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McCarthy v. Home Depot

October 30, 2006

SARAH MCCARTHY, PLAINTIFF-APPELLANT,
v.
THE HOME DEPOT, DENISE CLAYTON AND JOHN TUTTOLOMONDO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-3470-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 3, 2006

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

Plaintiff, Sarah McCarthy, appeals from a trial court order dismissing on summary judgment her handicap discrimination claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.

I.

These are the most pertinent facts. McCarthy began working at a Home Depot store in Old Bridge in 1990. She worked as a refund cashier since 1998 or 1999. Because she had severe diabetes and other health problems, she required a variety of accommodations at work. There is no dispute that Home Depot accommodated her handicap by permitting her to work a permanent fixed schedule, meaning that she worked the same days and hours each week. She also was given all Mondays and Fridays off in order to attend medical appointments. This accommodation continued even after Home Depot changed its policy in 2001 to require all full-time employees to work a "fully flexible schedule" meaning that they had to be available to work any days and any shift during the week. Although some of plaintiff's fellow employees complained that she was given preferential treatment or that her fixed schedule made it difficult to arrange other employees' work schedules, plaintiff was always given the schedule she requested.

Unlike other employees, plaintiff was also permitted to sit on a stool instead of standing and was permitted to clock in and out at the front of the store, instead of at the back, because she had difficulty walking. She also took several extended sick leaves and returned to work without incident.

At plaintiff's request, she was made the "permanent opener" which meant that she reported to work at 6:00 a.m. when the store opened and was able to leave work in the afternoon, which allowed her to avoid any night driving. At her request, an employee was assigned to work with her at the refund desk beginning at 8:00 a.m., so plaintiff could take a break to eat or take medication. However, plaintiff complained that the second employee was frequently reassigned to work in other areas of the store, leaving her alone at the refund desk for hours at a time. As a result, when plaintiff needed a break she had to call a head cashier to relieve her, and plaintiff was not always able to take a break when she needed one. There is no dispute that the store was understaffed, and that other refund cashiers also had to work alone and had trouble getting time for breaks.

Home Depot's written policy concerning refunds prohibited employees from giving customers cash refunds without a receipt for the returned merchandise. Plaintiff was aware of the policy. As discussed further below, supervisors sometimes authorized the refund cashiers to make exceptions to the policy, and cashiers sometimes varied from the policy when they were extremely busy or when a contractor brought in a large number of receipts and they did not have time to match the returned merchandise to an individual receipt. In those situations they would attribute all of the returns to one receipt even if the receipt did not correspond to all of the returned merchandise.

Plaintiff was fired in October 2002, after an audit conducted by a district loss prevention manager revealed that plaintiff had failed to follow the refund policy. The loss prevention manager, Denise Clayton, did not know plaintiff and did not know of her handicap. Clayton's office was not located at the Old Bridge store, and she first met plaintiff after her investigation was completed.

Clayton conducted the investigation using computerized information that did not reveal the names of the cashiers being investigated. She based her investigation on an "exception report" from the Old Bridge store that tracked multiple returns done by the same cashier on the same day, based on the same receipt, because it was unusual for a customer to make more than one return in a single day. Using that report, Clayton would look for cash transactions, because a cashier normally cannot benefit from a credit to a customer's credit card, and for "unusual" gaps in the time between returns.

In particular, Clayton looked at two refund receipts processed on September 5, 2002, because: (1) it was a "double cash return," meaning that a cash refund was issued on both transactions; (2) there were two different customer names and signatures on the refund slips; (3) the merchandise returned in the second transaction was not listed as purchased on the original receipt; and (4) there was a three-hour gap in time between the two transactions. ...


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