EEOC charge is properly subject to judicial notice 18 because it is a “public record[ ] whose accuracy is not in dispute”
How later courts described this case
- EEOC charge is properly subject to judicial notice 18 because it is a “public record[ ] whose accuracy is not in dispute”
Written by the judges who cited it.
The opinion
1
2
3
4
5 IN THE UNITED STATES DISTRICT COURT
6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8 CLAUDIA RENATI, et al., Case No. 19-cv-02525-CRB
9 Plaintiffs,
ORDER GRANTING MOTION TO
10 v. SEVER, DENYING IN PART AND
GRANTING IN PART MOTION TO
11 WAL-MART STORES, INC., DISMISS, AND DENYING AS MOOT
MOTION TO STAY DISCOVERY
12 Defendant.
13 This case is the latest iteration of a Title VII suit alleging that Wal-Mart Stores, Inc.’s
14 (“Wal-Mart”) promotion and pay policies discriminate against women. Originally brought in
15 2001 as a class action, these claims have now been heard by the Northern District of California (on
16 two previous occasions), an en banc panel of the Ninth Circuit, and the Supreme Court. Eighteen
17 members of the original nationwide class (collectively, “Plaintiffs”) have now filed suit as
18 individuals, alleging disparate treatment and impact. Wal-Mart has moved to sever, dismiss the
19 Complaint in part, and stay discovery.
20
I. BACKGROUND
21 A. Procedural History
22
This case dates back to June 2001, when current and former female Wal-Mart employees
23
brought suit on behalf of a nationwide class alleging widespread gender discrimination. Judge
24
Jenkins certified a nationwide class, which the Ninth Circuit, sitting en banc, affirmed in large
25
26 part. The Supreme Court reversed on June 20, 2011. Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
27 338, 347–48, 359–60 (2011).
proposed classes to current and former female Wal-Mart employees who had been subjected to
1
2 gender discrimination within four regions largely based in California. Dukes v. Wal-Mart Stores,
3 Inc., 964 F. Supp. 2d 1115, 1117 (N.D. Cal. 2013). This Court denied certification, finding that
4 the narrowed scope did not cure the problems that had foreclosed certification of the nationwide
5
class. Id. at 1118.
6
This case followed. Plaintiffs are eighteen of the would-be class members from Dukes.
7
Compl. ¶ 5 (dkt. 1). On May 10, 2019, they filed suit in their individual capacities, alleging pay
8
and promotional discrimination on the basis of gender. See generally id. The case was initially
9
10 before Judge Koh, but was transferred to this Court because it was related to Dukes. See Order
11 Relating Cases (dkt. 32).
12
B. Factual Allegations
13
Plaintiffs, like the class in Dukes, allege Wal-Mart has violated Title VII of the Civil
14
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., by discriminating against them on the basis of
15
gender. Compl. ¶ 1. All eighteen plaintiffs are current or former female Wal-Mart employees
16
who have worked in Wal-Mart Regions 5, 16, or 19.1 Id. ¶¶ 11–28. They assert claims for pay
17
and promotional discrimination in all three regions, based on both disparate treatment and
18
disparate impact. Id. ¶¶ 313–91.
19
The first part of the Complaint alleges that generally applicable pay and promotional
20
policies “adverse[ly] impacted[ed] female employees in all three regions.” Id. ¶¶ 98, 119.
21
Plaintiffs allege that various elements of Wal-Mart’s pay policies had an adverse impact on
22
women, “including . . . failure to require managers to base pay decisions for individual employees
23
on job related criteria[,] . . . setting pay adjustments based on the associate’s prior pay, . . . and
24
[the] 2004 pay class restructuring.” Id. ¶¶ 98. Plaintiffs also challenge a 2005 policy tying pay to
25
26
27
1 Wal-Mart’s operations are divided into thirty-five Wal-Mart Regions and five Sam’s Club
1 “credits” awarded on the basis of past experience, and a 2006 policy implementing caps on the pay
2 permitted for different classes of jobs. Id. ¶¶ 62–63. The Complaint alleges, in some detail,
3 statistically significant differences in pay for men and women in Regions 16 and 19 in 2001 and
4 2002. Id. ¶ 75.
5 Plaintiffs also allege numerous promotional policies with an adverse impact on women,
6 including the lack of formal application processes or job postings for certain management
7 positions, and the failure to “require managers to base promotion decisions . . . on job related
8 criteria.” See, e.g., id. ¶¶ 100, 101, 119. Plaintiffs allege that in each relevant Region Wal-Mart
9 promoted men and women at significantly different rates, and “had a lower percentage of female
10 managers than its largest competitors.” Id. ¶¶ 107–09.
11 The second part of the complaint details allegations of discriminatory treatment unique to
12 each plaintiff. These allegations describe specific incidents when plaintiffs were passed over for
13 promotions that went to less qualified men or learned that similarly-situated male employees made
14 more than they did. See generally id. ¶¶ 132–312. In some cases Plaintiffs were explicitly told
15 that this discriminatory treatment was motivated by gender. See, e.g., id. ¶¶ 197 (when plaintiff
16 Mavi Alulquoy inquired about promotional opportunities, managers told her women should “have
17 babies instead of lifting crates”), 271 (when Darla Harper complained about a pay disparity, her
18 manager told her “this is why you can’t be in management” and that “you females are too
19 emotional”).
20 All Plaintiffs allege they “have exhausted their administrative remedies and complied with
21 the statutory prerequisites of Title VII by timely filing charges of discrimination.” Id. ¶ 7.
22 Wal-Mart has moved to sever Plaintiffs’ claims, Mot. to Sever (dkt. 17), dismiss the
23 Complaint in part, MTD (dkt. 19), and for a stay of discovery pending resolution of the motion to
24 dismiss, Mot. for Stay (dkt 18).
25 II. LEGAL STANDARDS
26
A. Motion to Sever
27
“[J]oinder is proper if (1) the plaintiffs asserted a right to relief arising out of the same
1 transaction and occurrence and (2) some question of law or fact common to all the plaintiffs will
2 arise in the action.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000) (emphasis
3 in original); see also Fed. R. Civ. P. 20(a)(1). The requirements for joinder are “construed
4 liberally in order to promote trial convenience and . . . prevent[] multiple lawsuits.” League to
5 Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977). Even if
6 Rule 20’s requirements are satisfied, courts must also consider whether joinder “would comport
7 with fundamental principles of fairness or would result in prejudice to either side.” Coleman, 232
8 F.3d at 1296 (internal quotation marks omitted). If plaintiffs have been misjoined, their claims
9 may be severed “as long as no substantial right will be prejudiced.” Coughlin v. Rogers, 130 F.3d
10 1348, 1351 (9th Cir. 1997); see Fed. R. Civ. P. 21.
