The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
KERI BRAGG et al.,
Plaintiffs,
v. CIVIL ACTION NO. 2:19–cv–00231
WAL–MART STORES, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Walmart Inc.’s (“Walmart”) Motion for Summary
Judgment.1 (ECF No. 94.) For the reasons discussed more fully below, the Court GRANTS IN
PART and DENIES IN PART Defendant’s motion.
I. BACKGROUND
Plaintiffs Roberta Crites and Tammy Harrison2 (collectively “Plaintiffs”) filed this action
alleging Defendant discriminated against Plaintiffs on the basis of their sex in violation of Title
VII of the Civil Rights Act of 1964. (ECF No. 1 at 1, ¶ 3.) These Plaintiffs were members of
the previously certified national class in Dukes v. Wal–Mart Stores, Inc., 564 U.S. 338 (2011).
(ECF No. 28 at 2, ¶¶ 6–7.) In Dukes, the United States District Court for the Northern District of
1 Also pending is Defendant’s Motion to Strike Plaintiffs’ Reference to Previously Undisclosed Documents. (ECF
No. 104.) In response, Plaintiffs agreed not to file the exhibits at issue. (ECF No. 107.) Accordingly,
Defendant’s motion, (ECF No. 104), is DENIED AS MOOT.
2 Defendant advises that Plaintiffs Keri Bragg, Marlene Justice, and Charlotte Samples have agreed to settle their
claims. Accordingly, the claims brought by Plaintiffs Keri Bragg, Marlene Justice, and Charlotte Samples are
DISMISSED.
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California certified a national class of female Walmart and Sam’s Club employees challenging
Walmart’s retail store pay and management promotion policies as discriminatory against women.
On June 20, 2011, the United States Supreme Court reversed that class certification order. See
Dukes v. Wal–Mart, 564 U.S. 338 (2011).
While the certification order was on appeal, the time periods for filing charges with the
Equal Employment Opportunity Commission (“EEOC”) were tolled. (ECF No. 28 at 2, ¶ 7.)
After the class was decertified, the District Court for the Northern District of California entered an
order further extending this tolling period for the former class members. (Id. at 2–3, ¶ 8.) Here,
Plaintiffs both filed their EEOC charges on May 1, 2012. (Id. at 3, ¶¶ 11–12.) Crites received
her right to sue letter on March 11, 2019, and Harrison received her letter on March 26, 2019.
(Id.) Plaintiffs were required to file the current action within 90 days of the receipt of the letter.
(ECF No. 100 at 4.)
A. Walmart’s Management Structure
Plaintiffs worked in Walmart stores located mostly in West Virginia from 1996 to the
present. Walmart groups multiple stores into Markets, formerly called Districts, and each Market
is supervised by a Market Manager, formerly called a District Manager. (ECF No. 95 at 2.)
Markets are grouped into Regions and the Regions are led by Vice Presidents who are based at
Walmart’s headquarters. (Id.)
Each individual Walmart store has the same job categories, job descriptions, and
management hierarchy. (ECF No. 28 at 5, ¶ 25.) Hourly associates are signed to a specific
department and report to and are evaluated by the respective Department Manager. (ECF No. 95
at 3.) The store is divided into departments and each department is supervised by a Department
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Manager. (Id. at 2.) The Department Manager position is an hourly supervisory position that
reports to and is evaluated by the Assistant Store Manager over that department. (Id.) Assistant
Store Managers are the lowest salaried management position within each store and report to and
are evaluated by either a Co–Manager or the Store Manager. (ECF No. 98 at 6, ¶ 10.) There are
not Co–Managers in every store, but, at stores where the position exists, the Co–Manager reports
to and is evaluated by the Store Manager with approval from the Market Manager. (Id.) Further,
some stores have Support Managers, which are hourly employees that assist salaried management
but are not assigned to a specific area, and Zone Supervisors, which are hourly supervisory
employees that oversee specific areas of the store. (Id.) Finally, each store is led by a Store
Manager who makes key decisions within the store and delegates responsibilities to other salaried
managers. (ECF No. 95 at 3.)
B. Relevant Pay Policies
Each Walmart Store has its own Facility Start Rate which sets the minimum starting rate
within that store. (Id.) Further, every position at the store is assigned a code that corresponds to
a pay range that is based on the Facility Start Rate. (Id.) There may also be certain jobs in each
store that are paid differently depending on the shift the employee works, such as the overnight
shift. (Id.)
1. Hourly Employees Pay Policies
Hourly employees at Walmart received annual pay adjustments based on the employee’s
annual performance evaluation, and any pay increase was determined by Walmart’s pay guidelines
and the employee’s evaluation score. (Id.) Further, the pay increase given for an evaluation
score changed over time. (Id.) Hourly employees also received a pay increase when the
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employee was promoted or moved to a position with a higher pay grade. (Id.) Prior to 2006,
hourly employees could receive a merit increase for exceptional performance and exceptional
results. (Id. at 4.) However, these merit raises were eliminated in 2006. (Id.)
