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Eighth Circuit Dismisses Bias Claims Of Worker Told to Go Be With Her Babies

Monday, March 17, 2014
By Patrick Dorrian

March 13 --A loss-mitigation specialist for Nationwide Mutual Insurance Co. in Iowa didn't show that mistreatment she received on the day she returned to work from maternity leave amounted to a constructive discharge under federal or state law, the U.S. Court of Appeals for the Eighth Circuit held March 13 (Ames v. Nationwide Mut. Ins. Co., 2014 BL 68253, 8th Cir., No. 12-3780, 3/13/14).

The decision affirms summary judgment against former Nationwide employee Angela Ames on her sex and pregnancy discrimination claims under Title VII of the 1964 Civil Rights Act and the Iowa Civil Rights Act.

Ames alleged that upon her return to work following the birth of her second child she was denied access to a lactation room, informed that she only had two weeks to catch up on her work and told to “go home to be with your babies” by her department head, who then dictated what Ames should say in her resignation letter.

But to establish constructive discharge under Title VII and the ICRA, Judge Roger L. Wollman said, a worker must show that her employer's actions were designed or intended to compel her to resign. Ames didn't make that showing, he found.

Proof Doesn't Show Constructive Discharge
The court found to the contrary that Nationwide made repeated efforts to accommodate Ames, including by granting her an extra week of maternity leave after her Family and Medical Leave Act leave expired.

In addition, the court said, Ames only was denied “immediate” access to the company's lactation rooms because she needed a badge to gain admittance and she hadn't submitted the necessary paperwork. The need to keep current with work assignments was a requirement imposed by Nationwide on all loss-mitigation specialists and nursing mothers, the court found.

Department head Karla Neel's comment that Ames should go home to her babies likewise wouldn't support a finding of constructive discharge, the court ruled, because Ames left work immediately afterward, without complaining and giving Nationwide a chance to address her complaint.

Wollman rejected Ames's call for the court to use an “alternative” constructive discharge standard recognized by the Seventh Circuit. He also found that she waived an actual discharge theory by not adequately raising it with the district court.

Put on Bed Rest by Doctor
Ames joined Nationwide as a loss-mitigation specialist in October 2008. Timely completion of work is central to or “a high priority” of the job, the court said.

Ames took eight weeks of maternity leave following the birth of her first child May 2, 2009. She learned she was pregnant with her second child in October 2009 and her doctor put her on bed rest in April 2010 because of complications with her pregnancy.

According to Ames, when she discussed her bed rest with Neel, the loss-mitigation department head rolled her eyes and said she didn't go on bed rest in connection with any of her pregnancies. Ames also alleged that her immediate supervisor, Brian Brinks, told co-workers that he teased Ames about taking just one week of maternity leave, because the department was too busy for her to take off for a longer period.

Ames gave birth to her second child prematurely May 18, 2010, and Nationwide initially informed her that her FMLA maternity leave was due to expire Aug. 2, 2010. However, Neel called Ames June 16, 2010, to say there had been a mistake and that Ames's FMLA leave actually would expire July 12, 2010.

Neel allegedly also told Ames she could take unpaid leave until August 2010, but added that doing so would raise “red flags” that Ames might want to avoid. Neel said they needed to fix a mutually agreeable return date for Ames and that Ames could take an additional week of maternity leave.

Events All Occurred on Day of Return
Ames returned to work July 19, 2010, and she asked if she could use Nationwide's lactation rooms, because her two-month-old son was breast-feeding every three hours and more than three hours had passed since her son had last nursed. Neel allegedly replied that providing access to the lactation rooms wasn't her responsibility.

After being directed to the company nurse, Ames learned that under Nationwide policy employees are granted access to lactation rooms only after completing paperwork to obtain a badge, which takes three days to process. Ames wasn't previously aware of the badge requirement even though she had spoken to a Nationwide disability case manager before returning to work and had asked where she could express milk when she returned. The lactation policy was available to employees on Nationwide's intranet, the court recounted.

The company nurse asked security to grant Ames access to the lactation rooms as soon as possible and said Ames could use a wellness room in the meantime. However, the wellness room was occupied at the time.

While she was waiting for the wellness room to open up, Ames met with Brinks and learned that none of her work had been completed while she was on maternity leave. Brinks told her that she had two weeks to complete the backlog and that she would need to work overtime to do so. If Ames failed to catch up, Brinks said, she would be disciplined.

