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BRAD SELIGMAN (SBN 083838)
JOCELYN D. LARKIN (SBN 110817)
THE IMPACT FUND
125 University Avenue
Berkeley, CA 94710
Telephone:
(510) 845-3473
Facsimile:
(510) 845-3654
JOSEPH SELLERS
CHRISTINE WEBBER
COHEN, MILSTEIN, HAUSFELD & TOLL
West Tower – Suite 500
1100 New York Avenue
Washington, D.C. 20005-3964
Telephone:
(202) 408-4600
Facsimile:
(202) 408-4699
SHEILA Y. THOMAS (SBN 161403)
DORIS Y. NG (SBN 169544)
EQUAL RIGHTS ADVOCATES
1663 Mission Street, Suite 250
San Francisco, CA 94103
Telephone:
(415) 621-0672
Facsimile:
(415) 621-6744
STEPHEN TINKLER
MERIT BENNETT
TINKLER & BENNETT
309 Johnson Street
Santa Fe, New Mexico 87501
Telephone:
(505) 986-0269
Facsimile:
(505) 982-6698
STEVE STEMERMAN (SBN 067690)
ELIZABETH LAWRENCE (SBN 111781)
DAVIS, COWELL & BOWE
100 Van Ness Avenue, 20th Floor
San Francisco, CA 94102
Telephone:
(415) 626-1880
Facsimile:
(415) 626-2860
DEBRA GARDNER
PUBLIC JUSTICE CENTER
500 East Lexington Street
Baltimore, MD 21202
Telephone:
(410) 625-9409
Facsimile:
(410) 625-9423
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SHAUNA MARSHALL (SBN 90641)
HASTINGS COLLEGE OF THE LAW
200 McAllister Street
San Francisco, CA 94102
Telephone:
(415) 565-4685
Facsimile:
(415) 626-2860
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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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BETTY DUKES, PATRICIA SURGESON,
EDITH ARANA, DEBORAH GUNTER,
CHRISTINE KWAPNOSKI, CLEO PAGE,
KAREN WILLIAMSON, on behalf of
themselves and all others similarly situated,
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Plaintiffs
Case No. C-01-2252 MJJ
DECLARATION OF MELISSA
HOWARD IN SUPPORT OF
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
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vs.
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WAL-MART STORES, INC.,
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Defendant
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HOWARD DECLARATION RE: PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
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Case No. C-01-2252 MJJ
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I, Melissa Howard, declare:
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1. I have personal knowledge of the facts contained in this declaration and, if called as a witness,
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am competent to testify to those facts.
2. I am female and 35 years old. I live in Indianapolis, Indiana with my daughter, Mikaela, who is
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seven years old.
3. I was hired by Wal-Mart Stores in August 1992. I was placed as a department manager in
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Electronics in the New Castle, Indiana Wal-Mart store., earning $6.00 per hour. At the time I
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was hired, I had six years of retail experience with K-Mart, including supervisory experience as a
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department manager and support team manager.
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4.
I entered Wal-Mart’s Assistant Manager training program in June 1993 and was trained at the
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Muncie, Indiana store. When I started training, I wrote that my long-term goals were to work
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my way up the ladder to store manager, district manager and ultimately regional manager.
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Attached hereto as Exhibit A is a true and correct copy of March 23, 1993 trainee evaluation.
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5. Following my training, I returned as the Third Shift Assistant Manager to the Newcastle store,
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which meant that I worked nights managing unloading and stocking. I was transferred to the
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Watsecka, Illinois store where I was the Assistant Manager for Hardlines. I was the only female
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in management. Within the year, I was the Lead Assistant Manager, meaning that I was
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responsible for signatures and reports in the store manager’s absence. In February 1994, I
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received an “exceeds expectations” rating on my performance evaluation. I wrote on my
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evaluation that I wanted to be a store manager by the time I was 30, and then move up to district
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manager. Attached hereto as Exhibit B is a true and correct copy of my February 4, 1994
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evaluation.