11 B. Motion to Dismiss in Part
12
13 A complaint that fails to state a claim upon which relief may be granted must be dismissed
14 under Federal Rule of Civil Procedure 12(b)(6). A complaint fails to state a claim when it asserts
15 no cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory.
16 Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011). In deciding the motion to
17 dismiss, the Court “must presume all factual allegations of the complaint to be true and draw all
18 reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d
19 556, 561 (9th Cir. 1987).
20 “A plaintiff’s obligation to provide the grounds of his entitlement to relief requires more
21 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
22 do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks
23 omitted). A complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
24 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). A claim is plausible “when the
25 plaintiff pleads factual content that allows the court to draw the reasonable inference that the
26 defendant is liable for the misconduct alleged.” Id. In determining whether this standard is met,
27 “courts must consider the complaint in its entirety, as well as other sources courts ordinarily
1 into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs,
2 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
3 If a court does dismiss a complaint for failure to state a claim, it should “freely give leave
4 [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court nevertheless has
5 discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of
6 the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
7 prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of
8 amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (citing
9 Foman v. Davis, 371 U.S. 178, 182 (1962)).
10 C. Motion to Stay Discovery
11
Federal Rule of Civil Procedure 26(c) allows courts to stay discovery “for good cause.”
12
The Court has “wide discretion in controlling discovery.” Little v. City of Seattle, 863 F.2d 681,
13
685 (9th Cir. 2008).
14
III. DISCUSSION
15
16 A. Motion to Sever
17 Severance is appropriate because Plaintiffs’ claims do not arise out of the same transaction
18 or occurrence. Plaintiffs argue that the doctrine of judicial estoppel bars Wal-Mart from
19 requesting severance, see Mot. to Sever Opp’n at 10–11 (dkt. 38), but this argument misreads
20 Wal-Mart’s earlier representations. Plaintiffs also argue that, “[a]t a minimum,” this Court should
21 postpone deciding Wal-Mart’s motion until after the parties complete discovery. Id. at 6, 16–17.
22 But the Court is not obligated to postpone deciding Wal-Mart’s motion, and the parties can avoid
23 duplicative discovery even after severance.
24
1. Judicial Estoppel
25
Plaintiffs argue that Wal-Mart is judicially estopped from moving to sever their claims,
26
because its motion to transfer this case to this Court acknowledged that Plaintiffs’ claims arose
27
from a common occurrence and share common questions of law and fact. Opp’n to Severance at
1 10–11. But Wal-Mart is correct that its motion to transfer made no such representations. Mot. to
2 Sever Reply at 1 (dkt. 44).
3 The doctrine of judicial estoppel precludes a party from asserting a claim and “later
4 seeking an advantage by taking a clearly inconsistent position.” Hamilton v. State Farm Fire &
5 Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). The doctrine “prevents a party from prevailing in one
6 phase of a case on an argument and then relying on a contradictory argument to prevail in another
7 phase.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Pegram v. Herdrich, 530
8 U.S. 211, 227 n.8 (2000)). Although courts do not use a single test to decide whether the doctrine
9 applies, relevant considerations include whether a party’s positions are “clearly inconsistent” with
10 one another, whether a court has accepted a party’s initial position, and whether the party would
11 “derive an unfair advantage . . . if not estopped.” Id. at 750–51 (internal quotation marks omitted).
12 Judicial estoppel is inapplicable here. Wal-Mart’s motion to transfer this case is not
13 “clearly inconsistent” with its present motion to sever Plantiffs’ claims. See Mot. to Transfer at 4–
14 7 (dkt. 16); Mot. to Sever at 8–12. Wal-Mart sought to transfer this case because it “is related to
15 the previously-filed Dukes class action,” which this Court presided over. Mot. to Transfer at 4.
16 Wal-Mart argued that transferring the case would prevent unnecessary labor and expense because
17 this Court “is intimately familiar with the factual allegations made in Plaintiffs’ complaint, many
18 of Defendant’s defenses, as well as procedural rulings that will impact the resolution of this case.”
19 Id. Although Wal-Mart argued in its motion to transfer that Plaintiffs’ claims were related to the
20 Dukes class action, Wal-Mart did not argue that Plaintiffs’ claims were related to each other. See
21 id. at 4–7; Mot. to Sever Reply at 1–2.
22
2. Wal-Mart’s Motion to Sever Plaintiffs’ Claims
23
a. Same Transaction and Occurrence
24
25 Wal-Mart argues that Plaintiffs’ claims did not arise out of the same transaction or
26 occurrence. Mot. to Sever at 12. Rather, Wal-Mart says, Plaintiffs’ claims “are based on
27 compensation and promotional decisions made by different supervisors, during different time
1 connection among Plaintiffs’ claims is that they allege sex-based discrimination. Id. at 1.
2 Plaintiffs contend that their discrimination claims stem from Wal-Mart’s widely-held policy of
3 gender discrimination—i.e., that managers “were permitted to arbitrarily set workers’
4 compensation, without any required documentation for their decisions or any accountability from
5 their supervisors. . . .” Mot. to Sever Opp’n at 13. Plaintiffs argue that because they were each
6 injured by the same “pattern or practice of . . . discriminatory conduct,” their claims satisfy
7 Rule 20’s “same transaction” requirement. Id. at 14.
8 Rule 20’s “same transaction” provision “requires factual similarity in the allegations
9 supporting [p]laintiffs’ claims.” Visendi v. Bank of Am., N.A., 733 F.3d 863, 870 (9th Cir. 2013).
10 Several analogous cases from the Eastern District of California suggest how this standard should
11 be employed in employment discrimination cases. See Robinson v. Geithner, No. 05-cv-01258,
12 2011 WL 66158 (E.D. Cal. Jan. 10, 2011); Walker v. Bryson, No. 11-cv-01195, 2012 WL
13 5186658 (E.D. Cal. Oct. 16, 2012). In Robinson, the court held that the plaintiffs’ claims were
14 factually distinct and therefore did not arise out of the same transaction or occurrence. Robinson,
15 2011 WL 66158, at *6–8. Three African-American plaintiffs who worked for the Internal
16 Revenue Service during different but overlapping periods alleged that their employer
17 discriminated against them based on race. Id. at *1–4. The plaintiffs suffered a variety of
18 discriminatory conduct, but each plaintiff’s experience was different, and each involved different
19 supervisors. See id. For example, one plaintiff was promoted but offered a lower pay grade than
20 similarly situated non-African-American employees; another plaintiff was removed from his
21 management position and denied overtime; and the third plaintiff was harassed with racial slurs
22 and menial tasks. Id. at *2–4. The court noted that the plaintiffs’ claims “involve[d] different
23 supervisors . . . different job positions in different departments, and . . . different discriminatory
24 conduct that occurred at different time periods.” Id. at *7. Further, the court found that the
25 plaintiffs did not trace the discriminatory conduct to an agency-wide policy. Id. at *8. The court
26 therefore held that the plaintiffs’ claims did not arise from the same transaction or occurrence. Id.
