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The 9th U.S. Circuit Court of Appeals Sept. 14 barred a pregnant woman from getting back pay for the period of time after she elected to stay home with her child, even though she had won a suit for pregnancy discrimination against her former employer. The plaintiff “failed to show that her diminished income after the date was not ‘voluntary’ and was thus an injury for which she would need to be ‘made whole,’” wrote Judge Diarmuid O’Scannlain for the unanimous panel. Rebecca Ann Caudle was a salesperson at Arizona’s Bristow Optical Co. when she was fired eight months into her pregnancy for what the company says was poor sales performance. After giving birth, Caudle looked for work, but without success. Six months later, Caudle and her fianc� decided it would be in the infant’s best interest that she stay home. Meanwhile, Caudle sued and won for pregnancy discrimination in federal district court in Arizona, but that court ruled Caudle’s voluntary decision to stay home meant she was not entitled to damages from her former employer after she withdrew from the workforce. Caudle’s attorneys appealed, contending that she was entitled to damages for the period after she decided to become a full-time mother. The 9th Circuit in Caudle v. Bristow Optical Co. held that the district court did not err by dismissing Caudle’s claims for the period of time after she decided to stay home. “Caudle never alleged that her decision to withdraw from the workforce in September 1995 was in any way affected by Bristow’s discriminatory termination of her employment,” O’Scannlain wrote. Judges Susan Graber and William Fletcher concurred. Tucson attorney John Gabroy, who represented Caudle, took a different view. “In my judgment the 9th Circuit went out of its way to assist the company,” Gabroy said. “What they say is there is no connection between her illegal termination and her decision to stay at home with the child, not withstanding her testimony to return to the company two weeks” after her pregnancy. “It seems like a stretch to me,” he said. Phoenix’s John Ausdemore, Bristow co-counsel, said he was pleased the court upheld the district court’s ruling. “She withdrew from the workforce voluntarily, regardless of her allegations,” he said. Other defense attorneys said wrongful termination cases in which a fired employee decides to stop looking for work are rare. “Seldom is it so clear that one stops looking,” said Richard Rahm, an employment associate at Orrick, Herrington & Sutcliffe. “Usually it’s a case where one gets discouraged. [So] what you end up arguing is that the person’s effort is not sufficient.”

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