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Pregnancy Discrimination on Trial in WashingtonJanuary 10, 2022
After appealing the trial court’s grant of summary judgment, a hospital manager will get her day in court. In Crabtree v. Jefferson Healthcare, the Court of Appeals (Div. 3) found that a genuine issue of material fact exists as to the reasons for the employee’s termination of a pregnant employee and subsequently, the case should be heard and decided upon by a jury.
Plaintiff, Jillian Crabtree, was employed by the defendant, Jefferson Healthcare, as the manager of patient access services. She began her employment in May of 2018. About seven months into the position, Crabtree received her first performance evaluation. In the evaluation, Crabtree was rated as “meeting expectations” in 12 out of 16 categories. In addition, the areas that needed improvement were noted and she was given direction on how to improve in these areas. A two page letter from her supervisor was also included in the performance review that indicated that she was having a “nice first year” and “had done a nice job stepping into an entirely new career.”
In December 2018, Crabtree informed her supervisor that she was pregnant. The supervisor replied, “Wow. Poor Jen. She’s going to be without a whole staff this spring/summer.” The supervisor was referring to the fact that another manager on the team was pregnant as well and due during the same timeframe. Upon relaying this information to a second supervisor, Crabtree was congratulated, asked if she planned to take leave, and also asked if she would be interested in taking a lesser role upon her return. Crabtree responded that she did plan to take leave, but that she liked her job and would not be interested in taking a lesser role upon her return. At a staff meeting, the same supervisor informed the team that they would be short-staffed for spring and summer because Crabtree and her co-worker were both pregnant.
In February, 2019, Crabtree went to Human Resources to discuss her options for maternity leave. The day after this meeting, Crabtree was informed that she was being placed on a thirty day “Performance Improvement Plan” (PIP). Her supervisor stated that they had “noticed large gaps in her success and that she had significant performance issues.” The supervisor went on to list ways she was not meeting expected job performance and told Crabtree that it was unlikely that she would be able to bridge the gap in the thirty days given her to improve under the PIP. She also stated that she may want to consider roles with less responsibility, or even look for other places of employment.
Crabtree chose to work through the PIP in an effort to maintain her position with Jefferson Healthcare. During the 30 day PIP, Crabtree had four scheduled check-ins with her supervisor to determine her progress. After the second check-in she was told that she was doing well. Crabtree was concerned that she would not be able to accomplish all of the goals set under the PIP within the thirty days, but was told so long as she was making a good faith effort that would be sufficient. The PIP was set to end on March 20. As of March 12th Crabtree had not completed any of the goals listed, but had made some progress. On March 15, before the PIP was set to end, the defendant fired Crabtree saying it was clear that she would not reach the goals in the PIP.
Around this same time, the other woman on her team who was pregnant was told her job responsibilities would increase. Instead of taking on additional responsibilities the co-worker opted to take on a lesser role with reduced pay.
Crabtree sued Jefferson Healthcare claiming that she was discriminated against in violation of the Washington Law Against Discrimination (WLAD) and terminated because of her pregnancy. The trial court granted Jefferson’s motion for summary judgment and Crabtree appealed.
The Discrimination Claim
WLAD prohibits employers from terminating an employee due to certain traits, including the sex of the employee. This includes discrimination against an employee who is pregnant. Acknowledging that direct evidence of discriminatory intent is almost nonexistent in these cases, the court on Mikkelsen v. Pub. Util. Dist. No.1 of Kittitas County, 189 Wn.2d 516, 526, 404 P. 3d 464 found that, “An employee may rely on circumstantial, indirect and inferential evidence to establish a discriminatory action.”
Washington has adopted the three step evidentiary burden shifting test used in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973), which allows an employee to establish the presence of discriminatory conduct by the employer without direct evidence. The prima facie case must include:
- Employee is within a statutorily protected class
- Terminated by employer
- Employee performed satisfactory work
If an employee can show these three elements, then a rebuttable presumption of discrimination exists. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the termination of the employee. If the employer successfully presents a nondiscriminatory reason, then the burden again shifts to the employee to show that the employer’s nondiscriminatory reason is a pretext for discrimination.
