Dowd Bennett Obtains Defense Verdict for National Retailer Client

Anna Vitale, Missouri Lawyers Weekly

Walmart wins defense verdict in federal court

The Equal Employment Opportunity Commission has lost a case involving a woman who alleged Walmart fired her because of her age.

A  U.S. District Court for the Eastern District of Missouri jury found for Walmart on April 7.

Yvonne Loskot was 67 when she was fired from the De Soto store’s optical center. At the time, she made just under $18 an hour and was the highest-paid optician at the center, according to the EEOC.

The EEOC alleged that the district vision center manager targeted Loskot because of her age and how much money she made, said EEOC attorney Andrea Baran. The EEOC claimed it had testimony from the center’s former manager that the district manager had told her to cut workers’ hours in May 2005 and particularly Loskot’s because she was “old” and was going to retire soon anyway.

“She [the center manager] had a clear understanding from him [the district manager] that he wanted her to get rid of Mrs. Loskot,” Baran said. The district manager denied during trial he ever made such comments, she said.

After the cutback in hours and the firing of the optical center manager, the district manager ordered a loss-prevention specialist to investigate the De Soto center’s optical department and, specifically, Loskot, the EEOC claimed.

Walmart said the investigation gave it reason to believe Loskot had stolen glasses and enrolled her grandchildren without permission in the program Project Insight, which provides eye care to children without insurance, Baran said.

Baran said Loskot “had receipts going back for years.”

Baran said the division center manager gave permission to the optical center manager to enroll Loskot’s grandchildren and two other employees’ children into Project Insight and that Loskot’s grandchildren would have been eligible for the program anyway.

Baran said the EEOC employed a “cat’s paw” theory in the case, in which one person unwittingly carries out another person’s discriminatory motives. In this case, Baran said, the loss-prevention specialist was not aware of the district manager’s ultimate goal of firing Loskot for her age.

While Walmart’s internal investigation was pending, Loskot visited a doctor because of stress, Baran said.

After Loskot was diagnosed with extreme anxiety, she took what she believed was an approved 30-day leave of absence, Baran said. During that time, Wal-Mart claimed she missed a scheduled meeting with the loss-prevention specialist, denied her leave of absence and fired her in October 2005.

Baran said the EEOC sought back pay and benefits totaling more than $160,000 for Loskot. Under the Age Discrimination in Employment Act, she said, you cannot ask for punitive damages, but a judge potentially can double the jury verdict if he or she makes a finding of willfulness on the part of the employer.

After initial attempts to settle and ultimately three days of trial, the jury returned the defense verdict.

James Bennett of Dowd Bennett represented Walmart but declined to comment on the case. He referred a reporter to Walmart’s corporate media department.

“We’re pleased that the jury has recognized that our managers acted appropriately in this matter,” said Walmart spokesman Greg Rossiter.

Employment attorney Jerry Carmody said he thinks Walmart had discipline termination protocols in place. “Employers who terminate people in a protected age group – 40 or over – are conscious of the possibility that claims can arise and will be certain to take extra measures to ensure there are documented reasons for the termination,” said Carmody, of Carmody MacDonald. He is not affiliated with the case. “I expect that’s what happened in this case.”

Baran said she was “disappointed” in the jury’s decision, and that most cases taken up by the EEOC settle.

“We’re committed to taking our cases all the way through to the end,” she said.

Defense jury verdict
Age discrimination
Court: U.S. District Court for the Eastern District of Missouri
Case Number/Date: 4:08-CV-01439-AGF/April 7, 2010
Judge: Audrey G. Fleissig
Caption: Equal Employment Opportunity Commission v. Walmart Inc.
Plaintiff’s Attorneys: Andrea G. Baran and Barbara Seely, EEOC
Defendant’s Attorneys: James F. Bennett, Erika M. Anderson and Jennifer L. Aspinall, Dowd Bennett, Clayton

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