Dukes v. Wal-Mart Stores, Inc.

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CLASS CERTIFICATION

TABLE OF CONTENTS

INTRODUCTION...............................................................141

LEGAL STANDARD............................................................143

ANALYSIS.....................................................................144

I. Rule 23(a) Factors..........................................................144

A. Numerosity............................................................144

B. Commonality..........................................................144

1. Company-Wide Policies and Practices................................145

a. Policies and Practices Governing Compensation and Promotion ...................................................145

(1) Overview of Wal-Mart Store Structure........................145

(2) Policies Governing Compensation ............................146

(a) Hourly Employees.......................................146

(b) Salaried Employees......................................147

(3) Policies Governing Promotion Decisions......................148

(a) Subjectivity in the Selection Practice......................148

(b) Failure to Post Promotional Opportunities................149

(4) Whether Defendant’s Compensation and Promotion Policies Support a Finding of Commonality.................149

b. Corporate Culture..............................................151

(1) Wal-Mart’s Emphasis on Uniform Culture....................151

(2) Gender Stereotyping.........................................153

2. Statistical Evidence of Discrimination................................154

a. Statistical Evidence Regarding Compensation.....................155

(1) Overview...................................................155

(2) Defendant’s Challenges to Plaintiffs’ Statistical Analysis.......156

(a) Aggregation at the Regional Level........................156

(b) Selection of Variables....................................159

b. Statistical Evidence Regarding Promotions.......................160

(1) Internal Data Analysis.......................................160

(a) Overview................................................160

(b) Defendant’s Challenge to Dr. Drogin’s Choice of

Applicant Pools.......................................161

(2) External Benchmarking Data Analysis........................164

3. Anecdotal Evidence of Discrimination................................165

4. Conclusion re Commonality.........................................166

C. Typicality .............................................................166

1. Whether the Named Plaintiffs Can Represent All In-Store

Managers........................................................166

2. Degree of Individual Specificity for Each Claim.......................167

D. Adequacy of Representation.............................................168

1. Conflicts of Interest................................................168

2. Qualified Counsel ..................................................169

E. Conclusion............................................................169

*141II. Maintainability Under Rule 23(b)....................................... 169

A. Inclusion of Claim for Punitive Damages ........................... 170

B. Manageability of Liability and Remedy Stages....................... 173

1. Manageability of Liability Stage................................ 173

2. Manageability of Remedy Phase................................ 174

a. Promotions Claim......................................... 175

(1) Overview of Traditional and Formula Approach to Backpay Remedy..................................... 175

(2) Application of Class-Wide Formula Approach............ 178

(a) Using a Formula to Calculate a Lump Sum Backpay Award........................................... 178

(b) Determining Individual Eligibility................... 179

b. Equal Pay Claim .......................................... 183

(1) Identification of victimized class members ............... 183

(2) Calculation of individual backpay awards................ 185

c. The 1991 Civil Rights Act................................... 186

CONCLUSION.......................... 187

INTRODUCTION

Plaintiffs have filed a Third Amended Complaint, brought on behalf of six named plaintiffs and all others similarly situated, asserting a claim against Wal-Mart Stores, Inc. (“Wal-Mart”) for sex discrimination under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”). Generally stated, plaintiffs allege that women employed in Wal-Mart stores (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer promotions to in-store management positions than do men, and those who are promoted must wait longer than their male counterparts to advance.

Plaintiffs assert that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart, and that the discrimination of which they complain is common to all women who work or have worked in Wal-Mart stores. Plaintiffs seek class-wide injunctive and declaratory relief, lost pay, and punitive damages. They do not seek any compensatory damages on behalf of the class.

Wal-Mart is the largest private employer in the world. See Defendant’s Opposition to Motion for Class Certification (“Def.’s Opp’n”) at 1. It operates approximately 3,400 stores in the United States and currently employs well over a million people. See Declaration of Christine Webber (‘Webber Deck”) Ex. 70 at 3-5, 12. Wal-Mart is best known for its “Discount Stores,” which offer a wide variety of discounted goods and services, and “Supercenters,” which are similar to Discount Stores but also include full grocery departments. The company also operates “Sam’s Clubs,” which are membership-only stores that sell items in bulk or at deep discounts, and “Neighborhood Markets,” which are smaller stores primarily selling food and drugs.1

Currently before the Court is Plaintiffs’ motion to certify a nation-wide class of women who have been subjected to Wal-Mart’s allegedly discriminatory pay and promotions policies.2 Specifically, plaintiffs propose that the Court certify the following class pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2):

All women employed at any Wal-Mart domestic retail store at any time since De-*142eember 26, 1998 who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.

Plaintiffs’ Motion for Class Certification (“Pis.’ Mot.”) at 37.3 In preparation for this motion, the parties undertook extensive discovery. They also filed extensive briefing along with volumes of documentary and testimonial evidence. On September 24, 2003, the Court heard oral argument over the course of seven hours.

Before proceeding further, the Court wishes to acknowledge Defendant’s characterization of this motion as historic in nature. Defendant emphasizes 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, thus dwarfing other employment discrimination cases that have come before. In its view, these numbers alone make this case impossible. Certainly, the size of the putative class raises concerns regarding manageability which this Court must, and does, carefully consider. Title VII, however, contains no special exception for large employers. Enacted in 1964 during the height of the civil rights movement, this Act forbids gender and race-based discrimination in the American workplace. Two years later, federal class action rules were amended to facilitate the vindication of these rights on a broader basis. See In re Monumental Life Ins. Co., 365 F.3d 408, 417 n. 16 (5th Cir.2004) (Fed.R.Civ.P. 23(b)(2) was added in 1966 primarily to facilitate the bringing of civil rights class actions). Insulating our nation’s largest employers from allegations that they have engaged in a pattern and practice of gender or racial discrimination — simply because they are large— would seriously undermine these imperatives. Indeed, it is interesting to note, as a matter of historical perspective, that Plaintiffs’ request for class certification is being ruled upon in a year that marks the 50th anniversary of the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). This anniversary serves as a reminder of the importance of the courts in addressing the denial of equal treatment under the law wherever and by whomever it occurs. Id. at 495, 74 S.Ct. 686.

Notions of historical import aside, the Court also takes this opportunity to acknowledge two important factors. First, the Court, by this motion, is not called upon to make any determination on the merits of Plaintiffs’ allegations of gender discrimination; rather, only procedural questions are presented. See Eisen v. Carlisle & Jacque-lin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Thus, resolution of this motion for class certification should not be construed in any manner as a ruling on the merits or the probable outcome of the case. Second, in spite of Defendant’s concerns regarding the historic nature of this motion, the Court does not encounter the issues raised herein on a barren legal landscape. Rather, this Court is satisfied that ample legal precedent is available to guide the Court in determining the propriety of Plaintiffs’ request for class certification. Indeed, while the size of the proposed class is unique, the issues are not novel, and Plaintiffs’ claims are relatively narrow in scope.4

*143Having fully analyzed the pleadings, evidence, and oral argument presented by the parties, and the entire record herein, the Court grants in part and denies in part Plaintiffs’ motion for class certification. Specifically, and as explained in greater detail below, the Court rules as follows:

1) With respect to Plaintiffs’ claim for equal pay, Plaintiffs’ motion is granted and the proposed class is certified with respect to issues of liability and all forms of requested relief;

2) With respect to Plaintiffs’ promotion claim, Plaintiffs’ motion is granted in part and denied in part. Specifically, the Court certifies the proposed class with respect to issues of liability (including liability for punitive damages) and injunctive and declaratory relief. The Court finds, however, that with respect to the remedy of lost pay, it is manageable only with respect to those challenged promotions where objective data is available to document class member interest in the challenged promotion. Thus, the Court denies certification, on grounds of unmanagea-bility, with respect to Plaintiffs’ promotion claims for lost pay (and thus punitive damages) as to those class members for whom no such data is available.

