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.