Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RETALIATION—W.D. Mich.: Custodial employee was fired for performance issues, not pregnancy, (Nov 14, 2025)

By Kathleen Kapusta, J.D.

In addition to a Title VII claim alleging pregnancy discrimination, the employee also brought a claim under the Pregnant Workers Fairness Act.

A custodial employee for Western Michigan University who learned she was pregnant during her first week of employment, and who was fired less than five months later for performance issues, could not show she was fired because she was pregnant, a federal court in Michigan ruled, denying her motion for summary judgment on her Title VII claim and granting her employer’s motion for the same. And because she failed to show the university was aware of any limitations on her job performance stemming from her pregnancy, her Pregnant Workers Fairness Act claim also failed on summary judgment (Payne v. Western Michigan University, No. 1:24-cv-814 (W.D. Mich. Nov. 13, 2025)).

The plaintiff began working for the university’s custodial department as a probationary employee in April 2023. Not only did she learn she was pregnant that same week, she also started having performance issues, including getting “smart” with a supervisor who told her to clean something again, needing coaching on how to properly vacuum, and having to redo incomplete work. At her 30-day evaluation, her supervisor graded her performance as “unsatisfactory” in three out of seven categories, including attendance.

Complaints. Although she was marked as “satisfactory” in all areas other than attendance at her 60-day evaluation, her supervisor claimed that around that time she started getting a lot of complaints about the employee disappearing during the day. In August, one custodial supervisor purportedly found the employee laying down on a couch in a dark room with her eyes closed. When she claimed she was just taking a rest because there was nothing to do, he told her that was a horrible response and there was always work to be done such as washing door frames and polishing water fountains. The employee later testified that she took a break because she was feeling dizzy but did not tell the supervisor she was unwell.

Termination. Upset with the employee’s actions, the supervisor informed the employee’s supervisor about the incident and his belief she should fail probation. Others who worked with the employee agreed and the employee’s supervisor passed this information on to HR. The labor relations director subsequently approved her termination after speaking with the employee’s supervisor and the custodial department director. The supervisor testified that her conclusion the employee’s performance was unsatisfactory was based in part on her frequent absences and her sitting down during working hours. She claimed the employee’s nap and haphazard cleaning also factored into the decision.

Title VII claim. Pointing to comments her supervisor allegedly made during her 30- and 60-day evaluations—including that her pregnancy was inconvenient and terrible timing and that she should not treat her pregnancy as a disability—the employee argued that this was direct evidence of discrimination. Disagreeing, the court noted that at most, the supervisor recommended the employee’s termination. But that did not prove that the employee’s attendance motivated the supervisor’s recommendation or that the labor relations director adopted that reason when accepting the recommendation.

Indeed, the court observed, even though the supervisor had raised attendance issues as early as May, the HR department had declined to fire the employee at that time based on her excused absences. Further, the labor relations director not only disclaimed reliance on her absences in explaining his decision, he stated that his decision was based on information derived from sources other than the supervisor including emails about the employee’s performance and concerns raised by others.

Burden-shifting evidence. Because there was no evidence the employee’s attendance record influenced the labor relations director’s termination decision, the court turned to the burden-shifting framework. Once again, the employee relied on the supervisor’s comments to establish a nexus between her firing and her pregnancy as well as the supervisor’s email to HR recommending termination in which she referred to the employee’s frequent absences as examples of poor performance and her discussion of her poor attendance in the employee’s final evaluation shortly before her termination.

While the court acknowledged that the supervisor, as the person in charge of training new employees, undoubtedly influenced the termination decision, the three-month period-of-time between the supervisor and labor relations director learning of her pregnancy and her termination undermined the connection. “The Court is unaware of a precedent in this circuit in which a span of three months created a genuine dispute over whether there was a nexus between pregnancy and termination.”

Discriminatory motive. Nor was the employee able to show the university acted with discriminatory motives beyond temporal proximity. As to the supervisor’s comments, she was not the decisionmaker in the employee’s termination and there was no evidence the labor relations director was biased against pregnant workers or that the supervisor’s recommendation determined his decision.

The employee also failed to show she was treated differently from similarly situated workers. If anything, said the court, she appeared to have been given greater leeway because of her pregnancy as her attendance was not held against her like another worker whom the supervisor recommended failing because she used sick leave during her first week of work. Moreover, two of her supervisors testified that they worked as custodial employees during their pregnancies and took maternity leave without suffering adverse consequences. Accordingly, the court found the employee failed to make out a prima facie case.

Pretext. And even had she stated a prima facie case, she was unable to show her employer’s stated reason for firing her—unsatisfactory job performance—was pretextual. While she pointed to some conflicting evidence on whether she had a bad attitude at the beginning of her employment, she did not deny being “mouthy.” Further, she did not contest that her work assignments were poorly or partially completed. As to her contention she was fired because of the supervisor’s annoyance over her doctor’s visits and breaks resulting from her pregnancy symptoms, there was no evidence the university fired her for that reason and not for her inability to complete work assignments. Based on all of this, the court granted the university’s motion for summary judgment on this claim.

PWFA claim. Addressing next the employee’s Pregnant Workers Fairness Act claim, the court noted that the “PWFA’s novelty means that the case law interpreting it is scarce, but courts that have entertained PWFA claims have treated them like failure-to-accommodate claims” under the ADA. And here, said the court, her failure-to-accommodate claim failed because she was unable to show her employer was aware of any limitations on her job performance stemming from her pregnancy. While her doctor’s notes stated that she was suffering from nausea and vomiting, one note requested only that she be excused from work for the day of her doctor’s visit, which was granted. Nothing about the note, said the court, suggested she needed more extensive accommodations to deal with her pregnancy challenges, let alone that those challenges affected the quality of her work.

As to her claim the university failed to engage in the interactive process because it did not volunteer to accommodate her at her 60-day and final evaluations, this also rested on the premise that she effectively communicated her need of an accommodation to the university. But she admitted she never informed her supervisors that her pregnancy was making it more difficult for her to fulfill her job duties and the university could not be faulted for not accommodating her needs if she never made them known, said the court, granting summary judgment against this claim as well.

The case is No. 1:24-cv-814.

Judge: Jarbou, H.

Attorneys: Paulina Rose Kennedy (Sommers Schwartz) for Amber Payne. Daniel B. Tukel (Butzel Long) for Western Michigan University.

Companies: Western Michigan University

Cases: PregnancyDiscrimination Discrimination Discharge MichiganNews