Fairley et al v. Wal-Mart Stores, Inc.

Filing 179

ORDER: IT IS HEREBY ORDERED that Defendant's 54 Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED considering that Plaintiff has not contested Defendant's arguments, Defendant's motion is GRANTE D to the extent that Plaintiffs claims occurring before December 26, 1998, are time-barred. IT IS FURTHER ORDERED that Defendant's motion is DENIED because the Court finds that Plaintiff has pointed to sufficient evidence supporting Plaintiff� 39;s assertion that her claims arising since December 26, 1998, are not procedurally barred or time-barred. IT IS FURTHER ORDERED that Defendant's motion is DENIED because material issues of fact are in dispute regarding whether Plaintiff has asserted a valid claim for discrimination. Signed by Judge Nannette Jolivette Brown on 10/31/2016. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAVION FAIRLEY

CIVIL ACTION

VERSUS

NO. 15-462

WAL-MART STORES, INC.

SECTION: “G”(4)
ORDER

In this litigation, Plaintiff Ravion Fairley (“Plaintiff”) alleges that her former employer,
Defendant Wal-Mart Stores, Inc. (“Defendant”) discriminated against her based on her gender in
violation of Title VII. Before the Court is Defendant’s “Motion for Summary Judgment.”1 Having
considered the pending motion, the memoranda in support and in opposition, the record, and the
applicable law, the Court will grant the motion in part and deny the motion in part.
I. Background
A.

Factual Background
Plaintiff is a former member of the Wal-Mart Stores, Inc. v. Dukes2 class action, in which

more than one million women alleged that Wal-Mart retail stores discriminated against its female
employees with respect to pay and promotion to management track positions, in violation of Title
VII.3 After the Dukes class was decertified by the United States Supreme Court in 2011, Plaintiff
filed a charge of discrimination with the EEOC in May of 2012, alleging sex discrimination.4 The

1

Rec. Doc. 54.

2

564 U.S. 338 (2011).

3

Rec. Doc. 38.

4

Id. at 2.

1

EEOC issued a right-to-sue notice to Plaintiff on November 20, 2014.5
In this litigation, Plaintiff alleges that she first worked for Defendant as a temporary
employee in Bogalusa, Louisiana, between 1992 and 1993.6 Plaintiff was subsequently hired for a
permanent position in Covington, Louisiana, where she began working in December 1997 as a
Meat Wrapper and Case Worker.7 In 1999, Plaintiff transferred to the Seafood Department, where
she worked as a Manager/Lead Associate, while also fulfilling duties in the Meat Department as
needed.8 Plaintiff worked at that location until she resigned in 2005.9 In 2009, Plaintiff began
working at a Wal-Mart in Mandeville, Louisiana, where she worked until 2011.10 There, she
worked as a full-time Sales Associate in the Deli/Bakery Department, later transferring to a frontend cashier position for approximately one month before resigning in April 2011 for health
reasons.11
Plaintiff alleges that, during her time at the Covington store, she was hired by Manager
Butch Hebert, who was responsible for overseeing the four separate departments within his
division: meat, seafood, deli, and the “97 Wall,” or cold-cuts.12 At that time, Plaintiff claims,
employees in the Meat Department could be assigned to four separate roles: Lead Associate, Meat

5

Id.

6

Rec. Doc. 57 at 5.

7

Id.

8

Id.

9

Id.

10

Id.

11

Id.

12

Id. at 6.

2

Cutter, Meat Wrapper, and Case Worker.13 Plaintiff alleges that, although there was no formal
restriction that female employees could not be assigned to the Lead Associate or Meat Cutter
positions, Hebert excluded women from those positions, and in fact, during his 50 years in the
meat cutting business, he never once had a female Lead Associate and had only one female Meat
Cutter, who was hired before he arrived at Wal-Mart.14
According to Plaintiff, Hebert’s refusal to assign women the duties of Lead Associate or
Meat Cutter resulted in female employees receiving drastically lower pay, as those two positions
were the highest-earning ones in the Meat Department.15 Plaintiff alleges that Hebert admitted to
excluding women from the higher-earning positions because he did not believe they were fit to
perform the “dangerous” job responsibilities of Meat Cutters, which involved using saws and
knives, nor the physical task of unloading pallets of meat from delivery trucks.16 Plaintiff alleges
that Hebert not only excluded women from the higher earning positions, but also gave men
additional responsibilities, improving their opportunities for advancement.17 For example, Plaintiff
claims, Meat Cutters were trained in all departments within the division, not solely the Meat
Department.18 Plaintiff alleges that the additional responsibilities and expectations were not
required by Wal-Mart, but were imparted by Hebert in his sole discretion.19
In addition, Plaintiff argues that she was paid less than male employees in her same

13

Id.

14

Id.

15

Id.

16

Id. at 6–7.

17

Id. at 7.

18

Id. at 8.

19

Id.

3

position.20 According to Plaintiff, during her time as a Meat Wrapper and Case Worker, she earned
between $6.00 and $7.61 per hour, while two male comparators, Dennis Larsen and Merlin Galey,
were paid more, with Larsen earning as much as $9.26 as a Case Worker, and Galy earning $8.52
in the same position.21 Plaintiff claims that the pay disparities continued when she moved to the
Seafood Department in October 1999, which Hebert encouraged her to do.22 According to Plaintiff,
she ended up performing all the duties of a Lead Associate within the Seafood Department, but
did not receive the title, nor any additional prestige or pay.23 Plaintiff avers that her role was seen
as simply taking “a little load off” Hebert’s “assigned” Lead Associate, Chris DeLuca, but that she
earned between $7.62 and $11.59 per hour, while DeLuca earned between $13.00 and $16.50 per
hour during the same period.24 Plaintiff claims that she even earned less than male employees who
worked as Sales Associates, including Galy.25
Plaintiff argues that the pay disparities worsened after 2001, when Defendant switched to
pre-packaged meat, eliminating the need for the Meat Cutter responsibilities.26 Plaintiff argues that
the Meat Cutters no longer performed the “skilled” duties of cutting meat, and were reassigned to
Sales Associate positions that were the same as those that had previously been performed by the
lower-paid female employees.27 Nevertheless, Plaintiff argues, the male Meat Cutters retained

20

Id.

21

Id.

22

Id.

23

Id.

24

Id. at 9.

25

Id.

26

Id.

27

Id.

4

their higher hourly pay, which resulted in a significant pay gap, with Plaintiff earning between
$9.08 and $9.53 per hour in April 2001, and male employees who had previously cut meat earning,
on average, between $1 and $4 per hour more than Plaintiff.28
B.

Procedural Background
Plaintiff initially filed a complaint in this matter, along with two other plaintiffs, Carasha

Isaac and Yalile Leal, on February 12, 2015.29 On October 14, by joint stipulation of the parties,
this Court severed Isaac and Leal’s cases from Plaintiff’s case. 30 On April 12, 2016, Defendant
filed the instant motion for summary judgment.31 Plaintiff filed an opposition and a request for
oral argument on April 19, 2016.32 On April 27, 2016, the Court heard oral argument,33 and
Defendant filed a reply with leave of Court.34 On April 28, 2016, the Court ordered the parties to
submit supplemental briefing on issues raised during oral argument, including the standard to be
applied in determining whether Plaintiff had established a prima facie case and the timeliness of
Plaintiff’s claims dating from December 1998 to August 2000.35 On May 4 and 11, 2016, Plaintiff
and Defendant filed supplemental memoranda.36 With leave of Court, Defendant filed an

28

Id.

29

Rec. Doc. 1.

30

Rec. Doc. 36.

31

Rec. Doc. 54.

32

Rec. Doc. 57.

33

Rec. Doc. 65.

34

Rec. Doc. 67.

35

Rec. Doc. 68.

36

Rec. Docs. 71, 72, 74, 75.

5

additional supplemental memorandum on September 16, 2016,37 and Plaintiff filed a response
memorandum on September 29, 2016.38 On October 12, 2016, again with leave of Court,
Defendant filed a reply to Plaintiff’s response,39 and on October 21, 2016, Defendant filed a
supplemental sur-reply memorandum in support of its motion for summary judgment.40
II. Parties’ Arguments
A.

Defendant’s Motion for Summary Judgment
In support of summary judgment, Defendant argues that Meat Cutters were skilled laborers

with years of experience as trained butchers, who cut and processed meat using saws, knives and
other meat-cutting equipment and were responsible for performing any other jobs that needed to
be performed in the Meat, Seafood, or 97 Wall departments, including cleaning, loading and
unloading meat from trucks, meat wrapping, and customer service.41 According to Defendant,
Meat Wrappers and Case Workers, on the other hand, performed the unskilled job of wrapping
meat, pulling stressed meat from the meat case, and maintaining the meat case.42
Specifically with regard to Plaintiff, Defendant claims that, by the time she resigned in
March 2005 following a dispute with Hebert, she was earning $11.59 per hour, double her starting
salary from December 1997.43 Defendant argues that, because Plaintiff was the only associate that
performed her job duties in the Seafood Department, there were no males who received higher pay

37

Rec. Doc. 99.

38

Rec. Doc. 108.

39

Rec. Doc. 117.

40

Rec. Doc. 131.

41

Rec. Doc. 54-1 at 4.

42

Id.

43

Id. at 5.

6

for performing the same job, and Plaintiff admits she was not subject to pay discrimination while
in the Seafood Department.44
According to Defendant, Plaintiff filed an EEOC charge in May 2012, but did not identify
any specific dates or acts of alleged gender discrimination, or any facts such as her job, pay rate,
the alleged pay rates that male associates performing the same job may have received, or the
qualifications or experience of any comparators or the identity of any decision makers.45 Defendant
alleges that, when the EEOC asked Plaintiff to provide specific facts regarding her claims, the only
additional information she provided was that she believed that men received higher raises and
bigger bonuses, and that at the Covington store, men were Meat Cutters and women were Meat
Wrappers, who earned less money despite having more responsibilities.46 According to Defendant,
Plaintiff alleged that there was only one female Meat Cutter in Covington, and that she did not last
long because the male Meat Cutters commented that it “didn’t look right for a woman to be cutting
the meat.”47 Nevertheless, Defendant contends, Plaintiff did not identify any male comparators,
her job titles or pay rates, or the dates of any alleged discrimination, and her charge was dismissed
on November 20, 2014.48
Defendant avers that Plaintiff cannot state a prima facie claim against Defendant under
Title VII, and that, in addition, her claims are either procedurally barred based on her failure to
exhaust her administrative remedies, or are untimely.49 Defendant first argues that, to establish a

44

Id.

45

Id. at 6.

46

Id.

47

Id.

48

Id. at 6–7.

49

Id. at 8.

7

prima facie case of gender-based pay discrimination, a plaintiff must show that she performed a
job that required equal skill, effort and responsibility as the work performed by higher paid workers
of the opposite sex, after which the burden shifts to the employer to demonstrate that the disparate
wage payments were made pursuant to a: (1) seniority system; (2) merit system; (3) system which
measures earnings by quantity or quality of production; or (4) differential based upon any factors
other than sex.50 According to Defendant, such factors can include “[d]ifferent job levels, different
skill levels, previous training, and experience.”51 Once an employer carries its burden of
production, Defendant asserts, the plaintiff must prove by a preponderance of the evidence that the
employer’s reasons are a mere pretext for discrimination.52
Here, Defendant claims, Plaintiff has dismissed her claim relating to the Mandeville store,
and therefore, her remaining claim regarding the Covington store is based solely on her opinion
that she should have been paid as much as a Meat Cutter because she feels that Meat Wrappers
had more responsibilities.53 However, Defendant avers, Plaintiff cannot establish a prima face case
of gender discrimination because it is undisputed that the Meat Cutter and Meat Wrapper jobs were
substantially different, and Plaintiff was not paid less than any similarly situated male who
performed the same job.54 Defendant argues that Plaintiff was not discriminated against at the
Covington store because, even taking as true Plaintiff’s opinion that Meat Wrappers had “more
work to do” than Meat Cutters, it is undisputed that being a Meat Wrapper did not require the same

50

Id. at 8–9 (citing Lenihan v. Boeing Co., 994 F. Supp. 776, 798 (N.D. Tex. 1998); 29 U.S.C. §

206(d)(1)).
51

Id. at 9 (quoting Pouncy v. Prudential Ins. Co., 668 F.2d 795, 803 (5th Cir. 1982)).

52

Id.

53

Id.

54

Id.

