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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 CHARLES
TOMPKINS JULIE
GOLDSMITH 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, Gina
Espinoza-Price, declare:
1.
I make this statement on the basis of my personal
knowledge, and, if called as a witness, could and would testify competently to
the facts herein.
2.
I was employed by Wal-Mart, Inc. from November 1990
through April 1997. I worked as a sales
associate, Personnel Manager, and overseeing operations for Wal-Mart’s One-Hour
Photo Division in Wal-Mart stores in California, Arkansas, Michigan, Indiana,
Illinois, Wisconsin, Canada and Mexico.
I am female.
3.
I supervised census-interviewers for Imperial County,
California during the 1990 United States census count before working for
Wal-Mart. I applied for a position with
Wal-Mart after reading an article about Sam Walton in Fortune magazine. I was impressed with Mr. Walton’s “Our people
make the difference” motto. After
finishing the article I thought that Wal-Mart sounded like a wonderful place to
work.
4.
In November 1990, I was hired by Wal-Mart as an hourly
associate in the Hardware Department of a Wal-Mart store in El Centro,
California. I applied for a Hardware
Department Manager position but a man, David Caudillo, was given that job.
5.
In February 1991, Co-Manager John Sablan asked me if I
would be interested in a Personnel Manager position. The position was not posted. Later that day, I met with Co-Manager Sablan
and Store Manager Phil Lopez. They told
me that they were impressed with my work and offered me the position without
interviewing me. I accepted the position
because I was interested in moving up within Wal-Mart.
6.
In February 1992, Store Manager Norman Banwarth told
me that Photo District Manager Matt Tankersley was looking for candidates for a
salaried Photo Lab Department Manager position for the El Centro store. The position was not posted. Store Manager Banwarth told me that he had
recommended me for the position and if I wanted, I could meet with Photo
District Manager Tankersley to talk about it.
Several days later, Mr. Tankersley and I had an informal meeting in the
snack bar of the El Centro store. In
that meeting he offered me the position, which I accepted. Belen [last name unknown], a female photo lab
technician, told me that she did not understand why the position was not posted
because she would have applied for the position had she known about it.
7.
In February 1992, I went to Bentonville, Arkansas for
training on Wal-Mart One-Hour Photo Division policies, management procedures
and equipment operation. When I arrived
at the Home Office for a meeting, I saw a list of Wal-Mart senior management on
a wall in the main hallway. Of
approximately fifty names, I can recall only one name that appeared to be a
woman’s. I remember thinking, “I’ll
change that.” My goal was to one day be listed on that wall.
8.
I was willing to transfer to any Wal-Mart location in
the United States, Canada, or Mexico if it meant that I would continue to
receive promotions. In February 1992,
while I was at the Wal-Mart Home Office for training, I was given a form to
complete which asked where in the United States I was willing to transfer. I checked the boxes next to every region in
the country to indicate that I was willing to move anywhere in the United
States if it would help advance my career with Wal-Mart.
9.
By summer 1992, I was helping Wal-Mart set up One-Hour
Photo Departments in new stores across California. In the training I received at Wal-Mart’s Home
Office and from Wal-Mart manuals, I was taught that Wal-Mart polices and
practices were to be applied consistently in every Wal-Mart store. Additionally, I was trained that the policies
and procedures for matters such as hiring, employee training, operations of the
photo lab equipment, opening and closing departments, cash registers, and
customer service were to follow the same guidelines in every Wal-Mart store.
10.
In May 1993, Photo District Manager Matt Tankersley
told me that he was recommending me for an open Photo Division District Manager
position. The position was not posted. I
was interviewed for the position in Indiana by a Regional Manager and Customer
Service Manager Diane Ault. The next week I was offered the position, which I
accepted.
11.
In July 1993, I moved to Lansing, Michigan to begin
working as a Photo Division District Manager for the District comprising
Michigan and northern Indiana. I was
also responsible for a Wal-Mart Specialty Division Distribution Center located
in Lansing, Michigan.
12.
Initially I was given a Specialty Distribution Center
operations manual by my assistant Ms. Miller. I found that this manual did not provide me
with sufficient guidance for operating a Wal-Mart Distribution Center. Over time, I developed written guidelines for
managing Wal-Mart Specialty Distribution Centers and rewrote the manual. I sent the rewritten manual to Mike Johnson,
District Head of Wal-Mart Distribution and Safety, whose offices were in
Bentonville, Arkansas. He told me that
the manual was very good and sent a memo to all of the One-hour Photo District
Managers stating that they should call me if they had questions about Specialty
Distribution Center operations. At the
annual meeting of all of the photo District and Regional Managers in
Fayetteville, Arkansas in the Spring of 1994, Mr. Johnson asked me to stand up
and speak about Specialty Division Distribution Center operations.
