14th Year for Wal-Mart Sex Bias Case

     SAN FRANCISCO (CN) – After 14 years, an employee discrimination case against Wal-Mart “lives on to fight another day,” a federal judge ruled, granting Wal-Mart only partial summary judgment.
     Betty Dukes, Patricia Surgeson, Edith Arana, Deborah Gunter and Christine Kwapnoski sued Wal-Mart in 2001 under Title VII of the Civil Rights Act, claiming the world’s largest retailer has a “pattern and practice of gender discrimination in compensation and promotion,” and that its policies “had a disparate impact not justified by business necessity on its female employees.” Those quotes are from the Oct. 27, 2011, fourth amended complaint.
     The San Francisco Federal Court and California Supreme Court denied class certification, leaving individual Title VII claims brought by Surgeson, Arana and Gunter, according to Wal-Mart’s April 2015 motion for summary judgment.
     That document claims that “After more than 13 years of litigation, each of these three plaintiffs now must support her claim against Wal-Mart with specific evidence of unlawful activity. But there is no such evidence.”
     Wal-Mart argued that many of the allegations are time-barred, barred by failure to exhaust administrative remedies and because they fail to show discrimination.
     It claimed that Surgeson’s claims fail because she offered no evidence that Wal-Mart’s actions “had anything to do with her sex.”
     “Her promotion allegations fail because the only hourly positions she identifies were awarded to female employees, and because she did not apply to and was not qualified for the Manager-in-Training program,” Wal-Mart argued.
     “Her pay allegations fail because she cannot identify a similarly situated male who was paid more. Her retaliation allegations fail because they are procedurally defective and lack merit.”
     Wal-Mart made similar arguments regarding Arana and Gunter.
     U.S. District Judge Charles Breyer on June 10 found that some of the plaintiffs’ claims are time-barred because they are not protected by the “piggyback rule” allowing them to ride on the Equal Employment Opportunity Commission charge filed by a former plaintiff in the case, Stephanie Odle.
     Breyer ruled that the plaintiffs’ pre-Dec. 26, 1998 allegations “fall outside the 300-day range of Odle’s Oct. 2, 1999 EEOC charge, and therefore are time barred.”
     Surgeson’s retaliation claim is also time-barred, in part, because she “did not allege retaliation in her EEOC complaint even under the most liberal reading, and thus did not administratively exhaust her claim” and she did not “respond to Wal-Mart’s motion for summary judgment on any retaliation claims and thus can be deemed to have waived any objections.”
     Breyer granted summary judgment on Arana’s race and pay claims. and Gunter’s pay and hostile work environment claims.
     “As to every other argument by Wal-Mart in its motions for summary judgment, the court carefully considered the factual and legal bases advanced in support thereof and found them lacking,” Breyer concluded. “This case, 14 years and counting, lives to fight another day.”

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