LEGAL STANDARD

A party seeking to certify a class must demonstrate that it has met all four requirements of Federal Rule of Civil Procedure 23(a), and at least one of the requirements of Rule 23(b). Zinser v. Accufix Research Inst, Inc., 253 F.3d 1180, 1186 (9th Cir.2001). Rule 23(a) requires that all of the following four factors be met: “(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.” In short, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy. Fed.R.Civ.P. 23(a).

Rule 23(b) requires, in relevant part, that one of three additional requirements be met. Here, plaintiffs assert that this case falls within Rule 23(b)(2), which provides that the “party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). Rule 23(c) allows a court to maintain a class action as to particular issues only or to divide a class into subclasses. Fed.R.Civ.P. 24(c)(4).

The party seeking certification must provide facts sufficient to satisfy Rule 23(a) and (b) requirements. Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308-09 (9th Cir.1977). In turn, the district court must conduct a rigorous analysis to determine that the prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). If a court is not fully satisfied, certification should be refused. Id. Conditional certification is no longer proper. See Fed. R.Civ.P. 23, Advisory Committee Notes, 2003 Amendments.

While the court’s analysis must be rigorous, Rule 23 confers “broad discretion to determine whether a class should be certified, and to revisit that certification throughout the legal proceedings before the court.” Armstrong v. Davis, 275 F.3d 849, 872, n. 28 (9th Cir.2001); see also Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 816 (9th Cir.1997). “ ‘Implicit in this deferential standard is recognition of the essentially factual basis of the certification inquiry and of the district court’s inherent power to manage and control pending litigation.’ ” In re Monumental Life Ins. Co., 365 F.3d at 414 (citation omitted); see also Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.Cir.1994) (“In light of the fact that trial courts have the primary responsibility of ensuring the ‘orderly management of litigation’ and that the purpose of class actions lies in ‘advancing] the efficiency and economy of multi-party litigation,’ trial *144courts ‘are uniquely well situated to make class certification decisions.’ ”) (citations omitted).

In Falcon, the Court reiterated the well-recognized precept that “ ‘the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.’ ” Falcon, 457 U.S. at 160, 102 S.Ct. 2364 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Nevertheless, “[w]e find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Eisen, 417 U.S. at 177, 94 S.Ct. 2140. Thus, “[although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983) (citation omitted); see also Nelson v. United States Steel Corp., 709 F.2d 675, 679-80 (11th Cir. 1983) (plaintiffs’ burden at class certification “entails more than the simple assertion of [commonality and typicality] but less than a prima facie showing of liability”) (citation omitted); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir.1999); Fed.R.Civ.P. 23, Advisory Committee Notes, 2003 Amendments (court review of the merits should be limited to those aspects relevant to making the certification decision on an informed basis).5 With these principles in mind, the Court turns to the requirements of Rule 23(a).

ANALYSIS

I. Rule 23(a) Factors

A. Numerosity

Under the first Rule 23(a) factor, the class must be “so numerous that joinder of all members is impracticable.” Fed. R.Civ.P. 23(a)(1); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003). Plaintiffs need not state the exact number of potential class members; nor is a specific minimum number of class members required. Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D.Cal.1994). Rather, whether joinder is impracticable depends on the facts and circumstances of each case. Id. Wal-Mart does not contest that numerosity is satisfied here, given that both parties estimate that the proposed class numbers over one million women. Indeed, it is beyond dispute that joinder would be impracticable in this case. Accordingly, the Court finds that this factor is satisfied.

B. Commonality

Rule 23(a)(2) requires that common questions of law or fact exist among class members. As the Supreme Court has explained, this requirement overlaps with the typicality requirement:

[T]he commonality and typicality requirements ... tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.

Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364. Nonetheless, each factor serves a discrete purpose — commonality focuses on the relationship of common facts and legal issues among class members, while typicality examines the relationship of facts and issues between the representatives and the class. See Conte & Newberg on Class Actions, Vol. I, at 411 (4th ed.) (hereafter “Newberg”). In other words, commonality refers to the group characteristics of the class as a whole, and typicality refers to the individual characteristics of the named plaintiffs in relation to the *145class. As such, the Court will address each factor separately.

