venturelli the position. Since Collins was the person who

was in charge of monitoring the temporary employees and

keeping track of their time, Kinsey told Collins to meet with

Venturelli and discuss the possibility of Venturelli taking

the job.

That turned out to be an unfortunate assignment. On

two occasions, one shortly before and one shortly after

the Martin Luther King holiday in January 2000, Collins

met with Venturelli in his office. Instead of simply offer-

ing her the job, Collins went into a detailed discussion

about Venturelli’s pregnancy and how she would deal

with it in the event she took a permanent position with

ARC. He made comments about how some women change

their mind once they have the child in their arms. As he

contends in his deposition, he was attempting to let

Venturelli know that there would be no rush to come

back to the job on a permanent basis. Instead, she would

be able to take the time she thought was necessary to stay

at home with her child. Collins may have thought he was

being magnanimous when he suggested that Venturelli

could change her mind about when and if she wanted

to come to work full-time after she had the baby, but

Venturelli was taken aback by this discussion. She inter-

preted Collins’ comments about women and babies as

an indication that ARC did not want to hire pregnant

women. Although Venturelli was “shocked” by this con-

versation, she remained stoic and did not raise any ob-

jections to these references that she perceived as stereo-

typing working mothers.

A few days later, at the direction of Karen Kinsey, Judy

Baldwin spoke with Venturelli, and she also stated that

ARC was interested in hiring Venturelli for the job of

administrative assistant. Venturelli responded to that

overture by saying that she wanted to think about the

matter and talk some more about it. Baldwin assumed

4 No. 02-2294

she wanted to talk it over with her husband and did

not pursue the issue further. Venturelli did not get back

to Baldwin with her response, and when Kinsey learned

of this she simply assumed that they could not force

Venturelli to take the job. Venturelli did not mention her

concern about Collins’ statements when she met with

Baldwin, nor did she make any contact with Kinsey with

the same complaints.

During Venturelli’s meeting with Baldwin, they dis-

cussed insurance and whether pregnancy would be a

preexisting condition under ARC’s policy. Baldwin did

not know, so she called ARC’s insurance carrier while

Venturelli was in the room. After attempting to contact

two people who turned out not to be available, Baldwin

talked with a third person at the insurance company, whom

Baldwin cannot identify. That person, it turns out incor-

rectly, informed Baldwin that pregnancy was a preexist-

ing condition. Baldwin passed on the information to

Venturelli, thus implying that, if Venturelli were immedi-

ately to begin working for ARC full-time, her pregnancy

would not be covered. As it was, Venturelli’s husband was

employed and she was then receiving benefits on his

employer’s medical plan. And, as Kinsey later acknowl-

edged, putting Venturelli on ARC’s medical plan would

have had no impact on the organization’s premiums.

After this conversation, Venturelli continued the remain-

ing time at ARC in her temporary status. Her last day of

work was February 24, a date she had set early on in

anticipation of her March 12 due date. The office workers

gave her a baby shower on that day, and then she left,

never to return.

After Venturelli’s departure, ARC officials made sev-

eral attempts to contact her, but no one was able to reach

No. 02-2294 5

her personally and so they simply left voicemail mes-

sages. Venturelli purposely did not return those calls

because, at that point, she had decided that she did not

want to return to ARC. After remaining at home with

her baby for about five months, Venturelli applied for,

and obtained, employment with a different employer.

In the meantime, in hopes that Venturelli would accept

the full-time administrative assistant position, ARC hired

in succession two temporary employees to perform the

job. However, after ARC finally did not hear back from

Venturelli, it hired another person, Laura Schleif, for the

full-time position. Schleif was pregnant at the time ARC

expressed interest in hiring her, and ARC told her that

she could begin the job after she delivered her baby. That

is what Schleif did, even though she had left to have

her baby before completing the 520-hour requirement.

Schleif’s hiring occurred at approximately the same time

that Venturelli took a new job with a different corporation.

