IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA DAVIS and FRANCENIA CANION, individually and on behalf of all other similarly situated persons
v.
KRAFT FOODS NORTH AMERICA, INC.

CIVIL ACTION NO. 03-6060

AMENDED CLASS ACTION COMPLAINT
Plaintiffs Debra Davis and Francenia Canion ("Plaintiffs"), individually and on behalf of the class they seek to represent, by and through their counsel, bring this Amended Class Action Complaint against defendant Kraft Foods North America, Inc. ("Kraft" or "Defendant") and aver as follows:
NATURE OF THE ACTION 1. Plaintiff Debra Davis ("Davis") is an African-American female adult who resides in Philadelphia, Pennsylvania. 2. Plaintiff Francenia Canion ("Canion") is an African-American female adult who resides in Media, PelUlsylvania. 3. Plaintiffs bring this action under Title VII of the Civil Rights Act of 1964,42 U.S.c. 2000e et seq., as amended by the Civil Rights Act of 1991,42 U.S.C. § 1981(a), and the Civil Rights Act of § 1866,42 U.S.C. 1981, for class-wide injunctive relief, declaratory relief and equitable financial relief, and for damages for the individual named plaintiffs, arising from the terms and conditions of their employment at Kraft.

4. The class is defined as follows: All African-Americans who were employed in hourly and/or unionized positions at Kraft's Philadelphia bakery, located at 12000 Roosevelt Boulevard, at any time between November 3, 1999 and the present. 5. Kraft's parent company, Kraft, Inc., is the largest branded food and beverage company in North American and the second largest in the world, employing nearly 100,000 employees in one hundred and fifty (150) countries. Kraft operates through many familiar brand names, including but not limited to Kraft, Jacobs, Philadelphia, Maxwell House, Oscar Meyer and Post. 6. In 2000, Kraft Inc.'s parent company, Philip Morris Companies, Inc. (now known as Altria Group, Inc.) acquired Nabisco Holdings ("Nabisco"), which is one of the world's largest producers of cookies, crackers and other snack foods. In 2001, it integrated the Nabisco brands into Kraft's worldwide business. Kraft is now a public corporation and its stock is substantially controlled by Altria. 7. Nabisco has a long history of discriminating against African American employees which was not remedied by Kraft when Kraft took over the brand. 8. This class action is brought by two current employees of Kraft who, along with Defendant's other African-American employees, were subjected to Kraft's continuing policies and practices of racial discrimination. Specifically, Plaintiffs allege that Kraft discriminates against African-American employees by exacting discipline against African-American employees that is dispropOliionate to these employees' alleged offenses, and by disciplining African-Americans more severely than White employees for the same alleged offenses. Plaintiffs seek an injunction from this Court requiring Kraft to cease its discriminatory and retaliatory practices, declaratory relief, equitable relief including back and front pay, and damages for the individual named plaintiffs.
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JURISDICTION AND VENUE 9. This Court has original jurisdiction to hear this Complaint and adjudicate the claims stated herein under 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 2000e-5, and to declare the rights of the pmiies under 28 U.S.C. §§ 2201 and 2202. 10. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because the acts and/or omissions giving rise to this action occurred in this District.
CLASS ACTION ALLEGATIONS 11. Plaintiffs bring this action individually and on behalf of a class of all AfricanAmericans who were employed in hourly and/or unionized positions at Kraft's Philadelphia bakery, located at 12000 Roosevelt Boulevard, at any time between November 3, 1999 and the present. 12. The members of the Class are sufficiently numerous that joinder of all members is impracticable. It is the estimate of Plaintiffs that the Class exceeds 250 individuals. 13. Several questions exist that are common to the Class, including but not limited to:
a. Whether Class members are subject to disciplinary sanctions based on their race that are not imposed on similarly situated White employees;
b. Whether Class members are subject to more severe disciplinary sanctions than White employees for the same or similar alleged offenses;
c. Whether Kraft's alleged conduct herein constitutes a hostile work environment for the Class;
d. Whether Kraft's common operating practices and procedures discriminate against its African-American employees;
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e. Whether Kraft has a policy and practice of retaliating against Class members who object to or oppose Kraft's unlawful employment practices;
f Whether Kraft knows or has reason to know of the discriminatory practices committed against the members of the Class;
g. Whether Kraft's conduct warrants an award of declaratory, injunctive or equitable relief and, if so, the nature of such relief; and
h. Whether Kraft's conduct warrants an award of damages. 14. Plaintiffs' claims are typical of the claims of the members of the Class, in that they have been subjected to or threatened with the discriminatory disciplinary practices caused by Kraft and/or have been subject to a hostile work environment. These practices, complained of herein, affect the entire Class. 15. Plaintiffs will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that conflict with those of the Class members and have retained new counsel who are experienced in both class-action and civil rights employment litigation. 16. Celiification of the Class is warranted under Fed. R. Civ. P. 23(b)(2) because Kraft, by maintaining an ongoing pattern and practice of discrimination on the basis of race and a hostile work environment, has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive, declaratory and/or equitable relief with respect to the Class as a whole.
HISTORY OF NABISCO/KRAFT'S OPERATIONS AND ITS GENERAL PRACTICES OF DISCRIMINATION AGAINST ITS AFRICAN-AMERICAN EMPLOYEES 17. In 1999, the Office of Federal Contract Compliance Progranls ("OFCCP"),
conducted an audit of Nabisco. The audit addressed Nabisco's Affirmative
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Action Programs, racial diversity, equal pay, and disciplinary measures regarding minority

