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April 2011

Bob Bragalone and Margaret Mead win Summary Judgment on Pregnancy Discrimination Claim

    On April 8, 2011, Dallas attorneys Bob Bragalone and Margaret Mead prevailed on their motion for summary judgment for Peaches Uniforms, Inc., against a plaintiff's claims of pregnancy discrimination in employment, wrongful discharge in violation of public policy, and intentional infliction of emotional distress.  Plaintiff was the California salesperson for Texas-based Peaches Uniforms, Inc. and was discharged March 19, 2009 as a cost-cutting measure.  Plaintiff was replaced by a another salesperson who happened to be male, at half the amount of plaintiff's former salary.  The court determined, under the McDonnell-Douglas burden-shifting analysis, that Plaintiff had established a prima facie case.  However, it ultimately ruled that Plaintiff did not present specific and substantial circumstantial evidence sufficient to permit a jury to find that the economic reason for Plaintiff's discharge was a pretext for discrimination.

     A key point in the defense of client Peaches Uniforms was that management did not know Plaintiff was pregnant at the time of the discharge, thus the discharge could not have been because of pregnancy.  It was undisputed that Plaintiff discovered she was pregnant at the end of 2008, and told the customer service representative who assisted her with her accounts, specifically asking her not to tell management.  The representative testified that she did not tell anyone in management, while Plaintiff testified that she "must have told someone," but conceded that her belief was speculation.  After her deposition and the filing of the motion for summary judgment, Plaintiff submitted a Declaration stating that, while she was discussing the pregnancy with the representative on the telephone immediately prior to her discharge, the representative told the plaintiff that "someone scared her," that it was a specific manager, and that she feared he had overheard the statement about Plaintiff's "condition."  Defendant objected to this statement as hearsay.  Without addressing the objection, the court issued an eight-page tentative opinion against Peaches Uniforms on the discrimination and public-policy claims, reasoning that Plaintiff's Declaration regarding the telephone incident would permit a jury to infer that management was aware of the pregnancy and that pregnancy was the reason for discharge.  The tentative opinion was distributed to counsel for the first time at the beginning of the hearing on the MSJ.

    During the March 14, 2011 hearing, Bob Bragalone argued to the court that the telephone conversation was hearsay, explaining that the customer service representative discussing Plaintiff's personal matters was not a "party opponent" under the hearsay exclusion of Fed. R. Evid. 801(d)(2).  Mr. Bragalone further argued that without that telephone conversation, there was no evidence from which a jury could infer that management knew of the pregnancy, only Plaintiff's speculation.  The court informed Mr. Bragalone that it rarely reversed its tentative opinions, but that it would take the matter under advisement.  Upon considering Mr. Bragalone's arguments and ruling on the hearsay objection, the Federal District Court for the Central District of California reversed its tentative opinion and entered a sixteen-page opinion and order granting summary judgment in favor of Defendant on the pregnancy discrimination and public-policy claims.


Robert A. Bragalone