POOR JOB PERFORMANCE OR DISCRIMINATION?

BASELICE v. ASTRAZENECA LP, No. 19-CV-4931 (JPO), United States District Court, S.D. New York, July 8, 2021:

"OPINION AND ORDER

J. PAUL OETKEN, District Judge.

Plaintiff Mary Baselice brings this case against Defendant AstraZeneca LP, her former employer, claiming that AstraZeneca violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., when it terminated her based on her pregnancy.¹ On September 17, 2020, AstraZeneca moved for summary judgment on Plaintiff's claim. For the reasons that follow, AstraZeneca's motion is granted.

I. Background

In October 2010, Plaintiff joined AstraZeneca as a Pharmaceutical Sales Specialist. (Dkt. No. 42 ¶ 1.) In this role, Plaintiff was responsible for making sales calls to healthcare providers, including doctors and pharmacies, to encourage them to sample and ultimately use AstraZeneca products. (Dkt. No. 42 ¶¶ 7-11). Plaintiff was expected to "engage[] in selling activities" for 7.5 hours each day, starting at 8:30 A.M. (Dkt. No. 42 ¶ 13.) She was further expected to log her sales calls in a program called "Veeva," AstraZeneca's customer relationship management system. (Dkt. No. 42 ¶¶ 16-18.)

From August 2016 to the date of Plaintiff's termination, Plaintiff's direct manager was Beth Rumore, a District Sales Manager. (Dkt. No. 42 ¶ 4.) Rumore, in turn, reported to Andrew Strow, a Commercial Business Director. (Dkt. No. 42 ¶ 6.)

In 2016 and 2017, Rumore awarded Plaintiff "positive" year-end reviews, assessing that Plaintiff "meets expectations" and could be "proud" of her work. (Dkt. No. 50 ¶¶ 16-17, 18-19.) Still, across these years, Rumore on occasion spoke with Plaintiff about certain problems with Plaintiff's performance. As early as August 2016, Rumore spoke with Plaintiff about her failure to enter calls in Veeva and to maintain standard work hours. (Dkt. No. 41-11.) Rumore reminded Plaintiff that unentered calls "are not completed and don't count toward [her] execution" of job duties. (Id.) In April 2017, Rumore asked Plaintiff to "please make sure [she is] closing AND submitting [her] calls as they happen." (Dkt. No. 41-13 at 3.) Again in May 2017, Rumore told Plaintiff that her "execution is a bit baffling" and urged that Plaintiff "keep an eye on it . . . and continue to save and submit all of [her] calls as they happen on the day that they happen as [was] discussed." (Dkt. No. 41-14 at 5.)

Given her concerns about Plaintiff's entry of calls, Rumore flagged Plaintiff's performance for AstraZeneca's Human Resources department in May 2017. (Dkt. No. 41-15 at 2.) After reviewing Plaintiff's activity report, Human Resources concluded that Rumore's concerns were substantiated. (Dkt. No. 41-15 at 4.) In June 2017, Plaintiff was provided with coaching, a form of corrective discipline. (Id.; Dkt. No. 50-13 at 4 ("In the workplace, discipline may be in the form of warnings that correct misconduct or coaching aimed at increasing one[`s] knowledge or improving one[`s] skills (i.e., performance).").)

Despite the coaching, Plaintiff did not improve her work practices. On Friday, January 19, 2018, Rumore reviewed Plaintiff's Veeva calendar and saw that no calls had been entered for the entire week. (Dkt. No. 42 ¶ 54.) Rumore was "flabbergasted." (Id.) Rumore called Plaintiff to discuss the missing entries but was unable to get ahold of Plaintiff. (Dkt. No. 42 ¶¶ 55-56.) Shortly after the missed call, Rumore re-checked Plaintiff's Veeva calendar and noticed that Plaintiff had back-entered her activity for the week. (Dkt. No. 42 ¶ 57; Dkt. No. 41-17.) Of the back-entered calls, several were scheduled for June 15, 2018, Martin Luther King Jr. Day and a company holiday. (Dkt. No. 41-17.)