employees, and specifically, African American personnel.

18. At the time ofthe audit, Sondra L. Dean was employed by Nabisco as its

Employee Relations Manager. Ms Dean assisted David Matthews, Nabisco's National EEO

Director of Diversity, in collecting the audit data and providing it to the OFCCP.

19. On numerous occasions during and following the audit, Mr. Matthews confirmed

Ms. Dean's growing suspicion that Nabisco was guilty of numerous in fractions regarding

racially disparate hiring, firing, job assignments, equal pay, promotions and disciplinary

decisions issued against African Americans. Mr. Matthews told Ms. Dean that Nabisco was

lacking in affirmative action compliance.

20. Nabisco/Kraft exacted disproportionate and disparate measures of discipline on

African American employees. For example, Plaintiff has obtained disciplinary statistics for

several categories of discipline, for the years 1997 and 1998, as follows:

DISCIPLINE 1997

Totals Minorities Caucasians %

Coaching/Counseling 18

11

7

61%

Verbal Warnings

21

9

12

43%

Written Warnings

25

20

5

80%

Suspensions

25

18

7

72%

Thus, it can easily be seen that during 1997, African American employees at Nabisco were disproportionally more often disciplined, and frequently given more severe

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disciplinary sanctions than Caucasian employees. These discriminatory trends continued in

1998:

Totals Minorities Caucasians 0/0

Coaching/Counseling 20

19

1

95%

Verbal Warnings

13

11

2

85%

Written Warnings

20

13

7

65%

Suspensions

20

7

5

58%

Documents obtained by Plaintiff indicate that African American employees continued to be disciplined more frequently than Caucasian employees and with greater severity throughout 1999 and 2000. Upon information and belief, these policies continued after Kraft acquired Nabisco, and continue to this day.
Kraft retaliated against African American employees who complained either internally or externally about discriminatory treatment of African-Americans with the Company.
21. This information led Mr. Matthews and Ms. Dean to conclude that significant bias existed against Nabisco's (and later, Kraft's), African American employees with respect to discipline, pay and promotional opportunities.
22. On November 22, 2002, Ms. Dean filed her own individual lawsuit against Kraft in this Court stemming from Kraft's illegal discrimination. Ms. Dean alleged that she was subjected to differential and disparate standards of treatment, was denied pay increases on a routine basis, was denied performance reviews, was discouraged and denied from seeking promotional opportunities, and was discharged in a disparate manner and in retaliation for opposing racial discrimination. On August 29,2002, only fourteen days before she was

