A Fresno, California jury has awarded nearly $8 million to former Chipotle employee Jeanette Ortiz on her claim of wrongful discharge.
The jury found Chipotle had fired Ortiz in retaliation for her filing a worker’s compensation claim of carpal tunnel syndrome. It also found Chipotle falsely accused Ortiz of stealing money to disguise the unlawful motive. Faced with the possibility of additional punitive damages on top of the initial trial verdict, the fast-food giant settled with Ortiz after trial for an undisclosed sum.
Ortiz was a 14-year employee of Chipotle and worked as General Manager. By all accounts, she was a stellar employee with excellent performance reviews prior to her termination. Chipotle accused Ortiz of taking $636 out of a company safe on December 29, 2015, and placing it into her backpack. Ortiz vehemently denied stealing the cash. She told the company that the money was still in the safe on December 30, when she checked the safe with another manager. The second manager confirmed this. Ortiz reported the money missing on January 3, 2016. During its investigation of the theft (the money was not located), the company refused to show Ortiz the surveillance video purportedly showing her taking the money because it was against policy. The footage later was inadvertently deleted. Chipotle maintained that Ortiz had motive and opportunity and fired her.
How can employers avoid missteps in their internal investigations? First, take appropriate steps to preserve evidence. Chipotle’s surveillance camera automatically taped over itself after 45 days and the footage of Ortiz allegedly pocketing the $636 was then lost. Evidence may be on cell phones, in emails, in forensic data from a computer, or, as in this case, on a surveillance video. Do not wait until litigation is filed and rely on your attorneys to gather all of the documentation after-the-fact; in some situations, by the time a company hires outside employment counsel, evidence already has been lost. Management should be trained or advised to take such steps themselves. Everything relied upon in making an employment decision should go into the personnel file, including a disc with a copy of any electronic files.
Second, timing is key. The timing of employment decisions can have major consequences. Here, Ortiz texted her bosses on January 3, 2016, to say that the money was missing from the safe. Her supervisors later accused her of stealing the money and refused to show her the surveillance video. On January 18, Ortiz requested a medical leave of absence because her carpal tunnel syndrome was worsening. While she was on leave, her employment was terminated. Chipotle took too long to make its decision and an intervening event, Ortiz’s medical leave, made its timing appear suspect. Not only do companies have to act thoroughly, they must act quickly in making decisions related to employee misconduct, particularly when a termination is being considered.
Finally, know when to ask for help. Any difficult employment investigation or personnel decision should be reviewed with experienced counsel to avoid potentially costly blunders.