Rule 23(a)(2) does not require that all questions of law or fact be common. The test is qualitative rather than quantitative— one significant issue common to the class may be sufficient to warrant certification. Savino v. Computer Credit, Inc., 173 F.R.D. 346, 352 (E.D.N.Y.1997), aff'd, 164 F.3d 81 (2d Cir.1998); Newberg, Vol. I, at 272-74. Indeed, the necessary showing to satisfy commonality is “minimal.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998). Specifically, plaintiffs may demonstrate commonality by showing that class members have shared legal issues but divergent facts or that they share a common core of facts but base their claims for relief on different legal theories. Id. at 1019.

Plaintiffs present extensive evidence to support their contention that there are significant factual and legal questions common to all class members with respect to whether Wal-Mart has engaged in company-wide discrimination against female in-store employees in pay and promotions. This evidence can be grouped into three major categories: (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. The Court concludes that this evidence more than satisfies plaintiffs’ burden to demonstrate commonality under Rule 23(a)(2). Each category is discussed in detail below.

1. Company-Wide Policies and Practices

This first category can be further divided into two discrete areas. First, Plaintiffs present evidence that Wal-Mart’s policies governing compensation and promotions are similar across all stores, and build in a common feature of excessive subjectivity which provides a conduit for gender bias that affects all class members in a similar fashion. Second, Plaintiffs submit evidence that Wal-Mart cultivates and maintains a strong eor-porate culture which includes gender stereotyping. While the parties vigorously dispute certain aspects of this evidence, and certainly draw different inferences therefrom, it is sufficient at this juncture to support Plaintiffs’ claim that there are common issues as to whether Wal-Mart engages in discriminatory policies and practices that affect putative class members in a similar manner.

a. Policies and Practices Governing Compensation and Promotion

Defendant argues that it utilizes a myriad of distinct systems for compensating and promoting in-store employees depending on the position and type of store (or store department), and that these differences preclude any finding of commonality. It further argues that decisions regarding pay and promotions are too decentralized to create any questions common to the class. As discussed below, however, while some variations exist, there is a basic organizational structure that is consistent across store types and throughout the company’s domestic stores in important respects. Furthermore, the policies governing in-store compensation and promotions uniformly provide for managers to exercise significant subjectivity in making pay and promotion decisions. Indeed, although the parties disagree about many of the fine points, they essentially agree that Wal-Mart managers make pay and promotion decisions for in-store employees in a largely subjective manner.

(1) Overview of Wal-Mart Store Structure

As noted above, Wal-Mart operates four different types of stores: Discount Stores, Supercenters, Neighborhood Markets, and Sam’s Clubs. Wal-Mart considers the first three to be part of a single operation, while Sam’s Club operates as a separate division. All stores (except Sam’s Clubs) are divided into six divisions, for a total of seven divisions including Sam’s Clubs. Each division in turn is divided into regions for a total of 41 regions nationwide. Each region contains roughly 80-85 stores. K. Harper Depo. at 177, 215 (Webber Decl. Ex. 1); Butler Depo. at 39 (Webber Decl. Ex. 4).

*146Merchandise sold in the stores is generally segregated in up to 40-53 separate departments (e.g. — apparel, jewelry, hardware).6 Certain departments are designated “specialty departments” and are considered to operate as semi-autonomous units within the stores. The eight specialty departments are One-Hour Photo, Optical, Pharmacy, Shoes, Jewelry, Tire & Lube Express, Hearing, and Wireless Services. Grocery sections in the Supercenters also are considered to be semi-autonomous units within the stores. K. Harper Depo. at 90, 155-56 (Webber Decl. Ex. 1).

