Wal-Mart Doesn't Owe Pregnancy Light Duty

     CHICAGO (CN) - A woman who miscarried twice while working for Wal-Mart cannot sue the retail giant for failing to create a light-duty position that might better accommodate her pregnancy, the 7th Circuit ruled.
     Svetlana Arizanovska worked three nights per week as a stocker on the overnight shift. Stockers must be able to lift 50 pounds to place items on shelves, process returns and clean the store.
     In November 2008, Arizanovska learned that she was pregnant. When she experienced vaginal bleeding and spotting, her doctor forbade her from lifting more than 20 pounds. Wal-Mart reassigned Arizanovska to work in the baby food and toothbrush aisles. She experienced more bleeding and was again reassigned.
     Two months later, Arizanovska learned that she had miscarried. She filed a discrimination complaint against the company with the Equal Employment Opportunity Commission shortly afterward.
     In May 2009, Arizanovska again learned she was pregnant. She provided Wal-Mart with a medical restriction from her doctor saying that she could not lift more than 10 pounds. Because she could no longer perform the essential lifting functions of a stocker, Arizanovska asked to be transferred to a position where she only folded clothes.
     No such position existed, however. Employees who fold clothes also help stock the aisles. The human resources and personnel manager both agreed that Wal-Mart's Accommodation in Employment Policy allowed Arizanovska to take an unpaid leave of absence but did not include "creating a job, light duty or temporary alternative duty, or reassignment."
     Arizanovska declined to take a leave of absence and did not return to work after May 20, 2009. She miscarried again a month later.
     Arizanovska, a Macedonian, sued Wal-Mart for retaliation and discrimination on the basis of pregnancy and national origin. She claimed that Wal-Mart had violated the Pregnancy Discrimination Act and Title VII of the Civil Rights Act, as well as state law forbidding intentional or negligent infliction of emotional distress.
     Chief U.S. District Judge Richard Young in Indianapolis granted summary judgment for Wal-Mart on all claims. The 7th Circuit affirmed Tuesday.
     Arizanovska claimed that Wal-Mart let two pregnant black employees work in aisles with less heavy items, but the federal appeals court deemed that comparison inept. The other employees did not submit formal medical restrictions and were not assigned to light-duty work.
     Additionally, "Arizanovska has not identified a similarly situated employee outside her protected class - i.e., non-pregnant," Judge William Bauer wrote for a three-judge panel. "Both of the employees she identified were pregnant, and so we cannot infer pregnancy discrimination on that basis because there is no comparison between the treatment of pregnant employees versus non-pregnant employees."
     Arizanovska's retaliation claims also fell short, though the appellate judges noted that Wal-Mart could not simply hide behind its Accommodation Employment Policy to avoid all such claims.
     "Wal-Mart has not cited any case - nor are we aware of any - in which an employment action was found not to be materially adverse merely because it was consistent with a broader company policy," Bauer wrote. "In fact, such a finding would allow companies to retaliate, and even discriminate with impunity so long as the employment action complained of was consistent with some internal policy; a company's employment policy should not be used to shield liability in that way."
     Arizanovska failed to show that her EEOC charge was a "substantial motivating factor" in Wal-Mart's decision to require her to take an unpaid leave of absence, however, the court ruled.
     "Wal-Mart did not create a light duty position for Arizanovska because, according to its Accommodation Policy, it would not create that position for any non-pregnant employee who as under medical restrictions," Bauer concluded. "That policy is consistent with Title VII's requirements."
     The court did not address Arizanovska's state-law claims, affirming their dismissal in a single sentence.