Former employee sues Walmart for $2 million

Kevin Hayes worked at the?Walmart Distribution Center near Hermiston where he said he was harassed for both his weight and religion.

A Umatilla man is suing Walmart, seeking $2 million in damages for what he claims were repeated instances of discrimination.

Kevin Hayes worked at the Walmart distribution center in Hermiston between August 2004 and December 2007. He unloaded trucks at the massive center, which distributes goods to several western states.

According to his complaint, Hayes experienced a pattern of discrimination and harassment because of his morbid obesity — he weighed about 350 pounds — his obsessive-compulsive disorder and his faith. He is Jewish.

Hayes claims Walmart retaliated against, and ultimately terminated him when he complained of the problems. Hayes first filed his case in January of 2009.

According to case documents, the first instance of discrimination, as Hayes saw it, was his superiors’ failure to train him in the use of power equipment. Hayes was eager to get such training because he believed it would boost his productivity.

Productivity is of supreme importance at the Walmart Distribution Center, case documents show. Associates who fall below productivity goals are penalized or “receive an occurrence.” Occurrences lead to steps — step three is a paid one-day suspension, a “decision day” during which the employee considers whether he or she wants the job and submits a written corrective action plan.

Hayes did not often meet the productivity goal of 95 percent. He claims his superiors assigned him the most difficult semi trailers to unload and made demeaning comments, such as “lose weight and get in shape.” He also claims that his superiors, and fellow workers, went out of their way to make his life miserable.

One of Hayes’ disciplinary forms, dated Aug. 31, 2004, listed his productivity at 73.5 percent and placed him at “step two.” In his defense, Hayes wrote, “I am the safest worker with the most integrity on my dock. I plan on continuing to do my very best under the discriminating and biased work environment that I am subjected to.”

He added that he hoped to complete training in certain power tools so that he could improve his productivity.

Hayes began to complain of a hostile work environment and discrimination in July 2006.

His superiors asked for medical documentation to support his disabilities. Hayes resisted for several months; he said he felt his medical history was confidential and unnecessary for a reasonable accommodation of his disabilities.

Walmart conducted its own “Red Book” investigation into Hayes’ claims and concluded they were mostly baseless. When Walmart found credence to one of them, the investigator noted, it promptly fired the offending employee.

According to Walmart, most of the employees the investigator interviewed didn’t even know Hayes was Jewish.

Accounts of Hayes’ termination differ widely. Hayes says he did not know he was fired — he had been on administrative leave pending the outcome of the investigation — until his mother went to the distribution center to pick up his check. Walmart claims Hayes wrote a letter refusing all offers of work, saying he didn’t want to return to an anti-Semitic environment.

Neither Hayes or Walmart responded to the East Oregonian’s request for an interview. Hayes is asking for lost pay and benefits, $750,000 in non-economic damages, and $1,250,000 in punitive damages.

Both parties will meet Dec. 13 in a Portland courtroom to argue over Walmart’s request that a judge dismiss the case.

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