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Case Name Ellis v. Costco EE-CA-0302
Docket / Court 3:04-cv-03341 ( N.D. Cal. )
State/Territory California
Case Type(s) Equal Employment
Special Collection Private Employment Class Actions
Attorney Organization Impact Fund
Case Summary
On August 17, 2004, a female employee filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, and the Fair Employment and Housing Act, California Government Code section 12940, against Costco Wholesale Corporation in United States District Court in the Northern District ... read more >
On August 17, 2004, a female employee filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, and the Fair Employment and Housing Act, California Government Code section 12940, against Costco Wholesale Corporation in United States District Court in the Northern District of California. The plaintiff, represented by private counsel, asked the Court for declaratory and injunctive relief, as well as damages, alleging that Costco discriminated against her and other similarly situated females. Specifically, the plaintiff contended that Costco's management discriminated against her based on her sex when granting promotions and that the defendant retaliated against her after she complained.

The original plaintiff filed the suit by herself, but was soon allowed to add two more plaintiffs as the case progressed. These named plaintiffs, on behalf of themselves and others similarly situated, charged that Costco's managerial promotion methods had a pattern and practice of gender discrimination, and disparate impact on women. Because the defendant's failed to notify employees of specific promotion opportunities through job postings, or any other alternative means, female employees were unable to apply for promotions. This practice, in combination with a promotion decision-making process that was arbitrary and done by a nearly all-male managerial force, led the plaintiffs to file suit.

On January 11, 2007, the District Court (Judge Patel) granted class certification. The District Court certified a class of all current and former female Costco employees nationwide who have been denied promotion to General Manager or Assistant General Manager positions or denied promotion to Senior Staff positions since January 3, 2002. The Court did not certify the plaintiffs claims over FEHA, only those made under Title VII. With the certification, the Court granted an opt out opportunity to be provided in the class notice. The Court granted the class certification for the claims of damages and injunctive relief. 240 F.R.D. 644.

The defendants appealed the District Court's decision, arguing that the District Court abused its discretion in certifying the class. The Ninth Circuit Court of Appeals heard the appeal after the Supreme Court gave its decision in Dukes v. Walmart (a class action case with a similar fact pattern) and issued an order on September 16, 2011. The court held that one plaintiff had standing to bring the suit and was adequate representation but the two other plaintiff representatives may be inadequate representation because they were former employees. The Circuit Court also held that the District Court used the wrong legal theory in determining that the class met the commonality and typicality requirements for class certification. The case was remanded for the District Court to determine if the two plaintiffs could be adequate representation and to apply the correct standard in determining if the class met the commonality and typicality requirement. 657 F.3d 970.

The plaintiffs filed their third amended complaint on March 23, 2012, altering their prayer for relief. In an attempt to alleviate the Ninth Circuit's concern over the adequacy of representation, the plaintiffs requested certification with one plaintiff as the representative of the injunctive relief class and one plaintiff as the representative of the monetary relief class.

On September 25, 2012, Judge Chen, writing for the District Court, granted class certification once again. After reviewing the case on remand from the Seventh Circuit, the District Court still held that the plaintiffs provided significant evidence of company wide policies and gender disparity to satisfy the commonality and typicality requirements of class certification. 285 F.R.D. 492.

After hearings and negotiations, the parties reached a settlement, and Judge Chen approved the settlement on May 27, 2014. Per the settlement, the three representative plaintiffs were awarded a $10,000 service fee, $3,950,000 for attorneys' fees, $633,959.64 for costs, and $300,000 for future work in administering the settlement. The settlement outlined the procedure by which the class members could claim their award out of an 8 million dollar settlement fund, with the possibility of individual claims ranging from $25,000 to $250,000. The settlement also outlined programmatic relief the class would receive, including a posting process for promotions, training of staff on hiring and promoting, and the use of a psychologist to conduct routine job analyses and evaluate promotion processes.