8

level of skill, training, experience, or responsibility as being a Meat Cutter.55
According to Defendant, the Meat Wrapper job was an unskilled position that required no
experience and simply involved wrapping meat and maintaining the meat case, whereas Meat
Cutters were skilled professional butchers with years of training and experience, who cut the meat
using saws and other dangerous equipment, unloaded the trucks, stacked pallets, cleaned the
departments, wrapped meat, served customers, and performed any duties necessary in the Meat,
Seafood, and “97 Wall” departments.56 Therefore, Defendant claims, Meat Cutters were paid more
than most other hourly associates at Defendant stores, as they were capable of performing every
job duty in every department under Hebert’s supervision, whereas Meat Wrappers could only
perform their own job duties.57 Moreover, Defendant claims, Plaintiff cannot contend that the Meat
Cutter position was open only to males, as she has acknowledged that there was a female Meat
Cutter in Covington for a short time, and Plaintiff did not know whether that female Meat Cutter
earned more or less than the male Meat Cutters.58 Defendant contends that although no women
applied for a Meat Cutter position during Plaintiff’s employment in the Meat Department, there
was no rule or policy that prevented them from doing so, and in fact, Plaintiff admitted that she
did not apply for the position because she was afraid of working with the meat saws.59
Next, Defendant argues that Plaintiff’s individual gender discrimination claims are
procedurally barred and/or untimely.60 According to Defendant, a Title VII plaintiff must exhaust

55

Id. at 9.

56

Id.

57

Id.

58

Id.

59

Id.

60

Id. at 10.

9

administrative remedies before commencing an action in federal court, which occurs when a
plaintiff files a timely charge with the EEOC and receives a statutory notice of the right to sue.61
Defendant avers that “[i]n order to exhaust administrative remedies, the claimant is required to
demonstrate good faith participation in the administrative process, which includes making specific
charges and providing information necessary to the investigation.”62 Defendant argues that a Title
VII claim is limited to the scope of the plaintiff’s administrative charge and to the EEOC
investigation that could reasonably be expected to grow out of the charge.63
According to Defendant, the plain language of 42 U.S.C. § 2000e-5 states that a person
filing an EEOC charge must provide adequate notice of the alleged unlawful employment practice,
including the date, place and circumstances of the alleged unlawful employment practice. 64
Defendant avers that the Supreme Court has declared that in order to satisfy administrative
requirements, a charging party must timely allege each separate and distinct discriminatory act in
her charge or lose the ability to recover for it.65 Here, Defendant argues, Plaintiff’s EEOC charge
was legally deficient because it did not identify any alleged unlawful employment practice, much
less any specific act of discrimination, when the alleged discrimination occurred, who received
more favorable treatment, or who made the pay or promotion decisions. 66 Instead, Defendant
asserts, Plaintiff simply identified herself as a former Dukes class member who was employed by

61

Id. (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Firmin v. Richard Const., Inc.,
No. 12-1391, 2012 WL 5332998, at *3 (E.D. La. Oct. 26, 2012)).
62

Id. (quoting Wrenn v. Secretary, Dep’t of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990)).

63

Id. at 11 (citing Pacheco v. Mineta, 448 F.3d 783, 795 (5th Cir. 2006)).

64

Id.

65

Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110–13 (2002)).

66

Id. at 11–12.

10

Wal-Mart from 1997-2011, and her charge was therefore completely devoid of individual factual
allegations, thus failing to meet the statutory requirements.67 Furthermore, Defendant argues,
Plaintiff failed to demonstrate good faith participation in the administrative process because she
failed to provide necessary information requested by the EEOC to investigate her charge.68
Defendant argues that Plaintiff’s vague allegations to the EEOC could not have put Defendant on
notice about any specific act of alleged discrimination, and Plaintiff additionally failed to perfect
her charge by failing to cooperate in the proceedings and failing to provide the bare minimum of
facts requested by the EEOC.69
Finally, Defendant contends that even if Plaintiff’s claims were not procedurally barred,
her claims relating to alleged pay discrimination between December 1997 and August 23, 2000,
are time-barred because any claims based on conduct that allegedly occurred prior to August 23,
2000, or three hundred days before the Dukes class action lawsuit commenced on June 19, 2001,
were already time barred when the Dukes class action complaint was filed.70
B.

Plaintiff’s Opposition to the Motion for Summary Judgment
In opposition, Plaintiff first describes the procedural background of this case, and alleges

that, when the initial Dukes class was certified, the Court chose December 26, 1998, as the date
from which the 300-day filing period preceding the EEOC charge filed by the named plaintiff,
Stephanie Odle, would run.71 Thereafter, Plaintiff avers, once the Supreme Court decertified the

67

Id. at 12.

68

Id.

69

Id.

70

Id. at 13–14 (citing Morgan, 536 U.S. at 108–09).

71

Rec. Doc. 57 at 2.

11

Dukes class action, Wal-Mart agreed to extend the tolling of the statute of limitations to “all whose
claims were raised by the class certification.”72 According to Plaintiff, Defendant agreed that all
whose claims were raised by the class certification could “start the clock fresh” under the
applicable EEOC filing period, even with respect to former class members who never filed EEOC
charges.73 Plaintiff contends that the district court then extended the tolling period and ordered that
former class members who had never filed an EEOC charge would have until May 25, 2012, to
file charges with the EEOC in states that had 300-day limits, such as Louisiana.74 Therefore, her
claims are not time-barred.
Plaintiff argues that genuine issues of material fact preclude summary judgment on her sex
discrimination claim. According to Plaintiff, in order to establish a prima facie case of
discrimination, she must prove that she was a member of a protected class and that she was paid
less than a non-member for work requiring substantially the same responsibility.75 Plaintiff claims
that it is central that she and the alleged comparator were similarly situated from the perspective
of the employer at the time of the relevant employment decisions. 76 Here, Plaintiff avers, she can
easily establish a prima facie case of sex discrimination because she: (1) received unequal pay as
a result of discriminatorily motivated sex-segregated job classifications within the Meat
Department; and (2) experienced pay discrimination due to male comparators within her same
positions—Meat Wrapper/Case Worker, department Manager/Lead Associate, and Sales

72

Id. at 3.

73

Id. at 4.

74
Id. at 4. Wal-Mart agrees that, in Louisiana, EEOC Charges must be filed within 300 days. Rec. Doc. 541 at 15 n.60.
75

Id. at 11 (citing Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522 (5th Cir. 2008)).

76

Id. at 12 (citing Perez v. Tex. Dep’t of Criminal Justice Institutional Div., 395 F.3d 206, 210 (5th Cir.

2004)).

12

Associate—earning higher pay despite performing the same job responsibilities.77
Regarding job classifications, Plaintiff alleges that during Hebert’s 20 years as Meat
Department Manager, he never assigned a female employee to the positions of Lead Associate or
Meat Cutter, and instead, women like Plaintiff were concentrated in lower paying roles like Meat
Wrappers and Case Workers.78 According to Plaintiff, Hebert thought she was an excellent
employee but nevertheless never assigned her to cut meat, and as a result she earned substantially
less than males who cut meat, which is alone sufficient to raise an inference of discrimination.79
Plaintiff contends that Hebert’s discrimination is not only inferred from statistics, but also is
confirmed by his own words, quoting deposition testimony in which Hebert stated that he had
never asked female Case Workers to load or unload trucks “because of their stature” and that Meat
Cutters work with “dangerous saws . . . [and] knives all day long.”80 Plaintiff asserts that Hebert
believed that the nature of some of the duties required of a Meat Cutter were inherently
incompatible for female employees to complete by virtue of their gender, and alleges that gender
stereotyping permeated the Meat Department, quoting Lead Associate Chris DeLuca as stating
that men were stronger and could unload pallets better than women, and James Duncan, a Meat
Cutter, saying that women could not “throw a truck” because of the weight of the boxes.81
According to Plaintiff, this gender stereotyping effectively precluded women from earning higher
pay, training opportunities, and overall advancement opportunities.82

77

Id. at 13.

78

Id. at 14.

79

Id.

80

Id. at 15.

81

Id.

82

Id.

13

Plaintiff argues that Defendant has oversimplified her claim by insisting that the
“determinative issue” is whether the Meat Cutter and Meat Wrapper were “essentially the same.”83
Plaintiff asserts that this argument incorrectly assumes that the job classifications in question were
legitimate and non-discriminatory.84 Plaintiff argues that Defendant was unable to produce a single
job description for the different categories of workers, and asserts that Defendant’s pay data
undisputedly illustrates that every employee within the Meat Department was categorized in the
same position, as a “processor,” which was later reclassified to “Sales Associate.”85 Therefore,
Plaintiff contends, she and her male coworkers were similarly situated “from the perspective of
the employer.”86 However, Plaintiff argues, the data shows that male processors were paid
substantially more than female processors, demonstrating that the classification system was built
on a foundation of unlawful gender stereotypes.87
According to Plaintiff, Defendant’s explanations for the alleged disparities are pretextual.88
Plaintiff rebuts Defendant’s argument that the difference in pay was due to the fact that Meat
Cutters were skilled professionals by arguing that Hebert himself has testified that a person did not
need prior cutting experience to be considered for the Meat Cutter position.89 In fact, Plaintiff
avers, Hebert himself could simply train a Meat Cutter with no prior experience, which Hebert

83

Id.

84

Id. at 16.

85

Id.

86

Id. (quoting Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002)).

87

Id.

88

Id.

89

Id.

14

allegedly admitted to doing with other employees.90 Plaintiff cites Babrocky v. Jewel Food Co., a
Seventh Circuit case she claims concluded that total sex segregation of Meat Cutters and Meat
Wrappers raised a strong inference that the defendant was discriminatory where no special
qualifications were needed to become apprenticed as a Meat Cutter.91 Here, Plaintiff argues,
although she had no prior cutting experience, that was not a barrier to her according to Hebert’s
testimony, and therefore, the only barrier was his own discriminatory animus regarding what he
believed women could and should do by virtue of their gender.92
Similarly, Plaintiff alleges, although Defendant argues that no women applied for the Meat
Cutter position, Hebert admitted that he did not post job openings for Meat Cutters, and instead
often self-selected replacements without mentioning the openings to Covington employees.93
Furthermore, Plaintiff avers, Hebert openly prohibited women in the Meat Department from doing
some of the jobs required of the Meat Cutter, such as unloading trucks, because of their gender,
and the only woman who was ever permitted to act in any type of Meat Cutter capacity was a
temporary employee who ultimately complained of gender discrimination and left the store.94
Plaintiff again relies on the Seventh Circuit decision in Babrocky for the proposition that,
“[b]ecause an employer may create an atmosphere in which employees understand that their
applying for certain positions is fruitless, even nonapplicants can in appropriate circumstances
qualify for relief under Title VII.”95

90

Id.

91

Id. at 16–17 (citing 773 F.2d 857, 869 (7th Cir. 1985)).

92

Id. at 17.

93

Id.

94

Id.

95

Id. (quoting Babrocky, 773 F.2d at 867).

15

Next, Plaintiff avers that in each of her three positions, she was paid less than male
employees performing the same job responsibilities.96 First, Plaintiff avers that as a Meat
Wrapper/Case Worker between December 1997 and October 1999, she earned between $6.00 and
$7.61 per hour, but as Hebert only assigned female employees to the Meat Wrapper position, there
are no male comparators in that position.97 However, Plaintiff claims, there are two male
comparators who were assigned to the Case Worker position, Merlin Galy and Dennis Larsen.98
According to Plaintiff, Defendant’s records show that although Plaintiff was hired just six months
after Galy, Plaintiff had more than a year of previous experience with Defendant, neither Galy nor
Plaintiff cut meat, and both Galy and Plaintiff were characterized as “processors,” Galy
nevertheless earned $7.50 per hour as of December 1997, whereas Plaintiff earned just $6 per
hour.99 Thus, Plaintiff argues, even though she and Galy were similarly situated, the disparity in
their pay persisted until Galy moved to the Seafood Department in August 1999, at which point he
earned $8.52 per hour and Plaintiff earned $7.61 per hour.100 Similarly, Plaintiff avers, Larsen was
a Case Worker/Sales Associate in the Meat Department, and although they were similarly situated,
Larsen earned as much as $9.26 per hour, while Plaintiff’s highest pay in the same position was
$7.61 per hour.101
Furthermore, Plaintiff avers, the pay disparities continued when she assumed the
responsibilities of Manager of the Seafood Department, even though no official Manager/Lead

96

Id. at 18.

97

Id.

98

Id.

99

Id.

100

Id. at 18–19.

101

Id. at 19.

16

Associate position existed.102 According to Plaintiff, Hebert stated that he encouraged Plaintiff to
take on the Seafood Department Manager position because it was the highest paid position she
could get at that time. Although, Plaintiff argues, she could have earned more money if she cut
meat, and there was in-store training available in which Plaintiff could have acquired the necessary
skills to cut meat, Hebert never suggested to Plaintiff that she cut meat.103 According to Plaintiff,
although Hebert explained that he never asked her to cut meat because she never asked, she also
never asked to work in the Seafood or Deli departments, but Hebert nevertheless encouraged her
to do so, and also later stated “that meat cutting position isn’t for everyone.”104
Furthermore, Plaintiff argues that even with Hebert’s stated purpose of ensuring that she
earn more money, she was still paid less than her male comparators after assuming the duties of
Seafood Department Manager.105 According to Plaintiff, Chris DeLuca earned $3 per hour more
than Plaintiff for performing the same duties, even though both were employed in the same
department, in the same store, and were supervised by the same individual.106 Plaintiff alleges that
she was also paid less than male Sales Associates within the Deli Department, namely Galy, who
earned $8.52 per hour in October of 1999 whereas Plaintiff was paid $7.61.107
In addition, Plaintiff avers that although Defendant asserts that she has not contended that
she was subject to discrimination within the Seafood Department, in fact, Plaintiff has stated that
she did not feel she was compensated fairly, and did not previously have any awareness, now

102

Id.

103

Id. at 19–20.

104

Id. at 20.

105

Id.

106

Id.

107

Id. at 20–21.

17

supported by data, that there were pay discrepancies.108 Plaintiff argues that, in light of the fact
that she did not have pay data available to her, and that Defendant prohibited discussing pay in the
workplace, it is unsurprising that she would later testify that it was “kind of hard to say” whether
there were pay discrepancies, but that she “felt” like she deserved more. 109 Plaintiff avers that
“Defendant covered up its own discriminatory practices at the time, and now attempts to benefit
from its illegal policies,” and therefore Plaintiff’s testimony does not constitute an admission.110
Notably, Plaintiff alleges, although in April 2001 Wal-Mart switched to pre-packaged meat,
eliminating the need for Meat Cutter responsibilities, the male employees who were former cutters
were reassigned to Sales Associate positions but continued to retain their higher hourly pay.111
Finally, Plaintiff argues that she has exhausted her administrative remedies and her claims
are timely.112 According to Plaintiff, she is entitled to rely on Stephanie Odle’s charge of
Discrimination, which was filed in October 1999, to establish the timeliness of her own EEOC
charge.113 Plaintiff avers that it is undisputed that Odle filed a timely EEOC charge in October
1999 that underlies the allegations in Dukes, and the scope of the Dukes class was set in reference
to her October 1999 charge, encompassing conduct occurring on or after December 26, 1998—
300 days prior to Odle’s charge.114 Plaintiff contends that under the single filing rule, she is entitled
to rely on Odle’s original charge to establish the timeliness of her own charge, and therefore her

108

Id. at 21.

109

Id.

110

Id.

111

Id. at 21 n.12.

112

Id. at 21.

113

Id. at 22.

114

Id.

18

charge is timely even with respect to conduct occurring prior to August 23, 2000, because her
charge relates back to Odle’s charge and the time period it covered.115 Furthermore, Plaintiff argues
that although Defendant has argued on three separate occasions that the single-filing rule should
not apply to Dukes claims, the argument was rejected twice by the district court in Dukes, and
rejected separately by the District of Minnesota in Catlin v. Wal-Mart Stores, Inc.116 Therefore,
Plaintiff argues, Defendant is estopped from now litigating the issue a fourth time.117
Next, Plaintiff contends that she set forth sufficient detail in her EEOC to administratively
exhaust her remedies by stating that she was a member of the Dukes class, that her EEOC charge
pertained to conduct encompassed by the certified class, and by identifying: (1) the stores where
she worked; (2) her dates of employment; (3) that she was an hourly employee; (4) the type of
discrimination alleged; and (5) the context of Defendant’s discriminatory conduct, as well as by
answering a questionnaire provided by the EEOC.118 Therefore, Plaintiff argues, she participated
in good faith in the administrative process and provided sufficient detail to put Defendant on notice
of the practices complained of and where they occurred.119 Moreover, Plaintiff avers, the law did
not require her to “recite a specific incantation” or “allege a prima facie case before the EEOC.”120
Therefore, Plaintiff argues, she gave a clear and concise statement of the facts, and no more detail
was required.121

115

Id.

116

Id. at 22–23 n.13 (citing 123 F. Supp. 3d 1123 (D. Minn. 2015)).

117

Id.

118

Id. at 24.

119

Id.

120

Id. (quoting Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006)).

121

Id.

19

C.

Defendant’s Reply in Support of Summary Judgment
In its reply to Plaintiff’s opposition, Defendant argues that Plaintiff failed to identify any

disputed issues of material fact.122 Defendant asserts that Plaintiff was not discriminated against
in the Meat Department, because there was no segregation of job duties based on gender.123
Defendant again emphasizes that Meat Cutters were skilled laborers who took years to learn their
trade, while Meat Wrappers were unskilled workers who were simply required to wrap meat and
maintain the meat case.124 Contrary to Plaintiff’s characterization of Hebert’s testimony,
Defendant argues, Hebert never once suggested that he excluded women from any positions.125
Rather, Defendant contends, Hebert simply suggested that he did not have women Meat Wrappers
unload trucks because that was a Meat Cutter duty.126
Defendant further argues that the current matter is entirely distinguishable from the case
cited by Plaintiff, Babrocky v. Jewel Food Co.127 Unlike the Plaintiff here, Defendant asserts, the
Babrocky plaintiffs alleged that the defendant employer had a pattern and practice of
discriminatory hiring and that female employees knew it was futile to apply for certain positions.128
The fact that neither Plaintiff nor any other female employee applied for a Meat Cutter position,
Defendant argues, does not establish that Meat Department jobs were segregated by gender. 129 It

122

Rec. Doc. 67 at 1.

123

Id. at 2.

124

Id.

125

Id. at 2–3.

126

Id. at 2.

127

Id. at 3 (citing 773 F.2d 857, 869 (7th Cir. 1985)).

128

Id (citing 773 F.2d at 860, 867).

129

Id.

20

is critical, Defendant maintains, that there was a female Meat Cutter in this case and that there
were male Meat Case Workers, below the Meat Wrappers in the Meat Department hierarchy.130
Moreover, Defendant argues that Plaintiff did not apply for a Meat Cutter position, because she
did not want to be a Meat Cutter.131 Defendant notes that neither Plaintiff nor any other female
ever complained about gender discrimination at the Covington store.132 Moreover, Defendant
argues that the Meat Department Manager Hebert was in no way required to encourage her to
apply for a job.133
Defendant next argues that Plaintiff was not paid less than similarly situated comparators
in the Meat Department. Although Plaintiff claims that two other males, Merlin Galy and Dennis
Larsen, were also Meat Case Workers, Defendant argues, Hebert identified Galy as a Meat Cutter
and Larsen was not hired until Plaintiff moved to the Seafood Department.134 Furthermore,
Defendant contends that Plaintiff can only assume that Galy and Larsen were Meat Case Workers
based on their employment histories produced in discovery, but according to Defendant, it is
“essentially impossible” to accurately determine from those employment histories what jobs they
held and when.135 If Galy was a Meat Cutter, Defendant argues, he deserved to be paid more.136
Even if Galy performed similar duties as Plaintiff, Defendant argues, it wouldn’t matter, because
the only other Meat Wrapper identified by Plaintiff, Kelly Blanchard, was a female and made more

130

Id.

131

Id. at 4.

132

Id.

133

Id.

134

Id.

135

Id. at 4–5.

136

Id. at 5.

21

than Galy and more than some of the Meat Cutters.137 Because Blanchard, a female, was paid more
than any of Plaintiff’s purported comparators, Defendant contends, Plaintiff’s alleged pay disparity
could not have been based on gender.138
Defendant next argues that Plaintiff “expressly and unequivocally” testified that she was
not discriminated against during her time in the Seafood Department because she did not have any
comparators who performed her same job duties.139 The only two Seafood Department associates
identified by Plaintiff, Doug and Paula, both reported to Plaintiff and were paid less than her,
according to Defendant.140 Defendant contests Plaintiff’s claim that Galy was a comparator in the
Seafood Department and asserts that even if he was a comparator, Galy was paid less than Plaintiff
at various times.141 Defendant further argues that Plaintiff never became a Department
Manager/Lead Associate when she moved to the Seafood Department, and as a result, Chris
DeLuca, the Lead Associate over the Meat and Seafood Departments, is not a comparator and
should not have been paid the same as Plaintiff.142 Defendant also maintains that Plaintiff was not
adversely affected when the Meat Cutter job was eliminated in approximately 2001 and Meat
Cutters were permitted to keep their higher salaries, because she was never similarly situated to
the Meat Cutters and Plaintiff would have no way to determine which jobs the former Meat Cutters
performed since they were all classified as Sales Associates.143

137

Id.

138

Id. at 5–6.

139

Id. at 6.

140

Id.

141

Id. at 7.

142

Id. at 7–8.

143

Id. at 8.

22

Finally, Defendant argues that Plaintiff’s claim for gender discrimination while working in
the Seafood Department is barred because it is clearly outside the scope of Plaintiff’s EEOC
charge, which Defendant argues related only to pay disparities between Plaintiff and Meat
Cutters.144 Moreover, Defendant argues, Plaintiff’s EEOC charge did not contain any facts other
than her dates and locations of employment, and the supplemental facts she added to her EEOC
complaint were “insufficient to constitute a viable EEOC charge.”145 Finally, Defendant argues
that some or all of Plaintiff’s claims are untimely and that Plaintiff’s opposition to the motion for
summary judgment did not contest Defendant’s argument that the tolling of Plaintiff’s claim began
with the filing of the Dukes class action lawsuit and would only toll claims for conduct on or after
August 23, 2000.146 Even if Plaintiff is correct that tolling would extend to the period from
December 26, 1998, onward, Defendant argues, Plaintiff admits that any claims arising before
December 26, 1998, would be time barred.147
D.

Plaintiff’s May 4, 2016, Supplemental Memorandum in Opposition to the Motion
In her May 4, 2016, supplemental memorandum in opposition to the motion for summary

judgment, Plaintiff argues that Defendant violated Title VII in two ways. First, Plaintiff argues
that she received unequal pay as a result of discriminatorily motivated sex-segregated job
classifications within the Meat Department and was precluded from higher earning positions in the
Meat Department and paid less than male employees performing substantially similar job functions

144

Id. at 9–10.

145

Id.

146

Id. at 10.

147

Id.

23

within the Meat Department.148 Second, Plaintiff argues that she experienced pay discrimination
when she was transferred to the Seafood Department and assumed duties of the Seafood
Department Manager/Lead Associate.149 Plaintiff asserts that she was paid less than the male Lead
Associate in her same division and a meat Sales Associate in her own department during the same
time period.150
In order to establish a prima facie case, Plaintiff argues, she must show that she “was a
member of a protected class and that [she] was paid less than a non-member for work requiring
substantially the same responsibility.”151 Plaintiff maintains that she need not prove that she is
“identical” to an alleged comparator and that instead, all that is required is “near identity.”152 What
is important, Plaintiff asserts, is that a plaintiff and an alleged comparator are similarly situated
from the perspective of the employer at the time of the relevant employment decisions.153 Plaintiff
states that a plaintiff can prove intentional discrimination under Title VII with either direct or
circumstantial evidence, and in this case, Plaintiff maintains that she has provided circumstantial
evidence of intentional discrimination.154

148

Rec. Doc. 71 at 1–2.

149

Id.

150

Id. at 2.

151

Id. (citing Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522 (5th Cir. 2008) (citing Uviedo v. Steves
Sash & Door Co., 738 F.2d 1425, 1431 (5th Cir. 1984)).
152

Id. (citing Lee v. Kan. City. S. Ry. Co., 574 F.3d 253, 259-61 (5th Cir. 2009)).

153

Id. (citing Perez v. Tex. Dep’t of Criminal Justice, Inst. Div., 395 F.3d 206, 210 (5th Cir. 2004)).

154

Id. (citing Jones v. Sewerage & Water Bd. Of New Orleans, 2015 WL 2354079, at *3 (E.D. La. May 15,
2015 (citing Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003)).

24

When circumstantial evidence of discrimination is presented, Plaintiff argues, the
McDonnell Douglas framework applies.155 Plaintiff asserts, however, that the McDonnell Douglas
framework was intended to be a flexible one and that no single formulation of the prima facie
evidence test may fairly be expected to capture the many guises in which discrimination may
appear.156 The ultimate inquiry, according to Plaintiff, is whether she has set forth sufficient
evidence that may lead a reasonable fact-finder to infer discrimination.157 The importance of the
McDonnell Douglas framework, Plaintiff argues, is not “its specification of the discrete elements
of proof there required, but in its recognition of the general principle that any Title VII plaintiff
must carry the initial burden of offering evidence adequate to create an inference that an
employment decision was based on a discriminatory criterion . . . .”158
The Fifth Circuit has held, Plaintiff argues, that a more flexible burden-shifting standard
should be applied when necessitated by the particular facts of a case. 159 Plaintiff asserts that one
way that she can prove gender discrimination is through comparator evidence, which allows her
to meet her prima facie case without applying a more flexible burden-shifting standard.160
Regarding Plaintiff’s claims of sex-segregated job classifications, Plaintiff argues that the Court
could find under a more flexible burden-shifting standard that she has offered sufficient evidence
to create an inference that Defendant’s employment decisions were motivated by illegal criterion,

155

Id. at 3 (citing Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)).

156

Id. (citing Barnes v. Yellow Freight Systems, Inc., 778 F.2d 1096, 1100 (5th Cir. 1985); Byrd v.
Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982)).
157

Id. at 4.

158

Id. (quoting Int’l Broth. of Teamsters v. United States, 431 U.S. 324, 358 (1977)).

159

Id. at 4–5 (citing Byrd, 687 F.3d at 87).

160

Id. at 5.

25

and according to Plaintiff, that is all that is required to overcome summary judgment. 161 Finally,
Plaintiff argues that Defendant’s purported treatment of female Meat Department employee Kelly
Blanchard has no bearing on the validity of Plaintiff’s discrimination claims, because the primary
focus of Title VII is the protection of the individual employee, rather than the protection of the
minority group as a whole.162 As a result, Plaintiff contends, Defendant cannot escape liability for
discriminating against Plaintiff even if it can prove that it treated other female employees in a
favorable manner.163
E.

Defendant’s May 4, 2016, Supplemental Memorandum in Support of the Motion
In its May 4, 2016, supplemental memorandum in support of the motion for summary

judgment, Defendant argues that the Court should reject the reasoning of the District of Minnesota
in Catlin v. Wal-Mart Stores, Inc. and hold that Plaintiff’s claims arising before August 23, 2000,
are time-barred.164 Instead of applying the reasoning in Catlin, Defendant argues, the Court should
apply the reasoning of a Northern District of Alabama decision, Cooks v. Wal-Mart Stores, Inc.165
According to Defendant, Cooks addressed the specific issue before the Court, i.e. the
circumstances that permit a Title VII plaintiff to “piggyback” in relation to an EEOC charge filed
by another person.166 On the other hand, Defendant argues, Catlin addressed the issue of whether
a plaintiff, who was no longer employed by Wal-Mart when the Dukes class action was filed, was

161

Id. at 5–6.

162

Id. at 6 (citing Conn. v. Teal, 457 U.S. 440, 453-54 (1982)).

163

Id. (citing Diaz v. Kraft Foods Glob., Inc., 653 F.3d 582, 587-88 (7th Cir. 2011)).

164

Rec. Doc. 72 at 1–2 (citing 123 F. Supp. 3d 1123 (D. Minn. 2015)).

165

Id. at 2 (citing No. 2:13-CV-526-RDP, 2013 WL 5350661 (N.D. Ala. Sept. 23, 2013)).

166

Id.

26

a former class member entitled to American Pipe tolling, which, according to Defendant, is not at
issue in this case.167
Defendant asserts that the district court in Cooks properly determined that the plaintiff, a
putative member of the originally proposed class in Dukes, could not piggyback on the named
plaintiff’s EEOC charge, because the plaintiff could not establish that she was entitled to do so
under Eleventh Circuit precedent, which requires the individual claims of the filing and non-filing
plaintiff to arise out of similar discriminatory treatment in the same time frame. 168 Defendant
asserts that because the named plaintiff in the Dukes case (Stephanie Odle) did not raise any
disparate pay issues in her EEOC charge, the court held that the Cooks plaintiff’s claims of
disparate pay could not piggyback on Odle’s EEOC charge.169
Defendant argues that the “single filing rule” in the Fifth Circuit is similar to the Eleventh
Circuit standard, because “the plaintiff must be similarly situated to the person who actually filed
the EEOC charge.”170 Defendant argues that Plaintiff, like the plaintiff in Cooks, is only asserting
a claim for gender pay discrimination. As a result, Defendant maintains, Plaintiff is not similarly
situated to Odle and may not piggyback on Odle’s charge under the Fifth Circuit standard.171
Defendant argues that the Court should reject the Catlin court’s conclusion that former Dukes class
members’ claims were tolled from the date of the filing of Odle’s EEOC charge in October 1999,
because the district court in that case did not consider the elements necessary for the single-filing

167

Id.

168

Id. at 3 (citing Cooks, 2013 WL 5350661, at *3).

169

Id. at 3–4.

170

Id. at 4 (citing Price v. Choctaw Glove & Safety Co., Inc., 459 F.3d 596, 599 (5th Cir. 2006); Bettcher v.
The Brown Schools, Inc., 262 F.3d 492, 494 (5th Cir. 2001)).
171

Id.

27

exception to apply in the Fifth Circuit.172 Finally, Defendant argues that even under the reasoning
in Catlin, the tolling of claims was extended to the date Odle filed her EEOC charge on October
22, 1999.173 Thus, Defendant contends, any of Plaintiff’s claims arising before the filing of Odle’s
EEOC charge are time-barred.174
F.

Plaintiff’s May 11, 2016, Supplemental Memorandum in Opposition to the Motion
In Plaintiff’s May 11, 2016, supplemental memorandum in opposition to the motion for

summary judgment, she argues that her claims are not time-barred and that the Court should adopt
the reasoning set forth in Catlin regarding the timeliness of Plaintiff’s claims.175 Plaintiff contends
that her EEOC charge relating to conduct prior to August 23, 2000, is timely because her charge
relates back to Stephanie Odle’s charge.176 Plaintiff argues that the Cooks decision to the contrary
is an outlier and is inconsistent with other federal court decisions on the issue.177 Plaintiff notes
that in Leal v. Wal-Mart Stores, Inc., a magistrate judge in the Eastern District of Louisiana also
concluded that a former Dukes class member could rely on Odle’s EEOC charge, which included
conduct occurring on or after December 26, 1998.178
Next, Plaintiff argues that Cooks has no bearing on her case, because it was determined
under Eleventh Circuit law, while Leal was decided under Fifth Circuit precedent.179 Moreover,

172

Id. at 5.

173

Id. at 5–6 (citing Catlin, 123 F.Supp.3d at 1132).

174

Id. at 6.

175

Rec. Doc. 74 at 1.

176

Id at 2.

177
Id. (citing Catlin, 2015 WL 4964671, at *7-8; Dukes v. Wal-Mart Stores, Inc., No. C 01-02252 CRB,
2012 WL 4329009, at *9 (N.D. Cal. Sept. 21, 2012)).
178

Id. at 3 (citing No. CV 15-5768, 2016 WL 2610020, at *1 (E.D. La. May 6, 2016)).

179

Id. at 4.

28

according to Plaintiff, the Cooks court based part of its analysis on a Norther District of Texas
decision, which was later reversed and remanded by the Fifth Circuit.180 Finally, Plaintiff
concludes that the Cooks court reasoning was simply incorrect and inconsistent with the definition
of the Dukes class certified by the district court, which expressly includes “all women employed
at any Wal-Mart domestic retail store at any time since December 26, 1998 . . . .”181 Plaintiff argues
that the Court should adopt the reasoning set forth in Catlin and Leal to hold timely Plaintiff’s
claims from December 26, 1998, to August 23, 2000.182
G.

Defendant’s May 11, 2016, Supplemental Memorandum in Support of the Motion
In its May 11, 2016, supplemental memorandum in support of the motion for summary

judgment, Defendant argues that Plaintiff cannot establish a prima facie case of discrimination.183
Defendant argues that it is undisputed that the Meat Wrapper job did not require equal skill, effort,
or responsibility as the Meat Cutter job and that Plaintiff consequently cannot establish a prima
facie case of pay discrimination.184 Another reason Plaintiff cannot establish a prima facie case of
pay discrimination, Defendant argues, is that Plaintiff was paid more than two male Meat Case
Workers for the same time period.185 Moreover, Defendant asserts, Plaintiff’s testimony, supported
by the testimony of “all other witnesses,” confirmed that there was only one other person in the
Meat Department who was similarly situated to Plaintiff, the other Meat Wrapper, Kelly

180

Id. (citing Odle v. Wal-Mart Stores, Inc., 747 F.3d 315 (5th Cir. 2014)).

181

Id. (citing Leal, 2016 WL 2610020, at *6 (citing Dukes v. Walmart, F.R.D. 137, 188 (N.D. Cal. 2004)).

182

Id.

183

Rec. Doc. 75 at 1–2.

184

Id. at 2.

185

Id. at 2–3.

29

Blanchard.186 Because she was paid more than any male Meat Department Associate that was not
a Meat Cutter and even more than some Meat Cutters, Defendant argues, Plaintiff cannot establish
a prima facie case of gender pay discrimination relating to her employment as a Meat Wrapper.187
Defendant also argues that Plaintiff cannot maintain a discrimination claim relating to her
employment in the Seafood Department because she testified that she was treated fairly while
working in the Seafood Department and that she did not have any comparators.188
Next, Defendant argues that no Fifth Circuit decisions cited by Plaintiff applied the
McDonnell Douglas framework in a flexible way.189 Even if the Court were to apply a flexible
standard and Plaintiff could establish a prima facie case of discrimination, Defendant argues, there
were legitimate reasons for Plaintiff’s pay other than sex and “there is absolutely no evidence in
the record of any kind of gender discrimination whatsoever.”190 Defendant argues that Plaintiff’s
circumstantial comparator evidence fails, because it is undisputed that Meat Cutters were
experienced and deserved higher pay and that there were male Meat Case Workers who were paid
less than Plaintiff.191 Defendant further argues that there is no support for Plaintiff’s allegations of
sex-segregated job classification, because evidence confirms that there was a female Meat Cutter,
that Hebert would have hired a female Meat Cutter but none applied, and that Plaintiff and
Blanchard were paid more as Meat Wrappers than the identified male Meat Case Workers.192

186

Id. at 3.

187

Id.

188

Id. at 4.

189

Id. at 5.

190

Id. at 5–6.

191

Id. at 6.

192

Id.

30

Defendant also argues that Plaintiff has not identified any discriminatory act suggesting that gender
played a role in Plaintiff’s pay.193 Finally, Defendant argues that Blanchard’s pay precludes
Plaintiff’s gender discrimination claim, because a female plaintiff cannot show wage
discrimination based on sex when the second highest paid person performing the same job is a
female.194
H.

Defendant’s September 16, 2016, Supplemental Memorandum in Support of the Motion
In its September 16, 2016, supplemental memorandum in support of the motion for

summary judgment, Defendant alerts the Court that the portion of the Eastern District of Louisiana
decision relied upon by Plaintiff in arguing the timeliness of her claims has been reversed. 195 In
granting in part Defendant’s motion to reconsider, Defendant asserts, the magistrate judge
modified the original order to find that tolling of plaintiff Leal’s claims extended from the filing
of Odle’s EEOC charge in October 1999, but not to the three hundred days before that filing.196
Defendant states, however, that the magistrate judge did not modify the original finding that Leal
could piggyback on Odle’s EEOC charge.197 Defendant argues that because Plaintiff did not
complain of the same discriminatory treatment as Odle and Leal, the Court should not allow
Plaintiff to piggyback on Odle’s EEOC charge.198 Defendant maintains that Plaintiff’s claims

193

Id. at 7.

194

Id. (citing Earle v. Aramark Corp., 247 Fed. App’x 519, 523 (5th Cir. 2007)).

195

Rec. Doc. 99 at 1, 2 (citing Leal v. Wal-Mart Stores, Inc., No. 15-5768, 2016 WL 6091179, at *1 (E.D.
La. Aug. 15, 2016), reconsideration denied in part sub nom. Leal v. Wal-Mart Stores, Inc., No. 15-5768, 2016 WL
6081957 (E.D. La. Oct. 18, 2016)).
196

Id. at 4.

197

Id.

198

Id.

31

arising prior to August 23, 2000, are time-barred.199 Finally, Defendant contends that no decision,
including Catlin, has found that statute of limitations tolling for former Dukes class members
extends to December 1998.200 Instead, even if the Court applies the reasoning of Catlin, Defendant
argues, Plaintiff’s claims cannot be tolled beyond October 22, 1999.201
I.

Plaintiff’s October 3, 2016, Supplemental Memorandum in Opposition to the Motion
In her October 3, 2016, supplemental memorandum in opposition to the motion for

summary judgment, Plaintiff argues that a plaintiff claiming discrimination under Title VII must
first file a charge of discrimination with the EEOC or, under the single file rule, rely on the timelyfiled charge of another similarly situated claimant.202 Either way, Plaintiff argues, a filed charge
of discrimination does two things by operation of law: (1) tolls the statute of limitations and (2)
encompasses as timely all causes of action arising during the 300-day period preceding the filed
charge of discrimination.203 Plaintiff agrees with the magistrate judge’s holding in Leal that the
plaintiff could rely on Odle’s timely-filed October 22, 1999, EEOC charge, but contends that the
Leal court incorrectly declined to treat as timely the plaintiff’s claims arising during the 300 days
preceding October 22, 1999.204 Plaintiff argues that the Court should reject the Leal court’s
reasoning and allow Plaintiff to bring claims arising 300 days preceding the filing of Odle’s EEOC

199

Id.

200

Id. at 5.

201

Id.

202

Rec. Doc. 108 at 1.

203

Id.

204

Id. (citing Leal v. Wal-Mart Stores, Inc., No. 15-5768, 2016 WL 6091179, at *1 (E.D. La. Aug. 15,
2016), reconsideration denied in part sub nom. Leal v. Wal-Mart Stores, Inc., No. 15-5768, 2016 WL 6081957
(E.D. La. Oct. 18, 2016)).

32

charge, rather than those claims arising 300 days preceding the filing of the Dukes class action
lawsuit.205
Plaintiff asserts that the Leal court’s order held that while Odle’s EEOC charge set the class
period in Dukes to December 26, 1998, Odle’s EEOC charge did not extend the limitations period
to December 26, 1998.206 According to Plaintiff, this means that the Leal plaintiff’s claims were
tolled only up to Odle’s EEOC charge date of October 22, 1999, and that any claims arising before
that date were time-barred.207 Plaintiff contends that the Leal court’s ruling is an error of law and
should not be adopted by the Court.208 Because the single file rule applies to claims arising from
the same time frame, Plaintiff argues, the class period is not distinct from the tolling period; rather,
the class period and tolling period are necessarily related because the class period is set by the
applicable tolling time frame, as determined by the earliest filed charge of discrimination.209
Under the single file rule, Plaintiff argues, timeliness is determined by the earliest filed
EEOC charge, not by the date that suit was first filed.210 The Leal ruling, Plaintiff contends, is also
at odds with the definition of the class in Dukes, which covers all employees working at Wal-Mart
as early as December 26, 1998.211 According to Plaintiff, if she could have filed a timely EEOC
charge on the same date Odle filed her charge, then her claims are timely; if not, her claims are

205

Id. at 1–2.

206

Id. at 4.

207

Id.

208

Id.

209

Id. at 5.

210

Id. at 6 (citing Rodgers v. Target Corp., No. 08-1300, 2012 WL 4482422, at *2–3 (W.D. La. Sept. 28,
2012); Lumpkin v. Coca-Cola Bottling Co. United, 216 F.R.D. 380, 384 (S.D. Miss. 2003); Clayborne v. Omaha
Pub. Power Dist., 211 F.R.D. 573, 588 (D. Neb. 2002)).
211

Id. at 7.

33

time-barred.212 Because her claims arising between December 26, 1998, and October 22, 1999, are
within the 300-day statute of limitations for Title VII claims, Plaintiff argues, she could have filed
a timely EEOC charge on October 22, 1999, and her claims are timely under the single file rule.213
Finally, Plaintiff asserts that Defendant is estopped from arguing against the application of the
single filing rule in this case, because Defendant has, according to Plaintiff, made and lost the same
timeliness arguments on four previous occasions.214
J.

Defendant’s Sur-Reply and Supplemental Sur-Reply to Plaintiff’s Opposition
In its October 12, 2016, sur-reply to Plaintiff’s October 3, 2016, supplemental

memorandum in opposition to the motion for summary judgment, Defendant argues that the Leal
court’s order is not manifestly erroneous and that Plaintiff has failed to identify any case that has
directly held that the statute of limitations for the individual claims of former Dukes class members
extends to December 26, 1998.215 Defendant argues that the cases cited by Plaintiff in her
supplemental memorandum stand for the proposition that a plaintiff’s class claims must begin no
earlier than the three hundred days before the earliest filing of an EEOC charge by a class
representative.216 According to Defendant, however, for individual claims after decertification of
a class, exhaustion occurs from the date of tolling, i.e. the filing of the earliest class member’s
EEOC charge, to the period three hundred days later.217 Defendant asserts that none of the cases
cited by Plaintiff address the issue presented here, the timeliness of a former class member’s

212

Id. at 8.

213

Id. at 9 (citing 42 U.S.C.A. § 2000e-5).

214

Id. at 10–11.

215

Rec. Doc. 117 at 2.

216

Id. at 3.

217

Id.

34

individual claims after class decertification.218 Defendant also argues that it is not estopped from
challenging the timeliness of Plaintiff’s claims, because it did not previously litigate this specific
issue in Catlin or Dukes.219
In its October 21, 2016, supplemental sur-reply to Plaintiff’s supplemental memorandum
in opposition to the motion for summary judgment, Defendant alerts the Court that the Leal court
issued an order denying the Leal plaintiff’s motion for reconsideration of its order that the
plaintiff’s claims did not toll beyond October 22, 1999.220 According to Defendant, the Leal court
did not find that Defendant was estopped from asserting the timeliness argument in this case,
because that issue had not been litigated in any prior case. 221 Defendant also argues that Plaintiff,
unlike the Leal plaintiff, cannot piggyback on Odle’s EEOC charge, because her claims are not
similar to Odle’s claims of discrimination. According to Defendant, therefore, Plaintiff’s claims
arising before August 23, 2000, (300 days prior to the filing of the Dukes class action) are
untimely.222
K.

Plaintiff’s Response to Defendant’s Supplemental Sur-Reply
In her October 28, 2016, response to Defendant’s supplemental sur-reply,223 Plaintiff

argues that under the single file rule, when a plaintiff relies on a named plaintiff’s timely filed
EEOC charge, the timely filed EEOC charge tolls the statute of limitations period for the non-

218

Id.

219

Id. at 4.

220

Rec. Doc. 131 at 2.

221

Id.

222

Id.

223

Rec. Doc. 172-1.

35

filing plaintiff’s claims and that the Court must “look back” to determine which of the non-filing
plaintiff’s claims fall within the applicable limitations period based on the date of the tolling.224
Plaintiff further notes that the Leal court issued a decision denying reconsideration of its
order holding that the Leal plaintiff’s claims arising before the filing of Odle’s EEOC charge were
untimely.225 In that decision by the Leal court, Plaintiffs argue, the magistrate judge determined
that although a first-filed EEOC charge tolls the statute of limitations, the court should not look
back to determine which claims fall within the applicable limitations period.226 Plaintiff asserts
that the Leal court held that only those claims arising on or after the date that Odle’s EEOC charge
was filed are timely and that the court found no contrary, binding authority in the Fifth Circuit.227
Plaintiff argues, however, that a Fifth Circuit decision, Pettway v. American Cast Iron Pipe Co.,228
supports Plaintiff’s position on the tolling of her claims.229
Plaintiff asserts that Pettway involved a class action alleging discrimination claims under
Title VII and concerned class members “both named and unnamed, who have filed or not filed
complaints with the Equal Employment Opportunity Commission.”230 In determining the proper
time frame for a back-pay award, Plaintiff argues, the Fifth Circuit affirmed that class members
who had not filed an EEOC charge could rely on the timely charges filed by others. 231 Plaintiff

224

Id. at 2.

225

Id. (citing Leal v. Wal-Mart Stores, Inc., No. 15-5768, Rec. Doc. 51 (E.D. La. October 18, 2016)).

226

Id. (citing Leal, No. 15-5768, Rec. Doc. 51 at 4–5).

227

Id. (citing Leal, No. 15-5768, Rec. Doc. 51 at 4–5).

228

494 F.2d 211 (5th Cir. 1974).

229

Rec. Doc. 172-1 at 2.

230

Id. at 2–3 (quoting Pettway, 494 F.2d at 244) (internal quotations omitted).

231

Id. at 3 (citing Pettway, 494 F.2d at 256).

36

asserts that the Fifth Circuit held that the timely filed EEOC charges tooled the statute of
limitations for all class members.232 Next, Plaintiff argues, the Fifth Circuit looked back from the
date that the limitations was tolled to determine which claims were timely based on the applicable
limitations period.233 Plaintiff asserts that the Fifth Circuit concluded that the back pay period was
limited to the period within which the plaintiffs’ claims could extend.234 Thus, Plaintiff argues,
there is binding Fifth Circuit precedent supporting Plaintiff’s position that “a litigant’s reliance on
the single-file or piggy-back rule does not change how the statute of limitations is applied.”235
Plaintiff next argues that the Leal court’s decision was incorrect, because it disregarded the
procedural history in the Dukes class action.236 Plaintiff asserts that the Leal court relied on
language from Price v. Choctaw Glove & Safety Co., Inc.,237 to incorrectly hold that the single file
rule applies only to a party who did not file an EEOC charge and is trying to opt-in to a suit filed
by a similarly situated plaintiff.238 Plaintiff asserts that under the Leal court’s reasoning, the single
file rule is inapplicable to the Leal plaintiff’s case because she is not attempting to opt-in to a
class.239 Plaintiff argues that Price does not create such a limitation.240 Plaintiff further argues that

232

Id. at 3 (citing Pettway, 494 F.2d at 256).

233

Id. at 3–4 (citing Pettway, 494 F.2d at 256).

Id. at 4 (quoting Pettway, 494 F.2d at 256) (“Since no claim may extend to a period prior to July 2, 1965
under either Title VII or section 1981, this date marks the beginning of the back pay period.”)
234

235

Id. at 4.

236

Id.

237

459 F.3d 595.

238

Id. (citing Leal v. Wal-Mart Stores, Inc., No. 15-5768, Rec. Doc. 51 (E.D. La. Oct. 18, 2016)).

239

Id.

240

Id. at 5.

37

the Leal plaintiff’s case and her case “do not exist in a vacuum.”241 The district court in Dukes,
Plaintiff argues, ruled that for putative class members like the Leal plaintiff and Plaintiff, Odle’s
EEOC charge: “(1) tolls the statute of limitations; (2) sets the applicable class period; and (3) sets
the timeliness or applicable limitations period of putative class claims.”242 Plaintiff further argues
that when the Supreme Court decertified the Dukes class, Wal-Mart agreed that the tolling already
established in Dukes would be extended and carry forward so that all class members could “start
the clock fresh” and those class members who had not filed EEOC charges would have 180 or 300
days to file an EEOC charge, depending on the relevant statute of limitations in the class member’s
state.243 Plaintiff contends that the Leal court either ignores or discounts the procedural history in
Dukes.244
III. Law and Analysis
A.

Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”245 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”246 All reasonable inferences are drawn in favor of the nonmoving party,

241

Id.

242

Id. (citing Rec. Doc. 57-29 at 14–16).

243

Id. at 6 (citing Rec. Doc. 57-31 at 4).

244

Id.

245

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
246

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

38

but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”247
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.248 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.249
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.250 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.251 To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts. 252 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”253 Rather, a factual dispute

247

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

248

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

249

See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

250

Celotex, 477 U.S. at 323.

251

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).

252

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–

49 (1996)).
253

Little, 37 F.3d at 1075.

39

precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable
trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at trial do not qualify as competent
opposing evidence.254
Defendant argues: (1) that Plaintiff failed to exhaust her administrative remedies and that
her claims are time-barred and (2) that Plaintiff cannot establish a prima facie case of gender
discrimination and that even if she could, Defendant has produced legitimate, non-discriminatory
reasons for the sex segregation of job categories and Plaintiff’s pay as compared to other
employees. The Court will address Defendant’s procedural argument first and then turn to the
merits of Plaintiff’s gender discrimination claim.
B.

Exhaustion of Administrative Remedies and Tolling of Statute of Limitations in
Employment Related Class Actions
1.

Applicable Law
The Fifth Circuit “has long required plaintiffs to exhaust their administrative remedies

before bringing suit under Title VII.”255 In order to file suit under Title VII, a plaintiff must first
file a charge with the EEOC within 300 days of the alleged discriminatory act.256 Once the EEOC
issues a right-to-sue letter to the party who has filed the EEOC charge, that party has 90 days to
file a Title VII action in federal court.257 However, literal compliance with this rule is not always

254

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).

255

Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 (5th Cir. 2006).

256

Id. (citing 42 U.S.C. § 2000e, et seq.).

257

Id. (citing 42 U.S.C. § 2000e, et seq.).

40

required as “[i]t would be wasteful, if not vain, for numerous employees, all with the same
grievance, to have to process many identical complaints with the EEOC.”258
In Oatis v. Crown Zellerbach Corp., the Fifth Circuit held “that it is not necessary for each
member of a class to file an EEOC charge as a prerequisite to join a Title VII suit as long as at
least one named plaintiff had filed such charges.”259 Therefore, under the “single filing rule,” an
individual can “opt-in to a suit filed by any similarly situated plaintiff under certain conditions.”260
In Bettcher v. The Brown Schools, Inc., the Fifth Circuit further explained the “single filing rule,”
finding that three conditions must be satisfied before a plaintiff may invoke the rule:
First, the plaintiff must be similarly situated to the person who actually filed the
EEOC charge. Second, the charge must have provided some notice of the collective
or class-wide nature of the charge. Finally, a prerequisite . . . for piggybacking
under the single filing rule is the requirement that the individual who filed the
EEOC charge must actually file a suit that the piggybacking plaintiff may join.261
Moreover, in American Pipe & Construction Co. v. Utah, the Supreme Court held that
“commencement of a class action suspends the applicable statute of limitations as to all asserted
members of the class who would have been parties had the suit been permitted to continue as a
class action.”262 “Tolling, however, does not continue indefinitely. If the district court denies
certification, or if it certifies the class but later decertifies it, tolling ceases.”263 “At that point, class
members may choose to file their own suits or to intervene as plaintiffs in the pending action.”264

258

Id. (quoting Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968)).

259

Id. (citing Oatis, 398 F.2d at 498).

260

Id. at 599 (citing Bettcher v. The Brown Schools, Inc., 262 F.3d 492, 494 (5th Cir. 2001)).

261

Id. (citing Bettcher, 262 F.2d at 494–95).

262

414 U.S. 538, 554 (1974).

263

Odle v. Wal-Mart Stores, Inc., 747 F.3d 315, 320 (5th Cir. 2014).

264

Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983).

41

2.

Analysis

Plaintiff was hired by Wal-Mart to work as a Meat Wrapper and Case Worker in December
of 1997.265 It is undisputed that Plaintiff was a member of the Dukes class action, which was filed
in the United States District Court for the Northern District of California on June 19, 2001.266 A
district court judge in the Northern District of California certified the Dukes class under Rule
23(b)(2) of the Federal Rules of Civil Procedure for “all women employed at any Wal-Mart
domestic retail store at any time since December 26, 1998, who have been or may be subjected to
Wal-Mart’s challenged pay and management track promotions, policies and practices.”267
The Supreme Court decertified the Dukes class in 2011.268 Following decertification, the
district court extended the tolling established in the Dukes class action for all class members, so
Plaintiff’s statute of limitations was tolled for the duration of the class and extended to allow her
to bring an EEOC charge.269 The Dukes court gave former class members who had never filed an
EEOC charge, like Plaintiff, until May 25, 2012, to file a charge with the EEOC.270 It is undisputed
that Plaintiff filed an EEOC charge against Defendant on May 18, 2012.271
In support of summary judgment, Defendant first argues that Plaintiff’s claims are
procedurally barred, because her May 18, 2012 EEOC charge was deficient and she has, therefore,

265

See Rec. Doc. 57-3 at 5.

266

Dukes v. Wal-Mart Stores, Inc., No. 01-02252, 2001 WL 1902806, at *1 (N.D. Cal. June 19, 2001).

267

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 141–142 (N.D. Cal. 2014).

268

564 U.S. 338 (2011).

269

Rec. Doc. 57-31 at 4.

270

Dukes v. Wal-Mart Stores, Inc., No. 01-02252 (N.D. Cal. August 19, 2011) (Rec. Doc. 760).

271

Rec. Doc. 57-4.

42

not exhausted her administrative remedies as required under Title VII. 272 Second, Defendant
argues that Plaintiff’s claims arising before August 23, 2000, are time barred.273 Defendant argues
that Plaintiff’s claims began tolling on August 23, 2000 (three hundred days before the Dukes class
action was filed).274 In the alternative, Defendant argues that Plaintiff’s claims began tolling no
earlier than October 22, 1999 (the date of filing of Dukes named plaintiff Stephanie Odle’s EEOC
charge). 275 Plaintiff responds that her EEOC charge was legally sufficient and adequately put
Defendant on notice of her pay discrimination claims.276 In response to Defendant’s arguments
regarding the timeliness of her claims, Plaintiff argues that her claims arising since December 26,
1998, (three hundred days before the date of filing of Odle’s EEOC charge) are timely, because
she was a member of the Dukes class action and she can rely on Odle’s timely filed EEOC
charge.277 Plaintiff does not contest that any pay discrimination claims arising before December
26, 1998, are untimely.
a.

Defendant’s Argument that Plaintiff has Failed to Exhaust her
Administrative Remedies

Defendant first argues that Plaintiff’s claims are procedurally barred, because her EEOC
charge was deficient and she has, therefore, not exhausted her administrative remedies as required
under Title VII.278 Defendant asserts that Plaintiff’s EEOC charge was legally deficient, because

272

See 42 U.S.C.A. § 2000e-5(b).

273

Rec. Doc. 54-1 at 13–14.

274

Id.

275

Rec. Doc. 72 at 6.

276

Rec. Doc. 57 at 21.

277

Rec. Doc. 74 at 2.

278

See 42 U.S.C.A. § 2000e-5(b).

43

it did not identify a specific act of discrimination and did not put Defendant on notice of the alleged
unlawful employment practice.279 Plaintiff responds that her EEOC charge was legally sufficient
and adequately put Defendant on notice of her pay discrimination claims.280
The Fifth Circuit has held that a Title VII plaintiff is not required to “recite a specific
incantation” or to “allege a prima facie case before the EEOC” in order to exhaust her
administrative remedies.281 Instead, the “court interprets what is properly embraced in review of a
Title VII claim somewhat broadly, not by the scope of the administrative charge itself, but by the
scope of the EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.”282 In Pacheco v. Mineta, the Fifth Circuit held that the plaintiff had failed to
exhaust his administrative remedies where his EEOC complaint solely alleged disparate treatment
but his complaint alleged disparate impact.283
In Plaintiff’s EEOC charge, Plaintiff identified the stores where she worked, her dates of
employment, that she was an hourly employee, the type of discrimination alleged, and the context
of the discriminatory conduct.284 Additionally, Plaintiff responded to an EEOC questionnaire
stating that she believed she was paid less than her male co-workers with “equal or less tenure and
experience” between 1997 and 2011.285 Plaintiff also stated that men were Meat Cutters and
women were Meat Wrappers and that Meat Wrappers earned less per hour and lower merit raises,

279

Rec. Doc. 54-1 at 13.

280

Rec. Doc. 57 at 21.

281

Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006).

282

Id. at 789 (internal quotations and citations omitted).

283

Id.

284

Rec. Doc. 57-4.

285

Rec. Doc. 54-16.

44

even though they had more responsibility.286 Finally, Plaintiff stated that between 1997 and 2011,
her Managers led her to believe that she would not be promoted and that she was discriminated
against in promotions because of her gender.287 Although Defendant argues that the EEOC charge
is deficient as a matter of law because it did not include sufficient detail regarding Plaintiff’s
employment in the Seafood Department, the EEOC charge states that Plaintiff experienced pay
and promotion discrimination because of her gender “during her employment” at the Covington
Wal-Mart from December 1997 until 2009, which encompasses her time in the Seafood
Department.288 It appears from the evidence in the record that a pay discrimination investigation
could “reasonably have been expected to grow out of” Plaintiff’s EEOC charge.289 As a result,
there is evidence to establish that Plaintiff exhausted her administrative remedies, and therefore
Defendant has not demonstrated that no material facts are in dispute requiring a finding that
Plaintiff’s claims are procedurally barred as a matter of law.
b.

Defendant’s Arguments that Plaintiff’s Claims arising before August
23, 2000, or Alternatively, before October 22, 1999, are Untimely

Defendant argues that Plaintiff’s claims arising before August 23, 2000, (three hundred
days before the filing of the Dukes class action) are untimely, because Plaintiff should not be
allowed to rely on Dukes named plaintiff Stephanie Odle’s EEOC charge under the single file
rule.290 Defendant appears to argue that Defendant was not put on notice of Plaintiff’s claims until
the filing of the class action on June 19, 2001, and that Plaintiff’s claims arising more than 300

286

Id.

287

Id.

288

Rec. Doc. 57-4; see also Rec. Doc. 57-3 at 23.

289

Pacheco, 448 F.3d at 789.

290

Rec. Doc. 54-1 at 15.

45

days before that filing are time-barred as a result.291 In the alternative, Defendant argues that
Plaintiff’s claims began tolling no earlier than October 22, 1999, (the filing of Dukes named
plaintiff Stephanie Odle’s EEOC charge).292 In response, Plaintiff argues that her claims arising
after December 26, 1998, are timely, because she can rely on Odle’s timely filed EEOC charge
under the single file rule and Odle’s EEOC charge encompassed alleged discriminatory actions
that occurred after December 26, 1998.293
As discussed above, in the Fifth Circuit three conditions must be satisfied before a plaintiff
may invoke the single filing rule: (1) the plaintiff must be similarly situated to the person who
actually filed the EEOC charge; (2) the charge must have provided some notice of the collective
or class-wide nature of the charge; and (3) the individual who filed the EEOC charge must actually
file a suit that the piggybacking plaintiff may join.294
Regarding the first requirement, Odle’s EEOC charge alleged that she was denied the
opportunity to be promoted as Manager in 1999 and experienced discriminatory behavior
throughout her employment with Wal-Mart from 1991 to 1999.295 Plaintiff’s EEOC charge stated
that she was “discriminated against in pay and promotions because of [her] gender” since her
employment with Wal-Mart began in 1997.296 Plaintiff has pointed to evidence that Plaintiff’s
EEOC charge encompasses the time when Odle’s claims arose, and Plaintiff’s claim arises out of

291

Rec. Doc. 99 at 2–3.

292

Rec. Doc. 72 at 6.

293

Rec. Doc. 74 at 3.

294
Price v. Choctaw Glove & Safety Co., Inc., 459 F.3d 595, 599 (5th Cir. 2006) (citing Bettcher v. The
Brown Schools, Inc., 262 F.3d 492, 494 (5th Cir. 2001)).
295

See Odle v. Wal-Mart Stores, Inc., 747 F.3d 315, 317 (5th Cir. 2014).

296

Rec. Doc. 57-4.

46

similar discriminatory treatment.297 Although Plaintiff does not contend that she was denied the
opportunity to be promoted as Manager, she does contend that sex segregation of jobs prevented
her from obtaining higher paying positions. Thus, the Court finds that Plaintiff has pointed to
sufficient evidence to support her assertion that she is similarly situated to Stephanie Odle. As for
the second requirement, Odle’s EEOC charge alleged that she had “evidence of discriminatory
treatment of females that likewise indicate a pattern or practice of discrimination toward females
in management positions.”298 Thus, the Court finds that Odle’s EEOC charge provided “some
notice of the collective or class-wide nature of the charge,” later filed by Plaintiff here.299
Regarding the final requirement, Stephanie Odle, the individual who filed the EEOC charge, was
a named plaintiff in the Dukes class action, and Plaintiff joined in that suit.300 Accordingly, the
Court finds that Plaintiff has pointed to sufficient evidence to support her assertion that she may
rely on Odle’s timely filed EEOC charge under the single file rule as articulated by the Fifth
Circuit.
Plaintiff has pointed to evidence that Plaintiff’s claims arising since December 26, 1998,
are timely, because under the single filing rule, Plaintiff may rely on Odle’s timely filed EEOC
charge. Odle’s EEOC charge covered allegedly discriminatory conduct occurring 300 days before
the filing of the charge, as early as December 26, 1998. The Court does not see a compelling
reason, and Defendant has not offered one, to bar Plaintiff’s claims that arise out of the same time
period covered by Odle’s EEOC charge. Because Plaintiff has pointed to sufficient evidence that

297

See Price, 459 F.3d at 599.

