Labor & Employment Law Daily Wrap Up, PRIVACY—E.D. Mo.: Nurse manager’s GINA claim will not advance, (May 6, 2025)

By Marjorie Johnson, J.D.

Pretext could not be inferred from remarks her supervisor and colleagues allegedly made about the effect the arising COVID-19 pandemic might have on those who were immunocompromised or had autoimmune disorders.

A former nurse manager who was placed on a COVID-19 related furlough and then had her job eliminated several months after allegedly disclosing that she and several family members suffered from a rare genetic disorder failed to survive summary judgment on her claim of employment discrimination under the Genetic Information Nondiscrimination Act (GINA). Applying the McDonnell Douglas framework, a federal court held that cost reduction, selection based on seniority, and operational reorganization during the COVID-19 pandemic were legitimate nondiscrimination reasons for the adverse actions which the employee failed to refute as pretextual (Schmank v. Missouri Baptist Medical Center, No. 4:23-cv-00148-HEA (E.D. Mo. May 2, 2025)).

Surgery planned. In 2015, the medical center hired the employee as a nurse manager for labor and delivery in the women and infants service line (the “service line”). In early February 2020, she shared with her supervisor that she was planning outpatient surgery related to gynecological issues, and during the discussion the supervisor allegedly suggested she take off more time than was medically necessary to recover.

Genetic disorder disclosed. The employee also shared that she had Hereditary Pheochromocytoma Paraganglioma Syndrome, a medical condition that may increase an individual’s risk of certain types of cancer. She also claimed that she disclosed that several of her family members had the syndrome and that her brother died from it.

Urged to take undesirable job. About a week later, the supervisor encouraged her to apply for a position in quality management (QM), which she perceived to be a demotion since she would have no direct reports and there were rumors that the role might be eliminated. She did not apply and was never assigned to the role.

Pandemic-related furloughs. That spring, the medical center placed staff members on furloughs to address the financial strains that resulted from the effects of the COVID-19 pandemic. The employee’s supervisor was tasked with identifying one of the four nurse managers from the service line to furlough, and she chose the employee because she had the least seniority.

Position eliminated. The employee underwent hysterectomy surgery while she was on furlough, and on June 12, informed her supervisor that she was available to return to work. However, she was not called back to work. In mid-July, her supervisor was tasked with eliminating a nurse manager position as a means of permanent cost savings and she eliminated the employee’s position based on seniority. Her job duties were then distributed among the remaining managers.

Lawsuit. She sued, alleging claims of discrimination and retaliation under the Missouri Human Rights Act, the ADA, the ADEA and GINA. The employer moved for summary judgement, and because the employee waived arguments as to all claims except for the GINA claim, the court dismissed the waived claims and focused its analysis on the GINA claim.

Knowledge of “genetic information.” Under GINA, it is unlawful for an employer to discriminate against an employee based on “genetic information,” which includes information about “an individual’s genetic tests,” “the genetic tests of the individual’s family members,” and “the manifestation of a disease or disorder of the individual’s family members.” Here, a triable issue existed as to whether the employee told her supervisor that she has a hereditary syndrome determined by genetic factors and that her family members had manifestations of the same syndrome.

McDonnell Douglas framework. Noting that neither the U.S. Supreme Court nor the Eighth Circuit has analyzed a claim of employment discrimination under GINA, the court agreed with the employer that the legal framework used in Title VII cases and other federal anti-discrimination statutes should apply. Notably, the language of GINA’s anti-discrimination provisions tracks the language of Title VII, and both statutes prohibit employers from taking certain actions “because of” certain traits, conditions, or characteristics.

Because there was no direct evidence, the court applied the McDonnell Douglas framework and concluded the employer was entitled to summary judgment since the employee failed to present sufficient evidence to allow an inference of bias based on genetic information. Moreover, she failed to refute as pretextual the medical center’s contention that it placed her on furlough and eventually terminated her as part of a seniority-based selection process to reduce costs as part of its pandemic-related operational reorganization.

Job suggestion didn’t suggest bias. The court rejected her contention that bias could be inferred from the one-week gap between her disclosure of her genetic disorder and her supervisor’s suggestion that she apply for the QM position. First, she did not suffer any adverse employment action since the suggestion that she apply did not affect the terms of conditions of her employment. Moreover, there was no evidence supporting her perception that the position was less desirable or suggesting she was coerced into applying for it.

Timing not suspicious. In addition, the timing between the disclosure of her genetic disorder and her placement on furlough (three months) and ultimate termination (five months) was not sufficiently close to infer bias or suggest pretext. Furthermore, the development of the unprecedented global pandemic constituted a major intervening event that would break any causal link based on temporal proximity.

“Immunocompromised” remarks. Finally, pretext could not be inferred from comments the employee claimed her supervisor and colleagues made about the effect the arising COVID-19 pandemic might have on individuals who were immunocompromised or had autoimmune disorders, and those with underlying diseases such as cardiac issues, cancer, and respiratory disorders. “Setting aside that these comments were not made at the time of the adverse employment actions in this case, no finder-of-fact could reasonably conclude that the comments demonstrate animosity towards Plaintiff or any person with a genetic disorder,” stated the court.

The case is No. 4:23-cv-00148-HEA.

Judge: Autrey, H.

Attorneys: Joseph A. Ott (Ott Law Firm) for Barb Schmank. Heidi L. Eckert (Blitz, Bardgett & Deutsch) for Missouri Baptist Medical Center.

Companies: Missouri Baptist Medical Center

Cases: Privacy Discrimination Discharge Covid19 MissouriNews GCNNews