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The U.S. Court of Appeals for the 7th Circuit has revived an employment discrimination case brought by a former marketing director at SmithAmundsen against the firm and two executives. On Nov. 9, a unanimous panel reversed rulings made by Northern District of Illinois Judge John Darrah. Darrah had found that statements allegedly made by the firm’s human resources director were not admissible. Based on that finding, he granted the defendants’ summary judgment motion on Laura Makowski’s claims under the Pregnancy Discrimination Act and the Family Medical Leave Act. Makowski was hired as marketing director in January 2005. She started taking Family Medical Leave Act leave in November 2007, just before her child was born and continued after the birth. During the leave, Makowski was told that her position was eliminated due to an organizational restructuring. According to the 7th Circuit ruling, Amundsen and DeLargy terminated Makowski’s employment over the telephone in February 2008 and told her there was an organizational restructuring. Makowski sued the firm, chairman and chief executive officer Glen Amundsen and chief operating officer Michael DeLargy in December 2008. She alleged pregnancy discrimination under Title VII of the Civil Rights Act of 1964, interference with her rights under the Family Medical Leave Act, retaliation under the FMLA and a violation of her right to a bonus under the FMLA. Darrah granted summary judgment for the defendants in September 2010. Makowski’s appeal challenged the district court’s summary judgment ruling for the defendants on the pregnancy discrimination claim and the FMLA interference and retaliation claims. It also challenged Darrah’s evidentiary ruling denying the admission of alleged statements by Human Resources Director Molly O’Gara because they were inadmissible hearsay. Chief Judge Richard Young of the Southern District of Indiana, who sat by designation, wrote the opinion in Makowski v. SmithAmundsen LLC, which was joined by 7th Circuit judges Ilana Diamond Rovner and Ann Claire Williams. On the day that her employment was terminated, Makowski went to the firm to get her belongings. While she was there, Makowski has alleged, O’Gara told her that she “was let go because of the fact that [Makowski] was pregnant and…took medical leave.” O’Gara also allegedly stated that she “believed that there were [sic] a group of people that were discriminated against because they were pregnant or because they took medical leave” and “it might be a good idea to speak with a lawyer [as there] might be a possibility of a class action.” The district court ruled that O’Gara’s statements were inadmissible because she was not involved in the decision-making process that led to the termination of Makowski’s job. Concerning the admission of O’Gara’s statements, Young wrote that “the issue is whether O’Gara’s statements concerned a matter within the scope of her employment.” He said that, according to 7th Circuit case law, particularly its 2007 ruling in Simple v. Walgreen Co., “involvement in the process leading up to the employment action at issue is enough to make an employee’s statement an admission.” The Simple court followed the reasoning of the 3d Circuit in its 2007 case, Marra v. Philadelphia Housing Authority. “O’Gara’s statements fit squarely within the scope of her employment,” Young concluded. Young said that the employment action at issue in this case was not the decision made at the firm’s executive committee retreat to terminate Makowski, “but rather her actual termination.” Although O’Gara was not involved in Makowski’s termination, “she was involved in the decision-making process leading up to that action due to her consultation with outside counsel regarding the termination and her job duties, which include ensuring the Firm’s compliance with federal anti-discrimination laws. Accordingly, O’Gara’s statements fall within the scope of her employment and thus are admissible as non-hearsay under [the applicable Federal Rules of Evidence rule].” Moving to the pregnancy discrimination claim, Young wrote that O’Gara’s alleged statements to Makowski “provide direct evidence that pregnancy was a motivating factor in Makowski’s discharge.” Although O’Gara disavows the statements, that’s an issue for the jury to decide, and Makowski has additional circumstantial evidence, Young wrote. According to Young, the district court excluded Makowski’s additional facts but did not explain why in a ruling. “However, even with the exclusion of the circumstantial evidence, O’Gara’s statements alone are direct evidence of a discriminatory intent,” Young said. O’Gara’s statements also underpin the 7th Circuit’s reversal of the district court’s ruling on Makowski’s FMLA retaliation claim. Although the district court found that Makowski had no evidence of a direct connection between her statutorily protected activity and her termination without O’Gara’s statements, “O’Gara’s statements are now admitted and provide the necessary causal connection. Makowski has sufficiently asserted a charge of retaliation under the FMLA.” Young also concluded that the admission of O’Gara’s statements requires the reversal of the district court’s summary judgment rejection of Makowski’s FMLA interference claim. “Again, O’Gara’s previously excluded statements to Makowski that Makowski was let go because she took medical leave provide a possible explanation for the termination decision that a jury could very well choose to believe,” Young wrote. Makowski’s lawyer, Luke DeGrand of Chicago’s DeGrand & Wolfe, did not respond to requests for comment. Jennifer Naber, a partner at Chicago’s Laner, Muchin, Dombrow, Becker, Levin and Tominberg who represented SmithAmundsen and the two individual defendants at the firm, also did not respond. Sheri Qualters can be contacted at [email protected].

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