D. Michelle Bergman v. Baptist Healthcare System, Inc.

* The Honorable Bernice Bouie Donald, United States District Judge for the Western District
of Tennessee, sitting by designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0052n.06
Filed: January 18, 2006
No. 04-6435
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
D. MICHELLE BERGMAN,
Plaintiff-Appellant,
v.
BAPTIST HEALTHCARE SYSTEM, INC.,
Defendant-Appellee
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY
Before: KENNEDY, Senior Circuit Judge and GIBBONS, Circuit Judge; DONALD, District
Judge.*
JULIA SMITH GIBBONS, Circuit Judge.
D. Michelle Bergman alleges that she was terminated by her employer because of her
pregnancy. She sued the employer, Baptist Healthcare System, Inc. (“BHS”), under Title VII of the
Civil Rights Act of 1964 and the Kentucky Civil Rights Act (KCRA). Bergman also brought
contract and quasi-contract claims. The district court granted summary judgment to BHS, and
Bergman appealed. For the following reasons, we AFFIRM the district court’s grant of summary
judgment.

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1 BHS grants employees leaves of absence for their serious health conditions as well as for
their family members’ serious health conditions. The family medical leave is granted pursuant to
29 U.S.C. §§ 2601-2619, and the eligibility requirements are set by the Family Medical Leave Act.
The personal illness leave is granted pursuant to a BHS policy, and the sole eligibility requirement
is employment with BHS for at least three months. Employees who have worked for BHS for three
months can take up to three months of leave, but their jobs are not necessarily guaranteed for the
duration of their leaves. Their jobs are guaranteed only until they exhaust their paid time off
(“PTO”) and accrued sick time. After the employees’ PTO and sick time are depleted, they no longer
have the right to return to their former positions.
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I.
Western Baptist Hospital, a healthcare facility operated by BHS in Paducah, Kentucky, hired
Bergman on February 4, 2002, as an infant teacher in its daycare center. Bergman was in charge of
infants aged four- to six-months. Her job responsibilities consisted of feeding and changing the
babies, as well as getting them to sleep and engaging in age-appropriate developmental activities
with them. Bergman was an at-will employee.
Approximately two months into her employment at the daycare center, Bergman learned that
she was pregnant with her second child. After she learned of her pregnancy, she informed her
supervisor, Child Development Center Coordinator Pat Hayes, and Hayes congratulated her.
Bergman’s pregnancy immediately was plagued by complications. Approximately two
weeks after she discovered she was pregnant, on or around April 18, 2004, Bergman nearly
miscarried. To prevent a miscarriage, Bergman’s doctor ordered bed rest, which required Bergman
to be absent from work for two weeks. Bergman provided a note from her doctor and informed
Hayes that she would be absent. Hayes granted Bergman two-weeks leave.
Unfortunately, Hayes failed to comply with BHS’s leave policy when she permitted Bergman
to take two weeks off. Bergman was ineligible for BHS’s Personal Leave of Absence (LOA).1 A

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LOA is available to BHS employees suffering from serious health conditions but only if BHS has
employed them for at least three months. At the time Bergman needed the two-weeks-leave, she had
not yet been a BHS employee for three months. Bergman’s ineligibility was noticed by the human
resources department. A member of the human resources department, Blanche Hensley, called
Hayes to inquire about “what was going on with Michelle Bergman.” After Hayes explained that
Bergman had been ordered to bed for two weeks after a threatened miscarriage, Hensley asked
Hayes, “[D]o you realize she’s not eligible for family medical leave?” Because Bergman was
ineligible for the leave she was taking, an employee in the human resources department called
Bergman and informed her that she would lose her job if she did not return to work. Bergman “told
[the employee that she] would return to work because [she] could not afford to lose [her] job.”
Bergman immediately returned to work but with restrictions. Her doctor instructed her not
to lift anything that weighed more than twenty pounds. Generally, BHS permits employees to work
with restrictions for only thirty days and only if the restrictions can be accommodated in the
workplace. Despite this policy, Hayes was willing to permit Bergman to work with the lifting
restriction for the duration of her pregnancy. This was largely because the lifting restriction did not
interfere with Bergman’s job duties; her job as an infant teacher did not require her to lift many
things that weighed more than twenty pounds. Nonetheless, Hayes did provide two accommodations
for Bergman: she permitted Bergman to change diapers on mats on the floor to avoid lifting and to
ask another teacher to lift the only baby in Bergman’s care that weighed twenty pounds. Bergman
worked with these accommodations from April 2004 until early August 2004.
In early August, Bergman went into labor, well in advance of her December due date. To

