Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—8th Cir.: Jason’s Deli manager who was fired is unable to revive pregnancy discrimination claim, (Aug 27, 2025)

By Brandi O. Brown, J.D.

She argued that the employer failed to accommodate her when it failed to limit one of her shifts to 10 hours, as promised, and when it did not excuse a pregnancy-pain-related absence.

A Jason’s Deli manager who was fired during her pregnancy, whose lawsuit alleging violations of Title VII and the Nebraska Fair Employment Practice Act (NFEPA) was subject to summary judgment at the district court level, was unable to revive her NFEPA claim on appeal to the Eighth Circuit. She argued that the employer failed to honor the reasonable accommodation of limiting her shifts to 10 hours and that it failed to accommodate her when it did not excuse one of her absences and included it in a disciplinary report, but she failed to dispute the employer’s undue hardship argument and could not show that a text message regarding her absence was specific enough to be an accommodation request (Gossett v. Jason s Deli, No. 24-3617 (8th Cir. Aug. 26, 2025)).

In March 2022, the plaintiff—a manager at Jason’s Deli—told her supervisor and HR that she was pregnant and asked for accommodations, including the use of a chair when her feet were swollen, five to ten-minute breaks every two hours, exemption from heavy lifting, and no shifts longer than 10 hours. Her requests were approved.

Made to work longer. In the first week of May, however, a manager called in sick, and the employee was told that she had to work a few more hours because no one else was available—placing her shift beyond the limit and resulting in a 12.5 hour shift. In exchange, she was told she could take the next day off, paid, and that it would not count against her vacation. She worked the extra-long shift and took the next day off, but subsequently sent an email to HR and a supervisor saying that after the shift, she was “in pain the rest of the night because we were busy and understaffed and I pushed myself entirely too hard... I understand being there for the deli, but I also cannot miscarry this baby.”

Later that month, she texted the same supervisor, telling him: “My body is in a lot of pain. I pushed myself too hard this week. I’m popping Tylenol as much as I’m allowed to and it’s barely taking the edge off. I’m not going to be able to work tomorrow like this.” She did not work the next day. She missed additional shifts in June because of car troubles and was written up for all of the missed shifts, including the one in late May, in a disciplinary action report.

Fired, lawsuit. Later in June, other workers complained that the employee had spent most of her shift in the office, rather than working at the counter. The employee told the supervisor that she had been documenting a work injury and was also reviewing pregnancy leave policies. The supervisor retrieved her internet history, which showed she had paid bills and reviewed her medical records, and concluded that she lied. He fired her for “[n]umerous issues as previously documented; ultimately, lying during the scope of an investigation.” She filed suit, alleging that the reasons for her termination were pretextual and that the real reason was her pregnancy.

Undue hardship. After the district court granted the employer’s motion for summary judgment, the employee sought reversal on the NFEPA pregnancy discrimination claim. Under that law, discrimination includes “[n]ot making reasonable accommodations to the known physical... limitations” of a pregnant woman. In this case, the employer did not accommodate the employee’s pregnancy-related request to limit her shifts when it required her to work a 12.5-hour shift in early May. The employer claimed, however, that the accommodation would have imposed an undue hardship on it because she was the only manager available to work the extra hours and keep the deli open on that occasion. Here, the problem for the employee was that she did not dispute the employer’s undue hardship argument, so her claim on that instance failed.

Text message not specific. As for her argument that the employer failed to accommodate her when it did not excuse her absence in late May and included it in a disciplinary report, the court determined that the text message that she sent did not identify a specific reasonable accommodation or make clear that she was requesting an excused absence because of her pregnancy. She only said she would not work that day because she had pushed herself too hard, was in pain, and the pain medication was not helping. She claimed that the supervisor should have known her pain was pregnancy-related, but the court explained that even if that were true, the message was too non-specific and it was “unlike” her “previous, specific pregnancy-related requests for accommodation, all of which were approved.” Her text message “‘did not demonstrate that she requested accommodations or assistance for her alleged disability’ because the text message ‘did not suggest that her request was based on medical needs’ related to her pregnancy.” Her claim failed on this basis as well.

Judge Ericksons concurrence. Judge Erickson concurred specially, adding that the record had shown that the employee “accepted her supervisor’s request to work an additional two-and-a-half to three hours in exchange for eight hours of paid time off the next day” and that she did not provide “authority demonstrating that her decision to forgo the shift-limit accommodation that Jason’s Deli approved previously can be used later as the basis for a discrimination claim.” As for the later absence, Judge Erickson noted that her text message accounted for only one out of the four days that were listed in the disciplinary notice and that the record contained evidence showing that she was fired because she “was an unreliable employee.”

The case is No. 24-3617.

Judge: Kobes, J.

Attorneys: Murphy G. Cavanaugh (Rehm Law Firm) for Felicia Gossett. Allison Balus (Baird Holm) for Jason's Deli.

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