E.E.O.C. v. Wal-Mart Stores, Inc.

• Decision Date: 17 July 2008
• Docket Number: No. 07-CV-0300 JAP/LFG.,07-CV-0300 JAP/LFG.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WAL-MART STORES, INC. and Wal-Mart Stores East, Inc., Defendants.
• Court: U.S. District Court — District of New Mexico

Page 1240

576 F.Supp.2d 1240

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WAL-MART STORES, INC. and Wal-Mart Stores East, Inc., Defendants.

No. 07-CV-0300 JAP/LFG.

United States District Court, D. New Mexico.

July 17, 2008.

Gwendolyn Young Reams, James L. Lee, EEOC Legal Counsel Office, Washington, DC, Loretta F. Medina, Veronica A. Molina, EEOC, Albuquerque, NM, Mary Jo O'Neill, Sally C. Shanley, EEOC Phoenix District Office, Phoenix, AZ, for Plaintiff.

Robert Shawn Oller, Littler Mendelson, Phoenix, AZ, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES A. PARKER, Senior District Judge.

On May 30, 2008 Defendants Wal Mart Stores, Inc. and Wal-Mart Stores East, Inc., ("Wal-Mart")¹ filed their Defendants' Rule 12(b)(6) Amended Motion To Dismiss (Doc. No. 23) (the "Motion"). Having reviewed the parties' briefs, the Court finds that the Defendants' Motion should be granted as to the claims of Robin and John Bradford, but denied as to the claim of employee Ramona Kay Bradford.

The Equal Employment Opportunity Commission (EEOC) brought this action on behalf of Robin, John and Ramona Kay Bradford under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981. The EEOC alleges that Wal-Mart retaliated against Ramona Kay Bradford, a Wal-Mart employee, and her adult children, Robin and John Bradford, by denying Robin and John Bradford the opportunity to proceed in the hiring process and by refusing to hire them in retaliation for Ramona Kay Bradford's protected activity. Wal-Mart seeks dismissal of the claims the EEOC has asserted on behalf of Robin and John Bradford arguing that neither Robin Bradford nor John Bradford engaged in protected activity; and therefore, the EEOC has not asserted prima facie claims of retaliation under Title VII regarding their claims. Wal-Mart seeks dismissal of the claims the EEOC has asserted on behalf of Ramona Kay Bradford arguing that she failed to exhaust her administrative remedies with respect to the retaliation claim and that her claims fail as a matter of law because they are derivative of Robin and John Bradford's claims.

Standard for Dismissal

Rule 12(b)(6) provides for dismissal of a plaintiff's claims for "failure to state a claim upon which relief can be granted...." Fed.R.Civ.P. 12(b)(6). In ruling on a motion for dismissal for failure to state a claim, the court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007). In determining whether to grant a motion to dismiss for failure to state a claim, the court must "look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." Id. at 1215 n. 2.

Factual Allegations

In August 2004, Plaintiff Ramona Kay Bradford, a Wal-Mart associate employed at the Wal-Mart store # 835 in Albuquerque, New Mexico, filed a Charge of Discrimination against Wal-Mart.

On or about October 4, 2004, Robin Bradford, Ramona Bradford's daughter, applied for available positions at Wal-Mart store # 835 for which she qualified. Having met the basic criteria for the positions, Robin Bradford was given a first interview by an hourly supervisor on October 29, 2004. Robin Bradford's qualifications and schedule availability met or exceeded those of applicants who were hired by Wal-Mart around the time of Robin's application. Although she received positive feedback from her first interview, Robin was not called back for a second interview with a manager. Robin was not notified why she was not allowed to proceed in the hiring process. However, at least five individuals who had less schedule availability and lower qualifications than Robin were hired.

On or about December 28, 2004, John Bradford, Ramona Bradford's son, applied for available associate positions at Wal-Mart Store # 835 for which he qualified. Having met the basic criteria for the positions, he was interviewed on January 13, 2005. At the initial interview, John was informed that he would be recommended for a second interview. However, instead of being interviewed by a manager, John had his second interview with a "lead assistant" who was aware of Ramona Kay Bradford's previous charge of discrimination. The lead assistant informed John that Wal-Mart was under a hiring freeze; but, during the time that John's application was active, at least three other less qualified individuals were hired.

