UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

JOHN TUCKER, ANGELA MILLER, JOVAN HANEY, LEON BRADLEY, ARIEN JACKSON, WILLIAM STRICKLAND, OSCAR GREEN, MIKE JACKSON, KEVIN RIDDLE, AVERY ANDERSON, TRACI DANSBERRY, CARLOS ZIMMERMAN, CHRIS DARGIN, and KIMBERLY WAFFORD on behalf of themselves and others similarly situated,

Case No.: 05-cv-440-GPM

Plaintiffs,

vs.

WALGREEN COMPANY,

Defendant.

PLAINTIFFS' SECOND AMENDED CLASS ACTION COMPLAINT

COME NOW the Plaintiffs, JOHN TUCKER, ANGELA MILLER, JOVAN HANEY, LEON BRADLEY, ARIEN JACKSON, WILLIAM STRICKLAND, OSCAR GREEN, MIKE JACKSON, KEVIN RIDDLE, AVERY ANDERSON, TRACI DANSBERRY, CARLOS ZIMMERMAN, CHRIS DARGIN and KIMBERLY WAFFORD and on behalf of themselves and others similarly situated, state to the Court:

I.

INTRODUCTION

1. This class action is brought to remedy a pervasive policy of race discrimination instituted and maintained by Walgreen Co. (“Walgreens”) in a continuing violation of federal law on behalf of all former, current, and future African-American management employees and applicants for management nationwide, as well as current and former African-American pharmacists. Walgreens has engaged in a continuing pattern and practice of race discrimination in hiring, promotion and store assignment of African-American employees. This illegal policy

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and/or pattern or practice of discrimination has been furthered by subjective decision-making by a predominately white managerial workforce, with little oversight or monitoring by Walgreens.
2. Class action treatment is sought pursuant to Federal Rule of Civil Procedure 23 Plaintiffs seek a permanent injunction enjoining Walgreens from maintaining a policy and practice of discriminating against Plaintiffs and other African-American class members because of their race, or retaliating against them for complaining about prohibited acts of discrimination in violation of 42 U.S.C. §1981, as amended (‘Section 1981”), and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000, et seq.
3. Among other relief, this action seeks a declaration that Walgreens’ conduct violates Title VII and section 1981, an injunction ending Walgreens’ discriminatory practices and providing prospective relief, and restitution for Plaintiffs and the class for all hiring, promotions, back pay, front pay and related employee benefits they would have received but for Walgreens’ unlawful and discriminatory practices, compensatory and punitive damages.
II. JURISDICTION AND VENUE 4. This Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1331 and 1343, and Title VII, 42 U.S.C. § 2000(e)-5(f)(3). 5. This is a case arising under the laws of the United States, specifically Section 1981 and Title VII. Plaintiffs Tucker, Haney, Bradley, M. Jackson, A. Jackson, Strickland, Green, Riddle, Anderson, Zimmerman, Dargin and Wafford have filed timely charges of discrimination and have requested and received, or are entitled to, Right-to-Sue Notices under Title VII. 6. The unlawful employment practices alleged below were and are being committed nationwide, including within the Southern District of Illinois. 7. Venue is proper in the Southern District of Illinois under 28 U.S.C. § 1391 (b) & (c) and 42 U.S.C. § 2000e-5(f)(3).
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III. THE PARTIES
A. Plaintiffs 8. Plaintiff John Tucker is an African-American male citizen and resident of the
United States and at all times relevant to this Complaint was a citizen and resident of the state of Missouri. He was hired by Walgreens on February 6, 1986 as a Clerk and is currently employed as a Store Manager at store number 5873. Tucker timely filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”). On December 2, 2005, the EEOC issued a Determination, finding against Walgreens as to the class allegations of the charge. Tucker requested that the EEOC issue a Right-to-Sue Notice to him and has received a Right-to-Sue Notice.
9. Plaintiff Angela Miller is an African-American female citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Missouri. She was hired by Walgreens in June 1997 as an Assistant Store Manager/Management Trainee (MGT) and left the employ of Walgreens as a Store Manager at store number 4602 in 2002.
10. Plaintiff Jovan Haney is an African-American female citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Illinois. She was hired by Walgreens in 2002 as an Assistant Store Manager/MGT and left the employ of Walgreens as an MGT at store number 6691 in 2005. Haney timely filed a charge of discrimination with the EEOC. Haney has requested that the EEOC issue a Right-to-Sue Notice to her and has received a Right-to-Sue notice.
11. Plaintiff Leon Bradley is an African-American male citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the states of Missouri or Texas. He was hired by Walgreens in October 2000 as an Assistant Store Manager/MGT and is currently employed as a Store Manager (SM) at store number 5443. Bradley timely filed a charge of discrimination with the EEOC. On December 2, 2005, the
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EEOC issued a Determination, finding against Walgreens as to the class allegations of the charge. Bradley requested that the EEOC issue a Right-to-Sue Notice to him and has received a Right-to-Sue Notice.
12. Plaintiff Arien Jackson is an African-American male citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Missouri. He was hired by Walgreens in April 2000 as an Assistant Store Manager/MGT and left the employ of Walgreens as an EXA at store number 5263 in October 2004. Jackson timely filed a charge of discrimination with the EEOC. On December 2, 2005, the EEOC issued a Determination, finding against Walgreens as to the class allegations of the charge. Jackson requested that the EEOC issue a Right-to-Sue Notice to him and has received a Right-to-Sue Notice.
13. Plaintiff William Strickland is an African-American male citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Florida. He was hired by Walgreens on September 25, 1999 as a Service Clerk and is currently employed as a Store Manager (SM) store number 7350. Strickland timely filed a charge of discrimination with the EEOC. On February 2, 2006, the EEOC issued a Determination, finding against Walgreens as to the class allegations of the charge. Strickland requested that the EEOC issue a Right-to-Sue Notice to him and has received a Right-to-Sue Notice.
14. Plaintiff Oscar Green is an African-American male citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Florida. He was hired by Walgreens in July 2000 as an Assistant Store Manager/MGT and is currently employed as a Store Manager at store number 4081. On February 2, 2006, the EEOC issued a Determination, finding against Walgreens as to the class allegations of the charge. Green timely filed a charge of discrimination with the EEOC. Green requested that the EEOC issue a Right-to-Sue Notice to him and has received a Right-to-Sue Notice.
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15. Plaintiff Mike Jackson is an African-American male citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Florida. He was hired by Walgreens on May 22, 2000 as an Assistant Store Manager/MGT and is currently employed as an MGT at store number 7979. On February 2, 2006, the EEOC issued a Determination, finding against Walgreens as to the class allegations of the charge. Jackson timely filed a charge of discrimination with the EEOC. Jackson requested that the EEOC issue a Right-to-Sue Notice to him and has received a Right-to-Sue Notice.
16. Plaintiff Kevin Riddle is an African-American male citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Florida. He was hired by Walgreens on September 18, 2001 as an Assistant Store Manager/MGT and is currently employed as an EXA at store number 4081. Riddle timely filed a charge of discrimination with the EEOC. On February 2, 2006, the EEOC issued a Determination, finding against Walgreens as to the class allegations of the charge. Riddle requested that the EEOC issue a Right-to-Sue Notice to him and has received a Right-to-Sue Notice.
17. Plaintiff Avery Anderson is an African-American male citizen and resident of the United States and at all times relevant to this complaint was a citizen and resident of the state of Michigan. He was hired by Walgreens on April 12, 2001 as an Assistant Store Manager/MGT and is currently employed as a Store Manager at store number 5321. Anderson timely filed a charge of discrimination with the EEOC. On February 1, 2006, the EEOC issued a Determination, finding against Walgreens as to the class allegations of the charge. Anderson requested that the EEOC issue a Right-to-Sue Notice to him and has received a Right-to-Sue Notice.
18. Plaintiff Traci Dansberry is an African-American female citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Missouri. She was hired by Walgreens in August 1998 as a Student Pharmacist and left the
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employ of Walgreens as a Pharmacy Manager at store number 4602 in approximately August 2003.
19. Plaintiff Carlos Zimmerman is an African-American male citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Florida or Georgia. He was hired by Walgreens on September 6, 1996 as a Staff Pharmacist and is currently employed in that same capacity at store number 6206. Zimmerman timely filed a charge of discrimination with the EEOC. Zimmerman has requested that the EEOC issue a Right-to-Sue Notice to him.
20. Plaintiff Chris Dargin is an African-American male citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Texas. He was hired by Walgreens on January 20, 1993 as a Staff Pharmacist and the left employ of Walgreens as a Pharmacy Manager at store number 4203 on February 2, 2006. Dargin timely filed a charge of discrimination with the EEOC. Dargin requested that the EEOC issue a Right-toSue Notice to him and has received a Right-to-Sue Notice.
21. Plaintiff Kimberly Wafford is an African-American female citizen and resident of the United States and at all times relevant to this Complaint was a citizen and resident of the state of Indiana. She applied to Walgreens for a Management Trainee position in August 2004 following her graduation from college, was rejected, and has been employed by Walgreens in non-management positions since August 24, 2004 during which time she has again applied for the Management Trainee position and been rejected. Wafford timely filed a charge of discrimination with the EEOC. B. Defendant
22. Defendant Walgreens is an Illinois corporation authorized and registered to do business in the State of Illinois with its headquarters in Deerfield, Lake County, Illinois. Walgreens conducts business throughout the United States and operates more than 5,000 stores nationwide in 45 states.
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IV. GENERAL PATTERNS OF DISCRIMINATION AND SEGREGATION
23. Walgreens practices nationwide systemic racial discrimination against its AfricanAmerican management and employees, Staff Pharmacists, and African-Americans seeking to enter the “Retail Career Path.” (a) Walgreens discriminates against African-Americans in selections of Assistant Manager/Management Trainees, the entry level positions in the Retail Career Path. (b) Walgreens discriminates against African-American employees seeking to advance in the Retail Career Path. (c) Walgreens discriminates against African-Americans seeking to promote in the Pharmacy Career Path. (d) Walgreens discriminates against AfricanAmericans seeking promotion into district and corporate management. (e) Lastly, Walgreens discriminates against African-American management employees and Pharmacists in store assignments by steering them into stores which fall into predominately African-American and/or lower income peer groups and/or by assigning them to stores whose characteristics such as low bonus, low sales and high shrink reduces employees’ ability to earn bonus compensation.
24. These decisions to discriminate and segregate are based primarily on very subjective judgments of predominately white upper level management. Walgreens’ managers exercise considerable discretion in making decisions about the promotion and store assignment of employees in the Retail and Pharmacy Career Paths. Walgreens fails to train its managers adequately regarding compliance with anti-discrimination laws, managing a diverse workforce, or Human Resources processes. Walgreens does not provide its managers with specific guidelines for making hiring and promotion decisions. Walgreens fails to adequately monitor the personnel decisions of its managers to ensure that those decisions are not racially discriminatory and/or do not have an adverse impact on African American employees. The subjective decisionmaking systems implemented by Walgreens’ managers in the Retail and Pharmacy Career Paths result in an adverse impact on African-Americans seeking promotions and favorable store assignments. These policies and practices are systemic continuing violations.
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A. Discrimination in Selections and Promotions 25. Selections of Assistant Store Managers/Management Trainees. The normal
promotional progression in the Retail Career Path commences with the Assistant Store Manager or Management Trainee (MGT) positions. Walgreens practices systemic discrimination against African-Americans in selecting employees for Assistant Store Manager and MGT from both external applicants and those seeking to promote from non-management jobs at Walgreens.
26. Discrimination in Promotions at Each Level of the “Retail Career Path.” Once in the Assistant Store Manager or MGT position, the normal progression is to Executive Assistant (EXA) to Store Manager to District Manager and above. This is known as the “Retail Career Path.” Walgreens discriminates against African-Americans in each of these promotional opportunities. Walgreens’ managers have broad discretion in making their promotion decisions in the Retail Career Path, using highly subjective criteria with little or no training or guidelines. African-Americans are routinely denied and passed over for promotions despite their seniority, work experience and/or qualifications while less senior, less experienced and/or less qualified white persons are selected for promotions to the positions. One of the keys to promotion from Store Manager to District Manager is participation in the “Emerging Leaders Program.” Walgreens practices intentional discrimination in selecting employees for the Emerging Leaders Program that contributes to intentional discrimination in promotions into those jobs. Walgreens’ managers make highly subjective promotion decisions in the Retail Career Path, including but not limited to selection of employees for the Emerging Leader Program, vague and subjective criteria that result in an adverse impact on African-Americans. Intentional discrimination and unlawful adverse impact are reflected in the disproportionate number of white persons selected for District Managers compared to the racial composition of the appropriate feeder pool.
27. Discrimination at Each Level of the “Pharmacy Career Path.” Once employed as a Staff Pharmacist, the normal progression is to Pharmacy Manager to Pharmacy Supervisor and above. This is known as the “Pharmacy Career Path.” Walgreens’ managers have broad discretion in making their promotion decisions in the Pharmacy Career Path, using
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highly subjective criteria with little or no training or guidelines. Walgreens practices discrimination against African-Americans in each of these promotional opportunities. AfricanAmericans are routinely denied and passed over for promotions despite their seniority, work experience and/or qualifications while less senior, less experienced and/or less qualified white persons are selected for promotions to the positions. In addition, Walgreens’ managers make highly subjective promotion decisions in the Pharmacy Career Path that result in an adverse impact on African-Americans. Intentional discrimination and unlawful adverse impact are reflected in the disproportionate number of white persons selected for Pharmacy Manager and Pharmacy Supervisor, compared to the racial composition of the appropriate feeder pools.
28. Discrimination in Promotion to District and Corporate Management. Intentional discrimination and unlawful adverse impact also are reflected in the disproportionate number of white persons selected for promotion into district and corporate management positions, compared to the racial composition of the feeder and/or applicant pools.
29. Official Store Categorization -- “Peer Groups.” Rather stunningly, Walgreens has actually categorized each of its stores according to the racial/ethnic composition and income demographics of the customers in the geographic vicinity of each store. These classifications, called “Peer Groups,” are routinely and consistently used by Walgreens in its company documents and management decisions. African-American management and pharmacy employees suffer discrimination and are damaged in that they are intentionally and systemically steered into stores that have a higher percentage of African-American customers and/or a higher percentage of lower-income customers. Their segregation into these stores has a number of adverse career and economic consequences for the African-American management employees and Pharmacists. Often these stores have a higher customer volume in the retail area and lower prescription volume in the pharmacy, but lower profitability than other stores. Working conditions in these stores are often more difficult and/or stressful than those in other stores.
30. Bonuses. The economic implications of being steered and segregated into stores which have characteristics such as low bonus, low sales and high shrink are substantial as
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Managers and Pharmacists in these stores tend to receive significantly less compensation than Managers in other stores.
31. The Discriminatory Impact of Placement of African-Americans. The placement of African-American management and pharmacy employees in stores which fall into predominately African-American and/or lower income peer groups and/or stores which have characteristics such as low bonus, low sales and high shrink has a racially discriminatory impact on career opportunities.
a. The stores to which African-American managers and Pharmacists tend to be over-assigned are traditionally understaffed. The consistent pattern that emerges from this understaffing is that Assistant Store Managers/MGTs, EXAs, and Store Managers spend a substantial part of their time performing non-management tasks. This has the general effect of depriving them of the on-the-job management training, which managers would naturally experience in their jobs helping them to become more knowledgeable about the company and make them better prepared for advancement.
b. Pharmacy Test Preparation. An important deprivation of management training in stores to which African-American and Pharmacists tend to be over-assigned that has a substantial effect is the preparation for the pharmacy test that EXAs must generally pass to be eligible for Store Manager (the Pharmacy Technician Certification Board or “PTCB” examination). In upscale stores EXAs traditionally have enough time to study for the test on company time and observe the operations in the pharmacy to assist them in preparation for the test. This results in a higher percentage of African-Americans failing the test or having to take it twice. This is discrimination against the African-Americans because of the corporate decisions as to how to staff these stores and the segregation of African-Americans into these stores. In another form of discrimination, on occasion, white EXAs have been promoted to Store Manager without passing the test.
c. Store within a Store. Part of the training of EXAs required in preparation for promotion to Store Manager is the “Store within a Store” or “SWIS” program. The EXA is
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assigned special responsibility for the consumable area of the store. It is anticipated that the area will remain appropriately stocked and be clean and attractive. In the stores to which AfricanAmericans tend to be over-assigned, it is difficult for the EXAs to have time and to expend special energy on this assignment because they are consistently expected to do other routine tasks such as stocking and checkout.
d. EXA Pharmacy Project. Part of the training required for EXAs in preparation for promotion to Store Manager is completion of the EXA Pharmacy Project wherein the District Manager selects EXAs in the district to spend two weeks working exclusively in the store pharmacy. The EXAs selected are those who will be next in line for promotion to Store Manager. African-American EXAs are selected proportionately less frequently than white EXAs for participation in the Pharmacy Project, which directly affects their career opportunities.
e. Excel Project Book. To become eligible for promotion from MGT to EXA, the candidate must complete the Excel Project Book. Part of this process is to choose an area of the store for extra attention with a goal of improving profit in that sector of the store. In the stores to which African-Americans tend to be over-assigned, it is difficult for MGTs to have the time and energy to devote to this assignment because they are consistently expected to do other routine tasks such as stocking and checkout. Further, the grading of one’s performance on the Excel Project Book is a highly subjective judgment of the District Manager and has had the purpose and effect of injuring promotional opportunities of African-American MGTs based on their race. Walgreens now imposes a 12-month limit on completion of the Excel process. As Walgreens knows or should know, such a requirement inhibits the promotional opportunities of the segregated African-American MGTs in the predominantly African-American and/or lower income stores or stores which have characteristics such as low bonus, low sales, high shrink. Failure to comply within 12 months is grounds to consider demotion or dismissal.
f. Initial Segregation Is Perpetuated. Steering and segregation is forced upon African-Americans at each management level. Thus, an African-American who is initially assigned as an Assistant Store Manager/MGT or Staff Pharmacist in an African-American and/or
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lower income peer group store or a store with characteristics such as low bonus, low sales, high shrink is more likely than other managers to remain in such class of stores when s/he advances to EXA. This same pattern of assignment continues in “The Retail Path” when promoting from EXA to Store Manager. Class members are intensely aware of the disadvantages of such store assignments and have as a group made great efforts to gain assignment to better stores, but such efforts have tended to be without success. Another very specific effect of the perpetuation of the segregation is that African-American managers who are ready to promote have often been deprived of such opportunities because they have not been deemed “eligible” for the preferred stores.
V. CLASS ACTION ALLEGATIONS
A. The Scope of the Class 32. This action is brought on behalf of all African-American individuals who have
been employed at Walgreens in its Retail and Pharmacy Career Paths at any time between June 20, 2001 and the date of trial, as well as any African-American individuals who have applied for employment with Walgreens in its Management Trainee Position or any African-American Walgreens’ non-management employees who applied or were deterred from applying for the Management Trainee Position during the same time period, and who have been, are being, or may be in the future adversely affected by Walgreens’ continuing policy of discrimination in hiring, store assignment, compensation, training, promotion, and terms and conditions of employment because of their race or color. B. The Case Satisfies All Elements of Rule 23(a)
33. The class is so large that joinder is impracticable. The class covers more than 5,000 stores in 45 states. While the number of incumbent African-American employees seeking management positions is not known, it is reasonable to infer that they number in the thousands. Further, the number of African-American persons seeking Assistant Store Manager/MGT positions from outside the incumbent workforce is unknown but exceedingly large.
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34. The systemic pattern and practice of discrimination against, and segregation of African-American employees and adverse impact of Walgreens’ subjective decision making on the class are common questions of fact and law for the class case. The overwhelmingly white upper management implements the pattern and practice of discrimination and segregation on highly subjective bases that lend themselves to racial discrimination. These systematic patterns and practices also have disparate impact on the class as pleaded.
35. The claims of the representative Plaintiffs are typical of those of the class as a whole.
36. The claims of Kimberly Wafford are reflective of systemic discrimination in the selection of Assistant Store Managers/MGTs both as initial promotions from non-management Walgreens’ positions and as new hires to Walgreens.
37. The claims of Kevin Riddle and Jovan Haney are reflective of systemic discrimination in the selection of EXAs from Assistant Store Managers/MGTs.
38. The claims of Leon Bradley, William Strickland, Oscar Green, Mike Jackson and Avery Anderson are reflective of the systemic discrimination in the selection of Store Managers from EXAs.
39. The claims of John Tucker and Angela Miller are reflective of the systemic discrimination in the selection of District Managers and higher management in the Retail Career Path.
40. The claims of Arien Jackson are reflective of systemic discrimination in promotion to district management positions. The claims of Chris Dargin are reflective of systemic discrimination in promotions to corporate management positions.
41. The claims of Traci Dansberry, Carlos Zimmerman and Chris Dargin are reflective of systemic discrimination in the selection of Pharmacy Managers and Pharmacy Supervisors and above in the “Pharmacy Career Path.”
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42. The claims of each and every named Plaintiff (other than Kimberly Wafford) are reflective of the racially discriminatory patterns of placement of African-American management and pharmacy employees as described in Paragraph 31.
43. Plaintiffs are more than adequate class representatives. They have substantial knowledge of the class and the employment practices of Walgreens. The Plaintiffs represent seven different states. They are committed to being adequate representatives of the class. There are no conflicts between the Plaintiffs and the class they seek to represent.
44. The Plaintiffs have retained counsel experienced in prosecuting class action employment discrimination cases to protect the interests of the class. Those lawyers have agreed to advance the costs of the out-of-pocket expenses of this litigation and have the ability to do so. They are more than adequate class counsel. C. The Class is Appropriate for Hybrid Certification Under Subsection (b)(2)/(b)(3).
45. Hybrid certification under sections (b)(2)/(b)(3) is appropriate. Such certification has often been deemed appropriate in employment discrimination class actions. Under such certification, Stage I would be tried under (b)(2) and Stage II would be tried under (b)(3). In Stage I, liability and punitive damages would be tried. In Stage II, individual relief would be determined including back pay and front pay for the class, and compensatory damages and individual injunctive relief for those class members who allege entitlement to such relief.
46. Rule 23(b)(2) treatment for Stage I is appropriate in that Walgreens has acted and refused to act on grounds generally applicable to the class making prohibitory injunctive and declaratory relief appropriate as to the class as a whole. Such relief would include, but not be limited to, enjoining the practices of:
a. Denying African-American employees promotions in the Retail Career Path, Pharmacy Career Path and district and corporate management positions;
b. Denying African-American employees training;
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c. Disproportionately assigning and segregating African-Americans to store locations that are less profitable in bonus-potential and have more difficult and/or stressful working conditions than those to which white persons tend to be assigned;
d. Disproportionately assigning African-Americans to stores with characteristics such as low bonus, low sales and high shrink which affect their compensation;
e. Disproportionately assigning and segregating African-American employees to locations and facilities which are located in areas that have predominantly AfricanAmerican customers;
f. Disproportionately assigning and segregating African-American employees to locations and facilities in areas that have predominantly lower income customers;
g. Providing African Americans unequal terms and conditions of employment, based on their race;
h. Failing to hire African-Americans into the Assistant Store Manager/Management Trainee positions on the same basis as whites.
47. The class has inadequate remedies at law thus making injunctive and declaratory relief necessary. D. The Class is Appropriate for Certification Under Subsection (b)(3).
48. Questions of fact and law common to the class predominate over any question affecting only individual members. The patterns and practices which will be proven in part by statistical proof are common to the class as pleaded and clearly predominate over any question affecting only individual class members. There exists generalized evidence that proves many elements on a class-wide basis.
49. A class action is superior to other available methods for fair and efficient adjudication of the controversy. Individual members of the class do not have the resources to marshal the kind of statistical proof and cumulative anecdotal evidence that can be adduced by these Plaintiffs in a class action.
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50. The individual members of the class have no interest in individually prosecuting separate actions. Quite the contrary is true. Individual class members have an incredibly strong interest in having class representatives prove up the company-wide practices in a way that no individual class member could.
51. There is value in concentrating the claims in a single forum. 52. In light of the nature of the claims of the class there is no likelihood that difficulties will be encountered in managing the case as a class action. The class is defined with precision. The great preponderance of claims will involve proof of a pattern of selections for four job titles in the “Retail Career Path,” two job titles in the “Pharmacy Career Path,” and segregation of African-American management and pharmacists in African-American and/or lower income stores and/or stores with characteristics such as low bonus, low sales and high shrink. The job titles and practices are essentially identical in more than 5,000 stores in 45 states. Defendant has uniform computerized payroll and personnel data that will make calculation of back pay, front pay and other compensation for specific class members relatively simple. The propriety and amount of punitive damages are issues common to the class and do not present a management problem.
VI. FACTS MATERIAL TO THE PLAINTIFFS’ CLAIMS A. Facts Material to Plaintiff John Tucker
53. John Tucker is an African-American male hired as a Service Clerk by Walgreens on February 6, 1986 in Topeka, Kansas. He was promoted to Assistant Store Manager/MGT after about one year and to EXA after about four years. He became a Store Manager in 1993 and is currently a Store Manager in Independence, Missouri. Throughout his employment with Walgreens and for all times relevant to this lawsuit, Tucker has been assigned predominantly to African-American and/or lower income stores. The work environment at these stores makes Tucker’s employment more difficult and stressful because of the high customer volume, theft, and safety issues, among other things.
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54. Tucker was assigned to store number 4212 located at Linwood and Prospect in Kansas City, Missouri for three years. This was the longest period of time any Store Manager had been assigned to that store. Store number 4212 is one of the most difficult stores in the district and is replete with security and safety issues. When transferred to store number 4212, Tucker did not receive the normal promotional pay for transferring to the store and was later told by his Regional Vice President that the transfer was not considered a promotion. Other Store Managers received the promotional pay requested by Tucker when assigned to number 4212. One white Store Manager also received special incentive pay when transferred to store number 4212. This incentive pay was never offered to Tucker.
55. After managing store number 4212 for over a year, Tucker told his Regional Vice President, his Loss Prevention Manager and his District Manager that he wanted to be reassigned. He was unable to get reassigned to another store until he was forced to take disability leave as a result of the stress from his continued assignment and his treating physicians told Walgreens he could not return to work there.
56. In 2002, Tucker was included in Walgreens’ “Emerging Leaders Program.” Out of 175 emerging leaders in his division, he was one of only two African-American employees selected. Moreover, while in the Emerging Leaders Program, Tucker was selected to participate in an extensive testing program designed to evaluate the skills of future District Managers and provide information that will be helpful to the employee’s success as a District Manager. Participation in the testing program is by invitation only and is the final step before promotion to District Manager. Tucker was subsequently removed from the Program allegedly because he did not have a college degree and was not enrolled in classes. However, when Tucker was initially placed in the Program, Walgreens knew he did not have a college degree and was not enrolled in courses. Despite his qualifications and experience, Tucker has never been promoted to the district level.
57. Tucker is an accomplished and dedicated worker who has been denied promotional opportunity to District Manager and has been discriminated against by Walgreens’
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pattern and practice of steering African-American employees to African-American and/or lower income stores as described in paragraphs 23, 26, 29 and 31(f). He has received lower bonuses and been required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a).
58. As a result of the aforesaid conduct, Tucker has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. B. Facts Material to Plaintiff Angela Miller
59. Angela Miller is an African-American female hired as an Assistant Store Manager/MGT by Walgreens in June 1997 in St. Ann’s, Missouri. She was promoted to EXA after six months. She became a Store Manager in March 1999. Throughout her employment as a Store Manager with Walgreens, Miller was assigned predominantly African-American and/or lower income stores. The work environment at these stores made Miller’s employment more difficult and stressful because of the high customer volume, theft, and safety issues, among other things. Furthermore, despite having all the qualifications to participate in the Emerging Leaders Program, Miller was not asked to be an Emerging Leader and, therefore, was denied the opportunity to be promoted to District Manager or above. Miller was further denied the opportunity to transfer to another district unless she was willing to be demoted from Store Manager.
60. In April 1999, Miller learned that the existing Walgreens store in East St. Louis, Illinois was being condemned and a new store was opening in May. At that time, Ed Catani, Miller’s District Manager, and Gene Slade, Walgreens’ Corporate Attorney, met with Miller regarding her being transferred to the new East St. Louis store, store number 4602. This store was 40 miles from Miller’s residence. Catani and Slade told Miller that the store was being opened in a tough area in an African-American neighborhood and it needed to be opened by an African-American manager. store 4602 was staffed with predominantly African-American management employees as well as off-duty, armed police officers.
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61. While Miller was managing store number 4602, Catani and Walgreens’ Senior Vice President of Operations, Jerome Karlin, visited the store. During one such visit, Karlin made numerous racist comments to Miller. For example, while looking at Miller’s vitamin display, Karlin asked Miller “Why don’t black people take vitamins’.” During this same visit, while inspecting the store cooler, Karlin asked Miller if she “actually sold the Edy’s and Haagen Dazs ice cream” that was stocked in the cooler, but before Miller could respond, Karlin stated, “Of course you don’t. We are in East St. Louis. Everyone here is on welfare.” He went on to say, “What do you people eat? Oh, that’s right. Fried chicken and okra.” At the end of the visit, Karlin turned to Catani and told Catani that he needed to get a different Store Manager at the store number 4602 because Miller “wasn’t black enough to run the store.”
62. After Karlin and Catani’s visit to store number 4602, Miller complained to Catani about Karlin’s racist attitude and told Catani that she noticed Walgreens placed AfricanAmerican store managers in lower income and/or African-American customer-based stores. Catani told Miller that she shouldn’t worry about it. Miller then sent a written complaint to Dan Jorndt, Walgreens’ CEO at that time, and David Bernauer, Walgreens’ current CEO. Miller did not receive a response to her complaint. Thereafter, she confronted Jorndt during a managers meeting asking him why he did not respond to her complaint. Jorndt told her to “not let this become a rock in her shoe.”
63. Subsequent to her complaints, Miller continued to experience discriminatory behavior and began experiencing retaliatory behavior. Catani frequently told Miller she should stock more “ethnic products” in her store such as “cheap hair care and hot or spicy food.” On one occasion, Catani told Miler that she should stock her store with hot and spicy cornbread. When Miller asked why she should stock hot and spicy cornbread, Catani told her “because it was hot and because it was cornbread.” On another occasion Catani shipped several boxes of hair weaves to Miller’s store without speaking with Miller about her need for such products. Furthermore, Miller’s bonuses were reduced and in 2002, loss prevention personnel began investigating Miller’s store accusing Miller of padding her inventory. This false accusation was
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completely without merit and could only have resulted from racial profiling and retaliation directed toward Miller by Walgreens’ management for asserting her rights to work if a workplace free of discrimination.
64. Miller was an accomplished and dedicated worker who was denied promotional opportunity to District Manager and was discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower income stores as described in paragraphs 23, 26, 29 and 31(f). She received lower bonuses and was required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a).
65. As a result of the aforesaid conduct, Miller has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. C. Facts Material to Plaintiff Jovan Haney
66. Jovan Haney is an African-American female hired by Walgreens as an Assistant Store Manager/MGT in 2002. She was assigned to various African-American and/or lower income stores and/or stores with characteristics such as low bonus, low sales and high shrink in Illinois, Florida and Indiana before resigning in October 2005.
67. Haney did not receive a promotion to EXA despite expressing interest in the position, applying for EXA, and having all the necessary qualifications for advancement to EXA. Less qualified white employees were promoted to this position over Haney.
68. Haney worked as an acting EXA and filled in when a store manager was absent without receiving EXA compensation. She did not qualify for bonuses based on store profitability because she was never promoted to EXA.
69. As a result of the aforesaid conduct, Haney has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation.
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D. Facts Material to Plaintiff Leon Bradley 70. Leon Bradley is an African-American male hired by Walgreens as an Assistant
Store Manager/MGT in October 2000 and is currently an Store Manager (SM) Texas. Throughout Bradley’s employment, he was assigned to African-American and/or lower income stores. Furthermore, stores with characteristics such as low bonus, low sales and high shrink to which he has been assigned, as described in paragraph 30, have negatively impacted Bradley’s bonuses.
71. Bradley had all the necessary qualifications to be promoted to Store Manager, yet he was consistently passed over while less qualified and less experienced white individuals were being promoted, as described in paragraph 26. Furthermore, Bradley was subjected to stricter standards than white employees which hindered his promotional opportunities and he has suffered discrimination related to his SWIS duties as described in paragraph 31(c). In December 2004, Bradley was told by his Regional Vice President that he would not receive an “A” on his SWIS report because the Regional Vice President found some dirt in the dairy area. He then told Bradley that he must receive an “A” on his SWIS report to be promoted. White employees’ promotions were not conditioned on their SWIS report grades.
72. Bradley is an accomplished and dedicated worker who was denied promotional opportunity to Store Manager and has been discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower income stores as described in paragraphs 23, 26, 30 and 31(f). He has received lower bonuses and was required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a).
73. As a result of the aforesaid conduct, Bradley has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation.
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E. Facts Material to Plaintiff Arien Jackson 74. Arien Jackson is an African-American male employed by Walgreens in Missouri
and Kansas as an EXA from April 2000 through October 2004. Jackson resigned to pursue better advancement opportunities in a workplace free from racial discrimination with one of Walgreens’ retail drug store competitors. Since leaving Walgreens, Jackson has received three promotions in his current job and now holds a district position.
75. During Jackson’s employment, he repeatedly applied for promotions to District Training Supervisor, a non-retail district position described in paragraph 28. Despite being qualified for the position, Jackson was rejected each time in favor of less qualified whites. Jackson was never given a reason why he was denied the position. On information and belief African-American class members are rarely selected for the District Training Supervisor and Photo Supervisor.
76. Jackson was an accomplished and dedicated worker who was denied promotion to District Training Supervisor and Photo Supervisor and was discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower income stores as described in paragraphs 23, 26, 29 and 31(f). He received lower bonuses and was required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a).
77. As a result of the aforesaid conduct, Jackson has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. F. Facts Material to Plaintiff William Strickland
78. William Strickland is an African-American male hired by Walgreens as a Service Clerk in 1999. Strickland was promoted to MGT in 2001 and EXA in 2002 and is currently a Store Manager (SM).
79. For over five years, Walgreens assigned Strickland to work at African-American and/or low income stores. Shortly after Strickland filed a charge of discrimination with the
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EEOC in late 2004, Walgreens transferred him to a more racially diverse/higher income store without explanation.
80. Strickland had not been promoted to Store Manager allegedly because he had not received his pharmacy technician certification, yet white EXAs were promoted without having that certification. As described in paragraphs 31(a) and (b), Strickland worked in AfricanAmerican and/or lower income stores where he has had less opportunity to study for the certification test and inadequate opportunity to observe the operation of the pharmacy, primarily due to high customer volume and the need for managers to perform non-management tasks. Strickland had not, therefore, been able to take full advantage of opportunities available to EXAs assigned to non- “African-American and/or lower income” stores to prepare for the certification test. Once moved to store number 3746 Strickland had the opportunity to spend time in the pharmacy and passed the certification test.
81. Walgreens’ pattern and practice of assigning its minority management employees to African-American and/or lower income stores is evident through Strickland’s job promotions. Normally, Walgreens’ employees are transferred to different stores after receiving promotions. Although Strickland has received promotions during his Walgreens’ career, he was always kept in the same African-American and/or lower income store (known to be the most difficult store in his district). Strickland was removed from the store only after filing a charge of discrimination with the EEOC.
82. Strickland is an accomplished and dedicated worker who was denied promotional opportunity to Store Manager and has been discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower income stores as described in paragraphs 23, 26, 29 and 31(f). He has received lower bonuses and been required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a). He received fewer opportunities to train and prepare for the pharmacy certification test as described in paragraphs 31(b) and (d).
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83. As a result of the aforesaid conduct, Strickland has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. G. Facts Material to Plaintiff Oscar Green
84. Oscar Green is an African-American male hired by Walgreens as an Assistant Store Manager/MGT in 2002. He was promoted to EXA in 2004 and Store Manager in 2005.
85. Until January 2005, Green was assigned only to African-American and/or lower income stores in Florida. Shortly after Green filed a charge of discrimination with the EEOC in late 2004, Walgreens promoted him to Store Manager in a higher income and 80% white customer base store without explanation.
86. Green is an accomplished and dedicated worker who was denied promotional opportunity to Store Manager and has been discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower income stores as described in paragraphs 23, 26, 29 and 31(f). He has received lower bonuses and been required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a).
87. As a result of the aforesaid conduct, Green has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. H. Facts Material to Plaintiff Mike Jackson
88. Mike Jackson is an African-American male hired by Walgreens in 2000 as an Assistant Store Manager/MGT. Jackson was promoted to EXA in 2002 and in September 2006 voluntarily stepped down to MGT because of the stress of his working conditions.
89. Until January 2005, Jackson was assigned only to African-American and/or low income stores in Florida. Prior to filing his EEOC charge, Jackson requested to be transferred from the African-American and/or low income store. His District Manager said he could transfer but would be staying on the north side of Jacksonville (which has all African-American and/or low income stores). When Jackson asked why he would be staying on the north side, his District
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Manager said it was because Walgreens wanted to keep its management employees in stores near where they lived. Jackson does not live on the north side. When he told his District Manager that he didn’t live on the north side of Jacksonville, the District Manager told him that he was staying on the north side because he was “unfortunately better suited” for the stores on the north side.
90. Shortly after Jackson filed a charge of discrimination with the EEOC in late 2004, Walgreens transferred him to a high income, 80% white customer base store without explanation.
91. Jackson has not been promoted to Store Manager allegedly because he has not received his pharmacy technician certification, yet white EXAs have been promoted without having that certification. As described in paragraphs 33(a) and (b), Jackson has worked in stores where he has had less opportunity to study for the certification test and inadequate opportunity to observe the operation of the pharmacy, primarily due to high customer and the need for managers to perform non-management tasks.
92. Jackson is an accomplished and dedicated worker who has been denied promotional opportunity to Store Manager and has been discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower income stores as described in paragraphs 23, 26, 29 and 31(f). He has received lower bonuses and been required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a). He has received fewer opportunities to train and prepare for the pharmacy certification test as described in paragraphs 31(b) and (d).
93. As a result of the aforesaid conduct, Jackson has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. I. Facts Material to Plaintiff Kevin Riddle
94. Kevin Riddle is an African-American male hired by Walgreens as an Assistant Store Manager/MGT in 2001 in Jacksonville, Florida. Riddle has worked as an “acting” EXA
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but was not paid at that level and did not receive a promotion to EXA despite having all the necessary qualifications. Less qualified white employees have been promoted to EXA instead of Riddle. Shortly after Riddle filed a charge of discrimination with the EEOC, Riddle received a promotion to EXA without explanation.
95. Walgreens states that employees must pass a company-created math test in order to be promoted to EXA. Riddle was told sixteen correct answers out of twenty questions is considered a passing score. After Riddle took the test, his Store Manager initially told him he had failed the test. Riddle asked to see the result of his test and found that of the 18 questions he answered, only 2 were incorrect. Riddle’s District Manager acknowledged that Riddle passed, but told Riddle that he still did not consider Riddle qualified for the promotion because Riddle had only answered 18 questions and because his Store Manager felt he was not ready to be an EXA.
96. Riddle also experienced discriminatory treatment in connection with his Excel Project Book as described in paragraph 31(e). Riddle learned that his store manager had not signed his Excel Project Book. Riddle did his project in the cosmetics department and increased sales by $20,000. When he asked his Store Manager about his success, the Store Manager told Riddle that he just “got lucky.”
97. Prior to March 2005, all of the stores to which Riddle was assigned were AfricanAmerican and/or low income stores on the north side of Jacksonville, Florida. When Riddle asked his District Manager to be transferred from store number 1981 located on the north side of Jacksonville, he was told that Walgreens likes managers to work close to where they live, but Riddle does not live near the stores to which he has been assigned. The second time Riddle requested transfer out of the north side, he was told that he was “better suited” for the north side stores.
98. Riddle is an accomplished and dedicated worker who has been denied promotional opportunity to Store Manager and has been discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower
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income stores as described in paragraphs 23, 26, 29 and 31(f). He has received lower bonuses and been required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a). He has received fewer opportunities to train and prepare for the pharmacy certification test as described in paragraphs 31(a) and (b).
99. As a result of the aforesaid conduct, Riddle has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. J. Facts Material to Plaintiff Avery Anderson
100. Avery Anderson is an African-American male hired by Walgreens as an Assistant Store Manager/MGT in 2001 in Michigan. He was promoted to EXA in 2002. He was promoted to Store Manager in January 2005. For the majority of his career, Anderson has been assigned to African-American and/or lower income stores.
101. Anderson has been passed over for promotions given to less qualified and less experienced white employees. He has observed white EXAs receive Store Manager promotions who have been EXAs for less time than him. Anderson is aware of two white employees in his district who were promoted to Store Manager within two weeks of becoming EXAs and three other white employees who were promoted within three months of becoming EXAs. Shortly after Anderson and the other named plaintiffs filed Charges of Discrimination with the EEOC in late 2004, Walgreens promoted Anderson to Store Manager without explanation.
102. Anderson is an accomplished and dedicated worker who was hindered in his promotional opportunity to become Store Manager and has been discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower income stores as described in paragraphs 23, 26, 29 and 31(f). He has received lower bonuses and been required to perform more non-management tasks in understaffed stores as described in paragraphs 30 and 31(a).
103. As a result of the aforesaid conduct, Anderson has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation.
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K. Facts Material to Plaintiff Traci Dansberry 104. Traci Dansberry is an African-American female hired as a Student Pharmacist by
Walgreens in June 1998 in St. Charles, Missouri. She became a Staff Pharmacist on the midnight shift in June 1999, after graduating from pharmacy school. She became a Pharmacy Manager in May 2001. Throughout her employment as a Pharmacy Manager with Walgreens, Dansberry was assigned predominantly to African-American and/or lower income stores. The work environment at these stores made Dansberry’s employment more difficult and stressful.
105. While working as a Staff Pharmacist on the midnight shift, Dansberry told her Pharmacy Supervisor, Chris Wilburn, that she was interested in being promoted to Pharmacy Manager. Wilburn told her she could not become a Pharmacy Manager until she worked the day shift. Yet, shortly after being told she had to work days to be promoted, Walgreens promoted a white male whom had worked only the midnight shift. Dansberry continued to express her desire to become a Pharmacy Manager and was continually told that she would be kept in mind. Yet, during this time white pharmacy employees filled numerous Pharmacy Manager openings without Dansberry even being notified about the open positions.
106. Because of the continuing discrimination in promotional opportunities and segregation of African-American pharmacy employees, Dansberry and other African-American pharmacists complained in writing to Nimesh Javeri, Regional Pharmacy Director, and Jerome Karlin, Senior Vice President of Operations. Thereafter, Mr. Hunt telephoned Dansberry and told her that a Pharmacy Manager position would be opening in East St. Louis, Illinois. This store was 35 miles away from Dansberry’s residence, was a African-American and/or lower income store, and was located in a different state which would have required her to have a different license. Fortunately, Dansberry had already completed the necessary steps to obtain an Illinois license and took the position as it had become apparent to her that there would be no other options open to her for Pharmacy Manager.
107. Also in response to the complaint, one other African-American female pharmacist was promoted to the Pharmacy Manager position and one African-American female was
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promoted to Pharmacy Supervisor but both were still segregated to African-American and/or lower income stores. After the promotions of Dansberry and these two other African-American pharmacists, less qualified white employees continued to be awarded promotional opportunities over more qualified African-American pharmacists.
108. While working as a Pharmacy Manager in the East St. Louis, Illinois store, Dansberry became aware of an opening for a Pharmacy Supervisor and expressed her desire to be promoted to Pharmacy Supervisor to Mr. Hunt. After learning that interviews were being conducted for this position and realizing she had not heard anything further from Hunt about her interest in the position, Dansberry called Nimesh Javeri to express her interest. Dansberry was never promoted to the Pharmacy Supervisor position.
109. Subsequent to becoming a Pharmacy Manager in East St. Louis, Illinois, Dansberry tried on numerous occasions to be transferred to a pharmacy nearer to her home where the stores were located in more suburban and higher income areas. Despite her efforts, Dansberry was never transferred to a store near her home and instead was transferred to other stores located in African-American and/or lower income areas located a significant distance from her residence. Dansberry resigned her employment with Walgreens to pursue better advancement opportunities in a workplace free from racial discrimination.
110. Dansberry was an accomplished and dedicated worker who had been denied promotional opportunity to pharmacy supervisor and was discriminated against by Walgreens’ pattern and practice of steering African-American pharmacy employees to African-American and/or low income as described in paragraphs 22 and 29. She received lower bonuses as a result of the discriminatory behavior as described in paragraphs 27, 29 and 30.
111. As a result of the aforesaid conduct, Dansberry has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation.
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L. Facts Material to Plaintiff Carlos Zimmerman 112. Carlos Zimmerman is an African-American male hired as a Staff Pharmacist by
Walgreens. From September 6, 1996 to December 1998 he worked in Jacksonville, Florida, at store numbers 3382 and 3746. From December 1998 to late 2005, Zimmerman worked in the Tallahassee, Florida market primarily at store number 3430. He is currently working at store number 6206.
113. In 2003, Zimmerman became aware of two openings for Pharmacy Manager in the Tallahassee market and began completing the on line Pharmacy Manager tests in preparation for applying for these positions. However, prior to applying for the Pharmacy Manager positions, Zimmerman’s Pharmacy Supervisor, Jim Goodale, told him he could not apply because he worked the night shift and needed to work the day shift for a year before being eligible for the Pharmacy Manager. At that time, Zimmerman had worked the day shift for more than two years while employed as a Walgreens’ Staff Pharmacist in Jacksonville, Florida. Both of the Pharmacy Manager positions were given to white employees or either equal or less qualification then Zimmerman. The instruction that he work the day shift prior to applying was a pretext for intentional racial discrimination.
114. Zimmerman continued to express his desire to become a Pharmacy Manager up to and including 2005, when Pharmacy Manager positions became available, yet the prohibition from applying for the position remained in place. Each promotional opportunity was given to Pharmacists who were not members of the class and who had with fewer qualifications than Zimmerman including white pharmacy graduates from the University of Florida School of Pharmacy who were placed into Pharmacy Manager positions immediately after graduating.
115. Realizing that his ability to advance with the company as a Pharmacist was hampered by his race, Zimmerman completed the necessary requirements to become an EXA in the retail career path hoping to be able to find a means in which to advance with the company. Having been precluded from becoming a Pharmacy Manager in Tallahassee, he applied for and
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was granted a transfer to the Atlanta, Georgia market hoping for a better chance for race-neutral promotion practices to Pharmacy Manager.
116. Zimmerman is an accomplished and dedicated worker who has been denied promotion to Pharmacy Manager and discriminated against by Walgreens’ pattern and practice of failing to promote African-American Pharmacists as described in paragraph 27. He received lower bonuses as described in paragraph 30.
117. As a result of the aforesaid conduct, Zimmerman has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. M. Facts Material to Plaintiff Chris Dargin
118. Chris Dargin is an African-American male hired as a Staff Pharmacist by Walgreens. From January 20, 1993 to June 1996 he worked in Indianapolis, Indiana. From June 1996 until his resignation on February 25, 2005, Dargin worked in the Dallas/Fort Worth, Texas market. He was promoted to Pharmacy Manager in October 1994. Dargin resigned his employment with Walgreens to pursue better advancement opportunities and a workplace free from racial discrimination with another independent pharmacy.
119. During Dargin’s employment, he repeatedly applied for promotions to Pharmacy Supervisor. Despite being qualified for the position, he was rejected each time in favor of less qualified individuals. Dargin completed every requirement for promotion to Pharmacy Supervisor, including participation in the Emerging Leaders Program. Dargin was continually given changing reasons why he was denied the position of Pharmacy Supervisor. These reasons were false and a pretext for discrimination. On information and belief, African-American class members are rarely selected for Pharmacy Supervisor or above.
120. Also during Dargin’s employment with Walgreens he repeatedly applied for corporate pharmacy positions including Managed Care Coordinator, Specialty Clinical Pharmacist and Manager, Medication Use Evaluation among others. Again, despite being highly
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qualified for these positions, he was rejected each time. On information and belief, AfricanAmerican class members are rarely selected for corporate pharmacy positions.
121. Dargin was an accomplished and dedicated worker who was denied promotion to Pharmacy Supervisor and corporate pharmacy positions as described in paragraph 28 and was discriminated against by Walgreens’ pattern and practice of steering African-American employees to African-American and/or lower income as described in paragraphs 23 and 29. He received lower bonuses as described in paragraph 30.
122. As a result of the aforesaid conduct, Dargin has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation. N. Facts Material to Plaintiff Kimberly Wafford
123. Kimberly Wafford is an African-American female. She graduated from Purdue University in 2004 with a degree in chemical engineering. She wanted to work for Walgreens because she felt there would be opportunity for advancement and found the benefits package attractive.
124. She first applied for the MGT position in August 2004. She completed the application online from her home. She was not hired as an MGT because of her race.
125. Wafford was offered a position as a Photo Technician. Though she was disappointed that she was not hired as an MGT, she decided to accept the job. Even though it was not her choice, she reasoned that it would provide her with an opportunity to demonstrate her managerial skills to Walgreens.
126. Wafford began her employment as a Photo Technician with Walgreens on August 24, 2004 at store number 3045.
127. She commenced her first internal online application for management in approximately October 2004. Her Store Manager (white male) knew of her interest in management and approached her to discuss her interest. He said that he would like for her to take the job of SIMS Coordinator or Head Photo Specialist before going into management. He
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said taking either position would allow her work performance to be more easily measured and would also give the District Manager (white female) a chance to see her work.
128. Wafford was interviewed for a SIMS Coordinator and accepted the position in early January 2005.
129. Around March/April 2005, Wafford completed her internal online application for MGT when one of the Assistant Managers at her store, transferred to another location. Wafford told her Store Manager, that she had completed the application.
130. When Wafford didn’t hear anything after a few months, she wrote (e-mailed) her District Manager regarding the status of her application. District Manager Thompson stated that she would be in touch about a possible interview. Before Wafford was contacted about her application or scheduled for an interview, she learned that another white SIMS Coordinator without a college degree had been promoted to MGT.
131. In early October 2005, Store Manager Paul Stark interviewed Wafford and told Wafford he could see her moving up to a Store Manager position within three to five years. He also made the point that Walgreens was focusing on hiring people with college degrees for management positions. He said that many district employees would be retiring soon and the company would need good people to fill the vacancies. He told her that he would be recommending her for a second interview and asked her to call or e-mail him if she didn’t hear anything in a couple of weeks.
132. When Wafford did not hear anything by November 3, 2005, she e-mailed Stark to ask if he knew when the next interview would be taking place. He replied that he had talked with District Manager Thompson and Wafford’s Store Manager recently and would be back in touch in a few days.
133. Ms. Wafford did not hear anything until she e-mailed Stark again in January, 2006. He did not reply. However, on January 19, 2006, Robinson told Wafford that the company was not interested in promoting her at that time. He also stated that the company was not currently hiring many, or any, MGTs. In 2006, the MGT position in Wafford’s store
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became vacant. At first several white persons filled in, including one employee who had not been with the company long, lacked a college degree, and was promoted to MGT without an interview. The permanent replacement for MGT was transferred in from another store and does not have a college degree.
134. Walgreens’ rejection of Wafford for promotion to MGT was on account of her race, and the reasons she was proffered were a pretext for this discrimination.
135. As a result of the aforesaid conduct, Wafford has suffered past and future lost wages and related employee benefits, and emotional pain and suffering, and humiliation.
VII. FIRST CLAIM FOR RELIEF INTENTIONAL RACE DISCRIMINATION UNDER 42 U.S.C. § 1981 136. Plaintiffs reallege and incorporate by reference the allegations contained in Paragraphs 1 through 135 above as if set forth herein. 137. All the Plaintiffs and members of the class are African-American. 138. Walgreens has intentionally discriminated against Plaintiffs and the class on the basis of their race as set forth above in violation of Section 1981. 139. Walgreens intentionally has allowed its managers to make hiring, promotion, training, compensation, and store assignment decisions in its Retail and Pharmacy Career Paths in a discriminatory manner and based on highly subjective criteria, and without specific training in equal employment opportunity practices or oversight. Such subjective decision-making predictably and actually results in adverse impact on African-American employees in the Retail and Pharmacy Career Paths. 140. Plaintiffs and the class have suffered, are now suffering, and will continue to suffer irreparable injury from Walgreens’ policies, practices and procedures as set forth in this Complaint. 141. Plaintiffs and the class have suffered substantial economic loss of compensation and benefits and emotional pain and suffering, and humiliation as a result of Walgreens’ intentional discrimination.
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142. Walgreens’ actions were intentional and in willful, gross or reckless disregard of the Plaintiffs' and class rights under Section 1981.
143. As a direct and proximate result of Walgreens’ intentional discrimination against them, Plaintiffs and the class are entitled to the relief set forth in the Prayer below.
VIII. SECOND CLAIM FOR RELIEF DISPARATE TREATMENT UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Plaintiffs Tucker, Miller, Haney, Bradley, M. Jackson, A. Jackson, Strickland, Green, Riddle, Dansberry, Anderson, Zimmerman, and Dargin allege disparate treatment under Title VII.
144. Plaintiffs reallege and incorporate by reference the allegations contained in Paragraphs 1 through 143 above as if set forth herein.
145. Walgreens has intentionally discriminated against Plaintiffs and the class in violation of Title VII by (1) denying African-American employees promotions in the Retail and Pharmacy Career Paths and corporate/district jobs on the basis of race; (2) assigning AfricanAmerican employees in the Retail Career Path to African-American and/or lower income stores on the basis of race; (3) assigning African-American employees in the Pharmacy Career Path to African-American, and/or lower income stores on the basis of race; (4) assigning AfricanAmerican managers in the Retail and Pharmacy Career Paths to stores with characteristics such as low bonus, low sales and high shrink which adversely affect their opportunity to earn bonus compensation; (5) denying African-Americans seeking promotion into management positions in the Retail and Pharmacy Career Paths equal training opportunities on the basis of race; (6) denying African-Americans seeking management positions in the Retail and Pharmacy Career
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Paths equal hiring opportunities on the basis of race; and (7) denying African-American employees equal terms and conditions of employment.
146. As a result of the violation of the Title VII rights of Plaintiffs and the class, Plaintiffs and members of the class are entitled to equitable and injunctive relief, including “rightful place” and “make whole” remedies and equitable monetary relief, compensatory and punitive damages to remedy and compensate for the effects of Defendant’s unlawful actions.
IX. THIRD CLAIM FOR RELIEF AND DISPARATE IMPACT UNDER TITLE VII
Plaintiffs Tucker, Miller, Haney, Bradley, M. Jackson, A. Jackson, Strickland, Green, Riddle, Dansberry, Anderson, Zimmerman, and Dargin allege illegal disparate impact under Title VII.
147. Plaintiffs reallege and incorporate by reference the allegations contained in Paragraphs 1 through 146 above as if set forth herein.
148. Walgreens’ policies and practices for determining promotions and job transfers in the Retail and Pharmacy Career Paths have a disparate racial impact on African-American employees and are neither job-related nor consistent with business necessity, and therefore violate the rights of Plaintiffs and members of the class under Title VII.
149. Walgreens’ policies and practices for determining store assignments in its Retail and Pharmacy Career Paths have a disparate racial impact on African-American employees and are neither job-related nor consistent with business necessity, and therefore violate the rights of plaintiffs and members of the class under Title VII.
150. Walgreens’ policies and practices for determining compensation for managers in its Retail and Pharmacy Career Paths have a disparate racial impact on African-American
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employees and are neither job-related nor consistent with business necessity, and therefore violate the rights of Plaintiffs and members of the class under Title VII.
151. Walgreens’ policies and practices for determining training opportunities for those seeking management positions in its Retail and Pharmacy Career Paths have a disparate racial impact on African-American employees and are neither job-related nor consistent with business necessity, and therefore violate the rights of Plaintiffs and members of the class under Title VII.
152. As a result of the violation of the Title VII rights of Plaintiffs and the class, Plaintiffs and members of the class are entitled to equitable and injunctive relief, including “rightful place” and “make whole” remedies and equitable monetary relief, to remedy and compensate for the effects of Defendant’s unlawful actions.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: A. That the Court certify this case as a class action as pleaded, appointing the named Plaintiffs as class r epresentatives and their att orneys, Foland, Wickens, Eisfelder, Roper & Hofer, P.C.; Goldstein, Demchak, Baller, Borgen & Dardarian; and Spriggs Law Firm, as class counsel; B. That the Court ent er judgment for Plai ntiffs and members of the cl ass against Walgreens on the claims made in the First, Second, and Third Claims for Relief stated above; C. That the Court enter an order declaring that the acts and practices of Walgreens and their officers, owners, agents, successors, employees, representatives and any and all persons acting in concert with them are in violation of the law, specifically Section 1981 and Title VII, and that they be preliminarily and permanently enjoined from engaging in each of the unlawful practices, policies, customs and usages set forth herein; D. That the Court enter an order to institute and carry out policies, practices and programs which effectively and affirmatively provide equal employment opportunities for AfricanAmericans and eradicate the vestiges and effects of its past and present unlawful employment
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practices, and grant such injunctive and equitable relief as is necessary to cure the effects of Walgreens’ unlawful practices and to prevent future unlawful discrimination;
E. That the Court award Plaintiffs and the class punitive damages; F. That the Court enter judgment awarding Plaintiffs and the class lost back pay, front pay and related employee benefits that they would have earned but for Walgreens’ discrimination; G. That the Court order individual injunctive relief for the Plaintiffs and the class including promotion or other placement according to proof; H. That the Court order individual compensatory damages to Plaintiffs and the class according to proof; I. That the Court enter an award to Plaintiffs of reasonable attorneys’ fees and costs incurred in this action and pre-judgment interest; and J. That the Court award such other and further relief as this Court deems just and appropriate.
JURY DEMAND Plaintiffs demand trial by jury of all counts alleged in this Complaint triable by jury. Dated: September ___, 2006
Respectfully submitted, /s/ Tiffany B. Klosener TIFFANY B. KLOSENER(Pro Hac Vice) AMY L. COOPMAN(Pro Hac Vice) W. JAMES FOLAND(Pro Hac Vice) FOLAND, WICKENS, EISFELDER, ROPER & HOFER, PC 911 Main Street, 30th Floor Kansas City, MO 64105 (816) 472-7474 (816) 472-6262 (Fax)
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KENT SPRIGGS(Pro Hac Vice) SPRIGGS LAW FIRM 324 West College Avenue Tallahassee, FL 32301 (850) 224-8700 (850) 224-8836 (Fax) TERESA DEMCHAK (Pro Hac Vice) MORRIS J. BALLER (Pro Hac Vice) JOSEPH E. JARAMILLO (Pro Hac Vice) GOLDSTEIN, DEMCHAK, BALLER BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800 (510)835-1417 (Fax) tdemchak@gdblegal.com mballer@gdblegal.com jjaramillo@gdblegal.com Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE

