Filed Date: June 8, 2001
Closed Date: 2016
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On June 8, 2001, a female Wal-Mart employee filed this class-action lawsuit in the U.S. District Court for the Northern District of California against her employer claiming gender discrimination. Although the original complaint was filed pro se, on June 19, 2001, the plaintiff filed an amended complaint with counsel. Dozens of lawyers have worked on this case, but the lead counsel is Brad Seligman of the Impact Fund, a nonprofit advocacy group. Plaintiffs filed their third amended complaint on September 12, 2002.
The named plaintiffs represented a class consisting of "all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices." Estimates of the size of this class range from 700,000 to 1.5 million women. Plaintiffs alleged gender discrimination in violation of Title VII of the Civil Rights Act. Specifically, they argued that Wal-Mart's corporate culture fostered ideals of male superiority, which resulted in fewer raises and promotions for female employees. Those women who did receive raises and promotions, the plaintiffs alleged, received them on a smaller scale and more slowly than male employees.
The plaintiff class brought gender discrimination claims under Title VII of the Civil Rights Act of 1964. Two of the named plaintiffs, both black, also brought claims under California's Fair Employment and Housing Act for racial discrimination. The plaintiffs sought relief in the form of back pay, front pay, lost compensation and benefits, and punitive damages. Additionally, the plaintiffs sought injunctive relief prohibiting discriminatory practices, restoring employees who quit or who Wal-Mart fired to their previous positions, and adjusting wage rates of current employees to what they would have been had Wal-Mart not discriminated.
The issue of class certification dominated early proceedings. Wal-Mart vigorously contested certification of such a large and broad class. The district court certified the class on June 21, 2004. 222 F.R.D. 137 (N.D. Cal. 2004).
Wal-Mart appealed the order for class certification. The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's order in part on February 6, 2007, but then withdrew its opinion. 474 F.3d 1214 (9th Cir. 2007). The Ninth Circuit then issued a new opinion, affirming in part the district court's order, on December 11, 2007. 509 F.3d 1168 (9th Cir. 2007). Finally, the Ninth Circuit upheld its prior decision after a rehearing en banc. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010). The Ninth Circuit decisions were docketed under 04-16688 and 04-16720, the latter covering a cross-appeal by the plaintiffs.
The Ninth Circuit affirmed most of the district court's order but remanded to determine whether the class could be certified as to punitive damages. Additionally, the Circuit limited the ability of some of the named Plaintiffs to receive back pay for expected promotions if there was no "objective data" on hand to prove they were in a position to receive a promotion and that the court would not rely on speculation.
Additionally, the Ninth Circuit indicated that putative class members who were no longer employed at the time the complaint was filed could not participate in the injunctive or declaratory relief of the suit, although they could be entitled to damages under Federal Rule of Civil Procedure 23(b)(3). The Ninth Circuit indicated that although the plaintiffs sought to certify the class under Rule 23(b)(2), which is for claims seeking injunctive relief, the district court on remand could certify some claims under Rule 23(b)(3), such as the punitive damage claims. Overall, the potentially large monetary award of this case did not prevent certification under Rule 23(b)(2).
The class certification litigation did touch upon the merits of Plaintiffs' claims. Plaintiffs presented anecdotal evidence of discrimination through the testimony of the named Plaintiffs and other employees. Plaintiffs also presented expert testimony of statisticians and sociologists to demonstrate that Wal-Mart's corporate structure encouraged a culture of gender discrimination. Wal-Mart countered with its own statistician, but the district and appellate courts found them less persuasive. But the Ninth Circuit noted that in this preliminary stage, it was not in fact evaluating the credibility of this testimony, but was rather attempting to determine if there were issues of commonality between class members that warranted certification.
Because of the split in the circuits regarding the standard by which to evaluate class certification, the Supreme Court granted the defendants' petition for writ of certiorari on December 06, 2010. The case was argued before the Supreme Court on March 29, 2011 and decided on June 20, 2011.