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2 Even if Bergman had opted for a LOA and BHS had granted it, her job would not have been
secure. Bergman only had 16.84 hours of accrued sick time and 17 hours of Paid Time Off (“PTO”),
which would not have guaranteed her job even for the week she needed to recover from the cervical
closure. Even construing these facts in the light most favorable to Bergman, BHS’s failure to grant
Bergman a LOA is not a distinct adverse employment action. Had she received the LOA she would
have been subject to termination within a week. Not receiving a LOA that would have left her
vulnerable to job loss cannot be characterized as an adverse employment action. Therefore, the
district court did not need to analyze BHS’s failure to grant Bergman a LOA as an adverse
employment action.
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prevent a premature delivery, Bergman’s doctor ordered a surgical procedure called a cervical
closure to stop the dilation that already had begun. Bergman scheduled the surgery for August 8 and
advised Hayes on August 6 or August 7 that she needed to take one week off from work to recover
from the surgery and that after she recovered she could work only half-days on light-duty for the
remainder of her pregnancy. Bergman interpreted light-duty as a total restriction on lifting,
regardless of weight. Bergman never contacted the human resources department to take a LOA, and
Hayes never recommended that she take a LOA instead of working part-time on light-duty.2 Instead,
Hayes and Bergman focused on accommodating the total lifting restriction, while keeping Bergman
at work.
Initially, Hayes indicated to Bergman that the total lifting restriction could be accommodated
by letting Bergman work as a “breaker” who relieved other teachers. After consideration and
discussions with the Executive Director of Human Resources, Dick Thomas, and the Employee
Health Nurse, Ann Croft, Hayes decided that Bergman’s restriction could not be accommodated.
Hayes concluded that she had no position, not even the breaker position, that required no lifting.
Accordingly, Hayes decided to terminate Bergman and informed her of it on the morning of her
surgery. Bergman recalls Hayes telling her that “Dick Thomas said that I could not work in the

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breaker position and that I could no longer work there, that I would be a risk . . . . and they couldn’t
have that.” Hayes encouraged Bergman to apply for another position at the daycare center when she
could work restriction-free after giving birth.
After Hayes terminated Bergman, Bergman sued BHS for pregnancy discrimination, breach
of contract, and promissory estoppel in Kentucky state court. BHS removed the case from state court
to the United States District Court for the Western District of Kentucky. The district court granted
summary judgment to BHS and dismissed all of Bergman’s claims. Bergman moved to vacate the
summary judgment, and the district court denied her motion, even though it acknowledged that it
erred in its original analysis of her pregnancy discrimination claim. Notwithstanding, the district
court concluded that the summary judgment need not be vacated because BHS was entitled to a
judgment as a matter of law when the claims were properly analyzed. Bergman appealed the
summary judgment to this court.
II.
This court reviews the district court’s grant of summary judgment de novo, reapplying the
standard used by the district court to each of Bergman’s claims. Williams v. Mehra, 186 F.3d 685,
689 (6th Cir. 1999). Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). Although all “inferences to be drawn from the underlying facts . . . must be viewed
in the light most favorable to the party opposing the motion,” United States v. Diebold, 369 U.S.
654, 655 (1962), summary judgment must be entered against the opposing party if she “fails to make

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a showing sufficient to establish the existence of an element essential to . . . [her] case, and on which
. . . [she] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If “a reasonable jury could return a verdict for the nonmoving party” summary judgment should be
denied. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).
A. Pregnancy Discrimination Claim
“Title VII of the Civil Rights Act of 1964 prohibits employers from ‘discharg[ing] any
individual . . . because of such individual’s . . . sex.’” Turic v. Holland Hospitality, Inc., 85 F.3d
1211, 1213 (6th Cir. 1996) (quoting 42 U.S.C. § 2000e-2(a)(1)). The Pregnancy Discrimination Act
(“PDA”), an amendment to Title VII, extended the prohibition on discharging employees “‘on the
basis of sex’” to firing women because of pregnancy. 42 U.S.C. § 2000e(k). The PDA requires
employers to treat “women affected by pregnancy, childbirth, or related medical conditions . . . the
same for all employment-related purposes . . . as other persons not so affected but similar in their
ability or inability to work.” Id.
Likewise, the KCRA prohibits employers from discharging an employee because of sex or
pregnancy. Ky. Rev. Stat. Ann. § 344.040 (2003). In fact, “the Kentucky . . . statute is specially
modeled after the Federal law.” Cf. Harker v. Fed. Land Bank, 679 S.W.2d 226, 229 (Ky. 1984)
(referring to the age discrimination provisions of the KCRA). Consequently, in interpreting the
KCRA, “we must consider the way the Federal act has been interpreted.” Id.
Under the KCRA and Title VII, an employee can demonstrate discrimination by her
employer in one of three ways. She can proffer direct evidence of discrimination, present
circumstantial evidence that permits an inference of discrimination, or show “that both legitimate

