Summary judgment is appropriate where there is no genuine issue dispute as to any

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56 (a). On a motion for summary judgment, the moving party bears the initial
responsibility of informing the court of the basis for its motion and identifying those
portions of the record that establish the absence of a material issue of fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). In determining whether summary judgment is
appropriate, a court must resolve all ambiguities, and draw all reasonable inferences
against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Summary judgment is appropriate under Rule 56 (a) if the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine [dispute] of material fact and the moving party is
entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 322.

STATEMENT OF JURISDICTION

The Plaintiff - Appellant, Heidi Miller, appeals the opinion and order entered on
December 20, 2021, granting the Defendant Appellee’s Motion for Summary Judgment.
The U.S. District Court for the Northern District of Florida Tallahassee Division asserted
jurisdiction based on 28 U.S.C. section 1331 and entered final judgment on December 20,
2021 (J.A. at 49). Ms. Miller timely filed her notice of appeal on January 6, 2022.

STATEMENT OF THE ISSUES

I.

STATEMENT OF THE CASE

The Plaintiff - Appellant Miller was first employed by the respondent Tarpon

Arts, Inc. in 2016 as a master sculptor (J.A. at 2). Tarpon Arts, Inc. is engaged in the

business of creating large sculptures for public display. Jennifer Schultz is the president

and founder of the company and is also a master sculptor. On April 2, 2019, the island

country of Nirvana commissioned Tarpon Arts, Inc. to create a large public sculpture to

commemorate its designation as the Gateway to the Caribbean (J.A. at 2). The contract

called for the sculpture to be unveiled on the Capitol Square on June 26, 2020 (J.A. at 2).

In September, 2019, Ms. Schultz assembled the team of employees who would

execute the design and build the sculpture (J.A. at 3). Ms. Schultz assigned the day-to-

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day supervision of the work to two of the company’s Master Sculptors, the Plaintiff –

Appellant and Steve Parrish. Also included on the team were Journeymen Sculptors,

Apprentices, and support staff. The Plaintiff - Appellant was put in charge of the

sculpture’s construction and Mr. Parrish was put in charge of planning its presentation

(J.A. at 3). Specifically, Mr. Parrish was to figure out how to light the structure and

ensure its future maintenance (J.A. at 20). Installation people on site (Nirvana) would

handle the unloading and assembly of the sculpture (J.A. at 25). Journeymen who knew

the project would also be available to assist (J.A. at 25). Ms. Schultz, Mr. Parrish and

Plaintiff - Appellant were each qualified to supervise the installation and presentation and

trouble shoot any unexpected occurrences on site (J.A. at 26).

Plaintiff - Appellant was employed full-time on this project from September 1,

2019 through June 26, 2020 (J.A. at 24).

Five years prior to this project, Mr. Parrish had injured his knee when he fell off a

ladder while working on a sculpture (J.A. at 19). In January, 2020 Mr. Parrish had

elective knee replacement surgery, spent two nights in hospital and six weeks in physical

therapy. (J.A. at 19). He returned to work part-time at Tarpon two weeks following his

surgery and gradually increased his workload until March 1, 2020 when he was able to

work full-time (J.A. at 19). Subsequently, he developed a wound infection that was

resolved with medical treatment (J.A. at 20). At the time of the installation, he was

neither injured nor ill (J.A. at 38), was working without restrictions and had experienced

no recurrence of infection.

In mid-March, 2020, Mr. Parrish requested that he be allowed to forego the trip

to Nirvana scheduled for June 26, 2020 because of his concern about “the possibility of

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an infection returning to my knee” (J.A. at 20).

In February, 2020, the Plaintiff - Appellant married her fiancé, Frank Miller.

Because they were already in their early forties, they decided to try to start a family right

away (J.A. at 26).

In March, 2020 the Plaintiff - Appellant informed her physician, Octavio

Ferdinand, M.D., that she would be traveling to Nirvana and was concerned about being

infected with the Zika virus that was prevalent there (J.A. at 27). Dr. Ferdinand advised

her that the virus could be devastating to an unborn child during pregnancy and that if she

became infected with the virus while in Nirvana before becoming pregnant, she could not

consider pregnancy for at least another two (2) years (J.A. at 29, 30).

