Labor & Employment Law Daily Hospital employee who was rejected for promotion one day after starting maternity leave advances bias claims
Friday, December 11, 2020

Hospital employee who was rejected for promotion one day after starting maternity leave advances bias claims

By George Basharis, J.D.

Prior to taking maternity leave, the employee was one of two finalists for the position.

A lawsuit filed against the University of Pennsylvania by a former employee who claimed that she faced employment discrimination and retaliation stemming from her maternity leave to care for her prematurely born child will continue after a federal district court denied the employer’s motion for summary judgment. The lawsuit charged the employer with denying the employee a promotion and later terminating her based on gender and pregnancy discrimination and retaliation. The employee was a finalist for the promotion and was taken out of consideration only one day after she took maternity leave. Lastly, the court found that a genuine issue of fact existed as to whether the employee resigned to continue to care for her newborn child or was instead terminated (Basri v. The Trustees of the University of Pennsylvania, December 8, 2020, Baylson, M.).

The former employee worked as a new patient coordinator in the employer’s Radiology-Oncology Department. The employee was generally successful in her position; her supervisor had expressed interest in promoting the employee to a leadership position. When the supervisor learned that the employee was pregnant, she asked the employee to draft training documents for a temporary replacement. Meanwhile, the employee applied for a new position. The employee was only one of two candidates for the new position and made it to the final round of interviews. However, the employee gave birth to her child five weeks prematurely and was unable to complete the interviews or the training documents for her replacement. The position was offered to the other candidate, although that person did not accept the job offer. The employer eventually offered the position to another person who had not previously been under consideration.

More leave needed. The employer contacted the employee at the end of her leave period to ask the employee whether she would return to work. The employee responded that she needed more time to care for her child and could not return to work. The employer refused to extend the employee’s maternity leave and terminated her employment. The employee then emailed several of her colleagues to tell them that she was leaving her position for professional and family reasons. She posted similar comments in a blog post online.

Lawsuit. The employee sued alleging gender and pregnancy discrimination and retaliation under Title VII and the Philadelphia Fair Practices Ordinance. She also claimed FMLA retaliation.

Temporal proximity. The court found that the employee had established a prima facie case of discrimination and retaliation for both the denial of her promotion and her job termination. The employee presented evidence that she was a leading candidate for the new position when she had to drop out of the final interview due to the premature birth of her child. The court noted that the employer stopped considering the employee for the new position only one day after she began maternity leave. The “unduly suggestive temporal proximity” between the employee going on leave and the employer’s decision to no longer consider the employee a candidate was sufficient to find a causal nexus at the summary judgment stage, the court said.

Pretext. The employer argued that the other candidate was more qualified for the position, but that candidate refused the offer and the employer re-posted the job rather than offering it to the employee. The employer also argued that it refused to offer the job to the employee because her supervisor gave the employee a negative review. However, the court explained that the negative review was based on the employee’s failure to complete the training documents for her replacement, a task she could not complete because of the premature birth of her child. The court also noted that the employee was generally successful in her position as a patient coordinator and was even being considered for a leadership role. The court found that the employee could demonstrate that Penn’s “negative review” explanation was only a pretext for discrimination and retaliation.

Voluntary resignation? The court also rejected the employer’s argument that the employee voluntarily resigned. Whether the employee resigned or was terminated was a highly fact-specific question, the court said. Moreover, the employee contended that the employer terminated her employment though “constructive discharge.” The employee alleged that the employer refused to give her additional time off needed to care for her newborn and that as a result she was unable to return to work on the date demanded by the employer. Consequently, the court found genuine issues of dispute under actual and constructive discharge theories.

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