March 12, 2019

A Florida federal judge on Tuesday denied Wal-Mart’s move to toss a gender bias suit brought by members of a national worker class that was dissolved by the U.S. Supreme Court, but ordered the workers to address whether their suit was filed too late.

U.S. District Judge Robert N. Scola Jr. said he would not now dismiss most of the allegations against Wal-Mart brought by four former Wal-Mart or Sam’s Club workers who had been members of a class dissolved by the high court in Wal-Mart v. Dukes and who filed the suit after that class was dissolved. But the judge issued an order to show cause as to why the suit should not be dismissed as it appears to have been filed after the statute of limitations had expired.

Judge Scola said the women’s lawsuit had to be filed within 90 days after the U.S. Equal Employment Opportunity Commission issued their right-to-sue letters, which in this case were issued on Nov. 6, 2015. But the women did not file their suit until November 2017.

The women included in a footnote in their initial complaint that the parties entered into a tolling agreement on the rights to sue that had been extended, making their claims timely. But the judge said that isn’t enough.

. . .

The women behind the suit — Kathleen Forbes, Linda Ray, Judith Danneman and Edna Remington — allege they were victims of arbitrary pay and promotion practices that have left women earning less than men for the same work in 235 of the company's stores across the southeastern United States.

The women are some of the plaintiffs whose motion to intervene in another pay equity suit involving the same store regions, Love v. Wal-Mart, was killed by the Eleventh Circuit in August 2017. They had sought to revive that suit after the named plaintiffs settled following the dismissal of their class claims.

The women allege Wal-Mart and Sam’s Club do not use “job related criteria such as job performance” to set pay or assign promotions. Rather, Wal-Mart’s managers “rely on discriminatory stereotypes and biased views about women in making pay and promotion decisions within each region,” according to the suit.

The workers cite several anonymous examples of these alleged biases, including that one male store co-manager denied a female co-worker a promotion because the automotive manager position was “a man’s position,” and that a manager at another store told a woman “she couldn’t do any overnight work because she was too busy being too pretty.”

The workers also make several specific complaints, including that Danneman, who was a single mother at the time, was told by her manager that men were paid more because “they have families to raise.”

These biases led women in the majority of stores in these regions to earn less than men even when accounting for factors such as seniority, performance and store location, the women say.

The Supreme Court dissolved the Dukes class in part on findings that the class, which numbered more than 1 million women nationwide, did not show they were all affected by the same policy or set of policies. Several of the women then filed this more-focused suit, which falls within the guidelines the justices laid out in the earlier decision, the workers say.

The women are represented by Christine E. Webber, Joseph M. Sellers, Diana Leigh Martin, Leslie Mitchell Kroeger and Theodore Jon Leopold of Cohen Milstein Sellers & Toll PLLC, and Lindsey Brooke Wagner and Cathleen Ann Scott of Scott Wagner & Associates PA.

The complete article can be accessed here.