|
JOCELYN
D. LARKIN (SBN 110817) THE
IMPACT FUND 125
University Avenue Berkeley,
CA 94710 Telephone: (510)
845-3473 Facsimile: (510) 845-3654 |
JOSEPH
SELLERS CHRISTINE
WEBBER COHEN,
MILSTEIN, HAUSFELD & TOLL West
Tower – Suite 500 1100
New York Avenue Washington,
D.C. 20005-3964 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 |
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IRMA
D. HERRERA (SBN 98658) DEBRA
A. SMITH (SBN 147863) EQUAL
RIGHTS ADVOCATES 1663
Mission Street, Suite 250 San
Francisco, CA 94103 Telephone: (415)
621-0672 Facsimile: (415) 621-6744 |
STEPHEN
TINKLER MERIT
BENNETT TINKLER
& BENNETT 309
Johnson Street Santa
Fe, New Mexico 87501 Telephone: (505) 986-0269 Facsimile: (505) 982-6698 |
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SHEILA
Y. THOMAS (SBN 161403) EQUAL
RIGHTS ADVOCATES 5260
Proctor Avenue Oakland,
CA 94618 Telephone: (510) 339-3739 Facsimile: (510) 339-3723 |
DEBRA
GARDNER PUBLIC
JUSTICE CENTER 500
East Lexington Street Baltimore,
MD 21202 Telephone: (410) 625-9409 Facsimile: (410) 625-9423 |
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STEVE
STEMERMAN (SBN 067690) ELIZABETH
LAWRENCE (SBN 111781) DAVIS,
COWELL & BOWE 100
Van Ness Avenue, 20th Floor San
Francisco, CA 94102 Telephone: (415)
626-1880 Facsimile: (415) 626-2860 Attorneys for Plaintiffs |
SHAUNA
MARSHALL (SBN 90641) HASTINGS
COLLEGE OF THE LAW 200
McAllister Street San Francisco, CA 94102 Telephone: (415)
581-8922 Facsimile: (415) 557-7895 |
UNITED STATES DISTRICT COURT
I, Betty
Dukes, declare:
1. I am a current employee at the Wal-Mart store
in Pittsburg, California. I am 53 years
old and have worked for Wal-Mart for almost nine years. I am paid $8.44 an hour. I am an African-American woman and a named
plaintiff in this case.
2. Prior to my employment at Wal-Mart, I had
many years of experience in the retail field.
I had also been very active in my church. I had never been discharged from any position
and, prior to my experience at Wal-Mart as detailed below, I had never been
disciplined at any job.
3.
I was hired by Wal-Mart in May 1994 and
paid $5.00 an hour. Within the first 30
days of my employment, I asked Store Manager Rick Pace how I could advance in
my career at Wal-Mart. Mr. Pace
responded only by telling me to finish my first 90 days of employment. I received a good 90 day performance
evaluation and a raise to $5.25 an hour.
Mr. Pace never provided to me any
information about how to progress in my career.
4. Within my first year of employment, I
received a promotion to full-time status and a merit pay raise to $5.50 an
hour.
5. In April 1996, I asked Assistant Manager Mike
Lancaster to consider me for a promotion to Customer Service Manager (“CSM”),
which I believed would be the first step into management. He told me he would speak with Store Manager
Raps. He later replied that I would not
receive a promotion at that time. He was
vague, and did not tell me what I needed to do in order to receive a promotion. In the latter part of 1996, I asked Store
Manager Raps to consider giving me more responsibility or assignments on the
sales floor. I reminded Ms. Raps that I
had experience at previous jobs as a head cashier, and that I was interested in
promotion. She responded by saying that
she would take my input into consideration, but took no action.
6. There were no postings of promotional
opportunities for the first few years of my employment at Wal-Mart. Instead, I could rely only on word of mouth
and observation. There was no
application process to complete to apply for these positions. The only way I knew to express interest in
promotion was to talk with management, and I continued to do this. I repeatedly asked Store Manager Raps,
Assistant Manager Lancaster, and CSM Jan [last name unknown] to consider me for
promotion to CSM or to give me experience on the sales floor. Because I was assigned as a front lane
cashier, I was often unaware of opportunities in other parts of the store until
the positions were already filled. It
was difficult to express interest in a particular position, but I made my
desire for promotion well known. I saw
no information about management training.
No one ever provided any information to me about management training.
7. By June 1997, open positions were sometimes
posted. I signed up to be considered for
several positions, but did not receive a promotion. I spoke about promotional opportunities
with Assistant Manager Chuck Thomas when
he gave me my 1997 performance evaluation.
In June 1997, I was promoted to Customer Service Manager. This position had not been posted.
8. In approximately September or October
1997, Leilani (Lonnie) Barrett was
promoted to Head CSM without the
position being posted and without the opportunity for me to apply or interview
for the job.
9. Soon after her promotion, Head CSM Barrett and Store Manager Ken Cagle
began to discriminate against me by treating me more harshly than they treated
other employees. I tried to use the Open
Door policy without success. Head CSM
Barrett retaliated against me in February 1998 with a written disciplinary
coaching, claiming I returned late from breaks.
Male employees returned late from breaks and lunch, and even failed to
clock out for their lunches and were not disciplined. I am unaware of any male employee receiving a
coaching for this infraction.
