Pregnant, she claims she was forced out

by on October 12, 2011 · 34 Comments POSTED IN: HR Cafe
pregnant-employee-260x173.jpg

“This isn’t going to work, you taking so much time off,” supervisor Barbara Trask told employee Melinda Stieglitz, who had telephoned to say she wouldn’t be in again that day.

“You know I’m expecting,” Melinda said indignantly. “My doctor put me off this week because of pregnancy-related stress and cramping.”

“If absences due to your pregnancy were all we were talking about, it would be O.K.,” Barbara said. “But earlier this year you missed more than two weeks that were not related to your pregnancy.

“I can’t staff the department when one person is out so often,” Barbara went on. “You’ve already had an oral warning, and I have to tell you one more absence will have serious disciplinary consequences.”

FMLA not the answer
“Why can’t I take that family leave thing?” Melinda said.

“FMLA? You haven’t been here long enough to qualify,” Barbara said. “Maybe we can look at some kind of disability accommodation. But you can’t keep piling up absences.”

“As a woman, you ought to understand what I’m going through, with two kids at home and another on the way,” Melinda said resentfully. “But all you do is put more pressure on me with these threats.”

“I’m sorry you see it that way,” Barbara said calmly.

Melinda hung up without another word. The next day, she dropped her office keys off with the receptionist and said, “I’m done here.”

Later, Melinda sued, claiming she was pressured into resigning because of her pregnancy. Did she win?

The Decision
No, Melinda didn’t win her pregnancy discrimination lawsuit.

Melinda claimed Barbara, by telling her that one more absence would lead to discipline, made attendance demands that were impossible for a pregnant woman to meet, and were intended to make her quit.

But the court said that while this demand may have been unpleasant for Melinda, it didn’t make her working environment intolerable. Melinda could have returned after her week of medical leave to see whether things could be worked out. The court also noted that Barbara’s mention of a disability accommodation indicated that she wanted to keep Melinda on, if possible.

Your supervisory rights
Supervisors have the right – and the duty – to counsel employees about attendance and other conduct issues. As long as you refrain from abusive threats, such employees can’t quit and then claim you forced them out.

Thanks to everyone who joined in the conversation yesterday. Check back soon for the next installment of If You Were The Judge.

Cite: Trierweiler v. Wells Fargo Bank, No. 10-1343, 8th Cir., 4/8/11. Fictionalized for dramatic effect.

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34 Comments on This Post

  1. Carole King
    October 12, 2011 - 1:22 pm

    There was not an appropriate attempt to enter into the interative ADA process and the company most likely would loose a case.

  2. Carole King
    October 12, 2011 - 1:22 pm

    There was not an appropriate attempt to enter into the interative ADA process and the company most likely would loose a case.

  3. Reynoldst
    October 12, 2011 - 1:25 pm

    It sounds like the manager was being honest and straightforward about the hardship the absences caused. I wouldn’t call that a hostile workplace. She pointed out absences that were not pregnancy related. She also offered to see if some other type of leave could be used.

  4. Reynoldst
    October 12, 2011 - 1:25 pm

    It sounds like the manager was being honest and straightforward about the hardship the absences caused. I wouldn’t call that a hostile workplace. She pointed out absences that were not pregnancy related. She also offered to see if some other type of leave could be used.

  5. Mlongo
    October 12, 2011 - 1:27 pm

    Melinda most certainly has a case here.  She could be considered disabled and the fact that a disciplinary action was threatened as result of her absences could be viewed as discrimination and/or harassment.  The manager should have simply requested an updated physician’s note with an estimated date of return and investigated options of FMLA or disability.

  6. D. Serrano
    October 12, 2011 - 1:27 pm

    I don’t think this young lady won.  If she didn’t qualify under FMLA for paid or unpaid time off and had excessive previous illnesses, the employer has a perfect right to expect her (or any employee) to be available and ready to work as a condition of continued employment. 
     
    Add to that, she quit.  The employer did not dismiss her, but cautioned her regarding an attendance issue.  How did that create a “hostile working environment”? 
     
    Darlene Serrano
    HR Director

  7. Mlongo
    October 12, 2011 - 1:27 pm

    Melinda most certainly has a case here.  She could be considered disabled and the fact that a disciplinary action was threatened as result of her absences could be viewed as discrimination and/or harassment.  The manager should have simply requested an updated physician’s note with an estimated date of return and investigated options of FMLA or disability.