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terminated by Kraft, Ms. Dean wrote a letter to James Norman, Kraft's EEO Diversity Director (who replaced David Matthews after he left the Company), concluding that "there are major racial issues and inconsistencies occurring within the Philadelphia Plant. These inconsistencies have become so institutionally entrenched that they have been viewed as everyday policy. My attempts to correct or address these issues have been stonewalled. My character has been called in question, my job put in jeopardy and my reputation within the Plant slandered." This letter was copied to Terry Foulke, Senior Vice President of Kraft.
23. Following the 1999 audit of Nabisco, Mr. Matthews further concluded: 1) that there existed a racial disparity concerning the severity of disciplinary measures exacted upon African American employees as compared to Caucasian employees; 2) that African American employees were disciplined more frequently than Caucasian employees; 3) that racial disparity existed with respect to work place diversity; and 4) that African Americans were often paid less than Caucasian employees in the same or similar positions.
24. This pattern and practice oflack of advancement opportunities, unequal discipline and unequal pay are not the result of random, nondiscriminatory factors. To the contrary, these issues are the result of an ongoing and continuous pattern and practice of intentional race discrimination in assignments, training and promotions, discipline, pay and other discriminatory practices that have had an adverse impact on African American employees. Kraft's discriminatory policies cannot be justified by business necessity.
25. Alternative policies and practices with less discriminatory impact could be utilized that equally serve any asserted justification for Kraft's discriminatory policies.
26. Because the data compiled by Mr. Matthews did not comport with the findings of the 1999 Audit submitted to the United States Government that indicated that Nabisco was in full
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compliance, Mr. Matthews voiced his opposition to these practices in many members of Nabisco corporate management.
27. Specifically, Mr. Matthews voiced his concems regarding the racially disparate treatment of African Americans at Nabisco to Larry Jeffers, the Philadelphia Bakery plant manager, and Larry Doyle, the Philadelphia Bakery Human Resources Manger. Although Mr. Matthews registered complaints and provided Mr. Jeffers and Mr. Doyle with relevant documentation and data to support his position, these Management Officials failed to take any corrective remedial action regarding the racial disparity that existed within the Philadelphia Bakery.
28. Thereafter, Mr. Matthews reported his concems to Joan Anchovy, Nabisco's EEO Senior Director, as well as to Gary Trider, Nabisco's Vice President of manufacturing. These high ranking corporate managers similarly failed to address Mr. Matthews' concems regarding racial discrimination at Nabisco. They also failed to take any further action to investigate or remedy the situation.
29. During 2000 and 2001, Ms. Dean, who by then had become a Kraft employee following its acquisition of Nabisco, attended affirmative action meetings conducted by the new management structure formed by Kraft. During these meetings, James Norman, the new Kraft EEO Diversity Director, made numerous remarks with respect to the fact that the former Nabisco Bakeries, including the Philadelphia Bakery, were still lagging behind in terms of racial diversity.
30. Subsequent to Kraft's acquisition of Nabisco, moreover, various management officials who had overseen the discriminatory treatment of African American employees and failed to take remedial measures, remained in management capacities. These employees
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included, without limitation, Gary Trider, Senior Vice President of Manufacturing, Terry Foulk, Senior Vice President of Human Resources, Larry Doyle, Philadelphia Bakery Human Relations Manager, Larry Campbell, Philadelphia Bakery Plant Manager, and Milt Mintor, Senior Director of Human Resources.
31. Upon information and belief, these management officials were aware of the racial discrimination that existed at the Philadelphia Bakery, yet took no affirmative measures to correct the situation.
PLAINTIFFS' ALLEGATIONS 32. Plaintiff Davis was employed by Nabisco/Kraft at its Philadelphia Bakery as a Machine Operator from August 12, 1997 until on or about June 11,2002. 33. During the course of her employment, Davis performed her job function in a dutiful, competent and satisfactory manner. 34. On or about April 1, 2002, one of Davis' co-workers, Veronica Naulty (Caucasian), alleged that she had been assaulted while at work in the women's locker room within the facility. Ms. Naulty later stated that she had never even seen the person(s) who assaulted her, and that there were no witnesses. Ms. Naulty even told police that she was assaulted "by an unknown female." 35. Ms. Naulty is now believed to have fabricated the entire story of the assault. For example, medical records reflect that her alleged injuries were self-inflicted and/or were sustained prior to the date of the alleged assault. 36. However, following the Naulty incident, Kraft rounded up three African American females, including Davis, as the suspects.
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37. On or about April 3,2002, Kraft suspended Davis indefinitely without even telling her the reason for her suspension. Two other African-American employees, Angela Price and Tracy Dunston, were also suspended at that time by Kraft, based solely on their "association" with Davis, or for in some way participating in the alleged assault.
38. The accusations leveled against Davis and her African-American female coworkers were completely unwarranted in that there was no justification or logical basis to conclude that they had any involvement whatsoever in the alleged assault on Ms. Naulty. Indeed, all three African American suspects were working on a line in the Philadelphia Bakery at the time Ms. Naulty alleged that she was assaulted.
39. Shortly thereafter, Ms. Dean, the employee relations manager who assisted with Kraft's investigation of the incident, told Kelly Wojakowski, Kraft's Human Resources Manager, and Larry Campbell, the Plant Manager, that she concluded that Davis had no involvement in the incident. Still, these employees continued to be suspended by the Company.
40. On June 11,2002, approximately two and a half months after Davis was suspended without pay, Kraft finally wrote a letter to Davis stating that its investigation revealed that Davis had no direct involvement in the incident that OCCUlTed on April 1, 2002. Kraft fUliher informed Davis that the "company reserves the right to continue the investigation as new information is received."
41. Although Davis was cleared of any wrongdoing with respect to the Naulty incident, Kraft further stated in its letter that its "investigation has uncovered that [Davis] created a hostile and disruptive work environment for [her] co-workers on 3115/03, as well as used abusive and harassing language, including profanity, racial and sexual oriented slurs towards
10

