Williams v. Wal-Mart Stores, Inc.

Filing 20

ORDER granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim; denying as moot 8 Motion to Stay. Signed by Judge Robert N. Scola, Jr. on 10/10/2019. See attached document for full details. (kbe)

United States District Court
for the
Southern District of Florida
Pamela Williams, Plaintiff,

)
)
v.
) Civil Action No. 19-81021-Civ-Scola
)
Wal-Mart Stores, Inc., Defendant.
)
Order Granting in Part and Denying in Part 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, Pamela Williams, after again seeking relief through a regional class action
and then as a member of a 33-plaintiff complaint, now seeks redress individually.
In her amended complaint (Am. Compl., ECF No. 3), Williams lodges two counts
under Title VII regarding her compensation and promotion opportunities: in
count one she alleges disparate treatment and in count two she alleges disparate
impact. Walmart contends Williams does not plead specific, individualized facts
showing that she, herself, was discriminated against, either through disparate
treatment or impact; and Williams fails to establish standing. After careful
review, the Court agrees that Williams fails to state a claim under Federal Rule
of Civil Procedure 12(b)(6) with respect to her disparate impact claims as well as
her disparate treatment claim regarding promotions. However, the Court finds
she has indeed stated a claim for disparate treatment with respect to her pay
claim. The Court thus grants in part and denies in part Wal-Mart’s motion to
dismiss (ECF No. 7).
1. Background1
When Williams joined Walmart in 2000, in its store number 0725, she had
“experience as a manager with GE Capital and Golf and Tennis Resorts.” (Am.
Compl. at ¶ 121.) She began working at Walmart on a part-time basis while
continuing a position as an accounting manager with a travel company. (Id.) At
some point, also in 2000, Williams took a part-time position in the store’s bakery
while she began school to get a business degree. (Id. at ¶ 122.) Thereafter, when

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).

1

she began attending school in the daytime, she transferred to a full-time night
position in the store’s cash office. (Id. at ¶ 123.)
While employed, Williams told an assistant store manager, “Tammy,” that
she was interested in Walmart’s assistant manager training program. (Id. at ¶
124.) Tammy advised her that, to qualify for the program, she had to have a twoyear college degree for management—which Williams did not yet have. (Id.)
Williams was also told that she would have to travel, relocate, and give up her
$1.00 pay differential. (Id.) In sum, Williams says, she was discouraged from
seeking the position. (Id.) Throughout her tenure she sought additional
promotions, including a support manager position, but was continually denied
any opportunities to advance. (Id. at ¶ 127.)
Later in her employment, Williams was told, as company policy, she would
lose her $1.00 pay differential when she transferred to the day shift. (Id. at ¶
125.) Afterwards, however, she found out that her male counterpart had been
permitted to switch to a day shift without losing his differential. (Id.) When she
complained about this, Williams was told, “that was the deal we made with him.”
(Id.) She subsequently learned that that same male employee got a raise. (Id. at
¶ 126.) But when she asked for a raise herself, her request was denied and she
was told that her male counterpart had a “family to raise.” (Id.) She was also
advised that the company had reached its quarterly merit-raise quota. (Id.)
Williams believes she was paid less than other similarly situated men within her
region. (Id. at ¶ 129.)
Eventually Williams left Walmart, in 2003, when she realized there were
no opportunities for women to advance within the company. (Id. at ¶ 128.)
Williams also provides an additional twenty-five pages of background
information regarding Walmart’s organizational structure, the roles various
salaried positions played in the organization regarding compensation and
promotion decisions, and a number of policies and practices that guided these
decisions. (E.g., id. at ¶¶ 37–70, 74–99.) She additionally relays a statistical
analysis that indicates that, at some point (she does not specify when), 85 to 90
percent of the stores in Walmart region 10—Williams’s region—“show disparate
pay that is lower for women as compared to similarly situated men.” (Id. at ¶ 71.)
Williams also 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 ¶¶ 72, 107–119). And she
further maintains that female Walmart employees are less likely than their male
counterparts to receive promotions to management positions (id. at ¶ 83) and
must wait significantly longer for promotions despite having equal or better
qualifications (id. at ¶¶ 83–84). Williams also lists nineteen incidents, occurring

