Fifth Circuit Rules Employee’s Conduct, Not Pregnancy, Drove Firing

00:00

24:53

Quick Hits

• The Fifth Circuit rejected a plaintiff’s argument that the employer’s statement, “[Y]ou’re about to go on leave so … I can’t lose two people when you’re going to be taking leave soon,” constituted direct evidence of discrimination as it was too attenuated.
• The Fifth Circuit analyzed the plaintiff’s pregnancy discrimination claim under both the “but-for” and “mixed-motive” causation standards and found her evidence insufficient under either standard.
• The Fifth Circuit assumed without deciding that the mixed-motive standard applied to the plaintiff’s FMLA retaliation claim, declining to resolve an open question within the circuit regarding the applicable causation standard.

In Moreno v. Dealer Integrated Services, L.L.C., the Fifth Circuit agreed with the district court that Jocelyn Moreno failed to present sufficient evidence that her pregnancy was the reason for her dismissal and that her former employer, Dealer Integrated Services (DIS), met its burden to show it would have dismissed Moreno regardless of her request for leave, due to her disruptive behavior in the office.

Factual Background

Moreno worked as a payroll administrator for DIS, a car dealership services company, for approximately six years. In April 2023, Moreno informed her office manager, Deborah Devine, that she was pregnant and intended to take maternity leave in September. DIS promptly granted her request for two months of leave but did not inform her of her entitlement to a full twelve weeks under the FMLA.

The workplace at DIS was, by all accounts, “strained”—due in large part to Moreno. According to the company’s owner, Chad Roberts, Moreno refused to communicate with her coworkers Valerie De la Cruz and Patricia Mauricio, shut her office door to them, responded only to Devine, resisted taking on additional duties, and was “aggressive and hostile” when asked to train Mauricio to cover her upcoming absence. In late June 2023, Mauricio and De la Cruz told Devine they would resign unless Moreno was fired, citing the unpleasant work environment. Roberts and Devine then met with Moreno and terminated her employment. Roberts explained the decision, stating that “he wouldn’t be able to … lose two employees and have [Moreno] out as well.”

Moreno filed suit in March 2024, alleging pregnancy discrimination under Title VII, as well as FMLA retaliation, interference, and failure to provide individualized notice. The district court granted summary judgment for DIS on all claims, and Moreno appealed.

Analysis by the Fifth Circuit

Title VII Pregnancy Discrimination

The Fifth Circuit examined whether Moreno presented sufficient direct or circumstantial evidence that her pregnancy motivated her termination.

Direct evidence. Moreno relied on a statement Roberts made during the dismissal meeting: “[Y]ou’re about to go on leave so … I can’t lose two people when you’re going to be taking a leave here soon.” Applying the circuit’s four-part test for determining whether comments constitute direct evidence of discrimination, the court held that this statement was “too attenuated” to serve as direct proof. Citing Fifth Circuit precedent, the court reiterated that statements concerning leave require an inference that they are “code language” for pregnancy. Because an inference is required, such statements are not direct evidence of Title VII discrimination.

Indirect evidence. Under the McDonnell Douglas burden-shifting framework, the court assumed Moreno established a prima facie case but found she could not demonstrate pretext. DIS articulated legitimate, nondiscriminatory reasons for the dismissal: Moreno “refused to communicate with her coworkers in a job where communication was essential; she contributed to a ‘toxic’ work environment that led two colleagues to threaten to resign; and she refused to carry out some of the responsibilities of her position.” The court emphasized that Moreno’s evidence attempted to shift blame for the workplace dysfunction to others but reasoned that “the issue is not whether Moreno’s conduct was reasonable; rather, it is whether she was fired for that conduct as opposed to her protected basis.” In applying this rationale, the court reiterated the longstanding principle that “Management does not have to make proper decisions, only non-discriminatory ones.”

Moreno failed to present any evidence that DIS’s stated reasons for her dismissal were false or inconsistent. Finally, the court concluded that Moreno could not demonstrate her pregnancy was a motivating factor. Moreno’s admitted speculation that her coworkers threatened to resign because of her impending maternity leave—and not her conduct—was unsupported by the factual record. Additionally, Roberts’s statement at the dismissal meeting was simply an expression of the choice between Moreno and her coworkers, both of whom had threatened to resign.

FMLA Retaliation

The court applied similar reasoning to Moreno’s FMLA retaliation claim. Even assuming the mixed-motive framework applies—an open question in the Fifth Circuit—the court concluded that DIS met its burden of establishing that it would have fired Moreno regardless of any retaliatory motive. The court was persuaded that the interpersonal dysfunction was so extreme that two employees threatened to quit rather than work with Moreno, and that “the only reasonable conclusion a jury could make” was that DIS would have fired her “with or without retaliatory animus.”

FMLA Interference

The court found that Moreno could not establish the essential element of prejudice required for an interference claim. DIS granted all the leave Moreno requested. Moreover, adopting the reasoning of the U.S. Court of Appeals for the Tenth Circuit in Twigg v. Hawker Beechcraft Corp., the court held that an employee is not prejudiced by interference with forthcoming leave when she is legitimately discharged before that leave commences.

FMLA Notice

Finally, the court disposed of Moreno’s notice claim on the same prejudice grounds: an employee who is lawfully dismissed prior to the start of her entitled leave cannot show prejudice from a lack of individualized FMLA notice.

Practical Takeaways

The Fifth Circuit’s Moreno opinion demonstrates that an employee’s protected status or impending leave of absence may not be enough—standing alone—to result in liability where, as here, DIS had significant evidence of Moreno’s longstanding disruptive conduct. Additionally, this decision reinforces several important principles for employers:

First, references to an employee’s upcoming leave, standing alone, do not constitute direct evidence of pregnancy discrimination in the Fifth Circuit. Courts will not infer that “leave” is code for “pregnancy.”

Second, ideally, employers will be in the practice of documenting legitimate performance and conduct reasons as they occur, but as the court noted here, a “lack of contemporaneous documentation, alone, is not evidence of pretext.”

Third, the Fifth Circuit’s treatment of the FMLA interference and notice claims confirms that prejudice remains an essential element. Where an employee is lawfully dismissed before leave begins, interference and notice violations may not yield relief absent a showing of actual harm.

Finally, the McDonnell Douglas framework for analyzing Title VII claims remains binding law in the Fifth Circuit, despite growing calls from jurists within the circuit to reconsider the doctrine. The court acknowledged the “resounding chorus calling for a reconsideration of McDonnell Douglas” but held that it remained bound by the rule of orderliness.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Employment Law, Leaves of Absence, and State Developments blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts