Fairley v. Wal-Mart Stores, Inc. (216 F. Supp. 3d 708, 2016)

SECTION: “G”(4)

ORDER

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

In this litigation, Plaintiff Ravion Fair-ley (“Plaintiff’) alleges that her former employer, Defendant Wal-Mart Stores, Inc. (“Defendant”) discriminated against her based on her gender in violation of Title VII. Before the Court is Defendant’s “Motion for Summary Judgment.” Having considered the pending motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will grant the motion in part and deny the motion in part.

I. Background

A. Factual Background

Plaintiff is a former member of the Wal-Mart Stores, Inc. v. Dukes class action, in which more than one million women alleged that Wal-Mart retail stores discriminated against its female employees with respect to pay and promotion to management track positions, in violation of Title VII. After the Dukes class was decertified by the United States Supreme Court in 2011, Plaintiff filed a charge of discrimination with the EEOC in May of 2012, alleging sex discrimination. The EEOC issued a right-to-sue notice to Plaintiff on November 20, 2014.

In this litigation, Plaintiff alleges that she first worked for Defendant as a temporary employee in Bogalusa, Louisiana, between 1992 and 1993. Plaintiff was subsequently hired for a permanent position in Covington, Louisiana, where she began working in December 1997 as a Meat Wrapper and Case Worker. In 1999, Plaintiff transferred to the Seafood Department, where she worked as a Manager/Lead Associate, while also fulfilling duties in the Meat Department as needed. Plaintiff worked at that location until she resigned in 2005. In 2009, Plaintiff began working at a Wal-Mart in Mandeville, Louisiana, where she worked until 2011. There, she worked as a full-time Sales Associate in the Deli/Bakery Department, later transferring to a front-end cashier position for approximately one month before resigning in April 2011 for health reasons.

Plaintiff alleges that, during her time at the Covington store, she was hired by Manager Butch Hebert, who was responsible for overseeing the four separate departments within his division: meat, seafood, deli, and the “97 Wall,” or cold-cuts. At that time, Plaintiff claims, employees in the Meat Department could be assigned to four separate roles: Lead Associate, Meat Cutter, Meat Wrapper, and Case Worker. Plaintiff alleges that, although there was no formal restriction that female employees could not be assigned to the Lead Associate or Meat Cutter positions, Hebert excluded women from those positions, and in fact, during his 50 years in the meat cutting business, he never once had a female Lead Associate and had only one female Meat Cutter, who was hired before he arrived at Wal-Mart.

According to Plaintiff, Hebert’s refusal to assign women the duties of Lead Associate or Meat Cutter resulted in female employees receiving drastically lower pay, as those two positions were the highest-earning ones in the Meat Department. Plaintiff alleges that Hebert admitted to excluding women from the higher-earning positions because he did not believe they were fit to perform the “dangerous” job responsibilities of Meat Cutters, which involved using saws and knives, nor the physical task of unloading pallets of meat from delivery trucks. Plaintiff alleges that Hebert not only excluded women from the higher earning positions, but also gave men additional responsibilities, improving their opportunities for advancement. For example, Plaintiff claims, Meat Cutters were trained in all departments within the division, not solely the Meat Department. Plaintiff alleges that the additional responsibilities and expectations were not required by Wal-Mart, but were imparted by Hebert in his sole discretion.

In addition, Plaintiff argues that she was paid less than male employees in her same position. According to Plaintiff, during her time as a Meat Wrapper and Case Worker, she earned between $6.00 and $7.61 per hour, while two male comparators, Dennis Larsen and Merlin Galey, were paid more, with Larsen earning as much as $9.26 as a Case Worker, and Galy earning $8.52 in the same position. Plaintiff claims that the pay disparities continued when she moved to the Seafood Department in October 1999, which Hebert encouraged her to do. According to Plaintiff, she ended up performing all the duties of a Lead Associate within the Seafood Department, but did not receive the title, nor any additional prestige or pay. Plaintiff avers that her role was seen as simply taking “a little load off’ Hebert’s “assigned” Lead Associate, Chris DeLuca, but that she earned between $7.62 and $11.59 per hour, while DeLuca earned between $13.00 and $16.50 per hour during the same period. Plaintiff claims that she even earned less than male employees who worked as Sales Associates, including Galy.

Plaintiff argues that the pay disparities worsened after 2001, when Defendant switched to pre-packaged meat, eliminating the need for the Meat Cutter responsibilities. Plaintiff argues that the Meat Cutters no longer performed the “skilled” duties of cutting meat, and were reassigned to Sales Associate positions that were the same as those that had previously been performed by the lower-paid female employees. Nevertheless, Plaintiff argues, the male Meat Cutters retained their higher hourly pay, which resulted in a significant pay gap, with Plaintiff earning between $9.08 and $9.53 per hour in April 2001, and male employees who had previously cut meat earning, on average, between $1 and $4 per hour more than Plaintiff.

B. Procedural Background

Plaintiff initially filed a complaint in this matter, along with two other plaintiffs, Carasha Isaac and Yalile Leal, on February 12, 2015. On October 14, by joint stipulation of the parties, this Court severed Isaac and Leal’s cases from Plaintiffs case. On April 12, 2016, Defendant filed the instant motion for summary judgment. Plaintiff filed an opposition and a request for oral argument on April 19, 2016. On April 27, 2016, the Court heard oral argument, and Defendant filed a reply with leave of Court. On April 28, 2016, the Court ordered the parties to submit supplemental briefing on issues raised during oral argument, including the standard to be applied in determining whether Plaintiff had established a prima facie case and the timeliness of Plaintiffs claims dating from December 1998 to August 2000. On May 4 and 11, 2016, Plaintiff and Defendant filed supplemental memoranda. With leave of Court, Defendant filed an additional supplemental memorandum on September 16, 2016, and Plaintiff filed a response memorandum on September 29, 2016. On October 12, 2016, again with leave of Court, Defendant filed a reply to Plaintiffs response, and on October 21, 2016, Defendant filed a supplemental sur-reply memorandum in support of its motion for summary judgment.

