Employment Law Daily HR staffer fired day after returning from maternity leave can’t prove bias claims
Thursday, April 26, 2018

HR staffer fired day after returning from maternity leave can’t prove bias claims

By Kathleen Kapusta, J.D.

Finding no error in the award of summary judgment against the various discrimination and retaliation claims of a senior HR employee fired the day she returned from maternity leave, the Sixth Circuit in an unpublished opinion noted that although the timing of her termination was unfortunate and the manner in which it was communicated was “clumsy,” there was no support for her contention that the decision was motivated by unlawful animus. While she minimized the significance of misrepresentations in her employment application, which were discovered while she was on leave, the lower court found the employer’s position—that resume misrepresentations by a senior HR professional represent an infraction so egregious as to defy correction by mere counseling or other lesser discipline—more persuasive. The appeals court agreed and affirmed the decision of the court below (Bailey v. Oakwood Healthcare, Inc. dba Oakwood Hospital & Medical Center, April 23, 2018, McKeague, D., unpublished).

One thing led to another. Less than eight months after she started working for the healthcare employer, the Senior Staffing Professional began a three-month maternity leave. She was fired the day she returned from leave despite no prior notice of dissatisfaction with her performance. According to her employer, during her leave, her supervisor, having assumed some of her duties, discovered deficiencies in her performance, which led her to review the employee’s qualifications. This in turn uncovered a prior application for a position with the employer; a comparison of the two resumes indicated that the employee had falsified her later application by exaggerating her prior experience and qualifications.

The HR staffer later sued, stating claims for age, race, and pregnancy discrimination and retaliation. Granting summary judgment against her claims, the district court found that she failed to show the employer’s nondiscriminatory grounds for firing her—the uncovered deficiencies in her performance and falsifications in her employment application—were pretext for unlawful discrimination.

Mere “embellishments?” The “real battleground” on appeal revolved around pretext, the Sixth Circuit observed, noting that the employee made several arguments challenging the employer’s given reasons for discharging her. As to the falsifications in her employment application, she argued that the inaccuracies at worst were mere “embellishments” that were insufficient to justify termination. Unpersuaded, the district court concluded that her characterization was “more than a little disingenuous” and held that resume misrepresentation by a senior HR employee was sufficiently egregious as to defy correction by lesser forms of discipline. For its part, the appeals court found no error in the district court’s conclusion that the employer’s first reason was neither trivial nor insufficient to justify terminating the employee.

Inconsistencies. As to the employer’s dissatisfaction with her job performance, the employee argued that inconsistencies in her supervisor’s and the HR’s director’s versions of the timing and reasons for the termination decision showed they formed the intent to terminate her even before meeting with her on the day she returned, not just after they found her response to their concerns unsatisfactory. However, the court pointed out, by the employee’s own description of the meeting, the employer relied from the beginning on both her performance deficiencies and resume embellishments as grounds for its decision. Speculation as to when, precisely, the employer, through its decisionmakers, formulated the resolve to terminate her was of little consequence, said the court.

Failure to follow disciplinary policy. The employee also argued that not only did she receive the highest possible rating in 10 out of 13 categories in her performance review, her employer did not comply with its own policy when it failed to give her notice of her deficiencies, counseling, or progressive discipline. The district court, however, had placed little weight on the performance evaluation because it found the employee had effectively conceded performance deficiencies—both before and after the evaluation. Nor was the performance evaluation, which was given at the end of her four-month probationary period, necessarily inconsistent with the employer’s identification of continuing performance deficiencies after the evaluation, said the court, noting it stated that the employee “should pay a bit more attention to detail to ensure her work is accurate and positions are filled correctly.”

Further, the policy at issue gave management the discretion to tailor disciplinary responses based on the gravity of the infraction, and while the employee minimized the significance of her application misrepresentations, the district court found the employer’s positon regarding resume fraud more persuasive. The appeals court observed that the employer’s handling of the matter could have been better, especially considering that all involved were HR professionals, but it found no fault in the lower court’s conclusion that the termination decision was not so unreasonable as to be disbelieved by a reasonable jury.

Pregnancy discrimination. Although the court found no support for a reasonable inference that race or age bias was the real reason for the employee’s termination, closer questions were posed by her pregnancy discrimination and retaliation claims. As to her pregnancy discrimination claim, the employee argued that the temporal proximity between the announcement of her pregnancy in August 2013 and her termination in March 2014, immediately after returning from leave, created a reasonable inference that she was terminated because she became pregnant. This inference, she contended, was buttressed by the fact that her supervisor restored her daily work start time to 8:00 a.m. in October 2013; her workload increased around the same time; and her supervisor made disparaging remarks implying disapproval of the employee’s pregnancy at the age of 40.

You’re not pregnant any more. As to the temporal proximity, not only was the termination decision made seven months after her employer learned of her pregnancy, it was made some period of time after she had ceased to be pregnant, said the court, finding no error in the district court’s conclusion that her termination was too far removed from the employer’s first knowledge of her pregnancy to suggest a causal nexus between the two. Further, her supervisor’s comments about the employee’s pregnancy reflected a lack of discretion, but nothing more, said the appeals court, finding also that there was no great probative value in the fact that the employee’s start time was restored to the normal time of 8:00 a.m. when she had undeniably continued to struggle with tardiness when her start time had been relaxed to 8:30 a.m. As for the increase in her workload, the court pointed out that the employee had earlier invited her supervisor to assign her additional work.

Retaliation. Turning to the employee’s claim that her termination was in retaliation for having questioned her supervisor about apparent racial bias in her evaluations of certain African-American applicants, the court pointed out that “a reasonable fact finder confronted with evidence of disagreements between a relatively new subordinate African-American female employee and her experienced African-American female supervisor, regarding appropriate treatment of three African-American applicants (among the several dozens considered), would hardly be justified under these circumstances in disbelieving the supervisor’s facially valid, race neutral reasons for overruling the subordinate’s recommendations.”

Moreover, said the court, her termination was several months removed from the last of her disagreements with her supervisor, yet her employer’s knowledge of the stated reasons for the termination arose largely in the meantime—after the employee’s maternity leave commenced and after the last of the disagreements. Thus, she failed to show retaliation for protected activity was the real reason for her termination.

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