While the size and inventory of Wal-Mart stores vary, the evidence indicates that the personnel structure within each store operates in a basically similar fashion using similar job categories, job descriptions, and management hierarchies.7 At the top of the in-store management structure are the salaried positions beginning with the Store Manager. See K. Harper Depo. at 152 (Webber Decl. Ex. 1). In certain larger stores, there are Co-Managers who report to the Store Manager and often oversee the grocery departments. See id. at 35-36, 155-56; Haworth Decl. ¶50. Next in line are the Assistant Managers, with several per store, depending on store size. Specialty Department Managers report directly to District Managers as well as the Store Manager.

In order to transition into a salaried management position, employees must generally go through a four-to-five month training program as a “Management Trainee.” See Def.’s Opp’n at 40. The Management Trainees are considered as being in a limbo phase between the hourly and salaried ranks, although they are paid on an hourly basis.

With respect to the hourly positions, the highest is that of Support Manager, which is considered a feeder into the Management Trainee position. Below Support Manager are the Department Managers and Customer Service Managers, who serve as lower-level hourly supervisors. At the bottom rung are the entry level Cashiers, Sales Associates, Stockers, and others.

In general, roughly 65 percent of hourly employees are women, while roughly 33 percent of management employees are women. Drogin Decl. H19. The approximate percentages of women in specific hourly and salaried management positions are as follows:

Salaried Positions

Store Manager — 14%

Co-Manager (only in larger stores) — 23%

Assistant Manager — 36%

Hourly Positions

Management Trainee — 42%

Support Manager — 50%

Department Manager — 78%

Customer Service Manager — 85-90%

Other hourly positions — 70%8

See Drogin Decl. ¶ 23, Table 7.

(2) Policies Governing Compensation

(a) Hourly Employees

All hourly employees at every Wal-Mart store are compensated pursuant to the same general pay structure. Each store has a minimum starting wage for each class of hourly jobs that is set by the Wal-Mart Home Office in Arkansas (hereafter “Home Office”). Beyond that, Store Managers are granted substantial discretion in making salary decisions for hourly employees in their respective stores. Specifically, they are allowed to depart from the minimum start rates, within a two dollar per hour range, without being constrained by objective crite*147ria and with limited oversight. See Def.’s Opp’n at 5-6 & n. 4. Indeed, “[i]n setting pay, a Store Manager makes the call based on his or her needs.” Id. at 15; Haworth Deck ¶4 (“This is a company that relies on its Store Managers to set the specific wage rates of each store’s employees.”). Given that hourly workers typically earn approximately $18,000 per year (based on 2001 wages), see Drogin Deck 1119, the two dollar per hour discretionary range is significant. Store Managers also are allowed to increase pay for exceptional performance, again with limited guidance or oversight.

As a partial constraint on this local control Wal-Mart utilizes a system of oversight known as “management by exception.” Under this system, District Managers and Specialty Group Regional Managers receive “exception reports” if Store Managers set an employee’s pay rate at more than six percent above the minimum rate set by the Home Office, and must approve such rates. Defendant’s national pay structure also specifies a 25 cent-per-hour gap between start rates in consecutive pay classes. See Drogin Reply Decl. ¶23; Webber Decl., Exhs. 93-94. This limited oversight, however, still leaves individual Store Managers with substantial discretion in setting pay rates for in-store employees. As one Store Manager explained, “There’s [a presumptive limit of two dollars above the base], but I can do what I want. I mean, if I start throwing money around, I mean, eventually the phone is going to ring. But the store manager has the flexibility to do what he needs to do to run the building.” Shatz Depo. at 66 (Weber Deck Ex. 46).

(b) Salaried Employees

All types of Wal-Mart stores also compensate their salaried in-store management employees pursuant to common policies and practices. These decisions are made primarily by District Managers (the first level in the management hierarchy above Store Managers) and their superiors, the Regional Managers.