2. Assistant Store Manager Pay Policies
Assistant Store Manager pay starts at a base salary that is adjusted based on the size and
location of the Walmart Store where the manager is employed. (Id.) Some Assistant Store
Managers with experience are offered higher starting rates. (Id.) Store Managers, with input
from the District Manager and potentially the Regional Personnel Manager, made the decisions
about adjusting the starting salary. (Id.) Further, Assistant Store Managers also received annual
evaluations and may have been eligible for annual performance increases, determined by the
annual evaluation score, the managers current pay, and the size of the store. (Id.) The annual
performance evaluations were conducted by the Store Manager, with input from the District
Manager and the Regional Personnel Manager. (Id.)
C. Relevant Promotion Policies
Employees must meet eligibility criteria to be considered for transfers and promotions.
Walmart considers the employees work experience in working at Walmart or at another retail store;
performance evaluation; coaching history; and the amount of time the employee has held her
current position. (Id.) To meet the minimum standards to qualify for a transfer to a position with
higher pay at the same store, the employee’s current evaluation must be at least a “solid performer,”
and the employee cannot have a “written coaching.” (Id. at 4–5.) Walmart also considers “the
associate’s education, professional licenses/certifications, prior work experience, and performance
evaluation history as such factors that may provide insight into the associate’s work ethic and
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demonstrate whether the associate possesses any unique leadership, collaboration, technological,
analytical, problem–solving, professionalism, and/or communication skills.” (Id. at 5.)
i. Promotions From Hourly Associate to Assistant Store Manager Trainee
In order to become a salaried Assistant Store Manager, an employee must be selected for
and complete Walmart’s manager in training (“MIT”) program. (Id.) An associate can apply to
the program by filing out an online application in store, which is then sent electronically to the
District Manager. (Id.) If there is an opening, the District Manager will contact the Store
Manager to determine if the Store Manager recommends that associate for promotion to the MIT
program. (Id.) If the associate is recommended, the associate will be interviewed and the
District Manager will then determine if the associate should be selected. (Id.) The minimum
standards required to qualify for a promotion from hourly associate to the MIT program include
“having a minimum evaluation rating of ‘meets expectations,’ being in your current position for
at least six months, having at least one year of retail experience with Walmart or another employer,
and not having an active written coaching.” (Id. at 6.) Other factors considered include prior
experience in a supervisory position either at Walmart or at another retail store and success in a
supervisory position. (Id.) “The overwhelming majority of associates selected for the MIT
program have past experience working in a supervisory position.” (Id.) Not having prior
supervisory experience does not automatically disqualify an associate from consideration, but
“only exceptional associates would be selected in such an instance.” (Id.) That associate would
be required to demonstrate knowledge and experience in what Walmart classifies as the key
functions of the Assistant Store Manager, which includes holding a leadership role in a significant
area of the store and assisting with personnel or payroll. (Id.)
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ii. Promotions From Assistant Store Manager to Co–Manager or Store Manager
Between 2004 and 2005, the minimum requirements for a promotion from an Assistant
Store Manager to a Co–Manager or Store Manager position included earning a recent evaluation
rating of at least 3.5; working at least six months at the associate’s current store; having at least
two years is salaried manager experience; and not having any written coachings within the last
year. (Id.)
A. Individual Allegations
Plaintiffs allege Walmart paid them less than similarly–qualified or less–qualified male
employees and promoted them less quickly and less frequently than similarly–qualified or less–
qualified male employees.
1. Roberta Crites
Crites filed her initial charge with the EEOC on May 11, 2012. (ECF No. 95 at 12.)
Crites is a resident of Spencer, West Virginia, and has been employed by Walmart from October
11, 1999 to the present. (ECF No. 28 at 4, ¶ 19.) Crites has been employed at the following
stores during the following time periods: in Clarksburg, West Virginia, from October 1999 to
December 1999; in Spencer , West Virginia, from December 1999 to May 2009; in Ripley, West
Virginia, from May 2009 to January 2012; and in Spencer, West Virginia, from January 2012 to
present. (Id.) Crites’ titles included Loss Prevention Associate, Sales Associate, Grocery
Reclamation Associate, Department Manager, Lead Associate, and Asset Protection Associate.
(Id. at 22, ¶ 106.) In 2010, Crites was transferred to the Ripley, West Virginia, store as an Asset
Protection Associate. (Id. ¶ 107.) In January of the same year, Crites applied for a salaried
manager position and an asset protection coordinator position. (Id. ¶ 108.) However, despite her
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years of experience in loss prevention, Crites was not offered an interview for the asset protection
coordinator position. (Id. ¶ 109.) A male employee named Tyler, who had no loss prevention
experience, was offered an interview, and Shaun Maynor, a male employee with only a year and a
half of experience and who had only been employed by Walmart since 2008, was eventually hired
for the position. (Id. ¶ 110.) These hiring decisions were made by Waymon Cogar, the District
Asset Protection Manager. (Id. ¶ 111.) In November 2011, the position was reposted, and Crites
again applied. (Id. ¶ 112.) However, she was again not interviewed and Robert Eaton, a male
employee, was hired. (Id.) Eaton never worked in asset protection and, at that time, Crites had
over six years of experience working as an asset protection associate. (ECF No. 100 at 8.)