II. Parties’ Arguments

A. Defendant’s Motion for Summary Judgment

In support of summary judgment, Defendant argues that Meat Cutters were skilled laborers with years of experience as trained butchers, who cut and processed meat using saws, knives and other meat-cutting equipment and were responsible for performing any other jobs that needed to be performed in the Meat, Seafood, or 97 Wall departments, including cleaning, loading and unloading meat from trucks, meat wrapping, and customer service. According to Defendant, Meat Wrappers and Case Workers, on the other hand, performed the unskilled job of wrapping meat, pulling stressed meat from the meat case, and maintaining the meat case.

Specifically with regard to Plaintiff, Defendant claims that, by the time she resigned in March 2005 following a dispute with Hebert, she was earning $11.59 per hour, double her starting salary from December 1997. Defendant argues that, because Plaintiff was the only associate that performed her job duties in the Seafood Department, there were no males who received higher pay for performing the same job, and Plaintiff admits she was not subject to pay discrimination while in the Seafood Department.

According to Defendant, Plaintiff filed an EEOC charge in May 2012, but did not identify any specific dates or acts of alleged gender discrimination, or any facts such as her job, pay rate, the alleged pay rates that male associates performing the same job may have received, or the qualifications or experience of any comparators or the identity of any decision makers. Defendant alleges that, when the EEOC asked Plaintiff to provide specific facts regarding her claims, the only additional information she provided was that she believed that men received higher raises and bigger bonuses, and that at the Covington store, men were Meat Cutters and women were Meat Wrappers, who earned less money despite having more responsibilities. According to Defendant, Plaintiff alleged that there was only one female Meat Cutter in Covington, and that she did not last long because the male Meat Cutters commented that it “didn’t look right for a woman to be cutting the meat.” Nevertheless, Defendant contends, Plaintiff did not identify any male comparators, her job titles or pay rates, or the dates of any alleged discrimination, and her charge was dismissed on November 20,2014.

Defendant avers that Plaintiff cannot state a prima facie claim against Defendant under Title VII, and that, in addition, her claims are either procedurally barred based on her failure to exhaust her administrative remedies, or are untimely. Defendant first argues that, to establish a prima facie case of gender-based pay discrimination, a plaintiff must show that she performed a job that required equal skill, effort and responsibility as the work performed by higher paid workers of the opposite sex, after which the burden shifts to the employer to demonstrate that the disparate wage payments were made pursuant to a: (1) seniority system; (2) merit system; (3) system which measures earnings by quantity or quality of production; or (4) differential based upon any factors other than sex. According to Defendant, such factors can include “[djifferent job levels, different skill levels, previous training, and experience.” Once an employer carries its burden of production, Defendant asserts, the plaintiff must prove by a preponderance of the evidence that the employer’s reasons are a mere pretext for discrimination.

Here, Defendant claims, Plaintiff has dismissed her claim relating to the Mande-ville store, and therefore, her remaining claim regarding the Covington store is based solely on her opinion that she should have been paid as much as a Meat Cutter because she feels that Meat Wrappers had more responsibilities. However, Defendant avers, Plaintiff cannot establish a pri-ma face case of gender discrimination because it is undisputed that the Meat Cutter and Meat Wrapper jobs were substantially different, and Plaintiff was not paid less than any similarly situated male who performed the same job. Defendant argues that Plaintiff was not discriminated against at the Covington store because, even taking as true Plaintiffs opinion that Meat Wrappers had “more work to do” than Meat Cutters, it is undisputed that being a Meat Wrapper did not require the same level of skill, training, experience, or responsibility as being a Meat Cutter.

According to Defendant, the Meat Wrapper job was an unskilled position that required no experience and simply involved wrapping meat and maintaining the meat ease, whereas Meat Cutters were skilled professional butchers with years of training and experience, who cut the meat using saws and other dangerous equipment, unloaded the trucks, stacked pallets, cleaned the departments, wrapped meat, served customers, and performed any duties necessary in the Meat, Seafood, and “97 Wall” departments. Therefore, Defendant claims, Meat Cutters were paid more than most other hourly associates at Defendant stores, as they were capable of performing every job duty in every department under Hebert’s supervision, whereas Meat Wrappers could only perform their own job duties. Moreover, Defendant claims, Plaintiff cannot contend that the Meat Cutter position was open only to males, as she has acknowledged that there was a female Meat Cutter in Covington for a short time, and Plaintiff did not know whether that female Meat Cutter earned more or less than the male Meat Cutters. Defendant contends that although no women applied for a Meat Cutter position during Plaintiffs employment in the Meat Department, there was no rule or policy that prevented them from doing so, and in fact, Plaintiff admitted that she did not apply for the position because she was afraid of working with the meat saws.

Next, Defendant argues that Plaintiffs individual gender discrimination claims are procedurally barred and/or untimely. According to Defendant, a Title VII plaintiff must exhaust administrative remedies before commencing an action in federal court, which occurs when a plaintiff files a timely charge with the EEOC and receives a statutory notice of the right to sue. Defendant avers that “[i]n order to exhaust administrative remedies, the claimant is required to demonstrate good faith participation in the administrative process, which includes making specific charges and providing information necessary to the investigation.” Defendant argues that a Title VII claim is limited to the scope of the plaintiffs administrative charge and to the EEOC investigation that could reasonably be expected to grow out of the charge.

According to Defendant, the plain language of 42 U.S.C. § 2000e-5 states that a person filing an EEOC charge must provide adequate notice of the alleged unlawful employment practice, including the date, place and circumstances of the alleged unlawful employment practice. Defendant avers that the Supreme Court has declared that in order to satisfy administrative requirements, a charging party must timely allege each separate and distinct discriminatory act in her charge or lose the ability to recover for it. Here, Defendant argues, Plaintiffs EEOC charge was legally deficient because it did not identify any alleged unlawful employment practice, much less any specific act of discrimination, when the alleged discrimination occurred, who received more favorable treatment, or who made the pay or promotion decisions. Instead, Defendant asserts, Plaintiff simply identified herself as a former Dukes class member who was employed by Wal-Mart from 1997-2011, and her charge was therefore completely devoid of individual factual allegations, thus failing to meet the statutory requirements. Furthermore, Defendant argues, Plaintiff failed to demonstrate good faith participation in the administrative process because she failed to provide necessary information requested by the EEOC to investigate her charge. Defendant argues that Plaintiffs vague allegations to the EEOC could not have put Defendant on notice about any specific act of alleged discrimination, and Plaintiff additionally failed to perfect her charge by failing to cooperate in the proceedings and failing to provide the bare minimum of facts requested by the EEOC.

