McCall v. Giant Stores
An employee, on her day off, returned a set of towels, a gift she had received from her mother after moving into her new apartment, to the store in which she worked. Upon presenting the merchandise for an exchange at the service desk, an older employee suspected her of stealing the merchandise and presenting it for an exchange. Challenged with this suspicion, she denied it and claimed she had just carried the merchandise into the store in one arm while she was carrying her baby in the other arm.
The suspicious employee conducted a hasty computer check of the database reflecting sales of specific inventory items, which indicated the items had never been purchased. A rushed search of videotapes covering the doors showed the now-suspect employee entering the store empty-handed. An untrained investigator came to the store several days later and interviewed the employee, who again denied any theft. The investigator called the police and the employee was subsequently jailed for theft.
Keywords
cross-examination; direct examination; documentation; employee rights; procedure; trial; wrongful termination
Contents
What happened?
An employee, on her day off, returned a set of towels, a gift she had received from her mother after moving into her new apartment, to the store in which she worked. Upon presenting the merchandise for an exchange at the service desk, an older employee suspected her of stealing the merchandise and presenting it for an exchange. Challenged with this suspicion, she denied it and claimed she had just carried the merchandise into the store in one arm while she was carrying her baby in the other arm.
The suspicious employee immediately conducted a computer check of the database reflecting sales of specific inventory items, which indicated the items had never been purchased. A prompt search of videotapes covering the doors showed the now-suspect employee entering the store empty-handed. An untrained investigator came to the store several days later and interviewed the employee, who again denied any theft. The investigator called the police and the employee was subsequently jailed for theft.
Who was being sued, and why?
A civil complaint was filed against Giant Stores for false imprisonment and wrongful termination caused by grossly careless, negligently managed, and untrained loss prevention employees who participated in the investigation and the plaintiff’s questioning.
Who was involved?
• Connie McCall, the employee who was accused of theft and was jailed.
• Barbara Schmidt, the service-desk employee who first suspected Connie.
• Pam Holdridge, the area supervisor who reported the theft to the regional loss prevention manager.
• Robert Greene, the in-store loss prevention agent who searched the videotapes and produced the videotape that depicted Connie entering the store empty-handed, the primary damning evidence.
• Mary Hinkley, the regional loss prevention manager who interrogated Connie, summoned the police, and requested the arrest of Connie based on the videotape evidence.
• Carl Whithers, the local police officer who transported Connie in handcuffs and incarcerated her in the local jail.
• Sandy Sanborne, the local criminal defense attorney retained by Connie to defend her in the criminal trial.
• Cindi Lang, the city attorney and prosecutor responsible for formalizing criminal complaints, initiating complaints in the local criminal justice system, and representing the state in criminal trials.
• Hildegarde McCall, Connie McCall’s mother, who purchased the items believed to have been stolen.
When did it happen?
Connie McCall returned a set of towels on a Saturday morning. The store personnel conducted their initial investigation that same morning.
Five days later Mary Hinkley, the investigator, arrived and interviewed Connie. That same day she reported her findings and the case to Officer Whithers. The next day, Whithers went to Connie’s apartment and arrested her.
How did it happen?
I informed the calling attorney I was 99% retired and really wasn’t interested in any further assignments, with the exception of a really “big-ticket” case that usually involved a wrongful death, catastrophic injury, or some other very egregious event. He promptly replied, “Then our case qualifies.”
He went on to explain his firm represented a young female employee of a national retail firm who wrongfully accused her of theft and had her jailed based on a terribly flawed investigation. Indeed, the case was so badly handled by the retailer that this civil action was destined for punitive damages. So-called punitive damages means the court will allow the jury to punish a defendant for their conduct as a lesson not to repeat whatever the faulty conduct or failure to perform properly was. The vast percentage of awards that must be paid by a defendant are covered by insurance, however punitive awards must be paid out of the defendant’s pocket, which can be painful.
