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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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SHEILA
Y. THOMAS (SBN 161403) 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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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 |
DEBRA
GARDNER PUBLIC
JUSTICE CENTER 500
East Lexington Street Baltimore,
MD 21202 Telephone: (410) 625-9409 Facsimile: (410) 625-9423 |
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SHAUNA
MARSHALL (SBN 90641) HASTINGS
COLLEGE OF THE LAW 200
McAllister Street San Francisco, CA 94102 Telephone: (415)
565-4685 Facsimile:
(415) 565-4854 Attorneys for Plaintiffs |
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UNITED STATES DISTRICT COURT
I, Gayle Kellems, declare:
1. I am a female and a former employee of Wal-Mart Stores,
Inc. I live in Berryville,
Arkansas.
2.
I began working for Wal-Mart in July 1980. Twenty-one years later, in July 2001, I
resigned from Wal-Mart. I resigned
because I believed that Wal-Mart would never promote me to the position of
Store Manager.
3.
From 1980 until 1989, I was an hourly employee at a Wal-Mart store in
Pocahontas, Arkansas. I held the
positions of cashier, sales associate, department manager, and support
manager. During this period, I always
worked hard, performed well, and was never disciplined. For the first seven years of my career with
Wal-Mart, no Wal-Mart manager ever asked me whether I would be interested in a
management level job.
4.
In approximately 1987, Store Manager Jack Staten asked me whether I was
interested in entering the management training program. I declined his offer because, at that time, I
had three young children. I did not
believe that I could manage to raise my children and work fifty hours per week
as an Assistant Manager. At that time, I
did accept a position as Support Manager.
The Support Manager position is an hourly supervisor position.
5.
As a Support Manager, I worked approximately forty-eight hours per week
which generally included two nights per
week and one weekend every month.
Working in the Support Manager position, I realized that I could handle
the additional hours and responsibility of management. I enjoyed the
work and became excited about the opportunities to build a career as a
Wal-Mart manager. As a result, in
approximately 1988, I told Store Manager Staten that I wanted to be promoted
into the management training program.
Approximately one year later, I entered the management training program.
6.
In approximately December 1989, I was promoted to the position of
Assistant Manager of a Wal-Mart store in Ankeny, Iowa. When I accepted this position, I relocated my
family and home from Arkansas to Iowa. I
was not given the option of remaining in Arkansas. At the time, I had three school-age children. I would have preferred to remain in Arkansas,
but I was willing to make the sacrifice of relocation in order to further my
career with Wal-Mart. I aspired to
become a Store Manager and then a District Manager. I was willing to work hard and make personal
sacrifices to achieve my goal.
7.
When I worked at the Ankeny, Iowa Wal-Mart store, District Manager Mark
Pistorius told me that I was not earning as much as the other Assistant
Managers. I was the only female
Assistant Manager in the Ankeny store.
Instead of immediately raising my salary to the level of the other
Assistant Managers, Mr. Pistorius gave me raises approximately every six months
to bring my salary to parity with others.
8.
In October 1991, District Manager Mark Pistorius asked me to transfer
laterally to a new Wal-Mart store in West Des Moines, Iowa as an Assistant
Manager. I agreed to the transfer
because the store in West Des Moines was a larger store with a higher volume of
sales. As a result, I believed that I
would learn more about managing a Wal-Mart store. I believed that accepting this transfer would
benefit my career at Wal-Mart and increase my opportunities for advancement
within Wal-Mart.
9.
I received performance evaluations in approximately the following dates:
September 1990, December 1990, June 1991, November 1991, December 1991, March
1992 and October 1992. On each of these
evaluations, I wrote that I wanted to be promoted. True and correct copies of these evaluations
are attached hereto as Kellems Exhibits A through G, respectively.
10.
In September 1992, I was transferred laterally to a Wal-Mart store in
Berryville, Arkansas where I worked as an Assistant Manager. When I transferred to Berryville, Arkansas,
the store was being converted into a Wal-Mart Supercenter. I believed that I was advancing my career by
transferring to a Supercenter because Supercenters are larger than regular
Wal-Mart stores and sell grocery merchandise.