The employee can demonstrate that the employer’s given reason was a pretext for discrimination by showing that the defendant’s reason is pretextual, or the employer’s reason may be legitimate, but discrimination was still a motivating factor in the decision to discharge.
When a case contains both nondiscriminatory and discriminatory reasons for termination, the jury must determine the ultimate motivation based on the facts and evidence presented.
Here the crux of the case rests on whether or not Jefferson Health’s reason for terminating Crabtree’s employment was solely due to performance issues, or if her pregnancy also played a role in the decision. Crabtree can prove that Jefferson Health’s claim that she was fired for failing to live up to performance expectations was mere pretext for sex discrimination by showing that:
- The reason for termination given by Jefferson had no basis in fact and was not a motivating factor for the decision, or
- The reason given lacks temporal connection to the termination decision, or
- The reason given was not a motivating factor in employment decisions for other employees in the same circumstances. Scrivener v. Clark Coll., 181 Wn.2d 439 (Wash. 2014).
The Scrivener court went on to find that “an employee doesn’t need to disprove each of an employer’s articulated reasons to satisfy the pretext burden of production nor do they need to prove that a discrimination was the only motivating factor in the termination.” Even if an employer had both nondiscriminatory as well as discriminatory reasons for the firing it could still be liable for an illegal firing under the WLAD. Thus, circumstantial, indirect and inferential evidence will satisfy this burden.
In the case at hand, the defendant states that the reason for Crabtree’s termination was failure to accomplish the goals of the PIP. Plaintiff asserts that she was told by her supervisor that a good faith effort to comply with the PIP was sufficient and that throughout the PIP process she had been receiving positive and encouraging feedback from her employer. Despite this, in the termination letter, the defendant claimed that Crabtree was fired for failure to reach the PIP goals. Crabtree provided details showing that some of the claims in the termination letter were not accurate. For example, the defendant stated that the registration staff planning had not been started, but in fact Crabtree had made progress and taken steps toward that goal. For these reasons, the court agreed that the PIP may have served as a pretextual reason for Crabtree’s termination.
Evidence of Discrimination as a Motivating Factor
Only a few weeks before being given a PIP, Crabtree was given a mostly positive performance review, with 12 of 16 categories at the “meets expectations” level. This occurred the day after Crabtree discussed her maternity leave options with Human Resources. During his time period, another pregnant employee agreed to assume a lesser role upon her return from maternity leave. Whether or not there was a discriminatory intent toward pregnant employees, the facts show that the two pregnant women on the team did in fact lose their managerial roles after disclosing their pregnancies.
Defendant asserts that stray remarks do not substantiate an intent to discriminate. The court disagreed and found that there was substantially more evidence presented by the plaintiff here than mere stray comments. Another pregnant employee was potentially treated disparately, the reasons for termination given in Crabtree’s termination letter did not match the feedback she was concurrently receiving from her supervisor, the timing of being put in the PIP a day after talking to H.R. about maternity leave, and other facts that at minimum raise triable issues of fact that should be heard by a jury. The court reminded the parties that it is not the court’s role to determine the validity of conflicting facts, but rather is for a jury to decide.
Due to the cumulative effect of this evidence, the appeals court found that the plaintiff met her burden under the law and a genuine issue of fact is present for a jury to decide on this matter.
- Ensure that all employees in managerial positions are well versed and aware of proper protocols for handling an employee’s announcement of pregnancy and maternity leave.
- Be mindful of timing of performance reviews and employee discipline and/or firing after the announcement of a pregnancy. Even if the employment action is valid, the employee could use timing to demonstrate a pretext for discrimination.
- Written performance reviews and verbal feedback to employee should not contradict one another.
- Do not pressure or suggest that pregnant employees take on lesser roles after giving birth. If they present a request for an alternate schedule or set of responsibilities, then the employer may explore those options with that employee at that time.