Jury says Office Depot failed to take retaliation complaint seriously before it fired plaintiff.
- Case Name: Flores v. Office Depot, Inc.
- Court and Case Number: Los Angeles Superior Court / BC556173
- Date of Verdict or Judgment: Monday, February 06, 2017
- Date Action was Filed: Friday, August 29, 2014
- Type of Case: Employment, Wrongful Termination
- Judge or Arbitrator(s): Hon. Daniel Murphy
Plaintiffs: Mark Flores, 54, supply chain supervisor.
Defendants: Office Depot, Inc.
- Type of Result: Jury Verdict
- Gross Verdict or Award: $10,000,000
Award as to each Defendant:
Office Depot, Inc.
Past lost compensation: $867,000
Past medical expenses: $29,000
Future medical expenses: $40,000
Past non-economic damages: $710,000
Future non-economic damages: $354,000
The jury awarded $8 million in punitive damages based on the failure to prevent retaliation.
- Trial or Arbitration Time: 10 days.
- Jury Deliberation Time: 5 hours.
- Jury Polls: FEHA Retaliation: 10-2; CFRA Retaliation: 9-3; Failure to Prevent Retaliation: 10-2; Punitive Damages: 9-3
- Post Trial Motions & Post-Verdict Settlements: A Defense Motion for Judgment Notwithstanding the Verdict or, alternatively, a Motion for New Trial is being prepared, as well as a notice of appeal.
Attorney for the Plaintiff:
Alexander, Krakow + Glick LLP by J. Bernard Alexander, III and Joshua Arnold, Santa Monica.
DesJardins & Panitz LLP by Eric A. Panitz, Cerritos.
Attorney for the Defendant:
Attorney for the Defendant:
Littler Mendelson by Helene Wasserman and Eric Cook, Los Angeles.
Plaintiff’s Medical Expert(s):
Anthony E. Reading, Ph.D., forensic psychology, Beverly Hills.
Steven Dennis, M.D., orthopedic surgery, Newport Beach.
Defendant's Medical Expert(s):
None at trial.
Plaintiff's Technical Expert(s):
Marianne Inouye, MBA, forensic economics, Pasadena.
Defendant's Technical Expert(s):
Facts and Background
Facts and Background:
Plaintiff Mark Flores, a 58-year-old supply-chain supervisor and 17-year employee of Office Depot in Long Beach, was placed on a performance improvement plan just four work days after returning from medical leave for neck surgery in June 2013. He was then terminated two months later.
Flores sued Office Depot Inc., as well as his supervisor, Jorge Vazquez. Flores alleged claims for wrongful termination, retaliation in violation of the California Family Rights Act and the Fair Employment and Housing Act, and failure to prevent retaliation. Early on in the litigation, Flores voluntarily dismissed Jorge Vazquez as a defendant.
That plaintiff had complained to Human Resources that his supervisor had directed him to “performance manage out” two older employees. That Human Resources failed to conduct a good-faith investigation in response to plaintiff's’ complaints of discrimination and retaliation, despite the fact that the supervisor failed to document any prerequisite counseling or coaching prior to issuance of the performance improvement plan, and despite plaintiff's long history of performance evaluations which “met” or “exceeded” expectations.
Plaintiff ‘s supervisor, Jorge Vazquez, testified that he submitted five Manager's Record of Discussion ("MRDs") to HR prior to issuance of a Performance Improvement Plan ("PIP") to plaintiff. Several witnesses impeached Vazquez's stated reason for the PIP: that Flores’ peers had problems trusting and working with him.
HR failed to confirm that prior coaching and counseling had occurred, which should have been confirmed by the existence of MRDs prepared by Vazquez as a prerequisite to issuance of a PIP to plaintiff. HR approved issuance of the PIP despite non-existent MRDs. In response to plaintiff's complaints of discrimination and retaliation, the Western Regional Director failed to issue even-handed instructions to HR to conduct an investigation of plaintiff's version of the facts, but instead presumed that Supervisor Vazquez's version of events was accurate, wholly ignoring the possibility that plaintiff's version of events was accurate and truthful.
Office Depot’s decision to terminate Flores’s employment was wholly appropriate under all of the circumstances, and was absolutely unrelated to any alleged protected category and/or activity.
Office Depot presented evidence at trial that Flores had been coached on his interpersonal skills, savvy, and peer relations for a significant period of time before he was actually placed on a performance improvement plan. He was placed on a formal performance improvement plan after he failed to improve in areas that had been well noted in his prior performance evaluations and other documents as being areas for improvement. Plaintiff’s own psychological expert, Dr. Anthony Reading, testified at trial that plaintiff had been coached by multiple managers prior to being placed on a formal performance improvement plan.
Further, there was no evidence that Flores made any complaints about any alleged improper conduct by Mr. Vazquez prior to being placed on the performance improvement plan. Once the complaint was made, a thorough investigation was conducted by Office Depot’s highly experienced human resources team.
Flores’s contemporaneous doctor reports reflected that he was feeling fine and planning international travel within days of being placed on the performance improvement plan. It wasn’t until several months after the lawsuit was filed, and nearly two years after his termination, that Flores first sought mental health treatment.