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Watkins v. Rolling Frito-Lay Sales, LP

Court of Appeals of Texas, Fifth District, Dallas

June 21, 2017


          On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-03859-2014

          Before Justices Evans, Stoddart, and Boatright



         Melvin Watkins appeals from a take-nothing judgment following a directed verdict on his wrongful termination claim against Rolling Frito-Lay Sales, LP, Frito Lay, Inc., (collectively Frito-Lay) and PepsiCo, Inc. Watkins sued appellees under the narrow exception to the employment-at-will doctrine recognized in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). In three issues, Watkins argues the trial court erred by granting directed verdicts on his Sabine Pilot claim, his request for punitive damages, and his "joint enterprise" claim against PepsiCo. We affirm.


         Watkins was employed by Frito-Lay in July of 2012. He was terminated on July 30, 2014 for failing to report to work for three consecutive days without authority or proper notification.

         Watkins was a route sales representative (RSR). RSRs work out of secured storage facilities or "bins, " where products assigned to each RSR are delivered and stored until the RSR delivers the products to the stores they service. RSRs are responsible for maintaining a physical inventory of the products in their bin. The physical inventory is compared with the electronic or book inventory and any variance must be accounted for. Watkins worked at the storage facility in Rice, Texas.

         Watkins testified that in November of 2012, his direct supervisor, Brad Greene, asked Watkins and another RSR, Aaron Bennett, to "short" the delivery manifest by indicating fewer cases of products were delivered than were actually received. Watkins refused. In January of 2014, according to Watkins, Greene directed Bennett to short deliveries of crackers in order to cover stale products in his inventory and to instruct Watkins to do so as well. As directed, Bennett told Watkins to short the delivery, but by that time, Watkins had already acknowledged the full delivery of crackers. Watkins alleged in his live pleading these two requests to short the deliveries were requests to commit theft under section 31.03(a) of the penal code. Tex. Penal Code Ann. § 31.03(a).

         Watkins contends that after he refused to short his deliveries, Greene began harassing him. Watkins testified there were several burglaries at the Rice facility between July of 2013 and February of 2014. Over $1, 100 of Watkin's inventory was stolen in one burglary. Fingerprints found in Watkin's bin after this burglary were later identified as Bennett's.

         The events leading to Watkins's ultimate discharge began in June of 2014. Watkins was scheduled to work on June 7 and 8, 2014. On Sunday morning, June 8, 2014, the manager of a Walmart serviced by Watkins contacted Greene to complain that shelves were not properly stocked and organized. Greene was on his way to the Walmart when Watkins responded to his texts about the complaint. Unknown to Greene, Watkins had not serviced the store as he was scheduled to do that morning. Instead, Watkins went to his son's baseball tournament in Round Rock and, contrary to Greene's instruction a week earlier, sent a part-time worker to service the store. On his way back from the baseball tournament, Watkins called the confidential employee hotline to complain that Greene had been harassing him since 2013. Watkins drove his Frito-Lay truck to the store on Sunday evening and restocked the shelves.

         After the June 8 incident, Greene pulled time and GPS records for Watkins and his truck and determined that Watkins used the truck at Walmart for over four hours the evening of June 8, 2014. Watkins did not report the time on his timecard for June 8, 2014. Rather, he reported the time as time worked on Monday, June 9, 2014. Greene also reviewed surveillance video at Walmart and found that on May 25, 2014, Watkins had his minor children helping him service the store. The RSR handbook states that work outside the normal workday requires management approval, but whether or not approved, employees must report the time worked. The handbook also provides that failure to accurately record work time and allowing non-employees to work in stores are violations of company policy. Greene attempted to contact Watkins, but Watkins was not scheduled to work until June 13, 2014.

         Watkins called the hotline again on June 11, 2014 to report that in April, Greene instructed Watkins and Bennett to short deliveries from Irving Bakery. Watkins believed this would have been a theft.

         John McLaughlin, the zone sales leader, contacted Watkins about his calls to the hotline. Watkins wrote to McLaughlin on June 12, 2014 detailing his complaints about Greene, including the request to short the delivery of crackers in January. After giving more background on his complaints about Greene, Watkins stated he was being suspended tomorrow for not working Sunday morning, June 8, his assigned work day. He explained that in practice, RSRs could work the stores on Saturday nights for Sunday morning. Then they would put the time worked on Saturday down as their time entry for Sunday morning. Greene always allowed this practice, but told Watkins two weeks earlier that Watkins had to ask for permission before doing so. Watkins said other RSRs were not required to ask for permission. Watkins stated he did not ask Greene for permission to go to his son's baseball tournament. Instead, Watkins stocked the store Saturday night as was his practice and asked a part-time employee to stock the store on Sunday morning while Watkins traveled to the tournament.

         Watkins was suspended with pay on June 13, 2014 pending an investigation into ...

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