By Kathleen Kapusta, J.D. A Walmart employee’s testimony that an assistant manager told her to refuse a customer’s attempted return of a vacuum cleaner and then disciplined her for doing just that, together with evidence that he was friendlier to younger employees, was sufficient to create fact issues as to whether the retailer’s asserted reason for firing her—multiple disciplinary infractions—was pretext for age discrimination, ruled a federal district court in Mississippi. Nor was summary judgment warranted on her claim against the assistant manager for tortious interference with contract (Morris v. Young, May 3, 2016, Aycock, S.). Coaching for improvement. The sales associate and customer service manager worked at a Tupelo Walmart for nearly eight years until she was fired in April 2014 at the age of 53. Pursuant to the store’s “Coaching for Improvement” policy, she had received a written coaching in June 2012 for cashing a check and handing the cash and check back to the customer, a second written coaching in December for failing to respond quickly enough to long checkout lines, and a third in October 2013 for failing to complete ten cash register audits per day. She disputed the second and third coachings. When the customer attempted, in April 2014, to return the vacuum cleaner, the employee asked for assistance from a store manager and an asset protection associate because she had purportedly been told to refuse his returns unless he presented a receipt. In response, a 24-year-old assistant manager (AM) allegedly told her over the radio: “without a receipt, don’t let him have it.” I’m fixing to take care of her. While the AM claimed the employee told him the customer had returned three items in the previous two weeks, she denied this. When he discovered that the customer had only returned one item without a receipt that year, the return was processed. In response to the customer’s statement that the employee should be fired, the AM allegedly said “don’t you worry sir. I’m fixing to take care of her right now.” Although the customer subsequently complained to another manager about the employee, he testified that the AM urged him to do so. Termination. The manager and AM decided that the employee should receive another coaching and while processing it in the computer, the system automatically triggered the exit-interview screen, leading the managers to conclude they had no choice but to terminate her. She then sued, alleging age discrimination against Walmart in violation of the ADEA and tortious interference with contract against the AM and the customer. Pretext. Walmart contended that it fired the employee because she exceeded the allowable number of coachings under its policy. The AM’s purported response, however, to the customer’s demand that she be fired—“don’t worry sir. I’m fixing to take care of her right now”—created a fact question as to whether this was pretextual. In addition, the employee claimed the AM treated older employees differently than younger employees, belittled her, rarely otherwise talked to her or older associates, and consistently chattered and laughed with younger associates. Further, four other Walmart employees agreed that the AM was friendlier to the younger staff. And while the AM stated that he would admonish all customer service managers for allowing checkout lines to back up, he only discussed the issue with the employee and another manager over 40. Thus, triable fact issues existed as to this claim. Tortious interference. After noting that tortious interference with an at-will employment relationship is actionable in Mississippi, the court found the decision to issue a coaching that could result in termination constituted a potentially actionable interference. And while the AM argued that the decision to terminate an employee based on the demand of another party (here, the customer) does not rise to the level of tortious interference with contract, the court pointed out that the gist of her claim was that the AM caused her termination because of her age, not in order to further his or Walmart’s economic interests. Bad faith. As to the AM’s contention that his actions were privileged based on his supervisory role over the employee, the court noted that bad faith can defeat the privilege. Here, the AM allegedly told the employee not to allow the customer to return the vacuum cleaner, then reversed his decision and, according to the customer, urged him to lodge a complaint. This course of conduct, said the court, along with evidence of the AM’s preferential treatment of younger employees, created a fact issue as to bad faith and as to whether the AM’s actions were privileged.
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