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6. I resigned from Wal-Mart in September 1994 because of an incident with Regional Vice
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President John Waters. In the course of a store tour, Mr. Waters loudly berated me about
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designating plastic spoons as non-replenishable items. He yelled and belittled me in front of my
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hourly clerks as well as other management staff and questioned how I could be an assistant
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manager. The District Manager, John DiPasquale, who was also on the store tour, tried to come
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HOWARD DECLARATION RE: PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
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Case No. C-01-2252 MJJ
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to my defense, telling Mr. Waters that I had in fact acted properly with respect to the plastic
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spoons. This did not deter Mr. Waters.
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7. Later I decided to use the Open Door Policy and spoke with District Manager DiPasquale about
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the incident. He told me that things would not change with Mr. Waters and that I just needed to
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“take the shit and let it roll.” I did not want to be treated this way in the future so I resigned.
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8. Shortly thereafter, I learned that Wal-Mart Divisional President Bill Fields was interested in
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speaking to former Assistant Managers about their reasons for leaving Wal-Mart. I met with Mr.
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Fields and explained what had occurred with Mr. Waters. Mr. Fields told me that he had
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received other complaints from women about Mr. Waters’ conduct towards them. Mr. Fields
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assured me that Mr. Waters was no longer a Regional Vice President and he asked me to return
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to my position with Wal-Mart. I agreed.
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9. I was placed as an Assistant Manager in Plainfield, Indiana in March 1995. My daughter was
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born in January 1996 and my performance evaluation ranking for the year after she was born was
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“exceeds expectations.”
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10. In July 1997, I was promoted to the position of Store Manager in Marysville, Kansas. I drove
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with my daughter’s father, who is African-American, to find a place to live there. When we
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arrived in town, we were treated hostilely by a clerk in the local Wal-Mart store, the town realtor
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and by a number of prospective landlords because we were a mixed-race family. At the last
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rental we visited, the landlord told us that my daughter was not safe and that we needed to be out
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of town by dark. I knew then that I could not move my family to this place.
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11. I called the Regional Personnel Manager Gary Coward, explained what had happened and asked
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to be placed as a store manager anywhere else. He refused and told me that I would have to go
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to Marysville as planned or accept a demotion and return as an assistant manager to the 86th
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Store in Indianapolis, one of the worst stores in the area. I took the demotion to assistant
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manager at the 86th Street Store. This was particularly humiliating because my employees in
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Plainfield had just thrown me a big going-away party to celebrate my promotion.
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HOWARD DECLARATION RE: PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
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Case No. C-01-2252 MJJ
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12. I was placed as a co-manager of the Greenwood, Indiana store in September 1997. The Store
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Manager, Curt Mace, ran the store like a boys’ club. He regularly socialized with a group of
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male managers and hourly employees – going to lunch together, drinking, playing pool, and
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going to the race track. I was not invited to participate in these activities but rather was left to
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run the store. Wal-Mart’s anti-fraternization policy prohibits store management from socializing
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with subordinates outside of work. To my knowledge, Mr. Mace was not coached for his
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conduct.
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13. In June 1998, I posted for a store manager opening in Decatur, Indiana and was selected. The
store had a lot of problems when I arrived (i.e. 16 trailers of old merchandise in the back) but I
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was able, over time, to clean it up. I put the store through a remodel and there was a grand
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opening in late 1999. Attached hereto as Exhibit C are a number of commendations that I
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received for the work that I did at Decatur.
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14. As the Decatur store manager, I was required to attend regular district meetings in Fort Wayne,
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Indiana. I was the only female store manager in the district. The district manager would
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sometimes hold the lunch meeting at Hooter’s restaurant. The waitresses at the restaurant are
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required to wear tight t-shirts to show off their breasts. During the meeting, I was forced to
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listen to lots of discussion among the male managers about the waitresses’ breasts and butts and
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which sexual experiences they would like to have with them. While it was humiliating to be
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there, I was reluctant to complain. I knew from attending the annual company meetings that the
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male managers often went out together to strip clubs after the meeting. It seemed to me to be an
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accepted part of the culture.
