The United States Court of Appeals for the Sixth Circuit (which has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee) recently considered the question of whether a former employee could prove that her firing was connected to her pregnancy, which would support a claim for pregnancy discrimination under the Tennessee Human Rights Act. The Sixth Circuit ruled for the employer, holding that the employer believed that the employee fraudulently filled out office paperwork and finding that the employee failed to put forth sufficient evidence that would have supported a claim for pregnancy discrimination.
About a year and a half after beginning work for the employer, the employee was verbally counseled for being late to work on seven different occasions within a 90-day period. A few months later, she received a written warning for being late to work a total of 12 times with five of those occasions and an absence coming after the prior verbal counseling.
About five months after the written warning, the employee told the office manager she was pregnant. Five days later, the employee was given a final written warning, noting that the employee had received 15 tardies, two incidents of leaving work early, missing two time-card punches, and an absence over a 12-month period. The final written warning also noted that three of the tardies, two early departures, and two missed time-card punches had come after the first written warning.
The company’s regional director discussed the final written warning with employee. During the same conversation, the employee mentioned that she had examined a patient earlier in the day who did not possess all of the necessary documentation to pass a physical. According to the employee, she informed the regional director that she offered to waive a fee for the patient whose wife would return with the required paperwork and pick up the patient’s certification. The regional director denied that she and the employee ever discussed the employee’s waiver of the fee or plan to allow the patient’s wife to bring the necessary paperwork and obtain the certification. Nevertheless, the employee wrote in the patient chart that she had “[n]otified [the regional director] about situation regarding . . . physical and patient leaving upset. [Regional director] agreeable with plan . . . .”
Following this development, the regional director consulted her immediate supervisor, the company’s national director of health and wellness. Approximately a week later, the national director decided to meet with the employee and the employee’s office manager. The employee claimed that during the meeting she was given the ultimatum of resigning and being able to keep her health insurance or being threatened with termination and being reported to the licensing board. According to the employee, she stated that she was “20 weeks along” and agreed to resign so she would not lose her health insurance immediately. The company’s national director and office manager denied that employee was given an ultimatum and instead testified that the employee’s decision to resign was her own idea and voluntary. Ultimately, the employee resigned.
District Court’s decision
The employee sued the employer alleging a violation of the Tennessee Human Rights Act for pregnancy discrimination. The case made its way to federal court and the District Court ruled in favor of the employer. The District Court held that there was a genuine issue as to whether the employee actually resigned when faced with threatened termination and reporting to the licensing board. The District Court further held that the employee had put forth sufficient evidence of potential pregnancy discrimination to shift the burden of proof to the employer. But ultimately, the District Court determined that the employer honestly believed that the employee intentionally made inaccurate statements in the chart and that the employee failed to put forth sufficient evidence showing that the employer did not honestly believe in this professed non-discriminatory reason. Additionally, the District Court held that the employee failed to provide sufficient evidence that actual discrimination, as opposed to the alleged falsification of documents, was the real reason for the employee’s termination.
Appellate Court’s decision
On appeal, the employee challenged the District Court’s “honest belief” ruling on the basis that this rule “does not exist under Tennessee law.” However, the employee did not address the District Court’s conclusion that she had not plausibly linked her pregnancy to her firing. This, the Sixth Circuit held, was fatal to the employee’s appeal because an appeal must not only challenge the primary basis of a trial court’s decision, but it must also challenge the alternate basis as well. The Sixth Circuit affirmed the District Court holding that the employee “forfeited the right to challenge the second basis for the [D]istrict [C]ourt’s holding, even if she prevailed on her argument about the ‘honest belief’ rule . . . .”
This case shows that employees have the burden of plausibly linking their pregnancy to alleged adverse employment decisions, such as terminations. Further, this case illustrates the importance of an employer’s record keeping functions with respect to employee job performance. Because the employer here maintained good records, the employer was able to use those records to show its honest belief and help prevent a bad outcome for the employer. When employers have concerns about employee performance, including concerns about employee ethics, employers should keep good records of such issues and follow internal policies for reviews of such performance, including any verbal or written counseling, warnings, reprimands, and related decisions.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at [email protected] The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.