Urban-Klohn v. Wal-Mart Stores, Inc.
ORDER granting 7 Motion to Dismiss for Failure to State a Claim; denying as moot 8 Motion to Stay. All pending Motions are Denied as Moot, Closing Case. Signed by Judge Robert N. Scola, Jr on 10/8/2019. See attached document for full details. (jao)
United States District Court
Southern District of Florida
Monica Urban-Klohn, Plaintiff,
) Civil Action No. 19-80975-Civ-Scola
Wal-Mart Stores, Inc., Defendant.
Order Granting Motion to Dismiss
This case is an offshoot of the underlying complaint addressed by the
United States Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338
(2011). In Dukes, the Supreme Court reversed the certification of a nationwide
class of female Wal-Mart employees claiming gender discrimination. The Plaintiff
here, Monica Urban-Klohn, after again seeking relief through a regional class
action and then as a member of a 44-plaintiff complaint, now seeks redress
individually. In her amended complaint (Am. Compl., ECF No. 3), Urban-Klohn
lodges two counts under Title VII regarding her compensation: in count one she
alleges disparate treatment and in count two she alleges disparate impact.
Walmart contends Urban-Klohn does not plead specific, individualized facts
showing that she, herself, was discriminated against, either through disparate
treatment or impact; Urban-Klohn fails to establish standing; and Urban-Klohn’s
claims are all time-barred. After careful review, the Court agrees that UrbanKlohn fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) and
thus grants Wal-Mart’s motion (ECF No. 7) and dismisses Urban-Klohn’s
Urban-Klohn began working for Walmart in 1996, in its store number
1847. (Am. Compl. at ¶ 17.) Before working at store 1847, she had worked for
Publix, McDonald’s, a pet store, and another Walmart store in a different
location. (Id. at ¶ 18.) Although it is not entirely clear, it appears Urban-Klohn
first worked as a cashier and then in the pet department. (Id.) She learned all
she could about the pet department and applied to be the pet department
manager several times. (Id. at ¶¶ 19–20.) Each time, however, the position went
to a male. (Id. at ¶ 20.) While working in the pet department, Urban-Klohn was
asked to train her male colleagues. (Id. at ¶ 21.) Feeling that she was thus already
The Court accepts the complaint’s factual allegations, as set forth below, as true for the
purposes of evaluating the motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc.,
116 F.3d 1364, 1369 (11th Cir. 1997).
performing the role of the department manager, Urban-Klohn asked her store
manager, Larry Smith, why she was not being promoted into that position. (Id.
at ¶ 22.) Although she does not recount how he answered her, she says that she
learned from coworkers that Smith refused to put a woman in that position. (Id.
at ¶ 23.) Lastly, Urban-Klohn also became aware that men in her same, or lower,
position were making more money than she was. (Id. at ¶ 24.) She worked at
Walmart until 2000.
Urban-Klohn also provides an additional sixty paragraphs of background
information regarding Walmart’s organizational structure, the roles various
salaried positions played in the organization regarding compensation and
promotional decisions, and a number of policies and practices that guided these
decisions. (E.g., id. at ¶¶ 25–85.) Urban-Klohn additionally sets forth facts
showing that Walmart’s management team was aware that, on average, female
employees were paid less than men and many female employees experienced
other disparities. (Id. at ¶¶ 43, 73–85).
2. Legal Standard
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all the complaint’s allegations as true,
construing them in the light most favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008). A pleading must only contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) challenges the legal
sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In assessing the legal
sufficiency of a complaint’s allegations, the Court is bound to apply the pleading
standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint “must . . .
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289
(11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). “Dismissal is therefore
permitted when on the basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action.” Glover v. Liggett Grp., Inc.,
459 F.3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing
Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174
(11th Cir. 1993). “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.” Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id.
A. Urban-Klohn fails to sufficiently allege that Walmart intentionally
discriminated against her with respect to her pay.