other co-workers." Based on these brand new and unsubstantiated allegations, Kraft discharged Davis in that same correspondence absolving her of any wrongdoing in the Naulty incident.
42. Prior to her April 3, 2002, unjust suspension by Kraft, Davis had never been written up or disciplined by the company, curing her five years working there.
43. In addition, Caucasian employees accused of engaging in offensive conduct on the job have not been similarly discharged from their employment, and have received lesser disciplined for those offenses.
44. For example, shortly after Davis was terminated a verbal altercation arose between three Caucasian employees, Joseph Zimmer, Fred Novack and Dan McTaggert. These three employees used profanity and hurled abusive language at each other and created a disturbance in the workplace. All three had previously been written-up for workplace infractions, and two of the three had previously been issued final warnings.
45. In sharp contrast to the punishment exacted on Davis, who had no prior discipline, all three of these Caucasian employees remained employed by Kraft.
46. Plaintiff believes and therefore avers that she was subjected to unfounded accusations that were motivated solely by reasons of her race, was subjected to an unnecessary and protracted suspension with loss of pay, and was subjected to differential treatment in temlS ofthe new accusations leveled against here, culminating in her unlawful discharge from employment.
47. As a result of these aforesaid instances of race discrimination, Davis filed a Charge of Discrimination with the Philadelphia Human Relations commission and the United States Equal Employment Opportunity commission on April 9, 2002. She received notice of her right to sue from the EEOC on August 6, 2003.
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48. PlaintiffCanion is an African-American employee of Kraft who has been working

at the Philadelphia Bakery for more than 30 years.

