It’s common for sympathetic co-workers to tell colleagues who’ve been fired that they should see an attorney about filing a lawsuit. But this is the first time we’ve come across an instance where the suggestion — allegedly — was made by the firm’s HR director.
The case centers on Laura Makowski, who served as marketing director for the Chicago-based law firm SmithAmundsen. A couple years into her tenure, she notified her employer she was pregnant and would be needing FMLA leave.
When her blood pressure increased to dangerous levels, Makowski’s doctor put her on bed rest for the last month of her pregnancy. She worked from home for the month, and went on FMLA leave after she delivered.
‘Not a good fit’
About a month later, the firm Executive Committee met for its annual discussion of the overall operation of the firm. At that meeting, it was decided that Makowski should be let go because, as one exec said in an email to the HR director, she “doesn’t fit into our culture.”
The HR director, Molly O’Gara, was also instructed to consult with an outside attorney about Makowski’s termination.
A couple of days later, two of the firm’s execs fired Makowski over the telephone, saying her position was being eliminated as part of an organizational restructuring. That same day, O’Gara fired the firm’s IT director.
Did this conversation happen?
OK, here’s where it gets interesting. Makowski testified that when she came into the office to pick up her personal items, O’Gara took her aside.
O’Gara said that “she was let go because of the fact that (Makowski) was pregnant and … took medical leave,” Makowski said.
Makowski also alleged that O’Gara “believed that there (was) a group of people who were discriminated against because they were pregnant or took medical leave.”
O’Gara specifically mentioned a former employee and suggested that “it might be a good idea” to consult a lawyer about the “possibility of a class action,” Makowski said.
On the strength of O’Gara’s remarks, Makowski filed suit, alleging pregnancy bias and FMLA interference.
Appeals court sends case to trial
In court, O’Gara denied having made the comments Makowski attributed to her.
The law firm claimed that since O’Gara’s job responsibilities weren’t related to Makowski’s firing, and she wasn’t involved in the termination decision, her remarks were hearsay and inadmissable.
A federal district court agreed. But the appeals court did not.
O’Gara’s statements “fit squarely within the scope of her employment” as HR director — which included taking part in the decisionmaking process of eliminating positions and ensuring compliance with anti-bias laws.
Plus, O’Gara was ordered to run Makowski’s termination by an outside attorney, the judge said.
The court denied the law firm’s motion to dismiss the case, and remanded the case for trial — and that means long, expensive legal wrangling or an expensive settlement.
The case is Makowski v. SmithAmundsen LLC. To read the appeals court’s ruling go here.
A question of ethics
This is a baffling case, and one that brings up some uncomfortable emotions for HR people.
It’s a good example of the dual roles Human Resources pros have to play — supporting company initiatives and directives while trying to act in each employee’s best interest.
Did O’Gara — if she actually said what she’s accused of saying — take Makowski aside as a matter of conscience? If there was a pattern of discrimination against pregnant women at the firm, was she wrong to tell Makowski what she allegedly told her?
Here’s the real question: Can you ever see yourself doing what O’Gara allegedly did?