Under Title VII of the Civil Rights Act, it is unlawful for an employer “to
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). “[C]omplaints alleging discrimination . . . must meet
the ‘plausibility standard’ of Twombly and Iqbal.” Henderson v. JP Morgan Chase
Bank, N.A., 436 Fed. App’x 935, 937 (11th Cir. 2011). Thus, Urban-Klohn’s
complaint must contain “sufficient factual matter” to support a reasonable
inference that Walmart engaged in intentional gender discrimination against her
in relation to her compensation. Henderson, 436 Fed. App’x at 937. There are
any number of ways Urban-Klohn can do this, including “alleging facts showing
that similarly-situated [male employees] were offered more favorable
[employment] terms,” id., or direct evidence of discrimination, Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). After careful review, the
Court agrees with Walmart and finds Urban-Klohn has not set forth sufficient
factual allegations that would demonstrate, either directly or circumstantially,
that she personally suffered any adverse employment consequences based on
intentional gender discrimination regarding her compensation.
Urban-Klohn challenges this conclusion, relying on Swierkiewicz v.
Sorema N. A., 534 U.S. 506 (2002), and at the same time insisting she has met
Twombly’s plausibility standards by pleading “enough fact to raise a reasonable
expectation that discovery will reveal evidence” of the defendant’s liability. (Pl.’s
Resp., ECF No. 13, 12 (quoting Twombly, 550 U.S. at 556).) While the Court
agrees that Swierkiewicz supports Urban-Klohn’s position that she need not set
forth evidence establishing a prima facie case under the McDonnell framework2
in order to survive dismissal, the Court nonetheless disagrees that that case
absolves her from alleging actual facts which support her claim of gender
discrimination. See Pouyeh v. UAB Dept. of Ophthalmology, 625 Fed. App’x 495,
497 (11th Cir. 2015) (holding that a complaint must contain factual allegations
demonstrating, either directly or circumstantially, that a defendant’s actions
were discriminatory); Henderson, 436 Fed. App’x at 938 (requiring a plaintiff to
2 Under the McDonnell framework, “[a] plaintiff establishes a prima facie case of disparate
treatment by showing that she was a qualified member of a protected class and was subjected
to an adverse employment action in contrast with similarly situated employees outside the
protected class.” Wilson, 376 F.3d at 1087. If such comparators are unavailable, a plaintiff may
establish a prima facie case by “present[ing] a convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination by the decisionmaker.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (quotations and citations omitted).
plead facts that “raise a plausible inference that [the defendant] discriminated
against [the plaintiff]”). Ultimately, Urban-Klohn’s allegations cannot carry her
For example, in support of her insistence that she has set forth sufficient
facts, Urban-Klohn points to her allegations that “she was paid less than
similarly-situated male employees,” and “review[ed] . . . male employee[s’]
paystubs showing they were earning more than females.” (Pl.’s Resp. at 13.) But
these allegations are nothing but “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements,” and therefore “do not
suffice.” Watts v. Ford Motor Co., 519 Fed. App’x 584, 586 (11th Cir.
2013) (quoting Iqbal, 556 U.S. at 678). And while the Court agrees with UrbanKlohn that “[s]he is not required to lay out every single detail of her employment
in her Complaint” (Pl.’s Resp. at 13), she must nonetheless provide at least some
“nonconclusory descriptions of specific, discrete facts of the who, what, when,
and where variety” that plausibly show she is actually entitled to relief. Watts,
519 Fed. App’x at 587 (quoting Feliciano v. City of Miami Beach, 707 F.3d 1244,
1253 (11th Cir. 2013)). It is not enough, as Urban-Klohn adamantly maintains,
for her to simply “identif[y] the store where she worked and the years she was
employed by Wal-Mart.” (Pl.’s Resp. at 13.) There is nothing in these facts that
would differentiate between an employee who experienced discrimination from
one who did not. See Veale v. Florida Dept. of Health, 2:13-CV-77-FTM-38UAM,
2013 WL 5703577, at *5 (M.D. Fla. July 29, 2013) (requiring “allegations of
specific facts to explain how the disparate treatment occurred” in order to
properly plead Title VII discrimination).
Nor can the allegations Urban-Klohn sets forth within her disparate
treatment count, or elsewhere, save her, as she suggests. These allegations, too,
all suffer from their threadbare and conclusory nature as shown, by example, in
“Wal-Mart violated Title VII by paying Plaintiff less than similarly-qualified
or less-qualified male employees.” (Am. Compl. at ¶ 87.)
“Wal-Mart’s discriminatory practices . . . have denied
compensation to which she is entitled.” (Id. at ¶¶ 88, 91.)
