Padron et al v. Wal-Mart Stores, Inc., d/b/a Walmart

Filing 23

REPLY by Wal-Mart Stores, Inc. to MOTION by Defendant Wal-Mart Stores, Inc. to dismiss (MOTION FOR PARTIAL DISMISSAL OF COMPLAINT) 18 , response to motion 22 (King, Alan)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROLAND PADRON, BOBIRT R.MIRANDA
)
and EUSEBIO R. CALZADA, individually and )
on behalf of all others similarly situated,
)
)
Plaintiffs,
)
v.
)
)
WAL-MART STORES, INC. d/b/a WALMART, )
)
Defendant.
)

Case No. 10-CV-06656
Judge Zagel
Magistrate Judge Soat Brown

DEFENDANT’S REPLY TO PLAINTIFFS’ RESPONSE TO
WAL-MART’S MOTION FOR PARTIAL DISMISSAL OF COMPLAINT
Defendant, Wal-Mart Stores, Inc., (“Defendant” or “Walmart”), by its attorneys,
Drinker Biddle & Reath LLP, submits this memorandum in reply to Plaintiffs Roland Padron’s,
Bobirt R. Miranda’s and Eusebio R. Calzada’s (together, “Plaintiffs”) response to Defendant’s
Motion for Partial Dismissal of the Class Action Complaint (“Plaintiffs’ Response”).
I.

INTRODUCTION
In Plaintiffs’ Response, Plaintiffs do not discuss or make any attempt to distinguish any

of the cases cited by Defendant in support of its various arguments. Rather, Plaintiffs cite only
a handful of cases, all of which are easily distinguishable factually and legally. Plaintiffs also
admit that they “cannot provide more factual specificity at the pleading stage in this litigation.”
(Plaintiffs’ Response at 3.) Indeed, they claim that “Plaintiffs could not ascertain the precise
compensation policy and management level decision making necessary to plead with more
factual specificity.” Id. Nevertheless, with respect to their purported disparate impact claim,
Plaintiffs now attempt to conjure up a purported facially neutral policy of “allowing store
managers to subjectively set and adjust hourly employees’ pay rates within a range” (Plaintiffs’
Response at 3), which was not alleged in their EEOC Charges or in their Complaint in this

action. In any event, as explained below, this purported “policy” is not sufficient to sustain a
disparate impact claim.
Acknowledging that they have no more factual specificity, Plaintiffs essentially ask this
Court to ignore the governing pleading standards and hand them the keys to enormously
expensive and burdensome class-based discovery because they believe such discovery might
turn up sufficient facts to state a plausible claim for relief. Plaintiffs’ attempt to put the “cart
before the horse” is directly contrary to the admonitions of the U.S. Supreme Court and the
Seventh Circuit, which require a complaint to include sufficient factual enhancement beyond
conclusory allegations and thread-bare recitations of the Rule 23 class action elements to
demonstrate that the plaintiff has a claim that is “plausible” and “probable.”
As explained below, Plaintiffs’ Complaint falls far short of the applicable pleading
threshold in order to state a plausible class-based disparate treatment claim, and Plaintiffs’
time-barred claims of pay discrimination—which are discrete acts—cannot be saved by the
continuing violation doctrine.

Further, Plaintiffs’ purported Title VII race claim is not

reasonably related to their EEOC Charges, and their claim of Cuban discrimination is not a
cognizable race discrimination claim under Section 1981.1
II.

REPLY ARGUMENT
A.

Plaintiffs’ Title VII Disparate Impact Claim (Count I) Should Be Dismissed
Because Plaintiffs’ EEOC Charges and the Complaint Fail to Identify a
Specific Facially Neutral Policy

In Plaintiffs’ Response, Plaintiffs make no attempt to distinguish any of the cases cited
by Defendant that demonstrate that Plaintiffs’ purported disparate impact claim should be
1

Plaintiffs make the discourteous assertion that by simply defending itself, Defendant is engaged in “yet another
attempt to avoid accountability for discrimination” against its Cuban employees. (Plaintiffs’ Response at 2.)
While Defendant indeed denies that it engaged in any discrimination against Plaintiffs or anyone in their purported
class, Defendant has not moved to dismiss any of Plaintiffs’ individual discrimination or retaliation claims in
Counts IV through IX.