As it turned out, Venturelli herself had met the 520-

hour requirement on February 14, approximately ten

days before her last day at ARC. The record does not

show how much Venturelli would have been paid had

she been given a full-time position sometime between

February 14 and February 24. Nor is there any indication,

had she taken a full-time position and had the expenses

for the delivery of her child placed on ARC’s medical plan,

whether there would have been any difference in cov-

erage of expenses from her husband’s employer’s medical

plan.

Venturelli eventually filed a complaint with the Equal

Employment Opportunity Commission, and then sued

under Title VII, accusing ARC of refusing to hire her

because she was pregnant. The district court granted ARC’s

motion for summary judgment and Venturelli appeals.

6 No. 02-2294

I.

This court reviews the district court’s grant of summary

judgment de novo, construing all facts in favor of Venturelli,

the nonmoving party. Rogers v. City of Chicago, 320 F.3d

748, 752 (7th Cir. 2003). Summary judgment is proper when

the “pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any ma-

terial fact and that the moving party is entitled to a judg-

ment as a matter of law.” Fed. R. Civ. P. 56(c). Thus,

“[s]ummary judgment is appropriate if, on the record as

a whole, a rational trier of fact could not find for the

non-moving party.” Rogers, 320 F.3d at 752.

Under Title VII, it is unlawful for most employers “to fail

or refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to . . .

compensation, terms, conditions, or privileges of employ-

ment, because of such individual’s . . . sex. . . .” 42 U.S.C.

§ 2000e-2(a)(1). The phrase “because of sex” has been de-

fined by the Pregnancy Discrimination Act (PDA), through

which Congress amended Title VII in 1978, to mean

“because of or on the basis of pregnancy, childbirth, or

related medical conditions.” 42 U.S.C. § 2000e(k).

Venturelli’s complaint is that ARC violated Title VII when

it failed to hire her in January or February 2000 because

of her pregnancy. As it is undisputed that ARC is an

employer subject to Title VII, the question on appeal is

whether a reasonable jury could conclude that ARC

failed to hire Venturelli at some point because she was

pregnant. She has available the direct method or the indi-

rect method to prove her case. Troupe v. May Dep’t Stores

Co., 20 F.3d 734, 736 (7th Cir. 1994).

No. 02-2294 7

A. The Direct Method

Under the direct method, there are two types of per-

missible evidence. First, there is direct evidence, or evi-

dence that, if believed by the trier of fact, would prove

the fact in question “without reliance on inference or

presumption.” Rogers, 320 F.3d at 753 (internal quotation

omitted). Direct evidence “essentially requires an admis-

sion by the decision-maker that his actions were based

upon the prohibited animus.” Id. (internal quotation omit-

ted). For obvious reasons, we rarely encounter direct

evidence. Id. The second type of evidence permitted

under the direct method is circumstantial evidence, or

evidence that allows a jury to infer intentional discrimina-

tion by the decisionmaker. Id.

1. Direct evidence.

Venturelli contends that “[t]he three key members of

ARC’s management team—Kinsey, Baldwin, and Collins—

each provide direct proof” that ARC violated the PDA by

refusing to hire her while she was pregnant. As to Kinsey,

Venturelli first puts forth Collins’ statement to the effect

that Kinsey told him to offer Venturelli a job “when she

came back” from delivering her baby. In Venturelli’s view,

this remark is direct evidence; i.e., it is tantamount to

Kinsey’s admission that ARC would not hire Venturelli

because of pregnancy. We disagree. An offer of employ-

ment to a pregnant woman beginning some time after

she delivers her baby does not, in itself, prove that the

employer would hire that same woman immediately, but

for her pregnancy. This information does not in any way

equate to an admission of discrimination, and cannot

be direct evidence of discrimination. We therefore con-

clude that there is no direct evidence in relation to Kinsey.

8 No. 02-2294

Nor is there any direct evidence attributable to Baldwin.

