David Victorious Over Goliath

US Pharm. 2007;32(10):58-60.

As Goliath moved closer to attack him, David ran quickly toward the battle line to meet him. Reaching into his bag and taking out a stone, he slung it and struck the Philistine on the forehead. The stone sank into his forehead, and he fell [dead] facedown on the ground. ¹

After three years of litigation followed by a two-week trial, 45-year-old Cynthia Haddad, a pharmacist and a mother of four children, walked out of the Berkshire County Superior Court in Pittsfield, Massachusetts, with her husband and a jury verdict in her favor for nearly $2 million against her former employer, Wal-Mart.² This corporation is recognized as the largest retailer in the world.³ Given the behemoth size of the defendant and the guile that one lone pharmacist could muster, this was truly a David versus Goliath story in the making.

Just before the jury returned, Ms. Haddad told reporters, "My story was told and I did the fight. My life would go on after that."⁴ After the verdict was rendered, one of her attorneys told the press, "It sends a message that you cannot treat people poorly because of who they are."⁵ Another one of her attorneys, who is a pharmacist and a lawyer, stated, "The message in our case is you can't take a professional pharmacist and fire her for reasons that aren't enforced for male pharmacists. Their reasons were just laughable." ⁶ Ms. Haddad stated that the verdict "vindicated" her. "It started to bring life back into me … Someone listened."⁷

Ms Haddad worked as a pharmacist for Wal-Mart for 10 years prior to the start of this litigation. When she was offered the job in 1993, she began to realize a lifelong ambition that developed in the eighth grade when she had a crush on a pharmacist in her hometown.⁸ In 2003, she was offered a "temporary" position as manager of the pharmacy in the Pittsfield Wal-Mart. For a variety of reasons, including an almost constant change in district manager personnel, this intended short-term position lasted over 13 months. Pharmacy managers are paid at least $1 more per hour than staff pharmacists and receive bonuses. Ms. Haddad received no pay increase or bonus. After nine months of performing all, or at least the vast majority, of the same tasks as any other pharmacy manager, she complained to her supervisors but to no avail. Eventually, she was given a check representing nine weeks of bonus pay but nothing for the managerial pay differential.⁹ Due to her continued and persistent complaints, she was given another bonus check in April 2004. Five days later, she was fired.

Wal-Mart contended that she was terminated because she left the pharmacy unattended by a pharmacist and during her absence, a pharmacy technician logged onto the computer using the pharmacist's access code and filled a forged prescription for a controlled substance. There was also evidence that during this time, a prescription for an acid reflux medication was dispensed when no pharmacist was in the pharmacy. The only problem with these excuses is that the incidents happened 18 months before she was let go. The math here is quite interesting: the controlled substance drugs went missing in 2002, at least five months before she was promoted to "temporary" pharmacy manager. Does it make any sense to promote somebody that the pharmacy district managers knew had allowed controlled substance drugs to be diverted without a valid prescription? From the jury's collective minds, apparently not. In reality, they believed that this was just a pretext advanced to shield Wal-Mart from accusations that it illegally discriminated against this pharmacist due to her gender and in retaliation for her complaints of unfair treatment, compared to male pharmacy managers.

Wal-Mart took a risky position by trying to link her dismissal to the missing controlled substances. This opened the door for the pharmacist to claim defamation. A Board of Pharmacy investigation into the incident did not result in any charges against the pharmacist or the corporation. Ironically, it was this pharmacist who initially alerted the federal Drug Enforcement Administration (DEA) that there were controlled substance inventory discrepancies.¹⁰ Again, no action was taken by the DEA against either the pharmacist or the pharmacy. At about the same time as these occurrences, Ms. Haddad also witnessed and reported to Wal-Mart misconduct by a male pharmacist. No action was taken against that pharmacist. ¹¹ During the trial, a member of the Board of Pharmacy testified that Massachusetts law does not prohibit a pharmacist from leaving the pharmacy for a short period with only a pharmacy technician present.¹²

Ms. Haddad's attorneys also introduced evidence that Wal-Mart's investigation into her employment activities was deeply flawed and that its policies and procedures are, at best, only selectively enforced when the company thinks it would be to its own advantage. ¹³ The evidence also showed that similarly situated male pharmacy managers were never disciplined for far more egregious violation of company policies. In fact, virtually no male pharmacists in the same district had ever been terminated or even disciplined for the reasons that Wal-Mart claimed she was fired over. Both the former president of the Massachusetts Board of Pharmacy and a district manager for Wal-Mart stated at the time of the trial that they did not know of any case where a pharmacist was fired for failing to secure the pharmacy. Oddly enough, every performance review that was conducted over the 10-year span of her employment showed that she was an exemplary pharmacist. The corporation could not explain why an employee with Ms. Haddad's record was terminated as a matter of its claimed "sound business decision" for failing to secure the pharmacy one time.¹⁴

In a novel, if not unprecedented, move, the attorneys for Ms. Haddad called on an attorney with expertise in human resources and corporate policies as an expert witness.¹⁵ Wal-Mart vigorously opposed this gambit. However, after an hour-long hearing conducted by the judge (outside of the jury), he ruled that the expert witness was qualified to testify on issues regarding policies and procedures. She testified that Wal-Mart does not adhere to its own personnel policies in any systematic way.

