How a nickname could cost Smith Food & Drug, Inc. $10 million

Beyond Sticks and Stones

by Carolyn Campbell

Carolyn Campbell is a freelance writer in Salt Lake City, Utah. Her work has appeared in numerous publications including Ladies Home Journal and Family Circle.

James Wells kept wanting to go to work. His mother, Sherrie Wells, says that even after his co-workers began a harassment campaign that demeaned him consistently (and may have threatened him physically), James still clung to the job he began in June, 1995.

He got up in time to shower, and for three years, regularly arrived fifteen minutes early at his 6. a.m. job as a bagger at Smith's Food and Drug in Salt Lake City, Utah. After work, he rode his bike home or his sister Danielle or his mother picked him up in the family car.

James spent much of his paycheck on Nintendo games or remote control cars that, at the age of 21, he raced on dirt hills near his home while other young men his age had real cars and girlfriends. He dreamed of driving.

Both he and his family say that his job was one aspect of his life that brought him close to the simple goal he'd always longed for‹to be like everyone else. The intellectually-delayed young man tolerated an emotionally abusive work environment that caused him to spend evenings brooding alone in his room, and to eventually say, "I don't want to go back to that place," before he finally resigned late last year under emotional­and possibly physical­duress. With a 64 I.Q, and a condition doctors diagnosed as "hypotonia" or poor muscle tone that, in his mother's words, "slowed his body down," James cannot drive or operate a cash register. He is soft-spoken and answers questions with an economy of expression. At 5 feet 10 inches tall, he weighs 115 pounds.

James' family says he continued to work even after a co-worker deflated his bicycle tires three times. "He would call home crying and his bike tires would be flattened," his sister Danielle remembers. Once, says Danielle, she "went in and yelled at the kid who did it. When it happened again, I sent my boyfriend in there and he confronted him. We asked why he kept doing it and he said 'because it was fun.'" Neither the stock boy who flattened the tires nor the manager ever apologized to James.

The sting of the absent apology struck Danielle like a sledgehammer another day when she picked up her brother at work. "When I walked in and asked for James a stocker started laughing. He said, 'I'll show you where he is.' " James was in the back, trapped inside the freezer. He was yelling and kicking the door."

Danielle says she let her brother out, then told a store manager. But, she says, the manager only turned to James and said, "You shouldn't be back there in the first place."

Danielle says she was present at Smith's the first time someone used the derogatory nickname "Monkey" which later evolved to "Monkey Boy." "A stocker thought of it. He said, 'Come over here, Monkey.' "

The Wells' say that James kept working even after several co-workers ‹ including at least three managers ‹ began to call him "Monkey Boy" regularly. James' family were also aware of one manager who would scratch himself with apelike gestures when James approached, echoing the insult of the nickname.

Danielle confronted this manager and told him to "grow up" and admits calling him an "asshole." But, she says, he never changed his behavior.

"During aisle spills, they paged 'Monkey Boy' over the loudspeaker," says Brad Parker, the attorney currently representing the Wells family in a $10 million lawsuit against Smith's Food and Drug, a grocery chain in the Western states and Texas. Filed last winter, the suit (filed not under the ADA but under "regular tort law," explained Parker) remains in court with claims for defamation, libel and slander and intentional infliction of emotional distress. The suit seeks five million dollars in actual damages and five million in punitive damages against Smith's Food and Drug, Inc., and names three store managers as co-defendants.

Parker has copies of work schedules that list "Wells, Monkey Boy" at the top of the form that was posted near the courtesy desk where other employees.‹and the public‹could see it. Danielle says she confronted a store manager more than once about the name "Monkey Boy" appearing on the printed schedule. "I said, 'I don't understand why you call him this, and we'd like it taken off.' They never took if off." She adds that she never saw another nickname on the list. "They all went by their regular names."

Though two years apart in age, James and Danielle "were about the same size growing up," says Sherrie Wells. Now that they are 19 and 21, the bond that the two began in their youth continues. "When she goes shopping or to a party, Danielle always makes sure that she includes James."

With the help of Danielle and his family, James shot down the doctor's predictions that he would never ride a bike or throw a ball. He rode a two-wheel bike at the age of 7 and now plays "great basketball," says Sherrie. And, like anyone else, he wanted to work at a job.

Through their attorney, Jan Smith, Smith's Food and Drug says their investigation shows James was a good employee. They maintain they have not contacted a single employee or manager to whom James ever expressed concern about his treatment. They say no employee ever heard any concerns expressed by his mother or sister and further state that James and a friend originated the name "Monkey Boy."

