Perhaps you’ve heard the story of Angela Ames, perhaps not. If not, I’m happy to share it with you. I’m particularly interested in what I see as a missing and a rather important piece in the litigation of this case. The lack of citing FMLA interference.

Angela Ames, a new mother, sued her employer Nationwide Insurance Company for sexual discrimination after being coerced into resigning from her position on her first day back from maternity leave.

Unfortunately, the Supreme Court refused to overturn a District Court’s decision that Angela Ames had not been sexually discriminated against when she was fired after seeking a place to lactate on her first day back to work from maternity leave citing amongst other reasons that “men can lactate too.”

Although this exact statement was not the sole basis for the Supreme Court’s decision, it certainly echoes an old proclamation by the courts stating that discriminating against pregnant women at work isn’t sexual discrimination because of the absurd fact that both men and women can be “non-pregnant.”

In my opinion this case not only shows an obvious and distinct case of sexual and pregnancy discrimination but also seems to be lacking allegations of the glaring FMLA violations throughout this case.

Let’s look at some of the facts:

Angela Ames, a loss mitigation specialist at Nationwide Mutual Insurance Co., had experienced complications with her pregnancy and was ordered to bed rest by her physician. Angela went to her department head, Ms. Neel, to inform her of the need for Family and Medical leave. At this time, Neel rolled her eyes and said that she “had never had to go on bed rest” when she was pregnant and that she “never had complications with her pregnancies.”

A round of applause for Ms. Neel.

According to Ames, her direct supervisor Mr. Brinks also remarked to others in the office about Ames’s maternity leave, stating, “Oh, yeah, I’m teasing her about only taking a week’s worth of maternity leave. We’re too busy for her to take off that much.”

One might argue that this could be an issue under 825.220 (a) stating:

“An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.”

Angela goes home on leave and delivers her baby prematurely on May 18th, 2010. Her FMLA leave was approved until August 2, but on June 16th Neel called Ames to inform her that there had been a mistake in calculating her FMLA maternity leave and that her approval would expire on July 12. At this time, Neel told Ames she could remain out through her initial approval period, but doing so “would cause red flags”, and that she “didn’t want there to be any problems like that.”

When Angela returned to work on July 19th, her son was eight weeks old, and she was nursing every 3 hours. She had been advised she would have access to the company lactation room when she returned to work.

Here’s where the cookie crumbles –

Angela returns to work immediately needing to express as it had been 3 hours since feeding her son. At this time, she was informed that she had to wait for the mandatory three-day “paperwork processing period” before she could use the lactation room. For those of you who have never lactated, when hearing something of this nature the floor falls out from beneath you; Consider that you are most certainly about to wet your pants, at this very second, in the middle of your office!

Regardless of my opinion about that policy I am amazed that this very important piece of information related to returning a new mother to work was completely overlooked.

The ever gregarious Ms. Neel advised Angela that it was not her responsibility to help her find a place to lactate and referred her to the company nurse. The nurse was also unwilling to bend the 3-day rule and directed Angela to use the company’s “wellness room” also known as “the sick room”. Yes, the place where sick people go. At least the nurse sent her with a polite reminder that the room might expose her new baby’s milk to germs. Due to severe pain from engorgement and with her breasts beginning to leak, Angela runs to the sick room to express her milk. Unfortunately, it’s in use, and she’s turned away. Now, you’ve peed your pants.

While waiting for the sick room to be free, Angela makes a visit to her direct supervisor to discuss the status of her work. She is promptly advised that none of her work was completed while she was out and that she would only have two weeks to complete it, which would take “considerable overtime”, and failing to catch up would be “cause for discipline”.

Let’s just be clear on this part – Angela must complete her daily duties along with eight weeks of uncompleted work in just two weeks, or risk discipline.

This expectation sounds to me like a very clear case of retaliation for having taken FMLA leave.

29 CFR 825.220 (c) states that “The Act’s prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights… By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no-fault attendance policies.

Visibly upset and in tears, Angela goes back to the department head at which time she is told “You know, I think it is best that you go home to be with your babies.” This specific statement was not deemed sexist by the courts as it was “gender neutral.”

A show of hands for all the men who have been told that it might be best to go home and be with his babies on his first day back at work from his maternity leave. Oh, wait…

At this time, the department head pulls out a piece of paper and hands it to Angela, proceeding to effectuate her resignation.

Pretty unbelievable isn’t it?

Arguably she was not terminated but completed her resignation herself.

However, any mother that has to return to work while our children are so very young understands the stressors related to that. Adding the emotional turmoil that Angela was undergoing due to the inability to express her milk and the threat of discipline related to the uncompleted work while she was away, I might argue that it’s not arguable.

ACLU’s Galen Sherwin says this case “shines a harsh light on the multi-layered workings of structural discrimination: Workplace policies that don’t make space for the realities of pregnancy and motherhood, employers’ entrenched sex stereotypes and implicit bias, and courts that — despite decades-old legal protections — still manage to turn a blind eye to the pervasive discrimination faced everyday by working women.”