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Forbes v. Wal-Mart Stores, Inc.

United States District Court, S.D. Florida

August 16, 2019

Kathleen Forbes and others, Plaintiffs,
Wal-Mart Stores, Inc., Defendant.



         This case is an offshoot of the underlying complaint addressed by the United States Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Dukes, the Supreme Court reversed the lower court's certification of a nationwide class of female Walmart employees claiming gender discrimination. The remaining Plaintiffs in this case, Kathleen Forbes, Linda Ray, and Edna Remington, having dropped the class claims alleged in their initial complaint, now seek redress individually. In their amended complaint (Am. Compl., ECF No. 26), the Plaintiffs, variously, lodge four counts of gender discrimination under Title VII: Ray and Remington allege disparate treatment and impact with respect to pay and promotions in Walmart Region 10 (counts one and three); and Forbes alleges disparate treatment and impact with respect to pay and promotions in Sam's Club Region 6 (counts two and four). (Am. Compl., ECF No. 26.) Walmart has now moved for summary judgment on a number of bases, maintaining there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law with respect to all the Plaintiffs' claims. (Def.'s Mot. for Summ. Judgment, ECF No. 90.) Although a number of Walmart's arguments are entirely misplaced, it has nonetheless managed to meet its burden of supporting its motion. Conversely, the Plaintiffs have failed to come forward with competence evidence that shows there are any genuine issues of material fact to be decided at a trial. (Pls.' Resp., ECF No. 126.) Accordingly, and after careful review of the relevant record in this case, the Court grants Walmart's motion (ECF No. 90).

         1. Background

         The Plaintiffs here, all former employees of Walmart, maintain the company discriminated against them based on their gender. All three Plaintiffs worked at Walmart for several years: Forbes from 1990 to 2006; Ray from 1996 to 2005; and Remington from 1993 to 2004. All three also worked as both hourly as well as salaried employees. In brief, they allege Walmart discriminated against them in connection with their compensation as well as promotion opportunities. They also contend that, company-wide, Walmart not only tolerated, but fostered, systemic discrimination against women throughout the workplace.

         2. Legal Standard

         Under Federal Rule of Civil Procedure 56, “summary judgment is appropriate where there ‘is no genuine issue as to any material fact' and the moving party is ‘entitled to a judgment as a matter of law.'” See Alabama v. N. Carolina, 130 S.Ct. 2295, 2308 (2010) (quoting Fed.R.Civ.P. 56(a)). At the summary judgment stage, the Court must view the evidence in the light most favorable to the nonmovant, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970), and it may not weigh conflicting evidence to resolve disputed factual issues, see Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007). Yet, the existence of some factual disputes between litigants will not defeat an otherwise properly grounded summary judgment motion; “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the record as a whole could not lead a rational trier of fact to find in the nonmovant's favor, there is no genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         “[O]nce the moving party has met its burden of showing a basis for the motion, the nonmoving party is required to ‘go beyond the pleadings' and present competent evidence designating ‘specific facts showing that there is a genuine issue for trial.'” United States v. $183, 791.00, 391 Fed.Appx. 791, 794 (11th Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Thus, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but [instead] must set forth specific facts showing that there is a genuine issue for trial.” See Anderson, 477 U.S. at 248 (citation omitted). “Likewise, a [nonmovant] cannot defeat summary judgment by relying upon conclusory assertions.” Maddox-Jones v. Bd. of Regents of Univ. of Ga., 2011 WL 5903518, at *2 (11th Cir. Nov. 22, 2011). Mere “metaphysical doubt as to the material facts” will not suffice. Matsushita, 475 U.S. at 586.