In January of 2012, Crites returned to the Spencer, West Virginia, Walmart to work as a
pharmacy department manager. (Id. at 23, ¶ 113.) Throughout 2013, Crites was denied six
different promotions. (Id. ¶ 114.) On May 22, 2013, Crites applied for an hourly trainee
position, but she was neither interviewed nor offered the position. (Id.) Next, on May 31, 2013,
Crites applied for an hourly trainee position, but again was neither interviewed nor offered the
position. (Id.) Crites was told she was not eligible for this position because the opening was at
the same store where she currently worked. (Id.) However, Calvin Marks was hired for the
position, and he was also then employed at the Spencer, West Virginia, store. (Id.)
On June 16, 2013, Crites applied for an hourly trainee position at the Mineral Wells
Walmart Store, and completed an interview but was not hired. (Id.) Subsequently, on July 3,
2013, Crites applied for an assistant manager trainee position, and was again interviewed but not
hired. (Id.) On September 10, 2013, Crites applied for an hourly trainee position, but was neither
interviewed nor offered the position. (Id.) Finally, on November 27, 2013, Crites applied for an
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hourly trainee position at the Spencer, West Virginia Walmart Store, but she was neither
interviewed nor offered the position. (Id.)
In 2015, Crites applied for the following four positions and was neither interviewed nor
offered the job: (1) on March 5, 2015, Crites applied for an hourly trainee position at Mineral
Wells, West Virginia, store; (2) on March 10, 2015, Crites applied for an hourly trainee position
at Ripley, West Virginia, store; (3) in April of 2015, Crites applied for a support manager position
at Spencer, West Virginia, store; and (4) in July of 2015, Crites applied for a support manager
position at Spencer, West Virginia, store. (Id. at 23–24, ¶ 114.) Mike Snodgrass, a male
employee, was hired for the April 2015 support manager position, and Mike Mathes, another male
employee, was hired for the July 2015 support manager position. (Id.)
Finally, in 2016, Crites applied for three promotions and was again denied. (Id.) On June
16, 2016, she applied for an AP manager trainee position, and was interviewed but not hired. (Id.)
Next, on September 6, 2016, Crites applied for an assistant manager trainee position, but as not
hired. (Id.) On November 12, 2016, Crites applied for a manager trainee position, but she was
not hired. (Id.) Crites has been employed by Walmart for almost 20 years and she currently
works at the Spencer, West Virginia, store in an hourly asset protection position. (Id. at 28, ¶¶
117–118.)
2. Tammy Harrison
Harrison filed a charge with the EEOC on May 1, 2012, and alleges Walmart discriminated
against her on the basis of her sex in both pay and promotions. (ECF No. 28 at 3, ¶ 12.) Harrison
is a resident of Cross Lanes, West Virginia, and was employed by Walmart from 1998 to 2006.
(ECF No. 28 at 4–5, ¶ 20.) She has been employed at the following stores: Nitro, West Virginia;
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Gallipolis, Ohio; Ripley, West Virginia; and South Charleston, West Virginia. (Id.) Harrison
had held the position of customer service manager, department manager, and support manager.
(Id. at 26, ¶ 122.)
Harrison alleges she applied for a Co–Manager position between five to six times between
2003 and 2006. (ECF No. 100 at 9.) In March of 2002, Harrison received a 3.8 rating on her
evaluation, which was a prerequisite for applying for a Co–Manager position. (ECF No. 28 at 27,
¶ 128.) When Harrison was interviewed for the Co–Manager position, a male District Manager,
Stewart Bunker, allegedly told her “[t]here's never going to be a female in my district who will
ever exceed my expectations.” (Id. at 28, ¶¶ 129–130.) He then lowered her evaluation to 3.72,
in her presence, so that she would be ineligible to apply for the position. (Id. ¶ 129.)
She also alleges that her Store Manager, Chris Rockenstein (“Rockenstein”), told her she
could not be promoted within the same store, but male employees George Skinner (“Skinner”) and
Danny Baisin (“Baisin”) were promoted within their same store. (ECF No. 100 at 9.) Further,
Harrison was told by her District Manager, Eddie Bostic (“Bostic”), and Rockenstein that she
would be promoted to Co–Manager if she went to Ashland, Kentucky, to open a new store. (Id.)
Once she completed her work in Ashland, she was called into a meeting with Bostic, Rockenstein,
and a male employee, Lewis Taylor. (Id.) The managers stated that Taylor was being promoted
to Co–Manager instead of Harrison because he had four children and another on the way. (Id.)
Harrison was also told that her husband had a good job. (Id.) Harrison told Bostic and
Rockenstein that Taylor’s promotion was discrimination, and she took Rockenstein’s comment
about her husband having a good job as meaning that it is a man’s job to provide for a family. (Id.
at 11–12.) Harrison also states that Rockenstein called the male employees at the South
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Charleston store the “boy’s club”, and that women employees were dismissed from morning
meetings to allow the boy’s club to chat. (Id.) Harrison further alleges that Rockenstein made
derogatory comments about female customers in thong underwear and stated “that he would like
to have his balls played with while walking through the sporting goods department.” (Id.)
Harrison alleges she was paid less than Greg Blackburn (“Blackburn”), Tom Harvey
(“Harvey”), Danny Baisin (“Baisin”), and Lewis Taylor (“Taylor”), while all were employed as
Assistant Store Managers. (ECF No. 28 at 27, ¶ 134.) Harrison was aware of three male
Assistant Managers with less experience who made $40,000 while she made only $35,000. (Id.