Based on this advice, in April, 2020, the Plaintiff - Appellant personally advised

Ms. Schultz of her concerns about traveling to Nirvana and requested that she be allowed

to forego the trip (J.A. at 27). Although Ms. Schultz knew from news reporting that there

were reports of the Zika virus causing problems with babies, she did not pay much

attention. She testified at her deposition, “the unveiling in Nirvana – now that was

newsworthy. That’s where my attention was” (J.A. at 37). She conducted no further

investigation of the Plaintiff - Appellant’s concerns and denied the Plaintiff - Appellant’s

request out of hand (J.A. at 37). She subsequently rationalized her decision by giving

greater credence/import to Mr. Parrish’s fear of infection recurrence although he was

neither injured nor ill at the time and had not experienced another infection in the three

(3) month interim (J.A. at 38). When asked whether she could have supervised the

installation of the sculpture, Ms. Schulz replied, “As I said, I am no longer climbing

around sculptures and my schedule was already booked” (J.A. at 39). At the time of the

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installation, there were supporting staff, including installers and journeymen sculptors to

assist on site. Two (2) days prior to the unveiling of the sculpture, Ms. Schultz arrived to

inspect and approve the sculpture and its presentation (J.A. at 38, 39).

Fearful of losing her job and damaging her reputation in the art world, the

Plaintiff - Appellant traveled to Nirvana in June, 2020. Upon her return to Florida, the

Plaintiff - Appellant tested positive for Zika (J.A. at 27).

The Plaintiff - Appellant brought an action against Tarpon Arts, Inc.

in Fortune, Florida alleging that Tarpon Arts, Inc. violated Title VII, 42 U.S.C. section

2000 et seq., and more specifically, the Pregnancy Discrimination Act (PDA), 42 U.S.C.

section 2000e(k), when her request to forgo travel to Nirvana was denied in light of the

risk of contracting the Zika virus and its consequences.

The Defendant - Appellee moved for summary judgment, asserting an affirmative

defense that she had a legitimate business reason for assigning the Plaintiff - Appellant to

work in Nirvana.

The U.S. District Court for the Northern District of Florida Tallahassee Division

granted the Defendant - Appellee’s motion and dismissed the case.

On January 6, 2022, the Plaintiff - Appellant filed her notice of appeal in the

United States Court of Appeals for the Eleventh Circuit to appeal the opinion and order

entered by the district court granting Defendant-Appellee’s motion for dismissal.

SUMMARY OF ARGUMENT

ARGUMENT

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THE DISTRICT COURT’S GRANTING OF TARPON ART’S MOTION FOR
SUMMARY JUDGMENT MUST BE REVERSED BECAUSE IT DID NOT
CONSIDER THE TOTALITY OF AVAILABLE EVIDENCE, SPECIFICALLY
THE PHYSICAL STATUS OF MR. PARRISH AND THE AVAILABILITY OF
ALTERNATE PERSONAL 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 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(e)(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 amendment to Title VII also clearly sets forth the remedy for

discrimination on the basis of potential pregnancy. Grant v. General

Motors Corp., 908 F.2d 1303 (6th Cir 1990).

5
 The Plaintiff-Appellant in the present case claims that her employer violated Title

VII by intentionally treating her less favorably than her fellow employee, Steve 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.

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 set forth 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 the Plaintiff -Appellant herein. Under that

framework, the Plaintiff - Appellant can establish a prima facie case of discrimination by

“showing actions taken by the employer from which one can infer, if such actions remain

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

discriminatory criterion illegal under the Act”. Id. at 229, 135 S.Ct. 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

S.Ct. 1338.

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

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

6
(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).

The Plaintiff-Appellant and the Defendant-Appellee have stipulated to 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 become

pregnant, 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.

The lower court, however, 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 whereas 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, and his ability to engage in the physically demanding work of his position became

limited.

As will be shown below, the lower court misconstrued the proffered evidence and

thereby based its conclusions on faulty inferences and analysis. In fact, the pleadings,

depositions, answers to interrogatories, 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 the Plaintiff - Appellant and Mr. Parrish.

The standard established by the Eleventh Circuit Court in addressing the

similarity situated issue is whether a plaintiff and her comparator(s) are similarly situated

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

7
Such a determination must not be made on the basis of 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 S.Ct. at 1355). The prima facie case burden on the Plaintiff - Appellant

is not onerous. Durham v. Rural/Metro Corp. 955 F.3d 1279 (11th Cir. 2020). Also see

Young, 135 S.Ct. 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); Doppelganger, Merriam-Webster Dictionary (a clone or double). Other

Circuits have characterized the same burden as “de minimis,” and “bearing a reasonably

close resemblance, but not be identical.” See the Second Circuit opinion in Lenzi v.

Systemax, Inc., 944 F.3d 97, 107 (2d Cir. 2019).

In the instant case, although Mr. Parrish did undergo knee replacement surgery

and subsequently contracted an infection, by the time of his requested accommodation he

had fully recovered and was working at full capacity on the project as a Master Sculptor.