         3. Analysis

         A. Disparate Impact Claims

         All three Plaintiffs allege gender discrimination through the adverse impact of Walmart's facially neutral system for making decisions about compensation and promotions. Under a theory of discrimination based on disparate impact, a plaintiff need not show intentional discrimination. Jefferson v. Burger King Corp., 505 Fed. App'x 830, 834 (11th Cir. 2013). Instead, “[t]he disparate-impact theory prohibits neutral employment practices that, while non-discriminatory on their face, result in an adverse and disproportionate impact upon a protected group.” Id. The parties here do not dispute that, generally, in order to prove their disparate-impact claims, the Plaintiffs must establish “(1) there is a significant statistical disparity among members of different [genders]; (2) there is a specific, facially-neutral employment policy or practice; and (3) there is a causal nexus between the specific policy or practice and the statistical disparity.” Cooper v. S. Co., 390 F.3d 695, 724 (11th Cir. 2004).

         Walmart maintains the Plaintiffs have failed to (1) specify a particular policy or practice that resulted in the disparate impact or (2) present admissible evidence showing a significant statistical disparity among male versus female employees with respect to either pay or promotions. In response, the Plaintiffs acknowledge that “each Plaintiff's circumstances must be evaluated to determine if she has presented a facially neutral practice and statistical evidence of an adverse impact.” (Pls.'s Resp. at 24.) At the same time, the Plaintiffs maintain they need not identify a particular policy or practice because they have “challenged Walmart's subjective discretion in the compensation process and allege it was incapable of separation from any objective elements of pay” and can therefore be evaluated “as a single practice.” (Id. at 25.) They further advise that “[t]he statistical evidence when it is finally received from Walmart should be evaluated . . . by plaintiff, and will be addressed accordingly.” (Id. at 24.) After careful review, the Court finds the Plaintiffs have failed to come forward with competent evidence showing there is a genuine issue of material fact to be determined at trial regarding any of their disparate impact claims.

         To be sure, the Plaintiffs paint a disturbing picture of apparent gender discrimination that appears to have permeated much of Walmart's workplace, at every level of the company, from its top management to its hourly workers in individual stores and everyone in between. According to the Plaintiffs, a statistics expert, Dr. Richard Drogin, retained in conjunction with the Dukes litigation (but not this litigation), concluded, over a decade ago, that women employed at Walmart earned far less money than their male counterparts and were promoted less frequently and only after working for longer periods. The underrepresentation of women in management positions and the disparity in pay between genders-according to Walmart's own internal documents, say the Plaintiffs-appear to have been well known but were left, for years, largely unaddressed.

         To this point, the Plaintiffs rely on Drogin's 2003 report, as well as a declaration he submitted, also in the Dukes litigation, in 2013, to support their disparate treatment claims. In his 2003 report, Drogin reached a number of damning conclusions, based on his analysis of data supplied by Walmart for nearly four-million employees who worked at Walmart from 1996 to 2002. According to the report, during that period, company-wide, women earned less money than men at Walmart. Drogin concluded this was because there was a disproportionate number of women in the lower-paying hourly jobs, as opposed to higher paying management positions, and because women earned far less money than men who held what Drogin described as the same category of jobs.

         The Plaintiffs also generally outline a number of Walmart “policies” that involved promotional and pay decisions. (Pls.'s Resp. at 11-13.) Regarding promotions from lower hourly positions to higher hourly positions, the Plaintiffs point to Walmart's requirement that employees be in their current position for at least six months, have no “coachings” (a type of disciplinary measure) within twelve months, and that their evaluations not be below standards. (Pls.'s Stmt. of Facts ¶ 4, ECF No. 127, 5.) The evidence presented by the Plaintiffs shows that individual store managers were responsible for making hourly promotion decisions and that there is no written record regarding why a store manager selected one person over another for an hourly promotion. (Id. at ¶ 7.)

