|
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 |
|
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 |
|
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 |
|
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, Dedra Farmer, declare:
1. I am a
32 year old female and live in Lawrence, Kansas.
2. During
my employment at Wal-Mart Stores, Inc., I encountered discrimination based upon
my gender with regard to compensation and promotions.
3. I worked
at Wal-Mart from November 10, 1989 through December 31, 2002. My first job at Wal-Mart was as an associate
in both the automotive and sporting goods departments. Throughout my tenure at Wal-Mart I was an
associate in hardware, a sales associate in TLE (Tire Lube Express), a Department
Manager of TLE, a TLE Manager, and a Department 1 (food) Manager. My starting pay in 1989 was approximately
$4.45 an hour and I was making $14.55 an hour when my employment ended at
Wal-Mart on December 31, 2002. During my
tenure at Wal-Mart I received a standard evaluation during the first year of my
employment as an associate. Thereafter,
I always received exceeds expectations or above standard evaluations while I
was an associate. During the period of
time I was a manager I always received 3.0 or above ratings.
4. I began
to experience discrimination because of my sex once I became an associate in
Division 6, which is also known as TLE.
TLE is a division of Wal-Mart that performs basic oil changes, tire
replacements, tire repairs, installs batteries, headlights, wiper blades and
provides other minor automobile services to Wal-Mart customers. TLE also sells tires, batteries, oil, oil
filters, air filters, head lights, replacement bulbs and automobile
accessories.
5. I
enjoyed working in TLE as I always had an interest in automobiles and their
maintenance and repair, probably, in part, because my father was an automobile
mechanic. I found the physical nature of
the job invigorating and the seasonal changes in the work exciting. Once I started working in TLE, I intended to
make advancement through the TLE Division my career with the ultimate goal of
moving to the top level of TLE Division Management.
6. The TLE
Division of Wal-Mart was male dominated.
I worked in the TLE Division in the Manhattan, Bonner Springs, and
Lawrence, Kansas stores. In each of
those stores, the hourly associates were 90-95% males.
7. When I
became a TLE manager, I was the only female TLE manager in my district. While I was a TLE manager there was one
additional female who was made a manager.
I attended a training program for
TLE managers. Less than 10% of the TLE
managers at this school were female.
8. Soon
after I became an associate in TLE, I decided that I wanted to be a TLE manager
and I expressed that desire to my TLE Manager and my District Manager on
numerous occasions. I first began
showing an interest in becoming a TLE Manager in 1993 and for the next several
years I witnessed male associates with less experience and less time with
Wal-Mart being promoted into the TLE Management Training Program over me. I witnessed male associates being put into
the training program who did not even know how to order supplies. I observed that 90-95% of the male associates
who were put into the TLE Management Program were promoted from inside my
store. These individuals were Jim
Macmillan, Mike Mussleman, Frank Brown, Bob Zerskey, Will Gold and an
individual named Bob who was from the Division 1 side of my store. These individuals were all placed in the
Management Training Program either by my TLE Managers, Don Dennison and Mike
Thompson, or my District Manager, Dave Runyon.
I believe these individuals were placed in the Management Training
Program over me because they were men and I am a woman. During the same time frame that these men
were placed in the program, I received exceeds expectation evaluations, I was
dedicated to Wal-Mart and I had expressed a desire to get into the
program. Whenever I sought management’s
recommendations for the program, they would simply come up with some suggestion
as to areas that I needed to improve in order to get into the program. These suggestions were vague and had no real
basis in fact.
9. I
complained of discrimination to a Shoes and Jewelry Regional Manger, Nancy
[last name unknown], in 1996. I went to
her to complain of discrimination with respect to my promotions because I had
no success following my own chain of command.