27 In Walker, conversely, the court held that three plaintiffs who alleged that the Census
1 WL 5186658, at *1, *5. Although the court noted that the plaintiffs’ claims included factual
2 differences, including that the plaintiffs worked in different positions, the claims implicated a
3 common group of supervisors. Id. at *6–7. Moreover, the court explained that the plaintiffs not
4 only “shared at least two supervisors,” but that “they all worked in the same office. . . .” Id. at *7.
5 And the plaintiffs alleged that they suffered discrimination during the same approximately two-
6 year time period. Id. The court held that these similarities established that the plaintiffs’ claims
7 arose from the same transaction or occurrence. Id.
8 This case is more like Robinson than Walker. As in Robinson, each of the Plaintiffs
9 worked at a different location, under different supervisors, and during different time periods.
10 Compl. ¶¶ 132–312. Proving each plaintiff’s claim of employment discrimination—which
11 requires showing that each plaintiff was herself injured by Wal-Mart’s discriminatory policies or
12 practices—will therefore require substantial evidence unique to each plaintiff, suggesting that
13 joinder is inappropriate. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010)
14 (Title VII plaintiff must show “adverse employment action”).
15 It is true, as Plaintiffs point out, that their claims rely in part on allegations of generally
16 applicable practices and policies. See Compl. ¶¶ 53–131. However, the logic of Corley v.
17 Google, Inc., 316 F.R.D. 277 (N.D. Cal. 2016), demonstrates why allegations of generally
18 applicable policies are not necessarily sufficient to support joinder. In Corley, Judge Koh held
19 that more than 800 plaintiffs who alleged that Google unlawfully intercepted their emails failed to
20 satisfy the “same transaction” requirement of Rule 20. Id. at 279, 282–83. The plaintiffs used
21 Google’s email services for educational institutions and alleged that Google intercepted and
22 scanned their incoming and outgoing emails. Id. at 279. The court explained that a principal
23 question regarding each plaintiff’s claim was whether the plaintiff consented to Google’s email
24 policies when the plaintiff created her or his email account. Id. at 279–81. Google required
25 educational institutions that offered its email services to obtain authorization from users. Id. at
26 280. But Google “had a separate contract with each educational institution,” and, as a result, the
27 processes for disclosing Google’s email policies to users and obtaining users’ authorization
1 based on similar claims because determining whether class members had consented to Google’s
2 email policies would be “litigated on an individual, rather than classwide basis.” Id. (internal
3 quotation marks omitted). Judge Koh noted that similarly, in the context of joinder, “the single
4 transaction or occurrence requirement is not met where plaintiffs would have to prove their claims
5 or defendants would have to litigate their defenses on an individualized basis.” Id. at 284.
6 Because the plaintiffs’ educational institutions used different processes for obtaining users’
7 authorization and disclosing Google’s email policies, determining whether the plaintiffs consented
8 to Google’s email policies would require individualized “fact-specific” inquiries. Id. at 285. The
9 individualized inquiry needed to determine whether each plaintiff had consented to Google’s email
10 policies meant that the plaintiffs’ claims did not arise from the same transaction or occurrence. Id.
11 at 285, 287.
12 Corley’s logic is persuasive and on-point in this case. As in Corley, where the court had
13 previously denied class certification in a case involving similar claims, this Court previously
14 declined to certify a class of plaintiffs who alleged that Wal-Mart’s system for setting employees’
15 pay and promoting employees discriminated against women. See Corley, 316 F.R.D. at 280–81,
16 285; Dukes, 964 F. Supp. 2d at 1118. And, as in Corley, the individualized proof that militated
17 against class certification also precludes joinder. Like the plaintiffs in Corley, Plaintiffs allege
18 certain generally applicable policies and practices caused or contributed to their injuries. But, as
19 in Corley, to prevail each plaintiff will need to produce individualized proof of a crucial element
20 of her claim—in this case, evidence that she herself was harmed by Wal-Mart’s discriminatory
21 policies. As a result, Wal-Mart “would need to undertake a highly individualized analysis” to
22 defend against each Plaintiff’s claims. See Corley, 316 F.R.D. at 286. Because each plaintiff’s
23 claim requires an individualized inquiry, they do not arise from the same transaction or
24 occurrence, despite the overlap in their factual allegations.
25 Because the parties would have to litigate Plaintiffs’ claims on an individualized basis,
26 Wal-Mart’s motion to sever is granted. Because Plaintiffs have not satisfied the “same
27 transaction” requirement of Rule 20, the Court need not decide whether Plaintiffs’ claims share a
1 F.3d at 1296 (9th Cir. 2000) (joinder requires a finding that claims arise out of the same
2 transaction or occurrence and share a common question of law or fact); Fed. R. Civ. P. 20(a)(1). It
3 is also unnecessary to consider Wal-Mart’s alternative request that the Court try Plaintiffs’ claims
4 separately under Federal Rule of Civil Procedure 42(b).
5
a. Substantial Rights Affected by Severance
6
When parties are misjoined, a court “may at any time, on just terms, add or drop a party,”
7
or “sever any claim.” Fed. R. Civ. P. 21. “[A] court, in its discretion, may sever [ ] misjoined
8
parties, so long as no substantial right will be prejudiced by the severance.” Coughlin, 130 F.3d at
9
1350 (quoting the district court). Plaintiffs argue that severing their claims would be unfairly
10
prejudicial, because “a multiplicity of trials necessarily incurs greater expense and time . . .
11
especially considering the duplicative testimony that would [ ] need to be presented at potentially
12
18 separate trials.” See Mot. to Sever Opp’n at 11, 19.
13
Smith v. Cty. of Santa Clara, No. 11-cv-05643 EJD, 2013 WL 3242346 (N.D. Cal. June
14
25, 2013), considered a similar argument that severance would be unfairly prejudicial in an
15
employment discrimination case. Id. at *6. Judge Davila found that severance would not be
16
prejudicial because the severed plaintiff’s claims were “based on one incident” and establishing
17
“[a] pattern or practice of discrimination . . . [was] not critical to her case.” Id. This logic applies
18
here. Although establishing a pattern and practice of discrimination at Wal-Mart would be helpful
19
to Plaintiffs’ claims, it is not sufficient for each individual Plaintiff to prevail. The individualized
20
proof necessary to each plaintiff’s case outweighs the possible prejudice that would result from
21
Plaintiffs having to present duplicative proof at multiple trials.