¶ 134.) Harrison alleges she was promoted to Assistant Store Manager and was paid biweekly in
the amount of $1,211.54 in 2001; $1,272.12 in 2002; $1,335.73 in 2003; $1,402.51 in 2004;
$1,472.64 in 2005; and $1,693.53 in 2006. (ECF No. 100 at 10.) Further, she alleges Taylor was
hired as an Assistant Manager Trainee in 2000 and earned $2,416.96 in 2003 and $2,909.40 in
2004 when he worked in the same store as Harrison. (Id.)
B. Procedural History
On March 18, 2020, Defendant filed its Motion for Summary Judgment. (ECF No. 94.)
Plaintiff timely responded, (ECF No. 100), and Defendant timely replied, (ECF No. 106). As
such, this motion is fully briefed and ripe for adjudication.
II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment.
This rule provides, in relevant part, that summary judgment should be granted if “there is no
genuine issue as to any material fact.” Summary judgment is inappropriate, however, if there
exist factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty
10
Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material’ when they might affect the outcome
of the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable jury to return
a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh–Durham Airport
Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating such factual issues, the Court must
view the evidence “in the light most favorable to the opposing party.” Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970).
The moving party may meet its burden of showing that no genuine issue of fact exists by
use of “depositions, answers to interrogatories, answers to requests for admission, and various
documents submitted under request for production.” Barwick v. Celotex Corp., 736 F.2d 946,
958 (4th Cir. 1984). Once the moving party has met its burden, the burden shifts to the nonmoving
party to “make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). If a party fails to make a sufficient showing on one element of that party’s
case, the failure of proof “necessarily renders all other facts immaterial.” Id. at 323.
“[A] party opposing a properly supported motion for summary judgment may not rest upon
mere allegations or denials of his pleading, but must set forth specific facts showing that there is a
genuine issue for trial.” Liberty Lobby, 477 U.S. at 256. “The mere existence of a scintilla of
evidence” in support of the nonmoving party is not enough to withstand summary judgment; the
judge must ask whether “the jury could reasonably find for the plaintiff.” Id. at 252.
III. DISCUSSION
Plaintiffs’ Amended Complaint alleges the following two causes of action: (1) disparate
treatment discrimination in violation of Title VII of the Civil Rights Act of 1964 and (2) disparate
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impact discrimination in violation of Title VII of the Civil Rights Act of 1964. (ECF No. 28 at
30–32.) The parties previously agreed to dismiss Plaintiffs’ Count II claim for disparate impact.
(ECF No. 88.) Additionally, in her response, Crites withdraws her unequal pay claims. (ECF
No. 100 at 5.) Accordingly, Plaintiff Roberta Crites’ claim for disparate treatment pay
discrimination is DISMISSED.
Only Crites’ claim for disparate treatment promotion discrimination, and Harrison’s claims
for disparate treatment promotion discrimination and disparate treatment pay discrimination
remain. Defendant seeks summary judgment on all remaining claims. Each argument is
addressed in turn.
A. Disparate Treatment Discrimination
Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge any
individual, or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's . . . sex.” 42 U.S.C. §
2000e–2(a)(1). The Act prohibits “overt discrimination,” referred to as disparate treatment
discrimination, and “also practices that are fair in form, but discriminatory in operation,” referred
to as disparate impact discrimination. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
Disparate treatment discrimination “is the most easily understood type of discrimination”
because “[t]he employer simply treats some people less favorably than others because of their”
protected status. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). On the
other hand, disparate impact discrimination refers to “employment practices that are facially
neutral in their treatment of different groups but that in fact fall more harshly on one group than
another and cannot be justified by business necessity.” Id. Further, disparate impact claims do
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not require proof of a discriminatory motive, while proof of discriminatory motives are “critical”
in disparate treatment cases. Id.
“A disparate–treatment plaintiff must establish ‘that the defendant had a discriminatory
intent or motive’ for taking a job–related action.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009)
(quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988)). Intentional
discrimination can be established through direct or circumstantial evidence. Spencer v. Virginia
State Univ., 919 F.3d 199, 207 (4th Cir. 2019), cert. denied, 140 S. Ct. 381 (2019). When there
is no direct evidence of discriminatory intent, discrimination can be shown using the burden
shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “to
develop an inferential case” of discriminatory intent. Spencer, 919 F.3d at 207 (citing Chalmers
v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996)). Under McDonnell Douglas, the
plaintiff carries the initial burden of establishing a prima facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802. To establish a prima facie case of gender discrimination, the plaintiff
must show that “(1) she is a member of a protected class; (2) she suffered adverse employment
action; (3) she was performing her job duties at a level that met her employer's legitimate
expectations at the time of the adverse employment action; and (4) the position remained open or
was filled by similarly qualified applicants outside the protected class.” Bonds v. Leavitt, 629
F.3d 369, 386 (4th Cir. 2011); see also McDonnell Douglas, 411 U.S. at 802. If the plaintiff meets
this burden, the burden shifts to the employer “to articulate a legitimate, nondiscriminatory reason
for the adverse employment action.” Bonds, 629 F.3d at 386. Further, if the employer makes
this showing, the burden shifts back to the plaintiff who then must show that “the employer's stated
reasons were not its true reasons, but were a pretext for discrimination.” Id.
