The court there found that supervisors could, indeed, qualify as "employers" under Title VII, if the challenged actions were not delegable. The court found that an agent of an employer could qualify under 42 U.S.C.S. § 2000e (b). Shoemaker v. Metro Information Services, 910 F. Supp. 259 (E.D. Va. 1996) (Jackson, J.)

Because our Legislature strongly favored monetary damages over non-monetary relief (in contrast to Title VII’s longstanding preference for non- monetary relief), any FEHA mixed-motive defense should not limit all monetary relief. Asdiscussed in section III(A)(1) above, Title VII’s statutory mixed- motive defense enacted as part of the Civil Rights Act of 1991 permits a court to order injunctive or declaratory relief and allows the prevailing plaintiff to recover attorneys’ fees and costs. (42 U.S.C.§2000e- 5(g)(2)(B).) However,it bars the plaintiff from recovering any damages- economic, non-economic or punitive.

C. Defendant’s Affirmative Defense of Undue Hardship Fails Because It Is Based Entirely Upon Speculation And Conjecture Title VII requires that an employer provide reasonable accommodation for the bona fide religious belief of an applicant or employee unless it can prove that the accommodation requires it to bear more than a “de minimus” burden and is thus an undue hardship. 42 U.S.C § 2000e(j). See Trans World Airlines v. Hardison, 432 U.S. 63, 74 (1977).

Because Defendant erroneously characterizes leave-taking as the focus of this case, Defendant argues that Dr. Lanier should analyze class members compared to “persons not so affected [pregnant] but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Not surprisingly, in support of its argument, Bloomberg cites cases emphasizing the second clause of the PDA, which essentially contemplates pregnant employees simply as a sub category of employees unable to work due to short-term disability.11 In Defendant’s cited cases, the plaintiffs generally sought a particular benefit denied to pregnant employees but provided to a subset of nonpregnant employees who were unable to work.

Indeed, as recently as a few months ago, the United States Supreme Court stated in Gross v. FBL Financial Services, Inc. (2009) 557 U.S. __ [129 S.Ct. 2343] (Gross) that the defense was subjectto criticism for its workability while continuing to be available in employment discrimination cases other than those based on age discrimination. (Id. at pp.2349 [mixed motive available undertitle VII (42 U.S.C. § 2000e et seq.) involving among other things, race or gender, but not under the Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.)].

Title VII makes it unlawful for an employer to discriminate against any individual because of his or her race, color, national origin, religion, or sex. 42 U.S.C. § 2000e- Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 18 of 23 15 2(a)(1).

Based on the above analysis, Becker argues that this court should reject the legal argument KIC presented to this court. Becker requests that this court issue a ruling that neither 43 U.S.C. § 1626(g), nor 42 U.S.C. § 2000e(b), prohibit his 42 U.S.C. § 1981 claim against KIC. Under 42 U.S.C. § 1981, KIC is an employer subject to the protection afforded by the Civil Rights Act of 1866, as modified by the Case 3:09-cv-00015-TMB Document 46 Filed 02/24/10 Page 13 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMM ARY JUDGM ENT: BECKER V. KIKIKTAGRUK INUPIAT CORPORATION PAGE - 14 - Civil Rights Act of 1991.

42 U.S.C. § 12203(a)(ADA); see also 42 U.S.C. § 2000e- 3(a) (Title VII); 29 U.S.C. § 623(d) (ADEA). A prima facie case of illegal retaliation requires a showing of "(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a Case 3:16-cv-05430-MAS-TJB Document 24-4 Filed 06/29/17 Page 15 of 20 PageID: 200 LAW OFFICES OF EDWARD HARRINGTON HEYBURN, ESQ., LLC (16) causal connection between

For the reasons that follow, the motion will be granted with respect to Count I and denied with respect to Count II. Plaintiff, Salvatore Rachuna, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII) and the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA), alleging that Defendants, Best Fitness Corp., Best Fitness and/or B.F. of Erie, Inc.,1 discriminated against him on the basis [*2] of his sex (male) by tolerating sexual harassment, created or tolerated a hostile working environment and retaliated against him for complaining about discrimination when it terminated him from his position as a Fitness Specialist on September 9, 2012. Facts

’s Answer ¶ 7-8. VDOC is engaged in an industry affecting commerce and had greater than fifteen employees during the Case 2:16-cv-00017-JPJ-PMS Document 29 Filed 05/03/17 Page 1 of 13 Pageid#: 137 2 relevant time periods in each of twenty or more calendar weeks in the current or preceding year, within the meaning of 42 U.S.C. § 2000e(b). Am. Compl.