2

dismissed because (1) the claim is outside the scope of their EEOC Charges, and (2) in any
event, the Complaint fails to identify any specific, facially neutral employment policy that
allegedly caused the disparate impact. Rather, they simply contend that a disparate impact
claim is within the scope of their EEOC Charges because the Charges are allegedly “silent on
the issue of intent” (Plaintiffs’ Response at 5), and further refer to a purported facially neutral
policy that is not alleged anywhere in their EEOC Charges, the EEOC’s Determinations or their
Complaint.
Plaintiffs argue that because their EEOC Charges are allegedly “silent on the issue of
intent,” they should be excused from their admitted failure to identify or even allege anything
suggesting that a facially neutral policy had a disparate impact on their pay. This contention
contradicts the entire point of the “scope of the charge” rule. Indeed, the fact that a plaintiff is
“silent” in a charge about a later claim that a facially neutral policy caused the alleged
discrimination is precisely the reason courts have held disparate impact claims to be beyond the
scope of the charge. See, e.g., Noreuvil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996);
Burton v. Illinois Educ. Assoc., 1997 WL 754142, *6 (N.D. Ill. Nov. 21, 1997) (dismissing
disparate impact claim where plaintiff’s EEOC charge “contains no hint whatsoever that she
was complaining of one or more of defendant’s policies”); Welch v. Eli Lily and Co., 2009 WL
734711, *2 (S.D. Ind. Mar. 18, 2009) (“Indeed, the presence of a neutral employment practice
is what separates a disparate impact claim from a disparate treatment claim. …Thus, courts
have consistently required that an EEOC charge identify or describe the neutral employment
practice which is alleged to disproportionately affect protected employees.”) (internal citations
omitted); see also Remien v. EMC Corp., 2008 WL 821887, *5 (N.D. Ill. Mar. 26, 2008)
(“While it is true that the law does not require a talismanic expression of a particular legal form

3

of grievance, there is a necessity for the EEOC charges to provide that a facially neutral policy
or policies resulted in unintended but adverse consequences to the protected class.”).
Moreover, Plaintiffs’ Charges are not, in fact, “silent on intent.” Rather, the Charges
specifically attribute Defendant’s alleged unlawful actions toward them to the fact that
Plaintiffs are of Cuban national origin. This is the hallmark of intentional discrimination.
Plaintiffs’ Charges allege:
I have been subjected to different terms and conditions than my non-Cuban coworkers such as a variable schedule, denial of make-up days, and lower wages.
On various occasions, most recently in November, I complained internally
regarding national origin discrimination. On November [], 2006, I was
discharged. I believe I have been discriminated against because of my national
origin, Cuban, and have been retaliated against in violation of Title VII of the
Civil Rights Act of 1964, as amended.
(Compl., Ex. A.) (emphasis added). Regardless of how liberally read, Plaintiffs’ Charges
“allege nothing more than a disparate treatment. As such, one would not expect a disparate
impact claim to ‘grow out of an EEOC investigation’ of the[se] charges.” Welch, 2009 WL
734711, at *3 (internal citation omitted); see also Jurszczak v. Bloomer Chocolate Co., 1999
WL 1011954, *4-5 (N.D. Ill. Sept. 24, 1997) (dismissing disparate impact claim where the
EEOC charge contained “no indication whatsoever that Plaintiff was complaining of one of
more of Defendant’s policies”). Accordingly, Plaintiffs’ disparate impact claim is barred.
Additionally, the cases cited by Plaintiffs in support of their “silent on intent” argument
are easily distinguishable because in those cases, unlike the present case, the EEOC charges did
allege a specific facially neutral policy that allegedly caused the discrimination. In Watkins v.
City of Chicago, 992 F. Supp. 971 (N.D. Ill. 1998), the plaintiff’s EEOC charge alleged that she
was disqualified from employment based on an alleged city policy that excluded from hire
individuals who have been arrested and charged with a felony. Id. at 973. In holding that the
plaintiff could state a disparate impact claim in her lawsuit, the court noted that “[t]his