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3. Crites’ Failure to Promote Claim
Between 2010 and 2016, Crites alleges she was denied around fifteen promotions. (ECF
No. 28 at 24, ¶¶ 108–114.) To prove disparate treatment discrimination, Crites must provide
direct evidence of discriminatory intent or establish a prima facie case under the burden–shifting
scheme established in McDonnell Douglas and its progeny. Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 959 (4th Cir. 1996). Here, the record provides little to no direct or indirect
evidence of discriminatory intent. Further, for the majority of these promotions, Crites states only
that she was denied the promotion without an interview. (Id.) She relies solely on the denial of
those promotions as evidence of discrimination and has produced no other corroborating evidence.
Crites does allege she applied for the support manager position at the Spencer, West Virginia,
Store in both April and July of 2015. (Id. at 23, ¶ 114.) However, her only evidence of
discriminatory intent is that, in both circumstances, a male employee was hired for the position.
(Id.)
Next, in January of 2010 and November of 2011, Crites alleges she applied for a salaried
manager position and an asset protection coordinator job in the Ripley, West Virginia, Walmart
Store. (Id. at 22, ¶¶ 108, 112.) With regard to her 2010 application, Crites states she was not
even interviewed despite her many years of experience in the loss prevention department. (Id. ¶
109.) Crites further states that Tyler LNU, a male employee with no loss prevention experience,
was offered an interview, and Shaun Maynor (“Maynor”), a male employee who started with
Walmart in 2008 and had only one and a half years of loss prevention experience, was hired. (Id.
¶ 110.) The District Asset Protection Manager, Waymon Cogar, made these hiring decisions.
(Id. ¶ 111.) Additionally, in November of 2011, Maynor left the position of asset protection
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coordinator, and Crites again applied. (Id. ¶ 112.) However, she was again not offered an
interview and a male employee, Robert Eaton (“Eaton”), was hired. (Id.)
To establish a prima facie case of disparate treatment in promotions, Crites must provide
facts that enable this Court to conclude that it is more likely than not that Walmart’s failure to
promote her was a result of discrimination. Crites must prove that “(1) she is a member of a
protected class; (2) she suffered adverse employment action; (3) she was performing her job duties
at a level that met her employer's legitimate expectations at the time of the adverse employment
action; and (4) the position remained open or was filled by similarly qualified applicants outside
the protected class.” McDonnell Douglas, 411 U.S. at 802.
First, the Court notes that, under the McDonnell Douglas framework, the majority of Crites’
promotion claims have no merit because she has failed to provide a single fact in support. Evans,
80 F.3d at 959. In her response, Crites appears to abandon the majority of these claims and only
focuses on her application for the asset coordinator position. As a result, the Court will only focus
on these two promotions.
Crites argues she was qualified for both the 2010 and 2011 asset coordinator job because
she was employed by Walmart since October 11, 1999, and had ten to twelve years of asset
protection experience at the time of her application. (ECF No. 100 at 8.) While the Court notes
that Crites has provided limited evidence regarding her employment history and the similar status
of the male applicants, the Fourth Circuit has emphasized that “the burden of establishing a prima
facie case of disparate treatment is not onerous.” Evans, 80 F.3d at 960. Thus, Crites satisfies
the “relatively easy test” that she was a qualified applicant who “was rejected under circumstances
which give rise to an inference of unlawful discrimination.” Id.
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However, Walmart has articulated legitimate and non–discriminatory reasons for why
Maynor and Eaton were hired instead of Crites. Maynor had law enforcement experience
working as a Forest Ranger with the West Virginia Division of Forestry and was an Asset
Protection Associate from May 2008 till his promotion in January of 2010. (ECF No. 100 at 30.)
In contrast, Defendant states Crites had a history of leaving and returning to the asset protection
division. (Id.) Between 1999 and 2010, Crites held eleven different positions and was
transferred out of the asset protection division three different times. (Id.) Further, Defendant
states that Eaton held extensive managerial retail and asset protection experience prior to working
in Defendant’s stores and held the positions of Warehouse Projects Manager/Commercial Sales
Manager at Surface Foods; General Manager at Subway; and Assistant Manager/Asset Protection
at Blockbuster Video. (Id. at 31.)
“Job performance and relative employee qualifications are widely recognized as valid, non–
discriminatory bases for any adverse employment decision.” Evans, 80 F.3d at 960. Walmart
“has discretion to choose among equally qualified candidates provided the decision is not based
upon unlawful criteria . . . .” Id. (quoting Wileman v. Frank, 979 F.2d 30, 38 (4th Cir. 1992)).
Thus, the burden now shifts back to Crites, and she must present evidence that Walmart’s
explanations are “not its true reasons, but were a pretext for discrimination.” Bonds, 629 F.3d at
386. Since this is a failure to promote case, Crites must show that she was the better qualified
candidate for the position. Evans, 80 F.3d at 960.
However, Crites has presented no evidence to overcome summary judgment. She has
failed to show she was more qualified than either Eaton or Maynor or any other male applicant
and has produced no evidence to show gender discrimination was the motivation behind Walmart’s
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decisions. Quite simply, an “unsupported speculation is insufficient.” Id. Just like Evans,
Crites has provided “unsubstantiated allegations and bald assertions concerning her own
qualifications and the shortcomings of her co–workers” which fails to disprove Walmart’s
explanations and fails to show a discriminatory intent. Id.
