Phipps v. Wal-Mart Stores, Inc.

• Decision Date: 20 February 2013
• Docket Number: Case No. 3:12–cv–1009.
• Citation: 925 F.Supp.2d 875
• Parties: Cheryl PHIPPS, Bobbi Miller, and Shawn Gibbons, on behalf of themselves and all others similarly situated, Plaintiffs, v. WAL–MART STORES, INC., Defendant.
• Court: U.S. District Court — Middle District of Tennessee

925 F.Supp.2d 875

Cheryl PHIPPS, Bobbi Miller, and Shawn Gibbons, on behalf of themselves and all others similarly situated, Plaintiffs,

v.WAL–MART STORES, INC., Defendant.

Case No. 3:12–cv–1009.

United States District Court,

M.D. Tennessee,

Nashville Division.

Feb. 20, 2013.

Christine Webber, Joseph M. Sellers, Cohen, Milstein, Sellers & Toll PLLC, Washington, DC, David W. Garrison, George Edward Barrett, Scott P. Tift, Seth Marcus Hyatt, Barrett Johnston, LLC, Nashville, TN, Jocelyn D. Larkin, Impact Fund, Berkley, CA, for Plaintiffs.

Gerald David Neenan, Aubrey B. Harwell, Jr., Neal & Harwell, Nashville, TN, Rachel S. Brass, Gibson, Dunn & Crutcher, LLP, San Francisco, CA, Theodore J. Boutrous, Jr., Catherine Conway, Gibson Dunn & Crutcher LLP, Los Angeles, CA, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

The defendant, Wal–Mart Stores, Inc. (“Wal–Mart”), has filed a Motion to Dismiss in Part Plaintiffs' Complaint or in the Alternative to Strike Class Claims (Docket No. 19) (“Partial Motion to Dismiss”), to which the plaintiffs have filed a Response in opposition (Docket No. 35), and the defendants have filed a Reply (Docket No. 39). The court heard oral argument on the motion on January 30, 2013. For the reasons set forth herein, the motion will be granted and the court will dismiss the class claims with prejudice.

BACKGROUND

I. Procedural History

A. Dukes (N.D.Cal.), Odle (N.D.Tex.), Love (S.D.Fla.), and Phipps (M.D.Tenn.)¹

This case has its origins in the federal district court for the Northern District of California (hereinafter “California district court”), where several named plaintiffs brought a putative national class action against Wal–Mart ( Dukes v. Wal–Mart Stores, Inc. (“Dukes”) ) in June 2001 on behalf of themselves and others similarly situated, alleging that Wal–Mart had systematically discriminated against female employees nationwide with respect to pay and promotion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.²

After extensive class discovery and briefing, the district court, pursuant to Fed.R.Civ.P. 23, certified a nationwide class consisting of all current and former female Wal–Mart employees who had worked at Wal–Mart during a specified time frame.³Dukes v. Wal–Mart Stores, Inc., 222 F.R.D. 137, 188 (N.D.Cal.2004). On appeal, after rehearing en banc, the Ninth Circuit substantially affirmed the district court's certification order. See Dukes v. Wal–Mart, Inc., 474 F.3d 1214 (9th Cir.2007) (panel decision affirming in full); Dukes v. Wal–Mart Stores, Inc., 603 F.3d 571 (9th Cir.2010) ( en banc decision affirming in part and remanding in part). However, in a landmark decision concerning the standards of Rule 23, the United States Supreme Court reversed the Ninth Circuit, holding that, for purposes of certifying a nationwide class, the plaintiffs had failed to demonstrate the requisite commonality under Rule 23(a)(2). Wal–Mart Stores, Inc. v. Dukes, –––U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).

Following the Supreme Court's decision in Dukes, the parties continued to litigate before the California district court. Pursuant to the United States Supreme Court decision in American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the California district court issued an opinion tolling the statute of limitations applicable to sex discrimination claims by the former class members, with respect to whom the court set deadlinesfor filing EEOC charges and/or lawsuits concerning their discrimination charges. ( See Docket No. 1, Compl., Ex. 9, July 25, 2011 order.)

