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Fired for Pregnancy?

Former employee takes R-G to court
Serena Marksrom talks to reporters in front of the Register-Guard March 27, 2014. Photo by Amber Hogan

A year and a half after journalist Serena Markstrom was fired by The Register-Guard, she has filed a lawsuit against the newspaper where she had worked for more than a decade.

Markstrom, who also goes by her married name Serena Markstrom Nugent, was terminated by the paper shortly after informing her employer of her pregnancy. Markstrom was fired for being “dishonest, insubordinate and having destroyed company property” after checking her email while on pregnancy-related disability leave.

The “destroyed property” refers to emails that Markstrom deleted.

On Aug. 28, she filed a complaint against the R-G in Lane County Circuit Court seeking economic and non-economic losses of $525,000. The case centers on claims of gender discrimination, hostile work environment, retaliation and violating the Oregon Family Leave Act. 

Markstrom had worked at the daily paper since college and was well known in the community for her lively entertainment reporting and social media presence.

In the months before the paper fired her, Markstrom had been pulled from her longtime music and entertainment beat — a beat, the court filing says, “for which she was recruited, trained, experienced and exceptional.” -She was  then transferred to a newsroom beat that covered all of rural Lane County, a job for which the complaint says, “she had little background.”

The complaint, written by Markstrom’s attorney Chris Lundberg, goes on to allege the R-G failed to provide Markstrom any “meaningful help” on the new beat for more than seven months, though her editors were nonetheless supportive. But “all of that changed dramatically when she notified The Register-Guard of her need for pregnancy related family leave.”

The court document does not assert that Markstrom never made any errors in her time at the R-G and in fact points several of them out; rather, the argument is that the newspaper “precipitously re-characterized any of Ms. Markstrom’s mistakes in the months before her pregnancy as serious performance deficiencies.”

In December 2013, the R-G presented Markstrom with a “lengthy performance improvement plan [PIP] that threatened her with termination in the very near future.” According to the complaint, the PIP was in regard to issues that the paper had never previously brought to Markstrom’s attention “as sufficiently problematic to justify discipline, let alone termination.” 

The original PIP was renegotiated in January 2014, the complaint says, when her union, the Eugene Newspaper Guild, pointed out that as part of the collective bargaining agreement, the Guild has to be notified and a specific process filed when disciplining a Guild member.

News agency Reuters came under fire in 2012 when it used PIPs against more than 30 veteran journalists. In an anonymous letter to media blog Romenesko, one Reuters employee wrote, “One correspondent was told that he doesn’t use enough pronouns in his writing when they couldn’t find anything else wrong with him.” Nine employees left and eight were offered their jobs back “after an arbitrator effectively voided the use of performance improvement plans as a disciplinary tool,” according the NewsGuild of New York.

After she was given the PIP, Markstrom’s doctor removed her from the workplace for the rest of her pregnancy, the court filing says.

After Markstrom submitted her request for Oregon Family Leave Act intermittent leave to deal with pregnancy related illness, the complaint says that Wendy Baker — who is legal counsel and director of human resources at the paper as well as a member of the Baker family which owns the R-G — instructed Markstrom’s editor to “promptly document any and all of Ms. Markstrom’s conduct” that the editor, Ilene Aleshire, “could be critical of because, according to Ms. Baker, The Register-Guard ‘needed to get this  done soon,’ before Ms. Markstrom ‘got into her pregnancy and … claimed pregnancy discrimination.’”

Markstrom was fired in March of 2014.

Law firm Ogletree Deakins responded to a complaint Markstrom filed with the Bureau of Labor and Industries (BOLI) in November 2014. Markstrom later withdrew the complaint, opting for a jury trial instead.

In its response to Markstrom’s allegations, the publishing company denies it fired her for her disability, sex, pregnancy and invocation of the Family Leave Act. The paper paints Markstom as a deficient and dishonest employee. The response says it cites four instances in which Markstrom was issued written reprimands, though it says one of the instances was too old to be included in her PIP.

In one case, the BOLI response says Markstrom filed a story that was too long and then left the office without notifying her editor, failing to follow newsroom procedures. In another, an editor emailed her to chide her for coming into work on a Friday to make up for shorter days she worked earlier in the week, saying she needed the “explicit approval” of her supervisor to deviate from her standard workweek. The paper alleges she was “playing fast and loose” with her schedule. 

What finally led to Markstrom’s termination, according to the complaint, was when Markstrom checked and deleted some of her emails. Aleshire told Markstrom that she could not ‘do any work, including checking emails and voicemails,’ while she was on disability leave. Baker discovered the deleted emails while accessing Markstrom’s account. According to the complaint, Markstrom knew when she deleted the emails that the R-G would still have access to them via its archiving system.

The R-G and the Eugene Newspaper Guild had previously been in a legal battle that the complaint says “led to a judgment authorizing Guild members to use their Register-Guard emails for union and personal matters.”

Markstrom’s complaint says she understood the instructions to mean that she could not work — which might include checking work-related emails and voicemails. “She did not understand this to be a total prohibition against accessing her email account for personal matters.”

In response to a request for comment, R-G publisher N. Christian Anderson III tells EW, “We welcome the opportunity to have our day in court. To date, the descriptions of the circumstances of Ms. Markstrom’s separation have been entirely one-sided and opportunistic. Now she will have to present her implausible story, under oath, to a jury. In her lawsuit, she admits the misconduct for which she was fired. A jury is not likely to award her a windfall based on the evidence, none of which supports pregnancy discrimination.”

The complaint says, “The Register-Guard ultimately fired her, using the trumped-up performance improvement plan and other accusations as a smokescreen for its discriminatory and retaliatory motives.”

Full disclosure: Camilla Mortensen attended Serena Markstrom’s wedding, and the writers are friends.