Last week, the Sixth Circuit affirmed an employer’s summary judgment on claims of pregnancy discrimination and FMLA interference and retaliation after the plaintiff had been fired in a RIF just 10 days after she disclosed her pregnancy to her new supervisor and a couple of HR employees. Johnson v. Evolent Health, LLC., No. 22-5574 (6th Cir. 3/2/23). The Court agreed that there was no evidence showing that anyone who had been involved in the RIF and decision to terminate her employment knew that she was pregnant. While temporal proximity is often enough to show causation, “the individuals who decided to terminate [the plaintiff] must still have ‘had actual knowledge of her pregnancy at the time that the adverse employment action was taken’ for a nexus to exist. “Because [the plaintiff] failed to show that any individual who participated in the RIF process knew she was pregnant at the time of her termination, and because she cannot show that any employee who was aware of her pregnancy showed any animus towards her or influenced the decisions of decision makers [under a cat’s paw theory], she has not established a prima facie case of pregnancy discrimination.” The Court also rejected evidence of alleged pattern and practice discrimination to show pretext because it does not evaluate individual employment decisions. The Court rejected her FMLA claims on the same grounds.
According to the Court’s opinion, the plaintiff was hired in
2018 and had received only “below expectations” on her first two annual
performance evaluations and was about to be placed on a Performance Improvement
Plan. Instead, the company decided to
eliminate her department and offered her a transfer to a new team, which she
accepted, sometime in 2020. Her new
supervisor reached out to her on February 10, 2020 to let her know that the reorganization
would take place in a few weeks. Meanwhile,
on February 5, the Company identified the plaintiff and 67 other employees with
poor performance evaluations for a reduction in force. After analyzing which employees would have
the least impact, 33 of them (including the plaintiff) were selected for the
RIF on or about February 20. All of
these discussions were held among individuals who did not supervisor or manage the
plaintiff. Rather, her former supervisor
was not informed until February 20 and was instructed that he would be the
person to inform plaintiff since the reorganization had not yet been completed.
However, a few days earlier – on February
14 – the plaintiff had requested two days off from her new supervisor for
doctor’s appointments because she had discovered that she was pregnant with
twins. The supervisor directed the
plaintiff to contact Human Resources, but did not tell anyone else about the pregnancy.
The plaintiff then contacted the
benefits department, which asked a few questions and put her on a tracking spreadsheet
for pregnant employees. On February 24,
different Human Resources employees informed the plaintiff that her role was
being eliminated and her employment terminated.
She protested that she had just been transferred and explained that she
was pregnant. No one else performing
her duties was hired until the following year.
The plaintiff then filed suit for pregnancy discrimination and FMLA interference
and retaliation.
The Court closely examined who had been involved in the RIF
and termination decision (which had been finalized on February 21) and who had been
informed of the plaintiff’s pregnancy on February 14. It agreed that there was no evidence that
anyone involved in the RIF decisions had been informed of the plaintiff’s
pregnancy. Rather, the plaintiff had
only informed three people and none of those people share that information with
anyone else, let alone anyone who was involved in the RIF decisions.
Temporal proximity between the announcement of an employee’s pregnancy and that employee’s termination can sufficiently establish a nexus between the events. . . . . Even so, the individuals who decided to terminate [the plaintiff] must still have “had actual knowledge of her pregnancy at the time that the adverse employment action was taken” for a nexus to exist.
The Court rejected the plaintiff’s argument that other HR
employees had access to the shared email box or tracking spreadsheet because
they denied ever reviewing the information or learning about her pregnancy
before her lawsuit. The plaintiff could
only speculate that other HR employees had actual knowledge and no actual
evidence.
The Court also rejected the cat’s paw theory because she did
not allege – let alone prove – that the individuals with knowledge of her
pregnancy had any discriminatory animus whicvh they then used to influence others
into taking discriminatory actions.
“In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” . . . . But the “predicate to cat’s paw” is a demonstration of discriminatory animus: that “by relying on this discriminatory information flow, the ultimate decisionmakers ‘acted as the conduit of the supervisor's prejudice––his cat's paw.’” . . . [The plaintiff] does not allege that any subordinate employee, aware of her pregnancy or not, showed any discriminatory animus towards [her].
In any event, the plaintiff also could not show that the
employer’s explanation for her termination was pretext for discrimination. The plaintiff attempted to challenge the
termination decision – based on her documented poor performance – because ultimately
only half of the employee initially selected on February 6 were actually
terminated and no extra supporting comments were offered to support her
termination. However, it was undisputed
that she had poor performance scores and she was not the only terminated
employee without extra supporting comments.
The Court also rejected her argument that the employer’s
explanation had shifted from position elimination to poor performance. However, the Court did not find it inconsistent
to find that her position had been selected for elimination based on her poor
performance. While the termination
script never mentioned her poor performance, it never gave any explanation for
how or why she had been selected for termination.
The Court also rejected the plaintiff’s argument that
pretext was shown because approximately 10% of pregnant employees were
terminated by the Company.
pattern or practice evidence is unavailable to assess an individual plaintiff’s discrimination claim. . . . Pattern-or-practice evidence is generally “inappropriate as a vehicle for proving discrimination in an individual case” because it does not evaluate individual hiring decisions. . . . It can support, however, an “otherwise-viable individual claim for disparate treatment under the McDonnell Douglas framework,” although a plaintiff must still satisfy the McDonnell Douglas framework to prevail. Id. [The plaintiff] is unable to separately satisfy the McDonnell Douglas framework. Thus, this evidence does not raise a triable issue of fact nor does it allow [her] claims to survive summary judgment.
Similarly, the Court again rejected the temporal proximity
of her pregnancy announcement and the termination decision as evidence of pretext:
The temporal proximity of [her] disclosure of her pregnancy and her termination may be indirect evidence of pretext but cannot alone support pretext here. . . . . Even when the timing appears “suspect,” it “must be accompanied by other, independent evidence of pretext for [the plaintiff] to succeed.”
The Court likewise rejected her FMLA arguments because she could
not show pretext for the employer’s decision for the reasons discussed above
and because at least one other employee had been terminated without requesting
FMLA leave.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
