by David Kelly
If your company is involved in the baby products
industry, then more babies should equal more money. However, rather
than seeing the pregnancy of one of its sales associates as a boon,
a federal lawsuit charges that Buy Buy Baby Inc. elected to lower
the boom.
Bye bye baby
Buy Buy Baby Inc. hired Erika Flores as a probationary
employee on August 24, 1998. She worked as a sales associate at
Buy Buy Baby's Scarsdale, New York store under the direct supervision
of the department manager, Marianne LaBella-Lajos.
After her 90-day probation, Flores was evaluated
by LaBella-Lajos and retained as a regular employee. Soon after
her evaluation, Flores informed LaBella-Lajos that she was pregnant.
Flores claims that, upon hearing the news of her pregnancy, LaBella-Lajos
became "very cold" and "very distant."
Soon thereafter Flores was granted a request
to become a part-time employee as well as a request for a two-week
unpaid vacation to begin on December 20th. However, on December
28th, when Flores called to request her work schedule for the following
week, she was informed that she was scheduled to work that very
day. Flores argued that she was still supposed to be on vacation.
When she returned to work on December 31st, she was fired.
The baby boom?
In a suit filed in the Southern District Court
of New York, Flores claims that Buy Buy Baby violated the Pregnancy
Discrimination Act of 1978. In order to show that Buy Buy Baby lowered
the baby boom, she must establish each of the following four elements
of a prima facie case of pregnancy discrimination:
- She is a member of a protected class (i.e., she was pregnant);
- She satisfactorily performed the duties required by her position;
- She was discharged; and
- Her discharge "occurred in circumstances giving rise to an inference
of unlawful discrimination," or her position remained open and
was ultimately filled by a nonpregnant employee.
In this case Buy Buy Baby disputes elements two
and four. Regarding element two, the court sides with Flores, noting
that "[t]here is no written record of any complaints, disciplinary
actions, warnings, or problems with respect to the plaintiff. And
she was retained after her 90-day probationary period." The court
also sides with Flores regarding element four because "the temporal
proximity of these events is adequate to raise an inference of discrimination."
The explanation
Buy Buy Baby counters with the following two
legitimate, nondiscriminatory reasons for firing Flores: (1) she
did not show up to work when scheduled and (2) her job performance
was sub-par. To buffer its argument the company points to Flores'
termination notice that reads:
"Erika had said she needed time off from
12/20-12/27 and was on the schedule for the 28th. She did not come
back until the 31st. Also, Erika's performance while she is here
is not up to Buy Buy Baby's standards. Erika's employment is being
terminated as of 12/31/98 due to her performance."
However, Buy Buy Baby is unable to produce evidence
to back up reasons proffered in its termination notice. LaBella-Lajos
claims to have made a written record of the agreed upon dates for
Flores' vacation, though she subsequently misplaced the document.
Furthermore, according to Buy Buy Baby's HR manual,
while probationary employees can be fired without warning, regular
employees must receive two warnings prior to termination. Yet, aside
from the termination notice itself, Flores' file is free from "any
complaints, warnings, or disciplinary actions related to performance
problems."
Therefore the court ordered the case to trial.
But she lied!
In addition to compensatory and punitive damages,
Flores is seeking reinstatement and/or front pay. However, after
having fired Flores, Buy Buy Baby learned that she had lied on her
employment application. Specifically, Flores concealed the fact
that she was pregnant at the time of hire.
The company asserts that Flores' deception provides
grounds for lawful termination. Therefore, according to Buy Buy
Baby, even if Flores proves discrimination, she is not entitled
to relief beyond November 15, 1999 -- the date that Buy Buy Baby
became aware of her untruth.
On this issue, the district court is guided by
the following U.S. Supreme Court ruling: "Where an employer seeks
to rely upon after-acquired evidence of wrongdoing, it must first
establish that the wrongdoing was of such severity that the employee
in fact would have been terminated on those grounds alone had the
employer known of it at the time of discharge." (McKennon v. Nashville
Banner Publ'g Co.)
In the Flores case, the court is unconvinced
that Buy Buy Baby would have fired Flores solely on the basis of
her falsified employment application. Although not addressed by
this court, there is also the underlying issue of whether Flores
had an obligation to reveal and/or Buy Buy Baby had the right to
ask whether she was pregnant at the time she applied for the job
(both of which appear to be doubtful).
Therefore, in addition to compensatory and punitive
damages, Flores may proceed to trial with her claim for front pay
and reinstatement.
Put it in writing
Clearly, if Buy Buy Baby had delivered and documented
prior reprimands, then its motion for summary judgment would have
been successful. As it stands, "[Buy Buy Baby's] claim that Flores
performed poorly conflicts with its failure to warn her or terminate
her at the end of her probationary period."
At the trial level "[Buy Buy Baby] will have
the opportunity to convince the jury that [Flores] failed to return
to work on time, and that [its] failure to follow its own disciplinary
policies in this case does not necessarily mean that [Flores] was
a stellar employee."
However, if the company had documented legitimate
reasons for dismissal, such as alleged verbal warnings and information
regarding Flores' two-week vacation, then there would be no trial
to speak of.
CASEFACTS
Court: U.S. District Court for Southern District
of New York
Date: Oct. 25, 2000
Citation: Flores v. Buy Buy Baby, Inc., No. 99 Civ. 4792(CM), 2000
WL 1612204
Court: United States Supreme
Court Date: Jan. 23, 1995
Citation: McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352
This article is courtesy of HRWire. All rights reserved.
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