Finally, Defendant contends that even if Plaintiffs claims were not procedurally barred, her claims relating to alleged pay discrimination between December 1997 and August 23, 2000, are time-barred because any claims based on conduct that allegedly occurred prior to August 23, 2000, or three hundred days before the Dukes class action lawsuit commenced on June 19, 2001, were already time barred when the Dukes class action complaint was filed.

B. Plaintiff’s Opposition to the Motion for Summary Judgment

In opposition, Plaintiff first describes the procedural background of this case, and alleges that, when the initial Dukes class was certified, the Court chose December 26, 1998, as the date from which the 300-day filing period preceding the EEOC charge filed by the named plaintiff, Stephanie Odie, would run. Thereafter, Plaintiff avers, once the Supreme Court decertified the Dukes class action, Wal-Mart agreed to extend the tolling of the statute of limitations to “all whose claims were raised by the class certification.” According to Plaintiff, Defendant agreed that all whose claims were raised by the class certification could “start the clock fresh” under the applicable EEOC filing period, even with respect to former class members who never filed EEOC charges. Plaintiff contends that the district court then extended the tolling period and ordered that former class members who had never filed an EEOC charge would have until May 25, 2012, to file charges with the EEOC in states that had 300-day limits, such as Louisiana. Therefore, her claims are not time-barred.

Plaintiff argues that genuine issues of material fact preclude summary judgment on her sex discrimination claim. According to Plaintiff, in order to establish a prima facie case of discrimination, she must prove that she was a member of a protected class and that she was paid less than a non-member for work requiring substantially the same responsibility. Plaintiff claims that it is central that she and the alleged comparator were similarly situated from the perspective of the employer at the time of the relevant employment decisions. Here, Plaintiff avers, she can easily establish a prima facie case of sex discrimination because she: (1) received unequal pay as a result of discriminatorily motivated sex-segregated job classifications within the Meat Department; and (2) experienced pay discrimination due to male comparators within her same positions—Meat Wrapper/Case Worker, department Manager/Lead Associate, and Sales Associate—earning higher pay despite performing the same job responsibilities.

Regarding job classifications, Plaintiff alleges that during Hebert’s 20 years as Meat Department Manager, he never assigned a female employee to the positions of Lead Associate or Meat Cutter, and instead, women like Plaintiff were concentrated in lower paying roles like Meat Wrappers and Case Workers. According to Plaintiff, Hebert thought she was an excellent employee but nevertheless never assigned her to cut meat, and as a result she earned substantially less than males who cut meat, which is alone sufficient to raise an inference of discrimination. Plaintiff contends that Hebert’s discrimination is not only inferred from statistics, but also is confirmed by his own words, quoting deposition testimony in which Hebert stated that he had never asked female Case Workers to load or unload trucks “because of their stature” and that Meat Cutters work with “dangerous saws ... [and] knives all day long.” Plaintiff asserts that Hebert believed that the nature of some of the duties required of a Meat Cutter were inherently incompatible for female employees to complete by virtue of their gender, and alleges that gender stereotyping permeated the Meat Department, quoting Lead Associate Chris DeLuca as stating that men were stronger and could unload pallets better than women, and James Duncan, a Meat Cutter, saying that women could not “throw a truck” because of the weight of the boxes. According to Plaintiff, this gender stereotyping effectively precluded women from earning higher pay, training opportunities, and overall advancement opportunities.

Plaintiff argues that Defendant has oversimplified her claim by insisting that the “determinative issue” is whether the Meat Cutter and Meat Wrapper were “essentially the same.” Plaintiff asserts that this argument incorrectly assumes that the job classifications in question were legitimate and non-discriminatory. Plaintiff argues that Defendant was unable to produce a single job description for the different categories of workers, and asserts that Defendant’s pay data undisputedly illustrates that every employee within the Meat Department was categorized in the same position, as a “processor,” which was later reclassified to “Sales Associate.” Therefore, Plaintiff contends, she and her male coworkers were similarly situated “from the perspective of the employer.” However, Plaintiff argues, the data shows that male processors were paid substantially more than female processors, demonstrating that the classification system was built on a foundation of unlawful gender stereotypes.

According to Plaintiff, Defendant’s explanations for the alleged disparities are pretextual. Plaintiff rebuts Defendant’s argument that the difference in pay was due to the fact that Meat Cutters were skilled professionals by arguing that Hebert himself has testified that a person did not need prior cutting experience to be considered for the Meat Cutter position. In fact, Plaintiff avers, Hebert himself could simply train a Meat Cutter with no prior experience, which Hebert allegedly admitted to doing with other employees. Plaintiff cites Babrocky v. Jewel Food Co., a Seventh Circuit case she claims concluded that total sex segregation of Meat Cutters and Meat Wrappers raised a strong inference that the defendant was discriminatory where no special qualifications were needed to become apprenticed as a Meat Cutter. Here, Plaintiff argues, although she had no prior cutting experience, that was not a barrier to her according to Hebert’s testimony, and therefore, the only barrier was his own discriminatory animus regarding what he believed women could and should do by virtue of their gender.

