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In a ruling that puts a heavy burden on the plaintiff in a pregnancy discrimination suit, a federal judge has dismissed a case brought by a woman who claims she was harassed during her pregnancy and fired eight months after she returned to work. “A plaintiff who was not pregnant at or near the time she was terminated must demonstrate that the effects of her pregnancy continued to exist at the time she was terminated, either in actual fact or in the thoughts and actions of those responsible for firing her,” U.S. District Judge Anita B. Brody of the Eastern District of Pennsylvania wrote in Solomen v. Redwood Advisory Co. Brody found that such a plaintiff “must do more than show she was, past tense, pregnant.” And since the burden relates to one of the elements of the plaintiff’s prima facie case, Brody found that failure to muster such proof can be fatal to the claim. “When the employee is not pregnant at or around the time that she suffers the alleged adverse employment action, her membership in the protected class is less clear,” she wrote. Courts must strictly enforce the prima facie case burden “to ensure that pregnancy discrimination claims under Title VII are brought by the individuals who can reasonably claim to be affected by pregnancy, childbirth or related medical conditions,” Brody wrote. “A plaintiff who was not pregnant at or near the time of the adverse employment action has some additional burden in making out a prima facie case. Such a plaintiff must demonstrate at the prima facie stage, by introducing evidence sufficient to allow the case to go to a jury, that she was affected by pregnancy, childbirth or related medical conditions at the time of the adverse employment action,” Brody wrote. Brody found that Cheryl Solomen failed to meet this burden because she never claimed that the pregnancy continued to affect her medically, and her only evidence of animus toward her pregnancy related to comments made nearly a year before she was fired. As a result, Brody never reached Solomen’s claim that the reason offered for her firing was merely a pretext for pregnancy discrimination. Since Solomen failed to make out a prima facie case, Brody said, the burden never shifted to the employer to justify its actions. Solomen was hired in 1990 by Rouse & Associates to assist in managing the retail shopping area at the Shops at Liberty Place. She was supervised by Ricardo Dunston. In late 1992, she gave birth to her first child, took maternity leave and returned to work in January 1993. According to court papers, she claimed that while she was on maternity leave, Dunston attempted to replace her with an unmarried worker. In March 1993, Rouse & Associates lost its contract to manage the Shops at Liberty Place and its contract was taken over by defendant Redwood Advisory Co., a company founded by Dunston. All of the employees in the management office of Rouse & Associates were hired by Redwood in similar capacities, including Solomen. In early 1994, Solomen was promoted to office manager of the new Redwood office then being established at Philadelphia Airport. She was later transferred back to the Redwood office at the Shops at Liberty Place, where she became the office manager. In December 1996, Solomen told Dunston that she was pregnant. She gave birth in June 1997 and took maternity leave for three months, returning to her job at Redwood in September 1997. According to the suit, Dunston made several remarks to Solomen relating to her pregnancy just prior to her maternity leave. Solomen testified that he asked her: “Shouldn’t you get out of here? You look like you’re ready to pop,” and told her that, “I don’t want you to wobble around anymore.” She also claimed that Dunston gave her the “silent treatment” while she was pregnant, and asked other people to get things for him that she could have gotten. At the time Solomen was fired in May 1998, her office duties included maintaining files of slip-and-fall insurance claims against Redwood. One of the claims was filed by Solomen’s brother-in-law and sister, Richard and Barbara Saad. Solomen testified that after a meeting in which she and a few other Redwood employees discussed several slip-and-fall cases, she informed one of the company’s lawyers that she was related to Saad. The lawyer informed Dunston, who terminated Solomen’s employment several days later for failing to disclose that her brother-in-law was a claimant in one of the cases she was handling. Solomen filed suit under Title VII and the Pennsylvania Human Relations Act. Brody said that the Pregnancy Discrimination Act amended Title VII to add pregnant women as a protected class. But courts have long recognized that pregancy discrimination differs from other types of unlawful discrimination for several reasons, Brody noted. In Geraci v. Moody-Tottrup, International Inc., the 3rd Circuit held that courts should not presume employers are aware of pregnancies, but instead that plaintiffs carry the burden in their prima facie case of showing that the employer was aware. “The 3rd Circuit justified this addition to the prima facie case by explaining that, in this situation, it ‘no longer makes sense’ to presume discrimination solely from the facts alleged in the standard prima facie case,” Brody wrote. Brody found that “pregnancy also differs from most other protected personal attributes in that it is not immutable.” While some effects of pregnancy linger beyond the act of giving birth, Brody said, “at some point the female employee is no longer ‘affected by pregnancy, childbirth, or related medical conditions.’” In many pregnancy discrimination claims, Brody said, concerns about the plaintiff’s membership in the protected class do not arise because the employee “obviously suffered the adverse employment action during pregnancy, maternity leave, or shortly after returning to work.” But when the adverse employment action occurs long after the plaintiff gives birth, Brody found that the plaintiff must do more to make out a prima facie case. In Solomen’s case, Brody said, the evidence was simply lacking. After giving birth to her second child, Brody said, Solomen returned to work in September 1997 and was fired eight months later — more than 11 months after giving birth. Brody found that Solomen would have a valid claim if the alleged harassment by her supervisors that began during her pregnancy had “continued with some regularity” until the day she was fired. But Solomen had no such claim, Brody said, since her strongest evidence related to comments Dunston allegedly made prior to her maternity leave. “These statements are reprehensible if true and would tend to demonstrate Dunston’s discriminatory intent if uttered in close proximity to his decision to fire Solomen,” Brody wrote. “However, the statements were made nearly one year before Duston fired Solomen and she had adduced no evidence of any similar statements during the eight and a half months she worked at Redwood after returning from maternity leave.” Solomen was represented by attorney Samuel A. Dion of Dion-Goldberger. Redwood was represented by attorneys Melissa E. Lea and David L. Gollin of Wolf Block Schorr & Solis-Cohen.

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