Labor & Employment Law Daily No sex-plus claim for officer who alleged she wasn’t hired for full-time job due to child-care responsibilities
Wednesday, February 26, 2020

No sex-plus claim for officer who alleged she wasn’t hired for full-time job due to child-care responsibilities

By Kathleen Kapusta, J.D.

She claimed she was not hired because her earlier pregnancy and present obligations as a primary caretaker for a young child distorted her performance metrics.

Denying summary judgment on the Title VII sex-plus claim of a part-time police officer who alleged she was passed over for promotion to a full-time position in favor of two part-time female officers without children, a federal district court in Pennsylvania acknowledged that while she was “disappointed and possibly angry her employer chose two women without present obligations to young children over her even though she worked there for a longer time, became pregnant, and then cared for her child which may have caused her performance to fall below the two other part-time women officers,” her “disappointment does not automatically equal discriminatory intent.” Her employers chose officers with stronger performance records and the employee failed to show pretext, said the court, granting summary judgment against her pregnancy discrimination claim as well (Harrell v. Solebury Township, February 20, 2020, Kearney, M.).

Birth of her child. About a year after she was hired in May 2016 as a part-time officer, the employee was counseled for tardiness; four months after that, she was again counseled for her delayed response time to priority calls. In November 2017, she told the police chief she was pregnant and at her request, she was placed on light-duty work. She took FMLA leave for the birth of her child and upon her return to work in June 2018, she asked to be considered for a full-time position. In response, the chief said he wanted to see her police activity improve.

Passed over. Not quite three months later, the chief told the township’s board of supervisors that he needed two additional full-time officers, that the department was all male, and that there were “three female officers part-time now that are excellent.” The chief considered only the department’s six part-time officers for the two positions, which included the employee, two other female officers, and three male officers. After the chief and five department supervisors evaluated the candidates, the two other female officers were hired. Suing under Title VII, the employee asserted pregnancy and sex-plus discrimination based on familial responsibilities.

Qualified. Citing Phillips v. Martin Marietta Corp., in which the Supreme Court held that an employer that “treats women with small children differently than women without small children would be liable for sex-plus discrimination; with the ‘plus’ being stereotypical assumptions regarding women’s childcare responsibilities,” the court pointed out that sex-plus discrimination is a form of gender discrimination under Title VII. While her employer first argued as to both claims that she was not qualified for the full-time position, the court pointed not only to her longevity with the department but her inclusion in the pool of officers considered for the job.

No causation. The employee, however, was unable to establish a causal link between her pregnancy and her non-selection for the full-time position. She delivered her baby at least six months before the decision to promote the other two officers was made, observed the court, and because she was not pregnant at the time, she had an additional burden in making out a prima facie case. Finding that she failed to meet this burden, the court granted summary judgment in favor of her employer.

No pretext. And even if she had established a prima facie case of pregnancy or sex-plus discrimination, her employer cited the promoted officers’ work performance as the legitimate, nondiscriminatory reason for its decision. Although the employee contended that the only possible reason why she was not given a full-time slot was because she had been out on pregnancy leave and was now a mother of a child, she failed to provide any evidence of pretext. She admitted that she had been disciplined for tardiness and her delayed response time to priority calls and did not dispute the employer’s claim the promoted officers did not have any disciplinary issues. Instead she argued that “[o]ne or two counseling’s [sic] for inadvertent mistakes would never scuttle an officer’s full-time prospects in the petition [sic] were genuinely one of experience, ability, judgment and discretion.” But there was simply no evidence to support this assertion, said the court.

She next argued that because the employer first hired one of the later promoted female officers while she was pregnant, an inference could be drawn that it impermissibly discriminated against her because of her pregnancy by selecting the other officer for one of the full-time positions that did not create a nexus between her pregnancy and the other officer’s promotion.

Flawed performance statistics. Her best argument, said the court, was that the chief’s hiring decision was based on flawed performance statistics that did not account for officers on night patrol when there is less traffic, her pregnancy, and her light-duty work while pregnant. However, the statistics showed the promoted officers outperformed her at the time of the selection, said the court, noting that this “is not a case where the employer elected to promote an employee performing at an equal or lesser level than the employee suing.” As to her contention that the number of car stops should not be an indicator of successful policing, and the employer did not measure the use of discretion and judgment, she again failed to offer any evidence or expertise to support this conclusion.

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