In opposition, both Plaintiffs spend much of their briefing criticizing Walmart for its record–
keeping practices, and its alleged failure to provide a concrete reason for why both Plaintiffs were
denied promotions and why Harrison’s pay was lower than other male employees. (ECF No. 100
at 12.) The United States Supreme Court has emphasized that “[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Both Plaintiffs attempt to argue that Walmart has produced insufficient evidence to
meet its burden because it has not produced statements from the managers who made the decisions.
(ECF No. 100 at 12.) This is a blatant misinterpretation of the standard.
In Burdine, the Court held that when the burden shifts back to the defendant, the defendant
must “rebut the presumption of discrimination by producing evidence that the plaintiff was
rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant
need not persuade the court that it was actually motivated by the proffered reasons.” Burdine,
450 U.S. at 254–55. The Court goes on to state that “[i]t is sufficient if the defendant's evidence
raises a genuine issue of fact as to whether it discriminated against the plaintiff,” and “[t]o
accomplish this, the defendant must clearly set forth, through the introduction of admissible
evidence, the reasons for the plaintiff's rejection.” Id. Plaintiffs use the Court’s “admissible
evidence” language as the basis for their arguments. The Court clarifies what it means by
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admissible evidence by stating that “[a]n articulation not admitted into evidence will not suffice.
Thus, the defendant cannot meet its burden merely through an answer to the complaint or by
argument of counsel.” Id. at 256 n.9. Contrary to Plaintiffs’ arguments, the Supreme Court did
not require first–hand knowledge or statements from persons present when the decisions were
made. Id. Here, Walmart has produced extensive employment records detailing the dates of the
disputed promotions, pay rates, and employees work history. This evidence is supported by
documentation and not merely the “argument of counsel,” which the Supreme Court cautioned
against.
With regards to Crites’ promotion claim, Crites argues that Walmart’s reasoning is simply
based on guesses and are merely speculations as to why Crites was not promoted. These
arguments have no merit. As discussed above, Walmart has successfully articulated a legitimate
and non–discriminatory reason for hiring Maynor and Eaton. On the other hand, Crites failed to
provide any statements, records, or personal knowledge to support her claims. Thus, Crites has
failed to prove a set of facts to enable this Court to conclude that Walmart’s failure to promote her
was motivated by discrimination. Accordingly, summary judgment is GRANTED as to Plaintiff
Roberta Crites’ disparate treatment in promotions claim.3
4. Harrison’s Failure to Promote Claim
Harrison alleges she was discriminated against based on her gender when she was denied
five to six promotions between 2003 and 2006. (ECF No. 100 at 8.) First, the Court notes that,
for the majority of these claims, Harrison does not provide a single allegation in support. She has
3 Defendant’s argue Crites failed to exhaust her administrative remedies for portions of her failure to promote claim.
(ECF No. 95 at 24.) Because the Court has granted summary judgment under an alternative theory, there is no need
to address this argument.
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failed to provide even the simplest information, including the date she applied or even the total
number of promotions she was denied. In fact, Harrison states she was denied around five to six
promotions, but Defendant’s records show she was denied four. (ECF No. 95 at 20.) Just like
Crites, Harrison appears to rely solely on the denial of these promotions as evidence of
discrimination. While the burden to establish a prima facie case is “not onerous,” Harrison has
failed to meet this low threshold for the majority of her claims. Evans, 80 F.3d at 960. In fact,
Walmart provides all factual information for the following persons who were promoted over
Harrison: Raymond Scarberry, Danny Meadows, James Collins, and Tonya Scyoc. (ECF No.
95 at 20–24.) Further, Harrison does not discuss these individuals in response, which leads the
Court to believe that she has abandoned these claims. As a result, the Court will only focus on
Harrison’s allegations that Lewis Taylor, George Skinner, and Danny Baisin were promoted to fill
Co–Manager positions for which she applied. (ECF No. 100 at 13.)
To meet her burden, Harrison must provide direct evidence of discriminatory intent or
establish a prima facie case under the burden–shifting scheme established in McDonnell Douglas
and its progeny. Evans, 80 F.3d at 959. First, Harrison states that her Store Manager, Chris
Rockenstein, stated she could not be promoted within the same store, but male employees George
Skinner and Danny Baisin were promoted within the South Charleston Store where they both
worked. (Id. at 9.) These are the only allegations Harrison provides. Even assuming these bare
bones allegations could establish a prima facie case of discrimination, Harrison fails to address
any of Walmart’s legitimate and non–discriminatory reasons provided in support of these
promotions.
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First, Walmart states that an employee named Danny Baisin does not exist. (ECF No. 106
at 8.) Walmart’s records show that a male Assistant Store Manager named Danny Baisden did
work at the South Charleston, West Virginia, Store with Harrison, but the two never applied for
any of the same Co–Manager positions. (Id.) Further, Baisden did not receive a promotion to a
Co–Manager position until March of 2008, which was over a year after Harrison voluntarily
resigned. Harrison does not address these facts.
