A New York waitress who was fired shortly after telling her managers that she started in-vitro fertilization did not establish sex discrimination claims because she failed to show that the stated reason for her discharge, which the company claimed was her poor performance, was pretextual.
In the case of Govori v. Goat Fifty LLC, the Second Circuit rejected the waitress’s contention that the close timing between her revelation that she was undergoing IVF treatment and her discharge was enough to rebut the restaurant’s legitimate nondiscriminatory reason for firing her. The restaurant claimed that the waitress had a history of poor performance that culminated when she allegedly yelled at a customer on her last day of work. Additionally, the waitress’s managers were already well aware that the waitress wished to become pregnant and was contemplating IVF before she announced that she had started IVF treatment. In fact, her managers allegedly supported the waitress in her desire to become pregnant. Thus, the court concluded that the waitress’s announcement that she was starting treatment was at most “her commencement of but one more step toward her previously announced but still uncertain goal of conceiving a child.”
Although the waitress alleged that her manager told her that she had chosen a different “path” during the telephone call in which the manager terminated the waitress, and that the different “path” referred to the “mommy track” or “mommy path,” the court found that the use of the word “path” could not plausibly be construed as a reference to the “mommy track”. Rather the court reasoned that the comment about choosing another path was the sort of comment a friend might plausibly use as an attempt to soften the blow of firing an employee with whom she was close.
Because the court found that the waitress failed to refute that her poor performance was the cause of her termination, the court declined to address whether the Pregnancy Discrimination Act (“PDA”) covers employees who allegedly are fired for undergoing IVF treatment.
This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
