Pointing to “Maternity Projection Chart”, Court Finds That Plaintiffs Sufficiently Alleged FMLA and Retaliation Claims Based on Unfair Treatment Due to Pregnancy and Maternity Leave Requests

In Stoler v. Institute for Integrative Nutrition, the Southern District of New York held that plaintiffs adequately pled claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Family and Medical Leave Act (FMLA), and the New York City Human Rights Law (NYCHRL).  Defendants moved to dismiss plaintiffs’ claims under FRCP 12(b)(6).

In sum:

Plaintiffs allege that Defendants consider female employees’ potential to have children when making employment decisions. To make this determination, the Defendants created an evaluation form that, among other things, asked managers to determine each employee’s “future plans,” including any “maternity” plans. Around the time UN was collecting this information, Rosenthal also requested the creation of a “Maternity Projection” chart (the “Maternity Projection Chart”). The Chart used each female employee’s age, marital status, and maternal status to determine how soon the employee was likely to have a child. One iteration of the Chart stated that the individually named Plaintiffs were “likely” or “fairly likely” to have children within the next few years. No male employees are included in the Chart.

Defendants frequently demoted or fired female employees when they became engaged, married or pregnant, or took FMLA leave. They were regularly replaced with single and usually childless employees—employees who had been trained by the professionals they replaced. Those junior employees frequently appear on defendants’ maternity chart as less likely to have children.

1. FMLA Interference

First, the court held that plaintiffs sufficiently alleged FMLA interference claims.

The law:

Under the FMLA, employers may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any” FMLA right.  An employee who takes leave must therefore be restored to an equivalent position upon her return post leave. An employer who does not restore an employee to her former position interferes with her FMLA rights. FMLA regulations further state that “[i]nterfering with the exercise of an employee’s rights would include … not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.”

To state a claim for interference with FMLA rights, a plaintiff must prove that: (1) she was an eligible employee under the FMLA; (2) the defendant was an employer under the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave notice to the defendant of her intention to take leave; and (5) she was denied benefits to which she was otherwise entitled under the FMLA.

Applying this standard, the court held that plaintiff Stoler adequately stated a claim:

Defendants pre-FMLA leave comments and actions during Stoler’s leave constitutes interference of Stoler’s FMLA rights. Rosenthal told Stoler pre-FMLA leave that she should consider her priorities in planning her leave and return to work. Two weeks after Stoler told Rosenthal that she would take leave Rosenthal told her that her position might change when she returned. Rosenthal further told Stoler, before her FMLA leave ended and before Stoler had asked for an extension of that leave, that her position might change when she returned. Taken in totality, it is plausible that such comments were designed to coerce Stoler to leave her employment or to discourage Stoler from using her leave. Plaintiffs allegations adequately allege that Defendants began the process of demoting Stoler well before her FMLA leave ran out.

Rosenthal also told Stoler that there were too many managers, that he needed to figure out a role for her, and not to report to work the day she was supposed to return from her leave. When Stoler returned, she was demoted two levels below her previous position and moved out of her private office into a cubicle. Given such occurrences, Plaintiffs have adequately pled that Stoler was not restored to her original position upon her return from FMLA leave.

A plaintiff “need not expressly assert rights under the FMLA or even mention the FMLA.”  Therefore, plaintiff Stoler “Stoler was under no obligation to specifically mention the FMLA when requesting leave”, and “it is plausible that Rosenthal understood that Stoler asked for FMLA leave when she said she would need to take maternity leave.”

In addition, since “FMLA coverage applies to a plaintiff who has taken, with her employer’s permission, a leave greater than 12 weeks,” plaintiff Stoler “did not vitiate her FMLA rights simply by taking an approved extension of leave.”  This case was therefore different than those in which plaintiffs were unable to return before the end of their leave and were not given permission to extend their leave.”

The court rejected defendants’ argument that Plaintiff Hess was not a covered employee because she had not worked for defendants for 12 months when she requested FMLA leave, since “FMLA eligibility determinations must be made as of the date the FMLA leave is to start.”  Therefore, “Hess was thus protected by the FMLA because she was eligible for FMLA leave when her leave was scheduled to start.”  Plaintiff alleged that defendants fired Hess 10 days before her FMLA leave, thereby preventing her from exercising it.  This “close temporal proximity” was a “sufficient showing of interference”.

Finally, the court found that plaintiff Marcus sufficiently alleged that she was constructively discharged, in that defendants coerced her to forego her FMLA rights:

Marcus told [Chief Operating Officer] Posavetz about her concerns about the security of her job in light of her pregnancy and noted that UN had a history of firing pregnant women. Posavetz, however, ignored Marcus’ concerns, and Defendants marginalized and demoted Marcus. Defendants’ treatment of Marcus made it clear that “she was not wanted as an employee.”  Thus, while Marcus did resign from employment during her FMLA leave, Plaintiffs have sufficiently pled constructive discharge and a claim that UN interfered with Marcus’ FMLA rights.

2. FMLA Retaliation

The court held that plaintiffs sufficiently alleged claims of retaliation under the FMLA.

The law:

The FMLA prohibits employers from retaliating against employees who exercise their FMLA rights or oppose an employer’s unlawful practices under the FMLA. A plaintiff makes out a prima facie case of retaliation where she establishes that: “(1) [s]he exercised rights protected under the FMLA; (2)[s]he was qualified for [her] position; (3) [s]he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.” Plaintiffs need prove only that their FMLA leave was a motivating factor in defendants’ decisions, not that it was the sole reason.Requests for FMLA leave are protected activity.

