For Whom the Class Tolls: “No Piggybacking Rule” Does In Would-Be Class in Ongoing Wal-Mart Saga

In 2011, the United States Supreme Court issued its landmark decision in Wal-Mart Stores, Inc., v. Betty Dukes, et al., decertifying a putative class of approximately 1.6 million current and former female Wal-Mart employees who claimed gender discrimination in wages and promotions in violation of Title VII. 564 U.S. 338 (2011).  The Court reversed the Ninth Circuit’s affirmation of class certification and determined the plaintiffs failed to meet the class “commonality” standard set out in Federal Rule of Civil Procedure 23. Id. at 349-60. The Dukes decision set in motion a number of spinoff regional cases, one of which – barring another grant of certiorari to the high court – met its end somewhat anticlimactically, when the Eleventh Circuit issued its August 3, 2017 order in Love, et. al. v. Wal-Mart Stores, Inc. No. 15-15260.

The Love plaintiffs included a sub-group of the Dukes plaintiffs who worked in the southeastern United States. These holdover Dukes plaintiffs were able to refile their claims because of the requirement that federal court discrimination plaintiffs first file with the Equal Employment Opportunity Commission. This rule effectively tolled the statute of limitations during the pendency of Dukes. But critically, under the Eleventh Circuit’s “no piggybacking rule”, tolling is limited to individual claims only, not class claims, which has also been adopted by the Fifth and Sixth Circuits.  The Love court previously left little room for argument when it noted in a 2013 order that “[t]he Eleventh Circuit categorically refuses to toll the limitations period for subsequent class actions by members of the original class once class certification is denied in the original suit.”  Thus, on October 16, 2015 the individual named plaintiffs and Wal-Mart settled and jointly filed a “stipulation of voluntary dismissal.”

On November 6, 2015, the Love appellants, made up of unnamed members of the would-be class, filed a motion to intervene solely to appeal the dismissal of class claims. This motion was denied 13 days later as moot, which, to make matters worse for the appellants, took them outside of their 30-day deadline to appeal the October 16 stipulated dismissal. The Eleventh Circuit thus found the appeal jurisdictionally barred, providing a rather sudden end to the winding multi-year litigation.

In light of this tangled and technical history, employers and their counsel should be sure to understand the differences in treatment of class actions and individuals under the relevant rules, regulations, and statutes. Though it can be tempting to move immediately to the standard substantive arguments against numerosity, commonality, typicality, and adequacy of the proposed class, the Wal-Mart cases show that knowing your way around the procedural thicket is another useful skill in avoiding or minimizing the cost of class litigation.

 This post was written by Kelly J. Muensterman of  Polsinelli PC.



[3] Salazar–Calderon v. Presido Valley Farmers Ass’n, 765 F.2d 1334 (5th Cir.1985) and Andrews v. Orr, 851 F.2d 146 (6th Cir.1988)

[4] 2013 WL 5434565, at *2.

 For more legal analysis check out the National Law Review’s homepage.

Does Same Sex Harassment Support Gender Discrimination Claims? Texas Supreme Court to Decide

Same Sex harassmentThe Texas Supreme Court agreed to determine whether a school teacher’s allegations of a hostile work environment by her same-sex superiors can support a claim of gender discrimination in violation of the Texas Commission on Human Rights Act (TCHRA). The court will also decide whether the circumstantial evidence presented to prove the teacher’s retaliation claim is sufficient to support a violation of the TCHRA.

The teacher alleged that a fellow coach began to sexually harass by allegedly making comments about the teacher’s body and physical appearance. When the teacher reported the harassment to her direct supervisor, the supervisor did nothing to put a stop to it and, shockingly, joined in the harassment. The teacher subsequently reported the harassment to the school principal and submitted a written complaint. The principal failed to file a formal complaint and, rather, conducted her own investigation. The principal’s underwhelming reaction pushed the school teacher to file charges of discrimination and harassment with the EEOC, at which point the principal informed her that there would be “consequences” for her complaints.

The teacher quickly found that there would, in fact, be consequences to her complaints. Within a few days of learning of the EEOC charges, the principal placed the teacher on a remedial plan and claimed it was necessary to assist in the teacher’s ineffective communication with co-workers and failure to report the alleged harassment within 10 days of its occurrence. The principal placed the teacher on administrative leave soon thereafter and eventually terminated her employment.

The school’s petition to the Texas Supreme Court asked it to determine whether the teacher’s allegations of same-sex hostile work environment—woman to woman harassment, in this case—can constitute gender-based discrimination under the TCHRA. The school argued in its petition that the appeals court failed to consider a U.S. Supreme Court standard that requires harassment to be “discriminatory at its core” in order to be actionable. The school also asked the court to determine whether the teacher’s circumstantial evidence used to support her retaliation claim was sufficient to support a TCHRA violation, giving special consideration to the teacher’s failure to submit any evidence regarding the but-for causation analysis required in such cases. The case will likely be placed on the court’s calendar in late 2017. Click here to view full briefing on the issue.


Coca-Cola Bottling Of Mobile to Pay $35,000 to Settle EEOC Sex Discrimination Suit

Company Refused Job to Experienced Applicant Because of Gender, Federal Agency Charged

Coca-Cola Bottling Company of Mobile, a manufacturer, bottler and distributor of soft drink products, will pay $35,000 and furnish other significant relief to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to EEOC’s suit, Coca-Cola Bottling Company of Mobile, a subsidiary of Coca-Cola Bottling Co. Consolidated, refused to hire Martina Owes, an applicant for two vacant warehouse positions, because she is female. While Owes had the required warehouse and forklift experience, the company chose to hire less qualified men for the available positions. EEOC also charged that, by not preserving all application materials related to those positions, the company violated federal record-keeping laws.

Sex discrimination violates Title VII of the Civil Rights Act of 1964, which protects employees against discriminatory practices based on race, color, national origin, sex, and religion. EEOC filed suit in U.S. District Court for the Southern District of Alabama, Mobile Division (EEOC v. Coca-Cola Bottling Co. Consolidated et al., Case No. 1:15-cv-00486) after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

The consent decree settling the suit, entered by U.S. District Judge William H. Steele, provides that Coca-Cola Bottling will pay Owes $35,000 and prohibits further discrimination. Also, the company is required, for three years, to conduct annual training of its Mobile employees on discrimination and retaliation, develop new or revised anti-discrimination policies and a written hiring process, and designate a director-level employee to coordinate its compliance with anti-discrimination laws and compliance with the decree.

“Employers are required to provide women with equal employment opportunities, and that includes jobs that traditionally have been dominated by men,” said Delner Franklin-Thomas, district director of EEOC’s Birmingham District Office, which has jurisdiction over Alabama and portions of Mississippi and Florida. “We appreciate Coca-Cola Bottling’s desire to cooperate with EEOC early in the litigation process to resolve this matter.”

EEOC Birmingham Regional Attorney C. Emanuel Smith, said, “EEOC will continue to litigate when necessary in cases involving arbitrary and unfair barriers to equal opportunity in the workplace based on sex. The law requires that female applicants be judged on their qualifications and not passed over because of their gender.”

The elimination of recruiting and hiring practices that discriminate against women, racial, ethnic and religious groups, older workers, and people with disabilities is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

EEOC’s litigation and settlement efforts were led by Senior Trial Attorney Gerald Miller and Trial Attorney Christopher Woolley of its Birmingham District Office.

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its website at

You can read the original article on the EEOC’s website here.

Article By U.S. Equal Employment Opportunity Commission
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