Venturelli relies on page 59 of her own deposition to

establish that “Baldwin told Venturelli that ARC was go-

ing to wait to hire her until she had her baby.” What

that reference actually refers to, however, is Venturelli’s

recalled conversation where she told the temp agency

(Adecco) representative that she was interested in the

position but “Mike Collins told me that they wanted me

to wait until my pregnancy was over before they hired me.”

In her February 1 meeting with Baldwin, the discussion

centered on insurance. There is no dispute that Venturelli

had planned to leave ARC on February 24 in anticipation

of her baby’s birth. According to Venturelli, Baldwin

told her ARC would like to offer her a job and a salary level,

but that it would not be an advantage to her at that time

because she would not be eligible for any benefits. At

the time Venturelli was covered by her husband’s em-

ployer’s benefit program. It turned out that Baldwin’s

information on benefits was incorrect, but the point of the

discussion was that Venturelli would continue her pres-

ent job as a temp until her predesignated departure

date (February 24) and return as a regular employee as

the administrative assistant. There is no indication from

Baldwin that ARC wouldn’t hire Venturelli simply because

she was pregnant.

That leaves Collins’ message about new mothers and

their desire to stay home with their babies. Assuming

that Collins was a decisionmaker, which is a question we

need not reach, the quoted statement could arguably

constitute direct evidence. Collins, of course, casts this in

a different light—his intent was not to rush her, and in-

stead was to offer her all the time she needed before de-

ciding to come back full-time. But even under Venturelli’s

interpretation, whether or not she would return was a

valid concern. When Collins told Venturelli that they liked

No. 02-2294 9

her and wanted to hire her as the administrative assistant,

but “we want to see how this pregnancy thing turns out,”

his concern was clearly not her pregnancy, but rather her

willingness to come back and take on the new job. His

remark that “[o]nce you hold that baby, you’re just not

going to come back to work” was a less than tactful way of

expressing that ARC was willing to hold the job open to

give her time to decide if she wanted to return.

In Troupe v. May Dep’t Stores Co., 20 F.3d 734 (7th Cir.

1994), we encountered an employer whose adverse em-

ployment action was motivated by the belief that the

pregnant woman would not “return to work after her

maternity leave was up,” and held that discrimination

so motivated did not violate the PDA because an em-

ployer can legitimately consider an employee’s potential

absence from work, even where that absence is because

of pregnancy. Troupe, 20 F.3d at 737-38; see also Rhett v.

Carnegie Center Assoc. (In re Carnegie Center Assoc.), 129 F.3d

290, 297 (3d Cir. 1997) (following Troupe). Even though

the same type of questions are presented here—after

the baby is born, will Venturelli return to work and

when?—Venturelli cites Maldonado v. U.S. Bank, 186 F.3d

759 (7th Cir. 1999), as narrowing Troupe’s holding to em-

ployees who, unlike Venturelli, had a poor attendance

record during pregnancy. Not so. In Maldonado, the evi-

dence showed that the employer admitted that the plain-

tiff was being fired “due to her [pregnant] condition.” She

was fired the day after she announced she was preg-

nant. Maldonado thus presented the unusual circumstance

where the defendant apparently admitted liability, and

thus the plaintiff was entitled to reach a jury with direct

evidence. Maldonado did cite Troupe as authorizing an

employee’s dismissal even when excessive absences were

a direct result of her pregnancy. But although Troupe’s

employer fired her the day before her pregnancy leave was

10 No. 02-2294

to begin, it was not because of past absences. “[S]he was

terminated because her employer did not expect her to

return to work after her maternity leave was up.” Troupe,

20 F.3d at 737. Standing alone, that did not violate the

PDA. Id. at 738. Venturelli wasn’t fired. Rather, she con-

tinued to work, albeit as a temp, until her chosen last day

of February 24. But as she recalls it, the discussion of

her permanent position, something she initially wanted

and ARC wanted her to have, hinged on whether (and

when) she would want to come back. Unlike Maldonado,

Venturelli presented no evidence that ARC said that it

would not hire her because she was pregnant. Not only

was she already pregnant while she was employed at ARC

as a temp, but she had also declared she was leaving

on February 24 to prepare for her baby’s birth. According

to Venturelli, Collins’ statements show that ARC discrimi-

nated against her because it did not believe she would

return to her job after pregnancy, and thus would not offer

her a permanent position until it was assured of a time

when she would return. In light of Troupe, even if ARC

conditioned its offer of a permanent job as administra-

tive assistant on if and when Venturelli would come

back after having the baby, that is not direct evidence of

a violation of the PDA.

