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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, Barbara Mack, 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 am a 41 year old African American woman, currently employed as an
Assistant Manager at a Wal-Mart store in Sumter, South Carolina. I am a single mother and have primary
responsibility for my 12-year-old son. I
have been employed by Wal-Mart since January 27, 1987.
3.
When I joined the company, I had prior supervisory experience as a
shift supervisor with Pizza Hut where I had supervised 10 employees. I applied at the Wal-Mart store in Manning,
South Carolina to get a different type of experience although I was not sure of
the specific advancement opportunities available within the company. I initially worked as a cashier and then a
year later I was assigned to receiving. From approximately the summer of 1988
to approximately 1992 or 1993, I worked as a sales associate in Stationary and
Electronics Department Manager. My
performance evaluations were above standard and I was very interested in
promotional opportunities in the company.
4.
In approximately 1992 or 1993, I was promoted to Support Manager after
Store Manager Jane McKeller, who had been promoted recently to Store Manager,
offered me the position. In
approximately the winter of 1994, Store Manager Danny Oswald transferred to the
store. Store Manager Oswald removed me
from the position of Support Manager after informing me that the position no
longer existed. I called the Home Office
and District Manager Mike LNU and both confirmed that the position no longer
existed. I returned to my former
position as Department Manager of Electronics and continued to express interest
in promotion to Store Manager Danny Oswald.
5.
In December 1996, I was transferred to the Loss Prevention
department. I continued to work in the
Manning, South Carolina store but my job responsibilities required me to travel
to various stores to investigate security, fraud and shrink issues.
6.
In May 1998, I asked District Manager Jerry Cole for the opportunity to
participate in the Assistant Manager Training Program after I decided that I
wanted a chance to go into management. My Loss Prevention District Manager,
Jake McNeal , supported me in the process and I began my training in the
Sumter, South Carolina store in June 1998.
7.
I trained for ten weeks in the Sumter store. After my training was completed in September,
I was assigned to work at a store in Columbia, South Carolina, an hour and 20
minutes from my home. Store Manager
Charles Kenny told me that I had been assigned to this store because Assistant
Managers could not train and work in the same store. However, I observed that male Assistant
Manager Trainees James Primus and Joe Thompson were permitted to train and work
in the Sumter store.
8.
I worked very hard at the Columbia store and the Store Managers Ed
Mason and Jim Crosland frequently would assign me to the most difficult areas
in the store to clean them up. I was at
the store for a year and a half, and finally, was assigned to the worst area of
the store, Domestics, which I managed to organize.
9.
I asked District Manager Cole for a transfer to a store closer to home
on a number of occasions because I am a single mother. In January 2000, I was
transferred to the Sumter, South Carolina store.
10.
By the time of my transfer back to the Sumter store, I felt that I
could run a store. I, consequently,
expressed interest in a promotion to Store Manager Gary Ulmer. In February 2001, Store Manager Ulmer and I
discussed my moving up in the company after Co-Manager Ann McClam was promoted
to store manager. Store Manager Ulmer
informed me that he thought I could perform the job responsibilities of a
co-manager. Based on this and other
discussions, I fully expected to be promoted to the position. However, a couple of weeks later, Store
Manager Ulmer informed me that a man, Patrick Ryan, had been selected to work
as co-manager because he had food experience and that I would be ready for promotion
in a few months.
11.
Co-Manager Ryan had only been an employee of Wal-Mart for a short
period of time when he transferred to the Sumter store in April 2001. Because of his limited experience with
Wal-Mart, Store Manager Ulmer asked me to train him. As a result, I worked closely with Mr. Ryan. Almost immediately, Co-Manager Ryan started
to touch me in an offensive way. He
would, frequently, touch me including brushing up against me, touching my butt
and massaging my shoulders. He would
also make inappropriate remarks. For
example, at one point he asked that I join him in his hotel room to watch
television despite the fact that we were not friends and had no relationship
beside a working relationship within the store.
Although I did not tell Store Manager Ulmer of each of these incidents,
I did tell him that I did not like to work with Co-Manager Ryan and,
eventually, had my schedule changed so that I would work with Co-Manager Ryan
as little as possible. I did not tell
Store Manager Ulmer the details of what occurred because I feared that I would
lose my opportunity for promotion to co-manager.
12.
On a Saturday in August 2001, Co-Manager Ryan came into the
administrative office where I was working typing the Back to School plan for
the store for District Manager Patsy Williams.