Next, Walmart alleges Skinner was selected as a Co–Manager of the South Charleston,
West Virginia, Store in July of 2005. (ECF No. 95 at 11.) Skinner worked as an Assistant Store
Manager at two other Walmart Stores for almost three years and had worked in a management
position at a Walmart Store and a Sam’s Club for over a year. (Id.) Further, Skinner had received
a most recent performance evaluation of a 4 out of 5, and Harrison’s evaluation was only a 3.5 out
of 5. (Id.) Again, Harrison does not attempt to rebut any of Walmart’s factual assertions.
Accordingly, summary judgment is GRANTED with regards to Plaintiff Tammy Harrison’s
failure to promote claims as it pertains to both Skinner and “Baisin.”
Next, Harrison was told by her District Manager, Eddie Bostic (“Bostic”), and her Store
Manager, Rockenstein, that she would be promoted to Co–Manager if she went to Ashland,
Kentucky, to open a new store. (ECF No. 100 at 9.) Once she completed her work in Ashland,
she was called into a meeting with Bostic, Rokenstein, and a male employee, Lewis Taylor. (Id.)
The managers stated that Taylor was being promoted to Co–Manager instead of Harrison because
he had four children and another on the way. (Id.) Harrison was also told that her husband had
a good job. (Id.) Harrison told Bostic and Rockenstein that Taylor’s promotion was
discrimination, and she took Rockenstein’s comment about her husband having a good job as
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meaning that it is a man’s job to provide for a family. (Id. at 11–12.) Harrison argues that
Rockenstein’s comments during this meeting are direct evidence of discriminatory intent. (Id. at
12.)
Further, Harrison states that Rockenstein referred to the male employees at the South
Charleston Store as his “boys club” and would dismiss Harrison and the other female employees
from morning meetings so the boys club could talk separately. (Id. at 9.) Additionally, Harrison
argues she was qualified for the position because she had worked up the ranks and was offered the
job before she initially went to Ashland. (ECF No. 100 at 9.)
Direct evidence of discriminatory intent includes “conduct or statements that both reflect
directly the alleged discriminatory attitude and that bear directly on the contested employment
decision.” Melendez v. Bd. of Educ. for Montgomery Cty., 711 F. App'x 685, 687 (4th Cir. 2017).
“Derogatory remarks may in some instances constitute direct evidence of discrimination.” Id.
However, “in the absence of a clear nexus with the employment decision in question, the
materiality of stray or isolated remarks is substantially reduced.” Id. (quoting Merritt v. Old
Dominion Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010).
In addition to Rockenstein’s direct comments at the promotion meeting, Harrison has
provided evidence of statements that appear to show a culture of derogatory comments toward
women in the South Charleston Store. Further, she alleges her evaluation was lowered simply
because she was a female. Even if these actions do not create a “clear nexus” with the
employment decision, Harrison has at least established a prima facie case of discrimination.
While the Court notes that Harrison has provided limited evidence regarding her employment
history and the similar status of the male applicants, “the burden of establishing a prima facie case
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of disparate treatment is not onerous.” Evans, 80 F.3d at 960. Thus, Harrison satisfies the
“relatively easy test” that she was a qualified applicant who “was rejected under circumstances
which give rise to an inference of unlawful discrimination.” Id.
However, Walmart has articulated legitimate and non–discriminatory reasons for why
Taylor was hired instead of Harrison. Walmart states Taylor received higher performance
evaluations than Harrison in both 2003 and 2004. (ECF No. 100 at 21.) For example, Taylor
earned performance evaluations of 3.9 of 5 and 4 of 5, which was higher than Harrison’s
evaluations of only 3.5 of 5. (Id.) Further, the notes from Taylor’s interview for the position
state he was very knowledgeable on financial numbers and the qualities of an effective leader and
had demonstrated strong leadership in the past. (Id.) Walmart states that, under its promotional
policies, Taylor’s higher evaluation ratings and exemplary work as an Assistant Store Manager
support his selection. (Id. at 22.) Thus, the burden now shifts back to Harrison, and she must
present evidence that Walmart’s explanations are “not its true reasons, but were a pretext for
discrimination.” Bonds, 629 F.3d at 386.
Here, Store Manager Rockenstein’s comments about Taylor receiving the promotion to
provide for his family and his reference to the male employees as the “boys club” cast doubt on
the legitimacy of Walmart’s explanation. Since Rockenstein was involved in promoting Taylor,
there is a potential that he considered Harrison’s gender in his decision. Further, Walmart’s
policies required employees to have a performance evaluation of 3.5 or higher, among other
qualifications, to be eligible for a promotion. (ECF No. 100 at 7.) In 2003, Harrison alleges that
District Manager Stewart Bunker lowered her performance evaluation from a 3.8 to a 3.44 because
he thought no female employee would exceed his expectations. (Id.) From Walmart’s own
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statements, the performance evaluations played a role in determining which employee was chosen
for the promotion. Thus, Harrison has successfully established a prima facie case of gender
discrimination. At a minimum, there is an issue of fact surrounding Rockenstein’s comments and
the context of his statements. Accordingly, the Court DENIES summary judgment on Harrison’s
failure to promote disparate treatment claim as it pertains to Lewis Taylor.