Our dissenting colleague disagrees, arguing that this

case is controlled by Maldonado, and not Troupe, because

“the effect of Collins’ uncorroborated belief that Venturelli

would not want to work makes Maldonado a more ap-

propriate comparison.” On two main points, we disagree.

First, the dissent’s interpretation of Troupe is unduly con-

fined. The holding of Troupe is straightforward: an employer

may, without violating the PDA, terminate or not hire

a woman because it does “not expect her to work after

her maternity leave” ends. Id. at 737-38. Nothing in Troupe

No. 02-2294 11

says that the employer’s expectation that the employee

would not return to work must be corroborated.

Second, even if Troupe only applied where the employ-

er’s expectation was corroborated, it would still apply

here. The dissent correctly notes that “[i]f Venturelli had

told Collins that she wasn’t sure if she wanted to return

to work after giving birth, ARC would have been justified

in searching for another employee.” While we certainly

agree with that observation, in this case Venturelli’s ac-

tions were tantamount to telling ARC that “she wasn’t sure

if she wanted to return to work after giving birth.”

As Venturelli admitted in her deposition, even after

the meeting between Venturelli and Collins, Judy Baldwin

had met with Venturelli and “said that she would like

to offer [Venturelli] the admin assistant job,” but that

Venturelli would not be eligible for medical insurance to

cover her pregnancy. Baldwin’s statement, if not itself a

job offer (the district court concluded it was), was exceed-

ingly close to being one. Anyone who was in Venturelli’s

position, and who wanted the job, would have under-

stood that this was an obvious opportunity to express

interest in accepting the position. Venturelli, however,

remained silent, neither expressing an intention to accept

the job as soon as possible, nor telling Baldwin that

she understood Collins’ insensitive comments to mean

that ARC would not hire her while she was pregnant.

(Either choice likely would have nipped this dispute in

the bud.) Silence in these circumstances was corrobora-

tion of ARC’s concern that Venturelli would not resume

working after her maternity leave, as was Venturelli’s later

refusal to return ARC’s telephone calls about the job.

Moreover, our analysis is not, as the dissent appre-

hends, “only a small step” away from the conclusion that

companies may “avoid hiring women of childbearing

12 No. 02-2294

age altogether out of a fear that the women will some

day become pregnant, take a substantial amount of time

off, and perhaps never want to return to work at all.” To say

the least, that is a giant step away from our holding in

this case. Our dissenting colleague is absolutely correct

that refusing to hire a woman of childbearing age simply

for fear that she might have a baby violates Title VII, and

nothing in this opinion endorses anything of the sort.