4

allegation [in the EEOC charge] sets forth a City policy which, if true, may have a disparate
impact on African-Americans.” Id. Likewise, in Gomes v. Avco Corp., 964 F.2d 1330 (2d Cir.
1992), the EEOC charge alleged a specific facially neutral policy—the “eight year experience
rule”—which the plaintiff contended disproportionately excluded Portuguese workers from
skilled machinists positions. Id. at 1334. In the present case, unlike in Watkins and Gomes,
Plaintiffs’ EEOC Charges do not allege the existence of any specific policy—facially neutral or
otherwise—that was the cause of the alleged discrimination.

Thus, Plaintiffs’ purported

disparate impact claim in Count I is outside the scope of their EEOC Charges and should be
dismissed.2
Recognizing that it is not enough to simply allege the “compensation policy”
(Plaintiffs’ Response at 6), Plaintiffs also try to save their disparate impact claim by conjuring
up an alleged facially neutral employment policy. Plaintiffs contend that their “disparate
impact theory hinges on the specific, facially neutral compensation policy of allowing store
managers to subjectively set and adjust hourly employees’ pay rates within a range.”
(Plaintiffs’ Response at 5.) First, this so-called “policy” may not be considered on a motion to
dismiss because it is not alleged anywhere in Plaintiffs’ Charges or the Complaint, and
Plaintiffs are not permitted to amend their Complaint through their brief. Car Carriers, Inc. v.
Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984); Travel All Over the World, Inc. v.
Kingdom of Saudi Arabia, 73 F.3d 1423, 1430 & n.6 (7th Cir. 1996). Second, even if it could
properly be considered, a so-called facially neutral policy that consists of the subjective,
2

Without citation to any authority, Plaintiffs repeatedly suggest that the Court should be lenient in applying the
“scope of the charge” rule because Plaintiffs were pro se when they filed their Charges. “Numerous courts in this
district, however, have effectively rejected that argument.” Davis v. Central Can Co., 2006 WL 2255895, *5
(N.D. Ill. Aug. 4, 2006) (citing cases). In fact, the very reason courts have carved out the “like or reasonably
related” exception to the rule that a court claim cannot go beyond the scope of a charge is because EEOC charges
are usually completed pro se. Id.

5

discretionary decision-making of supervisors is not an adequate predicate to sustain a disparate
impact claim. See, e.g., Welch v. Eli Lilly & Co., 2009 WL 2461119 (S.D. Ind. Aug. 11, 2009);
and Combs v. Grand Victoria Casino & Resort, 2008 WL 4452460 (S.D. Ind. Sept. 30, 2008).
In Welch, the court dismissed a purported class-wide Title VII disparate impact claim
because both the plaintiffs’ EEOC charges and their purported third amended complaint (the
“TAC”) were premised on subjective decision-making, and therefore failed to allege a specific,
facially neutral policy that would support a disparate impact claim. The EEOC charges there
alleged that “[p]redominantly white Lilly supervisors have unfettered discretion to rate
employees on the reviews; these ratings dictate employee compensation and promotions. As a
result this policy, even though not racist on its face, has a disparate impact on African
Americans in pay and promotion opportunities, and has caused them to be historically
considered second class employees at the Company.” 2009 WL 2461119, at *6. In holding
that these allegations were insufficient to support a disparate impact claim, and therefore
denying the plaintiffs’ motion for leave to file the TAC, the court stated:
These allegations, like those alleged in the Second Amended Complaint,
fail to identify a neutral employment practice. (See March 18, 2009 Entry at
14-16) (rejecting attempt to sweep a wide variety of decisions under the
umbrella of subjective practices as stating disparate impact claim). Moreover,
even if sufficiently specific to challenge some practices, these charges would
not challenge (and thus could not preserve claims arising from) the tens if not
hundreds of different kinds of pay and promotion decisions that are
encompassed within the proposed TAC. Thus, they are inadequate to preserve
class-wide disparate impact claims.
Id.
Similarly, in Combs, the court granted the defendant’s motion to dismiss a purported
disparate impact age discrimination claim where the “specific employment practices Plaintiffs
alleged had a disparate impact are Defendant’s ‘unreasonable and arbitrary methods and
subjective practices of investigation and decision making concerning (a) terminations; (b)

