Category Archives: back injury

May a fired pregnant employee sue for discrimination if there is no evidence that she was replaced with a non-pregnant employee?

The United States District Court for the District of New Jersey recently decided that a pregnant employee who was fired was not permitted to sue for gender discrimination under New Jersey’s Law Against Discrimination (“LAD”) N.J.S.A. §10:5-12(a); disability discrimination under the Americans With Disabilities Act (“ADA”) 42 U.S.C. §12112(a); or discrimination under the Jury Service Improvement Act (“JSIA”) 28 U.S.C. §1875(a).  Schwinge v. Deptford Twp. Bd. of Ed., No. 09-5964, 2011 WL 689615 (D.N.J. 2011).

The employee, Lisa Schwinge, claimed she was terminated for several reasons; becoming pregnant, missing work to serve on jury duty and suffering from a serious back injury.  Schwinge served state jury duty in late 2007/early 2008.  At that time she was also suffering from herniated and bulging discs in her spine.  In February 2008, she  revealed to her employer, the Deptford Township Board of Education (the “Board”), that she was pregnant.

Shortly after that revelation, she received her first negative performance evaluation in the two years she was employed by the Board.  When Ms. Schwinge asked about her Family Medical Leave rights, she was told that she would be terminated when her contract expired in the near future.

Schwinge initially filed suit against the Board in the Law Division of the Superior Court of New Jersey. She claimed gender and disability discrimination under the LAD; disability discrimination under the ADA; and discrimination under the JSIA.  The Board exercised its right to transfer the case to the United States District Court for the District of New Jersey and filed a motion to dismiss Schwinge’s complaint for failure to state a claim upon which relief could be granted.

The District Court granted the Board’s motion and dismissed Schwinge’s claims of discrimination under the LAD, ADA and JSIA.  The  Court reasoned that Schwinge satisfied the first three elements of her LAD claim; 1) she belonged to a protected class (pregnant person); 2) her positive performance evaluations before 2008 showed she was performing her job to her employer’s legitimate expectations; and 3) she suffered an “adverse employment action” in that she was terminated.  However, Schwinge was unable to establish the fourth element; that the Board hired someone not a member of the protected class – someone that was not pregnant – to perform the same job following Schwinge’s termination.  There was no evidence that the Board replaced Schwinge with a non-pregnant employee.  The Court similarly dismissed Schwinge’s disability discrimination claim under the ADA for the same reason; an inability to establish the fourth element of her claim.

The Court held that the JSIA only applied to federal jury service, not state jury service.  Since Schwinge served on a state jury, she was not protected by JSIA.  As a result, the Court dismissed her claim of discrimination under the JSIA.

The Court also reasoned that Schwinge’s claim of disability discrimination under the ADA had to be dismissed due to Schwinge’s failure to exhaust administrative remedies.  An individual claiming disability discrimination under the ADA is required to file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) or analogous state agency and receive a “right-to-sue letter” before a complaint may be filed in court.  The evidence revealed that Schwinge withdrew her EEOC claim before the process was complete and before receiving a “right-to-sue letter.”  As a result, the Court held that her ADA disability discrimination claim was barred due to her failure to exhaust administrative remedies.

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