Prior to going to Nancy, I had previously requested entry into the
Management Training Program from Don Dennison, my TLE Manager, and his
successor, Mike Thompson, and Dave Runyon, my District Manager. A woman that I knew at Wal-Mart had
suggested that I speak with Nancy even though she was a Shoes and Jewelry
Regional Manager because she might be willing to listen to my complaint. Within 48-hours after having discussed my
discrimination claim with Nancy, I was called into a meeting with Dave Runyon
and Mike Thompson in which they told me they would never discriminate against
women. Nevertheless, Mr. Runyon told me
that he still was not going to promote me into the training program as he did
not believe I was ready for the program.
I asked him to simply give me a chance as I felt I was ready and he
refused. He did indicate that he would
let me interview with another District Manager in Kansas City and I agreed to
do so. I met with the TLE District
Manager in Kansas City, Paul, and the interview went well. During the interview, Paul asked me if I was
willing to relocate to be a TLE Manager, and I told him I would relocate
anywhere other than North and South Dakota.
The interview with Paul occurred in July 1996, but I was not notified
that I was admitted into the Management
Training Program for TLE until October 1996.
10. Upon being
admitted to the Management Training Program, I was informed by Mr. Runyon that
I was being transferred to the Lawrence, Kansas store for training. I expressed
my displeasure in having to move my residence just for the training program and
was told by Mr. Runyon that I could not train in my home store. I knew this was not a valid reason for me
being sent to Lawrence as I had observed other men being trained in their home
stores. Nevertheless, I did relocate to
Lawrence, Kansas for the training program.
11. After I
completed my training, I was assigned to the store in Bonner Springs, Kansas. I was aware of the condition of this store
because I had previously been sent to the store to help “clean it up” as the
TLE Department was in bad shape due to an incompetent TLE Manager who had been
running the store. I was aware that the
store was an old, small, understaffed and a low volume store and that it was
not a store that you could ever be promoted from, because it did not do the
volume necessary for one to progress in the company. I informed Dave Runyon of all of my concerns
about the Bonner Springs store and told him that I did not feel that it was
fair to send me to this low volume store.
Mr. Runyon told me that I would only have to stay in this store for a
short period of time. I was aware that,
at the same time that I was being placed in this low volume store, other TLE trainees, all of whom were men,
were being placed in high volume stores.
The effect of being in a higher volume store is that the TLE Manager’s
bonus is based on the profit of his department which is always higher in a
store with higher volume sales.
Consequently, the new TLE Managers in the higher volume stores, at the
time I was placed at the Bonner Springs store, all men, were making more money
than me for doing the same or similar work.
I felt that this was another form of discrimination that I experienced
at Wal-Mart. The individuals that I know
who were placed into high volume stores on their first assignments as managers
were James Scott, Jim McMillan, David McMillan, Rusty Goodmiller, Jared Budreau
and Todd [last name unknown].
12. I
requested a transfer from my District Manager, Dave Runyon, from the Bonner
Springs store on numerous occasions.
Time and time again my transfers were denied by Mr. Runyon while other
male TLE trainees were placed in more profitable stores.
13. I was
denied transfers to the Manhattan, Kansas and the Ottawa, Kansas stores. I learned of the openings at the Ottawa store
and requested of my District Manger, Dave Runyon, a transfer to that store. Mr. Runyon’s only response was “we’ll see.” The next time I inquired about the position
it had already been filled and I was never even considered for this
position. I asked Mr. Runyon why I was
not considered and he indicated that I had not spent twelve months in the
Bonner Springs store which was a requirement before transfer to another
store. I know this was not a valid
reason because the individual who was placed in the Ottawa store, Jared, only
managed that store for three to four months before he was sent to manage the
Junction City store which was an even higher volume store. I believe this is another form of
discrimination as men were not held to these so-called “rules” when it came to
their promotions while these “rules” were used against me, a woman, when I
tried to improve my position in the company.
14. I also
asked Mr. Runyon if I could transfer to the Manhattan, Kansas store when I
learned of an opening in that store. The
Manhattan store was also a higher volume store than the Bonner Springs store. Mr. Runyon denied my request to transfer to
that store claiming that I could not be a manager in that store because that
was my original home store. However, I
know that this was also an invalid reason as the individual that was placed in
the Manhattan store as TLE Manager came from the Photo Department of the
Manhattan Store. His name was Rusty
Goodmiller.
