By: Verdict Search
*A Texas FEATURED Verdict*
Venue: Orange County
Court: Orange County District Court, 128th
Civil Rights -
Intentional Torts – Defamation
Employment – Wrongful Termination
Discrimination – Age Discrimination
Case Name: Lois Harris v. Wal-Mart Stores Inc. and Leah Loerwald, No. A-110319-C
Date: August 29, 2014
Lois Harris(Female, Years)
Clay Dugas; Clay Dugas & Associates; Beaumont, TX, for Lois Harris
Cody Rees;Clay Dugas & Associates;Beaumont,TX, forLois Harris
ErynLucas; Ph.D.; Clinical Psychology; Orange, TXcalled by Clay Dugas, Cody Rees
JohnSwiger;Ph.D.;Economics;San Antonio,TX called byClay Dugas,Cody Rees
Wal-Mart Stores Inc.
Kerry Notestine; Littler Mendelson; Houston, TX, for Leah Loerwald, Wal-Mart Stores Inc.
Melissa J. Judd; Littler Mendelson; Houston, TX, for Leah Loerwald, Wal-Mart Stores Inc.
Ashley Frankson Hill;Littler Mendelson;Houston,TX, forLeah Loerwald,Wal-Mart Stores Inc.
ThomasMayor;Economics;Houston,TXcalled byKerry Notestine,Melissa J. Judd,Ashley Frankson Hill
On Oct. 19, 2010, plaintiff Lois Harris, 65, a receiving employee at a Wal-Mart store in Orange, was terminated. She had worked at that store since July 1986. At the time of her termination, she had been in receiving for only two weeks, before which she had worked in the store’s claims department for around 15 years. (Her job in claims was essentially to file claims with suppliers and vendors for merchandise that had been damaged or recalled and therefore could not be sold.)
Wal-Mart’s disciplinary system allowed one oral warning and two written warnings, and if the employee violated policy again, he or she would be terminated. In March 2007, Wal-Mart assigned store manager Leah Loerwald to Harris’ store. In July 2009, Loerwald issued Harris an oral warning, which Harris said was her first reprimand ever at Wal-Mart. It was for being disrespectful to a supervisor. Over the ensuing months, Loerwald issued Harris two written warnings, for failing to complete a bill of lading and failing to properly secure hazardous materials in a shipping box. Later, Harris improperly shipped a pallet of hazardous chemicals. During a subsequent investigation of the incident, Harris and her supervisor maintained that Harris was following a direct order from Loerwald, whereas Loerwald and another manager maintained that Loerwald simply told Harris to find out how to “get rid of” the chemicals. After the investigation, Harris was terminated.
Harris sued Wal-Mart for age discrimination under Chapter 21 of the Texas Labor Code, alleging wrongful termination, and she sued Loerwald for defamation, alleging that the statements in the warnings were false and defamatory and that she did not engage in the conduct in question.
Plaintiff’s counsel argued that Harris was an exemplary employee. They put on evidence that she filed an average of $100,000 a month in claims and obtained an average monthly return of $98,500 and that her evaluations under Loerwald, with the exception of the last one, were “exceeds expectations.” Plaintiff’s counsel argued that, even though she reached her maximum wage as a claims associate three years before her termination, she continued to do exemplary work until her termination. Her evaluations were prepared by an assistant manager and signed by the store manager.
Two of Harris’ former assistant managers, who still worked for Wal-Mart at the time of trial, were called adversely by plaintiff’s counsel. These managers acknowledged that Harris was loyal, dedicated, hardworking, knowledgeable and a model employee.
The defense denied the allegations and argued that the disciplinary warnings were warranted. According to the defense, Harris admitted at trial to the conduct cited in the warnings.
The defense also argued that the termination was unrelated to her age. Two other employees besides Harris were disciplined in connection with the shipment of hazardous chemicals to the wrong place, and their ages were 56 and 27. The defense argued that Wal-Mart’s headquarters recommended discipline without knowing the ages or disciplinary history of the employees, and that Harris was the only one terminated because she was the only one who already had one oral and two written warnings.
Loerwald denied that the disciplinary warnings were defamatory and noted that they were in Harris’ confidential personnel file. The defense also argued that the statements in the warnings were substantially true and that Harris admitted as much at trial.
Harris was terminated. She earned $18.80 as a claims associate, except for her last two weeks, when she earned $17.12 as a receiving employee. She claimed that she would have continued working until age 70. Her attorneys put on evidence that, for her last five years at Walmart, her attendance was near-perfect, and they argued that she had given no signs of slowing down.
Harris claimed psychological problems from her termination. Three and a half years after being terminated, Harris went to clinical psychologist Dr. Eryn Lucas four times and was diagnosed with major depressive disorder. Lucas recommended group therapy, which Harris went to monthly.
Harris’ economic expert, reviewed her payroll records from her last several years at Wal-Mart and calculated four years of back pay and one year of front pay after deducting unemployment benefits. By agreement, the report came into evidence, and he did not testify. His report said that Harris lost $166,881 in back pay and benefits and $50,604 in front pay and benefits.
Plaintiff’s counsel asked the jury to award $166,881 for back pay and benefits; $166,881 for past compensatory damages, including mental anguish; and unspecified damages for future compensatory damages. Future compensatory damages were defined to include future economic damages. Past compensatory damages were defined as noneconomic only.
On the defamation claim, Harris sought damages for past and future damage to reputation and past and future mental anguish. She also sought punitive damages.
The defense argued that Harris failed to mitigate her damages, in that she only applied for 20 jobs in the two years after her termination and stopped looking for work altogether in mid-2012.
The defendant’s economist testified that Harris lost about $15,000 in back pay. He opined that workers generally slow down after age 65 and that Harris probably would not have worked until age 70.
Harris’ counsel noted that Mayor was 75.
The trial was bifurcated.
The jury found that Harris’ age was a motivating factor in her termination and that Wal-Mart would not have terminated her regardless of her age. The jury awarded her $335,515 in damages.
The jury found that Wal-mart made a good faith effort to prevent age discrimination in its workplace. Thus, the jury did not reach the question of malice with respect to age discrimination, which was a predicate question for punitive damages.
The jury found that Loerwald published false statements about Harris, but not that the statements were defamatory with respect to Harris. Thus, the jury did not reach the remaining questions, and Harris took nothing on the defamation claim.
$210,515 Personal Injury: Past Lost Earnings Capability
$75,000 Personal Injury: past compensatory damages
$50,000 Personal Injury: future compensatory damages
Trial Length: 4 days
Trial Deliberations: 6 hours
Jury Vote: 10-2
Jury Composition: 7 male/ 5 female
Post Trial: Harris is entitled to attorney fees, and her attorneys are preparing the application. – plans to appeal the verdict.
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