Fairley v. Wal-Mart Stores, Inc.

Full title: Ravion FAIRLEY v. WAL-MART STORES, INC.

Court: United States District Court, E.D. Louisiana.

Date published: Oct 31, 2016

216 F. Supp. 3d 708 (E.D. La. 2016)

Opinion

CIVIL ACTION NO. 15-462

10-31-2016

Ravion FAIRLEY v. WAL-MART STORES, INC.

J. Arthur Smith, III, Justin M. Delaune, Smith Law Firm, LLC, Baton Rouge, LA, Lucas James Kaster, James Harvey Kaster, Jason Paul Hungerford, Kate Ann Fisher, Matthew Hale Morgan, Nichols Kaster, PLLP, Minneapolis, MN, for Ravion Fairley. Stephen Paul Beiser, Susanne U. Veters, Francis Horatio Brown, III, McGlinchey Stafford, PLLC, New Orleans, LA, for Wal-Mart Stores, Inc.

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

J. Arthur Smith, III, Justin M. Delaune, Smith Law Firm, LLC, Baton Rouge, LA, Lucas James Kaster, James Harvey Kaster, Jason Paul Hungerford, Kate Ann Fisher, Matthew Hale Morgan, Nichols Kaster, PLLP, Minneapolis, MN, for Ravion Fairley.

Stephen Paul Beiser, Susanne U. Veters, Francis Horatio Brown, III, McGlinchey Stafford, PLLC, New Orleans, LA, for Wal-Mart Stores, Inc.

SECTION: "G"(4)

ORDER

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

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

1 Rec. Doc. 54.

A. Factual Background

Plaintiff is a former member of the Wal–Mart Stores, Inc. v. Dukes ² 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 EEOC issued a right-to-sue notice to Plaintiff on November 20, 2014.⁵

2 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).

3 Rec. Doc. 38.

4 Id. at 2.

5 Id.

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 front-end cashier position for approximately one month before resigning in April 2011 for health reasons.¹¹

6 Rec. Doc. 57 at 5.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

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 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

12 Id. at 6.

13 Id.

14 Id.

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

15 Id.

16 Id. at 6–7.

17 Id. at 7.

18 Id. at 8.

19 Id.

In addition, Plaintiff argues that she was paid less than male employees in her same 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

20 Id.

21 Id.

22 Id.

23 Id.

24 Id. at 9.

25 Id.

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 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

26 Id.

27 Id.

28 Id.

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 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

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.

37 Rec. Doc. 99.

38 Rec. Doc. 108.

39 Rec. Doc. 117.

40 Rec. Doc. 131.

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

41 Rec. Doc. 54-1 at 4.

42 Id.

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 for performing the same job, and Plaintiff admits she was not subject to pay discrimination while in the Seafood Department.⁴⁴

43 Id. at 5.

44 Id.

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

45 Id. at 6.

46 Id.

47 Id.

48 Id. at 6–7.

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 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

49 Id. at 8.

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.

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 level of skill, training, experience, or responsibility as being a Meat Cutter.⁵⁵

53 Id.

54 Id.

55 Id. at 9.

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

56 Id.

57 Id.

58 Id.

59 Id.

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 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

60 Id. at 10.

61 Id. (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (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) ).

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 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

64 Id.

65 Id. (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110–13, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ).

66 Id. at 11–12.

67 Id. at 12.

68 Id.

69 Id.

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

70 Id. at 13–14 (citing Morgan, 536 U.S. at 108–09, 122 S.Ct. 2061 ).

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 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.

71 Rec. Doc. 57 at 2.

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. 54-1 at 15 n.60.

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 Associate—earning higher pay despite performing the same job responsibilities.⁷⁷

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) ).