6

alleged rule and policy violation; (c) alleged employee misconduct; and (d) disciplinary
procedures.’“ 2008 WL 4452460, at *2. In granting the motion to dismiss, the court noted that
the plaintiffs “must identify the specific policy or practice that they allege is responsible for the
disparate impact.” Id. at 3 (emphasis in original).3
Accordingly, in the present case, even if Plaintiffs had alleged—in either their EEOC
Charges or the Complaint—this so-called facially neutral compensation policy of allowing
store managers to make subjective decisions on pay rates, such allegations would be
insufficient to state a disparate impact claim. Since any amendment to assert such a “policy”
would be futile, Count I should be dismissed with prejudice.
B.

Plaintiffs Have Not Alleged a Plausible Class Disparate Treatment Claim in
Counts I, II or III, and Therefore Should Not be Permitted to Commence
Expensive and Burdensome Class-Based Discovery

Plaintiffs have filed a purported nationwide pay discrimination class action based on a
Complaint in which they completely fail to allege how even their own compensation was
determined at the particular store where they worked, let alone that Walmart uses some
compensation practice or method that has general application throughout the United States or
even beyond Plaintiffs’ one store. Moreover, they admit that “Plaintiffs cannot provide more
factual specificity at the pleading stage in this litigation.” (Plaintiffs’ Response at 3.) Resting
on their thread-bare Complaint then, Plaintiffs essentially ask this Court to excuse them from
federal pleading requirements because they believe they might have a claim if they are

3

Defendant submits that acceptance of Plaintiffs’ assertion that discretionary, subjective personnel decisions by a
supervisor is sufficient to support a disparate impact claim would obliterate any rational distinction between
disparate treatment and disparate impact claims. Given that virtually every employment action has an element of
discretionary decision-making, virtually every discrimination claim could be converted into a disparate impact
claim and even into a disparate impact class action simply by alleging that the employer has a “policy” of giving
supervisors some discretion in making employment decisions. In such instances, however, it is the supervisor’s
intentional decisions that cause the discrimination (i.e., disparate treatment), not some “policy” of allowing them
to make decisions.