Similarly, Plaintiff alleges, although Defendant argues that no women applied for the Meat Cutter position, Hebert admitted that he did not post job openings for

Meat Cutters, and instead often self-selected replacements without mentioning the openings to Covington employees. Furthermore, Plaintiff avers, Hebert openly prohibited women in the Meat Department from doing some of the jobs required of the Meat Cutter, such as unloading trucks, because of their gender, and the only woman who was ever permitted to act in any type of Meat Cutter capacity was a temporary employee who ultimately complained of gender discrimination and left the store. Plaintiff again relies on the Seventh Circuit decision in Babrocky for the proposition that, “[b]e-cause an employer may create an atmosphere in which employees understand that their applying for certain positions is fruitless, even nonapplicants can in appropriate circumstances qualify for relief under Title VIL”

Next, Plaintiff avers that in each of her three positions, she was paid less than male employees performing the same job responsibilities. First, Plaintiff avers that as a Meat Wrapper/Case Worker between December 1997 and October 1999, she earned between $6.00 and $7.61 per hour, but as Hebert only assigned female employees to the Meat Wrapper position, there are no male comparators in that position. However, Plaintiff claims, there are two male comparators who were assigned to the Case Worker position, Merlin Galy and Dennis Larsen. According to Plaintiff, Defendant’s records show that although Plaintiff was hired just six months after Galy, Plaintiff had more than a year of previous experience with Defendant, neither Galy nor Plaintiff cut meat, and both Galy and Plaintiff were characterized as “processors,” Galy nevertheless earned $7.50 per hour as of December 1997, whereas Plaintiff earned just $6 per hour. Thus, Plaintiff argues, even though she and Galy were similarly situated, the disparity in their pay persisted until Galy moved to the Seafood Department in August 1999, at which point he earned $8.52 per hour and Plaintiff earned $7.61 per hour. Similarly, Plaintiff avers, Larsen was a Case Worker/Sales Associate in the Meat Department, and although they were similarly situated, Larsen earned as much as $9.26 per hour, while Plaintiffs highest pay in the same position was $7.61 per hour.

Furthermore, Plaintiff avers, the pay disparities continued when she assumed the responsibilities of Manager of the Seafood Department, even though no official Manager/Lead Associate position existed. According to Plaintiff, Hebert stated that he encouraged Plaintiff to take on the Seafood Department Manager position because it was the highest paid position she could get at that time. Although, Plaintiff argues, she could have earned more money if she cut meat, and there was in-store training available in which Plaintiff could have acquired the necessary skills to cut meat, Hebert never suggested to Plaintiff that she cut meat. According to Plaintiff, although Hebert explained that he never asked her to cut meat because she never asked, she also never asked to work in the Seafood or Deli departments, but Hebert nevertheless encouraged her to do so, and also later stated “that meat cutting position isn’t for everyone.”

Furthermore, Plaintiff argues that even with Hebert’s stated purpose of ensuring that she earn more money, she was still paid less than her male comparators after assuming the duties of Seafood Department Manager. According to Plaintiff, Chris DeLuca earned $3 per hour more than Plaintiff for performing the same duties, even though both were employed in the same department, in the same store, and were supervised by the same individual. Plaintiff alleges that she was also paid less than male Sales Associates within the Deli Department, namely Galy, who earned $8.52 per hour in October of 1999 whereas Plaintiff was paid $7.61.

In addition, Plaintiff avers that although Defendant asserts that she has not contended that she was subject to discrimination within the Seafood Department, in fact, Plaintiff has stated that she did not feel she was compensated fairly, and did not previously have any awareness, now supported by data, that there were pay discrepancies. Plaintiff argues that, in light of the fact that she did not have pay data available to her, and that Defendant prohibited discussing pay in the workplace, it is unsurprising that she would later testify that it was “kind of hard to say” whether there were pay discrepancies, but that she “felt” like she deserved more. Plaintiff avers that “Defendant covered up its own discriminatory practices at the time, and now attempts to benefit from its illegal policies,” and therefore Plaintiffs testimony does not constitute an admission. Notably, Plaintiff alleges, although in April 2001 Wal-Mart switched to prepackaged meat, eliminating the need for Meat Cutter responsibilities, the male employees who were former cutters were reassigned to Sales Associate positions but continued to retain their higher hourly pay.

Finally, Plaintiff argues that she has exhausted her administrative remedies and her claims are timely. According to Plaintiff, she is entitled to rely on Stephanie Odle’s charge of Discrimination, which was filed in October 1999, to establish the timeliness of her own EEOC charge. Plaintiff avers that it is undisputed that Odie filed a timely EEOC charge in October 1999 that underlies the allegations in Dukes, and the scope of the Dukes class was set in reference to her October 1999 charge, encompassing conduct occurring on or after December 26, 1998—300 days prior to Odle’s charge. Plaintiff contends that under the single filing rule, she is entitled to rely on Odle’s original charge to establish the timeliness of her own charge, and therefore her charge is timely even with respect to conduct occurring prior to August 23, 2000, because her charge relates back to Odle’s charge and the time period it covered. Furthermore, Plaintiff argues that although Defendant has argued on three separate occasions that the single-filing rule should not apply to Dukes claims, the argument was rejected twice by the district court in Dukes, and rejected separately by the District of Minnesota in Catlin v. Walr-Mart Stores, 7%c.Therefore, Plaintiff argues, Defendant is es-topped from now litigating the issue a fourth time.

Next, Plaintiff contends that she set forth sufficient detail in her EEOC to administratively exhaust her remedies by stating that she was a member of the Dukes class, that her EEOC charge pertained to conduct encompassed by the certified class, and by identifying: (1) the stores where she worked; (2) her dates of employment; (3) that she was an hourly employee; (4) the type of discrimination alleged; and (5) the context of Defendant’s discriminatory conduct, as well as by answering a questionnaire provided by the EEOC. Therefore, Plaintiff argues, she participated in good faith in the administrative process and provided sufficient detail to put Defendant on notice of the practices complained of and where they occurred. Moreover, Plaintiff avers, the law did not require her to “recite a specific incantation” or “allege a prima facie case before the EEOC.” Therefore, Plaintiff argues, she gave a clear and concise statement of the facts, and no more detail was required.

C. Defendant’s Reply in Support of Summary Judyment

In its reply to Plaintiffs opposition, Defendant argues that Plaintiff failed to identify any disputed issues of material fact. Defendant asserts that Plaintiff was not discriminated against in the Meat Department, because there was no segregation of job duties based on gender. Defendant again emphasizes that Meat Cutters were skilled laborers who took years to learn their trade, while Meat Wrappers were unskilled workers who were simply required to wrap meat and maintain the meat case. Contrary to Plaintiffs characterization of Hebert’s testimony, Defendant argues, Hebert never once suggested that he excluded women from any positions. Rather, Defendant contends, Hebert simply suggested that he did not have women Meat Wrappers unload trucks because that was a Meat Cutter duty.