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15. In September 1999, I was assigned as the store manager for the new supercenter slated to open
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in Bluffton, Indiana. In my experience, Wal-Mart generally staffed new stores with an
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experienced group of managers. Instead, I was given a team of managers that included two co-
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managers who were brand new to Wal-Mart. So, in addition to hiring and training 450 new
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employees, I also had to train the management staff. When other new stores had in the past
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opened in the Fort Wayne area, they had been staffed with experienced managers. The store
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HOWARD DECLARATION RE: PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
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Case No. C-01-2252 MJJ
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managers in those new stores were men. I felt as if I was being set up to fail with this
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inexperienced management staff.
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16. Specifically, district management hired Jerome Rauch (a male) from a local grocery store chain
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to serve as the co-manager in Bluffton. Rauch had no Wal-Mart experience, management or
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otherwise. He was paid a guaranteed salary of $65,000 annually -- $15,000 more than I was
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making although he reported to me. He also received three weeks’ paid vacation from his hire
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date; I had had to work seven years to accumulate that same benefit. I am aware that another
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male co-manager, Alia Naghdi, was hired off the street for $10,000 more than I was making.
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17. In March 2000, our district manager Kevin Washburn learned he was in trouble because several
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stores in his district had high shrink; the Bluffton store was not one of them, however. We (the
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district manager, the store managers and the loss prevention staff) were told to drive to
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Bentonville to meet with senior management about the problems. We went in two cars, one
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driven by District Manager Washburn and the other by Phil Harris, Loss Prevention District
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Manager. I was the only woman in my car and there was another female store manager, Shelly
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Lehman, in the other. During the approximately 16-hour drive, the male managers talked
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ceaselessly about sex despite my repeated requests that they stop. We stopped for gas and
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several of the male managers wanted to go for a drink at the club adjacent to the station. When
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we entered, I realized that it was a strip club. Although I had never been in a place like this and
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had no interest in being there, I had no choice but to stay because I did not have my own car. I
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did not believe that it would have been safe for me to sit in the parking lot in the dark outside the
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club. I tried to ignore the show, but at one point, I was approached by one of the strippers and
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District Manager Kevin Washburn proposed that he pay one of the strippers $50 to have a
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“threesome out back” with me. I refused.
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18. In Bentonville, our team was berated and humiliated for the district’s bad performance. We were
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made to stand up in a large group meeting and be introduced as the group “that just lost us a
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million dollars.” District Manager Washburn and another Store Manager, David Pickle, were
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demoted. I met privately with the Divisional President Mike Huffaker, who told me that I was a
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HOWARD DECLARATION RE: PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
Case No. C-01-2252 MJJ
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great store manager and that I was only there because the Decatur store (which I had been out of
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for several months) was among those with high shrink.
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19. On the return trip to Indiana, we stopped at two more strip clubs, including the “Pink Cadillac”
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somewhere in Missouri. The other female manager, Shelly Lehman, and I sat in the back of the
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club as far away from the stage as possible, while several of the men sat up close and paid for
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lap dances. We repeatedly asked the male drivers whether we could leave. When we returned to
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the motel where we were to spend the night, District Manager Washburn and at least one other
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store manager dropped us off and announced that they were going to a massage parlor, which I
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understood to mean that they were planning to hire prostitutes.
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20. I returned to work at the Bluffton store and District Manager Washburn was replaced briefly by
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David Tyson, who in turn was replaced by John Waters in May 2000. As noted earlier in my
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declaration, I had resigned in 1994 because of Mr. Waters’ abusive conduct towards me and I
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knew that he had been demoted at that time from his Regional Manager position. I worried that
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he might now retaliate against me for these earlier events. I grew more afraid when, at our first
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meeting, he made a point of telling me, in a less than friendly tone, that he “remembered” me.
