Labor & Employment Law Daily Comments about leave support bank manager’s pregnancy discrimination, FMLA claims
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Tuesday, January 28, 2020

Comments about leave support bank manager’s pregnancy discrimination, FMLA claims

By Wayne D. Garris Jr., J.D.

After series of pregnancy-related complications required the employee to be regularly absent from work, her once supportive regional manager become more antagonistic.

A federal district court in Pennsylvania denied PNC Bank’s motion for summary judgment against a former branch manager’s Title VII and FMLA claims, finding that there were issues of fact as to whether the employee’s termination for her violation of the bank’s Code of Ethics was a pretext for discrimination. While the employee was on medical leave related to pregnancy complications, her manager declined to transfer her to a manager position at another branch. Further, during her second pregnancy, her supervisor made derogatory comments about her need to take leave for medical appointments. The court concluded that these comments, combined with the employer’s inconsistent statements about the decision to terminate the employee, precluded summary judgment on her pregnancy discrimination and FMLA claims. The employer was entitled to summary judgment on the employee’s nonpregnancy related sex discrimination claim, however, because it was based on the same evidence and there was no difference between that and her pregnancy discrimination claim (May v. PNC Bank, January 21, 2020, Pratter, G.).

First pregnancy. The employee worked as a branch manager and reported directly to a regional manager. Starting in April and continuing in May 2017, she took three weeks of FMLA leave after terminating her pregnancy due to complications. While she was on leave, the employee learned that a transfer she had sought was given to another employee. The regional manager explained that the employee did not get the transfer because he could not interview her while she was on leave.

Second pregnancy. In June 2017, the employee notified the bank that she was pregnant again, but that her pregnancy was high risk. She testified that she told the regional manager she would need to regularly take leave to attend medical appointments related to her pregnancy.

According to the employee, the regional manager complained on a daily basis about her being out and asked how frequently and how long she would need time off. The regional manager also allegedly told her that the “the branch’s success could become an issue for the lack of [her] leadership[,]” and “if you want to grow in your career, your branch can’t fail.” In July or August 2017, the employee discussed with HR and the regional manager the need for FMLA leave in preparation for the birth of her child.

Termination. On August 11, 2017, the employee requested that one of her subordinates seek a refund on the employee’s joint account with her husband. After a refund request was denied for one of the employee’s other personal accounts, a customer care consultant reported to the bank that the employee had called previously to request a refund on this personal account. As a result, a supervisor at the bank’s Customer Care Center filed a complaint alleging that the employee misused her authority by directing a subordinate to refund fees for a personal account.

The bank initiated an investigation of the complaint and the investigator recommended that the employee and her subordinate be terminated for violating the bank’s Code of Ethics. Ultimately, the bank terminated the employee and issued the subordinate a formal written warning. The employee filed suit alleging sex and pregnancy discrimination, FMLA retaliation, and FMLA interference.

Pregnancy discrimination. The court first concluded that the employee’s alleged comparators were not similarly situated. The employee identified three nonpregnant employees who were allegedly treated better than she was. First, she claimed that she reported a teller supervisor, and that supervisor’s superior, for falsification of records and neither was terminated. The court concluded that the employee did not provide sufficient evidence of the charges against those employees and they had different supervisors than the employee. The other alleged comparator, the employee’s subordinate, was given a written warning despite being involved in the same incident that led to the employee’s termination. But he was not similarly situated because he committed the infraction at the direction of his supervisor.

Disparaging comments. Despite the lack of comparator evidence, the employee was still able to raise genuine issues of fact. The regional manager knew about both of her pregnancies, made disparaging comments about her pregnancy-related leave, including that he offered the branch manager position to another employee because of the employee’s leave. A factfinder, said the court, could find that the comments raised an inference of discrimination, “especially in light of their continued nature, between the date of her first pregnancy, around April 2017, to her termination in September 2017.”

Pretext. The court also found that the disparaging comments were sufficient to establish pretext. In addition, the bank’s inconsistent statements about its decision to terminate the employee suggested that her violation of the Code of Ethics was a pretext for discrimination. In its interrogatory responses, the employer stated that multiple individuals were involved with the decision to terminate the employee. However, in his deposition the regional manager testified that he was the sole decisionmaker.

Sex discrimination. Although the employee attempted to raise a sex discrimination claim, separate from her pregnancy discrimination claim, based on the regional manager’s remarks and the favorable treatment of her subordinate, the court dismissed this claim finding that there was no functional or substantive difference between the sex and pregnancy claims.

FMLA retaliation. The court denied summary judgment on the employee’s FMLA retaliation claim for the same reasons as the pregnancy discrimination claim. The employee established that after she returned to work from FMLA leave, the regional manager subjected her to a daily pattern of derogatory remarks about her absences and her lack of a managerial position.

The regional manager’s conduct occurred shortly after the employee used and requested leave which was enough to raise a factual dispute as to whether she was terminated for taking FMLA leave.

FMLA interference. Turning to her FMLA interference claim, the court rejected the bank’s argument that because the employee alleged that she would have been entitled to benefits after the delivery of her child had she not been fired, she did not allege in her complaint her entitlement to FMLA benefits or proffer any support to sustain it. Once the employee notified the employer of the need for leave, as she did in July 2017, she became entitled to FMLA benefits. Furthermore, she alleged that she was denied those FMLA benefits to which she was entitled because she was fired, so her claim can proceed.

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