When I began working in Berryville, I did not receive any additional
training even though I had not previously worked in a Supercenter.
11.
On numerous occasions while I worked in Berryville, Arkansas, I told
District Manager Steve Furner and Store Manager Larry Philips that I would like
to be promoted to either a Co-Manager or a Store Manager position.
12.
In February 1994, I received a performance evaluation that is signed by
Store Manager Larry Phillips and District Manager Steve Furner. I wrote on the evaluation that my short term
career goal was to be Co-Manager in Berryville and my long-term goal was to be
director of a small Supercenter or a similar size Division One store. The performance evaluation also has a space
for the District Manager to write comments.
In that space, the following statement is written: “We will work closely
with Gayle to achieve her goal to which can be accomplished by January
1995.” A true and correct copy of this
evaluation is attached hereto as Kellems Exhibit H.
13.
In 1995, I told Regional Personnel Manager Debby Moody that I would like
to be promoted to the position of Co-Manager.
Ms. Moody responded that she would keep me in mind. Ms. Moody never contacted me about available
Co-Manager positions. I was not aware of
any postings for Co-Manager positions.
Other than speaking to my Store Manager, District Manager, and Regional
Personnel Manager as I did, I did not know what else I could do to get promoted
to a Co-Manager position.
14.
In March 1995, I received a performance evaluation that is signed by
Store Manager Larry Phillip and District Manager Steve Furner. Mr. Furner wrote at the bottom of the evaluation,
“is ready for co-mng [Co-Manager] this year 95.
Thanks. Steve Furner.” A true and correct copy of this evaluation is
attached hereto as Kellems Exhibit I.
15.
While I was working in the Berryville, Arkansas Supercenter, a
Co-Manager named Gary Saporito left his position in the Berryville store. I asked the District Manager whether I would
be promoted into the position. He
replied that Wal-Mart was not going to replace Gary Saporito.
16.
In the spring of 1995 Gary Rains replaced Larry Phillips as the Store Manager
in Berryville, Arkansas. At that time, I
told Mr. Rains that I wanted to be promoted.
17.
In the spring of 1995, Carl Simpson replaced Steve Furner as
District Manager over the Berryville, Arkansas Supercenter. The first time that I met Mr. Simpson and
many times after that, I told Mr. Simpson that I wanted to be promoted to the
position of Co-Manager. On one occasion,
Mr. Simpson told me that I would be promoted to the position of Co-Manager the
next time that there was an opening in the district. Mr. Simpson did not tell me what I could do,
if anything, to ensure that I would be considered for positions outside of his
district.
18.
A Co-Manager position did open up in the district, but it was not
offered to me. A few months after the
Co-Manager position vacated by Gary Saporito was eliminated, another Co-Manager
position was created in the Berryville, Arkansas Supercenter. The position was not posted. I was not aware of the opening until the
position was filled, so I could not apply for it. I was not offered that position. The position was given to a male named Allen
Buck. I asked Store Manager Gary Rains
why the position was given to Mr. Buck and not to me. Mr. Rains responded that the store was in a
convenient location for Mr. Buck and that Wal-Mart wanted to give Mr. Buck the
experience of working in a store.
19.
When Mr. Buck left the position of Co-Manager in the Berryville,
Arkansas Supercenter, he was not replaced.
District Manager Simpson told me that the Co-Manager position was
eliminated in that store. Unlike Mr.
Buck, I was not allowed to work as a Co-Manager of the Berryville Supercenter
in order to get that experience.
20.
I continued to ask District Manager Simpson to promote me. While I was working in Berryville, Arkansas,
I never spoke about my interest in promoting to a Regional Vice President or
anyone else that I would consider to be Mr. Simpson’s supervisor. That would have been "career
suicide." Despite the open door
policy, there is an unspoken rule at Wal-Mart that managers should not go over
their immediate supervisor’s head.
