Blog

10Dec, 15

When determining a measure of discipline for an employee’s misconduct or failure to adequately perform her duties, it is extremely important to consider the source of the information received by the decision-maker and whether or not that source has any bias. The importance of such an analysis was illustrated in the recent November 3, 2015 decision by a New Hampshire federal trial judge in the case of Maureen McPadden v. Wal-Mart Stores East, LP, et al.

McPadden had been a long-term employee of Wal-Mart where she worked as a pharmacist at various stores including a pharmacy at the Wal-Mart in Seabrook, New Hampshire. McPadden had lost her key to the pharmacy and Wal-Mart terminated her employment. After she filed a charge of discrimination with the New Hampshire Commission for Human Rights she filed a lawsuit for both state and federal claims for workplace discrimination, retaliation, and invasion of privacy. In part she stated that her manager was frustrated with her because she had continuously complained 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 also had gone out medical leave due to stress related to the understaffing of the Wal-Mart pharmacy. She stated that she felt that her manager did not want her around any longer because of her stress and her complaints regarding the understaffing of the pharmacy. Therefore, she opined that her manager had influenced his superiors in their decision to fire her when she had lost her key to the pharmacy. Wal-Mart countered that the decision makers were not her manager so they should not be tainted by any alleged discriminatory animus McPadden claimed her manager had for her.

The Court noted that it was not surprising that Wal-Mart had internal policies designated to make certain its pharmacists and pharmacy technologies complied with all federal and state law including a policy that only a pharmacist may have access to the keys for the pharmacy. However the Court found that while the evidence was fairly thin against Wal-Mart, but it was enough to go to a jury in regards to these claims because the issue was whether the decision maker’s information from the manager as to McPadden’s past disciplinary record and other facts were tainted by his animus toward her. The Court did not say it agreed to McPadden’s version of the facts but just stated there was enough of a genuine issue of fact for the jury to decide her claims. McPadden also had an invasion of privacy claim against Wal-Mart and one her co-employees which the Court said could not go to a jury.

Owners and upper management of companies need to consider where they are getting their information from in making employment disciplinary decisions, particularly ones to fire an employee. Asking the right questions and investigating independently the facts before a firing decision is made is prudent and the company’s employment attorney may advise the company’s management as to how to do the investigation and what questions to ask who based upon the specific circumstances.

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 dmarr@nashualaw.com.