Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—E.D. Pa.: Five Below employee fired two weeks before maternity leave defeats summary judgment, (Mar 17, 2025)

By Ronald Miller, J.D.

According to the court, the length of time between the adverse action, her termination, and her scheduled leave was close enough that it was regarded as “unusually suggestive.”

Five Below was denied its motion for summary judgment against an employee’s claims for pregnancy discrimination and FMLA retaliation after she was terminated just two weeks before she planned to take maternity leave. The employer maintained that the employee was terminated as part of a reorganization within her department. However, a federal district court in Pennsylvania pointed out she was terminated just weeks before she planned to take FMLA leave, and she had never been told of her poor performance prior to alleging a pregnancy discrimination claim (Brennan v. Five Below, Inc., No. 22-1383 (E.D. Pa. Mar. 13, 2025)).

Buyer role. The employee worked for Five Below as a buyer from April 2017 to May 2020, when she was terminated during a restructuring of the employer’s Merchandising Group. When she was hired, the employee was the buyer in charge of Health Beauty Aid (HBA). It was undisputed that until her termination, the employee was never told that she had any performance issues, nor was she ever placed on a performance improvement plan.

Around June or July 2019, the employee was moved out of HBA and into a role as a Basic Accessories Buyer. In a transition plan drafted in June 2019, it was explained that the employee would be taking on a new role due to evolving business.

The employer now states that her supervisor did not regard her as performing well. However, the employee testified that the supervisor always told her and wrote in her performance reviews that she was doing a good job in her role, and she was never told of any issues with her performance. In September 2019, following her transfer, the employer contends that her new supervisor “had concerns about Plaintiff’s performance.”

Restructuring. In January 2020, the employer’s Merchandising Group began evaluating its structure and considering ways to be more financially responsible. Headcount reduction was discussed. In March 2020, the Merchandising Group did engage in a reorganization. During the restructuring, the employee was terminated, two buyer positions were consolidated, one buyer was transferred out of the Merchandising Group, and two associate buyers were promoted to buyers. The employee was the only buyer terminated during the reorganization.

The employee’s supervisor was the sole decision-maker with respect to her termination. During the termination meeting, the employee was told that she was being terminated because of a restructuring, not her performance.

Pregnancy announcement. In December 2019, the employee announced to her colleagues that she was pregnant. She gave birth on June 3, 2020, 15 days after her termination.

To establish a prima facie case of pregnancy discrimination, a plaintiff must demonstrate that (1) “she is or was pregnant and that her employer knew she was pregnant,” (2) “she was qualified for her job,” (3) “she suffered an adverse employment decision,” and (4) “there is some nexus between her pregnancy and her employment termination that would permit a fact-finder to infer unlawful discrimination.”

Five Below conceded the first three prongs of the analysis, and challenged only the fourth prong, arguing there was no nexus between the employee’s pregnancy and her termination. According to the employer, because the employee informed it of her pregnancy in December 2019, and was not terminated until May 2020, there was no temporal proximity between the disclosure of her pregnancy and her termination.

Prima case of discrimination. Here, the employee informed her colleagues that she was pregnant in December, but she was due to give birth and take maternity leave in June 2020. She was terminated on May 19, 2020—less than a month before her due date. The court found this timing to be “unusually suggestive” of discrimination.

Despite the employer’s claim that the Merchandising Group restructuring was necessary because of financial strife, the employee, the only pregnant employee in the department at that time, was the only buyer fired during the restructuring. In addition, her role was filled by an employee from another department who had never been a buyer. Moreover, the employee was told that her termination was due to the restructuring and not her performance. These facts about the reason for her termination established a plausible nexus between her pregnancy and her termination. Therefore, the employee established a prima facie case of discrimination.

However, Five Below offered sufficient evidence of a legitimate nondiscriminatory reason for the employee’s termination. First, it was undisputed that there was a restructuring of the Merchandising Group due to poor financial performance the prior year. Further, Five Below offered evidence from coworkers that showed that the employee was performing poorly throughout much of her time at the company. This was enough for Five Below to establish a legitimate, nondiscriminatory reason for her termination.

Pretext. Nonetheless, the court determined that the employee offered sufficient evidence for a reasonable factfinder to find that the employer’s proffered reasons for her termination were pretextual. Not one of the emails the employer offered as evidence of the employee’s poor work performance stated with specificity anything she was doing wrong in her role. Nor was the employee ever informed of her supposed poor performance, either verbally or through a written performance review, until her termination two weeks before her scheduled maternity leave. Lastly, the court pointed to testimony from the employee’s supervisor that her pregnancy might have impacted the decision to terminate her. Thus, the employee created a genuine dispute of fact as to the reason that she was fired.

FMLA retaliation. To succeed on her FMLA retaliation claim, the employee must first establish a prima facie case by showing that “(1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse action was causally related to her invocation of rights.”

Five Below argued that the employee could not establish a prima facie case of FMLA retaliation because the timing between her termination and protected activity was not “unusually suggestive.” It asserted that “there was no close proximity between either Plaintiff’s disclosure of her pregnancy (which occurred five months before her termination) or her supervisor’s belief as to her due date/start of FMLA leave (which was four months after her termination).”

Asserting that she established a prima facie case of FMLA retaliation, the employee pointed to evidence that she had received promotions and pay increases during her tenure, she had never received negative performance feedback until she alleged pregnancy discrimination, she was never put on a performance improvement plan, and she was the only pregnant employee terminated out of the entire Merchandising Group.

Here, the court concluded that the length of time between the adverse action, her termination, and her scheduled leave was close enough that it considered it “unusually suggestive.” Despite Five Below telling the employee she was being terminated due to the need for cost-cutting, she was the only buyer fired, and her position was filled by an employee who was paid 20 percent more than she. The employee was also told her firing was in no way performance related, yet after that, the employer attempted to paint her as a consistently underperforming employee. These facts were sufficient to cast doubt on the employer’s proffered reasons for the employee’s termination.

Accordingly, Five Below was denied its motion for summary judgment.

The case is No. 22-1383.

Judge: Hodge, K.

Attorneys: Kevin C. Console (Console Mattiacci Law) for Jessica Brennan. Daniel H. Aiken (Drinker Biddle & Reath) for Five Below, Inc.

Companies: Five Below, Inc.

Cases: Discrimination PregnancyDiscrimination EmployeeLeave Retaliation PennsylvaniaNews