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Category Archives: Dukes Case

Class Averaging

By Bryan Stillwagon The Supreme Court ruled today that Plaintiffs’ use of average donning and doffing times was proper and sufficient to affirm a $5.8 million judgment against Tyson Foods. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (Mar. 22, 2016). Plaintiffs (employees…
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2016-03-22T11:52:40-06:00

Posted on March 22, 2016

By Bryan Stillwagon

The Supreme Court ruled today that Plaintiffs’ use of average donning and doffing times was proper and sufficient to affirm a $5.8 million judgment against Tyson Foods. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (Mar. 22, 2016). Plaintiffs (employees in a pork processing plant in Iowa) relied at trial on an industrial relations expert’s calculations of the average time it took for employees to don and doff required protective gear. Tyson argued basing individual damages on the expert’s average failed to consider differences in the composition of the gear that may have altered the time each spent donning and doffing.

The Court disagreed. The employer’s failure to keep adequate time records created an “evidentiary gap” and the Plaintiffs had to fill that gap through the expert’s study. Tyson could have argued the representative evidence was statistically inadequate or based on implausible assumptions (under Daubert) but it did not challenge the methodology. The Court distinguished Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), where the Court ruled the individual class members could not rely on the experiences of other workers in different stores to establish discrimination against the class members generally. Here, Plaintiffs worked in the same Tyson facility, did similar work, and were paid under the same policy. Thus, the Court found, each class member could have introduced the expert’s study in his/her individual suit. For those reasons, the Court held that the representative evidence was a permissible means of showing individual hours worked.

Plaintiffs’ attorneys will now undoubtedly argue that the Court is signaling some backtracking from Dukes. The workers are similarly situated, for class or collective action purposes, in part because they are subject to the same employer policy. But crucial here is also the fact that there were no relevant individualized records for the Court’s use. “Trial by Formula” might not be dead, but the formula must be proper.

Posted in Class Action, Dukes Case, OHSA/Safety and Health | Tagged Class Action, collective action, donning and doffing, Supreme Court

Another Mini-Dukes Action Revived

By Andy Volin Current and former women employees of Wal-Mart recently won big in the Sixth Circuit in their mini-Dukes discrimination class action. The trial court had ruled that the class action was filed too late, but the court of…
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2015-07-09T15:48:38-06:00

Posted on July 9, 2015

By Andy Volin

Current and former women employees of Wal-Mart recently won big in the Sixth Circuit in their mini-Dukes discrimination class action. The trial court had ruled that the class action was filed too late, but the court of appeal revived the claim. Phipps v. Wal-Mart Stores, Inc., No. 13-6194 (6th Cir. July 7, 2015). For those keeping score on these mini-Dukes cases, this decision reaches the same result as the Fifth Circuit considering the same issue.

The issue was when does the statute of limitations begin to run again, after stopping (also known as tolling) while a nationwide class action was pending. The plaintiffs had been part of the proposed nationwide class suing Wal-Mart in the Dukes case when the Supreme Court rejected the nationwide class. (Click here for details on Dukes.) These plaintiffs then brought suit with a class of women who worked only in Alabama, Arkansas, Georgia, Mississippi and Tennessee. The trial court ruled this new class claim was filed too late, relying on a prior Sixth Circuit decision about tolling. Shortly after the trial court’s decision, however, the Sixth Circuit, in another case, suggested that it might apply an exception. The trial court permitted the women to appeal its ruling immediately, leading to their recent appellate victory. Now the trial court will determine whether class action certification is appropriate.

This recent decision is just the latest in 15 years of litigation that multiple federal courts continue to pass around like a hot potato. After the Supreme Court rejected the nationwide class, the original Dukes case was restricted to just women who worked in California. That class has been de-certified, and Wal-Mart will surely try to duplicate that result in the Sixth Circuit.

