The U.S. Fifth Circuit Court of Appeals affirmed the district court’s decision in Fairchild v. All American Check Cashing, Inc. that the employer had not violated the Fair Labor Standards Act (“FLSA”) or Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. Fairchild v. All American Check Cashing, Inc. No. 15-60190 (5th Cir. 1/27/16).
The employee worked as a manager trainee at All American’s store and was paid hourly. Her responsibilities included cashing checks, issuing loans, and making reminder and “past due” phone calls to assist with debt collection. She was promoted to manager, a salaried position, but her duties remained the same. During 2012, All American issued a number of warnings to the employee regarding her performance (i.e. failure to train manager trainees, general inefficiency, and pay attention when processing transactions.) The employee was then demoted to manager trainee to work on her weaknesses. The employee’s new manager noted numerous performance problems, even after her demotion.
In November 2012, the employee notified her manager that she was pregnant. In January 2013, All American terminated Fairchild. In May 2013, Fairchild filed suit alleging that she was terminated because of her pregnancy and All American failed to pay her overtime wages in violation of the FLSA.
An employee cannot prevail on an FLSA overtime claim if that employee fails to notify the employer, or deliberately prevents the employer, from acquiring knowledge of overtime work. Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005). In All American, the employee sought overtime hours that she worked but did not report to All American. The employee ignored her employer’s policies and procedures — she neither sought authorization to work such overtime nor reported the alleged hours through All American’s timekeeping system. The employee cannot prevail on her FLSA claim for overtime compensation for hours that she worked at her own discretion and that she deliberately failed to report in violation of the employer’s policy. The district court denied overtime compensation, and the Fifth Circuit affirmed the decision.
Title VII Claim
Title VII, in pertinent part, makes it unlawful for an employer “to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). As amended by the first clause of the PDA, the terms “because of sex” “includ[e], but [are] not limited to, ‘because of or on the basis of pregnancy, childbirth, or related medical conditions.’” Laxton v. Gap Inc., 333 F.3d 572, 577 (5th Cir. 2003) (quoting 42 U.S.C. § 2000e(k)).
The employee’s only circumstantial evidence of an unlawful termination is the temporal proximity between All American learning that she was pregnant and her termination in late January 2013. Suspicious timing may be evidence of pretext, but such timing standing alone is not sufficient absent other evidence. Boyd v. State Farm Ins. Companies, 158 F.3d 326, 330 (5th Cir. 1998); accord Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015) (disability discrimination claim under the Americans with Disabilities Act). The Fifth Circuit also acknowledged: “[o]ur sister circuits, relatedly, have recognized that the temporal proximity between the plaintiff disclosing her pregnancy and her termination ‘cannot alone prove pretext.’” Asmo v. Keane, Inc., 471 F.3d 588, 598 (6th Cir. 2006); see also Govori v. Goat Fifty, L.L.C., 519 F. App’x 732, 734 (2d Cir. 2013); Borwick v. T-Mobile W. Corp., 535 F. App’x 650, 652 (10th Cir. 2013).
The Fifth Circuit concluded:
“with respect to evidence of timing, we decline to adopt a different analysis for pregnancy-based sex discrimination claims under Title VII. Although the temporal proximity between the employer learning of the plaintiff’s pregnancy and her termination may support a plaintiff’s claim of pretext, such evidence—without more—is insufficient. Because the only circumstantial evidence in this case was temporal proximity, All American was entitled to judgment as a matter of law after it established legitimate, nondiscriminatory reasons for Fairchild’s termination.”
The Fifth Circuit’s decision is favorable to employers. The case specifically noted that to rely just on temporal proximity would “unnecessarily tie the hands of employers.” In terminating an employee, in order to protect yourself against possible discrimination claims, it is advisable to follow the precedent of this case: 1) follow existing policies and procedures for employees set forth in the employer’s handbook; 2) maintain personnel files that contain a history of any disciplinary problems of an employee; and 3) be able to articulate non-discriminatory reasons for termination of an employee.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.