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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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please refer to california law specifically. Fmla and paternity

Customer Question

please refer to california law specifically. Fmla and paternity leave. Please advise

Dear Mr. X (SVP, Director Human Resources)

For 2 weeks I have requested to meet with you and only you. I followed the chain of command. A meeting was scheduled today and prior to the meeting I sent a request to meet with you privately, it was denied. I did not feel comfortable speaking about the issues at hand with My boss and his boss. I was forced to send a hastily composed email about the concerns I wanted to speak to you about before this meeting. Since my request has been refused, here is a more complete version of events that I had planned to describe in the meeting I was promised with just you.

For weeks I have been attempting to understand the sharp deterioration in my working relationship with both (my boss) and (his boss). All along I’ve spoken of May 19th, 2011 as the date our good working relationship changed completely. From that day forward, I was treated with disrespect and contempt when the emails prior to this date show a very friendly relationship between us three. This was perplexing to me since I could not understand what precipitated it. Now, I understand and it was my impending fatherhood.


Less than 2 months ago, in an informal meeting with both (my boss) and (his boss) at at (his) desk I was asked by (his boss) how I would be handling my position as Framework Administrator for the Akcelerant Project during the birth of my new son. I explained, I would take possibly a day or two off for his birth, but be available for questions during that time since it could likely be at a critical time in the implementation of the Akcelerant Project. I would return to work and then once the Akcelerant Project was up and fully functional, I would take some additional paternity leave off to care for my family. I had worked since college for an opportunity like the Akcelerant Project and it was a priority in my life. I was completely honest with Ron and Sue about my intentions and thought little more about the exchange.


In reviewing emails, I came to the realization, I told them both on May 17th, 2011 of the exact date of my wife’s scheduled cesarean section, August 22nd, 2011. As I have exhaustively stated, on May 19th, everything changed between Ron, Sue, and I. The tone of the emails changed from a friendly nature to downright hostile. I began being reprimanded for doing things I was told by either (my boss) or (his boss) to do. My work was scrutinized to a ridiculous degree. I had the Akcelerant Project I had spent months on, stripped from me. In other words, within the space of a few weeks, I went from a great employee to one with problems. Nothing at that time changed except the exact time of my wife having our child.


This is not a coincidence and it is discrimination. My work ethic has been unwavering. I have never had major issues at my job with anyone, including Ron and Sue, until the subject of me taking paternity leave came up and it was in the midst of the Project. Suddenly, after that, I became a volatile employee who could not handle such a huge project. Prior to this, there is not one other incident of me being described as volatile, by either a colleague or a customer. Keep in mind, I work in a very emotionally charged job. It would not be unreasonable that I’d have complaints considering the nature of my career. In fact, it’s exceptional that I don’t.


There are many facets of this situation which I had hoped to discuss in a one on one meeting with you per my request, but I guess simply touching on the major issues in an email is the best I am able to receive. I am being discriminated against for my need to have time with my family after my wife’s difficult pregnancy and birth. Due to this, I lost an opportunity I worked very hard for.


My family and myself have undergone a great deal of stress which is the last thing my pregnant wife needs. The (HR Rep) stated that the stress my wife is under due to this situation is my fault for bringing such a matter home. Losing everything I worked for along with the threat of losing our livelihood and health insurance can’t be left at work. My wife and I are partners. The hostile work environment and retaliations I have endured can’t be left at work. To suggest, her stress which is jeopardizing her health and the health of our unborn son, is somehow my fault, is beyond cruel.


I tried for 2 weeks to speak with you before this escalated. I took every possible avenue to get this resolved amicably. Thank you for taking the time to read this.


Sincerely,

mr. x
Submitted: 3 years ago.
Category: California Employment Law
Expert:  PhillipsEsq replied 3 years ago.
Thank you for giving me the opportunity to assist you. I encourage you to ask me for clarification, if you are not clear with my Answer.

