The Eighth Circuit Court of Appeals has affirmed an Iowa federal court’s grant of summary judgment in favor of Nationwide Mutual insurance Company in a former employee’s pregnancy and sex discrimination suit. In so doing, the Eighth Circuit provides important lessons for employers and employees alike.
In Ames v. Nationwide Mut. Ins. Co., — F.3d —-, 2014 WL 961020 (8th Cir., March 13, 2014), the employee, Angela Ames, appealed the decision of the Honorable Judge Robert Pratt (S.D. Iowa). Reviewing the evidence de novo and resolving all uncertainties in her favor, the appellate panel nevertheless found that the material facts, unflattering as they were to Ames’s immediate supervisor and her department head (who was also a Nationwide associate vice president), required the court to affirm denial of her claims on summary judgment. Those facts, in brief:
- Approximately five months after returning to work from maternity leave for the birth of her first child, and approximately one year after being hired as a loss mitigation specialist, Ames discovered that she was pregnant with her second child. The pregnancy was complicated and Ames’s doctor prescribed bed rest. Ames’s supervisor responded with derision and made tactless comments.
- After Ames gave birth prematurely, Nationwide miscalculated her FMLA leave. Upon realizing its error, Nationwide notified Ames that she would have to return to work nearly three weeks earlier than expected, but offered an additional week of paid maternity leave and additional unpaid leave of nearly one month. At the same time, Ames’s supervisor discouraged her from taking the unpaid leave, warning her it would set off “red flags” and cause “issues down the road”.
- Ames returned to work when her son was two months old and was breastfeeding every three hours. Upon arriving at work on her first day back, Ames had gone three hours without nursing and was in discomfort. Ames requested of her supervisor that she be allowed to use a lactation room. Ames’s supervisor replied that it was not her responsibility to provide a lactation room, so Ames asked at the security desk. Ames was directed to the company nurse, who advised Ames that she had not completed the necessary paperwork to receive the required badge. The processing time for that paperwork was three days. Ames testified that this was the first time she was made aware of the policy, although evidence showed the policy was disclosed on the company’s intranet and was provided at quarterly maternity meetings. The nurse nevertheless sent an email requesting that Ames be allowed to use the lactation room “as soon as possible”. In the meantime, the nurse offered use of a wellness room once it was unoccupied. At the same time, the nurse advised Ames of the associated risk of exposing her breast milk to germs.
While waiting for the wellness room, Ames met with her department head, who told her that none of her work had been done in her absence and that she would have two weeks, and need to work overtime, to get caught up, or face discipline. Ames, at this point in pain, went to her supervisor to request help finding a place to lactate. Ames’s supervisor repeated that it was not her responsibility and Ames apparently broke down in tears. Ames’s supervisor handed her a pen and paper and stated, “You know, I think it’s best that you go home to be with your babies” or words to that effect. The supervisor then dictated to Ames what to write on the paper to resign, a resignation Ames then tendered.
Ames sued Nationwide alleging sex and pregnancy discrimination under Title VII of the Civil Rights Act of 1964 as amended by Pregnancy Discrimination Act of 1978, and under the Iowa Civil Rights Act. The gist of Ames’s suit was that Nationwide had constructively discharged her – in essence, discriminated against Ames with an intention to force her to resign. Nationwide moved for summary judgment, arguing that Ames failed to establish constructive discharge. Judge Pratt agreed, granting summary judgment.
A three-judge panel of the Eighth Circuit affirmed. Its holding is based on the following findings.
- Nationwide made reasonable accommodations. The appellate court found that Nationwide made several attempts to accommodate Ames. First, Nationwide did not discourage Ames from taking FMLA leave, and offered an additional week of paid leave to compensate for its miscalculation of her return date – giving Ames over thirty days to prepare for her return to work. Second, the court found that Ames was denied immediate access to the lactation room only because she failed to comply with a paperwork policy that was disclosed and applied to all employees. Further, Nationwide made efforts to expedite her access to the lactation room despite her failure to submit the paperwork, and offered the use of alternate facilities in the meantime. The court also found Ames’s department head’s expectations of Ames “not unreasonable.” The court considered it significant that expectations were the same for all employees, and that timely completion of loss-mitigation work was given a high priority at Nationwide. The court seems to suggest that a uniformly-applied policy for all employees, so long as it is not clearly unreasonable, vitiates the need to make reasonable accommodations with regard to working conditions and expectations for members of a protected class. In sum, the court found that Nationwide treated all loss-mitigation employees and all nursing mothers alike, which demonstrated that it did not intend to force Ames to resign by applying these policies to her.
- Ames failed to provide Nationwide an opportunity to remedy the situation. The court was unmoved by Ames’s supervisor’s suggestion that Ames “go home to be with her babies” and dictation of Ames’s resignation letter. Surprisingly, the court expressed doubt that such conduct would support a finding that Nationwide intended to force Ames to resign. Even accepting for argument’s sake that it might support such a finding, the court held that Ames nevertheless failed to satisfy her legal obligation to give Nationwide a reasonable opportunity to redress her grievance. It was significant to the court that Nationwide had a Compliance Statement and that Ames was apparently aware of it. That Compliance Statement provided that an employee should contact Nationwide’s Human Resources office, the Office of Ethics, or the Office of Associate Relations to report any circumstances the employee believed violated the law. Ames failed to report to any of these offices or to return to the nurse’s office to check on the availability of the lactation room or wellness room before tendering her resignation. As such, the court found that she failed to meet her burden of demonstrating constructive discharge.
On appeal, Ames also argued that the court should consider whether Ames’s supervisor’s statement about going home to be with her babies, together with handing her a pen and paper and dictating her resignation, constituted actual discharge; in other words, whether she had been actually fired. The Eighth Circuit declined to consider this argument because Ames had raised it for the first time on appeal. The court also found that Ames had failed to argue that the case fell within exceptions to that general rule, for cases where injustice would result by its application or where the appropriate resolution was beyond doubt.
The Ames decision provides important lessons for employers and employees alike. First, employers should consider adopting policies that expressly provide reasonable accommodations to predictably-occurring protected classes of employees, and make sure those policies are distributed to all employees and are applied uniformly. Employers should also give serious thought to adopting and distributing compliance and internal grievance policies to provide aggrieved employees a conspicuous and readily-available means of redress short of a complaint to the EEOC.
Employees, in turn, should be conscious of the existence of accommodation policies and take all necessary steps to avail themselves of the benefits they offer. When an employee feels that she is being discriminated against by a supervisor or believes that her employer is not in compliance with applicable state or federal law, she should be sure to review company grievance policies and give the company a chance to rectify the situation. Should litigation prove necessary, parties must be vigilant about raising all tenable claims at the district court level at the risk of waiving a potentially winning argument. Finally, employees and employers alike are advised to seek independent, experienced legal counsel as soon as issues become foreseeable, to limit their exposure and preserve their rights.