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Colson v. Wal-Mart Stores, Inc.

United States District Court, S.D. Florida

October 10, 2019

Tonya Colson, Plaintiff,
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 certification of a nationwide class of female Wal-Mart employees claiming gender discrimination. The Plaintiff here, Tonya Colson, after again seeking relief through a regional class action and then as a member of a 33-plaintiff complaint, now seeks redress individually. In her amended complaint (Am. Compl., ECF No. 3), Colson lodges two counts under Title VII regarding her compensation and promotion opportunities: in count one she alleges disparate treatment and in count two she alleges disparate impact. Walmart contends Colson does not plead specific, individualized facts showing that she, herself, was discriminated against, either through disparate treatment or impact; and Colson fails to establish standing. After careful review, the Court agrees that Colson fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) and thus grants Wal-Mart's motion (ECF No. 7) and dismisses Colson's complaint.

         1. Background[1]

         Colson worked at Walmart from 1988 through 2003. (Am. Compl. at ¶ 120.) During this time, she earned a bachelor's degree in human resource management and took master's-degree-level coursework. (Id.) Colson worked her way up, from “layaway clerk” to “Personnel Manager” at Walmart's store number 1006. (Id. at ¶ 121.) When she attempted to advance further, however, seeking “Management in Training/Assistant Manager” positions, she was only ever offered hourly positions. (Id.) At the same time, Colson watched men who had only been with Walmart for a few months get promoted over her even though she had a twelve-year tenure. (Id. at ¶ 122.) Colson believes she was paid less than other similar situated men during her employment within Walmart's region 46. (Id. at ¶ 123.)

         Colson also provides an additional twenty-five pages of background information regarding Walmart's organizational structure, the roles various salaried positions played in the organization regarding compensation and promotion decisions, and a number of policies and practices that guided these decisions. (E.g., id. at ¶¶ 37-70, 74-99.) She additionally relays a statistical analysis that indicates that, at some point (she does not specify when), 87 to 92 percent of the stores in Walmart region 46-Colson's region-“show disparate pay that is lower for women as compared to similarly situated men.” (Id. at ¶ 71.) Colson also sets forth facts showing that Walmart's management team was aware that, on average, female employees were paid less than men and many female employees experienced other disparities. (Id. at ¶¶ 72, 107-119). And she further maintains that female Walmart employees are less likely than their male counterparts to receive promotions to management positions (id. at ¶ 83) and must wait significantly longer for promotions despite having equal or better qualifications (id. at ¶¶ 83-84). Colson also lists eleven incidents, occurring at other stores in her region, where other women experienced gender-based discrimination. (Id. at ¶¶ 100-01.)

         2. Legal Standard

         When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all the complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading must only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In assessing the legal sufficiency of a complaint's allegations, the Court is bound to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint “must . . . contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). “Dismissal is therefore permitted when on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         3. Discussion

         A. Colson fails to sufficiently allege that Walmart intentionally discriminated against her with respect to her pay and promotion opportunities.

         Under Title VII of the Civil Rights Act, it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). “[C]omplaints alleging discrimination . . . must meet the ‘plausibility standard' of Twombly and Iqbal.” Henderson v. JP Morgan Chase Bank, N.A., 436 Fed. App'x 935, 937 (11th Cir. 2011). Thus, Colson's complaint must contain “sufficient factual matter” to support a reasonable inference that Walmart engaged in intentional gender discrimination against her in relation to her compensation and denial of promotions. Henderson, 436 Fed. App'x at 937. There are any number of ways Colson can do this, including “alleging facts showing that similarly-situated [male employees] were offered more favorable [employment] terms, ” id., or direct evidence of discrimination, Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). After careful review, the Court agrees with Walmart and finds Colson has not set forth sufficient factual allegations that would demonstrate, either directly or circumstantially, that she personally suffered any adverse employment consequences based on intentional gender discrimination.