22
Plaintiffs also argue that joinder promotes efficient discovery. See Mot. to Sever Opp’n at
23
16–17. But these efficiencies can be preserved even after severance. To the extent Plaintiffs’
24
claims rely on common factual allegations, discovery can “be coordinated to reduce or eliminate
25
unnecessarily repetitive discovery, such as one deposition of a supervisor common to all . . .
26
Plaintiffs.” Walker v. Bryson, No. 1:11-cv-01195-AWI-SKO, 2012 WL 5186658, at *9 (E.D. Cal.
27
2012).
1 3. Plaintiffs’ Request to Postpone Ruling on the Motion to Sever
2 Plaintiffs argue that Wal-Mart’s motion to sever is “wholly premature,” and that even if the
3 Court does not deny the motion, the Court should allow the Plaintiffs to remain joined for
4 discovery and postpone ruling on the motion to sever until a “later, and more appropriate, time.”
5 Mot. to Sever Opp’n at 6. Wal-Mart responds that severing Plaintiffs’ claims will “greatly
6 reduc[e] the potential for time-consuming discovery disputes,” because the parties “will focus
7 discovery on each Plaintiff’s . . . specific claims. . . .” Mot. to Sever Reply at 3.
8 Plaintiffs’ request to postpone deciding Wal-Mart’s motion to sever is denied. No
9 additional factual development is necessary to determine that the parties will need to litigate
10 Plaintiffs’ claims on an individualized basis, which is sufficient to establish that they are not
11 properly joined under Rule 20.
12 B. Motion for Partial Dismissal
13
Wal-Mart moves to dismiss various claims of some or all Plaintiffs, on a variety of
14
grounds. This section proceeds in four parts. First, it addresses Wal-Mart’s argument that certain
15
plaintiffs have failed to state claims for either pay or promotional discrimination. Second, it
16
discusses Wal-Mart’s numerous arguments that some or all of Plaintiffs’ disparate impact claims
17
should be dismissed. Third, it addresses the argument that certain claims have not been
18
administratively exhausted. Fourth, it discusses whether Plaintiffs’ claims are time-barred to the
19
extent they rely on factual allegations not present in the Dukes complaint.
20
1. Failure to State a Claim
21
a. For Pay Discrimination
22
Wal-Mart argues that plaintiffs Claudia Renati, Denise Van Galder, Alulquoy, Rita Weisz,
23
Gina Portillo Vierra, and Shannon Stephenson have failed to state claims for pay discrimination.
24
MTD at 4–5. The only allegation that each of these plaintiffs personally suffered pay
25
discrimination is a formulaic recitation of the cause of action: “Upon information and belief,
26
[plaintiff] believes she [is and] was paid less than other similarly situated men during her
27
1 of further factual enhancement,” are insufficient to state a claim for relief plausible on its face.
2 Iqbal, 556 U.S. at 677–78.
3 Plaintiffs cannot salvage these claims by pointing to their more general allegations of a
4 “pattern or practice” of discrimination. MTD Opp’n at 10–12 (dkt. 40). It is true that evidence of
5 a pattern or practice of discrimination may, in a class action, be sufficient to prove a Title VII
6 claim, “even absent proof of losses to specific individuals.” Chin v. Port Auth. of N.Y. & N.J.,
7 685 F.3d 135, 147 (2d Cir. 2012). But every circuit to consider the question2 has held that
8 individual Title VII plaintiffs cannot prevail based only on pattern or practice evidence. Id. at
9 149–50 (collecting cases). These courts reason that extending the pattern-or-practice method of
10 proof to individual cases would impermissibly “relieve the plaintiff of the need to establish each
11 element of his or her claim.” Id. at 149. The Court agrees with previous Northern District of
12 California decisions finding this reasoning persuasive. Buchanan, 2018 WL 3537083, at *4.
13 Individual plaintiffs must show that they themselves were discriminated against. See Hawn, 615
14 F.3d at 1156. Evidence of pattern or practice of discrimination may be helpful in making that
15 showing, see Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1362–63 (9th Cir. 1985), but it cannot
16 substitute for allegations that an individual plaintiff was personally harmed by discriminatory
17 treatment.
18 Plaintiffs cite cases in which statistical evidence, combined with anecdotal evidence of
19 discrimination, sufficed to show a prima facie case of discrimination. MTD Opp’n at 12 (citing
20 Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531 (9th Cir. 1982)). But
21 these cases do not stand for the proposition that individual plaintiffs can use statistical evidence to
22 avoid alleging that they themselves suffered discriminatory treatment. Renati, Van Galder,
23 Alulquoy, Weisz, Vierra, and Stephenson’s claims for pay discrimination are dismissed with leave
24 to amend. To salvage these claims, Plaintiffs must add non-conclusory allegations that these
25 individuals were subject to pay discrimination.
26
27
1 b. Promotional Discrimination
2 Wal-Mart is incorrect that plaintiff Hope Garcia fails to state a claim for promotional
3 discrimination. See MTD at 5–6. Wal-Mart ignores Plaintiffs’ allegation that Garcia “sought
4 advancement opportunities at Wal-Mart by applying to the Warehouse where she could work in
5 shipping and receiving, but the male Lead managers [sic], Tom, told her that it was a ‘guy’s job.’”
6 Compl. ¶ 278. Garcia’s allegation that she was explicitly denied an advancement opportunity
7 based on her gender is sufficient “factual enhancement” supporting promotional discrimination
8 claims. Wal-Mart’s motion to dismiss those claims is denied.
9 2. Disparate Impact Claims
10
Wal-Mart makes several arguments that some or all of the Plaintiffs’ disparate impact
11
claims should be dismissed. It argues that some or all Plaintiffs lack standing to assert and have
12
failed to state disparate impact claims, and that plaintiff Sharon Reese failed to exhaust her
13
disparate impact claim. MTD at 8–20. Analysis of these issues depends on the answer to a
14
threshold question: Whether Plaintiffs have adequately plead that the challenged policies and
15
practices are incapable of being separated out for analysis, and therefore must be analyzed as a
16
single process. Id. at 17–18. This Order analyzes this issue first, then addresses standing and the
17
sufficiency of the disparate impact allegations. Reese’s ostensible failure to exhaust is addressed
18
in the following section on administrative exhaustion.
