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March 4, 1987

Esther Harris, Plaintiff
Wal-Mart, Defendant

The opinion of the court was delivered by: ROY

 Elsijane T. Roy, United States District Judge

 Trial was held before the Court in this matter on June 23 and 24, 1986 and September 17 and 18, 1986. Post-trial briefs and reply briefs have been received and the Court makes the following Findings of Fact and Conclusions of Law.


 1. Plaintiff Esther Harris, a black female, was hired at Wal-Mart Store No. 124 on June 28, 1977. *fn1" Sometime in September of 1977, she began working as a checker/cashier.

 2. Defendant Wal-Mart Stores, Inc. is an Arkansas corporation engaged in the business of operating retail discount stores.

 3. Wal-Mart Store No. 124 is located at 8717 Geyer Springs Road, Little Rock, Arkansas.

 4. On or about January 1, 1981 plaintiff was moved to the position of Checkout Supervisor (COS). The title of this position was later changed to Customer Service Manager (CSM). The CSM trains, directs, and assists the checkers, and schedules all breaks and lunches for checkers. The CSM is responsible for approving checks, over-rings, refunds, and voids, for distributing money to each register, for picking up money from the registers, and for all change needs of the registers.

 5. Jim Harris was assigned as Store Manager of Wal-Mart Store No. 124 in June, 1981 and remained there until January, 1984. At the time Jim Harris was assigned to the store, the store had had a history of high cash shortages and he was made aware that there was a problem with cash control problems on the checkout lanes.

 6. On November 6, 1981, Jim Harris gave plaintiff a written counseling, stating that plaintiff was not doing a good job as service manager for the following reasons:

A. Cash shortages are still abnormally high -- no reason for this -- and no excuse.
B. Poor morale of checkers who feel they are being picked on.
C. Poor scheduling of breaks and lunches. Several complaints here.

 7. On November 10, 1981, plaintiff filed a charge of discrimination with the EEOC, claiming that she was placed on probation because of her race.

 8. Thirty days later, on December 10, 1981, plaintiff was re-evaluated, and Jim Harris noted her improvement. Plaintiff received a $.30 an hour raise at this time.

 9. On February 3, 1982 plaintiff received a semi-annual evaluation at which time Jim Harris noted that she was doing "a much better job at the front." Plaintiff received a $.20 an hour raise at this time.

 10. On April 19, 1982, plaintiff received a written counseling for a $ 100.00 shortage. Pam Bedford, a black female, who was the relief checkout supervisor that day, and Laverne Hartwick, a white female, who was the night checkout supervisor, also received warnings.

 11. Because the cash shortages at Store 124 continued, Wal-Mart Loss Prevention Supervisor Ken Ruck, who was responsible for the security of ten stores in the central Arkansas area, was called in to investigate the shortages in 1982. He was notified by the store manager that excessive cash shortages were being experienced in the checkout area. He began investigating to find out whether it was carelessness, mishandling of money, or theft. At this same time, there was a change-out of cash registers. The only problems experienced with the new registers were with the batteries, and the registers would lock up when these problems arose. This could cause a lane to close, but not a cash shortage. In fact, if a register was to completely go down and lose its total memory, the money that was in the register would be counted at that point in time and would be reported as exactly even and not over or short, because there was no basis to find out what the actual register asked for in change. If the memory was lost, they had to take for granted what cash was in the drawer, so the register would be shown as even.

 12. Mr. Ruck, in conducting the investigation, first had members of management perform audits after 5:00 p.m. to determine whether the shortages had already occurred before 5:00 p.m. These audits showed that the cash registers were more prevalently short already at 5:00 p.m. Further investigation revealed that there was no specific checker that was responsible for the shortages. The investigation then focused on the CSM. A closed circuit TV video camera was installed to record the activities of the checkout area. This revealed instances of policy violations on the part of the plaintiff. In one instance, plaintiff took what was apparently a large bill from a register bag and placed it in her smock pocket. It was a violation of Wal-Mart policy for plaintiff to place money in her pocket. Although Mr. Ruck did not feel that the videotape was substantial enough for purposes of discharge or prosecution as far as the denomination of the bill and exactly what happened to the bill after plaintiff left the area, he and management did feel that further investigation was needed. Therefore, an excess amount of money in the amount of $16.00 was placed in an opening bag for the next morning to determine whether plaintiff would report the overage. The proper procedure was to report the overage immediately. Plaintiff did in fact turn in the overage, but waited until the end of the day to do so.

 13. Plaintiff contended that on the day of the $ 16.00 overage it was extremely hectic and she kept the $ 16.00 in her pocket because the store had switched registers and she had no trained checkers.

 14. Subsequent to the investigation, Mr. Ruck spoke with plaintiff, asking for an explanation of the policy violations. He also had compiled evidence indicating shortages were more prevalent and greater when plaintiff was working than when she was on vacation. After their discussion, Mr. Ruck recommended that plaintiff be reassigned to another area of the store. Once reassigned, the cash shortages did not stop but they decreased considerably.

 15. For the six months preceding plaintiff's transfer, the net amount of cash shortages was $ 1,718.56; during the six months following plaintiff's transfer, there was a net overage of $88.68.

 16. Another CSM who was white and worked at night was terminated after being seen on videotape taking a pack of cigarettes and putting them in his pocket.

 17. Testimony indicated that the company policy was and is that no company money is allowed to be put on a person, in pockets or anywhere. An employee is only allowed to have change in their smock pocket or jeans pocket for Cokes or snacks.

 18. On July 2, 1982, Jim Harris wrote his counseling report that resulted in plaintiff's removal from her CSM position.

 19. When plaintiff was removed from her position as CSM, she was offered a position in the receiving department where she would not have cash handling responsibilities and where she could be under closer supervision. The reassignment to the receiving department did not result in a cut in either salary or the number of hours scheduled.

 20. White employees have also been transferred to a different job within Wal-Mart for their inability to handle a job or for poor performance in a particular job. In addition, a number of other blacks received ...

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