13.
In fall 1993, the Director of Wal-Mart’s One-hour
Photo Operations, David Rogers, sent me to Pennsylvania, to train One-hour
Photo District Manager David Scott, in the Specialty Distribution Center
operations that I had, in part, developed.
14.
In approximately October 1993, Regional Photo Manager
Joe Lisuzzo told me that Wal-Mart was placing me on a transition team in Canada
to convert Woolco stores to Wal-Mart stores. I was the only woman in a team of
five. I did not apply for this position
and it was not posted. This assignment
was to be completed in addition to my tasks as Photo District Manager of
Michigan and northern Indiana. I
accepted the assignment. I knew that it
would be difficult to supervise Wal-Mart stores and a Distribution Center in
the United States while helping to establish new stores in Canada. I wanted to be promoted by Wal-Mart and I
thought that by performing difficult tasks and traveling extensively Wal-Mart
would see that I was a hard-worker and that I was committed to the Company. At the time, I aspired to be Regional Photo
Manager.
15.
In approximately February 1994, Director of One-hour
Photo Operations David Rogers advised me that Wal-Mart needed me to help
supervise a photo lab equipment change in Chicago, Illinois. Like the assignment in Canada, this task was
to be performed in conjunction with my tasks as the Photo District Manager of
Michigan and northern Indiana and Wal-Mart stores. During this time, I was also still traveling
to Canada as a part of the transition team.
16.
In approximately February 1994, during a conference
call of Wal-Mart Photo District Managers, One-hour Photo Divisional Manager Joe
Lisuzzo announced the promotion of Photo District Manager David Scott to
Regional Photo Manager. The position had
not been posted. And I had been given no
opportunity to express interest in the position. After the conference call ended, I called
Director of One-hour Photo Operations David Rogers and asked why the open
Regional Photo Manager position had not been posted. Mr. Rogers did not answer this question but
stated that Wal-Mart needed me in Chicago.
I then asked if any one besides Mr. Scott had interviewed for the
position. Mr. Rogers did not respond. I felt that I was not considered for this
position because I am a woman. I believe
that I was much more experienced that Mr. Scott. I had gained personnel experience while
working as a Personnel Manager. I had
worked for Wal-Mart for a longer period of time than Mr. Scott. I had even trained Mr. Scott in the fall 1993
on Specialty Distribution Center operations.
I believe that since I had created most of the Specialty Distribution
Center operations that were beginning to be used more and more consistently in
Wal-Mart Specialty Distribution Centers across the United States and Canada, I
was an excellent candidate for this position.
Because of my qualifications, I thought that I should have had at least
an opportunity to interview for the Regional Photo Manager position.
17.
In approximately October 1994, Clay Ussleton, Regional
Photo Manager, asked me to come to Bentonville, Arkansas to interview for an
open Regional Photo Manager position in California. I understood that I was being considered
for this position because I had complained about not being interviewed for the
last open Regional Photo Manager position.
After arriving at Wal-Mart’s Home Office, I met with Director of
One-hour Photo Operations Rogers and Photo Personnel Manager Barbara Kulwicki.
During the interview, Mr. Rogers began to describe the position as an
international position that would involve opening stores in Mexico. This puzzled me because I thought that the
position I was interviewing for was in California. Mr. Rogers told me that the California position
had already been filled. I begrudgingly
accepted the District Manager position in Mexico because it would allow me to
live in San Diego, California, two hours from my family. Also, I believed that if I declined the
position, I would not be considered for other promotions. After leaving the meeting, I called Mr.
Ussleton. Mr. Uffleton told me that the
Regional Photo Manager position in California had been given to a man,
Jeff Gwartney who had been hired by Wal-Mart approximately two years earlier as
a photo lab manager and promoted to a District Photo Manager position approximately
one year later. I had been with Wal-Mart
for four years. I believe I was not
considered for this position because I am a woman.
18.
From fall 1995 until March 1997, I was the Photo
District Manager of Mexico and eight Wal-Mart stores in the San Diego area.
19.
