ARGUMENT

THE DISTRICT COURT’S GRANTING OF TARPON ARTS MOTION FOR

SUMMARY JUDGMENT MUST BE REVERSED BECAUSE IT FAILED TO
CONSIDER THE TOTALITY OF AVAILABLE EVIDENCE, SPECIFICALLY THE
PHYSICAL STATUS OF MR. PARRISH AND THE AVAILABILITY OF ALTERNATE
PERSONNEL TO PERFORM THE PRESENTATION OF THE SCULPTURE,
BECAUSE IT MISAPPLIED THE STANDARD OF “SIMILARITY” MANDATED BY
THE ELEVENTH CIRCUIT, BECAUSE IT DID NOT TAKE INTO ACCOUNT THE
BURDEN PLACED ON MS. MILLER BY HER EMPLOYER, AND BECAUSE THERE
WERE MATERIAL QUESTIONS OF FACT APPROPRIATELY DECIDED ONLY BY
THE TRIER OF FACT (JURY).

Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e-2(a)(1), prohibits

discrimination with respect to compensation, terms, conditions, or privileges of employment,

because of an individual’s race, color, national origin, religion and sex. In 1978, the Pregnancy

Discrimination Act, 42 U.S.C. 2000€(k), was enacted and added the following to Title VII’s

definitional section:

The terms “because of sex” or on the basis of sex” include, but are not
limited 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.

This provision “makes clear that it is discriminatory to treat pregnancy-related conditions

less favorably than other medical conditions.” Newport News Shipbuilding & Dry Dock Co. v.

E.E.O.C., 462 U.S. 669, 670-684, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983); California Federal S.

& L. Assn. v. Guerra, 479 U.S. 272, 297, 107 S.Ct. 683,93 L.Ed.2d 613 (1987). The PDA’s

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amendment to Title VII also sets forth the remedy for discrimination based on potential

pregnancy.

In the present case, Ms. Miller claims that Tarpon Arts violated Title VII by intentionally

treating her less favorably than her fellow employee, Mr. Parrish, by accommodating his request

to forego traveling to the island country of Nirvana and by denying her similar request in

circumstances where both Mr. Parrish and she had similar qualifications but where he was not in

her protected class (J.A. at 5).

The United States Supreme Court in Young v. United Parcel Serv., Inc., 575 U.S. 206,

135 S.Ct. 1338, 191 L.Ed.2d 279 (2015) indicated that a disparate-treatment claim of

discrimination can be proven either by direct evidence that a workplace policy, practice, or

decision relies expressly on a protected characteristic or by using the burden-shifting framework

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973) in PDA cases involving indirect evidence of disparate treatment as claimed by Ms. Miller

herein. Under the framework, Ms. Miller can establish a prima facie case of discrimination by

“showing actions taken by Tarpon Arts from which one can infer if such actions remain

unexplained, that it is more likely than not such actions were based on a discriminatory criterion

illegal under the Act. Id. At 229, 135 U.S. 1338. To establish a prima facie case of discrimination

under the Act, the Plaintiff-Appellant must show only that (1) she is a member of a protected

class; (2) she requested accommodation; (3) the employer refused her request; and (4) the

employer nonetheless accommodated/treated more favorably “similarly situated” others who

were outside her class. Id. At 229, 135 U.S. 1338.

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 The Eleventh Circuit Court adopted the burden-shifting framework set out in McDonnell

Douglas. See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997) (citing McDonnell

Douglas, 411 U.S. at 802, 93 S.Ct. 1817); Lewis v. City of Union City, 918 F.3d 1213 (11th Cir.

2019); Durham v. Rural/Metro Corp. 955 F.3d 1279 (11th Cir. 2020).

I. THE AVAILABLE EVIDENCE SHOWS CONCLUSIVELY THAT MR.

PARRISH WAS NOT PHYSICALLY DISABLED AT THE TIME OF HIS
REQUEST FOR ACCOMMODATION AND BOTH HE AND MS. MILLER
WERE PROFESSIONALLY AND PHYSICALLY COMPETENT
TO PERFORM THE PRESENTATION OF THE GATEWAY SCULPTURE
THEREBY MEETING THE LEGAL STANDARD FOR “SIMILARITY” AND
CARRYING THE BURDEN OF ESTABLISHING A PRIMA FACIE CASE.

Ms. Miller and Tarpon Arts Inc. have stipulated the first three prongs of the prima facie

proof. The lower court applied the McDonnell Douglas framework and agreed that there was no

dispute that Ms. Miller belonged to the class of people covered by the PDA since she was of

childbearing age and was trying to conceive, tested positive for the Zika virus, was advised by

her physician to avoid pregnancy and therefore that her medical status was a condition related to

pregnancy (J.A. at 45).