Following the settlement, one named plaintiff proceeded on individual claims of disparate treatment and retaliation, citing some facts not previously mentioned in the class action complaint. On May 22, 2015 Judge Chen granted in part and denied in part the defendant's motion for summary judgment with regard to this claim. Judge Chen narrowed the claims that the plaintiff would bring to trial to "(1) the disparate treatment claim and (2) the retaliation claim, but only with respect to failures to promote that took place 300 days prior to the DFEH charge for retaliation specifically (and not disparate treatment)." 2015 WL 2453158.

The parties then proceeded to engage in trial preparation and settlement talks simultaneously. On July 24, 2015, proceedings were held before Judge Chen, noting that the parties had settled the matter. This settlement agreement is not available on the docket. On July 28, the final named plaintiff voluntarily dismissed her claims against the defendant. This case is now closed

Matthew Aibel - 05/04/2008
Mackenzie Walz - 12/03/2017


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Issues and Causes of Action
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Issues
Affected Gender
Female
Defendant-type
Retailer
Discrimination-area
Promotion
Discrimination-basis
Sex discrimination
General
Pattern or Practice
Retaliation
Plaintiff Type
Private Plaintiff
Race
Race, unspecified
Causes of Action Title VII (including PDA), 42 U.S.C. ยง 2000e
Defendant(s) Costco Wholesale Corporation
Plaintiff Description The class consists of all current and former female Costco employees nationwide who have been denied promotion to GM or AGM or denied promotion to Senior Staff positions since January 3, 2002.
Indexed Lawyer Organizations Impact Fund
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement Court Approved Settlement or Consent Decree
Case Closing Year 2015
Case Ongoing No
Additional Resources
click to show/hide detail
  Microsoft Gender Discrimination Class Action Lawsuit
Date: Oct. 14, 2016
By: Outten & Golden
[ Detail ] [ External Link ]

  Age Discrimination Class Action seeks Fair Employment for Older PwC Applicants
http://www.pwcagecase.com/
Date: Apr. 27, 2016
By: Outten & Golden
[ Detail ] [ External Link ]

  Smith Barney Gender Discrimination
https://www.lieffcabraser.com/employment/smith-barney/
Date: August 2008
By: Outten & Golden
[ Detail ] [ External Link ]

  Megacases, Diversity, and the Elusive Goal of Workplace Reform
Date: Mar. 1, 2008
By: Nancy Levit (University of Missouri-Kansas City School of Law)
Citation: 49 B.C. L. Rev. 367 (2008)
[ Detail ] [ External Link ]

  Second Generation Employment Discrimination: A Structural Approach
Date: Apr. 1, 2001
By: Susan Sturm (Columbia Law School)
Citation: 101 Colum. L. Rev. 458 (2001)
[ Detail ] [ External Link ]