19
a. Wal-Mart’s Policies are Incapable of Separate Analysis
20
Ordinarily, “to establish a prima facie case of disparate impact, the plaintiff must:
21
(1) identify the specific employment practices or selection criteria being challenged; (2) show
22
disparate impact; and (3) prove causation.” Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th
23
Cir. 1990). However, “if the complaining party can demonstrate to the court that the elements of a
24
respondent’s decisionmaking process are not capable of separation for analysis, the
25
decisionmaking process may be analyzed as one employment practice.” 42 U.S.C. § 2000e-
26
2(k)(1)(B)(i). Whether this standard is met is a question of fact. McClain v. Lufkin Indus., Inc.,
27
519 F.3d 264, 276 (5th Cir. 2008).
1 The Complaint sufficiently alleges that the elements of Wal-Mart’s promotional and pay
2 decisionmaking processes, respectively, cannot be analyzed separately. The Court will therefore
3 analyze each process as a single employment practice, at least at the pleading stage. Courts in the
4 Northern District of California have found that the elements of a “subjective and ambiguous”
5 decisionmaking process were incapable of separate analysis. See, e.g., Stender v. Lucky Stores,
6 Inc., 803 F. Supp. 259, 335 (N.D. Cal. 1992). The Court finds this reasoning persuasive. Policies
7 marked by excessive discretion or subjectivity are by definition difficult to define and variable in
8 their impact, and therefore difficult to analyze separately. The Complaint alleges that Wal-Mart’s
9 pay and promotion decisions were not based on “job related criteria,” and that excess discretion
10 and subjectivity allowed discrimination against women. See, e.g., Compl. ¶¶ 57, 60, 72, 74, 98,
11 102–03, 106, 119. Taking the well-pleaded allegations in the Complaint as true, it is reasonable to
12 infer that the elements comprising Wal-Mart’s pay and promotion decisionmaking processes at
13 any given time cannot be separated out for analysis.
14 It is true, as Wal-Mart points out, that some of the elements of Wal-Mart’s pay policies
15 identified in the Complaint, such as pay caps and new hire credits, are more objective. MTD at
16 17–18. But “[s]election systems that combine both subjective and objective criteria are generally
17 considered subjective in nature.” Rose, 902 F.2d at 1424. It is therefore appropriate to treat Wal-
18 Mart’s pay and promotion decisionmaking processes as subjective in nature, even if they involve
19 some objective elements.
20 Wal-Mart also argues that the elements of its pay practices must be capable of separate
21 analysis because certain elements applied only to certain job classes, or only during certain years.
22 MTD at 17–18. As explained below, the Court agrees that any given plaintiff should only be able
23 to challenge the pay or promotional process as it existed during the period of her employment.
24 That is to say that plaintiffs cannot prove their discrimination claims by relying on elements of the
25 pay and promotion practices that did not apply to them. Borja-Valdes v. City & Cty. of San
26 Francisco, No. 3:14-CV-04168-CRB, 2015 WL 5522287, at *6–7 (N.D. Cal. Sept. 18, 2015)
27 (plaintiff lacked standing to challenge policy that could not have applied to her). But this does not
1 alleges that Wal-Mart’s pay and promotion decisionmaking processes involved significant
2 discretion and subjectivity at all times and as applied to all job classes. Compl. ¶¶ 98, 119. That
3 suggests these elements of the decisionmaking process are still inseparable from Wal-Mart’s
4 decisionmaking process as a whole (at least as it existed at the time that element was in effect).
5 Perhaps comparing the impact of those processes before and after a given element went into effect
6 could facilitate separate analysis, but that possibility is a question of fact not appropriate for
7 resolution at this stage.
8 Finally, Wal-Mart cites a number of recent Southern District of Florida decisions holding,
9 on very similar facts, that plaintiffs alleging disparate impact claims against Wal-Mart failed to
10 show the policies they challenged were incapable of separate analysis. See Statement of Recent
11 Decision Ex. A (dkt. 53). These decisions are unpersuasive, because they fail to recognize the
12 significance of the subjective and discretionary elements of the processes Plaintiffs are
13 challenging. Instead, they focus on the plaintiffs’ failure to “do more than just complain about
14 Walmart’s recordkeeping practices.” See, e.g., id. at 11–12. Here, Plaintiffs have done more, by
15 identifying systems that are “pervaded by a lack of uniform criteria” and thus incapable of
16 separation.3 Stender, 803 F. Supp. at 335.
17 a. Standing to Bring a Disparate Impact Claim
18
To have standing, a plaintiff must show she has “suffered an ‘injury in fact’ that is . . .
19
fairly traceable to the challenged action of the defendant.” Gest v. Bradbury, 443 F.3d 1177,
20
1181–82 (9th Cir. 2006). Wal-Mart argues that all Plaintiffs lack standing to bring a disparate
21
impact claim, because “most identify no particular promotional policy and none deigns to say
22
whether or how any pay policy harmed her.” MTD at 11. According to Wal-Mart, Plaintiffs have
23
therefore failed to plead that they were injured by the policies they challenge. Id. at 9. However,
24
Plaintiffs have adequately alleged that Wal-Mart’s pay and promotional processes are incapable of
25
separate analysis. Plaintiffs can challenge the overall pay and promotion decisionmaking
26
27
3 Because the Southern District of Florida decisions found that the plaintiffs failed to allege
1 processes in effect during their employment, and establish standing by tracing their harm to the
2 processes considered as a whole. Plaintiffs’ failure to identify “the specific employment practices
3 or selection criteria being challenged” is not dispositive. See 42 U.S.C. § 2000e-2(k)(1)(B)(i).
4 Wal-Mart’s alternative argument, that individual Plaintiffs lack standing to challenge
5 certain elements of the policies that could not have injured them, is better taken. Renati, Van
6 Galder, Alulquoy, Weisz, Vierra, and Stephenson fail to sufficiently allege that they were harmed
7 by any pay policy. Their disparate impact claims related to pay also fail, because they lack
8 standing to challenge policies that did not cause their injury. See Schmier v. U.S. Court of
9 Appeals for the Ninth Circuit, 279 F.3d 817, 820–21 (9th Cir. 2002).
10 Wal-Mart also argues that Plaintiffs lack standing to challenge elements of the pay and
11 promotion processes that could not have applied to them, because they either were only in effect
12 before or after a given plaintiff’s employment, or applied only to positions that plaintiff never
13 held. Plaintiffs appear to acknowledge, as they must, that each plaintiff cannot challenge policies
14 that did not apply to her. See MTD Opp’n at 15 (“Of course, Plaintiffs are limited by the terms of
15 their employment or their positions.”); see also Borja-Valdes, 2015 WL 5522287, at *6–7.
16 But it is not necessary to determine which policies applied to which plaintiffs at this point
17 in the litigation. Because Plaintiffs have adequately plead that the elements of Wal-Mart’s pay
18 and promotion processes were inseparable, each plaintiff has adequately plead a disparate impact
19 claim based on the overall pay and promotional decisionmaking process that applied to her.4 This
20 is sufficient to deny the motion to dismiss the disparate impact claims for lack of standing.
