Cooks v. Wal Mart Stores Inc
MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/23/13. (ASL)
2013 Sep-23 PM 04:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WALMART STORES, INC.,
Case No.: 2:13-CV-526-RDP
This matter is before the court on Defendant's Motion to Dismiss. (Doc. # 7). The motion
has been fully briefed. (Docs. # 8, 16 and 17). This case presents the question of what
circumstances permit a Title VII plaintiff to "piggyback" in relation to an EEOC charge filed by
another person. After careful review, the court concludes that Plaintiff's EEOC charge is untimely
and her claims are due to be dismissed.
Plaintiff Mary Cooks retired from Defendant Walmart Stores Inc.'s employment in April
2000. (Doc. # 1 at ¶¶ 6-7). Plaintiff did not file an EEOC charge within 180 days of the end of her
employment with Walmart. (Doc. # 1-1). Indeed, it was not until more than eleven years later, on
July 9, 2011, that Plaintiff filed an EEOC charge. (Doc. # 1-1). In that charge, Plaintiff asserted
that she was discriminated against in the area of her pay; she made no assertion about any other form
of discriminatory treatment. (Id.). Ordinarily, such a belated charge would get Plaintiff as far as a
one-legged mule. But Plaintiff claims this case involves unique wrinkles. First, she asserts her
claims were tolled during the pendency of Dukes v. Walmart Stores, Inc., 603 F.3d 571 (9th Cir.
2010), rev'd on other grounds 131 S.Ct. 2541 (2011). Second, Plaintiff contends she can
"piggyback" in relation to a charge filed in January 2000 by a Sam's Club employee in Texas,
Stephanie Odle. Third, she argues that she is a former class member in the Dukes litigation and
Judge Breyer's pronouncement that "[a]ll former class members who have never filed an EEOC
charge have until January 27, 2012 to [do so]." After providing some background information about
the Dukes lawsuit and the Odle charge, the court addresses each of these arguments below.
Stephanie Odle, an employee of Sam's Club in Lubbock, Texas, filed her initial EEOC
Charge against Sam's Club on January 4, 2000. Odle filed an amended charge on April 3, 2000. The
EEOC issued to Odle a Notice of Right to Sue on May 31, 2001.1 On October 17, 2001, Odle filed
her initial lawsuit, a pro se Complaint against Walmart in the United States District Court for the
Northern District of Texas. On March 27, 2002, that case was dismissed without prejudice because
it was never served on Defendant. (Odle, Case No. 5:01-CV-00296-C (N.D.Tex.), Doc. # 5). On
October 28, 2011, after the Supreme Court issued its decision in Dukes, et al., v. Walmart Stores,
Inc., Odle filed another lawsuit against Walmart. (Odle, Case No. 3:11-CV-02954-O (N.D.Tex.),
Doc. # 1).
The original Complaint in Dukes was filed pro se by Betty Dukes on June 8, 2001. (See
Dukes, et al., v. Walmart Stores, Inc., Case No. 3:01-CV-02252-CRB (N.D.Cal.), Doc. # 1). On
October 20, 2010, the Ninth Circuit narrowed the class certified by Judge Charles R. Breyer to
Odle v. Walmart Stores, Inc., Case No. 3:11-CV-02954-O (N.D.Tex.), Docs. # 1, 1-2, 1-3, and 1-4. A district court may take judicial
notice of court documents without converting a motion to dismiss into a motion for summary judgment. See Lozman v. City of Riviera Beach, Fla.,
713 F.3d 1066, 1075 n. 9 (11th Cir.2013); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999)). "[A]mple authority exists which
recognizes that matters of public record, including court records in related or underlying cases which have a direct relation to the matters at issue,
may be looked to when ruling on a 12(b)(6) motion to dismiss." Crooked Creek Properties, Inc. v. Ensley, 2009 WL 3644835, at *8 (M.D. Ala. 2009)
(quoting In re Am. Corp. Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996)); see also Mangiafico. Blumenthal, 471 F.3d 391,
398 (2d Cir. 2006) (district court permissibly looked to docket sheets in ruling on motion to dismiss because "docket sheets are public records of
which the court could take judicial notice"); In re Salem, 465 F.3d 767, 771 (7th Cir. 2006) (taking judicial notice of state court dockets and
opinions); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006) (taking judicial notice of state court orders and proceedings); United States v.
Mercado, 412 F.3d 243, 247–48 (1st Cir. 2005) (taking judicial notice of state court docket entries.
exclude all putative class members who (like Plaintiff here) were not employed by Walmart at the
time the Dukes case was filed. Dukes v. Walmart Stores, Inc., 603 F.3d 571, 623 (9th Cir. 2010).