Defendant further argues that the current matter is entirely distinguishable from the case cited by Plaintiff, Babrocky v. Jewel Food Co. Unlike the Plaintiff here, Defendant asserts, the Babroclcy plaintiffs alleged that the defendant employer had a pattern and practice of discriminatory hiring and that female employees knew it was futile to apply for certain positions. The fact that neither Plaintiff nor any other female employee applied for a Meat Cutter position, Defendant argues, does not establish that Meat Department jobs were segregated by gender. It is critical, Defendant maintains, that there was a female Meat Cutter in this case and that there were male Meat Case Workers, below the Meat Wrappers in the Meat Department hierarchy. Moreover, Defendant argues that Plaintiff did not apply for a Meat Cutter position, because she did not want to be a Meat Cutter. Defendant notes that neither Plaintiff nor any other female ever complained about gender discrimination at the Covington store. Moreover, Defendant argues that the Meat Department Manager Hebert was in no way required to encourage her to apply for a job.

Defendant next argues that Plaintiff was not paid less than similarly situated comparators in the Meat Department. Although Plaintiff claims that two other males, Merlin Galy - and Dennis Larsen, were also Meat Case Workers, Defendant argues, Hebert identified Galy as a Meat Cutter and Larsen was not hired until Plaintiff moved to the Seafood Department. Furthermore, Defendant contends that Plaintiff can only assume that Galy and Larsen were Meat Case Workers based on their employment histories produced in discovery, but according to Defendant, it is “essentially impossible” to accurately determine from those employment histories what jobs they held and when. If Galy was a Meat Cutter, Defendant argues, he deserved to be paid more. Even if Galy performed similar duties as Plaintiff, Defendant argues, it wouldn’t matter, because the only other Meat Wrapper identified by Plaintiff, Kelly Blanchard, was a female and made more than Galy and more than some of the Meat Cutters. Because Blanchard, a female, was paid more than any of Plaintiffs purported comparators, Defendant contends, Plaintiffs alleged pay disparity could not have been based on gender.

Defendant next argues that Plaintiff “expressly and unequivocally” testified that she was not discriminated against during her time in the Seafood Department because she did not have any comparators who performed her same job duties. The only two Seafood Department associates identified by Plaintiff, Doug and Paula, both reported to Plaintiff and were paid less than her, according to Defendant. Defendant contests Plaintiffs claim that Galy was a comparator in the Seafood Department and asserts that even if he was a comparator, Galy was paid less than Plaintiff at various times. Defendant further argues that Plaintiff never became a Department Manager/Lead Associate when she moved to the Seafood Department, and as a result, Chris DeLu-ca, the Lead Associate over the Meat and Seafood Departments, is not a comparator and should not have been paid the same as Plaintiff. Defendant also maintains that Plaintiff was not adversely affected when the Meat Cutter job was eliminated in approximately 2001 and Meat Cutters were permitted to keep their higher salaries, because she was never similarly situated to the Meat Cutters and Plaintiff would have no way to determine which jobs the former Meat Cutters performed since they were all classified as Sales Associates.

Finally, Defendant argues that Plaintiffs claim for gender discrimination while working in the Seafood Department is barred because it is clearly outside the scope of Plaintiffs EEOC charge, which Defendant argues related only to pay disparities between Plaintiff and Meat Cutters. Moreover, Defendant argues, Plaintiffs EEOC charge did not contain any facts other than her dates and locations of employment, and the supplemental facts she added to her EEOC complaint were “insufficient to constitute a viable EEOC charge.” Finally, Defendant argues that some or all of Plaintiffs claims are untimely and that Plaintiffs opposition to the motion for summary judgment did not contest Defendant’s argument that the tolling of Plaintiffs claim began with the filing of the Dukes class action lawsuit and would only toll claims for conduct on or after August 23, 2000. Even if Plaintiff is correct that tolling would extend to the period from December 26, 1998, onward, Defendant argues, Plaintiff admits that any claims arising before December 26, 1998, would be time barred.

D. Plaintiff’s May 4, 2016, Supplemental Memorandum in Opposition to the Motion

In her May 4,2016, supplemental memorandum in opposition to the motion for summary judgment, Plaintiff argues that Defendant violated Title VII in two ways. First, Plaintiff argues that she received unequal pay as a result of discriminatorily motivated sex-segregated job classifications within the Meat Department and was precluded from higher earning positions in the Meat Department and paid less than male employees performing substantially similar job functions within the Meat Department. Second, Plaintiff argues that she experienced pay discrimination when she was transferred to the Seafood Department and assumed duties of the Seafood Department Manager/Lead Associate. Plaintiff asserts that she was paid less than the male Lead Associate in her same division and a meat Sales Associate in her own department during the same time period.

In order to establish a prima facie case, Plaintiff argues, she must show that she “was a member of a protected class and that [she] was paid less than a non-member for work requiring substantially the same responsibility.” Plaintiff maintains that she need not prove that she is “identical” to an alleged comparator and that instead, all that is required is “near identity.” What is important, Plaintiff asserts, is that a plaintiff and an alleged comparator are similarly situated from the perspective of the employer at the time of the relevant employment decisions. Plaintiff states that a plaintiff can prove intentional discrimination under Title VII with either direct or circumstantial evidence, and in this case, Plaintiff maintains that she has provided circumstantial evidence of intentional discrimination.

When circumstantial evidence of discrimination is presented, Plaintiff argues, the McDonnell Douglas framework applies. Plaintiff asserts, however, that the McDonnell Douglas framework was intended to be a flexible one and that no single formulation of the prima facie evidence test may fairly be expected to capture the many guises in which discrimination may appear. The ultimate inquiry, according to Plaintiff, is whether she has set forth sufficient evidence that may lead a reasonable fact-finder to infer discrimination. The importance of the McDonnell Douglas framework, Plaintiff argues, is not “its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion.

