Wednesday, 18 June 2014

Punishing  an  employer  who  is  a  brute and indifferent
I am sure that all of us who has worked for considerable years have worked for an employer or employers who are brutish, rude and indifferent to our feelings. There was a time many years ago in which there was nothing we could do about it unless we were members of a union. I didn’t work with unionized companies so when some of my employers abused me, there was nothing I could do about that. Now, fortunately, things have changed. Employers have to be very careful how they treat their employees because if they mistreat them with their crap, they and their crap will go down the rhetorical crapper.  This article tells you a story of not only a brutish boss but also about that boss’ supervisors who were indifferent to the complaint of heir employee. You will love this story because it tells you how an unfortunate woman punished her former boss and the company she worked for after she suffered abuse while working for them.

In 1999, Meredith Boucher (the victim) began working for Wal-Mart at its store in Chatham.  She received regular promotions. In January 2000, she was promoted to customer service manager.  In January 2001, she was transferred to the Wal-Mart store in Newmarket where she continued working as a customer service manager. In 2005 Boucher was transferred back to the Wal-Mart store in Chatham and promoted to department manager.  In September 2007, she was promoted to administrative manager of the Wal-Mart store in Wallaceburg, and in March 2008 she became an assistant manager trainee.  In November 2008, Boucher accepted a transfer to Wal-Mart’s Windsor store as an assistant manager. In November 2008, she was promoted to the position of assistant manager at the Wal-Mart store in Windsor. Her immediate supervisor was the store manager, Jason Pinnock (the brute).     
At first Boucher and Pinnock worked well together.  Their relationship turned sour, however, after an incident in May 2009 in which Boucher refused to falsify a temperature log.  Pinnock then became abusive towards her.  He belittled, humiliated and demeaned her, continuously, often in front of co-workers.  Boucher complained about Pinnock’s misconduct to Wal-Mart’s senior management.  They undertook to investigate her complaints.  But in mid-November 2009, they told her that her complaints were “unsubstantiated” and that she would be held accountable for making them.  A few days later, after Pinnock again humiliated Boucher in front of other employees, (he made her count to ten just to prove to him she could count) she quit.  A few weeks later she sued Wal-Mart and Pinnock for “constructive” dismissal and for damages. 
The action was tried before a judge and a jury.  The jury found that Boucher had been constructively dismissed and awarded her damages equivalent to 20 weeks salary, as specified in her employment contract.  The jury also awarded her damages of $1,200,000 against Wal-Mart, made up of $200,000 in aggravated damages for the manner in which she was dismissed, and $1,000,000 in punitive damages. Further the jury awarded Boucher damages of $250,000 against Pinnock, made up of $100,000 for intentional infliction of mental suffering, and $150,000 in punitive damages (awards for which Wal-Mart is vicariously liable as Pinnock’s employer which means that they will have to pay it if this dimwit doesn’t pay it.)  
On appeal, Pinnock and Wal-Mart challenge both their liability for and the amount of damages for intentional infliction of mental suffering, aggravated damages and punitive damages.  
Pinhead—sorry, that was a typo. No it wasn’t but I will go back to his original name; Pinnock’s lawyer made two submissions in Pinnock’s appeal. (1) The award of damages for intentional infliction of mental suffering should be set aside because the trial judge incorrectly instructed the jury on the elements of the tort.  Alternatively, the award is unreasonable, or at least excessive; 2. The award of punitive damages should be set aside because it was not rationally required to punish Pinnock for his conduct. Wow! His lawyer is really uninformed about the law when it comes to awarding punitive damages.

Wal-Mart made the following submissions: (1) The award of aggravated damages should be set aside because of an error in the trial judge’s charge. Alternatively, the award is excessive and should be reduced. (2) The award of punitive damages should be set aside or reduced because: The trial judge erred in her charge; Wal-Mart’s conduct was not so reprehensible to warrant punitive damages; Alternatively an award of punitive damages was not rationally required to punish Wal-Mart; (Hey. Did they have the same lawyer?) The trial judge erred by failing to give the jury guidance on a reasonable range for an award of punitive damages; The trial judge erred by permitting Boucher to amend her Statement of Claim to conform to the jury’s verdict.

Boucher has cross-appealed against Wal-Mart.  She submitted that the trial judge erred in law by instructing the jury that she could not recover future income loss beyond the period specified in her employment contract. (20 weeks) She had asked for $726,601 to compensate her for her loss of income until her retirement. That would mean that if she got it, she wouldn’t have to work again for the rest of her life. That is stretching the law a bit.

Wal-Mart has a general policy that figured prominently in this trial which was Wal-Mart’s Open Door Communication Policy. According to Wal-Mart, it encourages its employees to report on a confidential basis concerns about how its stores are operated or its employees treated.

Wal-Mart also has a Prevention of Violence in the Workplace Policy.  It undertakes to take all employee reports of incidents seriously and to protect an employee making a complaint from acts of retaliation.  Finally, Wal-Mart has a Harassment and Discrimination Policy.  The purpose of this policy is to protect employees from unwelcome conduct that offends a person’s feelings.  Wal-Mart requires all of its employees to treat each other with dignity and respect.

Now it escapes my understanding as to why these policies weren’t in effect in the store while Boucher was working in it.

Boucher’s evidence was that Wal-Mart paid lip service to its policies.  It did not enforce them.  And when Boucher sought the protection of these policies, she was threatened that she would be held accountable if her complaints proved unwarranted.