77 Id. at 13.

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

78 Id. at 14.

79 Id.

80 Id. at 15.

81 Id.

82 Id.

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

83 Id.

84 Id. at 16.

85 Id.

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

87 Id.

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 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

88 Id.

89 Id.

90 Id.

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

92 Id. at 17.

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

93 Id.

94 Id.

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

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

96 Id. at 18.

97 Id.

98 Id.

99 Id.

100 Id. at 18–19.

101 Id. at 19.

Furthermore, Plaintiff avers, the pay disparities continued when she assumed the responsibilities of Manager of the Seafood Department, even though no official Manager/Lead 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

102 Id.

103 Id. at 19–20.

104 Id. at 20.

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

105 Id.

106 Id.

107 Id. at 20–21.

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 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

108 Id. at 21.

109 Id.

110 Id.

111 Id. at 21 n. 12.

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 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

112 Id. at 21.

113 Id. at 22.

114 Id.

115 Id.

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

117 Id.

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 C. Defendant's Reply in Support of Summary Judgment

118 Id. at 24.

119 Id.

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

121 Id.

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

122 Rec. Doc. 67 at 1.

123 Id. at 2.

124 Id.

125 Id. at 2–3.

126 Id. at 2.

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 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

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

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

129 Id.

130 Id.

131 Id. at 4.

132 Id.

133 Id.

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 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

134 Id.

135 Id. at 4–5.

136 Id. at 5.

137 Id.

138 Id. at 5–6.

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

139 Id. at 6.

140 Id.

141 Id. at 7.

142 Id. at 7–8.

143 Id. at 8.

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

144 Id. at 9–10.

145 Id.

146 Id. at 10.

147 Id.

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 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

148 Rec. Doc. 71 at 1–2.

149 Id.

150 Id. at 2.

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

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) ).

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

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, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) ).

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, 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

159 Id. at 4–5 (citing Byrd, 687 F.2d at 87 ).

160 Id. at 5.

161 Id. at 5–6.

162 Id. at 6 (citing Conn. v. Teal, 457 U.S. 440, 453–54, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) ).

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

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 a former class member entitled to American Pipe tolling, which, according to Defendant, is not at issue in this case.¹⁶⁷

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.

167 Id.

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

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

169 Id. at 3–4.

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 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

170 Id. at 4 (citing Price v. Choctaw Glove & Safety Co., Inc., 459 F.3d 595, 599 (5th Cir. 2006) ; Bettcher v. The Brown Schools, Inc., 262 F.3d 492, 494 (5th Cir. 2001) ).

171 Id.

172 Id. at 5.

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

174 Id. at 6.

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

175 Rec. Doc. 74 at 1.

176 Id at 2.

177 Id. (citing Catlin, 123 F.Supp.3d at 1131–32 ; 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) ).

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, 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

179 Id. at 4.

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, 222 F.R.D. 137, 188 (N.D. Cal. 2004) )).

182 Id.

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 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

183 Rec. Doc. 75 at 1–2.

184 Id. at 2.

185 Id. at 2–3.

186 Id. at 3.

187 Id.

188 Id. at 4.

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 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

189 Id. at 5.

190 Id. at 5–6.

191 Id. at 6.

192 Id.

193 Id. at 7.

194 Id. (citing Earle v. Aramark Corp., 247 Fed.Appx. 519, 523 (5th Cir. 2007) ).

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 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

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.

199 Id.

200 Id. at 5.

201 Id.

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 timely-filed 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 charge, rather than those claims arising 300 days preceding the filing of the Dukes class action lawsuit.²⁰⁵

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) ).

205 Id. at 1–2.

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

206 Id. at 4.

207 Id.

208 Id.

209 Id. at 5.

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 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

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.

212 Id. at 8.

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

214 Id. at 10–11.

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 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

215 Rec. Doc. 117 at 2.

216 Id. at 3.

217 Id.

218 Id.

219 Id. at 4.

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

220 Rec. Doc. 131 at 2.

221 Id.

222 Id.

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-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

223 Rec. Doc. 172-1.

224 Id. at 2.

Plaintiff further notes that theLeal 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

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.

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 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

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 ).

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

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

234 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.")

235 Id. at 4.

Plaintiff next argues that theLeal 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 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

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.

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.

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, 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

245 Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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).

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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

249 See Celotex, 477 U.S. at 325, 106 S.Ct. 2548 ; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

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 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

250 Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

251 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994).

252 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

253 Little, 37 F.3d at 1075.

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

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 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

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. ).

