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Best Ohio Employment Lawyer Response: Can I sue for both race discrimination and FMLA retaliation at the same time? What are my rights to pump breast milk at work after I return from maternity leave; and do I have to tell my manager every time I take a break to express milk? Can I sue for wrongful termination and gender discrimination if I was fired today for doing the same thing a male employee did who got no disciplinary action or reprimand?

Sometimes employment discrimination cases are straight forward. An evil boss or manager calls a black employee the n-word and fires him. It is clearly based on race/color discrimination. Then there are times when a less qualified man who has been with the company only three months is promoted over a woman with higher levels of training or education that has been with the company for five years. Gender/sex discrimination. Or, when the owner of the company tells the 57-year old that he needs young blood that will be around for the long haul, and fires her, only to replace her with a 23-year-old woman fresh out of college. Bingo, age discrimination.

As our employment law lawyers regularly blog about, Title VII of the Civil Rights Act of 1964 is a federal law that makes in against the law for employers with 15 or more employees to discriminate against employees or applicants based on their sex/gender, race, color, national origin, and religion. (See Religious Discrimination: Abercrombie Violates Title VII, AgainCan I Sue My Boss Personally For Discrimination?; My Company Doesn’t Allow Women To Be Promoted!; Can My Job Give In To Patients’ No Blacks Demands). The Americans with Disabilities Act (“ADA”) adds similar protection for employees with a disability; and the Age Discrimination in Employment Act (“ADEA”) likewise protect employees and applicants who are over the age of 40 based on their age. (Can I Bring My Dog To Work As An ADA Accommodation?; Do I Have A Disability Discrimination Case?; My Employer Will Not Promote Me Because Of My Age. I Need The Top Employment Lawyer In Ohio!). Under state law, Ohio Revised Code § 4112.01 similarly makes it unlawful for employers with four or more employees from engaging discriminatory employment actions based on the protected class.

Under these laws, an employer cannot take what is called an adverse employment action against an employee because of a protected class characteristic. In order for an act by your employer to be considered an adverse employment action, such act must cause a materially adverse change in the terms and conditions of employment; and to be considered materially adverse, the change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Courts have held that this includes, hiring and firing; differences in pay rate, benefits, assignments, and classifications of employees; transferring, promoting, laying off and recalling employees; advertising and recruiting; training and testing; providing leaves and accommodations; and other significant terms and conditions of employment.

But, what happens when an employee falls into multiple protected classes and engaged in a variety of protected activity? How can an employee know what claim to bring against employer? Well, in those circumstances, our employment law attorneys typically recommend to bring all the possible discrimination and wrongful termination claims possible and sort everything out after the lawsuit has been filed. There are several reasons for this line of thinking. First, it is always easier to drop claims then to add them. Second, there is a lot of information about these claims that the employee will not have at the time of filing the lawsuit but can get later through discovery that may clarify the issues. Another reason is that by choosing not to initially bring a claim the statute of limitations, or time limit, for bring such claims may expire while discovery is still ongoing – which would mean that the employee would be prevented from bringing the claim if good evidence pops up in discovery. And, if the court elects to throw out certain claims, the more claims that you have in the lawsuit gives the employee a better chance to survive to reach a jury.

Today’s employment law lawyer blog example deals with exactly this type of situation. In this employment discrimination and wrongful termination case, the employee-plaintiff Serene Dudhi sued the employer-defendants Temple Health Oaks Lung Center (“Temple Health”) and Temple University Health System, Inc. (“TUHS”) asserting violations of Title VII, Pregnancy Discrimination Act of 1978 (“PDA”), the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 951 et seq., and the Family and Medical Leave Act (“FMLA”).

In April 2014, the employer-defendants hired Serene in the position of medical assistant at a location where she had already been working for a year and a half as a temporary employee. At that point, Serene was the only black or African-American employee at that location. Everything was fine until the middle of 2016, when that location was subject to a chance in management change. At that time, Karen Kirch, who is a white female, became Serene’s boss. Shortly thereafter, in February 2017, Serene sought and took approved FMLA leave so that she could give birth and have maternity time off. (see Can My Job Make Me Work From Home During My Maternity Leave; Top Pregnancy Discrimination Lawyer Reply: Do I Get Paid On Maternity Leave?).

In May 2017, Serene returned from her FMLA leave and told Kirch and the office manager that she would require a break during the day and a private space to express milk as part of breastfeeding her newborn baby. As our pregnancy discrimination lawyers have blogged about before, employers are required to provide lactating mothers with both time and a private location (not a bathroom) to express milk, but employees do not have a cause of action for money damages against an employer for failing to do so. Nonetheless, employers can be held liable for retaliating against women for making such requests or enforcing their legal rights to pump. (See Can My Employer Make Me Pump Milk In My Car?; Help! My Boss Makes Me Pump In A Bathroom!).

According to Serene’s wrongful termination and employment discrimination lawsuit, the employer-defendants stated that there no private area was available for her to pump breast milk. As a result, Serene was forced to pump wherever she could find space, including a temporary vacant office or her car. To make matters worse, Serene would be frequently interrupted by both male and female coworkers while pumping due to the lack of privacy. Amazing, these interruptions occurred even after Serene told the office manager know that she was taking a break to pump breast milk.

On June 29, 2017, Serene was working her shift with two other medical assistants. Serene told one of the medical assistants that she was taking a break to express milk. Again, confronted with no provided space to pump, Serene pumped in her car. When Serene got back into the building from pumping breast milk, she learned that the doctors had been trying to find her and one of the Caucasian medical assistants, who was a temporary employee.

