Sunny Day Blues–Unfair Employer Discrimination & Retaliation

Question:

My supervisor has never liked me, in part because she’s a total workaholic and I believe in work/life balance. It’s impossible to meet her expectations and things have gotten worse since we returned to the office. If I spend a minute clearing my head by taking a personal call or checking my Hotmail account and she catches me, we have a “conversation.” I’d quit in a heartbeat, but I like my employer, coworkers and pay, just not her.

As you know, we’ve had a lousy summer. A couple of weeks ago, after working on sunny days Tuesday through Thursday, only to have it rain all weekend, I asked my supervisor to let me take my accrued paid leave during the week whenever it was sunny.     

She turned me down, saying “short notice time off” needs to be reserved for employees who get sick. Meanwhile, when another employee got an unexpected invitation one morning to halibut fishing, she approved his leave. He didn’t have any accrued leave built up, and I heard she allowed him work Saturday and Sunday to make up his time. When I heard that, I told her that granting his “short notice” request and letting him make up the time smacked of sex discrimination. She shrugged me off, saying, “He earned it; he works hard; he never slacks off.”

I didn’t know we had to earn time off over and above accruing it. I have enough accrued paid leave to take three vacation days. Isn’t it my right to take them whenever I choose?

Last week when the weather forecast showed there would be two sunny days that week and then a long rainy stretch, I filled out a leave request. Even though I gave a day’s advance notice, my supervisor turned me down, saying, “We already have two other employees out. If I approve your leave, there won’t be anyone to handle customer calls.” Isn’t this retaliation for my protesting her discriminatory treatment? I’m angry. If I call in sick for those two days, could she retaliate by firing me? If she does, what would I need to do to get my job back?

Answer:

Although employees have the right to use accrued paid time off (PTO), they generally don’t have the right to use it on specific days. The reason—while some states require employers to provide employees paid sick leave, no federal law requires that employers provide vacation or sick leave.

As a result, employers have discretion over when and how they honor PTO requests. While few employers would fire an employee for using accrued PTO, most require that employees ask supervisors for permission and won’t let too many employees take leave on the same day, leaving the employer short-handed.

For you to win on your claims of discrimination and retaliation, you have to prove your case. Can you?

You have some facts on your side. Your supervisor allowed an employee of a different sex take short notice leave and make up time on the weekend. She allowed two other employees to take leave on days you also asked for.

Your supervisor appears, however, to have legitimate reasons for her decisions. She gave a hard-working employee a perk. Two other employees filed leave requests before you made yours. 

Although you claim unfairness and may be right if your supervisor unfairly favors the employee who went halibut fishing, you make a stronger case for three different conclusions. You prove other employees can meet your supervisor’s expectations, that you may never be happy working under her supervision, and that you want to use the law to get your way.

What might happen if you call in sick? If your supervisor finds out you’ve lied, you’ll have handed her a solid, non-retaliatory reason to fire you.