After back-entering her activity, Plaintiff returned Rumore's call. (Dkt. No. 42 ¶ 58.) In addition to attempting to justify her work practices, Plaintiff informed Rumore that she was pregnant. (Id.) Later that day, Rumore took time to "process[] everything" and raised Plaintiff's performance issues with Strow. (Dkt. No. 41-18; Dkt. No. 42 ¶ 59.) The following Monday, January 22, 2018, Rumore emailed Human Resources about Plaintiff's failure to enter calls contemporaneously and her back-entry of calls, including on Martin Luther King Jr. Day. (Dkt. No. 41-18.) The email did not mention Plaintiff's pregnancy. (Id.)

In response to Rumore's email, Human Resources reviewed Plaintiff's work activity from November 2017 to January 2018. (Dkt. No. 42 ¶¶ 62-63.) Human Resources found that, of the 39 business days in the period, Plaintiff had back-entered morning calls for 24 days, had failed to complete certain job duties before noon for 33 days, and had failed to complete other job duties before noon for all 39 days. (Dkt. No. 41-23 at 4.) Additionally, Human Resources determined that Plaintiff started her workday at 1:05 P.M., on average. (Id.) From this, Human Resources concluded that Plaintiff "has ignored the direction and coaching from her manager" and that Plaintiff likely "is not working during the morning hours." (Id.) Strow reached the same conclusion, assessing Plaintiff's record as "probably one of the worst" he had seen in years. (Dkt. No. 41-21 at 2; Dkt. No. 42 ¶ 69.)

On February 15, 2018, Plaintiff was given an opportunity to respond to these findings and conclusions, but she neither contested nor justified, to her supervisors' or to Human Resources' satisfaction, her lack of activity in the mornings or her practice of back-entering calls. (Dkt. No. 42 ¶¶ 72-74.) With the agreement of Strow, Rumore, and Human Resources, Plaintiff was terminated. (Dkt. No. 42 ¶¶ 77-78.)

On July 26, 2018, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights, alleging that she had been terminated because of her pregnancy. (Dkt. No. 42 ¶ 86.) The state agency investigated Plaintiff's claim and on February 24, 2019, determined that there was no probable cause to believe that AstraZeneca had engaged in pregnancy discrimination. (Dkt. No. 42 ¶ 87.) On May 28, 2019, Plaintiff filed this case. (Dkt. No. 1.) AstraZeneca moved for summary judgment on September 17, 2020. (Dkt. No. 39.)

II. Legal Standard

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "On summary judgment, the party bearing the burden of proof at trial must provide evidence on each element of its claim or defense." Cohen Lans LLP v. Naseman, No. 14-cv-4045, 2017 WL 477775, at *3 (S.D.N.Y. Feb. 3, 2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). "If the party with the burden of proof makes the requisite initial showing, the burden shifts to the opposing party to identify specific facts demonstrating a genuine issue for trial, i.e., that reasonable jurors could differ about the evidence." Clopay Plastic Prods. Co. v. Excelsior Packaging Grp., Inc., No. 12-cv-5262, 2014 WL 4652548, at *3 (S.D.N.Y. Sept. 18, 2014). The Court must view all evidence "in the light most favorable to the non-moving party and draw all reasonable inferences in its favor," and summary judgment may be granted only if "no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotation marks and citations omitted).

III. Discussion

Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination on the basis of pregnancy. Young v. United Parcel Serv., Inc., 135 S.Ct. 1338, 1343 (2015). In the absence of "direct evidence of discrimination," Title VII claims are assessed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Forde v. Beth Israel Med. Ctr., 546 F.Supp.2d 142, 149 (S.D.N.Y. 2008) (Chin, J.). In stepwise fashion, (1) the plaintiff "must first demonstrate a prima facie case of discrimination"; (2) the defendant "must then rebut the presumption by offering legitimate and non-discriminatory reasons for the adverse employment action"; and (3) "the burden then shifts back to the plaintiff to prove intentional discrimination by a preponderance of the evidence." Risco v. McHugh, 868 F.Supp.2d 75, 98-99 (S.D.N.Y. 2012).

