INTRODUCTION

1. Wal-Mart is the largest retailer in the world and the largest private employer in the United States. Through its Wal-Mart and Sam’s Club divisions, it is the industry leader not only in size, but also in its failure to advance its female employees. There are two workforces at Wal-Mart. By far the largest workforce is female, which comprises over 72% of the hourly sales employees, yet only one-third of management positions. This workforce is predominantly assigned to the lowest paying positions with the least chance of advancement. The other workforce is male. This workforce is the reverse image of the female workforce—it comprises less than 28% of the hourly sales workers, yet holds two-thirds of all store management positions and over 90% of the top Store Manager positions. This disparate distribution of the genders is the result of purposeful discrimination and of practices that serve no reasonable business purpose yet have a disproportionate impact on women.

2. This class action is accordingly brought by present and former Wal-Mart employees on behalf of themselves and all other similarly situated women who have been subjected to Wal-Mart’s continuing policies and practices of gender discrimination. Plaintiffs, and the class that they represent, charge that Wal-Mart discriminates against its female employees by advancing male employees more quickly than female employees, by denying female employees equal job assignments, promotions, training and compensation, and by retaliating against those who oppose its unlawful practices.

3. This action seeks an end to Wal-Mart’s discriminatory practices, make whole relief for the class, and punitive damages.

JURISDICTION AND VENUE

4. Plaintiffs’ claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 2000e5(f), 28 U.S.C. §§ 1331 and 1343(a)(4). The Court has supplemental jurisdiction pursuant to 28 U.S.C. 1367 over claims under the California Fair Employment & Housing Act, Government Code § 12920, et. seq.

5. Venue is proper in this district pursuant to 42 U.S.C. § 2000e5(f) and 28 U.S.C. § 1391(b) & (c). Named plaintiffs’ claims arose in California. Members of the plaintiffs’ class reside throughout the United States, including the Northern District of California. Many of the acts complained of herein occurred in this District and gave rise to the claims alleged. Wal-Mart operates over 140 stores and Sam’s Clubs in California where it employs more than 40,000 workers. It operates at least 18 stores in the Northern District of California.

PARTIES

6. Plaintiff, Betty Dukes, is an African American woman and a resident of Contra Costa County, California. She is currently employed by Wal-Mart Stores, Inc.

7. Plaintiff, Patricia Surgeson, is a woman and a resident of Solano County, California. She was employed by Wal-Mart Stores, Inc. from August 1997 to March 2001. Plaintiffs are informed and believe she is eligible for rehire.

8. Defendant Wal-Mart Stores Inc. is a Delaware corporation with stores throughout California. Its corporate headquarters are located in Arkansas. Wal-Mart Stores, Inc. operates retail stores doing business as Wal-Mart, Wal-Mart Supercenters and Sam’s Club Stores.

CLASS ALLEGATIONS

9. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of a class of all past, present and future female employees of Wal-Mart’s retail stores (including Wal-Mart discount, supercenter and neighborhood markets and Sam’s Club stores, hereinafter collectively referred to as “Wal-Mart”) in the United States. Plaintiffs are members of the class they seek to represent.

10. The members of the class are sufficiently numerous that joinder of all members is impracticable. Plaintiffs are informed and believe that the class exceeds 700,000 present and former female employees of Wal-Mart.

11. There are questions of law and fact common to the class, and these questions predominate over individual questions. Such questions include, without limitation, whether defendant’s common operating practices and procedures discriminate against its female employees; whether defendant’s policies have an adverse impact upon the class and, if so, whether said impact can be justified by business necessity; whether defendant has a policy and practice of retaliating against class-members who object to or oppose unlawful employment practices; and whether injunctive and other equitable remedies and punitive damage relief for the class is warranted.

