BRAD SELIGMAN (SBN 083838)
JOCELYN D. LARKIN (SBN 110817)
THE IMPACT FUND
125 University Avenue
Berkeley, CA 94710
Telephone: (510) 845-3473
Facsimile: (510) 845-3654 / JOSEPH SELLERS
CHRISTINE WEBBER
COHEN, MILSTEIN, HAUSFELD & TOLL
West Tower – Suite 500
1100 New York Avenue
Washington, D.C. 20005-3964
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
IRMA D. HERRERA (SBN 98658)
DEBRA A. SMITH (SBN 147863)
EQUAL RIGHTS ADVOCATES
1663 Mission Street, Suite 250
San Francisco, CA 94103
Telephone: (415) 621-0672
Facsimile: (415) 621-6744 / STEPHEN TINKLER
MERIT BENNETT
TINKLER & BENNETT
309 Johnson Street
Santa Fe, New Mexico 87501
Telephone: (505) 986-0269
Facsimile: (505) 982-6698
SHEILA Y. THOMAS (SBN 161403)
EQUAL RIGHTS ADVOCATES
5260 Proctor Avenue
Oakland, CA 94618
Telephone: (510) 339-3739
Facsimile: (510) 339-3723 / DEBRA GARDNER
PUBLIC JUSTICE CENTER
500 East Lexington Street
Baltimore, MD 21202
Telephone: (410) 625-9409
Facsimile: (410) 625-9423
STEVE STEMERMAN (SBN 067690)
ELIZABETH LAWRENCE (SBN 111781)
DAVIS, COWELL & BOWE
100 Van Ness Avenue, 20th Floor
San Francisco, CA 94102
Telephone: (415) 626-1880
Facsimile: (415) 626-2860
Attorneys for Plaintiffs / SHAUNA MARSHALL (SBN 90641)
HASTINGS COLLEGE OF THE LAW
200 McAllister Street
San Francisco, CA 94102
Telephone: (415) 581-8922
Facsimile: (415) 557-7895

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, CHRISTINE KWAPNOSKI, DEBORAH GUNTER, KAREN WILLIAMSON AND EDITH ARANA, on behalf of themselves and all others similarly situated,
Plaintiff,
vs.
WAL-MART STORES, INC.,

Defendant

/ Case No. C-01-2252 MJJ
DECLARATION OF DIANE DURFEY IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

I, Diane Durfey, declare:

1. I was an Assistant Manager at a Wal-Mart Store in Utah. I quit in August 2000 because it became apparent I would not be promoted. I reached this conclusion because I experienced a belittling working environment directed at women and I lost respect for the management of Wal-Mart.

2. I was graduated from Brigham Young University in December 1998 with a degree in Business Administration. Before finishing my degree, I had obtained an Associates of Arts degree from a community college and had worked full-time as an office manager for a podiatrist and in the office and production department of a publishing company. I had also spent 18 months in Ecuador. Soon after receiving my Bachelors of Art degree, I saw at the career services center at Brigham Young University that Wal-Mart wished to interview recent graduates for managerial positions. I had observed the growth of Wal-Mart in Utah, and was aware that the company was expanding overseas. I believed that a company of that size would present tremendous opportunities for me. I was at the beginning of my professional career and had no reason, at that point, to doubt that I could have a long and successful career with Wal-Mart. I signed up for an interview.

3. I interviewed with Oneil Clark, a Regional Personnel Manager, for the position of management trainee. In this March 1999 interview, Mr. Clark asked me if I was relocatable. I responded by telling him I had no geographical limitations at all and, in fact, would be interested in working in the International Division. Mr. Clark made a note of my response to this question concerning my ability to relocate. (Attached hereto as Durfey Exhibit A is a true and correct copy of the Interview notes produced by Defendant at my deposition.)

4. I received a confirming letter, which set forth the terms of my employment as a Manager Trainee. (Attached hereto as Durfey Exhibit B is a true and correct copy of this letter.) Upon receipt, I telephoned to negotiate the starting salary of $27,500.00 but was unsuccessful at negotiating a higher rate. I was told that the salary was set by Home Office in Bentonville, Arkansas. I accepted the job and was sent to Shelton, Washington for training. I spent approximately 17 weeks in Washington in the Management Training Program.

5. Upon completing my training in August 1999, I was assigned as an Assistant Manager at the Wal-Mart Store in American Fork, Utah and remained there until I quit. The practices and procedures I learned in Washington were applicable in Utah and I needed no additional training to work in Utah. The handbook used in the Shelton, Washington store was the same as the handbook used in Utah. The reports that the stores made to Home Office were of the same type. The guidelines, reports, and policies sent by Home Office to the stores were the same. The videos shown to new employees, the Computer Based Learning (“CBL”) modules, and the orientation procedure were the same in Utah as I had experienced in Washington, as they were all created in Bentonville, Arkansas. The set-up of the store, the reporting chain of command, the personnel policies, the merchandising practices, and the day-to-day operations were all similar in Washington and Utah. Both of the stores used the same computer systems, and I was able to access the same reports, guidelines, and policies on the computer in Utah that I had in Washington.