7

permitted to take discovery. As noted below, however, federal courts have frequently warned
against giving plaintiffs the keys to enormously costly and burdensome class-based discovery
where a complaint, such as the one here, fails to cross the “plausibility” threshold.
In fact, in explaining the “plausibility” pleading standard it announced in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court discussed at length the Court’s
concerns with opening the doors to discovery to plaintiffs who have not alleged “something
beyond the mere possibility” of a claim. Id. at 557. The Court noted that some threshold of
plausibility must be crossed at the outset before a complex case “should be permitted to go into
its inevitably costly and protracted discovery phase.” Id. at 558, quoting Asahi Glass Co. v.
Pentech Pharm., Inc., 289 F. Supp. 2d 986, 995 (N.D. Ill. 2003). “Probably, then, it is only by
taking care to require allegations that reach the level [of plausibility] that we can hope to avoid
the potentially enormous expense of discovery in cases with no ‘reasonably founded hope that
the [discovery] process will reveal relevant evidence’” to support the claim. Id. See also
Wheeler v. Pension Value Plan for Employees of the Boeing Co., 2007 WL 2608875, *2 (S.D.
Ill. Sept. 6, 2007) (“[T]he price of entry, even to discovery, is for the plaintiff to allege a factual
predicate concrete enough to warrant further proceedings, which may be costly and
burdensome. Further, [c]onclusory allegations in a complaint, if they stand alone are a danger
sign that the plaintiff is engaged in a fishing expedition.”), quoting DM Research, Inc. v.
College of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (emphasis in original).
This case presents precisely the situation where Plaintiffs have slapped together a
Complaint consisting of conclusory allegations unsupported by further factual enhancement
and mere recitations of the Rule 23 class action standards. As Plaintiffs have not crossed the
required threshold of plausibility with respect to a class-based claim, they should not be
permitted to drag the Defendant or this Court through enormously costly and burdensome class-

8

based discovery.4 Further, the Seventh Circuit’s recent decision in In re Text Messaging
Antitrust Litigation, ---F.3d----, 2010 WL 5367383 (7th Cir. Dec. 29, 2010), on which Plaintiffs
rely, does not help their cause. There, the court allowed an interlocutory appeal concerning the
adequacy of a complaint in a purported antitrust class action because, according to the Seventh
Circuit, “[p]leading standards in federal litigation are in ferment after Twombly and Iqbal, and
therefore an appeal seeking a clarifying decision that might head off protracted litigation is
within the scope of section 1292(b).” 2010 WL 5367383, at *3. The Seventh Circuit then
essentially reinforced the plausibility standard announced in Twombly and Iqbal, holding that
the “fact that the allegations undergirding a claim could be true is no longer enough to save a
complaint from being dismissed; the complaint must establish a nonnegligible probability that
the claim is valid; but the probability need not be as great as such terms as ‘preponderance of
the evidence’ connote.” Id. at *6. Based on this standard, the Seventh Circuit concluded that
the complaint at issue there contained sufficient factual allegations to plausibly state an antitrust
conspiracy claim.5
Unlike the complaint in Text Messaging, Plaintiffs’ allegations here do not come close
to the sort of “factual enhancement” that is required to plausibly state a claim that Defendant
has engaged in nationwide pay discrimination against Cuban “warehouse workers.” Since
4

Plaintiffs summarily contend that their Complaint must state a class-based claim because in its investigation, the
EEOC “found that the evidence supported a conclusion that Walmart discriminated against Plaintiffs and a class of
similarly situated Cuban employees, by paying the lesser wages.” (Plaintiffs’ Response at 2.) However, Plaintiffs
cite no authority in support of this proposition, and Defendants submit that there is no basis for equating an EEOC
administrative finding with federal court pleading standards.

5

In Text Messaging, the Seventh Circuit pointed to substantial factual allegations in the complaint that, when read
together, plausibly stated a claim that the defendants had conspired on price in violation of the antitrust laws.
Those facts included allegations that defendants belonged to a trade association and exchanged price information
directly at association meetings; the defendants met together as a “leadership council” whose stated mission was to
urge its members to substitute “co-opetition” for competition; and “all at once defendants changed their pricing
structures, which were heterogeneous and complex, to a uniform pricing structure, and then simultaneously jacked
up their prices by a third.” Id. at *4-5. Thus, the complaint at issue in Text Messaging contained far more factual
content than Plaintiffs’ Complaint here.

9

Plaintiffs have not established a “nonnegligible probability” that their purported class-based
disparate treatment claims are valid, Text Messaging, 2010 WL 5367383, *6, Counts I, II and
III should be dismissed.
C.

Plaintiffs’ Purported Title VII Race Discrimination Claims in Counts I and
II Should be Dismissed Because They are not Reasonably Related to Their
EEOC Charges

In support of Plaintiffs’ contention that their EEOC Charges, which allege only national
origin discrimination and retaliation, nevertheless permit them to file a Title VII race
discrimination claim, Plaintiffs rely on a single case, Torres v. City of Chicago, 2000 WL
549588 (N.D. Ill. May 1, 2000), in which the court concluded that “Hispanic” was a race. In
Torres, the plaintiffs did not check the “race’ box on their EEOC charges, but alleged therein
that they were discriminated against because they are Hispanic. In easily finding that Hispanic
discrimination is both national origin and race discrimination, the court observed that “Hispanic
persons and Indians, like blacks, have been traditional victims of group discrimination” who
“are frequently and even commonly subject to a ‘racial’ identification as ‘non-whites.’“ 2000
WL 549588, *2. Continuing, the court noted that this “common use, or misuse, of the term
[Hispanic] has blurred the line between race and national origin as it pertains to Hispanics.
Consequently, the term ‘Hispanic’ is unique, encompassing the concepts of both race and
national origin in a way the terms ‘white,’ ‘black’ and ‘Asian’ do not.” The court concluded
that because of this “dual understanding of the term Hispanic,” the plaintiffs could assert both
race and national origin discrimination claims. Id.
Obviously, Torres is easily distinguishable from the present case. Here, Plaintiffs are
not alleging—either in their EEOC Charges or the Complaint—discrimination based on their
status as Hispanics. Rather, Plaintiffs allege only discrimination against Cubans. Plaintiffs
have cited to no authority holding that the term “Cuban,” like “Hispanic,” has a “dual

10

understanding” and is somehow “unique,” encompassing both national origin and race.6
Plaintiffs also point to the fact that during the investigation of Plaintiffs’ EEOC
Charges, the EEOC made a request to Walmart for certain employee information including the
“national origin/race” of certain employees. This purported “fact” does not compel a different
result. First, the EEOC’s request is not alleged in the Complaint, and therefore may not be
considered on this motion to dismiss. Car Carriers, Inc., 745 F.2d at 1107; Travel All Over the
World, Inc., 73 F.3d at 1430 & n.6. Additionally, Plaintiffs offer no legal authority supporting
their contention that such a request by the EEOC entitles Plaintiffs to proceed with a race
discrimination claim based on their status as Cubans. In fact, Defendant submits that the scope
of the EEOC’s request might just as well have been an attempt to investigate whether there was
broader discrimination against Hispanics generally (Mexicans, Chileans, Argentineans, etc.)
based on their Hispanic race, rather than just alleged discrimination against those of Cuban
national origin. In any event, the Determinations issued by the EEOC clearly reflect a finding
only with respect to national origin discrimination, and not race, as the EEOC found reasonable
cause to believe there was discrimination “because of their national origin, Cuban, by paying
them a lesser wage, in violation of Title VII.” (Complaint Ex. B.) The Determinations do not
mention race discrimination at all, nor is there any suggestion that discrimination based on
Plaintiffs’ status as Cubans would also be race discrimination.
Accordingly, Plaintiffs’ purported race discrimination claims in Counts I and II should
be dismissed because they are not like or reasonably related to their EEOC Charges, which
allege only national origin discrimination and retaliation.
6

Plaintiffs purport to offer a history lesson on the travails of the Cuban people that has allegedly “led to a
plurality in the meaning of ‘Cuban.’“ (Plaintiffs’ Response at 10.) Respectfully, however, while one might agree
that some Cubans have been discriminated against, Plaintiffs cite to no case law or other recognized authority
indicating that the term “Cuban,” like ‘Hispanic,” is unique and has a dual understanding, encompassing both race
and national origin.

11

D.

The “Continuing Violation Doctrine” Cannot Save Plaintiffs’ Time-Barred
Title VII and Section 1981 Claims

Plaintiffs attempt to rely on the “continuing violation doctrine” to save their otherwise
time-barred allegations in their Complaint. Such an attempt is futile, however, as the
continuing violation doctrine does not apply to independently actionable “discrete acts,” such
as the acts alleged here. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-18
(2002) (distinguishing between discrete acts and acts contributing to a hostile work
environment). With discrete acts, each act “starts a new clock for filing charges.” See Lucas v.
Chicago Transit Auth., 367 F.3d 714, 723 (7th Cir. 2004). Accordingly, any “discrete
discriminatory acts that fall outside the statute of limitations are time-barred even though they
may relate to other discrete acts that fall within the statute of limitations.” Id.; see Hukic v.
Aurora Loan Servs., 588 F.3d 420, 435 (7th Cir. 2009) (the continuing violation doctrine does
not apply to “a series of discrete acts, each of which is independently actionable, even if those
acts form an overall pattern of wrongdoing”). Discrete acts are “easy to identify” because
“[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes
a separate actionable ‘unlawful employment practice.’” Morgan, 536 U.S. at 114. Examples of
discrete acts include: “termination, failure to promote, denial of transfer or refusal to hire.” Id.
In addition, with respect to unequal pay claims, a discriminatory paycheck is its own separate
discriminatory act that can give rise to an action. Id. at 111-12; Hildebrandt v. Illinois Dep’t of
Natural Res., 347 F.3d 1014, 1027-28 (7th Cir. 2003) (holding that “repeated discriminatory
paychecks constitute discrete acts” not subject to the continuing violation doctrine).7

7

Plaintiffs spend multiple pages discussing the general principles of the continuing violation doctrine, but fail to
cite any cases where the doctrine was held to apply to discriminatory pay claims, which are discrete acts not
subject to the doctrine.

12

Here, Plaintiffs’ Title VII and § 1981 claims are predicated on allegations that Plaintiffs
experienced the following events because of their Cuban national origin: lower wages, denial
of make-up days, a variable schedule and discharge. (Complaint, Ex. A.) Each of these events
is an independently actionable discrete event, and as such, is not subject to the continuing
violation doctrine. See, e.g., Morgan, 536 U.S. at 114; Beasley v. Marshall & Ilsley Trust Co.,
411 F.3d 854, 860 (7th Cir. 2005) (time-barred discrete acts included absence of a pay raise,
assignment to the settlement desk, and absence of a performance review); Hildebrandt, 347
F.3d at 1027-28. Accordingly, any individual or class claims under Title VII based on alleged
discrimination occurring before February 13, 2006 (300 days prior to the November 30, 2006
charge filing date) and any § 1981 class claims occurring before October 16, 2006 (four years
prior to the October 15, 2010 Complaint filing date) are time-barred and should be dismissed.8
E.

Count III Should Be Dismissed Because Plaintiffs’ Cuban Discrimination
Claim is not a Race Discrimination Claim Cognizable Under § 1981

Plaintiffs once again fail to make any attempt to distinguish the cases cited by
Defendant in which courts have found that claims alleging Cuban discrimination do not amount
to race discrimination claims cognizable under Section 1981. See Quintana v. Byrd, 669 F.
Supp. 849, 850 (N.D. Ill. 1987) (denying motion to dismiss § 1981 claim where the plaintiff
alleged that she was “discriminated against because she is Hispanic, not because her country of
origin is Cuba.”); Torres v. Gianni Furniture Co., 1986 WL 6407, *1 (N.D. Ill. June 5, 1986)

8

With respect to Plaintiffs’ alleged pay discrimination claims under Title VII that may be governed by the Lilly
Ledbetter Fair Pay Act of 2009 (the “FPA”), the FPA provides that each paycheck is a fresh act of discrimination,
but the FPA still “limits recovery to paychecks paid within the 300-day statute of limitations.” Kent v. City of
Chicago, 2010 WL 1463486, *2 (N.D. Ill. April 8, 2010). Further, Plaintiffs did not respond to Defendant’s
argument that the FPA does not apply to their § 1981 claims, and thus that they must demonstrate that a
discriminatory compensation decision was actually made (not just receipt of a paycheck) within the very narrow
window between October 16, 2006 and their November 2006 employment termination dates. As Plaintiffs have
alleged no facts plausibly demonstrating that any discriminatory pay decisions were made within this narrow
limitations window, their § 1981 claims should be dismissed in their entirety on statute of limitations grounds.

13

(dismissing § 1981 claim as not alleging race discrimination where the plaintiff alleged that he
“is a Cuban-American and as such is a member of a distinct minority.”). Instead, Plaintiffs
again cite to a wholly inapposite case, Bisciglia v. Kenosha Unified School Dist. No. 1, 45 F.3d
223 (7th Cir. 1995), where the court held that alleged discrimination against Italians may
constitute race discrimination under § 1981.
In Bisciglia, relying on the reasoning of the Supreme Court in Saint Francis College v.
Al-Khazraji, 481 U.S. 604, 613 (1987), the court stated that “the proper inquiry here is ‘not
whether [Italians] are considered to be a separate race by today’s standards, but whether, at the
time [Section 1981] was adopted, [Italians] constituted a group of people that congress intended
to protect.’“ Bisciglia, 45 F.3d at 230 (citation omitted). In concluding that § 1981 did cover
Italians, the court noted that, in fact, “the Supreme Court’s historical research suggests that
‘Italians’ may have been considered an identifiable race.” Id., citing Saint Francis College,
481 U.S. at 611.
Plaintiffs, however, point to no authority for the proposition that Cubans, like Italians,
similarly constituted a group of people that congress historically intended to protect when §
1981 was adopted.9 Defendant submits that this is not surprising because Cuban people are
members of many different races. According to the U.S. Department of State, the 2002 Cuba
Census found that Cuba had a population of 11.2 million people, of whom 37% were white,
11%

were

black,

1%

were

Chinese,

and

51%

were

of

mixed

race.

See

http://www.state.gov/r/pa/ei/bgn/2886.htm; and http://en.wikipedia.org/wiki/Cubans.10

9

In fact, the Court in Saint Francis College found that, based on dictionary and encyclopedic sources as well as
the legislative history of § 1981, certain enumerated groups of people, including Italians, may have been
considered an identifiable race subject to protection under § 1981. Cubans were not among them. Id. at 611-12.
10

Defendant respectfully submits that the Court may take judicial notice of this published Cuban census data.

14

Accordingly, Plaintiffs’ claim that they were discriminated against because they are
Cuban does not state a race discrimination claim cognizable under § 1981.
III.

CONCLUSION
For all of the foregoing reasons and the additional reasons set forth in Defendant’s

original supporting Memorandum, Defendant Walmart respectfully submits that Counts I, II
and III of the Complaint should be dismissed in their entirety with prejudice. Alternatively,
Counts I, II and III should be dismissed to the extent they allege violations occurring outside of
the applicable limitations periods, and Counts I and II should be dismissed to the extent they
purport to state a claim of race discrimination. Additionally, Counts IV through IX should be
dismissed to the extent they allege violations occurring outside of the applicable limitations
period.
Dated: February 23, 2011
Respectfully submitted,
WAL-MART STORES, INC.
By: s/ Alan S. King
Alan S. King, Esq. (ARDC #: 06198223)
Mark E. Furlane, Esq (ARDC #: 00897175)
Noreen H. Cull, Esq. (ARDC #: 06229417)
Elizabeth V. Lopez, Esq. (ARDC #: 6293255)
Drinker Biddle & Reath LLP
191 N. Wacker Drive, Suite 3700
Chicago, IL 60606-1698
Phone: [phone]
Fax: [phone]
E-mail : [e-mail]
E-mail : [e-mail]
E-mail : [e-mail]
Email : [e-mail]
CH01/ 25681997.4

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