12. The claims alleged by the plaintiffs are typical of the claims of the class.

13. The named plaintiffs will fairly and adequately represent and protect the interests of the class.

14. This action is properly maintainable under both Fed. R. Civ. Proc. Rule 23(b)(2) and (3) because defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declarative relief with respect to the class as a whole; and because questions of law and fact common to the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of this case. This action is also properly maintainable under Rule 23(c)(4)(A) for all class issues alleged herein.

WAL-MART’S OPERATION AND ITS

GENERAL PRACTICE OF DISCRIMINATION

15. Wal-Mart is the largest private employer in the United States and the world’s largest retailer. Through its Wal-Mart and Sam’s Club divisions, it operates over 3000 stores across the country, encompassing every state. There are so many Wal-Mart locations in the United States that, according to Wal-Mart, the average store is within 30 miles of the next Wal-Mart store. In the United States, Wal-Mart employs nearly one million “associates,” Wal-Mart’s term for its hourly employees. In its last fiscal year, it had sales exceeding $191 billion. It claims that it has 100 million customers each week.

16. Wal-Mart employs uniform employment and personnel policies throughout the United States. All of its stores are linked by state-of-the-art electronic and video communications, through which all stores regularly report payroll, labor and other employment data. Regardless of division, there are uniform policies for employees, uniform “orientation” procedures, uniform salary, assignment, pay, training, and promotion policies. All stores are regularly audited for compliance with these uniform, company-wide policies and procedures.

17. The vast majority of Wal-Mart store employees are hourly paid sales associates, who report to department heads. Each store has a number of assistant managers who have different functional responsibilities, one or more “co-managers” and a store manager. District and regional managers supervise the stores.

18. Few objective requirements or qualifications for specific store assignments, promotions, or raises exist. Salaries are supposed to conform to general company guidelines, but store management has substantial discretion in setting salary levels within salary ranges for each employee. Salaries are also adjusted based on performance reviews, which are largely based on subjective judgments of performance. Plaintiffs are informed and believe that Wal-Mart policy prohibits employees from exchanging information about their salary levels.

19. The hourly sales workforce at Wal-Mart is predominantly female, representing over 72% of all hourly employees. Yet, male and female employees are not evenly distributed among the departments in the store. In some departments and positions, such as furniture, garden, electronics, hardware, sporting goods, guns, produce, and stocking, males are disproportionately assigned. In other departments, such as front-end cashier, customer service, health and beauty aids, cosmetics, house wares, stationary, toys, layaway, fabrics and clothes, women are disproportionately assigned. Plaintiffs are informed and believe that the male-dominated departments and jobs are better paid and offer greater opportunities for advancement than the female-dominated positions and departments.

20. Male employees are more likely than female employees to obtain “cross-training” in other departments or to receive training and support to enter into departments that would aid their advancement.

21. Plaintiffs are informed and believe that female employees are paid less than male employees who perform substantially similar work, with similar or lesser skills and experience. Plaintiffs are further informed and believe that segregated assignment patterns exacerbate such unequal pay, because men are more likely to be assigned to departments that pay better than departments to which women are assigned.

22. Although women comprise the substantial majority of all hourly employees, the source from which most managers are drawn, their representation in management is the polar opposite. Women hold only about one-third of the positions that Wal-Mart identifies as management. However, even this figure overstates the proportion of female managers in true management positions. Thus the “one third” of management positions held by women includes traditionally “female” positions, such as assistant managers whose primary responsibility is supervising cashiers, and the lowest level of managers. Plaintiffs are informed and believe that women comprise less than 10% of all Store Managers and approximately 4% of all District Managers. There are few, if any female Regional Managers. There is only one woman among the 20 executive officers of the company. Plaintiffs are informed and believe that even when women are promoted, on average they are advanced later, and then more slowly, than similarly situated male employees.

23. The workforce profile of Wal-Mart does not reflect the industry or the profile of its largest competitors. In fact, although it is the largest discount retailer in the country, it lags far behind its competitors in the promotion of women. Thus, while Wal-Mart’s store management is only about one-third female, among its 20 top competitors women comprise over 56% of management, even though the proportion of hourly workers that are female at these companies is comparable to Wal-Mart. These differences are consistently found around the country. Moreover, these differences are longstanding. In fact, female representation among managers at Wal-Mart is at a substantially lower level today than the level of representation among Wal-Mart’s competitors in 1975.

