Four months after Abigail Shomo started waiting tables at a Mexican restaurant in Fairlawn, Va., she got pregnant. The father, she claims, was her 17-year-old boss. His dad was the president of the restaurant company, and wasn't particularly pleased, according to Shomo, who was 20 at the time. He allegedly told her that customers didn't want a waitress with "a belly." She had to get an abortion, or get out.
Shomo is Catholic, and so says she chose to leave her job at Mi Puerto, and have the child. Now she's suing for pregnancy discrimination under Title VII of the Civil Rights Act of 1964, as well as violation of minimum wage laws.
Shomo's manager, Leopoldo Aguirre, Jr., doesn't deny that he had sexual relations with the new waitress. But he says he doesn't know if the child is his; he showed up for a paternity test, but Shomo and the baby didn't, according to his attorney Keith Finch. And neither Aguirre Jr. nor his father, Leopoldo Lopez Aguirre, ever said her pregnancy was a problem, Finch contends. In fact, Finch says his clients told him Shomo was never fired. She quit.
'Slim Young Waitress' Preferred?
Shomo has a very different story. Neither she nor her attorney could be reached, but her lawsuit states that she became pregnant in September 2010, after which the younger Aguirre told her that she should get an abortion and that he'd pay for it. He allegedly said that if she didn't, she'd be fired.
The lawsuit also claims that another Mi Puerto waitress spat in Shomo's face, and said that the senior Aguirre would be happy to get rid of the pregnant employee.
Shomo says her hours were subsequently cut back, and she was moved to a slower part of the restaurant where fewer tips would be available to her. Finally in January 2011, when she was four months pregnant, the older Aguirre told Shomo that her performance was good, according to the lawsuit, but that customers preferred "a slim young waitress," and since she was pregnant, she would have to go.
She says she asked whether she could have her job back once his grandchild was born. According to the lawsuit, he said no.
She Quit, Defense Says
Finch says Shomo was never fired or encouraged to have an abortion; Aguirre and Aguirre Jr. are both Catholics too, and would never do that. Shomo quit, he contends, as she had done several times before, always returning soon after and asking for her job back.
He claims Shomo even asked for her job back after she filed a discrimination complaint with the Equal Employment Opportunity Commission, and agreed to sign a document dropping her charge.
There is also something odd in the way she filed her lawsuit, Finch argues. The only charge in Shomo's first complaint was pregnancy discrimination under Title VII. But as a federal law, this only applies to companies that employ 15 or more people. Junior Corporation, the parent company of Mi Puerto restaurants, doesn't have that big a staff, according to Finch.
Can Your Boss Tell You To Get An Abortion?
Once the restaurant company made that claim, Shomo added two other charges in her later complaints that didn't require the company to be a particular size: 1) that she was underpaid, in violation of minimum wage law, and 2) she was wrongfully terminated, for being required to get an abortion to keep her job.
"Terminating an employee simply because she refuses to have an abortion offends the conscience of the Court," the judge wrote in his opinion. But Virginia is an at-will employment state, where employers are allowed to fire their employees at any time for pretty much any reason.
Shomo's attorney said that this qualified as wrongful termination for various reasons, including that making an abortion a requirement of continued employment meant that his client would have had to "consent to the commission of an assault and battery on her." The judge rejected this argument, since "if the plaintiff had consented to the commission of the battery, no battery would have occurred at all."
The judge "reluctantly" dismissed the wrongful termination claim. The restaurant owner and his son are currently offering $9,000 to settle the claim that they underpaid Shomo. They don't think they did anything wrong, says Finch, but they figure that this amount would be less than all the legal fees of defending themselves.
"There was no discrimination," Finch wrote in a statement. "Lawsuits are expensive to defend, and Ms. Shomo is just hoping that her former employer would rather settle with her than pay the defense costs."
Shomo is seeking the reinstatement of her job, back pay, front pay and attorney's fees, as well as any "additional relief" that the court deems fitting.
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