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harrasement while pregnant

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Allison518

Junior Member
What is the name of your state (only U.S. law)? OHIO


I work in OH and have been with the same employer for the last 11 years. 3 years ago I informed my employer I was pregnant and requested FMLA. I was told by HR I could not request FMLA until the baby was born. However, I pressed the issue and they approved it to cover my doctor appointments. The only time I missed work was for my dr. appts. I never had morning sickness, never missed from being tired etc. I worked up until the morning my son was born (I was at work when I went into labor) The reason I requested FLMA to cover dr appts is because as soon as my employer was informed I was pregnant I started getting written up for various things. I was told I was never at my desk. That I did not return calls promptly. When asked who was making these complaints no one could tell me any specifics. My boss mentioned a guy who was a friend of his who called me two years ago and I called him back and left him a message and he NEVER called ME back. This happened two years before I got written up for supposedly not being at my desk. Other supervisor told me I needed to watch my back because they wanted me gone. She did not put this in an email just verbally told me. I was written up 3 times all for things that I disputed.
3 years later I am pregnant with my 2nd child. I waited to tell my employer for fear of what happened last time. And it started all over again. I have been written up FOUR times (the fourth time was supposed to include a five day suspension per our policy but our director said he would be nice and waive that. He said if I was written up again I could be terminated. I was written up for 1) not putting the correct amount of time (including drive time) on my calendar (visible to my boss) for doctor's appointments. I always just wrote down the time of my appointment as I wasn't sure how long the appointment itself would take. This is not a policy as I checked and also EVEN MY MANAGER doesn't do this when she leaves the office (I have access to her calendar as well as other employees' calendars and no one else is required to do this yet I got written up for it.

I was also written up for taking a day off (sick day) that was supposed to be unpaid. I was sick for 2 days in a row (had the flu). now other than previous FMLA in 11 years I have never missed two consecutive days in a row. It is our policy that you have to have a dr note if you miss two days in a row. I was unaware of this policy (my fault I understand) so if you don't have the dr note you don't get paid for the time off. fine, My fault I accepted this. I had a stomach virus, was very weak, couldn't drive and didn't go the dr as I couldn't drive myself there and what is a dr going to do anyway? HR told me (when I returned) that I wouldn't be paid for those two days. I said ok I understand that is fine. Well they went ahead and paid me anyway. Their decision, I didn't ask them to. I got written up for not having a dr note for the two days I missed. Our policy says NOTHING about getting written up or even warned if you don't have a dr excuse. Just says you won't be paid for it (which I was, against their own policy!). our director said he was being "nice" by paying me but could still punish me for not having the note from a dr. Was written up for using my hour lunches as comp time for a dr appointment. Even though this was preapproved by my supervisor I was told I do it "too often" (they could only cite two occasions) and I'm not allowed to do this any longer. However ALL employees here use their lunch breaks as comp time- one lady does it every single week to go to a dr apt for allergy shots. I pointed this out and was told to mind my own business. So it seems there is a different set of rules for me. Also when I submitted my FLMA paperwork and was told it was granted our director told me I was "lucky" he approved it because he didn't have to approve it (we currently have 48 employees but it varies) However, just two months before my FMLA was approved two men had FMLA approved for paternity leave. So I would think they had to approve mine based on that?

Lastly I was written up for not notating my lunch breaks on my calendar. In 11 years I HAVE NEVER been asked to do this. It is not written down anywhere as a policy and from looking at all the other calenders (20 plus employees) I have access to- no one does this.
I have to point out that only a month before I told my employer I am pregnant, I received my annual evaluation and it was outstanding. There were no complaints about anything. and once I came back to work from my son being born (1st pregnancy) I didn't get written up for anything at all- until now. It is as though they are making up rules just for me. I'm a good worker- my boss gives me everything she wants done because she knows she can depend on me. When I bring this up during all these disciplinary meetings I have had to attend (write ups) HR and our director always says "the quality of your work is not in question". I don't know if they plan to fire me and that is why they are trying to make up all these supposed infractions but couldn't they be setting themselves up for some sort of discrimination lawsuit because I am pregnant (and performing all of my job duties)?
 


cbg

I'm a Northern Girl
When you went to HR and reported this was happening, what did they say?
 

Allison518

Junior Member
HR consists of one HR manager. She was present during all of my disciplinary meetings. All she will say is that they are following the progressive disciplinary procedure and I have to sign the write up forms whether I agree with them or not. Also she is our EOC? person so if I were to file a complaint about possible discrimination she would be the one to hear it and decide if it was valid. she wants to keep her job so I believe she would side with our director. I'm not even sure why they are "out to get me" I know its a hardship on the company when I take 6 weeks off and my kids will only a few years apart but they let a lady I work with who is a grandparent take off all the time to take care of her grandkids, bring them to work etc. They grant men FLMA to help their wives when a child is born, my former supervisor was just granted FMLA when his child was sick and required frequent dr visits. I don't see how they can give me a glowing evaluation and have no complaints a month earlier and then literally two weeks after I advise them I'm pregnant they start writing me up for things that make no sense.
 

commentator

Senior Member
She will be able, but in the meantime, I will say, keep very careful records of these write ups, and these meetings you have with supervisors, and the different issues for which you have been threatened and written up. Do not under any circumstances quit the job.

