Question: Asmo v. Keane, Inc. 471 F.3d 588 (6th Cir. 2006)

Employee was terminated shortly after she told her supervisor she was pregnant with twins. The court found sufficient evidence that the basis of the termination was because of the employee's pregnancy with twins, in violation of the Pregnancy Discrimination Act.

Cudahy , J.

Asmo worked out of a home office in Columbus, Ohio. She reported to Keane's Director of Corporate Recruiting, Scott Santoro, at Keane's corporate headquarters in Boston, Massachusetts. After the terrorist attacks in the United States on September 11, 2001, the IT industry suffered a particularly significant slowdown in the context of a general slowdown of the American economy. Keane was affected by this slowdown, and it experienced a significant downturn in its business after September 11. September 11, 2001 was also the day that Asmo learned she was pregnant with twins.

Subsequently, sometime in October 2001, Asmo informed the entire SG&A team of her pregnancy during a conference call. Asmo testified that all of the SG&A recruiters congratulated her, but Santoro remained silent during the congratulations and then tried to quickly change the conversation back to business matters. In November 2001, Keane's Vice President of Human Resources, Renee Southard, directed Santoro to reduce the number of recruiters on his staff. Santoro decided to consider three main factors in determining which of the five SG&A recruiters would be laid off:

(1) relative tenure;

(2) the number of hires each SG&A Recruiter had made in 2001; and

(3) the forecasted hiring needs for 2002. According to Keane,

Santoro selected Asmo for layoff based on the three factors discussed above. Asmo had the least tenure, the lowest number of 2001 hires and Mr. Gindele predicted little need for new SG&A hiring in the Midwest region in 2002. On December 4, 2001, Santoro informed Asmo that she was being laid off. On February 20, 2003, Asmo filed her complaint in the district court, alleging that she had been unlawfully terminated from employment. The district court found that Asmo was unable to prove a prima facie case of discrimination. We disagree. In order to show a prima facie case of pregnancy discrimination under Title VII, a plaintiff must show that "

(1) she was pregnant,

(2) she was qualified for her job,

(3) she was subjected to an adverse employment decision, and

(4) there is a nexus between her pregnancy and the adverse employment decision."

Here, Keane concedes that Asmo has proven the first three elements. However, Keane argues Asmo was not able to meet the fourth step (a nexus) in establishing a prima facie case. Asmo met the nexus requirement in part by establishing temporal proximity between Keane's learning of her pregnancy and her termination. Temporal proximity can establish a causal connection between the protected activity and the unlawful employment action in the retaliation context. Temporal proximity between the employer's learning of an employee's pregnancy and an adverse employment action taken with respect to that employee likewise may be "indirect evidence" in support of an inference of pregnancy discrimination. In early December 2001, Keane decided to terminate Asmo's employment.

This was within two months of October 2001, when Santoro learned that Asmo was pregnant. This temporal proximity is sufficient to establish a link between Asmo's pregnancy and her termination for the purposes of a prima facie case. For these reasons, we find that the district court erred in holding that Asmo needed to present evidence beyond a nexus between her pregnancy and the adverse employment decision and we find that Asmo did establish a prima facie case. The second and more difficult question here is whether Asmo presented sufficient evidence to show that the reasons Keane gave for her termination were pretextual. The district court found that Asmo failed to provide such evidence after Keane gave a legitimate nondiscriminatory reason for terminating Asmo's employment. While this issue is not clear-cut, we ultimately disagree with the district court and find that under summary judgment standards, there was sufficient evidence to show pretext. The most significant evidence showing pretext is Santoro's conduct after Asmo announced she was pregnant with twins. In October 2001, Asmo, Santoro and the entire SG&A team were participating in a conference call, during which Asmo informed the team that she was pregnant with twins.

The news was met with congratulations from all her colleagues except Santoro, who did not comment and then "simply moved on to the next business topic in the conference call." Santoro's initial silence is suspect. Pregnancies are usually met with congratulatory words, even in professional settings. When people work together they develop relationships beyond the realm of employment, and Asmo's pregnancy was particularly noteworthy given that she was pregnant with twins, a fairly unusual (and overwhelming) occurrence. Additionally, though Santoro conducted weekly conference calls with the recruiters, he did not mention Asmo's pregnancy again until December 4, 2001, the day he terminated Asmo. Asmo's job involved considerable travel (forty to sixty percent of her time), something an employer might be concerned about given the announcement that Asmo was going to have twins, which most people know is a tremendous responsibility.

Yet Santoro did not talk with Asmo about how she planned to deal with the impending arrival of her twins and/or what the company could do to help accommodate her. Instead, he did not mention her pregnancy at all. He also did not ask any of his colleagues to discuss Asmo's pregnancy with her, or to provide her with information about how the company accommodates parents. Given the combination of Asmo's job being particularly demanding of time due to travel and her announcement of not just a pregnancy, but a pregnancy of twins, Santoro's silence could be interpreted as discriminatory animus. Keane's argument that there are other possible explanations for Santoro's silence is correct and well-taken. However, in the context of summary judgment, where we examine the evidence in the light most favorable to the non-moving party, we believe that Asmo's argument is sufficient to call into question Santoro's motives.

Santoro's silence is evidence of pretext because it can be read as speculation regarding the impact of Asmo's pregnancy on her work, and an employer's speculation or assumption about how an employee's pregnancy will interfere with her job can constitute evidence of discriminatory animus. While the temporal proximity between Asmo informing Keane of her pregnancy with twins and Keane's decision to terminate her cannot alone prove pretext temporal proximity can be used as "indirect evidence" to support an employee's claim of pretext. All of this evidence taken together, considered under a summary judgment standard where we evaluate all evidence in the light most favorable to Asmo, indicates that Keane's stated reasons for terminating Asmo were pretext for discrimination. REVERSE the district court's grant of summary judgment for Keane and REMAND.

1. Do you agree with the court's assessment of the evidence? Why/why not?

2. If the situation is as the court determined it to be, do you believe that Santoro was justified in his beliefs about Asmo not being able to do her job because she was pregnant with twins? Explain.

3. If you were Asmo's supervisor, how would you have handled this situation?