Employment Law Daily Former Dukes class member survives Walmart’s attempt to dismiss her gender bias claims
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Monday, May 2, 2016

Former Dukes class member survives Walmart’s attempt to dismiss her gender bias claims

By Kathleen Kapusta, J.D. Denying Walmart’s motion to dismiss the gender discrimination claim of a former Dukes class member, a federal district court in Louisiana found she pleaded facts sufficient to inform the retail giant of the claims she intends to pursue; additional facts provided in her complaint directly related to her EEOC charge; her claim did not fall within the universe of claims the Dukes district court limited; and while her charge referred to “female employees who were similarly situated,” she filed her complaint as an individual (Isaac v. Wal-Mart Stores, Inc., April 26, 2016, Roby, K.). In her complaint, the employee alleged she repeatedly expressed interest in pursuing a manager position but was not promoted; during this period of time, when there was no assigned manager, she ran the department; and she trained men who were promoted to the positions she sought. She further claimed that men who worked in the department were paid more than she was. Not procedurally barred. Moving to dismiss, Walmart first argued that her claims were procedurally barred because she did not exhaust her administrative remedies and she failed to specifically plead acts of discrimination in her EEOC charge. Disagreeing, the court observed that her charge stated that she was a former member of the Dukes class and that it was timely filed pursuant to deadlines set by the district court after the Supreme Court decertified the class. It also listed the stores where she worked and provided her start and end dates. Further, she checked the boxes for “wages,” “promotion,” and “training” in response to “State which discriminatory practices you were subject to,” and it included a description of her claims. For her wage claim, the employee stated that she was paid less than her male counterparts with equal or lesser experience and provided three examples. She also stated that Walmart engaged in discriminatory practices regarding promotions; that she began trying for a promotion in 2006 but was not allowed to apply for one, and she was only promoted to assistant manager after her district manager told her that because of the Dukes lawsuit Walmart needed more women and minorities in management. Because she sufficiently pleaded facts to inform Walmart of her claims, the court found they were not procedurally barred. Not outside scope of charge. Also rejected was Walmart’s contention that her complaint identified male employees who were not previously mentioned in her EEOC charge. The employee merely provided additional facts that were not in her charge, said the court, observing that she identified the individuals mentioned in her charge who were allegedly promoted over her and who received higher wages for the same work. Thus, this information directly related to her EEOC charge. Not untimely. Walmart next argued that her failure-to-promote claim was time-barred because failure-to-promote claims for which “objective application data” does not exist were not previously certified as a part of the class action. Thus, Walmart asserted, since the Dukes district court issued its order on June 21, 2004, any uncertified claims would have prescribed, at the latest, 300 days later on April 18, 2005. Here, the court pointed out that in the underlying Dukes litigation, the court allowed the failure-to-promote claims where there was no data to support them but limited the recovery. As to the employee’s available remedies, the court noted she alleged she expressed interest in becoming a manager and entering into the manager-in-training program to the district manager and an HR employee, she followed their instructions for seeking a promotion, and despite her interest and qualifications, she was passed over for lesser qualified males. This, said the court, sufficiently supported the inference that promotion opportunities were posted and that her interest may have been tracked in Walmart’s system for which objective data would exist. Therefore, her allegations were not precluded by the Dukes district court’s analysis. Similarly situated. Finally, Walmart argued that to the extent her EEOC charge and her complaint alleged that other “similarly situated females were discriminated on the basis of sex” those claims were procedurally barred and untimely because class allegations were specifically rejected by the Supreme Court and the Dukes district court extended tolling for individual claims of discrimination, not class claims. But, explained the court, while the employee’s EEOC charge broadly referred to “female employees who were similarly situated,” her complaint did not make such a reference. Observing that a class action is commenced by the filing of a complaint seeking class certification in the district court, the court found that she filed her complaint as an individual.

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