Employee Terminations: The Seventh Circuit Reminds Employers that Statements From Non-Decision Makers Do Matter

A reminder to employers – statements made by non-decision makers do matter. A recent Seventh Circuit decision found that a human resources director's comments about an employee's termination can be considered a party admission.

In Makowski v. SmithAmundsen, LLC, et al., No. 10-3330 (7^th Cir. Nov. 9, 2011), Laura Makowski, a marketing director, sued her former employer alleging pregnancy discrimination and violations of the FMLA. While Makowski was on FMLA leave for the birth of her child, the employer's Executive Committee decided that it wanted to terminate Makowski's employment. The Chief Operating Officer was told to consult with outside counsel to discuss Makowski's potential termination. The COO delegated this task to the Director of Human Resources. The employer later terminated Makowski and an IT employee explaining that the positions were being eliminated due to organizational restructuring.

When Makowski came to collect her personal items from her employer's office, the Director of Human Resources allegedly told Makowski that her termination was due to her pregnancy and because she took a medical leave. The Director also allegedly divulged to Makowski that her termination was labeled a reduction in force based on outside counsel's recommendation.

The District Court ruled that the director's statement was inadmissible hearsay because the Director's "job responsibilities were not related to the decision to terminate Makowski, and because [the Director] was not involved in the decision-making process." The Seventh Circuit reversed finding that while the Director was not involved in the employment action (i.e., Makowski's termination), "she was involved in the decision-making process leading up to that action due to her consultation with outside counsel regarding the termination and her job duties, which include ensuring the [employer's] compliance with federal anti-discrimination laws." The Seventh Circuit noted that the Director's comments were direct evidence of a discriminatory intent, and revived all of Makowski's claims against her former employer. Employers must remember that "involvement in the process leading up to the employment action at issue is enough to make an employee's statement an admission."

If you have any questions about this decision or employee termination issues, we encourage you to consult with legal counsel.