Labor & Employment Law Daily Wrap Up, RETALIATION—E.D. Wash.: Walmart associate, fired after reporting harassment, gets trial on retaliation, wrongful discharge claims, (Jan 6, 2026)

By Kathleen Kapusta, J.D.

The employee alleged that she attempted several times to report a coworker’s harassment of others and also reported an assistant manager for failing to act on her complaints.

A Walmart stocker who alleged she was fired in retaliation for reporting that the assistant store manager had ignored her complaints regarding a coworker’s sexual harassment of others established material fact issues sufficient to preclude summary judgment on her Title VII claim, including whether the assistant manager knew about her complaint, whether she knew about the complaint when she removed attendance points against the employee, whether she fired the employee before receiving an email detailing her attendance points, and whether other employees who did not make a report received more favorable treatment. The court also denied summary judgment on the employee’s wrongful discharge claim, granted the company’s motion on her negligent supervision claim, and found a jury question as to two of Walmart’s affirmative defenses (Garcia v. Walmart Inc. dba Walmart 2269, No. 1:23-CV-03116-MKD (E.D. Wash. Jan. 5, 2026)).

Initial reports. In March 2022, the employee informed the assistant manager that a coworker had been sexually harassing other store associates. Shortly after that, she told the store manager that the coworker was making associates uncomfortable. In response, the store manager asked the employee if she had spoken with the assistant manager.

Ethics Department. The employee subsequently reported to the Ethics Department the alleged harassment and the assistant manager’s failure to report it. After investigating, Ethics substantiated the allegations against the coworker but not against the assistant manager.

Termination. The employee was then terminated by the assistant manager in May. While the employee claimed she was fired on May 9, the assistant manager asserted that she fired her on May 15 because she had accumulated 5 attendance points; she had received the final 0.5 points for leaving early on April 28 after having received permission from a manager. According to Walmart, even if she received permission, that did not mean her absence was authorized or protected.

Title VII retaliation. Both parties moved for summary judgment on the employee’s Title VII retaliation claim. Walmart argued that she could not establish causation because the assistant manager was not aware of the complaint against her. While Walmart pointed to the assistant manager’s deposition testimony that she “had no idea she reported any of this against me,” the employee cited the store manager’s testimony that he told the assistant manager he was investigating her failure to report after the employee told her about the harassment. Based on this, the court found a material fact dispute as to whether the assistant manager knew about the employee’s complaint.

Removal of occurrences. And while Walmart also argued that the assistant manager continued to approve the employee’s absences after she lodged her ethics report and also removed 1.5 attendance points from her balance, which cut against her argument that retaliatory motive led to her termination, the employee argued that the assistant manager removed the occurrence points before she was interviewed by Ethics, and thus before she learned of the employee’s complaint against her. Thus, the court found a material fact dispute as to whether the assistant manager know about the complaint when she removed the occurrences.

Email. Walmart next claimed the assistant manager did not proactively seek to terminate the employee but did so because of a May 14 email containing a list of 19 associates with 5 or more attendance occurrences. Again finding a material fact dispute, the court pointed out that while Walmart claimed it fired the employee one day after the assistant manager received the email, the employee claimed she was fired on May 9, five days before the email.

Temporal proximity. Walmart also argued that the seven-to-eight-week gap between when the employee engaged in protected activity and when she was fired was insufficient to support causation. For her part, the employee claimed the assistant manager did not have a reason to retaliate against her until she learned about the complaint on April 26 during the Ethics interview and fired her 13 to 19 days later. Based on this and the other material fact disputes, the court found the employee raised questions of fact for a jury.

Alternative explanation. Even if the employee established a prima facie case of retaliation, Walmart argued that it had a nonretaliatory reason for firing her—she accumulated 5 occurrence points in a rolling six-month period. According to the employee, however, this was pretextual because the assistant manager had the power to override occurrences and could elect not to fire an employee who had accumulated 5 or more occurrence points. She also pointed to evidence the assistant manager had overridden occurrence points in the past. Again finding questions of fact for a jury, the court declined to grant summary judgment to either party on this claim.

Wrongful discharge. As to the employee’s public policy wrongful discharge claim, the court noted the parties did not dispute that she reported employer misconduct and was fired. Walmart again argued that she could not show causation and even if she could, it had a legitimate, nonretaliatory reason for firing her. While Walmart contended that the employee had nothing more than temporal proximity, the court again noted evidence of employees with 5 or more occurrence points who were not terminated. Noting that the analysis here was substantially similar to that of the employee’s retaliation claim, the court again declined to grant summary judgment to either party.

Negligent supervision. Regarding the employee’s negligent supervision claim, the court, granting summary judgment to Walmart, found she failed to point to any evidence to establish the elements of the claim and, even if she had, courts in the state of Washington dismiss these claims if they are duplicative of retaliation claims.

Affirmative defenses. Turning finally to Walmart’s affirmative defenses, the court denied summary judgment on whether the company acted with bona fide reasons for believing its conduct complied with the law and without malice or recklessness toward the employee’s rights and as to whether its actions with regard to the employee were based on legitimate nondiscriminatory factors, were taken in good faith, and whether it would have taken the same actions regardless of her protected status or activities, if any. It granted summary judgment, however, against Walmart’s claim the employee failed to mitigate damages, noting that courts within the Ninth Circuit have held that a failure to mitigate damages does not apply to emotional distress damages.

The case is No. 1:23-CV-03116-MKD.

Judge: Dimke, M.

Attorneys: Ada Ko-Wong Smoke (AKW Law) for Andrea Garcia. Clarence M. Belnavis (Fisher & Phillips) for Walmart Inc. dba Walmart 2269 and Wal-Mart Associates Inc.

Companies: Walmart Inc.; Walmart 2269; Wal-Mart Associates, Inc.

Cases: Retaliation Discharge StateLawClaims TortClaims WashingtonNews