According to the lawsuit, Kirch – acting on behalf of the employer defendants – used this opportunity to fire Serene. At the same time, according to the wrongful termination lawsuit, the employer-defendants did not fire or even otherwise reprimand or write-up the white medical assistant, who was also unable to be found. Amazingly, after also been missing, the white male temporary employee was given Serene’s permanent position upon the employer-defendants wrongfully firing her.

So now, on one hand, we have an employee in Serene that potentially falls into protected classes under race, national origin, gender, pregnancy, FMLA, and for opposing the employers’ refusal to provide her with a private place to pump breast milk. On the other hand, we have a white, American heritage, male, who obviously has never been pregnant, had not taken FMLA, and had not opposed pumping law infractions. Taking the best course of action, Serene and her employment lawyers filed a complaint containing claims based on all of the above; and as expected the employer-defendants moved to dismiss them all.

First, the United States District Court, E.D. Pennsylvania cleaned up some of the counts. Finding that pregnancy discrimination is simply of form of gender discrimination, the court dismissed the pregnancy discrimination claim. Given our employment discrimination attorneys’ experience, some courts prefer these claims separate while others will merge these together. In the end, Serene as the employee still has the same claims, but it is now in one count versus two. Thus, while a procedural win for the employer-defendants, this is a substantive win for the employee.

Next, the trial court flat out rejected the employer-defendants’ arguments to dismiss the race discrimination complaint: “the Caucasian medical assistant was absent during the same period of time Dudhi was in her car. Upon Dudhi’s return, she learned that the doctors were looking for both her and the Caucasian medical assistant. Yet, only Dudhi, the African American lactating female, was fired by Kirch, while the Caucasian medical assistant was not. Thus, the Complaint clearly infers that Dudhi was treated less favorably than a similarly-situated employee because of her race.”

The court held that the exact same analysis applied to treating the male temporary employee better that Serene as a female. But, the employer-defendants also argued that the termination could not be based on Serene’s pump break because she did not specifically tell her boss about this particular pump break. The court rejected this argument:
Defendants, however, appear to intimate that in order to successfully establish that her employer knew she was pumping, Dudhi should be required to inform her supervisor each time she took a break. … We find Defendants’ interpretation of the law misses the mark and would place an undue burden on employees.  if unscheduled bathroom breaks were common or allowed, it should make no difference if employee was using restroom or breastfeeding…. Importantly, none of the cases cited by Defendants support such a proposition. Instead, they focus on the employer’s knowledge of a plaintiff’s particular characteristic. See, e.g.Geraci, 82 F.3d at 581Anthony v. Duff & Phelps Corp., No. 09-3918, 2010 WL 3222188, at *6 (E.D. Pa. Aug. 12, 2010) (“[E]ssential to her prima facie case is evidence that the person who decided to fire Plaintiff knew of her membership in a protected class.”).
Here, Dudhi clearly establishes that she informed Defendants of her status as someone who would need to express milk, a medical condition related to her pregnancy that can be considered a protected class under the PDA, upon her return from maternity leave. See Solomen, 183 F. Supp. 2d at 753–54 (citing Geraci, 82 F.3d at 581) (ensuring that pregnancy discrimination claims are brought by individuals who can reasonably claim to be affected by pregnancy, childbirth, or related medical conditions) … a practice that singles out lactation or breastfeeding for less favorable treatment … is facially sex-based. For example, it would violate Title VII for an employer to freely permit employees to use break time for personal reasons except to express breast milk.” … This is sufficient for Dudhi to make the case that Defendants’ were aware of her medical condition.

The court then tackled the FMLA claim finding that absent other evidence connecting the termination to the use of FMLA leave, too much time had passed to resume a causal connection to the employer-defendants termination of the employee: “The two-month gap between Dudhi’s return from FMLA leave and her termination is too long to establish an unduly suggestive temporal proximity and, without more, cannot establish the necessary causal connection to sustain her FMLA retaliation claim. See Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759 (3d Cir. 2009)(finding time period of two months was insufficient to show retaliatory causation). As Dudhi has failed to provide any further factual allegations that would raise an inference of retaliation or a “pattern of antagonism” due to her invocation of her right to FMLA leave, her claim cannot survive Defendants’ Motion to Dismiss.” Now, some courts will not dismiss based on two months; and a more detailed complaint further tying the termination to the use of FMLA might have avoided this conclusion – or maybe not with this court. But, it was still worth bringing the claim to find out.

Lastly, Temple University Health System argued that an employee can have only one employer and that it was not Serene’s employer. The court rejected this argument and held that a joint employment relationship was properly plead: “Under Title VII, a plaintiff may bring suit against her ‘employer, employment agency, labor organization, or [in some cases a] joint labor-management committee.’ Conroy v. City of Phila., 421 F. Supp. 2d 879, 888 (E.D. Pa. 2006) (alteration in original) (quoting 42 U.S.C. § 2000e-5). The defendant need not be the plaintiff’s actual or direct employer, so long as it exercises ‘such a degree and range of control over the plaintiff that it is the plaintiff’s de facto or indirect employer….’ See id. at 888–89 (quoting Tyrrell v. City of Scranton, 134 F. Supp. 2d 373, 380 (M.D. Pa. 2001)).”

Thus, while losing a small portion of the case, the employee gets to push ahead with discovery and toward trial. While an employer may try to claim a small victory, it is not. As long as the employee still has any claims left, he or she has options to get to the end goal. At the end of the day, the employee should not care whether he or she is awarded wrongful termination damages base on race or gender or national origin. The damages are the same. The accountability for the employer is the same. A win is a win.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


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