“How was the store’s investigation so terribly flawed?” I asked.
He mentioned that there were numerous failures and examples of investigative ineptitude, but the most egregious was the in-store security employee. In his haste to locate Connie entering the store, he seized on a section of the security videotape from the store’s door, which showed her entering the store empty-handed at 10:10 a.m. Actually, she entered the store at 9:30 a.m., carrying the merchandise in one arm and her baby in the other. The store relied on the 10:10 a.m. scene in which the plaintiff was empty-handed and turned over that videotape to the police. It wasn’t until just before the trial that the local prosecutor, while discussing the case with the defense attorney, sensed there was something wrong. The times on the videotapes are computer-generated and very difficult in some scenes to read, but following the 10:10 a.m. entry, that scene was spliced to the videotape from another camera viewing the service desk, and in that scene Connie was holding her baby!
But the scene with the baby was either ignored or the significance of the presence of the baby wasn’t grasped. So the store concluded she entered carrying nothing, walked to the towel department, then carried the towels to the service desk and pretended they were hers. Yet the full (but spliced) videotape used as evidence revealed the presence of a baby in her arms. Where did the baby come from?
Subsequently, the store reexamined all the videotapes, upon the request of the city attorney, and in that search they found the section of videotape showing Connie entering the store at 9:30 a.m., carrying the package of towels and her baby and arriving within a minute at the service desk. Clearly, she was innocent of any theft and the store either intentionally spliced together scenes to support their theory or it was a gross act of negligence in not locating her initial entry, as she had contended.
The criminal charges that were before the court were dismissed “in the interest of justice.” McCall then filed a civil suit against the store.
Her attorneys called me; we discussed some of the issues, as related above, and I accepted the case for two reasons: (1) to assist in hopes of ensuring Connie received just compensation for her treatment at the hands of a retailer that refused to raise the level of professionalism of the loss prevention/security personnel, something I have championed most of my adult life, and (2) for the satisfaction of engaging in and assisting in a punitive action case against a retailer who clearly doesn’t understand, appreciate, or care about the importance of training its loss prevention staff, as proscribed in most of my books.
Interestingly, some years earlier a posting on a loss prevention Internet website stated, “I told my supervisor about Mr. Sennewald’s book Shoplifters vs. Retailers: The Rights of Both and he cautioned me against reading it, saying, ‘We don’t care what Mr. Sennewald says; we do things the Giant Store way.’”
I was on board and the files started coming in.
Documentation of what actually transpired
Connie entered the store through the east door at 9:30 a.m. carrying the set of towels her mother had given her for her new apartment. She didn’t want to return them for a refund; she only wanted a different color to coordinate with her bathroom. In her other arm she was carrying her baby.
Procedure dictates when customers, including employees, enter the store carrying merchandise, typically for an exchange or a refund, the door “greeter” gives the customer a red slip and directs the customer to the service desk. This procedure is obviously incumbent upon the greeter to issue this colored slip; customers can’t be expected to know the company’s rules, however, employees know and should comply.
When Connie came in, the greeter was occupied and Connie didn’t bother to go to her and request the slip. Instead, she walked directly to the service desk. Barbara Schmidt was one of the employees behind the desk; she recognized Connie and went to assist her. Connie placed the towel set on the counter and Barbara asked her for the red slip. Connie said the greeter was busy and she didn’t get one, but would be happy to go back and get one if necessary. Barbara didn’t believe the greeter was occupied and asked which door she had entered through. She then left the desk to verify Connie’s story.
Barbara was suspicious Connie had entered the store without any merchandise, walked to the bed and bath department, picked up the towel set, and was presenting unpaid items for a refund. She even told her supervisor she had seen Connie approach the service desk from the area of the store where the bed and bath department was located. According to her sworn testimony in deposition, she was convinced Connie was dishonest and didn’t think highly of her, mainly because Connie wore a small nose ring.
