Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—N.D. Tex.: Fired Santander employee raised triable issue of pretext in pregnancy discrimination suit, (Feb 7, 2025)

By Jason Albright, J.D.

“Evidence of a sudden and unprecedented campaign to document [an employee’s] deficiencies and thus justify a decision that had already made... could raise an inference of pretext.”

A former HR employee of Santander Consumer USA, Inc., fired for alleged performance issues and replaced by a nonpregnant subordinate after informing her supervisor that she was pregnant, may proceed to trial on her pregnancy discrimination claim, a federal district court found. She raised a triable issue of pretext based on evidence that Santander acted to create a retrospective exculpatory paper trail to justify its decision to fire her. Summary judgment against her retaliation claim was appropriate, however, because more than three months passed between her protected activity and her termination, and she failed to present evidence that her earlier placement on a second PIP affected her in a way that would constitute an adverse employment action (Mathew v. Santander Consumer USA, Inc., No. 3:23-CV-01494-N (N.D. Tex. Feb. 4, 2025)).

HRBP. The plaintiff was an HR Business Partner (HRBP) at Santander’s Lewisville location from February 2011 to April 2016, and in her 2014 performance review, her supervisor marked her as consistently meeting expectations and wrote that she “is an excellent mentor” and “works well with her business partners and is supportive to their needs.” The plaintiff’s 2015 mid-year review similarly identified several positive aspects of her work, such as noting that she “does a great job with her day to day duties,” “does an excellent job of building rapport with all levels of employees,” “maintains consitancy [sic] when applying policy/procedure,” and “completes her compliance training as scheduled.”

Realignment and new supervisor. In September 2015, Santander realigned its structure, and a new manager became her direct supervisor. The two had several one-on-one meetings in September and October 2015, and the parties dispute the extent to which the HRBP and the new manager discussed the HRBP’s performance.

Last-minute leave requests. Between September and November, the HRBP made several last-minute requests to take off parts of workdays. The new supervisor stated that the HRBP also made several comments about needing help with her workload. Further, in late October, another employee told the new supervisor that he had several pending disciplinary actions that he needed handled as soon as possible, and when the new supervisor asked the HRBP about them, the latter said she would complete them by the afternoon of the next day.

Supervisor informed of pregnancy. On October 30, the HRBP told the supervisor that she was pregnant.

Severance? Then, on November 24, after an employee who had previously made complaints about her boss—which the HRBP had investigated—submitted her resignation notice to Santander, the company’s HR director told her own supervisor, “I think it’s time to consider severance. She is overwhelmed with the workload (which isn’t higher than the rest of my team) and making a lot of mistakes.”

First PIP, missing addendum. On December 1, Santander placed the HRBP on a 30-day performance improvement plan (PIP). The new supervisor thought that because of her “poor performance in a number of categories, a PIP was the appropriate mechanism by which to manage her performance, as a written warning on her poor performance on a specific category would not capture the bigger picture of how she needed to improve her performance.” The PIP included information on the asserted performance concerns with the comment: “See Addendum for specifics.” The PIP included no addendum, however.

Email to HR director. The next day, the HRBP emailed the HR director, stating that she was “completely shocked and upset” with being placed on a PIP and noting that she had “gotten along great with peers/[her] managers, ha[d] received positive reviews and ha[d] never had any type of formal coaching or discussion about negative performance issues.”

Call with HR director’s immediate supervisor. Then, on December 9, the HRBP talked on the phone with the HR director’s immediate supervisor about her concerns with the PIP. On the call, she emphasized that she had “been provided with no dates, documentation or addendum with specifics (as stated on the PIP document) to substantiate” the performance issues and, in her time at Santander, had “not come across associates being placed on a PIP without clear documentation.”

“I am also pregnant…” On December 11, the HRBP emailed her supervisor’s direct supervisor and a supervisor of the HR director stating, “I am also pregnant (15 weeks) and cannot help but wonder if this has any bearing on my review because I mentioned it to my mgmt when I was 8 weeks pregnant out of courtesy and a month later I’m on a PIP after never being formally coached in my 5 year career. I’ve been told that I’ve been coached (after stating I hadn’t been) and have asked for documentation numerous times to no avail.”

There is no evidence that Santander investigated this complaint of pregnancy discrimination.

Second PIP. A second iteration of the PIP went into effect on January 15, 2016. This iteration called for biweekly meetings, and the supervisor and HRBP met for biweekly check-ins on January 29 and February 17. After the February 17 meeting, the supervisor informed her that she was “either not able to identify the key concepts and coaching opportunities that were provided to [her]... or [was] not able to communicate them effectively.”

Termination recommended. Following a 30-day review meeting held on February 26, the HR director told her own supervisor that the HRBP was continuing to fail to meet the expectations of the role and recommended termination. The HR director’s supervisor agreed, and the HRBP’s 90-day review took place on April 15. Santander reported that, despite providing guidance and discussing areas of opportunity, she did not meet expectations regarding time management and work habits or consulting. Santander also provided complaints from business clients regarding her performance.

Fired and replaced by nonpregnant report. On April 19, the HR director and supervisor informed the HRBP that Santander was terminating her because of her performance issues. A nonpregnant employee who had previously reported to the HRBP later replaced her as an HRBP.

Lawsuit and present motion. The former HRBP brought pregnancy discrimination and retaliation claims against the former employer under Title VII, and Santander moved for summary judgment against both claims.

Pregnancy discrimination and pretext. Turning first to her pregnancy discrimination claim, the court found that the former HRBP established a triable issue of pretext based on evidence that Santander acted to create a retrospective exculpatory paper trail to justify its decision to fire her. First, on November 24, 2015, the HR director suggested terminating her. The same day, the HRBP’s supervisor emailed the HR director, stating that she would “work on a formalized timeline of events and discussions that [she] ha[s] had with [the HRBP] since September.” The supervisor also emailed the HRBP’s former supervisor, soliciting documentation.

The HRBP, however, did not receive any negative performance reviews from Santander until after the HR director suggested terminating her. And there was no documentation of disciplinary actions against her before the HR director suggested terminating her and Santander placed her on a PIP, even though several employees stated that Santander always documents disciplinary actions. “A lack of contemporaneous documentation,” the court observed, “despite evidence that the employer abides by rigorous record-keeping policies suggests pretext.”

Retaliation. However, summary judgment against her retaliation claim was appropriate, the court found, because more than three months passed between her protected activity—when she complained after her first PIP—and her termination, and she failed to present evidence that her earlier placement on a second PIP affected her in a way that would constitute an adverse employment action.

The case is No. 3:23-CV-01494-N.

Judge: Godbey, D.

Attorneys: Donald E. Uloth (Law Office of Donald E. Uloth) for Reena S. Mathew. Monte K. Hurst (Hallett & Perrin) for Santander Consumer USA, Inc.

Companies: Santander Consumer USA, Inc.

Cases: PregnancyDiscrimination Discrimination Retaliation Discharge TexasNews