         Colson challenges this conclusion, relying on Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), and at the same time insisting she has met Twombly's plausibility standards by pleading “enough fact to raise a reasonable expectation that discovery will reveal evidence” of the defendant's liability. (Pl.'s Resp., ECF No. 15, 10-11 (quoting Twombly, 550 U.S. at 556).) While the Court agrees that Swierkiewicz supports Colson's position that she need not set forth evidence establishing a prima facie case under the McDonnell framework[2] in order to survive dismissal, the Court nonetheless disagrees that that case absolves her from alleging actual facts that support her claim of gender discrimination. See Pouyeh v. UAB Dept. of Ophthalmology, 625 Fed. App'x 495, 497 (11th Cir. 2015) (holding that a complaint must contain factual allegations demonstrating, either directly or circumstantially, that a defendant's actions were discriminatory); Henderson, 436 Fed. App'x at 938 (requiring a plaintiff to plead facts that “raise[] a plausible inference that [the defendant] discriminated against [the plaintiff]”). Ultimately, Colson's allegations cannot carry her past dismissal.

         For example, in support of her insistence that she has set forth sufficient facts, Colson first points to her allegations that “she sought management level opportunities but was only offered hourly positions while she saw men with less tenure than her promoted over her.” (Pl.'s Resp. at 11 (citing Am. Compl. at ¶¶ 120-22).) Indeed, in her complaint, Colson specifically says she “sought opportunities to advance to Management in Training/Assistant Manager position.” (Am. Compl. at ¶ 121.) But, nothing about this allegation depicts, or even implies, any discriminatory intent. Nor does it even set forth facts, with respect to her promotion claim, that Colson sought a specific promotion into an open or available position or that she was even qualified for such a promotion. Her further assertion that she was “denied promotional opportunities” for four categories of various manager positions does not fill these gaps, especially since she describes these positions, or their “position equivalent, ” in only the vaguest of terms. (Am. Compl. at ¶ 106.a.ii.) Lastly, her allegation that “men who had only been with the company a few short months were promoted” while she was not after having worked for Walmart for twelve years fails to supply facts showing discriminatory intent. What qualifications or prior experience did those men have? What positions were they seeking compared to the positions Colson was seeking? How did their qualifications compare? Was Colson qualified for the positions the men sought? Colson's complaint answers none of these questions. In short, nothing set forth in the complaint would enable the Court to reasonably infer that Walmart's decision not to promote Colson was due to discriminatory animus. See Veale v. Florida Dept. of Health, 2:13-CV-77-FTM-38UAM, 2013 WL 5703577, at *5 (M.D. Fla. July 29, 2013) (requiring “allegations of specific facts to explain how the disparate treatment occurred” in order to properly plead Title VII discrimination).

         Next, Colson's allegations that she “believes she was paid less than other other similarly situated men during her employment within Region 46” is also insufficient. This allegation is nothing but a “[t]hreadbare recital[] of the elements of a cause of action, supported by mere conclusory statements, ” and therefore “do[es] not suffice.” Watts v. Ford Motor Co., 519 Fed. App'x 584, 586 (11th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). And while the Court agrees with Colson that “[s]he is not required to lay out every single detail of her employment in her Complaint” (Pl.'s Resp. at 11), she must nonetheless provide at least some “nonconclusory descriptions of specific, discrete facts of the who, what, when, and where variety” that plausibly show she is actually entitled to relief. Watts, 519 Fed. App'x at 587 (quoting Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013)). It is not enough, as Colson adamantly maintains, for her to simply “identify the store where she worked and the years she was employed by Wal-Mart.” (Pl.'s Resp. at 11.) There is nothing in these facts that would differentiate between an employee who experienced discrimination from one who did not.

         Nor can the allegations Colson sets forth within her disparate treatment count, or elsewhere, save her, as she suggests. These allegations, too, all suffer from their threadbare and conclusory nature as shown, by example, in the following:

• “Plaintiff herein has been denied equal pay for salaried positions or hourly positions.” (Am. ...

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