Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—D. Utah: Account manager, paid only half of earned commissions while on maternity leave, advances bias claim, (Jan 23, 2026)

By Marjorie Johnson, J.D.

The employer’s use of the term “extended leave” to insulate her from comparison with other account managers was an “an overly restrictive definition, especially since she was out on leave for only four weeks.”

A sales account manager will get a trial on her Title VII claim alleging her employer’s slashing of her earned commissions by 50 percent during her four-week maternity leave constituted unlawful pregnancy discrimination, though her hostile work environment claim failed as a matter of law. Mostly denying the parties’ cross-motions for summary judgment, the court also held that triable issues existed as to the employee’s claims the employer violated the Utah Payment of Wages Act (UPWA) and breached the contractual terms of her 2018 offer letter and its 2021 compensation policy. Stopping short of a blanket exclusion, the court granted the employer’s bid to preclude testimony by a former female superior related to her allegations in a lawsuit that the company president subjected her and other subordinates to inappropriate sexual behavior and remarks (Evans v. GlyMed Plus LLC, No. 2:23-CV-27-DAK-DBP (D. Utah Jan. 20, 2026)).

Offer letter. In October 2018, the account manager was hired by GlyMed Plus LLC, a company that sells professional skin care products nationwide. Her offer letter outlined her straight-commission-based pay structure, which also provided a monthly guarantee of $3,000 if sales minimums were not met. The letter stated that she would be paid 8 percent on all sales in her territory; 10 percent on all sales in the months that she increased sales by 25 to 39.9 percent over the same month from the previous year, or 12 percent if she increased them by 40 percent or more; and an additional 2 percent on all sales during the first 30 days of new accounts. Despite these terms, the employee claimed she was paid only half of the commissions she was supposed to receive on retail sales in her territory.

New structure. Effective January 1, 2021, the company introduced a new compensation structure that allowed the company to make certain modifications to the agreement at its sole discretion. Between January 1, 2021, and November 30, 2021, it reduced the employee’s commissions by 2 percent when there was a large account that received a large discount.

Maternity leave. On October 20, 2021, she gave birth to a child. The employer did not have any maternity leave policy, though it did provide PTO which accrued based on years of service. In August 2021, the employer modified its leave policy to include separate accruals for paid vacation time and paid sick time and also limited unpaid personal leave to 10 days per year.

Half-pay. Despite the revised policy and lack of any formal maternity leave, the employee took about four weeks of leave after the birth of her child. She claimed her male supervisor advised her verbally, and another pregnant account manager in writing, that they could each take up to 12 weeks of maternity leave and continue to earn commissions during their leave. However, both of the women were only paid half of the sales commissions they earned while on leave.

Unpaid “extended leave.” They both complained, and the colleague who had written documentation of the arrangement was given her full commissions. However, the employee was told she was subject to the company’s unpaid leave policy for extended leave, which meant she would not receive commissions while on leave. When she complained to the company president, he stated that in a spirit of good will, the company would pay her half of what she otherwise earned during that period ($30,785), and withhold the other half. She resigned the next day and filed an EEOC charge. This lawsuit followed.

Materially adverse action. The court rejected the employer’s contention that its withholding of the employee’s commissions did not constitute an adverse employment action since she was on “unpaid leave” and not entitled to any wages. She presented evidence that her supervisor promised her she would continue to earn commissions during maternity leave. In addition, as a commission-based employees, she was paid based on results agreed to in the commissions agreement, not time in the office. Thus, the employer’s use of the “unpaid leave” label did not relieve it of its obligation to pay the employee her commissions or make its failure to pay her less of an adverse action.

No direct evidence. In addition, the court rejected the employee’s contention the company president’s written instruction that her commission be “calculated at 50% due to extended leave,” constituted direct evidence of pregnancy bias. To constitute direct evidence, “the causal link between discriminatory motive and adverse employment action must be apparent from the evidence itself.” While the employee urged that the use of the term “extended leave” was another way of referring to her pre-approved maternity leave, the use of the term constituted only indirect evidence as it did not directly prove discrimination.

Inference of bias. However, her claim could proceed under the McDonnell Douglas framework. First, while the employer argued that the supervisor admitted he had no authority to approve decisions related to parental leave, there was evidence he communicated to the two pregnant account managers that the company president had approved it. He also undisputedly documented the agreement with the employee’s pregnant colleague, who as a result received her full commission. Thus, the agreement was not made by “a rogue supervisor.”

Comparator evidence. The employee also presented evidence she was treated less favorably than similarly situated account managers who received full commissions while on leave for non-pregnancy reasons, including illness, vacation, moving, and surgery, without any commissions being withheld. Though the employer argued that those individuals were not proper comparators since they did not take an “extended leave,” there was no clear policy in that regard, and it was also not apparent how long they were on leave. The employer’s use of the term “extended leave” to insulate the employee from comparison with other account managers was an “an overly restrictive definition, especially since she was out on leave for only four weeks.”

Moreover, given the changing nature of the employer’s arguments as to why she was denied her full commissions, a jury would decide whether its proffered justifications were pretext for pregnancy discrimination. However, the employer’s motion was granted as to her hostile work environment claim since the conduct she alleged was not sufficiently pervasive or severe conduct.

Wage claims. Triable issues also precluded the employer’s motion for partial summary judgment on the employee’s unpaid wage claims under the UPWA. In particular, the court found she made an adequate demand for payment of her full November commissions. Therefore, to the extent that the UPWA could apply in the event of no contract (a disputed issue), she met the demand requirements of the statute.

Breach of contract. Triable issues also precluded the employee’s motion for partial summary judgment as to her breach of contract claims. For instance, the court found the language in the 2018 offer letter “is a guide that requires parole evidence and evidence regarding the parties’ subsequent practices,” and the record also suggested the parties modified the terms of the letter. The parties may have also mutually modified the 2021 commission policy, including in relation to the 2-percent reduction for large accounts.

Other lawsuit alleging sexual harassment. Finally, the court partially granted the employer’s motion in limine seeking to exclude testimony by a former female superior who sued the company after its president subjected her to inappropriate sexual behavior at a work event. The superior also asserted that she became aware of numerous allegations of the president making sexually charged statements to female staff between 2009 and 2016, as well as engaging women in conversation about their coworkers’ sex lives, sex appeal, and sexual attraction to him between 2021 and 2024. The employee claimed that this evidence supported her Title VII claim since it demonstrated an ongoing pattern of discriminatory treatment of female subordinates.

Ultimately, the court declined to impose a blanket exclusion of all testimony from the witness, but excluded testimony related to her lawsuit claiming sexual harassment as irrelevant and outside the relevant time period. Similarly, her testimony regarding the president’s other sexually charged comments and conduct were not relevant to whether he had an intent or motive to withhold the employee’s commissions because she took maternity leave. However, if she swiftly disclosed evidence of similar discrimination during the time frame of her pregnancy-related claims, the court would decide if the parties could conduct discovery on it before trial.

The case is No. 2:23-CV-27-DAK-DBP.

Judge: Kimball, D.

Attorneys: Loren K. Peck (Peck Baxter Watkins & Bailey) for Lindsey Evans. Mark O. Morris (Snell & Wilmer) for GlyMed Plus LLC.

Companies: GlyMed Plus LLC

Cases: PregnancyDiscrimination Discrimination ContractClaims EvidenceDiscovery WageHour StateLawClaims UtahNews