Following that order, certain former nationwide class members filed EEOC charges (to the extent that they had not done so already) and, ultimately, filed three putative class action lawsuits in other jurisdictions: (1) Odle v. Wal–Mart Stores, Inc., No. 3:11–cv–2954–O, 2011 WL 5119693 (N.D.Tex. filed Oct. 28, 2011) (“ Odle ”) (relating to “Wal–Mart's regions located in whole or in part in Texas”); ⁴ (2) Phipps, et al. v. Wal–Mart Stores, Inc., 3:12–cv–1009, 2012 WL 4896677 (M.D.Tenn. filed Oct. 2, 2012) (“ Phipps ”) [ i.e., this case]; and (3) Love, et al. v. Wal–Mart Stores, Inc., No. 0:12–cv61959–RNS, 2012 WL 4739296 (S.D. Fla. filed Oct. 4, 2012) (“ Love ”). These three lawsuits broadly share the following characteristics: (1) they were filed by named plaintiffs who purported to have complied with the deadlines set forth in the California district court's July 25, 2011 order concerning American Pipe tolling; (2) the named plaintiff(s) in each case filed a class action complaint on behalf of current and former employees within a specific geographic “Region” (or Regions) within Wal–Mart's nationwide network— i.e., a geographic subclass of the nationwide class at issue in Dukes; (3) the Title VII claims in each case are broadly similar to those originally asserted in Dukes; (4) each complaint contains new Region-specific allegations; and (5) each complaint, in some respects, supplements and/or re-characterizes the allegations that the Supreme Court in Dukes had found were insufficient to satisfy Rule 23 as to a nationwide class.

Within the original Dukes action, certain California-based plaintiffs also filed a motion for leave to file a Fourth Amended Complaint, which sought to certify a class related only to Wal–Mart's “Region 41,” a Region based largely in California. Wal–Mart sought to dismiss or strike the class claims on several grounds. On September 21, 2012, the California district court denied Wal–Mart's motion and permitted class discovery to proceed with respect to Region 41. See Dukes, 2012 WL 4329009, at *8–*9. In reaching this holding, the California district court found, inter alia, that (1) the Supreme Court's Dukes decision merely “rested not on a total rejection of plaintiffs' theories, but on the inadequacy of their proof” with regard to a nationwide class, id. at *5; (2) “Plaintiffs now bring a narrower class-action claim, which the Supreme Court has yet to consider and did not foreclose,” id. at *6; (3) district courts traditionally retain continuing jurisdiction to revisit the class certification issue, even after a district court's certification of a broader class is overturned on appeal, id. at *4–*5; and (4) American Pipe tolling extended to the (narrowed) class claims, because the case was not a “new” action, but rather a continuation of the previously filed action. Id. at *8.⁵

Accordingly, as of October 4, 2012—the date the Love complaint was filed—four parallel putative class action lawsuits were proceeding against Wal–Mart, each asserting Region-specific gender discrimination claims under Title VII: (1) Dukes (N.D.Cal.), which was a continuation of the original nationwide class action lawsuit; (2) Odle (N.D.Tex.); (3) Love (S.D.Fl.); and (4) Phipps (M.D.Tenn.)— i.e., this case.

B. Phipps Allegations

As discussed herein, because the court is constrained to find that the putative class members' claims are presumptively barred by the statute of limitations, the court need not address the sufficiency of the Phipps complaint under the Rule 23 standard. However, the Phipps complaint allegations are relevant insofar as they demonstrate that the allegations in this lawsuit are substantively similar to those at issue in Dukes in certain important respects and different from the allegations in Dukes in others.

Broadly, like the complaint the Supreme Court considered in Dukes, the Phipps Complaint asserts that Wal–Mart systematically discriminated against women in hiring and promotion. The Complaint also contains some of the same allegations concerning national meetings that involved District Managers. Furthermore, the basic theory of the case is broadly similar to the theory of the case rejected in Dukes, albeit with customized allegations specific to Region 43. ( See Docket No. 25, Conway Decl., Ex. 6 (chart comparing Phipps complaint to the plaintiffs' arguments to the Supreme Court in Dukes )).

However, the Complaint also contains new Region-specific allegations that were not contained in the relevant Dukes complaint. The plaintiffs in this case allege that, within Region 43, Wal–Mart denied women (1) equal pay for hourly retail store positions and certain salaried management positions, and (2) equal opportunities for promotion to certain management track positions, in violation of Title VII.⁶ In support of these claims, it contains the following types of Region 43–specific information:

• A description of the Region 43 structure, which includes scores of retail stores operated by Wal–Mart and, at least as of 2011, is subdivided into “Districts” of 6–8 stores each.

• Allegations concerning commonalities across retail stores within Region 43, including, inter alia, common job titles and job hierarchies, common departments, common management structure in each store, and common District Manager roles in the approval of compensation and promotion decisions in each store.

• Allegations concerning the Region 43 hierarchy, including the roles of a single Regional Vice President and a single Regional Personnel Manager.

• Allegations concerning common forms of pay discrimination within Region 43.

• Anecdotal information relating to the experiences of various employees within Region 43 that reflect racial stereotyping by supervisors at various levels within Region 43, as well as various examples of discrimination in pay and promotion at retail stores within Region 43.

The Complaint identifies two putative subclasses: (1) an “Injunctive Relief Class” consisting of all women who are currently employed, or will be employed, at any Wal–Mart retail store in Region 43; and (2) a “Monetary Relief Class” consisting of all women employed at any Wal–Mart retail store in Region 43 at any time beginning on December 26, 1998 who have been, or may be, subject to discrimination in pay or promotion for certain job titles. (Compl.¶ 15.) ⁷ For...