Because the burden a plaintiff or defendant must carry at steps (1) and (2) is "minimal," id., courts often assume, arguendo, that these steps have been satisfied. See, e.g., Forde, 546 F. Supp. 2d at 150. The Court takes that approach here. The remaining issue, then, is "whether [Plaintiff] has presented sufficient evidence from which a reasonable jury could find that she was discriminated against because of her pregnancy." Id. Put differently, Plaintiff must show "that the employer's proffered reasons . . . were not the only reasons [for her termination] and that [pregnancy discrimination] was at least one of the motivating factors." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). The record, considered as a whole, reveals that Plaintiff has not made this showing. See Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 314 (2d Cir. 1997) (explaining that courts should "view the evidence as a whole in assessing whether there was impermissible discrimination and whether the [defendant's] proffered explanation is a pretext for that discrimination").

To start, Plaintiff's evidence of discrimination is sparse. She names several non-pregnant AstraZeneca employees who supposedly back-entered calls but were not disciplined. But Plaintiff fails to show that these employees were "similarly situated" to her and that she was targeted for discipline. Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). Plaintiff identifies no evidence that the other employees skipped most or all of their morning work hours. Id. at 42 ("[T]o be similarly situated, [the comparators and the plaintiff] must . . . have engaged in conduct of comparable seriousness."). Furthermore, Plaintiff admits that AstraZeneca may not have been aware of the other employees' practice of back-entering calls. (Dkt. No. 2 at 115:13-16.)

Plaintiff's attempt to show discrimination by pointing to the temporal proximity of her supervisor's learning about her pregnancy and her termination also falters. Temporal proximity alone is "insufficient" to demonstrate that Plaintiff's termination was motivated by animus. See Kennebrew v. New York City Housing Auth., No. 01-cv-1654, 2002 WL 265120, at *16 (S.D.N.Y. Feb. 26, 2002); Forde, 546 F. Supp. 2d at 152. The insufficiency is particularly pronounced in this case, where the events that precipitated Plaintiff's termination — Plaintiff's non-entry of calls for the entire week preceding January 19, 2018, and her erroneous back-entry of calls for a company holiday — preceded the announcement of her pregnancy. See Bernard v. J.P. Morgan Chase Bank N.A., No. 08-cv-4784, 2010 WL 423102, at *17 (S.D.N.Y. Feb. 5, 2010) ("When discipline or expressed dissatisfaction with job performance has taken place before the plaintiff [could be discriminated against], a causal nexus does not exist between the [potential basis for discrimination] and a subsequent adverse action.").

Finally, Plaintiff suggests that the strong performance reviews she received in 2016 and 2017 undermine AstraZeneca's position that she was terminated for performance issues. The law, however, "is clear that a claimant cannot merely point to prior favorable evaluations to satisfy her burden," particularly where "the prior favorable review[s] foresaw at least some problems with the claimant's performance." E.E.O.C. v. Bloomberg L.P., 967 F.Supp.2d 816, 858 (S.D.N.Y. 2013). The positive 2016 and 2017 reviews do not negate the seriousness of Plaintiff's performance issues, the extent and persistence of which Rumore discovered only after those reviews were submitted.

In contrast to Plaintiff's lackluster evidence, AstraZeneca provides compelling evidence that Plaintiff's performance was unsatisfactory and led to her termination. The companywide Work Expectations for AstraZeneca Sales Professionals specify that the workday begins at 8:30 A.M. and that calls should be "logged as they occur throughout the day." (Dkt. No. 41-10.) Plainly, Plaintiff did not abide by these Work Expectations. Indeed, her conduct deviated so far from the Work Expectations that Human Resources developed a "reasonable suspicion that she wasn't working" and that she would not be responsive to additional coaching. (Dkt. No. 6 at 120:10-25, 121:2-4.) Internal emails show that Strow reached the same conclusion.² (Dkt. No. 41-21 at 2 ("As I reviewed all of the e-mails and data, I frankly see no evidence that [Plaintiff] has been working in the mornings for over the last six months. . . . This is particularly disappointing as [Rumore] has had several conversations in 2017 about her work activity and call documentation.").) The record suggests that other AstraZeneca employees have been terminated for "the same or substantially similar reasons" (Dkt. No. 41-4 at 18; Dkt. No. 42 ¶¶ 80-85), and Plaintiff offers no explanation for why her own failure to meet work expectations could not have been "the true reason for the employment decision," Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As if more were needed, AstraZeneca also provides undisputed evidence that it accommodates pregnant employees. Strow, who recommended Plaintiff's termination, had been her senior manager during her first pregnancy in 2015. (Dkt. No. 42 ¶¶ 25, 27.) And Rumore permitted Plaintiff to go home during work hours to pump breastmilk after Plaintiff returned from maternity leave in 2016. (Dkt. No. 42 ¶ 29.) It is "difficult to reconcile" Strow and Rumore's willingness to accommodate Plaintiff in 2015 and 2016 with Plaintiff's current stance that Strow and Rumore discriminated against her on the basis of her pregnancy in 2018. Muhleisen v. Wear Me Apparel LLC, 644 F.Supp.2d 375, 386 (S.D.N.Y. 2009). AstraZeneca's accommodation of Plaintiff's first pregnancy, as well as its accommodation of other pregnant employees in the Pharmaceutical Sales Specialist role (Dkt. No. 42 ¶ 85), "weighs strongly against finding that [AstraZeneca] was motivated by bias against pregnant women." Chow v. Stride Rite Corp., No. 05-cv-2417, 2009 WL 196030, at *10 (S.D.N.Y. Jan. 27, 2009).

