This post was contributed by Jennifer J. Walsh, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Scranton, Pennsylvania.
A federal district court recently sanctioned Walmart for "spoliation of evidence" in an employment litigation case. Although Walmart has asked the Court to reconsider its decision or allow it to appeal the decision to the appellate court, there's an important lesson to be learned regardless of the outcome: Mind Your Rs & Ds. In other words, pay attention to your company’s retention and destruction of, well, everything employment-related, particularly if there is reason to suspect that litigation is a possibility. When an employer knows or has reason to know that litigation is possible, it has a duty to preserve all relevant evidence. If the company doesn't do that, and relevant evidence is destroyed, the Court has the discretion to punish, or sanction, the employer.
In Abdulahi v. Wal-Mart Stores East, L.P., Ibrahim Abdulahi's termination for poor performance came on the heels of his filing two discrimination complaints with the Equal Employment Opportunity Commission ("EEOC"). Mr. Abdulahi, assistant manager of Store 1181, was of Ethiopian national origin. He had a storied 15 year work history with his employer, consisting of disciplinary-type "coachings" alongside consistent "solid performer" evaluation ratings.
In the EEOC complaints, Abdulahi claimed that two of his superiors at Store 1181 were "belittling" him and treating him "different than other assistant managers," which treatment allegedly included negative comments and jibes about his ethnicity and accent. Two months after Abdulahi filed the EEOC charges, he was terminated for allegedly failing to lock the Garden Center entrance overnight. Walmart claimed that video surveillance confirmed that the gates were not locked.
So, what's the problem, you ask? Well, that video footage – the only objective evidence in support of Walmart's claim that Abdulahi was terminated for legitimate reasons - was not preserved, and was written over as a matter of the company's routine video storage and re-use practices. From Abdulahi's perspective, that video footage was the only way to establish that the gates were locked, and that Walmart's stated reason for firing him was a pretext for retaliation.
The Court agreed with Abdulahi, and sanctioned Walmart for failing to preserve the video footage. Walmart was on notice that litigation was reasonably foreseeable, since Abdulahi had already filed two charges of discrimination with the EEOC. Walmart's punishment for failing to preserve the video recordings is a stringent one: when this case goes to trial, Abdulahi will be entitled to a potentially game-changing jury instruction. The Court will tell the jury that Walmart's destruction of the video footage creates a presumption that Walmart's stated reason for firing Abdulahi (the unlocked Garden Center gates) was essentially a smoke screen, and that the real reason Walmart fired him was to retaliate against him for filing EEOC charges and complaining of discriminatory treatment. Game-changer, indeed.
If your company has a policy or practice of automatically destroying documents, materials, or information within a certain time frame, remember to halt that process until you preserve all information relating to an issue or person if litigation is reasonably foreseeable. This "preservation" requirement applies to electronically stored information too, so be sure to check your email systems for auto-delete parameters. Promptly taking the necessary steps to preserve information when litigation is reasonably foreseeable is most certainly the recommended route to avoid game-changing sanctions for spoliation of evidence.