Damned if you do, damned if you don’t files: Cynthia Haddad v. Wal-Mart

by Ted Frank on June 21, 2007

Pharmacist Cynthia Haddad, when she left the pharmacy unattended, allowed a technician to use her computer security code to issue prescriptions, including a fraudulent prescription for a painkiller, something that could have exposed Wal-Mart to enormous liability if someone had been injured by the illegally dispensed drugs. So Wal-Mart fired Haddad. Haddad sued, claiming that the real reason Wal-Mart fired her was because she had asked for a raise to a manager-level salary, though she did not perform manager-level duties such as budgeting, and that it was thus sex discrimination. (Haddad claims that Wal-Mart “never” fired a male manager for her infraction, which seems implausible at best; Wal-Mart says it did fire male pharmacists for this. Why is this even a factual dispute for decision for a jury? This seems like a matter that merits a partial summary disposition to prevent one side from out-and-out lying.) This somehow got to a jury, which awarded $2 million, including $1 million in punitive damages. Among the questionable procedures used to railroad Wal-Mart at trial was permitting Haddad to present an attorney to testify as an expert witness on human resources procedures. Wal-Mart indicated it disagrees with the jury’s decision and is studying whether an appeal is worthwhile. Massachusetts courts are not a friendly place for defendants. Wal-Mart’s attorney did not comment to the press, permitting the plaintiffs’ lawyer to generate rather one-sided press coverage. [Berkshire Eagle June 19; Berkshire Eagle June 20; Reuters/USA Today; Massachusetts Lawyers Weekly]

{ 16 comments }

1 Yoda 06.21.07 at 8:16 am

This one is mind boggling, as the pharmacist complete violated the computer use policy of the company (which will get you fired from nearly 100% of places if anyone from the security/IT/management with half a brain finds out).

Unless she was able to show that Walmart did not follow the “John clause” (basically, that you’d enforce the policy even if it meant taking action against your best employee, “John”) there shouldn’t be any discussion of this.

I’m not familiar with Walmart’s security policy for computer use, nor if there is a security banner upon logon, but if the were appropriate written and available, then an “HR expert” has no authority to speak, as it is a legal and information security policy, something which is known by, but rarely written or enforced by HR (corporate legal and computer security do that, HR files the paperwork).

2 Anirban 06.21.07 at 10:51 am

Ted,
Call me naïve but something about the case I don’t understand

1. Do interim level managers , are entitled to the same compensation ,as regular ones, Is it Manager in name only, if you don’t do Budgeting ? What is the walmart policy about it?

2. Plaintiff did break computer security , She left the pharmacy unattended , allowed a technician to use her computer security code to issue prescriptions (like bloodthinner PLAVIX) during her absence, including a fraudulent prescription for a painkiller . It happened say, about 18 months ago. How long walmart should take to fire someone ?

3. whether male pharmacists were fired as well for similar offences ,is just he says she says thing, we don’t know the evidence , presented to the jury

4. the questionable procedures used to railroad Wal-Mart at trial was permitting Haddad to present an attorney to testify as an expert witness on human resources procedures

What is your beef ? the testifying of an expertwitness on human resources procedures in the first place or an attorney masequarading as an expert witness. Which one is questionable ? A little research on world wide web lead me to the office of Julie A. Moore (the expert witness here , and yes she is admitted to practice law in Massachusetts and New Hampshire), Esquire of Employment Practices Group in North Andover, Massachusetts, who specializes in risk-management, workplace training and internal investigations on sexual harassment and other employment issues. She seems like a credible witness although I don’t know much about her.

You say “procedures” ,Is there anything else that is questionable here?

May be the devil is in the details as always .Thanx

3 Ted 06.21.07 at 11:05 am

As I noted, there’s no reason for the question to be he-says/she-says; it is an incontrovertible fact one way or the other, and one side is lying. The odds that Wal-Mart did not fire a male pharmacist who permitted someone unauthorized to illegally dispense medication is infinitesmal; they’ve fired much higher-ranking men for far less.

Wal-Mart’s human-resources practices (including its payscale) are immaterial—unless the court exceeded its authority and turned this into a civil-service hearing rather than an employment discrimination case. The employment discrimination laws protect one against discrimination on the basis of gender, not against unwise employment policies.

Since Wal-Mart fired Haddad for violations of policy, and if Wal-Mart also fired men for violations of the same policy, then Haddad was not fired on the basis of gender, and the case is over: there is nothing for the jury to decide.

4 Frank 06.21.07 at 12:07 pm

I don’t know Ted. In your response above you say: “Wal-Mart’s human-resources practices (including its payscale) are immaterial”

Immaterial to a claim about their human resources practices centering on the pay-scales as applied to male and females in a discriminatory fashion?

“claims that Wal-Mart “never” fired a male manager for her infraction, which seems implausible at best”

It seems implausible to you that discriminatorily more severe discipline is meted out to a member of a class that almost no one denies required the protection of governments because of historically discrimnatory practices?

“Wal-Mart says it did fire male pharmacists for this. Why is this even a factual dispute for decision for a jury? This seems like a matter that merits a partial summary disposition to prevent one side from out-and-out lying.”

First, plainly one side is out and out lying already – she said ‘they never’, they said ‘Sure we do’. You propose accepting the out and out lies of one side without a hearing?

When major facts are in dispute cases do not merit summary disposition; only those issues that are not disputed are ripe for disposition without a hearing on the facts.

You are accepting as fact Wal-Mart’s defense: “Since Wal-Mart fired Haddad for violations of policy”

What do you mean “since” they did? Apparently, a jury heard testimony that led them to conclude this was a pretextual claim by WalMart.

