Ms. Whaley had worked her way up to become manager of the Santa Clara Fred Meyer Electronics Department, and had been in that position for 11 years before she was terminated. In those 11 years, she had only one disciplinary write up in her file – she disciplined herself for reading a new computer calendar system wrong and missing a shift in 2013. She was an exemplary employee.
On the night of Friday, October 24, 2014, the Department of Human Services (DHS) called Ms. Whaley and told her that her granddaughter and her granddaughter’s four siblings needed emergency foster placement. Of course, Ms. Whaley and her husband welcomed them into their home.
Ms. Whaley was scheduled to work on Monday, October 27, 2014, but DHS had medical evaluations planned for the children that day. Over the weekend, Ms. Whaley arranged the schedules for Monday, so that she could take the day off, and made sure the store director, Henry Johnson, knew that she would need to be out that day.
When she returned to work on Tuesday, Henry Johnson put her on suspension for three days. He said he knew she took the day off to take care of foster children placed through DHS, but she should have called him on his personal cell phone to tell him about the absence. This was not part of Fred Meyer’s policy and Ms. Whaley had never done that in the past.
The Bureau of Labor and Industries found substantial evidence that Fred Meyer discriminated against Ms. Whaley, holding,
[T]he law provides protection for those taking unforeseeable OFLA leave. A Friday night placement for four foster children can reasonably be seen as an unforeseen event prior to a scheduled Monday shift … In this case, Complainant missed one scheduled shift for the emergency placement and care of foster children, which is protected under the Oregon Family Leave Act. She followed the company policy and notified her PICs of her absence in advance of her missing the shift. … That she was suspended and terminated upon her return for taking the protected day indicates a violation of ORS 659A.183.
A copy of the BOLI determination is available here.
Meredith Holley and Jennifer Middleton of Johnson Johnson & Schaller filed a lawsuit for Kathy Whaley in Lane County Circuit Court on June 24, 2016, alleging that Fred Meyer violated Oregon law. Oregon law protects employees who take time off to care for newly placed foster children. A copy of the Complaint is available here.
Ms. Whaley has suffered shame, humiliation, and the stress of trying to find a new job after having devoted most of her life to Fred Meyer. She was forced to go through this stress while she was caring for four young children. Fred Meyer’s actions showed no respect for Ms. Whaley’s years of service, and the Complaint alleges that Ms. Whaley may amend it to ask for punitive damages in order to discourage Fred Meyer from doing this to other employees.