Posted in Class Action, Discrimination, Dukes Case | Tagged Dukes Case, Sex Discrimination, Sixth Circuit, Statute of Limitations, Wal-Mart

Texas Mini-Dukes Case Revived

By Andy Volin Former women employees asserting a mini-Dukes class action discrimination claims against Wal-Mart in Texas recently had a big win in the Fifth Circuit. That court overturned a ruling that had dismissed their class action as filed too…
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2014-04-07T10:00:19-06:00

Posted on April 7, 2014

By Andy Volin

Former women employees asserting a mini-Dukes class action discrimination claims against Wal-Mart in Texas recently had a big win in the Fifth Circuit. That court overturned a ruling that had dismissed their class action as filed too late. This recent decision is just the latest in 14 years of litigation that multiple federal courts continue to pass around like a hot potato. The issue was when did the statute of limitations begin to run again, after it stopped running during the Dukes case. Wal-Mart argued it resumed after the 2010 Ninth Circuit ruling in Dukes that former employees like the Texas group could not be part of a national class, and the Texas district court had agreed with Wal-Mart. The women relied on a 2011 deadline from the California district court after the Supreme Court’s decision in the case that year. The Fifth Circuit sided with them, because while the 2010 ruling had kicked them out of the class, it had also indicated the district court could put the former employees in a separate class of their own. That made all the difference, according to the decision, and so the Texas women can resume their fight. Odle v. Wal-Mart Stores, Inc., No. 13-10037 (5th Cir. Mar. 31, 2014).

Posted in Discrimination, Dukes Case | Tagged Dukes, fifth circuit, Gender Discrimination, Wal-Mart

Wal-Mart Plaintiffs Seek to Change the Rules

By Andy Volin After the Supreme Court rejected a nationwide class action by female Wal-Mart workers in the 2011 Dukes case, the plaintiffs filed smaller class actions in different parts of the country. Wal-Mart has persuaded several of the trial…
Read More

2013-12-05T21:28:09-07:00

Posted on December 5, 2013

By Andy Volin

After the Supreme Court rejected a nationwide class action by female Wal-Mart workers in the 2011 Dukes case, the plaintiffs filed smaller class actions in different parts of the country. Wal-Mart has persuaded several of the trial courts that these “second chance” class actions were filed too late. The courts have relied on a long standing rule, adopted by many federal appellate courts, that one class action does not pause the statute of limitations for a possible second class action.

Naturally, the plaintiffs want to overturn this “no-piggybacking” rule; it is blocking their class actions. Recently, the plaintiffs persuaded a district court to let them file an immediate appeal on the lateness issue. The next question is whether the appellate court will agree to decide the issue now. We will keep you posted. Love v. Wal-Mart Stores, Inc., No. 12-cv-61959-RNS (S.D. Fla. Dec. 3, 2013).

Posted in Dukes Case | Tagged 2011 dukes case, Class Action, love v. wal-mart, Wal-Mart, Walmart | Leave a reply | Leave a reply | Leave a reply | Leave a reply

Avoiding Dukes

By Andy Volin Female employees at national employers claim systemic pay discrimination in a variety of settings. The most famous example is the Supreme Court’s 2011 decision in Wal-Mart Stores, Inc. v. Dukes. There, the Supreme Court ruled that a…
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2013-10-22T20:00:46-06:00

Posted on October 22, 2013

By Andy Volin

Female employees at national employers claim systemic pay discrimination in a variety of settings. The most famous example is the Supreme Court’s 2011 decision in Wal-Mart Stores, Inc. v. Dukes. There, the Supreme Court ruled that a nationwide class action for female workers was improper because individual stores had discretion to set wages and so, there was no common national policy upon which to base a nationwide class action.

Female store managers at Family Dollar Stores persuaded the Fourth Circuit that their case is different from Dukes. Rather than focusing on store-level compensation decisions, they claim decisions about their salaries are made at the national level. E.g. national policies set minimum and maximum salary ranges and different salary structures for promotions as opposed to external hires. High level employees, e.g. Vice Presidents and Regional Managers, exercise discretion to decide salaries within the national requirements. The female store managers allege this high level discretion is exercised in a common way and with common instructions that favor men at their expense.

Although the female store managers won this battle, the court’s decision was a narrow procedural ruling, and they may not win the war. The Fourth Circuit allowed the plaintiffs to amend the complaint, but the ruling does not mean that the case will ultimately be granted nationwide class status. Scott v. Family Dollar Stores, Inc., No. 12-1610 (4th Cir. Oct. 16, 2013).

