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HR Director’s Remarks Can Constitute Direct Evidence of Discrimination

The Court of Appeals Reverses Summary Judgment in Makowski v. SmithAmundsen LLC

Lisa Makowski was employed as the Marketing Director at the law firm of SmithAmundsen, LLC. In the summer of 2007, she informed the firm’s management that she was pregnant, and she requested leave under the Family and Medical Leave Act (“FMLA”). Under the FMLA, qualified employees are entitled to up to 12 weeks of job-protected medical leave for, among other reasons, the birth of a child. The firm granted her leave beginning in late November. In January of 2008, the firm’s Executive Committee conducted its yearly retreat to assess the overall structure of the firm and determine whether staffing changes were necessary. The Committee decided that another employee would be a stronger leader in the Marketing Department and that Makowski didn’t “fit [the firm’s] culture.” In turn, while Makowski was still on maternity leave, her supervisors informed her that her position was being eliminated as part of an organizational restructuring and that her employment would be terminated. Makowski went to the office to retrieve her belongings, and as she was leaving, the firm’s Director of Human Resources (“HR”), Molly O’Gara, told her that she was, in fact, let go because she was pregnant and took medical leave. O’Gara also told Makowski that she believed there were several other women who had been discriminated against because they were pregnant or because they took maternity leave. O’Gara also informed Makowski that it might be a good idea to speak with a lawyer regarding a potential class action.

On December 2, 2008, Makowski filed suit in the Northern District of Illinois against SmithAmundsen, alleging violations under Title VII (the federal anti-discrimination statute), as amended by the Pregnancy Discrimination Act, and the FMLA. The district court granted the firm’s motion for summary judgment with respect to Makowski’s termination, ruling that because O’Gara was not involved in the decision-making process, her statements were not evidence admissible as an admission by a party-opponent. Thus, the court held, Makowski lacked evidence of a direct connection between her protected activity and her termination.

On November 9, 2011, the Seventh Circuit reversed the district court’s decision. It found that because O’Gara’s statements concerned a matter within the scope of her duties as HR Director, they fell within an exception to the hearsay rule: an agent acting within the scope of her employment with the company speaks on behalf of the company. The court also concluded that O’Gara was involved in the final decision to terminate Makowski because her duties included regular consultations regarding decisions to eliminate positions and terminate employees. Moreover, the firm’s Executive Committee asked O’Gara to confer with outside counsel regarding the decision to terminate Makowski. Thus, O’Gara’s statements were admissible as direct evidence of discrimination, and Makowski presented a triable issue of fact concerning the company’s motive for terminating her. The case was remanded back to the district court for trial on the merits.