By Robert Margolis, J.D.
Court cites conflicting evidence about whether employee’s excessive absences motivated termination or were a pretext.
Fact questions over a law firm’s intent when it terminated clerk—was it because she was pregnant or due to her excessive absences—precluded a federal district court in New York from granting the law firm motion for summary judgment dismissing her Title VII pregnancy discrimination claims. Here, the court was unpersuaded by the employer’s argument that regardless of the employee’s capabilities, her excessive absences rendered her unqualified for the position. Rather, The court noted that many of the absences occurred after the law firm had internally decided to terminate the employee, and many occurred when she was attempting to obtain a doctor’s authorization form (Singh v. Knuckles, Komosinski & Manfro, LLP, November 16, 2020, Román, N.).
Absences. The employee was hired by the law firm as a clerk in its Evictions Department, before being reassigned to its Foreclosure Sales Department a few months later. The parties dispute the reasons for the reassignment. The law firm contends it resulted from “inter personal issues” the employee had with others in the Evictions Department due to her absences, while the employee testified there were no such problems. At the time of her reassignment, she had worked for the Evictions Department for about two-and-a-half months and been absent twice and left early on one other day.
The law firm has a policy entitling employees to 13 days’ unpaid leave during each calendar year, after 90 days of employment. From her first day of employment, October 31, 2016, through January 18, 2017, the employee was absent or left work early six times. In the ensuing five months, she was absent approximately twelve more full or partial days, primarily for medical reasons. The law firm’s office manager (an individual defendant in the case) met with the employee to discuss expectations, including that she must perform her work in a timely fashion, as her failure to do so was causing foreclosure sales to be delayed or canceled at a cost to the firm’s clients.
Pregnancy announced. On May 25, 2017, the employee told the office manager via text from home that she had strep throat and was pregnant. She indicated she would present a doctor’s note that she could return to work on May 29. As a result, the law firm assigned additional staff to the Foreclosure Sales Department on May 25 (as it had done previously when she was absent).
When the employee returned to work two days after announcing her pregnancy, she was given 13 “sale packages” to prepare that day, but as of 11:21 a.m., had not started any of them and they were reassigned to another employee. Internal emails between the office manager and a law firm partner showed the office manager seeking “the best way to deal with” the employee, since “I really don’t think [she] wants to do this anymore and is looking for a reason to quit.” The partner responded, “[w]e have to terminate” her, and HR will have to sit with her and explain that she is not performing her job, and give her a final warning.
When the employee returned, she was reassigned back to the Evictions Department, and the law firm contended this reassignment was to avoid further cancelations and delays of foreclosure sales. The employee contended it was because of her pregnancy.
On June 19, the employee again requested to leave the office early because she was not feeling well. The following day, she sent a hospital doctor’s note excusing her from work for the following few days. The office manager responded by requesting that the employee complete a patient authorization form so the law firm could communicate with her doctor and confirm she could perform duties assigned to her. The law firm also requested an additional note from the doctor authorizing her return to work on June 22.
The rationale for these requests was disputed. The office manager, in an internal email, told two of the firm’s partners that “I think once she receives email she will tender her resignation.” She testified that she thought the employee would resign rather than grant broad access to her medical information. It took about two weeks for the employee to obtain the additional notes, during which time the law firm did not permit her to work. When the doctor sent the notes, the office manager emailed the employee that evening advising her that she could return to work. When the employee called in sick again twice in the next ten days, she was terminated.
The employer contended that the cause of termination was the employee’s inability to be at work on a consistent basis and resulting inability to timely perform work duties, causing the law firm to reassign employees at additional expense. The employee contended that “[e]verything changed” after her pregnancy, as a medical condition she suffered with before pregnancy, that the law firm knew about and was okay with, was exacerbated by her pregnancy. There was testimony from the law firm that when the employee was present, she was smart and “could do the job.”
Qualifications and performance. The court evaluated the employee’s pregnancy discrimination claim through the McDonnell Douglas burden shifting framework. For the employee’s prima facie case, there was no dispute that she was a member of a protected class and suffered an adverse employment action. The employer first challenged that she was qualified for her position because her excessive absences rendered her unqualified despite having the aptitude for the work.
In support of her contention that she was qualified for the position, the employee cited the testimony that the law firm partner thought she could do the job. The law firm did not contest that she was qualified when hired, but argued that regardless of her capabilities, her excessive absences rendered her unqualified. The court was unpersuaded. While performance can be relevant to qualifications, “the bar is low.” The court noted that many of the absences occurred after the law firm had internally decided to terminate her, and many occurred when she was attempting to obtain the doctor’s authorization form.
Inference of discrimination. The law firm also challenged whether the employee was terminated under circumstances giving rise to an inference of discrimination. It cited to the employee’s frequent absences and the measures taken to help her succeed in her role. For her part, the employee contended that the temporal proximity of her disclosure that she was pregnant and the decision to terminate her was evidence of discrimination. That the law firm discussed internally the intention to terminate the employee two days after learning of her pregnancy is undisputed. Thus, the prima facie case was satisfied.
Pretext. There was no dispute that the law firm articulated a legitimate non-discriminatory reason for her termination—her absences, failure to meet deadlines, and interpersonal issues with other employees. That shifted the burden to the employee so show that this reason was a pretext. The court found that she presented sufficient evidence to defeat summary judgment.
Again, the employee pointed to the temporal proximity of her pregnancy announcement and the decision to terminate, but under Second Circuit law temporal proximity alone is not sufficient to demonstrate pretext. The law firm cited the initial reassignment from the Evictions Department to the Foreclosure Sales Department as evidence that there were performance issues before her pregnancy, but the court reasoned that the jury should determine if that is really so, since in her two-and-a-half months in the Evictions Department, the employee only was absent twice and left work early only once. The court also found that the jury should resolve whether the requirement of additional forms from the employee’s doctor evidenced the intent to force her to resign, or were legitimate inquiries.
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