Store Manager Asking Police to Cite Employee for Theft Not Malicious Prosecution
Description Trial court dismissed a suit brought by an employee who was fired for giving away merchandise in violation of store policy. She admitted to doing so and was issued a citation for theft by a police officer at the request of the store manager. Simply because the citation was not prosecuted does not provide grounds for malicious prosecution suit against store.
Topic Torts
Key Words Malicious Prosecution
C A S E   S U M M A R Y
Facts Shaw worked at a Dillard's store in cosmetics. She was seen giving a "gift-with-purchase" item to a customer in violation of store policy. She was sent to the manager's office. She admitted to giving away products and implicated other sales associates for similar practices. An off-duty police officer, working security for the store, read Shaw her rights and gave her a citation for theft. She was fired. The day of court proceedings, the city attorney decided not to prosecute the ticket. Shaw sued Dillard's for malicious prosecution. Dillard's moved for dismissal.
Decision Suit dismissed with prejudice. In Texas, "To succeed in a malicious prosecution claim, a plaintiff must establish: (1) the commencement of a criminal prosecution against plaintiff; (2) causation (initiation or procurement) of the action by the defendant; (3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's innocence; (5) the absence of probable cause for the proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff." Shaw has failed to meet this test. She admitted to giving away store merchandise against store policy. The store manager gave this information to the police, who used it as the basis for issuing the citation. The officer had good reason to issue the citation and no malice was shown on the part of Dillard's manager.
Citation Shaw v. Dillard Department Stores, Inc., 2000 WL 1577088 (N.D. Tex., 2000)

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