6. After I was in the Utah store for approximately six or seven weeks, a male Assistant Manager, Matt Garrett, was assigned to the same store. He had commenced his training six or seven weeks after I had begun my training, and this was his first assignment as Assistant Manager. Although I had the six or seven weeks of additional experience, Matt Garrett was paid more than I was. I learned this when another Assistant Manager, Holly Gibby, saw written confirmation of our salaries and told me.

7. It became apparent that Matt Garrett was being groomed for rapid promotion and I was not. He was rotated into the Night Receiving Assistant Manager, which was widely seen as a stepping-stone to imminent promotion. I complained to Store Manager Mark Weatherhogg, as did Holly Gibby and other Assistant Managers. I was then assigned to help Mr. Garrett in the receiving department, as there was a lot of extra work to do, including a new back room set up and an upcoming inventory audit. When Mr. Garrett rotated out of that position, I was able to run the position entirely on my own but was not allowed this opportunity. Another male Assistant Manager, Jeff, was put in to help me although there was no longer a lot of extra work. Unlike Mr. Garrett, I was not given the opportunity to shine in that position and show what I could do.

8. I observed gender stereotyping in assignments throughout the store. Women were not placed in some departments, including sporting goods, garden, and hardware. Women were not assigned as cart pushers. Women were assigned to the office, and to fabrics and cashiering. This gender segregation was widely acknowledged throughout the store, and was the subject of several conversations among the female office personnel.

9. Store Manager Mark Weatherhogg toured the store daily with one or more Assistant Managers. Upon one occasion, in approximately July 2000, as I and Assistant Manager Marjorie Fonnesbeck toured with him, he started yelling at us. When we arrived in the Infants Department, Mr. Weatherhogg got even angrier, and screamed at the female hourly Infants Department Manager, Julie Weber. He pulled approximately six pieces of furniture down from the shelves, throwing them onto the floor. Ms. Weber walked out of the store. Several associates witnessed this and appeared very upset. More than one associate called the District Manager, Jim Curtis, who sent Mr. Weatherhogg home for the day. District Manager Curtis also directed Ms. Fonnesbeck and me to conduct an investigation of the incident. Assigning this task of investigation put Ms. Fonnesbeck and me in very difficult positions, as we were being asked to review and report on the actions of our direct supervisor. I felt this assignment was an attempt to intimidate us and send us a message that we were not to report on the bad actions of our Store Manager. When I approached Mr. Weatherhogg to tell him that employees were walking out and were very upset, he placed the blame on the Assistant Managers for provoking him. I never observed or learned of any time when Mr. Weatherhogg yelled at male Assistant Managers or male Department Managers.

10. Upon many occasions, I went to Store Manager Weatherhogg to discuss a number of concerns, including my career. In many of these discussions, Mr. Weatherhogg told me that “retail is tough” and that it might not be “appropriate” for women. Mr. Weatherhogg said this to me on more than one occasion. I discussed this with female Assistant Managers Marjorie Fonnesbeck and Holly Gibby who told me that Mr. Weatherhogg said the same thing to them. This attitude of Store Manager Weatherhogg was so well known, and the favoritism he displayed to male associates was so apparent that it became almost a joke for my fellow Assistant Managers to refer to Wal-Mart as a “good ‘ole boys’ club.” I recall specifically Store Manager Mark Weatherhogg making this comment at lunch on more than one occasion.

11. I became very concerned about my career opportunities, having seen a less experienced man, Assistant Manager Matt Garrett, receive a greater salary and more managerial grooming, observing the biased behavior of my supervisor, and having my Store Manager express doubts that I, as a woman, should even be in this field of employment. I tried to use the Open Door, contacting District Manager Jim Curtis, but received no response. Wal-Mart’s Sundown Rule requires that all phone messages be returned the same day received, so the lack of response was significant to me. I understood that the district manager was so uninterested in talking to me that he was willing to violate this basic rule of Wal-Mart policy and culture. I wrote a note to the President, Lee Scott, and again received no response. I called the legal department and yet again received no response. I telephoned and e-mailed the Store Manager I had trained with in Washington, Greg Sullivan, but received only a pep talk.

12. I believed that I could not get promoted, in light of the attitudes I had observed. I found that no help was available for me through the Open Door. The working conditions were belittling and I had no respect for the management. I quit on August 31, 2000. I conducted my own exit interview, finding myself to be rehirable. No member of Wal-Mart management made any effort to persuade me to stay.

13. I had intended to make my career at Wal-Mart. Given a fair opportunity, I anticipated becoming a Store Manager and perhaps joining the International Division. Instead, I experienced discrimination and hostility towards me because I am a woman. But for the discrimination, the behavior of my managers, and the lack of response from upper management to my concerns, I believe I would have stayed at Wal-Mart.

I have personal knowledge of each and every fact set forth in this Declaration and, if called to testify as a witness, I could and would competently testify to each of these facts.

I declare under penalty of perjury of the laws of the United States and of the State of Utah that the foregoing is true and correct.

This declaration was signed by me on ______, 2003 at Orem, Utah.

______

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Declaration of Diane Durfey in Support of Plaintiffs' Motion for Class Certification Case No. C-01-2252 MJJ