Articles Posted in Workplace Harassment/Sex Discrimination

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

DUE TO THE HARASSMENT PLAINTIFF NEARLY LOSES HER BABY AND IS THEN PLACED ON A MONTH-LONG MEDICAL LEAVE

Because of the harassment, Plaintiff is placed on bed rest after almost losing her baby. During the second meeting, Plaintiff starts to cramp and bleed relating to her pregnancy. She is concerned about her pregnancy and goes to the doctor that a short time later. She nearly loses her baby after having a threatened abortion also known as a threatened miscarriage. She is placed immediately on bed rest. The bed rest last for about a month, which Plaintiff provides all the doctors’ notes for to Defendant.

Plaintiff is placed on about a month long medical leave because of her pregnancy. As stated above, Plaintiff’s doctors place her on bed rest for about one month. She is also placed on further doctor’s restrictions including no lifting over 10 lbs, no long walking, no vacuuming or strenuous activity. She is placed on a Pregnancy disability leave/FMLA leave by Defendant. Her first day back was around June 21, 2006.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

PLAINTIFF FINDS OUT SHE IS PREGNANT AND DISCLOSES HER PREGNANCY TO HER SUPERIORS AND MANAGEMENT AND THERE IS AN IMMEDIATE NEGATIVE REACTION

Plaintiff finds out she is pregnant and discloses her pregnancy to management. Plaintiff found out she was pregnant in May of 2006. In mid-May of 2006, Plaintiff informed her supervisors that she was pregnant. That included telling Paul Chan.

Immediately after disclosing her pregnancy Plaintiff is treated poorly because of her pregnancy. On May 12, 2006, Plaintiff is issued a verbal warning and placed on an action plan for telling employees she was pregnant. Defendant’s admits that one of the reasons for the verbal discipline on May 12, 2006 had to do with Plaintiff discussing her pregnancy. There is no policy against telling employee about a pregnancy, yet Plaintiff was still disciplined. An employee should not be disciplined for telling people she is pregnant. Nonetheless, she was disciplined.

HER PREGNANCY HAD COMPLICATIONS FOR WHICH SHE REQUESTS ACCOMMODATION AND IS TREATED POORLY AS A RESULT

Plaintiff’s pregnancy required some accommodations. Plaintiff was told by her doctor to avoid any heavy lifting of items over ten pounds. She informed her co-worker and management about that issue in late May of 2006. Her supervisors admit to knowing of Plaintiff’s lifting request. Plaintiff is told by management to tell employees to lift items for her and do not lift herself. Nonetheless, employees refuse to help her. Her supervisors start to act very cold and distant to her right after she asked for the accommodation as well.

Within a few days of disclosing her pregnancy and asking for accommodation, Plaintiff is harassed by her supervisor and she is not wanted because of her pregnancy. In later May of 2006, Plaintiff is called into Mr. Davis’s office. He accuses her of false things such as swearing at a customer. Ms. Smith never swore at a customer. Instead, she always treated each customer with great respect. In that conversation, Mr. Davis starts yelling at Plaintiff. He tells her that he does not want her there because she is pregnant and she should either quit or go on disability.

Mr. Davis yells at Plaintiff that she cannot handle the job because she is pregnant and that she should quit. Plaintiff responds that he is harassing her because she is pregnant and to stop yelling at her. He continues to yell at her, telling her to quit or go on disability over her pregnancy. Mr. Davis tells Plaintiff that pregnant women have hormones and attitudes and she should quit or go on disability.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

THERE WERE NO PLANS TO FIRE PLAINTIFF PRIOR TO HER DISCLOSING HER PREGNANCY

For Plaintiff’s entire employment, up to the time she disclosed she was pregnant, she was considered at least an average worker. Plaintiff started working for Whole Food in April of 2004. As detailed below, she disclosed her pregnancy in May of 2006. From the time of her hiring in April of 2004 through May of 2006, when she disclosed her pregnancy, she was considered at least an average employee. Further, an admitted fact is that there were no plans whatsoever to fire Plaintiff prior to her disclosing her pregnancy. No one told Mr. Davis they wanted Ms. Smith fired prior to disclosing her pregnancy. Her supervisors never recommended she be disciplined or fired prior to her disclosing her pregnancy. In fact, her supervisors testified they did not have any problems with her performance prior her disclosing her pregnancy.