In a 5-4 vote, the Supreme Court ruled that Wal-Mart's policy of granting local supervisors discretion in pay and promotion decisions, which allegedly has a disparate impact on female employees, did not provide a common question of fact, as required for class certification under Rule 23(a)(2). 31 S.Ct. 2541 (2011). Justice Scalia delivered the opinion of the Court and was joined by Justices Roberts, Thomas, Kennedy, and Alito. Justice Ginsburg wrote an opinion dissenting on the Rule 23(a)(2) question and was joined by Justices Breyer, Sotomayor, and Kagan. All justices agreed that the back pay claims in the case were improperly certified under Rule 23(b)(2).
The Court concluded that the evidence presented of Wal-Mart's alleged discriminatory policies was insufficient to warrant class certification. Relying on General Telephone Co. of Southwest v. Falcon, it found that the plaintiffs needed to show "[s]ignificant proof that an employer operated under a general policy of discrimination." Because the expert that the plaintiffs relied was not able to specify the extent to which stereotypes affected employment decisions, the Court deemed that his testimony did not meet this standard.
Apart from this rejected evidence, the majority found that the plaintiffs did "not identif[y] a common mode of exercising discretion that pervades the entire company," citing Watson v. Fort Worth Bank & Trust to declare that the plaintiffs needed to "identify[] the specific employment practice that is challenged." Based on this principle, the Court rejected the plaintiffs' statistical and anecdotal evidence for failing to identify particular practices that affected the entire class. The statistical evidence, said the Court, pointed only to the existence of disparities rather than to any common practice, and the anecdotal evidence was too little and not sufficiently representative for the size of class certified. As a result, the Court concluded that "there is [not] even a single common question" that ties the class together.
Justice Ginsburg dissented from this conclusion. After questioning the majority's scrutiny of the District Court's discretion regarding Rule 23(a), she focused on Watson's conclusion that practices not motivated by discriminatory intent, but that produce discriminatory results, do give rise to Title VII claims. For the instant case, Justice Ginsburg noted that managers may be susceptible to unconscious biases, and that Wal-Mart's uniform policy of discretion does nothing to combat such biases. Thus, she argued, there was sufficient basis for class certification and the majority had mistakenly imported Rule 23(b)(3)'s requirements into 23(a)(2), effectively requiring the common questions of law or fact to predominate over individual questions. (Justice Ginsburg's opinion also dismisses Falcon, which dealt with intentional discrimination, as irrelevant, since the instant case, which involves disparate treatment, involved Wal-Mart's companywide policies affecting all female workers.)
The Court unanimously agreed that the back pay claims in the case could not be certified under Rule 23(b)(2) because "the monetary relief is not incidental to the injunctive or declaratory relief." It characterized the back pay claims as individualized relief against which a defendant could provide defenses against specific plaintiffs. It also noted that only Rule 23(b)(3) would be appropriate for back pay claims, since that provision, and not (b)(2), offers procedural protections like mandatory notice and the ability to opt out.
Following the Supreme Court's decision, the plaintiffs filed a fourth amended complaint on October 27, 2011, seeking class certification in line with different standards since the Supreme Court did not rule on the merits of the case. The class was newly defined to include "present and former female Wal-Mart retail store employees who have been subjected to gender discrimination as a result of specific policies and practices in Wal-Mart’s regions located in whole or in part in California." The court denied class certification in August 2013, and the plaintiffs' subsequent appeal to the Ninth Circuit was denied. After two more years of discovery, six new women moved to intervene as plaintiffs. The next day, the parties moved to voluntarily and jointly dismiss the case as they had reached a confidential settlement agreement, leading the Court to order the intervenor's motion moot.
On August 16, 2016, the parties wishing to intervene appealed the mootness of their motion to the Ninth Circuit. However, on November 16, 2016, the Ninth Circuit granted the plaintiffs' motion for voluntary dismissal of the case. The case is now closed.