Connie sensed Barbara didn’t believe her and words were exchanged. Connie called for a supervisor to come assist. Barbara got on the phone and called for Pam Holdridge, an area supervisor, to come to the service desk. While waiting for Pam, Barbara knew the code to access the inventory site that reflects current levels of inventory by classification number, and that site also reflected recent sales of each item. When Pam arrived, Barbara told her of her suspicion, and confirmed it with the information from the inventory site that showed no sales within the last month of the items Connie was bringing back. Now Pam was convinced Connie stole the items, but she knew better than to call her a liar, so she instructed Connie to go the department and select the colors she wanted.
Connie, still carrying her baby, did just that, and Pam issued her a small credit for the difference in the price, which accomplished what Connie had come for and the matter was concluded. That is, concluded in Connie’s mind, but not Pam Holdridge’s, who immediately phoned the company’s regional loss prevention manager, Mary Hinkley, and informed her of what had transpired.
Mary, in turn, phoned the store’s loss prevention agent, Robert Greene, and gave him an overview of the event and the employees’ suspicions. She directed him to go to the camera room and review the videotapes of both doors that morning to verify the suspicion that she entered without the goods. She also instructed him to check all the cameras that would capture the image of the route from both doors to the bed and bath department in hopes of actually catching Connie in the theft on videotape.
Later, Robert admitted he was upset with this task because it takes a lot of time to patiently review all the footage. He didn’t mind the work so much as the time it took, because his performance evaluation was only on the number of shoplifters he caught each month, and any task that took him away from shoplifting detection invariably impacted his review. The review affected his salary increases and opportunities for promotion. So, he reluctantly rushed through the search for Connie entering the store, and, fortunately, he found her coming in at 10:10 a.m. He couldn’t find her walking to or from the bed and bath area, but the quality of videos on the old equipment was such that it could be missed easily. He reported his findings to Mary. Mary then asked him to check the work schedule and inform her as to when Connie was due to work again. He complied. It was in the next week.
Mary arrived at the store five days later, while Connie was on shift, and briefly met with Barbara who, again, stated she checked the inventory base and the goods hadn’t been sold; she talked with Pam who restated Barbara’s suspicions as to what Connie had done; and she met with Robert and viewed the spliced videotape. As Robert had reported, the computer-generated time-of-day reflected Connie entering the east door at 10:10 a.m. empty-handed and then a vague image of Connie with a baby in her arms at the service desk, but the time was difficult to read.
Convinced the entry image was the proof Connie was lying, Mary called Connie in from the floor and met with her at one of the store’s executive offices. A clerk sat behind Connie, taking notes on a notebook. Mary introduced herself, then broached the issue with the importance of always telling the truth, and stated she could be helpful to those employees who might have made a mistake. She then asked Connie to tell her about the towel set.
Connie said she had moved into a new apartment and her mom gave her the towels as a gift, but the colors clashed with the walls and she wanted to exchange them. She knew her mother purchased the towels in this store, so she brought them back to exchange for the right color and “everyone jumped my case, like I took ’em or something.”
“Well, that’s not the evidence that I have. I have it all on video,” said Mary.
“Let me see it, and I can explain it.”
“I’m not going to show you my evidence. You tell me what happened,” said Mary.
“I told you already. If you don’t believe me, call my mom. Please, call my mom and she’ll tell you.”
“I don’t have to call your mom. I have the tape. … Okay,” said Mary, “if you don’t want to tell me, I want you to sit in this office and write out for me what happened. Will you do that?”
While Connie sat in the office alone she wrote out a brief statement, reiterating what she had said earlier, signed it, and then, upset with the confrontation and accusation, left the store, essentially walking off the job.
While Connie was in the office writing her statement, Mary phoned the local police department and requested an officer come to the store and transport a prisoner.
By the time Officer Withers arrived, Connie had already left. Mary informed Withers of the offense committed by Connie and their investigative efforts, then provided a copy of the spliced videotape. Withers left after writing his report and took the videotape as evidence.