(1) Assistant Managers: For these lowest level salaried managers, Wal-Mart’s Exempt Associate Pay Guidelines establish a broad salary range within which District Managers have discretion to set pay rates with little guidance and limited oversight. Assistant Managers receive a base salary and are eligible to receive annual performance and merit increases and a bonus. See Haworth Deck H 221; Def.’s Opp’n at 35 n. 21. Those working in areas with a high cost of living receive Geographical Assistance Pay (GAP). See Arnold Deck 119. The base salary range for Assistant Managers starts at $29,500 and goes to between $42,000 to $47,000 depending on store size. See Haworth Deck 11222.9

(2) Co-Managers: Similarly, Co-Manager pay rates are set by District Managers who exercise complete discretion, with little guidance and limited oversight, to set salaries within a base salary range from $42,000 to $47,000 (with GAP adjustments). Co-Managers are also eligible to participate in an incentive plan based on store profitability. They do not receive merit or performance increases. Id. at H 225.10

(3) Specialty Departments: Specialty Department Managers also have similar, albeit not identical, pay structures. Defendant’s expert, Dr. Joan Haworth, states that each Specialty Department has a “different compensation plan,” but she only identifies four of the eight departments (Tire & Lube Express [TLE], Photo, Optical, and Pharmacy). Among those, all have base salaries in broad ranges (spanning from $24,000 to over $40,000 at the top, with GAP adjustments), all are eligible for incentive plans, and all are eligible for merit and performance increases. Id. at 1111241-45. Again, these managers’ pay rates are set by higher level managers with complete discretion within the relevant range, with limited guidance or oversight.

(4) Store Managers: Store Managers are paid a base salary determined by store size, ranging from $44,000 to $50,000, with GAP adjustments. They also are eligible to receive incentives based on store size and prof*148itability. Id. at H227. Again, their base salaries are determined by upper level managers with broad discretion within the established range.

As the above reflects, there is a basic compensation structure that applies similarly to all in-store salaried management positions across all types of Wal-Mart stores, in that the computation begins with a base salary within a range set by the corporation (with an allowance for GAP), with adjustments allowed for profit incentives and/or merit increases. While certain differences exist — e.g., some positions allow for profit incentives while others build in merit incentives or both — they do not fundamentally alter the common nature of the positions. Most importantly, all of the in-store salaried positions — like all of the hourly positions'— share the common feature that there is a broad range of discretion built into the compensation structure for each position. As discussed further infra, this feature also provides a potential conduit for gender discrimination that is common to all class members. At this point, however, it suffices to say that Defendant’s policies governing compensation of hourly and salaried employees do not preclude a finding of commonality; on the contrary, the evidence indicates that there is significant uniformity across stores, and that Defendant’s policies all contain a common feature of subjectivity that is relevant to Plaintiffs’ claims of class-wide gender discrimination thus supporting the existence of questions common to the class.

(3) Policies Governing Promotions

As with salary decisions, the parties agree that subjectivity is a primary feature of promotion decisions for in-store employees. In the words of Wal-Mart President and CEO Thomas Coughlin, “We push down to the manager of the facility level, [sic.] the responsibility to run those stores right.” Ha-worth Decl. H 7. The subjectivity in promotion decisions occurs in two fundamental ways: (a) a largely subjective selection practice hindered by only minimal objective criteria, combined with (b) a failure to post a large proportion of promotional opportunities.