49. Canion personally has received discipline that is disproportionate to what has

been received by white employees in the same situation.

a.

In 1997, Canion was attacked at work by a fellow employee named

Darcel1a Allen, and Canion's employment was terminated after she was falsely accused of

starting the fight. When Canion obtained a restraining order against Ms. Allen, Canion was

allowed to return to work but was forced to sign a "last chance" agreement, although she was not

at fault for the incident.

b.

To the best of Canion's knowledge and belief, a white employee

involved in a similar incident has not been forced to sign a "last chance" agreement to retain his

or her employment.

c. Canion has been disciplined several times for incidents in which white

employees, who were not disciplined, were equally or more at fault.

d.

In 2004, Canion was disciplined for allegedly using threatening language

and threatening a white coworker, Terry Natividad. In fact, Canion did not touch Ms. Natividad,

and spoke to her only to tell her to "move" away from the Oreo line after a supervisor

determined that Ms. Natividad was not doing her job correctly and instructed Canion to run the

entire line.

e. In 2004, Canion was disciplined for allegedly committing an error on the

Oreo line that resulted in unusable cookies. A white employee was responsible for the error, but

this employee refused to take responsibility, so Canion was disciplined. In situations in which

12

two white employees refuse to take the blame for similar errors, Canion has witnessed several

incidents in which Kraft does not choose to discipline anyone.

f.

In 2004, Canion was disciplined for failing to turn on a belt on the line that

resulted in a chute becoming jammed. Although Ms. Natividad was equally responsible for this

task, she was not disciplined.

g. In 2005, Canion was sitting with her feet on a chair during a period in

which the line was down. Another employee, Lucy Bell, walked by and pulled the chair out

from under her feet. Canion yelled at Ms. Bell that she would've moved her feet if Ms. Bel1 had

asked her to. Ms. Bel1 then yelled back that she would "do it again," leading to further argument.

Canion was suspended and allowed to return only after signing another Last Chance Agreement.

50. Canion has noted that when white employees are involved in an altercation in

which Kraft cannot establish the instigator, Kraft will choose not to discipline anyone involved

and will describe the incident as a "he said/she said" situation. When the employees involved

are African-American, however, Kraft always claims to have found the person at fault and

disciplines him or her, no matter how inconclusive the evidence. For example, after an argument

between an African-American employee (Carol Moses) and a white employee, the African-

American employee was terminated and did not get her job back until she went to court, while

the white employee was not disciplined.

COUNT I TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
42 U.S.c. § 2000e, et seq.