10. Six weeks later, in March 1998, I received
another retaliatory coaching. This time,
I was accused of having a cashier cover my lunch break, a common occurrence at
the Pittsburg store. I used the Open
Door again without success.
11. As a result of these coachings, my
eligibility for promotion was limited.
Wal-Mart policy prohibits promotion of employees who have received a
coaching within the last year.
Consequently, as a result of the retaliatory coachings, I was ineligible
for promotion from February 1998 until April 1999.
12. In July 1999, I expressed interest in
receiving a promotion to Department Manager.
I had successfully fulfilled the role of Customer Service Manager for
two years. I asked Store Manager Cagle
to provide me with the training I needed to be a Department Manager. He provided no guidance or encouragement to
me and gave me no indication what I needed to do to receive a promotion. My request for training and promotion was
ignored.
13. In August 1999, I was again disciplined when
I was accused of violating company policy.
I was given another coaching and demoted from Customer Service Manager
to cashier. My pay rate was decreased by
$0.37 an hour. I was directed by Store
Manager Cagle and Assistant Manager Joe Oquelly to take my lunch break and
return to work as a demoted cashier. I
have never witnessed a similar public humiliation of a male employee. Again, by disciplining me for what was a
common practice in the store, I was made ineligible for promotion for a
year. I am not aware of any male
employees who have been disciplined for similar transactions. As a result of this discriminatory treatment,
I filed a charge on or about June 1, 2000 with the Equal Employment Opportunity
Commission, attached hereto as Dukes Exhibit A.
I received a notice of my Right to Sue on or about June 15, 2000,
attached hereto as Dukes Exhibit B.
14. During the next twelve months, when I was
ineligible for promotion due to the wrongful coaching, I was unable to apply
for several positions in which I had interest.
I missed the opportunity to become a Support Manager or Manager of the
Domestics/Furniture Department. The
latter position was filled by Joseph Topasna.
15. When I was once again eligible for promotion
in August 2000, I watched as positions were filled without being posted. Three men, Richard Morales, Joseph Topasna,
and Robert (Aaron) Mendez, were promoted to Support Manager in the fall of
2000. I did not have the opportunity to
express my interest or apply for these positions, as they were not posted. I was not interviewed for any of these
promotional opportunities. In addition,
several department manager positions also were available during this time
period. A male employee, Will Martines,
became Department Manager for Tire and Lube Express. This position was not posted.
16. Because of the way I had been treated, and
the treatment I witnessed of other female employees, and the long pattern I had
observed of positions being given to male employees selected by management
before any applications were even sought, I believed there was no point in
going through the motion of applying for a promotion. I had made my goals and aspirations for
promotion clear from my first weeks of employment, and yet, after years of hard
work, I was still a cashier. Attached
hereto as Dukes Exhibit C is a true and correct copy of the charges I filed in
May, 2001 with the Equal Employment Opportunity Commission. Attached hereto as Dukes Exhibits D is the
Notice of Right to Sue which I received from the EEOC.
17. I remained a cashier until July 2001 when,
due to work-related physical injuries, I was reassigned to the position of
Greeter. I am currently a
Cashier/Greeter.
18. In January 2003, for the first time there was
an opportunity to sign up to express interest in joining the Management
Training Program. I learned of this
procedure only from my counsel in this case.
I later learned that the application process for this opportunity was
mentioned briefly in meetings conducted at the store, but not all employees
were told of these meetings, including me. The information about this process
was never posted. This was the first
time in my nine years at Wal-Mart that there was any chance to apply for
management training. There were only a
few days in which applications could be submitted. I attempted to sign up for
the program on the intranet system.
However, my application was rejected.
One of the questions in the application inquired of my
availability. From the commencement of
my employment, I have been unable to work on Sundays due to my strongly held
religious beliefs. My application for
the Management Training Program was automatically rejected when I had to truthfully
respond that there was a limit on my availability. I remain interested in management training.
19. Although I have worked at this store for nine
years, I am paid less then $9.00 an hour.
I have recently learned of a male employee, Carl Kirkland, who was hired
to be a greeter in the fall of 2002 in the Pittsburg store. He was paid more than me, despite his lesser
seniority. Another male, Isidro
Francisco, hired in 1996, became a greeter in 1999 and is also paid a higher
hourly rate than me. Attached hereto as
Dukes Exhibit E is a true and correct copy of the charge I filed with the Equal
Employment Opportunity Commission.
20. I decided to become a named plaintiff in this
action because I have been unfairly denied promotional opportunities and equal
pay. My primary goal is to ensure that
the employment practices at Wal-Mart which hinder the progress of women wishing
to enter management be
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changed, to ensure fair and
equitable treatment of female employees, and to ensure women receive equal pay. I understand the responsibilities of a named
plaintiff and I am prepared to fulfill my duties to the women in the class.
21. I have personal knowledge of each and every
fact set forth in this Declaration, and if called as a witness in this matter,
I could and would competently testify to each of these facts.
I
declare under penalty of perjury of the laws of the United States and the State
of California that the foregoing is true and correct.
This
declaration was signed by me on April _______, 2003 in Pittsburg, California.
________________________________
Betty
Dukes