2. Circumstantial evidence under the direct method.

As discussed above, circumstantial evidence under the

direct method allows a jury to infer intentional discrimina-

tion by the decisionmaker. There are three categories of

circumstantial evidence under the direct approach, each of

which may suffice by itself to establish discrimination,

or may be used in conjunction with one or both of the

other categories. Troupe, 20 F.3d at 736. The first category

consists of “suspicious timing, ambiguous statements

oral or written, behavior toward or comments directed at

other employees in the protected group, and other bits

and pieces from which an inference of discriminatory

intent might be drawn.” Id. The second type requires a

showing that the employer systematically treated other,

similarly situated, non-pregnant employees better. Id. The

third type is evidence that the plaintiff was qualified for

the position in question but passed over in favor of a per-

son not having the forbidden characteristic and that the

employer’s stated reason for its decision is “unworthy of

belief, a mere pretext for discrimination.” Id. The latter

category “is substantially the same as the evidence re-

quired” under the indirect method. Huff v. UARCO, Inc.,

122 F.3d 374, 380 (7th Cir. 1997).

Venturelli puts forth what she considers two “addi-

tional bits of evidence that lend circumstantial support to

No. 02-2294 13

an inference of discrimination.” First, she cites ARC’s

“schizophrenic . . . assessment of Venturelli’s value as an

employee.” According to Venturelli, although ARC often

praised Venturelli’s performance, in a letter from its at-

torney to the Wisconsin Equal Rights Division it also

complained falsely that Venturelli (1) failed to work a forty-

hour week; (2) worked an inconsistent number of hours; (3)

“simply stopped coming to work after February 24, 2000”;

and (4) “failed to inform ARC and Adecco that she had

no intention of returning to work.” Venturelli relies on

Hasham v. California State Bd. of Equalization, 200 F.3d 1035,

1049 (7th Cir. 2000), for the proposition that where the

employer makes false statements about an employee’s

job performance, “a jury is entitled to view the false state-

ments as circumstantial evidence of a discriminatory

intent.”

Venturelli misplaces her reliance on Hasham. The part

of Hasham to which she cites holds that contradictory

statements about the quality of an employee’s work are

evidence that the employer’s stated reason for the

adverse employment action was pretextual under the

indirect method. Id. Circumstantial evidence under the di-

rect method, however, must allow a jury to infer more

than pretext; it must itself show that the decisionmaker

acted because of the prohibited animus. None of the state-

ments to which Venturelli points fits within any of the three

categories that we delineated in Troupe. All that these

statements show is that, in addition to its praise of

Venturelli’s work, ARC also offered some additional

observations. In fact, there is no dispute that as a temp

she worked less than 40 hours per week, that the hours

worked were somewhat irregular, that she did stop com-

ing to work after February 24, and that she did not return

several calls of inquiry from ARC regarding her intent

to return. Significantly, the attorney’s letter emphasized

14 No. 02-2294

that they wanted to hire her after the 520-hour penalty

period ended, but because of her irregular hours it was

not certain when that time period would expire. She

left before they had that calculation. In short, the rec-

ord verifies the facts set out in a letter that is mislabeled

schizophrenic.

The second piece of circumstantial evidence to which

Venturelli points is Baldwin’s telephone conversation with

ARC’s insurance carrier, made in Venturelli’s presence,

where Baldwin relayed incorrect information that Venturelli

would not be eligible for health benefits were ARC to

hire her immediately. Venturelli argues that the record

would allow a jury (1) to conclude that Baldwin was ly-

ing, as opposed to relying honestly on what the insurance

company told her, and (2) to infer that “the lie could

only have been intended to discourage Venturelli from

pursuing employment at ARC during her pregnancy.”

For such a statement to be sufficient circumstantial

evidence under the direct method, the remark in question

must be “directly related to the employment decision.”

Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 762 (7th

Cir. 2001). Venturelli, however, adduces no evidence

that Baldwin’s alleged lie about the insurance was in any

way related to ARC’s decision not to hire her as of January

or February 2000. The only record evidence concerning

the incorrect information that pregnancy was an unin-

sured preexisting condition is Karen Kinsey’s testimony

that including Venturelli on ARC’s insurance coverage

would have no effect “because our health insurance costs

us the same whether someone is pregnant or not preg-

nant.” We thus conclude that this piece of evidence does

not entitle Venturelli to reach a jury under the direct

method. Because Venturelli puts forth no further evi-

dence under the direct method, we turn to her evidence

in relation to the indirect method.