Co-Manager Ryan came into the office and while my back was turned raised
my shirt up as if he was attempting to take it off. I turned to stop him and pushed him against
the wall. I told him that I was going to
tell Store Manager Ulmer about the incident and told him to take his hands off
of me. I then left the room humiliated
and embarrassed by the experience. The
next day Store Manager Ulmer, who was off, called in to check on the store. I answered his questions and told him about
Co-Manager Ryan raising my shirt. Store
Manager Ulmer assured me that he would take care of it the next day.
13.
However, Store Manager Ulmer did not raise the matter the next
day. Two days after the incident, Gary
Ulmer called me from his cell phone to tell me had spoken to Co-Manager Ryan
and that he, Co-Manager Ryan and I would sit down and talk about it. He also told me that he would do an
investigation. Approximately a week
later, I had not heard anything and I went to talk to District Manager Williams
whose office was in the Sumter store. I told District Manager Williams what had
happened and that Co-Manager Ryan liked to touch me. She told me that she would investigate it but
then left town to attend the annual company meeting in Dallas.
14.
During this period, I was still required to work with Co-Manager Ryan
although I was uncomfortable doing so.
Weeks after District Manager Williams and Store Manager Ulmer returned
from the Dallas meeting neither had spoken to me about my complaint and I
called the Home Office for assistance. I
spoke to a woman named Melissa in the Home Office about what had happened and
she told me that she would get back in touch with me. A short time later, Melissa called to tell me
that she had spoken to District Manager Williams and that Ms. Williams would
follow up. Approximately, a week and a half later I spoke to District Manager
Williams who told me that after an investigation she had concluded that
something had happened but that I had exaggerated. I denied that I had exaggerated and told her
that Co-Manager Ryan had raised my shirt.
At no time did District Manager Williams talk to me about Co-Manager
Ryan's conduct toward me as part of her investigation. She then told me that she had disciplined
Co-Manager Ryan but that she could not be specific about how he had been
disciplined because it was confidential.
District Manager Williams told me that she wanted me to go downstairs,
continue to work with Co-Manager Ryan and perform for her the way I had always
done. Because I believed I had no other choice
but to continue to work with Co-Manager in order to keep my job, I did as
District Manager Williams directed and continued to work with Co-Manager Ryan
despite the discomfort I felt.
15.
After I complained about Co-Manager Ryan's behavior, Store Manager
Ulmer and District Manager Williams changed in their attitude toward me. Store Manager Ulmer no longer discussed the
possibility of my promotion to co-manager.
Rather, he began to tell me that I had people issues and that I needed
to work on my "deliverance."
He also complained to me about the fact that I had gone over his head to
complain about Co-Manager Ryan. District Manager Williams no longer requested
that I assist her in completing STAR Reports at various stores. She also no longer requested that
I assist her in putting together plans for the
store. Before I complained she would
include me in both of these
activities. I saw these
as opportunities for me to get to know District Manager Williams better since
she would influence whether or not I got a promotion or not.
16.
I knew that my chances for promotion were doomed when I received an
evaluation in 2002 that included input concerning my strengths and areas of
improvement from Co-Manager Ryan, the very person against whom I had made my
complaint. I raised my concern about
Co-Manager Ryan's providing input and informed Store Manager Ulmer and District
Manager Williams that I believed that I was being treated differently because
of my gender. Exhibit A. However, both ignored my concern.
17.
Co-Manager Ryan transferred out of the Sumter store in October 2002. He
was replaced by another male, Chris Hanson who has less experience than I have
as an Assistant Manager. I had not been given the chance to apply and I was not
interviewed for the position. Instead, I have been told that I need to work
on people issues. I believe that this
is retaliation for my complaining about sexual harassment and gender
discrimination because I have observed that male associates, Jim Crosland and
Bobbie Green, were terminated for sexual harassment or other people issues and
were then rehired and promoted to store manager and Rising Star,
respectively.
18.
Store Manager Ulmer has recently continued to retaliate against me by
attempting to transfer me to a store in Florence, South Carolina without
discussing it with me. I was not
transferred after I spoke to District Manager Williams about the issue. However, Store Manager Ulmer does not allow
me to fully do my job and insists that I go to Co-Manager Chris Hanson before I
do anything. I find this to be
particularly insulting since I have more experience than he has and am
qualified to perform my job with little or no supervision.
19.
Each of the stores in which I have worked and that I visited while I
worked in Loss Prevention operated in the same manner. I was not required to receive any additional
training to work in any of the stores in which I worked. Currently, I am working with a team of associates
from the Sumter store to set up a new Supercenter that is opening in Sumter,
South Carolina in May 2003. I have not
received any additional training to set up the store and am not expected to go
through any additional training to work at the store.
20.
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\Barbara Mack Class Cert dec.doc