When the officer left, Mary wrote her concluding investigative employee report and, interestingly, included the total retail value of the original towel set as “full restitution.” The significance of this is it clearly indicates a recovery of the amount (e.g., $37.00), similar to a shoplifting case when the culprit is captured along with the merchandise, and the goods have been recovered and are back in inventory—another form of quantitative measurements justifying the security program.
The next day when Withers determined Connie was not in the store working, he went in the early evening hours to her apartment. He knocked, announcing his presence and his need to see Connie. Connie ran up the stairs and quickly phoned her mother. Her mother told her to let him in and cooperate; she had nothing to worry about.
Withers arrested her and informed her she was going to the station for booking. She asked about her baby, asleep upstairs. “Get someone here quick. I don’t have time to wait for babysitters.” Half panicking, Connie called her mother again, who dropped everything and came to the apartment.
At the station, Withers sat Connie down and asked her to tell him the truth. She said she had told everyone the truth. He gave up and placed her in a cell. As she cried, another officer came in and tried to calm her and, as they talked, she said they wouldn’t even let her see the video. He got the videotape and let her see it, and she saw immediately that the video reflected her second entry into the store that day. The officer didn’t understand that or its significance, but at least she knew that the store had provided bad evidence and she knew what direction to take when she could talk to an attorney.
Once released from jail, Connie sought out an attorney. She explained to her attorney, Sandy Sanborne, how she ran into her dad in the store after she exchanged the towels and they talked a few minutes. He told Connie that her sister was out in his truck, and she should go see her. She left the store with the new towels and the baby, found her sister, and they visited for a few minutes. Then she remembered she wanted to purchase a small item. She asked her sister to take the baby and said she’d be right back. She reentered the store at 10:10 a.m. and left five minutes later.
Armed with this information and after viewing the video evidence, Sandy made an appointment with the city attorney, Cindi Lang, and they both viewed the video. An enhancement of that spliced section following her entry into the store indicated the time was 9:32 a.m. It was evident she couldn’t enter at 10:10 a.m. and be at the service desk at 9:32 a.m.
Because of that error, the computerized inventory site was obtained and a careful inspection revealed that indeed the very towel set that Connie had brought into the store was sold some days earlier. Barbara, in her haste, missed that entry and misled her supervisor. Barbara’s results of the database search were never verified by Pam, Robert, or, more importantly, Mary.
In my evaluation I was provided with 46 different records, policies, transcripts, files, and videos. Among the materials, I could not find a company/corporate policy on how to handle investigations involving suspected employees. To this day I do not know if the defendant simply defied the court and hid that policy (in the language of the industry, “hiding the ball”) out of fear it would be catastrophic if I saw it and would show the jury how they failed to follow their own directives, or if indeed they were operating without one. Either way, it’s a classic case of unprofessionalism, negligence, and, no matter how you slice it, anti-employee.
Just one of five very simple actions could have derailed this tragic event:
1. Assuming the splicing of the wrong time was carelessness and not intentional, any careful inspection of the video given to the police could have noted the time differential, which would have sent everyone back to the drawing boards.
2. If Mary had but an iota of curiosity about how the baby could be in Connie’s arms after she entered empty-handed, the truth of the employee’s version would have surfaced.
3. If Mary had taken the time to check the inventory database for past sales, rather than relying on a service desk clerk (who apparently had an ax to grind), a more careful examination of the facts would have occurred; Barbara’s information would have been refuted, and the truth of an earlier sale would have given a different direction to the investigation.
4. If Mary allowed Connie to view the video in that executive office, it would have shed an entirely new light on their suspicions and beliefs.
5. If Mary called Connie’s mother it most likely would have thrown a new light on the question, worth exploring.
The trial
On the day of my appearance on the witness stand I was informed the thrust of the defense was going to be the whole matter was Connie’s fault for failing to follow the well-known company rule that merchandise being brought back into a store had to be checked by the door greeter.