15. In 1999, I
became aware of the fact that the Lawrence, Kansas store, a high volume store,
was terminating its TLE Manager and I requested a transfer to that store as TLE
manager. The TLE Manager position was
given to James Scott, a trainee with much less experience and competence in the
TLE division than me. I know that he was
given this position without interviewing for the job and that, in fact, this
position was never posted and was only given to James Scott on the
recommendation of the TLE Manager who was just fired. I believe that this was another form of
discrimination exercised against me as I had been in the Bonner Springs store for
the appropriate amount of time to train, I had improved the Bonner Springs
store, and I was well qualified to run a
large volume store, yet it was given to a less qualified male.
16. While I
was a TLE Manager I was aware that the bonus potential was less in the Bonner
Springs store than in the larger volume stores and I expressed my concern in
that regard to my direct supervisor, Dave Runyon. My concern proved to be justified as it
became clear to me while I was TLE Manager in the Bonner Springs store that the
other TLE managers in my district, who were all in higher volume stores, were
receiving larger bonuses than I was receiving.
The Lawrence, Kansas store was one of the highest volume stores in the
district and the TLE Manager in that store would necessarily receive a higher
bonus and have a better opportunity to be promoted up the TLE ladder.
17. After I
was turned down for the transfer to the Lawrence store I determined that it was
in my best interest to resign as a TLE Manager.
I discussed this with Dave Runyon before doing so and again expressed my
concern over the lack of promotional opportunities and the lower pay I would be
receiving so long as I remained at the Bonner Springs store. No one at Wal-Mart offered me any
alternatives to remaining at the Bonner Springs store, so I resigned as TLE
Manager and transferred to the Lawrence, Kansas store as an associate.
18. I also
believe that I was discriminated against in the way I was treated by upper
management while I was a TLE Manager.
The District Manager, Dave Runyon, and the Regional Manager, George
Alderman, would frequently socialize with the male TLE Managers and would
exclude me from the group. It was the
practice of the Regional Manager, George Alderman, to take the TLE trainee and
the TLE Manager to lunch when he was visiting the store where the TLE Manager
worked. I observed Mr. Alderman engage
in this practice in previous stores where I worked. The only time that I noticed that he did not
take the TLE Manager to lunch when he visited a store was when I was the TLE
Manager. I believe the different
treatment I received from my District and Regional Managers was because I am a
woman.
19. When I
went to the Lawrence, Kansas store I was made the Department Manager for TLE
and assisted James Scott, the TLE Manager.
I essentially ran the entire TLE Department for Mr. Scott. I chose to transfer out of that department
due to my lack of desire to run the department for the TLE Manager. Mr. Scott was upset when I transferred
departments as he was concerned that he would be unable to run the TLE Department without my assistance. Within several weeks after I moved out of the
TLE area, Mr. Scott resigned. I was
transferred to foods as a Department Manager and remained in that position
until my employment at Wal-Mart ended. I
continued to receive exceeds expectations on all my performance appraisals
after I transferred to the Lawrence, Kansas store.
20. Apart from
my own experience, I did observe other
women at Wal-Mart being paid less than men with either similar or less
experience. As an example, Louise Rails
has been with Wal-Mart for over eight years and is still only making between
$8.00-9.00 per hour. Louise Rails has
never received a merit raise in her eight years even though she is a dedicated
employee who is well respected for her work.
Dennis Lowe, a man that worked for Wal-Mart with less experience than
Louise Rails, received two merit raises in one year for a lateral move.
21. I raised
the gender gap pay issue with Wal-Mart’s CEO Lee Scott by sending him two
e-mails, one on August 30, 2000, a copy
of which is attached hereto as Exhibit 1, and the other on February 12, 2001, a
copy of which is attached hereto as Exhibit 2.