He was neither ill nor injured. His request for accommodation was based solely on his

personal fear of experiencing another infection, a position unsupported by any medical

evidence. Simply stated, Mr. Parrish could do the job. Both the Plaintiff - Appellant and

Mr. Parrish were Master Sculptors and fully qualified, both professionally and physically,

to perform all aspects of the Gateway project and had been so engaged on the project for

almost a full year.

The Defendant-Appellee provided no other categories of employees who could

not perform their normal work assignments and whom were accommodated.

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 On the other hand, Plaintiff - Appellant’s request for accommodation was based

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

country of Nirvana and which would have dire medical consequences for the Plaintiff –

Appellant (see the affidavit of Octavio Ferdinan, M.D.).

Clearly, the Plaintiff-Appellant has satisfied the fourth prong of her prima facie

case burden enunciated in Young, Lewis, and Durham. Both the Plaintiff – Appellant and

Mr. Parrish were qualified to perform all aspects of the job, both construction and

presentation. Neither was physically disabled. Parrish feared a recurrence of an

infection, but submitted no medical evidence to support that contention, whereas, the

Plaintiff - Appellant’s medical evidence supported the dire effects from the mosquito

infestation of Nirvana. Consequently, her employer treated her differently from Mr.

Parrish when she was forced to go to Nirvana and subject herself to certain exposure to

the Zika virus. Since both the Plaintiff – Appellant and her comparator, Mr. Parrish, were

both equally qualified to do the job, the similarity issue is resolved.

This successful prima facie showing thus established 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 the Plaintiff – Appellant and

deny the Defendant – Appellee’s motion for summary judgment.

In its Answer pleading, the Defendant- Appellant asserts the affirmative defense

that it had a legitimate business reason for assigning the Plaintiff to the work in Nirvana.

However, the Defendant-Appellant does not further clarify what that reason was and

conclusory statements are not evidence, and, as such, are insufficient to satisfy the

9
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 be

based on personal knowledge, show that the declarant is competent to testify, and set out

facts that would be admissible under the Federal Rules of Evidence.

Schultz’ deposition testimony implies that the requested accommodation was a

matter of convenience. This, of course, is insufficient to satisfy the PDA requirements.

As stated by the Eleventh Circuit in Durham, inconvenience or additional expense are

unacceptable reasons for denial of accommodation/unfavorable treatment and are

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

Specifically, Ms. Schulz testified that she didn’t investigate the seriousness of the

Zika virus exposure a trip to Nirvana would present for the Plaintiff-Appellant because it

was not a priority for her. The newsworthiness of the unveiling of the sculpture in

Nirvana was where her attention was. She admitted that Mr. Parrish was a

competent alternative to supervise the presentment of the sculpture, but as a pretext

claimed that Mr. Parrish was afraid that his infection would recur.

If one assumes that this testimony encompasses the so-called legitimate business

reasons for denying accommodation for the Plaintiff – Appellant, it is fails its burden and

in context constitutes a pretextual excuse.

In the unlikely event that this Court finds the employer’s excuse sufficient to

meet the employer’s burden to prove a legitimate business reasons for its actions, and that

the Plaintiff – Appellant’s pretextual argument is insufficient, a Plaintiff – Appellant can

survive a motion for summary judgment if she shows both that “the employer’s policy

imposes a significant burden on the Plaintiff - Appellant and that “the employer’s

10
legitimate nondiscriminatory reason are not sufficiently strong to justify the burden, but

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

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

catastrophic burden on the Plaintiff – Appellant, a woman unable to have a family or a

baby with abnormalities, whereas, weighed against Mr. Parrish’s speculative, at best,

unsupported 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 the Defendant – Appellee’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).

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

the Gateway sculpture. Yet, the employer refused their substitution for the Plaintiff –

Appellant. Instead the employer offered feeble 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 an important project

which was newsworthy have the markings of pretext and discrimination.

For the reasons stated above it is clear that 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 was

wanting in that it inferred evidence that did not exist, drew faulty conclusions and failed

to consider essential issues.

11
 The Plaintiff- Appellant has shown that she fulfilled the requirements of a prima

acie case for discrimination, and that the Defendant – Appellee failed to present credible

nondiscriminatory reasons for its actions. Plaintiff – Appellant further established an

undue burden placed on her by the employer’s denial of accommodation, and that the

employer had readily available alternative personnel to substitute for the Plaintiff –

Appellant which would have met the employer’s needs and relieved the Plaintiff –

Appellant of the dangerous burden of travel to Nirvana.

In of 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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