51. Plaintiffs reallege and incorporate by reference Paragraphs 1-50, above.

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52. Plaintiff Davis has filed a Charge of Discrimination with the Pennsylvania Human Relations commission and the EEOC on behalf of a class of African-American workers of the Philadelphia bakery and has received her notice of right to sue, as set forth above.
53. Kraft has discriminated against Plaintiffs and the Class with respect to the terms and conditions of employment because of their race, in violation of Title VII of the civil Rights Acts of 1964,42 U.S.C. § 200e et seq., as amended by the Civil rights Act of 1991.
54. Kraft's conduct has been intentional andlor has had disparate impact on Plaintiffs and the Class with respect to the terms and conditions of their employment.
55. By virtue of Kraft's conduct as alleged herein, Plaintiffs and the Class are entitled to an injunction ordering Kraft to cease its discriminatory policies, as alleged above. [Individually, Plaintiff is also entitled to compensatory damages in an amount to be determined at trial. Plaintiff also seeks an award of attorneys' fees and costs pursuant to 42 U.S.CO § 1988.]
COUNT II THE CIVIL RIGHTS ACT OF 1866
42 U.S.c. § 1981 56. Plaintiffs reallege and incorporate by reference Paragraphs 1-55, above. 57. Kraft has discriminated against Plaintiff and the class by denying them the same rights as enjoyed by Caucasian employees with regard to the making, performance, modification and termination of their employment relationship with Kraft and with regard to the enjoyment of all benefits, privileges, terms and conditions of that relationship in violation of the Civil rights Act of 1866 as amended, 42 U.S.CO § 1981. 58. Kraft's conduct has been intentional, deliberate, willful and conducted in callous disregard of the rights of Plaintiff and the class under the law.
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59. By virtue of Kraft's conduct as alleged herein, Plaintiff and the class are entitled to all equitable remedies available under the Civil Rights Act of 1866, as amended, as well as punitive damages. Individually, Plaintiff is entitled to compensatory damages, Plaintiff seeks an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988.
JURY DEMAND Pursuant to Fed. R. Civ. P. 38, Plaintiffs demand a trial by jury as to all issues so triable.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that the court enter an order:
a. Certifying this action as a class action, with Plaintiffs as the class Representati ve;
b. Adjudicating and declaring that Kraft's conduct as set forth above is in violation of 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981;
c. Permanently enjoining and prohibiting Kraft and its officers, agents, employees and successors from continuing to engage in the practices complained of herein;
d. Pennanently enjoining and requiring Kraft to adopt policies and practices that ensure the cessation of all discriminatory practices affecting Plaintiffs and the Class and requiring the institution of such measures as to ensure that these practices do not re-emerge;
e. Requiring Kraft to provide such relief to Plaintiffs and the class that would put them in the positions that they would otherwise be in but for Kraft's illegal discrimination;
f. Awarding Plaintiffs and the class such equitable remedies, including, without limitation, back pay and front pay, necessary to provide Plaintiffs and the Class with full relief from the discrimination they have suffered.
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g. Awarding Plaintiffs and the Class punitive damages justified under the circumstances;
h. Awarding Plaintiffs compensatory damages on an individual basis; L Awarding attorneys' fees and reimbursement of costs associated with this action to Plaintiff's Counsel; J. Retaining jurisdiction to ensure that Kraft fully complies with the equitable relief ordered; and k. Awarding Plaintiffs and the Class such other and further legal and equitable relief as may be appropriate in the interest ofjustice.
Dated: June 30, 2006
Martin J. D'Urso, Christina Donato Saler, Esquire Kohn, Swift & Graf, P.C. One South Broad, Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Robert T. Vance, Jr., Esquire A. Michelle Campbell, Esquire 100 South Broad Street, Suite 1530 Philadelphia PA 19110 (215) 557-9550
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CERTIFICATE OF SERVICE I, Martin J. D'Urso, hereby certify that, on this 30th day of June, 2006, a true and correct
copy of Plaintiffs' Amended Class Action Complaint was served upon the following via
facsimile and first class mail:
Marguerite S. Walsh, Esquire Michele Halgas Malloy, Esquire Littler Mendelson, P.C. Three Parkway, Suite 1400 1601 Cherry Street Philadelphia, PA 19102

