In the latest chapter in what is now a twelve-year legal battle, plaintiffs seeking to bring gender-based disparate treatment and disparate impact claims against Wal-Mart with regard to the retail giant’s pay and promotion decisions were again denied class certification in Dukes v. Wal-Mart Stores, Inc., No. CV 01-022520-CRB (N.D. Cal. Aug. 2, 2013). Following the United States Supreme Court’s 2011 landmark ruling in which the Court concluded that plaintiffs had failed to point to a common question capable of resolution across the proposed nationwide class and thus failed to satisfy the commonality requirement of Federal Rule 23(a)(2) (Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)), plaintiffs filed a fourth amended complaint seeking to re-define a class of female employees working in Wal-Mart’s “California Regions” that would conform to the Court’s ruling. The proposed re-defined class, however, was squarely rejected by District Judge Charles Breyer, who found that not only did plaintiffs “continue to challenge four different kinds of decisions across hundreds of decision makers, inviting failures of proof at multiple points in each region,” but further that the amended complaint was “essentially a scaled-down version of the same case with new labels on old arguments.”
Noting that the Supreme Court “required Plaintiffs to make a certain showing in order to litigate all of the class members’ claims at once in a single lawsuit,” the district court concluded that “Plaintiffs’ newly proposed class continues to suffer from the problems that foreclosed certification of the nationwide class.” Specifically, with regard to plaintiffs’ disparate treatment claims, the court noted that the Supreme Court held plaintiffs must provide “significant proof that Wal-Mart operated under a general policy of discrimination.” Dukes, 131 S. Ct. at 2554. To that end, the district court rejected plaintiffs’ newly proposed statistical evidence as “underwhelming,” and further found that although plaintiffs now claimed to have “addressed the Supreme Court’s criticisms by identifying a core group of biased upper-level managers who influenced all of the challenged decisions by lower-level managers,” the proposed evidence “falls short on two levels: even the smaller group is quite large, and Plaintiffs’ evidence of bias among their proposed subgroup of managers remains too weak to satisfy their burden of providing ‘significant proof’ of a general policy of discrimination.” With regard to the disparate impact claims, while plaintiffs in their amended complaint attempted to enumerate several “specific employment practices” they claimed guided local managers in making pay and promotional decisions, the district court rejected these arguments, finding that each proposed practice “suffers from one of two problems: (1) the evidence indicates that the practice did not actually apply across the proposed class for the proposed class period, or (2) the practice itself boils down to delegating discretion, which the Supreme Court held could not provide the commonality necessary to certify a class.”
Finding the overriding “commonality issue” to be “dispositive,” the district court denied class certification on all claims. While the question of what, if anything, comes next for plaintiffs in this matter remains to be answered, the district court’s ruling undoubtedly reaffirms the significance of the Supreme Court’s decision in Dukes and suggests that simply paring down the size of a proposed class or attempting to repackage arguments regarding challenged employment practices is not likely to be enough for plaintiffs to satisfy the requirements of commonality at the class certification stage.