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Employee Terminated for Sharing Stale Cake with Fellow Employees


In a very recent case out of the Ninth Circuit, a female employee was terminated for allegedly stealing from the company. The employee, a single mother of seven, supervised the night-shift freight crew. At times the crew was required to work long hours stocking the store at night. When their shifts were over, the plaintiff was often left with thousands of items to shelve by herself. Plaintiff had an understanding with the general manager that she could take cakes from the store bakery to motivate the crew to stay past the end of their shifts. She was instructed to record the cakes in a log, which she did.

Nevertheless, the company fired her for theft and dishonesty after twelve years of employment. In fact, the company determined that her conduct, in sharing the stale cake with employees, rose to the level of gross misconduct under the store's personnel policies. As a result, the company denied plaintiff and her minor children benefits under COBRA. The company also refused to give plaintiff credit for her accrued vacation days.

Lawsuit for gender discrimination filed

The plaintiff in Mayes v. WinCo Holdings, Inc., alleged that she was terminated because of her gender, in violation of Title VII of the Civil Rights Act of 1964. She also filed a claim under COBRA, and wage claims under the Fair Labor Standards Act. The plaintiff provided direct evidence of discrimination of her employer’s discriminatory animus. Direct evidence of discriminatory intent is typically defined as “evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.”

The plaintiff offered evidence that a decision maker said that a man “would be better” leading the safety committee and criticism of the plaintiff leaving work early to care for her children.

The appellate court’s ruling

The appellate court determined that a jury would have to determine whether the reasons the employer gave for termination were pretextual. In this case, the appellate court determined that there was sufficient circumstantial evidence, as well as direct evidence of discriminatory intent, to at least raise a factual question regarding pretext.

State law protections against discrimination

In Alabama, there are few protections in the employment context. As Alabama is an “at will” employment state, like most, there is no state law that protects you from being terminated. One of few exceptions is Alabama’s Worker’s Compensation law which prohibits retaliation. In other words, if you make a claim for an injury you sustained while at work, your employer cannot retaliate against you for making such a claim. Although the state law safeguards are few and far between, there are numerous federal laws that provide the necessary protections against discrimination, harassment, and retaliation.

Federal law protections under federal law

Most legal protection for employees comes from federal law, which prohibits discrimination and harassment based on gender, race, age, disability, or pregnancy.

There are also laws that protect whistleblowers and protect against overtime and other pay violations.

Title VII of the Civil Rights Act of 1964

Title VII makes it unlawful to discriminate against someone on the basis of race, color, religion, national origin, or sex. It is also unlawful to retaliate against someone because they complain about such discrimination, file a charge of discrimination with the EEOC, and/or participate in a discrimination investigation or lawsuit. Title VII also requires an employer to provide reasonable accommodations for religious practices that are “sincerely held,” as long it the accommodation would not create an undue hardship on the employer’s business.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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