21.
In August 1996, Mr. Simpson offered me a position as Co-Manager of the
Harrison, Arkansas Supercenter. At the
time that he offered me the position, Mr. Simpson told me that a Co-Manager
position was a training position and that after eighteen months I would have to
relocate elsewhere. I accepted the
position and told Mr. Simpson that I was willing to relocate. I remained as a Co-Manager for five years.
22.
When I worked at the Harrison, Arkansas Supercenter, there were two
Co-Managers at that store. One was
assigned to the “grocery side” of the store, and the other was assigned to the
“general merchandise side” of the store.
For approximately two years, from August 1996 until l998, I was assigned
to the general merchandise side of the Harrison, Arkansas Supercenter. From approximately 1998 until July 2000, I
was assigned to the grocery side of the store.
23.
In July 2000, District Manager Bill Lovell asked me to transfer as
Co-Manager to the Wal-Mart Supercenter in Branson West, Missouri. Mr. Lovell told me that employee morale was
low and that the store needed a female manager so that employees would feel
that they had someone in whom they could confide. I later learned that Mr. Lovell claimed to
have transferred me to Branson West, Missouri Supercenter because a man named
Gary Saporito wanted my position in Harrison, Arkansas. A true and correct copy of a statement by Mr.
Lovell that Wal-Mart provided to the Equal Employment Opportunity Commission
and that Wal-Mart produced in this case is attached hereto as Kellems Exhibit
J.
24.
I agreed to transfer to the Branson West store because I believed it
would lead to a promotion to a Store Manager position. District Manager Bill Lovell promised me that
I would be promoted to the position of Store Manager within one year of July
2000. At the time that I resigned, on
July 31, 2001, I had not been offered a position as Store Manager.
25.
I considered the transfer to Branson West to be a demotion. As a Co-Manager, I earned a base salary and
also a bonus that is calculated based on store profits. The Harrison Supercenter is larger and more
profitable than the Branson West Supercenter.
As a result, the Co-Manager bonus for the Harrison Supercenter is about
$5,000 more than the Co-Manager bonus for the Branson West Supercenter. As a condition of my transfer, Wal-Mart
agreed to pay my bonus for the year following my transfer based on the Harrison
Supercenter’s profits. If I continued
working for the Branson West Supercenter, my annual income would have declined
about $5,000.
26.
Between 1999 and 2001, I applied for eighteen Store Manager positions on
the Management Career Selection computer system, including two stores in
Arizona, five stores in Texas, four stores in Arkansas, five stores in
Missouri, one store in Kentucky, and one store in Oklahoma. I was not offered any of the positions. No Wal-Mart manager ever told me why I was
not selected for any of these positions.
27.
In selecting which positions to apply for, I selected Supercenters and
large Division One stores. All of my
experience since 1992 had been in Supercenters and I had the knowledge to
manage both general merchandise and food operations. In 1994, District Manager Steve Furner had
told me that I would be bored if I was not working in a Supercenter. I enjoy fast-paced work and being challenged
in my job. In addition, Store Managers,
like Co-Managers, are paid a bonus based on the store’s profits. I did not want to take a pay cut by
transferring to a small store.
28.
No District Manager, Regional Personnel Manager, or Regional Vice
President for Wal-Mart ever approached me to offer me a promotion to a
particular Store Manager position or asked whether I would be interested in a
particular Store Manager position.
29.
In late 1999, there was an opening for a Store Manager in the
Berryville, Arkansas store. I was very
interested because I live in Berryville.
I applied for the position, but I was neither interviewed for the
position nor offered the position. The
position was filled by a man named Tom LaRue.
30.
In early 2000, the position of Store Manager at the Berryville, Arkansas
Supercenter opened up again. I applied
for the position again. Again, it was
given to a male, Tim Lehr. I am familiar
with Mr. Lehr’s career at Wal-Mart because we worked in the same district. In approximately late 1992 or early 1993, Mr.
