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Part Two On Determining Measure Of Discipline: McPadden v. Wal-Mart

On Behalf of | Feb 10, 2016 | Employment Law

On December 9, 2015, I wrote an article in regards to a November 3, 2015 decision by the New Hampshire federal trial judge in the case of Maureen McPadden v. Wal-Mart. In that article I discussed the November 3, 2015 decision of the judge allowing McPadden’s claims of discrimination and retaliation to go to a jury. McPadden had been a long-term employee of Wal-Mart where she worked as a pharmacist at several stores including the one at Seabrook, New Hampshire. McPadden claimed, in part, that she was discriminated against because she was a woman and that because a manager had been frustrated with her because she continued to complain about the pharmacy being understaffed thereby not being able to satisfy customer’s needs and possibly putting them at risk for filling a wrong prescription. McPadden had also gone out on medical leave due to stress related to the understaffing at Wal-Mart.

McPadden had lost her key to the pharmacy and Wal-Mart fired her. She opined that the manager had influenced her superiors in their decision to fire her for losing her key. Wal-Mart had the view that since the decision-makers were not her manager and that they did not know about any animus her manager might have had against her when it decided to fire her, she had no claim. The judge noted that obviously Wal-Mart had a legitimate reason to make sure that pharmacists complied with all federal and state law including preventing access to drugs in the pharmacy. Therefore, taking disciplinary action a pharmacist losing a key was understandable. However, at issue was the level of discipline. Whether a loss of a key was grounds for firing depended on McPadden’s disciplinary record, including what type of warning she received in the past for other performance problems and whether Wal-Mart fired all pharmacists for a first time losing of a key. The manager advised the supervising decision-makers of a disciplinary record that was such that the key loss warranted the firing and if the manager’s description of the disciplinary record was tainted by discriminatory animus, the judge noted that a jury could reasonably find Wal-Mart liable for discrimination. The judge let the case go to the jury and the result was on January 27, 2016, the jury found in favor of Maureen McPadden for: gender discrimination under federal and state law; retaliation for having reported alleged violations of HIPAA and/or safety rules related pharmacies under the New Hampshire Whistleblower protection; and wrongful termination. The jury in its verdict form awarded McPadden $164,093 in back pay, $558,392.87 in future lost wages, $500,000 in compensatory damages, and $15,000,000 in punitive damages under federal law and state law, which calls them enhanced compensatory damages.

While Wal-Mart will certainly seek to reduce the damage amount and thereafter likely appeal the decision, this case is a serious reminder to those who make decisions as to terminating employees to investigate the source of information they receive. While the story of management taking issue as to a pharmacist losing her keys could be compelling in a vacuum, the fuller story told by McPadden was obviously compelling to the jury since it not only granted her actual damages she suffered but decided to punish Wal-Mart to the tune of $15,000,000 for its treatment of McPadden.

In conclusion, decision-makers need to pay careful attention to the information they receive and the source. Often it would be appropriate to find out from the accused whether or not there are others the decision-maker should speak with to determine if there is information that supports the accused employee’s position. The fact that the person who decides to fire the employee is free from discriminatory or retaliatory animus does not protect the company if the information that decision-maker relied on was tainted by a manager’s or co-employee’s discriminatory or retaliatory animus.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].