  8. D. Serrano
    October 12, 2011 - 1:27 pm

    I don’t think this young lady won.  If she didn’t qualify under FMLA for paid or unpaid time off and had excessive previous illnesses, the employer has a perfect right to expect her (or any employee) to be available and ready to work as a condition of continued employment. 
     
    Add to that, she quit.  The employer did not dismiss her, but cautioned her regarding an attendance issue.  How did that create a “hostile working environment”? 
     
    Darlene Serrano
    HR Director

  9. Micholz
    October 12, 2011 - 1:28 pm

    I imagine that the courts found in favor of the employee.   Despite that the absences earlier in the year were not pregnancy related, the fact of the matter is the most recent absence was pregnancy related and supported by a physician.   Whether or not it was intended, it reeks of pregnancy discrimination.

    • HRLady
      October 12, 2011 - 2:01 pm

      How does this reek pregancy discrimination? The employer was willing to work out accommodations. Please make sure that you know and understand the law, pregnancy is not a disability and although the employee missed days with doctors orders she could still be in violation of the company’s attendance policy. The employer was willing to work with her and at no point did the employer say you are fired or you are going to be terminated, she stated that the absences are extreem and violated the company’s policy. This is in no way pregnancy discrimination and I HOPE that the company won.

  10. Micholz
    October 12, 2011 - 1:28 pm

    I imagine that the courts found in favor of the employee.   Despite that the absences earlier in the year were not pregnancy related, the fact of the matter is the most recent absence was pregnancy related and supported by a physician.   Whether or not it was intended, it reeks of pregnancy discrimination.

    • HRLady
      October 12, 2011 - 2:01 pm

      How does this reek pregancy discrimination? The employer was willing to work out accommodations. Please make sure that you know and understand the law, pregnancy is not a disability and although the employee missed days with doctors orders she could still be in violation of the company’s attendance policy. The employer was willing to work with her and at no point did the employer say you are fired or you are going to be terminated, she stated that the absences are extreem and violated the company’s policy. This is in no way pregnancy discrimination and I HOPE that the company won.

  11. gardengazer
    October 12, 2011 - 1:38 pm

    The fact that her manager was willing to look at some other options would indicate that she is understanding of the situation but still needs a person that is able to perform the job.  I didn’t view the supervisor’s statements as a threat and the fact that other absences that weren’t related to a pregnancy were involved in the course of disciplinary action.  The supervisor sounded like she was truly interested in figuring out a solution.

  12. gardengazer
    October 12, 2011 - 1:38 pm

    The fact that her manager was willing to look at some other options would indicate that she is understanding of the situation but still needs a person that is able to perform the job.  I didn’t view the supervisor’s statements as a threat and the fact that other absences that weren’t related to a pregnancy were involved in the course of disciplinary action.  The supervisor sounded like she was truly interested in figuring out a solution.

  13. Miranda
    October 12, 2011 - 1:43 pm

    I think the employer won.  The employee had a past history of attendance issues before the pregnancy, and the employee did mention offering a disability accomodation for the pregnancy, and the employee quit anyway. 

  14. Miranda
    October 12, 2011 - 1:43 pm

    I think the employer won.  The employee had a past history of attendance issues before the pregnancy, and the employee did mention offering a disability accomodation for the pregnancy, and the employee quit anyway. 

  15. Carla
    October 12, 2011 - 1:56 pm

    I am 98% sure that the employee won her law suit. Although the employee’s absences were creating staffing problems for the department, the supervisor should have offered an accommodation to the employyee and made the best of it. Pregancy is a temporary disability and should be treated as one. Many supervisors need training in this area.

    • HRLady
      October 14, 2011 - 2:14 pm

      Pregancy is NOT a disability!!!! Please understand the meaning of the word before giving advice. I am glad that the employer won, as based on what was presented there was no discrimination or harrassment that happened and the employee was just unhappy that she was being held accountable for her actions.

  16. Carla
    October 12, 2011 - 1:56 pm

    I am 98% sure that the employee won her law suit. Although the employee’s absences were creating staffing problems for the department, the supervisor should have offered an accommodation to the employyee and made the best of it. Pregancy is a temporary disability and should be treated as one. Many supervisors need training in this area.

    • Cgodfrey
      October 12, 2011 - 3:11 pm

      They were justified because she was addressing the isssue of being able to staff the department, not the pregnancy.  She mentioned absences that were not related to the pregnancy as an example.  Also, she tried to work with the employee by mentioning an accommodation.