However, the lower court found that Mr. Parrish was not similar to Ms. Miller in his

ability or inability to work because her proffered evidence did not suggest any limitation in her

physical abilities in June 2020. In contrast, Mr. Parrish had a knee that was so faulty it had to be

replaced that his knee became infected and took a long time to heal. His ability to engage in the

physically demanding work of his position became limited (J.A. at 47).

As shown below, the lower court misconstrued the proffered evidence and thereby based

its conclusions on faulty inferences and analysis. The pleadings, depositions, answers,

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admissions on file, and affidavits considered by the lower court at the very least present genuine

questions of material fact regarding the question of similarity in ability and work of Ms. Miller

and Mr. Parrish.

We review the grant of summary judgment de novo, viewing all evidence and drawing

reasonable inferences that favor the nonmoving party. Ave. CLO Fund, Ltd. v. Bank of Am.,

N.A., 723 F.3d 1287, 1293–94 (11th Cir. 2013). Summary judgment is appropriate "if 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 standard established by the Eleventh Circuit Court in addressing the similarity

situated issue is whether an employee and her comparator(s) are similarly situated “in all

material respects.” Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019). Such a

determination must not be made based on formal labels but on substantive likenesses. The

essential criteria is “one’s ability to do the job.” Id. At 1228 n.14. In other words, the

comparative features “cannot reasonably be distinguished.” Id. (citing Young, 135 U.S. at 1355).

The prima facie case burden on the employee is not burdensome. Durham v. Rural/Metro Corp.

955 F.3d 1279 (11th Cir. 2020). See also Young, 135 U.S. at 1354 (quoting Texas Dept of

Community Affairs v. Burdine, 450 U.S. 248, 252-53). Simply stated, “comparators need not be

the plaintiff’s doppelganger.” Flowers v. Troup County, Georgia School District, 803 F.3d 1327,

1340 (11th Cir. 2015). Other Circuits have characterized the same burden as “de minimis,” and

“bearing a reasonably close resemblance, but not be identical.”

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 Here, although Mr. Parrish underwent knee replacement surgery and subsequently

contracted an infection, by the time he requested accommodation, he had fully recovered and

worked at full capacity on the project as a Master Sculptor (J.A. at 19). He was neither ill nor

injured. His accommodation request was based solely on his fear of experiencing another

infection, a position unsupported by medical evidence (J.A. at 20). Simply stated, Mr. Parrish

could do the job. Both Ms. Miller and Mr. Parrish were Master Sculptors and fully qualified,

professionally, and physically, to perform all aspects of the Gateway project and had been so

engaged on the project for almost a full year.

Tarpon Arts provided no other categories of employees who could not perform their

normal work assignments and whom were accommodated.

On the other hand, Ms. Miller’s request for accommodation was well-founded based on

the fear of contracting the Zika virus that was documented to be present on the island country of

Nirvana and which would have dire medical consequences for Ms. Miller (J.A. at 29)

A. By Establishing a Prima Facie Case, Ms. Miller Has Established a “Legally

Mandatory Rebuttable Presumption of Intentional Discrimination on the
Part of Tarpon Arts.

In this case, both Ms. Miller and Mr. Parrish were qualified to perform all aspects of the

job, including construction and presentation. Neither was physically disabled. Mr. Parrish feared

a recurrence of infection but submitted no medical evidence to support that contention. In

contrast, Ms. Miller’s medical evidence supported the dire effects of the mosquito infestation of

Nirvana. Consequently, Tarpon Arts treated her differently from Mr. Parrish when forced to go

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to Nirvana and subject herself to the Zika virus. Since Ms. Miller and her comparator, Mr.

Parrish, were equally qualified to do the job, the similarity issue is resolved. Ms. Miller has

satisfied the fourth prong of her prima facie case burden expressed in Young, Lewis, and

Durham.

This successful prima facie showing thus establishes a “legally mandatory, rebuttable

presumption” of intentional discrimination. Burdine, 450 U.S. at 254, n.7, 101 S.Ct. 1089. That

is, without explanation of its nondiscriminatory reasons for denying accommodation by the

employer, a court must find for Ms. Miller and deny Tarpon Arts motion for summary judgment.

II. THE EVIDENCE UNDENIABLY SHOWS THAT THERE WAS NO

LEGITIMATE BUSINESS REASON FOR TARPON ARTS TREATING MR.
PARRISH MORE FAVORABLY THAN HER (NEITHER PHYSICAL NOR
PROFESSIONAL).