Summary Authors
Xin Chen (7/5/2011)
Virginia Weeks (10/29/2016)
Eva Richardson (10/14/2018)
Rodriguez v. Hayes, Central District of California (2007)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5781336/parties/dukes-v-wal-mart-stores-inc/
Bea, Carlos T. (California)
Abell, Nancy L. (California)
Alberts, Katherine A. (California)
Barker, Vicky L. (California)
Barton, Mark E. (California)
Breyer, Charles R. (California)
Chen, Edward Milton (California)
Corley, Jacqueline Scott (California)
Fisher, Raymond C. (California)
Hawkins, Michael Daly (Arizona)
Ikuta, Sandra Segal (California)
Jenkins, Martin J. (California)
Kleinfeld, Andrew Jay (Alaska)
Reinhardt, Stephen Roy (California)
Rymer, Pamela Ann (California)
Caesar, Michael Victor (California)
Caiola, Michelle Anne (Illinois)
Farrell, Noreen A. (California)
Firth, Charles V. (New Mexico)
Goldsmith, Julie (District of Columbia)
Grossman-Swenson, Sarah T. (California)
Hurtado, Arcelia Leticia (California)
Kotagal, Kalpana (District of Columbia)
Larkin, Jocelyn Dion (California)
Lawrence, Elizabeth A. (California)
Marshall, Shauna Iris (California)
Molumphy, Mark Cotten (California)
Reisch, Jennifer Abby (California)
Reiser, Julie Goldsmith (District of Columbia)
Renick, Randall R. (California)
Richardson, Anne K. (California)
Romer-Friedman, Peter (District of Columbia)
Sellers, Joseph Marc (District of Columbia)
Stemerman, Steven L. (California)
Thomas, Sheila Yvette (California)
Tompkins, Charles E. (District of Columbia)
Vagins, Deborah (District of Columbia)
Alberts, Katherine A. (California)
Boutrous, Theodore J. Jr. (California)
Byrnes, Jaime Dodge (California)
Conway, Catherine A. (California)
Cripps, Jesse A. Jr. (California)
Dacre, Catherine M. (California)
Diekmann, Gilmore F. Jr. (California)
DiNardo, Lawrence C. (Illinois)
Dodge Byrnes, Jaime (California)
Evangelis, Theane (California)
Grossman, Paul (District of Columbia)
Huibonhoa, Katherine C. (California)
Johnson, Barbara L (District of Columbia)
Kapur, Theane Evangelis (California)
Maryott, Michele Leigh (California)
Mollen, Neal D. (District of Columbia)
Olson, Theodore B. (District of Columbia)
Perry, Mark A. (District of Columbia)
Becker, Evelyn L. (District of Columbia)
Beisner, John (District of Columbia)
Berkman, Richard L. (Pennsylvania)
Berman, Jeffrey A (California)
Blackwood, Vincent J. (District of Columbia)
Bloch, Adrienne L. (California)
Bogue, Maureen K. (California)
Burton, Mark Etheredge (California)
Coukos, Pamela (District of Columbia)
Farrell, Sandi (District of Columbia)
Fay, Raymond C. (District of Columbia)
Fentonmiller, Laura C. (District of Columbia)
Foreman, Michael L. (District of Columbia)
Kohrman, Daniel B. (District of Columbia)
Krischer, Joel E. (California)
Popeo, Daniel J. (District of Columbia)
Radowitz, Melvin (District of Columbia)
Reesman, Ann Elizabeth (District of Columbia)
Rossman, Stuart T. (Massachusetts)
Samp, Richard A. (District of Columbia)
Savage, Mark Randall (California)
Schneider, Todd Michael (California)
Sloan, Barbara L. (District of Columbia)
Tirona, Marissa M. (California)
Vann, Rae T. (District of Columbia)
Whatley, Joe R. Jr. (New York)
See docket on RECAP: https://www.courtlistener.com/docket/5781336/dukes-v-wal-mart-stores-inc/
Last updated Feb. 4, 2025, 6:34 a.m.
State / Territory: California
Case Type(s):
Special Collection(s):
Private Employment Class Actions
Key Dates
Filing Date: June 8, 2001
Closing Date: 2016
Case Ongoing: No
Plaintiffs
Plaintiff Description:
All women, from part-time hourly workers to salaried managers, whom Wal-Mart denied raises and promotions because of an alleged culture of gender discrimination.
Plaintiff Type(s):
Attorney Organizations:
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Denied
Defendants
Wal-Mart Stores, Inc. (Bentonville), Private Entity/Person
Defendant Type(s):
Case Details
Causes of Action:
Title VII (including PDA), 42 U.S.C. § 2000e
Available Documents:
U.S. Supreme Court merits opinion
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Issues