On May 10, 2005, Robin and John Bradford filed charges of discrimination with the EEOC alleging that Wal-Mart unlawfully retaliated against them in response their mother's charge of discrimination. The EEOC investigated the charges, found that reasonable cause supported Robin and John Bradford's claims of unlawful retaliation, and issued a Letter of Determination notifying Wal-Mart of the EEOC's findings of retaliation. The EEOC's Letter of Determination also included a finding that Wal-Mart discriminated against Ramona Kay Bradford, their mother, as a "class member" asserting that Wal-Mart retaliated against Ramona Kay Bradford in response to her 2004 charge of discrimination by not hiring her daughter and son. Mot. ¶ C.

Retaliation Claims

The EEOC alleges that Wal-Mart violated Title VII when it failed to hire Robin and John Bradford in retaliation for their mother's Title VII charge of discrimination. In addition, the EEOC alleges that Wal-Mart's failure to hire Robin and John Bradford adversely affected Ramona Kay Bradford's status as an employee by deterring her, and others like her, from opposing or participating in protected activity under Title VII. Moreover, the EEOC alleges that Wal-Mart's unlawful employment practices were intentional and were applied with malice or with reckless indifference to the federally protected rights of Robin, John and Ramona Kay Bradford.

The EEOC seeks to enjoin Wal-Mart from engaging in retaliation and to require Wal-Mart to institute policies that provide equal employment opportunities. The EEOC claims compensatory damages for back pay and for future pecuniary losses on behalf of Robin and John Bradford. On behalf of Robin, John and Ramona Bradford, the EEOC requests an award of, nonpecuniary damages, including emotional pain and suffering. The EEOC also seeks punitive damages on behalf of Robin, John and Ramona Kay Bradford for Wal-Mart's alleged malicious and reckless conduct. With regard to the pre-condition to bring this suit, the EEOC asserts that it has exhausted administrative remedies as to the retaliation claim of "class member" Ramona Kay Bradford and as to Robin and John Bradford based on the May 2005 charges filed by Robin and John Bradford. In summary, the EEOC asserts two types of retaliation claims: one on behalf of Robin and John Bradford for retaliation based on their mother's 2004 charge of discrimination; and one on behalf of Ramona Kay Bradford consisting of failure to hire her children in retaliation for her 2004 charge of discrimination.

Title VII Retaliation Provision

Title VII § 2000e-3(a) provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.

42 U.S.C. § 2000e-3(a).

"To establish a prima facie case of retaliation, a plaintiff must demonstrate (1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Argo v. Blue Cross Blue Shield of Kansas, Inc., 452 F.3d 1193, 1202 (10th Cir.2007) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Protected opposition or protected activity includes "oppos[ing] any practice made an unlawful employment practice by this title" or "assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a).

Discussion

Robin and John Bradford's Third Party Retaliation Claims

The Court must decide whether Robin and John Bradford may sue for retaliation even though they have not personally "engaged in protected opposition to discrimination" or "assisted or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Id. In its Motion, Wal-Mart argues that Title VII allows only persons who engage in protected activity to make claims of retaliation; thus, the Court should dismiss John and Robin Bradford's claims for retaliation because they did not engage in protected activity before they were denied the opportunity to proceed with their employment applications. The EEOC argues that John and Robin Bradford should be allowed to recover for retaliation against them even though they did not directly engage in or participate in Ramona Kay Bradford's protected activity. According to the EEOC, Title VII prohibits retaliation not only against the person who engaged in the protected activity, but also against "someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights." EEOC Compl. Man. Vol. 2, §§ 8(B), (C). The EEOC contends that barring such claims would undermine the overall purpose of Title VII to eradicate employment discrimination and to encourage protected activity.

The Tenth Circuit has not addressed whether a person who suffers an adverse employment action in retaliation for a close relative's protected activity has a cause of...