at other stores in her region, where other women experienced gender-based
discrimination. (Id. at ¶¶ 100–01.)
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.
3. Discussion
A. Williams fails to sufficiently allege that Walmart intentionally
discriminated against her with respect to her promotion
opportunities but succeeds in stating a claim for discriminatory pay
disparity.
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, Williams’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 and denial of promotions. Henderson, 436 Fed. App’x at 937.
There are any number of ways Williams 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 that Williams has not set forth sufficient factual
allegations that would demonstrate, either directly or circumstantially, that she
personally suffered any adverse consequences with respect to her promotion
opportunities. On the hand, however, the Court finds Williams has succeeded in
setting forth sufficient factual support to carry her past dismissal on her
compensation claim.
Williams challenges Walmart’s motion to dismiss by 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. 14, 12 (quoting Twombly, 550 U.S. at 556).) While
the Court agrees that Swierkiewicz supports Williams’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 that 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
plead facts that “raise[] a plausible inference that [the defendant] discriminated
against [the plaintiff]”). Ultimately, with one exception, Williams’s allegations do
not survive dismissal.
For example, in support of her insistence that she has set forth sufficient
facts, Williams first points to her allegation that “she sought management level
opportunities but was only offered hourly positions while she saw men with less
tenure than her promoted over her.” (Pl.’s Resp. at 16.) Indeed, in her complaint,
Williams specifically says she “expressed interest in the Assistant Manager
training program” and sought to be promoted to a support manager position.
(Am. Compl. at ¶¶ 124, 127.) And while she says “[s]he was discouraged from
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).

seeking [advancement]” (id. at ¶ 124), nothing about these allegations depicts,
or even implies, any actual discriminatory intent. Nor does her complaint even
set forth facts, with respect to her promotion claim, that Williams sought a
specific promotion into an open or available position or that she was even
qualified for such a promotion. Her further assertion that she was “denied
promotional opportunities” for four categories of various manager positions does
not fill these gaps, especially since she describes these positions, or their
“position equivalent,” in only the vaguest of terms. (Am. Compl. at ¶ 106.a.ii.)
Lastly, her allegation that “there were no opportunities at Wal-Mart for women
to move up” (id. at ¶ 128), also fails to supply any actual facts showing
discriminatory intent. Nothing set forth in any of these allegations would enable
the Court to reasonably infer that Walmart’s decision not to promote Williams
was due to discriminatory animus. See Veale v. Florida Dept. of Health, 2:13-CV77-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).
Next, many of Williams’s disparate-pay treatment allegations also fail to
set forth sufficient factual allegations. For example, Williams’s assertion that she
“believes she was paid less than other similarly situated men during her
employment within Region 10” is also insufficient. This allegation is nothing but
a “[t]hreadbare recital[] of the elements of a cause of action, supported by mere
conclusory statements,” and therefore “do[es] 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 Williams 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 Williams 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.
Nor can the vast majority of the allegations Williams sets forth within her
disparate treatment count, or elsewhere, save her, as she argues in her response.
Many of these allegations, too, all suffer from their threadbare and conclusory
nature as shown, by example, in the following:


“Plaintiff herein has been denied equal pay for salaried positions or hourly
positions.” (Am. Compl. at ¶ 106.a.i.)



“Additionally, Plaintiff has been denied promotional opportunities for”
various generically identified managerial positions. (Id. at ¶ 106.a.ii.)



“Wal-Mart denied Plaintiff pay equal to that earned by similarly situated
men, on the basis of gender.” (Id. at ¶ 131.)



“Wal-Mart denied Plaintiff equal opportunities for promotion to positions
that she was qualified for and interested in, on the basis of gender.” (Id. at
¶ 132.)



“Wal-Mart’s conduct of engaging in discrimination against the Plaintiff . . .
by making compensation and promotion decisions on the basis of gender
violates Title VII.” (Id. at ¶ 133.)



“The Defendant has failed to comply with [its] statutory duty . . . to
eliminate discrimination from the work place.” (Id. at ¶ 134.)

Every single one of these allegations amounts 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”).
Despite the failings of nearly every single one of Williams’s allegations,
however, her allegation that she was told a “male counterpart” received a raise
when she did not because he had a “family to raise” (Am. Compl. at ¶ 126) is,
liberally construed, actual evidence of discriminatory intent. This lone allegation,
even though not even mentioned, astonishingly, in Williams’s response, saves
her complaint from being dismissed in its entirety. Indeed, although a slender
reed, this allegation, if true, nonetheless indicates a plausible gender-based
animus conveyed by an apparent decisionmaker at Walmart: a male was being
paid more because of the apparent assumption that, based on his gender, he
had more familial responsibilities than a female employee. See Wilson, 376 F.3d
at 1086 (defining “direct evidence of discrimination as evidence which reflects a
discriminatory or retaliatory attitude correlating to the discrimination or
retaliation complained of by the employee”) (quotation omitted). This statement
is a “blatant remark” that shows a discriminatory motive. Compare id. (noting
that statements that an employee of a different gender from the plaintiff was “the
obvious choice” does not evidence an intent to discriminate) with id. at 1087
(finding evidence of discrimination “where the decisionmaker stated that women

were simply not tough enough to do the job from which the plaintiff had been
removed”).
As an aside, the Court also notes that Williams’s allegations regarding
“Wal-Mart’s policy of gender discrimination in Region 10” and “its systematic
disparate pay and promotional issues during . . . Plaintiff’s employment” (Pl.’s
Resp. at 12–13) would not, by themselves, 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, Williams’s allegation that, at some
point, 85 to 90 percent of the stores in her region showed pay disparities between
women as compared to similarly situated men is insufficient to show that she
herself experienced pay discrimination—or even pay disparity. (Am. Compl. at ¶
71.) 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.
Furthermore, Williams’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, Williams’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 ¶ 69.)


“Here, Plaintiff was affected by that discriminatory pay system.” (Id. at ¶
72.)



“As a consequence [of various policies and practices], qualified women,
including the Plaintiff herein, in Plaintiff’s Region have been denied equal
access to promotions because of their gender.” (Id. at ¶ 79.)



“Walmart accomplished [its] discrimination by: engaging in a pattern or
practice of making pay and promotion decision[s] on the basis of gender
and specifically paying each Plaintiff less than her similarly situated male
peers and denying Plaintiff promotional opportunities.” (Id. at ¶ 106.a.)



Walmart discriminated by “acting with reckless indifference to the rights
of Plaintiff despite [sic] systemic gender discrimination in the equal pay
and promotion of its female employees.” (Id. at ¶ 106.d.)



“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 ¶ 119.)

Even under the most liberal construction, these legal conclusions, generalities,
and sweeping statements, without any actual supporting facts, would not alone
sufficiently state a claim for discrimination that is plausible on its face.
But, because the Court finds Williams’s allegation than a man was paid
more because he had a “family to raise” is direct evidence, if true, of
discrimination, her disparate treatment claims with respect to pay can go
forward.
B. Williams fails to sufficiently allege claims for disparate impact
regarding either pay or promotion opportunities.
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).
Williams’s allegations here fail to state a claim for disparate impact with
respect to the pay and promotion of female versus male Walmart employees. To
begin with, much like her allegations of disparate treatment, Williams’s
allegations of disparate impact lack factual support. For instance, she charges
that “Wal-mart’s compensation policies, including its failure to require managers
to base pay decisions for individual employees on job related criteria . . . , its
policy of setting pay adjustments based on the associates’ prior pay, and its 2004
pay class restructuring have,” together, “had an adverse impact upon female
employees . . . including the Plaintiff.” (Id. at ¶ 73.) 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 Williams’s other disparate-impact allegations are of the same ilk:


“[Q]ualified women” “have been denied equal access to promotion because
of their gender” as a result of Walmart’s failure “to specify the weight that
should be accorded any requirements for promotion, provide for detailed
objective criteria for the selection of employees for promotion, or monitor

the policies and practices used . . . for the selection of employees for
promotion.” (Id. at ¶ 79.)


“Wal-Mart’s promotion policies, including its failure to require managers
to base promotion decisions for individual employees on job related
criteria, have had a statistically significant adverse impact upon its female
employees . . . , including the Plaintiff.” (Id. at ¶ 94.)



Walmart’s policies (such as “its failure to require or use job related criteria
for making compensation decisions, its policy of setting pay adjustments
based on the associate’s prior pay,” “its 2004 pay class restructuring,” “its
failure to provide for an open application process or job posting; its
relocation and travel requirements for management positions, its
scheduling requirements . . . ; and its failure to apply job-related objective
criteria for making management selections”) all adversely impacted
Williams. (Id. at ¶ 146.)