The Fifth Circuit has held, Plaintiff argues, that a more flexible burden-shifting standard should be applied when necessitated by the particular facts of a case. Plaintiff asserts that one way that she can prove gender discrimination is through comparator evidence, which allows her to meet her prima facie case without applying a more flexible burden-shifting standard. Regarding Plaintiffs claims of sex-segregated job classifications, Plaintiff argues that the Court could find under a more flexible burden-shifting standard that she has offered sufficient evidence to create an inference that Defendant’s employment decisions were motivated by illegal criterion, and according to Plaintiff, that is all that is required to overcome summary judgment. Finally, Plaintiff argues that Defendant’s purported treatment of female Meat Department employee Kelly Blanchard has no bearing on the validity of Plaintiffs discrimination claims, because the primary focus of Title VII is the protection of the individual employee, rather than the protection of the minority group as a whole. As a result, Plaintiff contends, Defendant cannot escape liability for discriminating against Plaintiff even if it can prove that it treated other female employees in a favorable manner.

E. Defendant’s May 4, 2016, Supplemental Memorandum in Support of the Motion

In its May 4, 2016, supplemental memorandum in support of the motion for summary judgment, Defendant argues that the Court should reject the reasoning of the District of Minnesota in Catlin v. Wal-Mart Stores, Inc. and hold that Plaintiffs claims arising before August 23, 2000, are time-barred. Instead of applying the reasoning in Catlin, Defendant argues, the Court should apply the reasoning of a Northern District of Alabama decision, Cooks v. Wal-Mart Stores, Inc. According to Defendant, Cooks addressed the specific issue before the Court, ie. the circumstances that permit a Title VII plaintiff to “piggyback” in relation to an EEOC charge filed by another person. On the other hand, Defendant argues, Cat-lin addressed the issue of whether a plaintiff, who was no longer employed by Wal-Mart when the Dukes class action was filed, was a former class member entitled to American Pipe tolling, which, according to Defendant, is not at issue in this case.

Defendant asserts that the district court in Cooks properly determined that the plaintiff, a putative member of the originally proposed class in Dukes, could not piggyback on the named plaintiffs EEOC charge, because the plaintiff could not establish that she was entitled to do so under Eleventh Circuit precedent, which requires the individual claims of the filing and non-filing plaintiff to arise out of similar discriminatory treatment in the same time frame. Defendant asserts that because the named plaintiff in the Dukes case (Stephanie Odie) did not raise any disparate pay issues in her EEOC charge, the court held that the Cooks plaintiffs claims of disparate pay could not piggyback on Odle’s EEOC charge.

Defendant argues that the “single filing rule” in the Fifth Circuit is similar to the Eleventh Circuit standard, because “the plaintiff must be similarly situated to the person who actually filed the EEOC charge.” Defendant argues that Plaintiff, like the plaintiff in Cooks, is only asserting a claim for gender pay discrimination. As a result, Defendant maintains, Plaintiff is not similarly situated to Odie and may not piggyback on Odle’s charge under the Fifth Circuit standard. Defendant argues that the Court should reject the Catlin court’s conclusion that former Dukes class members’ claims were tolled from the date of the filing of Odle’s EEOC charge in October 1999, because the district court in that case did not consider the elements necessary for the single-filing exception to apply in the Fifth Circuit. Finally, Defendant argues that even under the reasoning in Catlin, the tolling of claims was extended to the date Odie filed her EEOC charge on October 22, 1999. Thus, Defendant contends, any of Plaintiffs claims arising before the filing of Odle’s EEOC charge are time-barred.

F. Plaintiffs May 11, 2016, Supplemental Memorandum in Opposition to the Motion

In Plaintiffs May 11, 2016, supplemental memorandum in opposition to the motion for summary judgment, she argues that her claims are not time-barred and that the Court should adopt the reasoning set forth in Catlin regarding the timeliness of Plaintiffs claims. Plaintiff contends that her EEOC charge relating to conduct pri- or to August 23, 2000, is timely because her charge relates back to Stephanie Odle’s charge. Plaintiff argues that the Cooks decision to the contrary is an outlier and is inconsistent with other federal court decisions on the issue. Plaintiff notes that in Leal v. Wal-Mart Stores, Inc., a magistrate judge in the Eastern District of Louisiana also concluded that a former Dukes class member could rely on Odle’s EEOC charge, which included conduct occurring on or after December 26, 1998.

Next, Plaintiff argues that Cooks has no bearing on her ease, because it was determined under Eleventh Circuit law, while Leal was decided under Fifth Circuit precedent. Moreover, according to Plaintiff, the Cooks court based part of its analysis on a Norther District of Texas decision, which was later reversed and remanded by the Fifth Circuit. Finally, Plaintiff concludes that the Cooks court reasoning was simply incorrect and inconsistent with the definition of the Dukes class certified by the district court, which expressly includes “all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998. Plaintiff argues that the Court should adopt the reasoning set forth in Catlin and Leal to hold timely Plaintiffs claims from December 26, 1998, to August 28, 2000.

G. Defendant’s May 11,2016, Supplemental Memorandum in Support of the Motion

In its May 11, 2016, supplemental memorandum in support of the motion for summary judgment, Defendant argues that Plaintiff cannot establish a prima facie case of discrimination. Defendant argues that it is undisputed that the Meat Wrapper job did not require equal skill, effort, or responsibility as the Meat Cutter job and that Plaintiff consequently cannot establish a prima facie case of pay discrimination. Another reason Plaintiff cannot establish a prima facie case of pay discrimination, Defendant argues, is that Plaintiff was paid more than two male Meat Case Workers for the same time period. Moreover, Defendant asserts, Plaintiffs testimony, supported by the testimony of “all other witnesses,” confirmed that there was only one other person in the Meat Department who was similarly situated to Plaintiff, the other Meat Wrapper, Kelly Blanchard. Because she was paid more than any male Meat Department Associate that was not a Meat Cutter and even more than some Meat Cutters, Defendant argues, Plaintiff cannot establish a prima facie case of gender pay discrimination relating to her employment as a Meat Wrapper. Defendant also argues that Plaintiff cannot maintain a discrimination claim relating to her employment in the Seafood Department because she testified that she was treated fairly while working in the Seafood Department and that she did not have any comparators.

