Despite a memorandum in which executives discussed ways to woo a "healthier" and younger workforce, a federal court in New York granted summary judgment to Wal-Mart and rejected a former employee's claims that the retail giant discriminated against her on the basis of age.*  

In the January 2012 edition of this newsletter, we reported that a federal district court in California, in a different case against Wal-Mart, ordered the Company to produce in discovery a confidential internal memorandum that discussed ways to reduce healthcare costs.  The recommendations included "limited-risk" initiatives such as higher premiums for spouses, care-management programs, and increased use of part-time employees.  The memo also discussed "bold step" initiatives, such as designing all jobs to include some physical activity and offering benefits that appealed to "healthy" employees.

In the most recent case, former Wal-Mart employee Elsie Crowell and eight other plaintiffs sued the Company for age discrimination under both disparate treatment and disparate impact theories.  Crowell took leaves of absence and finally left her employment, allegedly due to "work stress" from performance coachings she received.  In the lawsuit, she contended that Wal-Mart implemented the proposed policies outlined in the memorandum and the policies operated to dissuade older workers from working at Wal-Mart and resulted in other policies and procedures being more harshly enforced against older workers.  Crowell also alleged that she witnessed disparaging comments and selective terminations directed at older workers.  Finally, she claimed she was constructively discharged from her employment.

In granting summary judgment to Wal-Mart, the New York judge ruled that Crowell had failed to provide any reliable statistical evidence that would support a disparate impact claim.  The judge also noted that Crowell provided no evidence that the one "facially neutral" policy in the memorandum that would support a disparate impact claim - the suggestion that all jobs include some physical activity - was ever implemented.  With respect to the constructive discharge claim, the judge held that nothing in the record indicated that Crowell's working conditions were so intolerable that she would have felt compelled to resign.  Finally, the judge found that the plaintiff's allegations about the impact of the memorandum were unsupported by any evidence.

The facts and outcome of this specific case per se are relatively unremarkable.  What should be of concern to employers, however, is the impact and reach of the California court's discovery order requiring Wal-Mart to produce the memorandum, which became fodder for the New York employment discrimination plaintiffs.  As we noted in our article last January, internal discussions and documents, even those involving "brainstorming" and hypothetical scenarios, are not immune from discovery.  Evidence disclosed in one lawsuit can be put to use against an employer in other lawsuits and investigations.  It is prudent to consider in advance how notes, memoranda, and recordings of policy and procedure discussions might be perceived by potential plaintiffs, jurors, and the courts.

* Crowell v. Wal-Mart Stores Inc., No. 7:10-cv-01116 (S.D.N.Y. Mar. 22, 2012).