They say that Smith's refused to allow James to wear a name tag he made with the nickname on it, and that James insisted that his friend, who was responsible for developing the schedule, place it there. They say they are still investigating the freezer incident, and know of only one instance when his bicycle tires were flattened. They add that there is no proof that an employee deflated the tires.

Sherrie firmly states that the person who put the name "Monkey Boy" on the schedule was a "key carrier" or manager at Smith's. He has since moved to Boston. She asks, "What kind of a store would let a friend who was James' age ‹ a kid ‹ draw up the schedule and put a nickname on it ‹ especially a demeaning name like Monkey Boy? It seems they would be setting themselves up for a lawsuit. And why would they say they would not allow it on his badge, but would print the name on the schedule week after week?"

Sherrie adds, "For James to say, 'I would like to be called 'Monkey Boy' is like someone saying, 'I would like to be called Retarded Boy or Nigger Boy.' "

"Someone at Smith's is not telling the truth," says Parker. "They are just digging the hole deeper. Complaints were made directly to management. James was not responsible for the name 'Monkey Boy.' "

Parker points out that, due to the nature of his disability, James was incapable of knowingly initiating or consenting to such treatment. "The use of the name 'Monkey Boy' hurt his feelings deeply. No reasonable or caring adult" he says, would call a disabled person "Monkey Boy."

"It is offensive, wrong and hurtful. It was done repeatedly to a hard-working but vulnerable individual who couldn't defend himself," adds Parker. He finds it "inconceivable" that Smith's is attempting to "blame James Wells for his own humiliation and ridicule."

A statement from James' doctor echoes Parker's sentiments. Dr. Sam Goldstein, a neurologist, emphasizes that James is someone "who cannot be held to the same standards or expectations of others his age." He adds, "The nature of James' handicap is pervasive. It makes him vulnerable and places him at significant risk to be picked on, ridiculed, and taken advantage of by others. James lacks the capacity to initiate, consent to or promote the types of behaviors being described. To suggest that he would initiate a derogatory nickname and allow people to ridicule and make fun of him such that he can look better is not only beyond his intellectual capabilities, but doesn't fit his personality, which reflects his very strong need to be seen by others in a positive rather than negative light.

"This is not to suggest that James' disability prevents him from being offended and hurt by such treatment," Goldstein adds.

Sherrie thinks the name "Monkey Boy" might have been intended to poke fun at her son's physical appearance as well. "He has little teeth, and his ears poke out a little bit." Sherrie says James once told her that his co-workers "thought he looked like a monkey."

How could incidents that the Wells' describe take place in the equal-opportunity, anti-discrimination, valued-diversity 90's workplace?

Parker stressed that the alleged defamation moved far beyond an isolated incident and became a pattern. The Wells' estimate the name-calling lasted at least a year ‹ probably begun, Danielle says, at the hands of stockers before escalating to participation by the store management. "They called him the name at the beginning, and eventually they developed an attitude that it's all right to kick the dog, and who cares, it's just the dog, and James was the dog. He is the sort of person, like a dog, that you can kick and he'll still wag his tail and still be your best friend and try all the harder to fit in."

While his co-workers may have not shown the highest degree of empathy toward him, James Wells' lawsuit has generated a broad range of support. His mother, Parker and Smith's say they've received letters from interested citizens; the story has been featured nationally on radio shows and in newspapers. His mother and attorney find it ironic that while James himself isn't able to drive, his story has reached across the country.

James himself has stayed closer to home since leaving work at Smith's. Unemployed, he looks forward to starting a new job soon. "James isn't trained like a plumber or teacher is; he can't go out and just qualify for any job and receive placement," his mother says.

James himself, though, is optimistic about his future. "I'd like to go to the police academy," he says hopefully. "Or I'd like to work in a hobby store." He says he visualizes his ideal job as working in a store where the remote control cars he loves are sold.

Meanwhile, he lives with his parents and sister, responsible for vacuuming and taking out the garbage. He plays with his cars and Nintendo. While he visualizes working in a store, his mother says he is leery of working in another grocery store for fear that he might experience discrimination again.

Sherrie says of people like James, "there really is not a lot involved in their lives other than their jobs. If they are happy for a while, and then start acting out, it could be that someone has been mean to them and would be worth investigating." She hopes the current lawsuit will improve not only James' life, but the lives of other disabled people.

If the conflict had involved racial or sexual discrimination, Sherrie thinks, the lines might be more clearly drawn. "Through all of this, I've thought that if a black child moved into our neighborhood, we would all teach our children that you don't make fun of that child or say slanderous things. Yet every day of their lives, kids like James are called 'retarded.' When are we going to move past that point?"

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