Ames then returned to Neel's office to again seek help in finding a place to lactate. Neel repeated that she was unable to help, and the department head testified that Ames was visibly upset and in tears.

According to Ames, Neel then handed her a piece of paper and a pen and stated, “You know, I think it's best that you go home to be with your babies.” Neel allegedly dictated to Ames what to write on the paper to submit her resignation.

Only One Adverse Act Claimed
Ames sued Nationwide, a related company and Neel under Title VII, as amended by the Pregnancy Discrimination Act, and the ICRA, alleging sex and pregnancy discrimination. The U.S. District Court for the Southern District of Iowa granted summary judgment in favor of the defendants and Ames appealed.

The Eighth Circuit said Ames argued her claims under both the direct evidence and indirect evidence methods of proof. However, the court held that under either theory she needed to establish that she experienced an adverse employment action as a result of Nationwide's alleged bias.

Wollman said the only adverse act Ames preserved for appeal was that the mistreatments she received on the day she returned from maternity leave amounted to a constructive discharge for purposes of Title VII and the ICRA. Noting that the same standard applied under both laws, Wollman rejected Ames's argument.

To prove constructive discharge, the court said, a worker must show that her employer deliberately created intolerable working conditions for the employee with the intention of forcing her to quit. In addition, the employee must raise and provide a reasonable opportunity for the employer to resolve any problems before quitting, the court said.

Company Didn't Compel Resignation
The court ruled that the numerous incidents and circumstances Ames cited as justifying her decision to submit her resignation and leave Nationwide's offices on the same day she returned from maternity leave didn't support a finding of constructive discharge.

To the contrary, “Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit,” the court wrote.

It said Nationwide might have initially miscalculated Ames's remaining FMLA leave, but “it made efforts to ameliorate the impact of its mistake” by offering her an additional week of maternity leave. As a result, Ames still had more than 30 days to prepare for her return to work, the court said.

Ames may have been denied immediate access to a lactation room, but that was only because she hadn't completed the necessary paperwork to receive an access badge, the court found. It said “[e]very nursing mother was required to complete the same paperwork and was subjected to the same three-day waiting period” and that the company nurse made a special effort to try to expedite the badge-approval process and to find somewhere for Ames to lactate in the meantime.

The court also found that Brinks's expectation that Ames should be required to catch up with her work within two weeks wasn't unreasonable. It said “he expected all of his employees to keep their work current, given the high priority that timely work-completion is accorded within the loss-mitigation department.”

All nursing mothers and loss-mitigation specialists were treated the same under Nationwide's employment policies, so it couldn't be found that the company intended to force Ames to resign by enforcing those policies against her, Wollman said.

Neel's alleged comment prior to dictating Ames's resignation letter likewise didn't show that she was forced to quit, the judge added. Ames never gave Nationwide a chance to cure the working conditions that she claimed were intolerable.

“By not attempting to return to [the company nurse's] office to determine the availability of a wellness room or to contact human resources, Ames acted unreasonably and failed to provide Nationwide with the necessary opportunity to remedy the problem she was experiencing,” Wollman wrote.

Ames cited a 2002 Seventh Circuit decision for the proposition that an alternative constructive discharge analysis may be used in non-hostile work environment cases. But Wollman found that it wasn't “open to us as a panel“ to deviate from the constructive discharge standard the Eighth Circuit has “consistently applied” in cases that don't assert a hostile environment claim.

Judges Steven M. Colloton and Raymond W. Gruender joined the opinion.

Paige Fiedler, Emily E. McCarty and Brooke Timmer of Fiedler & Timmer in Urbandale, Iowa, represented Ames. Julie T. Bittner and Kerrie M. Murphy in West Des Moines, Iowa, Louis B. Butler in Milwaukee and Dinita L. James in Phoenix, all of Gonzalez & Saggio, represented Nationwide and the other defendants. Christine J. Back and Eric A. Harrington of the Equal Employment Opportunity Commission in Washington represented the EEOC as amicus curiae.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com


Text of the opinion is available at http://www.bloomberglaw.com/public/document/Angela_Ames_v_Nationwide_Mutual_Insurance_Co_et_al_Docket_No_1203.

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