The undersigned does hereby certify that on the ___ day of September, 2006, the above and foregoing document was electronically filed with the Clerk of the Court using the CM/ECF system, who will send notification of such filing to the following CM/ECF participants:

John A. Ybarra Keith C. Hult Paul E. Bateman Shanthi V. Gaur LITTLER MENDELSON 200 North LaSalle Street, Suite 2900 Chicago, IL 60601 (312) 372-5520 (telephone) (312) 372-7880 (facsimile) jybarra@littler.com khult@littler.com pbateman@littler.com sgaur@littler.com

Thomas R. Peters Curtis R. Picou GUNDLACH LEE, ET AL. 5000 West Main Street P.O. Box 23560 Belleville, IL 62223-0560 (618) 277-9000 (telephone) (618) 277-4594 (facsimile) t.peters@gundlachlee.com c.picou@gundlachlee.com

Allan G. King LITTLER MENDELSON 2001 Ross Avenue Suite 2600, Lock Box 116 Dallas, TX 75201-2931 (214) 880-8100 (telephone) aking@littler.com

/s/ Tiffany B. Klosener Attorney for Plaintiffs

 
 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

JOHN TUCKER, et al.
Plaintiffs, v.
WALGREEN COMPANY,
Defendant.

)

)

)

CASE NO. 05-CV-440-GPM

)

Chief Judge G. Patrick Murphy

)

Magistrate Clifford J. Proud

)

)

)

PLAINTIFFS’ MOTION TO COMPEL RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

COME NOW Plaintiffs, by and through counsel, and pursuant to Federal Rules of Civil

Procedure 26, 34 and 37, move this Court to compel Defendant Walgreen Co. (“Walgreens”) to

produce documents, including electronic personnel databases, responsive to Plaintiffs’ First

Request for Production of Documents (“RFP”). In support of this motion, Plaintiffs state as

follows:

I. INTRODUCTION

In June 2005, Plaintiffs, fourteen African-American current and former Walgreens

employees brought this nationwide race discrimination class action against Walgreens pursuant to

42 U.S.C. § 1981. Walgreens operates approximately 4,700 retail drug stores throughout the United

States. Plaintiffs have worked in Florida, Illinois, Indiana, Michigan, Missouri, Kansas, and Texas.

In August 2005, Plaintiffs filed a First Amended Complaint (“FAC”) alleging that Walgreens

maintains a nationwide pattern or practice of discrimination against African-Americans in (1)

promotions within its retail management and pharmacy career tracks and non-retail corporate

positions; (2) selections for entry level retail management trainee positions; and (3) assignments to

less desirable stores which impede their compensation and promotion opportunities.

Plaintiffs seek hybrid class certification under Fed. R. Civ. P. 23(b)(2) and (b)(3), or under (b)(3), see FAC, ¶¶ 54-60. In their pursuit of class certification, Plaintiffs are mindful of Rule 23(a)’s four prerequisites to maintaining a class action:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Plaintiffs propounded their First Request for Production of Documents (“RFP”) seeking information that will (1) demonstrate the appropriateness of class certification; and (2) offer significant proof of Walgreens’ centralized, nationwide policy of race discrimination in each of the areas of employment alleged in the FAC.1 Walgreens’ responses to the RFP are seriously inadequate and replete with numerous objections. Walgreens produced documents in response to only three of the forty-one requests. It produced no electronic personnel databases. Moreover, during the parties’ meet and confer process that preceded this motion, Walgreens took positions that would seriously impede Plaintiffs’ ability to obtain documents and data they need to meet Rule 23 requirements. Specifically, Walgreens seeks to severely limit the geographic scope of discovery and to produce a subset of data and documents that would prevent Plaintiffs from analyzing the company-wide impact of the challenged employment practices. Additionally, Walgreens has failed to produce documents it acknowledges are responsive to the requests and to which it does not object and has refused to give Plaintiffs a timeframe for when it will produce these documents. Walgreens has asserted various privileges but has failed to identify with any specificity the documents it contends are privileged, and has refused to give Plaintiffs a time frame for when it will identify these documents or produce a privilege log.
1 See ABA Civil Discovery Standards (1999) (“ABA Discovery Standards”), § 5(a) at p.11 (“[a] party should tailor discovery requests to the needs of [the] case. This means that the content of the requests should apply to the case, and the form of discovery requested should be the one best suited to obtain the information sought. (Exh. 3).
2

Walgreens’ dilatory tactics are troubling under any circumstances; however, they are especially so here because of the limited time within which Plaintiffs must move for class certification to comply with the trial scheduling requirements of the Local Rules. For all of these reasons, Plaintiffs respectfully request that the Court order Walgreens to immediately and completely produce the documents and data responsive to Plaintiffs’ RFP, as identified herein.
II. PROCEDURAL BACKGROUND The following events summarize efforts leading to this Motion to Compel. On August 18, 2005, Plaintiffs submitted to the Court and Walgreens a letter with
suggestions regarding the exchange of documents under Fed. R. Civ. P. 26(a) and pointing out that “because this case is pleaded as a large class action[,] … it is anticipated that the Initial Disclosures under Rule 26(a) by the Defendant will include the basic electronic personnel records from which statistical inferences will be made.” See Exh. 4, Aug. 18, 2005 Letter T. Klosener to Magistrate Judge Proud.2
On September 21, 2005, Plaintiffs’ counsel documented efforts to discuss with Walgreens’ counsel the suggestions raised in the August 18 letter and again requested to confer on the matters. See Exh. 5, Sept. 22, 2005 Letter T. Klosener to J. Ybarra. To date, Walgreens has refused to allow the parties’ respective computer scientists to meet informally with counsel to facilitate the exchange of electronic personnel data. Plaintiffs renewed their suggestions on ways to facilitate production of the database in a conference of September 29, 2005.3
2 The suggestions Plaintiffs made are of the kind encouraged by the ABA to streamline and reduce the costs of discovery. See ABA Discovery Standards, § 14(a) at p. 24 (“the parties should confer to try to agree on the most efficient and cost-effective way to have the documents produced and reviewed.”) (Exh. 3). 3 Walgreens’ counsel disclosed that Walgreens would not be ready to transmit the electronic personnel records requested in Plaintiffs’ RFP in the time allotted by Rule 34. Plaintiffs suggested that the parties’ computer scientists discuss the existence and format(s) of the electronic personnel records, as suggested first in the August 18 letter to Magistrate Judge Proud. Counsel for Walgreens refused. Plaintiffs also suggested that Walgreens produce at least the record layout(s) or descriptions of the fields of data contained in the database(s) to allow counsel for both sides to discuss any fields to which Walgreens might object as being beyond the scope of discovery. Walgreens also rejected this proposal. Plaintiffs’ counsel have used both suggested procedures successfully in other employment
3

On September 23, 2005, Plaintiffs received Walgreens’ Rule 26(a) disclosures -- 18 days late. See Exh. 8. They included no documents or database records. Walgreens asserted various privileges but has never submitted a privilege log as required by Rule 26(b)(5).
On October 6, 2005, Walgreens served its Responses and Objections to Plaintiffs’ RFP three days late.4 See Exh. 2. The only documents Walgreens produced were allegedly complete copies of personnel files of named class representatives and various workplace policies. It did not produce any personnel databases or electronic records. On October 10, 2005, Plaintiffs sent a letter to Walgreens outlining the inadequacies of the responses. See Exh. 9, Oct. 10, 2005 Letter T. Klosener to J. Ybarra. On October 14 and 17, 2005, the parties engaged in two telephone conferences for more than three hours to discuss the discovery disputes. Unable to resolve the dispute, Plaintiffs bring the instant motion. III. DISCOVERY STANDARDS AND GUIDELINES
Rule 26(b) permits discovery into “any matter, not privileged, that is relevant to the claim or defense of any party.” See Acuna v. Rudzinski, 2001 LEXIS 18848, *13 (N.D. Ill. 2001). However, for good cause, a court may order discovery of any matter relevant to the subject matter involved in the action. White v. Kenneth Warren & Son, Ltd., 203 F.R.D. 364, 366 (N.D. Ill. 2001). For purposes of discovery, relevancy will be construed broadly to encompass “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” TIG Ins. Co. v. Giffin, Winning, Cohen & Bodewes, 2001 LEXIS 12995, *1-*2 (N.D. Ill. 2001), quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
discrimination class action cases to streamline production of electronic personnel data. See Exhs. 6 and 7 (Oct. 4, 2005 emails between K. Spriggs and J. Ybarra.) 4 Plaintiffs’ RFP was served on September 1, 2005. Pursuant to Fed. R. Civ. P. 5(b)(2)(B) and 34, Walgreens’ responses were due on October 3, 2005. Although Walgreens’ responses were served three (3) days late and the Plaintiffs had not consented to the late service, Plaintiffs did not did not object to the Court.
4

A party seeking to certify a class must demonstrate that it has met all four requirements of Fed. R. Civ. P. 23(a), and at least one of the requirements of Rule 23(b). Wilfong v. Rent-aCenter, 2001 U.S. Dist. LEXIS 16958, *2-*4 (S.D. Ill. Dec. 27, 2001); Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 143 (N.D. Cal. 2004). The party seeking certification must provide facts sufficient to satisfy Rule 23(a) and (b) requirements. Dukes, 222 F.R.D. at 143, citing Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308-09 (9th Cir. 1977). A court should rule on Rule 23 issues only on the basis of a fully-developed record. General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982) (“rigorous analysis”). Integral to that “vigorous analysis” is the right of the plaintiffs to adequate discovery to allow a full presentation of the facts. Doniger, 522 F.2d at 1312-13; Abdallah v. The Coca-Cola Company, 1999 U.S. Dist. LEXIS 23211 (N.D. Ga., July 16, 1999) (the shape and form of a class action evolves only through the process of discovery, and it is premature to draw a conclusion as to class certification before the claim has taken form). In making its Rule 23 determination, it is appropriate for the court to consider evidence submitted outside of the pleadings, such as deposition testimony, declarations, and expert reports. Hirschfeld v. Stone, 193 F.R.D. 175, 182 (S.D. N.Y. 2000), citing Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir. 1982).
In two recent significant cases alleging nationwide patterns of employment discrimination, the plaintiffs met their Rule 23 commonality requirement by presenting “extensive evidence of (1) facts and expert opinion supporting the existence of company-wide policies and practices; (2) expert statistical evidence of class-wide gender disparities attributable to discrimination; and (3) anecdotal evidence from class members around the country of discriminatory attitudes held or tolerated by management.” Dukes, 222 F.R.D. at 144; see also Wilfong, 2001 U.S. Dist. LEXIS 22718 at *8, 11 (“Plaintiffs offer significant proof of a general policy of sex discrimination which manifests itself in each of the employment practices under attack … [and] statistics … [that] establish the existence of a class of women who were arguably
5

affected by the implementation of the anti-female policy by the company’s operating management.”).5
Using these and other company-wide employment discrimination class actions as
guidelines, Plaintiffs carefully tailored their RFP to seek the production of documents and other
information of the type courts have relied on in making Rule 23 determinations and granting
certification. Plaintiffs discuss the inadequacies of Walgreens’ RFP responses and why they
unfairly limit Plaintiffs’ ability to meet their Rule 23 requirements below.
IV. DISCOVERY ISSUES IN DISPUTE
A. The Appropriate Geographic Scope Of Discovery In This Nationwide Class Action6
Walgreens seeks to limit the geographic scope of its responses to Request Nos. 1-2,
which seek production of electronic databases containing race, job and compensation history “for
all present and past employees of Walgreens …” (Request No. 1) and race and other data for
“internal and external applicants for … retail store and pharmacy management trainee and management positions (Request No. 2).7
Plaintiffs seek production of company-wide personnel data. Walgreens, however, seeks
to limit its production to a restricted universe of its own design. Specifically, Walgreens
proposes to produce data only for districts that have stores in what Walgreens characterizes as
5Both Dukes and Wilfong involved large multiple facility companies, like the defendant here. In Dukes, Walgreens represented that “the proposed class covers at least 1.5 million women who have been employed over the past five years at roughly 3,400 stores.” Dukes, 222 F.R.D. at 142. In Wilfong, the district court noted that Rent-a-Center operated “over 2200 stores.” Wilfong, 2001 U.S. Dist. LEXIS 22718 AT *4. 6 Walgreens also objects to the temporal scope of Plaintiffs’ discovery requests, which Plaintiffs defined as from January 1, 1998 to the present time. See Exh. 1, Plaintiffs’ RFP at 3, ¶ 8. Walgreens proposed no alternative to this time period. Plaintiffs are willing to be flexible regarding the temporal scope of pre-class certification discovery. 7 Although Request No. 2 sought external applicant data for both the Assistant Store Manager/Management Trainee and other management positions, Plaintiffs will limit their request to Assistant Store Manager/Management Trainee applicants (both internal and external) only. Additionally, it is Plaintiffs’ understanding that the Assistant Manager and Management Trainee positions are, in fact, the same position and represent different names Walgreens has used over time for the entry level management trainee position. For the sake of simplicity, Plaintiffs will refer to this position as the Management Trainee (“MGT”) position throughout this motion.
6

“African-American/low income Peer Groups.”8 By Walgreens’ own estimate, this restriction would limit its production to personnel data covering only about thirty percent (30%) of the company.
Walgreens’ purported primary rationale for refusing to produce company-wide data is its disingenuous interpretation of the FAC as alleging that the pattern or practice of discrimination against African-Americans is confined to “African-American/low income Peer Group” stores and/or districts that contain these stores.
Walgreens’ geographic scope objection is baseless, and its reading of the FAC is plainly wrong. The severe geographic restriction on discovery of personnel databases Walgreens proposes would seriously impede Plaintiffs’ ability to conduct critical statistical analyses necessary to demonstrate company-wide patterns of racial disparities in assignments, compensation, and promotions and, thereby, to meet Rule 23(a)’s “commonality” requirement.9 Moreover, the data Walgreens proposes would yield seriously distorted statistical analyses that would not accurately reflect company-wide patterns of the challenged employment practices.10
1. Walgreens’ Reading of the FAC is Contrary Its Clear and Unambiguous Language.
Walgreens’ strained reading of the FAC ignores that Plaintiffs have pleaded separate and distinct claims of promotion discrimination and segregation on behalf of a nationwide class of
8 Plaintiffs understand Walgreens maintains “Peer Group” information for most of its stores. Two of the “Peer Groups” are referred to as “African-American/low income.” See Exh. 10 (Peer Group Information). 9 In any event, Walgreens has not produced even this limited data to Plaintiffs. “It is improper to withhold documents that are clearly called for by a request simply because the responding party objects to producing some of the documents that have been asked for.” ABA Discovery Standards, § 12(d) at p.21 (comments section). 10 Additionally, Walgreens’ refusal to provide company-wide personnel data will hinder Plaintiffs’ ability to identify and contact class members to gather anecdotal evidence in support of class certification. See Wilfong 2001 U.S. Dist. LEXIS 22718, *13-14 (citing the “275 sworn declarations from current and former employees” about ways they had been discriminated against by defendant on account of their gender, and finding “[t]hese declarations provide ‘the personal experiences with the company’ that “bring the cold numbers convincingly to life.”)
7

African-Americans.11 Specifically, FAC, ¶¶ 24 (a) – (d), allege discrimination in selections and promotions, irrespective of store location or designation; ¶ 26, alleges discrimination in selections of management trainee positions, irrespective of store location or designation; ¶ 27, alleges discrimination in promotions, irrespective of store location or designation; ¶ 28, alleges discrimination in promotions, irrespective of store location or designation; and ¶ 29, alleges discrimination in promotions, irrespective of store location or designation.12
In sum, Plaintiffs allege Walgreens discriminates against African-Americans in promotions within the retail and pharmacy management career paths throughout the country generally, irrespective of the store location or designation to which African-Americans are assigned, and into non-retail corporate positions.13 Plaintiffs separately and independently also allege that training, promotion and compensation opportunities of African-Americans are further adversely impacted by Walgreens’ disproportionate assignment of African-Americans to stores which Plaintiffs characterize as “African-American/low income.” See n. 11, supra.
In fact, § IV of the FAC, which is titled “General Patterns of Discrimination and Segregation,” contains two subsections. Subsection A is titled “Discrimination in Selections and Promotions.” See FAC, ¶¶ 26-29. Subsection B is titled “Segregation of Black Management Employees and Pharmacists.” See FAC, ¶¶ 28-31.
Thus, a fair, and indeed the only, reading of the FAC makes evident that Plaintiffs pleaded distinct and separate allegations of “discrimination” and “segregation.” Walgreens’
11 Although the FAC refers to “African-American/low income stores,” Plaintiffs use that term in a much more generic sense than Walgreens. Plaintiffs do not confine their use of the term to stores in “African-American/low income Peer Groups,” but instead to “African-American/low income stores” which include stores that are located in higher than average African-American and/or in lower than average income neighborhoods. 12 Likewise, FAC ¶ 48, separates low income and predominantly minority stores individually and not combined as one defined category. 13 This discriminatory pattern or practice also has an attendant impact on the compensation of African-Americans who are denied promotions into higher level positions or whose promotions are delayed on account of race.
8

attempt to read into the FAC a limitation on the geographical scope of Plaintiffs’ allegations is unsupportable.14
2. Plaintiffs Must Be Able to Discover and Analyze Company-wide Data and Documents in Order to Meet The Requirements of Rule 23 a. Geographical Limitations on the Personnel Data Would Impede Plaintiffs’ Ability to Conduct Adequate Statistical Analyses To Show “Commonality.”
Most significantly, Walgreens’ restriction on the geographic scope of discovery would prevent Plaintiffs from presenting comprehensive statistical analyses in support of class certification. “The importance of statistical analysis to a certification of a class in employment discrimination is well-documented.” Jefferson v. Ingersoll Milling Machine Co., 1999 U.S. Dist LEXIS 13126, (N.D. Ill. Oct. 8, 1998), affirmed in relevant part and vacated in part, 195 F.3d 894 (7th Cir. 1999); see also Dukes, 222 F.R.D. at 154, citing Caridad v. MetroNorth Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999) (“[u]se of statistical analysis to raise an inference of class-wide discrimination and satisfy commonality is well accepted.”). In Dukes, the prominent nationwide gender discrimination class action against Wal-Mart, plaintiffs presented, and the district court relied on, statistical analyses of company-wide promotions, compensation and other data in determining that plaintiffs’ met Rule 23’s commonality requirement. See Dukes, 222 F.R.D. at 155. Wal-Mart produced extensive and company-wide electronic records on all of its
14 Illustrative of Walgreens’ misreading of the FAC, is its counsel’s observation that “if the discrimination [Plaintiffs] complain about is the staffing of “African-American/low income” stores, as alleged in the Amended Complaint, then it follows that the only employees who could be injured by that practice are those who were, or could have been, assigned to these stores. An African-American employee in Idaho, for example, cannot be in the class if there are no “African-American/low income” stores to which this person could have been discriminatorily assigned.” See Exh. 11, Oct. 18, 2005 Letter J. Ybarra to T. Klosener at 6. However, if this hypothetical AfricanAmerican employee in Idaho was rejected for a MGT position or denied a promotion in the retail management career path or pharmacy career path, or into a non-retail corporate management position because of his or her race, he or she is a member of the class as pleaded by Plaintiffs. See FAC ¶¶ 24, 26-29.
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employees nationwide during pre-class certification discovery, which plaintiffs’ experts analyzed and provided testimony on in support of plaintiffs’ motion for class certification.15
In Wilfong, also certified as a nationwide class, plaintiffs presented statistics
demonstrating that “women have been under-represented in hiring, been denied promotions at
statistically significant lower rates … and … terminated at higher rates than similarly situated
men, again to a statistically significant degree.” Wilfong, 2001 U.S. Dist. LEXIS 22718, *13.
These statistics provided the “kind of significant proof that an employer operates under a general
policy of discrimination which will support a finding of commonality under Rule 23.” Id.
Likewise, in this case, Plaintiffs’ labor market economist expert, Dr. Marc Bendick,
states that to test the three major hypotheses alleged in the FAC, i.e., that there are company-
wide patterns of discrimination against African-Americans in promotions, store assignments, and
MGT selections, it is imperative to analyze nationwide statistical data. See Exh. 13, Declaration of Dr. Marc Bendick (“Bendick Decl.”) at ¶¶ 11-23.16 With respect to promotions, Dr. Bendick
states that if the data is limited to the universe of districts containing “African-American/low
income Peer Group” stores, as Walgreens proposes,
. . . it would be difficult to draw sound, empirically-based conclusions on the company’s promotional practices nation-wide for at least three reasons:
· The data would not provide direct evidence on promotional practices in all districts.
15 Plaintiffs’ statistical expert in Dukes described the records Wal-Mart produced as including: (1) “an electronic copy of Wal-Mart’s personnel database including data for all U.S. employees who were employed between January, 1996 and March, 2002. There were 3,945,151 persons included in this database.”; (2) “[a] Complete job history for each of these persons …, including job history information …” including “[f]or each person, … basic identification information such as employee ID, social security number, name, address, phone number, gender, and race, as well as extensive information on the person’s job history at Wal-Mart:” (3) “250 computer tapes which included detailed biweekly payroll information for Wal-Mart U.S. employees, and year-end summaries of payroll data for each person, for the years 1996-2001;” (4) “two databases [with] limited information about employees who bid for job vacancies;” (5) Wal-Mart’s “associate database, which include[d] information on recent performance review ratings for hourly employees;” and (6) data pertaining to salaried employees, including “Performance Review information.” See Exh. 12, Richard Drogin, Ph. D., Statistical Analysis Of Gender Patterns In Wal-Mart Workforce, February 2003, filed in Dukes v. Wal-Mart, Case No. C01-02252 MJJ (N.D. Cal.), at ¶¶ 6-11. 16 Dr. Bendick was one of the plaintiffs’ experts in Dukes.
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· It would be risky to make inference from those 80-100 districts to the remaining districts because the remaining districts are known to be different from the districts about which [he] would have data in at least one important way (the presence or absence of “African American/low income” stores. And
· Because of the inter-district promotions, applicant and selection information would be incomplete even for the districts for which data were provided.
Id. at ¶ 14.
Dr. Bendick identifies similar deficiencies in analyses of patterns of store assignments
and MGT selections based on the limited data Walgreens proposes to produce. Id. at ¶¶ 15-22.
Additionally, Dr. Bendick describes examples of the possible “interactions among the three
hypotheses,” id. at ¶¶ 24-25, and concludes that:
Because of such possible interactions among hiring, promotions and assignments, to accurately test any of the three principal hypotheses of discrimination nationwide requires nation-wide data on all three processes. Geographically-limited data on . . .* any of the three subjects -- such as from 1,500 stores in 80-100 districts -- would adversely affect the accuracy of the analysis on all three hypotheses.
Id. at ¶ 26 (emphasis in original).
Additionally, the universe of personnel data Walgreens proposes would present a skewed
picture of the company. If, as Plaintiffs allege, Walgreens disproportionately assigns African-
Americans to certain stores, statistical analysis of employment decisions in those stores and other
stores in the same districts would not accurately reflect company-wide patterns. For example, if
as Plaintiffs allege, African-Americans promoted by Walgreens to retail management positions
are more likely to be assigned to certain stores, then analyzing the promotion patterns of those
stores and other stores in the same district would, not surprisingly, reflect higher promotion rates
for African-Americans than for the company as a whole or in other districts, thus skewing the
results of the analyses in Walgreens’ favor. Moreover, an analysis of such limited data would
fail to account for the impact of inter-district promotions. See Exh. 13, Bendick Decl. at ¶¶ 14,
18. Additionally, limiting production to a subset of store and district level data, would absolutely
11

prevent Plaintiffs from analyzing racial disparities of promotions into non-retail corporate positions, which Plaintiffs contend are discriminatory. See FAC, ¶ 29.
For all of the reasons discussed above, the Court should direct Walgreens to produce the electronic databases in response to Plaintiffs’ Request Nos. 1 and 217, in their entirety and immediately.
b. Walgreens’ Geographic Scope Limitation on Discovery Would Prevent Plaintiffs From Obtaining Documents to Show Uniform Practices and Company Structure.
Walgreens also objected to and seeks to limit the geographic scope of its responses to Request Nos. 5-7, 23, 25-31, 33, 36-37. These requests seek the production of “EEO-1 reports” (Request No. 5); “organizational charts” (Request No. 6); “documents identifying … the location … of each [Walgreens] retail store” (Request No. 7); documents reflecting procedures or criteria used in store assignment of retail and pharmacy managers (Request No. 23); documents pertaining to “manpower meetings” (Request No. 25); 18 documents pertaining to the procedures or criteria used in selecting employees to participate in the Emerging Leaders Program (“ELP”) and comparable programs for the Pharmacy career path (Request Nos. 26, 29);19 documents identifying the name and race of all employees who have been in the ELP and comparable programs for the Pharmacy career path (Request Nos. 27, 30), databases reflecting the applicant flow and selection rates for the ELP and comparable programs for the Pharmacy career path (Request No. 28, 31); equal employment opportunity policies, statements and training materials (Request No. 33); and internal and external complaints of race discrimination (Request Nos. 36, 37).
17 Request 2 is discussed more fully in section (C), infra. 18 Plaintiffs understand that at these meetings the Regional Vice Presidents and District Managers evaluate the EXAs and Store Managers to plan for future store staffing and placement. 19 The Emerging Leaders Program is a nationwide program for which store and pharmacy managers are selected as part of the process of becoming eligible for promotion to retail district manager and pharmacy supervisor positions.
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Walgreens seeks to limit production of these documents to only that portion of the company that contain stores in “African-American/low income Peer Groups.” However, production of these documents on a company-wide basis is necessary for Plaintiffs to be able to determine whether Walgreens’ policies governing assignment, compensation, promotion, selection and training “are similar across all stores;” and whether “there is a basic organizational structure that is consistent across store types and throughout the company's domestic stores in important respects.” Dukes, 222 F.R.D. at 145.
For example, the Emerging Leaders Program, i.e., Request Nos. 26-31, is a single program which brings together managerial candidates from the whole nation. Nevertheless, Walgreens seeks to limit production of documents pertaining to this program to a narrow universe, preventing Plaintiffs from analyzing the company-wide patterns of selections for the program. Additionally, Walgreens refuses to produce documents describing its corporate operations, i.e., Request No. 6. These documents are necessary to determine if “there is a basic organizational structure that is consistent across store types and throughout the company's domestic stores in important respects.” Moreover, these documents could provide information that may (i) explain or help explain the decision-making chain of command responsible for the discriminatory practices alleged in the FAC; (ii) identify departments or persons responsible for investigating and resolving complaints of discrimination by Walgreens’ employees; or (iii) reveal departments or persons with responsibility for human resources, personnel, equal employment and/or diversity management and oversight.
The failures to respond to Request 6 (organization charts) and 8 (job descriptions) would preclude the Plaintiffs from elementary data about jobs for which two named Plaintiffs applied. Plaintiff Chris Dargin applied for at least three corporate positions (FAC, ¶ 129) while Plaintiff Arien Jackson applied for two such positions. FAC, ¶¶ 78-79.
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The Court should direct Walgreens to produce documents responsive to Request Nos. 57, 23, 25-31, 33, 36-37 in their entirety and immediately.
B. Data and Documents Regarding Factors Affecting the Desirability of Walgreens’ Retail Stores
Plaintiffs’ Request Nos. 15-22 seek data regarding Walgreens’ stores, including customer count (Request No. 15), profit (Request Nos. 16-18), “shrink” (Request No. 19), incident reports (Request No. 20), the presence of security guards (Request No. 21) and staffing levels (Request No. 22). Plaintiffs seek this information to demonstrate “commonality” and in support of their segregation claim, i.e., that Walgreens maintains a pattern or practice of disproportionately assigning African-American retail management and pharmacy track employees to less desirable stores, and thereby impeding their promotional and compensation opportunities. See FAC, ¶¶ 29-31.
Walgreens claims that its proposal to provide Plaintiffs with data for employees in districts with “African-American/low income Peer Group” stores negates Plaintiffs’ need for the information sought in Request Nos. 15-22. See Exh. 14, Oct. 17, 2005 Letter T. Demchak to J. Ybarra at 7. However, as discussed above, Walgreens’ presumption that Plaintiffs’ reference to “African-American/low income store” is limited to the “African-American/low income Peer Groups” is disingenuous and flatly wrong. Plaintiffs allege that African-Americans are more often assigned to “difficult” stores, stores with “security issues,” “high customer volume” stores, stores that “employ security guards,” and/or “understaffed” stores. See e.g., FAC, ¶¶ 57, 75 and 79. These may or may not correspond to stores in Walgreens’ “African-American/low income Peer Groups.” The information sought by these requests is necessary to determine whether there are common patterns of assignment of African-Americans to stores with these factors and whether those assignments negatively affect their promotion and compensation opportunities, as alleged in the FAC.
14

Dr. Bendick’s opinion supports this point. See Exh. 13, Bendick Decl. at ¶ 18 (4th bullet) (“categorizing stores as ‘African-American/low income’ versus ‘all others’ may not reflect the actual distinction between stores to which African-Americans may be discriminatorily assigned.”).
C. Data Regarding External Applicants for Management Trainee Positions Plaintiffs’ Request No. 2 seeks production of documents identifying “internal and
external applicants for employment in Walgreens’ retail store and pharmacy management trainee positions.” Plaintiffs’ Request No. 24 seeks documents “pertaining to [Walgreens’] formal external recruitment of candidates for retail store Management Trainee positions.” Walgreens objected to and refuses to produce documents pertaining to “external applicants” in response to Request No. 2, 20 and to produce any documents in response to Request No. 24, on grounds that the information is “irrelevant to any claim or defense in this case.” Specifically, Walgreens contends that since “none of the named Plaintiffs allege that they suffered discrimination as an external applicant,” Plaintiffs have no right to obtain documents pertaining to external applicants.21 See Exh. 11, Oct. 18, 2005 Letter J. Ybarra to T. Klosener at 6; see also id. at 8-9. Courts have certified classes that in which employees were allowed to represent external applicants. Richardson v. Byrd, 709 F.2d 1016, 1020 (5th Cir. 1983).
To the extent that Walgreens’ objection is an attack on Plaintiffs’ ability to meet Rule 23’s typicality requirement, that challenge is premature and, in any event, without merit. “Typicality is said to require that the claims of the class representatives be typical of those of the class, and to be satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.”
20 Walgreens also objected to this Request on other grounds, including the geographic scope of the Request. See discussion at (A), supra. 21 Plaintiffs allege that “Walgreens practices systemic discrimination in selecting employees for Assistant Store Manager and Management Trainee.” FAC, ¶ 26.
15

Marisol v. Giuliani, 126 F.3d 372, 376 (2nd Cir. 1997). In this case, Plaintiffs allege Walgreens has a selection process for a single position –MGT– that it fills from two feeder pools, i.e., internal and external applicants. Furthermore, Plaintiff Malica Page alleges she applied for and was denied an MGT position, see FAC, ¶¶ 111-12. Page’s claim for discrimination in selection for MGT arises from the same course of events as other applicants for the position – both internal and external – and derives from the same legal theory of liability.
In any event, the adjudication of the Rule 23(a) typicality requirement is not appropriately raised at this stage of the litigation. The issue now before the Court is the proper scope of discovery. The information Plaintiffs seek regarding external MGT applicants is relevant and necessary to Plaintiffs’ analysis of their claim that Walgreens’ MGT selection process discriminates against both external and internal applicants in the same fashion. Significantly, where, as here, internal and external candidates compete for the same job vacancies, courts have specifically approved statistical analyses in which "hiring opportunities" as a group were analyzed, regardless of whether the successful applicant was internal or external. See EEOC v. Turtle Creek Mansion Corp., 70 FEP 899 (N.D. Tex. 1995), aff’d, 82 F.3d 414 (5th Cir. 1996).
Finally, Plaintiffs’ expert Dr. Bendick states that the data required to test the hypothesis that Walgreens’ MGT selection process is discriminatory must include both internal and external applicants “because Walgreens apparently considers applicants from both sources in making these selections.” Exh. 13, Bendick Decl. at ¶ 23. Accordingly, the Court should direct Walgreens to produce all documents responsive to Request Nos. 2 and 24.22
22 Walgreen cites Harriston v. Chicago Tribune Co., 992 F.2d 697, 703-04 (7th Cir. 1993) to support its proposition. See Exh. 11, Oct. 18, 2005 Letter J. Ybarra to T. Klosener at 6. Harriston does not support Walgreen’s position, but merely stands for the proposition that a plaintiff who does not demonstrate that she is a member of the class she seeks to represent does not have standing to sue as a class representative. In Harriston, plaintiff sought to represent a class of all blacks that a newspaper failed to promote to management positions. However, plaintiff herself was promoted to a management position and did not identify any other management position that defendant denied her. Id. at 703-04. By contrast, Plaintiff Page applied for and was denied an MGT position, see FAC, ¶¶ 112-18.
16

D. Documents Withheld on the Basis of Privilege
Walgreens purported to interpose claims of privilege to Plaintiffs’ Request Nos. 32-36
and 38 and objected to each of these requests “to the extent that [they] seeks the disclosure of
documents protected by the attorney client privilege and/or the attorney work product doctrine.”
Nevertheless, Walgreens failed to produce a privilege log identifying the responsive documents
it contends are privileged and thus Plaintiffs are unable to determine whether Walgreens has
appropriately asserted privilege objections in response to these requests and whether responsive documents are properly being withheld.23 Walgreens has not identified a date by which it will
identify such privileged documents. Nor has Walgreens produced non-privileged documents
responsive to these requests.
Rule 26(b)(5) mandates that if a party withholds information by claiming that it is
privileged, it “shall make the claim expressly and shall describe the nature of the documents…in a manner that will …enable other parties to assess the applicability or protection.”24
Additionally, the 1993 Notes of the Advisory Committee stress that withholding materials
without the Rule 26(b)(5) notice “is contrary to the rule, subjects the party to sanctions under
Rule 37(b)(2), and may be viewed as a waiver of the privilege.” Pulsecard Inc. v. Discovery
Card Services, Inc., 1995 WL 526533 (D. Kan. 1995) (failure to assert privilege with specificity
constitutes a waiver).
23 Walgreens also responded to Requests 1-3, 5-11, 20, 22, and 25-39 by stating that “subject to and without waiving” it would “produce … non-privileged documents,” again without identifying what responsive documents might be privileged. 24 “A discovery response that does not include this [particularized] identification [of asserted privileged documents] due to the voluminous nature of the documents or the attorney's lack of particularized identifying information as of the response due date should assert the applicable privilege as to each inquiry to which the privilege relates and give a date within a reasonable time by which the identity of the writing or other communication asserted to be privileged will be furnished.” ABA Discovery Standards, § 25(a) at 44 (emphasis added). However, Walgreens has not done this, instead it reported to Plaintiffs that it had not withheld any documents, but asserted the privilege because at some point in the future it may identify a privileged document that is attached to a responsive nonprivileged document or because it wants to preserve the privilege in case there may be other privileged documents about which it is currently unaware.
17

The Court should require Walgreens to immediately produce all non-privileged documents responsive to all of Plaintiffs’ requests and to timely produce a privilege log.
E. Documents Withheld “Subject to the Entry of a Protective Order” Plaintiffs’ Request Nos. 10 and 11 seek documents pertaining to Walgreens’ bonus formulas for its retail management and pharmacy career paths. Plaintiffs’ Request No. 20 seeks documents pertaining to Loss Prevention incidents in Walgreens’ retail stores. Plaintiffs’ Request No. 22 seeks documents pertaining to criteria Walgreens uses in deciding the numerical staffing of its stores. Plaintiffs’ Request No. 25 seeks documents pertaining to “manpower meetings,” Plaintiffs’ Request Nos. 26 and 29 seeks document pertaining to the procedures or criteria used in selecting employees to participate in the Emerging Leaders Program (“ELP”) and comparable programs for the Pharmacy career path. Plaintiffs’ Request No. 36 seeks documents pertaining to internal complaints of race discrimination. In addition to interposing overbroad as to geographic scope objections, see § A, supra, Walgreens also qualified its responses to these requests stating it would produce responsive documents “subject to an agreed protective order executed by the parties.” See Exh. 2, Walgreens’ Responses to RFP Nos. 10-11, 20, 22, 25-26, 29 and 36. Despite extensive efforts (first initiated by Plaintiffs on September 15, 2005), the parties have been unable to negotiate a mutually acceptable confidentiality agreement, and may require the assistance of the Court to resolve this issue to the extent that any protective order is warranted under Rule 26(c)(7).25 F. Other Document Requests to Which Objection was Interposed
1. “Peer Group” Documents
25 In response to Plaintiffs’ invitation, Walgreens promised to propose an initial draft of the agreement. Walgreens served its draft agreement nearly three weeks later on the same day it responded to the RFP, despite written and verbal reminders from Plaintiffs’ counsel on September 19, 22, and 29, 2005. See Exhs. 15 and 16, Sept 19 and 22, 2005 emails K. Spriggs to J. Ybarra, and Exh. 17, Oct. 5, 2005 email R. Barner to K. Spriggs.
18

Plaintiffs’ Request Nos. 12-14 seek documents regarding Walgreens’ use of peer groups, see n. 8, supra. Walgreens objected to these requests as irrelevant because the formula and methodology regarding how Walgreens creates “Peer Groups,” or otherwise identifies the demographics of its customers or the neighborhoods in which it locates its stores is unnecessary to determine whether assignment of employees to certain stores adversely impacts their promotion and compensation opportunities. As a compromise, Plaintiffs proposed to limit the requests to documents “describing how, by whom, and for what purpose” Walgreens uses information regarding “Peer Groups,” or other information regarding the demographics of its customers or the neighborhoods in which it locates its stores. Walgreens represented that it “will consider the amended request.” See Exh. 11, Oct. 18, 2005 Letter Ybarra to Klosener at 9. To date, Walgreens has neither accepted Plaintiffs’ amendment nor produced documents responsive to the requests. The Court should require Walgreens to immediately produce all documents responsive to Request Nos. 12-14.
2. Internal and External Complaint of Race Discrimination Plaintiffs’ Request Nos. 36 and 37 seek production of documents regarding internal and external complaints of race discrimination, harassment, hostile work environment and retaliation. In addition to objecting to these requests on geographic scope, see § A, supra, and privilege grounds see § D, supra, Walgreens seeks to limit production to only race discrimination complaints related to promotion, training, assignment and compensation. This objection is not supported by applicable law. See e.g., Louison v. Blue Cross Blue Shield of Greater New York, 1990 U.S. Dist. LEXIS 9089 (S.D. N.Y. July 23, 1990) ("As for the substantive scope of [plaintiff's discovery] request, it would be inappropriate to exclude complaints concerning discriminatory hiring even though plaintiff is alleging only discriminatory failure to promote and termination, since evidence relating to hiring may be relevant to plaintiff's complaint wrongful termination").
19

IV. RELIEF REQUESTED WHEREFORE Plaintiffs pray that Court enter an Order requiring that Walgreens: 1. Produce to Plaintiffs the electronic databases sought in Request Nos. 1-2, and the explanatory documents sought in Request No. 3 within three days of the entry of this Order; 2. Produce to Plaintiffs all responsive, non-privileged documents sought in Request Nos. 5-38 within seven (7) days of the entry of this Order; 3. Produce to Plaintiffs a privilege log within ten (10) days of the entry of this Order; and 4. If the Defendant desires a protective order, tender the Court and to Plaintiffs a proposed protective order within three (3) days of the entry of this Order showing as to each category of documents as to which protection is sought that disclosure will work a clearly defined and serious injury on Walgreens and, if served, that Plaintiffs submit their written comments on the proposed protective order to the Court and Walgreens within two (2) days after service of the proposed order by Walgreens, for entry of a protective order by the Court.
20

Respectfully submitted,
FOLAND, WICKENS, EISFELDER, ROPER & HOFER, P.C.

