By Kevin McGowan
Aug. 25 — Four female former or current employees of Wal-Mart stores in Wisconsin lack triable claims the retailer discriminated against them based on sex in pay and promotions in violation of Title VII of the 1964 Civil Rights Act, the U.S. District Court for the Western District of Wisconsin ruled Aug. 22.
Granting summary judgment to Wal-Mart Stores Inc., Judge Barbara B. Crabb said the plaintiffs' evidence of statistical disparities between male and female employees' pay and promotion rates at some Wisconsin stores was insufficient to raise a Title VII disparate treatment or disparate impact claim.
The four Wal-Mart employees originally were part of a proposed nationwide sex discrimination suit against the retailer that the U.S. Supreme Court in 2011 ruled couldn't proceed as a class action under Federal Rules of Civil Procedure Rule 23 (Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, 112 FEP Cases 769 (2011).
The named plaintiffs thereafter filed a more limited sex discrimination class action against Wal-Mart, alleging unlawful discrimination in pay and promotions in the retailer's region that includes Wisconsin.
But the district court in 2013 dismissed the class claims on the grounds the employees couldn't show a common question of law or fact connecting their claims.
Female Wal-Mart employees who belonged to the decertified Dukes class haven't fared well in their subsequent regional lawsuits. In addition to the Wisconsin case, federal district courts in Texas, Tennessee, California and Florida similarly have denied class treatment.
The U.S. Court of Appeals for the Sixth Circuit is considering an appeal in the Tennessee case.
The disparate treatment claims of plaintiffs Sandra Ladik, Jackie Goebel, Marie Coggins and Sondra Steeb-Lamb fail because the employee either can't establish a prima facie case of sex bias or lacks evidence of pretext, Crabb wrote.
For example, Ladik's failure to identify the Wal-Mart managers responsible for pay decisions regarding her and a male comparator in another store or to produce evidence to rebut Wal-Mart's asserted reasons for a pay disparity mean no reasonable jury could find sex bias, the court said.
Similarly, Coggins produced no evidence to rebut Wal-Mart's nondiscriminatory reasons for promoting a male employee rather than her to support manager, the court said.
In general, the plaintiffs' failure to identify Wal-Mart decision-makers, offer context for alleged disparities in pay and promotions, or offer rebuttal evidence for the company's asserted reasons prevents them from raising jury issues of intentional sex discrimination, the court said.
The employees “make no effort to connect the wages that plaintiffs in particular or female employees in general received to any specific employment practice,” Judge Crabb wrote.
As for disparate impact, the court said regardless of what the plaintiffs' pay statistics purport to show, their argument “has an obvious and fatal problem.”
The employees “make no effort to connect the wages that plaintiffs in particular or female employees in general received to any specific employment practice,” Crabb wrote. “Plaintiffs refer generally to several policies that they say are discriminatory, but they fail to show any causal connection between those policies and women's level of pay.”
Wal-Mart therefore is entitled to summary judgment on disparate impact, the court said.
Cohen Milstein Sellers & Toll, the Impact Fund and Nichols Kaster PLLP represented the employees. Gibson Dunn & Crutcher LLP and Whyte Hirschboeck Dudek SC represented Wal-Mart.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/SANDRA_LADIK_JACKIE_GOEBEL_MARIE_COGGINS_and_SONDRA_STEEBLAMB_Pla.
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