In a civil trial the plaintiff goes first—that is, they are the first to present their case. Various witnesses were called, including Connie’s mother, Hildegarde McCall, who testified she purchased the towel set and produced the receipt. When I took the stand, on direct examination, I testified as to my opinions, which I had written out for counsel, and were essentially as follows:
• The organizational structure of Giant Store’s security program does not include or allow for trained and professional district-level investigators, who are common in large store chains. Instead, they required district loss prevention managers to assume that important responsibility, along with a myriad of other supervisorial and inspectional tasks related to all the stores in their district (five in this case).
• Investigations into alleged or suspected internal dishonesty are typically time consuming and require aptitude, in-depth experience, and investigative training. Mary did not have the time, aptitude, experience, or proper training.
• There is conflicting information about specific policies and procedures relative to internal investigations. Apparently there was no written policy and procedure in place to guide Mary. Failure to have a policy and procedure in accusing and referring employees to the police for criminal prosecution is unthinkable and falls below the industry’s custom and practice.
• The ineptitude of the investigation was staggering—from the hastily patched videotape scenes, to the inclusion of nonsecurity personnel to do the computer search for any record of the purchase, to the failure to grasp the enormity of the fact the employee appeared with the towels and a baby in her arms and no one asked how the child got there, coupled with the absolute refusal to investigate further when the employee refused to confess—and resulted in an egregious injustice to a fellow employee.
• Mary, without written guidelines, without approval, without guidance from her supervisor, and without human resources or store management oversight, acted unilaterally against Connie. Referring an employee of the company to the police without some objective management agreement or approval is contrary to and below the standard of care of most businesses and industry, let alone the retail industry.
• Once this wrongful accusation, arrest, and attempted prosecution of an employee became known to the company, no level of upper management felt the need to investigate what and how it happened nor correct or purge the records memorializing this alleged crime by an employee. In fact, Connie’s supervisor never even read the report of the incident until just prior to her disposition, almost a year later. And that supervisor defends Mary’s handling of the investigation suggesting it was Connie’s fault for not getting the red sticker when she entered the store. Any responsible employer would discipline Mary, counsel her supervisor, and expunge any records that reflect Connie’s guilt.
• The store’s CCTV system in place at the time was worn and outdated and the images, in some cases, were of such poor quality that it contributed to this mishandled investigation.
I don’t recall the exact question put to me by my client, Connie’s attorney, but I do recall my answer, telling the jury the following: “I couldn’t sleep last night thinking about the matter of no written policy for the handling of employee investigations, and it finally dawned on me: the company has very clear and detailed policies and procedures on how to handle shoplifting cases, but no clear and detailed policies or procedures for investigations involving suspected employees? Why? The answer is the company is afraid of customers if the store makes a mistake, but they’re not afraid of employees because if they make a mistake they can claim employee misconduct and get rid of the employee, so more latitude is available if not proscribed by strict guidelines.”
Cross-examination, which follows the direct examination, is usually aggressive, but the attorney representing the store, a gentleman and quality lawyer, apparently felt the weight of evidence against his client was such that it would bear little or no fruit to challenge me. He did ask the following: “Now Mr. Sennewald, you’d agree, would you not, that stores must have rules?”
“Yes, I agree.”
“Indeed, you’ve recommended the implementation of various rules for employees, haven’t you?”
“Yes sir,” I replied.
“And to operate an orderly store or business every employee must comply with the rules, you’d agree with that, would you not?”
“And you’ve testified you know Ms. McCall broke the store’s rules, did you not?”
My response, “I did. Yes, she broke the rules, and in my view the store has every right to enforce their rules and demand compliance. Ms. McCall should have been disciplined for breaking the rules. She should not have been put in jail for a crime she didn’t commit.”
That concluded my testimony. I was excused by the court, left the courtroom, and returned to my home in California. It was the last trial of my long career.
The store did not offer any witness or testimony in their defense. The matter, as I understand it, settled that very afternoon.