Viewing the record as a whole, it is apparent that Plaintiff has not presented evidence from which a reasonable jury could conclude that her termination was motivated by pregnancy-based animus. AstraZeneca is entitled to summary judgment.

IV. Conclusion

For the foregoing reasons, AstraZeneca's' motion for summary judgment is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 39 and to close this case.

SO ORDERED.

FootNotes

1. Plaintiff initially brought claims under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-107 et seq., as well. Plaintiff voluntarily withdrew those claims on October 23, 2019. (Dkt. No. 40 at 11.)

2. In her opposition to the present motion, Plaintiff suggests that AstraZeneca has changed its explanation for why she was terminated and that this inconsistency raises questions about any explanation's veracity. (Dkt. No. 51 at 16.) Specifically, Plaintiff recounts that Rumore said she was terminated for back-entering calls; Strow said she was terminated for not working during morning hours; and a Human Resources representative said that she was terminated for falsifying data entries. (Id.) Despite Plaintiff's efforts, the Court perceives no inconsistency in these explanations. The record shows that the three listed reasons are one and the same: The back-entered calls were, in at least several instances, falsified data entries that Plaintiff used to conceal her lack of activity during morning hours."

CAN YOU REFUSE TO SERVE PREGNANT WOMAN ALCOHOL?

Not in NYC! Under Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22):

"22. Employment; Pregnancy, childbirth, or a related medical condition.

 (a) It shall be an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation, as defined in subdivision eighteen o f section 8-102 of this chapter, to the needs of an employee for her pregnancy, childbirth, or related medical condition that will allow the employee to perform the essential requisites of the job, provided that such employee's pregnancy, childbirth, or related medical condition is known or should have been known by the employer. In any case pursuant to this subdivision where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job.

 (b) Notice of rights. (i) An employer shall provide written notice in a form and manner to be determined by the commission of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions pursuant to this subdivision to: (1) new employees at the commencement of employment; and (2) existing employees within one hundred twenty days after the effective date of the local law that added this subdivision. Such notice may also be conspicuously posted at an employer's place of business in an area accessible to employees. (ii) The commission shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies, and job applicants about their rights and responsibilities under this subdivision.

(c) This subdivision shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this section."

That didn't cover it so in May, 2016, the Commission on Human Rights NYC Commission on Human Rights issued Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy: Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22) and stated in Section III (a) (2) (emphasis supplied):

"...While covered entities may attempt to justify certain categorical exclusions based on maternal or fetal safety, using safety as a pretext for discrimination or as a way to reinforce traditional gender norms or stereotypes is unlawful.

Examples of Violations
.....
 • A restaurant policy that prohibits staff from serving pregnant individuals raw fish or alcohol."

To view the guidelines, see  http://www.nyc.gov/html/cchr/downloads/pdf/publications/Pregnancy_InterpretiveGuide_2016.pdf

Of course, under City Council Law 63, all food establishments selling alcoholic beverages for on-premises consumption must still put up signs warning pregnant women that consuming alcohol during pregnancy can cause birth defects. It's just that woman are now free to drink anyway.

NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY

In AB 543722 (Mailed and Filed February 6, 2009):

"The credible evidence establishes that the employer's client ended the claimant's assignment on March 14, 2008, due to the claimant's pregnancy. We reject the employer's contention that the claimant had resigned from employment in anticipation of the delivery of her child. In so doing, we note that the claimant had enjoyed the assignment and intended to work until the last possible moment for financial reasons. And, as the claimant did not deliver until April 2, she had no reason to end the assignment but for the client's discharge. We further note that the employer has produced no first-hand testimony to dispute the claimant's version of events, and in the absence of such first-hand testimony, the employer's hearsay cannot prevail. Thus, we conclude that that the claimant did not voluntarily resign from her employment without good cause, but instead, was discharged as a consequence of her pregnancy. Accordingly, we conclude that the claimant was separated from her employment under non-disqualifying circumstances."

NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY

See also (Mailed and Filed: SEPTEMBER 25, 2008) IN THE MATTER OF: Appeal Board No. 542082:

"The credible evidence establishes that the claimant quit her job when she was denied the use of a chair during her shift. It is undisputed that the employer knew that the claimant was pregnant. The claimant had given notice to the employer that she was having physical difficulty standing through her entire shift and requested the use of a chair. No evidence was submitted indicating that the employer had informed the claimant that a doctor's note was needed in order to obtain an accommodation for her known temporary disability. We note that there had been a chair behind the front desk until one week prior thus it was a condition of her employment when she'd started work and was a reasonable accommodation that would have enabled her to continue to work without a problem. On April 5, 2008, just four days after the general manager made it clear that she had granted only a one day accommodation, the claimant was presented with an absolute prohibition by her supervisor preventing her from using a chair while she worked. It was reasonable for the claimant to then conclude that the manager had no intention of making an accommodation for her temporary disability. Under these circumstances, her decision not to continue working under those conditions was reasonable. Accordingly, we conclude that the claimant voluntarily left her employment with good cause and is eligible for benefits."

NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY

As recently as March 20, 2012, the Appeal Board issued AB 560631 and stated:

"The credible evidence establishes that the claimant's employment ended effective February 15, 2011 when she did not return to her existing duties which involved working with lab samples which included volatile and toxic solvents which she had been advised by her doctor to avoid during her pregnancy. The employer had no other positions available for the claimant whereby she could avoid exposure to these toxins. While the employer did offer the claimant a leave of absence, it was unpaid and there was no guarantee that her position would be available upon her return to work. The employer's contention that there was ample safety equipment available to protect the claimant from any exposure is rejected in light of the claimant's sworn, firsthand testimony that she was exposed to these materials while using safety equipment in the past. Accordingly, the claimant had good cause to separate from her employment."

NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY

The DOL also lists the following AB cases regarding pregnancy and voluntary sepration:

"A voluntary quit disqualification was upheld in the case of a claimant who ceased working voluntarily, rejected a maternity leave without valid reason, and filed for benefits before childbirth. (A.B. 195,433)

A claimant who intends to return to the labor market following childbirth voluntarily leaves employment without good cause when she fails to apply for an obtainable maternity leave. (A.B. 191,796)"

NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY

Also from the DOL on pregnancy and voluntary separation:

"A-750-1716

Index Nos. 1605B-2
1695.2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 24, 1969

INTERPRETATION SERVICE – BENEFIT CLAMS
VOLUNTARY LEAVING
Discharge or leaving
Health or safety

Appeal Board Case 149,438

LAYOFF DUE TO PREGNANCY – REJECTION OF MATERNITY LEAVE

If claimant’s services are terminated under an employer’s policy requiring employees to cease working at a given stage of pregnancy, there is no voluntary leaving of employment even though the claimant declined to accept a maternity leave.

