Employment Law Daily New mother fired by Lowe's following multiple complaints to HR heads to trial
Wednesday, July 27, 2016

New mother fired by Lowe's following multiple complaints to HR heads to trial

By Brandi O. Brown, J.D. An employee's allegations that a change in attitude after her first pregnancy eventually snowballed into a war against her by management and a vindictive coworker, resulting in violations of the Washington Law Against Discrimination, the FMLA, and the WFLA, will go to trial after a federal district court in Washington ruled against the employer in most regards on its motion for summary judgment. The record arguably demonstrated a pattern of antagonism against the employee, the court concluded, and she presented reason to doubt Lowe’s explanation for her termination. The parties' summary judgment motions were granted in part (Moore v. Lowe's Home Centers, LLC dba Lowe’s Home Improvement, July 22, 2016, Bryan, R.). Pregnancies changed things. The employee alleged she became the target of disparaging remarks from coworkers when she became pregnant, and that after her second pregnancy she was demoted from her administrative store manager role. She alleged the store manager told her that she could have been an operations manager "if [she] hadn’t gotten pregnant." She reported several incidents to HR in the years including and following her first and second pregnancies, including receiving inappropriate comments, being mocked for her pregnancy weight, being stripped of her management duties, and being disciplined for pregnancy-related tardiness. These problems persisted into 2011, when she also reported that an assistant store manager had stared at her behind and that another employee had joked about it. The same assistant manager, she complained, "glared" at her and followed her around, sat too close to her, and intimidated her. She contended that after she reported his behavior to HR, his scrutiny of her performance increased and he wrote her up for minor issues. Coworker's comments and threats. She also reported to HR that other employees had ganged up on her, including one coworker in particular who called her "f***ing b***h" and a "lazy ass" and made other discriminatory comments. The same coworker later threatened to get her fired. In early 2012, because of severe workplace stress, the employee was diagnosed with Acute Stress Disorder and Dysthymic Disorder and Depression and began to take intermittent FMLA leave for treatment. Her disorder also caused her to need to urinate more often. Her coworkers criticized her frequent (disability-related) bathroom breaks. The coworker who called her names and threatened to have her fired did, indeed, complain to HR about her, including complaining about her FMLA-protected need for bathroom breaks and making other accusations about her. One accusation, related to the employee leaving her keys in a lock, led to her being disciplined, even though management knew that another employee had committed the same error and was not disciplined. Employee sacked. Although the employee continued to complain to HR about her treatment by the coworker and assistant store manager (among others), investigations by HR went nowhere. Finally, in December 2012 the name-calling coworker filed an ethical complaint that led to the employee's termination for inappropriately photocopying documents, even though she contended that she had done it for work-related reasons and that the coworker had done the same. The termination came on the heels of the employer's failed effort to link the employee to anonymous letters it had received from someone who threatened to sell or leak information about employees and customers. The employee filed suit, and at the end of discovery both parties filed summary judgment motions. Retaliation. Among several WLAD claims made by the employee, she contended that her former employer retaliated against her for making complaints to HR and management about sexist comments and acts, pregnancy-based demotion, and other discriminatory acts. The employee met her prima facie burden, the court concluded, with evidence of multiple complaints throughout her employment about gender discrimination. Her termination was an adverse employment action, and issues of material fact existed about the causal link between the two. "The record arguably shows a pattern of antagonism following protected conduct," the court explained, "which is sufficient to show causation." She contended that she was stared at, her work overly scrutinized, and her complaints to HR rebuffed. In fact, she claimed she was warned by one HR manager to be careful about making sexual harassment allegations. Although her request for an accommodation of her need for bathroom breaks was granted, she was subjected to criticism and discipline thereafter. The employee also satisfied her burden of showing pretext by providing evidence that the employer's reason for her discharge was tenuous and that different reasons had been cited. She pointed out that she was singularly targeted for investigation of the anonymous letters, which she denied writing, and that she was then fired for violating an unspecified "ethical policy." Disability discrimination. The employee alleged an additional WLAD claim for discrimination under three alternative theories: unlawful termination (disability); unlawful termination (gender); and refusal to reinstate (gender). The court also refused to grant summary judgment on that claim. Tackling the disability theory first, the court concluded that her health condition satisfied the statutory definition of "disability" and that she met her prima facie burden. In March 2012, the employee's physician recommended that for a period of one year her work hours be reduced and that she attend therapy, which constituted FMLA-protected leave. Her mental health condition also required additional bathroom breaks, about which her coworker complained to HR, accusing her of "stealing company time" and taking advantage of her breaks. The coworker's complaint about her leaving her keys in the lock, included in the same email, led to the employee being disciplined, while at the same time another employee was not disciplined for engaging in the same conduct. The employee was fired several months later. Because the court found reason to deny the employer's summary judgment motion under this theory, it did not address the other two theories. The court also concluded that the other claims still being pursued by the employee should survive, with the exception of the claim for punitive damages. Also, the court agreed that the Faragher/Ellerth, waiver, laches, exhaustion, and estoppel defenses should be stricken.

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