Adverse Employment Actions May not Necessarily be Adverse for Purposes of Pregnancy-Based Employment Discrimination Claims-Hill v. Lazarou Enterps., Inc., No. 10–61479–CIV, 2011 WL 1331272 (S.D. Fla. March 17, 2011)

South Florida employment law attorneys may want to take a few moments to review a well written Report and Recommendation issued in Hill v. Lazarou Enterps., Inc., No. 10–61479–CIV, 2011 WL 1331272 (S.D. Fla. March 17, 2011) (The District Court adopted the Report and Recommendation at Hill v. Lazarou Enterps., Inc., No. 10–61479–CIV, 2011 WL 1321570 (S.D. Fla. April 6, 2011).  The Report and Recommendation contains a great review of the summary judgment standard, as well as standards for pregnancy-based employment discrimination claims brought under the federal Pregnancy Discrimination Act (PDA), and employment retaliation claims brought under Title VII and the Florida Civil Rights Act of 1992.

The facts of the case are rather long and muddled, but they basically reflect that after the plaintiff discovered she was pregnant, she reported the information to her immediate supervisor.  Although Plaintiff had been a good employee at the restaurant, Plaintiff was told by her supervisor that he was not sure if he could allow the plaintiff to work anymore because of her pregnancy, and that he’d need to speak with the owner of the restaurant.  Since the plaintiff had worked as a busser, he and the restaurant owner also asked for a doctor’s note indicating how much weight she would be allowed to carry.  After the doctor provided a note indicating that the plaintiff should not lift any more than 20 pounds, the plaintiff was told that she would not be allowed to work as a busser anymore, but that she would be permitted to work as a cashier or hostess.  Unfortunately, no hostess or cashier positions were immediately available.  The plaintiff became upset, and claimed that she was being discriminated against.  Ultimately, the plaintiff filed suit.

After discussing discrimination cases based on direct versus circumstantial evidence of discrimination, the Court focused on the issue of whether the plaintiff suffered an adverse employment action.  While the plaintiff maintained that she was fired because of her pregnancy, the defendant contended that she quit.  The Court summarized the relevant analytical framework:

Not all negative actions taken by an employer constitute adverse employment actions.  Thus, the undersigned must determine whether the defendant’s refusal to allow the plaintiff to work as a busser was an adverse employment action. “To show an adverse employment action, an employee must demonstrate ‘a serious and material change in the terms, conditions, or privileges of employment.’ “ Sampath v. Immucor, Inc., 271 Fed. App’x. 955, 962 (11th Cir.2008) (quoting Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.2001) (emphasis in original). Here, it is undisputed that the defendant initially told the plaintiff she could start work as a hostess or a cashier instead of working as a busser. See Deposition of Donna Hill (DE# 71–3 at 41, 12/7/10). Generally, a transfer to a different job position is insufficient to support of an adverse employment action. “A lateral transfer, that is a transfer which does not involve a demotion in form or substance, does not rise to the level of an adverse employment action.” Gonzalez v. Florida Dept. of Highway Safety and Motor Vehicles Div. of Fla. Highway Patrol, 237 F.Supp.2d 1338, 1348 (S.D.Fla.), aff’d, 45 Fed. App’x. 886 (11th Cir.2002) (unpublished table decision). However, “[a] transfer to a different position can … be adverse if it involves a reduction in pay, prestige, or responsibility.” Hyde v. K.B. Home, Inc., 355 Fed. App’x. 266, 269 (11th Cir.2009) (citation and quotation marks omitted). In the instant case, the defendant did not have an immediate opening for a hostess or cashier when it offered this new position to the plaintiff. At the same time, the defendant would not allow the plaintiff to continue working as a busser. As a result, the plaintiff suffered a drastic reduction in take home pay because she was not working at all. Thus, for all intents and purposes the defendant’s continued refusal to allow the plaintiff to work as a busser combined with the unavailability of alternative work at the diner resulted in an adverse employment action.

Hill, 2011 WL 1331272 at *12.

Ultimately, the Court recommended denial of the plaintiff’s and defendant’s motions for summary judgment on all claims, thereby setting the stage for the case to go to trial  Because the Report and Recommendation is so thorough, this might be an opinion to keep close at hand for your future pregnancy-based employment discrimination claims!