298

Rec. Doc. 33-3 at 3.

299

Price, 459 F.3d at 599.

300

Id.

47

her claims arising since December 26, 1998, relate to Odle’s October 22, 1999, EEOC charge of
discrimination, Defendant has not established that no material facts are in dispute and that it is
entitled to judgment as a matter of law that Plaintiff’s claims are untimely.
Defendant cites Price v. Choctaw Glove & Safety Co., Inc., to support its assertion that
Plaintiff’s claims were only tolled 300 days before the filing of the class action not 300 days before
the filing of Stephanie Odle’s EEOC charge.301 In Price, the Fifth Circuit held that “[a] noncharging party cannot bring her own independent lawsuit based upon another party’s [EEOC]
charge” where the non-charging party did not opt-in to a class-action lawsuit filed by the charging
party.302 In Price, the plaintiff chose to not opt-in to a prior class action and filed a separate lawsuit.
However, here it is undisputed that Plaintiff was a member of the prior Dukes class action.
Therefore, her claims were tolled under the Supreme Court’s decision in American Pipe &
Construction Co. v. Utah.303
Defendant relies on a recent decision by a magistrate judge in the Eastern District of
Louisiana, Leal v. Wal-Mart Stores, Inc., in which the court, while reversing itself without a
detailed explanation,304 held that a plaintiff who was a former member of the Dukes class could
rely on Odle’s EEOC charge but could only bring claims for the period on or after Odle’s October
22, 1999, EEOC charge.305 The Leal court’s decision to limit the plaintiff’s claims to the period

301

Rec. Doc. 99 at 3 (citing Price, 459 F.3d at 598).

302

Price, 459 F.3d at 599.

303

414 U.S. 538, 554 (1974).

The magistrate judge held: “It appears that Odle’s charge was filed on October 22, 1999, and the December
26, 1998, date was actually the class period which was determined by the presiding trial judge in the Dukes Matter.
Therefore, the Court finds that Leal’s claim was tolled up to October 22, 1999. As such, the claims for the period
before October 22, 1999, are time barred.” Leal, No. 15-5768, Rec. Doc. 41 at 4.
304

305

See Leal, No. 15-5768, Rec. Doc. 41 at 4.

48

after October 1999, differed from that same court’s earlier determination that the plaintiff’s claims
arising during the time period on or after December 26, 1998, were timely.306
The Court disagrees with the Leal court’s conclusion that a plaintiff, relying on another
plaintiff’s timely filed EEOC charge under the single file rule, may not bring claims that arise
within the time period covered by that EEOC charge. Plaintiff has pointed to evidence supporting
her position that she may rely on Odle’s timely filed EEOC charge under the single file rule,
because she is similarly situated to Odle, the person who actually filed the EEOC charge; Odle’s
EEOC charge provided notice of the collective or class-wide nature of the charge; and Plaintiff
joined the suit filed by Odle.307 If Plaintiff, rather than Odle, had filed an EEOC charge on October
22, 1999, she would have been permitted to bring claims arising out of conduct that occurred since
December 26, 1998. Accordingly, because Plaintiff has pointed to evidence that Plaintiff may rely
on Odle’s timely filed EEOC charge, the Court finds that she may also bring claims arising within
the time period covered by Odle’s EEOC charge.308 This Court’s determination that Plaintiff may
rely on Odle’s EEOC charge, rather than finding that she should have filed her own EEOC charge
at the same time as Odle, is consistent with the Fifth Circuit’s determination that “[i]t would be
wasteful, if not vain, for numerous employees, all with the same grievance to have to process many
identical complaints with the EEOC.”309

306

Id. at 1.

307

See Price, 459 F.3d at 599.

308

Cf. Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211,256 (5th Cir. 1974) (holding that non-charging Title
VII plaintiffs may rely on timely filed EEOC charge of named class member and that back pay award should be
determined by the time period covered by the statute of limitations).
309

Price, 459 F.3d at 598.

49

Defendant’s reliance on the Northern District of Alabama’s decision in Cooks v. Wal-Mart
Stores, Inc. is also misplaced.310 In that case, the plaintiff, who had left her employment with WalMart in 2000, attempted to bring an individual discrimination claim following the decertification
of the Dukes class.311 The court found that the plaintiff’s discrimination claims were not similar to
Dukes named plaintiff Odle’s discrimination claims.312 As a result, the court held that the plaintiff
could not rely on Odle’s timely filed EEOC charge and could not benefit from tolling due to the
pendency of the Dukes class action.313 The Cooks court relied on a Northern District of Texas
decision that has since been reversed by the Fifth Circuit to further hold that even if the plaintiff
were allowed to rely on Odle’s EEOC charge, her claims would have been untimely. 314 This case
is distinguishable from Cooks. Here, unlike the plaintiff in Cooks, the Plaintiff here was an
employee at Wal-Mart at the time of the Dukes filing. Moreover, Plaintiff has pointed to evidence
supporting her assertion that her claims arise out of similar discriminatory treatment within the
same time period of Odle’s EEOC charge. Because Plaintiff, unlike the Cooks plaintiff, may rely
on Odle’s timely filed EEOC charge, Defendant has not shown that there are no material facts in
dispute and that Plaintiff cannot rely on the single file rule as a matter of law.
Plaintiff relies on the reasoning in Catlin v. Wal-Mart Stores, Inc., where a district judge
in the District of Minnesota rejected the defendant’s argument that the plaintiff’s claims were time-

310

No. 13-526, 2013 WL 5350661 (N.D. Ala. Sept. 23, 2013).

311

Id. at *3.

312

Id.

313

Id. at *4.

314

Id. (citing Odle v. Wal-Mart Stores Inc., No. 3:11-CV-2954-O, 2012 WL 5292957, at *1 (N.D. Tex. Oct.
15, 2012), rev'd and remanded, 747 F.3d 315 (5th Cir. 2014)).

50

barred because they had expired before the Dukes class action commenced.315 The district court
reasoned that the single file rule applied and that a single class representative’s timely filed EEOC
charge “tolls the statute of limitations for all putative class members to file charges.”316 This
Court’s determinations are consistent with the Catlin court’s finding that Dukes class members
may rely on Odle’s EEOC charge under the single file rule.317
To summarize, Plaintiff has pointed to evidence that she fits squarely within the class
certified by the district court in Dukes. Under the single file rule, Plaintiff may rely on Odle’s
timely filed EEOC charge, because Plaintiff has pointed to evidence to support her assertion that
her claims arise out of similar discriminatory treatment in the same time frame.318 Because Plaintiff
may rely on Odle’s timely filed EEOC charge, the Court finds that she may also bring claims
arising within the time period covered by Odle’s EEOC charge. After decertification of the Dukes
class, tolling extended to all class members, and Plaintiff had until May 25, 2012, to file an EEOC
charge. It is undisputed that Plaintiff timely filed an EEOC charge on May 18, 2012. Having
determined that Plaintiff’s claims arising since December 26, 1998, are not procedurally barred or
time-barred as matter of law, the Court will turn to the parties’ arguments regarding Plaintiff’s
prima facie case of gender discrimination.
C.

Prima Facie Case of Gender Discrimination
On a motion for summary judgment, the moving party bears the initial burden of

identifying those portions of the record that it believes demonstrate the absence of a genuine issue

315

123 F.Supp. 1123, 1130 (D. Minn. 2015).

316

Id. (citing Clayborne v. Omaha Pub. Power Dist., 211 F.R.D. 573, 588–89 (D. Neb. 2002).

317

Id.

318

See Price, 459 F.3d at 598.

51

of material fact.319 Here, Defendant asserts that Plaintiff cannot establish a prima facie case of
gender discrimination, because it is undisputed that Meat Cutter and Meat Wrapper jobs were
substantially different and Plaintiff was not paid less than any similarly situated male who
performed the same job.320 In response, Plaintiff asserts that pay data undisputedly illustrates that
every employee within the Meat Department was categorized in the same position, as “processor,”
which was later classified as “Sales Associate.”321 Thus, Plaintiff argues, she and her male
coworkers were similarly situated “from the perspective of the employer.”322 Plaintiff also argues
that the total sex segregation of Meat Cutters and Meat Wrappers raises a strong inference that
Defendant was discriminatory where no special qualifications were needed to become apprenticed
as a Meat Cutter.323 Plaintiff further argues that in each of her three positions she was paid less
than male employees performing the same job responsibilities.324
Title VII makes it “an unlawful employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment because of such individual’s race, color . . .”325 A claim of employment discrimination
can be proven through direct or circumstantial evidence.326 Direct evidence is evidence that proves

319

Celotex, 477 U.S. at 323.

320

Rec. Doc.54-1 at 9.

321

Rec. Doc. 57 at 16.

322

Id. (quoting Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002)).

323

Id. (citing Babrocky v. Jewel Food Co., 773 F.2d 857, 869 (7th Cir. 1985)).

324

Id. at 18.

325

42 U.S.C. § 2000e–2(a)(1).

326

Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000).

52

the fact of discriminatory animus without inference or presumption.327 To survive summary
judgment in an employment discrimination case in the absence of direct evidence of
discrimination, the plaintiff must demonstrate, pursuant to the burden-shifting framework found
in McDonnell Douglas Corp. v. Green, that: (1) she was in a protected class; (2) she was qualified
for the position; (3) she suffered adverse employment action; and (4) she was treated less favorably
than similarly situated employees.328 The Supreme Court noted that courts should apply this
framework flexibly, as “the facts necessarily will vary in Title VII cases.”329 Moreover, “to
establish a prima facie case, a plaintiff need only make a very minimal showing.”330
If the plaintiff can establish these elements, the burden will shift to the defendant to show
a legitimate, non-discriminatory purpose for the adverse employment action.331 The defendant
must point to admissible evidence in the record,332 but the burden is one of production, not
persuasion.333 The defendant is not required to show that the employment decision was proper,

327

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).

328

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Okoye v. Univ. of Tex. Houston
Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001) (applying the McDonnell Douglas framework to Title VII
claims).
329

Id. at 802 n.13; see also Intern. Broth. of Teamsters, 431 U.S. at 358 (recognizing that the importance of
McDonnell Douglas lies “not in its specification of the discrete elements of proof there required, but in its
recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence
adequate to create an inference that an employment decisions was based on a discrimination criterion illegal under
the [Civil Rights] Act”); Barnes, 778 F.2d at 1099 (“The McDonnell Douglas rule was intended to be a flexible
one.”).
330

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996).

331

Id.

332

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).

333

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).

53

only that it was not discriminatory.334 The employer may succeed at this stage by proving that it
would have taken the same action even had it not considered the unlawful factor.335
If the defendant satisfies its burden of production, the burden shifts back to the plaintiff to
show that any non-discriminatory purposes offered by the defendant are merely a pretext for
discrimination by presenting evidence of disparate treatment or demonstrating that the proffered
explanation is false.336
Here, Plaintiff has asserted two theories of pay discrimination. The first is that she received
unequal pay and was precluded from higher earning positions as a result of discriminatorily
motivated sex segregated job classifications within the Meat Department.337 The second is that she
experienced pay discrimination due to male comparators within her same positions—Meat
Wrapper/Case Worker, Department Manager/Lead Associate, and Sales Associate—earning
higher pay despite performing the same job responsibilities.338 The Court will address each theory
in turn to determine whether Plaintiff has met her burden under McDonnell Douglas.
1.

Sex Segregation of Job Classifications

Regarding Plaintiff’s first theory, Plaintiff first asserts she is a member of a protected class,
because she is a woman. Plaintiff next asserts that she was qualified for the Meat Cutter position,

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390 (5th Cir. 2007); see also Perez v. Region 20
Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.
1995) (“The question is not whether an employer made an erroneous decision; it is whether the decision was made
with discriminatory motive.”).
334

335

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

336

Id.

337

Rec. Doc. 57 at 13.

338

Id.

