Bob Evans Discriminated Against Pregnant Server, Judge Rules

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By Patrick Dorrian

A Bob Evans restaurant in suburban Pittsburgh broke the law when it removed a pregnant server from its automatic scheduling system even though she wanted to continue working until her due date, a federal court ruled ( EEOC v. Bob Evans Farms, LLC , 2017 BL 288206, W.D. Pa., No. 2:15-cv-1237, 8/17/17 ).

In a rare pretrial win for a plaintiff in an employment discrimination case, the court found Aug. 17 that the EEOC proved its case by pointing to evidence that the restaurant’s general manager took Hayley Nadalin off the schedule because he believed the birth of her child and need for leave were imminent. That shows unlawful pregnancy bias “directly and without equivocation,” the court wrote.

An express goal of the 1978 Pregnancy Discrimination Act amendment to federal anti-bias law “was to make it unlawful to force pregnant women who were not unable to work to take leave that they had not requested,” Judge Mark R. Hornak of the U.S. District Court for the Western District of Pennsylvania said. The Equal Employment Opportunity Commission showed that’s what happened to Nadalin, he said, granting judgment to the agency on the issue of liability.

The EEOC and Bob Evans both declined to comment Aug. 18 when contacted by Bloomberg BNA, noting that the case remains pending.

Essentially Converted to ‘Fill-In’ Status

Nadalin hadn’t needed or taken leave earlier prior to the birth of her first child, the court noted. That General Manager Jay Moreau told Nadalin that although he was taking her out of the company’s computer-based scheduling system, she could continue to call in to see if shifts were available didn’t mean Nadalin suffered no adverse consequences from Moreau’s action, the court found.

Nadalin experienced more than “mere inconvenience” in the change of her work status, the court said. Rather, being removed from the automatic, computer-generated schedule effectively converted her from a regularly scheduled part-time worker to a “fill-in” worker, it said.

Moreover, forcing Nadalin to call in for shifts was akin to requiring her to call to prove her availability, the court added. “Expecting her to call-in to obtain work in order to demonstrate that she was able to work despite her pregnancy was itself a discriminatory adverse action,” it wrote.

The company’s contention that Moreau’s decision to remove Nadalin from the schedule was really motivated by a concern that the restaurant not be caught short-staffed due to the unpredictability of when Nadalin might need leave “simply doesn’t hold water,” Hornak said. The manager and Nadalin never discussed her due date and his perception that she might need leave imminently was based entirely on her pregnancy, the judge concluded.

Bob Evans was wrong in its contention that it was entitled to summary judgment on the basis that the EEOC didn’t show Moreau was driven by an anti-pregnancy animus, the court ruled. Evidence of animus is helpful to a job bias claim, but proof of discriminatory intent is all that’s required, it said. The uncontroverted evidence that Moreau acted on presumptions about Nadalin’s pregnancy and childbirth established the requisite intent, the court found.

Punitive Damages Still on Table

Although a trial isn’t necessary to determine whether Bob Evans discriminated against Nadalin, a jury needs to decide what the company must pay to compensate her for the unlawful treatment, Hornak ruled. And the issue of punitive damages is something the jury must consider, he said, rejecting Bob Evans’ argument that it acted in good faith and thus shouldn’t be subject to a potentially costly punitive award.

Hornak noted that whether a showing of good-faith efforts to comply with federal anti-bias law is an affirmative defense that employers bear the burden of proving hasn’t been decided by the U.S. Court of Appeals for the Third Circuit, whose rulings are binding on federal district court judges in Pennsylvania. But he decided that employers are required to affirmatively prove a good-faith defense, citing the standard adopted by the Ninth Circuit and others.

Because a reasonable jury could find that Bob Evans acted with malice toward Nadalin, or with reckless disregard for her federally protected right to be free from work-related pregnancy bias, the question of punitive damages must go forward, the court ruled.

EEOC attorneys in Pittsburgh represented the commission. Attorneys with Vorys, Sater, Seymour & Pease LLP represented Bob Evans.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Chris Opfer at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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