## Facts

- Laura A. Makowski worked as marketing director at a law firm, reporting to senior management, and received raises and discretionary quarterly performance bonuses before taking leave.
- In 2007 she informed the firm she was pregnant; she was approved for leave under the Family and Medical Leave Act (FMLA).
- After pregnancy-related medical complications, she worked from home briefly and then began formal FMLA leave in late November 2007; she gave birth in December 2007.
- During her leave, the firm implemented what it described as an organizational restructuring.
- In February 2008, while still on FMLA leave, Makowski was told her position was eliminated and her employment terminated.
- Makowski proffered testimony that the firm’s human resources director stated Makowski was terminated because of her pregnancy and because she took medical/FMLA leave, and that men were not fired for having children.
- Makowski also claimed she was denied a discretionary fourth-quarter 2007 bonus in connection with her leave.

## Issues

1. Whether statements by the firm’s human resources director about the reason for Makowski’s termination were admissible as non-hearsay party-opponent admissions under Federal Rule of Evidence 801(d)(2)(D).
2. Whether, considering those statements and other evidence, summary judgment was proper on Makowski’s pregnancy discrimination and FMLA interference/retaliation claims.

## Decision

- The Seventh Circuit held the HR director’s statements were admissible under Rule 801(d)(2)(D) as statements by an employee about matters within the scope of her duties made during the employment relationship.
- The court ruled that Rule 801(d)(2)(D) does not require the declarant to be the formal decisionmaker, so long as the subject concerns the declarant’s work responsibilities.
- With those statements admitted, Makowski presented evidence from which a reasonable jury could find unlawful motivation, making summary judgment inappropriate on the pregnancy discrimination and FMLA interference/retaliation claims.
- The court reversed the exclusion of the statements, reversed summary judgment on those claims, and remanded for further proceedings.

## Legal Principles

- Under Federal Rule of Evidence 801(d)(2)(D), an employee’s statement is admissible against the employer if made during the employment relationship and concerning a matter within the scope of the employee’s duties; personal participation in the ultimate decision is not required.
- Statements attributing a termination to pregnancy or to taking medical/FMLA leave can constitute direct evidence of discriminatory or retaliatory intent when admissible as employer admissions.
- At summary judgment, courts must view evidence and reasonable inferences in the nonmovant’s favor and may not discount admissible evidence based on credibility determinations.

## Conclusion

The court concluded that the HR director’s alleged explanations for the firing were admissible employer admissions and, together with timing and performance-related evidence, created genuine disputes of material fact on pregnancy discrimination and FMLA interference/retaliation, requiring reversal of summary judgment and remand.


Makowski v. SmithAmundsen LLC, 662 F.3d 818 (7th Cir. 2011)