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Dukes v. Wal-Mart Stores, Inc.

United States District Court, N.D. California

August 2, 2013

DUKES, ET AL., Plaintiffs,
v.
WAL-MART STORES, INC., Defendant

Page 1116

For Betty Dukes, Plaintiff: Anne Kendrick Richardson, Randy R. Renick, Hadsell Stormer Richardson & Renick LLP, Pasadena, CA; Charles V. Firth, Tinkler & Firth, Santa Fe, NM; Christine E. Webber, Joseph Marc Sellers, Cohen Milstein Sellers & Toll PLLC, Washington, DC; Cornelia Dai, Hadsell Stormer Keeny Richardson & Renick LLP, Pasadena, CA; Elizabeth A. Lawrence, Steve Stemerman, Davis Cowell & Bowe, San Francisco, CA; Jennifer Abby Reisch, Noreen A. Farrell, Equal Rights Advocates, San Francisco, CA; Jocelyn Dion Larkin, Michael Victor Caesar, Impact Fund, Berkeley, CA; Merit Bennett, Santa Fe, NM; Peter Romer-Friedman, PRO HAC VICE, Cohen, Milstein, Sellars & Toll, PLLC, Washington, DC; Sheila Yvette Thomas, Law Offices of Sheila Thomas, Oakland, CA; Stephen Tinkler, Tinkler & Bennett, Santa Fe, NM.

For Patricia Surgeson, Plaintiff: Anne Kendrick Richardson, Randy R. Renick, Hadsell Stormer Richardson & Renick LLP, Pasadena, CA; Charles V. Firth, Tinkler & Firth, Santa Fe, NM; Christine E. Webber, Joseph Marc Sellers, Cohen Milstein Sellers & Toll PLLC, Washington, DC; Cornelia Dai, Hadsell Stormer Keeny Richardson & Renick LLP, Pasadena, CA; Elizabeth A. Lawrence, Steve Stemerman, Davis Cowell & Bowe, San Francisco, CA; Jennifer Abby Reisch, Equal Rights Advocates, San Francisco, CA; Merit Bennett, Santa Fe, NM; Michael Victor Caesar, Impact Fund, Berkeley, CA; Peter Romer-Friedman, PRO HAC VICE, Cohen, Milstein, Sellars & Toll, PLLC, Washington, DC; Sheila Yvette Thomas, Law Offices of Sheila Thomas, Oakland, CA; Stephen Tinkler, Tinkler & Bennett, Santa Fe, NM.

For Edith Arana, Christine Kwapnoski, Plaintiffs: Elizabeth A. Lawrence, LEAD ATTORNEY, Davis Cowell & Bowe, San Francisco, CA; Anne Kendrick Richardson, Randy R. Renick, Hadsell Stormer Richardson & Renick LLP, Pasadena, CA; Charles V. Firth, Tinkler & Firth, Santa Fe, NM; Christine E. Webber, Joseph Marc Sellers, Cohen Milstein Sellers & Toll PLLC, Washington, DC; Cornelia Dai, Hadsell Stormer Keeny Richardson & Renick LLP, Pasadena, CA; Jennifer Abby Reisch, Noreen A. Farrell, Equal Rights Advocates, San Francisco, CA; Jocelyn Dion Larkin, Michael Victor Caesar, Impact Fund, Berkeley, CA; Peter Romer-Friedman, PRO HAC VICE, Cohen, Milstein, Sellars & Toll, PLLC, Washington, DC; Sheila Yvette Thomas, Law Offices of Sheila Thomas, Oakland, CA.

For Deborah Gunter, Plaintiff: Elizabeth A. Lawrence, LEAD ATTORNEY, Davis Cowell & Bowe, San Francisco, CA; Anne Kendrick Richardson, Randy R. Renick, Hadsell Stormer Richardson & Renick LLP, Pasadena, CA; Charles V. Firth, Tinkler & Firth, Santa Fe, NM; Christine E. Webber, Joseph Marc Sellers, Cohen Milstein Sellers & Toll PLLC, Washington, DC; Cornelia Dai, Hadsell Stormer Keeny Richardson & Renick LLP, Pasadena, CA; Jennifer Abby Reisch, Noreen A. Farrell, Equal Rights Advocates, San Francisco, CA; Michael Victor Caesar, Impact Fund, Berkeley, CA; Peter Romer-Friedman, PRO HAC VICE, Cohen, Milstein, Sellars & Toll, PLLC, Washington, DC; Sheila Yvette Thomas, Law Offices of Sheila Thomas, Oakland, CA.

For Wal-Mart Stores, Inc., Defendant: Catherine A. Conway, Frederick Brown, Jesse A. Cripps, Jr., Theane Evangelis Kapur, Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, CA; Joseph Marc Sellers, Cohen Milstein Sellers & Toll PLLC, Washington, DC; Karl G. Nelson, PRO HAC VICE, Dallas, TX; Mark A. Perry, Gibson Dunn & Crutcher LLP, Washington, DC; Michele Leigh Maryott, Gibson Dunn & Crutcher LLP, Irvine, CA; Rachel S. Brass, Gibson Dunn & Crutcher LLP, San Francisco, CA.

For Diana Alexander-Jones, Miscellaneous: Todd Michael Schneider, LEAD ATTORNEY, Schneider Wallace Cottrell Konecky LLP, San Francisco, CA.

OPINION

CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE.