No. 02-2294 15

B. Indirect Method

Under the indirect method of proof, a plaintiff must

first establish a prima facie case of discrimination. To

make a prima facie case, Venturelli must show that: (1)

she was pregnant; (2) she applied and was qualified for

the position sought; (3) she was rejected; and (4) the posi-

tion remained open and ARC continued to seek appli-

cants from persons of Venturelli’s qualifications. Heerdink

v. Amoco Oil Co., 919 F.2d 1256, 1259 (7th Cir. 1990). An

alternate means of proving prong four is to establish that

someone who was not pregnant received more favorable

treatment. Mills v. Health Care Servs. Corp., 171 F.3d 450, 454

(7th Cir. 1999) (citing E.E.O.C. v. Our Lady of Resurrec-

tion Med. Center, 77 F.3d 145, 148 (7th Cir. 1996)). If

Venturelli were to establish a prima facie case, to avoid

liability ARC would then have to come forward with a non-

invidious reason for its decision. Rogers, 320 F.3d at 755. If

ARC were to meet its burden of production, to avoid

summary judgment Venturelli would then have the bur-

den to present competent evidence that the proffered non-

discriminatory explanation is pretextual.

No dispute exists regarding the first two elements of the

prima facie case. The third element is not so clear. The

district court held, and ARC argues, that Venturelli does

not meet prong three because ARC did, in fact, offer her

the job. A review of the record underscores how the parties

were not connecting in their communications with each

other. Clearly ARC wanted to hire Venturelli as the ad-

ministrative assistant. However, Collins’ ramblings about

motherhood apparently reduced or even eliminated

Venturelli’s desire to accept a permanent job at ARC. Un-

fortunately she said nothing to Collins, Baldwin or

Kinsey about her concern of a perceived negative at-

titude toward pregnant employees at ARC (an organiza-

16 No. 02-2294

tion whose mission included helping pregnant women).

Further muddying the picture was the projected expira-

tion of the 520-hour penalty period that would enable

ARC to hire Venturelli. But when Venturelli met with

Collins and later Baldwin, the date of the expiration of

that time period had not yet been determined. As was

later calculated, that expiration date was February 14, ten

days before Venturelli’s chosen departure date of Feb-

ruary 24. So while there apparently was an offer made

by ARC for Venturelli to be administrative assistant after

the time off she needed after she had her baby, there

is no indication in light of the evidence favorable to

Venturelli of an offer to hire her during that ten-day period

before she voluntarily left the temporary assignment

at ARC.

But that gap does not nail down the third element for

Venturelli—that she was not hired because she was preg-

nant. Not only did she remain silent when, at two sep-

arate meetings, Collins made what she concluded were

offensive comments; she said nothing about her concerns

at her subsequent meeting with Baldwin, an undisputed

employment decisionmaker, when the hiring discus-

sion digressed into whether pregnancy was a preexisting

condition under ARC’s benefits package. Nor did she

return Kinsey’s call (to discuss the administrative assis-

tant position), a clear opportunity to raise her concern

with ARC’s executive director. Their response would

have presented evidence of whether they would or would

not have hired her (or even if she wanted to be hired)

during that ten-day period while she was pregnant. All

that remains is Venturelli’s conjecture of what Collins

meant when he expressed concern about whether and

when Venturelli would return to ARC after she had the

baby. That is not enough.

No. 02-2294 17

Venturelli’s claim falls short under the fourth element

as well. For the fourth element of the prima facie case,

we determine whether the position remained open and

ARC continued to seek applicants from persons of

Venturelli’s qualifications. In her opening brief, Venturelli

contends that she meets prong four because ARC “contin-

ued to seek applicants for the position.” The undisputed

evidence, however, is to the contrary. In December 1999,

with the decision to offer the administrative assistant

position to Venturelli, ARC canceled all advertising for that

vacancy. Even after its final communications with Venturelli

in February 2000, when any rejection would have had

to have been made, ARC continued for several months

to staff the position of permanent administrative assis-

tant with temporary employees in anticipation that

Venturelli would eventually fill the position. There is no

evidence in the record that ARC continued seeking ap-

plicants. It was only after June 2000, after several attempts

to contact Venturelli and months of not hearing back

from her, that ARC sought new applications for the posi-

tion of administrative assistant. Thus, even if ARC had,

in fact, rejected Venturelli for the position in January

or February 2000, there is not a shred of evidence that it

then continued to seek applicants for the permanent post

of administrative assistant from people of Venturelli’s

qualifications.

