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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)
565-4685 Facsimile: (415) 565-4854 |
UNITED STATES DISTRICT COURT
I, Penny Elkins, declare:
1. I am a 42
year old female living in Rio Rancho, New Mexico. I worked at four different Wal-Mart stores in
Albuquerque, New Mexico, and one in Santa Fe, New Mexico, from September 1,
1993, until I resigned on November 13, 1999, to escape the discriminatory
atmosphere fostered at Wal-Mart and directed toward its female employees.
2. I have
been subjected to gender discrimination by Wal-Mart with regard to my
compensation and work assignments. I
have also experienced retaliation from Wal-Mart because of my use of the Open
Door Policy.
3. I started
working at Wal-Mart as a Sales Associate in the Electronics Department in 1993
and was working as a Support Manager within a year. In June, 1996, I asked Scott Dragoo, the
Store Manager, to be placed into the Management Training Program. My request was accepted, and I completed the
Management Training Program in only three months, approximately half the
typical time period allotted for training, in the fall of 1996. I then worked as an Assistant Manager until I
resigned from Wal-Mart.
4. Although
it was obvious from the day I started working at Wal-Mart that the atmosphere
was sexually charged, with male management and hourly employees openly making
sexually-related remarks about female customers and females in general, I did
not encounter gender discrimination directed toward me personally until after I
completed the Management Training Program in late 1996.
5. In
January, 1997, I moved to another store in Albuquerque and started working
there as an Assistant Manager. Within
one month, Jim Gray, the Store Manager, assigned me to work as an Assistant
Manager for Night Receiving, even though two male Assistant Managers, David
Brown and Bill Burroughs, were next in line for assignment to Night Receiving. I ended up working in the undesirable Night
Receiving position for approximately six months, which is far longer than most
male Assistant Managers were required to work in Night Receiving. I asked Mr. Gray, the Store Manager, and
Peter Abbott, the District Manager, numerous times to be transferred from Night
Receiving, but they significantly delayed my return to a day schedule because
they were accommodating a male Assistant Manager’s desire to spend time with
his children in the evenings. Even
though I complained to Mr. Gray and Mr. Abbott that I was raising four children
at the time and wanted to spend time with them in the evenings, Wal-Mart
unfairly prolonged the duration of my Night Receiving assignment.
6. I also
began to realize that a number of male Assistant Managers that completed the
Management Training Program with me, and even after me, made a higher salary
than me. For example, Gavin Pearlman,
who completed the Management Training Program with me, made more money than me as
an Assistant Manager. In addition, I
know Mehran “Danny” Hakhamian, an Assistant Manager who completed the
Management Training Program after me, made more money than I did when he became
an Assistant Manager.
7. In
February or March, 1997, I asked Rick Adams, the Store Manager, for a merit raise
because I had done a good job in cleaning up the night receiving area. Mr. Adams denied my request and told me that
Assistant Managers never received merit raises.
In the summer of 1999, however, I know that Todd Hildan, a male
Assistant Manager, received a significant merit increase because he had cleaned
up the night receiving area. When I
visited the personnel office for a matter concerning my employment, I
inadvertently saw Mr. Hildan’s personnel records, which were laying in plain
sight on a desk and which showed this merit increase. It became very clear to me that Wal-Mart paid
me a lower salary than my male Assistant Manager counterparts and
discriminatorily denied me merit raises because I am a woman.
8. In early
1999, I transferred to another Wal-Mart store in Albuquerque. Not long after working in this store, Peter
Abbott, the District Manager, approached me and insisted that I transfer to the
Santa Fe, New Mexico, store. I resisted
this move and told Mr. Abbott that such a move would decrease the time I could
spend with my children in Albuquerque and it would be difficult for me to
commute daily from Albuquerque to Santa Fe because our family only had one
reliable car that my husband and I both used.
