Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—W.D. Tex.: Performance records raise pregnancy retaliation question, (Jul 16, 2026)

By George Basharis, J.D.

The timing and documentation of employer’s asserted performance concerns could support a finding of pretext, while conflicting accounts preserve the employee’s accommodation claim.

Xpansiv Data Systems Inc. must face trial on claims that it denied a pregnant employee reasonable workplace accommodations and fired her for complaining about pregnancy discrimination. A federal court in Texas found that conflicting accounts about delayed starts, breaks, and desk restrictions left the accommodation issue unresolved, while the timing of the termination and the supervisor’s documentation of claimed performance problems could support a finding of pretext. However, the employee’s pregnancy discrimination claim, her disability discrimination, retaliation, and failure-to-accommodate claims under the ADA along with her Title VII hostile work environment claim were dismissed on summary judgment because she could not identify a similarly situated coworker, establish a qualifying disability or ADA-protected activity, or show sufficiently severe or pervasive harassment (Smith v. Xpansiv Data Systems, Inc., No. SA-24-CV-01027-XR (W.D. Tex. July 13, 2026)).

The employee began working for Xpansiv in May 2023 and immediately entered a 12-week training period. Xpansiv maintained that her supervisor observed several performance problems during that period, including poor notetaking, missed deadlines, inadequate preparation, and difficulty answering client questions. The employee disputed that account. She said the supervisor did not provide negative feedback during training and instead described her work as “beautiful” and told her she was doing an “awesome job.”

Pregnancy disclosure. During an August 10, 2023, meeting, the supervisor raised concerns about the employee’s time management, note-taking, knowledge of Xpansiv’s business lines, and ability to answer basic client questions. The employee then disclosed that she was pregnant and at risk of developing high blood pressure and preeclampsia. She maintained that the supervisor’s management style changed “almost immediately,” with increased scrutiny of minor details and documentation of performance problems. Xpansiv later cited several incidents, including late assignments, difficulty explaining key material during a client call, and an inaccurate client email. The supervisor also said the employee required more daily attention than others at her level.

PIP. Xpansiv placed the employee on a performance improvement plan on September 15, making her the only employee to receive one. The plan required substantial improvement in account management, regulatory knowledge, organization, and prioritization. Three days later, she complained to the supervisor and the supervisor’s manager that Xpansiv had imposed the plan only after learning of her pregnancy. The supervisor’s manager investigated but found the plan warranted by the employee’s subpar performance. Xpansiv terminated the employee on October 13 after the supervisor determined that she had not met the plan’s goals, two months after the pregnancy disclosure and about one month after the complaint.

Retaliation. The employee presented enough evidence for a jury to decide whether Xpansiv’s stated performance concerns masked retaliation. Her complaint about the timing of the performance plan constituted protected activity, and the short interval between the complaint and her termination supported an initial inference of causation. Xpansiv responded with evidence that it terminated her because she continued to perform poorly while on the plan.

A jury, however, could find that explanation pretextual, the court determined. After the employee complained, the supervisor began to suspect that she would sue for pregnancy discrimination. Therefore, the supervisor could have documented performance problems to build a case for the anticipated litigation and then relied on that documentation to recommend termination.

The absence of documented performance problems between the end of training and the pregnancy disclosure also supported a possible finding of pretext. The employee passed her final training panel and independently sent 15 client emails while on the performance plan. Taken together, the evidence could show that the supervisor manufactured performance problems after the complaint rather than documented, existing deficiencies. Consequently, the retaliation claims under Title VII, the Pregnancy Discrimination Act, and the Texas Labor Code will proceed to trial.

Accommodation. Conflicting accounts kept the employee’s Pregnant Workers Fairness Act claim alive. She requested a delayed start time, frequent breaks, and permission to leave her desk and walk around. Although Xpansiv presented testimony that the supervisor approved those requests, the employee said she was prohibited from leaving her desk during her shift. The evidence also conflicted over whether the supervisor permitted late starts or barred them. Those factual disputes left a jury to decide whether Xpansiv reasonably accommodated the employee’s pregnancy-related limitations.

Other claims. However, the employee’s pregnancy discrimination was dismissed on summary judgment because she did not identify a coworker outside her protected class who received more favorable treatment under nearly identical circumstances. Without a comparator, she could not establish the required initial showing of discrimination.

Her disability-related claims also failed. The employee relied on her risk of developing high blood pressure or preeclampsia, but the risk of developing a medical condition did not establish a disability under the ADA. That conclusion defeated both her disability discrimination and failure-to-accommodate claims under the ADA.

The ADA retaliation claim was dismissed because the employee did not identify protected activity tied to disability discrimination. Her internal complaint concerned pregnancy discrimination, and she did not maintain that Xpansiv fired her because she requested disability accommodations.

Finally, the employee’s allegations of increased scrutiny, questioning about attendance and productivity, public embarrassment, and instructions to remain at her desk did not describe sufficiently severe or pervasive harassment. The evidence showed that all employees received the same instruction to remain at their desks, and the employee identified only vague or isolated comments to support her hostile work environment claim.

The case is No. SA-24-CV-01027-XR.

Judge: Rodriguez, X.

Attorneys: Stanley Rafe Foreman (Hutchinson & Foreman) for Natalie Smith. Josh K. Ordiway (Littler Mendelson) for Xpansiv Data Systems, Inc.

Companies: Xpansiv Data Systems, Inc.

Cases: PregnancyDiscrimination Discrimination DisabilityDiscrimination Discharge Retaliation TexasNews