January 2010 - Parks & Recreation - 31

offered by the defendant County were
not its true reasons, but were a pretext
for discrimination. "
In this particular instance, Germain
contended that " the Park Department's
refusal to amend its policy in the wake of
the Lochren consent decree reflected its
animus [i.e., prejudiced ill will]
towards pregnant women. " According to Germain, in the Lochren consent
decree, " Suffolk County acknowledged
that a light-duty policy identical to the
one enforced by the Park Department
had a disparate impact on pregnant
women. " After Suffolk County entered
into the Lochren consent decree, Germain maintained that " all County agencies with similar light-duty policies
should have amended their policies accordingly. " While characterizing it as
a " close question, " the federal district
court agreed with Germain.
[I]n light of the fact that an identical
County policy was found to have a
disparate impact on pregnant women
[in the police department], the Park
Department's continued enforcement
of such a policy does raise at least
an inference of intentional discrimination against pregnant women.

In light of such evidence, the federal district court found that a jury should
also determine " whether Suffolk County's failure to amend the Park Department's light-duty policy ref lects the
County's animus toward women. " As a
result, the federal district court denied
the County's motion for summary judgment to dismiss Germain's PDA claim
based on " disparate treatment. "

Retaliation
Germain also alleged that " Suffolk
County's refusal to permit her husband
to transfer his accrued sick leave time
to her was an act of retaliation within the
meaning of Title VII. " To establish a retaliation claim pursuant to Title VII, the
federal district court noted that Germain
would have to show the following:
(1) she engaged in a protected activity; (2) the employer was aware of that

protected activity; (3) she suffered
an adverse employment action; and
(4) there is a causal connection between the protected activity and
the adverse employment action.

In the opinion of the court, " Germain
easily satisfies all four elements " :
First, Germain participated in
a protected activity when she
filed the instant lawsuit. Second,
there is no question that Suffolk
County was aware of the lawsuit.
Third, Suffolk County took an
adverse employment action
against Germain when it denied
her husband's request to transfer
his sick leave time to her. Fourth,
Tempera's letter [the county labor
relations director] to Germain's
husband evidences a causal
connection between this lawsuit
and Suffolk County's decision to
deny her husband's request.
In particular, Tempera stated
in his letter that he would not consider Germain's request while his
wife's lawsuit was pending but noted
that he would attempt to accommodate the request if Germain consented to withdrawing her lawsuit.

Accordingly, in the opinion of the federal district court, there was sufficient
evidence, in particular the letter from the
county's director of labor relations, for a
reasonable jury to conclude that " Suffolk
County's stated reason for denying Germain's request was a pretext for unlawful
retaliation. " As a result, the federal district court also denied the County's motion for summary judgment to dismiss
Germain's retaliation claims.
Having denied the County's motions
for summary judgment, Geramin would
have an opportunity to prove her PDA
claims in a jury trial.

James C. Kozlowski, J.D., Ph.D. ,is an
associate professor in the School of
Recreation, Health, and Tourism at George
Mason University in Manassas, Virginia,
and legal/legislative counsel to NRPA
Public Policy. jkozlows@gmu.edu
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January 2010 - Parks & Recreation

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