Labor & Employment Law Daily Supervisor’s voicemail firing employee ‘in the middle of being pregnant’ supports bias claim
Tuesday, April 20, 2021

Supervisor’s voicemail firing employee ‘in the middle of being pregnant’ supports bias claim

By Kathleen Kapusta, J.D.

The employee also presented evidence that the restaurant’s general manager, who directed the supervisor to leave the voicemail terminating the employee, maintained an animus toward pregnant women.

A supervisor’s voicemail, sent at the request of a coffee shop’s general manager, informing an employee that “with all things considered, with your situation and with you in the middle of being pregnant at the moment, we have to terminate your employment,” was direct evidence the employee’s pregnancy was at least a motivating factor in the termination decision, ruled a federal district court in Michigan. Denying summary judgment against her Title VII and state-law claims, the court also found evidence the GM harbored animus toward pregnant women (Konczal v. Zim Tim, LLC, April 15, 2021, Cleland, R.).

On her first overnight shift as a crewmember at a Tim Horton’s restaurant, the newly hired employee told her coworker/trainer that she was pregnant. The coworker, according to the employee, warned her that when the GM found out another crewmember who had recently worked there was pregnant, she tried to get rid of her.

Angry. The employee claimed that when she told the GM that same evening, the GM looked her “up and down” and said “okay” with disapproval. According to the coworker, the GM was “visibly and outwardly angry.” For her part, the GM testified that it was the coworker, not the employee, who told her about the employee’s pregnancy.

Call offs. After working four shifts, the employee called off work for her fifth shift due to childcare issues. She then worked another four shifts but before the next scheduled shift, she messaged the GM that she needed to go to the maternity ward because her feet were swollen and she would let the supervisor know as soon as she could if she would be late. When she was unable to come in, the GM covered her shift.

Voicemail. The following day, her supervisor asked her if she was willing to work a shift that night. The employee declined. Although she claimed she was not scheduled to work that shift, the GM testified that she was. The following day, the GM asked the supervisor to fire the employee. He then called and left her a voicemail stating “with all things considered, with your situation and with you in the middle of being pregnant at the moment, we have to terminate your employment . . . It’s just not going to work out. And I know you haven’t been feeling good. It just doesn’t seem right. I hope you feel better soon, and I wish you the best of luck.” When the employee called him back, he purportedly said that he just told her what the GM wanted him to say.

The employee then sued, asserting claims under Title VII and the Michigan Elliott-Larson Civil Rights Act. She moved for partial summary judgment on the employer’s mitigation of damages defense and it moved for summary judgment on all claims.

Mitigation defense. In arguing the employer’s defense failed as a matter of law, the employee claimed it did not adequately respond to her request for discovery and interrogatories. However, the court pointed out, there was no support for her assertion that the employer’s failure near the beginning of the case to provide her with her version of an adequate discovery response barred it per se from advancing the defense at trial. Not only did she make her requests shortly after discovery began, she filed no motion to compel.

No sanctions. And while she argued that the court could impose sanctions on the employer to bar it from advancing a mitigation defense for failing to provide adequate responses—it did point to evidence she failed to accept a job offer from Amazon, refused to work for Door Dash, and quit a job at McDonalds—she never moved for sanctions. Even if she had, said the court, “Rule 37(d) is not designed to resolve debatable questions over whether a parties’ discovery responses were inadequate or incomplete,” but instead is meant to prevent total noncompliance.

Further, rather than moving to compel, the employee waited until after the close of discovery to argue the company’s response from a year earlier was inadequate, which was insufficient to defeat the mitigation defense. Because a triable question remained as to whether the employee used reasonable diligence to mitigate her damages, the court denied her motion for summary judgment.

Direct evidence of discriminatory intent. Turning to the employee’s assertion that she presented direct evidence of discriminatory intent in support of her Title VII claim, the court noted the supervisor’s testimony that when the GM told him she wanted to fire the employee and described the reasons why, he “quickly wrote it down,” and then tried “to word … out” the explanation. He also stated that the GM’s explanation was “still fresh” in his mind when he wrote it down and that what he said in the voicemail was “in substance what [he] had written down.” Further, the employee testified that when she called him back, he explained that he just told her what the GM wanted him to tell her.

While the employer argued that the GM was the decisonmaker and the supervisor was just the messenger, the supervisor, observed the court, left the voicemail on the employee’s phone on behalf of the GM. “From Defendant’s notice of termination, made by means of [the supervisor’s voicemail and his subsequent conversation with Plaintiff, a jury could conclude that Plaintiff’s pregnancy ‘was at least a motivating factor’ in Defendant’s actions," said the court.

Intimately involved. Acknowledging that the Sixth Circuit has barred the use of a manager’s statement of discriminatory intent where the manager had little or no involvement in the employment decision, the court found that here, the supervisor was intimately involved in the termination process. Not only did the GM directly inform him of the reasons for the decision, she delegated to him the task of telling the employee.

Nor was the court persuaded by the employer’s contention that the voicemail was too ambiguous to qualify as direct evidence. A plain reading of the supervisor’s statement was that the employee was terminated "consider[ing]” that she was “in the middle of being pregnant.” Moreover, the supervisor testified that her pregnancy was a reason stated in the voicemail for her termination.

Discriminatory intent. Although the employer argued that it had an independent ground for firing the employee—she had at least two absences in her first two weeks of employment—fact issues existed as to whether she properly called off for her shift when she went to the maternity ward and as to whether she was scheduled to work the next night.

In addition, the employee presented evidence that it was common for newly hired crewmembers to call-off from work in their first few weeks of employment and they were not terminated for that as well as testimony from two owners that if a crewmember missed work on two occasions for childcare or medical issues, the crewmember would not be subject to termination. Nor did the supervisor’s voicemail reference her attendance record; rather it explicitly mentioned pregnancy as the basis for her termination.

There was also evidence the GM became visibly angry when she learned the employee was pregnant and that she had closely scrutinized a former employee after learning of her pregnancy in an effort to find reasons to fire her. Thus, the court denied summary judgment against this claim. For the same reason, it also denied summary judgment against her state-law claim.

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