DaVita Healthcare Sued for Pregnancy Discrimination, Particularly During COVID-19

On Wednesday, a mother of two filed a complaint against DaVita Healthcare Partners Inc. and DaVita, Inc. (collectively, DaVita) in the Southern District of New York, alleging that DaVita discriminated against the plaintiff “on the basis of gender, pregnancy status and caregiver status,” in which the plaintiff’s pregnancy and status as a mother allegedly led “to pretextual disciplinary action and her eventual termination.”

The plaintiff claimed that she has exhausted her administrative remedies by timely filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission with claims under Title VII and the Pregnancy Discrimination Act.

According to the complaint, the plaintiff is a “former, eligible employee of Defendants” as defined in the Family Medical Leave Act (FMLA) and New York State Human Rights Law. The complaint noted that the plaintiff worked for DaVita, a corporation that provides dialysis treatment to patients, since October 2012 as a clinical dietician. The plaintiff stated that she was a “faithful employee,” and was recognized by her managers receiving a Service Excellence Award.

The plaintiff claimed that in March 2017, she gave birth to her first child and took a six-month maternity leave pursuant to the FMLA, when she returned to work she was reassigned to the evening shift, despite being removed from the evening shift before her maternity leave. She expressed her dissatisfaction with the shift change to her manager noting that she had a baby at home. As a result, she worked the evening shift for about eight months until April 2018, when she was returned to her regular schedule. The plaintiff noted that she “continued to work for DaVita and received positive evaluations and feedback from her managers.” The plaintiff’s schedule was altered in 2019 and the plaintiff again in 2019 received a positive evaluation. In February 2020, the plaintiff discovered she was pregnant again, shortly before the COVID-19 pandemic broke out in New York City.

The plaintiff noted that “(a)s DaVita constitutes an ‘essential business,’ the Company mandated that its employees continue working and seeing patients in person, except for physicians, who were allowed to work from home.” Moreover, DaVita allegedly “treated patients suffering from COVID-19.” Therefore, according to the plaintiff, “DaVita employees working with patients in-person were at an increased risk of exposure to COVID-19.” In March 2020, the plaintiff’s child’s daycare notified her that it was closing because of the pandemic, after which she notified her manager and asked for accommodations so she could work from home as her “work as a dietician did not require any in-person interaction with patients, and she could perform all her job duties by way of DaVita’s Telehealth system.” However, DaVita denied the plaintiff’s request to work from home, “claiming that they were not equipped for her to counsel patients by Telehealth and telling her that she would have to continue coming to the physical workplace.” Subsequently, because of this denial, she took an unpaid leave of absence from March 22 – March 30, 2020, after which she requested an extension under the New York Paid Family Leave, but her request was denied and her request for childcare accommodations was denied.

After visiting her doctor, she was informed that “there would be an increased risk of complications to her and her unborn child if she was exposed to COVID-19,” causing the doctor to suggest that she work remotely full-time or at least remotely part-time to lower her risk of exposure. The plaintiff then notified her manager of this doctor-recommended request, which was denied. Allegedly, she was told she “could either return to work full-time starting the next day or resign.” The plaintiff returned to work full-time, but continued to struggle with childcare and a few times in May and June 2020, she arrived late to work, according to the complaint, and her other requests for help were denied.

In August 2020, the plaintiff received a FaceTime call from a former DaVita employee while she was at work walking from her personal office to the waiting room, asking how some patients were doing, however, another colleague reported the call to the plaintiff’s manager, according to the complaint. The plaintiff stated that she was warned that this could possibly be a breach of HIPAA because of the patients in the background and she would need to receive training. Reportedly, this incident was submitted to the Compliance Department, which then contacted the plaintiff; a few weeks later, she was not given training despite asking for it. Instead, the plaintiff averred that she was terminated for the alleged HIPAA violation.

The plaintiff alleged that because she was six months pregnant at the time of her termination and would likely be taking maternity leave, DaVita terminated her “to avoid having to maintain her employment while she took an extended pregnancy-related FMLA leave.” As a result, the plaintiff proffered that this conduct was unlawful and retaliatory.

DaVita is accused of violating the New York City Human Rights Law and the New York State Human Rights Law, as well as interfering with anticipated pregnancy leave in violation of the Family Medical Leave Act.

The plaintiff seeks declaratory judgment in her favor; an award for damages, costs, and fees; and other relief.

The plaintiff is represented by Crumiller P.C.