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Did Walmart pay male coworkers more, promote less-qualified men?

By Kathleen Kapusta, J.D.

Small differences in work history, qualifications, or prior work experience were not enough to find that four male coworkers were not similarly situated to a lower paid female employee for purposes of her Title VII disparate pay claim, a federal district court in Illinois determined on summary judgment. Finding fact issues as to whether male coworkers similarly or less qualified than the employee received promotion for which she applied, the court also denied summary judgment against her failure-to-promote claim (Bozek v. Wal-Mart Stores, Inc., February 14, 2017, Darrah, J.).

Hired by Walmart as an associate in 1992, the employee was later promoted to a department manager and then to the Management in Training (MIT) program in 2001. While attending the MIT program, she alleged she was sent to the backroom of the store to prep for inventory while male employees attended class.

We don’t discuss pay. After completing the program, she became an assistant store manager and was asked to transfer to the overnight shift to become a Night Receiving Assistant Manager. The next year, she spoke to the store manager about pay disparities between male and female employees at Walmart but was told that “we do not discuss pay.”

In 2004, she requested that she be moved to a photo manager position at another store. After she received a reduction in pay, she alleged that Walmart allowed male employees who were involuntarily demoted to retain their salaries but reduced her salary when she voluntarily stepped down as assistant manager. While there, she received two disciplinary coachings, and when her position was subsequently eliminated, she was placed in an hourly job.

Nonselections. In 2005, she began working as a support manager. She applied for two upper level manager positions and six assistant manager positions. She was not selected for any of the jobs. Nor was she selected for a field project supervisor position she applied for in 2008 while working as a training coordinator. In 2010, she went on medical leave and was terminated a year later when she failed to return to work.

Disparate pay. Suing under Title VII, the employee alleged that Walmart discriminated against her by paying her less than similarly situated male employees. Although Walmart argued that she could not show she suffered an adverse employment action, the court pointed out that if she established she was paid a lower salary than a similarly situated male coworker, she established an adverse employment action.

Walmart next contended that she could not show she was paid less than any similarly situated male employees, pointing to slight differences between her and the four male coworkers she alleged were similarly situated but were paid more. Observing that these four coworkers had the same position, with the same pay code, and worked at the same store as the employee, the court observed that as assistant managers subject to the same policies and procedures, they were presumably subject to the same standards and held the same job description as the employee. While there were small disparities in work histories, qualifications, or prior work experience, the requirement that employees be similarly situated is “not an unyielding, inflexible requirement that requires near one-to-one mapping between employees—distinctions can always be found in particular job duties or performance histories,” the court explained. Because a reasonable factfinder could conclude that she established a prima facie case of discrimination, summary judgment was inappropriate.

Failure to promote. As to the employee’s failure-to-promote claim, she argued she had more work experience and education than did two male employees who were appointed to field project supervisor positions in 2008. These coworkers, she alleged, worked as hourly employees and had less supervisory experience than she did. While Walmart argued that she was not similarly situated to them because she voluntarily demoted from her previous supervisory job, it did not establish what effect, if any, this had on her job prospects. Noting that Walmart provided no further explanation for its contention that this separated the two male coworkers from the employee, the court found a fact issue as to whether male employees similarly or less qualified than the employee received promotions for which she applied.