The repercussions of the Supreme Court's 2011 Wal-Mart Stores, Inc. v. Dukes decision continue to reverberate throughout federal courts in the United States. In Dukes, the plaintiffs sued on the theory that Wal-Mart's use of subjective decision-making in its various branches created salary and promotion disparities between male and female employees. The Court held that the plaintiffs could not demonstrate that common questions predominated for class certification purposes under Rule 23(b)(3) because there was "no convincing proof of a company-wide discriminatory pay and promotion policy." The only commonality that the plaintiffs could establish was the policy of allowing subjective discretion by local supervisors to dictate wage and employment matters for each store.
The Dukes legacy continued to grow in a recent case from the Western District of North Carolina. In Scott v. Family Dollar Stores, a group of female employees sought class certification for sex discrimination claims. The original complaint, filed in 2008 (pre-Dukes), alleged that the plaintiffs were discriminated against as a result of subjective decisions made at the local store levels. In 2011, after a venue transfer and several failed mediations, the defendant filed a Rule 12(b)(6) motion to dismiss the plaintiffs' class claims, arguing that the claims were foreclosed by Dukes.
The district court determined that the instant case paralleled Dukes and that the class could not be certified. The court explained, "[F]or the same reasons [as in Dukes], plaintiffs also cannot satisfy the nearly identical commonality showing-of similarly 'situated persons'–that is required to certify a collective action." The court further determined that no class claims existed for individualized monetary relief, including back pay or punitive damages, because Dukes held that such relief is not available under Rule 23(b)(2). In dismissing the plaintiffs' class allegations, the court reasoned that it would be "futile" to allow discovery to proceed because "plaintiff's [sic] theory for class certification is simply foreclosed by Dukes."
The court also refused to allow the plaintiffs to amend the complaint, ruling that amendment would prejudice the defendant. The court chided the plaintiffs for waiting until months after the Dukes decision to contemplate filing an amended complaint and refused to allow them to provide a "changed version of facts" to "avoid" Dukes. As in its explanation for refusing to allow the plaintiffs to proceed with discovery, the court said that amending the complaint would also be "futile" in light of Dukes, as the facts simply demonstrated no common discriminatory practice. Rather, the plaintiffs' theory rested on discrimination arising from the subjective discretion of individual store managers around the country—which, under Dukes, does not a common discriminatory policy make.
Does Dukes signal the end of class-wide employment discrimination claims against sprawling, multi-location companies? To some extent, the plaintiffs in Scott were victims of poor timing. Having essentially pled a Dukes fact pattern before Dukes was decided, any attempt at refashioning the claims post-Dukes was destined to be tainted with a whiff of desperation. Going forward, counsel filing class complaints in employment discrimination cases, with the benefit of Dukes, presumably will not make their class theories quite so easy for defense counsel and trial courts to shoot down. Nevertheless, as long as a defendant can show that its allegedly discriminatory policy was subjective and individualized by location, a potential class of plaintiffs will have a difficult time obtaining certification.
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