Referee’s Decision: The initial determinations of the local office, disqualifying claimant from receiving benefits effective October 5, 1968, on the ground that she voluntarily left her employment without good cause, and holding her ineligible to receive benefits effective October 7, 1968, on the ground that she was not available for employment, are overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a clerk-typist, was pregnant, with an expected date of confinement of January 1, 1969. She had been employed at a bank since July 1965 and was a permanent employee, entitled to participate in the employer’s profit sharing and stock-purchase plans and other employee fringe benefits. Claimant’s physician had reported that she was capable of working up to the probable date of her confinement. However, the employer’s policy was to require its employees to cease working after completing the sixth month of pregnancy. At such time, the employer’s rules provided that such employees could obtain a six months’ maternity leave covering the last three months of pregnancy and the first three months following delivery. If such leave were obtained, the employee’s rights in respect to all of the various participation plans and other fringe benefits and the employee’s seniority in service were preserved without diminution. Upon the completion of such leave, the employee would return to work at the same salary she was receiving at the start of her leave and, if possible, in the same position she had held; if such were not possible, then in a position commensurate with the prior one. Claimant was aware of her right to receive such leave, with all attendant job-protection provisions, but she decided not to apply for it and instead she resigned because she wanted to withdraw, for her own use, the moneys with which she was credited in the participation plans. Her last day of work was October 4, 1968.

Claimant filed a claim for benefits, effective October 7, 1968. During the period subsequent thereto, claimant’s search for employment was curtailed because of her physician’s advice not to use public transportation during the rush hours. When interviewed at the local office on October 21, 1968, she stated that she was relying primarily on the employment service office to find work for her and therefore, up to that date, she had not sought work independently. Again, for the period from October 28, 1968 through November 4, 1968, she advised the local office that she had made no independent search for employment. Whatever contacts she did make with prospective employers were predominantly by telephone and she invariably advised them of her pregnant condition.

Appeal Board Opinion and Decision: Notwithstanding that it is undisputed that claimant was compelled to leave her employment on October 4, 1968, by reason of the rules of the employer which required that she terminate her employment on October 4 because of the stage of her pregnancy, it is nevertheless contended on behalf of the Industrial Commissioner that she must be deemed to have voluntarily left her employment without good cause for the reason that she failed to apply for a leave of absence which would have assured her re-employment by the same employer when and if she was prepared to return to the labor market after the birth of her child. While the contention thus advanced may find some support in prior decisions of the Board, we have now reviewed the matter and conclude that the disqualification provided for in Section 593.1 of the Law has no application under the circumstances herein.

The pertinent language of Section 593.1 of the Law is:

"No days of total unemployment shall be deemed to occur after a claimant’s voluntary separation without good cause from his last employment prior to the filing of his claim***" (Underscoring supplied)

Obviously claimant’s separation from her employment on October 4, 1968 was, in no sense, voluntary. Her separation from the employment on that day was mandatory by virtue of the employer’s policy which required her to cease working when she had reached the sixth month of her pregnancy. It is, of course, true that claimant could have protected her status for subsequent re-employment by availing herself of the privilege of obtaining a leave of absence for a six month period so that she could be assured of re-employment at that time if she intended to remain in the labor market after the birth of her child. However, the Law does not provide for a disqualification due to a claimant’s failure to protect an employer-employee relationship but only for "separation***from***employment."

The test, which must be applied, therefore, is whether claimant’s failure to apply for the leave of absence was the cause for her separation from the employment. The answer is self-evident because, irrespective of any application she could have made for a leave of absence, the employer’s policy mandated the termination of her employment on October 4, 1968. Thus, the conclusion is compelled that her separation from her last employment prior to the filing of her claim was entirely involuntary.

If claimant fails to obtain any employment prior to the time when the leave of absence which she could have obtained would expire and her failure to apply for the leave results in her inability to obtain rehire by her last employer when and if she is prepared to return to the labor market, after the birth of her child, it would then follow that her separation from employment at that time would be the result of her voluntary act in having failed to protect the employer-employee relationship so as to assure herself of re-employment at that time. However, that is not the issue before us. We are concerned solely with whether or not claimant’s unemployment in the period here at issue, prior to the birth of her expected child, is the result of her voluntary separation from the employment. Applying such tests were are persuaded to the conclusion that claimant's’ unemployment in the period with which we are concerned results solely from a lay-off precipitated by the enforcement of the employer's rules.

