Court Says Lack of Comparator Evidence Sinks Nurse’s Pregnancy, Sex Bias Claims
By Chris Opfer
Sept. 24 — A part-time worker at a Miami hospital whose hours decreased in the months following her return from pregnancy leave and who was mistakenly fired based on a clerical error failed to present comparator or other evidence showing that the actions were discriminatory, a federal district court in Florida ruled Sept. 23 (Claude-Morency v. Univ. of Miami, S.D. Fla., No. 1:12-cv-21967, 9/23/13).
Marie Claude-Morency failed to show that other per diem workers at the University of Miami Hospital’s behavioral health department didn’t also have their hours cut over the three-month period in which a supposed “slow down” left her working only two shifts, the U.S. District Court for the Southern District of Florida found.
Nor did she show that non-pregnant workers were treated more favorably with respect to the records mix up that led to her firing, the court said, pointing out that the university acknowledged the error and attempted to cure it by reinstating Claude-Morency to her job.
The district court granted summary judgment to the university on Claude-Morency’s sex and pregnancy discrimination claims under Title VII of the 1964 Civil Rights Act.
Although comparator evidence wasn’t the only way in which Claude-Morency could have raised an inference of pregnancy discrimination, Judge Patricia A. Seitz said, the short time frame between her return from leave after giving birth and the adverse actions was not enough. Nor, according to the court, did Claude-Morency otherwise rebut the university’s non-discriminatory reasons for both the hours reduction and termination.
‘Slow Down’ After Return From Leave
Claude-Morency worked at UM Hospital as a per diem certified nursing assistant in the behavioral health department from January 2009 until she was fired in March 2011.
The hospital’s per diem staff works on an “as needed” basis, serving on call to assist full-time staff when needed. As such, they don’t work a regular schedule and are not guaranteed a certain number of hours per week. Nevertheless, per diem staff members are required to work a minimum of 32 hours per month, including at least one weekend, and may be terminated if they are not available to work for more than 90 days.
Claude-Morency was working only overnight shifts when she became pregnant. She gave birth to a child in September 2010. After exhausting her 12 weeks of Family and Medical Leave Act leave Oct. 20, 2010, she requested and was granted additional time off under the hospital’s general medical leave policy. The university provides temporary, unpaid leave under this policy, but doesn’t protect jobs for those who take advantage of it.
Human resources workers Jarren Short and Cloris Nunez met with Claude-Morency Dec. 27, 2010, to discuss her return to work. According to the court, Short and Nunez mistakenly believed that Claude-Morency worked shifts other than at night prior to taking leave and that her per diem position had been filled while she was out. They told Claude-Morency that the only position they could offer her was a night shift, per diem position.
Claude-Morency returned to work Jan. 13, 2011, but only worked one additional shift–Feb, 21, 2011–over the next two months. She claimed that she had regularly contacted shift scheduler Maria Garcia to request more work, but said Garcia had told her that the behavioral health unit was “slow.” According to Claude-Morency, she typically would expect to work somewhere between 28 and 42 shifts during this time.
Termination Successfully Challenged by Union
Short sent a letter to Claude-Morency terminating her employment March 26, 2011, based on the mistaken belief that she had not worked in more than 90 days. Short misread time records as showing that Claude-Morency’s last shift was July 14, 2010.
Union representative Marie Jean-Phillipe later filed a grievance on Claude-Morency’s behalf and Short agreed to reinstate her to the per diem, night shift job. Jean-Phillipe eventually tracked Claude-Morency down and informed her of the decision, but by that time she had obtained another job and said she didn’t want to return to the hospital.
Claude-Morency later sued the university, alleging sex and pregnancy discrimination under Title VII.
No Connection Between Pregnancy, Adverse Actions
Granting summary judgment to the university, the court held that Claude-Morency didn’t present the type of comparator evidence necessary to show that she was discriminated against because of her pregnancy.
First, the court ruled that Claude-Morency wasn’t subjected to an adverse employment action immediately after returning from pregnancy leave because Short and Nunez unknowingly returned her to the job she was working before she left. “Regardless of Short’s and Nunez’s belief, Plaintiff’s assignment as a per diem CNA on the night shift was a return to the status quo ante, and as such cannot be considered an adverse employment action,” Seitz wrote.
With respect to her reduction in hours and later termination, Claude-Morency didn’t show that she was treated any differently than similarly situated workers who had not just given birth, the court found. Specifically, it said, she didn’t produce any evidence indicating that non-pregnant per diem employees in the behavioral health department continued to work regular hours from January to March 2011, when the work apparently slowed down.
“Such evidence may have included affidavits or testimony from identified comparators showing, for example, that they did not have their hours drastically reduced, documentary evidence showing that utilization rates of other per diems outside of Morency’s protected class had not substantially gone down or testimony from personnel involved in scheduling that confirmed that the Behavioral Health department was not utilizing per diems at a much lower rate,” Seitz wrote.
Indeed, the only evidence regarding other per diem employees in the record were contact logs allegedly showing that the hospital made multiple attempts to contact Claude-Morency to work during the time period in question, according to the court.
Although the lack of comparator evidence was not necessarily fatal to her claims, the court found that Claude-Morency was unable to raise an inference of discrimination based on other circumstantial evidence.
“The only connection between Plaintiff’s pregnancy, her hours being cut, and her wrongful termination is that the allegedly discriminatory acts occurred shortly after Plaintiff returned from maternity leave,” Seitz wrote.
No Proof of Pretext
Even assuming that Claude-Morency could raise an inference of discrimination based on either the hours reduction or termination, the court held that she failed to rebut the university’s legitimate, non-discriminatory reasons for these actions.
The court said UM’s burden for producing a non-discriminatory basis for the actions was one of production, not persuasion, and was therefore “exceedingly light” at this stage in the litigation. Ultimately, the burden was on Claude-Morency to show not only that the given reasons were pretextual, but also that the reduction in hours and firing were actually motivated by pregnancy discrimination, the court said.
Given the lack of comparator evidence, the court found that Claude-Morency failed to meet this burden with respect to the hours reduction. She also didn’t rebut the university’s assertion that the firing was a simple mistake, according to the court.
“While UM admits it did not properly apply its per diem policies with respect to Plaintiff’s firing, Plaintiff has not offered any evidence to show that UM’s claim of mistake was merely a cover for discriminatory intent,” Seitz wrote.
Chad E. Levy of Levy & Levy in Fort Lauderdale, Fla., represented Claude-Morency. The university was represented by Robert T. Kofman and Bayardo E. Aleman of Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Morency_v_University_Of_Miami_Docket_No_112cv21967_SD_Fla_May_25_.