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Smaller Wal-Mart gender bias class-action reinstated

Smaller Wal-Mart gender bias class-action reinstated

A federal appeals court has reinstated one of the cases filed by smaller groups of plaintiffs in the long-standing Wal-Mart Stores Inc. gender discrimination lawsuit, overturning a lower court ruling that had dismissed the case.

The U.S. Supreme Court held in its 2011 ruling in Betty Dukes et al. v. Wal-Mart Stores Inc. that a proposed gender discrimination class of 1.5 million failed to identify a “common mode of exercising discretion that pervades the company.” Since then, smaller groups of plaintiffs have filed lawsuits around the United States seeking class certification.

In its ruling Tuesday the 6th U.S. Circuit Court of Appeals in Cincinnati held in Cheryl Phipps et al. v. Wal-Mart Stores Inc. that plaintiffs were not time-barred from pursuing their litigation and reinstated the case.

Bentonville, Arkansas-based Wal-Mart had successfully persuaded the U.S. District Court in Nashville, Tennessee, that plaintiffs were not eligible to pursue their case because the statute of limitations had run out.

Wal-Mart said an earlier case established that the statute of limitations was not suspended in the case because it prohibited any class action brought after a previous denial of class certification was applicable, according to the ruling.

An appeals court panel disagreed, in a 2-1 ruling. “Courts may be required to decide whether a follow-on class action or particular issues raised within it are precluded by earlier litigation, but we would eviscerate (the federal rule governing class actions) if we were to approve the blanket rule advocated by Wal-Mart … that bars all follow-on class actions,” said the 2-1 ruling.

The ruling said, however, that its opinion was limited to whether the plaintiffs may initiate the lawsuit. “Whether the proposed classes are appropriate for certification is not at issue here,” said the ruling.

In a related case in 2013, U.S. District Judge Charles R. Breyer in San Francisco ruled that a proposed class of 150,000 plaintiffs faced the same problems that led the U.S. Supreme Court in 2011 to reject the 1.5 million-member class: They did not identify a “common mode of exercising discretion that pervades the company,'' as the high court had ruled in 2011.

The smaller group of women that worked in the California area, as did the larger group, alleged they were paid less and promoted less often than men.

In the ruling, Judge Breyer basically said that while there may be a certifiable class in the group of 150,000, “it has to be a whole lot smaller,” said one observer.

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