Employment Law Daily EEOC prevails on summary judgment in case of pregnant waitress removed from schedule
Tuesday, August 22, 2017

EEOC prevails on summary judgment in case of pregnant waitress removed from schedule

By Brandi O. Brown, J.D.

In what the court described as an example of “the rare lawsuit” in which the plaintiff is entitled to summary judgment, the EEOC prevailed in its suit brought on behalf of a Bob Evans server who was removed from the restaurant’s schedule because of her pregnancy. The manager had said he removed the employee from the schedule because he did not want to get “screwed” if she went into labor. A federal district court in Pennsylvania granted the EEOC’s motion for summary judgment as to liability for pregnancy discrimination (EEOC v. Bob Evans Farms, LLC, August 17, 2017, Hornak, M.).

Manager did not ‘want to get screwed over.’ The employee typically worked five days a week, averaging approximately 22 hours per week. Work schedules were automatically generated in advance of the workweek, first in what was, essentially, a draft form and then in a mostly final draft that was posted approximately one week ahead of time. Changes could be penciled in thereafter, based on gaps or illnesses. While the employee was pregnant with her second child, the general manager, believing that the birth of the baby was “imminent,” asked the employee when she planned to take a leave of absence for her pregnancy. The employee told him repeatedly that she wanted to work until she had the baby. She did not request a leave of absence and she did not tell the manager her due date. Nevertheless, he asked her to change her availability in the scheduling system because he did not “want to get screwed over if [she had] the baby.” She told him no. He told her he was going to take her off the schedule, but that she would still get her hours.

Removed from schedule. The manager did take the employee off the schedule, but she did not get her hours. He later testified that he did so because she was pregnant, he believed her need for leave was imminent, and he wanted to be certain that staffing needs were met. He stated that he expected the employee to let him know if she was willing and able to work. After she was zeroed out of the automated schedule, the employee had to contact the shift leader and other managers to obtain work. However, she was only able to work if there was a gap to fill. After the employee was removed from the scheduled, the general manager never told the shift leader to give the employee any certain number of hours, and the employee could not simply be scheduled for her normal number of shifts because of the change. The employee requested shifts on several occasions, but in the end, was only scheduled for six shifts between the time she was zeroed out to the time she gave birth two months later. In the last few weeks she was not scheduled at all. She did not return to work at Bob Evans after the birth of her child.

She filed an EEOC charge and the EEOC filed suit on her behalf under Title VII and the Pregnancy Discrimination Act. Both parties moved for summary judgment.

Direct evidence. This was a direct evidence case, the court explained (in agreement with the EEOC). Contrary to the employer’s argument, evidence of “ill will” was not necessary; an employee would be “no less discriminated against” if the decisionmaker was motivated by “perceived stereotypes and even paternalistic notions regarding the protected class status” of the employee. After reviewing several cases dealing with the issue of direct evidence, the court concluded that the record evidence in this case “shows directly and without equivocation that the reason for” the manager’s decision removing the employee from automatic scheduling “was because she was pregnant and he believed her need for leave because of child birth (and nothing else) was imminent.” He did not discuss the employee’s due date with her and the employee did not request leave for some undisclosed reason—she did not request it at all. The manager’s belief that the employee’s attendance was “unpredictable” was based only on her pregnancy and that “is just the type of stereotypical judgment that Congress legislated against by enacting the PDA.” The employee’s alleged “unpredictability” was “nothing more than a proxy for” the pregnancy itself.

Indeed, the court explained, the Act “compels the conclusion that an employer cannot require a pregnant employee to stop working unless she is unable to work, preserving the decision to work to the woman’s judgment in the first instance.” Although the employer sought to “rationalize” what occurred by asserting that predictability was needed and that it was using its “business judgment,” the court explained that “[a]nticipated inconvenience” could not be used to legally justify discrimination. There was no genuine issue of material fact, the court concluded, and the EEOC established pregnancy discrimination as a matter of law.

Adverse employment action. The court also rejected the employer’s argument that the EEOC could not meet its burden to show that the employee suffered an adverse employment action. What the employee experienced was more than “inconvenience” at being removed from the automatic scheduling process and having to call in to obtain shifts. Although she was manually scheduled for shifts in the first week by the general manager, thereafter she was only scheduled to work if gaps occurred in the automatically generated schedule. The terms and conditions of her job were changed: She went from a regularly scheduled, part-time shift worker to a fill-in part-time shift worker. This placed a “discrete burden” on the employee, who would have no schedule because of her pregnancy unless she could find a hole to fill or if additional staffing was needed. That was an adverse employment action. Being required to call in and, essentially, demonstrate that she could work in spite of her pregnancy was also an adverse action. Finally, these changes had a material impact on her compensation, as she experienced a significant reduction in her weekly work schedule.

Damages. The court denied the employer’s summary judgment motion as to liability and also with regards to emotional distress damages. Whether the employee was entitled to compensatory damages “remains for a jury to decide.” The same was true with regards to punitive damages (whether the employer established “good faith”) and injunctive relief.

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