/s/ Tiffany B. Klosener Tiffany B. Klosener (Pro Hac Vice) Amy L. Coopman (Pro Hac Vice) W. James Foland (Pro Hac Vice) 911 Main Street, 30th Floor Kansas City, Missouri 64105 (816) 472-7474 (telephone) (816) 472-6262 (facsimile) tklosener@fwpclaw.com acoopman@fwpclaw.com jfoland@fwpclaw.com

and

Kent Spriggs

(Pro Hac Vice)

SPRIGGS LAW FIRM

324 West College Avenue

Tallahassee, Florida 32301

(850) 224-8700 (telephone)

(850) 224-8836 (facsimile)

kspriggs@spriggslawfirm.com

and

Teresa Demchak (Pro Hac Vice) Morris J. Baller (Pro Hac Vice) Joseph E. Jaramillo (Pro Hac Vice) GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800 (telephone) (510) 835-1416 (facsimile) dem@gdblegal.com mjb@gdblegal.com jej@gdblegal.com

ATTORNEYS FOR PLAINTIFFS

21

CERTIFICATE OF SERVICE
The undersigned does hereby certify that on the 28TH day of October, 2005, the above and foregoing document was electronically filed with the Clerk of the Court using the CM/ECF system, who will send notification of such filing to the following CM/ECF participants:
John A. Ybarra Keith C. Hult Paul E. Bateman Shanti V. Gaur Rachel F. Barner Littler Mendelson – Chicago, IL 200 North LaSalle Street, Suite 2900 Chicago, IL 60601 (312) 372-5520 (telephone) (312) 372-7880 (facsimile) jybarra@littler.com khult@littler.com pbateman@littler.com sgaur@littler.com rbarner@littler.com
Alan G. King Littler, Mendelson – TX 2001 Ross Avenue Suite 2600, LockBox 116 Dallas, TX 75201-2931 (214) 880-8100 (telephone) aking@littler.com
Curtis R. Picou Thomas R. Peters Gundlach, Lee 5000 W. Main Street P.O. Box 23560 Belleville, IL 62223-0560 (618) 277-9000 (telephone) (618) 277-4594 (facsimile) c.picou@gundlachlee.com t.peters@gundlachlee.com
/s/ Tiffany B. Klosener Attorney for Plaintiffs
22

 
 Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 2 of 17
STATISTICAL ANALYSIS OF GENDER PATTERNS IN WAL-MART WORKFORCE
Richard Drogin, Ph. D.
February 2003
Richard Drogin, Ph. D. February__, 2003
Drogin, Kakigi & Associates 3104 Shattuck Avenue, Berkeley, CA 94705
(5~.0) 540-5071

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 3 of 17

TABLE OF CONTENTS

A. INTRODUCTION

3

Data Sources

4

B. DESCRIPTION OF WON(FORCE

?

Size and Growth

?

Gender Hierarchy - Management vs. Hourly

11

Consistency of Gender Hierarchy Across Regions

12

Gender Hierarchy within Management and Hourly Supervisors15

Earnings Gap - Within Hourly Jobs

17

Years With WaI-Mart

18

Years to Reach Manager and Asst Manager

19

Performance Ratings - Hourly Employees

19

Gender Distribution by Department

20

Salary Rate Progress after Hire

22

Changes in Stores, Districts, and Regions

24

C. INFERENTIAL STATISTICS

25

Statistical Methodology

25

D. ANALYSIS OF PROMOTIONS

27

Methodology

27

Determining the Availability Pool for Promotions

27

Job Posting Data

28

MCS Data

29

Promotions into Support Manager

32

Promotions into Management Trainee

33

Promotions into Co-Manager

34

Promotions into Store Manager

35

Promotions at Sam’s

36

Consistency of Promotion Disparities Across Regions

37

E. ANALYSIS OF TOTAL EARNINGS AND HOURLY RATES

38

Methodology

38

Total Annual Earnings Comparisons

39

Hourly Pay rate Comparisons

41

Consistency in Regressions Across Regions

43

F. CONCLUSIONS

44

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 4 of 17
Statistical Analysis of Gender Patterns in Wal-Mart Workforce Prepared by Richard Drogin, Ph.D. February 2003
A. INTRODUCTION i. I hold a Ph.D. in statistics from the University of California at Berkeley, earned in 1970. I am currently an Emeritus Professor in the Department of Statistics at California State University, Hayward, where I have taught graduate and undergraduate courses in data analysis, non-parametric methods, regression analysis, sample surveys, probability theory, queuing theory, simulation methods, and design of statistical software. I have been employed at California State University, Hayward, since 1973, and became an Emeritus Professor in 1996.
2. I am a partner in the statistical consulting firm of Drogin, Kakigi & Associates. This firm provides consulting services and computerized database management. We have experience in designing sample surveys, supplying census demographic data, organizing and managing large database systems, stochastic modeling, and performing advanced statistical analysis. Our firm has served as statistical consultants to both governmental agencies and the private sector for over twenty years. I have testified as an expert witness (statistical analysis, computer processing) in numerous state, and federal courts. A copy of my curriculum vitae is attached as Appendix 1
3. I have been retained by Plaintiffs’ counsel to analyze statistical questions raised in the Dukes v. Wal-Mart Stores, Inc. litigation. The purpose of my study was to obtain descriptive summaries of computer data, and prepare various statistical analyses relevant to the issues in the case. I examined statistics pertaining to workforce summaries, advancement patterns, and compensation levels.
4. In order to conduct my study, I was provided with computer-readable personnel and compensation data received through discovery as well as documentation and clarification regarding this data, contained in letters, emaits between counsel, depositions, and telephonic conferences with Wal-Mart personnel

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 5 of 17
familiar with their personnel and payroll systems. The first data files turned over by defendants were received in March, 2002.
5. This report will describe the data provided to me, how it was processed, the statistical methodology, and the results of my analysis. The analyses described here are restricted to retail store employeesI worMng in Wal-Mart Discount Stores, Supercenters, Sam’s Clubs, and Neighborhood Markers in the United States~, during I996 through the first quarter of 2002.
Data Sources 6. tn March, 2002 WaI-Mart turned over an electronic copy of its personnel
database including data for all U.S. employees who were employed between January, 1996 and March, 2002. There were 3,945,151 persons included in this database. A Complete job history for each of these persons was provided, including job history information prior to 1996, if any. This database is called the PeopleSoft data. For each person, the database includes basic identification information such as employee ID, social security number, name, address, phone number, gender, and race, as well as extensive information on the person’s job history at Wal-Mart. The job history gives a chronoIogical account of the jobs held, stores where the person worked, salary changes, personnel actions such as promotion or transfers, status changes indicating whether the person was active or on leave or terminated, whether the person was full-time or part-time, whether the person was salaried or hourly.
7. In late ApriI, 2002 Wal-Mart turned over 250 computer tapes which included detailed bi-weekly payroll information for Wal-Mart U.S. employees. For the most part, this data included the same persons as those included in the PeopleSoft personnel data. Subsequently, in early July, 2002, Wal-Mart provided year-end summaries of payroll data for each person, for the years 1996-2001. This year-end payroll information was processed, merged into the PeopleSoft data, and is the basis for all earnings studies presented in this report.
’z RInetDaielcsetomrebeermapnldoyJeaensuaarrey d2e0f0in3esdoimn eAdpapteanrdebg¢ar2d,ing Puerto Rico employees was provided. This data was not used for any analysis in this report.

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 6 of 17
8. When Wal-Mart turned over their People-Soft data in March, 2002, they also provided two databases known as file MCS data, and Job Posting data. These are databases that give limited information about employees who bid for job vacancies. The MCS data includes information about employees applying for salary job vacancies and the Job Posting data includes information about employees applying for hourly job vacancies. As described in more detail later in this report, the MCS and Job Posting data do not contain information useful for analyzing promotions into higher store management positions and upper level hourly supervisory jobs.
9. In early January, 2003 Wal-Mart turned over part of its Associate database, which includes information on recent performance review ratings for hourly employees. This data was processed and used in the analyses described below.
10. Salaried PeopleSoft data was received in mid-December, 2002. Performance Review information is included in this data. However, this data was incomplete. Additional salary PeopleSoff data was provided at the end of January 2003, a few days prior to the completion of this report. This data has not been used for any studies presented in this report.
11. Payroll data covering 2"d, 3rd, and 4’h quarters 2002 was turned over in late January 2003. This data has not been used for any studies presented in this report.
12. In late January 2003, a few days prior to completing this report, WalMart turned over additional PeopleSoft data for the 2nd and 3rd quarters of 2002, replacing data provided earlier in January 2003 that was unreadable. This data has not been used for any studies presented in this report.
13. During the period from March 2002 to the present, there were numerous conference calls with defendant and its computer databse specialists, as well as emails, and other correspondence with defendant regarding data questions.

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 7 of 17
Several supplementary files were provided by Wal-Mart in response to questions from plaintiffs.
14. The PeopleSoft and payroll data constitute the primary data sources used for the analyses described in this report. From these sources, three main working files were created: A history file, a year-end file, and a file of job moves. The history file includes all the job history records found in the PeopleSoft data, but with only the fields of information relevant for the analyses, and with some additional information merged from other data sources. There are 14,915,700 records in the history file. The year-end file was created from the history file to include one record for each year in which a person worked, for alt the people who were included in the data. In addition, yearly payrolI information, and hourly
performance ratings (if any) were appended to each record. There are 9,082,7a2
records in the year-end file, covering the years 1996 through 2002) The moves file was constructed from the history file for use in the promotion analyses. It includes one record for each pair of consecutive history records when there was a change in job or there was an action code indicating a promotion took place.
The 2002 data gives employee status only up to end of the first quarter of 2002.
6

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 8 of 17

B. DESCRIPTION OF WORK_FORCE
Size and Growth 15. Wai-Mart is big and has been steadily growing. During the time period
I996 through 2001 the number of year-end active employees in retail positions increased about 50%, from about 600,000 to about 930,000. The percentage of women decreased slightly from 67% to 64% during this same period. At year-end 2001, approximately 38% of Wal-Mart employees worked in Wal-Mart Discount stores, 52% worked in Supercenters, nearly 10% worked in Sam’ Club stores, and less than 1% worked in Neighborhood Markets. Table 1 below shows the number of men and women working at year-end 2001 in each of the four Wal-Mart store types.

350000300000250000-

Table 1 Number of Employees by Store Type, 2001
Men Women

I
Wal-Mart Discount

SuperCenter

I
Sam’s
Club

I
Neighborhood Market

16. Retail store employees include the hourly workforce, fl~e store

management, and higher-level managers such as District Managers and Regional

Vice Presidents. The store management positions include Store Manager, Co-

Managers, Assistant Managers, and Management Trainees. The Management

7

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 9 of 17
Trainee position is the entry-level position into management and leads directly into the Assistant Manager positions, after a 4-5 month training program. All of the store management positions are salaried jobs, except for the Management Trainee position. A complete list of the retail jobs studied for this report, and how they are classified, is given in Appendix 2.
17. Tables 2a and 2b below show the hierarchical structure of these jobs at Wal-Mart stores (excluding Sam’s), and Sam’s stores, respectively. This hierarchy was derived from Wal-Mart documents, and analysis of salaries and job movement patterns.

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 10 of 17

TabIe 2a Job Hierarchy at Wal-Mart

Pre.sideul
District Manager

Above Store .Management

Manager
~

n,~ger
In Store Management

Specialty Dupt Mgrs

Trainee

I CSlVl

Support Mgr Dept /vigr/
[ Team Lead 1

Cashier

~
T
Entry Level Hires

(

ON

Hourly

9

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 11 of 17
Table 2b Job Hierarchy at Sam’s Club

Operations

Above Store Management

Manager
~

nager
in Store Management

[ Mgm’ "L_
Tra~lcc

Area!g’tgr

ICSM
Cashier

IAssuciale

Dep! lvlgr / Team Lead
Person

T
Entry Level Hires

[ Meat Mgr ] IBakeD, IVlgrl

Trainee

Trainee

Hourly

10

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 12 of 17

Gender Hierarchy - Management vs. Hourly 18. Women earn less money than men at Wal-Mart. This fact is due to
women worldng disproportionately in the lower paying hourly jobs, and earning less money than men holding the same jobs. Table 3 compares the percentage of women in hourly and salary jobs, in each of the four Wal-Mart store types.

Table 3

Percent Women in Hourly and Salary Jobs
By Store Type, 2001

7O

~ %Worn Salary

50,

N %Wom Hourly

a0-:-
20:

Wal-Mart Discount

SuperCenter

Sam’s Club

i
Neighborhood Market

19. Management employees earn much larger salaries than the hourly

employees. For example, in 2001, management employees earned about $50,000 on average, compared to the approximately $18,000 earned by hourly employeesJ

Women are disproportionately wortdng in the hourly jobs: about 65% of hourly employees are women while about 33% of management employees are women.

4 Average earnings comparisons are restricted to year-end active employees with Nil-time status who worked over 45 weeks in the year. Approximately 850~ ofWal-.Mart workforce is full-time,
11

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 13 of 17

20. Not only are women disproportionately working in the lower paid hourly jobs, but fl~ey also earn less than men holding the same job, for nearly all
jobs, in each year. Overall, women earned about $5,200 less than men, on the
average, in 2001. Within the hourly workforce, women earned about $1,100 less than men, and about $14,500 less among management employees, in 2001.

60000 50000-
#4oooo-

Table 4
Average Earnings of Men and Women Hourly vs. Salary, 2001

Men Women

3000020000I0000-

AII Employees

Hourly Employees

Salary Employees

Average E~nings, 2001 Full-Time Employees Working At Least 45 Weeks

Group Total Hourly Salary

TotaZ %Fem Ayes M AweS F 508724 67.9 23403. 18184. 476813 70.2 18609. 17459.
31911 33.5 55443. 40905.

Consistency of Gender Hierarchy Across Regions 21. Wal-Mart is administratively broken up into 41 regions5, each including
about 80 stores and headed by a RegionaI Vice President. The gender hierarchy at

There are 6 Sam’s regions, and 35 Wal-Mart only regions. 12

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 14 of 17
Wal-Mart nationwide is repeated across all 41 geographic regions in the country. As of year-end 2001, the percent women in hourly jobs ranged between 52% and 73%, while the percent women in salaryjobs ranged between 26% and 42% across regions. In every region, the percent women among hourly employees was higher than the percent women among salaried employees. The following chart illustrates the distribution of percent women among hourly employees compared to the percent women among salaried employees, for each of the 41 regions.
Table 5 Percent Women among Hourly and Salary Employees, 2001
Each Region Represented by a Point on Graph 8O
7O
6O 0 Regions Where % Women Higher in Salary than Hourly Jobs

2O

4I Regions Where

10

% Women

Higher in Hourly

than Salary Jobs

0 10 20

’ ’ ’ I ’ ’ ’ ’ I ....

I ’ ’ i ;i~i ; ;

30 40 50 60 70 80

% Women in Hourly Jobs

22. The gender hierarchs~ illustrated in Table 5 leads to lower earnings for women in every region across the country. The following chart shows the

¸13

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 15 of 17
distribution of male and female total earnings in 2001, for Full-Time employees active at year-end who worked at least 45 weeks during the year.

30000

Table 6 Average Total Earnings for Men and Women, 2001
Each Region Represented by a Point on Graph
41 Regions Where Men Earn More

25000

20000 15000

0 Regions Where Women Earn More

10000 i0000

15000

20000

25000

30000

Average Em’nings in 2001, Women

35000

14

Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 16 of 17

Gender Hierarchy within Management and Hourly Supervisors 23. The pattern of gender hierarchy between management and hourly jobs is
further reflected within the management and hourly supervisor positions, as shown in the following table. The Support Manager, Department Manager, and CSM (Customer Service Manager, which is a supervisor of Cashiers) are ff~e main supervisory hourly jobs.
Table 7 Percent Women in Store Management and Hourly Supervisors, 2001 90.0
80.0.
70.0
60.0
50.0
40.0
30.0
20.0
10.0

Store Mgr

Asst. Mgmt Support Dept CSM Mgr Mgr Trainee ~,a~ Mgr

24. Within each of the store management jobs, women earn less than men, on
the average, for each year 1999-2001. The following table shows these earnings differences within the store management jobs, for 2001.~

~ Restricted to year-end actives employees with full-time status who ~vorked over 45 weeks in the year. See Appendix 7.
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Case 3:05-cv-00440-GPM-CJP Document 37-13 Filed 10/28/2005 Page 17 of 17

120000 I00000

Table 8 Average Earnings of Men and Women
in Store Management Jobs, 2001
~ Ave$ Men ~ Ave$ Worn

80000

60000

40000

20000

Store

Co-

Asst.

Mgmt

Mgr

Mgr

Mgr

Trainee

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Case 3:05-cv-00440-GPM-CJP Document 37-14 Filed 10/28/2005 Page 2 of 16

25. The following table shows the average total earnings for men and women holding store management jobs and above store management jobs.

Table 9 Average Earnings Higher-Level Jobs7

Job Regional VP District Mgr Manager Co-Mgr Asst Mgr Mgmt Trainee

Total % EEs Women 39 10.3 508 9.8
3241 14.3 2336 23.0 18731 35.7 1203 41.3

Averaqe Earninqs

Men

Women

419435. 279772

239519. 177149

105682. 89280

59535. 56317

39790. 37322

23175. 22371

Earnings Gap - Within Hourly Jobs
26. Table 10 compares average total earnings, and Table 11 compares the average hourly rates for men and women in the four largest hourly jobs. The chart illustrates the shortfall in female earnings and hourly rates compared to men in the same job. A complete list for all jobs, and for part-time and full-time workers, and for the years 1999-2001 is given in Appendices 6a-d and 8a-d.

Table 10

Average Earnings 4 Largest Hourly Jobs, 200

Job 000101 DEPT HEAD 000201 SALES ASSOC 000469 HD/HM O/N 000501 CASHIER Total All Hourly

Total

% Averaqe Earninqs

EEs Women

Men

Women

63747 78.3

23518. 21709.

100003 67.8

16526. 15067.

29333 57.4

19121. 17870.

50987 92.5

14525. 13831.

476813 70.2

18609. 17459.

~ The District Managers included here do not include the Specialty Division District Managers in Tire and Lube, Photo. Shoes and Jewelry, Optical, and Pharmacy. These Specialty Division Managers have a higher percentage of women, but they earn much less money, on the average than the regular District Managers. The Sam’s Director of Operations position is included in the District Manager row of this table. A complete summary is given in Appendix 7a. a Restricted to employees active at year-end with fuIl-time status, and who worked at least 45 weeks during the year. The ’HD/HM O/N’ job refers to ’Hardlines/Horne Area Overnight Associates’.
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Case 3:05-cv-00440-GPM-CJP Document 37-14 Filed 10/28/2005 Page 3 of 16

Table 11 Average Hourly Rates Largest Hourly Jobs, 2001~

Job 000101 DEPT HEAD 000201 SALES ASSOC 000469 HD/HM O/N 000501 CASHIER Total All Hourly

Total

%

EEs Women

63010 78.5

96539 68.1

28408 57.8

49261 92.6

463526 70.6

Average S/Hour

Men

Women

11.13 10.62

8.73

8.27

9.56

9.29

8.33

8.05

9.55

9.26

27. In hourly jobs overall, and in/he largest hourly jobs at Wal-Mart, women earned less total compensation and had lower hourly rates than men. This earnings gap persists, even though women have greater average seniority and higher performance ratings, as described below.

Years With Wal-Mart 28. Women stay in the workforce longer than men at Wal-Mart. This is
shown by the fact that the average number of years since date of hire is greater for women than men in the workforce. Among full-time women active at year-end 2001, the average number of years since date of hire was 4.47 years, while the corresponding average for men was only 3.13 years, The average time since hire was greater for women overall, and in salary and hourly jobs separately, for both full-time and part-time employees in 2D01. Women had greater time since hire in 97% of the job codes with at least 1000 full-time employees active at year-end 2001. The following table shows the average years since hire for full-~ime employees active at year-end 2001 for the four largest hourly positions. A complete summary for all jobs is given in Appendix 12.

"Restricted to employees active at year-end with full-rime status, and at least I year since date of hire.
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Table 12 Average Years Since Date of Hire Full-Time Active Employees at Year-End 2001

Job Total All Hourly All Salary Sales Associates Dept Mgr Cashier HD/HM O/N

Men 3.13 Yrs 2.76 6.69 2.53 5.29 1.86 2,28

Women 4.47 Yrs 4.39 7.39 3.41 7.49 2,53 3.16

Years to Reach Manager and Asst Manager 29. Not only do women generally have more time with Wal-Mart, and hence
have lower turnover rates, it takes women longer to work their way up to an Assistant Manager or Manager position, among those who are eventually promoted into these positions. In particular, the average time since date of hire until first being promoted in an Assistant Manager job was 4.38 years for women, but only 2.86 years for men. The same pattern is true for men and women who eventually became Store Managers: It took women 10.12 years on the average to reach Store Manager, but it took men only 8.64 years.

Performance Ratings - Hourly Employees 30. WaI-Mart uses a database Imown as the Associate Database to track
hourly employee performance review ratings/a Historical review ratings are incomplete, prior to 2001. I have analyzed the performance review data for 2001 and have summarized my computations for hourly jobs in Appendix 9. Ratings for hourly employees are given according to a scale of 1, 3, 5, and 7, where 7 is the highest rating. In 2001, among those with ratings, over 95% received ratings of
m Performance rating data for salaried employees was incomplete until a few days prior to the completion of tNs report, and therefore has not been utilized for this report.
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either 3 or 5. Among hourly employees working in 2001 with ratings, women have a higher average rating than men overall, and in 75% of thejobs with over 1000 employees. The following table shows the average ratings for hourly employees in 2001, and for the four largest hourly positions.

Table 13 Average Performance Rating
Hourly Employees, 2001

Job All Hourly Sales Associates Dept Mgr Cashier HD/HM O/N

Men

Women

3.84

3.91

3.68

3.75

4.28

4.38

3.58

3.49

3.81

3.96

Gender Distribution by Department 31. Men and women are unevenly distributed in departments. The following
table shows the employees and percent women in each of the departments that had at least 5000 employees at year-end 2001. The list is sorted by percent women in the department.

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Table 14 Gender Composition By Department, 2001 Departments with At Least 5000 Employees

Department 34 LADIES SPORTSWEA/% 27 HOSIERY 19 PIECE GOODS 46 HEALTH AND BEAUTY AIDS 26 INFANTS/TODDLERS 32 JEWELRY 910 BACK OFFICE 988 DEMOS 23 MENS WEAR 20 DOMESTIC GOODS 38 DIV 10 D38 940 DIV 10, D38 & D40 40 PHARMACY 25 SHOES
3 STATIONARY AND BOOKS 916 MERCH DEPTS: 16,18,56
98 BAKERY 80 SERVICE DELI 49 OPTICAL PROFESSIONAL !4 HOUSEWARES 903 OVERNIGHT ASSOCIATES 990 FRONT END
2 HEALTH AND BEAUTY AIDS 85 PHOTO LAB Total All Departments
! CANDY, TOBACCO, COOKIES 994 RECEIVING
7 TOYS 931 NIGHT RECEIVING
5 ELECTRONICS 10 AUTOMOTIVE 92 GROCERY DRY GOODS 930 DAY RECEIVING 16 HORTICULTURE AND ACCESS
8 PETS AND SUPPLIES 284 DIV 28 RECEIVING
9 SPORTING GOODS 4 PAPER GOODS ll HARDWAR]Z 90 DAIRY PRODUCTS 93 MEAT 995 MAINTENANCE 94 PRODUCE 996 SECURITY 37 TBO SERVICE

Total %Women

10399 99 2

14061 12931
7901

99 1 99 1 98 7

8838 98 6

18493 97 3

27659 94 2

7480 93 0

9040 92 5

7565 92 4 10218 91 4

6424 90 8

8347 88 8

15710 88 0

6771 87 5

6078 86 7

11621 86 5

10804 81 4

7233 79 5

7136 79 2

16853 78 6

244251 78.2

11398 77.7

16047 75.4

930770 64.0

5881 61.0

5178 59.2

13837 55.9

59764 53.6

21966 46.7

10210 42.0

5647 40.3

58245 39.8

23792 39.3

6289 37.6

19057 30.7

15105 30.2

9753 29.5

9943 27.7

6525 25.9

5611 21.9

23283 19.6

7780 19.4

7748 11.8

14706 6.7

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Salary Rate Progress after Hire 32. I examined whether the pay rate difference between men and women
changed over time, for employees hired in hourly positions in the same year. I examined this for all hourly hires during 1996u, and followed their progress in salary rate through 2001, and separately for hourly hires into the same job position. I repeated this for 1998 hires. The following chart shows the initial difference in starting hourly rate for men and women hourly hires in 1996, and how this pay gap increased over time during the period 1996 through 2001, for employees remaining in the Wal-Mart workforce. The chart shows the results for all employees hired into hourlyjobs in 1996, and for those hired as Sales Associates and Cashiers separately, the jobs with the greatest number of hires. About 65% of new hires start in one of these two positions. The complete summary of this analysis is given in Appendix 11.
33, As shown on the chart below, 1996 women hired in hourly jobs in 1996 were paid $0.35 per hour less than men hired in hourlyjobs that year. For those 1996 hourly hires who stayed at Wal-Mart through 2001, the gender gap between men and women increased to $1.16 per hour, on the average. For 1996 hires into the Sales Associate, the largest job, the shortfall in average hourly rate for women when hired was $0.20 per hour. Among employees hired into Sales Associate jobs in 1996 who were still active employees at year-end 2001, men were being paid $1.17 more than women, i also examined the progress of 1998 hires, and found a similar pattern of increasing salary rate gap over time between men and women hired in same year and job.
u 1996 is the first year for which compIete data on hires is available, and 2001 is the latest full year with data.
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Case 3:05-cv-00440-GPM-CJP Document 37-14 Filed 10/28/2005 Page 8 of 16

Table 15 Gender Gap in Hourly Rate Over Time
for 1996 Hires Into Hourly Jobs
$/Hour Gap 1,2

/ ,/~ Associate

0.8

Total, / / Hires

Hourly Hires

(I.6

Hires 0.4

0.2

1996 1997 1999

200I

Yem" of Hire

Subsequent Year ~

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Case 3:05-cv-00440-GPM-CJP Document 37-14 Filed 10/28/2005 Page 9 of 16

Changes in Stores, Districts, and Regions 34. Most employees stay in the same store when moving up through hourly
positions. Moves into the position of Management Trainee, and higher level positions usually involve a change in store, or even a change in district and region. The following table shows the percent of times when an employee changed store, district, or region when being promoted into the target jobs listed in the table.

Table 16 Percent of Promotions1~ Where Employee

Changed Store, District, or Region, 1996 and later

Target Job Store Manager Co-Manager
Assistant Manager Management Trainee
Area Manager, Sam’s Support Manager

Change
Store 91.2% 81.3
63.3 62.2
17.4 4.8

Change
District 69.4% 57.0
40.2 32.5
5.4 7.6

Change
Region 35.6% 32.6
22.0 i 7.0
2.8 6.0

35. I also examined the number of times store management employees changed store, district, or region after first entering those positions. This is summarized in the following table.
Table 17 Number of Changes in Store, District and Region
After Entering Store Management Jobs

Changed Store

Target Job

>_ Once Ave

Store Manager

97.8% 3.60

Co-Manager

95.8 2.96

Assistant Manager 85.4 2.80

Management Trainee 86.2 3.04

Area Manager

48.5 1.15

Support Manager

36.3 0.82

Changed District
_>Once Ave 88.7% 2.77 83.0 2.22 68.9 1.98 68.7 2.04 31.6 0.64 34.0 0.64

Change Region
_>1 Once Ave 67.1% 1.72 61.5 1.31 49.6 1.17 47.8 1.16 26.5 0.50 24.4 0.41

These include moves during I996 or later, and also lateral moves classified as promotions in PeopleSoft.
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Case 3:05-cv-00440-GPM-CJP Document 37-14 Filed 10/28/2005 Page 10 of 16
C. INFERENTIAL STATISTICS Statistical Methodology
36. In statistics a distinction is made between descriptive and inferential statistics. Descriptive statistics simply report or summarize counts, percentages, or averages, based upon some given data set. Descriptive statistics speak for themselves, they make no assumptions about the underlying population or how the data was selected; there is no probability model assumed. Inferential statistics attempt to measure whether certain disparities, calculated from descriptive statistics, are within the range of what might be expected if variation were due simply to random fluctuation.
37. Inferential statistics ask the question, "Is the observed disparity consistent with what would be expected from random fluctuation?" To answer this question requires some definition of random fluctuation. Random fluctuation is usually represented by a random selection process, where all individuals in a certain pool are assumed to have the same chance of selection. The probability model determines which results are expected and which results are unlikely.
38. The likelihood that a disparity as big as the one actually observed will occur by random fluctuation is called the significance probability. If this probability is very low then doubt is raised as to whether the disparity is the result of random fluctuation expected from the model.
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39. The significance probability of an observed result can be expressed in terms of a Z-value, which gives the size of the disparity in terms of standard deviations. Significance probabilities and Z-values are equivalent. That is, one can be determined from the other. A Z-value of 1.96 indicates that a disparity has 1 chance in 20 of occurring by random fluctuation. A Z-value of 2.58 (+ or -) indicates that a disparity has 1 chance in 100 of occurring by random fluctuation. The following table summarizes the appropriate correspondence between Z-values and significance probabilities:

Table i8 Z-Values and Probability of Occurrence

Z-Value Probability of Occurrence

1.96 1 chance in 20 (.05)

2.58 1 chance m 100 (.01)

3.08 1 chancein 500 (.002)

3,3

1 chance in 1,000 (.001)

3.9

1 chance m 10,000 (.0001)

5.0 I chance ~n 1,O00,000 (.0ooooi)

6.0

1 chance zn 100,000,000 (.00000001)

20.0

less than 1 chance in t0 to 88tu power

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Case 3:05-cv-00440-GPM-CJP Document 37-14 Filed 10/28/2005 Page 12 of 16
D. ANALYSIS OF PROMOTIONS Methodology
40. As described above, women are under-represented in management positions compared to their representation in the hourly workforce. Wal-Mart has a strong "promote from within" poIicy, as shown by its statement that "72% of all Sataried Management started as hourly Associates’’’3. Moreover, most hourly Associates start in the entry level positions of Sates Associate or Cashier. Employees reach Salaried Management positions by first becoming a Management Trainee, which 1cads directly into the Assistant Manager position. Higher level store management positions of Manager and Co-Manager are filled almost entirely by employees who have been Assistant Managers. The large disparity between the percentage of women in store management positions, and in the hourly workforce is a result of Wal-Mart’s failing to promote women at the same rate it promotes similarly situated men. The following sections will describe my analysis of this pattern for promotion into several positions above the entry level hourly wortd’orce.
41. The promotion analysis of moves into a particular target job compares the percentage of women among those promoted into that job, to the percentage of women in the availability pool for that promotion. To perform this analysis, it is first necessary to specify the target job, and identify the promotions into that job. The definition of the target jobs, and promotion into these jobs, is detailed in Appendix 2. Basically, a person is counted as being promoted into a target job if his or her previous job is a lower position, and his or her job history data shows a change code of ’PRO’, indicating that he or she was promoted.~4 Secondly, it is necessary to identify the percentage of women in the availability pool for the promotion.
Determining the Availability Pool for Promotions 42. There are two methods that are often used for determining the
availability pool for a promotion. One method is to use applicant flow data, and a
"~ Wal-Mar{ Stores career opportunities document, Bates WMHO 714869. 14 Promotions into Support Manager 0050) are defined as any move from a lower job, since WalMart does nor use the ’PRO’ code for promotions into Support Manager.
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second method is to determine the availability pool from the incumbents in historical feeder jobs for the promotion. Using applicant flow data to determine availability is useful when all job vacancies are posted, complete data is maintained on applicants and selections, and the fairness of the job posting system is not contested. If these criteria are not met, then it may be impossible to use applicant flow data, or using applicant flow data to determine availability pools will not give meaningful results.
43. Wal-Mart has two systems used to collect some applicant data. Their Job Posting System is used for some hourlyjob vacancies, and their Management Career Selection System (referred to as MCS) is used for some Management job vacancies. These two systems provide no useful data for analyzing promotions into the upper level hourly supervisory, and store management positions considered in this report. The following sections describe the inadequacies of these two databases.
Job Posting Data 44, The job posting data identifies applicants for some hourly jobs, and those
who were selected for openings.1’~ Support Manager is the only target job analyzed in this report that is included in thejob posting data. However, the data included in the job posting system for Support Manager contains only a fraction of the vacancies that were actually filled, as determined from the PeopleSoft personnel database. The job posting data shows only 4504 promotions into Support Manager for the period 1997-2002. However, the PeopleSoft data shows there were 22,388 promotions into Support Manager for the same period’6. The number of job posting acceptances into Support Manager represents only 20% of the PeopleSoft promotions into Support Manager. The following table provides a breakdown of the applicants and acceptances for Support Manager vacancies found in the job posting data, compared to the actual number of promotions found in the PeopleSoft data.
~’~ See February 12, 2002, Steve Catlett letter, The applicant table ~vas named "intvwrq" and identified as "Interview_request" table, and the selectees were identified as those with nonblank "offer made date.". ~" Data for 2002 goes through the P’ quarter only.
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Table 19 Job Posting Data For Promotions into Support Manager
Compared to PeopleSoft Data

Job Posting

Jobtitle

Year Bids

Accepts

Support Mgr 1997 1029

173

Support Mgr 1998 7426

729

Support Mgr 1999 9209

823

Support Mgr 2000 12952

1218

Support Mgr 2001 13385

1315

Support Mgr 2002 1155

246

Support Mgr Total 45146

4504

PeopleSoft Moves 4316 4559 3939 4630 4153 791 22388

MCS Data 45. The MCS system was intended to allow "Assistant, Store and
District Management the opportunity to view and apply for field management openings throughout" 17 the company. Thus, the system was not intended to collecting applicant information for Management Trainee, Assistant Manager and Co-Manager vacancies~a. MCS data contains no data for any management positions in Sam’s stores"~. The MCS allows for the collection of information on applicants for vacancies and acceptances.2° The table below shows the number of MCS applicants
and selctions compared to the actual number of moves in the PeopleSoft data.

17 See Management Career Selection Guide, Bates WMHO 217238.
~s See deposition ofDebra Kintzele, October 2, 2002, page 41-42.
"J See deposition of Jeffrey Reeves, January 14, 2003, page 159, lines 22-23. 2~ From MCS tablesjob_appnew, app_offernew, ]ob_slotnew, ]ob_openingnew and app_acceptnew. These were used to linkjob_opening_id to job_slot_id to MCS ]obcode. Promotion occurs if Accept indicator is "Y".
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Table 20 MCS Applicants byJobcode21 1997-2002

Number of Applicants
41000
0
641 0

MCS PeopleSoft

Accepts Moves

3707

4821

Target Job Store Manager~

0

4124

Co-Manager

113

24604

Assistant Manager

0

15043

Management Trainee

46. The MCS system contains no information about how vacancies in Management Trainee and Co-Manager positions were filled. The information on Assistant Manager vacancies is negligible. For Store Manager, the total number of acceptances was 3,687 during 1998-2002. There were a total of 3,980 moves to Store Manager in the Wal-Mart data in PeopleSoft. Table 21 below provides a breakdown of MCS applicants for Store Manager by year.

Table 21 MCS Applicants For Store Manager and Assistant Manager by Year

Jobtitle Manager Manager Manager Manager Manager Manager

Year 1998 1999 2000 2001 2002 Total

Bids 8807 10121 9088 10585 1832 40433

MCS Accepts 755 910 933 979 ll0 3687

PeopleSoft Moves 803 993 1035 1054 95 3980

z~ The MCS system uses different codes to identify jobs than are used in the PeopleSol:t data. Defendant provided a mapping uf PeupleSoft to MCS job codes included in a June 24, 2002 emall from defendant’s counsel. That mapping was used for MCS summaries by job appearing in this ~re2pPoerto.pleSoft Store Manager moves in Tables 20 and 21 include lateral moves where employee prior job was store manager, but there was a change in store or a promotion was indicated In the job history data. Moves into Store Manager at Sam’s are excluded.
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47.The MCS system does not give a true measure of applicant flow for the positions of Store Manager and above. To get a true measure of applicant flow, it would be necessary to have an open bidding system where employees would determine whether they wanted to come forward and bid for a vacancy, and the vacancy would be filled from these applicants. This is not the case with the MCS system, since "positions may be filled outside of the Management Career Selection process",~a and individual exceptions may be made to stated eligibility criteria.~4 Moreover, the system requires pro-screening of applicants before they can be considered for promotion.2s
48. Due to the Iimitations of the Job Posting and MCS system described in the previous paragraphs, availability pools in the promotion analysis are determined from the incumbents in historical feeder jobs for the promotion.
49. The availability pool for a particular promotion is constructed to represent the group of employees who are similarly situated to the person promoted. In my analysis, I have specified employees as similarly situated if they worked in the same job and geographic area as the person promoted, as of the yearend prior to the promotion. Geographic area is taken to be district or store, depending on the target job. In order to determine the appropriate geographic area to be used in restricting the availability pool for a particular promotion, I relied on the historic pattern of changes in store, districts and regions for employees being promoted into each of the targetjobs, which is described in a previous paragraph. This is a conservative approach that may mask some discrimination due to differential assignment of men and women to stores orjobs with greater earnings or promotion potential.
50. Wal-Mart policy is that all hourly employees are eligible for for a Management Trainee position. If this pool were used, instead of controlling for job, a much higher female availability percentage would result, and consequently the
See Management Career Selection Guide, Bates WMHO 217239. bottom of page 2. See Management Career Selection Guide, Bates WMHO 217238. middle of page 1. See also See deposition of’ Debra Kintzele, October 2, 20f12, page 157 through top of page 159.
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shortfall in female promotions discussed below would be greater. This also would be true if the availability pool were defined to include hourly supervisors such as Department Head, Customer Service Manager, and Support Manager, instead of controlling for historic feeder jobs.
51. By using prior job held by person promoted in determining the feeder pool for that promotion, any discrimination by Wal-Mart in selecting the job positions from which promotions are made would not be reflected in the promotion analysis. To illustrate this point, consider a hypothetical example where there were two jobs, one with all men and one with all women. Assume that employees in each of these jobs were equally qualified for promotion. If Wal-Mart always selected from the job with all men, then the availability pool would be 100%.male, and there would be no disparities observed in the promotion analysis controlling for job.
52. The promotion analyses described in the following paragraphs give results for Wal-Mart and Sam’s combined. The results for Sam’s alone are discussed in a separate section below. Appendix 13e-h includes Sam’s promotion summaries. All of the promotion analyses include promotions during 1997 through first quarter 2002. Promotions during 1996 are not included, because determining the availability pool would require knowing incumbents in 1995, and 1996 is the earliest year of complete data.
Promotions into Support Manager 53. Support Manager is the highest level hourly supervisory position below
Management Trainee, and many Support Managers are eventually promoted into Management Trainee and higher positions. Sales Associates and Department Managers are the largest feeder jobs into the Support Manager job. Women comprise about 70% of the Sales Associates and Department Managers, but only about 45% of the Support Managers. About 95% of employees promoted into Support Manager positions stay in the same store when promoted. Accordingly, in the analysis of promotion into Support Manager, I have used store as a geographic control, thus considering employees in the same job, and same store to be similarly situated for promotion.
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54. The anaIysis of promotions into Support Manager shows that women received 2891 promotions fewer than would be expected from their representation in the availability pool, controlling for feeder job, store, and year of move. This disparity has a Z-value of-54.38 indicating a high degree of statistical significance, which is practically impossible to occur by random fluctuation.
Table 22 Analysis of Promotions Into Support Manager, Wal-Mart

Year 1997 1998 1999 2000 2-001 2002 Total

Promotions

Tot

Women

4316 2094 48 5

4559 2!61 47 4

3939 1695 43 0

4630 1941 41 9

4153 1664 4O 1

791 294 37 2

22388 9849 44 0

% Women

in Pool Loss

62 6 -6O8 2

61 4 -637 5

56 6 -535 6

54 2 -569 7

50 8 -446 1

49 1

-94 2

56 9 -2891 4

Z-Value -25 61 -26 59 -24 20 -23 59 -19 84 -9 02 -54 38

Promotions into Management Trainee 55. The Management Trainee posit_ion is a transitional job leading directly
into an Assistant Manager assignment, after the employee has completed a 4-5 month training program. Employees who were promoted into Management Trainee positions changed stores 62% of the time when being promoted. Thus, when Wal-Mart promotes an hourly employee into a Management Trainee position in a particular store, the company usually Iooks outside that store to select an employee to fill the vacancy, and sometimes it goes out of the district.
56. I have performed a promotion analysis comparing the percentage of women among those promoted into Management Trainee positions with the percentage of women in the available pool of hourly workers. The available pool of hourly workers for a particular promotion into a Management Trainee job consists of those employees who held the same job as the person promoted, and who worked in the same district, at the end of the year prior to the promotion. For example, if an employee was promoted into a Management Trainee position in
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1998, had previously held a Sales Associate position (201) and was worMng in District 26, then the availability pool for that promotion would be the group of employees in the Associate position in District 26 at year-end 1997. In statistical terms, this definition of an availability pool for the promotions is referred to as "controlling for feederjob, district2r’, and year of move". Thus, employees in the same availability pool for a promotion are similarly situated in that they held the same job, in the same district, at the end of year prior to the promotion.

57, The next table below summarizes the results of the analysis of promotions into Management Trainee jobs. Women received Z952 promotions fewer than expected according to their representation in the availability pools, during 1997-2002. The Z-value corresponding to this disparity is -60.81, indicating a statistically significant shortfall that is virtually impossible to occur by chance, if promotions were selected at random from the availability pool.

Table 23 Analysis of Promotions Into Management Trainee, Wal-Mart

Year 1997 1998 1999 2000 2001 2002 Total

Promotions

Tot

Women

1569 640 40.8

2390 958 40.!

2946 1142 38.8

4003 1593 39.8

3463 1407 40.6

672 273 40.6

15043 6013 40.0

% Women in Pool Loss
60.0 -302.0 59.3 -460.3 59.4 -607.7 59.2 -777.6 59.9 -668.5 60.9 -136.3 59.6 -2952.5

Z-Value -20.11 -23.67 -28.34 -31.27 -28.25 -12.69 -60.81

Promotions into Co-Manager 58. Larger stores have a Co-Manager position, which is above the Assistant
Manager but below Manager within the store. Nearly all Co-Manager vacancies are filled by promotion of an Assistant Manager, and involve a change in store over

2~ In the promotion analyses that include a control for district, districts are defined separately for Sam’s and non-Sam’s. For example, Sam’s employees with distric{=l are considered to be in a separate district from non-Sam’s employees with district=l.
34

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 5 of 16

80% of the time. The analysis of promotions into Co-Manager controls for district, job, and year of promotion.

59. Women received 346 promotions fewer than expected according to their representation in the availability pools, during 1997-2002.27 The Z-value corresponding to this disparity is -13.81, indicating a statistically significant shortfall that is virtually impossible to occur by chance, if promotions were selected at random from the availability pool.

Table 24 An~ysis of Promotions Into Co-Manager, W~-Mart

Year 1997 1998 1999 2000 2001 2002 Total

Promotions

Tot

Women

533

94 17.6

652 118 18 1

899 205 22 8

1017 237 23 3

868 209 24 1

155

38 24 5

4124 901 21 B

% Women

in Pool Loss

28 .i

-55 8

29 5

-74 2

31 3

-76 4

31 2

-80 4

30 2

-52 8

28 9

-6 8

30 2 -346 4

Z-Value -5 84 -6 96 -5 90 -6 15 -4 46 -1 35
-13 01

Promotions into Store Manager 60. Each store has a Store Manager who is the person most responsible for
running the store. About 60% of Manager vacancies are filled by promotion of a Co-Manager, and the remainder mostly are filled by Assistant Managers. The promotion invoIves a change in store over 90% of the time. The analysis of promotions into Manager controls for district, job, and year of promotion.