I have carefully reviewed your post. However, I did not see a specific question. What is your question?
Customer: replied 3 years ago.
Hello,
First you are not licensed in CA i believe that might be a problem? correct me if I am wrong, Do I have a discrimination case base on paternity leave and retalitory act inflicted upon me. Hope that helps
Expert:  PhillipsEsq replied 3 years ago.
We do not give legal advice here. So, any licensed attorney can answer legal questions in all the states. However, if you prefer a California licensed attorney, let me know so that I can opt out and let the attorney answer your question.

I await your response before answering your question.
Customer: replied 3 years ago.
Ok Thank you I would like to have an attorney from california answer my question.
Expert:  PhillipsEsq replied 3 years ago.

Alright then.

 

I will opt out in favor of a California Expert.

Customer: replied 3 years ago.
Thank you
Expert:  socrateaser replied 3 years ago.
Hello,

I am a member of the State Bar of California with comprehensive knowledge of California employment law. What question can I "justanswer" for you?
Customer: replied 3 years ago.
do i have a discrimination and retaliation claim aganist my employer
Expert:  socrateaser replied 3 years ago.
In a sex discrimination context, which appears to be the core issue of your claim, because you are effectively claiming that the employer is treating you differently based upon your desire to have bonding time with your newborn child, the requirement is to show that the employer has created a "hostile environment," where the sexual conduct had the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. See Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65, 106 S.Ct. 2399, 2404-2405.

In California, the California Supreme Court has defined FEHA "harassment" as "conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives." Reno v. Baird (1998) 18 Cal.4th 640, 645, 76 Cal.Rptr.2d 499, 502.

As with any discrimination claim, the difficulty is proving the case -- because frequently once the claim is made, witnesses who were prepared to come to the assistance of the discriminated employee, suddenly can't recall anything, principally due to their feer of being terminated from employment.

That said, your stated facts, definitely suggest a sex harassment claim, and under federal law 29 CFR 1604.11, the employer is required to investigate, or it may be subject to automatic liability, even if no sex harassment is ever proved.

Thus, assuming that you wrote HR and it did nothing to investigate, you may have a claim, even if you never had a claim (if you take my meaning).

To file a claim of employment discrimination, see this link. You can also hire a private employment rights attorney to sue and to assist you with the claim filing. See this link.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 3 years ago.
Relist: Incomplete answer.
I believe he answered as if I were a female and did not ask for clarification. I felt if he would have asked or allow me to converse back before accepting and paying $53 I would have been more likely to press accept. Thank you.
Expert:  socrateaser replied 3 years ago.
Whether man or woman, the answer is the same -- so, I had no need to ask for clarification.

However, if you need clarification, you are welcome to ask, and I will be happy to assist.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 3 years ago.
Ok that helps a lot. My concerns is that this has been happening since May 19th 2011, I just recently found out through reading all my emails that this was not only harassament but discrimination. Which I recently June 28th sent an email to the SVP of HR which he said he would investigate. However, my reputation, my career potential, the harassment, the demotion, the hostile work enviornment, the fact HR never talked to any employees when I brought the compliant to them on 6/20 is still a fact. Do i have a case also for breach of verbal contract given the fact I was not only promised but given a job just to have it ripped away with no valid reason but that all of a sudden I was volitle, when I have had stellar reviews, no write ups and no complaints?
Expert:  socrateaser replied 3 years ago.
Harassment is a form of unlawful discrimination, and not an entirely different cause of action from discrimination. Harassment occurs where the victim is overtly discriminated against -- whereas most forms of unlawful discrimination is covert (conducted "behind the scene").

My original answer is unchanged. It's up to you as to whether or not you choose to pursue the claim.

Note: you originally mentioned something about an FMLA claim. That's a different claim entirely from discrimination. To make such a claim, you must formally request from your employer and be denied FMLA leave. Otherwise, you have no claim on this legal theory. The same is not true for discrimination.

Best wishes.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

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