5. Harrison’s Pay Discrimination Claim
In her Amended Complaint, Harrison alleges she was paid less than Greg Blackburn
(“Blackburn”), Tom Harvey (“Harvey”), Danny Baisin (“Baisin”), and Lewis Taylor (“Taylor”),
while all were employed as Assistant Store Managers. (ECF No. 28 at 27, ¶ 134.) The Court
notes that Harrison does not mention Blackburn, Harvey, or Baisin in her response and appears to
abandon her claims against these male competitors. Harrison does mention Baisin but only in
reference to her failure to promote claim. (ECF No. 100 at 9.) As a result, the Court will only
focus on Harrison’s pay discrimination claim as it relates to Taylor.
“A prima facie pay–disparity case under McDonnell Douglas requires a plaintiff to
establish (1) she is a member of a protected class, (2) she was performing her job satisfactorily,
(3) an adverse employment action occurred, and (4) the circumstances suggest an unlawfully
discriminatory motive.” Spencer, 919 F.3d at 207. Harrison has produced no direct evidence of
discrimination, so the Court will proceed under the McDonnell Douglas framework.
Harrison alleges she was promoted to Assistant Store Manager and was paid biweekly in
the amount of $1,211.54 in 2001; $1,272.12 in 2002; $1,335.73 in 2003; $1,402.51 in 2004;
$1,472.64 in 2005; and $1,693.53 in 2006. (ECF No. 100 at 10.) Further, she alleges Taylor was
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hired as an Assistant Manager Trainee in 2000 and earned $2,416.96 in 2003 and $2,909.40 in
2004 when he worked in the same store as Harrison. (Id.)
Assuming these allegations are sufficient to support a prima facie case of discrimination,
Walmart has articulated legitimate and non–discriminatory reasons for why Taylor was paid at
different rates than Harrison. Walmart states that Plaintiff fails to recognize that Taylor and
Harrison both came to the same store with different employment histories and, thus, differing pay
rates. (ECF No. 106 at 11.) In April 2004, Harrison and Taylor both worked as Assistant Store
Managers at the South Charleston Store and reported to Store Manager Rockenstein. (Id. at 12.)
Walmart states that Taylor earned more than Harrison because, during that time, Taylor’s
performance evaluations were higher. (Id.) For example, Taylor was earned performance
evaluations of 3.9 of 5 and 4 of 5, which is higher than Harrison’s evaluations of only 3.5 of 5.
(Id.) As a result of this, Walmart states Harrison received a five percent merit increase, while
Taylor received a six percent increase. (Id.)
Thus, the burden now shifts back to Harrison, and she must present evidence that
Walmart’s explanations are “not its true reasons, but were a pretext for discrimination.” Bonds,
629 F.3d at 386. Harrison argues Walmart fails to articulate any legitimate and non–
discriminatory reasons for these actions, but that argument is easily refuted by the plain language
of Walmart’s briefing. (ECF No. 100 at 14.) As discussed above, Plaintiffs’ arguments about
the sufficiency of Walmart’s evidence has no merit. (See Section III.A.3.) Harrison does not
attempt to rebut any of Walmart’s legitimate and non–discriminatory reasons for why Taylor was
paid more than Harrison. Accordingly, summary judgment is GRANTED as to Plaintiff Tammy
Harrison’s disparate treatment in pay claim.
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B. Plaintiffs’ Pattern or Practice Claim
Finally, Defendants seek dismissal of Plaintiffs pattern or practice claim because this type
of claim may only be asserted in a class action. (ECF No. 95 at 31.) Plaintiffs do not respond.
In their Amended Complaint, Plaintiffs allege there is a pattern in compensation where
women who held hourly positions were paid less than similarly–situated men, despite the women
having more seniority and higher performance ratings. (ECF No. 28 at 9, ¶ 42.) The Fourth
Circuit has held that claims alleging a pattern or practice of discrimination can only be asserted in
class actions, and not by individual plaintiffs. See Williams v. Henderson, 129 F. App’x 806, 813
n.2 (4th Cir. 2005); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated
on other grounds, 527 U.S. 1031 (1999). Accordingly, to the extent Plaintiffs’ Amended
Complaint could be understood as alleging a pattern or practice claim, that claim is DISMISSED.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART Defendant’s Motion for
Summary Judgment, (ECF No. 94), on the issues of (1) Crites’ disparate treatment in promotions
claim; (2) Harrison’s disparate treatment in promotions claim against Skinner and Baisin; and (3)
Harrison’s disparate treatment in pay claim. Summary judgment is DENIED IN PART on
Harrison’s failure to promote disparate treatment claim as it pertains to Lewis Taylor. In addition,
the Court DISMISSES Plaintiffs’ pattern or practice claim. Plaintiff Roberta Crites’ claim for
disparate treatment in pay was voluntarily dismissed. Thus, only Plaintiff Tammy Harrison’s
failure to promote disparate treatment claim as it pertains to Lewis Taylor remains.
Further, Defendant advises that Plaintiffs Keri Bragg, Marlene Justice, and Charlotte
Samples agreed to settle their claims. (ECF No. 95.) Accordingly, the Court ORDERS that the
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causes of action and damages sought by Plaintiffs Keri Bragg, Marlene Justice, and Charlotte
Samples are DISMISSED. The Court further DIRECTS the Clerk to remove all Plaintiffs,
except Tammy Harrison, from the docket as parties to this action.
IT ISSO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER: June 22, 2020
THOMAS E. NSTON, CHIEF JUDGE
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