Data for 2002 includes only the 1’~ quarter.
35

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 6 of 16

61. Women received 155 promotions fewer than expected according to their representation in the availability pools, during 1997~2002. The Z-value corresponding to this disparity is -7.72, indicating a statistically significant shortfall.
Table 25 Analysis of Promotions Into Store Manager

Year 1997 1998 1999 2000 2001 2002 Total

Promotions

% Women

Tot

Women

in Pool Loss

607 126 20 B 24 3

-21.4

624 i00 16 0 20 4

-27.3

706 103 14 6 19 9

-37.6

758 142 18 7 23 1

-32.9

809 153 18 9 23 2

-35.0

63

14 22 2 24 4

-i .4

3567 638 17 9 22 3 -155.7

Z-Value -2.53 -3.56 -4.74 -3.35 -3 . 38 -0.45 -7.72

Promotions at Sam’s 62. The above analysis looked at total Wai-Mart, including Sam’s. I have also
analyzed promotions into higher level hourly and store management positions at Sam’s alone. The analyses include promotions into Store Manager, Co-Manager, Management Trainee, and Area Managers~, in Sam’s stores. There are statistically significant shortfalls for promotions into Area Manager, Management Trainee, and Store Manager at Sam’s, but not for promotions into Co-Manager. However, the position of Co-Manager is much less frequently used at Sam’s than at regular WalMart stores. For example, the ratio of the number of Co-Managers to Store Managers at regular Wal-Mart stores is about 4:5, while at Sam’s this ratio is less than 1:5. Moreover, there are relatively few promotions into Co-Manager at Sam’s, compared to the number at Wal-Mart stores. The results of the analysis for Sam’s alone are given in Appendices 13e-h.

2~ The position of Area Manager is only used in Sam’s, and is simliar to a Support Manager at nonSam’s stores, in that they are both the highest position below Management Trainee. The job codes for Sam’s Area Managers are 043350, 043360. and 043550, The job code 043500, ~vith title ’Area Mgr’ is actually an Assistant Manager position at WaI-Mart.
36

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 7 of 16

Consistency of Promotion Disparities Across Regions 63. The pattern of under-promotion of women into Support Managers,
Management Trainee, Co-Manager and Manager jobs is consistent in nearly every geographic region at Wal-Mart. The following table summarizes the number of regions that have a shortfall, or excess, of promotions of women.

Table 26 Count of Promotion Disparities Across Regions
Minus column gives number of regions where women received fewer promotions than expected

Target Position

Regions Where Disparity

All Regions

Statistically Significant

Total Plus Minus Total Plus Minus

Support Manager

40 2 38

35 0 35

Management Trainee 41 0 41

40 0 40

Co-Manager

40 3 37

22 0 22

Store Manager

40 6 34

13 0 13

For promotions into Support Manager, women received fewer promotions than expected in 95% of regions across the country. For promotions into Management Trainee, women received fewer promotions than expected in 100% of regions across the country, and in 40 out of 41 regions the female shortfall was statistically significant. For each target job, there was no region that showed a statistically significant excess of promotions of women.

37

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 8 of 16
E. ANALYSIS OF TOTAL EARNINGS AND HOURLY RATES
Methodology 64. Descriptive statistics of the Wal-Mart workforce indicate that women
are paid Iess than men even within the same job29. These earnings differences could be due to extraneous factors such as how much seniority a person has, whether a person is a part time or full time employee, which store a person works in or how many weeks during the year the person worked. For example, if women generally have less seniority than men, this could explain why they earn less than men, or women might earn less because more of them are part time than men.
65. Total annual earnings~a were analyzed to determine if women are paid less than men even after taking into account extraneous factors, using a statistical technique known as regression analysis. Regression analysis is widely used by statisticians to make comparisons between male and female earnings, whiIe accounting for the effects of any extraneous factors. In a regression model, total earnings are assumed to be a function of the independent variables plus a random error. The basic steps in this procedure are outlined as follows:
a. Use all the data to estinaate the function of the independent variables, including gender.
b. Determine the ’gender coefficient’ of the resulting regression function.
c. Determine if the gender coefficient is statistically significant.
66. A negative gender coefficient indicates that women are compensated less than similarly situated men. Negative coefficients may be expressed as a percentage difference. For example, if the coefficient as a percentage were I0%, this means that, all other factors being equal, a woman earns 10% less than a man. Statistical significance is determined by a t-value which measures the size of the gender coefficient in standard deviation units, For large sample sizes, t-values
z, See Appendix 6. an Total annual earnings includes three types of earnings found in the yearend payroll data: regular, overtime and other earnings.
38

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 9 of 16
larger than 2.00 are considered statistically significant. If the gender coefficient is statistically significant, the disparity cannot be explained by chance variation and the coefficient measures a real difference between male and female earnings.
Total Annual Earnings Comparisons 67. The initial regressional of total annual earnings included variables
which account for how long an employee has worked for the company, how many weeks the empIoyee worked during the year, whether the employee was hired or terminated during the year, whether the employee was full time or part time, which store the employee worked in, whether the employee was ever hired into an retail store management position, and whether the employee is a woman. Regressions were run for each year, 1996-2001, and were restricted to non-probationary employees in a retail store job who worked and had earnings~. The results of the initial regressions show that women are paid at least 9.3% less than similarly situated men in every year. These results are highly significant with t-values more extreme than -120.5 in every year. The initial regression shows that the earnings difference between men and women is significant even after taking into account factors such as seniority, weeks worked, part time status and store location.
68. The initial regression was also run separately for hourly and salaried employeesaa. The results for hourly employees show that women are paid at least 6.7% less than comparable men ,and are highly significant with t-values more extreme than -89.3 in every year. The results for salaried employees show that women are paid at least 12.6% less than similarly situated men in every year. These results are highly significant with t-values more extreme than -24.6 in every year. These models show that the earnings difference between men and women are more pronounced among salaried than hourly employees.
69. A second regression model was run, with job position added as a control factor in addition to those included in the initial model. This second
al Referred to as model 1 in Appendix 15. a2 Technical descriptions of regression models are given in Appendix 14. aa Referred to model lh for hourly and model ls for salaried in Appendix 15.
39

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 10 of 16
modela4 measures differences in earnings within the same job position. As noted earlier in this report, women are under-represented in managementjobs and have significant shortfalls in management promotions. Therefore, job positions heId by women may be the result of discrimination and would be a tainted variable. Accordingly, regressions including job as a control factor will not reflect any discrimination due to failure to promote women. Nevertheless, the job that a person held was added as a variable to the initial model in order to explore whether earnings differences persist within jobs, notwithstanding the possible discrimination in job positions. The results show that women are paid at least 4.5% less than comparable men in every year, and are highly significant with t-values more extreme than -54.9 in every year. Thus, women still earn less than similarly situated men even after taMng into account the job they heId.as
70. The second model was also run separately for hourly and salaried employeesa~. The results for hourly employees show that women are still paid at least 4.5% less than similarly situated men in each year, and are highly significant with t-values more extreme than -53.84 in every year. The results for salaried employees show that women are paid least 5.8% less than similarly situated men, and are highly significant with t-values more extreme than -12.1 in every year. Thus, among hourly and salaried employees, women earn less than similarly situated men even after talcing into account the job they held.
71, Job review ratings for hourly employees take on values 1, 3, 5, and 7, with 7 being the best rating. As mentioned earlier in this report, ratings of 3 and 5 comprise over 95% of the ratings given. To assess the effect of job review ratings on annual earnings, variables for the four rating values were added to the second model,a7 This third modela~ was run only for year 2001 when ratings data was most
a,~ Referred to as model g in Appendix 15. as The variable of "Store" may also be a tainted, because female managers may be assigned to stores with less earnings potential. an Referred to as models lh and Is in Appendix 15. a7 Performance review data for management employees was not used in any regressions, because the data provided was incomplete unttf a few days prior to the completion of this report, and because ~erformance ratings are not used for determining pay for Managers and Co-Managers.
Referred to as model 3
4O

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 11 of 16

complete and excluded about 25% of hourIy employees because they did not have a valid rating. The third model shows that women are paid 6.1% less than comparable men in 2001 with a highly significant t-value of -77.35. The 6.1% figure is higher than disparities when ratings were not taken into account, which is consistent with the earlier finding that women tend to have higher ratings than
men.

72, Table 27 below summarizes all regressions on total earnings. Details by year are attached as Appendix 15.

Table 27
Summary of Annual Earnings Regressions
Initial modeI controls for seniority, weeks worked, store, PT/FT status, whether hired or terminated during year, whether a management hire,
All models exclude probationary employees and employees who did not work or had zero earnings,

Range of Yearly Results, 1996-2001

Employees ......................................

Included

Model

Percent Difference

t-value

Hourly & Salary ! Initial

9.37% to 10.52%

-120.59 to -147.87

Hourly only

lh Initial

6.75% to 8.!4%

-89.36 to -115.64

Salary only

Is Initial

12.63% to 14.72%

-24.62 to -37.03

Hourly & Salary 2 Adds job

4.54% to 5.60%

-54.96 to -71.37

Hourly only

2h Adds job

4.54% to 5.58%

-53.84 to -69.56

Salary only

2s Adds job

5.46% to 7.07%

-12.17 to -2D.05

Hourly only

3h Adds job and ratinss

6.14%

-77.35*

* Year 2001 0nly, restricted to hourly employees with valid

job review rating.

Hourly Pay Rate Comparisons 73. In the preceding regressions for hourly employees, total annual earnings
were significantly less for women than for men. Total earnings for hourly employees are affected by regular and overtime hours worked and by hourly pay rates. To investigate differences in pay rates, regressions on dollar per hour rates were run for non-probationary hourly retail store employees who were active at

41

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 12 of 16
year end. These first regressions on hourly rates~9 control for how long an employee has worked for the company, whether the employee was hired during the year, whether file employee was full time or part time, which store the employee worked in, whether the employee was ever hired into a retail store management position, what job the employee held, and whether the employee is a woman4a. Gender coefficients for these regressions are expressed in dollars and represent the dollar difference in hourly rates between women and men. For example, if the gender coefficient is -0.30, then this means that hourly women earn $0.30 per hour less than similarly situated men.
74. The hourly rate regressions show that women are paid at least $0,18 per hour less than similarly situated men, and results are highly significant with tvalues more extreme than -62.3 in every year’n. Also, the disparities get steadily worse from 1997 to 2001 when women were paid $0.18 per hour less than men in 1997 to $0,34 less per hour in 2001. These regressions show that the hourly pay rate difference between men and women cannot be explained by factors such as seniority, part time status, store location and job held.
75. Job review ratings were added to the hourly rate regressions to investigate whether ratings could explain differences in hourly pay rates. This second model on hourly rates4~ was run only for year 2001 when ratings were most complete, The results show that women are paid $0.37 per hour less than comparable men in 2001, and are highly significant with a t-value of -102.65. Thus, women are paid at a lower hourly rate than similarly situated men even after taking into account both the job they held and their job review ratings, as well as the basic factors in the model. The $0.37 disparity is higher than the disparity when ratings are not taken into account, which is again consistent with the earlier finding that women tend to have higher ratings than men. Table 28 below summarizes the regressions on hourly pay rates, and details by year are given in Appendix 15.
~,1", RDeeftearirlesdotfotahsemreogdreels4siho.n models are given in Appendix 14, " Details of these regressions are given in Appendix 15. "~ Referred to as model 5h.
42

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 13 of 16

Table 28
Summary of Pay Rate Regressions on Hourly Employees
All models control for seniority, store, PT/FT status, whether hired during year. whether a management hire,job held. models exclude probationary employees, those not active at year end, and
those without a pay rate.

Employees Included

Model

Range of Yearly Results, 1996-2001

$/hour Difference

t-value

Hourly only

4h Has job

$0.1B to $0.34 -62.30 to -i0!.18

Hourly only

5h Has job and rating

$0.37

-102.65*

* Year 2001 only, restricted to hourly employees with valid job review rating.

Consistency in Regressions Across Regions
76. In all regressions on total annual earnings and hourly pay rates, the gender coefficients are statistically highly significant because actual earnings and pay rates for women tend to be lower than what would be predicted for similarly situated men. To determine if women are paid less or at a lower rate consistently across regions, the average female difference between actual and predicted values was computed for every region in year 2001. For every regression model in this report, these averages were negative in 100% of all regions (4t out of 41), indicating that women are earning less and are paid at a lower hourly rate than similarly situated men in every region. Details by region are given in Appendix 16.

43

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 14 of 16
F. CONCLUSIONS
77. Based on my analyses of Wal-Mart personnel and payroll data, and documents I have reviewed, I reach the following conclusions:
a} Women are disproportionately employed in lower paying hourly jobs. In each of the 41 regions at Wal-Mart, the percentage of women among hourly employees was approximately twice their percentage among salaried employees, at year-end 2001.
b) The total earnings paid to men is about $5000 more than earnings paid to women, among full-time employees working at least 45 weeks, on the average, in 2001. In each of the 41 regions across the country men earned at least $2200 more than women, and in 35 out of 41 regions men earned at least $4000 more than women, among full-time employees working at least 45 weeks, during 2001.
c) Women have lower hourly rates than men in hourlyjobs, on the average. Women have lower hourly rates than men working in the same job in 2001, in 76% of the jobs with over i000 employees, for employees who who were employed for at least I year since date of hire.
d) Women have more years employed at Wal-Mart than men overall, in salary jobs, and in hourly jobs. Women have been worldng at Wal-Mart longer than men in the same job, for 97% of jobs with at least 1000 employees in 2001,
e) Women have higher performance ratings in hourly jobs than men, on the average in 2001. The average performance rating is higher for women than men in the same job, for 75% of hourly jobs with at least 1000 employees with ratings in 2001.
f) The hourly pay rate for men is $1,16 more than for women, on the average, at year-end 2001, among men and women hired in hourly positions in 1996, and still employed in 2001. Among men and women hired into the same hourly job in 1996, and still employed in 200t, the average hourly pay rate for men is higher than the rate for women in 80% of the hourly jobs with over 1000 hires in 1996.

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 15 of 16
g) Over 95% of Store Managers and Co-Managers change stores at least once when entering those positions or later, and over 80% change district, and over 60% change region. Store Managers change stores 3.6 times on the average, when entering that position and subsequendy.
h) Over 80% of Assistant Managers and Management Trainees change stores at least once when entering those positions or later, and over 60% change district at least once.
i) 80% of the promotions into Support Manager positions do not appear in the job posting data.
j) The Management Career Selection system (MCS) was not used for selecting promotions into Management Trainee or Co-Manager jobs.
k) The MCS system includes information on less than 1% of the promotions into Assistant Manager positions.
1) Women received 2891 fewer promotions into Support Manager than would be expected from their representation in the feeder pools.
m) Women received 2952 fewer promotions into Management Trainee than would be expected from their representation in the feeder pools.
n) Women received 346 fewer promotions into Co-Manager than would be expected from their representation in the feeder pools.
o) Women received I55 fewer promotions into Store Manager than would be expected from their representation in the feeder pools.
p) Total earnings paid to women ranged between 5% and 15% less than total earnings paid to similarly situated men in each year 1996-200I, even when accounting for factors such as seniority, status, and store,
q) In 2001 when performance ratings were available, the shortfall in earnings for female hourly employees was greater when including performance ratings as a possible explanatory factor for earnings differences than when it was not included.
r) Among hourly empIoyees, women were paid between 18 and a4 cents per hour less than similarly situated men during 1996-2001, even when accounting for factors such as seniority, status, and store. The shortfall in female hourly pay rates became steadily worse from 1997 to 2001.
45

Case 3:05-cv-00440-GPM-CJP Document 37-15 Filed 10/28/2005 Page 16 of 16
s) In 2001 when performance ratings were available, the shortfall in hourly rate paid to female hourly employees was greater when including performance ratings as a possible explanatory factor for earnings differences than when it was not included.
t) Women had lower total earnings, and lower hourly rates, than would be predicted for similarly situated men in every one of the 41 regions across the country. 78. Women employees at Wal-Mart are concentrated in the lower paying
jobs, are paid less than men in the same job, and are less likely to advance to management positions than men. These gender patterns persist even though women have more seniority, have lower turnover rates, and have higher performance ratings in most jobs. The shortfall in female earnings, pay rates, and promotion rates have a high degree of statistical significance.
46

 
 Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 2 of 16

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DMSION

JOHN TUCKER, et al. Plaintiffs,
VS.
Walgreen Company, Defendant.

Case No.: 05-cv-440-GPM

DECLARATION OF MARC BENDICK, JR_..,..Ph.D.
I. Introduction 1. i know the following facts of my own personal knowledge and based on my experience as described herein. If called as a witness, [couId and would testify thereto under oath. 2. I am a principal of Bendick and Egan Economic Consultants, Inc., 4411 Westover Place, N.W., Washington, D.C. 20016. I earned a Ph.D. in economics from the University of Wisconsin in 1975 and have engaged in the full-time practice of economics, specializing in employment and related issues, for more than 30 years. Over that period, I have been a researcher, policy analyst, university Iecturer, and consultant to employers in the public, corporate, and non-profit sectors. I am the author, co-author, or editor of more than I00 pieces of schoIarly research, including books, monographs, articles in refereed journals, and Congressional testimony. My resume is provided as Attachment A. 3. My professional activities have incIuded involvement in litigation on employment discrimination, incIuding analysis of: ¯ the availability of job-seekers in different demographic groups;

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 3 of 16
processes for recruiting, hiring, training, assigning, evaluating, compensating, promoting, and discharging employees; * policies and practices for managing a demographically-diverse work_force; and economic damages associated with denial or diminution of employment opportunities. Attachment B lists the more than 130 cases in which I have participated, on behalf of both empIoyers and employees. I have been qualified and testified as an expert in fourteen federal courts and seven state courts or administrative tribunals. 4. In Tttcker et al v. Walgreen, plaintiffs’ counsel retained me to analyze selected aspects of employment practices and employment outcomes in the Walgreen Company with respect to African American employees and prospective employees. 5. Throughout my work in this case, I utilize modes of anaIysis, computational procedures, information sources, and standards of care identical to or comparable to those I use in my scholarly research, and I apply theories, models, concepts, reasoning, and assumptions that command general acceptance among my professional peers. I hold the opinions I present in this declaration to a reasonabIe degree of scientific certainty. 6. In my work on this case to date, I have consulted or had access to the document and other information sources listed in Attachment C. 7. For my work on this case, I am being compensated at the rate of $295 per hour plus out-of-pocket expenses.
II. The Empirical Issues in This Case
8. As a labor economist, I treat allegations put forth by either plaintiffs or defendants in litigation as hypotheses to be supported or refuted by statistical analysis of empirical data.

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 4 of 16
9. Reading the Complaint in this case~ as a labor economist, I find three principal hypotheses with respect to Walgreens’ employment practices:
a. Walgreens has engaged in a continuing, company-wide pattern and practice of race discrimination~- in promoting African Americans within the managerial and pharmacist career paths.
b. Walgreens has engaged in a continuing, company-wide pattern and practice of race discrimination in store assignments of African Americans in managerial and pharmacist positions.
e. Walgreens has engaged in a continuing, company-wide pattern and practice of race discrimination in selecting African Americans for entry-level management trainee positions.
I0. The next sections of this declaration discuss the data which I -- or any other labor economist, statistician, or quantitative social scientist -- would need to test these hypotheses.
III. Data Required to Analyze the Promotions Hypothesis
11. One principal hypothesis set forth in plaintiffs’ complaint is that African Americans are discriminated against in promotions within the management and pharmacist career paths - for example, in the management career path from Assistant Store Manager/Manager Trainee to Executive Assistant, Store Manager, and District
First A mended Class Action Complaint, filed 8/01/05, especially paragraphs 1 and 24. ~- Here and throughout my work on this case, I use the term "’discrimination" not in any legal sense but as it is deigned in labor economics - as differences in employment treatment or employment outcomes based on personal characteristics (such as race), rather than on job-related dirferences in qualificatians, abilities, or interests.

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 5 of 16
Manager and above, and in the pharmacy career path from Staff Pharmacist to Pharmacy
Manager to Pharmacy Supervisor and above. I would restate this hypothesis more
precisely as follows: For the management and pharmacist positions at issue in the case, in decisions about who is selected from among applicants3 who were Walgreens managerial and pharmacy empIoyees, non-African Americans4 have a higher probability
of being selected than African Americans with equal qualifications.
12. To test this hypothesis, I would need data on the race and qualifications of all applicants for these positions5 who were Walgeens lower-level managerial and
pharmacy employees at the time they applied for or were considered for promotion --
both African Americans and non-African Americans -- and designation of which
individuals within these pools of applicants were promoted.
13. These data should be nation-wide, for at Ieast three reasons:
’~ Throughout this declaration, "applicants" should be understood to include potential applicants, who may not have filed tbrmal appIications, if certain circumstances apply. One circumstance is if incomplete records were kept on actual applicants. A second is if individuals are considered for hiring or promotion without formal applications. A third is if individuals are selectively approached and encouraged to apply for positions not publicly advertised ("tap on the shoulder" selections). A fourth is if potential applications were deterred ("chilled"), for exampIe, by a belief that application would be futile. I have not yet seen information concerning whether these or similar considerations are applicable in the present case. However. a hypothesis of application "chilling" is often logically implied in a hypothesis of discrimination in hiring or promotions. 4 From the information avaiIable to me to date, it is not yet clear to me whether the plaintiffs’ hypotheses concern the experiences of African Americans compared to those of persons of all races and ethnicities other than African American, or whether the hypotheses more specifically concern the experiences of African Americans compared to those of whites. 5 According to the careers section of the Walgreens website, www.wal~,reens.com the company follows a policy of "promote from within" with respect to managerial and pharmacist positions above the entry level. If this policy is followed, it would imply that all or nearly all applicants and selectees for the positions being analyzed here would be current Watgreen lower-level managerial and pharmacist employees. Nevertheless, it is important that data be provided on any applicants considered and selections made through external hiring. These data are necessary to take account of the race effects of these hires within a promotions analysis, as well as to verify the extent to which the "promote from within" policy is actually followed.
4

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 6 of 16
a. I assume that at least some Wal~eens managerial and pharmacy employees who apply for or are considered for promotions wish to be considered for positions outside the district in which they are currently employed.
b. I assume that at least some Wal~eens managerial employees receive promotions to managerial or pharmacist track positions in districts other than the one in which they were then employed. And
c. Plaintiffs allege that the pattern and practice of discrimination in promotions occurs nation-wide.
14. Only with nation-wide data can these assumptions and allegations be accurately verified or rejected empirically. I understand that Waigreens has proposed to provide data only for approximately 1,500 stores -- about one-third of its stores nationwide6 -- and these stores would be only from the 80-100 districts with at least one "African American/low income" store] If the data on applicants for promotion were limited in this way, it would be difficult to draw sound, empiricaIly-based conclusions on the company’s promotional practices nation-wide for at least three
reasons:
¯ The data would not provide direct evidence on promotional practices in all districts.
¯ It would be risky to make inferences from those 80-100 districts to the remaining districts because the remaining districts are
~ According to the Walgreen Company’s "10-k" annual report to the Securities and Exchange Commission in 2004, p. 7, the firm at that time operated 4,582 drugslores in 44 states and Puerto Rico. 7 Letter from Ybarra to Klosener, October 18, 2005, p. 3-4; letter from Demchak and Ktosener to Ybarra, October 17, 2005, p. 4.

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 7 of 16
known to be different from the districts about which I would have data in at least one important way (the presence or absence of "African American/low income" stores). And Because of inter-district promotions, applicant and selection information would be incomplete even for the districts for which data were provided.
IV. Data Required to Analyze the Assignments Hypothesis
15. A second primary hypotheses set forth in plaintiffs’ Amended Complaint is that African Americans are discriminated against in store assignments. I would restate this hypothesis in a more precise form as follows: For the management and pharmacist positions at issue in the case, in decisions about the assignment of employees to stores, non-African Americans and African Americans with equal qualifications have different probabiIities of being assigned to stores with:
a. different customer demo~aphic characteristics (especially race and income);
b. different operating conditions (e.g., tevel of inventory shrinkage, frequency of security incidents, presence of security guards, adequacy of store staffing, store total sales volume, average size of sales transaction); and/or,
c. different profitability. 16. To test this hypothesis, I would need data on the race and qualifications of all employees who were available for, were considered for, or had applied for various

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 8 of 16

store assignments, as well as the characteristics of the stores where vacancies were

available and the stores to which they were subsequently assigned. 17. These data on employees and stores should be nation-wide, for at least three

reasons: a.

I assume that at least some WaIgreens employees wish to be considered for positions outside the region in which they are

employed.

b. I assume that at least some Walgreens employees are actualiy assigned, temporariiy or long-term, outside the districts in which

they were previously empIoyed. And c. The plaintiffs allege that the pattern and practice of discrimination in

assignments occurs nation-wide.

18. Only with nation-wide data can these assumptions and alIegations concerning

assignments be accurateIy verified or rejected empirically, for reasons paralIel to

those listed in paragraph 14. That is, if I had store assignments data only for 1,500

stores drawn from 80-100 districts: ¯ These data would not provide direct evidence on assignment practices

in all districts.

It would be risky to make inferences from these 80-100 districts to the

remaining districts because the remaining districts are known to be

different from the districts about which I would have data in at least

one important way.

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 9 of 16
Because of inter-district assignments, information about persons available for assignment would be incomplete even in the districts about which I had data. And Categorizing stores as "African American/low income" versus "all others" may not reflect the actual distinction between stores to which African Americans may be discriminatorily assigned. To examine other possibilities empirically -- for example, that African Americans are discriminatorily assigned to "high shrink" stores or low profit stores -- requires data on stores with a wide variety of characteristics. Districts selected simply because they contain at least one "African American/low income" store may not include stores with the variation in these other characteristics necessary to determine empirically which store characteristics actually affect store assignments.
IV. Data Required to Analyze the Entry-Level Selection Hypothesis I9. The final primary hypothesis set forth in the Amended Complaint is that African Americans are discriminated against in selection for entry level management trainee positions, typically Assistant Manager/Management Trainee. I would restate this hypothesis in a more precise form as follows: For the entry-level management positions at issue here, in decisions about who is selected the pool of applicants, non-African Americans have a higher probability of being selected than African Americans with equal qualifications.

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 10 of 16
20. To test this hypothesis, I would need data on the race and qualifications of all applicants for these positions -- both African Americans and non-African Americans -and designation of those individuals within these pools of applicants who were selected.
21. These data on shouId be ~adon-~vide, for at least three reasons: a. At least some recruiting by Walgreen for management and pharmacist
positions is conducted nation-wide. In particular, applicants from anywhere in the nation are invited to submit resumes eIectronicaily at the careers section of the company’s website, www.walgreens.com. In addition, this website describes nation-wide intern programs for coIlege students interested in either retail management or pharmacist careers. b. I assume that at least some applicants who file applications within one Walgreens district wish to be considered for positions outside that district; this interest may be particularly strong among impending or recent college graduates, for example, who appear to be major targets of the company’s internship and management training programs. And c. Plaintiffs allege that the pattern and practice of discrimination in hiring occurs nation-wide. 22. Only with natio~-~vide data can these assumptions and allegations be empirically verified or rejected for the firm nation-wide. If the data were limited to 1,500 stores in 80-100 districts, it wouId be difficult to draw sound, empirically-based conclusions on the company’s selection practices nation-wide for reasons parallel to those listed in paragraphs 14 and 18:

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 11 of 16
¯ the data would not provide direct evidence on selection practices in all districts.
¯ It would be risky to make inferences from the 80-100 districts examined to the remaining districts because the remaining districts are "known to be different from the districts about which I would have data in at least one important way.
¯ Inter-district applications and selections would mean that information would be incomplete even for the 80-100 districts for which data were supplied. It would be unclear how to combine district-specific applicant data in those 80-100 districts and applicant data from nationwide recruiting such as college intern programs and from applications filed through the careers section of the company’s website.
23. The data required to test this hypothesis empirically must encompass both i1~ternal applicants -- non-managerial Walgreen employees seeking to be promoted to the entry-level management positions and external applicants -- persons not currently employed by Walgreens seeking to be hired into an entry-level management position. This breadth of data is required because Walgreens apparently considers applicants from both sources in making these selections. For example, the careers section of the company’s website, www.wal~reens.com, describes the store management career path and encourages interested external candidates to apply either through the website or directly at its stores. At the same
10

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005 Page 12 of 16
time, the experience of plaintiffs in this case establishes that additional candidates have been selected from current Walgreens non-managerial employees. Among the named plaintiffs, John Tucker was employed as a Clerk before becoming a Store Manager, and William Strickland was employed as a Service Clerk before becoming an Executive Assistant. s
V. Interactions among the Three Hypotheses 24. As a labor economist, I believe that the plaintiffs’ allegations of discrimination in hiring, promotions, and assignments each can potentialiy stand independently. That is, empirical evidence could support or refute any of the three hypotheses without automatically supporting or refuting the others. 25. However, the three hypothesized types of discriminatory behavior may also interact with each other in a variety of ways. For example: a. Suppose that, in selecting an individual to fill a specific store’s management or pharmacist vacancy, Walgreens simuItaneously consider both intemaI candidates who might be promoted and external candidates who might be hired, and the pools of internal and external candidates have different racial compositions. In this circumstance, decisions to fill vacancies by hiring rather than promotion, or vice versa, might be discriminatory in ways not captured by analyses of either hiring or promotions alone. b. Suppose that, in making hiring or promotional decisions, Walgreens consider the racial match between job candidates and the customers ~ First Amended Class Actiots Complaint, filed 8101/05, paragraphs 9 and 14.
11

Page 13 of 16

Case 3:05-cv-00440-GPM-CJP Document 37-16 Filed 10/28/2005

21 2005 8:3SRM Benddick and E~an Eoonomi 2023634429

p.~

stores wh~re mmm~ement or pharmacist positions are ~ ~ ~I~

w~ tho~ ~g or ~tion d~islo~ ~e ~ ~e. Su~ ~ ~t ~ r~e ~ch ~ empByees ~ custo~ ~
StO~ wh~e a ~g~ or p~ist work~ ~ .~id~ ~

pr~e~ ~ pmmotio~ d~ion. ~o~ately ~ any o£ ~e ~e pr~clpaI h~o~s of ~~tion of~o ~ subj~ts - sn~ as ~om 1,500 ~or~ ~ ~0-~00 ~¢ -
i declare under penalty ofperjury under the laws ofthe United States of Ameba that the foregoin~ is m~e and coEeot Executed this ~’~y of October 2005 at W~shington, D.C.
Mare Be~ic~ Jr., Ph. D.

 
 Case 3:05-cv-00440-GPM-CJP Document 48-3 Filed 12/12/2005 Page 2 of 6

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

JOHN TUCKER, et al. Plaintiffs,

VS.
Walgreen Company,

Defendant.

Case No.: 05-cv-440-GPM

SUPPLEMENTARY DECLARATION OF MARC BENDICK, JR., Ph.Do
1. I know the following facts of my own personal knowledge and based on my experience as described herein. If called as a witness, I could and would testify thereto under oath.
2. I am a labor economist who previously authored a Declaration of Marc Bendiek, Jr., Ph.D., in this case, dated October 20, 2005.
3. Since preparing that earlier declaration, I have read Defendant’s Response to Plaintiffs’ Motion to Compel Responses to Plaintiffs’ First Request for Production of Documents, dated November 14, 2005 (hereafter, Defendant’s Response). Nothing in that document changed my opinions on matters I discussed in my earlier declaration. In fact, some of the issues raised were anticipated and addressed there.
4. However, the Defendant’s Response raises additional issues concerning the feasibility and burdensomeness of data processing which warrant comment. Specifically, the Defendant raises these issues with respect to Plaintiffs’ request for "All electronic and machine readable databases and files containing basic personnel information for all present and past employees

Case 3:05-cv-00440-GPM-CJP Document 48-3 Filed 12/12/2005 Page 3 of 6

during the period January 1, 1998 to the present ....,,1 The Defendant’s Response calls this request "astonishing.’’2 It notes that the request "...includes information from multiple Walgreens data bases that contain millions of records, and would occupy at least ten data disks, the equivalent of hundreds of thousands of pages.’’3
5. With modern data processing technology, the size of a firm and its employee data bases, by themselves, present no bah’let to rapid, efficient data analysis. Over the past decade, my colleagues and I have conducted statistical analyses of alleged employment discrimination in five retail firms with more than 100,000 employees:4

Retailer Wal-Mart Home Depot Kr0ger Publix Costco

Approximate
Current Employeess~ 1,700,000
325,000 289,000 163,000 113,000

Approximate Current Stores 5,700 1,950 3,750 865 460

Store Locations nationwide
nationwide nationwide Southeast
37 states

In each of these cases, we completed our analyses with no unusual effort on our part. We stored

and manipulated data on the same notebook personal computers we use every day, and we used

standard, commercially-available software. According to the Defendant’s Response, Walgreens has 180,000 employees and 5,000 stores in 45 states.6 These figures place it comfortably within

the range of retail firms with which we have successful data analysis experience. I do not

anticipate that analysis of the data described in paragraph 4 above would present greater data

processing challenges than these previous cases.

1 Defendant’s Response, p. 9.
~ Defendant’s Response, p. 8.
~ Defendant’s Response, p. 8; see also paragraphs 3-5 of Affidavit of Carol Spitz, which is Attachment B to Defendant’s Response. 4 Citations for these cases are available in Attachment B to my earlier declaration.
~ Data on employees, stores, and locations was downloaded from the business analysis website www.hoovers.com on November 16, 2005 6 Paragraph 3 of Affidavit of Ca)’ot Spitz, which is Exhibit B to Defendant’s Response.

2

Case 3:05-cv-00440-GPM-CJP Document 48-3 Filed 12/12/2005 Page 4 of 6
6. None of these five large retail firms listed in paragraph 5 above encountered insurmountable problems in identifying, extracting, assembling, documenting, and transmitting the data required for our analysis. In the business and technology environment of 2005, all competently-managed firms with more than I00,000 employees have sophisticated, computerized human resources infolrnation systems. These firms constantly use these systems to write payroll checks; provide mandatory tax reporting to federal and state governments; implement personnel actions such as hires, transfers, raises, promotions, and terminations; calculate bonuses; prepare federally-required equal employment opportunity and affirmative action analyses; inventory employees’ qualifications and performance; forecast s~affing needs; conduct other special studies on personnel issues; and many other uses. To support such widely varying uses, these human resource information systems are designed to:
be highly flexible to accommodate a wide variety of data requests; be efficient to program; locate and assemble data elements from multiple separate databases if required; assemble information for individual stores, districts, store "peer groups," or other collections of stores as needed; and cheaply and rapidly "export" data sets for others to use. The data request in this case is not qualitatively different from requests Walgreens’ human resource information system staffare called upon to fulfill routinely every working day. 7. The Defendant further argues that the plaintiffs’ "...requested data bases contain a wide variety of information that in no way relates to plaintiffs’ claims of race discrimination."v As examples of irrelevant information, the Defendant’s Response lists the number of dependents claimed for federal tax withholding purposes, the names of beneficiaries of employee fringe benefits, monthly amounts paid to pensioners, and employees’ claims for educational reimbursements.
7 Defendant’s Response, pp.8-9; see also paragraph 6 of Affidavit of Carol Spitz,

Case 3:05-cv-00440-GPM-CJP Document 48-3 Filed 12/12/2005 Page 5 of 6
8. Large firms’ human resource management information systems normally contain many such pieces of information, and I assume that Walgreens’ is no exception. Therefore, as in the five previous cases listed in paragraph 5 above, the company’s data processing staff must extract the relevant variables from the firm’s databases and leave the irrelevant variables behind.8 This is a routine task for a firm’s data processing staff, which they are called upon to do every working day. In fact, according to Carol Spitz, this task has essentially already been completed. At the cost of 320 hours, her staff has already isolated the appropriate variables for the subset of stores and years for which Walgreens proposes to provide data to plaintiffs.9
9. Ms. Spitz’s Affidavit states that, if she had to provide such data for Walgreens company-wide for the entire period requested, rather than for the subset of stores and years for which she has already extracted data, her staff would have to duplicate their entire previous effort, and the work would require 60 days to complete.1° In reality, all that her staff would have to do is rerun the data extraction programs they have already written, after deleting the lines of computer code which instruct the computer to limit its search to certain divisions and time periods. Simplifying the computer programs her staff has already written should .require only minutes, and preparing and delivering the data sets the computer would subsequently produce should require at most a few hours, not 60 days. The fact that this data set might be five times the size of the extract Ms. Spitz’s staff has already preparedit makes essentially no difference in how long the extract would take to prepare because the additional work is done by the computer, not by employees.
8 An alternative, equally workable procedure would have the defendant deliver a data base including all variables, after which the plaintiffs’ data analysts could quickly an.d easily delete the irrelevant variables. In previous employment discrimination litigation, I have seen both approaches applied successfully and efficiently. Affidavit of Carot Spitz, paragraph 7.
Affidavit of Carol Spitz, paragraph 7. 11 Paragraph 7 of the Affidavit of Carol Spitz says that the extract her staff has already prepared contains 500,000 records, and paragraph 5 of that Affidavit states that complying with the full request.would create a data set five times that size. Since I have not yet had access to any data in this case, I have no way of Verifying the correctness of ’ these figures.
4

Case 3:05-cv-00440-GPM-CJ P Document 48-3 Filed 12/12/2005:-:":,P.a~,~.,!:~.e~" TM ~’"’~" *’~ ’
~r declare under penalty of perjury ua~der the laws of the United States of America that the foregoing is true and con’ect. Execufed this 17th day of November 2005 at Washington, D.C.
Mare Bendick, Jr.,

 
 Case 3:05-cv-00440-GPM-CJP Document 112-1 Filed 04/26/2007 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and PEARLE PHILLIPS, Plaintiff/Intervenor
v.
WALGREEN COMPANY,
Defendant.

)

)

)

)

Case No. 05-440-GPM

)

)

)

JURY TRIAL DEMANDED

)

)

)

)

)

)

)

COMPLAINT IN INTERVENTION

Plaintiff/Intervenor, Pearle Phillips (“Phillips”), brings this Complaint in Intervention

pursuant to Rule 24(a) of the Federal Rules of Civil Procedure and states and alleges the

following for her cause against Defendant, Walgreen Company (“Defendant”):

Jurisdiction and Venue

1. Jurisdiction of the Court is invoked pursuant to 28 U.S.C. §§ 1343 (a)(4).

2.

This case arises under the laws of the United States, specifically 42 U.S.C.

Section1981.

3. Venue is proper pursuant to 42 U.S.C. § 2000e-5(f)(3) and because the

employment actions at issue were committed within the jurisdiction of this Court.

Parties

4. The Equal Employment Opportunity Commission (“EEOC”) is the federal agency

authorized by federal law to enforce Title VII.

Case 3:05-cv-00440-GPM-CJP Document 112-1 Filed 04/26/2007 Page 2 of 6
5. Phillips is an African American female and at all times relevant to this Complaint was a citizen and resident of the State of Illinois.
6. At all relevant times, Defendant has continuously been doing business in the State of Illinois and the County of St. Clair and continuously employing at least 15 employees.
7. Defendant is an Illinois Corporation authorized and registered to do business in Illinois and is an employer in Illinois within the meaning of 42 U.S.C. 2000e(b).
Exhaustion of Administrative Remedies 8. Phillips timely filed with the EEOC a Charge of Discrimination alleging violations of Title VII against Defendant (attached as Exhibit A). 9. After an unsuccessful attempt at conciliation, the EEOC initiated this action. 10. All private, administrative and judicial prerequisites to the institution of this action have been fulfilled.
COUNT I Violation under Title VII of the Civil Rights Act 11. Paragraphs 1 through 10 above are incorporated as if stated fully herein. 12. Phillips is an African American. 13. Phillips became employed by Defendant in about December 1997 at the Walgreens store in Swansea, Illinois as assistant manager. 14. Phillips was reassigned to the Woodriver, Illinois Walgreens store in November, 1998. She was promoted to Executive Assistant Manager. 15. Within a year of Phillips’ transfer to the Woodriver location, Phillips’ District Manager learned she was African American. Phillips was abruptly reassigned to the Blackjack,

Case 3:05-cv-00440-GPM-CJP Document 112-1 Filed 04/26/2007 Page 3 of 6
Missouri Walgreens, a store commonly referred to by Walgreens Management as an “ethnic store” due to its high volume of non-white customers and low sales volume.
16. The reassignment to a predominantly black/low income “ethnic” store impacted Phillips’ income and promotion opportunities.
17. Within months of reassignment to the Blackjack location, Phillips sought a transfer and reassignment to a store in the East District of Illinois.
18. Phillips communicated to her District Manager, Mr. Woods, that she had been hearing rumors that she had been “marked” for ethnic stores only.
19. Mr. Woods advised Phillips there were plenty of ethnic stores that made money. 20. Phillips communicated to Mr. Woods she felt there was a real problem with discriminatory practices based on race as they pertained to store assignments and promotions.. 21. To placate Phillips, Defendant reassigned Phillips for a brief period to the Collinsville, Illinois Walgreens store where she was referred to as the “Black Manager”. 22. Phillips communicated to District Manager Mark Drury that she had been labeled as black, a practice she opposed. 23. Phillips then worked for a brief period of time in a Belleville, Illinois Walgreens store. 24. Phillips was reassigned to the East St. Louis Walgreens store in July 2002, a predominantly black, low income store, even though she was qualified for and sought store management opportunities in O’Fallon, Illinois. 25. Defendant engaged in a pattern of race discrimination by making store assignments to Phillips based on race.

Case 3:05-cv-00440-GPM-CJP Document 112-1 Filed 04/26/2007 Page 4 of 6
26. Defendant engaged in a pattern of race discrimination by denying Phillips promotions she sought because of her race.
27. The effect of Defendant’s practices was to deprive Phillips of equal employment opportunities and otherwise affect her status based on race.
28. The unlawful employment practices were done with malice or reckless indifference to Phillips’ federally protected rights. Phillips is therefore entitled to an award of punitive damages.
29. As a direct and proximate result of Defendant’s actions and/or inactions, Phillips has suffered lost income and benefits.
30. As a direct and proximate result of Defendant’s actions and/or inactions, Phillips has suffered emotional pain, suffering, inconvenience, embarrassment and humiliation.
31. Phillips is entitled to recover reasonable attorney’s fees and costs as provided in 42 U.S.C. § 2000e-5(k).
COUNT II Violation under 42 U.S.C. § 1981
Race Discrimination 32. Phillips realleges and incorporates by reference the allegations contained in Paragraph 1-31 above 33. Phillips is African American. 34. Defendant has intentionally discriminated against Phillips on the basis of race as set forth above in violation of 42 U.S.C. § 1981. 35. Phillips has suffered and will continue to suffer irreparable harm and injury as a result of Defendants’ actions/inactions as set forth herein.

Case 3:05-cv-00440-GPM-CJP Document 112-1 Filed 04/26/2007 Page 5 of 6
36. Phillips has suffered economic loss and benefits as a result of the intentional discrimination by Defendant.
37. Defendant’s conduct has caused Phillips pain and suffering and loss of future earning capacity.
38. Defendant’s actions were in willful, gross and reckless disregard of Phillips’ rights under 42 U.S.C. § 1981.
39. As a direct and proximate result of Defendant’s discrimination against Phillips. she is entitled to the relief set forth below.
Prayer for Relief WHEREFORE, Plaintiff/Intervenor Pearle Phillips requests that the Court enter judgment in her favor against Defendant for such damages, actual and nominal, as are fair and reasonable, for her reasonable attorney’s fees and costs incurred herein, for interest as allowed by law, and for such other and further legal and equitable relief as the Court deems just and proper.
Respectfully submitted,
By: _/s/ JoDee Favre Favre Law Office, LLC JoDee Favre, Attorney at Law 5005 West Main Street Belleville, Illinois 62226 (618) 257-8605 email: jfavre@favrelaw.com

Case 3:05-cv-00440-GPM-CJP Document 112-1 Filed 04/26/2007 Page 6 of 6
CERTIFICATE OF SERVICE
I certify that on April 26, 2007, I electronically filed the above and foregoing document with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following CM/ECF participants:
Robert G. Johnson robert.johnson@eeoc.gov
Barbara A. Seely barbara.seely@eeoc.gov
Andrea G. Baran andrea.baran@eeoc.gov, laura.taylor@eeoc.gov, donna.williams@eeoc.gov
Jean P. Kamp jean.kamp@eeoc.gov, Charlene.reinhart@eeoc.gov, quiana.surles@eeoc.gov; latricia.phillips@eeoc.gov
Nora E. Curtin nora.curtin@eeoc.gov
Robert G. Johnson robert.johnson@eeoc.gov
Keith C. Hult khult@littler.com, sgaur@littler.com; mlancaster@littler.com
Allan G. King aking@littler.com
John A. Ybarra jybarra@littler.com, aRamsey@littler.com; tmoxley@littler.com
Thomas R. Peters t.peters@gundlachlee.com, I.schafer@gundlachlee.com; glebr@gundlachlee.com
Curtis R. Picou c.picou@gundlachlee.com, I.kish@gundlachlee.com; glebr@gundlachlee.com
_/s/ JoDee Favre ___________ Attorney for Plaintiff Phillips/Intervenor

 
 Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 1 of 91

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

JOHN TUCKER, ANGELA MILLER, JOVAN HANEY, LEON BRADLEY, WILLIAM STRICKLAND, OSCAR GREEN, MIKE JACKSON, KEVIN RIDDLE, AVERY ANDERSON, TRACI DANSBERRY, CARLOS ZIMMERMAN, CHRIS DARGIN, and KIMBERLY WAFFORD on behalf of themselves and others similarly situated,

Case No.: 05-cv-440-GPM (consolidated with 07-CV-172-MJR-CJP)
Chief Judge G. Patrick Murphy Magistrate Clifford J. Proud

and EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and PEARLE PHILLIPS,

Plaintiffs, vs.

WALGREEN COMPANY,

Defendant.