If they actually fire you, the first thing you will need to do is file for unemployment benefits. You can be approved for unemployment if the employer cannot show they had a valid misconduct reason to terminate you, that you were aware of what you were doing wrong, and that you were given an opportunity to improve your behavior and chose not to do so.

If you are terminated for absenteeism, it is not going to be considered misconduct for unemployment insurance reasons even if you have been warned or have violated their point system IF YOU HAVE A MEDICAL EXCUSE FOR THE LAST ABSENCE.

Make sure that you have a doctor's excuse for any and all absences you have from now on. Obtain for yourself a copy of the company's handbook, which you keep at home, where you keep all the records you have, copies of the write up letters, disciplinary actions, etc. In other words, if they walked in today and said you are fired, get out right now, make sure you'd have those records already, and could walk out without having to get them.

Yes, it sure does, from what you are saying, sound as if you are being targeted, harassed in a very stupid way, since it seems to occur only when you are pregnant. And what the guy says about FMLA isn't correct. And from the sound of this, they're not going to have any clear cut misconduct reason to terminate you, they're all over the page with you did this and this and this four years ago, and then this, and a little bit of this....That's what unemployment people refer to as a "shotgun termination." All the different issues do not a righteous termination make. It needs to be one clear cut carefully documented issue that the HR department has dealt with and warned you for and used progressive discipline before termination. Unemployment approval is very likely if this is not the case. Other things may be in the works too.

Now, answer cbg's question and let her help you.
 
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Allison518

Junior Member
Thank you all. I have records of everything including screen shots of others' Outlook Calenders, emails etc showing that other employees are treated differently and are doing the same things they are writing me up for (not against any company policies- just as they make up special rules for me that I am unaware of until I get written up for it)- with the exception of not having a dr note which I admit was my fault. But how can they go against their policy and pay me for it- but then write me up for it which results in what should have been a five day suspension? Their policy does include being written up- just having to take the time off unpaid. Also the other thing they wrote me up for (using lunch breaks as comp time for dr appts) was preapproved by my supervisor so how can I be written up for something that was approved? As for unemployment- if my company can show that they used their progressive discipline policy and that I made it through each of the five steps (5th is termination) I think that gives them just cause to terminate me and I will not qualify for unemployment benefits. I've only missed a total of 5 days in the last 6 months (total- that includes cumulative time taken off for dr appointments) and we don't have a point system or ANY policies regarding absences (except for call off procedure) I'm just worried they are going to fire me this time.
 

cbg

I'm a Northern Girl
I was thinking more about this on the train coming home and I have a few more questions, Alison. Please don't think I'm questioning what you're saying; I'm essentially trying to conduct an investigation when I only have access to one person. I'm trying to get a whole picture of the situation; it doesn't mean I'm doubting you or implying that you're in some way wrong to be concerned.

How are employees in your company treated when they need extended medical leave for non-maternity reasons? Has anyone had pneumonia, needed back surgery, a broken leg? How did things work for them?

This one I need you to really stop and think about. A "Yes" answer does not mean that there's nowhere to you to go with this - I'm going somewhere very specific with this question. Is there ANY validity to the things you've been written up about that are performance related? (FYI, the employer not only need not, but should not, be specific about who made what complaints.) Again, please be very honest here - saying yes does not mean you're necessarily dead in the water, but it might affect how I suggest you address it. If you say no, I'll believe you, but if the answer is yes, I need to know.

How have other employees who have been pregnant been treated?
 

commentator

Senior Member
Don't ask, "How can they.....?" Because they can, simply because there is no labor law that says they can't. People really believe they have a lot more rights and privileges in the workplace than they do until it happens to them. They have, they obviously can. They don't even have to follow their own clearly written and stated policies. In your "at will" state, they can fire you, in opposition to their own policies, at any time, for any reason, including that they don't like the color of your socks or that they're having a bad day. You would have no case for any sort of "wrongful termination" unless you can show they have fired you in violation of EEOC or FMLA or ADA or OSHA statutes, because those are all the workplace protections you really have.

Quote: "As for unemployment- if my company can show that they used their progressive discipline policy and that I made it through each of the five steps (5th is termination) I think that gives them just cause to terminate me and I will not qualify for unemployment benefits. I've only missed a total of 5 days in the last 6 months (total- that includes cumulative time taken off for dr appointments) and we don't have a point system or ANY policies regarding absences (except for call off procedure) I'm just worried they are going to fire me this time.[/QUOTE]


Do not say, "I will not qualify for unemployment....." because I used to do this for a living, and believe me, I understand the process. And I know that in order to have a good termination that will deny a person unemployment, they must (1) have one clear cut misconduct issue, such as not staying at your desk, or not answering the phone or being absent for x number of days without a doctor's statement (or even with a doctor's statement.

