Metropolitan News-Enterprise


Tuesday, February 5, 2002


Page 3


Ninth Circuit Upholds Verdict Against Wal-Mart for Firing Employee


By a MetNews Staff Writer


A jury verdict requiring Wal-Mart Stores, Inc. to pay $167,000 in wrongful termination damages to a worker fired for taking expired meat out of a receptacle was upheld yesterday by the Ninth U.S. Circuit Court of Appeals.

Senior Judge Dorothy W. Nelson said Wal-Mart failed to demonstrate that there was anything improper about the verdict, which came after a four-day trial in February 2000. “[M]anifest injustice would not result from allowing an employee fired for eating a few pieces of expired meat to keep his jury award,” the jurist said.

The employee, Jeffrey Janes, was the assistant meat manager at a PACE Membership Warehouse where he began work in 1990. He became a Wal-Mart Stores employee when the company bought PACE and converted the store where Janes worked to a Sam’s Club in 1994.

Janes was terminated after it was learned that he and other employees had, on several occasions, taken expired meat from the “bone barrel”—a receptacle in which expired meat is regularly deposited for pick-up by a salvage company. The employees cooked the meat into carne asada at the store and ate it for lunch.

The company acknowledged that it did not have a specific policy against taking expired meat, but said Janes violated the rule that employees not take “anything, large or small,” from the company.

Janes contended in his suit that he had done nothing wrong, and that the company’s policies gave rise to an implied contract not to terminate without good cause. He successfully sought damages for breach of contract and bad faith.

Wal-Mart argued on appeal that U.S. District Judge Gary Feess of the Central District of California abused his discretion in excluding evidence that Janes had been fired eight years earlier for taking cigarettes from a grocery store where he worked.

Feess ruled that the incident, which occurred when Janes was 17, was unfairly prejudicial and would create “a great risk that you’ve got the jury deciding the case based on character evidence.”

Exclusion of the evidence was reasonable, Nelson said, because the only value would have been to show that Janes knew that he could be fired for stealing—an issue not in dispute.

The defendant, Nelson went on to say, waived its contention that a written agreement setting forth company employment policies—signed by Janes several months after Wal-Mart became his employer—precludes his claim of an implied contract not to terminate without good cause.

Wal-Mart, the judge noted, had argued at trial that there was no implied contract under the test set forth in Foley v. Interactive Data Corp.., 47 Cal.3d 654 (1988).

This was contrary to its argument on appeal that Foley doesn’t apply, Nelson said. “Issues raised for the first time on appeal usually are not considered,” she wrote.

The judge went on to reject the company’s argument that it had good cause as a matter of law for firing an employee who engaged in what it called dishonesty.

The argument is, in effect, a challenge to the sufficiency of the evidence Because the company failed to move for a directed verdict, Nelson said, the judgment is reversible only for plain error and to prevent a manifest injustice.

The judge wrote:

“In finding for Janes, the jury implicitly concluded that Wal-Mart’s reasons for firing Janes were not ‘fair and honest,’ after hearing days of testimony by Wal-Mart employees about the firing and considering whether Wal-Mart’s explanations seemed genuine. After listening to all the evidence, the district court judge concluded that the jury’s verdict was ‘amply supported by the record.’ We hold, after reviewing the record, that there was no plain error.”

Senior Judge Betty B. Fletcher and Judge M. Margaret McKeown joined in the opinion.

Jon A. Shoenberger of the Palm Springs firm of Schlecht, Shevlin & Shoenberger represented the plaintiff. Wal-Mart was represented by Linda Miller Savitt, Christine T. Hoeffner, and Dawn Cushman of Ballard, Rosenberg, Golper & Savitt in Universal City.

The case is Janes v. Wal-Mart Stores Inc., 00-55611.


Copyright 2002, Metropolitan News Company