CONSENT DECREE

CONSENT DECREE

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 2 of 91
TABLE OF CONTENTS I. INTRODUCTION .........................................................................................................................1 II. PURPOSES OF THE CONSENT DECREE.................................................................................3 III. JURISDICTION, FINDINGS, AND DEFINITIONS ...................................................................3
A. Jurisdiction and Venue.......................................................................................................3 B. Findings..............................................................................................................................3 C. Definitions..........................................................................................................................4 IV. CLASS DEFINITION AND CERTIFICATION...........................................................................6 V. SCOPE OF RESOLUTION AND RELEASE OF CLAIMS ........................................................7 A. Class Release .....................................................................................................................7 B. Plaintiffs, Plaintiff-Intervenor, and Individually Represented Class
Members’ Release..............................................................................................................8 C. Scope of the Resolution of the EEOC’s Claims ................................................................9 VI. TERM OF THE DECREE .............................................................................................................9 VII. DISPUTE RESOLUTION AND ENFORCEMENT OF THE DECREE BEFORE THE SPECIAL MASTER AND THE COURT ..........................................................................11 A. Appointment and Authority of the Special Master ..........................................................11 B. Informal Dispute Resolution Procedures .........................................................................11 C. Referral To The Special Master.......................................................................................12 D. Appeal From the Special Master’s Decision ...................................................................13 E. Payment of the Fees and Costs of the Special Master .....................................................13 F. Attorneys’ Fees and Costs Incurred in Utilizing the Dispute Resolution
Procedures ........................................................................................................................ 14 G. No Third Party Beneficiaries ...........................................................................................14 H. Resort to the Court for Immediate Action .......................................................................14 I. Judicial Enforcement by Contempt..................................................................................15 VIII. INJUNCTIVE RELIEF PROVISIONS .......................................................................................15 A. General Injunctive Relief Provisions ...............................................................................15
i

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 3 of 91
B. Retention of Consultants and Consideration of Consultants’ Recommendations ............................................................................................................ 16 1. Identification of the Consultants..........................................................................16 2. Consideration of Consultants’ Recommendations...............................................16
C. Promotion Standards and Procedures ..............................................................................18 D. Promotional Benchmarks.................................................................................................19
1. General Principles................................................................................................19 2. Establishment and Attainment of Benchmarks....................................................20 E. Store Assignment Standards and Procedures...................................................................23 F. Compensation Analysis ...................................................................................................26 IX. IMPLEMENTATION OF INJUNCTIVE RELIEF.....................................................................27 A. Walgreens’ Internal Monitoring and Compliance Procedures.........................................27 1. Walgreens’ Decree Monitor.................................................................................27
a. Selection of the Decree Monitor ..............................................................27 b. Duties and Responsibilities of the Decree Monitor .................................27 c. Decree Monitor’s Authority to Recommend Individual
Relief ........................................................................................................ 29 d. Replacement of the Decree Monitor ........................................................29 e. Resolution of a Dispute Regarding the Retention or Failure
to Replace the Decree Monitor ................................................................30 f. Announcement of the Decree Monitor ....................................................31 g. Provision of Adequate Resources to the Decree Monitor........................31 B. Implementation of Policies and Procedures for Reporting, Investigating and Addressing Individual Complaints of Race Discrimination .....................................31 C. Communication of Consent Decree Requirements to Officers and Employees ........................................................................................................................ 36 D. Notice...............................................................................................................................36 E. Training............................................................................................................................37 F. Management Performance Evaluation and Accountability .............................................39 1. District Manager and Pharmacy Supervisor ........................................................39
ii

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 4 of 91
2. Review of Performance Evaluation Processes Pertaining to Covered Positions ................................................................................................41
X. RECORDKEEPING, REPORTING, AND COMPLIANCE MEETINGS.................................41 A. Document Preservation....................................................................................................41 B. Access of Special Master and Monitoring Counsel to Retained Documents ..................43 C. Compliance Reports.........................................................................................................45 1. Contents of Compliance Reports .........................................................................45 2. Summary of Compliance Reports........................................................................46 D. Compliance Meetings ......................................................................................................47
XI. MONETARY RELIEF FOR PLAINTIFFS AND CLASS MEMBERS.....................................47 A. Establishment of Settlement Fund ...................................................................................47 B. Payment of the Settlement Fund ......................................................................................48 1. Class Representatives, Plaintiff Wafford, and Plaintiff-Intervenor .....................49 2. Charging Parties and Individually Represented Class Members .........................50 3. Retaliation Claims of Plaintiff Tucker ...............................................................50 4. Attorneys’ Fees and Costs of Class Counsel .......................................................50 5. Payment of Settlement Administrator’s Fees ......................................................51 6. Settlement Class...................................................................................................51 C. Allocation of the Net Settlement Amount by Categories of Recovering Class Members.................................................................................................................51 D. Procedure for Distribution of the Settlement Fund..........................................................53 E. Notice...............................................................................................................................58 F. Objections and Exclusions...............................................................................................58 G. No Solicitation of Objections or Exclusions....................................................................60 H. Defendant’s Rescission of Agreement.............................................................................60 I. Settlement Administrator’s Duties and Responsibilities .................................................61
XII. ATTORNEYS’ FEES, COSTS AND EXPENSES .....................................................................61 A. Basis for Award of Fees, Costs and Expenses.................................................................61
iii

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 5 of 91
B. Date for Payment .............................................................................................................62 C. Monitoring Fees ...............................................................................................................62 XIII. MISCELLANEOUS PROVISIONS............................................................................................63 A. No Admission of Liability ...............................................................................................63 B. Duty to Support and Defend the Decree ..........................................................................63 C. Calculation of Time .........................................................................................................64 D. The Decree is Binding on the Parties and their Successor and Assigns. .........................64 E. The Consent Decree Is The Complete Understanding of the Parties...............................64 F. Interpretation and Severability of Decree ........................................................................64 G. Modification of Decree ....................................................................................................64 H. Execution of Decree.........................................................................................................65 I. Return or Destruction of Documents ...............................................................................65 EXHIBITS TO CONSENT DECREE A. Plaintiffs’ and Individually Represented Class Members’ Release B. Summary of Consent Decree C. Notice to Employees Re Settlement of Racial Discrimination Lawsuit D. Chart of Names of and Enhancement Amounts for Class Representatives, Plaintiff Wafford and Plaintiff Intervener Phillips E. Chart of Enhancement Payments To (1) Charging Parties And (2) Class Members Individually Represented By Class Counsel F. Estimated Settlement Amount Form
iv