(2) have a single reason. In other words, they can't take this issue and write you up, and then later take this other issue and write you up, and then a few months later, write you up for this and this, and then say, "Okay, you've had five write ups, you are fired!" and expect that to be disqualifying for unemployment. They have the burden of proof to show that you were exactly aware of what you were doing wrong, of the fact that you need to change your behavior in order to keep your job, and that you voluntarily chose not to correct the misconduct and do what you could to keep the job.

If your performance is what they are questioning, if you showed up and did the job to the best of your abilities, your performance will not disqualify you. They have to show you were deliberately slacking, had the ability to do better but chose not to. That others around you in the workplace were doing what you did, and not being disciplined for it contributes to the reasonable argument that you did not know your behavior was wrong or that you would be terminated for it, and thus could not correct it.

Most employers do not actually understand the unemployment laws, and employees don't either. There's lots of misinformation out there. Therefore, do not ever jump to the conclusion you will not qualify for unemployment benefits and it's a waste of time for you to even file for them. They aren't welfare, they aren't based on need, and they are designed for people who are terminated without a valid cause.

Go on and file a claim, no matter why you are separated from work, and let them sort it out. Tell them exactly what is going on, never mind whether or not you think you will be approved. Above all, never ever take the word of the employer that you might as well not bother to file, because they will not "LET" you draw benefits, or they will tell the unemployment office so and so and therefore you won't be approved. Because your receiving benefits would cost them money, and they will actually lie to you about it. But in the system, we know they may do that, and so what they say has no more weight than how you tell it.

If they have a company policy about absenteeism and you fall into their point system, or their no point system, or their decision at random and are terminated after a last absence which puts you over their limits, you will very likely still qualify for unemployment insurance if this absence was for a medical reason with an excuse. Because that is looked at as something you could not have helped. In other words, if you are late because you overslept, that's your fault, but if it is because you are too sick to come to work, or your child is very ill, that's not avoidable.

Unemployment insurance is the first thing you file for, and your first recourse if you are fired from your job. Their system will determine if it is through no fault of your own. Then later it may come up that the employer has violated other laws or has singled you out for an EEOC related reason. But unemployment insurance doesn't deal with these issues, it merely determines the reason you are terminated, and gives you something to support yourself while you are looking for something else. Your pregnancy doesn't keep you from receiving unemployment benefits as long as you are able and available to the same extent while you are pregnant.

There's not much you can do about what they are doing to you, while you are there. As we said, they can do this to me, because they can, that's all. There's nothing to stop them. They sound to me like they may be harassing you to try to get you to quit, which would of course get rid of you and keep you from likely being eligible for unemployment. But if you keep showing up, keep doing your job to the best of your abilities, trying to correct any issues they write you up for, know that if they do fire you, you do have some recourse, in unemployment at least.
 
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Allison518

Junior Member
I was thinking more about this on the train coming home and I have a few more questions, Alison. Please don't think I'm questioning what you're saying; I'm essentially trying to conduct an investigation when I only have access to one person. I'm trying to get a whole picture of the situation; it doesn't mean I'm doubting you or implying that you're in some way wrong to be concerned.

How are employees in your company treated when they need extended medical leave for non-maternity reasons? Has anyone had pneumonia, needed back surgery, a broken leg? How did things work for them?

This one I need you to really stop and think about. A "Yes" answer does not mean that there's nowhere to you to go with this - I'm going somewhere very specific with this question. Is there ANY validity to the things you've been written up about that are performance related? (FYI, the employer not only need not, but should not, be specific about who made what complaints.) Again, please be very honest here - saying yes does not mean you're necessarily dead in the water, but it might affect how I suggest you address it. If you say no, I'll believe you, but if the answer is yes, I need to know.

How have other employees who have been pregnant been treated?
We currently have 49 employees. In the past 12 months we have had between 48 and 53. When I was pregnant the first time we had over 50 employees so they had to grant FMLA. I guess this time it was not required because at the time I requested it we did not have 50 or more. In the eleven years I have been here there has only been one other employee who was pregnant- she was pregnant when they hired her but she was the cousin of someone who already worked here. I don't think she was treated badly (she is still here). There have been several men who were granted FMLA to assist their wives after their children were born. Most of the employees here either already have children when they are hired or they are older. We have had several people take medical leave- for cancer, a brain anyerusm, taking care of terminal spouses back surgeries, etc. I really could not tell you how they were treated. Most still work here. I know my coworker who had cancer had been looking for another job but not sure if that was related to how he was treated.

The only validity to the things I 've been written up for is that I did not get a dr note when it was required. It was our policy and my fault entirely that I was not aware of it. As far as saying I am not at my desk etc. No not at all. I am not a social person, I don't stand around talking all day to others, I do my work and am polite. During my last disciplinary meeting I did get an attitude with our director. I am just so sick of being treated this way (plus pregnancy hormones) He actually threw his note pad at me because he got so upset (I brought up that I had called my state's wage and hour division about FMLA) So I guess you could add insubordination to the list of my offenses.
I know it is difficult to get the whole story because you only have my perspective so I understand the questions.
 

cbg

I'm a Northern Girl
FMLA could still be required depending on how many weeks out of the last year you met the 50-employee mark.

I'd like to think about this a while longer. I'm at work and can't really give it the concentration it deserves. See you at lunch. :)
 

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