21 a. Failure to State a Disparate Impact Claim
22
Wal-Mart also argues that Plaintiffs fail to state a disparate impact claim because they have
23
failed to plead facts showing “a significant discriminatory impact.” MTD at 12–17. To plead a
24
disparate impact claim, plaintiffs must “prove causation,” by “offer[ing] statistical evidence of a
25
kind and degree sufficient to show that the practice in question has caused the exclusion of
26
27
1 applicants for jobs or promotions because of their membership in a protected group.” Rose, 902
2 F.2d at 1424. This requires “statistical disparities . . . sufficiently substantial that they raise . . . an
3 inference of causation.” Id.
4 Plaintiffs have alleged sufficient facts to meet this standard for the disparate impact claims
5 related to pay. The Complaint contains detailed allegations of statistically significant pay
6 differences between male and female employees at Wal-Mart. Compl. ¶ 75. True, these statistics
7 do not cover the entire period of Plaintiffs’ collective employment. Id. But because the Plaintiffs
8 argue that Wal-Mart’s pay processes were marked by excess discretion and subjectivity
9 throughout the relevant period, it would be reasonable to infer that these statistics are
10 representative of the impact of similar processes at later dates. And some of the later policies,
11 such as merit-based pay raises for Assistant Managers, were based on employees’ prior pay rates.
12 Id. ¶ 65. The older statistics are therefore directly relevant to allegations that later policies
13 perpetuated existing disparities in pay. Id.
14 Accepting the Complaint’s statistics as adequate evidence of a significant discriminatory
15 impact on female employees’ pay accords with previous Northern District of California decisions,
16 which are fairly generous in accepting statistical allegations at the pleading stage. For example,
17 Lee v. Hertz Corp., 330 F.R.D. 557 (N.D. Cal. 2019), found that the plaintiffs had adequately
18 plead that a criminal background check policy that disqualified any candidate with a conviction or
19 a pending prosecution had a disparate impact on Latinos. Id. Judge Seeborg’s decision relied on
20 statistical allegations that “Latinos were arrested and convicted of crimes at more than double the
21 rates of whites.” Id. From this, it could be inferred that the screening policy would have a
22 disparate impact on Latinos’ chance of being hired. Id. Judge Seeborg held that “[m]ore is not
23 required from Plaintiffs at the pleading stage.” Id. This makes sense, since the data necessary to
24 show robust statistical disparities is probably inaccessible to the plaintiffs before discovery.
25 If this indirectly relevant statistical evidence could support a finding of causation in Lee,
26 the same is true of the statistical allegations in this case. Wal-Mart points out that this Court has
27 previously rejected the significance of the same statistics. However, the decision Wal-Mart cites
1 certification stage, the statistical evidence was insufficient to satisfy Federal Rule of Civil
2 Procedure 23’s commonality requirement. Id. In contrast, on a motion to dismiss, the statistical
3 evidence must be “taken in the light most favorable to [Plaintiffs]” and all reasonable inferences
4 drawn in their favor. Hernandez v. Sutter W. Capital, No. C 09-03658 CRB, 2010 WL 3385046,
5 at *4 (N.D. Cal. Aug. 26, 2010).
6 Wal-Mart also argues that Plaintiffs have failed to adequately explain why various aspects
7 of the challenged policies would disadvantage women. MTD at 14–17. These arguments fail
8 because Wal-Mart’s processes are properly evaluated as a whole. Assessed as a whole, Wal-
9 Mart’s pay and promotional processes are objectionable largely because they give managers
10 excess discretion, allowing discriminatory decisions. See Compl. ¶¶ 98, 119. The Supreme Court
11 and Ninth Circuit have recognized that such policies may give rise to disparate impact claims.
12 Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 988–90 (1988); Rose, 902 F.2d at 1424.
13 On the other hand, Plaintiffs have failed to plead sufficient facts to establish a significant
14 disparate impact on promotion. The Complaint’s only statistical allegations regarding promotions
15 state that “Wal-Mart has had a significantly lower percentage of female managers than its largest
16 competitors,” and that “[f]emale employees in each Region, and in each district within each
17 region, have been much less likely than their male counterparts to receive promotion to
18 management track positions,” and “must wait significantly longer to be promoted into
19 management track positions.” Compl. ¶¶ 107–09. These threadbare allegations are so conclusory
20 they need not be taken as true. Without them, Plaintiffs are left only with their assertions that the
21 promotional policies would have a discriminatory impact, and individual plaintiffs’ allegations
22 that they experienced discrimination. The Ninth Circuit has suggested that this is insufficient to
23 state a disparate impact claim. Statistical allegations are required. Rose, 902 F.2d at 1424. The
24 disparate impact claims related to promotions are dismissed, with leave to amend. To preserve
25 these claims, Plaintiffs should add more detailed allegations about the ostensible statistical
26 evidence of promotional disparities.
27
1 3. Failure to Exhaust
2 In order to establish subject matter jurisdiction over a Title VII claim, a plaintiff must
3 exhaust her administrative remedies by filing a timely charge with the EEOC. Freeman v.
4 Oakland Unified School Dist., 291 F.3d 632, 636 (9th Cir. 2002). If a later complaint “seeks
5 judicial relief for claims not listed in the original EEOC charge, the complaint nevertheless may
6 encompass any discrimination like or reasonably related to the allegations of the EEOC charge.”
7 Id. (internal quotation marks omitted). A claim is like or reasonably related to the allegations in
8 the EEOC charge when the allegations of discrimination either “fell within the scope of the
9 EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to grow
10 out of the charge of discrimination.” Id. (internal quotation marks omitted).
11 In determining whether this standard is met, courts consider “the alleged basis of the
12 discrimination, dates of discriminatory acts specified within the charge, perpetrators of
13 discrimination named in the charge, and any locations at which discrimination is alleged to have
14 occurred.” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1100 (9th Cir. 2002). The EEOC charge
15 should be construed “with utmost liberality.” Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir.
16 1990).
17 Wal-Mart argues that Sharon Reese failed to exhaust her disparate impact claims, MTD at
18 18–20, that Jennifer Seely failed to exhaust her promotional discrimination claims, id. at 6–8, and
19 that all Plaintiffs have failed to exhaust claims arising from the 2005 new hire credits and 2006
20 pay cap, id. at 22–23. Each of these arguments is addressed in turn.
21 a. Reese’s Disparate Impact Claim
22
Wal-Mart is correct that Reese’s charge makes no reference to a neutral policy with a
23
disparate impact—the closest it comes is stating that Reese believes “female employees were paid
24
less than male employees” and “male employees were given more promotional opportunities than
25
female employees.” Compl. Ex. A at 33 (dkt. 9-1). For their part, Plaintiffs do not seriously argue
26
that Wal-Mart mischaracterizes Reese’s EEOC charge. MTD Opp’n at 13.
