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Thursday, November 7, 2013

Employer Consistency Defeats Pregnancy Bias Claim

By Tommy Eden

Anamaria Penaloza worked at a Target store in Florida when she became pregnant and took an FMLA leave of absence to deliver her child. However she did not return within the 12 week FMLA leave period and Target cut her hours, disciplined her for absences and late arrivals and fired her for failing to come to work after a 14-week absence. The Eleventh Circuit Court of Appeals sided with Target and last week unanimously decided that Penaloza needed to show that Target treated workers outside her class of pregnant woman more favorably to survive Target’s motion for summary judgment.

The Pregnancy Discrimination Act amended Title VII by provides that the prohibition against sex discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions. To prevail a plaintiff must establish a prima facie case by showing that (1) she belongs to a protected class; (2) she was qualified to do the job; (3) she was subjected to an adverse employment action; and (4) her employer treated similarly situated employees outside her class more favorably.

Here, there is no dispute as to the first three elements. Ms. Penaloza was qualified for her job, was in a protected class (pregnant women), and suffered a number of adverse employment actions: (1) reduction in hours; (2) disciplinary action for alleged absences and late arrivals; and (3) termination for failing to return to work after a 14-week absence.

The dispute in this case turned on the fourth element: whether Target treated similarly situated, non-pregnant employees more favorably. The Court found that Ms. Penaloza had presented no evidence to satisfy this element. In particular, she has presented no evidence that (1) the number of hours assigned to any of her coworkers remained the same when her hours were reduced; (2) other employees whom Target accused of failing to call in absent before an unscheduled absence were treated differently than she; and (3) any other Target employee failed to return to work after a 14- week absence but retained a position at Target. The Court simply found that she did not show Target treated non-pregnant workers any differently and failed to show that “any other Target employee failed to return to work after a 14-week absence but retained a position at Target.” The case is Anamaria Penaloza v. Target Corp.

Common Sense Counsel: This Pregnancy discrimination case had a happy ending for Target. If faced with this situation I highly recommend you go back and read my June 9, 2013 Column Bullet-Proofing your Employee Discharge Decision. It is one of my top Blog hits and is all about following a Consistent Discharge Process.
Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog