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Whistle-Blower Claim Against Wal-Mart to Proceed

Employers need to be careful before dismissing an internal complaint. This decision is a warning to all employers that internal complaints may be considered actionable whistle-blower activity.

November 18, 2009
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Related Topics: Wrongful Discharge, Ethics
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Mark Partain, a licensed optician who managed Wal-Mart’s vision care center in Athens, Tennessee, complained to the company’s divisional manager, as well as to Tennessee State’s Board of Dispensing Opticians, about Wal-Mart permitting unlicensed personnel to dispense optical products and make in-store solicitation for eye exams.

Although Wal-Mart investigated and concluded that those practices were not unlawful, Partain continued to complain about them, both internally and to outside administrative boards. Shortly after Partain received an “exceptional performer” award, he was suspended for expressing those same concerns to two co-workers, and two months later was fired for refusing to sign an action plan that stated he would follow his supervisor’s orders so long as they complied with state law.

Partain filed suit in U.S. District Court in Tennessee, alleging statutory violations and retaliatory discharge. Wal-Mart brought a motion for summary judgment alleging that Partain’s internal complaints were not protected under Tennessee’s Public Protection Act. The court disagreed and held that “complaining to multiple people inside the organization—perhaps up the chain of management, perhaps not—may demonstrate that an employee is concerned about an allegedly illegal activity that has an impact on the public welfare.”

The court also concluded that a reasonable jury could find that the events leading up to Partain’s termination were “inextricably linked” with his whistle-blowing activity. Accordingly, Partain was allowed to proceed with his claims. Partain v. Wal-Mart Stores, Inc., E.D. Tenn., No. 1:07-cv-279 (9/15/09).

Impact: Employers need to be careful before dismissing an internal complaint. This decision is a warning to all employers that internal complaints may be considered actionable whistle-blower activity.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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