Nevettie v. Wal-Mart

In this case, the Missouri Court of Appeals found that a Wal-Mart employee who told a manager that she disgusted him and made a "very rude gesture" towards her was entitled to unemployment benefits.

According to the Missouri Court of Appeals Eastern District, (see Riverfront Times coverage here), Nevettie, a Wal-Mart employee, had allegedly already received a couple of "coachings" -one for attendance and one for performance- and so he may have been on his last leg when the events transpired. According to the Court:

"Ms. Horn [a manager] testified that on September 4, 2009, she saw claimant in the maintenance department supply room when she was going to the nearby shoe department stock area. She asked claimant how his day was going, and he "just kind of real off the wall he said just you disgust me." A few minutes later, she saw him putting away cases of toilet paper and paper towels, and she commented that the store had finally received paper towels. Claimant replied, "yeah, yeah, yeah, we did and that it's a good thing because so now we--now the people don't have to do this," and he then made a demonstration with his hand, which Ms. Horn characterized as a "very rude gesture."" (Emphasis supplied).

Ms. Horn reported the incident to Nevettie's manager and Nevettie was (allegedly) terminated for the comment and making the "very rude gesture."  Nevettie applied for unemployment.  The initial ruling by a Division of Employment Security deputy was that Nevettie was entitled to benefits because he had not been discharged for a matter related to work.  The deputy was reversed by the Division's Appeals Tribunal, who found that the discharge was related to work and that Nevettie's conduct had shown "a disregard of the standards of behavior the employer had a right to expect of the claimant."  The decision was affirmed by the Labor and Industrial Relations Commission.  However, the Missouri Court of Appeals reversed and remanded the Commission's decision.

In pertinent part, the Court writes, "in this case employer did not produce evidence that it had a policy on offensive language or conduct. The first comment was rude and disrespectful, but it was not vulgar or obscene. Neither the comment nor the subsequent gesture, was accompanied by aggressive or angry behavior. Although the gesture was disgusting, it was not confrontational...
...the evidence does not support a determination that claimant's comment and gesture were the result of anything more than simple lack of judgment. It does not establish that claimant intentionally disregarded the standards of behavior that employer had the right to expect."

The animation roughly depicts the facts as presented by the Court, although, as always, certain changes needed to be made due to technical limitations and artistic considerations.