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 6 of 91
I. INTRODUCTION On June 20, 2005, fourteen (14) current and former employees of Walgreen Co.
(“Walgreens”), Johnny Tucker, Angela Miller, Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Traci Dansberry, Carlos Zimmerman, and Chris Dargin, filed a complaint on behalf of themselves and as representatives of a class of African American current and former employees of Walgreens (collectively referred to as “private plaintiffs”) alleging a pervasive policy of race discrimination instituted and maintained by Walgreens in a continuing violation of 42 U.S.C. § 1981, as amended (“Section 1981”). The private plaintiffs’ complaint was subsequently amended to include violations of Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”), 42 U.S.C. § 2000e et seq., and to substitute plaintiff Kimberly Wafford, who alleges that she was rejected for a Management Trainee position as both an external and internal applicant, for plaintiff Malica Page.
On March 7, 2007, Plaintiff, the U.S. Equal Employment Opportunity Commission (the “EEOC”) filed a complaint alleging that Walgreens discriminated against Johnny Tucker, Pearle Phillips and twenty (20) additional Charging Parties because of their race, and engaged in a pattern and practice of racial discrimination against African American retail and pharmacy management employees in violation of Title VII. On April 23, 2007, the Court entered an Order permitting Pearle Phillips (“plaintiff-intervenor”) to intervene in the EEOC’s action.
The EEOC, private plaintiffs, and plaintiff-intervenor claim that Walgreens’ employment practices discriminated against African American retail and pharmacy management employees by (1) assigning African American employees in retail and pharmacy management career path positions to stores in African American and/or low income neighborhoods on the basis of their race (the assignment claim), and (2) denying qualified African Americans promotions within the retail and pharmacy management career path, and to district and corporate positions (the promotion claims.) The private plaintiffs also allege that Walgreens engaged in a pattern or practice of discrimination against African American employees by compensating African
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Americans in retail and pharmacy management positions less than similarly situated white employees (the compensation claims), and by failing to select African American internal and external candidates for the entry level management position of Management Trainee because of their race (the hiring claims). This Consent Decree does not address the claims of: (1) denial of promotions of qualified African Americans to district and corporate positions, other than District Manager and Pharmacy Supervisor, or (2) failure to select qualified African American internal and external applicants for the Management Trainee position.
Walgreens denies all of the allegations made by the private plaintiffs, plaintiff-intervenor, and the EEOC. Walgreens, the EEOC, the private plaintiffs agree that assignment of an African American retail and pharmacy management employee to a store in an African American neighborhood, where the assignment is not related to the race of the assigned employee, is not an adverse employment action for purposes of Title VII or Section 1981 liability. Walgreens denies that it has discriminated on the basis of race with respect to store assignments, promotions or compensation.
The two actions were consolidated on April 23, 2007. Private plaintiffs, the EEOC, and Walgreens are collectively referred to as “the Parties.”
The Parties agree that formal and informal discovery conducted in this action – depositions, documents produced, the experts’ analyses and the other information exchanged during settlement discussions – is sufficient to reliably assess the merits of the respective Parties’ positions and to compromise the issues on a fair and equitable basis. All Parties believe that this Decree is fair, reasonable, and adequate to resolve this case in its entirety, and that this settlement is in the best interests of the private plaintiffs, of the class for which the private plaintiffs and the EEOC seek relief, and Walgreens. In reaching this conclusion, all counsel and their respective clients have considered, among other things, the expense, inconvenience, delay, and other demands of continuing burdensome and protracted litigation, the risks inherent therein, and the benefits provided by the terms of this Decree.
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II. PURPOSES OF THE CONSENT DECREE The purposes of this Consent Decree are: A. To review and evaluate Walgreens’ selection procedures and standards to assure
that African American employees of Walgreens have equal access to, and opportunity for, store assignments, and for selection and promotion to, and compensation in, Walgreens’ retail and pharmacy management career paths, and to monitor the implementation of these procedures and standards in order to assure that such access and opportunity are provided;
B. To provide appropriate relief for eligible Plaintiffs, Charging Parties and Class Members;
C. To increase the awareness of African Americans concerning the various employment and career options available to them in Walgreens’ retail operations, and to ensure that they are fully and fairly considered and trained for, assigned and promoted to, and compensated in Walgreens’ retail and pharmacy management career paths on an equal and nondiscriminatory basis;
D. To create an expedited and efficient procedure for implementing equitable relief pursuant to the terms of this Decree; and
E. To resolve and to provide finality to all disputes covered by this Decree in such a way as to avoid further expensive and protracted litigation. III. JURISDICTION, FINDINGS, AND DEFINITIONS
A. Jurisdiction and Venue This Court has jurisdiction over the Parties and the subject matter of this action. Venue is proper in this Court. B. Findings The purposes of Title VII, Section 1981, relevant state fair employment statutes, and the public interest, will be furthered by the entry of this Decree.
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C. Definitions “Approval Date” means the date upon which the Court signs this Decree after having determined that it is fair, adequate and reasonable. “Best Efforts” means all reasonable steps necessary to realize or comply with the specific objectives to which the Best Efforts are directed. “Charging Parties” are Ricky G. Nicholson, Charge No. 564-2007-00427; Charles W. Adams, Charge No. 490-2007-02177; Kathy Hoskin, Charge No. 460-2007-03415; Victor Oatts, Charge No. 510-2007-01556; LeNitra Oliver, Charge No. 541-2007-00001; Deborah Sanders, Charge No. 440-2007-05261; Shaun Thornton, Charge No. 280-2004-04431; Nichole Herron, Charge No. 280-2004-06429; Derrick Brown, Charge No. 280-2005-02050; and Alexandra Mwaura, Charge No. 510-2006-02371. “Class Representatives” means Johnny Tucker, Angela Miller, Jovan Haney, Leon Bradley, William Strickland, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Traci Dansberry, Carlos Zimmerman, and Chris Dargin “Class Counsel” means Foland, Wickens, Eisfelder, Roper & Hofer, PC of Kansas City, Missouri; Spriggs Law Firm of Tallahassee, Florida; and Goldstein, Demchak, Baller, Borgen & Dardarian of Oakland, California. “Court” means the United States District Court for the Southern District of Illinois, East St. Louis Division. “Covered Complaint” means any complaint by an African American in a Covered Position, asserting that: (a) any provision of this Decree has been violated with respect to his or her employment with the Company, or (b) he or she has been the subject of Race Discrimination, with respect to store assignment, promotion, or compensation. “Covered Pharmacy Positions” refers to the Pharmacist (“RPS”) and Pharmacy Manager (“RxM”) positions.
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“Covered Positions” means Management Trainee (“MGT”), Executive Assistant Manager (“EXA”), Store Manager (“MGR”), Pharmacist (“RPS”), and Pharmacy Manager (“RxM”).
“Covered Retail Management Positions” or “Retail Management Personnel” means Management Trainee (“MGT”), Executive Assistant Manager (“EXA”), and Store Manager (“MGR”).
“District” means the set of Walgreens’ retail stores, and the geographical area(s) associated with them, that are within the responsibility of a District Manager. At present, there are approximately 220 Districts in the Company.
“Fund Administrator” means Settlement Services, Inc. or SSI. “Job description” means a written statement of the nature of a job and the usual and typical activities involved in its performance, the duties and responsibilities of the job’s holder; and the minimum and preferred qualifications for the job. “Liability period” or “class period” means the period from June 20, 2001, through the Preliminary Approval Date. “Monitoring Counsel” means the law firm of Goldstein, Demchak, Baller, Borgen & Dardarian, of Oakland, California, one of the Class Counsel firms, and Jean Kamp or her designee on behalf of the Equal Employment Opportunity Commission. Whenever this Decree calls for the submission of documents to, or attendance at meetings with Monitoring Counsel, Walgreens shall provide said documents or hold said meeting with Monitoring Counsel. Walgreens shall not be required to provide documents or attend meetings with any other representatives of Class Counsel. “Preliminary Approval” or “Preliminary Approval Date” means the date on which the Court enters an order preliminarily approving this Decree and directs the giving of notice to members of the class providing them an opportunity to opt out of the Settlement Class or submit objections to the Decree, after holding a preliminary fairness hearing, if required;
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“Race Discrimination” or “Discrimination on the Basis of Race” means unlawful discrimination against an employee on the basis that he or she is African American, including but not limited to retaliation against an employee because he or she has opposed practices he or she believes in good faith to constitute unlawful race discrimination or has participated in processes designed to obtain relief for alleged unlawful race discrimination.
“Region” means the set of Walgreens’ Districts, the stores contained in those Districts, and the geographical area(s) associated with the Districts, each of which is under the responsibility of a single Operations Vice President. At present, there are 23 Regions of the Company.
“Represented Class Members” or “Class Members individually represented by Class Counsel” means Tornica Chaney, Jelani Coppage, Robert Davis, Shaneika Foster, Dorthea McChester, and Rashaun Stout.
“Special Master” refers to the individual to be appointed pursuant to Section VII.A. of this Consent Decree.
“Walgreens,” “Defendant,” and the “Company” mean Defendant Walgreen Co. For purposes of this Decree, Walgreens’ “Store Operations” means a component of Walgreens that consists of its retail stores and pharmacies and the in-store and above-store level management structure and personnel overseeing the store and pharmacy operations.
“Walgreens’ counsel” means the law firm of Littler Mendelson. IV. CLASS DEFINITION AND CERTIFICATION
A. For purposes of the non-monetary, injunctive and equitable relief provided in this Decree, the Settlement Class is certified (solely for the purpose of implementing this Consent Decree) pursuant to Federal Rule of Civil Procedure 23(b)(2) and consists of:
All African Americans who are or were employed by Walgreens in any Covered Position for any length of time between June 20, 2001, and the Preliminary Approval Date (start and end dates inclusive).
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B. For purposes of the monetary relief provided in this Decree, the Settlement Class is certified (solely for the purpose of implementing this Consent Decree) pursuant to Federal Rule of Civil Procedure 23(b)(3) and consists of:
All African Americans who are or were employed by Walgreens in any Covered Position, for any length of time, between June 20, 2001, and the Preliminary Approval Date (start and end dates inclusive), except those who file a timely request to opt out of the monetary relief provisions of the Decree. C. The Settlement Class closes on the Preliminary Approval Date. All African Americans who are hired by Walgreens in Covered Positions after the Preliminary Approval Date, may avail themselves of the non-monetary equitable relief provided in the Decree but they shall not be entitled to any portion of the monetary relief provided in the Decree. D. Settlement Class members who file a timely request to opt out of the monetary relief provisions of this Decree as provided for in Section XI.F. 2-3 below, shall not be held to release, by virtue of this Decree, any claims for individual monetary relief or individual injunctive relief. E. In the event that Final Approval of this Decree is not obtained, Walgreens is not deemed by any provision in this Decree to have waived its objections and defenses to class certification and the Decree shall not be admissible in any court regarding the propriety of class certification or any other issue. V. SCOPE OF RESOLUTION AND RELEASE OF CLAIMS A. Class Release Class Members who do not opt out of the Tucker v. Walgreen Co. action (“Tucker action”) in the manner to be specified by the Court in an order granting Preliminary Approval and providing for notice of the settlement embodied in this Consent Decree shall be deemed to have thereby waived and released Walgreens from any and all claims of racial discrimination for monetary relief of any type that are covered by this Consent Decree or that might have been asserted on their behalf, or such claims for racial discrimination they could in the future assert under any cause of action against Walgreens, arising out of their employment with Walgreens up
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to and including the Preliminary Approval Date, including but not limited to any claim for racial discrimination under any federal, state or local statute relating to their employment relationships with Walgreens, including but not limited to Title VII, Section 1981, and analogous State law(s). However, this Release and waiver of claims shall not extend to claims based on incidents occurring after the Preliminary Approval Date, or to matters that were not, nor could have been, asserted in the Tucker action by or on behalf of the Class Member. The Parties understand and intend that the limitation periods for these claims that were not, nor could have been, asserted in the Tucker action, were not tolled during the pendency of this case. This Release shall survive the termination of this Decree.
The Release shall exclude class claims for failure to hire external and internal applicants for the Management Trainee position and class claims for promotion from retail store and pharmacy positions to district or corporate positions other than the District Manager and Pharmacy Supervisor positions (“Excluded Class Claims”), and neither the settlement nor Releases provided for by the Consent Decree shall be a bar against any African American person (apart from those identified in Section V.B, below) bringing a claim for discrimination based on race against Walgreens based on such Excluded Class Claims, provided that such claim is otherwise timely. Such Excluded Class Claims shall be deemed to have been tolled during the pendency of the Tucker action through and until the Preliminary Approval Date.
B. Plaintiffs, Plaintiff-Intervenor, and Individually Represented Class Members’ Release
Each of the Plaintiffs, the Plaintiff-Intervenor, and Class Members individually represented by Class Counsel who receives an individual monetary payment from the Settlement Fund as provided in Section XI.B.2. of this Decree shall be required to sign a form of Release attached as Exhibit A to this Decree as a condition of receipt of payment. Upon signing such release, each such individual shall be deemed to have thereby waived, and released Walgreens from, any and all claims arising at any time up to and including the date such individual signs the form of Release attached to this Decree, including but not limited to any claims for monetary
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relief of any type and attorneys’ fees and costs that he or she asserted in the Tucker action, or in the case of the Plaintiff-Intervenor in her own action, or that he or she might have asserted, or could in the future assert under any cause of action against Walgreens arising out of his or her employment or application for employment with Walgreens, including but not limited to, any claim under any federal, state or local statute relating to his or her employment relationship with Walgreens, including but not limited to, Title VII, Section 1981, and analogous provisions of State laws. This Release shall survive the termination of this Decree. However, this Release and waiver of claims shall not extend to claims based on incidents occurring after the date such Plaintiff, Plaintiff-Intervenor, and Class Member individually represented by Class Counsel signs such Release.
C. Scope of the Resolution of the EEOC’s Claims This Decree shall fully and finally resolve any claims asserted by EEOC in its Complaint arising from incidents occurring prior to the Preliminary Approval Date. Nothing herein shall be deemed to resolve any EEOC charges, other than those filed by the Plaintiff-Intervenor and the Charging Parties, and it is the intention of Walgreens and the EEOC that this release terminates all investigations of charges filed by the Plaintiff-Intervenor and the Charging Parties upon which EEOC based its Complaint. This Release shall survive the termination of the Decree. VI. TERM OF THE DECREE A. Unless provided otherwise, the equitable provisions in this Decree are effective immediately upon the Approval Date. B. The provisions of this Decree shall remain in effect for a period of five (5) years from the Approval Date. Walgreens may file a motion to be relieved of the provisions of the Decree at any point following the expiration of four (4) years from the Approval Date. The Parties may stipulate that Walgreens should be relieved of the provisions of the Decree. Absent such agreement, in order to be relieved of the provisions of the Decree before the end of the full five (5) year period, Walgreens must demonstrate that: (1) it has satisfied its duty to use Best Efforts with respect to its obligations under the Decree; (2) it has implemented and maintained
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all programs mandated by the Decree; (3) it has used its Best Efforts to satisfy each of the Benchmarks during the preceding two (2) years; and (4) it has satisfied all monetary provisions of the Decree. Walgreens bears the burden of demonstrating to the Court that it has satisfied those conditions. Monitoring Counsel may oppose any motion of Walgreens to be relieved of the provisions of the Decree on the grounds that any of these conditions have not been met. Unless and until the Court issues an order granting the motion to be relieved, all provisions of the Decree shall remain in full force and effect.
C. Walgreens shall provide thirty (30) days notice to the Special Master and Monitoring Counsel of any motion and briefing thereon to be relieved of the provisions of the Decree before the full period of five (5) years. Monitoring Counsel shall have thirty (30) days to provide any opposition to the motion to the Special Master and Walgreens. Walgreens shall have fifteen (15) days to provide its reply to Monitoring Counsel’s opposition, if any, to the Special Master and Monitoring Counsel. The Special Master shall have thirty (30) days to prepare a written recommendation to the Court as to the resolution of the motion to be relieved. The Parties shall then jointly file all of the briefing and the Special Master’s recommendation with the Court, and request that the Court set a hearing on the motion. Each party may file and serve a response to the Special Master’s recommendation, not to exceed the (10) pages, not later than fourteen (14) days before the scheduled hearing. However, the Parties may not file any other briefing except their responses to the Special Master’s recommendation and copies of their prior submissions to the Special Master, unless requested to do so by the Court.
D. The Court shall retain jurisdiction of this action during the Term of the Decree for the purpose of entering all orders authorized hereunder, which may be necessary to implement the relief provided herein or to enforce the Decree.
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VII. DISPUTE RESOLUTION AND ENFORCEMENT OF THE DECREE BEFORE THE SPECIAL MASTER AND THE COURT A. Appointment and Authority of the Special Master 1. Walgreens, Class Counsel and EEOC agree to the appointment of Hunter
R. Hughes, III as Special Master. The Special Master may be replaced or removed: (i) at the written request of the Special Master, (ii) at the joint written request of Monitoring Counsel and Walgreens; or (iii) by order of the Court upon motion of either Walgreens or Monitoring Counsel demonstrating that good cause exists for the removal of the Special Master.
2. In the event that the Special Master or his successor ceases to function as Special Master for any reason including death, disability, voluntary resignation, the joint written request of Monitoring Counsel and Walgreens, or an order of the Court, Monitoring Counsel and Walgreens shall make a good faith effort to select a new Special Master by mutual agreement.
3. If Monitoring Counsel and Walgreens are unable to reach agreement as to a successor Special Master within forty-five (45) days following the date the designated Special Master ceases to function in that capacity, the Court, upon motion of either Monitoring Counsel or Walgreens, shall appoint a successor Special Master. Monitoring Counsel and/or Walgreens may nominate to the Court persons for consideration as the successor Special Master. Both Monitoring Counsel and Walgreens shall have the right to interview any nominated person and to present argument and evidence to the Court regarding the selection of a successor Special Master.
4. The Special Master shall have authority to resolve all disputes arising under the Decree, subject to limitations and standards set forth in the Decree.
B. Informal Dispute Resolution Procedures 1. At the request of either Monitoring Counsel or Walgreens, Monitoring
Counsel and Walgreens shall confer as necessary with regard to any dispute arising under the Decree. Walgreens and Monitoring Counsel shall use their Best Efforts to resolve promptly any dispute regarding the interpretation, implementation or application of the Decree, including Walgreens’ compliance with any of its provisions, according to the procedures set forth below.
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2. If Monitoring Counsel or Walgreens has good reason to believe that a legitimate dispute exists as to the interpretation, application, or enforcement of any provision of this Decree, the initiating party shall promptly give written notice to the other party, including: (a) a reference to all specific provisions of the Decree that are involved; (b) a statement of the issues; (c) a statement of the remedial action sought by the initiating party; and (d) a brief statement of the specific facts, circumstances and any other arguments supporting the position of the initiating party.
3. Within ten (10) days after receiving such notice, the non-initiating party shall respond in writing to the statement of facts and arguments set forth in the notice and shall provide its written position, including the facts and arguments upon which it relies in support of its position.
4. Monitoring Counsel and Walgreens shall undertake good faith negotiations, which should include a meeting or meetings by telephone or in person and the exchange of relevant documents and/or other information, to attempt to resolve the issue(s) in dispute or alleged noncompliance. The Parties shall use Best Efforts to resolve the disputed matter(s) within twenty (20) days after the initiating party’s receipt of the non-initiating party’s response required by subsection B.3., above.
5. The Special Master, upon motion, may permit Monitoring Counsel or Walgreens to take post-settlement discovery as provided by the Federal Rules of Civil Procedure, however, post-settlement discovery (i) shall only be taken as to matters relevant to the underlying claim of breach, and (ii) shall only be permitted if the Special Master determines that the informal exchange of documents or information has not been sufficient to allow Monitoring Counsel or Walgreens to present the dispute upon a factual record adequate for a fair determination of the issue.
C. Referral To The Special Master 1. If Monitoring Counsel and Walgreens fail to resolve any differences or
disputes regarding the interpretation, implementation or application of the Decree pursuant to the
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Dispute Resolution Procedures, Monitoring Counsel or Walgreens may file a motion with the Special Master, with a supporting brief, seeking resolution of the dispute or the issue of noncompliance, provided, however, that: (i) the moving party has made Best Efforts to resolve the matter for at least the twenty (20) day period provided for in subsection B.4., above; (ii) prior to the filing of such motion, the initiating party has served a written notice of “impasse” upon the other party; and (iii) such motion shall be limited to the dispute(s) and/or issue(s) as to which the Dispute Resolution Procedures were exhausted.
2. The non-moving party will have ten (10) days to respond to any such motion by filing a brief with the Special Master and serving it on the moving party.
3. The Special Master shall attempt, within thirty (30) days after the filing of the non-moving party’s brief, to resolve the dispute. The Special Master may within that period schedule a telephonic or in-person hearing or other proceeding to resolve the matter by consent of the Parties or to provide them with an opportunity to present such evidence or argument as deemed appropriate by the Special Master in the absence of a consensual resolution.
4. The Special Master shall, within thirty (30) additional days after such hearing as he may have permitted, issue a written determination, including findings of facts, if requested by any party.
D. Appeal From the Special Master’s Decision Either Monitoring Counsel or Walgreens may appeal a decision of the Special Master to the Court provided that such an appeal is filed within fourteen (14) days of the Special Master’s decision. Any such appeal shall be brought by motion pursuant to the Local Rules of the Court and Federal Rules of Civil Procedure. The decision rendered by the Special Master shall be affirmed unless the Court finds that the Special Master made clearly erroneous findings of fact or wrongly interpreted or applied the terms of this Decree. E. Payment of the Fees and Costs of the Special Master Walgreens shall pay for the fees and expenses of the Special Master during the Term of this Decree.
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F. Attorneys’ Fees and Costs Incurred in Utilizing the Dispute Resolution Procedures
Except as provided for in Section XII.C., Monitoring Counsel and Walgreens shall bear their own attorney’s fees and costs for all work performed through resolution by the Special Master. In the event that either Monitoring Counsel or Walgreens seeks to appeal any decision of the Special Master, the prevailing party in such appeal shall be entitled to recover its reasonable attorneys’ fees, costs and expenses incurred in such appeal from the other party, consistent with applicable standards under Title VII. Whether and to what extent any party is a prevailing party and shall be awarded fees, costs and expenses shall be determined in the sole and absolute discretion of the Court.
G. No Third Party Beneficiaries Third parties shall not have standing to petition, and Class Members are enjoined from seeking, to have the Court enforce this Decree or hold Walgreens or any of its officers, agents, or managers in contempt under Section VII.I. below. Rather, any Class Member or other individual concerned about Walgreens’ compliance with this Decree may so notify Monitoring Counsel and request that they fulfill their responsibility to examine Walgreens’ compliance and to seek such relief, if any, as may be appropriate. Plaintiffs, Class Members, or third parties shall not have the right to initiate or conduct, or compel Monitoring Counsel to utilize the Dispute Resolution Procedures or to require the Special Master to receive or act on complaints or disputes other those initiated by Monitoring Counsel or Walgreens. H. Resort to the Court for Immediate Action The provisions of this Section do not prevent Monitoring Counsel or Walgreens from promptly bringing an issue directly to the Court when exigent facts or circumstances require immediate Court action to prevent a serious violation of the terms of this Decree, which otherwise would be without a meaningful remedy. The moving papers shall explain the facts and circumstances that allegedly necessitate immediate action by the Court. Absent a showing of exigent facts or circumstances, the Court shall refer the matter to the Special Master to resolve in accordance with the procedures set forth above. If any such matter is brought before the Court
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requesting immediate action, the other party shall be provided with appropriate actual notice, and an opportunity to be heard on the motion under the Local Rules of the Court and the Federal Rules of Civil Procedure. The Court in its discretion may set such procedures for emergency consideration as are appropriate to the particular facts or circumstances, but no such matter may be heard or considered on an ex parte basis.
I. Judicial Enforcement by Contempt Monitoring Counsel may petition the Court to hold Walgreens or its officers, agents, or managers in contempt only after (a) having exhausted the Dispute Resolution Procedures set forth in Section VII.B.-D., above, without having obtained reasonably effective remedial action, and (b) having, after a reasonable investigation, concluded in good faith that the standards for a contempt citation have been met. VIII. INJUNCTIVE RELIEF PROVISIONS During the Term of the Decree, Walgreens shall implement the following policies, practices, and procedures in a non-discriminatory manner in order to achieve the purposes and specific provisions of this Decree. A. General Injunctive Relief Provisions
1. Walgreens shall not enact, maintain or implement any policy or practice that discriminates against any employee on the basis of race.
2. Walgreens shall not take any action against any future, current or former employee because he or she opposed discrimination on the basis of race, filed a charge of discrimination on the basis of race, testified, furnished information or participated in any manner in any investigation, proceeding or hearing in connection with any charge or complaint of discrimination on the basis of race or participated in any manner in connection with the monitoring or implementation of this Decree, or sought and/or received any monetary and/or non-monetary relief pursuant to this Decree.
3. Walgreens shall maintain non-discrimination and non-retaliation policies and an internal complaint procedure designed to assure equal employment opportunity.
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4. Walgreens’ employees complaining of alleged violations of the provisions set forth in this Decree may use Walgreens’ internal complaint procedure or, as permitted by law, may file charges with the EEOC or with any state or local fair employment practices agency (“FEP agency”) having jurisdiction of such charges. The Parties mutually intend that the Dispute Resolution and Enforcement Provisions of this Decree shall not be used as an alternative method for Class Members to litigate or otherwise pursue claims for individual relief with respect to alleged Race Discrimination or any other individual relief. Individual complaints of such alleged violations, as distinguished from systemic pattern or practice allegations, shall not be considered to raise an issue of compliance or non-compliance with the Decree, except insofar as the conduct of a Walgreens’ officer, agent, or manager is of the level and nature necessary for the issuance of a contempt citation under Section VII.I above.
B. Retention of Consultants and Consideration of Consultants’ Recommendations 1. Identification of the Consultants a. Within thirty (30) days following Preliminary Approval, the
Parties shall agree on (i) the identity of the consultants Walgreens will retain to review certain of Walgreens’ employment processes, which are specified below in Sections VIII.C.2., IX.B.1-3, IX.E.3, and IX.F.1-2 and to make written recommendations regarding modification of such processes, and (ii) a schedule for such consultants to complete their respective review of Walgreens’ employment processes and make their written recommendations, if any, regarding modifications of the processes.
2. Consideration of Consultants’ Recommendations a. Within thirty (30) days of its receipt of each consultant’s
recommendations, Walgreens shall provide a copy of the consultant’s written recommendations to Monitoring Counsel, together with a written statement identifying those recommendations it intends to implement.
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b. If Walgreens decides not to implement one or more of the consultant’s recommendations, Walgreens shall identify that recommendation (or those recommendations) in its written statement and provide an explanation of the reason(s) why implementation of the recommendation(s) would not be in Walgreens’ best interests to implement. In its written statement, Walgreens may propose an alternative to the rejected recommendation(s) that Walgreens believes (a) would serve the same objective(s) as the rejected recommendation(s), and (b) is consistent with the purposes of this Decree.
c. If Monitoring Counsel disagrees with Walgreens’ position regarding the consultant’s recommendations and Walgreens’ proposed alternative, if any, both parties shall confer and make a good faith effort to resolve their differences.
i. If agreement with respect to the implementation of the consultant’s recommendations cannot be reached, Monitoring Counsel may initiate the Dispute Resolution Procedures. During these procedures, Walgreens shall establish why it believes the recommendation is not in Walgreens’ best interests, and Monitoring Counsel shall establish that the implementation of the proposal would be consistent with (i) professional standards applicable to the employment process at issue and (ii) the purposes of this Decree.
ii. If the matter cannot be resolved informally between Walgreens and Monitoring Counsel, the issue may then be referred to the Special Master pursuant to the Dispute Resolution Procedures. If the Special Master agrees with Monitoring Counsel’s position, then Walgreens shall have the opportunity to propose an alternative to the disputed proposal that satisfies its legitimate, non-discriminatory interests, professional standards applicable to the employment process at issue, and the purposes of this Decree.
d. If Monitoring Counsel object to any of the consultant’s recommendations that Walgreens states it intends to implement, it shall be Monitoring Counsel’s burden to demonstrate, through the Dispute Resolution Procedures, that the recommendation is not consistent with (i) professional standards applicable to the employment process at issue and (ii) the purposes of this Decree.
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C. Promotion Standards and Procedures 1. Walgreens is enjoined from violating Title VII and Section 1981 by
discriminating on the basis of race in the selection of persons in Covered Positions for promotion.
2. Walgreens shall, pursuant to Section VIII.B.1. above, retain a consultant and set a schedule for the consultant to develop written job analyses and job-related criteria for the following positions: EXA, MGR, DM, RPS, RxM, and RxS, and using its consultant’s written job analyses, develop and implement, if appropriate, selection policies and procedures for the EXA, MGR, DM, RPS, RxM, and RxS positions. At a minimum, those selection policies and procedures should include:
a. Standardized and job related application procedures and, where consideration is not based on an application process, standardized methods of selecting persons in Covered Positions to be considered for promotion;
b. Standardized and job related procedures for selection to any management training programs, including but not limited to the Applied Drug Store Management (“ADSM”) and Emerging Leader (“EL”) programs;
c. Standardized and job related procedures for the consideration of employees in Covered Positions participation in any management training programs, including but not limited to the ADSM and EL programs, in making promotion decisions;
d. A thorough assessment of tests used (if any) in the selection process to assure that the tests do not have an adverse impact on African Americans in Covered Positions, though use of a test that has an adverse impact is not prohibited if the test is validated by standard processes required by the Uniform Guidelines on Employee Selection Procedures (UGESP), 29 C.F.R. § 1607, and there is no alternative employment test or selection practice which would satisfy Walgreens’ legitimate interests without having a disparate impact on a protected class;
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e. Effective communication to all employees in Covered Positions regarding career opportunities, training programs, and promotion policies and procedures, including but not limited to the use of People Plus Learning training programs on the Company Intranet, invitations sent to all MGTs to participate in the ADSM program, and written notification regarding selection policies and procedures;
f. Effective processes for allowing employees in Covered Positions to express an interest in promotion and for registering and tracking the status of those employees; and
g. Procedures for ensuring compliance with the written selection policies and procedures, including but not limited to training for all persons involved in the selection process and disciplinary action for managers responsible for selecting employees in Covered Positions for promotion who do not follow the written procedures (including disregarding exclusive selection procedures such as the Job Opportunity Program (“JOP”).
D. Promotional Benchmarks 1. General Principles a. In order to provide equal opportunity and appropriate relief to
members of the Class, Walgreens shall use its Best Efforts to meet the Promotional Benchmarks set forth in this Section. These Promotional Benchmarks do not establish maximum or minimum rates for the selection of African Americans; rather these Promotional Benchmarks establish selection rates that Walgreens shall use its Best Efforts to achieve.
b. In attempting to meet these Promotional Benchmarks, Walgreens shall not be required to employ or promote unqualified persons, or displace any current employee from his or her job position. These Promotional Benchmarks are not quotas, but are designed to afford guidance as to whether equal employment opportunity and an appropriate remedy are being achieved as required by this Decree.
c. Walgreens’ failure to achieve a Promotional Benchmark in a particular Region or District for a particular period will not, absent other evidence, be considered
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a violation of the Decree unless Walgreens has failed to use its Best Efforts to meet the Promotional Benchmark. As evidence of Best Efforts, Walgreens may demonstrate, for example, that: (a) the proportion of good faith offers made to African Americans was at least as high as the Promotional Benchmark percentage; (b) significant differences in the relative experience, skill or qualification of African Americans versus the Promotional Benchmark explain the failure to achieve the Promotional Benchmark, and that such experience, skill or other qualification is job-related for the job in question, as determined using a job analysis, for example, and is consistent with business necessity.
2. Establishment and Attainment of Benchmarks a. Promotional Benchmarks will be established in each District for
selection of Walgreens’ employees to the EXA, MGR, DM, RxM, and RxS positions (the “Benchmark Positions”). All Walgreens’ managers who are responsible for and who supervise the selection of persons to these positions shall be informed of the specific Promotional Benchmarks within their area of responsibility.
b. The initial Promotional Benchmark in each District for each Benchmark Position will be established by determining the number of qualified persons in the applicable eligibility pools in the respective District (or, in the case of DMs and RxSs, the geographical area specified in their documented relocation preferences paperwork) for each Benchmark Position thirty (30) days preceding the Approval Date (the “Benchmark Anniversary Date”). Notwithstanding the date specified in the preceding sentence, if that date falls within ninety (90) days before the next regularly scheduled Equal Opportunity Program monitoring cycle, Walgreens need not set initial Promotional Benchmarks pursuant to this subparagraph. In the event Walgreens elects not to set initial Promotional Benchmarks pursuant to this provision, Walgreens shall (1) give notice to Monitoring Counsel and the EEOC in writing prior to the date on which the initial Promotional Benchmarks would otherwise be established, and in that notice shall specify the deferred date on which they will be set; and (2) establish Promotional Benchmarks for each Benchmark Position by the method specified in this subparagraph based on
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the numbers of qualified persons in the applicable eligibility pools as of thirty (30) days before such Equal Opportunity Program monitoring cycle.
c. Separate eligibility pools will be established for promotions to each District’s Benchmark Position, consistent with Walgreens’ retail and pharmacy management career paths.
d. The initial eligibility pool for promotion to the EXA position will be those MGTs in the relevant District who, as of the Benchmark Anniversary Date, have completed the required MGT training and applied for the EXA position through the ADSM program. The initial eligibility pool for promotion to the MGR position will be those EXAs in the relevant District who, as of the Benchmark Anniversary Date, have completed the ADSM program and have received their PTCB certification. The initial eligibility pool for promotion to the RxM position will be those Pharmacists in the relevant District who, as of the Benchmark Anniversary Date, have completed the required Rx for Management training and applied for any available RxM position through the JOP. The initial eligibility pools for promotion to the DM and RxS positions will be those MGRs and RxMs, respectively, who, as of the Benchmark Anniversary Date, are enrolled in the Emerging Leader Program. Geographical preferences may be considered in the latter analysis. The eligibility pools determined as specified in this subsection shall be referred to hereinafter collectively as the “Eligible Feeder Pools.”
e. The Promotional Benchmark percentage for each Benchmark Position shall be determined by dividing (a) the total number of African Americans in the Eligible Feeder Pool for such position in the relevant District (or, in the case of DMs and RxSs, the geographical area specified in their documented relocation preferences paperwork) by (b) the total number of employees in the Eligible Feeder Pool for such position in the relevant District (or, in the case of DMs and RxSs, the geographical area specified in their documented relocation preferences paperwork) . Promotional Benchmarks will be stated as percentages, rounded up or down consistent with standard arithmetic practice. Example: If there are 50 EXAs in the Eligible Feeder Pool in the relevant District and 10 of those EXAs are African American, then
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the Promotional Benchmark for promotions to the Store Manager position in that District would be 20 percent.
f. Whether Walgreens has attained its Promotional Benchmarks will be assessed based on Regional Benchmarks calculated as set forth in this paragraph. The Regional Benchmark for each Benchmark Position shall be determined for each year of the Term of this Decree as a weighted average of the District Benchmarks in that Region for that year. The weight assigned to a particular District Benchmark shall be based on the relative number of promotions to the Benchmark Position occurring within that District relative to all such promotions occurring within the Region in that same year. For example, if the there are 10 promotions to EXA in a particular District in a given year, and there are 100 total promotions to EXA in the Region, then that District’s Benchmark for the EXA position will be weighted by .10 in the calculation of the Regional Benchmark for EXAs. Where the percentage of African Americans among those promoted to the Benchmark Position is not materially different from the Regional Benchmark, Walgreens shall be deemed to have attained the Regional Benchmark for that Benchmark Position in that year.
g. The initial Promotional Benchmarks will remain in place until the beginning of Walgreens’ next regularly scheduled Equal Opportunity Program monitoring cycle, at which time, Walgreens shall review its progress in meeting the initial Promotional Benchmarks and calculate and establish new Promotional Benchmarks for the subsequent twelve (12) month period. Such new Promotional Benchmarks will be calculated based on the Eligible Feeder Pools as defined in subsection d, as may be modified by any additional or revised promotion selection criteria that Walgreens adopts in consultation with the Consultant retained pursuant to Section VII.C.2 of this Decree.
h. Thereafter, Walgreens shall calculate Promotional Benchmarks in each District and Region annually following the review and recalculation of the initial Promotional Benchmarks. Walgreens also shall review at least every six (6) months its progress in attaining the Promotional Benchmarks as provided for in subsection g. above.
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i. Walgreens shall use its Best Efforts to fill vacancies to Benchmark Positions with African American persons in the Eligible Feeder Pools at least equal to the Promotional Benchmarks set forth in this Section.
3. If Walgreens acquires or purchases another company with operations in any particular District, and said acquisition or purchase creates “vacancies” within the District, Walgreens shall use its Best Efforts to achieve its Promotional Benchmarks within the relevant District as soon as possible, but in no event no later than two (2) years after such acquisition or purchase or within six (6) months after Walgreens’ personnel and operating systems are implemented in the affected stores of the acquired company, whichever is sooner.
E. Store Assignment Standards and Procedures 1. Walgreens shall not make store assignments of personnel in the Covered
Positions based on the race of the employee. 2. On an annual basis with the first analysis to be conducted as of the one
year anniversary of the Approval Date and every twelve (12) months thereafter, Walgreens, under the direction of the Decree Monitor, will analyze the store assignments of African Americans and whites in the EXA, MGR, RPS, and RxM positions (i.e., assignments after the Approval Date) by District, aggregated to the Region and company-wide, as one means to ensure its compliance with the prohibition set forth in Section E.1. above. Notwithstanding the date specified in the preceding sentence, if that date falls within ninety (90) days before Walgreens’ annual Employee Relations Department review of diversity/EO data for the Covered Positions, Walgreens may elect to defer the analysis of store assignments until the date of such review. In the event Walgreens elects to defer the effective date of the store assignment analysis pursuant to this provision, Walgreens shall give notice to Monitoring Counsel in writing prior to the date on which the analysis would otherwise be due to be conducted, and in that notice shall specify the deferred date on which the analysis will be conducted. Within ten (10) days after the analysis is completed, Walgreens shall provide it, along with the relevant underlying data, to Monitoring Counsel.
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3. If the analysis shows that African American EXAs, MGRs, RPSs and RxMs are disproportionately assigned to stores with a customer base: (1) greater than 40% African American; (2) 15-40% African American; or (3) with average annual income of less than $40,000, as compared to whites for such positions by District, aggregated to the Region and company-wide, Walgreens shall investigate to determine the cause of such disproportionate assignment(s) and take corrective action, if necessary, following the first year’s analysis. Within sixty (60) days after providing its initial analysis, Walgreens shall complete its investigation and provide it, along with the relevant underlying data, to Monitoring Counsel.
4. In the case of MGTs, Monitoring Counsel will review the year-end data produced by Walgreens as part of its annual Compliance Reports. If, within six (6) months thereafter, Monitoring Counsel determine, based on their review of the data, that African American MGTs are disproportionately assigned to stores with a customer base: (1) greater than 40% African American; (2) 15-40% African American; or (3) with average annual income of less than $40,000, as compared to white MGTs within a particular District, Monitoring Counsel shall provide the Decree Monitor with their analysis of those issues, including a list of the particular District(s) in which the disproportionate assignments are believed to have occurred. Within six (6) months thereafter, Walgreens shall have the opportunity to provide a response to Monitoring Counsel’s analysis. If necessary, for a six (6) month period thereafter, Walgreens shall monitor the MGT assignments in the relevant District(s) on a prospective basis and shall take other necessary corrective action. Walgreens shall provide a report of its monitoring and corrective actions, along with any relevant underlying data, to Monitoring Counsel within sixty (60) days after these reports are completed.
5. For purposes of either analysis referenced in Sections E.2. or E.3. above, or the review of the year-end data referenced in Section E.4. above, “disproportionate” assignments shall not alone be considered dispositive evidence of race discrimination.
6. For purposes of either analysis referenced in Sections E.2. or E.3. above, the “relevant data” shall include:
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a. positions held during last year (including current position) and dates of each position, if more than one was held;
b. store assignment(s) and store address (including dates of each assignment, if more than one was held);
c. date of hire; d. date on which an employee became an MGR, EXA, RPS, or RxM; e. employee identification number; f. employee home address; g. employee birth date; h. District assignment(s); i. base pay; j. all bonuses broken out by type of bonus; k. education; l. performance rating; m. race (white, African American, or other); n. store performance (including profitability, store volume, and associated rates of increase for each store); o. store characteristics (defined as Total Gross Profit Dollars; Primary Bonus of the MGR; Average Sale Per Customer; Total Store Sales); and p. store customer base information, as applied to the store assignment analysis set forth in Section E.2. above. 7. For purposes of the “year-end data” referenced in Section E.4. above, the “relevant data” shall include: a. positions held during last year (including current position) and dates of each position, if more than one was held; b. store assignment(s) and store address (including dates of each assignment, if more than one was held);
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c. date of hire; d. date on which employee became an MGT; e. employee identification number; f. employee home address; g. employee birth date; h. District assignment(s); i. base pay; j. education; k. performance rating; l. race (white, African American, or other); and m. store customer base information, as referenced in Section E.4. above. F. Compensation Analysis 1. Walgreens, under the direction of the Decree Monitor, will analyze, on at least an annual basis, compensation and bonuses paid to EXAs, MGRs, RPSs, and RxMs for statistically significant compensation disparities between African Americans and whites in these positions based upon the relevant data specified in Section E.6. This analysis shall not be required for “non-established” stores. The first analysis shall be conducted as of the one year anniversary of the Approval Date and every twelve (12) months thereafter. Notwithstanding the date specified in the preceding sentence, if that date falls within ninety (90) days before Walgreens’ annual Employee Relations Department review of diversity/EO data for the Covered Positions, Walgreens may elect to defer the Compensation Analysis until the date of such review. In the event Walgreens elects to defer the effective date of the compensation analysis pursuant to this provision, Walgreens shall give notice to Monitoring Counsel in writing prior to the date on which the analysis would otherwise be due to be conducted, and in that notice shall specify the deferred date on which the analysis will be conducted.
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2. Where the foregoing analysis shows statistically significant compensation disparities, if any, between African American and white EXAs, MGRs, RPSs and RxMs in any position, Walgreens, under the direction of the Decree Monitor, shall investigate to determine the cause(s) of the disparities.
3. Walgreens shall report to Monitoring Counsel in writing its findings within sixty (60) days of completing its annual analyses and, where the disparities, if any, cannot be explained by race-neutral factors or legitimate business reasons, Walgreens shall at the same time present its proposal to use specific Best Efforts described in the proposal to eliminate the disparities or state the reasons why, consistent with the purposes of the Decree, no such corrective steps are appropriate or necessary. In the event that Monitoring Counsel considers Walgreens’ response to be inadequate, Monitoring Counsel may initiate the Dispute Resolution Procedures provided for in Section VII. B.-D. IX. IMPLEMENTATION OF INJUNCTIVE RELIEF
A. Walgreens’ Internal Monitoring and Compliance Procedures 1. Walgreens’ Decree Monitor a. Selection of the Decree Monitor
Walgreens shall designate a Decree Monitor who shall be charged with overall responsibility for monitoring Walgreens’ compliance with the terms of the Decree. The Decree Monitor shall be Kenneth R. Weigand, Walgreens’ Sr. Vice President of Human Resources. The Decree Monitor shall report directly to Walgreens’ CEO with respect to Walgreens’ compliance with this Decree. The Decree Monitor may delegate such duties as he deems appropriate; however, the Decree Monitor shall at all times maintain overall responsibility for monitoring Walgreens’ compliance with the terms of the Decree.
b. Duties and Responsibilities of the Decree Monitor The Decree Monitor shall use Best Efforts to assure Walgreens’ implementation and compliance with the provisions of this Decree. Such efforts shall include, but not be limited to, the following:
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i. Monitoring the establishment, implementation and revision of Walgreens’ procedures for store assignments, training, promotion, and other employment practices as provided in this Decree;
ii. Monitoring whether Walgreens has achieved the Promotional Benchmarks and, if not, whether the failure to achieve any such Promotional Benchmark is justified pursuant to the terms of this Decree, including the Best Efforts requirement;
iii. Monitoring the store assignments and compensation of employees in Covered Positions, and overseeing the development and implementation of any necessary corrective actions as provided for in this Decree;
iv. Overseeing the development and implementation of the training programs provided for under this Decree;
v. Coordination with the Consultants to be retained pursuant to Sections VIII.C.2., , IX.B.1-3, IX.E.3, and IX.F.1-2 of this Decree; providing the Consultants’ recommendations or reports to Monitoring Counsel and receiving Monitoring Counsel’s comments as provided for in Section VIII.B.2.. of this Decree; and overseeing and monitoring the implementation of all recommendations of the Consultants as are adopted by Walgreens or directed by the Special Master pursuant to Section VII.B.-D. of this Decree;
vi. Overseeing the investigation, collection, tracking, and appropriate resolution of complaints Race Discrimination submitted under Walgreens’ Internal Complaint Procedure as that Procedure exists as of the Approval Date or as subsequently modified during the Term of this Decree, including the determination of whether the complaints indicate any pattern of systemic discrimination;
vii. Reporting to Walgreens’ CEO, Store Operations Senior Executive Vice President, Store Operations Senior Vice Presidents, and the Senior Vice President of Human Resources (if the Decree Monitor does not occupy that position), on at least a semi-annual basis during the first two (2) years of the Decree and then annually during the
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remainder of the Decree on the establishment, implementation, maintenance and compliance with the practices and obligations required by this Decree and the results achieved by Walgreens under this Decree; and
viii. Submitting the Compliance Reports and other documents and information to Monitoring Counsel as specified in this Decree; and meeting with, or coordinating meetings of other senior executives as Walgreens may deem appropriate with, Monitoring Counsel as provided for in Section X.C. and D. of this Decree.
c. Decree Monitor’s Authority to Recommend Individual Relief The Decree Monitor also shall have the authority to recommend to the responsible Store Operations managers or executives an award of appropriate relief to any Class Member or African American person in Covered Positions who the Decree Monitor concludes, based on a complaint made through the Internal Complaint Procedure or any other source(s) of information, has been the victim of: (i) a violation of the Decree or (ii) Race Discrimination, with respect to his or her store assignment, promotion, or compensation. Such relief may include being selected, promoted, reassigned, or provided with other appropriate relief, including monetary relief. African American employees in Covered Positions who make a complaint through the Internal Complaint Procedure and are found to have been discriminatorily assigned to any store on the basis of his or her race shall be presumed to be entitled to monetary damages. Should Walgreens fail to adopt and carry out the Decree Monitor’s remedial recommendation, it shall include in its reporting to Monitoring Counsel a description of the Decree Monitor’s recommendation and its basis, and Walgreens’ explanation of the specific reasons for its decision not to follow that recommendation.
d. Replacement of the Decree Monitor i. In the event that the Decree Monitor ceases to function in
that role for any reason, including leaving Walgreens’ employment or reassignment to another position, Walgreens shall designate a replacement Decree Monitor as soon as practicable, but no
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later than thirty (30) days after the Decree Monitor provides notice of her/his intent to cease to function in that role, or where the circumstances do not permit such advance notice, no later than thirty (30) days after the Decree Monitor ceases to function in that role.
ii. Walgreens shall designate an individual who is qualified to perform the duties and responsibilities set forth in subsection 1.b. above, and who will effectively carry out those duties and responsibilities. Any individual designated as a successor Decree Monitor by Walgreens shall be employed at the Director or higher level. Regardless of the level of the successor Decree Monitor, he or she shall report directly to Walgreens’ CEO on all matters pertinent to his or her duties and responsibilities under this Decree.
iii. Within ten (10) days of Walgreens’ selection of a successor Decree Monitor, Walgreens shall provide Monitoring Counsel with a description of the qualifications and relevant experience, including a resume, of the successor Decree Monitor and an opportunity to interview her or him at a reasonable time and place within thirty (30) days thereafter to discuss Walgreens’ obligations under the Decree and the Decree Monitor’s role in assuring Walgreens’ compliance with these obligations.
e. Resolution of a Dispute Regarding the Retention or Failure to Replace the Decree Monitor i. Monitoring Counsel may request the removal of an
individual as the Decree Monitor, pursuant to the procedures set forth below, in the event that Monitoring Counsel believe that the individual has failed to use Best Efforts to implement and/or comply with one or more provisions of the Decree.
ii. If Monitoring Counsel request the removal of an individual as a Decree Monitor, it shall provide the grounds for their position in detail in writing to Walgreens. Within fourteen (14) days of the date of Monitoring Counsel’s written statement, Walgreens may dispute Monitoring Counsel’s position by setting forth in writing its reasons and any facts or circumstances that it believes Monitoring Counsel should consider. The Parties shall
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resolve any continuing dispute regarding the selection or retention of the Decree Monitor pursuant to the Dispute Resolution Procedures.
iii. If no individual has been selected for the position of successor Decree Monitor within sixty (60) days after an individual ceases to function as a Decree Monitor, then the Special Master shall nominate a person for the Decree Monitor position subject to approval by the Court. Walgreens and Monitoring Counsel may suggest persons for consideration by the Special Master. Walgreens and Monitoring Counsel shall have the right to interview any nominated person before the person’s nomination is reviewed by the Court and to present evidence and argument to the Court regarding the nominee’s or nominees’ for the Decree Monitor position.
f. Announcement of the Decree Monitor Within fourteen (14) days of Walgreens’ appointment of the Decree Monitor or any successor Decree Monitor as provided for in subsections 1.d. and e. above, Walgreens shall provide notice to all of its Store Operations’ employees of the Decree Monitor’s or successor Decree Monitor’s appointment, including his or her name, title, and background, and a description of the Decree Monitor’s job duties and responsibilities, as provided for in subsection 1.b. above.
g. Provision of Adequate Resources to the Decree Monitor Walgreens shall provide the initially designated Decree Monitor and any successor with such support staff and funds as may be necessary to fully and effectively discharge Walgreens’ and the Decree Monitor’s obligations under the Decree. B. Implementation of Policies and Procedures for Reporting, Investigating and
Addressing Individual Complaints of Race Discrimination 1. Walgreens shall, pursuant to Section VIII.B.1. above, retain a consultant and set a schedule for the consultant to review and modify its Internal Complaint Procedures to ensure that they provide a reasonable opportunity for employees to make, and have fairly and
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effectively investigated and addressed through corrective action, where warranted, complaints of Race Discrimination.
2. Walgreens shall, in consultation with one of its consultant to be designated and retained as provided for in Section VIII.B.1. above, create and implement policies and procedures for employees to report, investigate and have addressed substantiated complaints of Race Discrimination. At a minimum, the consultant should assess whether Walgreens’ policies and procedures meet the criteria set forth below; if they do not, and if the consultant determines that meeting such criteria is necessary, he/she should make recommendations to Walgreens to adequately address the criteria, such that the policies and procedures:
a. Are fully described (including reporting and investigation procedures and a statement of prohibition against retaliation against anyone who makes a complaint under the policies) and made readily accessible to all employees in an easilyaccessible location on the Company’s intranet;
b. Encourage employees to report violations of Walgreens’ policies against Race Discrimination;
c. Provide convenient, confidential and reliable mechanisms for reporting violations of the policies against Race Discrimination, including violations of this Decree, with respect to any person’s employment with the Company;
d. Designate or create an appropriate company department or departments responsible for receiving and investigating complaints of Race Discrimination and for providing remedial relief and disciplinary action for all violations of the policies against Race Discrimination;
e. Designate and provide detailed contact information for at least two employees in the department receiving complaints of Race Discrimination as persons who may be contacted to report violations of the policies against Race Discrimination;
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f. Provide and publicize, in a location easily accessible to employees, a 24-hour toll-free hotline, staffed during regular business hours and recorded otherwise, for the reporting of violations of the policies against Race Discrimination;
g. Require all Walgreens’ Store Operations’ management and Employee Relations or Loss Prevention personnel who receive reports of Race Discrimination, including anonymous reports, to take such a report seriously, and to turn in such report to the department(s) responsible for receiving such complaints of Race Discrimination;
h. Designate multiple avenues for reporting complaints of Race Discrimination;
i. Allow reports of Race Discrimination to be made both orally and in writing;
j. Provide notice to employees that complaints of Race Discrimination may be made by using the Company’s Internal Complaint Procedure and/or by filing charges of discrimination with the EEOC or state or local Fair Employment Practices (“FEP”) agencies. The notice shall also state that filing an internal complaint does not relieve the complainant of meeting any applicable deadline for filing a charge or complaint with EEOC or state or local FEP agencies.
k. Track reports of Covered Complaints to determine whether any systemic pattern of discrimination is occurring;
l. Specify, to the extent feasible, a timetable for the commencement of an investigation after a complaint is made or received, a timetable for the completion of an investigation, a timetable for the submission of written findings of the results of an investigation, and a timetable for remedial action to be taken upon conclusion of an investigation;
m. Require appropriate and effective investigation techniques and procedures, including but not limited to, face-to-face interviews of significant fact witnesses;
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n. Prohibit any person who is the subject of a complaint of Race Discrimination from participating in the decision-making process with respect to the resolution of the complaint;
o. Require communication of the results of the investigation to the complaining party;
p. Require confidential investigations and conduct interviews with employees who report Race Discrimination in such a way as to not embarrass, intimidate or harass the employee;
q. Not impose more burdensome requirements on employees who report violations of the policies against Race Discrimination than are imposed upon employees who report comparable violations of other Company policies;
r. Provide for appropriate remedial action to resolve complaints of Race Discrimination and to avoid further discrimination, including follow-up review to ensure adequacy of remedial actions and to prevent retaliation;
s. Provide for disciplinary action for all violations of the policies against Race Discrimination, including but not limited to counseling, remedial measures, formal discipline, demotion, suspension without pay, or termination; and
t. Provide a fair and expeditious system for employees to appeal Walgreens’ findings and actions after investigating a report of Race Discrimination.
3. Walgreens shall, in consultation with one of its consultant to be designated and retained as provided for and pursuant to the schedule to be set pursuant to Section VIII.B.1. above, ensure that the personnel within department(s) designated or created to receive and investigate complaints of Race Discrimination and provide remedial relief and disciplinary action for all violations of the policies against Race Discrimination are appropriately trained and equipped to carry out their duties. At a minimum, that department, or those departments, shall:
a. Enjoy full support from Walgreens’ senior management;
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b. Be adequately staffed and funded to thoroughly carry out its duties in a timely manner;
c. Be staffed by persons who are adequately educated and trained regarding professional human resources standards and practices for receiving and investigating complaints of discrimination and correcting, providing relief for, and disciplining violations of policies against discrimination.
d. Be publicized on employee bulletin boards, on the Company’s intranet website, at all training sessions described in Section IX.C. below, and in other places deemed appropriate by the department.
4. Walgreens shall prepare and provide to the Decree Monitor quarterly for the first year of the Decree, and semi-annually thereafter, and to Monitoring Counsel semiannually reports of all Covered Complaints, including the name, race, job position, District and store location of the complainant; a brief summary of the nature of the complaint; the names, race, job positions, and retail store and/or District or other locations of the subject(s) of the complaint; a brief summary of the status and nature of the investigation conducted; the final disposition of the investigation, and what, if any, corrective action was taken and/or remedial relief granted. Copies of these reports shall also be provided to the appropriate Store Operations Vice Presidents, who shall provide them, if appropriate, to the District Manager(s) for review and any appropriate action.
5. EEO Violations a. Any supervisor or manager who is found to have personally
violated Walgreens’ policies concerning Race Discrimination, including but not limited to, policies with respect to store assignments, promotions, or compensation, will continue, like all Walgreens’ employees, to be subject to appropriate discipline, up to and including termination of employment.
b. Supervisors or managers who fail to respond appropriately to any substantiated complaints of Race Discrimination within their area of responsibility, including but
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not limited to, store assignments, promotions, or compensation, or who fail to take appropriate actions to prevent or correct practices or instances of substantiated Race Discrimination, including but not limited to, store assignments, promotions, or compensation, shall be counseled with respect to the appropriate execution of his or her responsibility to insure compliance with the Walgreens’ Policy Against Harassment and Discrimination and diversity policies (together “EEO-related responsibilities”); and the cause and substance of such counseling and by whom it was provided shall be documented, including in the supervisor’s or manager’s personnel file. In addition, as part of the training it is required to provide under Section IX.C. of this Decree, Walgreens shall train and direct Operations Vice Presidents, District Managers and Store Managers to consider such documented counseling for any purposes for which Walgreens uses such documentation, including but not limited to the determination of eligibility for compensation adjustments and promotions.
C. Communication of Consent Decree Requirements to Officers and Employees No later than fifteen (15) days after the Approval Date, Walgreens shall provide to each of its officers, Operations Senior Vice Presidents, Vice Presidents, District Managers, and Pharmacy Supervisors a copy of the Summary of Consent Decree, which is attached hereto as Exhibit B, explaining Walgreens’ basic duties and obligations under the Decree. D. Notice Within fifteen (15) days of the Approval Date, Walgreens shall post in conspicuous places where employee notices are posted in each of its stores, the Notice attached hereto as Exhibit C. The Notice shall include a provision advising employees that a complete copy of the Decree and all exhibits thereto are available from Walgreens for inspection upon request. The Notice shall remain posted for the duration of this Decree. In connection with each Compliance Report, Walgreens shall certify that the Notice has been posted and remained posted as required herein during the preceding reporting period.
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E. Training 1. Provision of Non-Discrimination Training a. Walgreens, under the direction of the Decree Monitor, shall
provide non-discrimination training to all incumbent employees in Covered Positions, District Managers, Pharmacy Supervisors, Operations Vice Presidents, Operations Senior Vice Presidents and Senior Executive Vice President of Operations. Walgreens shall provide the training required by this Section to all individuals within one hundred eighty (180) days of the Approval Date. Walgreens shall use its Best Efforts to provide the training to all newly hired and/or newly appointed employees in Covered Positions, District Managers, Pharmacy Supervisors, Operations Vice Presidents and Operations Senior Vice Presidents within ninety (90) days of their hire or appointment date. Such training shall be mandatory.
b. Walgreens may provide the initial non-discrimination training in a live or on-line format.
c. After Walgreens provides the initial training required in subsection 1.a. above, it shall, during the Term of this Decree, provide refresher training as necessary, but no less frequently than one time during a two year period. Such refresher training may be provided in a live or on-line format.
d. The Decree Monitor shall be responsible for ensuring that procedures are in place to verify that all required participants receive this non-discrimination training. Walgreens shall maintain records of attendance at trainings provided for in this Section, including the names and job titles of attendees and the date(s) and subject(s) of training provided to them, during the Term of this Decree.
2. Content of the Non-Discrimination Training The specific training provided under this Section shall be tailored to the duties and responsibilities of the particular position(s) held by the employees being trained and shall include (depending on the position) the following subjects, and any other subjects included in such
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training shall specifically incorporate EEO/diversity goals and fair employment practices considerations into their presentation in the training.
a. Fair, job-related, and non-discriminatory selection practices, including screening of applications, interviewing techniques and selection of applicants or candidates, proper criteria, procedures, the value of workforce (including managerial workforce) diversity, and the avoidance of bias in the assignments to stores, selection, promotion, compensation and performance evaluations of employees.
b. Fair, job-related, and non-discriminatory performance evaluation practices, including identification and application of proper criteria and procedures to be used, and the avoidance of bias.
c. Fair, job-related, and non-discriminatory practices in transfers and training leading to advancement opportunities, including screening of applications, interviewing and selection of employees, proper criteria and procedures, and interviewing techniques, the value of workforce (including managerial workforce) diversity, and the avoidance of bias.
d. The prohibition and avoidance of retaliation and harassment on the basis of race, including the protection required to be afforded to individuals who bring a discrimination complaint or participate in its investigation or resolution; the nature and unacceptability of actions constituting prohibited harassment; the consequences of engaging in such retaliation or harassment, including mandatory discipline up to and including termination; and the remedies required to be made available to persons found to be victims of such retaliation or harassment.
3. Walgreens shall, pursuant to Section VIII.B.1. above, retain a consultant and set a schedule for the consultant to review and make recommendations on its nondiscrimination training program.
4. Review of Training Effectiveness by Walgreens On an ongoing basis, Walgreens shall assess and evaluate the effectiveness of its training programs and the designers, and presenters and format of the training, in light of the purposes
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and other substantive provisions of this Decree. Walgreens shall make such adjustments or modifications of, or additions to, its selections of trainers, format of the training and the training programs themselves, as are necessary and appropriate to effectuate those purposes and other substantive provisions. Where Walgreens makes material changes or additions to its training program or the content of the training, it shall provide notice to Monitoring Counsel no less than thirty (30) days before using the proposed adjustments or modifications in training. Monitoring Counsel shall provide any comments to Walgreens no later than fifteen (15) days after receiving the proposed adjustments or modifications. If Monitoring Counsel do not provide a response during this time frame, Walgreens shall be entitled to presume that Monitoring Counsel have no comments on the adjustments or modifications.
F. Management Performance Evaluation and Accountability 1. District Manager and Pharmacy Supervisor a. Walgreens shall, pursuant to Section VIII.B.1. above, retain a
consultant and set a schedule for the consultant to review Walgreens’ current performance evaluation processes pertaining to District Managers (“DMs”) and Pharmacy Supervisors (“RxSs”), and make recommendations for inclusion in the evaluation process, performance measures for the DMs and RxSs regarding:
i. The DMs’ and RxSs’ compliance with the Company’s equal employment opportunity program (the “EO/ Diversity Category”);
ii. The DMs’ and RxSs’ compliance with the Company’s policies related to maintaining a diverse work environment free from unlawful discrimination (“Fairness Category”);
iii. The DMs’ and RxSs’ accomplishments in providing African American employees equal opportunity in connection with the DMs’ and RxSs’ responsibility to carry out and comply with all Company selection systems such as the JOP and People Plus Hiring (“Compliance Category”); and
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iv. The DMs’ and RxSs’ accomplishments in providing African American employees equal opportunity in connection with the DMs’ and RxSs’ responsibility to develop employees in Covered Positions in their respective Districts (“Developing People Category”).
b. The evaluation reflected in the EO/Diversity Category, at a minimum, should document that the following factors were considered: (1) the DMs’ and RxSs’ efforts to support the Company’s equal opportunity and diversity initiatives in their respective Districts; (2) the DMs’ and RxSs’ good faith efforts in the areas of recruitment, development and community outreach; and (3) the DMs’ and RxSs’ demonstration of an ability to implement the strategies outlined in the Equal Opportunity/Diversity Scorecard and other action items to improve equal opportunity in their respective Districts.
c. The evaluation reflected in the Fairness Category, at a minimum, should document that the following factors were considered: (1) the DMs’ and RxSs’ efforts to address employee issues and concerns in a manner that is fair to the employee and the Company; and (2) the DMs’ and RxSs’ efforts to ensure that fair and ethical employment practices are consistently applied.
d. The evaluation reflected in the Compliance Category, at a minimum, should document whether the DMs and RxSs use the JOP and other Company employee selection systems in a consistent manner so as to ensure equal access to employment opportunities.
e. The evaluation reflected in the Developing People Category, at a minimum, should document that the following factors were considered, as applicable: (1) the DMs’ and RxSs’ efforts to build management talent, including qualified African Americans, throughout their respective Districts via the effective use of developmental assignments for managers, and, in the case of the DMs, thoughtful promotion and deployment of EXAs and MGTs; (2) the DMs’ and RxSs’ efforts to encourage and support equal access for all employees, including African Americans, to mentoring, training, and career development opportunities; (3)
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the DMs’ efforts to prepare MGRs, including African Americans, to assume future higher-level responsibilities by, for example, assigning district-wide oversight tasks to each MGR.
f. Walgreens shall consider the EO/Diversity Category, Fairness Category, Compliance Category, and Developing People Category assessments, including assessments of compliance with or contribution to achieving the Promotional Benchmarks, goals and procedures set forth in this Consent Decree, in making subsequent promotion and compensation decisions for DMs and RxSs.
2. Review of Performance Evaluation Processes Pertaining to Covered Positions a. Walgreens shall, pursuant to Section VIII.B.2. above, retain a
consultant and set a schedule for the consultant to review and make recommendations regarding Walgreens’ current performance evaluation processes applicable to MGTs, EXAs, MGRs, RPSs and RxMs. X. RECORDKEEPING, REPORTING, AND COMPLIANCE MEETINGS
A. Document Preservation The document retention obligations of this Consent Decree shall not reduce or limit in any way any record or information retention obligations that Walgreens may have pursuant to any federal, state or local law, regulation or requirement to which it is subject, or excuse Walgreens from failure to comply with such obligations. The retention obligations of this Decree are in addition to any such other obligations. Walgreens shall retain the following employment related records for the duration of the Term of this Decree or as required by state or federal law, whichever is longer:
1. A computer-readable database or databases containing personnel and store information for the time period covered by the Decree. The personnel and store information contained in the database or databases shall be equivalent to the computerized personnel and store information that was provided to Plaintiffs during discovery and in preparation for the Parties’ settlement negotiations, but shall also contain for MGRs, EXAs, RPSs (excluding those
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who are unionized), and RxMs, information on their base pay and bonuses, broken down by type of bonus.
2. A computer readable database or databases of all Eligible Feeder Pools for the Benchmark Positions, including the names, race, and Social Security (or other unique employee identification) numbers of all employees in the Eligible Feeder Pools for each Benchmark Position and the date on which each employee entered the Eligible Feeder Pool;
3. Documentation of all offers of promotion to Benchmark Positions declined by African Americans in Covered Positions.
4. Performance evaluation forms for all DMs and RxSs, documenting those managers’ evaluations and accountability on the “EO/Diversity Category”, “Fairness Category”, “Compliance Category” and the “Developing People Category.”
5. All Covered Complaints filed pursuant to Section IX.B., and the written findings of the investigations.
6. All versions of the announcements required by Sections IX.C. and D., and a record of the date(s) on which they were distributed or posted.
7. All policies, procedures, and programs related to, or designed to implement, the provisions of this Decree.
8. Copies or descriptions of training programs required by this Decree and materials showing the timing, attendance, and content of such trainings.
9. All of the records and written information (including electronically stored information) on which each Compliance Report to Monitoring Counsel pursuant to Section X.C. of this Decree or the findings and analyses underlying such Compliance Reports are based.
10. Walgreens shall compile and retain the documentation for the specific statistical information relating to its promotion practices and their results for all personnel in Covered Positions, for each period covered by the Compliance Reports required by Section X.C. of this Decree.
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B. Access of Special Master and Monitoring Counsel to Retained Documents 1. The records and information required to be retained under subsections
A.1-10 above, shall be made available to the Special Master and Monitoring Counsel upon request and on reasonable notice and terms, if required to perform their respective obligations under the Decree. Any disputes regarding whether a document or other information so requested by the Special Master or Monitoring Counsel is required to perform their respective obligations under the Decree shall be resolved pursuant to the Dispute Resolution Procedures.
2. If Walgreens objects to the production of a requested document or other information on the ground that it is protected by the attorney-client privilege or attorney work product doctrine (“privileged documents”):
a. Walgreens shall provide to the requesting party a privilege log describing the following:
i. The date of the document. ii. The type of document, i.e., letter, memorandum, report or handwritten note; iii. The author of the document; iv. The recipient of the document; v. Individuals who received copies of the document; and vi. The type of privilege that is being claimed. b. Disputes regarding whether a document is privileged and, if so, whether the document nevertheless should be produced to Monitoring Counsel or the Special Master shall be resolved pursuant to the Dispute Resolution Procedures. c. The Parties agree that certain documents ordinarily considered as privileged under the attorney-client privilege or work product doctrine may be necessary for Monitoring Counsel and the Special Master to review in order to fulfill their obligations under the Decree. For example, reports of investigations of internal employee complaints that are conducted by attorneys in Walgreens’ Employee Relations Department ordinarily may be
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protected under the attorney-client privilege or work product doctrine. Nonetheless, such documents may be critical to Monitoring Counsel’s and the Special Master’s fulfillment of their duties and obligations under the Decree. In the event that such documents are requested and are produced by Walgreens, either voluntarily or by order of the Special Master, the Parties agree that (i) such production does not constitute a waiver of such privileges for any other purpose or with respect to any third parties; (ii) Monitoring Counsel and the Special Master will not disclose those documents to any other parties without Walgreens’ written consent and if they wish to file such documents with the Court pursuant to the Dispute Resolution Procedures of this Decree will do so subject to an appropriate protective order and under seal; and (iii) Walgreens’ production of such documents may not be used by any third party seeking discovery of such documents in any other forum.
d. The Parties agree that Walgreens may claim as privileged and need not produce documents that are prepared by Walgreens’ counsel for the purpose of monitoring Walgreens’ compliance with the terms of the Decree.
3. Except for summaries of the compliance reports, as set forth in Section X.C. 2 below, all documents required to be maintained by the express terms of the Decree, and all documents that are provided to the Special Master, Monitoring Counsel, Class Counsel or the EEOC under the terms of the Decree, are, and shall be treated as, confidential business records. Neither the Special Master, Monitoring Counsel, Class Counsel nor the EEOC shall divulge any such documents to any third party without Walgreens written consent to such disclosure, unless so ordered by the Court after notice to Walgreens and an opportunity for Walgreens to object to such disclosure and be heard. This provision shall not prevent a party from filing otherwise confidential documents with the Court, provided that, either (a) such documents are filed under seal, or (b) Monitoring Counsel give ten (10) days advance notice to Walgreens, to permit it the opportunity to seek a protective order sealing such documents.
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C. Compliance Reports 1. Contents of Compliance Reports
Walgreens shall produce to Monitoring Counsel the Compliance Reports required by this Section within sixty (60) days after the six-month anniversary of the Approval Date and at six (6) month intervals thereafter for the first two (2) years of the Term of the Decree, and then annually thereafter, summarizing and documenting its compliance activities and results for the period listed. Walgreens’ Compliance Reports shall provide information showing:
a. The number of candidates in Eligible Feeder Pools for promotion, by race, for each of the Benchmark Positions in each District and Region.
b. The number of persons selected, by race, for promotions to each of the Benchmark Positions in each District and Region.
c. The number of persons, by race, who were offered, but declined, promotions to each of the Benchmark Positions in each District and Region.
d. The number of white, African American and other persons employed in each of the Covered Positions as of the end of the reporting period.
e. The store assignment analyses required by Section VIII.E.2. above, and all data utilized in performing the analyses in machine readable form (to be provided annually).
f. The compensation analyses required by Section VIII.F. above, and all data utilized in performing the analyses in machine readable form (to be provided annually).
g. Other data required to perform Monitoring Counsel’s obligations under this Decree, upon request by Monitoring Counsel and on reasonable notice and terms. Any disputes regarding whether data so requested by Monitoring Counsel is required to perform their obligations under the Decree shall be resolved pursuant to the Dispute Resolution Procedures.
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h. Any changes or additions to policies, procedures, standards, minimum qualifications, or other matters adopted or maintained pursuant to the provisions of this Decree. Information submitted on any such changes or additions shall include the reason(s) for such modifications and the methods used in determining their content, as well as a description of the modification itself.
i. A summary of all training activities required by or undertaken pursuant to this Decree, including the dates, subjects, duration, and attendance at such training activity.
j. A summary of the information regarding Covered Complaints of discrimination required to be maintained and provided under Sections IX.B.4 and X.A.5.
2. Summary of Compliance Reports a. The Decree Monitor shall prepare and provide to Monitoring
Counsel with each Compliance Report, a summary which shall include, at a minimum: i. Walgreens’ results in achieving the Promotional
Benchmarks during the reporting period; ii. Any changes or addition to policies, procedures, standards,
minimum qualifications or other matters adopted or maintained pursuant to the provisions of this Decree;
iii. All training activities required by or undertaken pursuant to this Decree;
iv. Information concerning Covered Complaints; and
v. Any other significant information necessary to demonstrate or evaluate Walgreens’ overall compliance with the provisions of the Consent Decree.
b. Monitoring Counsel may request Walgreens to include additional information in the summary, if they believe that the Decree Monitor’s summary report does not fairly reflect the Compliance Report.
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c. If Walgreens objects to including the additional material requested by Monitoring Counsel, the Parties shall utilize the Dispute Resolution Procedures of this Decree.
3. The summaries of the Compliance Reports referred to in Paragraph 2, above, shall be treated as confidential business records by all Monitoring Counsel except for EEOC. In making any public statement regarding the summaries of the Compliance Reports, EEOC shall only disclose the information contained in the summary report or a copy thereof. Additionally, EEOC agrees to provide Walgreens with a 24-hour advance copy of any public statement it intends to make regarding the summary reports.
D. Compliance Meetings 1. Within forty-five (45) days of the submission of the initial Compliance
Report and after each Compliance Report submitted thereafter, representatives of Walgreens and Monitoring Counsel shall confer in order to review Walgreens’ implementation of the Decree, the Compliance Report, Walgreens’ compliance with the requirements of the Decree, and other related topics. Such meetings shall be in person if requested by either Monitoring Counsel or Walgreens.
2. The Decree Monitor will attend each Compliance Meeting. Other officers, managers, and employees of Walgreens, whose presence is needed in order to achieve the purpose of the Compliance Meetings, may attend as appropriate. In-person Compliance Meetings shall take place in or within 30 miles of Chicago or East St. Louis, Illinois, unless the Parties agree on another location. XI. MONETARY RELIEF FOR PLAINTIFFS AND CLASS MEMBERS
A. Establishment of Settlement Fund 1. Walgreens shall establish a settlement fund (the “Fund” or the “Settlement
Fund”) in the amount of Twenty Four Million Four Hundred Seven Thousand Five Hundred Dollars ($24,407,500) for the purpose of providing individual monetary awards to Class Representatives, Plaintiff-Intervenor, and other eligible members of the Settlement Class, and
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payment of attorneys’ fees and costs to Class Counsel and Plaintiff-Intervenor’s counsel, in accordance with the provisions of this Section and Section XII. Walgreens shall guarantee interest on unpaid balances of the Settlement Fund at the rate of 6% per annum commencing ten (10) days after the Preliminary Approval Date. Such interest shall accrue until such funds are actually paid, but for no longer than six (6) months for the portion of the fund attributable to attorneys’ fees and costs and no more than twelve (12) months on the remaining balance.
2. Settlement Services, Inc. or SSI shall serve as the Settlement Administrator. Within three (3) days of the Preliminary Approval Date, the Settlement Administrator will open an interest-bearing account (“Settlement Fund Account”) with a unique Taxpayer Identification Number.
3. Within seven (7) days of the Preliminary Approval Date, Walgreens will direct the wire transfer of One Hundred and Twenty Five Thousand Dollars ($125,000) to the Settlement Fund Account. This amount is intended to cover costs of the mailed notices and expenses associated with the Allocation Plan and Monetary Award Procedure, as set forth below in Sections C. and D.
4. If there is no Final Approval of the Consent Decree, the Settlement Administrator shall return to Walgreens any funds, including any interest accrued thereon, remaining in the Settlement Fund Account.
B. Payment of the Settlement Fund After Final Approval, Walgreens shall direct the wire transfer to the Settlement Administrator of all remaining amounts in the Settlement Fund, including all interest accrued, for deposit to the Settlement Fund Account. Walgreens shall make this wire transfer of funds at least ten (10) days prior to the date specified by the Settlement Administrator as the date by which the Settlement Administrator will be prepared to begin distribution of the Settlement Fund pursuant to this Decree. The Settlement Administrator shall give Walgreens written notice of that date at least fifteen (15) days prior to the specified date. This amount shall be deposited to
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the Settlement Fund Account, and thereafter distributed, by the Settlement Administrator as follows:
1. Class Representatives, Plaintiff Wafford, and Plaintiff-Intervenor Each Class Representative and Plaintiff Wafford (collectively referred to as “Plaintiffs” in the remainder of this paragraph) shall be entitled to an enhancement award as set forth on Exhibit D. The aggregate gross amount of these payments is Three Hundred Sixty Six Thousand Five Hundred Dollars ($366,500). These payments reflect: (a) the Plaintiff’s assumption of the risks and potential liability related to being a Plaintiff, including the potential liability for Defendant’s taxable legal costs had Defendant litigated the action to a favorable judgment; (b) the Plaintiff’s assistance to Class Counsel and his/her expenditure of substantial time and effort related to this class action litigation; and (c) the Plaintiff’s waiver of individual claims that were asserted or could be asserted in his/her EEOC Charge and/or the Tucker action outside the scope of the class claims addressed in this Consent Decree. These payments shall be in addition to payments that will be made to the Plaintiffs as members of the Class pursuant to the Allocation Plan set out in Section C below. The Settlement Administrator shall make payment to each Plaintiff in the amounts specified on Exhibit D, less applicable deductions, no later than sixty-five (65) days after the Approval Date, assuming no appeal from the Court’s Final Approval Order is pending. Plaintiff-Intervenor shall be entitled to an enhancement award in the amount of $52,500. This payment reflects: (a) the Plaintiff-Intervenor’s assumption of the risks and potential liability related to bringing an action, including the potential liability for Defendant’s taxable legal costs had Defendant litigated the action to a favorable judgment; (b) the PlaintiffIntervenor’s assistance to the EEOC and her expenditure of substantial time and effort related to EEOC’s litigation; and (c) the Plaintiff-Intervenor’s waiver of individual claims that were asserted or could be asserted in her action outside the scope of the class claims addressed in this Consent Decree. These payments shall be in addition to payments that will be made to the Plaintiff-Intervenor as a member of the Class pursuant to the Allocation Plan set out in Section C
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below. The Settlement Administrator shall make payment to the Plaintiff-Intervenor in the amount specified above, less applicable deductions, no later than sixty-five (65) days after the Approval Date, assuming no appeal from the Court’s Final Approval Order is pending.
2. Charging Parties and Individually Represented Class Members Each Charging Party and Class Members represented individually by Class Counsel, who do not opt out, shall be entitled to an enhancement award as set forth on Exhibit E. The aggregate gross amount of these payments, assuming no such Charging Party or Class Member represented individually by Class Counsel opts out, is Thirty Four Thousand Dollars ($34,000). These payments reflect these individuals’ assistance to EEOC and/or Class Counsel and their expenditure of time and effort related to this class action litigation. These payments shall be in addition to payments that will be made to these individuals as members of the Class pursuant to the Allocation Plan set out in section C below. The Settlement Administrator shall make payment to each Charging Party and Class Member represented individually by Class Counsel in the amounts specified on Exhibit E, less applicable deductions, no later than sixty-five (65) days after the Approval Date, assuming no appeal from the Court’s Final Approval Order is pending.
3. Retaliation Claims of Plaintiff Tucker This Consent Decree does not resolve the claims asserted by Plaintiff Tucker in his charge alleging retaliation, filed with EEOC on or about October 17, 2006,. Nothing herein shall be taken to waive, release, or otherwise affect those claims or Walgreens’ defenses thereto, all of which are reserved for further proceedings.
4. Attorneys’ Fees and Costs of Class Counsel Five Million Five Hundred Fifty Thousand Dollars ($5,550,000) of the Monetary Settlement Fund shall be allocated to payment of Class Counsel’s attorneys’ fees and costs pursuant to Section XII. below. In addition, Forty Thousand Dollars ($40,000) of the Monetary Settlement Fund shall be allocated to payment of Plaintiff-Intervenor’s attorney’s fees and costs.
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5. Payment of Settlement Administrator’s Fees All fees, costs and expenses, if any, of the Settlement Administrator in excess of the One Hundred Twenty Five Thousand Dollars ($125,000) advanced by Walgreens to the Settlement Administrator as provided for in Section A.3. above, shall be paid from the Settlement Fund Account, including the interest on the Settlement Fund Account. All such payments to the Settlement Administrator shall be approved in advance by Monitoring Counsel.
6. Settlement Class The remainder of the Settlement Fund Account (“Net Settlement Fund”) will be distributed to eligible members of the Settlement Class who do not opt out based on the Allocation Plan and Monetary Award Procedure, as set forth below in Sections C and D. The distribution of the Settlement Fund Account according to the Allocation Plan will be the Settlement Administrator’s responsibility, subject to the Monetary Award Procedure set forth in Section D below. The Settlement Administrator shall complete this distribution as soon as practicable, but in no event shall any distributions be made prior to sixty-five (65) days after the Final Approval Date, assuming no appeal from the Court’s Final Approval Order is pending. C. Allocation of the Net Settlement Amount by Categories of Recovering Class
Members The allocation of proportionate shares and payments from the Net Settlement Fund for Class Members who held Covered Positions and/or worked in Listed Stores were determined based on the estimates by Class Counsel and the EEOC of the relative amounts of lost earnings and damages incurred by Class Members in each Covered Position and/or each of the Listed Stores during the Class Period as a result of the allegedly discriminatory practices described in the Plaintiffs’ Second Amended Complaint and the EEOC’s Complaint.
1. Twenty-three and thirty-one hundredths percent (23.31%) of the Net Settlement Amount shall be apportioned to Class Members who at any time during the Class Period held the position of Store Manager. Each Store Manager Class Member who does not opt out shall be individually allocated his or her proportionate share of the amount specified in this
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subparagraph based on the total number of days he or she worked as a Store Manager during the Class Period.
2. Thirteen and seventy-seven hundredths percent (13.77 %) of the Net Settlement Amount shall be apportioned to Class Members who at any time during the Class Period held the position of Executive Assistant Manager. Each Executive Assistant Manager Class Member who does not opt out shall be individually allocated his or her proportionate share of the amount specified in this subparagraph based on the total number of days he or she worked as an Executive Assistant Manager.
3. Fourteen and four hundredths percent (14.04 %) of the Net Settlement Amount shall be apportioned to Class Members who at any time during the Class Period held the position of Management Trainee position for a minimum of two hundred seventy (270) days. Each Management Trainee Class Member who does not opt out shall be individually allocated his or her proportionate share of the amount specified in this subparagraph based on the total number of days in excess of 270 days, that he or she worked as a Management Trainee during the Class Period.
4. Seventeen and thirty-one hundredths percent (17.31 %) of the Net Settlement Amount shall be apportioned to Class Members who at any time during the Class Period held the position of Pharmacist. Each Pharmacist Class Member who does not opt out shall be individually allocated his or her proportionate share of the amount specified in this subparagraph based on the total number of days he or she worked as a Pharmacist during the Class Period.
5. Eleven and four hundredths percent (11.04 %) of the Net Settlement Amount shall be apportioned to Class Members who at any time during the Class Period held the position of Pharmacy Manager. Each Pharmacy Manager Class Member who does not opt out shall be individually allocated his or her proportionate share of the amount specified in this subparagraph based on the total number of days he or she worked as a Pharmacy Manager during the Class Period.
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6. Twenty and fifty-three hundredths percent (20.53%) of the Net Settlement Amount shall be apportioned to Class Members who at any time during the Class Period worked in any of the Listed Stores for the periods of time so designated on the Listed Stores List that shall be lodged with the Court and available on the internet at www/walgreensracecase.com within fourteen (14) days of the Preliminary Approval Date. Each such Class Member who does not opt out shall be individually allocated his or her proportionate share of the amount specified in this subparagraph based on the total number of days he or she worked in Listed Store during the Class Period.
7. Class Members who held more than one Covered Position or who worked in one or more of the Listed Stores during the Class Period are entitled to aggregated awards based on their proportionate share amounts as provided by subsections C.1-6 above.
D. Procedure for Distribution of the Settlement Fund The remainder of the Settlement Fund, after allocation of the amounts specified in subsections B. 1-5 above (“the Net Settlement Amount”), shall be distributed to Class Members by the procedure set forth in this Section.
1. Within fourteen (14) days from the Preliminary Approval Date, Walgreens shall provide the Settlement Administrator the identity of all Class Members eligible to recover monetary awards from the Net Settlement Fund, including their full names, current or last known addresses, telephone or other contact numbers, and social security numbers, for the Settlement Administrator’s use in sending notices and payments to Class Members as specified herein. At the same time, Walgreens shall also produce to the Settlement Administrator, in computer readable format, all personnel and payroll records of all Class Members necessary for the Settlement Administrator to determine the proportionate shares of all Class Members for all Covered Positions. Walgreens shall also provide an identical copy of such data to Monitoring Counsel.
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2. The Settlement Administrator shall provide a list of all Class Members’ proportionate shares to Walgreens, and Monitoring Counsel within fifteen (15) days after Walgreens provides it with the records specified in subparagraph X.D.1 above.
3. At the same time, the Settlement Administrator will print a Calculation of Estimated Settlement Share Form for each Class Member showing the Class Member’s individual calculations, along with the dates of employment in each Covered Retail and Pharmacy Position and in any of the stores listed on the Listed Stores List, as identified in Section XI.C.6 above.
4. The Notice of Proposed Class Action Settlement and Hearing Date for Court Approval (“Notice”) as shall be provided for by the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, shall have attached to it a Calculation of Estimated Settlement Share Form, prepared by the Settlement Administrator as specified in subsection 3 above, informing Class Members of the information used to calculate their estimated payments from the Net Settlement Amount and their individual Estimated Settlement Share Amount, both of which shall be included on an Estimated Settlement Amount Form (“Settlement Award Form”), in the form of Exhibit F to this Consent Decree.
5. Class Members shall not be required to respond or take any action with respect to the Settlement Award Form in order to receive their Estimated Settlement Amount, or any adjustment necessary to be made to the amount by the Settlement Administrator due to successful challenges or otherwise, as provided for herein.
6. However, should Class Members wish to challenge their Estimated Settlement Amounts in order to correct errors in information used to calculate their estimated pro rata share of the Net Settlement Amount and/or to seek additional amounts, they must submit such challenge and request for correction of errors in information used to calculate their estimated pro rata share of the Net Settlement Amount and/or additional payment (“Challenge”) in writing to the Settlement Administrator in a timely manner as specified herein.
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7. Each Class Member will have the right to present a Challenge to the dates of employment in Covered Positions and/or Listed Stores or other information used in the computation of that individual’s award as specified in subsection 3 above. However, Class Members shall not have the right to raise any other claims or contentions in Challenges pursuant to this provision.
8. Class Members must send their written Challenge to their Estimated Settlement Amount Form as well as any applicable documentation to the Settlement Administrator, postmarked by no later than thirty (30) days after the date of the Notice (“Challenge Filing Deadline”).
9. The Settlement Administrator shall retain all of the job history information or other electronic data pertaining to Class Members received from Walgreens from which the Settlement Administrator determined the Class Members’ proportionate share numbers as specified above. Walgreens shall respond to a request by the Settlement Administrator for additional information the Settlement Administrator determines to be necessary to respond to a Class Member’s Challenge, within fourteen (14) days of such request.
10. The Settlement Administrator shall attempt to expeditiously resolve each such Challenge within thirty (30) days after receipt of such Challenge. Challenges to the computation of settlement shares will be resolved without hearing by the Settlement Administrator. The Settlement Administrator’s decision shall be communicated to the Class Member in writing and shall be final, binding and nonappealable.
11. The Settlement Administrator shall be available through the toll-free line and via e- mail through the Settlement Website to respond to Challenges and questions from Class Members.
12. Distribution of the Monetary Awards As soon as practicable after making the calculations required by the Sections D.1-3 above, and resolution of all Challenges pursuant to Sections D.6-10 above, but in no event less than sixty-five (65) days after the Approval Date, the Settlement Administrator shall distribute
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the monetary awards to Class Members via first class mail. The Settlement Administrator shall only issue the check(s) in the name of the Class Members unless Section D.16. below, is applicable. The Settlement Administrator will include with the check due to the Class Member a statement showing the gross amount of the payment(s) and an itemized statement of all deductions made. Appropriate deductions from gross amounts that are determined to be wage payments will be made for federal and state income taxes, the employee’s share of social security and Medicare taxes, and any local income or payroll taxes that apply. Any amounts designated as interest shall not be subject to withholdings and shall be reported, if required, to the IRS on Form 1099-INT. Any amounts paid for emotional distress shall not be subject to withholdings and shall be reported to the IRS on Form 1099-MISC. Any amounts designated as lost wages or payments in lieu of wages shall be subject to payroll tax withholding deductions and shall be reported to the IRS on Form W-2.
13. Tax Withholdings and Reporting The Settlement Administrator will inform Walgreens of the employer’s share of all taxes or contributions (i.e., matching social security, Medicare or other required withholding or payroll taxes) required to be paid by Walgreens, and Walgreens shall timely remit all such payments to the Settlement Administrator for payment to appropriate taxing authorities. The Settlement Administrator will be responsible for preparing and filing all appropriate tax filings and reports (except for any unemployment compensation taxes that may be due, which will be the sole responsibility of Walgreens to calculate and pay), including, but not limited to, W-2 and 1099 forms for all Plaintiffs, Charging Parties, and Class Members for their payments from the Settlement Fund, as well as any required for the Settlement Fund. The Settlement Administrator will be responsible for reporting and remitting to the appropriate taxing authorities the employer’s share of taxes or contributions required to be paid by Walgreens in a timely manner after receipt of the amount due for those payments from Walgreens.
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14. Undeliverable Checks Any checks returned as undeliverable shall be voided and the amount of the check shall be included in the funds re-distributed pursuant to Section C.17. below.
15. Allocation of Monetary Awards to Interest, Damages, and Lost Earnings The monetary awards to Class Members based on time worked in any of the Covered Positions and Listed Stores shall be allocated as follows: (i) an amount for interest to be determined by the Settlement Administrator based on the dates of employment for which such monetary awards are made, using standard rates and techniques, and (ii) 15.0% of the remainder to lost wages and 85.0% to compensatory damages.
16. Deceased Settlement Class Members Any allocation paid to a deceased Class Member shall be made payable to the estate of the deceased Class Member upon timely receipt by the Settlement Administrator of proper written proof of the estate’s entitlement to receive the deceased Class Member’s assets.
17. Distribution of Remaining Funds It is the intention of the Parties to completely distribute the funds in the Settlement Fund Account. In the event that Class Members entitled to participate in the monetary settlement opt out of the monetary settlement or cannot be located by the Settlement Administrator, mailed checks are returned as undeliverable, delivered checks are not cashed within one hundred twenty (120) days of their mailing, and/or that the Settlement Fund is not completely distributed for any other reason (other than denial of Final Approval), the remaining undistributed sum shall be redistributed in the following order: (1) to make any additional payments to Class Members occasioned by mistakes in the calculations of their tenure in a particular Covered Position and/or Listed Store, or other errors or omissions of Walgreens or the Settlement Administrator; (2) to reimburse Walgreens for the $125,000 it advanced to pay for administrative costs pursuant to Section A. 3. above; and (3) as a Cy Pres Fund to be distributed to a non-profit organization or organizations designated by the Parties that assist African Americans to obtain equal
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employment opportunity. In the event the Parties cannot agree on a beneficiary(-ies) of the Cy Pres Fund, the Special Master shall designate one or more such beneficiary(-ies).
18. Report from Settlement Administrator Within thirty (30) days of the final distribution of the monies from the Settlement Fund, the Settlement Administrator shall furnish an accounting of all distributions from the Settlement Fund to the Court with copies to Monitoring Counsel and Walgreens. E. Notice
1. Within thirty (30) days following the Settlement Administrator’s receipt from Walgreens of the data and information required to be provided by Section D.1 above, the Settlement Administrator shall determine to the greatest extent possible, through a computer change of address or other database search, the most recent address that may be obtained for each Class Member. Within forty-five (45) days of the Preliminary Approval Date, or during the period five (5) to ten (10) days after the completion of Walgreens’ biannual managers’ meeting scheduled for August 2007, whichever is later, the Settlement Administrator shall mail, via first class postage, Notice of Proposed Class Action Settlement and Hearing Date for Court Approval in the form approved by the Court in the Preliminary Approval Order to all known Class Members, and shall in addition enclose individual Calculation of Estimated Settlement Share Forms to all known Class Members who are eligible to recover monetary awards from the Net Settlement Fund, at the most recent address that may have been obtained through the Settlement Administrator’s computer database search.
F. Objections and Exclusions Class Members may object to or opt-out of the class settlement.
1. Objections Class Members objecting to the terms of the settlement must do so in writing at least thirty (30) days prior to the scheduled Final Fairness Hearing. The written objection must be sent to the Settlement Administrator and postmarked on or before the date specified in the Preliminary Approval Order. The Settlement Administrator shall date stamp the original of the
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objection and forward a copy of the objection to both Walgreens and Class Counsel within two (2) business days following receipt. The Settlement Administrator will file the original objections with the Clerk of the Court no later than five (5) business days prior to the scheduled Final Fairness Hearing. The Settlement Administrator shall retain copies of all written objections until such time as it has completed its duties and responsibilities under this Decree.
2. Exclusions Class Members may exclude themselves, or opt-out, of the monetary relief provisions of the class settlement. Any request for exclusion must be in the form of a written “Opt-out” statement sent to the Settlement Administrator. Information on how to opt-out of the settlement shall be made available to Class Members by the Settlement Administrator upon request. A person wishing to opt-out must sign a statement which includes the following language:
“I understand that I am requesting to be excluded from the class monetary settlement and that I will receive no money from the settlement fund created under the Consent Decree entered into by Walgreens. I understand that if I am excluded from the class monetary settlement, I may bring a separate legal action seeking damages, but may receive nothing or less than what I would have received under the class monetary settlement in this case. I also understand that I may not seek exclusion from the class for injunctive (non-monetary) relief and that I am bound by the injunctive provisions of the Consent Decree entered into by Walgreens.” 3. A Class Member submitting an Opt-out statement shall sign and date the statement and send it to the Settlement Administrator postmarked no later than thirty (30) days prior to the scheduled Final Fairness Hearing, as specified in the Preliminary Approval Order. The Settlement Administrator shall date stamp the original of any Opt-out statement and serve copies on both Walgreens and Class Counsel within two (2) business days of receipt of such statement. The Settlement Administrator will file the original Opt-out statements with the Clerk of the Court no later than five (5) business days prior to the scheduled Final Fairness Hearing. The Settlement Administrator shall retain copies of all Opt-out statements until such time as it has completed its duties and responsibilities under this Decree. 4. Rescission of Class Member Opt–Outs
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The Parties recognize that some Class Members who initially submit Opt-out forms seeking exclusion may, upon further reflection, wish to withdraw or rescind such Opt-out statements. The Parties agree that Class Members shall be permitted to withdraw or rescind their Opt-out statements by submitting a “Rescission of Opt-out” statement to the Settlement Administrator. The Rescission of Opt-out statement shall include the following language:
“I previously submitted an Opt-out statement seeking exclusion from the class monetary settlement. I have reconsidered and wish to withdraw my Opt-out statement. I understand that by rescinding my Opt-out statement I may be eligible to receive an award from the claims settlement fund and may not bring a separate legal action against Walgreens seeking damages.” 5. A Class Member submitting such a rescission statement shall sign and date the statement and cause it to be delivered to the Settlement Administrator no later than ten (10) calendar days prior to the date of the Final Fairness Hearing. The Settlement Administrator shall date stamp the original of any Rescission of Opt-out statement and immediately fax copies to Walgreens and Class Counsel no later than the next business day after receipt thereof and shall file the date-stamped originals with the Clerk of the Court no later than five (5) business days prior to the date of the Final Fairness Hearing. The Settlement Administrator shall retain copies of all Rescissions of Opt-Out statements until such time as the Settlement Administrator is relieved of its duties and responsibilities under this Decree. G. No Solicitation of Objections or Exclusions The Parties and their counsel shall not seek to solicit or otherwise encourage Class Members to submit written objections to the Consent Decree or request exclusion from the Settlement Class, or to appeal from the Court’s final judgment in this action. H. Defendant’s Rescission of Agreement If any of the Named Plaintiffs opt out or if the number of Class Members who opt-out of the Settlement Class in the manner provided for in this Decree exceeds 1% of the number of Class Members, then Walgreens, at its sole option, shall have the right to void this settlement within seven (7) days after the date the Court allows the submission of rescissions of opt-outs. If
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Walgreens exercises this option, all of Walgreens’ obligations under this Decree shall cease to have any force or effect and any orders entered in connection therewith shall be vacated, rescinded, cancelled, and annulled, and the Parties shall return to the status quo in the litigation as if the Parties had not entered into the Consent Decree. In addition, in such event, the Consent Decree and all negotiations, court orders and proceedings related thereto shall be without prejudice to the rights of any and all Parties hereto, and evidence relating to the Consent Decree and all negotiations shall not be admissible or discoverable in the litigation or otherwise.
I. Settlement Administrator’s Duties and Responsibilities The Settlement Administrator shall: (1) trace all Class Member addresses for current addresses; (2) calculate the pro rata payments of Class Members; (3) prepare and mail the Notice of Proposed Class Action Settlement and Hearing Date for Court Approval and individual Calculation of Estimated Settlement Share Forms to Class Members; (4) establish and operate a website and maintain a toll-free number designed to provide information to and communication with Class Members; (5) determine challenges submitted by Class Members to the accuracy of individual Calculation of Estimated Settlement Shares; (6) seek additional information from Class Members, Monitoring Counsel or Walgreens, when appropriate or necessary; (7) receive and file opt-out statements, objections and rescissions of opt-out statements; (8) implement the Allocation Plan and Monetary Award Procedures; (9) respond to questions from Class Members; and (10) perform any other duties necessary to carry out its responsibilities as set forth in this Decree. XII. ATTORNEYS’ FEES, COSTS AND EXPENSES A. Basis for Award of Fees, Costs and Expenses
1. The Parties have agreed that as part of the settlement underlying this Consent Decree, Walgreens will pay to Class Counsel, on behalf of the Plaintiffs and the Settlement Class, reasonable attorneys’ fees, litigation expenses, and costs in this case.
2. Walgreens has agreed to pay Class Counsel an award of reasonable attorneys’ fees, litigation expenses, and costs in the amount of Five Million Five Hundred Fifty
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Thousand Dollars ($5,550,000) for work performed and costs and expenses incurred through and including the Approval Date. Included in this amount is approximately Nine Hundred Thousand Fifty Dollars ($950,000) for litigation costs and expenses incurred by Class Counsel. This amount fully satisfies any obligation Walgreens may have to pay attorneys’ fees, litigation expenses, and costs for and on behalf of the Plaintiffs and the Settlement Class for any and all work performed and costs and expenses incurred through and including the Approval Date. The attorneys’ fees and costs being paid to Class Counsel as provided for in this section will be paid from the Class Monetary Fund.
3. Walgreens has also agreed to pay Plaintiff-Intervenor’s counsel Forty Thousand Dollars ($40,000) for costs and attorneys’ fees incurred in representation of PlaintiffIntervenor in her action. This amount fully satisfies any obligation Walgreens may have to pay attorneys’ fees, litigation expenses, and costs for and on behalf of the Plaintiff-Intervenor. The attorneys’ fees and costs being paid to Plaintiff-Intervenor’s counsel as provided for in this section will be paid from the Class Monetary Fund.
B. Date for Payment The Settlement Administrator shall pay Class Counsel their respective portions of the award of costs and fees, as they shall jointly direct, sixty-five (65) days after the Final Approval Date, assuming no appeal from the Court’s Final Approval Order is pending. The Settlement Administrator shall also pay Plaintiff-Intervenor’s counsel the amount of fees and costs specified above sixty-five (65) days after the Final Approval Date, assuming no appeal from the Court’s Final Approval Order is pending. C. Monitoring Fees
1. Walgreens also has agreed to pay to Goldstein, Demchak, Baller, Borgen & Dardarian (“Goldstein Demchak”) an amount of reasonable attorneys’ fees, litigation expenses and costs for work it will be required to perform as one of the monitoring counsel pursuant to this Decree after the Approval Date. Walgreens agrees that it will pay Goldstein Demchak such fees, expenses and costs in the amount of Three Hundred Twenty Five Thousand Dollars
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($325,000) for the first four (4) years of the Decree, and Fifty Thousand Dollars ($50,000) for the fifth year of the Decree, if the Decree is not terminated after four (4) years. Within thirty (30) days of the Preliminary Approval Date, Walgreens and Goldstein Demchak shall agree to a schedule of payment of the fees, expenses and costs for the first four (4) years of the Decree.
2. Walgreens also agrees that Goldstein Demchak may apply to the Court for payment of additional fees, expenses or costs for good cause shown.
3. The fees, expenses and costs to be paid by Walgreens under this subsection will be those incurred by Goldstein Demchak relating to defense of the Decree, and monitoring, evaluating and enforcing Walgreens' administration and implementation of, and compliance with, this Decree.
4. Except as provided in Section VII.F above, for appeals of decisions of the Special Master and as provided for in subsection 2 above, the amounts reflected in subsection 1 above, satisfy any arguable obligation Walgreens may have to pay attorneys’ fees, expenses and costs to Goldstein Demchak for any and all work performed in monitoring and enforcing this Decree.
XIII. MISCELLANEOUS PROVISIONS A. No Admission of Liability This Decree represents the compromise of disputed claims that the Parties and the Plaintiff-Intervenor recognize would require protracted and costly litigation to determine. Walgreens denies that it has engaged in any policy, pattern or practice of unlawful discrimination against African Americans as alleged in the Plaintiffs’ Second Amended Complaint, the EEOC’s Complaint, and Plaintiff-Intervenor’s Complaint, and Walgreens’ entry into this Decree is not, and may not be used by any person as an admission or evidence that Walgreens has, on any occasion, engaged in discriminatory employment practices, such being expressly denied. Walgreens has voluntarily entered into this Decree because the actions it has agreed to undertake underscore its strong commitment to diversity and equal employment opportunity. B. Duty to Support and Defend the Decree
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The Plaintiffs, Class Counsel, EEOC, Plaintiff-Intervenor and Walgreens each agree to abide by all of the terms of this Decree in good faith and to support it fully, and shall use Best Efforts to defend this Decree from any legal challenge, whether by appeal or collateral attack.
C. Calculation of Time Unless otherwise stated, computation or calculation of any period of time prescribed or allowed by the Decree shall be made consistent with Federal Rule of Civil Procedure 6(a) as it exists at the time of issue. D. The Decree is Binding on the Parties and their Successor and Assigns The terms of this Decree shall be binding on the Plaintiffs, EEOC, Plaintiff-Intervenor, Class Members, Walgreens, and their respective successors and assigns. E. The Consent Decree Is The Complete Understanding of the Parties This Decree constitutes the complete understanding among the Parties and PlaintiffIntervenor with respect to the matters herein. Only those obligations expressly set forth in this Decree may be imposed on any party. No additional obligations may be imposed or implied. F. Interpretation and Severability of Decree Whenever possible, each provision and term of this Decree shall be interpreted in such a manner as to be valid and enforceable. In the event that after Final Approval, any provision or term of this Decree should be determined unenforceable on collateral review, all other provisions and terms of this Decree and the application of the Decree to all persons and circumstances as provided by the Decree shall remain unaffected to the extent permitted by law. If the application of any provision or term of this Decree to any specific person or circumstance should be determined to be invalid or unenforceable, the application of such provision or term to other persons or circumstances shall remain unaffected to the extent permitted by law. G. Modification of Decree The Parties may modify this Decree only by written agreement among them executed by their authorized representatives, filed with and approved by the Court. Any such modification shall not become binding until it receives the Court’s approval, but may, upon the Parties’
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written agreement and subject to the Court’s approval, be made effective as of the date of the Parties’ execution of such agreement or other date prior to the date the Court approves the proposed modification.
H. Execution of Decree The Parties and Plaintiff-Intervenor may execute this Decree in counterparts. The Decree shall be effective upon the execution of a counterpart by all Parties and Plaintiff-Intervenor. After each party has executed a copy of the Decree, the Parties and Plaintiff-Intervenor shall exchange executed copies, and a copy of this Decree together with executed signature pages from all Parties and Plaintiff-Intervenor shall constitute a complete and binding Decree. I. Return or Destruction of Documents Upon the expiration of this Decree, Plaintiffs, Class Counsel the EEOC, and PlaintiffIntervenor shall expeditiously return to Walgreens all documents (other than those filed with the Court or otherwise matters of public record), including any computerized materials, that they received from Walgreens during the course of mandatory disclosures, discovery or settlement negotiations in this case. The materials to be returned under this provision include any documents and computerized materials in the possession of any third party who received such materials from Class Counsel and/or EEOC. In the alternative, Class Counsel, the EEOC and Plaintiff-Intervenor’s counsel shall destroy all such documents and materials, and provide written assurance to Walgreens within sixty (60) days of the expiration of the Decree that such documents and materials have been destroyed. However, under either alternative, Class Counsel and EEOC may retain one copy of each document or other written or electronic material they deem necessary to comply with their document retention obligations. Class Counsel and the EEOC shall destroy or return the remaining set of documents and materials upon the expiration of its document retention obligations. During the period of time prior to destruction or return of all documents and other materials retained by Class Counsel and the EEOC, they shall continue to treat as confidential such documents and materials designated as “Confidential” during the litigation.
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RONALD S. COOPER General Counsel

