Class Action News

Walmart Workers Must Pursue Sex Bias Claims as 79 Suits (2)

July 15, 2019, 2:17 PMUpdated: July 15, 2019, 5:43 PM

Two groups of women who brought separate cases against Walmart for alleged systemic sex discrimination must pursue their claims in 79 individual lawsuits, a federal judge in Florida ruled.

All 79 women worked at different stores, held different positions, and worked during different time periods, the U.S. District Court for the Southern District of Florida said July 12. They also all worked under different supervisors and under different employment policies. Some of those policies were created and implemented prior to 2004, the court said, granting Walmart’s motion to sever in each case.

Both cases stem from the proposed massive sex bias class action of approximately 1.5 million women that the U.S. Supreme Court invalidated in its landmark 2011 Wal-Mart Stores Inc. v. Dukes decision.

The retail giant has managed to fend off allegations of pay discrimination brought by thousands of women for more than a decade.

The Dukes ruling was seen as a major win for the defense bar against class actions. It said the plaintiffs didn’t identify a common policy to link their cases. The decision influenced strategies for future class actions filed against major companies.

Smaller regional class actions against Walmart were filed in the wake of that decision, including the two cases in Florida. Many of those classes were shot down as courts questioned the timeliness of the claims or the certification requirements for each class. Walmart also settled with the named plaintiffs in a number of cases.

A new strategy has emerged as well, with attorneys who represent these women filing individual lawsuits. Since February 2019, at least 13 individual lawsuits have been brought against the retailer. Attorneys with Cohen, Milstein, Sellers & Toll represent the women in the individual lawsuits, as well as the class actions. Many of the old complaints remain the same, but the strategy and the named plaintiffs are new, even if they were part of the originally certified Dukes class.

The women in the two Florida cases seek to join their various claims. But it’s not enough that they all allege discrimination based on sex in pay and promotions, gender stereotyping, and a failure by Walmart to effectively uphold workplace anti-bias laws, Judge Robert N. Scola Jr. said. None of their claims arise out of the same transaction or occurrence, and there’s no common policy, job practice, or set of facts that applies to all of the women in each case, the court said.

Similar issues of employer liability alone aren’t enough to warrant joining the women’s claims in either case, Scola said.

The allegations in the two lawsuits only consist of “a brief summary of the alleged discriminatory practices,” Scola said. For some women, a full page of specific details is included, but for others, there are “as few as three brief sentences of allegations,” he said.

In a statement provided to Bloomberg Law, a Walmart spokesman said, “We are pleased the Court ended yet another attempt by these lawyers to group dozens of plaintiffs into one suit against us. As we have said, if these plaintiffs believe they have been treated unfairly, they deserve to have their timely, individual claims heard in court — but not in some package the law does not recognize. The Court has laid out a process where each plaintiff can file an individual complaint to hear allegations that are more than 15 years old. We will thoughtfully address each case as we continue to defend the company.”

Scott Wagner & Associates P.A. and Cohen, Milstein, Sellers & Toll PLLC represent the women. Greenberg Traurig and Littler Mendelson P.C. represent Walmart. The attorneys for the workers didn’t respond to requests for comment.

The cases are Radtka v. Wal-Mart Stores, Inc., 2019 BL 258467, S.D. Fla., No. 19-80153, 7/12/19 and Price v. Wal-Mart Stores, Inc., 2019 BL 258445, S.D. Fla., No. 19-80152, 7/12/19.

(Adds Walmart statement.)

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com; Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; Simon Nadel at snadel@bloomberglaw.com

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