The class of former employees neither moved to stay the mandate, moved to certify a
different class, nor appealed the denial of certification to the Supreme Court. See Odle v. Walmart
Stores Inc., 2012 WL 5292957 at * 10 (N.D. Tex. 2012) and Dukes, Case No. 3:01-cv-02252-CRB
Standard of Review
The Federal Rules of Civil Procedure require only that the complaint provide "a short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
Having said that, the complaint must include enough facts "to raise a right to relief above the
speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet
Rule 8 standards, nor do pleadings suffice that are based merely upon "labels and conclusions" or
"naked assertion[s]" without supporting factual allegations. Twombly, 550 U.S. at 555, 557. In
deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light
most favorable to the non-moving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.
To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on
its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although "[t]he plausibility
standard is not akin to a 'probability requirement,'" the complaint must demonstrate "more than a
sheer possibility that a defendant has acted unlawfully." Id. A plausible claim for relief requires
"enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" to support the
claim. Twombly, 550 U.S. at 556. To survive a motion to dismiss, the allegations of the Complaint
must permit the court based on its "judicial experience and common sense . . . to infer more than the
mere possibility of misconduct." Id. If the court determines that well-pleaded facts, accepted as true,
do not state a claim that is plausible, the claims are due to be dismissed. Id.
Plaintiff's Complaint asserts a single claim under Title VII — disparate pay. (Doc. # 1 at 3-
Plaintiff Failed to Exhaust Administrative Prerequisites
In a non-deferral state, such as Alabama, a plaintiff may not assert a Title VII claim unless
she first files a charge of discrimination with the EEOC within 180 days of the unlawful employment
practice. See 42 U.S.C. § 2000e–5(e)(1); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th
Cir. 2001). Failure to file a timely EEOC charge results in a bar of the claims contained in the
untimely charge. Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir. 2000). Here, it
is undisputed that Plaintiff did not herself file a timely charge within 180 days of her employment
with Walmart. But that undisputed fact does not end the court's inquiry.
As the Supreme Court has held, "filing a timely charge of discrimination with the EEOC is
not a jurisdictional prerequisite to suit in federal court, but a prerequisite that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982). Plaintiff argues that her claim is not untimely because her charge filing
period was tolled during the pendency of the class claims in Dukes. (Doc. # 16 at 1). Plaintiff argues
that, under American Pipe & Construction Co. v. Utah, "[t]he commencement of a class action
suspends the applicable statute of limitations as to all asserted members of the class who would have
been parties had the suit been permitted to continue as a class action." 414 U.S. 538, 554 (1974).
(Doc. # 16 at 1-2).
But the issue here is not simply tolling. Plaintiff cannot rely on the mere pendency of the
Dukes litigation to establish that her deadline to file her charge was tolled. Plaintiff left her
employment with Walmart in April 2000. Thus, as a general rule, she was required to file a charge
within 180 days — that is, at the latest, November 2000. The initial Complaint in Dukes was not
filed until June 8, 2001, over a year after she left her employment with Walmart and over six months
after her deadline to file an EEOC charge had already run.
(See Dukes, Case No.
3:01-cv-02252-CRB (N.D.Cal.), Doc. # 1). Because Plaintiff's deadline to file a charge had already
expired well before the Dukes case was filed, the filing of that class action did not magically revive
her claim and it can not save her claim. The Dukes lawsuit is simply of no help to Plaintiff in
meeting the requirement that she timely file an EEOC charge.
Plaintiff Cannot Piggyback on Stephanie Odle's EEOC Charge
Next, Plaintiff argues that she is entitled to rely on certain orders issued by Judge Breyer in
the Dukes case and those allow her to (1) "piggyback" on Stephanie Odle's EEOC charge, and (2)
establish that her 2011 EEOC charge and subsequent lawsuit are indeed timely filed. (Doc. # 16).
To be sure, in Dukes Judge Breyer ordered that "putative members of the originally proposed class
were entitled to coattail on Odle's charge ..." (Dukes, Case No. 3:01-cv-02252-CRB (N.D.Cal.), Doc.
# 812 at 13). However, that does not mean that Plaintiff Cooks may do so. To be sure, whether
Plaintiff may piggyback on Odle's charge is determined by Eleventh Circuit case law, not in the
vacuum of an order issued by Judge Breyer in the Northern District of California.
The Eleventh Circuit's piggybacking rule allows a putative plaintiff who has not filed an
EEOC charge to rely upon the claim of a plaintiff who has filed a timely charge in limited certain
circumstances. Bost v. Federal Express Corp., 372 F.3d 1233, 1239 (11th Cir. 2004); Hipp v.
Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001); Grayson v. K Mart Corp., 79 F.3d
1086, 1101 (11th Cir. 1996); Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 450 (11th Cir.
1993). In order to piggyback on another plaintiff's charge only, a plaintiff must establish that: "(1)
the relied upon charge is not invalid, and (2) the individual claims of the filing and non-filing
plaintiff arise out of similar discriminatory treatment in the same time frame." Grayson, 79 F.3d at
1101-02 (quoting Calloway, 986 F.2d at 450).