27
Instead, Plaintiffs appear to argue either that Reese’s disparate impact claim could
1 “reasonably be expected to grow out of” her EEOC charge, or that she can “piggyback” on other
2 plaintiffs’ charges. MTD Opp’n at 13–14. As to the first argument, “federal courts in general have
3 concluded that an administrative charge that only alleges a discrimination claim based on disparate
4 treatment is insufficient to exhaust a claim for disparate impact.” De Los Santos v. Panda Exp.,
5 Inc., No. C 10-01370 SBA, 2010 WL 4971761, at *4 (N.D. Cal. Dec. 3, 2010). This result is
6 persuasive—claims for disparate treatment and disparate impact have different elements and
7 depend on different types of evidence, so it is unlikely that an investigation of one type of claim
8 would encompass evidence of the other.5 Id.; see also Watson, 487 U.S. at 985–87.
9 Although the piggybacking (or “single-filing”) rule is a more plausible avenue to salvage
10 Reese’s disparate impact claims, it is likely inapplicable. “[S]o long as one plaintiff timely files
11 an administrative complaint, a class of similarly-situated plaintiffs may ‘piggyback’ on that
12 complaint, thereby satisfying the exhaustion requirement.” Harris, 682 F.3d at 1136. It is
13 generally, though not universally, agreed that the rule applies not only to class actions, but also to
14 plaintiffs with joined claims. Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1198 (10th Cir. 2004)
15 (collecting cases and noting that “only the Third Circuit confines the doctrine to class actions”).
16 But the piggybacking rule is inapplicable, because a plaintiff who has failed to exhaust a
17 claim in her EEOC charge cannot rely on another plaintiff’s charge from an entirely separate
18 individual action. Inda v. United Air Lines, Inc., 565 F.2d 554, 559 (9th Cir. 1977). Because the
19 Court is granting Wal-Mart’s motion to sever, Reese’s suit is now entirely separate from the other
20 plaintiffs, and she cannot piggyback on their EEOC charges. Reese’s employment ended more
21 than 300 days ago, Compl. ¶ 21, so it is too late for her to amend her charge. Fort Bend Cty.,
22 Texas v. Davis, 139 S. Ct. 1843, 1846 (2019). Since this means Reese cannot salvage her
23 disparate impact claims, they are dismissed with prejudice.
24
5 Plaintiffs seem to suggest that because all the EEOC charges were assigned to the same
25
investigator, her investigation would have encompassed disparate impact claims that other
plaintiffs included in their charges. MTD Opp’n at 13. Plaintiffs cite no authority for the
26
proposition that courts should consider other charges before the same investigator when
determining the likely scope of the EEOC’s investigation. The piggybacking rule, discussed
27
below, allows plaintiffs to rely on other plaintiffs’ charges in some circumstances. Harris v.
1 a. Seely’s Promotional Discrimination Claims
2 Wal-Mart argues that Seely’s EEOC charge is “expressly limited to claims of pay
3 discrimination,” and therefore cannot exhaust claims of promotional discrimination.6 MTD at 7.
4 Wal-Mart accurately characterizes Seely’s EEOC charge. See Compl. Ex. A at 42–43. It is also
5 correct that evidence of promotional discrimination would not have been within the scope of the
6 EEOC’s investigation of Seely’s charge. MTD at 7–8. Contrary to Plaintiffs’ reading of Wal-
7 Mart’s case law, see MTD Opp’n at 20–23, courts that have considered this issue have held that a
8 claim for pay discrimination does not exhaust claims for promotional discrimination. See Wright
9 v. Kent Cty. Dep’t of Soc. Servs., No. ELH-12-3593, 2014 WL 301026, at *12 (D. Md. Jan. 24,
10 2014) (collecting cases). This result makes sense. Promotional and pay discrimination claims rely
11 on different theories of wrongdoing and require separate evidence. A claim for promotional
12 discrimination is therefore not “consistent with the plaintiff’s original theory of the case” when the
13 original theory was pay discrimination. B.K.B., 276 F.3d at 1100.
14 Plaintiffs are incorrect in arguing that Wal-Mart fails to meet its burden of proof for this
15 affirmative defense. MTD Opp’n at 20, 23. Seely’s EEOC charge is properly subject to judicial
16 notice, and sufficient to conclude that this claim is not exhausted. Dornell v. City of San Mateo,
17 19 F. Supp. 3d 900, 904 n.3 (N.D. Cal. 2013) (EEOC charge is properly subject to judicial notice
18 because it is a “public record[ ] whose accuracy is not in dispute”).
19 Plaintiffs do not argue that Seely’s promotional discrimination claim can be saved by the
20 piggybacking rule. In any event, that rule is inapplicable because the Court is granting Wal-
21 Mart’s motion to sever. Seely’s promotional discrimination claims are dismissed for failure to
22 exhaust. Because her employment ended more than 300 days ago, Compl. ¶ 292, amendment
23 would be futile and dismissal is with prejudice.
24
25
26
6 The motion to dismiss argues that plaintiff Cheryl Stout similarly failed to exhaust her
27
promotional discrimination claims. MTD at 6–7. Wal-Mart’s reply abandons this argument.
1 b. All Claims Based on the 2005 and 2006 Policies
2 According to Wal-Mart, none of the Plaintiffs’ EEOC charges refer to any policy or
3 practice implemented after June 2004. Wal-Mart argues that Plaintiffs have therefore failed to
4 exhaust any claim based on policies arising after that time, including the 2005 new hire credits and
5 the 2006 pay cap. Plaintiffs do not contend that their EEOC charges addressed these elements of
6 Wal-Mart’s pay processes. Instead, they argue that these claims were exhausted by general
7 references to Wal-Mart’s compensation system. MTD Opp’n at 26–29.
8 The Court finds that claims based on elements of Wal-Mart’s pay policies introduced in
9 2005 and 2006 were exhausted by the charges’ references to earlier pay discrimination. Courts
10 have found that new acts of discrimination, committed after an EEOC charge was filed, are “like
11 or reasonably related” to the charge’s claims when they are committed by the same defendant and
12 with the same discriminatory intent. See Fleming v. AC Square, Inc., No. 5:11-CV-01830 EJD,
13 2012 WL 1868915, at *10 (N.D. Cal. May 22, 2012) (citing Couveau v. Am. Airlines, Inc., 218
14 F.3d 1078, 1082 (9th Cir. 2000)).
15 The logic of those decisions applies here. Plaintiffs allege the new hire credits and pay
16 caps are simply the latest elements of Wal-Mart’s long-standing discriminatory pay policies. The
17 basis for discrimination (gender) and perpetrator of the discrimination (Wal-Mart) is the same for
18 all elements of those policies. Indeed, as discussed above, Plaintiffs have successfully alleged that
19 the elements of those policies are so closely intertwined that they are incapable of separate
20 analysis. An investigation of earlier practices could reasonably be expected to have uncovered
21 later, still discriminatory, elements of Wal-Mart’s pay policy.