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and illegitimate (discriminatory) reasons — in other words, ‘mixed motives’ — motivated the
adverse employment decision.” Harris v. Giant Eagle, Inc., 133 F. App’x. 288, 296 (6th Cir. 2005);
see also Johnson v. Kroger Co., 319 F.3d 858, 864–65 (6th Cir. 2003) (identifying methods of proof
for a Title VII claim premised on racial discrimination). Bergman attempts to prove her pregnancy
discrimination claim by direct and circumstantial evidence; she makes no allegation that BHS was
motivated by mixed-motives. Therefore, her claim will be evaluated under the direct and
circumstantial analyses only, but by no method of proof could a reasonable jury return a verdict in
Bergman’s favor.
1. Direct Evidence
Employment discrimination is established by direct evidence when the employee comes forth
with “evidence [that] requires the conclusion that unlawful discrimination was at least a motivating
factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176
F.3d 921, 926 (6th Cir. 1999). The discrimination is proven without resort to inference: that the
employee was a victim of discrimination appears plain on the face of the evidence. See Rowan v.
Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004) (“Direct evidence is evidence
that proves the existence of a fact without requiring any inferences.”). After the employee comes
forward with direct evidence of discrimination, “the burden of both production and persuasion shifts
to the employer to prove that it would have terminated the employee even if it had not been
motivated by impermissible discrimination.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th
Cir. 2000).
Bergman has presented no direct evidence of pregnancy discrimination. The only evidence

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that connects her termination to her pregnancy is the time correlation between it and her firing and
the ambiguous “risk” statement that Hayes attributed to Thomas. The mere fact that Bergman’s
termination coincided with her pregnancy does not prove pregnancy discrimination without resort
to inference. The Thomas statement — that Bergman was a risk that they could not have — does not
prove discrimination independently or even in tandem with the timing of her firing. Thomas might
have been referring to risk to the children in the daycare center from being put in the care of a
teacher who could not lift anything. Given this ambiguity, the risk statement cannot be construed
as direct evidence of pregnancy discrimination.
2. Circumstantial Evidence
An employee proves employment discrimination through circumstantial evidence by
creating a presumption of discrimination and challenging the employer to rebut the presumption by
legitimating its employment action. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252
(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). McDonnell-Douglas and
Burdine set forth the “basic allocation of burdens and order of presentation of proof” for
circumstantial evidence cases. Burdine, 450 U.S. at 252. The plaintiff must prove by a
preponderance of the evidence a prima facie case of employment discrimination. Id. at 252-53. The
nature of the alleged discrimination determines the elements of the prima facie case, compare Cline
v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000) (setting out elements of a prima
facie case of pregnancy discrimination), with Peltier v. United States, 388 F.3d 984, 987 (6th Cir.
2004) (setting out elements of a prima facie case of gender discrimination), but the burden of
establishing it is never “onerous.” Burdine, 450 U.S. at 253. Once the employee has met its burden

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of proving a prima facie case of discrimination, “the burden shifts to the [employer] ‘to articulate
some legitimate, nondiscriminatory reason for [its employment action].’” Id. (quoting McDonnell
Douglas, 411 U.S. at 802). If the employer carries its burden, the burden shifts back to the employee
to prove that the articulated justifications for the employment action are merely pretexts for
discrimination. Id. The employee can show pretext by demonstrating that the nondiscriminatory
reasons offered for the employment action (1) have no basis in fact; (2) did not really motivate the
employment action; or (3) were insufficient to justify the employment action. Manzer v. Diamond
Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). “The ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff,” Burdine, 450 U.S. at 253, despite “the division of intermediate evidentiary
burdens.” Id.
To make out a prima facie case of pregnancy discrimination, Bergman must show: “1) she
was pregnant, 2) she was qualified for her job, 3) she was subjected to an adverse employment
decision, and 4) there is a nexus between her pregnancy and the adverse employment decision.”
Cline, 206 F.3d at 658. Bergman has established the first three elements of her prima facie case. She
was approximately five months pregnant when she was terminated, and, as the district court noted
when it corrected its analytical error, she was qualified for her job as an infant teacher. The fourth
element of the prima facie case requires Bergman to show, at a minimum, that Hayes knew Bergman
was pregnant when making the decision to terminate her and that the termination was proximate to
her pregnancy. See DeBoer v. Murashi Auto Parts, Inc., 124 F.App’x. 387, 391 (6th Cir. 2005)
(finding that temporal proximity satisfied nexus requirement); Prebilich-Holland v. Gaylord