24. This pattern of unequal assignments, pay, training, and advancement opportunities is not the result of random or non-discriminatory factors. Rather, it is the result of an on-going and continuous pattern and practice of intentional sex discrimination in assignments, pay, training and promotions, and reliance on policies and practices that have an adverse impact on female employees that cannot be justified by business necessity, and for which alternative policies and practices with less discriminatory impact could be utilized that equally serve any asserted justification. Plaintiffs are informed and believe that such policies and practices include, without limitation:

a. Failure to consistently post job and promotional openings to ensure that all employees have notice of and an opportunity to seek advancement or more desirable assignments and training.

b. Reliance upon unweighted, arbitrary and subjective criteria utilized by a nearly all male managerial workforce in making assignments, training, pay, performance review and promotional decisions. Even where Wal-Mart policy states objective requirements, these requirements are often applied in an inconsistent manner and ignored at the discretion of management.

c. Reliance on gender stereotypes in making employment decisions such as assignments, promotions, pay and training.

d. Pre-selection and “grooming” of male employees for advancement, favorable assignments and training.

e. Maintenance of largely sex-segregated job categories and departments.

f. Deterrence and discouragement of female employees from seeking advancement, training, and favorable assignments and pay.

g. Paying female employees lower compensation than similarly situated men.

h. Assigning women to lower paying positions, and positions with lesser advancement potential than those given to men, and advancing women more slowly than similarly situated male employees.

i. Providing less training and support to female employees and managers than that given to male employees and managers.

j. Harassing female employees interested in advancement and subjecting them to a hostile work environment.

k. Requiring, as a condition of promotion to management jobs, that employees be willing to relocate, often to significantly distant stores, and applying this policy to require frequent and substantial relocations of its managers without any reasonable business justification. Plaintiffs are further informed and believe that the relocation policy is applied disparately between male and female employees, to the disadvantage of female employees.

l. Retaliating against female employees who have complained either internally or externally about Wal-Mart’s treatment of its female employees. Wal-Mart maintains a company-wide, toll free telephone number, which it encourages employees to use if they have a problem or complaint in their store or with store management. Plaintiffs are informed and believe that Wal-Mart retaliates against women who use this number to report discrimination, sexual harassment or other unfair working conditions.

ALLEGATIONS OF NAMED PLAINTIFFS

Betty Dukes

25. Betty Dukes is an African American woman currently employed in Wal-Mart store #1615, located in Pittsburg, California. She was hired as a part-time front-end cashier at the Pittsburg store in May 1994. Within one year after her hire date, Ms. Dukes received an excellent 90-day review, a promotion to full-time status and a merit pay raise. She was promoted to Customer Service Manager in June 1997, which also included an increase in salary.

26. In September 1997, Ms. Dukes began to experience harsh and discriminatory treatment from head Customer Service Manager Leilani (Lonnie) Barrett and male Store Manager Ken Cagle. In November 1997, she complained to male District Manager Chuck Salby about the discriminatory treatment.

27. After she complained, Ms. Dukes experienced retaliation from Wal-Mart store management, beginning with a disciplinary write-up on February 13, 1998, for returning late from her breaks, even though male and/or Caucasian employees returned late from their breaks or failed to clock out for breaks and were not disciplined. Ms. Dukes was also written up on March 31, 1998, for having a front-end cashier cover her lunch break, even though she had used this procedure many times before without incident and Caucasian employees used this procedure without being reprimanded. Ms. Dukes complained to male District Manager Jay King but he simply referred her back to the store manager.