JAMES L. LEE Deputy General Counsel

GWENDOLYN REAMS

Associ~e General Counsel

,j!

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JJtAN P. KAMP ssociate Regional Attorney
Chicago District Office
500 West Madison Street, Suite 2800 Chicago, Illinois 60661 phone: 312-353-7719 fax: 312-353-8555 e-mail: iean.kamp@eeoc.gov

NORA E. CURTIN Regional Attorney Miami District Office One Biscayne Tower 2 South Biscayne Boulevard, Suite 2700 Miami, Florida 33131 phone: 305-808-1789 fax: 305-808-1855 e-mail: nora.curtin @eeoc.gov

BARBARAA. SEELY Supervisory Trial Attorney
St. Louis District Office 1222 Spruce Street, Room 8.100 St. Louis, Missouri 63103 phone: 314-539-7914 fax: 314-539-7895 e-mail: barbara.seely@eeoc.gov

ANDREA G. BARAN Senior Trial Attorney Kansas City Area Office 400 State Avenue, Suite 905 Kansas City, Missouri 64131 phone: 913-551-5848 fax: 913-551-6957 e-mail: andrea.baran@eeoc.gov

ATTORNEYS FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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APPROVED. Dated:03/24/2008

s/G. Patrick Murphy G. PATRICK MURPHY UNITED STATES DISTRICT JUDGE

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EXHIBIT A

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EXHIBIT A
PLAINTIFFS’ AND INDIVIDUALLY REPRESENTED CLASS MEMBERS’ RELEASE
AND WAIVER OF CLAIMS
In consideration for the monetary enhancement and other class monetary payment I will receive under the Consent Decree, I hereby — for myself and for my heirs, representatives, attorneys, executors, administrators, successors, and assigns — release, and waive Walgreen Co. (“Walgreens”) and all of its current and former affiliates, including without limitation all of its officers, directors, servants, agents, managers, employees and former employees, and its representatives and attorneys, past, present and future, and all persons acting under, by, through, or in concert with any of them (collectively, the “Releasees”), from any and all claims arising at any time up to and including the date of my signature on this Release and Waiver of Claims, including but not limited to any claims for monetary relief of any type and attorneys’ fees and costs that I asserted in the Tucker action, or that I might have asserted, or could in the future assert under any cause of action against Walgreens arising out of my employment or application for employment with Walgreens, including but not limited to any claim under any federal, state or local statute relating to my employment relationship with Walgreens, including but not limited to, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, as amended, and analogous provisions of State laws. This Release and Waiver of Claims shall survive the termination of the Consent Decree. However, this Release and Waiver of Claims shall not extend to claims based on incidents occurring after the date I execute this Release and Waiver of Claims or any claim that is expressly excluded under the Consent Decree.

Date: ___________________

(Name of Plaintiff or Represented Class Member)

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EXHIBIT B

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SUMMARY OF CONSENT DECREE On July __, 2007, Walgreens, the United States Equal Employment Opportunity Commission (“EEOC”) and private counsel representing fourteen current and former African American employees of Walgreens submitted a proposed Consent Decree (“Decree”) to the United States District Court for the Southern District of Illinois. The Decree resolves a consolidated employment discrimination class action brought against the Company by EEOC and the private plaintiffs. The Court gave final approval of the Decree on ______, 2007. This Summary explains Walgreens’ basic duties and obligations under the Decree. Background and Summary of the Litigation In the lawsuit, EEOC and private plaintiffs claim that Walgreens discriminates against African American retail and pharmacy management employees by assigning them to particular stores because of their race, and by denying them promotions because of their race. The private plaintiffs also allege that Walgreens compensates African Americans in retail and pharmacy management positions less than similarly situated white employees. Walgreens denies all of these allegations, and maintains that it has not discriminated in any way against African-American employees on the basis of race. The Decree is intended to settle certain claims raised as part of a the lawsuit. The Decree covers all African Americans who are or were employed by Walgreens as Management Trainees (“MGTs”), Executive Assistant Managers (EXAs), Store Managers (“MGRs”), Pharmacists (RPS-’s), or Pharmacy Managers (RxMs) for any length of time between June 20, 2001 and ________, 2007 (the Preliminary Approval Date). The Company voluntarily entered into the Decree because it would have incurred a greater expense by continuing the litigation. Moreover, the actions Walgreens has agreed to undertake pursuant to the Decree are sound business practices that will further enhance the Company’s diversity and equal employment opportunity efforts. Ken Weigand, Senior Vice President of Human Resources, will serve as the Decree Monitor, bearing primary responsibility for overseeing Walgreens’ compliance with the Decree. Walgreens will provide periodic reports of its implementation of the Decree to

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Monitoring Counsel (EEOC and one of the law firms representing the private plaintiffs), who also will monitor Walgreens’ implementation of the Decree. Summary of Employment Practices Affected
The overall objective of the Decree is to continue to ensure equal employment opportunities for African American management employees, a policy that Walgreens strongly advocates. During the term of the Decree (which is 5 years following final approval of the settlement by the Court), Walgreens will retain professional consultants to undertake a review of its decisions regarding store assignments, promotions. compensation, and internal investigation of employee discrimination complaints. Among other things, under the Decree, Walgreens will:
• not enact, maintain or implement any policy or practice that discriminates against any employee on the basis of race;
• monitor its promotions, compensation and store assignment decisions; and • provide non-discrimination training to its employees. Monetary Relief Under the Decree, Walgreens will establish a settlement fund in the amount of $18,364,500, plus interest, to provide individual monetary awards to eligible members of the Settlement Class. A Settlement Administrator will determine the specific awards for each class member, based on a formula to which Walgreens, the private plaintiffs and the EEOC have agreed. In addition, Walgreens will pay $5,550,000 for private plaintiffs’ attorneys’ fees and costs and $40,000 for Plaintiff-Intervenor’s attorney’s fees and costs. Further Information In the coming months, you will be provided with training regarding the Company’s obligations under the Consent Decree. If you have any questions in the meantime, please feel free to contact Deidra Byrd, Kim Metrick or David Metz in the Employee Relations Department.
2

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EXHIBIT C

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NOTICE TO ALL EMPLOYEES POSTED PURSUANT TO A VOLUNTARY CONSENT DECREE
This Notice is being posted pursuant to a Consent Decree entered by the Federal Court in Tucker, et al. v. Walgreen Co. and EEOC v. Walgreen Co. resolving the consolidated lawsuits brought against Walgreens by private plaintiffs and the U.S. Equal Employment Opportunity Commission (EEOC).
In the lawsuits, the plaintiffs asserted that Walgreens violated 42 U.S.C. 1981 and Title VII of the Civil Rights Act of 1964, by discriminating against African American retail and pharmacy management employees on the basis of race in promotions, compensation and assignment. Walgreens denies that it has engaged in any policy or practice of unlawful discrimination.
To resolve the case, Walgreens, private plaintiffs and the EEOC have agreed to the following, among other things:
1. Walgreens will provide equal employment opportunities to all store management and pharmacy employees. Consistent with this policy, Walgreens will not discriminate against African –American store management and pharmacy employees on the basis of race in promotions, store assignments, compensation or terms and conditions of employment.
2. In addition to making monetary payments to the Plaintiffs and Class Members, Walgreens will monitor promotions, compensation and store assignment decisions, and review its current policies and employee training programs;
3. Walgreens will not retaliate against any person because he or she opposed discrimination on the basis of race, filed a charge of discrimination on the basis of race, or asserted any rights under the Consent Decree; and
4. Walgreens will designate Ken Weigand, Senior Vice President of Human Resources, as internal decree monitor. Mr. Weigand will work with representatives of the EEOC and the private plaintiffs to ensure Walgreens’ compliance with the terms of the Consent Decree.
More details regarding this settlement may be obtained by reviewing a summary of the Consent Decree, which is posted on Walgreens’ Employee Relations’ website on the Company’s intranet. You may also obtain a complete copy of the Consent Decree by contacting the Settlement Administrator, Settlement Services, Inc., at (866) 854-7674, or info@walgreensracecase.com, or by requesting a copy from the Employee Relations Department at (847) 315-4455.
Walgreens’ policy and federal law prohibit discrimination on the basis of race. If you believe you have been discriminated against, you may report your concerns via the Open Door Policy to any member of management, or to Walgreens’ Employee Relations Department at (847) 315-4455. You may also contact the EEOC at (312) 353-7719 or the Class Monitors, Morris Baller and Teresa Demchak, at Goldstein, Demchak, Baller, Borgen & Dardarian (510) 763-9800, or through their website at www.gdblegal.com. The EEOC, which will also be monitoring compliance with the Consent Decree, is responsible for enforcing federal laws prohibiting employment discrimination based on race, color, gender (including sexual harassment and pregnancy), religion, national origin, age, disability and retaliation.

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 83 of 91
This Is An Official Notice And Must Not Be Removed, Defaced Or Covered This notice must remain posted until at least _____________ (a date five years after the Approval Date). Questions about this Notice or compliance with its terms may be directed to: Ken Weigand, Senior Vice President of Human Resources; the U.S. Equal Employment Opportunity Commission; or the Monitoring Counsel, at the numbers listed above.
2

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 84 of 91
EXHIBIT D

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 85 of 91

EXHIBIT D
ENHANCEMENT PAYMENTS TO CLASS REPRESENTATIVES, PLAINTIFF WAFFORD,
AND PLAINTIFF INTERVENOR PHILLIPS

Avery Anderson Leon Bradley Traci Dansberry Chris Dargin Oscar Green Jovan Haney Mike Jackson Angela Miller Pearle Phillips Kevin Riddle William Strickland Johnny Tucker Kimberly Wafford Carlos Zimmerman

$18,500 $27,500 $20,500 $47,500 $37,500 $18,500 $22,500 $25,500 $52,500 $22,500 $22,500 $48,500 $32,500 $22,500

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 86 of 91
EXHIBIT E

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 87 of 91

EXHIBIT E
ENHANCEMENT PAYMENTS TO (1) CHARGING PARTIES AND (2) CLASS MEMBERS INDIVIDUALLY REPRESENTED BY CLASS COUNSEL

Charles W. Adams Derrick Brown Tornica Chaney Jelani Coppage Robert Davis Shaneika Foster Nichole Herron Kathy Hoskin Dorthea McChester Alexandra Mwaura Ricky G. Nicholson Victor Oatts LeNitra Oliver Deborah Sanders Rashaun Stout Shaun Thornton

$2,500 $2,500 $2,500 $ 250 $2,500 $2,500 $2,500 $2,500 $ 250 $2,500 $2,500 $2,500 $2,500 $2,500 $1,000 $2,500

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 88 of 91
EXHIBIT F

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 89 of 91

TUCKER V. WALGREEN CO.
AND
EEOC V. WALGREEN CO. Settlement Administration Center
Post Office Box 10523 Tallahassee FL 32302-2523
(866) 854-7674

ESTIMATED SETTLEMENT AMOUNT FORM

CLASS MEMBER INFORMATION Name/Mailing Address:

___________________________________________________________ Corrections

____________________________________________________________ Corrections

If your name or address is different from those shown above, print the corrections on the lines above.
PLEASE PRINT CLEARLY
Daytime Telephone Number: (___) ____ - _______ Evening Telephone Number: ( ) _____ - ___________
Social Security Number: ______/________/____________________________ Your estimated settlement award is a share of the class settlement based on the number of days
you worked for Walgreens in one or more of the Covered Positions and one or more of the Listed Stores during the period June 20, 2001 through _____, 2007 (“Class Period”). The terms “Covered Positions” and “Listed Stores” are defined in the Notice of Settlement of Class Action [check document title] that you are receiving with this form.
Walgreens’ records show that, within the Class Period, you worked in the Covered Positions during the following periods:

Position 1. Management Trainee (MGT)

(Based on Walgreens’ Data) Dates of Employment
_____________________ to _______________________

2. Executive Assistant Manager (EXA) _____________________ to _______________________

3. Store Manager (MGR)

_____________________ to _______________________

4. Pharmacist (RPH)

_____________________ to _______________________

5. Pharmacy Manager (RXM)

_____________________ to _______________________

1

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 90 of 91

Walgreens’ records also show that you worked in the following Listed Stores during the following periods:

Listed Store #

Dates of Employment

_________________________

_____________________ to _________________________

_________________________

_____________________ to _________________________

Based on the information set out above, your estimated share of the Class Fund is $____________. Your final actual share may vary from this amount depending on the verification of employment dates of class members in the challenge resolution process, or on opt-outs from the settlement; both processes are also described in the Notice. Unless you opt out of the settlement, a check for your share of the Class Fund will be mailed to you after the Court grants final approval of the settlement and the time for any appeal from the settlement has expired or any appeal has been resolved.

IF ALL OF THE INFORMATION LISTED ABOVE IS CORRECT, AND YOU WISH TO PARTICIPATE IN THE SETTLEMENT, YOU DO NOT NEED TO DO ANYTHING. A CHECK FOR YOUR SHARE OF THE CLASS FUND WILL BE MAILED TO YOU AFTER THE COURT GRANTS FINAL APPROVAL OF THE SETTLEMENT.

If you have an address correction, please note it in the space provided above and return this Estimated Settlement Amount Form to the Settlement Administration Center at the address noted above. Please also enter your daytime phone number and Social Security number in the spaces provided above.

Challenge to Dates of Employment in Covered Positions or Listed Stores.

If you do not agree with the dates you worked in Covered Positions and Listed Stores, as stated above, you may challenge them by completing the following ___ sections. You do not have to complete these statements in order to be paid the estimated share shown above.

“Between June 20, 2001 and __________, 2007, I believe I worked the following dates in Walgreens Covered Positions”:

Dates Worked in Covered Positions (Proposed by Class Member)

Covered Position

Dates of Employment

_________________________

_____________________ to _________________________

_________________________

_____________________ to _________________________

_________________________

_____________________ to _________________________

2

Case 3:05-cv-00440-GPM-CJP Document 136 Filed 03/24/08 Page 91 of 91

“Between June 20, 2001 and __________, 2007, I believe I worked the following dates for Walgreen’s in a Listed Store”:

Dates in Listed Stores (Proposed by Class Member)

Listed Stores Worked In

Dates of Employment

_________________________

_____________________ to _________________________

_________________________

_____________________ to _________________________

If you claim a different number of days you worked in any of the Covered Positions, or a different number of days worked in Listed Stores in any of the Covered Positions, you must include any documentary evidence you have that supports your claim (such as pay stubs reflecting dates of such employment between June 20, 2001 and _________, 2007). A W-2 form will not be considered to be sufficient evidence of dates of employment in particular jobs or stores.

NOTE: If you claim a different amount of time worked in Covered Positions and/or Listed Stores, you hereby authorize the Settlement Administrator to review your Walgreens employment records and Walgreens to release those records to the Settlement Administrator for that limited purpose in order to make a determination based on your Walgreens records regarding the amount of time you worked in such positions or in such stores. This determination may increase or decrease the amount of your settlement share. All such determinations are final and binding with no opportunity for further appeal.

I declare under penalty of perjury under the laws of the United States that the foregoing information supplied by the undersigned is true and correct and that this Estimated Settlement Amount Form was executed on this

______ of ___________________, 2007, in ___________________, ___________________.

day

month

city

state

________________________________________________________________
Signature

IF YOU HAVE CORRECTIONS OR CHALLENGE THE NUMBER OF DAYS WORKED IN COVERED POSITIONS AND/OR LISTED STORES, THIS ESTIMATED SETTLEMENT AMOUNT FORM MUST BE SIGNED AND RETURNED TO THE SETTLEMENT ADMINISTRATION CENTER AT THE ABOVE ADDRESS SO THAT IT IS POSTMARKED NO LATER THAN _________________, 2007.

3

 
 Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOHN TUCKER, ANGELA MILLER, )

JOVAN HANEY, LEON BRADLEY, ARIEN )

JACKSON, WILLIAM STRICKLAND, )

OSCAR GREEN, MIKE JACKSON, KEVIN )

RIDDLE, AVERY ANDERSON, TRACI )

DANSBERRY, CARLOS ZIMMERMAN, )

and CHRIS DARGIN, On Behalf of )

Themselves and Others Similarly Situated, )

and KIMBERLY WAFFORD, Individually, )

)

Plaintiffs,

)

)

and

)

)

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION and PEARLE PHILLIPS, )

)

Plaintiffs,

)

)

vs.

)

)

WALGREEN COMPANY,

)

)

Defendant.

)

CIVIL NO. 05-440-GPM consolidated with Civil No. 07-172-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge: This matter is before the Court on motions brought by Plaintiffs, as described in more detail
below, for preliminary approval of a proposed consent decree, for conditional certification of a settlement class, for appointment of class counsel, for designation of class representatives, for approval of class notice, and for scheduling of a final fairness hearing (Docs. 122, 123) and on a motion to withdraw as counsel for Plaintiff Arien Jackson, which the Court construes as a motion

Page 1 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 2 of 11
to withdraw Mr. Jackson as a Named Plaintiff in this action (Doc. 124). I. PROCEDURAL BACKGROUND
On June 20, 2005, fourteen African American current and former employees of Defendant Walgreen Company (Walgreens) filed a complaint on behalf of themselves and as representatives of a class of African American current and former Walgreens employees alleging that Walgreens engaged in a nationwide policy, pattern, or practice of racial discrimination in promotions, compensation, store assignments, and other terms, conditions, and privileges of employment. Plaintiffs originally brought these claims under 42 U.S.C. Section 1981, as amended (Section 1981) (Doc. 1)1 and later amended their complaint to include claims under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended (Title VII). The Second Amended Complaint (SAC) filed on September 22, 2006, and Walgreens’ Answer thereto filed on October 6, 2006 (Doc. 88) are the operative pleadings.
On March 7, 2007, the U.S. Equal Employment Opportunity Commission (the EEOC) filed a complaint alleging that Walgreens discriminated against 22 named African American Charging Parties because of their race and engaged in a pattern and practice of racial discrimination against African American retail and pharmacy management employees in violation of Title VII (see Civil Case No. 07-172-GPM, Doc. 2). The Court consolidated the two actions on April 23, 2007 (Id. at Doc. 22).
Private Plaintiffs’ principal claims are that Walgreens discriminated against African
1 The Named Plaintiffs were John Tucker, Angela Miller, Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Traci Dansberry, Carlos Zimmerman, and Chris Dargin. Subsequently, Malica Page was dropped, and Kimberly Wafford added, as a Named Plaintiff. These Plaintiffs are referred to herein as “Private Plaintiffs.” Private Plaintiffs’ counsel have filed a motion to withdraw as counsel for Plaintiff Arien Jackson. That motion is resolved below.
Page 2 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 3 of 11
American retail store and pharmacy management employees by: (1) assigning African American employees in retail store and pharmacy management career path positions to stores in African American and/or low income neighborhoods on the basis of their race; (2) denying qualified African American employees promotions within the retail store and pharmacy management career path; and (3) denying African American employees compensation in those positions equal to white employees. Walgreens has denied all of Plaintiffs’ allegations of discrimination throughout the litigation.
The EEOC alleges that Walgreens engaged in a pattern and practice of discrimination against African Americans in the retail and pharmacy management career tracks by failing to promote them and by assigning them to particular stores based on their race.
Private Plaintiffs and Walgreens engaged in discovery during late 2005 and early 2006. In late June 2006, those parties jointly sought, and the Court granted, a stay of litigation proceedings to permit mediation (Docs. 77, 80). The parties resumed litigation in late August 2006 (Doc. 81). While continuing to litigate the case, Private Plaintiffs and Walgreens entered into mediated settlement discussions, with Hunter R. Hughes III as mediator. The EEOC joined those settlement discussions after its action against Walgreens was consolidated with Private Plaintiffs’ action. As a result of those negotiations, the parties reached the agreement contained in the proposed Consent Decree that has been presented to the Court, together with Private Plaintiffs’ unopposed Motion for Preliminary Approval of Consent Decree, Certification of Settlement Class, Designation of Class Representatives, Appointment of Class Counsel, Approval of Class Notice, and Scheduling of Fairness Hearing (the Preliminary Approval Motion) (Doc. 122) and with the EEOC’s unopposed Motion for Entry of Consent Decree (Doc. 123).
Having carefully reviewed the proposed Consent Decree, the Preliminary Approval Motion,
Page 3 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 4 of 11
the declaration in support of the Motion, the statements of counsel for the parties, and the entire record in this matter, and recognizing this Court’s duty to make a preliminary determination as to the reasonableness of any proposed class action settlement and to conduct a hearing on the fairness, adequacy, and reasonableness of a proposed class action settlement before making any final determination on the settlement, the Court is prepared to rule on the pending motions.
II. CONDITIONAL CLASS CERTIFICATION AND APPOINTMENT OF CLASS REPRESENTATIVES AND CLASS COUNSEL The Court conditionally finds that, within the meaning of Federal Rule of Civil Procedure 23(a), the Settlement Class is so numerous that joinder of all members is impracticable; there are questions of law and fact common to the Settlement Class; the claims of the class representatives are typical of the claims of the Settlement Class; and the class representatives will fairly and adequately protect the interests of the Settlement Class. Further, the Court conditionally finds that certification of this case as a class action is appropriate under Federal Rule of Civil Procedure 23(b)(2) and (b)(3). Specifically, certification of the injunctive aspects of the case is appropriate under Rule 23(b)(2), and certification of the damages aspects of the case is appropriate under Rule 23(b)(3). See Allen v. International Truck and Engine Corp., 358 F. 3d 469, 470-71 (7th Cir. 2004); Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894, 898-99 (7th Cir. 1999). These conditional findings are without prejudice to the parties taking contrary positions if the settlement is not finally approved. In that instance, the parties’ positions and the posture of the case will be as they existed prior to the submission of the proposed Consent Decree, as more specifically set forth in the Consent Decree. Accordingly, the Court hereby conditionally CERTIFIES, pursuant to Rule 23(b)(2) and (b)(3), the following Settlement Class:
Page 4 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 5 of 11
All African Americans who are or were employed by Walgreens in a Management Trainee, Executive Assistant Manager, Store Manager, Pharmacist, or Pharmacy Manager position (referred to as “Covered Positions”) for any length of time between June 20, 2001, and the Preliminary Approval Date (start and end dates inclusive).2
This certification is conditional pursuant to Rule 23(c)(1) and, as such, may be altered or amended
before a decision on the merits. Moreover, consistent with Rule 23(c)(2)(B), Settlement Class
members will have an opportunity to opt out of the monetary relief provisions provided by the
Consent Decree.
The Court hereby APPOINTS as Class Representatives: John Tucker, Angela Miller, Jovan
Haney, Leon Bradley, William Strickland, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Traci Dansberry, Carlos Zimmerman, and Chris Dargin.3
The Court hereby APPOINTS as Class Counsel: Foland, Wickens, Eisfelder, Roper &
Hofer, PC; the Spriggs Law Firm; and Goldstein, Demchak, Baller, Borgen & Dardarian. The Court
finds, pursuant to Rule 23(g), that Class Counsel have thoroughly investigated potential class claims,
have extensive experience in handling class actions and employment discrimination claims of the
type asserted in this action, and have committed substantial resources to representing the class.
III. MOTION TO WITHDRAW ARIEN JACKSON Private Plaintiffs’ counsel have filed a motion to withdraw as counsel for Plaintiff Arien
2The proposed Consent Decree specifically provides that the Settlement Class will close on the date of preliminary approval, but: “All African Americans who are hired by Walgreens in Covered Positions after the Preliminary Approval Date, may avail themselves of the nonmonetary equitable relief provided in the Decree but they shall not be entitled to any portion of the monetary relief provided in the Decree.” (Doc. 122, Ex. 1, p. 7.) Private Plaintiffs have not acknowledged this provision in their moving papers. Of course, if the Court finally approves the settlement and endorses the Consent Decree, the parties will be bound by it.
3The proposed settlement resolves Kimberly Wafford’s individual claims only; therefore, she does not seek appointment as a class representative.
Page 5 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 6 of 11
Jackson and seek an order that they “are no longer considered counsel of record for Mr. Jackson.” Arien Jackson was put forward as a representative Plaintiff in the Second Amended Complaint (see Doc. 86, ¶¶ 35, 40). However, according to their motion, counsel have been unable to contact Arien Jackson during the course of the settlement negotiations. Specifically, correspondence has been returned with no forwarding address, and Mr. Jackson’s telephone and cellular telephone numbers have been disconnected. Despite leaving messages with Mr. Jackson’s family and friends to return counsel’s calls to discuss the case, Mr. Jackson has failed to do so.
The proposed Consent Decree provides for incentive, or what the parties call “enhancement,” payments to the Class Representatives, Plaintiff Kimberly Wafford, Intervenor-Plaintiff Pearle Phillips, the “Charging Parties,” and “Class Members Individually Represented by Class Counsel” (Doc. 122, Ex. 1, Exs. D, E). There is no provision in the proposed Consent Decree for an incentive payment to Arien Jackson. Presumably, this is the reason that the motion has been filed as a motion to withdraw as counsel for Arien Jackson – so that he is not considered a class member individually represented by Class Counsel.
Private Plaintiffs’ counsel sought, and now have been granted, appointment as Class Counsel; therefore, they are not entitled to the relief they request. The Court cannot allow counsel to withdraw as Arien Jackson’s counsel but at the same time appoint them as Class Counsel. Arien Jackson remains a class member, and Class Counsel are obligated to represent him as such. Based on the allegations in counsel’s motion, Arien Jackson is not an adequate class representative, and he is WITHDRAWN as a Named Plaintiff in this action.
IV. PRELIMINARY APPROVAL OF PROPOSED CONSENT DECREE A district court may approve a settlement only if it is “fair, reasonable, and adequate,” and
Page 6 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 7 of 11
district courts must “exercise the highest degree of vigilance in scrutinizing proposed settlements of class actions.” Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 652 (7th Cir. 2006). The Court has carefully reviewed the proposed Consent Decree, together with the moving papers and supporting materials, and preliminarily finds it to be within the range of reasonableness of a settlement that ultimately could be given final approval by the Court. The Court preliminarily finds that the injunctive and monetary relief provided under the settlement is fair to all potential class members and further preliminarily finds that the amount provided under the settlement for Class Counsel’s fees and costs is fair and reasonable. At this time, it appears that the parties have conducted extensive investigation and discovery and sufficient litigation of the issues to allow counsel for the parties to make informed and reasonable assessments of their respective positions. It further appears that the settlement will avoid additional substantial litigation costs, as well as the delay, risk, and uncertainty further prosecution of the litigation would present. The proposed settlement appears to be the result of extensive, non-collusive, arm’s-length negotiations between experienced and well-qualified counsel, assisted by an experienced and well-qualified mediator. Therefore, the Court PRELIMINARILY APPROVES the proposed Consent Decree as fair, reasonable, and adequate.
V. APPROVAL OF CLASS NOTICE AND PROCEDURES The Court has reviewed the proposed Class Notice, which is attached as Exhibit 2 to the Motion for Preliminary Approval, and finds that the proposed Class Notice fairly and adequately advises the class of the terms of the proposed settlement and the process available to class members to obtain monetary relief provided by the settlement, the rights of class members to object to the settlement and/or to opt-out of the monetary relief provided by the settlement, and the rights of class
Page 7 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 8 of 11
members to appear before the Court at the Final Fairness Hearing. Settlement Class members may opt-out of the monetary relief provided by the settlement by mailing a notice of intent to opt-out. Such notice must be mailed to Tucker v. Walgreens Settlement Administrator, c/o Settlement Services, Inc., Post Office Box 10523, Tallahassee, Florida 32302-2523 and postmarked no later than thirty (30) days prior to the scheduled Final Fairness Hearing. Settlement Class Members may withdraw or rescind their notices of intent to opt-out by submitting a “rescission of opt-out” statement to the Settlement Administrator. To be effective, such notice must be received by the Settlement Administrator no later than ten (10) days prior to the scheduled Final Fairness Hearing. The Court further finds that the proposed distribution of the Class Notice by first-class mail to each identified class member at his/her last known address, including a database search for additional addresses and re-mailing of any initially undeliverable notices, is reasonable, fair, and adequate, and comports with due process.
Accordingly, the Court APPROVES the Notice presented by the parties, including the methods and time periods for giving notice and permitting class members to opt-out of the settlement and/or object to the settlement, with the following modifications to be made:
1. Edit the style of the case to reflect the style used for this Memorandum and Order, except that Arien Jackson shall be removed as a Named Plaintiff;
2. Complete the dates left blank for preliminary approval and final fairness hearing; 3. “Covered Position” shall be made plural under Section V.A.1 on Page 4; 4. Change “Settlement Award Form” to “Estimated Settlement Amount Form” in
Section V.B.2. 5. Complete the final sentence of Section VI to include the Settlement Administrator’s
address and the specific location where the Release language can be found on the website;
Page 8 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 9 of 11
6. Add the following at the end of Section VII.B: Settlement Class Members may withdraw or rescind their notices of intent to opt-out by submitting a “Rescission of opt-out” statement to the Settlement Administrator. Your written “Rescission of optout” statement must be signed by you, received by the Settlement Administrator (at the address listed in Section XII below) no later than ten (10) days prior to March 24, 2008 (the date of the Final Fairness Hearing), and must include the following language:
“I previously submitted an Opt-out statement seeking exclusion from the class monetary settlement. I have reconsidered and wish to withdraw my Opt-out statement. I understand that by rescinding my Opt-out statement I may be eligible to receive an award from the claims settlement fund and may not bring a separate legal action against Walgreens seeking damages.”
7. In Section IX, complete the dates by which (i) class members must send to the Settlement Administrator their notice of intention to present evidence or appear through a lawyer at the Final Fairness Hearing and (ii) any attorney seeking to represent a class member must file a Notice of Appearance;
8. Delete “East St. Louis Division” from Page 14 of the Notice.
With respect to the Estimated Settlement Amount Form, the following modifications shall
be made:
1. Complete the blank left for the date to close the Class Period;
2. Change on Page 1 “Notice of Settlement of Class Action [check document title]” to “Notice of Class Action and Proposed Settlement”;
3. Complete the blank before “sections” on Page 2;
4. Complete on Page 3 the date that corrections or challenges must be returned to the Settlement Administrator.
VI. FINAL FAIRNESS HEARING
A Final Fairness Hearing is SCHEDULED for March 24, 2008, at 1:30 p.m. in the United
States District Courthouse, East St. Louis, Illinois, to determine whether the proposed Consent
Decree shall be given final approval by the Court. Settlement Class members who object to the
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Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 10 of 11
proposed settlement may appear, in person or through counsel, at the Final Fairness Hearing and present such objections, provided that the objecting class member submits a written statement containing his/her name and address and the basis of his/her objections, together with a notice of intention to appear, if appropriate. Such statement must be mailed to the Settlement Administrator, c/o Settlement Services, Inc., Post Office Box 10523, Tallahassee, Florida 32302-2523 and postmarked no later than thirty (30) days prior to the scheduled Final Fairness Hearing. No member of the Settlement Class or his/her counsel will be heard, nor will any objection be received or considered, except for good cause shown, if the Settlement Class member or his/her counsel fails to timely submit the objection in writing in the manner prescribed above.
Class Counsel shall file Plaintiffs’ memorandum in support of the settlement, responses to any objections, and papers supporting the proposed award of attorneys’ fees and costs, including evidentiary support therefore, no later than one week before the Final Fairness Hearing.
Counsel for Walgreens also may file a memorandum in support of the settlement no later than the date set for Plaintiffs’ submission.
In their papers supporting final approval of the settlement, the parties are DIRECTED to specifically address the factors set out by the Seventh Circuit Court of Appeals in the Synfuel case. 463 F.3d at 653. Furthermore, the parties shall present evidence to enable this Court to analyze such factors in the manner prescribed in Synfuel. Id.
The EEOC’s Motion for Entry of Consent Decree is UNDER ADVISEMENT pending the Court’s decision on final approval after the Final Fairness Hearing.
VII. CONCLUSION For the foregoing reasons, the Preliminary Approval Motion (Doc. 122) is GRANTED. The
Page 10 of 11

Case 3:05-cv-00440-GPM-CJP Document 125 Filed 10/05/2007 Page 11 of 11 motion to withdraw as counsel for Arien Jackson (Doc. 124), construed by the Court as a motion to withdraw Arien Jackson as a Named Plaintiff, is GRANTED in part and DENIED in part, and Arien Jackson is WITHDRAWN as a Named Plaintiff. The EEOC’s Motion for Entry of Consent Decree (Doc. 123) is UNDER ADVISEMENT.
IT IS SO ORDERED. DATED: 10/05/07
s/ G. Patrick Murphy
G. Patrick Murphy United States District Judge
Page 11 of 11

 
 Case 3:05-cv-00440-GPM-CJP Document 138 Filed 08/11/11 Page 1 of 5 Page ID #2830

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

JOHN TUCKER, ANGELA MILLER,

)

JOVAN HANEY, LEON BRADLEY, ARIEN )

JACKSON, WILLIAM STRICKLAND,

)

OSCAR GREEN, MIKE JACKSON, KEVIN )

RIDDLE, AVERY ANDERSON, TRACI

)

DANSBERRY, CARLOS ZIMMERMAN,

)

CHRIS DARGIN and KIMBERLY WAFFORD ) CASE NO. 05-CV-440-GPM

on behalf of themselves and others

) consolidated with 07-cv-00172

similarly situated,

)

) Chief Judge G. Patrick Murphy

Plaintiffs,

) Magistrate Clifford J. Proud

)

and EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION and PEARLE PHILLIPS,

)

)

Plaintiffs,

)

v.

)

)

WALGREEN COMPANY,

)

)

Defendant.

)

JOINT MOTION FOR ENTRY OF ORDER NECESSARY TO IMPLEMENT RELIEF UNDER CONSENT DECREE

The parties hereby jointly file this Motion for Entry of Order Necessary to Implement

Relief Under their Consent Decree. In support of their Motion, the parties state as follows:

1. On June 20, 2005, fourteen African American current and former employees of

Walgreens filed a complaint on behalf of themselves and a class of current and former African

American employees, alleging that they had been subject to race discrimination under 42 U.S.C.