Venturelli also argues that she can satisfy prong four by

showing that ARC treated someone who was not preg-

nant more favorably, pointing specifically to ARC’s proc-

ess for hiring Laura Schleif beginning in August 2000,

roughly five months after Venturelli had ceased job-related

contacts with ARC. This argument fails because Venturelli

points to no evidence that would allow a jury to con-

clude that ARC treated Schleif any more favorably than

it treated Venturelli. Like Venturelli, Schleif was preg-

18 No. 02-2294

nant and a temporary employee when ARC decided to

hire her as an administrative assistant. As it had advised

Venturelli, ARC told Schleif that she could begin the job

after she had her baby. The only difference between

Schleif and Venturelli is that Schleif was apparently hired

before she completed the 520-hour requirement. Had

Venturelli, like Schleif, chosen to accept the full-time

position after delivering her baby, she too could have

returned to ARC as soon thereafter as she desired. In

other words, Venturelli and Schleif were, in all relevant

aspects, treated the same: ARC would have allowed

either to begin working in the permanent administrative

assistant position after she had delivered her baby. In

no sense can ARC be said to have treated Schleif any

more favorably than it had treated Venturelli.

We hold that, because Venturelli cannot establish the

third or fourth elements of the prima facie case, she is not

entitled to reach a jury via the indirect method of proving

a Title VII violation.

III.

From start to finish this is an unfortunate sequence

of events. ARC wanted to hire Venturelli as administrative

assistant and at some point she wanted the job. But com-

munications broke down when Collins callously muddled

a job offer by referring to his perceptions of mothers

and their new babies. Although Venturelli was offended,

she said nothing to Collins, nor did she discuss her con-

cerns with Kinsey or Baldwin. She left the temporary job

as scheduled and never returned calls about the job.

Venturelli does not present direct or circumstantial evi-

dence sufficient to proceed under the direct method of

proving discrimination. Also, she is unable to produce

No. 02-2294 19

evidence under the indirect method for establishing the

third or fourth elements of a prima facie case. We there-

fore AFFIRM the district court.

EVANS, Circuit Judge, dissenting. When evaluating cases

under the Pregnancy Discrimination Act, we must deter-

mine whether an employer treated a pregnant employee

as it would have treated a “similarly affected but nonpreg-

nant employee[ ].” Troupe v. May Dep’t Stores Co., 20 F.3d

734, 738 (7th Cir. 1994). But pregnancy is unique, often

making that seemingly simple task a difficult one. This

case demonstrates why it doesn’t always work just to

ask whether an employer would treat a similarly affected

but nonpregnant employee any differently.

According to Celena Venturelli’s story (which, at the

summary judgment stage, we must accept as true), she

told Michael Collins in January that she wanted the job.

Collins didn’t hide the fact that her pregnancy—specifically

the question of whether she would return to work after

having her baby—was the major cause of ARC’s hesita-

tion. “We want to wait,” he told her, because “we want to

see how this pregnancy thing turns out. . . . I know how

you women are. Once you have that baby, you’re not

going to want to return.”

My colleagues consider Collins’ belief that Venturelli

would not want to come back to work to be “a valid con-

cern,” and certainly an employer who is not sure when or

if an employee will return to work has a valid concern

and can act accordingly—to paraphrase our example in

20 No. 02-2294

Troupe (comparing the pregnant plaintiff there to a hypo-

thetical black employee in need of a kidney transplant),

a baseball team can cut a black second baseman with a

bum knee without giving rise to a claim of racial discrim-

ination if it is not sure when or if the knee will recover.

What makes our case different, however, is that Collins

never worried that Venturelli would be physically unable

to return to work, just that she would be unwilling to

do so. And Collins’ concern arose not from anything

Venturelli said, but from general notions about pregnant

women and new mothers.