28. On June 29, 1999, Ms. Dukes called in sick. Store Manager Cagle reacted in a highly negative and unprofessional way towards her request, even though she was entitled to use sick leave. Ms. Dukes called the district management office about Cagle and, ultimately, she spoke with the male Loss Prevention District Manager Charles Chibante. Only after she threatened to make a complaint to the Wal-Mart home office in Arkansas did she receive a reluctant apology from Store Manager Cagle. However, Cagle’s apology only served to escalate the retaliation.

29. In July of 1999, Ms. Dukes expressed interest in becoming a department manager by requesting of Ken Cagle that she receive training for that position, but she was never given the opportunity to be trained. Rather, shortly thereafter on August 14, 1999, Plaintiff was demoted from Customer Service Manager to cashier and falsely accused of violating company policy while performing a transaction that had been performed many times by Plaintiff and other employees without incident. The demotion was Wal-Mart’s retaliation for Plaintiff’s numerous complaints of discrimination.

30. On August 18, 1999, Ms. Dukes traveled to the Wal-Mart District Office in Livermore and made a complaint to male Wal-Mart District Manager John Scatlin about her demotion and her concerns about employment discrimination at the Pittsburg Wal-Mart store. Wal-Mart took no steps to address Dukes’ concerns.

31. As a result of the demotion, Plaintiff became ineligible for several promotions to positions that she was qualified to perform from August 1999 to August 2000, the year following the demotion. For example, a support manager position was filled in July or August 2000 by Rosa Trevino (Hispanic female). Between July and September 2000, the position of Domestics Department Manager was open and filled by Joseph Topasna (Filipino male). As a result of the demotion, Ms. Dukes’ hours and hourly wage were reduced.

32. After August 14, 2000, when Ms. Dukes once again became eligible for promotion, at least four department manager and/or support manager positions at the Pittsburg store were filled by men. None of these positions was posted. Between October and December 2000, Richard Morales (Hispanic male) was promoted from night receiving stocker to night support manager. In November 2000, Joseph Topasna (Filipino male) was promoted to support manager. Between October and December 2000 Robert (Aaron) Mendez (Hispanic male) was promoted to support manager. In December 2000 or January 2001, Will Martines (Caucasian male) filled the position of Department Manager for Tire Lube Express (TLE).

33. After the demotion, Ms. Dukes was discouraged from seeking other positions because of the way she and other women had been treated by Wal-Mart. Dukes did not apply for three department manager positions open after August 14, 2000 (Hardware, Over The Counter Pharmacy and Stationery) because she was discouraged after the discriminatory treatment she and other women received from Wal-Mart managers.

34. Furthermore, Ms. Dukes’ knowledge of Wal-Mart’s discriminatory practices against other women at the Pittsburg store also discouraged her from seeking a promotion. In June of 2000, Brooke Terrell (African American female) was demoted from department manager to a sales floor position, although she continued to fulfill the responsibilities of a department manager until a replacement was found. The department manager position vacated by Terrell was filled by Kevin Sims (African American male). In 2000, Trina Wallace (African American female) was demoted from a department manager position to a sales floor position and later terminated. The department manager position vacated by Wallace was ultimately filled by Kendall Dimery (African American male). In 1999, Darla Harper (Caucasian woman) was denied a department manager job in which she had expressed an interest. Without posting this position, Wal-Mart selected Spencer Ostrom (Caucasian male) to fill this position.

35. On or about June 1, 2000, Dukes filed a charge of discrimination with the California Department of Fair Employment & Housing (DFEH), a copy of which is attached hereto as Exhibit 1 and incorporated by reference. On June 15, 2000, she received a right to sue letter, and commenced this action in a timely manner.

36. On or about May 2, 2001, Dukes submitted a charge of discrimination to the United States Equal Opportunity Commission (EEOC), a copy of which is attached as Exhibit 2 and incorporated by reference. She received a right to sue letter on or about May 22, 2001 and commenced this action in a timely manner.

