• Retailers Should Have Human Resources Managers, Not Store Managers, Make Disciplinary Terminations
  • November 15, 2010 | Author: Dylan Bradley Carp
  • Law Firm: Jackson Lewis LLP - San Francisco Office
  • A recent case presents a striking example how retailers may insulate employment decisions from attack for alleged discrimination, retaliation, or similar theories. In Dais v. Lowe’s Home Centers, Inc., No. 09-0008-KD-M (S.D. Ala. Oct. 22, 2010), the court granted summary judgment for Lowe’s on its former employee’s racial discrimination claim, even though the Store Manager allegedly said about the plaintiff, “we got rid of the nigger.” The holding and reasoning present a lesson retailers should follow to maximize their chances of disciplining troublesome employees without having a jury second guess their decision.

    Dais was a Loss Prevention Manager at a home improvement store. A female employee complained to the Store Manager that Dais showed her and two others a picture of a sexual nature stored on his cell phone. The Store Human Resources Manager and Area Human Resources Manager investigated the complaint. During their interview of Dais regarding the complaint, Dais admitted the allegation but said he was only joking. The Area HR Manager reported their findings to the Regional HR Manager, who instructed the Area HR Manager to terminate Dais for violating the company’s sexual harassment policy.

    The court assumed for purposes of summary judgment that Dais’ supervisor, the Store Manager, uttered the above racial epithet. Nevertheless, the court held no reasonable jury could conclude the decision to terminate Dais was racially motivated because none of the decision makers could be tied to the epithet. There was no evidence that the Store, Area or Regional HR Managers knew about the remark, nor was there evidence that the Store Manager participated in the decision to terminate Dais. In fact, the Store Manager did not allegedly utter the remark until after Dais had been separated.

    The takeaway for retailers is to try as much as possible to have human resources handle all decisions regarding disciplinary terminations. Human resources personnel, who are focused solely on personnel management, may be more sensitive to the danger of off-hand remarks than supervisors such as store managers. Further, human resources personnel typically have less day-to-day interaction with employees than supervisors, and therefore present fewer chances for interactions that may be construed by an employee—or a court—as exhibiting bias.