What? A defendant lie?

“and if Wal-Mart also fired men for violations of the same policy”

Likewise it seems the jury found the answer to this “if” was ‘no, they didn’t’. Again, simply that you find it implausible has no bearing on reality.

I find it implausible that a government could deny certain rights (privileges if you feel that way) to adults simply because of their age, but there you go.

5 Anirban 06.21.07 at 12:13 pm

Wal-Mart’s human-resources practices (including its payscale) are immaterial

Agreed , but why some company would give an employee the bounus (if we believe wal-mart, she didn’t deserve it,as she was not a manager per se ,and yet asked for it) and fire her after 2 weeks for some infraction , that happened 11/2 years back. Seems questionable.

6 Deoxy 06.21.07 at 12:25 pm

“Damned if you do, damned if you don’t”

I believe trial lawyers generally refer to that using the old cliche, “That’s not a bug, it’s a FEATURE!”

7 markm 06.21.07 at 12:58 pm

The pharmacist violated the basic rules of her profession, and broke the law. I can’t see any employer keeping such a pharmacist on the job – but it’s likely that Walmart’s never fired someone for the same offense, because she’s the first to ever commit it.

8 Ted 06.21.07 at 2:12 pm

Again, Ms. Haddad’s claim is that male pharmacists committed the same infraction and were not fired. That’s either 100% true, or 100% false, and needs no jury to decide: she either has an example (in which case Wal-Mart has liability problems), or she doesn’t, in which case her claim should be thrown out before it reaches a jury. There’s nothing for a he-said/she-said dispute, and nothing where a human resources expert helps a jury to make a legitimate decision.

9 Kia 06.21.07 at 3:53 pm

Walmart does suffer from damned-if-you-do, damned-if-you-don’t. They’re damned-if-they-do allow their employees to perpetrate fraud and then wait a year and a half to punish it, damned-if-they-don’t give men and women of equivalent employment status equivalent pay, or punish them equally for the same infraction.

10 Ted 06.21.07 at 6:12 pm

I don’t see any basis in the law or in sound public policy for a rule that a woman cannot be fired for a dangerous violation of company policy that could expose the pharmacist to substantial liability so long as she can hide it from her employer for eighteen months.

Let’s change the scenario a bit: in January 2004, a Wal-Mart manager uses the n-word in chastising an African-American employee. Can Wal-Mart discipline the manager if the employee reports the offense in July 2005, or does the eighteen-month rule Franklin proposes apply there, also?

11 Ron Coleman 06.21.07 at 10:43 pm

Old fashioned lawyers never comment to the press. They think they’re better off that way. I don’t understand the thinking, unless you have absolutely no meritorious story to tell.

12 Anirban 06.21.07 at 11:37 pm

so long as she can hide it from her employer for eighteen months.

Then I suppose , her misdeeds caught up with her in those 2 weeks , after she was paid managerial level bonus,and Wal-mart,as per their own statement, didn’t have to do that,if she was not a manager per se. There are other ways of getting rid of trouble -makers. This is clearly not one of them. May be the Jury , as credulous as they may be sometimes in some other cases, saw that.

13 Ted 06.22.07 at 12:06 am

There is more than one case of an employee about to be fired for one legitimate reason or another seeking to inoculate themselves by becoming a whistleblower or raising some sort of other complaint in the hopes of having leverage to prevent discipline by the implicit threat to sue for retaliation. I’ve seen it firsthand at employers I’ve worked at.

While I have no evidence one way or the other that this is the sequence in the Haddad case, it is a not-unusual sequence that would be consistent with a month-long gap like that in the Haddad case, and at least as likely as the implausible case of someone retaliating over a pay dispute over the difference between $42.50/hour and $43.50/hour (which, NB, is still not gender discrimination by itself).

14 Deoxy 06.22.07 at 10:25 am

Kia,

Wow, I like that – it’s like “heads I win, tails you lose”, only with more money at stake.

Why do we even hav judges and juries? Any corporation with over $100 million revenue per year can just be automatically considered guilty, and we’ll sav the expense.

15 Steve 06.22.07 at 5:41 pm

Re Ted’s point about whether or not Wal-Mart has ever fired a male pharmacist for teh same offense — such questions are rarely as black-and-white as one might think. First, there is the problem of identifying a “similarly situated” employee for comparison. The law does not require an “identically situated” employee. Is it so difficult to imagine that there may have been several incidents where male pharmacists violated procedure but weren’t fired? Hardly. Each case is a unique situation, right? But if those situations arguably support an inference of discrimination, then it becomes a question for the jury to decide. Not a favorable forum for most defendants, of course.

The real legal dilemma here, it seems to me, is permitting interferences of discrimination to be drawn in instances where direct evidence of such animus is lacking. Couple that with a mere “preponderance” burden of proof, and the balance favors the plaintiff. BUT it should be noted that the majority of discrimination claims are rejected by the courts. In truth, it really isn’t very easy to extort money from corporations through EEO suits.

16 Teri 06.24.07 at 5:36 am

I’m sorry but how about thinking about this from a pharmacist duties perspective. Only pharmacists can fill rxs… she allowed someone who wasn’t to fill the scripts.. I would assume that this is a punishable offense in terms of keeping her license… Why didn’t she just get suspended for her actions until walmart got her license revoked… with a revoked license.. problem solved, she’s not fit to be a pharmacist… hence she can be fired. It’s absolutely shameful that gender discrimination stunts like this get through.. it makes a mockery of actual gender (and other) suits that really have merit…

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