The7th U.S. Circuit Court of Appeals recently overturned a lower court’s summary judgment in favor of a home care agency, holding that a jury should be allowed to determine whether the agency’s shifting explanations for the firing could, in fact, be a pretext for pregnancy discrimination. Hitchcock v. Angel Corps Inc., 7th Cir., No. 12-3515, June 11, 2013.
In October 2008, Jennifer Hitchcock became employed by Angel Corps, Inc., a home healthcare agency, as a client services supervisor. In that role, Hitchcock assessed new client needs in order to help Angel Corps determine what services should be provided to the client. On March 25, 2010, a week after informing her immediate supervisor that she was pregnant, Hitchcock was asked, by that supervisor, whether she was “quitting” after she gave birth. Because Hitchcock was only three months pregnant at that point, she told the supervisor that she would not make such a “big decision” until later in her pregnancy. The supervisor told her to make the decision as soon as possible in order to allow “continuity of care” for the clients.
After this conversation, the supervisor began to increase Hitchcock’s workload, and began to meet with Hitchcock on a weekly basis, which had not been done prior to Hitchcock’s pregnancy. Also, because Hitchcock worked 40 hours a week and no overtime, the increase in work responsibilities became “nearly impossible” to complete. In addition, according to an affidavit of a former co-worker, Hitchcock’s supervisor made derogatory remarks about how an additional child would affect Hitchcock’s attendance (Hitchcock had two other children at the time), and even indicated that “If I were you I would have an abortion.”
On April 5, 2010, Hitchcock went to the home of a possible new client to do an intake interview. The client was 100 years old and lived with her son. When Hitchcock arrived at the house, she first went through paperwork with the son, and then asked to see the client. According to Hitchcock, the son “reluctantly” led her to the bedroom, but did not allow Hitchcock to approach the mother directly. From Hitchcock’s vantage point, the woman seemed to be asleep in her bed. However, Hitchcock did not see signs of breathing or volitional movement, and noticed “brown stains” on the pillow case, which the son explained were liquid that he had tried to feed to his mother earlier that day. The son then backed Hitchcock into the hallway and turned out the mother’s light.
Hitchcock was shaken by the interview, and returned to the Angel Corps office immediately to report the circumstance to her supervisor, stating that the client “was possibly dying or already dead.” The supervisor directed Hitchcock to complete and submit the paperwork on the client, and then made calls which ultimately resulted in the confirmation of the client’s death. On April 16, Hitchcock was suspended while an investigation of the incident was conducted. The investigation revealed that the client had been dead for two or three days before Hitchcock saw her.
On May 3, 2010, Hitchcock was fired. The termination form indicates that Hitchcock was fired because she “completed a full admission on an expired client.” However, the same form also indicates that Hitchcock had “compromised the health and safety of this client.” During the litigation, an owner of Angel Corps testified that Hitchcock was fired because she “performed a deficient assessment on a potential client,” but did not explain how the assessment was deficient.
Hitchcock filed a lawsuit, and alleged that her firing was based on her pregnancy, in violation of Title VII. (The Pregnancy Discrimination Act amended Title VII to prohibit employment discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”) The lower court granted summary judgment in favor of Angel Corp, but that decision was reversed by the Seventh Circuit on appeal.
After a discussion of the difference between “direct” and “indirect” evidence, and the methods for evaluating cases under both tests, the Seventh Circuit simply determined that a genuine issue of material fact existed that was sufficient to overturn the summary judgment and to allow the case to move forward to be decided by a jury.
The Court first reviewed Angel Corps proffered legitimate business reason for Hitchcock’s termination, stating that “if there is no evidence of pretext, then Angel Corps non-discriminatory justifications for firing Hitchcock must be believed, which necessarily precludes liability under Title VII.” However, the Court then went on to say that it counted “at least four potentially different explanations given for Hitchcock’s firing,” all of which were “sufficiently inconsistent or otherwise suspect to create a reasonable inference that they do not reflect the real reason for Hitchcock’s firing.” In stronger-than-usual language, the Court pointed out that Angel Corps attempted to make sense out of its disparate explanations, but did so by “piling on additional ever-evolving justifications that may cause a reasonable juror to wonder whether Angel Corps can ever get its story straight.”
Of note is the fact that the Court does not attempt to determine whether Hitchcock’s firing was “fair” or whether Angel Corps’ decision to fire her was too harsh. The Court’s decision was based completely on the number of reasons proffered for the firing, and the inconsistency among those reasons. Although Title VII does not require an employer to have “just cause” for every termination, an employer who advances inconsistent reasons for firing an employee takes the risk that a court’s disbelief in the reason or reasons will lead to denial of a motion for summary judgment or, worse, will cause a jury to find that the reasons constitute a pretext for discrimination. An employer’s documentation related to an employee’s termination should be objective, factual, and consistent, and should be carefully reviewed before use, in order to avoid the result in this case.