United States District Court, D. Minnesota
JOAN N. ERICKSEN, District Judge.
Plaintiff Khadara-Ayan Yousuf, a U.S. citizen and a Muslim woman of Somali national origin, sued her former employer, Defendant Fairview Health Services, for discrimination based on race, sex, pregnancy, religion, and national origin in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981. Fairview moved for summary judgment. In defending that motion, Yousuf was represented by Nichols Kaster, PLLP. In an October 24, 2014 Order, the Court granted Fairview's motion and dismissed Yousuf's claims. The Court dismissed Yousuf's interrelated sex and pregnancy discrimination claims because there was no evidence Yousuf's supervisors were aware of her pregnancy. Yousuf filed an appeal pro se. The Eighth Circuit Court of Appeals vacated with respect to the pregnancy-related claims and remanded for this Court "to consider in the first instance whether the summary judgment record presented sufficient evidence from which a reasonable inference could be drawn that FHS discriminated against Yousuf based on her capacity to become pregnant." For the reasons stated below, the Court finds that the record does not support a reasonable inference of discrimination based on Yousuf's capacity to become pregnant.
The facts are recounted in the October 24 Order, and the Court provides only a brief summary here. Yousuf worked as a lab technician at Fairview from 2005 until she was terminated in February 2009. In October 2008, Yousuf informed Fairview that her husband had been injured in a car accident in Belgium. Fairview, pursuant to the Family Medical Leave Act (FMLA), approved a twelve-week leave of absence for Yousuf through Monday, January 19, 2009. Yousuf left for Europe on October 27. Yousuf alleges she requested and received an extension until February 16 from Cindy Ness, the scheduling coordinator for the lab. Yousuf does not allege she discussed the extension with Chris Senn or Priscilla Bormann, the decision makers who terminated Yousuf. Fairview scheduled Yousuf to work several shifts from January 22 through February 15. It is undisputed that Yousuf missed these shifts and did not return to Minnesota until February 16. Fairview terminated Yousuf for the stated reason that she did not return from her FMLA leave and abandoned her job.
Yousuf alleges she became pregnant in December 2008 while on leave. Yousuf did not tell Senn or Bormann about her pregnancy, and there is no evidence they knew she was pregnant, prior to their decision to discharge her.
Yousuf responded to Fairview's motion for summary judgment on her sex and pregnancy discrimination claims. She asserted in her papers, and through counsel at oral argument, that, although Fairview did not know she was pregnant, her claims were sustainable if she could establish that she in fact was pregnant. She presented no argument or evidence that she, as a person with the capacity to become pregnant, was treated differently than any similarly situated person who did not have the capacity to become pregnant. Having now reviewed Yousuf's pro se submission to the Eighth Circuit, the Court turns to the record evidence - whether brought to the Court's attention in the Rule 56 proceedings or not - with an eye to determining if a triable issue exists as to discrimination based on Yousuf's capacity to become pregnant. See Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls., Inc., 499 U.S. 187, 206-07, 211 (1991).
Yousuf's evidence in this regard centers on evidence of a telephone conversation she had with Fairview supervisors on February 2, 2009, after the FMLA leave expired. On that date, Yousuf, from Europe, spoke with Senn and Bormann at Fairview. In her deposition testimony, Yousuf recounted part of the conversation as follows:
[Senn] would just repeatedly say, Are you coming back? Are you staying [in] Germany and raising a family?'... She said she heard a rumor that [I was] staying in Germany and these people have babies left and right. And I said, What do you mean by that?' She said, Never mind, ' and she just moved on.
A jury might, if it believed that Senn said these words, decide that the question about Yousuf intending to raise a family in Germany is akin to Senn asking whether Yousuf was planning on having a child. While such a comment may be inappropriate or unprofessional, it is not strong evidence of pregnancy discrimination because the question does not reveal bias against pregnancy or how the employer would respond if the employee were pregnant or intending to become pregnant. See Fjelsta v. Zogg Dermatology, PLC, 488 F.3d 804, 809-810 (8th Cir. 2007) (holding that a supervisor's remark was not direct evidence of pregnancy discrimination because "the remark did not reflect a negative attitude toward pregnancy generally and in no way forecast how the employer would deal with the adverse situation if it arose"). That is especially true here because the question coupled raising a family with staying in Germany. The question reveals little or nothing about what Fairview's attitude would be if Yousuf returned from Europe (it seems she was actually in Belgium rather than Germany), returned to work, and also raised a family. Yousuf's request for FMLA leave had been granted, no questions asked, and the alleged telephone call took place after the expiration of that leave, at which time Yousuf had still not returned to the United States.
A reasonable jury could find that Senn's statement "these people have babies left and right" reflects a bias against employees who are frequently pregnant. But it does not clearly evince a discriminatory motive. The comment does not forecast how Fairview would respond to news of employees' pregnancies generally or to Yousuf revealing her apparently first pregnancy specifically, and the comment is not directly related to Yousuf's employment status. See Rivers-Frison v. S.E. Missouri Comm. Treatment Cntr., 133 F.3d 616, 619 (8th Cir. 1998) (holding that a supervisor's comments were not direct evidence of discrimination because they "had no relation to [the plaintiff's] employment status or to the conduct of the [employer's] business").
Senn's comments by themselves do not support a reasonable inference that Fairview discriminated against Yousuf based on her capacity to become pregnant.
Yousuf also proffers evidence of a handwritten note signed by a person named Jill Fischer, who, according to Yousuf, was a coworker at Fairview. The note states:
I overheard Cindy Ness (a lab supervisor) talking to other employees in the lab (Sandy Dale) about Ayan's termination. Cindy said that Ayan will not be coming back to work, ...