Page 1117

ORDER DENYING CLASS CERTIFICATION

This case has traveled a long road. Plaintiffs have spent over twelve years pursuing their claims that Wal-Mart discriminated against them and other women in making pay and promotion decisions. For a while, they succeeded in prosecuting the suit as a class action encompassing the claims of some 1.5 million women around the country. But the Supreme Court was not impressed, and in a landmark ruling addressing Federal Rule of Civil Procedure 23(a)(2)'s requirement that a common question tie together the claims of every class member, the Court concluded that Plaintiffs had not established that " all their claims can be productively litigated at once." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011).

In response, Plaintiffs returned to the district court and sought to redefine a smaller class that would conform to the Supreme Court's holding. The newly proposed class would include about one hundred and fifty thousand women who worked in what the Plaintiffs call Wal-Mart's " California Regions." This motion is about whether Plaintiffs' retooled class definition, allegations, argument, and evidence supply the common question that the Supreme Court concluded was missing from the nationwide class. Two themes emerge in the analysis that follows. First, though they have cut down the raw number of proposed class members significantly, Plaintiffs continue to challenge four different kinds of decisions across hundreds of decision makers, inviting failures of

Page 1118

proof at multiple points in each region. Second, though Plaintiffs insist that they have presented an entirely different case from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the same case with new labels on old arguments.

Plaintiffs have amassed substantial evidence of discrimination against women that occurred at Wal-Mart stores during the period at issue in this suit. The Supreme Court, however, required Plaintiffs to make a certain showing in order to litigate all of the class members' claims at once in a single lawsuit, and this Court concludes that Plaintiffs' newly proposed class continues to suffer from the problems that foreclosed certification of the nationwide class. Accordingly, the Court DENIES Plaintiffs' Motion for Class Certification, leaving each member of the class to pursue her claims against Wal-Mart individually.

I. BACKGROUND

Plaintiffs sued Wal-Mart in 2001, alleging that the company discriminated against them and other women in making certain pay and promotion decisions. In the district court, Plaintiffs succeeded in certifying a nationwide class of Wal-Mart's current and former female employees. See Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004). Wal-Mart appealed to the Ninth Circuit, which largely affirmed, Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 628 (9th Cir. 2010) (en banc), and then to the Supreme Court, which reversed, holding that Plaintiffs had failed to identify a " common question" tying together the 1.5 million class members' claims. Dukes, 131 S.Ct. at 2556-57.

Returning to the drawing board, Plaintiffs amended their complaint to propose a new class focused on Wal-Mart's " California Regions." See Dkt. 767. Wal-Mart moved to dismiss the revised class allegations on several grounds, including that the Supreme Court's decision had completely rejected Plaintiffs' theory of commonality, foreclosing certification. See dkt. 781. This Court denied that motion, reasoning that the Supreme Court's opinion rested in part on a rejection of Plaintiffs' evidence of commonality, and that Plaintiffs' new complaint made allegations which, if proved, could provide one or more common questions suitable for class treatment. See Dkt. 812. After conducting additional discovery for more than one year, Plaintiffs now move for class certification. See Dkt. 891.

II. DISCUSSION

This Court has the unique benefit of the Supreme Court's guidance on the application of Rule 23's commonality requirement to the record in this case. Its opinion details the problems that foreclosed certification, and so the question for this Court is whether the changes Plaintiffs have made and the new evidence they present resolve those problems.

Plaintiffs assert Title VII disparate treatment and disparate impact claims, alleging that Wal-Mart discriminated against women in making two types of pay decisions (hourly and salaried) and two types of promotion decisions (Management Trainee and Support Manager). See Mot. at vi. They propose to certify three regional classes of

[a]ll women employed at any retail store in [Wal-Mart Region 16 or Wal-Mart Region 19 or Sam's Club Region 18E] at any time from December 26, 1998, to December 31, 2002, who were subject to: a) the compensation system for hourly retail sales positions; b) the compensation system for salaried management positions up to and including Co-Manager; and c) the promotion system into Management

Page 1119

Trainee/Assistant Manager and Support Manager/Area Manager. The class does not include Store Managers or Pharmacists.

Id.

Plaintiffs identify five common questions that, in their view, tie the proposed class together: whether (1) Wal-Mart's " tap on the shoulder" system for making promotions into Management Trainee and Support Manager positions had an adverse impact on women; (2) a core group of high-level managers engaged in a pattern or practice of intentionally denying women equal opportunity to receive promotions into management trainee and support/area manager positions; (3) Wal-Mart's Field Compensation Guidelines for making hourly pay decisions had an adverse impact on women; (4) Wal-Mart's guidelines for salaried pay decisions had an adverse impact on women; and (5) the managers charged with making pay decisions for the hourly and salaried employees engaged in a pattern or practice of intentionally compensating women less than similarly situated men because of their gender. Mot. at 27. The second and fifth questions go to whether Wal-Mart intentionally discriminated against women, while the first, third, and fourth fall under Plaintiffs' disparate impact claim.

Though Plaintiffs argue at some length in the abstract about the differences between the elements of a disparate treatment claim and a disparate impact claim, their actual argument in support of class certification ultimately makes little distinction between the two. See Mot. at 30-31. Essentially, Plaintiffs argue that the statistics show that women were consistently disfavored, and those outcomes were either a result of intentional discrimination documented in Plaintiffs' cultural and anecdotal evidence ...


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