Judge Sinks Class in Wal-Mart Gender Bias Suit

     (CN) – A heavily whittled lawsuit accusing Wal-Mart of gender discrimination is simply “a scaled-down version of the same case” rejected by the Supreme Court two years ago, a federal judge ruled, refusing to certify the smaller class action.
     U.S. District Judge Charles Breyer in San Francisco denied class certification for a lawsuit led by Betty Dukes, saying the “newly proposed class continues to suffer from the problems that foreclosed certification of a nationwide class.”
     Breyer was referring to the Supreme Court’s 2011 decision to disband a nationwide class of 1.5 million women who worked for the retail giant. A federal judge had initially certified the class, making it the largest civil rights case in U.S. history.
     The women claimed they were paid less and received fewer promotions than men in comparable positions.
     The high court voted 5-4 to disband the class, ruling that the women had not established that “all their claims can be productively litigated at once.”
     On remand, the plaintiffs scaled back their number by a factor of 10, proposing a class of about 150,000 women who worked in what they called Wal-Mart’s “California regions.” The amended complaint identified a core group of upper-level managers who allegedly influenced the decisions of lower-level managers.
     Breyer rejected Wal-Mart’s motion to strike the class allegations last December, but on Friday he said those claims failed to overcome the bar set by the Supreme Court.
     “Plaintiffs’ evidence falls short on two levels: even the smaller group is quite large, and plaintiffs’ evidence of bias among their proposed group of submanagers remains too weak to satisfy their burden of providing ‘significant proof’ of a general policy of discrimination,” Breyer wrote.
     He said “two themes emerge” in the workers’ renewed bid for class certification:
     “First, though they have cut down the raw number of proposed class members significantly, plaintiffs continue to challenge four different kinds of decisions across hundreds of decision makers, inviting failures of proof at multiple points in each region,” Breyer wrote.
     “Second, though plaintiffs insist that they have presented an entirely different case from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the same case with new labels on old arguments.”
     Though the plaintiffs “have amassed substantial evidence of discrimination against women,” Breyer wrote, the proposed class “suffers from the same problems identified by the Supreme Court, but on a somewhat smaller scale.”
     “Indeed, it is revealing that there is no particular logic to the precise scope of the class plaintiffs now propose,” he explained. “They picked three corporate regions covering a smaller area than the rejected national class, but nothing in plaintiffs’ evidence shows that those three regions are actually different from any other Wal-Mart regions along any relevant dimension. Rather than identify an employment practice and define a class around it, plaintiffs continue to challenge the discretionary decisions of hundreds of decision makers, while arbitrarily confining their proposed class to corporate regions that include stores in California, among other states.”
     Friday’s ruling means each plaintiff must pursue her claims against Wal-Mart individually.
     The judge, Charles Breyer, is the younger brother of Supreme Court Justice Stephen Breyer.

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