Patricia Surgeson

37. Patricia Surgeson was hired by Wal-Mart in Vacaville, California in August 1997 as a sales associate. She was assigned to the Tire and Lube Express department and, within two weeks of her hire, was subjected to sexually harassing remarks and touching by a co-worker. After reporting the harassment, she was transferred to the health and beauty aids department. She repeatedly applied to transfer to other positions but was denied.

38. In November 1998, Surgeson was assigned to the Lay-Away Department. In approximately May 1999, she was made the Lay-Away Department manager. Because she was assuming additional responsibilities, her Store Manager promised her a raise. Despite repeated requests, Surgeson was never given the promised raise.

39. In late 1999, the Store Manager decided that the Lay-Away Department no longer needed a manager. Ms. Surgeson’s department manager title was taken away but she was expected to continue performing manager responsibilities. When she left the department, a male employee who was given the position and title of Lay-Away Department Manager replaced her. He was paid more than Ms. Surgeson had been paid for working in the same position with the same responsibilities.

40. In June or July 2000, Ms. Surgeson was moved to a position in the Cash Office. Although she assumed greater responsibilities, she again did not receive a raise. She was expected to work overtime without lunches or breaks, locked in the cash office. In her position, she became aware that many male employees were being paid more than she was, although they had worked at Wal-Mart for less time and had less responsibility.

41. In January 2001, she requested a merit increase. Her request was ignored for two months.

42. Ms. Surgeson was interested in attending the assistant manager training program and in being promoted to assistant manager. She asked one of her managers for information about how to qualify for the program, as she had not seen any information posted about such opportunities. The manager provided only a vague response.

43. As a result of the discriminatory pay and working conditions, Ms. Surgeson resigned in March 2001.

44. On or about May 14, 2001, Surgeson filed a charge of discrimination with the EEOC, a copy of which is attached hereto as Exhibit 7 and incorporated by reference. The EEOC issued a notice of right to sue on May 31, 2001, and this action was timely commenced thereafter.

FIRST CLAIM FOR RELIEF

Violation of Title VII

45. Plaintiffs incorporate Paragraphs 1 through 44.

46. This claim is brought on behalf of all Plaintiffs and the class they represent.

47. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et. seq.

48. Wal-Mart has maintained a system for making decisions about promotions, assignments, transfers and compensation which is excessively subjective and which has had a disparate impact on female employees, and which is not justified by business necessity, or, if it could be so justified, less discriminatory alternatives exist that could equally serve said necessity.

49. Wal-Mart has maintained a ‘willingness to relocate’ prerequisite for promotion to management which has had a disparate impact on plaintiffs and the class they represent, and which is not justified by business necessity, or, if it could be so justified, less discriminatory alternatives exist which could equally serve said necessity.

50. Wal-Mart has intentionally discriminated against the class and maintained a system for making decisions about promotions, transfers, assignments and compensation that is excessively subjective and through which Wal-Mart discriminates against female employees by denying them the same opportunities for job assignments, upward mobility and compensation afforded to similarly situated male employees.

51. The defendant’s discriminatory practices described above have denied female employees promotional opportunities, transfers, assignments and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.

52. Wal-Mart has systematically retaliated against women who have complained about discrimination and unfair treatment.

53. Defendant’s retaliatory practices have resulted in the loss of past and future wages and other job benefits for class members.

54. Plaintiffs request relief as provided in the Prayer for Relief below.

SECOND CLAIM FOR RELIEF

Violation of Title VII

55. Paragraphs 1-44 are incorporated by reference. This claim is brought on behalf of the named plaintiffs individually for their non-class claims.

56. Defendant discriminated against named plaintiffs on the basis of their gender by demoting, terminating, and/or by retaliating against them and by subjecting them to a hostile work environment.

57. Defendant’s discriminatory and retaliatory practices have resulted in the loss of past and future wages and other job benefits, and have caused plaintiffs to suffer humiliation, embarrassment and emotional distress.