“Wal-Mart denied Plaintiff pay equal to that earned by similarly situated
men.” (Id. at ¶ 89.)
“Wal-Mart’s conduct of discriminating against Plaintiff by making
compensation [decisions] on the basis of gender violates Title VII.” (Id. at ¶
These allegations all amount to nothing more than legal conclusions and
formulaic recitations of the elements of Title VII discrimination claims. “These
allegations might have survived a motion to dismiss prior to Twombly and Iqbal.
But now they do not.” Ansley v. Florida, Dept. of Revenue, 409CV161-RH/WCS,
2009 WL 1973548, at *2 (N.D. Fla. July 8, 2009) (requiring a “plaintiff in an
employment-discrimination case [to] allege facts that are either (1) sufficient to
support a plausible inference of discrimination, or (2) sufficient to show, or at
least support an inference, that he can make out a prima facie case under the
familiar burden-shifting framework set forth in McDonnell”).
Furthermore, Urban-Klohn’s allegations regarding “Wal-Mart’s policy of
gender discrimination in Region 46” and “its systematic disparate pay issues
during . . . Plaintiff’s employment” (Pl.’s Resp. at 13) cannot secure her
entitlement to relief. While “proof that an employer engaged in a pattern or
practice of discrimination may be of substantial help in demonstrating an
employer’s liability in the individual case[,] such proof cannot relieve the plaintiff
of the need to establish each element of his or her claim.” Chin v. Port Auth. of
New York & New Jersey, 685 F.3d 135, 149 (2d Cir. 2012). So, for example,
Urban-Klohn’s allegation that, at some point, “[w]omen who held hourly
positions in the store where Plaintiff . . . worked have been regularly paid less
than similarly-situated men” even though, “on average, those women have more
seniority and higher performance ratings than their male counterparts” is
insufficient to show that she herself experienced pay discrimination—or even pay
disparity. (Am. Compl. at ¶ 41.) This same principle applies to Urban-Klohn’s
allegations that “Managers in the store where Plaintiff has worked . . . justified
denying promotions to women or paying them less than their male employees
because of perceived family obligations of the women and male responsibility to
support their families or because of their presumed inability to relocate.” (Id. at
¶ 68.) Again, although “[e]vidence of an employer’s general practice of
discrimination may be highly relevant to an individual disparate treatment . . .
claim,” it is nonetheless not a viable “method of proof as an independent and
distinct method of establishing liability.” Chin, 685 F.3d at 150.
Finally, Urban-Klohn’s attempts to tie these allegations of a pattern and
practice of discrimination throughout the Walmart organization to the actual
discrimination she says she herself was individually subjected to also fail. In
each instance, Urban-Klohn’s allegations are again conclusory and without any
actual factual basis of support, for example:
“Women, including Plaintiff, have been assigned to stores that generate
lower profits, and a result were paid less than their male counterparts.”
(Am. Compl. at ¶ 60.)
“Plaintiff brings this claim individually but does so with the knowledge of
other Plaintiffs from the same Wal-Mart Region with similar experiences.”
(Id. at ¶ 85.)
Even under the most liberal construction, these legal conclusions, generalities,
and sweeping statements, without any actual supporting facts, do not
sufficiently state a claim for discrimination that is plausible on its face. At most,
Urban-Klohn has succeeded in establishing only the “sheer possibility” that
Walmart has acted unlawfully. Iqbal, 556 U.S. at 678.
B. Urban-Klohn fails to sufficiently allege claims for disparate impact
regarding her pay.
Title VII makes an employer liable for disparate impact if “a complaining
party demonstrates that a respondent uses a particular employment practice
that causes a disparate impact on the basis of . . . sex . . . and the respondent
fails to demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity.” 42 U.S.C. § 2000e–2(k)(1)(A)(i).
“[A] plaintiff can recover under the disparate impact theory by proving that some
employment practice that is facially neutral in its treatment of similarly situated
employees has a disproportionately adverse effect on those employees who are a
member of some protected class.” Mitchell v. Jefferson County Bd. of Educ., 936
F.2d 539, 546 (11th Cir. 1991).