If an employer is allowed to take action based solely on

the stereotype that new mothers are unlikely to return

to work, it requires only a small step for companies to

avoid hiring women of childbearing age altogether out of

a fear that the women will some day become pregnant,

take a substantial amount of time off, and perhaps never

want to return to work at all. “I know how you women

are,” an employer might tell a newly married applicant.

“You decide it’s time to have a child, then once you

have that baby, you’re not going to want to return.” Em-

ployers cannot refuse to hire a woman because they fear

that she will have children and choose not to return to

work—that’s precisely the type of discrimination the PDA

was designed to prevent. See Maldonado v. U.S. Bank, 186

F.3d 759, 763 (7th Cir. 1999) (“[Congress] designed the

PDA specifically to address the stereotype that ‘women

are less desirable employees because they are liable to

become pregnant.’ ” (quoting Sheehan v. Donlen Corp., 173

F.3d 1039, 1045 (7th Cir. 1999))).

As my colleagues point out, Troupe, in which we found

that an employer did not violate the PDA in terminating

an employee because it “did not expect her to return to

work after her maternity leave was up” seems to offer

No. 02-2294 21

protection to ARC. 20 F.3d at 737. But the effect of Collins’

uncorroborated belief that Venturelli would not want to

return to work makes Maldonado a more appropriate

comparison. Because of her pregnancy, the plaintiff in

Troupe was habitually late, and we assumed that the

employer was reluctant to pay the plaintiff during her

maternity leave. With those concerns, we were able to

compare the plaintiff’s situation to that of a similarly

situated nonpregnant employee.

We must imagine a hypothetical Mr. Troupe, who is

as tardy as Ms. Troupe was, also because of health

problems, and who is about to take a protracted

sick leave growing out of those problems at an ex-

pense to Lord & Taylor equal to that of Ms. Troupe’s

maternity leave. If Lord & Taylor would have fired

our hypothetical Mr. Troupe, this implies that it

fired Ms. Troupe not because she was pregnant but

because she cost the company more than she was

worth to it.

20 F.3d at 738. As a result, Troupe asked but never had

to answer the question of whether an employer could fire

an employee solely because of his general belief that

women will not return to work after their children are born.

Maldonado, on the other hand, did not differ from Troupe

simply because the employer there “admitted liability,”

as my colleagues contend. In fact, Maldonado raised a

different issue—the employee there was fired simply

because the employer assumed that she would be absent

from work in the future. As a result, we reversed the dis-

trict court’s grant of summary judgment in favor of the

employer.

There might be some limited circumstances in which

an employer could be justified in taking anticipatory

22 No. 02-2294

adverse action against a pregnant employee. Al-

though the PDA was designed to allow individual

women to make independent choices about whether

to continue to work while pregnant, it was not de-

signed to handcuff employers by forcing them to wait

until an employee’s pregnancy causes a special eco-

nomic disadvantage. . . . But an employer cannot take

anticipatory action unless it has a good faith basis,

supported by sufficiently strong evidence, that the

normal inconveniences of an employee’s pregnancy

will require special treatment.

186 F.3d at 767. Similarly, ARC cannot take the anticipa-

tory action of refusing to hire a pregnant woman because

it is not sure she will return to work unless that assump-

tion is supported by more than a stereotypical belief

that new mothers will not leave their infants. If Venturelli

had told Collins that she wasn’t sure if she would return

to work after giving birth, ARC would have been justified

in searching for another employee. In that case, the com-

parison to a different medical condition works, and ARC

only would have had to have hired Venturelli if it would

have hired a nonpregnant worker who wanted to take

an indefinite and potentially permanent leave soon after

being hired. But that is not the justification ARC has

made at this point, instead claiming only that it didn’t

treat Venturelli any differently because she was preg-

nant. Collins’ statements provide Venturelli with enough

evidence to let a jury decide whether that is true. I would

reverse the grant of summary judgment and remand

this case for trial.

No. 02-2294 23

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-16-03