January 2009 – Employee is issued a disciplinary memo for taking a rest break over the allowed period of time. The employee testified at her deposition that the reason she went over her break on that day was because an employee from another department approached her to discuss his father who was terminally ill. The employee was trained that as a manager if an employee approached her with any issues, she should listen and try to assist the employee.
January 2009 – Employee reminded the Store Manager and the Assistant Store Manager that she had to report for jury duty in January 2009.
January 2009 – Employee called the Assistant Store Manager and told him that she was selected as a juror for a criminal case. Assistant Store Manager, requested that employee keep him posted.
January 2009 – Employee called Assistant Store Manager and told him that she was to return to jury duty the next week. Assistant Store Manager never asked employee during that telephone conversation if she had to report to jury duty on Monday or that she was scheduled to work on that Monday. In fact, employee was not scheduled to work on that Monday.
First, this was the first time in employee’s 19 years of employment with defendant that the was summoned for jury duty, therefore, this is not a standard incident or circumstance of a “failure to work posted shift”. Second, employee was not scheduled to work on that Monday. The schedule clearly provided “Jury Duty” for employee for that Monday. Third, it is not clear why a human resources representative would accept the Assistant Store Manager’s version of the telephone conversation with employee and not hers. Especially in light of the fact that the Store Manager indicated that employee told her that she did not have jury duty on that Monday. Fourth, the Jury Duty policy contained in the CBA does not support termination, the form of “discipline” that the CBA provides for a circumstance similar to employee’s circumstances, is not to pay her for that day. Lastly, defendant failed to follow its own policy regarding “disciplinary approach”, which provides: “Sometimes people make mistakes. The objective of our disciplinary policy is usually deterrence and rehabilitation through counseling and positive reinforcement. We also recognize, however, that when and if counseling fails, more formal and progressively stern measures become necessary. In those instances, the approach generally taken, based on length of services and offense(s), will be written warning, followed by suspension or termination.”
January 2009 – Employee provided Assistant Store Manager with proof of juror service.