Lack of work results in employee’s termination

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Where a woman alleged that her limited-term employment ended because of her pregnancy, but the record showed that there wasn’t enough work to justify her continued employment, the employer prevailed on her discrimination and retaliation claims.

Background

Allison Blanchard filed this action against her former employer, Arlington County, Virginia. The remaining counts are: (i) pregnancy discrimination; (ii) Title VII retaliation; (iii) disability discrimination; (iv) retaliation pursuant to the Americans with Disabilities Act, or ADA and (v) Family and Medical Leave Act, or FMLA, retaliation. Defendant has filed a motion for summary judgment.

Pregnancy discrimination

Based almost entirely on the interactions between herself and her supervisor, Michelle Congdon, from 2017-19, plaintiff claims that her 2020 termination was due to pregnancy discrimination. As plaintiff concedes, however, all of these interactions are well beyond the 300-day lookback period and well before plaintiff’s termination on March 5, 2020.

Even if plaintiff had established a prima facie case, defendant proffers that there was not enough work to justify plaintiff’s continued employment as a limited-term employee. Plaintiff offers two arguments that defendant’s proffered legitimate, nondiscriminatory reason is pretextual: (i) there were projects to which plaintiff could have been assigned and (ii) plaintiff was not assigned any new projects upon her return from maternity leave. These arguments are unpersuasive. Accordingly, defendant’s motion for summary judgment must be granted on plaintiff’s pregnancy discrimination claim.

Retaliation

Plaintiff identifies two protected activities to support her Title VII retaliation claim: (i) requesting leave related to her infertility treatments and to her pregnancy and (ii) her Dec. 19, 2018 complaint of discrimination to Human Resources. To begin with, leave requests are not participation in a Title VII investigation, nor do they constitute opposition to a discriminatory practice.

Although plaintiff’s complaint to HR clearly qualifies as a protected activity, the approximately 14-month gap between plaintiff’s complaint and her termination does not establish temporal proximity. While courts have recognized that plaintiffs can establish “ongoing retaliatory animus” even where there is a lack of temporal proximity, plaintiff’s arguments in this regard fails; it is unsupported by the summary judgment record and plaintiff fails to establish that an ongoing retaliatory animus existed here.

Even assuming that plaintiff has established a prima facie case of retaliation under Title VII, defendant has identified the lack of work as a legitimate, nondiscriminatory reason for plaintiff’s termination. On this summary judgment record, plaintiff cannot establish pretext for the same reasons that plaintiff could not establish pretext on her Title VII pregnancy discrimination claim.

ADA

Plaintiff asserts two claims under the ADA: (i) disability discrimination and (ii) retaliation. Even if plaintiff could rely on her prior pregnancies to establish that she was a qualified individual with a disability, on this summary judgment record, plaintiff has failed to rely on evidence demonstrating that her pregnancy qualified as a disability.

Plaintiff next asserts that her infertility diagnosis renders her a qualified individual with a disability. The parties have not identified any Fourth Circuit decision holding that infertility qualifies as a disability under the ADA. District courts are divided on this point. It is unnecessary to resolve that issue here, however, because the record on summary judgment does not demonstrate that plaintiff has an infertility diagnosis.

Even assuming that plaintiff could establish that she was disabled and could make a prima facie case of disability discrimination, defendant has proffered a legitimate, nondiscriminatory and plaintiff cannot establish pretext for the same reasons that she cannot establish pretext with respect to her Title VII discrimination claim.

Turning to plaintiff’s ADA retaliation claim, as with plaintiff’s Title VII retaliation claim, there is no temporal proximity between plaintiff’s protected activities in December 2018 and her termination in March 2020. Plaintiff also argues in support of her ADA retaliation claim that Congdon allegedly began retaliating against plaintiff by issuing an unfavorable mid-year review in January 2019 and full-year review in June 2019. This argument is unsupported by the record.

Even assuming that plaintiff could state a prima facie case of ADA retaliation, defendant has come forward with a legitimate non-discriminatory reason for plaintiffs discharge: the lack of work for plaintiff to perform. And plaintiff has failed to demonstrate, on this summary judgment record, that defendant’s proffered reason is pretextual.

FMLA retaliation

On this summary judgment record, no reasonable juror could reasonably infer that plaintiff was discharged in retaliation for her FMLA leave. Even assuming that plaintiff could establish a prima facie case of FMLA retaliation, because defendant has proffered evidence that plaintiff was discharged for lack of work, and plaintiff has not come forward with evidence from which a reasonable juror could determine that defendant’s proffered reason is pretext, plaintiff is entitled to summary judgment on this claim.

Defendant’s motion for summary judgment granted.

Blanchard v. Arlington County, Case No. 1:21-cv-0649, Feb. 24, 2023. EDVA at Alexandria (Ellis). VLW 023-3-092. 33 pp.