En Banc Denied in Family Dollar; SCOTUS-Ignoring Opinion Stands

By William Peacock, Esq. on November 21, 2013 | Last updated on March 21, 2019

This case is now doubly-interesting, and a possible candidate for Supreme Court review.

Way back in 2008, a putative class of female store managers sued Family Dollar Stores, Inc., a chain of discount retail stores, alleging that they were paid less than their male counterparts, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and Section 216(b) of the Equal Pay Act of 1963, 29 U.S.C. § 206(d).

Last week, the Fourth Circuit denied a request for en banc rehearing of the case, leaving an opinion in place that many are arguing goes against controlling Supreme Court precedent. Judge Wilkinson, who wrote a 40-page dissent to the panel's opinion, dissented from the denial as well, calling the panel's decision, "so contrary to the [Supreme] Court's Wal-Mart decision as to whittle it down to near meaninglessness."

Class Commonality and Amended Complaints

After years of litigation, and after the plaintiffs relied on the Ninth Circuit's certification a similar class in Wal-Mart Stores v. Dukes, the Supreme Court essentially killed their case by holding that when the alleged discrimination was a product of localized store-by-store discretion, there was no commonality in a nationwide class.

When the plaintiffs tried to reverse tack, distinguish their case (discrimination by middle-managers), and amend their complaint, the district court dismissed the case, holding that Wal-Mart v. Dukes foreclosed their claims and that allowing them to amend their complaint after years of litigation was unfairly prejudicial to Family Dollar.

The Fourth Circuit, surprisingly, reversed. The majority held that Wal-Mart did not per se exclude class certification in discrimination cases. Instead, there must be some company-wide "specific employment practice" which "affected the class in a uniform manner." The majority also distinguished the Wal-Mart case by noting the difference between "lower-level employees, as opposed to upper-level, top-management personnel."

Instead of outright certifying the class, however, the court held that the plaintiffs should have been granted leave to amend, noting that much of the delay was caused the defendant Family Dollar's motions.

Judge Wilkinson: Drains SCOTUS Decision of Meaning

As Wilkinson sees it, this case is no different from Wal-Mart. He criticized the majority for assuming "that nearly 500 middle-managers somehow exercise their discretion in lockstep," and lamented that, "in the majority's view, middle managers at Family Dollar are purely robotic with respect to those they supervise, but no American company operates in such a way."

He also argued that it was unfair to force Family Dollar to "defend a wholly different suit three years after the original complaint was filed."

Larger Anti-SCOTUS Trend?

The Wall Street Journal notes that this isn't the first time in recent memory that a court essentially ignored a Supreme Court opinion. In addition to the Fourth Circuit "brush[ing] off a Supreme Court class-action ruling like a lapful of cracker crumbs," the Journal notes that in a pair of moldy washing machine class action cases, after the Supreme Court remanded the cases with class certification guidelines, the lower courts simply reinstated their prior opinions.

The Journal calls it a "war of attrition against lover-not-a-fighter Chief Justice Roberts."

What do you think? Is this part of a larger pattern of ignoring SCOTUS precedent, an aberration, or an simply overblown attempt to allow a party to amend its complaint in the wake of a major shift in Supreme Court law? Let us know your thoughts on LinkedIn.

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