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Wal-Mart dodges retaliation claim

Where a former Wal-Mart employee alleged she was fired in retaliation for her alleged whistleblowing activity, but she failed to provide details showing she engaged in activity protected by Title VII, her Title VII retaliation claim was dismissed.


Catherine S. Morrison claims that she was fired from her position at Wal-Mart’s Danville location “because [she] was considered a whistleblower.” She alleges that she complained about her harassment at the hands of a fellow employee but, because “H.R.” was friends with her alleged harasser and had to fire her, he fired plaintiff as well. Wal-Mart has filed a motion to dismiss.


To establish a prima facie case of retaliation under Title VII, a plaintiff must establish “that [s]he engaged in a protected activity, that the employer took an adverse action against [her], and that a causal relationship existed between [her] protected activity and the employer’s adverse action.”

Here, plaintiff’s allegations fall short of establishing a violation of Title VII. Importantly, she does not offer any details about the alleged “harassment” she endured by her co-worker, and thus the court has no way of ascertaining whether her subsequent complaints — the alleged basis of her termination — were in opposition to a practice “made … unlawful” by Title VII, including, among other things, discrimination on the basis of race or sex.

Moreover, it is possible that everything plaintiff alleges is true, but that there is no relief available to her under Title VII. A claim for retaliation will only lie under Title VII if plaintiff complains of conduct that is unlawful under that statute. She may very well have been “harassed,” she may very well have been a “whistleblower” and she may very well have been fired because of it, but unless she was blowing the whistle about discrimination “with respect to … terms, conditions, or privileges of employment, because of … race, color, religion, sex, or national origin,” Title VII is the wrong statute under which to bring her claim. Without more factual allegations, the court cannot say that plaintiff has stated a claim for retaliation under Title VII and will therefore dismiss her claim.

Defendant’s motion to dismiss granted.

Morrison v. Wal-Mart, Case No. 4:23-cv-00002, May 1, 2023. WDVA at Danville (Cullen). VLW 023-3-234. 7 pp.

VLW 023-3-234

Virginia Lawyers Weekly