Workplace Labor Update - Termination of Pregnant Employee Upheld – March 1998

In a recent decision, the federal court of appeals for Maryland and Virginia overturned a jury’s finding that an employer was liable for $250,000 for discriminating against a probationary employee based on her pregnancy. DeJarnette v. Corning, Inc., 133 F.3d 293 (4th Cir. 1998). In November 1992, Corning offered the plaintiff, Regina DeJarnette, a position inspecting and packaging glassware contingent on passing a physical examination and a background investigation. Before the physical, DeJarnette informed Corning personnel that she was pregnant. After DeJarnette passed the physical examination and the background investigation, she began work as a probationary employee. The probationary period was to last sixty days. While a probationary employee, DeJarnette received two negative performance evaluations, criticizing her poor attitude, lack of enthusiasm, bad use of down time, and poor inspecting and packing performance. Her supervisor specifically warned DeJarnette that to complete successfully the probationary period, she would have to show dramatic improvement. Corning extended DeJarnette’s probationary period for an additional thirty days, during which she was evaluated three more times. Although DeJarnette’s inspecting and packing performance improved, her attitude and use of spare time continued to be below expectations. Near the end of the probation extension, Corning’s plant manager discharged DeJarnette. DeJarnette claimed that her discharge was due to her pregnancy, and that the complaints of her poor performance were merely a pretext. A jury found that Corning had discriminated against DeJarnette based on her pregnancy and awarded her over $250,000 in damages. Although reducing the award, the district court upheld the verdict, finding that because the performance appraisals were subjective and easily fabricated, the jury could rely on the testimony of DeJarnette’s co-workers that her performance in fact was satisfactory to find that she actually was discharged due to her pregnancy. The Court of Appeals found that DeJarnette had not produced sufficient evidence of discrimination to support the jury’s decision in her favor. Although DeJarnette pointed to the fact that slower probationary employees had become regular employees, she failed to show that these employees shared her poor attitude, poor use of down time, and other performance problems. The court also found that Corning’s knowledge of DeJarnette’s pregnancy before she was hired tended to refute an inference of discrimination, reasoning that Corning would not have selected someone they knew to be pregnant only to fire her later. Moreover, the court found that DeJarnette’s self-evaluation and that of her co-workers was irrelevant to the determination of whether her supervisor’s evaluations were fabricated. Finally, DeJarnette failed to show that Corning engaged in a pattern of discrimination against pregnant women, as all twelve employees who had taken pregnancy-related leave in the preceding four years were reinstated. The court’s decision not only underscores the importance of accurately documenting employees’ performance, but also indicates that the mere claim that such appraisals were contrived, without more, will not support a finding that the company engaged in unlawful discrimination.