Improper Cash Counting Undermines Retaliation Claim

 

By Roger S. Achille January 9, 2019
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​A court dismissed a former employee's religious-retaliation claim by determining that her repeated failures to follow proper money-handling procedures was more likely the reason for her termination, rather than her requests for Sundays off to attend religious services.

The plaintiff, a Jehovah's Witness who attended religious services on Sunday mornings, began working as a cashier at a Dollar General store in Jasper, Fla., in September 2014. In November, the plaintiff received a promotion to lead sales associate, referred to as a "key holder," and worked at night as a closing manager. Following her promotion, the plaintiff worked the closing shift the next six Sundays.

In February 2015, the plaintiff's supervisor met with her to discuss her failure to comply with required store-closing procedures. The infractions included counting money with the door open, leaving money on the desk with the door open and leaving the safe door open.

Thereafter, the plaintiff requested Sundays or at least alternate Sundays off to attend church. Her supervisor told her that she would be hiring a key holder soon, after which the plaintiff could stop working on Sundays. When the plaintiff was scheduled to work Sundays after another key holder was hired, she met with her supervisor again, but nothing changed. Consequently, in May, the plaintiff called Dollar General's Employee Response Center (ERC) to complain about being overworked and working on Sundays. After calling the ERC, the plaintiff worked the next six Sundays in a row. On July 10, her supervisor terminated her employment for not following closing procedures when she, for example, counted money with the door open while the cashier sat in the office and also failed to present her bags when leaving. The plaintiff contended that her supervisor retaliated against her for requesting Sundays off and calling the ERC.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

A case of retaliation under Title VII of the Civil Rights Act of 1964 requires the plaintiff to show that she engaged in an activity protected under Title VII, she suffered an adverse employment action, and there was a causal connection between the protected activity and the adverse employment action. If an employer articulates legitimate reasons for its actions, a plaintiff must then show that the employer's asserted reasons for taking the adverse action were a pretext for prohibited retaliatory conduct.

Because Dollar General came forward with a nondiscriminatory reason for the termination, the court assumed, without deciding, that the two-month span between the plaintiff's complaint to the ERC and her termination was sufficient to satisfy her prima facie burden. The court then focused on the question of pretext.

Dollar General maintained that it fired the plaintiff for failure to comply with proper closing procedures. The plaintiff neither denied that she engaged in this misconduct, nor did she identify another key holder who committed similar acts and was not fired.

Nonetheless, the plaintiff argued that her supervisor also failed to follow proper closing procedures and was not discharged, and that she followed the closing procedures as taught to her by her supervisor. The court found that neither argument had merit.

The plaintiff alleged that her supervisor also failed to conduct bag checks. While acknowledging that a failure to present bags was noted on the plaintiff's termination form, the court underscored that the primary violation on the form was counting store money with the door open and the cashier sitting in the office. Moreover, the plaintiff previously received a written counseling for her failure to comply with the required closing procedures, yet no evidence showed that her supervisor engaged in similar misconduct or repeated this misconduct after being counseled. The court declared that Dollar General could reasonably view the supervisor's purported failure to perform bag checks as distinct from the plaintiff's failure to properly handle cash.  

Additionally, the court opined that the plaintiff's discharge for counting money with the office door open and the cashier present was consistent with the instructions she received in February, regardless of any prior erroneous training. When counseled in February, the form specifically warned the plaintiff that failure to comply with these procedures could lead to her termination. As such, the court held that no reasonable juror could find that Dollar General likely fired the plaintiff for a discriminatory or retaliatory reason.

Newsome vs. Dolgencorp LLC, No. 3:17-cv-527-J-34PDB, M.D. Fla. (Nov. 5, 2018).

Professional Pointer: Title VII permits an employer to interpret nondiscriminatory rules as it chooses, provided the employer ensures a uniform application of those rules.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

[Visit SHRM's resource page on employee termination.]

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