Estate of ex-Walmart worker gets $40,000 in suit settlement

Published: Tuesday, Jul. 30, 2013 - 12:00 am | Page 1B
Last Modified: Tuesday, Jul. 30, 2013 - 6:37 am

The estate of a former employee at a Placerville Walmart store has received $40,000 to settle a lawsuit alleging that the store manager refused to accommodate the employee's weak heart.

David Gallo died from a heart attack last year, after the suit was filed in 2011 on his behalf by the U.S. Equal Employment Opportunity Commission in Sacramento federal court. He was 56.

Gallo suffered from atrial fibrillation, an ailment that causes an irregular heartbeat, shortness of breath and loss of leg strength, according to the suit. He worked as a bay manager in the Placerville Walmart's tire and lube shop.

A new store manager, George Allen, told Gallo in 2008 he would not be allowed to park his motorcycle in spaces nearest to the store, according to the suit.

When Gallo complained that his heart condition necessitated his parking close to the store, Allen fired him, the suit alleged. The manager's actions violated Gallo's rights under the Americans with Disabilities Act, the suit stated.

EEOC San Francisco District Director Michael Baldonado said Monday that retaliation cases "represent the largest category of charge filings" with the agency.

"This shows that too many employers are still making the serious mistake of punishing their workers for complaining about unfair treatment," Baldonado said.

Wal-Mart, on the other hand, said that when Allen learned why Gallo had always parked at the front of the lot, he agreed to let him continue the practice even though employees are required to park at the back of the lot so customers can park closer to the store.

A consent decree entered into by the parties and filed Monday in federal court said, "This resolution is not an admission of liability by Wal-Mart, nor is it a finding on the allegations made in the EEOC's complaint."

The decree says the pact ending the suit was struck in the "interest of resolving this matter without further litigation," and as a result of "comprehensive settlement negotiations."

In a telephone interview Monday, Wal-Mart spokesman Dan Fogleman said, "We accommodated Mr. Gallo's condition for several years. Wal-Mart doesn't condone or tolerate discrimination of any type. We ended Mr. Gallo's employment for legitimate business reasons."

Fogleman pointed out that U. S. District Judge John A. Mendez disallowed Gallo's claim that Wal-Mart violated the ADA.

In an order last month on Wal-Mart's motion for summary judgment, Mendez wrote that EEOC attorneys "had not presented specific and sufficient evidence … that Mr. Gallo's request for parking was reasonable and effective to establish a violation of the (ADA)."

Consequently, the judge found, there was insufficient evidence of a link between the parking dispute and Gallo's 2009 termination.

Mendez, however, ruled that enough evidence was presented by EEOC attorneys to raise a legitimate question whether Wal-Mart's stated reason for firing Gallo was a pretext.

Mendez also found enough evidence to create a legitimate question whether the termination was the result of Gallo filing a discrimination complaint with the EEOC.

Had the suit continued, the two remaining issues would have gone to a jury.

Call The Bee's Denny Walsh, (916) 321-1189.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Denny Walsh



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