News, Pamela Fink Says She Was Fired After Getting a Double Mastectomy To Prevent Breast Cancer. (employee, collect)
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A Connecticut woman claims she was fireddespite years of glowing reports by her employer after she told them she had tested positive for the breast cancer gene and would undergo a double mastecomy as a preventative measure.
"I was a great employee and I did really great work," said Pamela Fink, 39.
In Fink's 2009 performance review, her employers told her that she was doing an "exemplary job" and has been a "relentless crusader" for the brand. During an August 2009 meeting about her review Fink said that her supervisor Gina Goldberg told her "that if she was to lay off everyone in the Marketing Department except one employee. I would be the one employee she kept."
This is what so many companies do these days. They sugarcoat like hell and then throw you under the bus when things like this happen. I've never been through this sort of situation myself, but I can only imagine how frustrating it would be to have a decent position with such a company for several years only to get thrown under the bus later on. I hope this company gets what it deserves.
I just spent the last two weeks researching ERISA § 510 claims -- basically, claims of being fired to deny access to health care or other benefits protected under ERISA. To put it succinctly, there's always two sides to every story, and very frequently the "model employee" the plaintiff claims to be wasn't such a model employee after all and the company had legitimate grounds to terminate them. Of the 50+ cases for which I wrote executive summaries, approximately 3 or 4 of them were allowed to proceed on § 510 grounds. Some were allowed to proceed on other grounds (age/sex/racial discrimination, sexual harassment, etc.) but almost every single § 510 claim was summarily dismissed.
The company can find anything to get rid of an employee on "legitimate grounds" including falsifying documents or complaints. Almost every employer collects a dossier on every single employees' indiscretions, false,real, and exaggerated, to be used later in these situations. Ultimately the employer is always far more powerful than the individual. They have a team of clever attorneys and managers. The individual has nothing of the sort.
If the lady had cancer. Then I wouldn't be surprised if she was negatively effected by her cancer.
Quote:
Originally Posted by Drover
I just spent the last two weeks researching ERISA § 510 claims -- basically, claims of being fired to deny access to health care or other benefits protected under ERISA. To put it succinctly, there's always two sides to every story, and very frequently the "model employee" the plaintiff claims to be wasn't such a model employee after all and the company had legitimate grounds to terminate them. Of the 50+ cases for which I wrote executive summaries, approximately 3 or 4 of them were allowed to proceed on § 510 grounds. Some were allowed to proceed on other grounds (age/sex/racial discrimination, sexual harassment, etc.) but almost every single § 510 claim was summarily dismissed.
The company can find anything to get rid of an employee on "legitimate grounds" including falsifying documents or complaints. Almost every employer collects a dossier on every single employees' indiscretions, false,real, and exaggerated, to be used later in these situations. Ultimately the employer is always far more powerful than the individual. They have a team of clever attorneys and managers. The individual has nothing of the sort.
The problem with your analysis is that in nearly if not actually all the cases I documented, the employer's factual claims were uncontested. Even if an employee proffers -- and can substantiate -- a legitimate business reason for the termination, the plaintiff still has an opportunity to demonstrate that the proffered reasons were a pretext. Very few are able to do so.
Ugh. Like I just said a lot of employer's collect the indiscretions of their associates over a time period. It is usually done secretly through hear say from supervisors or company moles. And who doesn't have indiscretions? I don't know a lot of perfect people. A collection of indiscretions will make anybody worthy of being fired.
In your situations. Were the employees drinking on the job? high? cussing out customers? showing up late? gross incompetence? fist-fighting?
The harder the employee fights back. The less respect I will have for the company. Little tiny employer with millions of dollars versus the big bad mean scary employee with cancer?? Yeah, right.
Quote:
Originally Posted by Drover
The problem with your analysis is that in nearly if not actually all the cases I documented, the employer's factual claims were uncontested. Even if an employee proffers -- and can substantiate -- a legitimate business reason for the termination, the plaintiff still has an opportunity to demonstrate that the proffered reasons were a pretext. Very few are able to do so.
Hearsay doesn't work in a court of law. I realize it's easy to be cynical about the law but this is a case where you're being overly cynical. Like I said, it's a lot easier for other claims to advance to trial. ERISA § 510 claims are a lot tougher.
Some of the terminations didn't involve any indiscretions on the part of the employees at all. Some of them sued after an entire plant closed and everyone working there was terminated. Some sued because their division was spun off into a new company or sold to a different one and they didn't like their new benefits package. Some didn't like new agency rules imposed on them (in this case, independent insurance agents) and sued on the theory that they were "constructively" terminated. Terminations that did involve employee transgressions involved anything as simple as not showing up for work to as serious as drug-rehab employee giving drugs to another employee -- herself a recovering addict.
Employers are under no obligation to keep employees who suck -- even those who have cancer. And if they are sued, they're under no obligation to capitulate to the plaintiff either.
Whether this particular employee was fired on legitimate grounds or not, I don't know. All I'm saying is that while it's easy to frame a case like this as "big evil employer versus hapless innocent employee" without knowing all (or even any) of the facts, I have never seen one single case of this nature that is nearly so cut-and-dry. Probably because the ones that are never even make it to court.
Thank you. And I understand what you are saying. IMHO I feel it is pitiful that employers do not have more mercy and compassion. I'm just saying that from a humanitarian point of view. I'm more of a sensitive person. You get my drift.
Quote:
Originally Posted by Drover
Employers are under no obligation to keep employees who suck -- even those who have cancer. Whether that's the case here, I don't know. All I'm saying is that I have never seen one single case of this nature that is cut-and-dry. Probably because the ones that are never even make it to court.
Thank you. And I understand what you are saying. IMHO I feel it is pitiful that employers do not have more mercy and compassion. I'm just saying that from a humanitarian point of view. I'm more of a sensitive person. You get my drift.
Compassion is nice and all, but at the end of the day, businesses are not charities. They are businesses, and there's nothing compassionate about doing nice things that cost you money and could end up costing all of your employees their jobs as you go out of business. The root of the problem in cases like this goes deeper than the story on the surface; namely, that we have come to rely on employers to supply us with our medical care.
Compassion is nice and all, but at the end of the day, businesses are not charities. They are businesses, and there's nothing compassionate about doing nice things that cost you money and could end up costing all of your employees their jobs as you go out of business. The root of the problem in cases like this goes deeper than the story on the surface; namely, that we have come to rely on employers to supply us with our medical care.
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