Robinson v. Sears, Roebuck and Co.

• Citation: 111 F.Supp.2d 1101
• Decision Date: 03 July 2000
• Docket Number: No. 4:98CV00739 SWW.,4:98CV00739 SWW.
• Parties: Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn; David Fitzpatrick; Kirestin J. Harris; Janice L. Medley; Willie L. Toombs, Jr.; Kahlil Watkins; and Tamera L. Williams, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. SEARS, ROEBUCK AND CO., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

111 F.Supp.2d 1101

Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn; David Fitzpatrick; Kirestin J. Harris; Janice L. Medley; Willie L. Toombs, Jr.; Kahlil Watkins; and Tamera L. Williams, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. SEARS, ROEBUCK AND CO., Defendant.

No. 4:98CV00739 SWW.

United States District Court, E.D. Arkansas, Western Division.

July 3, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Daniel R. Carter, Holly E. Isaac, James & Carter, Little Rock, AR, for plaintiff.

John M. Dickman, Peggy A. Davis, Winston & Strawn, Chicago, IL, for defendant.

MEMORANDUM AND ORDER

SUSAN WEBBER WRIGHT, Chief Judge.

This is a case of alleged employment discrimination and is brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, and the Arkansas Civil Rights Act of 1993 ("ACRA"), Ark.Code Ann. §§ 16-123-101 et seq. The nine named plaintiffs in this matter, eight of whom are African-American and one who is Asian-American, are current and former employees of the store operated by defendant, Sears, Roebuck and Company ("Sears"), at 600 South University in Little Rock, Arkansas ("University Store"). Plaintiffs allege disparate treatment and disparate impact based on race. The following motions are before the Court: (1) motion of Sears for summary judgment with respect to plaintiffs' individual claims of discrimination [doc. # 134]; and (2) motion of plaintiffs for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure [doc. # 115]. Having carefully considered the matter, the Court denies Sears' motion for summary judgment and grants plaintiffs' motion for class certification as herein modified.

I. Background

The plaintiffs bringing this lawsuit are as follows: (1) Eurlene Robinson, an African-American female formerly employed at Sears' University Store; (2) Rashad L. Atkinson, an African-American Male currently employed at Sears' University Store; (3) Carla Droughn, an African-American female currently employed at Sears' University Store; (4) David Fitzpatrick, an Asian-American male formerly employed at Sears' University Store; (5) Kirestin J. Harris, an African-American female currently employed at Sears' University Store; (6) Janice L. Medley, an African-American female currently employed at Sears' University Store; (7) Willie L. Toombs, Jr., an African-American male formerly employed at Sears' University Store; (8) Kahlil Watkins, an African-American male formerly employed at Sears' University Store; and (9) Tamera L. Williams, an African-American female currently employed at Sears' University Store. See Pl.s' Mot. for Class Cert. (Ex. 2-10). All of the plaintiffs worked as hourly, non-commissioned sales associates in the Men's Department at Sears' University Store. Id.

This lawsuit stems from a decision by Sears to implement a store wide increase in starting pay in August 1998. Def.s' St. of Mat. Facts at ¶ 15; Pl.s' St. of Undisp. Facts at ¶ 12. In 1995, the designated starting hourly rate of pay for newly hired non-commissioned sales associates was $5.00 per hour. Def.s' St. of Mat. Facts at ¶ 15. In March 1996, the designated starting hourly rate was increased to 5.50 per hour. Id. Effective August 2, 1998, the designated starting hourly rate of pay was increased to $6.25 per hour. Id. According to Sears, newly hired noncommissioned sales associates are "generally" paid the designated starting hourly rate of pay. Id.

Plaintiffs state that prior to the effective date of the store wide increase, they learned that certain of their White counterparts were making a higher hourly rate. Compl. at ¶ 32. Upon discovering this apparent disparity in pay, each plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), with plaintiffs Robinson, Atkinson, Droughn, Harris, Medley, Toombs, Watkins, and Williams essentially claiming in their respective EEOC charges that they are being paid less than their White counterparts because of their race, Black, see Compl. (Ex. 1-3, 5-9), while plaintiff Fitzpatrick likewise claimed in his EEOC charge that he is being paid less than White employees because of his race, Asian. Id. (Ex. 4).

