Wal-Mart Sanctioned for Failing to Preserve Evidence

Edgar M. Rivera, Esq.

Recently, a federal district court sanctioned Wal-Mart for spoliation of evidence in an employment litigation case.

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property when litigation is reasonably foreseeable. Once on notice of a potential legal claim, an employer must preserve all evidence relevant to a charge or action until its final disposition. The harmed party carries the burden to prove: (1) the evidence existed at one time; (2) the alleged offending party was under a duty to preserve the evidence; and (3) the evidence was crucial to the harmed party being able to prove its case or defense. Spoliation remedies include striking the offending parties pleading, instructing the jury that it may infer that the missing evidence, if available, would have inculpated the spoliator, or precluding testimony at trial. In crafting an appropriate sanction, courts consider whether the harmed party was prejudiced as a result of the destruction of evidence; whether the prejudice could be cured; the practical importance of the evidence; and whether the offending party acted in good faith.

In Abdulahi v. Wal-Mart Associates, Abdulahi, an American citizen of Ethiopian national origin, brought a claim against Wal-Mart alleging national origin and age discrimination. The Wal-Mart store’s co-manager, Stephen Ray, harassed Abdulahi, mocked his accent, pretended not to understand him, and reminded Abdulahi how lucky he was to work in America. The store manager, Sean Spratt, directed Ray to apologize to Abdulahi; however, rather than cease his harassment, Ray had another co-manager, Michael Schneider joined in. They made stereotypical comments about Abdulahi’s age, condescended to him, and falsely called him “forgetful.” Abdulahi again complained to Wal-mart’s store manager, now Demetrius Jackson, Spratt’s replacement. Jackson assured Abdulahi that the situation would be fixed; however, he told Abdulahi not to seek promotions or raises because he would not recommend him. Within a few days, Abdulahi received his first negative performance review in his fifteen years of employment with Wal-Mart. Abdulahi wrote a letter to Wal-Mart’s market human resource manager, Shawn Cohen, addressing his co-managers and manager’s conduct. Almost immediately after Abdulahi sent the letter, Jackson began to urge Abdulahi to resign. In response, Abdulahi filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Shortly thereafter, Ray terminated Abdulahi claiming that Abdulahi had left the gate to the “Garden Center” open during his shift. Abdulahi responded that this was false; the Garden Center doors had been locked.

Wal-Mart claimed to have had video footage supporting their defense that Abdulahi was terminated for leaving the gate open; however, the video was written over as a matter of the company’s routine video storage and re-use practices. The video footage was the only way to establish that the gates were locked and that Wal-Mart’s proffered reason for terminating Abdulahi was pretext.

The court agreed with Abdulahi, and sanctioned Wal-Mart for failing to preserve the video footage. Wal-Mart was on notice that litigation was reasonably foreseeable after Abdulahi had filed his discrimination charges with the EEOC. The court’s sanction was painful–a jury instruction stating that the destruction of the video footage created a presumption that Wal-Mart’s proffered reason for terminating Abudlahi was pretext, and the real reason for his termination was retaliation for his complaints of discrimination and his filing of EEOC charges.

Decisions like these show that employers cannot get away with destroying harmful evidence. If you believe your employer has discriminated against you, please contact The Harman Firm, LLP.