54

as Hebert testified that no prior cutting experience was required for the position.339 Plaintiff next
points to pay data in the record that demonstrates that Meat Cutters and Lead Associates were paid
more than Meat Wrappers and Case Workers, thereby supporting her contention that she suffered
an adverse employment action by receiving lower pay as the result of sex segregation. 340 Defendant
argues that under her sex segregation theory, Plaintiff cannot meet the fourth requirement that she
was treated less favorably than similarly situated employees, because it is undisputed that the Meat
Cutter and Meat Wrapper jobs were different.341
The Fifth Circuit has instructed that in determining whether a plaintiff was treated
differently from an alleged comparator, the issue is whether the plaintiff and the alleged
comparator are similarly situated from the perspective of their employer at the time of the relevant
decisions.342 Here, Plaintiff notes that Defendant was unable to produce a single job description
for the different categories of workers, and points to Defendant’s pay data, which undisputedly
illustrates that every employee within the Meat Department was categorized in the same position,
as a “processor,” which was later reclassified to “Sales Associate.”343 Therefore, Plaintiff
contends, she and her male coworkers were similarly situated “from the perspective of the
employer.”344 The pay data show that male processors were paid substantially more than female
processors.345 Plaintiff has, thus, made the “minimal showing” required to establish a prima facie

339

Rec. Doc. 57-3 at 23.

340

Id. at 14.

341

Rec. Doc. 54-1 at 9.

342

Perez, 395 F.3d at 210.

343

Id.

344

Id. (quoting Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002)).

345

Id.

55

case of discrimination under her first theory of discrimination that she was segregated into lower
paying positions within the Meat Department because of her gender.346
Defendant proffers four legitimate, non-discriminatory reasons in response to Plaintiff’s
prima facie case of gender discrimination under a sex segregation theory. First, Defendant
contends that the Meat Cutter position was open to females, as Plaintiff acknowledges that there
was one female Meat Cutter in Covington for a short time.347 Second, Defendant argues that Meat
Cutters received higher pay than Meat Wrappers, because Meat Cutters were more skilled than
Meat Wrappers.348 Third, Defendant asserts that no women applied for a Meat Cutter position
during Plaintiff’s employment, but there was no rule or policy preventing them from doing so.349
Fourth, Defendant argues that Plaintiff admitted that she did not apply for the position because she
was afraid of working with saws.350 Defendant has, thus, met its burden of production under the
McDonnell Douglas framework.
Because Defendant has met its burden of production, Plaintiff must show that any of the
non-discriminatory reasons offered by Defendant are a pretext for discrimination. Plaintiff has
pointed to evidence in the record to suggest that Defendant’s proffered reasons for the sex
segregation within the Meat Department are pretextual. First, in response to Defendant’s assertion
that the Meat Cutter position was open to women, Plaintiff notes that the only female Meat Cutter
to work at Covington was a temporary worker and that Hebert never hired a female Meat Cutter

346

Nichols, 81 F.3d at 41.

347

Id.

348

Rec. Doc. 54-1 at 11.

349

Id.

350

Id.

56

or Lead Associate.351 Second, in response to Defendant’s assertion that Meat Cutters were more
skilled than Meat Wrappers, Plaintiff notes that Hebert testified that prior skills training was not
required to obtain a Meat Cutter position and that he had previously placed employees into a meat
cutting apprenticeship program who had no prior meat-cutting experience.352 Third, in response to
Defendant’s assertion that no women applied for the Meat Cutter position during Plaintiff’s
employment, Plaintiff points to Hebert’s testimony that he did not post job openings for Meat
Cutters, and instead, self-selected replacements, who were all male, without mentioning or
advertising the openings to all employees.353 Plaintiff further points to Hebert’s use of gender
stereotyping language about female Case Workers’ “stature” and physical abilities during his
testimony to suggest that gender stereotyping may have improperly influenced Hebert’s selection
of employees to fill the Meat Cutter position.354
Fourth, in response to Defendant’s argument that Plaintiff was afraid of saws, Plaintiff
asserts that she was unaware of in-store training available for her to learn the necessary skills to
cut meat.355 Plaintiff further argues that although the Meat Cutter apprenticeship program was
developed by Hebert during Plaintiff’s time at Wal-Mart, he never suggested that Plaintiff
participate.356 Although Hebert testified that he never encouraged Plaintiff to cut meat because

351

Rec. Doc. 57-3 at 6.

352

Id. at 23.

353
Id. at 11; see Int’l Broth., 431 U.S. at 365 (noting that an unofficial policy of discrimination
discouraging members of a protected class to apply for a position could be communicated by “. . . the manner in
which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries, and even by
the racial or ethnic composition of that part of his work force from which he has discriminatorily excluded members
of minority groups”).
354

Id. at 7.

355

Rec. Doc. 57 at 20.

356

Rec. Doc. 57-3 at 23.

57

“she never asked,” Plaintiff notes that he, nevertheless, encouraged her to work in the Seafood and
Deli departments without Plaintiff requesting to do so.357 Plaintiff’s testimony that she was afraid
of saws does not preclude her gender discrimination claim, because even if she was afraid of saws,
it does not necessarily follow that Defendant was not improperly motivated by gender
discrimination in segregating job categories within the Meat Department. Plaintiff’s testimony that
she was afraid of working with saws may indeed influence a finder of fact’s determination of the
damages owed to Plaintiff should she be able to prove liability, but her testimony does not preclude
a gender discrimination claim.358 Plaintiff has pointed to sufficient specific evidence in the record
to show that Defendant’s proffered reasons for the sex segregation of the Meat Department are a
pretext for employment actions impermissibly based on gender stereotyping.359
2.

Higher Pay to Male Comparators in Similar Positions

Under Plaintiff’s second theory of gender discrimination, she argues that she experienced
pay discrimination due to male comparators within her same positions—Meat Wrapper/Case
Worker, Department Manager/Lead Associate, and Sales Associate—earning higher pay despite
performing the same job responsibilities.360 Plaintiff points to evidence in the record that two male
Case Workers were paid more than her in the Meat Department and that a similarly situated male
in the Seafood Department was also paid more than her.361 Rather than offer legitimate, nondiscriminatory reasons for the alleged pay discrimination, Defendant argues that Plaintiff cannot

357

Rec. Doc. 57 at 20.

See, e.g., Ford Motor Co. v. EEOC, 458 U.S. 219, 241 (1982) (holding that Title VII plaintiff’s rejection
of employer’s unconditional job offer ends accrual of potential backpay liability).
358

359

See Price Waterhouse, 490 U.S. at 250 (recognizing relevance of sex stereotyping to Title VII actions).

360

Rec. Doc. 57 at 13.

361

Rec. Doc. 57 at 19–20.

58

establish a prima facie case using comparator evidence, because it is “essentially impossible” to
accurately determine from Defendant’s employment histories what jobs employees held and
when.362 Additionally, Defendant contends that because Blanchard, a female Case Worker, was
paid more than some of the male Meat Cutters, Plaintiff’s gender discrimination claim fails.363
Defendant also argues that Plaintiff testified that she did not experience discrimination during her
time in the Seafood Department.364
Plaintiff has pointed to sufficient evidence in the record to identify male comparators who
performed similar duties and were paid more than she was during the same time period.
Defendant’s assertion that its employment histories are inaccurate does not defeat Plaintiff’s
discrimination claim. Rather, it suggests the existence of a genuine dispute for the trier of fact.365
Defendant’s argument regarding Blanchard likewise involves a factual dispute, because Defendant
has noted that its employment history records are unreliable.366 It is, thus, unclear at this point what
position Blanchard held and whether she performed similar duties as Plaintiff. More importantly,
even if a female Case Worker was paid more than some of the male Meat Cutters, it does not
follow that Plaintiff cannot establish a prima facie case of gender discrimination. The Supreme
Court has recognized that the primary purpose of Title VII is the protection of the individual
employee, not the protection of the minority group as a whole.367

362

Rec. Doc. 67 at 4–5.

363

Id. at 5.

364

Id. at 6.

365

See Perez, 395 F.3d 206 (5th Cir. 2004) (holding that whether employees to whom plaintiff sought to
compare himself were similarly situated to plaintiff was issue for jury).
366

Rec. Doc. 64-1 at 4–5.

367

Conn. v. Teal, 457 U.S. 440, 453–54 (1982) (recognizing that Title VII would have little force if an
employer could defeat a claim of discrimination by treating a single member of the protected class in accordance
with the law); see also City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702, 708–09 (1978)

59

Defendant cites Earle v. Aramark Corp. to support its argument that Plaintiff’s gender
discrimination claim is precluded.368 In Earle, a 44-year-old plaintiff sued her former employer
for age and sex discrimination.369 The district court granted summary judgment in favor of the
employer, because the plaintiff failed to allege any discriminatory intent by her former employer,
and the evidence failed to demonstrate any evidence of disparate treatment based on sex.370
Although the district court noted that the plaintiff was paid more than another male in the same
position and that the second-highest paid employee in the plaintiff’s position was female, the Fifth
Circuit did not uphold the district court’s grant of summary judgment because there was one female
receiving higher pay than males in the same position. Rather, the Fifth Circuit agreed with the
district court’s analysis that the plaintiff had failed to provide sufficient evidence to establish a
prima facie case of pay discrimination or to show that the defendant’s proffered legitimate, nondiscriminatory reasons were a pretext for discrimination.371 Here, unlike the plaintiff in Earle,
Plaintiff has pointed to pay data and anecdotal evidence in the record to suggest that she was paid
less than similarly situated male employees and that impermissible discrimination based on sex
may have motivated Defendant’s employment actions.
Finally, Defendant’s argument that Plaintiff admitted that she did not experience
discrimination in the Seafood Department is unavailing. Plaintiff testified that she was not aware

(recognizing that fairness to a class of women employees does not excuse discrimination against an individual
female employee); Hodgson v. American Bank of Commerce, 447 F.2d 416, 421 (1971) (holding that the fact that
two female employees were making $5.00 a month more than male tellers did not establish that there was no
prohibited sex discrimination between wages of men as a group and women as a group).
368

247 Fed. App’x 519 (5th Cir. 2007).

369

Id. at 521.

370

Id. at 523.

371

Id. at 523–524.

60

of pay discrepancies while she was employed in the Seafood Department, but she also said that
she felt like she deserved more compensation.372 Given that Plaintiff did not have pay data
available to her, the fact that she did not know whether she had experienced pay discrimination is
not surprising. Her statement that she felt like she was treated fairly in the Seafood Department
but that she also felt that she deserved more compensation does not suggest the absence of a
genuine issue of material fact. Rather, Plaintiff’s statement suggests that she did not have the
information at the time of her testimony to definitively state that she experienced pay
discrimination in the Seafood Department. At this point, however, Plaintiff has utilized evidence
of pay data to establish a prima facie case of pay discrimination in the Seafood Department by
pointing to a similarly situated male who was paid more than her during the same time period.373
Viewing the evidence in the light most favorable to the nonmovant, the Court finds that
Plaintiff has succeeded in identifying specific evidence in the record and articulating how that
evidence supports her claims of gender discrimination.374 Because genuine issues of fact exist,
Defendant is not entitled to summary judgment on Plaintiff’s gender discrimination claim.
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Defendant’s “Motion for Summary Judgment”375 is
GRANTED IN PART AND DENIED IN PART.

372

Rec. Doc. 57-3 at 31–32.

373

Rec. Doc. 57 at 20.

374

See Forsyth, 19 F.3d at 1537.

375

Rec. Doc. 54.

61

IT IS FURTHER ORDERED considering that Plaintiff has not contested Defendant’s
arguments, Defendant’s motion is GRANTED to the extent that Plaintiff’s claims occurring before
December 26, 1998, are time-barred.
IT IS FURTHER ORDERED that Defendant’s motion is DENIED because the Court
finds that Plaintiff has pointed to sufficient evidence supporting Plaintiff’s assertion that her claims
arising since December 26, 1998, are not procedurally barred or time-barred.376
IT IS FURTHER ORDERED that Defendant’s motion is DENIED because material
issues of fact are in dispute regarding whether Plaintiff has asserted a valid claim for
discrimination.

31st
NEW ORLEANS, LOUISIANA, this ____ day of October, 2016.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

376

Plaintiff also contends that Defendant is judicially estopped from asserting that the Plaintiff’s claims are
time barred. However, Plaintiff points to no cases adverse to Defendant directly addressing this issue of tolling after
the decertification of the Dukes class action. Accordingly, the Court has not addressed this argument.

62