Lehr began working for Wal-Mart at the Berryville, Arkansas Supercenter as an
Assistant Manager. Before he became the
Store Manager in Berryville, Mr. Lehr worked briefly as Co-Manager of the
Supercenter in Bentonville and as Co-Manager of the Berryville Supercenter. Mr. Lehr did not have the many years of experience
as a Co-Manager that I had.
31.
In early 2001, the Store Manager position in the Branson West
Supercenter opened up. I applied, but I
was not offered that position. I was
qualified for the position. During the
time that I had been at Branson West, the store’s “shrink” and “unresolved
people issues” rating had improved. The
“shrink” is measurement of the store’s losses through theft or paperwork
errors. The “UPI” rating is a
measurement of employee morale. The
Store Manager position in Branson West was filled by a man named Bill
Stark. After working with me in the
Branson West Supercenter and observing my skills, Mr. Stark told me that he was
not any more qualified for the position that I was.
32.
In June 2001, I reminded District Manager Bill Lovell that I had been at
the Branson West Supercenter for almost one year and that I had not been
promoted to a Store Manager position.
Mr. Lovell replied that he thought that I would have been promoted to a
Store Manager position by then. Mr.
Lovell did not tell me that a store would soon be available. Mr. Lovell did not tell me that there was
anything else that I could do to get promoted, other than to continue to apply
for positions on the computer system as I had been doing unsuccessfully. Mr. Lovell did not tell me that he would do
anything to help me get promoted to a Store Manager position. This conversation with Mr. Lovell left me
with the impression that he was not going to assist me in getting promoted and
that I would not be promoted any further.
33.
As a result of my conversation in June 2001 with District Manager
Lovell, I decided to resign. When I told
Mr. Lovell of my decision, he did not try to discourage me. On July 2, 2001, I turned in my resignation
notice in which I informed Wal-Mart that my last day of work would be July 31,
2001. I stated on my resignation notice
that I was resigning because I felt that I had gone as far with the company as
Wal-Mart will allow. Despite the fact
that I had worked for Wal-Mart for over twenty years and was only forty-eight
years old, no one from District, Regional, or Home Office management staff
tried to persuade me not to resign.
34.
I took the responsibility of being a Wal-Mart manager very
seriously. I felt that I was obligated
to give 110 percent to Wal-Mart because Wal-Mart gave me the opportunity to
work in management. During the five
years that I was a Co-Manager, I missed only three scheduled days of work. I missed two days because I was in the
hospital. I missed a third day due to
inclement weather. I live in a rural
area with narrow, winding roads that often get icy in winter. On particular bad days, my family urged me to
stay home from work because they feared that driving was dangerous. I did not take their advice because I was
dedicated to my job at Wal-Mart. As a
manager, I was scheduled to work fifty-two hours per week, but I often worked
more than sixty hours in a week. I
sacrificed holidays, weekends, and monumental occasions with my children. For example, I left my daughter’s wedding
party early to attend Wal-Mart’s annual holiday meeting in Texas. I never hesitated to make these sacrifices
because I believed that the opportunities I would have to advance within
Wal-Mart would ultimately benefit my family.
35. During the time I worked at Wal-Mart, I
consistently received high ratings on my performance evaluations. I was never disciplined. Wal-Mart has a training program for managers
who perform poorly. I do not know what
the official name of the program is, but it is commonly referred to among
managers as “bad boys’ school.” I was
never sent to “bad boys’ school.”
36.
During the entire time that I worked as a manager for Wal-Mart, I do not
remember ever hearing any discussions at the store level about the importance
of increasing the number of women in management.
37.
All of the Store Managers with whom I have worked during my twenty-one
years at Wal-Mart have been male. All of
the Co-Managers with whom I have worked during my twenty-one years at Wal-Mart have
been male. All of the District Managers
with whom I worked during my twenty-one years at Wal-Mart have been male.
38. 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
Arkansas that the foregoing is true and correct.
This
Declaration was signed by me on ______________________, 2003, at
_______________________.
______________________________