Was it performance, or her FMLA for pregnancy leave?

“I’ll get right to the point, Cassie. You’re just not working out as a supervisor,” Ed Miller said. “We’re transferring you back to your previous job as a machine operator.”

Cassie stiffened. “You’re demoting me?” she cried. “How ironic! I submitted the paperwork for my FMLA pregnancy leave only yesterday.”

Workers petitioned

“That is just a coincidence,” Ed said. “We have a signed petition from your team suggesting that your leadership is less than abysmal.”

“You are trying to get rid of me because I am pregnant,” Cassie said. “None of this came up until after I requested FMLA for my pregnancy.”

“That is not true,” Ed replied. “Your last review asked you to improve your leadership, and you haven’t. It’s simply a business issue.”

Cassie later sued for pregnancy discrimination, claiming that her FMLA pregnancy leave request triggered her demotion. Did she win?

The decision

Yes. A circuit court said a jury should decide if the demotion, following her request for FMLA pregnancy leave, amounted to pregnancy discrimination. Usually, that leads to a hefty settlement check so that a jury won’t hear the case.

The employer argued that the demotion resulted from poor performance.

Evidence: Cassie had received a recent “needs work” review, and a signed petition from her workers.

Circumstantial evidence

The court found, however, that Cassie presented substantial evidence to show her request for FMLA pregnancy leave was “more likely than not” the real reason for the demotion, and that discrimination may have been the true motivation.

First, the petition did not surface until after she announced her pregnancy.

Secondly, the timing of the demotion was suspect, just one day after she applied for maternity leave.

Finally, the company did not follow its own policy covering “associate performance counseling.”

Note: The court said that, by itself, the timing of the adverse action is not enough to show pretext. But there was just enough other evidence to raise the suspicion that performance issues were a cover-up.

Lesson learned: The outcome may have been much different if Ed had followed company policy, taken the time to build a file documenting Carrie’s poor performance, and waited until after Cassie returned from FMLA pregnancy leave to demote her.

Cite: DeBoer v. Musashi Auto Parts, Inc., No. 04-10467, 6th Cir., 2/25/05. Fictionalized for dramatic effect.