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Professional Service Agreement

Poor Performance, Not Pregnancy or Maternity Leave, Led to Termination

March 05, 2018

An employee who claimed her stronger-performing accounts were replaced with underachievers upon her return from maternity leave, which led to claims of performance deficiency and ultimately her termination, will not move forward with Title VII and Family and Medical Leave Act (FMLA) claims, a federal district court in California ruled.

The employee's discrimination claims failed because she offered no evidence that the employer treated her differently from other employees—all of whom experienced reassignments—or evidence that the female employee who received her old accounts was a similarly situated employee outside of her protected class. Her FMLA interference claim—based on allegations of demotion and pressure to return early—was likewise unsupported.

Accounts reassigned. In 2014, after four years of employment during which she was promoted from assistant underwriter to underwriter and developed a strong portfolio of construction industry business (her "book of business"), the plaintiff went out on maternity leave. Her leave began in June. Because of a pregnancy-related medical condition her leave was extended, and she did not return to the office until mid-January 2015. She alleged that, prior to her return, her supervisor "was pestering [her] to return back to work early[,]" although ultimately her return was delayed by several days at the request of that same supervisor. When she returned she learned that her book of business had been reassigned. She was given administrative work for a couple of weeks, during which time she was to receive training on the employer’s new online system, which had been implemented during her absence.

Post-leave performance issues. Thereafter, she was given a new book of business that she claimed were underperforming accounts, but she was expected to secure quotas from those clients far in excess of what they had previously generated. In the meantime, her old accounts were being handled by a less senior female employee, who she contended had a romantic connection with the supervisor. The employee raised concerns about these changes repeatedly and told her supervisor that she believed she was demoted because of her maternity leave. Within a few months of her return, performance concerns about her had been raised. In May she received an overall "Needs Improvement" rating for her 2014-15 review based on her alleged failure to meet goals and "chronic tardiness." She received a final written warning in September and was fired later that month.

Exhaustion of claims. Prior to her termination she had filed complaints with the Department of Fair Employment and Housing (FEHA) and the Equal Employment Opportunity Commission (EEOC). She filed suit in September 2016. Among other arguments made by the employer in its motion for summary judgment, it argued that the employee’s claims based on her termination and retaliation were not administratively exhausted. While the court concluded that the employee had properly exhausted her administrative remedies on her retaliation and unlawful discharge claims to the extent they were based on gender discrimination, it found no evidence of exhaustion as to the employee’s claim of unlawful termination to the extent that it was based on retaliation for her filing an administrative charge.

No prima facie case of discrimination. Ultimately, the court granted summary judgment against her. With respect to the Title VII and FEHA claims concerning the employee’s termination, for which she identified gender as her protected class, the court concluded that the employee had made "little attempt to make a prima facie case." Particularly, she failed to offer evidence that the employer had treated her differently than a similarly situated employee outside of her protected class. All employees experienced reassignments, the court noted, regardless of whether they took maternity leave. Also, the employee did not provide evidence that the employer had not imposed similarly heightened expectations on other underwriters. Indeed, she failed to offer evidence that other underwriters had been assigned higher-performing clients. The only individual she identified as having been treated more favorably was a female employee who had also taken maternity leave under the same supervisor in late 2013. A reasonable jury could not determine that she had established a prima facie case, the court concluded.

No evidence of pressure. With regard to the employee’s FMLA and related state law claim, which was based on allegations that she was not returned to the same or comparable position upon her return from leave and that her supervisor had pressured her to return early, the court likewise granted the employer’s motion. The evidence the employee alleged supported her claims of pressure to return, showed only that the supervisor and HR department were trying to clarify when she intended to return. There was no evidence that the supervisor wanted her to return on a specific date or earlier than expected or that the employer’s communications with the employee were harassing.

No evidence of demotion. In addition to providing very few details regarding her pre-maternity work, other than stating that she had a different book of business, the employee also failed to provide evidence that the change was a demotion. She did not provide evidence supporting her claim that she was given fewer responsibilities. Her work schedule and pay did not change. The administrative work she was given for the first two weeks was temporary, which the employee testified that she understood, and some of that time was used for training on the new online system. And, even if the court were to assume that the reassignment constituted a demotion, it was undisputed that reassignments had been made across the board. With regards to the employee’s new accounts, the target goals were adjusted based on their performance levels and while the employee was only able to generate relatively small numbers for them in 2015, subsequent underwriters were able to produce significantly higher numbers in the following years.