Wal-Mart age discrimination lawsuit dismissed

WHITE PLAINS, N.Y.—A federal district court magistrate has dismissed an age discrimination lawsuit filed against Wal-Mart Stores Inc., stating the plaintiff did not provide sufficient evidence.

According to the March 22 decision in Elsie Crowell vs. Wal-Mart Stores Inc. by the U.S. District Court for the Southern District of New York in White Plains, Ms. Crowell, who is now 73, had been employed by Wal-Mart stores in Fishkill, N.Y., and Monticello, N.Y., from 1996 through April 2009. She was transferred to the Monticello store from the Fishkill store in 1998, when she was 58.

Ms. Crowell filed suit, charging violation of the Age Discrimination in Employment Act and New York State human rights law.

On Jan. 22, 2009, after being transferred to a personnel manager position, she received a “verbal coaching for improvement” citation for not keying in an employee in a timely manner, which resulted in the worker not receiving her pay raise, according to the ruling by Magistrate George A. Yanthis.

Two weeks later, on Feb. 5, she received a “written coaching for improvement” citation because she failed to key in an associate's hours and the associate was therefore not paid, according to the ruling.

On Feb. 10, 2009, she requested and was granted a leave of absence, which was to last until March 10, 2009. She returned instead in April 2009 and a few days later asked for another leave. She said she requested the leave because of work stress caused by the coachings and because the store manager did not speak to her for three months. But instead of taking the second leave, she left her job on April 11, 2009.

Ms. Crowell charged in her complaint that there was no open-door policy to bring problems to supervisors' attention for workers over 40, the dress code requiring associates to wear tan pants and blue shirts was strictly enforced against older workers, but not against younger workers; and older workers' conduct “was routinely deemed ‘serious' when similar conduct by younger workers was not.”

Among other charges, she alleged Bentonville, Ark.-based Wal-Mart repeatedly asked older workers to perform physical maintenance outside of their job duties while assigning “less demeaning” tasks to younger workers, and fired the older workers who refused to perform these tasks.

In addition, she said, disparaging comments, including “Why doesn't she retire?” were allegedly directed at older workers.

In dismissing Ms. Crowell's disparate impact claim, Magistrate Yanthis said, “Even if plaintiff's claims did support a disparate impact claim, she has not offered any reliable statistical evidence that would raise an inference that Wal-Mart's practices significantly or disproportionately impacted employees of age 40 or above. Instead, she baldly asserts that the older workers at the Monticello store compared to 10% of the workforce, but 40% of the terminations.

“But this contention is substantiated only by her own ‘beliefs' and not on records obtained from Wal-Mart's personnel department or other such keeper of employer statistics,” said the magistrate in granting Wal-Mart's motion for summary judgment dismissing the case.

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The magistrate also dismissed Ms. Crowell's disparate treatment and hostile work environment claims. In dismissing the latter, the magistrate said, “Crowell offers no support form her generalized statements, except to say that she witnessed several specific discriminatory acts.”

Ms. Crowell's attorney, Corey Rosenbaum, of Rosenbaum & Sanders L.L.P. in New York, said there are eight other plaintiffs in the case, although the decision focused solely on Ms. Crowell. He said he could not provide any other information on the other plaintiffs.

Mr. Rosenbam did say he was puzzled as to why the magistrate did not cite affidavits in his ruling on the work environment issue that were submitted by six of the other plaintiffs in the case. Mr. Rosenbam said he could not comment on the other eight plaintiffs.

"We’re pleased with the judge’s decision to dismiss this case," a Wal-Mart spokesman said in a statement. "We value all our associates, and it’s our policy to treat them with dignity and respect."

In the latest development in a national case originally filed in 2001, Wal-Mart has asked a federal judge to dismiss a gender discrimination case filed against it last year in Texas.