The opinion of the court was delivered by: Savage, J.
In this gender discrimination action,*fn1 the plaintiff Robin Zielinski claims she was terminated from her employment with Pulte Services Corporation ("Pulte") because she was pregnant. Moving for summary judgment, Pulte contends that Zielinski cannot make out a prima facie case for discrimination because she was not replaced by someone outside her protected class. It also argues that there is no evidence that the decision to fire her was pretext for discrimination. It contends that Zielinski was terminated pursuant to a gender-neutral policy denying leave to all employees who have worked for the company less than one year.
We find that Zielinski has produced sufficient evidence from which a reasonable jury could conclude that Pulte's asserted non-discriminatory reason was pretext for pregnancy discrimination. Therefore, the motion for summary judgment will be denied.
Zielinski was hired by Pulte as an Assistant Customer Relations Manager on June 30, 2008. In the Fall of 2008, Zielinski informed Harry Pettyjohn, Pulte's Area Construction Manager, and Dana Manzo, Pulte's Human Resources Manager for its Delaware Valley Division, that she was pregnant and expected to give birth in 2009. On January 24, 2009, she was admitted to the hospital because she was leaking amniotic fluid. Two days later, Zielinski called Manzo, informing her that she had been admitted to the hospital and her doctor instructed her that she needed to remain on bed rest for the remainder of her pregnancy. Manzo advised Zielinski to complete and return a "Request for Leave" form, which she did that day.
Zielinski gave birth on January 28, 2009. On February 6, 2009, she received a letter from Manzo informing her that she was not eligible for leave under the Family Medical Leave Act ("FMLA") and was terminated as of that day. The letter also stated that "[i]f you are able to work in the future, we encourage you to re-apply for any open positions for which you are qualified and Pulte will consider you for that position." Termination Ltr., Feb. 6, 2009.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In examining the motion, we must view the facts in the light most favorable to the non-movant and draw all reasonable inferences in her favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir. 2009). This standard is applied with "added rigor in employment discrimination cases, where intent and credibility are crucial issues." Stewart v. Rutgers, The State Univ., 120 F.3d 426, 431 (3d Cir. 1997) (quoting Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162 (7th Cir. 1994)).
The party moving for summary judgment bears the initial burden of demonstratingthat there are no genuine issues of material fact. Fed. R. Civ. P. 56(a). Once the movant has done so, the opposing party cannot rest on the pleadings. To defeat summary judgment, she must come forward with probative evidence establishing the prima facie elements of her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The non-movant must show more than the "mere existence of a scintilla of evidence" for elements on which she bears the burden of production. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). An inference based upon speculation or conjecture does not create a material fact. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).
In an employment discrimination case, "summary judgment is to be used sparingly." Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 369 (3d Cir. 2008). "[T]he burden of persuasion on summary judgment remains unalterably with the employer as movant." Id. at 362.Hence, the employer must persuade the court that even if all of the inferences that could reasonably be drawn from the evidence are considered in the light most favorable to the plaintiff, no reasonable jury could find in her favor. Id. (citations omitted).
Title VII, as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ("PDA"), makes it unlawful for an employer to discriminate against a pregnant employee in taking an employment action. C.A.R.S. Protection Plus, Inc., 527 F.3d at 363-364.*fn2 An employer cannot fire an employee because she is pregnant. Id. at 364. The PDA requires employers to treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work. Id. (citing In re: Carnegie Ctr. Assoc., 129 F.3d 290, 294 (3d Cir. 1997)). It does not, however, entitle pregnant employees to preferential treatment. Id.
A claim of disparate treatment intentional employment discrimination may be proven by either direct evidence of discriminatory intent or indirect evidence from which one can infer an intent to discriminate. C.A.R.S. Protection Plus, 527 F.3d at 364. Zielinski does not rely on direct evidence. Instead, she relies upon indirect evidence.
Claims based on indirect evidence are analyzed under the three-step McDonnell Douglas-Burdine burden-shifting standard. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The plaintiff must first present enough evidence to make out a prima facie case. If she does, the employer must then produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action. Id. At the third step, to defeat summary judgment, the plaintiff must show that the employer's ...