(a) Subjectivity in the Selection Practice

The first promotion category challenged by Plaintiffs — the Support Manager position — is the primary feeder for the Management Training Program. It is undisputed that Wal-Mart allows Store Managers to apply their own subjective criteria when selecting candidates for the Support Manager position. Decisions regarding advancement into the Management Training Program are made by District and Regional Managers. Wal-Mart has minimum corporate guidelines for promotion into these positions, which include requirements that candidates have an “above average” evaluation, have at least one year in their current position, be current on training, not be in a “high shrink” department or store, be on the company’s “Rising Star” list, and be willing to relocate. However, since the guidelines set forth only the minimum requirements for advancement, the decisions as to who will actually be selected for the Management Training Program are based largely on subjective criteria, resulting in what is fairly characterized as a “tap on the shoulder” process. See Butler Depo. at 135:4-11 (Webber Decl. Ex. 4) (“Each District Manager kind of has their own way of identifying talent within their district for development.”); Kintzele Depo. at 86:20-23 (Webber Decl. Exh. 13) (explaining that Store Managers nominate candidates for promotion); M. Miller Depo. at 65:2-13 (Webber Decl. Ex. 54); June 27, 2002 E-mail from Jarrells-Porter (Webber Decl. Ex. 100) (statement of Senior Vice President that Wal-Mart “[does] not have a poster, brochure, nothing that I am aware of’ to inform hourly workers “how to get promoted into the management training program”); Bielby Decl.¶22 (citing testimony of Wal-Mart managers that promotions to in-store management positions are made based on largely discretionary criteria). Decisions regarding advancement to the highest in-store positions — Assistant Manager, Co-Manager, and Store Manager — are similarly based on subjective assessments beyond adherence to corporate minimum guidelines. See, e.g., Kintzele Depo. 130:10, 133:9-135:16, 165:22-167:1 (Webber Decl. Ex. 13); Bielby Decl. ¶37. *149The subjective nature of Defendant’s promotion practices is further compounded by the fact that the company does not monitor the promotion decisions being made or otherwise systematically review the grounds on which candidates are selected for promotion. Bielby Decl. ¶¶37-38 & n. 53 (citing testimony of numerous Wal-Mart executives and managers).

(b) Failure to Post Promotional Opportunities

It is undisputed that, until January 2003, Wal-Mart did not post job vacancies for its Assistant Management Training Program, and it posted only a small number of vacancies for the Co-Manager position. See Def.’s Opp’n at 40 (“Wal-Mart does not have applicant flow data for the Trainee position before 2003”); Drogin Decl. 1146 & Table 20.11 Also, despite a stated policy to post hourly Support Manager positions, roughly 80 percent of these openings were not in fact posted. Drogin Decl. ¶ 44 & Table 19. Because most positions were not posted, class members had no ability to apply for, or otherwise formally express their interest in, openings as they arose. As a result, Managers did not have to consider all interested and qualified candidates, thus further intensifying the subjective nature of the promotion process.12

Wal-Mart did post openings for Store Manager positions during the relevant class period. This was not, however, an “open” application process; rather, candidates were required to obtain permission from their District Manager before being allowed to apply. In selecting who could apply, such managers have been free to rely upon subjective criteria beyond the minimum corporate guidelines. Thus the posting of Store Manager positions did not fully ameliorate the subjective nature of the promotion process for these positions.

(4) Whether Defendant’s Compensation and Promotion Policies Support a Finding of Commonality

Having reviewed the extensive evidence submitted by the parties, this Court is satisfied that Wal-Mart’s systems for compensating and promoting in-store employees are sufficiently similar across regions and stores to support a finding that the manner in which these systems affect the class raises issues that are common to all class members. Moreover, the fact that Wal-Mart’s compensation and promotion policies consistently permit managers to utilize a great deal of subjectivity further supports a finding of commonality.

While some level of subjectivity is inherent in, and in fact a useful part of, personnel decisions, courts have long recognized that the deliberate and routine use of excessive subjectivity is an “employment practice” that is susceptible to being infected by discriminatory animus. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (subjective decision-making is a “practice” subject to challenge under Title VII); Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. 2364; Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1075 (9th Cir.1986) (citation omitted); Casillas v. United States Navy, 735 F.2d 338, 345 (9th Cir.1984) (citation omitted). In the same vein, a general practice of not posting promotional opportunities also supports a finding of commonality. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1187 n. 17 (9th Cir.2002) (“Failure to post vacancies and the use of subjective promotions practices ... may be evidence of discrimination”).

And while the presence of excessive subjectivity, alone, does not necessarily create a common question of fact, where, as here, such subjectivity is part of a consistent cor*150porate policy and supported by other evidence giving rise to an inference of discrimination, courts have not hesitated to find that commonality is satisfied. See e.g., Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir.1993) (“Allegations of similar discriminatory employment practices, such as the u