Urban-Klohn’s allegations here fail to state a claim for disparate impact
with respect to the pay of female versus male Walmart employees. To begin with,
much like her allegations of disparate treatment, Urban-Klohn’s allegations of
disparate impact lack factual support. For instance, she charges that “Walmart’s compensation policies, including its policy of using a set of prescribed
factors to set starting pay for hourly associates at a pay rate above the minimum
rate, as well as its policy of setting pay adjustments based on the associates’
prior pay, have,” together, “had an adverse impact upon female employees in the
store where Plaintiff has worked.” (Id. at ¶ 42.) Not only does this allegation fail
to set forth specific supporting facts, it fails to identify the facially neutral aspects
of the policies that have resulted in the purportedly adverse impact. Many of
Urban-Klohn’s other disparate-impact allegations are of the same ilk: for
example, she says that “higher pay offered to external candidates as compared
to internally-promoted [trainees] provided another opportunity to pay men more
than women.” (Id. at ¶ 52.) This allegation too is exactly the type of conclusory
assertion that was held to be insufficient in Iqbal.
Additionally, many of Urban-Klohn’s allegations fail to connect the adverse
impact of a particular policy or procedure to any specific injury she herself has
suffered. For example, Urban-Klohn explains that the “formulaic use of prior pay
rates to set starting Assistant Manager pay meant prior pay disparities adverse
to women would be perpetuated” and that “the use of exceptions . . . provided
the opportunity to create additional disparities adverse to women.” (Am. Compl.
at ¶ 57.) She also complains that “[p]erformance ratings . . . could incorporate
bias and unfairly rate women Assistant Managers lower than their peers.” (Id. at
¶ 58.) Similarly, she says, “merit increases were computed as a percentage of the
base pay rate, perpetuating prior disparities in pay,” providing another
“opportunity for these decisionmakers to exercise bias in choosing whom to favor
with these discretionary pay increases.” (Id. at ¶ 59.) But none of these assertions
is ever factually tied to adverse impacts Urban-Klohn says she herself endured.
How did Urban-Klohn’s own prior pay result in an adverse decision regarding
her own starting base pay? What pay “exceptions” were applied such that she
herself was negatively impacted? How did “performance ratings” negatively
impact her? How did policies relating to assistant managers apply to her?
Without supplying any causal links between the complained of policies and her
own injury, Urban-Klohn cannot establish standing to complain about the
resulting disparate impact based on these allegations. See Tartt v. Wilson County,
Tennessee, 592 Fed. App’x 441, 447 (6th Cir. 2014) (“[A] plaintiff making an
individual disparate-impact claim for discrimination must show that the
challenged policy directly disadvantaged him in some fashion.”) (quotation
Furthermore, many of the policies Urban-Klohn specifically identifies as
having an adverse impact, were not introduced until years after Urban-Klohn
had worked at Walmart. For example, Urban-Klohn identifies “a new pay
structure” that Walmart implemented in 2004. (Am. Compl. at ¶ 45.) UrbanKlohn alleges that this “2004 pay restructuring had an adverse impact on female
employees, including Plaintiff.” (Id. at ¶ 46.) She similarly points to policies and
procedures that Walmart adopted in 2005 and 2006 that both “had an adverse
impact on women, including Plaintiff.” (Id. at ¶¶47, 48.) These practices cannot
possibly have adversely impacted Urban-Klohn when she says her employment
ended in 2000.
Finally, Urban-Klohn lists a wide range of policies and practices which she
maintains have together combined to adversely impact the compensation of
women at Walmart. Ordinarily, a plaintiff must “demonstrate that each
particular challenged employment practice causes a disparate impact.” 42 U.S.C.
§ 2000e-2(k)(1)(B)(i). However, when a plaintiff is able to “demonstrate to the
court that the elements of a respondent’s decisionmaking process are not
capable of separation for analysis, the decisionmaking process may be analyzed
as one employment practice.” Id. The problem with Urban-Klohn’s allegations
The Court does not separately address Walmart’s standing arguments because it finds that,
aside from these allegations, other allegations in Urban-Klohn’s complaint have sufficiently set
forth the elements of Article III standing.
here is that she fails to connect the dozens of policies and procedures listed in
her complaint with discernible, identifiable adverse employment impacts.
