Cheryl Phipps v. Wal-Mart Stores, Inc.
792 F.3d 637
6th Cir.2015Background
- This suit is a follow-on, putative class action by Phipps, Millner, and Gibbons alleging gender discrimination in pay and promotions in Wal‑Mart Region 43 (Tennessee and nearby states), filed after the Supreme Court’s decision in Dukes.
- Dukes rejected certification of a nationwide Rule 23(b)(2) class of current Wal‑Mart employees; the Ninth Circuit had earlier preserved possibilities for Rule 23(b)(3) classes and for former-employee classes on remand.
- The California district court entered an American Pipe tolling order after Dukes, setting deadlines for EEOC charges and right-to-sue letters; plaintiffs filed EEOC charges and timely sued within the tolling period.
- Wal‑Mart moved to dismiss the follow-on class claims as time-barred under American Pipe and Crown, Cork & Seal, relying principally on Andrews v. Orr, which the district court treated as a bright-line bar and dismissed the class claims with prejudice.
- The Sixth Circuit reversed: it held (1) the proposed Rule 23(b)(3) class of current and former Region 43 employees seeking monetary relief is timely under American Pipe, and (2) the proposed Rule 23(b)(2) class of current Region 43 employees seeking injunctive/declaratory relief is likewise not barred by Andrews and may proceed to class-certification analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing to appeal dismissal of class claims | Named plaintiffs say dismissal of class claims injures their ability to pursue pattern-or-practice theory and broad injunctive relief | Wal‑Mart contested standing | Court: plaintiffs have standing—the dismissal impairs their substantive and remedial rights |
| Whether American Pipe tolling permits a subsequent Rule 23(b)(3) class for monetary relief (current & former employees in Region 43) | Tolling continued after Dukes and the California tolling order; no court had denied a Rule 23(b)(3) class, so follow-on class is timely | Andrews allegedly bars any follow-on class when earlier class litigation existed | Court: American Pipe tolling applies; Andrews does not bar this Rule 23(b)(3) follow-on class |
| Whether American Pipe tolling permits a subsequent Rule 23(b)(2) class for injunctive/declaratory relief (current Region 43 employees) | Plaintiffs filed within the California tolling period; Dukes did not foreclose a regional Rule 23(b)(2) class and unnamed members lacked notice/opt-out rights in Dukes | Wal‑Mart argued Andrews and related cases forbid “stacking” follow-on classes | Court: Rule 23(b)(2) follow-on class was timely and not barred by Andrews; class may proceed to Rule 23 analysis |
| Scope and effect of Andrews v. Orr (bright-line rule) | Plaintiffs: Andrews should not be read as a blanket ban; inquiry must be fact-specific | Wal‑Mart: Andrews establishes categorical prohibition on follow-on class suits | Court: Rejects bright-line reading of Andrews; applies fact-specific approach (following In re Vertrue, Odle) |
Key Cases Cited
- American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (filing of class complaint tolls statute of limitations for putative class members while class action is pending)
- Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) (confirmed limits of American Pipe tolling; class members may file individual suits after certification denial)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (rejected certification of a nationwide Rule 23(b)(2) class; distinguished Rule 23(b)(2) and (b)(3) remedies)
- Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988) (district court and Sixth Circuit opinion that has been read to deny tolling for later class actions where certification was previously denied)
- In re Vertrue, 719 F.3d 474 (6th Cir. 2013) (rejected a bright-line Andrews rule; applied fact-specific inquiry to tolling for subsequent class actions)
- Odle v. Wal‑Mart Stores, Inc., 747 F.3d 315 (5th Cir. 2014) (applied American Pipe tolling to follow-on Dukes-related regional class; distinguished Calderon decisions)