As to plaintiff Stoler:

It is alleged that, in the first four months after Stoler returned from maternity leave, Rosenthal demoted her, moved her into a cubicle, significantly cut her compensation, and posted a job listing for a high-level executive to replace Stoler. Stoler complained about these actions in a series of conversations with Rosenthal, Posavetz, and Cody. On February 25, 2013, the Plaintiffs filed their initial complaint in this action, and on April 5, 2013, Plaintiffs filed charges against the Defendants with the EEOC. Stoler was fired on May 14, 2013. The timing of those events alone is sufficient to make out a plausible FMLA retaliation claim.

As to plaintiff Hess:

[Hess] alleged that after Hess informed Rosenthal of her pregnancy in early October 2012 by email. When advised of Hess’ pregnancy, Rosenthal told Hess that he had “never met a new mom that didn’t underestimate the sleep, time, exhaustion from a new baby” and advised Hess to speak with her partner to see “if it was worth it.” Rosenthal also told Hess that he needed to “protect” himself and UN because her performance could decline. In response, Hess advised Rosenthal affirmatively that her performance would not be diminished upon her return to her position. Over the course of the next several months, Rosenthal began to falsely criticize her work, took away her responsibilities, cut her annual bonus by $20,000, told at least one of Hess’ colleagues to stop working with her, posted a new job listing that described Hess’ jobs role and responsibilities, and fired her 10 days before the start of her leave. The Court finds that Plaintiffs have sufficiently pled an FMLA retaliation claim.

As to plaintiff Marcus:

In a little more than a month after Marcus announced her pregnancy, and the need to take FMLA leave, and complained to HR that she was concerned about IIN’s history of dismissing pregnant women, Rosenthal removed Marcus from IIN’s management team and her position as the Nutrition Manager, replacing her with a junior employee without children whom Marcus had trained. By year end, Rosenthal reduced Marcus’ promised raise by $25,000. In March 2013, Marcus began her FMLA leave, and on May 14, 2013, Marcus asserted to UN that she had been constructively discharged. These allegations adequately allege retaliation against Marcus.

3. Retaliation Under Title VII and the NYCHRL

The court denied defendants’ motions to dismiss Stoler’s and Marcus’ retaliation claims under Title VII and the NYCHRL, but granted it as to Hess.

The law:

In a retaliation claim under Title VII, the plaintiff must first establish a prima facie case of retaliation by showing: “(1) his participation in protected activity; (2) defendant’s knowledge thereof; (3) materially adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.”

In Univ. of Texas Sw. Med. Ctr. v. Nassar, the supreme Court held Title VII retaliation claims require the plaintiff to establish “but for” causation.

However, even under that standard, plaintiffs “need not show that retaliation is the only cause of an adverse action”, and that

an employer may be held liable under a but-for standard if other factors contributed to its taking an adverse action, as long as the protected characteristic was the factor that made a difference.

At the motion to dismiss stage, “the relevant question is whether plaintiffs have pled factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Defendants claimed that plaintiffs failed to engage in protected activity.  “An employee’s opposition to violations of Title VII or a complaint to her employer about them is protected activity.”

Here,

Stoler and Marcus complained about and opposed the discrimination to which they and other women were subject. Stoler repeatedly expressed concern to Rosenthal, and IIN’s in-house counsel, about the demotions she experienced immediately after her return from maternity leave. Stoler also complained specifically about the discrimination to which she was subject, including a complaint to Rosenthal that he seemed to believe she was less capable because of her pregnancy. Stoler also complained in the first week of May 2013 about the continuing discrimination and retaliation.  Marcus went directly to IIN’s in-house counsel and told him she was concerned about her job because of her pregnancy and that Defendants had a history of firing pregnant women. Stoler was fired from her position, while Marcus was constructively discharge[d].

Although Hess stated to Rosenthal that her commitment and capabilities were not affected by her pregnancy, and thereafter complained to Rosenthal and others about UN’s demotion of her, she did not make a complaint about the alleged policy discriminating against pregnant women prior to her filing of the [Amended Complaint].

The court held that Stoler and Marcus sufficiently alleged that they were subject to unlawful retaliation:

It is plausible that Defendants understood the actions of Stoler and Marcus to have been protected activity.  Defendants’ contention that Stoler and Marcus have failed to allege known protected activity is contradicted by the allegations described above.

The temporal proximity between the protected activities of Stoler and Marcus and the adverse actions establishes the causal connection.  Stoler faced increasing adverse employment actions each time she resisted Defendants’ discriminatory actions. That retaliation culminated in her dismissal two weeks after her last complaints to management of discrimination and retaliation. Marcus was similarly subject to retaliation after she complained she was worried about her position because defendants had a history of dismissing pregnant women. Within weeks of this complaint, Rosenthal and HR reprimanded Marcus, demoted Marcus, and replaced her with a more junior employee.

The court rejected defendants’ reliance on cases that were decided at the summary judgment stage, rather than upon a motion to dismiss, noting that “[a]t this stage, the Plaintiffs are merely required to plead facts that could plausibly assert the claims they allege.”

Plaintiffs did so:

Stoler and Marcus protested Rosenthal’s discriminatory attitude toward their pregnancy, telling him and other UN managers that they were capable of performing their duties before and after UN took any adverse employment actions against them.

Therefore, the court concluded:

Stoler and Marcus have sufficiently alleged facts establishing a prima facie case of retaliation under Title VII that: (1) they participated in protected activity; (2) known to defendants; (3) they suffered an adverse employment action; and (4) the retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.  Stoler and Marcus have alleged sufficient facts to survive a motion to dismiss under Title VII.

Since NYCHRL claims must be reviewed “more liberally” than Title VII claims, they necessarily alleged sufficient facts under the NYCHRL.

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