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21. At our next meeting, two weeks later, my fear increased when District Manager Waters
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questioned how it was that I had ever gotten a supercenter store manager position. When I
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responded that it was because of my strong past performance, he told me that what he had heard
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that I was a supercenter store manager because I was “Kevin’s pet,” referring to my former
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District Manager Kevin Washburn.
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22. While my store’s performance was on track, Mr. Waters started to look for reasons to criticize
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me. For example, some of the hourly employees complained to him that one of the female
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assistant managers (who I played no role in selecting) was “too mean.” Based on this, he told me
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my performance was “unacceptable” and I needed to fix the problem or turn in my keys. Mr.
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Waters called in a Wal-Mart quality assurance inspector to see if he could find a problem in the
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grocery area of my store. The inspector found nothing wrong.
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HOWARD DECLARATION RE: PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
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Case No. C-01-2252 MJJ
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23. Two weeks later, on June 16, Mr. Waters telephoned me and asked me to step down. I
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demanded to meet with him in person and I drove 30 miles to meet him. He told me that a
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woman should not be running a Wal-Mart store and that I “needed to be home raising my
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daughter.” He instructed me to step down “voluntarily” and to tell my employees at the
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morning meeting that having this new supercenter was too stressful for a single parent and that I
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just needed to take a break. In other words, it was not enough for Mr. Waters to just get rid of
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me. I believe that he also wanted me to send a strong signal to other women that the job was not
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right for any mother.
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to six weeks – he would make my life “hell.” I had no choice but to step down.
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He told me to step down voluntarily or he would have me out within four
24. At the time, the Bluffton store – my store -- was running in the black and would have made a
profit in the first year, which is very unusual for a new store.
25. At that time that I was forced to step down, Mr. Waters had ten stores in his district and I was the
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only female manager in the district. A male, Bruce Hovey, was assigned as the new store
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manager of the Bluffton store. Mr. Hovey had previously worked for Mr. Waters and had been
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fired for altering payroll documents.
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26. I sent a letter to the Regional Vice President Arthur Emmanuel complaining about my demotion.
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In the letter, I specifically raised the question of whether my treatment was a result of my gender.
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Attached hereto as Exhibit D is a true and correct copy of the letter that I wrote. I subsequently
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spoke by phone with Mr. Emmanuel and renewed my concerns that Mr. Waters was motivated to
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act because I am female. Mr. Emmanuel told me that there had not been any complaints about
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Mr. Waters’ treatment of women, a statement that I knew to be false based upon my discussion
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with Divisional President Bill Fields in 1994.
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27. I was transferred as a co-manager in the Columbia City, Indiana store in July 2000. My new
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district manager, Dave Tyson, told me that I had to be placed in a different district - a 120 mile
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daily commute -- because John Waters refused to have me in his district. He told me to work
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hard and prove myself and I could again run a store.
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HOWARD DECLARATION RE: PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
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Case No. C-01-2252 MJJ
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28. Shortly thereafter, I received a call from the Regional Personnel Manager, Shantel Jones, who
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instructed me not to shop in the Bluffton Wal-Mart store. The associates there remained loyal to
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me and were not receptive to the man that Mr. Waters had selected to replace me She felt that
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my presence in the store undermined his ability to succeed.
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29. I assumed that, once I took my demotion and moved out of his district, District Manager Waters
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would leave me alone. I was wrong. Mr. Waters accused me of violating the anti-fraternization
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policy – he claimed that I had been involved with a subordinate whom I supervised. There was
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an investigation (ironically, conducted by Jerome Rauch) and I was cleared of any wrongdoing.
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30. I knew at that point that I had to leave Wal-Mart. I resigned a few weeks later.
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I declare under penalty of perjury under the laws of the State of Indiana that the foregoing is true
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and correct. Executed this ___ day of March, 2003 at Indianapolis, Indiana.
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______________________________
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Melissa J. Howard
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HOWARD DECLARATION RE: PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
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Case No. C-01-2252 MJJ