In its’ Answer pleading, Tarpon Arts asserts the affirmative defense that it had a

legitimate business reason for assigning Ms. Miller to work in Nirvana (J.A. at 17). However,

Tarpon Arts Inc. does not further clarify what that reason was, and conclusory statements are not

evidence and, as such, are insufficient to satisfy the employer’s burden. In United States v. Stein,

881 F.3d 853, 858-59 (11th Cir. 2018), the court ruled that affidavits submitted in support of a

summary judgment motion must set out facts that would be admissible under the Federal Rules

of Evidence.

Noteworthily, Ms. Schultz’s deposition testimony implies that the requested

accommodation was a matter of convenience (J.A. at 33). This is insufficient to satisfy the PDA

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requirements. The Eleventh Circuit in Durham stated that inconvenience or additional expense

are unacceptable reasons for denial of accommodation and unfavorable treatment; thus, are

inconsistent with the Act’s basis objective citing Young at 229.

Ms. Schultz had two reasonable alternatives. First, she could have sent Mr. Parish to

Nirvana in place of Ms. Miller. Second, Ms. Schultz could have gone herself. She had adequate

time to reschedule her appointments and qualified personnel to assist her with the unveiling. Ms.

Schultz testified that she didn’t investigate the seriousness of the Zika virus exposure a trip to

Nirvana would present for Ms. Miller because it was not a priority for her (J.A.at 38). The

newsworthiness of the sculpture’s unveiling in Nirvana was where her attention was. She

admitted that Mr. Parrish was a sufficient alternative to supervise the sculpture’s unveiling, but

as a pretext, claimed that Mr. Parrish was afraid that his infection would recur.

If one assumes that this testimony encompasses the legitimate business reasons for

denying accommodation for Ms. Miller, it fails its burden and, in context, constitutes a pretextual

excuse. With an available and competent substitute, there is no reasonable basis for denying Ms.

Miller’s request for accommodation other than discrimination.

A. Tarpon Arts Decision to Favor Mr. Parrish over Ms. Miller Imposed a Significant
and Life-Changing Burden on Ms. Miller Which Did Not Justify Tarpon Arts
Action and Can Only Give Rise to An Inference of Intentional Discrimination.

In the unlikely event that this Court finds Tarpon Arts excuse sufficient to meet its’

burden to prove a legitimate business reason for its actions, and that Ms. Miller’s pretextual

argument is insufficient, Ms. Miller can survive a motion for summary judgment if she shows

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both that Tarpon Arts policy imposes a significant burden on her and that her employer’s

legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden, but rather

give rise to an inference of intentional discrimination. Young, 135 U.S at 1354.

As stated above, exposure to the Zika virus would result in dire, if not a catastrophic

burden on Ms. Miller, a woman unable to have a family or a baby with abnormalities, whereas,

weighed against Mr. Parrish’s speculative, at best, unfounded fear that he would experience a

recurrence of a wound infection that previously had been successfully treated and had not

recurred in the subsequent three (3) months, clearly constitutes an unwarranted burden.

Another way to defeat Tarpon Art’s motion for summary judgment is to show that the

employer refused to adopt an alternative that had less impact and served the employer’s

requirements. Ricci v. DeStefano, 557 U.S. 557, 578, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)

(citing 42 U.S.C. section 2000e-2(k)(1)(A)(ii) and (C).

B. Tarpon Arts Refused to Adopt Viable Alternatives, Specifically Substituting Mr.

Parrish or Ms. Schultz for Ms. Miller.

Both Mr. Parrish and Ms. Schultz were qualified to supervise the unveiling of the

Gateway sculpture. Yet, Tarpon Arts refused their substitution for Ms. Miller and instead

presented unconvincing excuses. In the case of Mr. Parrish, it was his fear of an unlikely

recurrence of infection, and in the case of Ms. Schultz, it was that her schedule was booked.

Excuses such as these in the context of a significant, newsworthy project have the markings of

pretext and discrimination.

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 For the reasons stated above, the lower court misconstrued the evidence submitted and

the standards for discrimination claims announced in Young v. United Parcel Serv., Inc., Lewis

and Durham. Further, the lower court’s analysis inferred evidence that did not exist, drew faulty

conclusions, and failed to consider essential issues.

Ms. Miller has shown that she fulfilled the requirements of a prima facie case for

discrimination and that the Tarpon Arts failed to present credible nondiscriminatory reasons for

its actions. Ms. Miller further established an undue burden placed on her by Tarpon Arts denial

of accommodation. The employer had readily available alternative personnel to substitute for

Ms. Miller, which would have met Tarpon Arts needs and relieved Ms. Miller of the dangerous

burden of travel to Nirvana.

Considering these circumstances, this court should reverse the district court’s entry of a

summary judgment and remand this case for trial by a jury, the appropriate finder of fact.

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