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As a Pretext for Firing, This Bad Boss Picked a 68-Cent Pepper

Bobby Dean Nickel never dreamed that his career would end over a 68-cent bell pepper — but that’s exactly what his boss, Lionel Marrero, used as an excuse to dump him.

Mr. Nickel was working as a manager at an office-supplies warehouse in La Mirada, Calif., when Mr. Marrero started to push out older, higher-paid workers in favor of “young energetic people,” according to court testimony. Among other tactics, Mr. Marrero told his staff to walk around the warehouse with older workers and “if they cannot keep up then get rid of them.”

Mr. Nickel, then 64, had gotten mostly good reviews for a decade. Still, Mr. Marrero needled him about retiring from the Staples, Inc. subsidiary. He piled on extra work and called Mr. Nickel an old “goat” and “coot,” according to documents.

Finally, Mr. Marrero saw Mr. Nickel carrying a bell pepper from a salad he had discarded during an after-hours inspection of the warehouse cafeteria. That was it: Mr. Nickel was labeled a thief and fired — a result that Mr. Marrero later admitted in court was “almost … ridiculous.”

Lionel Marrero is our new Bad Boss of the Month.

Mr. Nickel’s life crumpled after the firing, and he sued Staples and its subsidiary. A California jury found the companies liable for age discrimination and awarded Mr. Nickel $26 million — a sum that included almost $23 million in punitive damages. The trial judge disallowed $10 million of that amount; Staples appealed the remainder. This May a state appeals court affirmed the revised verdict, saying it was supported by ample evidence that Staples’ behavior was “base, contemptible, and vile.”

At the time of his termination in 2011, Mr. Nickel had been making nearly $90,000 a year as facilities manager in La Mirada: The operation had a higher pay scale than other parts of Staples, inherited when the office-supplies giant acquired the business in 2008.

Then came Mr. Marrero’s cost-cutting campaign. In meetings attended by Mr. Nickel, according to testimony, Mr. Marrero told managers to take “a closer look at the older people. They are starting to drag and are slowing down.”

Any older person who was not a top performer should be written up and dismissed, said Mr. Marrero, because “we can get younger people to work cheaper.” Mr. Marrero even offered older workers paid leave so they could look for other jobs, according to Mr. Nickel.

Mr. Marrero repeatedly asked Mr. Nickel when he planned to stop working. Mr. Nickel replied that he didn’t plan to retire until the day he died — an answer that didn’t please Mr. Marrero.

Based on his manager’s hostility, Mr. Nickel became anxious about his future with Staples. His wife testified that he withdrew from his family and was “consumed with this fear of losing his job and not being able to provide for us.”

Things came to a head with “the bell pepper incident,” as the appeals court called it.

One day Mr. Marrero had bumped into Mr. Nickel, who was carrying a bell pepper he had rescued from a ruined cafeteria salad. When Mr. Marrero asked about the pepper, Mr. Nickel said he would pay for it the next day when the cafeteria reopened — an honor system that both men knew was common practice.

The next thing Mr. Nickel knew, however, the company’s security chief was accusing him of theft and yelling at him, “We got you. We got you. You did it.” Although he ultimately paid for the pepper, Mr. Nickel was suspended for three days. When he returned to work, he was fired for “conduct unbecoming a manager.”

Shortly afterward, Mr. Nickel says he met with another of his supervisors, who told him the real story: “They were trying to make you quit. You did not. So they found something else.”

Several older Staples workers testified that they also were pushed out of their jobs due to discrimination or retaliation. For instance, one former manager said that Mr. Marrero derided his request for medical accommodation after a stroke — and that he was fired shortly after complaining about this treatment, for what the appeals court called “an apparently trivial reason.”

A 24-year employee said he was terminated shortly after reporting a theft by Mr. Marrero. A 28-year employee said she felt compelled to take a buyout after Mr. Marrero and another manager told her she was getting older and moving too slowly — and then shifted her start time to 3 a.m.

And there were other examples, too, which the appeals court said could reasonably show malice “as Staples sought to reduce the cost of its operations by systematically removing older, higher-paid employees.”

Mr. Nickel, meanwhile, couldn’t find a new job in California and was forced to move his family to Idaho. He suffered depression, anxiety, and guilt over not being able to provide for his family — gaining weight and becoming a “broken spirit” and “just a shell of who he had been,” according to his wife.

In its appeal, Staples argued that $16 million in damages was excessive punishment for this outcome. The court disagreed, citing Staples’ “high degree of reprehensibility” and awarding Mr. Nickel his appeal costs besides — which likely makes the disputed bell pepper the most expensive cafeteria item ever.

» Read the opinion of California’s Court of Appeal
» Read Mr. Nickel’s complaint


The Employment Law Group® law firm was not involved in Nickel v. Staples Contract & Commercial, Inc. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.

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