A May 10, 2018, article that appeared in the Fresno Bee reminded me of something that happens all too frequently. An employee gets “caught on tape” committing some fireable offense, but when the matter comes up for a hearing, the video is nowhere to be found. Either it was taped over, lost, or worse, deliberately deleted. In the Fresno case, the consequences to the employer were devastating, to put it mildly.
According to the story, Jeannette Ortiz was a hardworking, loyal and well-liked general manager of a Chipotle restaurant, located across the street from Fresno State University. She was making $70,000.00 a year and was being considered for a promotion that would have paid her at least $100,000.00 a year. That all changed in January 2015, when she was fired for supposedly stealing $626.00 from the restaurant’s safe. There was even a December 29, 2014, video showing her taking an envelope of cash out of the safe, fanning the bills and looking over her shoulder to make sure no one was watching. But when Ortiz denied stealing the money and asked to see the video, her bosses declined, citing policy of not showing video evidence to employees. Inevitably, the video was somehow lost.
The plot thickens. In December 2014, the same month in which she was supposedly caught on tape, Ortiz had filed a workers’ compensation claim for an injured wrist. She tried to work with her injury until January 18, 2015, when she went on medical leave. She was still on medical leave when she was fired, ostensibly as a result of the December 29, 2014, incident. Not surprisingly, Ms. Ortiz filed a wrongful discharge suit, claiming that she was fired for filing a workers’ compensation claim, and for refusing her boss’s request to falsely report her injuries so that she could return to work.
The case went to trial, and Chipotle’s managers tried their best to explain what they saw on the now-missing video. A key witness in the case turned out to be a former assistant manager who testified he saw the envelope of cash on December 30, 2014, the day after Ortiz supposedly stole it. Ortiz’s lawyers also told the jury that Chipotle’s managers had deleted text messages and lost notes about their reasons for firing Ortiz. In the end, the jury took less than four hours to award Ortiz nearly $8 Million in lost wages and compensatory damages. To make matters worse, the jury was instructed to return the following Monday to consider the issue of punitive damages. According to a May 14, 2018, follow-up article, Chipotle’s lawyers settled with Ortiz for an undisclosed sum, rather than let the jury decide punitive damages. Whatever the amount, we can safely guess it represented a lot of burritos!
We can only imagine how the case might have ended if Chipotle had not lost the key piece of evidence. If Chipotle had video clearly showing the plaintiff pocketing the money, would there have even been a lawsuit? Or would the plaintiff have been the one defending herself in court? And even if the video evidence was slightly ambiguous, Chipotle might have pointed to it as supporting a reasonable belief as to what occurred; enough perhaps to defeat the allegation that they fired Ortiz for filing a workers’ compensation claim. As it was, the failure to produce evidence that supposedly would have been favorable to Chipotle’s case gave the jury license to conclude that Chipotle had something pretty bad to hide.
THE BOTTOM LINE: If video evidence is important enough for you to fire an employee over it, it is important enough for you to do whatever it takes to preserve it.