Next, Defendant argues that no Fifth Circuit decisions cited by Plaintiff applied the McDonnell Douglas framework in a flexible way. Even if the Court were to apply a flexible standard and Plaintiff could establish a prima facie case of discrimination, Defendant argues, there were legitimate reasons for Plaintiffs pay other than sex and “there is absolutely no evidence in the record of any kind of gender discrimination whatsoever.” Defendant argues that Plaintiffs circumstantial comparator evidence fails, because it is undisputed that Meat Cutters were experienced and deserved higher pay and that there were male Meat Case Workers who were paid less than Plaintiff. Defendant further argues that there is no support for Plaintiffs allegations of sex-segregated job classification, because evidence confirms that there was a female Meat Cutter, that Hebert would have hired a female Meat Cutter but none applied, and that Plaintiff and Blanchard were paid more as Meat Wrappers than the identified male Meat Case Workers. Defendant also argues that Plaintiff has not identified any discriminatory act suggesting that gender played a role in Plaintiffs pay. Finally, Defendant argues that Blanchard’s pay precludes Plaintiffs gender discrimination claim, because a female plaintiff cannot show wage discrimination based on sex when the second highest paid person performing the same job is a female.

H. Defendant’s September 16, 2016, Supplemental Memorandum in Support of the Motion

In its September 16, 2016, supplemental memorandum in support of the motion for summary judgment, Defendant alerts the Court that the portion of the Eastern District of Louisiana decision relied upon by Plaintiff in arguing the timeliness of her claims has been reversed. In granting in part Defendant’s motion to reconsider, Defendant asserts, the magistrate judge modified the original order to find that tolling of plaintiff Leal’s claims extended from the filing of Odle’s EEOC charge in October 1999, but not to the three hundred days before that filing. Defendant states, however, that the magistrate judge did not modify the original finding that Leal could piggyback on Odle’s EEOC charge. Defendant argues that because Plaintiff did not complain of the same discriminatory treatment as Odie and Leal, the Court should not allow Plaintiff to piggyback on Odle’s EEOC charge. Defendant maintains that Plaintiffs claims arising prior to August 23, 2000, are time-barred. Finally, Defendant contends that no decision, including Catlin, has found that statute of limitations tolling for former Dukes class members extends to December 1998. Instead, even if the Court applies the reasoning of Catlin, Defendant argues, Plaintiffs claims cannot be tolled beyond October 22, 1999.

I. Plaintiff’s October 3, 2016, Supplemental Memorandum in Opposition to the Motion

In her October 3, 2016, supplemental memorandum in opposition to the motion for summary judgment, Plaintiff argues that a plaintiff claiming discrimination under Title VII must first file a charge of discrimination with the EEOC or, under the single file rule, rely on the timely-filed charge of another similarly situated claimant. Either way, Plaintiff argues, a filed charge of discrimination does two things by operation of law: (1) tolls the statute of limitations and (2) encompasses as timely all causes of action arising during the 300-day period preceding the filed charge of discrimination. Plaintiff agrees with the magistrate judge’s holding in Leal that the plaintiff could rely on Odle’s timely-filed October 22, 1999, EEOC charge, but contends that the Leal court incorrectly declined to treat as timely the plaintiffs claims arising during the 300 days preceding October 22, 1999. Plaintiff argues that the Court should reject the Leal court’s reasoning and allow Plaintiff to bring claims arising 300 days preceding the filing of Odle’s EEOC charge, rather than those claims arising 300 days preceding the filing of the Dukes class action lawsuit.

Plaintiff asserts that the Leal court’s order held that while Odle’s EEOC charge set the class period in Dukes to December 26, 1998, Odle’s EEOC charge did not extend the limitations period to December 26, 1998. According to Plaintiff, this means that the Leal plaintiffs claims were tolled only up to Odle’s EEOC charge date of October 22, 1999, and that any claims arising before that date were time-barred. Plaintiff contends that the Leal court’s ruling is an error of law and should not be adopted by the Court. Because the single file rule applies to claims arising from the same time frame, Plaintiff argues, the class period is not distinct from the tolling period; rather, the class period and tolling period are necessarily related because the class period is set by the applicable tolling time frame, as determined by the earliest filed charge of discrimination.

Under the single file rule, Plaintiff argues, timeliness is determined by the earliest filed EEOC charge, not by the date that suit was first filed. The Leal ruling, Plaintiff contends, is also at odds with the definition of the class in Dukes, which covers all employees working at Wal-Mart as early as December 26, 1998. According to Plaintiff, if she could have filed a timely EEOC charge on the same date Odie filed her charge, then her claims are timely; if not, her claims are time-barred. Because her claims arising between December 26,1998, and October 22, 1999, are within the 300-day statute of limitations for Title VII claims, Plaintiff argues, she could have filed a timely EEOC charge on October 22, 1999, and her claims are timely under the single file rule. FinaEy, Plaintiff asserts that Defendant is estopped from arguing against the application of the single filing rule in this case, because Defendant has, according to Plaintiff, made and lost the same timeliness arguments on four previous occasions.

J. Defendant’s Sur-Reply and Supplemental Sur-Reply to Plaintiff’s Opposition

In its October 12, 2016, sur-reply to Plaintiff’s October 3, 2Q16, supplemental memorandum in opposition to the motion for summary judgment, Defendant argues that the Leal court’s order is not manifestly erroneous and that Plaintiff has failed to identify any case that has directly held that the statute of limitations for the individual claims of former Dukes class members extends to December 26, 1998. Defendant argues that the cases cited by Plaintiff in her supplemental memorandum stand for the proposition that a plaintiffs class claims must begin no earlier than the three hundred days before the earliest filing of an EEOC charge by a class representative. According to Defendant, however, for individual claims after decertification of a class, exhaustion occurs from the date of tolling, ie. the filing of the earliest class member’s EEOC charge, to the period three hundred days later. Defendant asserts that none of the cases cited by Plaintiff address the issue presented here, the timeliness of a former class member’s individual claims after class decertification. Defendant also argues that it is not estopped from challenging the timeliness of Plaintiffs claims, because it did not previously litigate this specific issue in Catlin or Dukes.