Instead, she simply generally describes a jumble of disjointed policies and
procedures—some affecting pay decisions; some affecting promotion decisions;
some in force while Urban-Klohn was employed; some not; some affecting
management positions; and some affecting only hourly positions—and then
asserts that these policies “ha[ve] had an adverse impact on women,” “collectively
and individually,” with respect to pay decisions. (Am. Compl. at ¶ 96.) She
maintains that she can allege this jumble of policies collectively because (1) “WalMart has failed . . . to create or maintain the data that would allow analysis of
the impact of each of these policies and practices individually” and (2) Walmart
does not “specify the weight that should be accorded to each of its requirements
for pay.” (Id. at ¶ 98; see also id. at ¶¶ 40, 44 (asserting that Walmart does not
document the reasons for its compensation decisions).)
But in order to proceed in this way, Urban-Klohn must do more than just
complain about Walmart’s recordkeeping practices and instead she must allege
that the many steps or practices involved are “so intertwined that they were not
capable of separation for analysis” and actually “explain why the well-defined,
discrete elements of the [decisionmaking process] are ‘not capable of separation
for analysis.’” Davis v. Cintas Corp., 717 F.3d 476, 497 (6th Cir. 2013); see also
Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005) (“[I]t is not enough to
simply allege that there is a disparate impact on workers, or point to a
generalized policy that leads to such an impact. Rather, the employee is
responsible for isolating and identifying the specific employment practices that
are allegedly responsible for any observed statistical disparities.”) (quotation
omitted) (emphasis in original). Strikingly, Urban-Klohn herself seems to
acknowledge that the practices are capable of separation when she says that the
policies are both collectively and individually responsible for the resulting
adverse impacts. (See Am. Compl. at ¶ 96.) Regardless, in the end, Urban-Klohn’s
allegations amount to nothing more than a description of a number of
employment practices that she thinks generally favor men over women and her
contention that, lumped together, are correlated with various disparate impacts.
But, “[i]t is simply not enough to ‘point out that the hiring practices at issue are
relatively less generous’ to some workers than to others.” Davis, 717 F.3d at 497
(quoting Smith, 544 U.S. at 241 (internal quotation alterations in original
omitted)). In sum, “a bare assertion of . . . imbalances in the workforce is not
enough to establish a Title VII disparate impact claim.” Bennett v. Nucor Corp.,
656 F.3d 802, 818 (8th Cir. 2011).
For the foregoing reasons, the Court finds Urban-Klohn’s complaint and
this action are due to be dismissed for her failure to state a claim on either count
and therefore grants Walmart’s motion (ECF No. 7). Because the Court finds the
complaint due to be dismissed for these reasons, it declines to address the other
alleged insufficiencies Walmart points to. Further, the Court dismisses UrbanKlohn’s complaint without leave to amend. Urban-Klohn has not requested leave
to amend; nor has she indicated any inclination to do so. And, because UrbanKlohn—twice as a putative class member, then as part of a group of plaintiffs,
and now as an individual—has had multiple opportunities to amend her
complaint, the Court dismisses her complaint with prejudice. See Wagner v.
Daewoo Heavy Industries Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (“A
district court is not required to grant a plaintiff leave to amend his complaint
sua sponte when the plaintiff, who is represented by counsel, never filed a motion
to amend nor requested leave to amend before the district court.”); Avena v.
Imperial Salon & Spa, Inc., 17-14179, 2018 WL 3239707, at *3 (11th Cir. July 3,
2018) (“[W]e’ve rejected the idea that a party can await a ruling on a motion to
dismiss before filing a motion for leave to amend.”); Federated Dep't Stores, Inc.
v. Moitie, 452 U.S. 394, 399 n.3 (1981) (“[D]ismissal for failure to state a claim
under [Rule] 12(b)(6) is a ‘judgment on the merits.’”); compare with Carter v.
HSBC Mortg. Services, Inc., 622 Fed. App’x 783, 786 (11th Cir. 2015) (“A pro se
plaintiff, however, must be given at least one chance to amend the complaint
before the district court dismisses the action with prejudice, at least where a
more carefully drafted complaint might state a claim.”) (quotations omitted)
(emphasis in original).
The Clerk is directed to close this case. Any pending motions are denied
Done and ordered, at Miami, Florida, on October 8, 2019.
Robert N. Scola, Jr.
United States District Judge
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