Posted in Class Action, Discrimination, Dukes Case | Tagged Class Action, Employee Relations, fourth circuit, Gender Discrimination, Wal-Mart | Leave a reply | Leave a reply | Leave a reply | Leave a reply

Wal-Mart Defeats Another Mini-Dukes Class Action

By Andy Volin A federal court in Florida has dismissed class action gender discrimination claims against Wal-Mart, ruling that the class action allegations are barred by the statute of limitations. After the Supreme Court’s 2011 ruling in Wal-Mart Stores, Inc….
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2013-09-25T20:59:38-06:00

Posted on September 25, 2013

By Andy Volin

A federal court in Florida has dismissed class action gender discrimination claims against Wal-Mart, ruling that the class action allegations are barred by the statute of limitations. After the Supreme Court’s 2011 ruling in Wal-Mart Stores, Inc. v. Dukes that a nationwide class action could not be maintained because there was no national policy that impacted the female workers , the employees filed the Florida case (and several others like it around the country) as a regional class action. Wal-Mart has successfully argued in several of the mini-Dukes cases that the Dukes case only tolled the statute of limitations for the individual claims, and not the class action allegations, so that these “second try” class actions have been filed too late. Love v. Wal-Mart Stores, Inc., No. 12-61959-RNS (S.D. Fla. Sept. 23, 2013).

Posted in Discrimination, Dukes Case | Tagged Class Actions, Discrimination, Dukes, Sex Discrimination, Wal-Mart | Leave a reply | Leave a reply | Leave a reply | Leave a reply

Dukes v. Wal-Mart: Second Verse Same as the First

By Bill Wright A federal District Court has rejected the Plaintiffs’ “retooled class definition” in the proposed sex discrimination class action against Wal-Mart. Dukes, et al., v. Wal-Mart Stores, Inc., No. CV 01-02252 CRB (N.D. CA Aug. 2, 2013). In…
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2013-08-07T18:52:08-06:00

Posted on August 7, 2013

By Bill Wright

A federal District Court has rejected the Plaintiffs’ “retooled class definition” in the proposed sex discrimination class action against Wal-Mart. Dukes, et al., v. Wal-Mart Stores, Inc., No. CV 01-02252 CRB (N.D. CA Aug. 2, 2013). In 2011, the Supreme Court ruled that the Plaintiffs’ old proposed definition (which included a nation-wide class of 1.5 million women) lacked any questions with answers common to the class and that class-action treatment was not appropriate. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). Plaintiffs tried again with a new proposed class: 150,000 women in 3 Wal-Mart Regions in California. Plaintiffs alleged both disparate treatment and disparate impact.

This second class definition also failed. Plaintiffs offered statistics, but the statistics showed no significant disparate treatment in promotion decisions in more than half of the relevant districts and no statistically significant store-level disparities at all. At least 74% of stores showed no statistically significant disparity in pay for each year in the relevant time period. Plaintiffs also tried to prove that key Wal-Mart managers shared a culture, reinforced through corporate training, of discrimination against women. The evidence amounted to anecdotes about discriminatory attitudes held by “2 of 4 Regional Vice Presidents, 1 of 7 Regional Personnel Managers, 2 of 49 District Managers and 7 of 400 Store Managers.” This was insufficient to establish a general policy of discrimination suitable for class-action treatment.

On the disparate impact claim, Plaintiffs argued that Wal-Mart had a policy of promoting only hand-selected internal candidates and using so many subjective criteria that managers were forced to fall back and rely on their cultural training – to the disadvantage of women. But Plaintiffs were unable to present evidence of a class-wide policy of hand selecting candidates and the long list of subjective criteria to be used in promotion decisions only amounted to delegating discretion to local managers. As the Supreme Court ruled 2 years ago, this was not a common policy, but the lack of a common policy.

Some bad ideas are still bad at 1/10th the size.

Posted in Discrimination, Dukes Case, Human Resources/Employee Relations | Tagged Class Action, Dukes Case, Gender Discrimination, hiring policies, Sex Discrimination, Wal-Mart | Leave a reply | Leave a reply | Leave a reply | Leave a reply

Wal-Mart Wins Again in a Regional Class Action

By Andy Volin After the Supreme Court rejected a nation-wide class action in 2011, female workers have sued Wal-Mart in a number of smaller class actions around the country. Wal-Mart has successfully argued that several of these new cases are…
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2013-05-31T22:39:58-06:00