         With respect to promotions from hourly positions into management positions and promotions to successively higher levels within management, the Plaintiffs describe a number of other Walmart policies. For example, the Plaintiffs explain that certain management positions were filled by a “tap on the shoulder” system whereby higher-level managers simply designated people for openings. (Id. at ¶ 6.) The Plaintiffs also describe certain criteria used to evaluate employees for management promotions: at least one year with Walmart in a lower-level position; a performance evaluation of “meets expectations” or higher; no active disciplinary issues; up to date on training; not in a “high shrink” department; and a willingness to relocate. (Id. at ¶ 8.) Further, as the Plaintiffs present it, Walmart “had no formal system for the management in training program until January 2003.” (Id. at ¶ 10.)

         Regarding compensation policies, the Plaintiffs cataloged several other policies: a strong company policy against discussing pay (id. At ¶ 12); a pay structure based on job classes, each of which set a minimum start rate for each store (id. at ¶ 14); company-wide minimum start rates for jobs in the same class; store managers' having discretion to pay a new employee up to $2 an hour above the minimum start rate (id. at ¶ 14); store managers' having discretion over pay raises for hourly workers (id. at ¶ 16); and various policies regarding pay guidelines for salaried management and who made decisions regarding pay increases for those positions (id. at ¶¶ 18-21).

         The Plaintiffs' presentation, however, falls short. To begin with, they rely on a report produced by an expert whom they did not timely disclose. Although Walmart was no doubt aware of the report from the prior litigation, its late disclosure by the Plaintiffs in this case prevented Walmart from deposing Drogin and countering with their own expert testimony as the evidence relates to these particular Plaintiffs (as opposed to the plaintiffs in the Dukes case). “Fed. R. Civ. P. 26(a)(2)(C) provides clear deadlines for the submission of expert reports to the court, and Fed.R.Civ.P. 37(c)(1) gives district courts discretion to exclude untimely submissions.” Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339, 1348 (11th Cir. 2004). Under Rule 37(c)(1), the Plaintiffs may not use the late-disclosed expert report “to supply evidence on a motion . . . unless the failure was substantially justified or is harmless.” The Plaintiffs thus bear the burden of establishing that their failure is either justified or harmless. But rather than offering anything in the way of justification for the late disclosure, the Plaintiffs instead complain that Walmart is only seeking to exclude the report because it contains information damaging to its defense of this case. Thus, not only was the Plaintiffs' failure to timely disclose the expert not justified, but, as they acknowledge, the late disclosure is clearly not harmless. The Court therefore excludes Drogin's reports in considering Walmart's motion. Since the statistical evidence contained in Drogin's reports is the only statistical evidence the Plaintiffs submit in support of their disparate impact claims, those claims cannot survive summary judgment.

         Even if, however, the Court were to consider that evidence, the Plaintiffs' claims still suffer from fatal defects because they fail to directly link any particular policy or practice to these individual Plaintiffs' compensation or promotional opportunities. In other words, from the record presented, the Court is unable to discern a causal connection between the policies they complain about and their low levels of pay and inability to attain promotions as compared to male Walmart employees. First, the Plaintiffs lump all of Walmart's policies and practices into one unified general decision-making process rather than identifying any specific individual policies. In doing so they rely on 42 U.S.C. § 2000e-2(k)(1)(B)(i) which provides an exception to the requirement that a plaintiff “demonstrate that each particular challenged employment practice causes a disparate impact.” Under the exception, a defendant employer's “decisionmaking process may be analyzed as one employment practice” in the event a plaintiff is able to “demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis.” 42 U.S.C. § 2000e-2(k)(1)(B)(i).

         The Plaintiffs' argument here is a nonstarter. As an initial matter, the Plaintiffs have not even separated the policies regarding the Plaintiffs' claims of disparate impact as they relate to pay from those relating to promotion. Nor have they distinguished between policies applicable to hourly as compared to salaried employees. Furthermore, the statute provision the Plaintiffs rely on places the burden on them to show that the elements of Walmart's decision-making process are not capable of separation. Rather than bear that burden, the Plaintiffs instead complain that “Walmart does not present any argument about whether the subjective elements of the compensation decision can be separated from the objective ...

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