Mr. Abbott became hostile and threatened to demote me from my Assistant
Manager position if I did not transfer to the Santa Fe store. I was concerned about this threat and used
the Open Door Policy to contact the Regional Manager and explain my situation. The situation was resolved, and I was able to
stay at the Albuquerque store. Mr.
Abbott, however, held a grudge against me and retaliated against me, as
described later in this Declaration.
9. In the
summer of 1999, George Wagner, the Store Manager, and Peter Abbott, the
District Manager, ordered me and Mary Louise Linton, a female Assistant
Manager, along with a male Assistant Manager Trainee, to work nights at the
Santa Fe, New Mexico, store for approximately one month. We were told our task was to rip up old
carpeting in order to set up the Ladies Department at the store. Even though neither I nor Ms. Linton were in
charge of the Ladies Department in the Albuquerque store, Wal-Mart chose us
instead of any of the male Albuquerque Assistant Managers to perform this
bottom-of-the-barrel work. During my
month of working nights at the Santa Fe store, I lived in a hotel in Santa Fe
and rarely was able to reunite with my family due to my night schedule and the
long drive from Santa Fe to my home in Albuquerque. I felt this assignment was directed by Mr.
Abbott in retaliation for using the Open Door Policy.
10. Soon after
I returned from my assignment at the Santa Fe store to the Albuquerque store, I
received unjustified discipline or coaching from George Wagner, the Store
Manager. Peter Abbott, the District
Manager, had ordered Mr. Wagner to give me this coaching due to the poor shape
of my department in the Albuquerque store.
Since I had been on assignment at the Santa Fe store for one month, it had
been impossible for me to properly service my department at the Albuquerque
store. I believe that Mr. Abbott ordered
this disciplinary coaching as retaliation for my previous actions in going over
his head and using the Open Door Policy when he threatened to demote me for
refusing to transfer to the Santa Fe store.
Not only was this coaching retaliatory, it was discriminatory because
male Assistant Managers rarely received coachings due to the poor status and
mis-management of their departments. By
receiving this coaching, I was not eligible for promotion for a year. After receiving this coaching, I used the
Open Door Policy to complain to the Regional Personnel Manager, Debbie Moody,
to no avail.
11. In August,
1999, Wal-Mart selected me to attend the year-end, week-long meeting in Dallas,
Texas. All of the Wal-Mart Home Office
executives were there, as well as Store Managers, Co-Managers and top Assistant
Managers, including me, that were considered “Rising Stars.” During one of the first events, I observed
the Home Office executive team sitting in chairs on a stage. There appeared to be approximately 50
executives on stage, but I could only see one woman among them. When Thomas Coughlin, a Wal-Mart Executive
Vice-President, gave his speech, he even acknowledged that there were very few
women executives and “promised” that Wal-Mart would address gender issues in
the near future.
12. In
November, 1999, I received an offer to work as an Assistant Manager at
SteinMart, a discount retailer, in Albuquerque.
I accepted the job at SteinMart and resigned from Wal-Mart, even though
I took a $6,000 per year pay decrease.
SteinMart told me in my interview that within a year I would be managing
my own store. When I compared this
opportunity to the gender discrimination directed toward me at Wal-Mart, it was
an easy decision for me to abandon the higher Wal-Mart salary and six years of
seniority I had accrued. During my exit
interview process, I met with Larry [last name unknown], the new District
Manager, and told him I would stay at Wal-Mart if he promised that I would be
promoted to a Co-Manager position, which I was qualified for, within two
years. Larry [last name unknown] would
not make that promise. In contrast to
Wal-Mart, SteinMart promoted me to the
General Manager position at its Albuquerque store in approximately January,
2001.
13. If
Wal-Mart could provide me the assurance that I would be given the chance to
compete with males on an even footing for pay and promotional opportunities, I
would consider returning to employment at Wal-Mart.
I have personal knowledge of each and every fact set
forth in the Declaration, and if called to testify 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 State of New Mexico that the foregoing is true and
correct.
This
Declaration was signed by me on ______________________, 2003, at
_______________________, New Mexico.
______________________________
Penny Elkins