It was stated that the judge presided over the trial with patience and fairness, reading copious pleadings and generating proposed jury instructions that were well researched and reasoned.¹⁶ It may be difficult for Wal-Mart to prevail if it decides to appeal.

At the end of the trial, a spokesman from Wal-Mart said the company has antidiscrimination policies and procedures and encourages women to take on leadership roles.¹⁷ That claim is also being put to a test in a sexual discrimination lawsuit filed in California in 2001. The class action suit covers nearly all women employed by Wal-Mart after 1998. According to an attorney for the plaintiffs, the number of women represented in that case is nearly 2 million.¹⁸

The verdict against Wal-Mart in the Haddad case included nearly $1 million in compensatory damages and $1 million in punitive damages. Compensatory damages included $95,000 in back pay, about $733,000 in front pay (money she would have earned if not wrongfully terminated), $125,000 for emotional distress, and over $17,000 for medical expenses. The jury did not make any reward for the defamation claim. No question that $2 million for one individual is a huge victory, but it is barely a drop in the bucket for a company that generated more than $355 billion in revenues for fiscal 2006.¹⁹

Immediately after the jury rendered its verdict, Wal-Mart announced it would appeal the decision within the allotted 30 days. While the economics might weigh against Wal-Mart following through with an appeal, the company might keep the litigation alive to prevent others from bringing similar claims and establishing a negative precedent.²⁰ However, at the time of this publication, there were no public documents available showing whether Wal-Mart followed through with the threatened appeal.

References
1. 1 Samuel 17, verses 48 and 49 (NIV). BibleGateway Web site. Available at: www.biblegateway.com/passage/?search=1+?Samuel+17. Accessed September 14, 2007.
2. MoreLaw Web site. Available at: www.morelaw.com/verdicts? /case.asp?n=05274&s=MA%20%20%20%20%20%20%20%20&d=33337. Accessed September 14, 2007.
3. Fired worker wins Wal-Mart case. BBC News. June 27, 2007. Available at: news.bbc.co.uk/2/hi/business/6222976.stm. Accessed September 14, 2007.
4. Keller E. One case against Wal-Mart. Business Week, June 28, 2007. Available at: www.businessweek.com/bwdaily/dnflash?/content/jun2007/db20070627_312065.htm. Accessed September 14, 2007.
5. David Belfort, Corrigan, Bennett & Belfort, P.C., Cambridge, Massachusetts and Richard Fradette, Beliveau, Fradette, Doyle & Gallant, Manchester, New Hampshire. Available at: news.bbc.co.uk/2/hi/business/6222976.stm. Accessed September 14, 2007. Mr. Fradette is also a pharmacist-attorney.
6. Reed K. Wal-Mart told to pay $2m to fired pharmacist. Boston Globe. June 21, 2007. Available at: www.boston.com/business? /globe/articles/2007/06/21/wal_mart_told_to_pay_2m_to_fired_?pharmacist. Accessed September 14, 2007.
7. See note 4.
8. See note 4.
9. See note 6.
10. Paiste D. NH lawyer wins against Wal-Mart. New Hampshire Union Leader. June 21, 2007:A1. Available at: nl.newsbank.com/nl-search/we/Archives?p_product=UL&p_? theme=ul&p_action=search&p_maxdocs=200&s_dispstring=? allfields(NH%20lawyer%20wins%20against%20wal-mart)? %20AND%20date(last%206%20months)&p_field_date-0=? YMD_date&p_params_date-0=date:B,E&p_text_date-0=? -6qzM&p_field_advanced-0=&p_text_advanced-0? =(NH%20lawyer%20wins%20against%20wal-mart)&xcal_? numdocs=20&p_perpage=10&p_sort=YMD_date:D&xcal_?useweights=no. Accessed September 14, 2007.
11. See note 6.
12. See note 4.
13. See note 2.
14. Id.
15. HR expert helps plaintiff win in Wal-Mart discrimination case. Available at: xprolegal.com/aug07/aug6.php. Accessed July 23, 2007. 
16. Id.
17. See note 6.
18. Id.
19. See note 4.
20. Fired Wal-Mart pharmacist wins landmark gender discrimination case. Available at: totallawyers.com/legal- articles-fired-wal-mart-pharmacist.asp. Accessed July 30, 2007.

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