Male Photo Division Management behaved in ways that
demeaned and belittled women and minorities. In fall 1996, there was a Photo
District Manager meeting in Valencia, California. Wal-Mart had just hired a second female Photo
District Manager for the western region, Linda Palmer. During dinner, Jeff Gwartney introduced all
of the District Managers to Ms. Palmer using nicknames for the minorities and
women. I was introduced as Gina, “the
little Mexican princess.” I was very
offended by Mr. Gwartney’s comment and left the dinner early. Throughout the meeting, men made sexual
statements and jokes that I thought were very offensive. For example, a flyer with an offensive joke
about women being stupid was left on my belongings. In February 1997, during an evaluation, I
complained to One-hour Photo Divisional Manager Joe Lisuzzo about harassment
based on gender at the previous Photo District Manager meeting. He replied that he would take care of it. I knew from trainings on Wal-Mart’s sex
harassment policy given by Wal-Mart Legal Department employee Canetta Ivy that
company policy mandates that when someone complains of sexual harassment, an
investigation must begin within twenty-four hours. Therefore, I expected to be interviewed as a
part of an investigation. I was never
called. A couple of weeks later, in
March 1997, I saw Mr. Lisuzzo at a meeting. I asked him if he had been
conducting an investigation of my sexual harassment complaint. He replied that it was being taken care
of. I was never aware of any action
taken in response to my complaint. Six
weeks after complaining about sexual harassment, I was terminated.
20.
In March 1997, Director of Photo Operations, David
Rogers, called and told me that I was being placed in the position of International
Liaison of for the Photo Division. The
position was not posted and I was offered the position without having to
interview for it.
21.
Wal-Mart terminated me in April 1997, falsely claiming
that I had interfered with a loss prevention investigation. On April 1, 1997, I received a phone call
from Stephanie Agnew, a Photo Center Manager in a Lakeside, California Wal-Mart
store. Ms. Agnew had been contacted by
loss prevention for taking prints from the store without paying for them. Ms. Agnew told me that she had been testing
the photo equipment by developing some of her film with it, a procedure that
was often used to check machines. When
she was leaving the store, Ms. Agnew had said, she was unable to find the store
manager so she was unable to notify him that she was taking prints without
paying. I told her that she should have told someone that she was taking the
prints. I then called Regional Photo
Coordinator Jeff Gwartney and told him what had happened. I was on vacation and I notified him so that
he could begin an investigation of the incident. Later that week, I returned to my home store
in San Diego, California to find Ms. Agnew working there. Ms. Agnew normally works in the Lakeside,
California store. She told me that Mr. Gwartney had told her to work in the San
Diego store. I was surprised that Ms.
Agnew had not been suspended because Wal-Mart policy is that anytime there is
an investigation for a breach of integrity, the employee under investigation is
to be suspended. I called Mr. Gwartney
to ask if the investigation was finished and he told me it was not. I then asked why Ms. Agnew had not been
suspended and he directed me to suspend her, which I promptly did. Mr. Gwartney
assured me that he would handle the investigation. On April 11, 1997, Mr.
Gwartney called me into his office and told me that I was being terminated for
lack of integrity because I interfered with a loss prevention
investigation. The reason given by
Wal-Mart for my termination is false and contradictory to my actions, as my
actions initiated and facilitated the investigation.
22.
For the six and one-half years that I worked for
Wal-Mart, I was an extremely valuable asset to the company. I created operations for Wal-Mart’s Specialty
Division Distribution Centers that would eventually be used around the
country. I played a key role in
establishing the One-hour Photo Centers in new Wal-Mart stores throughout the
United States, Canada, and Mexico. All
of my performance evaluations rated my performance level at least “exceeds
expectations.” (Attached hereto is a
true and accurate copy of 1997 Management Performance Appraisal as
Espinoza-Price Exhibit A.) I believe
that I was terminated for complaining about sexual harassment, and because I am
a woman who wanted to be promoted within Wal-Mart. I believe that Mr. Gwartney,
who terminated me, was especially resentful of my promotions and my use of the
Open Door. When I was promoted to
International Liaison for the Photo Division, I called to ask him a question
about how I would divide my time between supervising San Diego and
international stores. He was silent for a few moments and then stated that no
one asked him if I should be promoted to this position. His reaction led me to believe that he
resented my promotion and did not want to see a woman who had complained of his
sexist conduct promoted.
23.
I would be willing to consider returning
to Wal-Mart if I could be assured that policies that afford equal opportunities
for women to advance in the Company would be fairly enforced.
I declare under penalty of perjury of the laws of the United States and State of __________________ that the foregoing is true and correct.
This Declaration was signed by me on ______________________, 2003, at _______________________.
______________________________
S:\SHARE\LEGAL\Walmart\Declarations\Gina Espinoza-Price class cert dec.doc