Section 1981. [Doc. 1]. The Complaint was later amended to include Title VII claims. [Doc.

86]. On March 7, 2007, the Equal Employment Opportunity Commission filed a complaint,

alleging that Walgreens engaged in a pattern and practice of race discrimination against African

American retail and pharmacy store management employees in violation of Title VII. [Case No.

1

Case 3:05-cv-00440-GPM-CJP Document 138 Filed 08/11/11 Page 2 of 5 Page ID #2831
3:07-cv-00172, Doc. 2]. The Court consolidated the two actions on April 23, 2007 (Case No. 3:07-cv-00172, Doc. 22].
2. On July 12, 2007, the parties submitted a proposed Consent Decree to the Court for approval [Doc. 122], and this Court granted preliminary approval to the settlement on October 5, 2007. [Doc. 125]. Following a fairness hearing, this Court granted final approval to the settlement on March 24, 2008. [Doc. 135].
3. Pursuant to the terms of the Decree, Settlement Services, Inc. (“SSI”) served as the Settlement Administrator. SSI was charged with opening an interest-bearing account, and making payments to class members from that account. SSI opened a Qualified Settlement Fund (“QSF”) for this purpose.
4. During the settlement administration process, SSI agreed that it, through the QSF, would calculate, prepare and file the unemployment compensation taxes on the class members’ settlement awards. In exchange, Walgreens agreed to reimburse the QSF for the taxes and any related administrative costs.
5. Upon information and belief, the unemployment taxes were paid by the QSF in mid to late 2008. However, Walgreens has only recently been advised by SSI that the QSF did not receive any reimbursement from Walgreens for these unemployment compensation taxes.
6. The QSF for this settlement has been dissolved and closed. Thus, the parties have consulted regarding how Walgreens should make the reimbursement for unemployment taxes. Section XI. D. 17 of the Decree provides that any remaining undistributed sums should be redistributed to make any additional payments to Class Members occasioned by any errors or omissions. Thus, the parties propose that Walgreens should apply the reimbursement funds to pay the amounts due to those “late” class members whose shares were not previously paid out
2

Case 3:05-cv-00440-GPM-CJP Document 138 Filed 08/11/11 Page 3 of 5 Page ID #2832
because the class members did not surface until after the disbursement of all of the settlement funds.1
7. Because the QSF has closed, the parties suggest that Walgreens make these class member payments directly to the class members, using the addresses provided by SSI. This process, however, differs from that approved by the Court in the parties’ Decree, and therefore, the parties seek this Court’s approval to proceed.
8. Pursuant to Section VI. A. of the Decree, the provisions of the Decree are remain in effect for a period of five (5) years from the approval date, unless Walgreens files a motion to be relieved of the provisions of the Decree following the expiration of four (4) years from the approval date. Further, pursuant to Section VI. D. of the Consent Decree, “the Court shall retain jurisdiction of this action during the Term of the Decree for the purpose of entering all orders authorized hereunder, which may be necessary to implement the relief provided herein or to enforce the Decree.”
9. Therefore, in light of the above, the parties request this Court to enter the attached Order, permitting Walgreens to make payments to class members directly, outside of the structure of the Qualified Settlement Fund.
1 The parties have further agreed that Walgreens will use the remainder of the reimbursement funds to defray a portion of Walgreens' payroll tax obligations on class member payments, and will apply any additional remainder as part of its scheduled donation to the cy pres beneficiary agreed upon by the parties.
3

Case 3:05-cv-00440-GPM-CJP Document 138 Filed 08/11/11 Page 4 of 5 Page ID #2833

Respectfully submitted,

s/Teresa Demchak (w/permission) One of the Attorneys for Plaintiffs

s/Shanthi V. Gaur One of the Attorneys for Defendant

Teresa Demchak Morris J. Baller Joseph E. Jaramillo GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534

Keith C. Hult Allan G. King Shanthi V. Gaur LITTLER MENDELSON, P.C. 321 South Clark Street, Suite 1000 Chicago, IL 60654 Telephone: (312) 372-5520 Lead Counsel

Thomas Peters Curt R. Picou GUNDLACH LEE EGGMANN
BOYLE & ROESSLER 5000 West Main St. P.O. Box 23560 Belleville, IL 62223-0560 Local Counsel

s/Jean P. Kamp (w/permission) One of the Attorneys for the Equal Employment Opportunity Commission

Jean P. Kamp Chicago District Office EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2000 Chicago, IL 60661

Andrea G. Baran Supervisory Trial Attorney Phoenix District Office EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 3300 North Central, Suite 690 Phoenix, AZ 85012-2504

Dated: August 11, 2011

4

Case 3:05-cv-00440-GPM-CJP Document 138 Filed 08/11/11 Page 5 of 5 Page ID #2834

CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that a copy of the foregoing pleading was served upon the following attorneys of record electronically with the Clerk of Court using the CM/ECF system, which sent notification of such filing on August 11, 2011:

Andrea G. Baran Equal Employment Opportunity Commission Email: andrea.baran@eeoc.gov

Jean P. Kamp Equal Employment Opportunity Commission Email: jean.kamp@eeoc.gov

Teresa Demchak

Tiffany B. Klosener

Morris J. Baller

Amy L. Coopman

Joseph E. Jaramillo

W. James Foland

Goldstein, Demchak, Baller, Borgen & Foland, Wickens, Eisfelder, Roper &

Dardarian

Hofer, P.C.

Email: dem@gdblegal.com

Email: tklosener@fwpclaw.com

mjb@gdblegal.com

acoopman@fwpclaw.com

jej@gdblegal.com

jfoland@fwpclaw.com

s/ Shanthi V. Gaur

5

 
 Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 1 of 23
CJRA_D,CLOSED,JMP2,LEADCS
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:05−cv−00440−GPM−CJP

Tucker et al v. Walgreen Company Assigned to: Judge G. Patrick Murphy Referred to: Magistrate Judge Clifford J. Proud Cause: 42:1981 Civil Rights
Plaintiff
John Tucker

Date Filed: 06/20/2005 Date Terminated: 03/24/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Amy L. Coopman Foland, Wickens et al. 911 Main Suite 3000 Kansas City, MO 64105 816−472−7474 Fax: 816−472−6262 Email: acoopman@fwpclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo Goldstein, Demchak et al. 300 Lakeside Drive Suite 1000 Oakland, CA 94612−3534 510−763−9800 Email: jej@gdblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs Spriggs Law Firm 324 West College Avenue Tallahassee, FL 32301−1406 850−224−8700 Fax: 850−224−8836 Email: kspriggs@spriggslawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller Goldstein, Demchak et al. 300 Lakeside Drive Suite 1000 Oakland, CA 94612−3534 510−763−9800 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith Barnes Law Firm LLC 1100 Main Street Suite 2300 Kansas City, MO 64105−5187 816−221−4321 Fax: 816−471−4321 Email: tksmith@law4321.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 2 of 23

Teresa Demchak Goldstein, Demchak et al. 300 Lakeside Drive Suite 1000 Oakland, CA 94612−3534 510−763−9800 Email: dem@gdblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener Foland, Wickens et al. 911 Main Suite 3000 Kansas City, MO 64105 816−472−7474 Fax: 816−472−6262 Email: tklosener@fwpclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland Foland, Wickens et al. 911 Main Suite 3000 Kansas City, MO 64105 816−472−7474 Fax: 816−472−6262 Email: jfoland@fwpclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement Foland, Wickens et al. 911 Main Suite 3000 Kansas City, MO 64105 816−472−7474 Fax: 816−472−6262 Email: welliot@fwpclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Angela Miller

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 3 of 23

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jovan Haney

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 4 of 23

ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Leon Bradley

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Arien Jackson

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 5 of 23

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff William Strickland

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 6 of 23

ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Oscar Green

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 7 of 23

Mike Jackson

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kevin Riddle

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 8 of 23

ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Avery Anderson

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 9 of 23

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Malica Page

represented by Amy L. Coopman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent Spriggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. James Foland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Traci Dansberry

represented by Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 10 of 23

ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Chris Dargin

represented by Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Carlos Zimmerman

represented by Joseph E. Jaramillo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tequiero T. K. M. Smith (See above for address)

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 11 of 23

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendee N. Elliott−Clement (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany B. Klosener (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Equal Employment Opportunity Commission

represented by Andrea G. Baran Equal Employment Opportunity Commission − Kansas City 400 State Avenue Suite 905 Kansas City, KS 66101 913−551−5848 Email: andrea.baran@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara A. Seely Equal Employment Opportunity Commission − St. Louis, MO 1222 Spruce Street Room 8.100 St. Louis, MO 63103 314−539−7800 Email: barbara.seely@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean P. Kamp Equal Employment Opportunity Commission − Minneaplolis, MN 330 SEcond Ave. South Suite 720 Minneapolis, MN 55401 312−353−7719 Fax: (312) 353−8555 Email: jean.kamp@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nora E. Curtin LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G. Johnson Equal Employment Opportunity Commission − St. Louis, MO 1222 Spruce Street Room 8.100 St. Louis, MO 63103 314−539−7915 Email: robert.johnson@eeoc.gov

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 12 of 23
TERMINATED: 10/09/2007 LEAD ATTORNEY

V. Intervenor Plaintiff Pearle Phillips

represented by JoDee Favre Favre Law Office, LLC 5005 West Main Street Belleville, IL 62226 618−257−8605 Email: jfavre@favrelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Walgreen Company

represented by Allan G. King Littler, Mendelson et al. − TX 2001 Ross Avenue Suite 1500 Dallas, TX 75201 214−880−8100 Email: aking@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Schaefer Ramsey Littler Mendelson − Chicago 321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 Fax: 312−372−7880 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Curtis R. Picou Crivello Carlson Picou & Andrekanic LLC Generally Admitted 1012 Plummer Drive Suite 201 Edwardsville, IL 62025 618−655−0006 Fax: 618−655−0250 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Ybarra Littler Mendelson − Chicago 321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 Fax: 312−372−7880 Email: jybarra@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith C. Hult Littler Mendelson − Chicago

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 13 of 23
321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 Email: khult@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret P. Hogan Littler Mendelson − Chicago 321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 Fax: 312−372−7880 Email: mphogan@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul E. Bateman Littler Mendelson − Chicago 321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 Fax: 312−372−7880 Email: pbateman@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shanthi V. Gaur Littler Mendelson − Chicago 321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 Fax: 312−372−7880 Email: sgaur@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. Peters Boyle Brasher LLC − Belleville 5000 West Main Street Post Office Box 23560 Belleville, IL 62223−0560 618−277−9000 Email: tpeters@boylebrasher.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel F. Barner Littler Mendelson − Chicago 321 North Clark Street Suite 1000 Chicago, IL 60654 312−372−5520 TERMINATED: 04/20/2006

Date Filed 06/20/2005

# Docket Text
1 COMPLAINT against Walgreen Company (Filing fee $250, receipt number 300 105652), filed by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 14 of 23

06/20/2005
06/20/2005
06/20/2005
06/22/2005 06/30/2005 07/07/2005 07/07/2005 07/07/2005
07/26/2005 08/01/2005 08/03/2005 08/05/2005 08/05/2005 08/05/2005 08/05/2005

Page, and Angela Miller. (Attachments: # 1 Civil Cover Sheet)(lmb) (Entered: 06/21/2005)
2 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Tiffany B. Klosener for Arien Jackson; William Strickland; John Tucker; Oscar Green; Mike Jackson; Kevin Riddle; Avery Anderson; Malica Page; Angela Miller; Jovan Haney and Leon Bradley. ($100.00 fee paid, receipt number 300 105653) (lmb) (Entered: 06/21/2005)
3 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Kent Spriggs for Arien Jackson; William Strickland; John Tucker; Oscar Green; Mike Jackson; Kevin Riddle; Avery Anderson; Malica Page; Angela Miller; Jovan Haney and Leon Bradley. ($100 fee paid, receipt number 300 105653) (lmb) (Entered: 06/21/2005)
4 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Amy L. Coopman for Arien Jackson; William Strickland; John Tucker; Oscar Green; Mike Jackson; Kevin Riddle; Avery Anderson; Malica Page; Angela Miller; Jovan Haney and Leon Bradley. ($100 fee paid, receipt number 300 105653) (lmb) (Entered: 06/21/2005)
5 Letter regarding PHV sent to Attorney W. James Foland. (lmb) (Entered: 06/22/2005)
6 CJRA TRACK D assigned: Jury Trial set for presumptive month of 6/2007 in East St. Louis Court House before Chief Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 6/30/05. (lmc) (Entered: 06/30/2005)
7 REQUEST FOR WAIVER of Service sent to Defendant Walgreen on June 21, 2005 by John Tucker. Waiver of Service due by 7/21/2005. (Coopman, Amy) (Entered: 07/07/2005)
8 WAIVER OF SERVICE Returned Executed by Walgreen Company. Walgreen Company waiver sent on 6/30/2005, answer due 8/29/2005. (Coopman, Amy) (Entered: 07/07/2005)
9 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney W. James Foland for Arien Jackson; William Strickland; John Tucker; Oscar Green; Mike Jackson; Kevin Riddle; Avery Anderson; Malica Page; Angela Miller; Jovan Haney and Leon Bradley. $100.00 fee paid, receipt number 300 105892 (jmp) (Entered: 07/12/2005)
10 NOTICE of Scheduling and Discovery Conference: Telephone Scheduling/Discovery Conference set for 8/22/2005 at 9:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (amv) (Entered: 07/26/2005)
11 AMENDED COMPLAINT against Walgreen Company, filed by Traci Dansberry, Chris Dargin, Carlos Zimmerman, Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller.(Klosener, Tiffany) (Entered: 08/01/2005)
12 NOTICE of Appearance by Thomas R. Peters on behalf of Walgreen Company (Peters, Thomas) (Entered: 08/03/2005)
13 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Shanthi V. Gaur for Walgreen Company. $100.00 fee paid, receipt number 300 106540. (jmp) (Entered: 08/08/2005)
14 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney John A. Ybarra for Walgreen Company. $100.00 fee paid, receipt number 300 106540 (jmp) (Entered: 08/08/2005)
15 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Allan G. King for Walgreen Company. $100.00 fee paid, receipt number 300 106540 (jmp) (Entered: 08/08/2005)
16 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Paul E. Bateman for Walgreen Company. $100.00 fee paid, receipt number 300 106540. (jmp) (Entered: 08/08/2005)

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 15 of 23

08/05/2005 08/10/2005 08/10/2005 08/10/2005 08/10/2005 08/11/2005 08/12/2005
08/12/2005 08/16/2005 08/16/2005 08/19/2005
08/19/2005
08/19/2005
08/22/2005 08/22/2005 08/22/2005 08/22/2005

17 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Keith C. Hult for Walgreen Company. $100.00 fee paid, receipt number 300 106540 (jmp) (Entered: 08/08/2005)
18 DOCKET ENTRY STRICKEN − NOTICE of Appearance by Curtis R. Picou on behalf of Walgreen Company (Picou, Curtis) (Entered: 08/10/2005)
19 MOTION to Continue Scheduling and Discovery Conference by Walgreen Company. (Picou, Curtis) (Entered: 08/10/2005)
20 MOTION for Extension of Time to File Answer re 1 Complaint, or Otherwise Plead by Walgreen Company. (Picou, Curtis) (Entered: 08/10/2005)
21 Corporate Disclosure Statement by Walgreen Company. (Picou, Curtis) (Entered: 08/10/2005)
22 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 18 Notice of Appearance filed by Walgreen Company. See attached document for specifics. (jmp) (Entered: 08/11/2005)
23 RESPONSE to 19 Motion to Continue Scheduling and Discovery Conference filed by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin, Carlos Zimmerman. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Klosener, Tiffany) (Entered: 08/12/2005)
24 REPLY to Response to Motion re 19 MOTION to Continue Scheduling and Discovery Conference filed by Walgreen Company. (Attachments: # 1 Exhibit Correspondence to Kent Spriggs)(Picou, Curtis) (Entered: 08/12/2005)
25 ORDER denying 19 Motion to Continue Telephone Scheduling and Discovery Conference. Signed by Judge Clifford J. Proud on 8/16/05. (dmw) (Entered: 08/16/2005)
26 ORDER granting 20 Motion for Extension of Time to 9/2/05 to Answer . Signed by Judge Clifford J. Proud on 8/16/05. (dmw) (Entered: 08/16/2005)
27 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Morris J. Baller for Plaintiffs Arien Jackson; William Strickland; John Tucker; Oscar Green; Mike Jackson; Kevin Riddle; Avery Anderson; Malica Page; Angela Miller; Traci Dansberry; Chris Dargin; Carlos Zimmerman; Jovan Haney and Leon Bradley. $100.00 fee paid,receipt number 300 106898 (trb) (Entered: 08/22/2005)
28 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Teresa Demchak for Plaintiffs Arien Jackson; William Strickland; John Tucker; Oscar Green; Mike Jackson; Kevin Riddle; Avery Anderson; Malica Page; Angela Miller; Traci Dansberry; Chris Dargin; Carlos Zimmerman; Jovan Haney and Leon Bradley. $100.00 fee paid,receipt number 300 106898. (trb) (Entered: 08/22/2005)
29 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Joseph E. Jaramillo for Plaintiffs Arien Jackson; William Strickland; John Tucker; Oscar Green; Mike Jackson; Kevin Riddle; Avery Anderson; Malica Page; Angela Miller; Traci Dansberry; Chris Dargin; Carlos Zimmerman; Jovan Haney and Leon Bradley. $100.00 fee paid,receipt number 300 106898. (trb, ) (Entered: 08/22/2005)
30 NOTICE of Appearance by Rachel F. Barner on behalf of Walgreen Company (Barner, Rachel) (Entered: 08/22/2005)
31 NOTICE by Walgreen Company re 30 Notice of Appearance Amended Notice of Service (Barner, Rachel) (Entered: 08/22/2005)
32 Minute Entry for proceedings held before Judge Clifford J. Proud : Scheduling Conference held on 8/22/2005. Written Order to follow. (Court Reporter n/a.) (amv) (Entered: 08/22/2005)
33 ORDER Discovery due by 2/6/2007. Dispositive Motions due by 2/21/2007. Telephone Status Conference set for 2/17/2006 at 9:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. Signed by Judge Clifford J. Proud on 8/22/05. (Attachments: # 1 Joint Report)(amv) (Entered: 08/22/2005)

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 16 of 23

09/01/2005 09/02/2005 09/02/2005 10/28/2005
11/14/2005 11/18/2005 11/22/2005
12/07/2005 12/07/2005 12/07/2005 12/07/2005 12/07/2005 12/08/2005
12/09/2005 12/12/2005 12/12/2005 12/15/2005 12/16/2005

34 ENTRY STRICKEN: NOTICE by plaintiffs of Service of Rule 26 Disclosures (Coopman, Amy) Modified on 9/2/2005 (dmw). (Entered: 09/01/2005)
35 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 34 Notice filed by plaintiffs. See attached document for specifics (dmw) (Entered: 09/02/2005)
36 ANSWER to Amended Complaint by Walgreen Company.(Barner, Rachel) (Entered: 09/02/2005)
37 MOTION to Compel by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21)(Klosener, Tiffany) (Entered: 10/28/2005)
38 RESPONSE to 37 Motion to Compel, filed by Walgreen Company. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Hult, Keith) (Entered: 11/14/2005)
39 REPLY to Response to Motion re 37 MOTION to Compel filed by John Tucker. (Attachments: # 1 Exhibit Exhs A−B# 2 Exhibit Exhs C−E# 3 Exhibit Exhs F−G)(Demchak, Teresa) (Entered: 11/18/2005)
40 ORDER granting in part and denying in part 37 Motion to Compel. Parties shall submit proposed protective order by 12/10/05. If no action is taken by 12/13/05, defendant WalGreens shall produce documents in accordance with this Order. Signed by Judge Clifford J. Proud on 11/22/05. (amv) (Entered: 11/22/2005)
41 OBJECTION to 40 Order on Motion to Compel, by Walgreen Company. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Hult, Keith) (Entered: 12/07/2005)
42 MOTION for Hearing re 41 Objection to Magistrate Judge's November 22, 2005 Order by Walgreen Company. (Hult, Keith) (Entered: 12/07/2005)
43 MOTION to Stay re 40 Order on Motion to Compel, by Walgreen Company. (Hult, Keith) (Entered: 12/07/2005)
44 MOTION to Compel Discovery Responses by Walgreen Company. (Hult, Keith) (Entered: 12/07/2005)
45 MEMORANDUM in Support re 44 MOTION to Compel Discovery Responses filed by Walgreen Company. (Hult, Keith) (Entered: 12/07/2005)
46 EXHIBIT by Walgreen Company. Exhibit to 45 Memorandum in Support of Motion, 44 Motion to Compel (Appendix of Exhibits). (Attachments: # 1 Exhibit 1 part 1# 2 Exhibit 1 part 2# 3 Exhibit 1 part 3# 4 Exhibit 2A part 1# 5 Exhibit 2A part 2# 6 Exhibit 2A part 3# 7 Exhibit 2A part 4# 8 Exhibit 2B part 1# 9 Exhibit 2B part 2# 10 Exhibit 2C part 1# 11 Exhibit 2C part 2# 12 Exhibit 3# 13 Exhibit 4# 14 Exhibit 5# 15 Exhibit 6 part 1# 16 Exhibit 6 part 2# 17 Exhibit 7)(Hult, Keith) (Entered: 12/08/2005)
47 ORDER DENYING 43 MOTION to Stay re 40 Order on Motion to Compel filed by Walgreen Company. Signed by Chief Judge G. Patrick Murphy on 12/9/2005. (ssd) (Entered: 12/09/2005)
48 MEMORANDUM in Opposition re 42 MOTION for Hearing re 41 Objection to Magistrate Judge's November 22, 2005 Order filed by John Tucker. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Demchak, Teresa) (Entered: 12/12/2005)
49 MOTION for Protective Order (Agreed to by the Parties) by Walgreen Company. (Attachments: # 1 Exhibit Agreed Protective Order)(Hult, Keith) (Entered: 12/12/2005)
50 NOTICE OF ERRORS AND/OR DEFICIENCIES re 49 Motion for Protective Order filed by Walgreen Company. See attached document for specifics (jmp) (Entered: 12/15/2005)
51 ORDER denying 49 Motion for Protective Order. Signed by Judge Clifford J. Proud on 12/16/05. (amv) (Entered: 12/16/2005)

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 17 of 23

12/19/2005
12/20/2005
12/20/2005 12/27/2005 12/27/2005 12/27/2005 01/06/2006
01/13/2006 02/09/2006 02/17/2006
02/23/2006
02/23/2006 02/23/2006 03/09/2006 03/27/2006 03/28/2006 04/03/2006

52 REPLY to Response to Motion re 42 MOTION for Hearing re 41 Objection to Magistrate Judge's November 22, 2005 Order and in Support of Defendant's Objection to Magistrate Judge's November 22, 2005 Order filed by Walgreen Company. (Attachments: # 1 Exhibit 1)(Hult, Keith) (Entered: 12/19/2005)
53 ORDER: DENYING 42 MOTION for Hearing re 41 Objection to Magistrate Judge's November 22, 2005 Order filed by Walgreen Company. Mag/Judge Proud's 11/22/05 Order is AFFIRMED. Signed by Judge G. Patrick Murphy on 12/19/05. (lmc) (Entered: 12/20/2005)
54 MEMORANDUM in Opposition re 44 MOTION to Compel Discovery Responses filed by John Tucker. (Attachments: # 1 Exhibit 1−3 with Index)(Jaramillo, Joseph) (Entered: 12/20/2005)
55 REPLY to Response to Motion re 44 MOTION to Compel Discovery Responses filed by Walgreen Company. (Hult, Keith) (Entered: 12/27/2005)
56 MOTION for Protective Order (Amended) by Walgreen Company. (Hult, Keith) (Entered: 12/27/2005)
57 MEMORANDUM in Support re 56 MOTION for Protective Order (Amended) filed by Walgreen Company. (Attachments: # 1 Exhibit Affidavits of Alex Siskos and Kurt Steffen)(Hult, Keith) (Entered: 12/27/2005)
58 MEMORANDUM in Opposition re 56 MOTION for Protective Order (Amended) filed by John Tucker. (Attachments: # 1 Affidavit Ex 1# 2 Exhibit 2# 3 Exhibit 2A# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 5A# 8 Exhibit 6# 9 Exhibit 7# 10 Affidavit Ex. 8)(Klosener, Tiffany) (Entered: 01/06/2006)
59 REPLY to Response to Motion re 56 MOTION for Protective Order (Amended) filed by Walgreen Company. (Attachments: # 1 Exhibit 1)(Hult, Keith) (Entered: 01/13/2006)
60 ORDER granting 56 Motion for Protective Order. Signed by Judge Clifford J. Proud on 2/8/06. (Attachments: # 1 Protective Order) (amv) (Entered: 02/09/2006)
61 Minute Entry for proceedings held before Judge Clifford J. Proud : Telephone Status Conference held on 2/17/2006. (Court Reporter n/a.) (amv)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/17/2006)
62 MOTION for Extension of Time to Challenge or Otherwise Respond to Defendant's Confidential Designations by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin, Carlos Zimmerman. (Klosener, Tiffany) (Entered: 02/23/2006)
63 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Tequiero M. Smith for Jovan Haney and Leon Bradley. $100.00 fee paid, receipt number 300 110366. (lmb) (Entered: 02/27/2006)
64 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Wendee N. Elliott−Clement for Jovan Haney and Leon Bradley. $100.00 fee paid, receipt number 300 110366. (lmb) (Entered: 02/27/2006)
65 ORDER granting 62 Motion for Extension of Time to challenge defendant's confidential designation up to 4/21/06. Signed by Judge Clifford J. Proud on 3/9/06. (amv) (Entered: 03/09/2006)
66 Joint MOTION for Extension of Time To Extend Deadlines In The Joint Report of the Parties by John Tucker. (Klosener, Tiffany) (Entered: 03/27/2006)
67 ORDER granting 66 Motion for Extension of Time. Telephone status conference set 6/29/06 at 10:00 am before Mag/Judge Proud. Signed by Judge Clifford J. Proud on 3/28/06. (amv) (Entered: 03/28/2006)
68 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Margaret P. Hogan for Walgreen Company. $100.00 fee paid, receipt number 300 111138. (lmb) (Entered: 04/04/2006)

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 18 of 23

04/19/2006 04/20/2006 04/21/2006
04/24/2006
05/05/2006
05/09/2006 05/12/2006
05/12/2006
06/29/2006 06/29/2006
06/29/2006 06/30/2006 09/01/2006

69 MOTION to Withdraw as Attorney (Rachel F. Barner) by Walgreen Company. (Hogan, Margaret) (Entered: 04/19/2006)
70 ORDER granting 69 Motion to Withdraw as Attorney. Attorney Rachel F. Barner terminated. Signed by Judge Clifford J. Proud on 4/20/06. (amv) (Entered: 04/20/2006)
71 MOTION for Leave to File Second Amended Complaint by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin, Carlos Zimmerman. (Attachments: # 1 Exhibit # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10)(Klosener, Tiffany) (Entered: 04/21/2006)
72 NOTICE OF ERRORS AND/OR DEFICIENCIES re 71 Motion for Leave to File, filed by John Tucker, Angela Miller, Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Traci Dansberry, Chris Dargin, and Carlos Zimmerman. See attached document for specifics. (jmp) (Entered: 04/24/2006)
73 RESPONSE in Opposition re 71 MOTION for Leave to File Second Amended Complaint filed by Walgreen Company. (Attachments: # 1 Exhibit 1: Page Deposition Excerpts# 2 Exhibit 2: Wafford Charge# 3 Exhibit 3: Wafford application# 4 Exhibit 4: Management Trainee Job Description# 5 Exhibit 5−Part I: Plaintiffs' Charges# 6 Exhibit 5−Part II − Plaintiffs' Charges# 7 Exhibit 6: Determination)(Gaur, Shanthi) (Entered: 05/05/2006)
74 MOTION for Leave to File /Submit Supplemental Authority by Walgreen Company. (Attachments: # 1 Exhibit A: Pacheco v. Norman Mineta opinion)(Gaur, Shanthi) (Entered: 05/09/2006)
75 MOTION for Leave to File Excess Pages re Reply in Support of Motion for Leave to File Second Amended Complaint by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin, Carlos Zimmerman. (Baller, Morris) (Entered: 05/12/2006)
76 REPLY to Response to Motion re 71 MOTION for Leave to File Second Amended Complaint filed by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin, Carlos Zimmerman. (Attachments: # 1 Exhibit Walford Decl.)(Baller, Morris) (Entered: 05/12/2006)
77 JOINT ORAL MOTION to Stay for 60 days by plaintiffs and defendant. (amv) (Entered: 06/29/2006)
78 Minute Entry for proceedings held before Judge Clifford J. Proud : Telephone Status Conference held on 6/29/2006. Representatives: Amy Coopman as principal counsel for plaintiffs; John Ybarra as principal counsel for defendant. 77 MOTION to Stay taken underadvisement. (Court Reporter n/a.)(amv) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/29/2006)
79 ORDER finding as moot 44 Motion to Compel. Signed by Judge Clifford J. Proud on 6/29/06. (amv) (Entered: 06/29/2006)
80 ORDER, Granting 77 JOINT MOTION to Stay Status Conference set for 9/1/2006 10:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. Signed by Judge Clifford J. Proud on 6/30/06. (amv) (Entered: 06/30/2006)
81 Minute Entry for proceedings held before Judge Clifford J. Proud : Telephone Status Conference held on 9/1/2006. Representatives: Tiffany Klosener as principal counsel for plaintiffs: John Ybarra as principal counsel for defendant. The Parties advise that the case has not been resolved. Plaintiffs orally move to lift the stay. The Court grants the motion to lift the stay. (Court Reporter n/a.) (amv) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/01/2006)

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 19 of 23

09/06/2006
09/06/2006 09/14/2006
09/15/2006 09/22/2006 10/06/2006 10/06/2006 10/06/2006
10/12/2006
10/25/2006 10/26/2006 10/27/2006 10/27/2006
11/08/2006 11/08/2006 11/09/2006

82 ORDER granting 71 Motion for Leave to File, denying as moot 74 Motion for Leave to File, denying as moot 75 Motion for Leave to File Excess Pages. Signed by Judge Clifford J. Proud on 9/6/06. Second Amended Complaint to 9/15/06. (amv) (Entered: 09/06/2006)
83 ORDER Telephone Status Conference set for 11/15/2006 10:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. Signed by Judge Clifford J. Proud on 9/6/06. (amv) (Entered: 09/06/2006)
84 Joint MOTION for Extension of Time by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin. (Klosener, Tiffany) (Entered: 09/14/2006)
85 ORDER granting 84 Motion for Extension of Time. Second Amended Complaint due 9/22/06. Signed by Judge Clifford J. Proud on 9/15/06. (amv) (Entered: 09/15/2006)
86 AMENDED COMPLAINT Second against Walgreen Company, filed by John Tucker.(Klosener, Tiffany) (Entered: 09/22/2006)
87 MOTION to Dismiss Disparate Impact Claims and Certain Claims of Kimberly Wafford by Walgreen Company. Responses due by 11/8/2006 (Hult, Keith) (Entered: 10/06/2006)
88 Defendant's ANSWER to Complaint /Second Amended Class Action Complaint by Walgreen Company.(Ybarra, John) (Entered: 10/06/2006)
89 MEMORANDUM in Support re 87 MOTION to Dismiss Disparate Impact Claims and Certain Claims of Kimberly Wafford filed by Walgreen Company. (Attachments: # 1 Exhibit A−Charges of Discrimination Part 1# 2 Exhibit A−Charges of Discrimination−Part 2# 3 Exhibit B−Determination)(Hult, Keith) (Entered: 10/06/2006)
90 NOTICE of Hearing on 87 MOTION to Dismiss Disparate Impact Claims and Certain Claims of Kimberly Wafford: Motion Hearing set for 12/4/2006 at 01:30 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy. (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/12/2006)
91 Joint MOTION for Extension of Time for Service of Expert Witness Reports and Motion for Class Certification by John Tucker. (Attachments: # 1 Proposed Order)(Baller, Morris) (Entered: 10/25/2006)
92 NOTICE OF ERRORS AND/OR DEFICIENCIES re 91 Motion for Extension of Time filed by John Tucker. See attached document for specifics. (jmp) (Entered: 10/26/2006)
93 ORDER granting 91 Motion to extend pretrial schedule. Signed by Judge G. Patrick Murphy on 10/27/06. (dmw) (Entered: 10/27/2006)
94 NOTICE OF CANCELLATION of Hearing: The Telephone Status Conference set for 11/15/06 before Mag/Judge Proud is cancelled. The Court will not reset the conference at this time. (amv) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/27/2006)
95 MEMORANDUM in Opposition re 87 MOTION to Dismiss Disparate Impact Claims and Certain Claims of Kimberly Wafford filed by John Tucker. (Attachments: # 1 Exhibit Second Amended Complaint)(Baller, Morris) (Entered: 11/08/2006)
96 AFFIDAVIT re 95 Memorandum in Opposition to Motion to Dismiss by John Tucker. (Attachments: # 1 Exhibit A − 3/16/06 Letter from Demchak to Ybarra)(Demchak, Teresa) (Entered: 11/08/2006)
97 MOTION for Extension of Time Plaintiffs' Motion for Partial Extension of Plaintiffs' Expert Report by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Klosener, Tiffany) (Entered: 11/09/2006)

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 20 of 23

11/14/2006 11/14/2006 11/14/2006 11/15/2006 11/15/2006 11/22/2006 12/04/2006
12/04/2006
12/19/2006 03/07/2007 04/05/2007 04/12/2007 04/23/2007

98 DOCKET ENTRY STRICKEN − Plaintiff's Responses to Defendant's First Set of Requests to Admit REQUEST for Admissions by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin, Carlos Zimmerman.(Coopman, Amy) (Entered: 11/14/2006)
99 REQUEST for Admissions by Walgreen Company. (Attachments: # 1 Exhibit Document referred to in Request No. 32)(Ybarra, John) (Entered: 11/14/2006)
100 ORDER granting 97 Motion for Extension of Time. Reports relating to promotion to Management Trainee must be produced on or before 11/25/06. Signed by Judge Clifford J. Proud on 11/14/06. (amv) (Entered: 11/14/2006)
101 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 98 Request for Admissions, filed by John Tucker, Angela Miller, Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Traci Dansberry, Chris Dargin, and Carlos Zimmerman. See attached document for specifics. (jmp) (Entered: 11/15/2006)
102 PLAINTIFFS' RESPONSES TO DEFENDANT'S FIRST SET OF REQUEST for Admissions by John Tucker.(Demchak, Teresa) (Entered: 11/15/2006)
103 REPLY to Response to Motion re 87 MOTION to Dismiss Disparate Impact Claims and Certain Claims of Kimberly Wafford filed by Walgreen Company. (Attachments: # 1 Exhibit 1 − Right to Sue Notices# 2 Exhibit 2 − EEOC Determinations# 3 Exhibit 3 − Hult Declaration)(Hult, Keith) (Entered: 11/22/2006)
104 Minute Entry for proceedings held before Judge G. Patrick Murphy : Motion Hearing held on 12/4/2006. DENYING 87 MOTION to Dismiss Disparate Impact Claims and Certain Claims of Kimberly Wafford filed by Walgreen Company. Written Order to follow. (Court Reporter Molly Clayton.) (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/04/2006)
105 ORDER re 87 MOTION to Dismiss Disparate Impact Claims and Certain Claims of Kimberly Wafford filed by Walgreen Company: As set forth on the record during the hearing held on 12/4/2006, Plaintiffs' disparate impact claims are reasonably related to the allegations of their EEOC charges. See Farrell v. Butler University, 421 F.3d 609 (7th Cir. 2005). Thus, Plaintiffs have exhausted these claims. Moreover, the settled rule in federal court is that an amended complaint is deemed filed as of the time it is submitted to a court with a request for leave to file it. See, e.g., Moore v. Indiana, 999 F.2d 1125 (7th Cir. 1993); see also Fed. R. Civ. P. 3. Therefore, Kimberly Wafford's external applicant claim is not time−barred. For these reasons, the motion to dismiss is DENIED. Signed by Chief Judge G. Patrick Murphy on 12/4/2006. (ssd)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/04/2006)
106 ORDER STAYING CASE: Pursuant to the stipulation of the parties, per the mediator, Mr. Hunter Hughes, this action is STAYED 60 days from this date. The parties are ORDERED to file a status report in 60 days. Signed by Chief Judge G. Patrick Murphy on 12/19/2006. (ssd)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/19/2006)
107 ORDER LIFTING STAY: Status Conference set for 4/23/2007 at 02:30 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 3/7/2007. (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/07/2007)
108 Joint MOTION for Protective Order (Supplemental) by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Walgreen Company, Angela Miller, Traci Dansberry, Chris Dargin, Carlos Zimmerman. (Coopman, Amy) (Entered: 04/05/2007)
109 ORDER denying 108 Motion for Protective Order. Signed by Judge Clifford J. Proud on 4/11/07. (amv) (Entered: 04/12/2007)
110 Minute Entry for proceedings held before Judge G. Patrick Murphy : Status Conference held on 4/23/2007. The presumptive trial month, dispositive motion

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 21 of 23

04/25/2007 04/26/2007 04/30/2007 04/30/2007 05/30/2007 06/15/2007 06/19/2007 06/25/2007 06/29/2007 06/29/2007 06/29/2007 07/12/2007
07/12/2007 07/13/2007

deadline, discovery deadline, and motion for class certification deadline, will be extended six months. Written Order to follow setting out all deadlines. (Court Reporter Molly Clayton.) (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 04/23/2007)
111 ORDER Discovery due by 8/17/2007. Dispositive Motions due by 8/1/2007. Jury Trial set for month of 12/2007 at 8:00 AM in East St. Louis Court House before Chief Judge G. Patrick Murphy. Signed by Judge Clifford J. Proud on 4/25/07. (amv) (Entered: 04/25/2007)
112 First Intervenor COMPLAINT, filed by Pearle Phillips. (Attachments: # 1 Exhibit Charge of Discrimination)(Favre, JoDee) (Entered: 04/26/2007)
113 ORDER, EEOC and Walgreen Co shall make their initial disclosures regarding the claim originally set forth in case 07−172−GPM by 5/21/07. Signed by Judge Clifford J. Proud on 4/26/07. (amv) (Entered: 04/30/2007)
114 ANSWER to Complaint of Equal Employment Opportunity Commission by Walgreen Company.(Hult, Keith) (Entered: 04/30/2007)
115 WAIVER OF SERVICE Returned Executed by Pearle Phillips. Walgreen Company waiver sent on 4/26/2007, answer due 6/25/2007. (Favre, JoDee) (Entered: 05/30/2007)
116 Joint MOTION for Extension of Time re Deadlines in April 25, 2007 Order by John Tucker. (Demchak, Teresa) (Entered: 06/15/2007)
117 ORDER, Granting 116 Joint MOTION for Extension of Time re Deadlines in April 25, 2007 Order filed by John Tucker. Discovery due by 8/17/2007. Dispositive Motions due by 8/1/2007. Signed by Judge Clifford J. Proud on 6/19/07. (amv) (Entered: 06/19/2007)
118 ANSWER to Intervenor Complaint by Walgreen Company.(Gaur, Shanthi) (Entered: 06/25/2007)
119 ENTRY STRICKEN − Joint MOTION for Extension of Time re Deadlines in June 19, 2007 Order by John Tucker, Equal Employment Opportunity Commission, Walgreen Company. (Demchak, Teresa) Modified on 6/29/2007 (myz ). (Entered: 06/29/2007)
120 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 119 Motion for Extension of Time filed by Walgreen Company, Equal Employment Opportunity Commission, John Tucker. See attached document for specifics (myz ) (Entered: 06/29/2007)
121 Joint MOTION for Extension of Time re Deadlines in June 19, 2007 Order by John Tucker, Equal Employment Opportunity Commission, Walgreen Company. (Demchak, Teresa) (Entered: 06/29/2007)
122 MOTION to Approve Consent Judgment Plaintiffs Motion For Preliminary Approval of Consent Decree, Conditional Certification of Settlement Class, Appointment of Class Counsel, Designation of Class Representatives, Approval of Class Notice, and Scheduling of Final Fairness Hearing, and Memorandum of Points and Authorities In Support of Motion by John Tucker. (Attachments: # 1 Exhibit Consent Decree# 2 Exhibit Notice of Settlement# 3 Exhibit Schedule of Class Notice Deadlines# 4 Affidavit Declaration of Morris J. Baller# 5 Affidavit Declaration of Hunter R. Hughes# 6 Affidavit Declaration of Tiffany B. Klosener# 7 Supplement Request for Additional Pages)(Demchak, Teresa) (Entered: 07/12/2007)
123 MOTION to Approve Consent Judgment Plaintiff EEOC's Unopposed Motion for Entry of Consent Decree by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A − Proposed Consent Decree)(Baran, Andrea) (Entered: 07/12/2007)
124 MOTION to Withdraw as Attorney for Plaintiff Arien Jackson by Jovan Haney, Leon Bradley, Arien Jackson, William Strickland, John Tucker, Oscar Green, Mike Jackson, Kevin Riddle, Avery Anderson, Malica Page, Angela Miller, Traci Dansberry, Chris Dargin, Carlos Zimmerman. (Attachments: # 1 Affidavit Tiffany B. Klosener# 2 Exhibit Exhibit A March 27, 2006 letter# 3 Exhibit Exhibit B May 9, 2006 letter# 4

Case: 3:05-cv-440 As of: 02/01/2019 05:17 PM CST 22 of 23

10/05/2007
10/19/2007 11/19/2007 03/10/2008 03/17/2008
03/17/2008 03/17/2008 03/17/2008 03/17/2008
03/17/2008 03/24/2008

Exhibit Exhibit C May 31, 2006 letter# 5 Exhibit Exhibit D June 28, 2006 letter# 6 Exhibit Exhibit E July 7, 2006 letter# 7 Exhibit Exhibit F July 15, 2006 email# 8 Exhibit Exhibit G Case Report# 9 Exhibit Exhibit H June 28, 2007 letter)(Klosener, Tiffany) (Entered: 07/13/2007)
125 ORDER: GRANTING 122 MOTION For Preliminary Approval of Consent Decree, Conditional Certification of Settlement Class, Appointment of Class Counsel, Designation of Class Representatives, Approval of Class Notice, and Scheduling of a Final Fairness Hearing filed by John Tucker (see Order for specifics); GRANTING in part and DENYING in part 124 MOTION to Withdraw as Attorney for Plaintiff Arien Jackson, construed by the Court as a motion to withdraw Arien Jackson as a Named Plaintiff, and WITHDRAWING Arien Jackson as a Named Plaintiff; TAKING UNDER ADVISEMENT 123 MOTION for Entry of Consent Decree filed by Equal Employment Opportunity Commission. Final Fairness Hearing set for 3/24/2008 at 1:30 PM in the East St. Louis Court House before Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 10/5/2007. (ssd) (Entered: 10/05/2007)
126 NOTICE by Equal Employment Opportunity Commission of filing of Listed Stores List required by Consent Decree Sec. XI.C.6 (Baran, Andrea) (Entered: 10/19/2007)
127 NOTICE by Equal Employment Opportunity Commission of filing of Updated Listed Stores List required by Consent Decree Sec. XI.C.6. (Baran, Andrea) (Entered: 11/19/2007)
128 ORDER granting 121 Motion for Extension of Time. Signed by Magistrate Judge Clifford J. Proud on 3/10/08. (amv) (Entered: 03/10/2008)
129 MOTION for Settlement (Motion for an Order Granting Final Approval of Class Action Settlement) by John Tucker. (Attachments: # 1 Affidavit Declaration of Morris J. Baller, # 2 Declaration of Tiffany B. Klosener, # 3 Declaration of Kent Spriggs, # 4 Declaration of Jean Kamp, # 5 Declaration of Mark Patton, # 6 Request for Additional Pages)(Demchak, Teresa) (Entered: 03/17/2008)
130 MEMORANDUM in Support re 123 MOTION to Approve Consent Judgment Plaintiff EEOC's Unopposed Motion for Entry of Consent Decree filed by Equal Employment Opportunity Commission. (Kamp, Jean) (Entered: 03/17/2008)
131 OBJECTION to 125 Order by Christopher T. Dargin, Darin Heights, and Ryan M. Tucker.(jmp) (Entered: 03/19/2008)
132 Rescinded Objection by Christopher T. Dargin re 125 Order(jmp) (Entered: 03/19/2008)
133 Opt−Outs Received from Marguerite M. Bessard, Craig O. Clarke, Constance Donald, Ronald Eugene Fields, William E. Fralin, III, Stacey F. Gray, Lisa L. Hall, David L. Henderon, Samuel Jones, III, Denise E. Moore, Victor S. Oatts,Ibiyemi O. Odetola, Delores C. Okonmah, Modneska L. Perry, Edward L. Quary, Rashad A. Sandford, Eric D. Simple, Shari L. Smith, Delicia D. Taylor(opt−out withdrawn), Charmalyn R. Thurman, and Joyce A. Williams re 125 Order(jmp) (Entered: 03/19/2008)
134 Rescinded Opt−Out by Delicia D. Taylor re 125 Order (jmp) (Entered: 03/19/2008)
135 Minute Entry for proceedings held before Judge G. Patrick Murphy: Evidentiary Hearing held on 3/24/2008. GRANTING 129 MOTION for Settlement filed by John Tucker. GRANTING 123 MOTION to Approve Consent Decree filed by Equal Employment Opportunity Commission. The objections filed by Darin Heights and Ryan Tucker are OVERRULED. The court's conditional class certification, appointment of class representative, and appointment of class counsel are hereby made final. The court FINDS that notice to the class as ordered on 10/5/2007 was accomplished and complied with due process requirements. The court FINDS that the fees and costs sought by class counsel are reasonable and further approves the enhancement awards to be paid to class representatives, plaintiff Wafford, intervenor/plaintiff Phillips, charging parties, and Class Members individually represented by plaintiff's counsel. The court FINDS that the settlement is fair, reasonable, and adequate, and GRANTS final approval of the Consent Decree. (Court Reporter Molly Clayton.) (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered:

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136 CONSENT DECREE. Signed by Judge G. Patrick Murphy on 3/24/2008. (lmm) (Entered: 03/24/2008)
137 TRANSCRIPT of Final Approval of Class Action Settlement held on 3/24/2008 before Judge G. Patrick Murphy. Court Reporter: Molly N. Clayton. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (jmp) (mlm2). (Entered: 04/14/2008)
138 Joint MOTION for Order to Necessary to Implement Relief Under Consent Decree by Walgreen Company. (Gaur, Shanthi) (Entered: 08/11/2011)
139 ORDER GRANTING 138 Joint MOTION for Entry of Order Necessary to Implement Relief Under Consent Decree: The Court approves the parties' agreement that Walgreen Company (Walgreens) reimburse the now closed Qualified Settlement Fund by making direct payments to the late−appearing class members whose shares were not paid previously because said class members did not surface until after the disbursement of the settlement funds. Such payments may be made outside of the structure of the Qualified Settlement Fund. By further agreement of the parties and with the Court's approval, Walgreens may use the remainder of the reimbursement funds to defray a portion of Walgreens' payroll tax obligations on class member payments. Walgreens will apply any additional remainder as part of its scheduled donation to the cy pres beneficiary agreed upon by the parties. Signed by Judge G. Patrick Murphy on 9/21/2011. (ssd)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/21/2011)