By: Claudia D. Orr
“It is the rare lawsuit in which the record entitles a plaintiff to the grant of summary judgment in its favor. This is one of those cases.” And so began the court’s opinion in EEOC v Bob Evans Farms, LLC. I may have forgotten to announce “spoiler alert”, but there is still a lot of drama to unfold, so keep reading about how this employer mishandled an employment situation and violated the Pregnancy Discrimination Act (“PDA”), 42 USC 2000e(k). By the way, the PDA amended Title VII in 1978, fourteen years after Title VII had been enacted.
Hayley Macioce became a server at a Bob Evans restaurant in West Mifflin, Pennsylvania in 2009. Since she worked part time, Macioce was not guaranteed how many hours she would be assigned to work each week. In 2012, Macioce gave birth to her first child. She did not request or need any leave prior to delivery, but Macioce did take some time off afterwards. At the time, Jay Moreau was the assistant manager at her restaurant. By 2014, when Macioce would become pregnant for the second time, Moreau had been promoted to the general manager and was responsible for scheduling the staff, and ensuring the anti-discrimination policies were followed. Bob Evans has policies prohibiting discrimination and harassment, but pregnancy is not identified as a protected status.
Bob Evans uses an “automated computer-based scheduling system” which generates work schedules based on various factors including the staff’s availability, anticipated business of the restaurant, etc. With the approval of a manager, employees are permitted to change their availability in the system. The computer generates the work schedule two weeks in advance, but then management fills in any glaring holes and adjustments can be made even after the “final” schedule is posted.
Between January 1, 2014 and July 1, 2014, Macioce was working, on average, about 22 hours a week. The parties, however, disagreed whether Macioce averaged 4 or 5 shifts a week. In July, Macioce was pregnant, but intended to work until she gave birth in September 2014, as she had previously done.
In mid-July, Moreau asked her when she planned on taking her leave of absence. Macioce indicated she would work until her baby was born. Moreau told her he was going to take her off the automated schedule, but she would still get her hours. The parties dispute what exactly was said, but he set her available hours at zero for the automated schedule so she would not continue to be placed on the schedule, but he intended to continue to use her for call-ins, etc. Moreau testified that he did so because she was pregnant, believed the delivery was imminent and he wanted to ensure proper staffing. Moreau also testified that Macioce did not object or disclose her due date.
Macioce left for her pre-planned vacation. When she returned Macioce found that she had been removed from shifts she had been previously scheduled to work (August 1, 7, 8, 10, 11, 12, 15, 17, 18, 19 and 20) and was now only assigned to work August 3, 4, and 5. Thereafter, Macioce was only on the schedule, penciled in, to work when she was needed because of a “hole” in the schedule. Ultimately, she was added to the schedule for August 9, 10, 17, 17 and 18. After August 22, Macioce was no longer added to the schedule, and she did not call in for more shifts. However, Macioce never told Bob Evans that she was unable or unwilling to work. In fact, Macioce made her availability known to managers and to coworkers and that she wanted to work. After delivering her baby, Macioce decided not to return to Bob Evans and resigned October 27.
The EEOC filed suit against Bob Evans and argued that there was no genuine issue of fact that Moreau removed Macioce from the schedule because of her pregnancy and that his intentional discrimination violated the Pregnancy Discrimination Act.
Bob Evans argued the sole reason for removing Macioce from the automated schedule was “the unpredictability of her attendance” because Moreau believed her leave was imminent. There is a lengthy opinion analyzing the facts under the PDA and the US Supreme Court decision in Young v United Parcel Service in 2015, but suffice it to say that the US District Court for the Western District of Pennsylvania found Bob Evans’ explanation to demonstrate the violation. Moreau’s decision to remove Macioce from the schedule because she was pregnant and would need a leave of absence for childbirth, even if the timing was unpredictable, was still because of pregnancy. This act violated the PDA and the court granted judgment to the EEOC on this issue.
There is further discussion by the court about whether an adverse employment action had occurred and her damages that will not be detailed in this article. However, what is significant is that the court found an issue for the jury concerning whether Bob Evans had acted with reckless indifference to Macioce’s federal rights noting that pregnancy was omitted from the discrimination policies and there had not been any real training for management or servers on Bob Evans’ anti-discrimination policies. This means Bob Evans is facing the real possibility of punitive damages, which are not covered under employment practices liability insurance policies.
There have been a couple of cases in the past that I always tell clients about when I conduct training. In one case, a pregnant employee was told by her supervisor that she should get a note from her doctor for light duty given she had suffered miscarriages in the past. The supervisor expressed concern about the employee, who was a welder, climbing ladders, being exposed to fumes and carrying heavy equipment. His heart was in the right place. But after she complied and was assigned to the tool crib, she suffered a layoff. While the pregnancy discrimination claim was dismissed, the court allowed a claim under the Americans with Disabilities Act to go to the jury because the supervisor “perceived” the employee to have a disability.
In the other case, a woman received kudos (from everyone except the boss) when she announced at a management meeting that she was pregnant. When she then indicated she was having twins, cheers erupted. But the boss remained silent the entire time. His lack of congratulations, his silence, was found to be evidence of an unlawful animus against the pregnancy.
The bottom line is what you do, and what you say…or don’t say, can support a claim of pregnancy discrimination. So, what should a manager do? Simply congratulate the employee and say “let me know if you need anything”, then do nothing to any of the terms and conditions of her employment without consulting an experienced employment attorney, such as the author.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2017.
 Recall that this case made clear that, under federal law, an employer cannot treat a pregnant worker different than any other worker with the same or similar ability or inability to do their job and this includes providing time off, light duty etc. This has been the law under Michigan’s Elliott-Larsen Civil Rights Act since it was amended in 2009. Thus, it would be unlawful to provide light duty to employees who are hurt on the job (to keep worker’s disability compensation insurance premiums low) but not a pregnant worker.