In its October 21, 2016, supplemental sur-reply to Plaintiffs supplemental memorandum in opposition to the motion for summary judgment, Defendant alerts the Court that the Leal court issued an order denying the Leal plaintiffs motion for reconsideration of jits order that the plaintiffs claims did niot toll beyond October 22, 1999. According to Defendant, the Leal court did not find that Defendant was es-topped from asserting the timeliness argument in this case, because that issue had not been litigated in any prior case. Defendant also argues that Plaintiff, unlike the Leal plaintiff, cannot piggyback on Odle’s EEOC charge, because her claims are not similar to Odle’s claims of discrimination. According to Defendant, therefore, Plaintiffs claims arising before August 23, 2000, (300 days prior to the filing of the Dukes class action) are untimely.

K. Plaintiffs Response to Defendant’s Supplemental Sur-Reply

In her October 28, 2016, response to Defendant’s supplemental sur-reply, Plaintiff argues that under the single file rule, when a plaintiff relies on a named plaintiffs timely filed EEOC charge, the timely filed EEOC charge tolls the statute of limitations period for the non-filing plaintiffs claims and that the Court must “look back” to determine which of the non-filing plaintiffs claims fall within the applicable limitations period based on the date of the tolling.

Plaintiff further notes that the Leal court issued a decision denying reconsideration of its order holding that the Leal plaintiffs claims arising before the filing of Odle’s EEOC charge were untimely. In that decision by the Leal court, Plaintiffs argue, the magistrate judge determined that although a first-filed EEOC charge tolls the statute of limitations, the court should not look back to determine which claims fall within the applicable limitations period. Plaintiff asserts that the Leal court held that only those claims arising on or after the date that Odle’s EEOC charge was filed are timely and that the court found no contrary, binding authority in the Fifth Circuit. Plaintiff argues, however, that a Fifth Circuit decision, Pettway v. American Cast Iron Pipe Co., supports Plaintiffs position on the tolling of her claims.

Plaintiff asserts that Pettway involved a class action alleging discrimination claims under Title VII and concerned class members “both named and unnamed, who have filed or not filed complaints with the Equal Employment Opportunity Commission.” In determining the proper time frame for a back-pay award, Plaintiff argues, the Fifth Circuit affirmed that class members who had not filed an EEOC charge could rely on the timely charges filed by others. Plaintiff asserts that the Fifth Circuit held that the timely filed EEOC charges tooled the statute of limitations for all class members. Next, Plaintiff argues, the Fifth Circuit looked back from the date that the limitations was tolled to determine which claims were timely based on the applicable limitations period. Plaintiff asserts that the Fifth Circuit concluded that the back pay period was limited to the period within which the plaintiffs’ claims could extend. Thus, Plaintiff argues, there is binding Fifth Circuit precedent supporting Plaintiffs position that “a litigant’s reliance on the single-file or piggy-back rule does not change how the statute of limitations is applied.”

Plaintiff next argues that the Leal court’s decision was incorrect, because it disregarded the procedural history in the Dukes class action. Plaintiff asserts that the Leal court relied on language from Price v. Choctaw Glove & Safety Co., Inc., to incorrectly hold that the single file rule applies only to a party who did not file an EEOC charge and is trying to opt-in to a suit filed by a similarly situated plaintiff. Plaintiff asserts that under the Leal court’s reasoning, the single file rule is inapplicable to the Leal plaintiffs case because she is not attempting to opt-in to a class. Plaintiff argues that Price does not create such a limitation. Plaintiff further argues that the Leal plaintiffs case and her case “do not exist in a vacuum.” The district court in Dukes, Plaintiff argues, ruled that for putative class members like the Leal plaintiff and Plaintiff, Odle’s EEOC charge: “(1) tolls the statute of limitations; (2) sets the applicable class period; and (3) sets the timeliness or applicable limitations period of putative class claims.” Plaintiff further argues that when the Supreme Court decertified the Dukes class, Wal-Mart agreed that the tolling already established in Dukes would be extended and carry forward so that all class members could “start the clock fresh” and those class members who had not filed EEOC charges would have 180 or 300 days to file an EEOC charge, depending on the relevant statute of limitations in the class member’s state. Plaintiff contends that the Leal court either ignores or discounts the procedural history in Dukes.

III. Law and Analysis

A. Legal Standard for Summary Judgment

Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show that “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” When assessing whether a dispute as to any material fact exists, the court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conelusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,” then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. The nonmoving party may not rest upon the pleadings, but must identify specific facts in the record and articulate the precise manner in which that evidence establishes a genuine issue for trial.

The party seeking summary judgment always bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Thereafter, the nonmoving party should “identify specific evidence in the record, and articulate” precisely how that evidence supports his claims. To withstand a motion for summary judgment, the nonmoving party must show that there is a genuine issue for trial by presenting evidence of specific facts. The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by creating “some metaphysical doubt as -to the material facts,” “by conclusory allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.” Rathgr, a factual dispute precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence.

Defendant argues: (1) that Plaintiff failed to exhaust her administrative remedies and that her claims are time-barred and (2) that Plaintiff cannot establish a prima facie case of gender discrimination and that even if she could, Defendant has produced legitimate, non-discriminatory reasons for the sex segregation of job categories and Plaintiffs pay as compared to other employees. The Court will address Defendant’s procedural argument first and then turn to the merits of Plaintiffs gender discrimination claim.

B. Exhaustion of Administrative Remedies and Tolling of Statute of Limitations in Employment Related Class Actions

1. Applicable Law

The Fifth Circuit “has long required plaintiffs to exhaust their administrative remedies before bringing suit under Title VII.” In order to file suit under Title VII, a plaintiff must first file a charge with the EEOC within 300 days of the alleged discriminatory act. Once the EEOC issues a right-to-sue letter to the party who has filed the EEOC charge, that party has 90 days to file a Title VII action in federal court. However, literal compliance with this rule is not always required as “[ijt would be wasteful, if not vain,