58. Plaintiffs request relief as provided in the Prayer for Relief below.

THIRD CLAIM FOR RELIEF

Violation of California Fair Employment and Housing Act -Race Discrimination

59. Plaintiffs incorporate by reference Paragraphs 25 through 36.

60. This claim for relief is brought on behalf of Plaintiff Dukes only.

61. Defendant discriminated against plaintiff Dukes on the basis of her race, African American. The foregoing conduct violates the California Fair Employment and Housing Act, Government Code §§ 12940, et. seq.

62. Defendant’s discriminatory and retaliatory practices have resulted in the loss of past and future wages and other job benefits, and have caused plaintiff to suffer humiliation, embarrassment and emotional distress.

63. Plaintiff Dukes requests relief as provided in the Prayer for Relief below.

RELIEF ALLEGATIONS

64. Plaintiffs and the class they represent have no plain, adequate or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. Plaintiffs and the class they represent are now suffering and will continue to suffer irreparable injury from Defendant’s discriminatory acts and omissions.

65. The actions on the part of Defendant have caused and continue to cause Plaintiffs and all class members substantial losses in earnings, promotional opportunities and other employment benefits, in an amount to be determined according to proof.

66. Defendant acted or failed to act as herein alleged with malice or reckless indifference to the protected rights of Plaintiffs’ and class members. Plaintiffs and class members are thus entitled to recover punitive damages in an amount to be determined according to proof.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs and the class pray for relief as follows:

1) Certification of the case as a class action on behalf of the proposed Plaintiff class and designation of Plaintiffs as representatives of the class and their counsel of record as Class Counsel;

2) All damages which individual Plaintiffs and the class have sustained as a result of Defendant’s conduct, including back pay, front pay, general and special damages for lost compensation and job benefits that they would have received but for the discriminatory practices of Defendant;

3) For Plaintiffs’ individual, non-class claims, all damages they have sustained as a result of defendant’s conduct, including back pay, front pay, general and specific damages for lost compensation and job benefits they would have received but for the discriminatory practices of defendant, damages for emotional distress, and punitive damages, according to proof;

4) Exemplary and punitive damages in an amount commensurate with Defendant’s ability to pay and to deter future conduct;

5) A preliminary and permanent injunction against Defendant and its directors, officers, owners, agents, successors, employees and representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful practices, policies, customs and usages set forth herein;

6) A declaratory judgment that the practices complained of in this first amended complaint are unlawful and violate 42 U.S.C. § 2000(e), et. seq., Title VII of the Civil Rights Act of 1964;

7) An order restoring class members to their rightful positions at Wal-Mart;

8) An assignment of Plaintiffs and the class to those jobs they would now be occupying but for Defendant’s discriminatory practices;

9) An adjustment of the wage rates and benefits for Plaintiffs and the class to that level which Plaintiffs and the class would be enjoying but for Defendant’s discriminatory practices;

10) Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law;

11) Pre-Judgment and Post-Judgment interest, as provided by law; and

12) Such other and further legal and equitable relief as this Court deems necessary, just and proper.

DATED: December 21, 2001 Respectfully submitted,

By:

Brad Seligman

THE IMPACT FUND

SHEILA THOMAS

DORIS NG

EQUAL RIGHTS ADVOCATES

STEVE STEMERMAN

ELIZABETH LAWRENCE

DAVIS, COWELL & BOWE

JOSEPH SELLERS

DEBORAH VAGINS

COHEN, MILSTEIN, HAUSFELD & TOLL

STEPHEN TINKLER

MERIT BENNETT

TINKLER & BENNETT

JONATHAN SMITH

DEBRA GARDNER

PUBLIC JUSTICE CENTER

Attorneys for Plaintiffs BETTY DUKES and PATRICIA SURGESON

DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a jury trial as provided by Rule 38(a) of the Federal Rules of Civil Procedure.

By_______________________

Brad Seligman

BRAD SELIGMAN, CA Bar No. 083838

INTRODUCTION

JURISDICTION AND VENUE

Brad Seligman

DEMAND FOR JURY TRIAL

By_______________________