Faithfully applying this standard, the court concludes that Plaintiff Cooks cannot piggyback
on Odle's EEOC charge or the amendment to that charge. Even putting aside the fact that Plaintiff
worked in Alabama and Odle worked in Texas, the only claim Plaintiff asserts here is a pay
discrimination claim. Neither Odle's EEOC charge, nor any amendment thereto, raised any issue
about disparate pay. (Odle, Case No. 3:11-cv-02954-O (N.D.Tex.), Docs. # 1-2, 1-3, and 1-4).
Therefore, without question, the individual claims of the filing plaintiff (Odle) and non-filing
plaintiff (Cooks) do not arise out of similar discriminatory treatment. See Grayson, 79 F.3d at 110102. It follows that Plaintiff may not piggyback on Odle's EEOC charge.
Neither Judge Breyer's Ruling Nor American Pipe Tolling Save Plaintiff's Claim
Plaintiff also argues that her own charge is timely because Judge Breyer pronounced that
"[a]ll former class members who have never filed an EEOC charge have until January 27, 2012 to
file charges with the EEOC ... ." (Dukes, Case No. 3:01-cv-02252-CRB (N.D.Cal.), Doc. # 760 at
1). But that argument cuts no ice at all.
Admittedly, "the commencement of a class action suspends the applicable statute of
limitations as to all asserted members of the class who would have been parties had the suit been
permitted to continue as a class action." American Pipe & Construction Co. v. Utah, 414 U.S. 538,
554 (1974). However, this Plaintiff cannot benefit from tolling due to the pendency of the Dukes
class action because her claims were already time barred before Dukes was even filed.
Interestingly, even if the court allowed Plaintiff the benefit of piggybacking on Odle's charge,
Plaintiff's claim would still be untimely. Odle, 2012 WL 5292957 * 10 (N.D. Tex. 2012). Odle
filed her Complaint, relying on the Dukes litigation for tolling purposes, on October 28, 2012.2
Judge Reed O'Connor of the Northern District of Texas dismissed her individual claims as untimely.
Odle, 2012 WL 5292957 at * 10. Judge O'Connor held that "[o]nce the Ninth Circuit rejected that
class and issued its [m]andate [on April 26, 2010], it was clear that Odle and other former employees
were no longer a part of that class action lawsuit. At that time, the putative class members had 'no
reason to assume that their rights were being protected' because there was no longer any class of
former employees on which they could rely." Odle, 2012 WL 5292957 at * 10 (quoting Taylor v.
United Parcel Serv., Inc., 554 F.3d 510, 520 (5th Cir. 2008)). The Ninth Circuit's mandate was
issued on April 26, 2010, over two years before Odle filed her Complaint. "The class of former
employees neither moved to stay the mandate, nor appealed this issue to the Supreme Court. Thus,
once the mandate issued, it constituted a 'final adverse determination' as to Odle's claims and tolling
ceased." Odle, 2012 WL 5292957 at * 10 (citing Taylor, 554 F.3d at 520). "At that point, Odle was
This is the date Judge Breyer pronounced as the deadline for any former class members who had filed EEOC charges, to file suit. (Case
No. 3:01-CV-02252-CRB (N.D.Cal.), Doc. # 760 at 1).
required to file a new lawsuit in order to protect her claims, and her failure to do so within the statute
of limitations now bars her claims." Odle, 2012 WL 5292957 at * 10. Therefore, Judge O'Connor
determined that Odle's October 28, 2012 Complaint was due to be dismissed as untimely. Odle,
2012 WL 5292957 at * 10.3
Judge O'Connor's analysis is persuasive, and the court concludes the same requirement
applies to Plaintiff Cooks. That is, to the extent she was relying upon the Dukes litigation for tolling
purposes, she was required to file her own lawsuit within the statute of limitations to protect her
claims. Therefore, applying Judge O'Connor's analysis here, even had Plaintiff benefitted from
tolling due to the pendency of Dukes, her own EEOC charge, filed July 9, 2011, was untimely. It
should have been filed within 180 days of the Ninth Circuit's April 26, 2010 decision, but was not.
(Doc. # 1-1). Accordingly, even if the court were to give Plaintiff the benefit of piggybacking, her
claim is still untimely because it was filed too long after the Ninth Circuit's decision in Dukes was
issued as mandate.
For the foregoing reasons, Defendant's Motion to Dismiss. (Doc. # 7) is due to be granted.
A separate order will be entered.
DONE and ORDERED this
day of September, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Judge O'Connor's decision dismissing Odle's claims is presently on appeal. (Case No. 3:11-CV-02954-O (N.D.Tex.), Docs. # 45 and 46).
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