Many years ago, I brought charges against a cop. His chief threatened me that if I proceeded further against the cop, I would be held accountable. I then filed a complaint against the chief. His police commission apologized to me for the chief’s conduct. Later when the cop became the chief of police in Strathroy, Ontario, I went after him with a vengeance. My report on this man’s conduct in his previous post was strong enough that the Strathroy city council held a meeting to discuss whether or not they wanted him to remain as their chief. I was the only witness to condemn him at that hearing. He was fired without pension an hour later. So much for me being accountable for my actions. 

When witnesses testified against Pinnock, I am sure the trial judge must have flinched in horror. Pinnock had employees who reported to Boucher go on morning store tours and in front of them, Pinnock told them how stupid their assistant store manager was, and that her career was blowing away. When Pinnock criticized Boucher, he pounded his chest and said “Let me know when you can’t fucking handle it anymore.” Pinnock berated Boucher in front of other managers, and even store customers.  “He would say, “This is a fucking shit show, look at this fucking mess.” Of course, she wasn’t the only victim of this creep’s rants. Other employees suffered from this twit’s brutality. It makes you wonder what kind of people are in Wal-Mart’s head office that hire scum from the bottom of a pool such as Pinnock.
On October 26, 2009, Boucher met with three senior management representatives of Wal-Mart.  She had asked for the meeting because nothing had been done to address her complaints about Pinnock’s treatment of her. They gave her about as much sympathy that a pedophile can expect after raping kids. Pinnock continued to be abusive towards Boucher.  As she had been asked to do, she reported the incidents to Wal-Mart’s District People Manager.  She got no response from that manager.

Witnesses for Wal-Mart testified that its management team did investigate Boucher’s complaints.  They held three meetings at the Windsor store with several employees.  They completed their investigation in early November and met with Boucher on November 14, 2009 to discuss their findings.  Wal-Mart’s management team told Boucher that they had investigated her complaints and found them to be unsubstantiated. Who were the three employees that the investigation team interviewed?  Where they related to Pinnock by blood or marriage?  My nose twitches when I realize just how much Wal-Mart failed to help a dedicated employee.

They also told her that she would be held accountable for making these unsubstantiated complaints, but they had not yet decided what discipline she would face.  They concluded that Boucher was trying to undermine Pinnock’s authority.  Boucher left the meeting in tears. 

Pinnock, on the other hand, was not disciplined for his conduct or even cautioned about it.  He was spoken to only about his and his team’s use of inappropriate language. In reaching their findings, Wal-Mart’s management team appeared to ignore the numerous incidents in which Pinnock berated Boucher in front of co-workers.  And little evidence was led at trial that Wal-Mart’s investigators sought information from the other assistant managers who had witnessed Pinnock’s abusive conduct. 
Where the members of the management team related to Pinnock?  If not, then how could they be so stupid?

Four days after Pinnock’s latest abuse, Boucher sent Wal-Mart an email that she did not intend to return to work until her complaints about Pinnock were resolved to her satisfaction.  They never were.  She didn’t return to work.  In early December she started her lawsuit for constructive dismissal and damages against Pinnock and Wal-Mart on the basis that she was constructively dismissed. What that means is that such persons are forced to quit their jobs job because of the abuse such persons receive by their employers.

In the light of the jury’s compensatory awards for Boucher, which Wal-Mart didn’t dispute, it submitted that the additional punitive damages award of $1,000,000 was not rationally appropriate to punish it or to give effect to denunciation and deterrence.  

Justice La Forest said that the very high aggravated damages award by itself sends a significant denunciatory and punitive message and likely will have a deterrent effect.  Additionally, although the jury was justified in finding Wal-Mart’s misconduct sufficiently reprehensible to warrant an award of punitive damages, its misconduct falls far short of the gravity and duration of the misconduct in other cases that have attracted high punitive damages awards. 

I agree. Had they fired her and marched her out of the building surrounded by security guards in front of the employees, I believe that the punitive damages award for a million dollars would have been considered appropriate by justice La Forest. But this isn’t what happened.

The Justice said that because Boucher did not suffer a loss of earning capacity, her claim for future loss of income was limited to the amount provided for in her employment contract: two weeks pay for every year of service, or 20 weeks.  Wal-Mart paid her that amount.  Subsequently, Wal-Mart paid her for eight months.

The Justice said that he would reduce the punitive damages award against Pinnock from $150,000 to $10,000 and the punitive damages award against Wal-Mart from $1,000,000 to $100,000.  He said that in the light of the significant compensatory awards against each appellant, those amounts are all that is rationally required to punish Pinnock and Wal-Mart and to denounce and deter their conduct.

Boucher’s cross appeal was dismissed but she was awarded $200,000 in aggravated damages against Wal-Mart for the manner in which she was dismissed plus $10,000 in punitive damages—totaling $210,000 and was awarded $100,000 against Pinnock, for intentional infliction of mental suffering and $10,000 in punitive damages—totaling $110,000.  If Pinnock hasn’t the money to pay it, Wal-Mart will have to pay it. That means that she will be awarded a total of $320,000 plus pre-judgment interest from the day she filed her claim in the court. That is a high price for a company to pay for its indifference and outright stupidity.

It is highly unlikely that Pinnock will ever get a job in which he will work in a supervisory position ever again. No firm will want to take the risk that that brutish man will abuse one of their employees and subsequently be sued by one of his victims.

There is a lesson for employers in this decision. Make damn sure that your supervisors and managers do not abuse your employees and if they do, fire them right away. Don’t give them a second chance. And apologize to any employee who has been abused at work by a supervisor. This way, it will be unlikely that your company will be sued. 

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