Following receipt of their right to sue letters from the EEOC, plaintiffs filed this lawsuit on November 4, 1998, on behalf of themselves and all other persons similarly situated. Plaintiffs essentially claim that they and the putative class received less pay than their White counterparts at the Sears University Store because of Sears' subjective and discriminatory decision making process with respect to placement, transfer, and promotion. Compl. at ¶¶ 44, 49. Plaintiffs seek "a declaratory judgment as to plaintiffs' rights and for a permanent injunction, restraining defendant from maintaining a policy, practice, custom or usage of discriminating against plaintiffs and other persons based upon their race with respect to compensation, terms, promotions, privileges, and conditions of employment and in ways that deprive plaintiffs and other persons in the class of equal employment opportunities and otherwise adversely affect their status as employees because of race." Id. at ¶ 10. Plaintiffs also seek "restitution to plaintiffs and the class they represent of all rights, privileges, benefits, and income that would have been and should be received by them but for defendant's unlawful and discriminatory practices." Id.

Following extensive discovery and several delays occasioned by the discovery process, plaintiffs, on May 1, 2000, filed their motion for class certification.¹ Plaintiffs seek to certify a class of 932 current and former minority employees of Sears' University Store who allegedly "have been discriminated against by Sears' employment practices in hiring/initial job assignment and placement, pay and promotion." Mot. for Class Cert. at ¶ 1; Pl.s' Br. in Supp. of Mot. for Class Cert. at 2. Plaintiffs state that certification is necessary to address the problem of racial discrimination which permeates each department of the Sears University Store. Pl.s' Br. in Supp. of Mot. for Class Cert. at 1. They state that Sears treats minorities differently in every aspect of employment which affects pay, and that each named plaintiff complained about the pay they received vis a vis their White counterparts. Id. Plaintiffs state that their pay, like that of the putative class, is affected by hiring, placement, and promotion decisions made by the core White management group at the University Store. Id.; Mot. for Class Cert. at ¶ 3. They state that minority employees' pay is adversely affected by management's decisions regarding placement, initial salary, advancement, and promotion, and that like the named plaintiffs, minority employees are assigned to low pay departments, disproportionately assigned to and kept in part-time jobs, and denied the opportunity to advance to full-time status, jobs with higher earning potential, such as the Big Ticket Departments and Brand Central, and denied management positions. Mot. for Class Cert. at ¶ 4; Pl.s' Br. in Supp. of Mot. for Class Cert. at 1. Plaintiffs state that minorities are not assigned to the predominantly White commissioned sales positions at Sears which pay more than the positions to which minorities are typically assigned, and that once minorities are in their initial low pay part-time jobs, they are as a class passed over for promotion to full-time positions in favor of non-minority persons. Pl.s' Br. in Supp. of Mot. for Class Cert. at 1. They state that minorities are denied or are not given transfers to higher paying departments, and that as a class, they are paid less than their White counterparts. Id. at 1-2.

Plaintiffs state that evidentiary support which meets the requirements of Fed. R.Civ.P. 23 is found in the June 13, 2000 statistical analysis of Martin Shapiro, Ph. D., a labor audit performed by the United States Department of Labor ("DOL"), and twenty affidavits of current and former Sears employees. Id. at 2; Pl.s' Reply Br. Re. Class Cert. at 11-12. They state that a common theme runs throughout this evidence, that theme being that minorities are discriminated against with respect to their initial job assignments and placement, pay, and promotions. Pl.s' Br. in Supp. of Mot. for Class Cert. at 2. Plaintiffs state that the DOL found that minorities were under-utilized in higher pay departments and over-utilized in lower pay departments, and that Dr. Shapiro's analysis makes similar, more detailed findings, which show the reason for the discrepancy in pay, finding that minorities are discriminated against in all aspects of initial assignment and subsequent movement. Pl.s' Reply Br. Re. Class Cert. at 11-12.² In this respect, plaintiffs assert that the report prepared by Sears' expert, Dr. Finis Welch, shows a statistically significant standard deviation of 6.69 and 6.24 respectively for differences in pay between non-White and White employees' pay for all sales associates, and a statistically significant disparity of 7.83 and 7.29 respectively for the time periods analyzed for all Sears' University Store employees. Id. at 12 (citing Def.'s Ex. 1).³ They go on to state that the evidence submitted via the affidavits of current and former employees, who worked or are working at Sears in fourteen different departments, are real life experiences of the common practice of discrimination throughout the entire University Store. Br. in Supp. of Mot. for Class Cert. at 2.

Plaintiffs state that the putative class consisting of 932 current and former minority employees of which certification is sought is made up of persons who have been discriminated against by Sears' employment practices in hiring/initial job assignment and placement, pay, and promotion, and that these persons' claims against Sears are typical of those of...