Turns Out Your Employees Can Have Their Cake and Eat It Too

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Turns Out Your Employees Can Have Their Cake and Eat It Too

 By: Riha Pathak

Based upon a recent Ninth Circuit Court of Appeals decision, Mayes v. WincoHoldings, Inc., an employer who fires an employee for “theft and dishonesty” may still find themselves embroiled in a lengthy lawsuit.

In this case, the plaintiff supervised employees responsible for shelving thousands of items each night. The plaintiff claimed that she received permission from the general manager to give out cake from the bakery to her crew in order to motivate them and boost morale.  The plaintiff claimed that other members of management, including assistant managers, would often join in on the cake-eating. According to the plaintiff, the bakery department eventually told plaintiff to take the “stale” cake and leave the product sticker on the cart. It became a common, accepted practice to take the stale cakes from the store to the breakroom during the night shift.

Years later, a new general manger was hired and took issue with cake-taking practice. Things came to head when the bakery management notified the general manager that a “fresh” cake was taken. Upon investigating, video footage showed another freight crew employee taking the “fresh” cake and revealed plaintiff’s history of taking “stale” cake.  Plaintiff and the other freight crew employee were fired for theft and dishonesty.

Plaintiff claimed that she was terminated because of her gender. She alleged that, based on her own comments, the general manger, who was female, was opposed to a “girl” running the freight crew and believed a “male would be better” for plaintiff’s position on the store’s safety committee. Plaintiff also alleged that the general manager criticized her for leaving work early to take care of her children, while male employees never received such criticism. The trial court dismissed the case on summary judgment, finding that there was a nondiscriminatory reason for her termination.  The Ninth Circuit overturned the dismissal, holding that there was a triable issue of fact and that a jury should get to decide.  Key to its holding that there was sufficient evidence to suggest possible gender discrimination was the fact that plaintiff could not have stolen a cake that she allegedly had permission to take, thereby making the reason look like a cover for discriminatory firing.


This case is an extreme example of the difficulties faced by employers who find themselves involved in litigation in California.  Even a seemingly straightforward case of termination based upon theft can result in a lengthy and expensive trial for employers.  Employers are cautioned to conduct thorough investigations whenever misconduct occurs, and to avoid hasty personnel decisions.  If you have questions relating to your policies and practices relating to investigations and discipline, contact the experts at the Saqui Law Group.


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