Per company policy, most of Plaintiff’s discipline record was removed and she is not even on a final warning by the time she disclosed her pregnancy. Defendant has a drop off policy, where after a period of time any discipline drops off and no longer counts against the employee for discipline purposes. How the policy works is any verbal or written discipline drops off after one year. And a final drops to a 2nd corrective after six months and drops off totally after another year. Under that policy, the 7/1/04, 10/26/04, 11/15/04, and the 5/25/05 counseling had completely dropped off. Further, the 12/22/04 and 2/21/05 counseling were dropped down to corrective counseling. At the time that Plaintiff discloses her pregnancy, she is not on any final warning.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

STATEMENT OF FACTS
A. PLAINTIFF WORKED FOR DEFENDANT SERVING CUSTOMERS

Plaintiff Gina Smith (hereinafter Plaintiff or Ms. Smith) worked for Defendant for multiple years in the Roseville store. Ms. Smith was hired in April 16, 2004. Her job was to work in prepared foods, serving Healthmart Foods customers various types of food, i.e., pizza, sandwiches, salad, soup, etc. Plaintiff was employed by Defendant until April 27, 2007.

PLAINTIFF WAS A GOOD EMPLOYEE DURING HER EMPLOYMENT WITH DEFENDANT, EARNING MULTIPLE MERIT BASED PAY RAISES

During her employment with Defendant, Plaintiff was a good employee. First, as an introductory employee she was voted on by her team members to work in prepared foods, which requires a positive two-thirds vote. For Plaintiff to be voted on, she had to be performing satisfactory, which she was. Ms. Smith earned three merit based pay raises during her tenure, moving from $9.00 an hour, to $9.25, then $10.25 and then $11.25. She received good performance reviews.

The decision maker admitted she was at least an average employee. Mr. Davis is the Store Leader. He made the decision to fire Ms. Smith. Mr. Davis admitted that from April 16, 2004 through May of 2006 (before he learned she was pregnant), she was an average employee.

During her employment with Defendant, Ms. Smith received favorable marks. First, she was told numerous times by all her supervisors, including Paul Chan that she did an excellent job and was a great employee. She was constantly complimented by staff, customers and her supervisors for her great customer service. Mr. Davis admits to getting positive feedback about Plaintiff’s performance from her supervisor. Mr. Davis admits that Ms. Smith’s customer service was good, at least at times.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

Plaintiff GINA SMITH (hereinafter referred to as Plaintiff ) hereby submits her opposition to Defendant HEALTHMART FOODS (hereinafter Healthmart Foods or Defendant ) motion for summary judgment and summary adjudication of issues. This opposition is based on the fact that there are triable issues of fact as to each cause of action.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This case involves an employee who was in no risk of losing her job for the first 26 months because she was doing a great job, who got pregnant, was constantly harassed about the pregnancy and fired for false reasons one day after her request for accommodation and complained of harassment without any investigation into her claims. Based on the evidence a triable issue of fact exists as to whether his firing was motivated by her complaints, accommodation requests and pregnancy and that she was harassed.

Plaintiff was considered a good employee prior to disclosing her pregnancy. Plaintiff worked for 26 months prior to disclosing her pregnancy. During that time she got 3 pay raises, multiple good reviews and praise for her good work. Also, the undisputed facts show there were no plans to fire her prior to her pregnancy and she was generally thought of as a good employee.

However, that changed after she disclosed her pregnancy. She disclosed her pregnancy in May of 2006. After that she was disciplined for talking about her pregnancy, told to quit because she is pregnant and they did not want pregnant employees, yelled at and cursed at.

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