These are all exactly the types of conclusory assertions that were held to be
insufficient in Iqbal.
Additionally, many of Williams’s allegations fail to connect the adverse
impact of a particular policy or procedure to any specific injury she herself has
suffered. For example, Williams 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 ¶ 66.) She also complains that “[p]erformance ratings . . . could incorporate
bias and unfairly rate women Assistant Managers lower than their peers.” (Id. at
¶ 67.) Similarly, she says that because “merit increases were computed as a
percentage of the base pay rate,” “prior disparities in pay” were “perpetuat[ed]”
and “provided an opportunity for . . . decisionmakers to exercise bias in choosing
whom to favor.” (Id. at ¶ 68.) Williams further maintains that “promotional
policies and practices regarding management-track positions have denied
interested and qualified females equal access to promotional opportunities
because promotion opportunities are not posted, there is not an open application
system, and employees are not informed of the criteria for promotion.” (Id. at ¶
79; see also, ¶¶ 80 (complaining of policies that “resulted in the exclusion of
interested and qualified women in Plaintiff’s region from the management
training program”), 82 (pointing out that “Wal-mart has had a significantly lower
percentage of female managers than its largest competitors”), 83 (similar), 84
(similar), 149 (maintaining that “Wal-Mart’s discriminatory practices . . . have
denied female employees promotional opportunities and compensation to which
they are entitled, which has resulted in the loss of past and future wages and
other job benefits”). But none of these assertions is ever factually tied to adverse

impacts Williams says she herself endured. How did Williams’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? What was it about the lack of
a job posting or an open application system that prevented her from having
“equal access to promotional opportunities”? How did policies relating to
assistant managers apply to her? Without supplying any causal links between
the complained of policies and her own injury, Williams 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 omitted).3
Furthermore, many of the policies Williams specifically identifies as having
an adverse impact, were not introduced until after Williams had worked at
Walmart. For example, Williams identifies “a new pay structure” that Walmart
implemented in 2004. (Am. Compl. at ¶ 60.) Williams alleges that this “2004 pay
restructuring had an adverse impact on female employees, including Plaintiff,
and was not justified by business necessity.” (Id.) 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 ¶¶61, 62.) These practices
cannot possibly have adversely impacted Williams when she says her
employment ended in 2003.
Finally, Williams lists a wide range of policies and practices which she
maintains have together combined to adversely impact the compensation and
promotion opportunities 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 Williams’s allegations 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 Williams was employed; some

The Court does not separately address Walmart’s standing arguments because it finds that,
aside from these allegations, other allegations in Williams’s complaint have sufficiently set forth
the elements of Article III standing.
3

not; some affecting management positions; and some affecting only hourly
positions—and then asserts that these policies “have had an adverse impact on
women,” “collectively and individually,” with respect to pay and “have all,
individually and collectively” adversely impacted female employees in
promotions. (Am. Compl. at ¶ 146.) She maintains that she can allege this jumble
of policies collectively because (1) “Wal-Mart 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 and promotion.” (Id. at ¶ 147;
see also id. at ¶ 94 (asserting that Walmart does not document the reasons for
promotions and Walmart “does not create or maintain records that identify the
impact of separate components of its promotion policies and practices”).)
But in order to proceed in this way, Williams 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, Williams 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 ¶ 146.) Regardless, in the end, Williams’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).
4. Conclusion
For the foregoing reasons, the Court dismisses with prejudice: Williams’s
claim for disparate impact in its entirety; and her claim for disparate treatment

with respect to her promotion opportunities. Her claim for disparate treatment
as it relates to her compensation survives Walmart’s motion to dismiss, as set
forth above. The Court also denies Walmart’s request to strike various allegations
in the amended complaint. See Regions Bank v. Commonwealth Land Title Ins.
Co., 11-23257-CIV, 2012 WL 5410609, at *2 (S.D. Fla. Nov. 6, 2012) (Scola, J.)
(“Motions to strike . . . will usually be denied unless the allegations have no
possible relation to the controversy and may cause prejudice to one of the
parties.”) (quotations omitted). The Court accordingly grants in part and denies
in part Walmart’s motion to dismiss (ECF No. 7).
The Court dismisses Williams’s claims, as set forth above, with prejudice
and without leave to amend. Although Williams states in her response that she
“has agreed to amend,” this is not a proper method by which a party may seek
leave to amend. See Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1222 (11th
Cir. 1999) (“Where a request for leave to file an amended complaint simply is
imbedded within an opposition memorandum, the issue has not been raised
properly.”) Moreover, the “additional details” Williams proffers will not salvage
the deficiencies outlined above nor is Williams even sure that she can properly
rely on the new allegations she seeks to add to her complaint. Because
Williams—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, Williams’s claims are dismissed 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 Court denies Walmart’s motion to stay discovery (ECF No. 8) as moot.
Walmart must file its answer to the remaining claim in Williams’s complaint on
or before October 21, 2019. The Court will enter a scheduling order in this case

shortly.
Done and ordered, at Miami, Florida, on October 10, 2019.
________________________________
Robert N. Scola, Jr.
United States District Judge