Posted on May 31, 2013

By Andy Volin

After the Supreme Court rejected a nation-wide class action in 2011, female workers have sued Wal-Mart in a number of smaller class actions around the country. Wal-Mart has successfully argued that several of these new cases are untimely. In a new decision, a federal court dismissed the regional action filed in Wisconsin not as untimely, but because the allegations were essentially the same allegations that the Supreme Court rejected in 2011 . Ladik v.Wal-Mart Stores, Inc., No. 13-CV-123-bbc (W.D. Wisc. May 24, 2013). Like the nation-wide action, the Wisconsin class action included claims that Wal-Mart: (1) had no formal system for identifying workers for management training; (2) did not publicize openings and disqualified female applicants; (3) permitted excessive subjective decision making for management openings; (4) displayed discriminatory attitudes towards the idea of women in management; and (5) paid women less than men. The Court noted that the regional Wal-Mart policies being attacked were similar to the national policies used in the nation-wide action. The Supreme Court ruled the nation-wide policies could not be the basis for a class action, and the same reasoning applied here. The scale of the problem was smaller, because the mid-western case was only regional rather than national, but the claims based on the regional policies required individualized, rather than common, factual analysis.

Wal-Mart continues to come out ahead on the regional class actions, but the courts encourage the plaintiffs by acknowledging that the old corporate policies seem problematic under Title VII. We might yet see new individual claims against the world’s largest private employer.

Posted in Class Action, Discrimination, Dukes Case, Human Resources/Employee Relations | Tagged Class Action, Gender Discrimination, Sex Discrimination, Supreme Court, Title VII, Wal-Mart | Leave a reply | Leave a reply | Leave a reply | Leave a reply

Fifth Mini-Dukes Class Action Brought Against Wal-Mart

By Andy Volin A fifth regional class action gender discrimination case has been filed against Wal-Mart. This latest case, brought in Wisconsin, claims Wal-Mart discriminates against women in pay and promotions at the store level in Illinois, Indiana, Michigan, and…
Read More

2013-02-28T20:28:18-07:00

Posted on February 28, 2013

By Andy Volin

A fifth regional class action gender discrimination case has been filed against Wal-Mart. This latest case, brought in Wisconsin, claims Wal-Mart discriminates against women in pay and promotions at the store level in Illinois, Indiana, Michigan, and Wisconsin. It joins regional cases already pending in California, Texas, Tennessee, and Florida.

Wal-Mart has had some success in the regional cases in Texas and Tennessee, persuading courts there that the class action claims are barred by the statute of limitations. The critical legal issue is whether the nationwide class in Dukes “tolled,” or stopped, the statute of limitations, and this issue is the subject of varying federal appellate rules in different parts of the country. The employees in the new Wisconsin action believe that a favorable rule in that part of the country will allow their class action allegations to be considered timely. Ladik v. Wal-Mart Stores, Inc., No. 3:13-cv-00123-bbc (W.D. Wisc. Feb. 20, 2013).

Posted in Discrimination, Dukes Case | Tagged Class Actions, Dukes, Sex Discrimination, Wal-Mart | Leave a reply | Leave a reply | Leave a reply | Leave a reply

Second Mini-Dukes Class Action Is Untimely

By Andy Volin Although the Supreme Court rejected a nationwide sex discrimination class action in 2011, the female employees (and their lawyers) did not end their long war with against Wal-Mart. The plaintiffs narrowed the geographic scope of the original…
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2013-02-26T15:46:38-07:00

Posted on February 26, 2013

By Andy Volin

Although the Supreme Court rejected a nationwide sex discrimination class action in 2011, the female employees (and their lawyers) did not end their long war with against Wal-Mart. The plaintiffs narrowed the geographic scope of the original case to California and filed three new regional class actions around the country. Wal-Mart has contended the new regional class actions are barred by the statute of limitations, while the plaintiffs argue the statute of limitations was tolled since 2001 when they filed the original nationwide case.

Last October, Wal-Mart won this argument in the regional case brought in Texas. This week, the court in the regional case brought in Tennessee also, reluctantly, agreed with Walmart. Phipps v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 22684 (M.D. Tenn. Feb. 20, 2013). Binding appellate case law prevented the statute of limitations from being tolled during the pendency of the nationwide class for these new, smaller class actions. The Florida court handling the third regional class action has not yet decided the timeliness issue.

The Texas case will go immediately to the court of appeals on this issue, but until then, these latest rulings are good news for Wal-Mart.

Posted in Class Action, Dukes Case | Tagged Class Action, Dukes, Statute of Limitations, Texas, Third Regional Class, Wal-Mart, Walmart | Leave a reply | Leave a reply | Leave a reply | Leave a reply
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