In Alexander v. Trilogy Health Services, LLC, The Southern District of Ohio held that an employer terminating two pregnant employees in two months–coupled with the close proximity in time between the terminations and the employer learning of the pregnancies–created an inference of pregnancy discrimination.

Tasha Alexander was a nurse at a retirement community in Cincinnati. In April 2010, she received a glowing performance review. Approximately one month later, she informed her employer that she was pregnant. A co-worker also announced her pregnancy around the same time.

In July and August 2010, Alexander was disciplined three times and issued a “final written warning.” Evidence was presented that, around this time, members of management stated that they wanted to get rid of Alexander and that they were trying to build a paper trail for her termination. Prior to her pregnancy announcement, she had received only one item of discipline, which was removed from her file due to the passage of time.

In August 2010, she experienced pregnancy-related high blood pressure and was unable to complete one workday and could not report to work on the following day. She called the employer and faxed a note from her doctor stating the reason for her inability to work. She did so, however, less than four hours before her scheduled shift, in violation of the employer’s attendance policy. Two days later, she requested FMLA leave. The employer called her the next day and suspended her pending an investigation for her violation of the four-hour notice rule. Eventually, she was terminated for job abandonment, only three months after announcing her pregnancy. She never completed any FMLA paperwork because of the suspension and never reported to the employer’s premises for an investigatory interview because her doctor had not cleared her to work. She also testified that she believed her termination was inevitable.

In addition, her co-worker who had also announced her pregnancy around the same time as Alexander was terminated after receiving several disciplinary actions after telling her supervisors about her pregnancy. There was evidence that the employer had stated that it was “concerned” that two employees were going to be on maternity leave around the same time because it would create staffing problems. In addition, Alexander was able to point to four non-pregnant employees who were not terminated after they were late or absent with less than four hours notice.

She sued for pregnancy discrimination under state and federal law, disability discrimination, and interference with her Family and Medical Leave Act rights.

Looking at the chain of events over a short span of time—the positive performance review, then the pregnancy announcement, followed by three items of discipline and a termination only three months later—the Court held that pregnancy discrimination could be inferred based on temporal proximity. The Court also looked to the negative comments made about Alexander’s pregnancy—regarding the overlapping maternity leaves and the need to build a paper trail for terminating Alexander—as further evidence of pretext.

The Court granted summary judgment to Alexander on Alexander’s disability discrimination claim because the employer failed to provide her with three days off because of pregnancy-related hypertension. The Court rejected the employer’s argument that Alexander failed to ask for an accommodation because she failed to use the words “accommodation.” The Court reiterated that asking for time off work coupled with indications of a medical inability to work is sufficient under the law.

As for the FMLA claim, even though the employee failed to utilize the proper channels for formally requesting FMLA leave, the claim survived because (1) the employee put the employer on notice of the need for FMLA-qualifying leave and (2) the employer did not provide employees with written notice of its FMLA procedures through posting or distribution after the employer made changes to the policy. The Court held that, even if the employee had actual notice from verbal explanation of the new procedures, written notice is called for in the regulations.

Key Take-Aways:

• Temporal proximity of similar terminations of employees in the same protected class could be used as evidence of a “pattern” of discrimination.
• If you update your FMLA policy and change the request procedures, provide employees with written notice of the change—either through distribution of the policy or a revised handbook or by posting the new policy.
• Employees can request a reasonable accommodation, especially of additional leave time, without using the word, “accommodation.”