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

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:

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) ).

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

261 Id. (citing Bettcher, 262 F.3d at 494–95 ).

261 Id. (citing Bettcher, 262 F.3d at 494–95 ).

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

262 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (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, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983).

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

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. Dec. 3, 2001).

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

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

268 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (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.

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, 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 theDukes 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.

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.

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 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

278 See 42 U.S.C.A. § 2000e–5(b).

279 Rec. Doc. 54-1 at 13.

280 Rec. Doc. 57 at 21.

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

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

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

283 Id.

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, 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.

284 Rec. Doc. 57-4.

285 Rec. Doc. 54-16.

286 Id.

287 Id.

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

289 Pacheco, 448 F.3d at 789.

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 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

290 Rec. Doc. 54-1 at 15.

291 Rec. Doc. 99 at 2–3.

292 Rec. Doc. 72 at 6.

293 Rec. Doc. 74 at 3.

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

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) ).

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 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.

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

296 Rec. Doc. 57-4.

297 See Price, 459 F.3d at 599.

298 Rec. Doc. 33-3 at 3.

299 Price, 459 F.3d at 599.

300 Id.

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 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] non-charging 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

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, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).

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 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

304 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.

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

306 Id. at 1.

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

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.

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 Wal-Mart 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.

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) ).

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-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

315 123 F.Supp. 1123, 1130 (D. Minn. 2015).

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

317 Id.

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.

318 See Price, 459 F.3d at 598.

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 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

319 Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

320 Rec. Doc. 54-1 at 9.

321 Rec. Doc. 57 at 16.

322 Id. (quotingPerez 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.

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 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

325 42 U.S.C. § 2000e–2(a)(1).

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

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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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, 93 S.Ct. 1817 ; see also Intern. Broth. of Teamsters, 431 U.S. at 358, 97 S.Ct. 1843 (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).

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, 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

331 Id.

332 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

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

334 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.").

335 Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

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

336 Id.

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 .

337 Rec. Doc. 57 at 13.

338 Id.

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, 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

339 Rec. Doc. 57-3 at 23.

340
Id. at 14.

341 Rec. Doc. 54-1 at 9.

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 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

342 Perez, 395 F.3d at 210.

343 Id.

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

345 Id.

346 Nichols, 81 F.3d at 41.

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.

347 Id.

348 Rec. Doc. 54-1 at 11.

349 Id.

350 Id.

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 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

351 Rec. Doc. 57-3 at 6.

352 Id. at 23.

353 Id. at 11; see Int'l Broth., 431 U.S. at 365, 97 S.Ct. 1843 (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.

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 "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

355 Rec. Doc. 57 at 20.

356 Rec. Doc. 57-3 at 23.

357 Rec. Doc. 57 at 20.

358 See, e.g., Ford Motor Co. v. EEOC, 458 U.S. 219, 241, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982) (holding that Title VII plaintiff's rejection of employer's unconditional job offer ends accrual of potential backpay liability).

359 See Price Waterhouse, 490 U.S. at 250, 109 S.Ct. 1775 (recognizing relevance of sex stereotyping to Title VII actions).

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, non-discriminatory reasons for the alleged pay discrimination, Defendant argues that Plaintiff cannot 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

360 Rec. Doc. 57 at 13.

361 Rec. Doc. 57 at 19–20.

362 Rec. Doc. 67 at 4–5.

363 Id. at 5.

364 Id. at 6.

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

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, 102 S.Ct. 2525, 73 L.Ed.2d 130 (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, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) (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).

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, non-discriminatory 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.

368 247 Fed.Appx. 519 (5th Cir. 2007).

369 Id. at 521.

370 Id. at 523.

371 Id. at 523–524.

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 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

372 Rec. Doc. 57-3 at 31–32.

373 Rec. Doc. 57 at 20.

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.

374 See Forsyth, 19 F.3d at 1537.

IV. Conclusion

Accordingly,

IT IS HEREBY ORDERED that Defendant's "Motion for Summary Judgment"³⁷⁵ is GRANTED IN PART AND DENIED IN PART.

375 Rec. Doc. 54.

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

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.
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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.