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Entertertainment Co., 297 F.3d 438, 443-44 (6th Cir. 2002) (finding employer’s knowledge of
pregnancy a requirement of the nexus element). Bergman has made this showing: Hayes knew
Bergman was pregnant and was apprised of Bergman’s pregnancy complications, and Hayes
terminated Bergman while she was pregnant. Thus, Bergman has made out a prima facie case of
pregnancy discrimination.
BHS, however, has carried its burden of rebutting the presumption of intentional
discrimination. The legitimate, nondiscriminatory motive put forth by BHS is that the daycare center
had no position that Bergman could fill while working half-days with a total restriction on lifting.
Because BHS indicated that it terminated Bergman because it could not accommodate her
restriction, Bergman must expose this proffered justification as a pretext for pregnancy
discrimination. To establish pretext, Bergman argues that BHS should have probed to determine
precisely what work she could perform while under the light-duty restriction. Bergman cannot
establish pretext by arguing that BHS should have investigated her restriction when she interpreted
the restriction for Hayes and indicated that it prohibited her from lifting anything. BHS can rely on
Bergman’s own interpretation of her doctor’s instructions. But even if BHS should have determined
independently the amount of work that Bergman could perform, that does not indicate that BHS’s
justification for terminating her was pretextual. It does not demonstrate that Bergman in fact could
have performed some job at the daycare center, that BHS really acted on the ulterior motive of
discriminating against her, or that BHS’s belief that the daycare center had no job that Bergman
could perform was insufficient to justify terminating her. See Manzer, 29 F.3d at 1084 (holding that
the employee can establish pretext only by showing that the employer’s proferred non-

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discriminatory reason for the termination had no basis in fact, did not motivate the termination, or
was insufficient to justify the termination).
Likewise, Bergman’s observation that other employees were permitted to work part-time,
with restrictions, or take extended LOA’s does not establish pretext. This observation does not go
to the issue of whether BHS could accommodate Bergman’s particular restriction in the daycare
center. The employees Bergman identified worked throughout the hospital and had restrictions that
permitted them to work different amounts under different circumstances. No employee Bergman
identified worked in the daycare center and was restricted to working half-days without lifting for
four months. The one daycare center employee who had a total lifting restriction presumably could
work full-time and only was prohibited from lifting for one month. Therefore, her restriction was
much less difficult to accommodate than Bergman’s. Consequently, BHS’s accommodation of her
restriction does not imply that its reason for terminating Bergman was pretextual. More significantly,
however, BHS’s prior accommodation of Bergman’s twenty-pound-lifting restriction suggests that
BHS accommodated Bergman to the greatest extent possible and only terminated her when it
reached the limit of its accommodations.
B. Contract Claim
Bergman cannot establish that BHS breached an employment contract because she was an
at-will employee. She signed a statement acknowledging that she had no employment contract with
BHS when she received her employee handbook. See Shah v. Am. Synthetic Rubber Corp., 655
S.W.2d 489, 492 (Ky. 1983) (presuming that an employee is terminable at will unless the employer
and employee expressly agreed that the employee could be terminated only for cause); see also

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Williams v. Webster County Coal, 2003 WL 1240474, *2 (Ky. App. Feb. 7, 2003) (requiring a “clear
expression of the parties’ intent to abandon the at will employment relationship”). She was never
converted to a contract employee because neither she nor BHS expressed a clear, explicit intent to
alter the employment relationship. See Shah, 655 S.W.2d at 492 (“If it is their purpose, the parties
may enter into a contract for permanent employment—not terminable except pursuant to its express
terms—by stating clearly their intention to do so . . . .”). Hayes’s initial indication that Bergman
could work as a “breaker” does not constitute a clear, express intent to transform Bergman from an
at-will employee to one terminable only for cause. Given that Bergman was at all times an at-will
employee, she cannot maintain an action for breach of employment contract.
C. Quasi-Contract Claim
Bergman cannot make out the elements of a quasi-contract claim even though the doctrine
of promissory estoppel applies in the employment context. McCarthy v. Louisville Cartage Co., 796
S.W.2d 10, 12 (Ky. Ct. App. 1990). Promissory estoppel requires: “(1) a promise; (2) which the
promisor should reasonably expect to induce action or forbearance on the part of the promissee; (3)
which does induce such action or forbearance; and (4) injustice can be avoided only by enforcement
of the promise.” See Res-Care, Inc. v. Omega Healthcare Investors, Inc., 187 F. Supp. 2d 714, 718
(W.D. Ky. 2001) (citing Meade Const. Co. v. Mansfield Commercial Elec., 579 S.W.2d 105, 106
(Ky. 1979)). The only statement made on behalf of BHS that could be construed as a promise was
Hayes’s indication that Bergman could work as a “breaker.” Even if this statement was a promise,
Bergman cannot establish the other elements of promissory estoppel. She did not act in reliance on
Hayes’s “promise” that she could be a “breaker” — she would have had the surgery necessary to

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save her pregnancy regardless. In fact, she had scheduled the surgery before Hayes’s alleged
“promise.” Therefore, as a matter of law, Bergman’s quasi-contract claim fails.
III.
For the foregoing reasons, the district court’s grant of summary judgment to BHS is
AFFIRMED.

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