Case Lesson: Not a ‘Mere Sham’ — Mississippi Job Searches

22 Jun, 2021 Frank Ferreri


Jackson, MS ( – Readers of Monday’s What Do You Think feature encountered the case of an assistant manager at Walmart who experienced years of pain after an end cap fell on her, knocked her into objects, and sent her to the floor.

The court in Walmart Associates Inc. v. Cauley, No. 2020-WC-00929-COA (Miss. Ct. App. 06/15/21) upheld an administrative law judge’s ruling that awarded the manager a 25 percent loss of earning capacity. After Walmart placed the manager on inactive status and she applied for “numerous” positions with the retail giant and more than a dozen at other employers, she landed a cashier job at Lowe’s making a little more than 13 bucks an hour.

In its defense, Walmart argued that the manager’s job search wasn’t adequate. Under Mississippi law, when an injured worker makes a case of permanent disability, she must make reasonable efforts to obtain the same or similar employment.

In finding in the manager’s favor on the issue, the court first looked at precedential cases establishing what “reasonable” meant, highlighting the following principles.



Thompson v. Wells-Lamont Corp., 362 So. 2d 638 (Miss. 1978)

What constitutes “reasonable” varies by situation and depends on a number of factors.

An employer may refute an employee’s case by showing that suitable employment was available and that the employee’s efforts to obtain other employment were “a mere sham, or less than reasonable, or without proper diligence.”

Lifestyle Furnishings v. Tollison, 985 So. 2d 252 (Miss. Ct. App. 2008)

The determination of reasonableness of an employee’s job search is a fact-finding process.

Lott v. Hudspeth Center, 26 So. 3d 1044 (Miss. 2010)

Relevant factors to consider are:

  • Job availability.
  • The employee’s skills.
  • The nature of the disability.

In the manager’s case, the court explained that these considerations pointed in her favor. Specifically, the court highlighted that the manager:

  • Requested to be reinstated to her position when Walmart placed her on inactive status.
  • Searched Walmart’s online portal “numerous times” to find either a lower-level position at her location or any position at another location.
  • Reached out to colleagues at other Walmart stores to inquire about openings.
  • Expanded her search and applied for “at least 14 various positions in a relatively wide geographic area.”
  • Posted her resume online and personally reached out to businesses in the area to ask if they were hiring.

In the court’s view, these efforts were enough to conclude that the manager made reasonable efforts to find “the same or other employment” under state law.

“She asked to be reinstated in her assistant manager position and tried multiple ways to find any available jobs at other Walmart locations,” the court wrote. “When that effort proved unsuccessful, she expanded her search to a range of jobs in her community and surrounding areas.”

This led the court to conclude that the manager’s job search was adequate and not a “mere sham.”


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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law.

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