Docket(s)
Case 3:04-cv-03341-MHP (N.D. Cal.)
EE-CA-0302-9000.pdf | Detail
Date: 10/15/2012
Source: PACER [Public Access to Court Electronic Records]
General Documents
Order [ECF# 77] (N.D. Cal.)
EE-CA-0302-0002.pdf | Detail
Date: 12/22/2004
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint [ECF# 83-1]
EE-CA-0302-0001.pdf | Detail
Date: 03/23/2005
Order denying defendant's motion to move case to different court (372 F.Supp.2d 530) (N.D. Cal.)
EE-CA-0302-0007.pdf | WESTLAW| LEXIS | Detail
Date: 05/31/2005
Source: Google Scholar
Stipulation and (Proposed) Order Regarding Plaintiff's Motion to Strike Declaration Submitted by Costco [ECF# 484] (N.D. Cal.)
EE-CA-0302-0003.pdf | Detail
Date: 10/27/2006
Source: PACER [Public Access to Court Electronic Records]
Memorandum & Order [ECF# 494] (240 F.R.D. 627) (N.D. Cal.)
EE-CA-0302-0004.pdf | WESTLAW| LEXIS | Detail
Date: 01/10/2007
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ninth Circuit] (657 F.3d 970)
EE-CA-0302-0015.pdf | WESTLAW| LEXIS | Detail
Date: 09/16/2011
Source: Westlaw
Third Amended Complaint [ECF# 537]
EE-CA-0302-0012.pdf | Detail
Date: 03/23/2012
Source: PACER [Public Access to Court Electronic Records]
Order Granting Plaintiffs' Motion for Class Certification and Denying Defendant's Motion to Eliminate Class Claim [ECF# 693] (285 F.R.D. 492) (N.D. Cal.)
EE-CA-0302-0006.pdf | WESTLAW| LEXIS | Detail
Date: 09/25/2012
Source: PACER [Public Access to Court Electronic Records]
Order [Granting Motion for Preliminary Approval of Settlement] [ECF# 780] (N.D. Cal.)
EE-CA-0302-0009.pdf | Detail
Date: 02/10/2014
Source: PACER [Public Access to Court Electronic Records]
Notice of Motion and Motion for Final Approval of Class Action Settlement [ECF# 785]
EE-CA-0302-0013.pdf | Detail
Date: 04/17/2014
Source: PACER [Public Access to Court Electronic Records]
Order [Granting Motion for Settlement] [ECF# 791] (N.D. Cal.)
EE-CA-0302-0010.pdf | Detail
Date: 05/27/2014
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion for Final Approval of Class Action Settlement [ECF# 791] (N.D. Cal.)
EE-CA-0302-0014.pdf | Detail
Date: 05/27/2014
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Defendant's Motion for Summary Judgment [ECF# 854] (N.D. Cal.)
EE-CA-0302-0016.pdf | Detail
Date: 05/22/2015
Source: PACER [Public Access to Court Electronic Records]
Order [Dismissing Case] [ECF# 907] (N.D. Cal.)
EE-CA-0302-0011.pdf | Detail
Date: 07/28/2015
Source: PACER [Public Access to Court Electronic Records]
Judges Chen, Edward Milton (N.D. Cal.)
EE-CA-0302-0006 | EE-CA-0302-0009 | EE-CA-0302-0010 | EE-CA-0302-0011 | EE-CA-0302-0014 | EE-CA-0302-0016 | EE-CA-0302-9000
Patel, Marilyn Hall (N.D. Cal.)
EE-CA-0302-0002 | EE-CA-0302-0004 | EE-CA-0302-0007 | EE-CA-0302-9000
Smith, Norman Randy (Ninth Circuit)
EE-CA-0302-0015
Plaintiff's Lawyers Campins, Julia (California)
EE-CA-0302-9000
Dermody, Kelly M. (California)
EE-CA-0302-9000
Finberg, James M. (California)
EE-CA-0302-0001 | EE-CA-0302-9000
Hazam, Lexi Joy (California)
EE-CA-0302-0001 | EE-CA-0302-9000
Hutchinson, Daniel M. (California)
EE-CA-0302-9000
Kramer, Karin A. (California)
EE-CA-0302-0001 | EE-CA-0302-9000
Larkin, Jocelyn Dion (California)
EE-CA-0302-0001 | EE-CA-0302-0012 | EE-CA-0302-0013 | EE-CA-0302-9000
Lawrence, Elizabeth A. (California)
EE-CA-0302-0001 | EE-CA-0302-9000
Lee, Bill Lann (California)
EE-CA-0302-0001 | EE-CA-0302-0012 | EE-CA-0302-9000
Nako, Lindsay Elizabeth (California)
EE-CA-0302-9000
Sekhon, Nirej S. (California)
EE-CA-0302-0001 | EE-CA-0302-9000
Seligman, Brad (California)
EE-CA-0302-0001 | EE-CA-0302-0003 | EE-CA-0302-0012 | EE-CA-0302-9000
Stemerman, Steven L. (California)
EE-CA-0302-0001 | EE-CA-0302-9000
Defendant's Lawyers Kadue, David D. (California)
EE-CA-0302-0003 | EE-CA-0302-9000
Kampf, William Owen (California)
EE-CA-0302-9000
Maatman, Gerald L Jr. (Illinois)
EE-CA-0302-9000
Ross, David Bennet (New York)
EE-CA-0302-9000
Wybenga, Thomas J. (Washington)
EE-CA-0302-9000

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