When Chipotle Mexican Grill Inc. fired store manager Jeanette Ortiz, accusing her of stealing $626 in cash from the safe, it could never have expected its minimal theft loss to balloon into a nearly $8 million jury verdict against if for wrongful termination of Ortiz. Even worse, an assessment of potential punitive damages against Chipotle in that case is still pending. Nevertheless, according to an article in the Fresno Bee, jurors awarded Ortiz nearly $8 million after finding that Chipotle had wrongfully terminated her. According to Ortiz, she was innocent of theft and was set up in retaliation for filing a claim for workers’ compensation benefits due to a work-related wrist injury. The article reported Chipotle had video of the theft but refused to show it to Ortiz and eventually taped over the evidence. Apparently, Chipotle failed to preserve text messages and other written notes about the firing as well. Although the article does not elaborate, it is quite likely the jury reached an adverse inference that the missing evidence would have been helpful to Ortiz in proving her case.
Savvy employer takeaways: While it is impossible to know for sure how much weight the missing evidence had on the jury’s decision, employers are wise to preserve all evidence relating to employee misconduct to avoid even an appearance of wrongdoing. As in politics, although the original offense is bad enough, the ensuing cover-up is always worse.
ShareholderAdam E. Gersh is a member of Flaster Greenberg's Labor and Employment and Litigation Practice Groups. He is also a member of the Board of Directors. He represents businesses and executives in employment and complex business disputes ...
