Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—S.D. Miss.: Walmart employee, fired for alleged attendance violations, advances FMLA retaliation claim, (Apr 15, 2025)

By Todd Harrison, J.D.

When she returned from leave, her working conditions had changed, with supervisors negatively commenting on her absence and changing her job code to a lower-paying position.

A former digital personal shopper who worked for Walmart avoided summary judgment on her FMLA retaliation claim, ruled a federal district court in Mississippi. The employee had initially taken leave to care for her daughter and was later placed on quarantine after her daughter tested positive for COVID-19. When she finally returned to work, her supervisors made negative comments concerning her leave, had changed her job code without her knowledge, and ultimately fired her for allegedly accumulating too many points under Walmart’s attendance policy, although she contended the head of HR changed her punch out time to bring her in violation of the policy. A coworker who had accumulated the same number of points was not fired (Priest v. Walmart Stores East, LP, No. 3:24-CV-163-KHJ-MTP (S.D. Miss. Apr. 14, 2025)).

Hired in 2004, the employee in this case was transferred to a store in Yazoo City in 2017, eventually taking the role of digital personal shopper in January 2021.

Leave. From August to mid-November 2021, the employee took FMLA leave to care for her minor daughter who suffered from congestive heart failure. After returning to work, she reported on December 29 that her daughter had COVID-19. Walmart sent her home for a mandatory two-week quarantine. After some scheduling difficulties, the employee returned to work in mid-February 2022.

Changed environment. According to the employee, when she returned to work the conditions had changed. Her supervisors allegedly made negative comments concerning her leave. What’s more, her team lead and the head of HR asked her whether she wanted to be a cashier. The employee stated that she did not, but the head of HR still changed her job code without her knowledge. Further, someone at Walmart filled out a Docusign agreement falsely representing that the employee accepted the demotion along with a $2 hourly pay cut.

Ethics complaint. Eventually, the employee caught the job-code change and reported it to a supervisor. She was told to bring it up with the head of HR, who said he would get to it. He never addressed the matter.

Subsequently, the employee reported the issue to Walmart’s Global Ethics team, and an investigator directed the store to reimburse the employee for the pay-rate error. A supervisor ultimately did so but chided the employee for making a complaint.

Attendance violation, termination. Under Walmart’s attendance policy, an employee who accrues five points in a six-month period is subject to termination. On July 18, 2022, the employee had accumulated 4.5 points. She was scheduled to work that day until 7:00 p.m., but clocked out at 6:18 p.m., using 45 minutes of protected PTO to cover her early departure. However, the head of HR allegedly changed her punch-out time to 6:02 p.m., resulting in an unauthorized early departure and bringing her point total up to five.

About a week later, the employee was fired for violating the attendance policy. A coworker who held the same position, had the same direct supervisor and chain of command, and who had also accumulated five points during the same period did not lose her job. Subsequently, the employee filed this lawsuit alleging claims for FMLA retaliation and breach of contract. Walmart moved for summary judgment.

Prima facie case. First, the court addressed the FMLA retaliation claim, finding that the employee had made a prima facie showing of causation. She had shown retaliatory animus on the part of the head of HR who allegedly made negative comments about her FMLA leave and who had tampered with her attendance records. She also proffered evidence that other supervisors had made negative comments concerning her FMLA leave and were “primarily responsible” for her firing or had “influence or leverage” over the ultimate decisionmaker. Further, she had shown that she was treated more harshly than a similarly situated employee for nearly identical conduct.

Pretext. Walmart articulated a legitimate, nondiscriminatory reason for its decision—the violation of its attendance policy. However, the employee’s evidence that Walmart’s attendance-based justification was false, coupled with her prima facie causation evidence, created a jury question on pretext, said the court, denying Walmart’s motion for summary judgment on the FMLA-retaliation claim.

Breach of contract. As to the employee’s breach of contract claim, the employee had failed to address that claim in her response, and thus the court found summary judgment in favor of Walmart was appropriate on this claim.

The case is No. 3:24-CV-163-KHJ-MTP.

Judge: Johnson, K.

Attorneys: Lindsey O. Watson (Wilbanks Dowd & Watson) for Nicole Priest. Steven R. Cupp (Fisher & Phillips) for Walmart Stores East, LP.

Companies: Walmart Stores East, LP

Cases: EmployeeLeave Discharge Retaliation ContractClaims MississippiNews