United States District Court, S.D. Ohio, Western Division, Dayton
ENTRY AND ORDER GRANTING DEFENDANT'S RENEWED
MOTION TO SEVER PLAINTIFFS' CLAIMS OR, IN THE
ALTERNATIVE, TO TRY PLAINTIFFS' CLAIMS SEPARATELY (DOC.
16), INSTRUCTING CLERK AND PARTIES CONCERNING PROCEDURE FOR
SEVERANCE, AND DENYING WITHOUT PREJUDICE DEFENDANT'S
PARTIAL MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT
M. ROSE, UNITED STATES DISTRICT JUDGE
before the Court are two motions filed by Defendant Wal-Mart,
Inc. (“Walmart”): (1) Defendant's Renewed
Motion to Sever Plaintiffs' Claims or, in the
Alternative, to Try Plaintiffs' Claims Separately (Doc.
16) (“Motion to Sever”), and (2) Defendant's
Partial Motion to Dismiss Plaintiffs' Amended Complaint
(Doc. 14) (“Motion to Dismiss”).
Plaintiffs filed separate responses in opposition to
both the Motion to Dismiss and the Motion to Sever. (Docs.
18, 20.) Walmart filed separate replies in support of each
motion. (Docs. 21, 24.) Following briefing, Plaintiffs also
filed a Statement of Recent Ruling. (Doc. 25.) The Motion to
Sever and the Motion to Dismiss are fully briefed and ripe
for review. (Docs. 14, 16, 18, 20, 21, 24.)
reasons discussed below, the Court GRANTS
the Motion to Sever (Doc. 16), finding that the claims of
each of the Plaintiffs must be severed from the claims of the
other Plaintiffs. Given this ruling, the Court does not
substantively address, and instead DENIES WITHOUT
PREJUDICE, the Motion to Dismiss (Doc. 14).
Amended Complaint (the “Complaint”) contains four
claims, each brought under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e, et seq.,
alleging that Walmart discriminated against one or more of
the Plaintiffs (all of whom are women) based on their gender:
• Count 1 - Disparate Treatment on the Basis of
Pay (brought by all Plaintiffs);
• Count 2 - Disparate Treatment on the Basis of
Promotion (brought by Morgan, Shearer-Luke, McKinney, Thomas,
• Count 3 - Disparate Impact on the Basis of
Pay (brought by all Plaintiffs); and
• Count 4 - Disparate Impact on the Basis of
Promotion (brought by Morgan, Shearer-Luke,
McKinney, Thomas, and Monda, i.e., the same five
women who bring Count 2).
allege that they are former members of a national class
action lawsuit that alleged sex discrimination in pay and
promotion by Walmart. In 2011, the United States Supreme
Court reversed the district court's order that had
certified the proposed nationwide class in that lawsuit.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
Plaintiffs allege that this action stems from Dukes,
and that they previously filed EEOC charges and Amended EEOC
charges. Attached as an exhibit to the Complaint is a
composite exhibit of their EEOC charges from 2012.
contend that, throughout its stores in the State of Ohio,
Walmart maintained a pattern or practice of gender
discrimination in either compensation or promotion, and that
the evidence that Walmart engaged in such a pattern is
relevant evidence that may be used by each individual
plaintiff to support her assertion that Walmart's actions
with respect to her own pay or promotion (or both) were
driven by gender discrimination. Plaintiffs allege that, in
each of Walmart's regions, the compensation and/or
promotion policies and practices of Walmart had a disparate
impact (not justified by business necessity) on female
employees, including the Plaintiffs.
also allege that Walmart introduced a new pay structure in
2004, that-starting in 2005-Walmart changed how start pay was
established for hourly employees, and that-in 2006-Walmart
added a cap on the pay permitted for each job class.
Plaintiffs allege that stores within Walmart's Ohio
regions have common formats, hourly jobs, positions,
department structure, and management jobs. Within each
region, each individual store has Assistant Managers who
supervise staff, and all stores have Store Managers who are
in charge of the store. Also within each region, stores are
supervised by District Managers, who are responsible for
ensuring store compliance with company policies and have
authority to make or approve compensation and promotion
decisions for hourly employees in the stores within their
district. Each region consists of multiple districts that are
each headed by a Regional Vice President.
Complaint also contains paragraphs with allegations
concerning each plaintiff individually. (See Doc. 11
at ¶¶105-159.) Each of the Plaintiffs worked at
different stores from one another and worked at different
points in time-and for various lengths of time-during the
overarching time frame of 1991 through 2015. With a few
exceptions, the Plaintiffs worked in different positions and
departments (ranging from Greeter to Pharmacy Technician to
Assistant Manager). (Id.) Each has different male
comparators. (Id.) For each separate plaintiff,
those paragraphs detail allegedly discriminatory treatment,
describing specific incidents when a plaintiff was passed
over for a promotion that went to an allegedly less qualified
male employee and/or learned that an allegedly
similarly-situated male employee was being paid more than she
was paid. (Id.) Some paragraphs identify a
particular plaintiff's supervisor(s) with whom that
plaintiff allegedly discussed, or who was involved in, such
Motion to Sever, Walmart asks that this Court sever the
claims of each of the Plaintiffs from one another, pursuant
to Federal Rule of Civil Procedure 21 (“Rule
21”). In this context, the Motion to Sever involves
both Rule 21 (Misjoinder and Nonjoinder of Parties) and
Federal Rule of Civil Procedure 20 (“Rule 20”)
(Permissive Joinder of Parties). It is appropriate to address
potential misjoinder of parties at an early stage of the
case. See, e.g., Lovett v. Lucas, No. 1:08-CV-1253,
2009 U.S. Dist. LEXIS 48536, at *3-5 (N.D. Ohio May 13,
2009); Reynolds v. Merck Sharp & Dohme Corp.,
No. 3:15-cv-397, 2016 U.S. Dist. LEXIS 72120, at *3 (N.D.
Ohio June 2, 2016) (“deferring a ruling [on a motion to
sever] does not necessarily promote efficiency”).
Accord: 4 James Wm. Moore et al., Moore's
Federal Practice, § 21.02 (2019) (“a
party's delay in seeking relief [for misjoinder] may