It thus becomes necessary to determine whether or not claimant was available for employment during the period for which she claimed benefits. An analysis of the proof adduced herein compels the conclusion that claimant failed to establish her availability for employment throughout the period in issue because she failed to demonstrate the diligence expected of a person who is genuinely desirous of becoming re-employed, especially in view of the limited time during which she could have continued to work before the birth of her child. Her job search appears to be mere token in nature and completely inadequate in scope and with respect to the methods she used to learn of possible job opportunities.

The initial determination of the local office disqualifying the claimant for having voluntarily left her employment without good cause is overruled.

The initial determination of the local office ruling claimant ineligible on the ground that she was unavailable for employment is sustained.

The decision of the referee is modified accordingly, and as so modified, is affirmed. (April 25, 1969)"

NEW YORK UNEMPLOYMENT INSURANCE - PREGNANCY

This is an issue that arises frequently and is especially relevant in the recent political discussions on working and non-working mothers.

The DOL first begins it's discussion with this cited case:

"A-750-1840
Index 1695-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
October 6, 1977

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Pregnancy
Appeal Board Decision 246,566


CLAIM BEFORE CHILDBIRTH

A claimant who, solely because of pregnancy, voluntarily leaves employment not harmful to her health, is subject to disqualification for voluntary quit upon filing before childbirth, since such filing negates any intent to withdraw from the labor market.

Referee decision: The revised initial determination of the local office holding the claimant eligible to receive benefits effective August 2, 1976 without any disqualifying conditions, is sustained.

Appealed by: Employer

Findings of fact: The claimant worked for a manufacturer as a secretary from June 25, 1975 until July 30, 1976. She requested and was granted a maternity leave from August 2, 1976 until February 1, 1977. She filed a claim for benefits effective August 2, 1976. She was capable of working and wasn't advised by a doctor to leave her job. The employer had continuing work. available for her. It did not require her to take a leave of absence because of pregnancy.

Opinion: The evidence establishes that the claimant left her job while continuing work was available for her. Her immediate filing of her claim for benefits negated any intent to withdraw from the labor market because of pregnancy. Absent such intent, her taking leave was for a personal reason which is not compelling under the Law. Accordingly, we hold that she voluntarily left her employment without good cause.

Decision: The initial determination of the local office is overruled.

The employer's objection is sustained. The claimant is disqualified from receiving benefits effective July 31, 1976 because she voluntarily left her employment without good cause. This disqualification remains in effect until she has subsequently worked in employment on not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and the remuneration therefrom will not count.

The decision of the referee is reversed. (July 21, 1977)

COMMENTS

1. In this case the Appeal Board noted that claimant's employer did not require, and her doctor did not advise that she stop work. The Board held that a disqualification for voluntary quit applied even though claimant had requested and was granted a maternity leave."

UNEMPLOYMENT INSURANCE - PREGNANCY

I have a hearing today where the issue is whether the Claimant, who was pregnant and delivered birth, voluntary separated after delivery, as the Employer claims. The Claimant claims the job was terminated because of the pregnancy. In this type of case, one must not just research the Appeals Board decisions but also the Federal and State laws regarding pregnancy discrimination as well as the Federal Medical Leave Act and advise the Claimant to consult with the appropriate agencies and with specialized counsel to consider discrimination claims.

UNEMPLOYMENT INSURANCE - PREGNANCY

I will be having this issue raised on an appeal to the Appeals Board but this is the rule according to the Appeal Board website:

"Federal and state laws prohibit the denial of benefits to any claimant because of pregnancy. Pregnant claimants are eligible for benefits according to the same rules that apply to all other claimants. If you are ready, willing and able to work, and are actively searching for work, the fact of your pregnancy has no bearing on your collecting benefits. There is no requirement that you disclose your pregnancy unless it affects your ability to perform work in your usual occupations. If your health prevents you from working in your normal occupation, you must inform the Telephone Claims Center.

The Telephone Claims Center may not ask you, on its own, if you are pregnant. If you are asked, you may refuse to answer. However, if your employer tells the Telephone Claims Center that you quit, took a leave of absence, or were fired, because of pregnancy, the Telephone Claims Center may verify that information with you. If you left your last job voluntarily, even though you were physically able to continue working, you may be ineligible for benefits.

A federal court decree prohibits the Unemployment Insurance Division from engaging in discrimination on the basis of pregnancy."