22 1. American Pipe Tolling
23
Wal-Mart also argues that claims based on the 2005 and 2006 policies are time barred. It
24
reasons that EEOC charges must be filed within 300 days of the “alleged unlawful employment
25
practice” and that, with the exception of Mary Quintanilla, each of the Plaintiffs filed her charge in
26
2012, more than 300 days after the end of her employment with Wal-Mart. MTD at 20 (citing 42
27
U.S.C. § 2000e-5(e)(1)).
1 This argument applies only to policies implemented after June 2004 because, as Wal-Mart
2 tacitly acknowledges, the filing of the initial Dukes v. Wal-Mart class action complaint tolled the
3 statute of limitations for members of the would-be class in that case. This is because “the
4 commencement of a class action suspends the applicable statute of limitations as to all asserted
5 members of the class who would have been parties had the suit been permitted to continue as a
6 class action.” American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). The Supreme
7 Court extended this rule in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), which held
8 that American Pipe tolling applied not only to putative class members attempting to intervene in
9 the class action, but also those who later decide to bring individual suits. Id. at 350. The Court
10 reasoned that the class complaint alerts the defendant “of the need to preserve evidence and
11 witnesses respecting the claims of all the members of the class.” Id. at 353. There is thus “no
12 potential for unfair surprise, regardless of the method class members choose to enforce their
13 rights.” Id.
14 But, Wal-Mart argues, American Pipe tolling does not apply to claims based on the 2005
15 and 2006 policies, because those elements of its pay and promotional practices were not at issue in
16 Dukes. The fourth and final amended complaint in Dukes addressed Wal-Mart’s pay processes as
17 they existed in June 2004. MTD at 20. Plaintiffs do not dispute this characterization of the
18 operative Dukes complaint. Instead, they argue their claims are “substantive[ly] . . . identical to
19 those in Dukes,” and that they may rely on new evidence to support the same claims of “sex
20 discrimination in pay and promotion.” MTD Opp’n at 24–26.
21 Plaintiffs are correct that there is no requirement “that the individual suit must be identical
22 in every respect to the class suit for the statute to be tolled.” Tosti v. City of Los Angeles, 754
23 F.2d 1485, 1489 (9th Cir. 1985). But at the same time, “the tolling rule does not ‘leave a plaintiff
24 free to raise different or peripheral claims following denial of class status.’” Williams v. Boeing
25 Co., 517 F.3d 1120, 1136 (9th Cir. 2008) (citing Crown, Cork & Seal, 462 U.S. at 354 (Powell, J.,
26 concurring) (internal alterations omitted)). The question is whether claims relying on the post-
27 June 2004 policies are “different or peripheral” from the claims in Dukes, or simply not
1 The Court concludes these claims are similar enough to those in Dukes that American Pipe
2 tolling is applicable. Courts are most likely to find that claims are “different or peripheral” from
3 an earlier class action complaint when they rely on different causes of action or are asserted
4 against different defendants. See, e.g., In re Cathode Ray Tube (CRT) Antitrust Litig., 27 F. Supp.
5 3d 1015, 1021 (N.D. Cal. 2014); In re Cathode Ray Tube (CRT) Antitrust Litig., No. C 07-5944
6 SC, 2014 WL 1091095, at *4 (N.D. Cal. Mar. 13, 2014). Courts are more likely to find that
7 American Pipe tolling applies when later claims assert the same legal theory as the class
8 complaint, even if they are based on somewhat different factual allegations. See, e.g.,
9 Biotechnology Value Fund, L.P. v. Celera Corp., 12 F. Supp. 3d 1194, 1200 (N.D. Cal. 2013)
10 (holding that American Pipe tolling applied, despite “some factual variation”). These cases’
11 reasoning is persuasive here. Plaintiffs are bringing the same types of claims asserted in Dukes—
12 disparate treatment and disparate impact gender discrimination. The fact that they assert
13 additional factual allegations to support those claims does not make them “different or peripheral,”
14 or suggest that Wal-Mart has been unfairly surprised by claims challenging more recently
15 introduced elements of its pay processes.
16 This outcome is consistent with the result in Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637
17 (6th Cir. 2015). In Phipps, the Sixth Circuit held that “a class of current Wal-Mart employees in
18 Region 43 who allege that they have been subjected to a pattern or practice of gender
19 discrimination resulting from regional company policies and practices that were not addressed in
20 Dukes” could benefit from American Pipe tolling. Id. at 651 It is true that Phipps was abrogated
21 by China Agritech, Inc. v. Resh, in which the Supreme Court held that American Pipe tolling does
22 not apply when the second suit is also a class action. 138 S. Ct. 1800, 1806 (2018). But that
23 holding does not undermine the Sixth Circuit’s conclusion that the later claims against Wal-Mart
24 were “within the scope of those asserted by the nationwide class in Dukes,” even though they
25 challenged “regional company policies and practices . . . not addressed in Dukes.” Phipps, 792
26 F.3d at 651.
27 Nor is the Court persuaded by Wal-Mart’s argument that “Plaintiffs, as Dukes class
1 charges regarding post-June 2004 policies.” MTD at 21-22. Wal-Mart cites the Dukes Plaintiffs’
2 || briefing requesting an extension of the tolling period to file EEOC charges. Id. at 21. In that
3 || briefing, the Dukes Plaintiffs argued that “Walmart has long been on notice of the claims
4 || advanced by the class.” Id. Wal-Mart argues that Plaintiffs are now contradicting their earlier
5 || representations by attempting to bring new claims not advanced in Dukes. But of course,
6 || Plaintiffs’ position is that their individual claims are essentially identical to those in Dukes, or at
7 || least so simular that there is no danger of surprise. MTD Opp’n at 24—26. This position is
8 || consistent with the one taken by the Dukes Plaintiffs when they requested an extension of the
9 || tolling period.
10 Cc. Motion to Stay Discovery
Wal-Mart requests a stay of discovery pending resolution of its partial motion to dismiss.
12 Because this Order resolves the motion to dismiss, the motion to stay is denied as moot.
|. CONCLUSION
For the foregoing reasons, the motion to sever is GRANTED, the motion to dismiss
15 || is GRANTED in part and DENIED in part, and the motion to stay is DENIED as moot. At
a 16 argument, Plaintiffs’ counsel indicated they may be able to amend the Complaint with
additional factual allegations. Any amended complaint is due within twenty days of the
filing of this Order.
19 IT IS SO ORDERED.
20 Dated: October 25, 2019 ei
21 CHARLES R. BREYER
United States District Judge
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