    • HRLady
      October 14, 2011 - 2:14 pm

      Pregancy is NOT a disability!!!! Please understand the meaning of the word before giving advice. I am glad that the employer won, as based on what was presented there was no discrimination or harrassment that happened and the employee was just unhappy that she was being held accountable for her actions.

  17. Carla
    October 12, 2011 - 1:59 pm

    The employee’s resignation under the circumstances could be considered an constructive discharge also.

  18. Carla
    October 12, 2011 - 1:59 pm

    The employee’s resignation under the circumstances could be considered an constructive discharge also.

  19. Cgodfrey
    October 12, 2011 - 3:11 pm

    They were justified because she was addressing the isssue of being able to staff the department, not the pregnancy.  She mentioned absences that were not related to the pregnancy as an example.  Also, she tried to work with the employee by mentioning an accommodation.

  20. Loraine
    October 12, 2011 - 3:55 pm

    I think the employer will win the case.  The employer was kind enough to give the employee another oral warning.  Barbara could have just written her up.  At my previous place of employment it was 1-verbal warning and 2 written warnings and then you could be terminated.  The employer was being compassionate and fair.

  21. Loraine
    October 12, 2011 - 3:55 pm

    I think the employer will win the case.  The employer was kind enough to give the employee another oral warning.  Barbara could have just written her up.  At my previous place of employment it was 1-verbal warning and 2 written warnings and then you could be terminated.  The employer was being compassionate and fair.

  22. Nikki
    October 12, 2011 - 5:09 pm

    Employer will definitely win this issus… Employee first off has resinged on her own recognizence and was only REMINDED that she is already on disciplinary action for attendance issues.  She has been reminded that she doesn’t qualify for FMLA, but should have been asked to provide additonal doctor documentation stating that she will need to miss additional days due to her situation.

  23. Nikki
    October 12, 2011 - 5:09 pm

    Employer will definitely win this issus… Employee first off has resinged on her own recognizence and was only REMINDED that she is already on disciplinary action for attendance issues.  She has been reminded that she doesn’t qualify for FMLA, but should have been asked to provide additonal doctor documentation stating that she will need to miss additional days due to her situation.

  24. Kmross
    October 12, 2011 - 5:27 pm

    No. She was not threatened. The consequesnces of continued absences was explained along with an offer to start the ADAAA discussion re disability and a reasonalbe accomodation. The earlier absences also show a pattern of attendance porblems.

  25. Kmross
    October 12, 2011 - 5:27 pm

    No. She was not threatened. The consequesnces of continued absences was explained along with an offer to start the ADAAA discussion re disability and a reasonalbe accomodation. The earlier absences also show a pattern of attendance porblems.

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  28. Jennifer Olsen
    October 14, 2011 - 10:59 am

    This sort
    of situation happens quite often in the workplace, though not always pregnancy
    related. Situations involving stress related claims, I personally find the most
    difficult to manage.  I think it’s
    important for employers to keep focused on the core job responsibilities of the
    position, to let the employee know that a doctor’s note will be required to
    enter into an interactive dialogue process if h/she feels they need a
    reasonable accommodation and to remind h/her that the core responsibilities of
    the position will not change.  The work
    still has to get done.  How it gets done
    may be accommodated if reasonable.  It’s
    in the employer’s best interest to ensure this situation is under control
    before the employee becomes eligible for FMLA as FMLA and ADA regulations differ.  It’s difficult to manage to both and to
    terminate an employee for performance issues when they are on FMLA.  Not impossible of course, but more stress
    than is required if the situation is managed early on. 

  29. Jennifer Olsen
    October 14, 2011 - 10:59 am

    This sort
    of situation happens quite often in the workplace, though not always pregnancy
    related. Situations involving stress related claims, I personally find the most
    difficult to manage.  I think it’s
    important for employers to keep focused on the core job responsibilities of the
    position, to let the employee know that a doctor’s note will be required to
    enter into an interactive dialogue process if h/she feels they need a
    reasonable accommodation and to remind h/her that the core responsibilities of
    the position will not change.  The work
    still has to get done.  How it gets done
    may be accommodated if reasonable.  It’s
    in the employer’s best interest to ensure this situation is under control
    before the employee becomes eligible for FMLA as FMLA and ADA regulations differ.  It’s difficult to manage to both and to
    terminate an employee for performance issues when they are on FMLA.  Not impossible of course, but more stress
    than is required if the situation is managed early on. 

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