These e-mails raised several issues regarding the work environment at
Wal-Mart as well as the equal pay for women issue. In response to my August 30,
2000 e-mail, Wal-Mart sent Brad Shaffner and Mel Stos to my store to discuss
with me and Alix McKenna the issues raised in the e-mail. Eventually Wal-Mart largely resolved the
issues other than discrimination raised in the e-mail. Mr. Shaffner and Mr. Stos told Alix and I
that they were going to run spreadsheets to analyze the gender pay gap and that
they would get back to us after they ran the spreadsheets. One of the reasons I sent the February 12,
2001 e-mail to Mr. Scott was to follow up on Wal-Mart’s promise to run
spreadsheets on the gender pay gap issue since we had heard nothing on this
issue since our meeting with Mr. Shaffner and Mr. Stos. No one at Wal-Mart has ever responded to our
inquiry in the February 12, 2001 e-mail about the gender pay gap analysis. Wal-Mart never showed us any spreadsheets or
even advised us if the spreadsheets were ever run or analyzed.
22. While
employed at the Lawrence store there were approximately 25-35 department
managers. Only four to six of the
department managers were men and the remainder were women. There were approximately six assistant
managers at the Lawrence, Kansas store and only one of those managers was a
female.
23. On
December 31, 2002, I was terminated from my employment at Wal-Mart. Originally I was told that I was being
terminated because I “stole” time from Wal-Mart by taking too many breaks and
that my breaks were too long. Later, when it became apparent that this was not
true, Wal-Mart came up with a different justification, equally untrue. I believe that I was actually terminated in
retaliation for my long standing complaints regarding the presence of sexual
discrimination at Wal-Mart. I have
complained of sexual discrimination since 1996 when I was being denied
promotion opportunities. I continued to
complain of sexual discrimination when I was placed in the Bonner Springs
store, when I joined this case as a class member (I was deposed in the case by
Wal-Mart on August 30, 2002), and most recently when I supported a female
employee of Wal-Mart who was making a sexual harassment complaint against
Wal-Mart.
24. My support
of the sexual harassment complainant was known to Wal-Mart management because
the complainant informed the Store Manager that I was either a witness to the
sexual harassment or that I had experienced sexual harassment from the same
manager she claimed had harassed her. I
did advise this particular female associate to use the Open Door policy when
her complaints were not taken seriously by the Store Manager. She followed my advice and ultimately the
District Manager investigated the complaint and terminated the male
associate. It was after the upper
management investigation of the sexual harassment complaints that the Store
Manager fired me on December 31, 2002. I
used the Open Door policy to appeal the firing to the home office. The Home Office told me that they were going
to take the matter seriously, investigate and meet with me. They later informed me that they were going
to affirm the termination and explained I was terminated for clocking-in early,
not for taking too many breaks. I had
never been coached or warned about the alleged clocking-in too early behavior
and I was not given an opportunity to confront management about the new alleged
basis for my termination.
25. I received
numerous commendations throughout my career with Wal-Mart and never received a
single coaching during the thirteen years that I worked for Wal-Mart. Different reasons being given at different
times for my termination, my long standing complaints about sexual
discrimination, the timing of the termination in conjunction with my assistance
to the female associate complaining of sexual harassment and my participation
as a class member in this case, cause me to believe that I was terminated in
retaliation for expressing my feelings about sexual discrimination at Wal-Mart.
26. After I
stepped down as TLE Manager, I was approached on occasion by another female TLE
Manager, Ann McCune, as to whether or not I would be interested in re-entering
the TLE Management training program and I indicated to her that, as long as the
discrimination against women in the workplace was occurring with respect to
females progressing in management I would not be interested in being in the management
training program. However, I told her
that if Wal-Mart did change its discriminatory policies than I would be
interested in being placed back in the management training program in 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
Kansas that the foregoing is true and correct.
This
Declaration was signed by me on April _____, 2003 at ___________________, Kansas.
___________________________________
Dedra
Farmer