 
 Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

2006 WL 237512 United States District Court,
E.D. Pennsylvania.
Debra DAVIS, on behalf of herself and all other similarly situated persons v.
KRAFT FOODS NORTH AMERICA
No. Civ.A. 03-6060. | Jan. 31, 2006.
Attorneys and Law Firms
Shanon J. Carson, Stephen A. Whinston, William T. Coleman, III, Berger & Montague P.C., Philadelphia, PA, for Debra Davis.
Allan G. King, Littler, Mendelson, Dallas, TX; Marguerite S. Walsh, Michele Halgas, Littler, Mendelson PC, Philadelphia, PA, for Kraft Foods North America.
Opinion
MEMORANDUM
DIAMOND, J.
*1 Debra Davis charges that Kraft Foods has discriminated against African-American employees with respect to job discipline and classification. 42 U.S.C. §§ 2000e, et seq.; 42 U.S.C. § 1981. Ms. Davis asks me to certify a class of all African-American hourly employees who worked in Kraft’s Philadelphia Bakery at any time from November 3, 1999 to the present. Kraft responds that Ms. Davis failed to exhaust her administrative remedies with respect to the Title VII class claims. Kraft also argues that Ms. Davis cannot bring a class claim under Title VII or § 1981 because she does not meet the commonality, typicality, and adequacy requirements for class certification.
I agree with Kraft in part. Although it is a close question, I do not agree that Ms. Davis failed to exhaust her administrative remedies with respect to her Title VII class claims. I agree with Kraft, however, that Ms. Davis cannot meet the law’s typicality requirements with respect to her job classification claims, and so deny certification of those claims with prejudice. As to the claims of discriminatory discipline, I deny class certification without prejudice so that Davis may obtain new counsel.
Finally, Kraft has moved to strike the report of Plaintiff’s expert. I deny the motion without prejudice to the extent

that it relates to disciplinary issues, and deny the remainder of the motion as moot.
BACKGROUND
I. Davis’s Class Allegations
A. Job Classification Nabisco operated a bakery in the Northeast section of Philadelphia until December 2000, when Kraft acquired Nabisco, assuming all Nabisco’s assets and liabilities. (Pl.Ex. 6, Phillip Morris Cos., Inc. Form 10 K, dated December 31, 2000, at 12, Pro Forma Condensed Combined Balance Sheet). The Philadelphia Bakery makes cookies and crackers.
From November 1999 to the present, the Philadelphia Bakery has employed some 450 to 600 hourly workers and 60 to 70 salaried employees. (Pl.Ex. 8, Savoy Dep. at 63; Pl.Ex. 9, Beitzel Dep. at 91; Pl.Ex. 5, Phila. Bakery Supervisory Guidelines Handbook at 4). Approximately half the hourly workforce is African-American. (Pl.Ex. 8, Dep. of Savoy at 64). The hourly workers are represented by the Bakery, Confectionary and Tobacco Workers’ International Union AFL-CIO Local 492, which has negotiated a Collective Bargaining Agreement with Kraft. (Def. Memo. of Law in Opp. to Class Cert. and in Support of Mot. to Strike Pl.’s Expert Rep., p. 3).
The Bakery has seven departments comprised of skilled and semi-skilled positions. (Pl.Ex. 2, 2001-2004 Collect. Barg. Agmt. at p. 28; Pl.Ex. 9, Beitzel Dep. at 202-203). Plaintiff alleges that African-Americans are under-represented in the Bakery’s higher paying skilled jobs. See Pl.Ex. 4, Expert Report of David L. Crawford, Ph.D., at ¶ 19.
Davis also alleges that Kraft discriminates against African-American employees in the assignment of entry-level positions. Labor Schedulers-who are salaried supervisors-make job assignment decisions at the Bakery. All new hourly employees are hired as trainees. (Pl.Ex. 11, Doyle Dep. at 275). Plaintiff alleges that after the training period, Labor Schedulers have discretion in assigning new hires to one of two permanent entry level hourly positions: “General Help” or “Floor Help.” (Id. at 319-320, 324). “General Help” is the lowest paid level of Bakery work; “Floor Help” employees receive higher pay and other advantages, such as preference in the assignment of overtime work. (Pl.Ex. 2, 2001-2004 Collect. Barg. Agmt. at 28, Appendix D; Pl.Ex. 12, Matthews Dep. at 115). Plaintiff alleges that nonminorities were assigned to the “Floor Help” category
1

Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

more frequently than minorities. (Pl.Ex. 12, Matthews Dep. at 115-117).
*2 Job classifications at the Bakery are determined on a seniority-based bidding process. (Pl.Ex. 9, Beitzel Dep. at 210; Pl.Ex. 2, 2001-2004 Collect. Barg. Agmt. at p. 3, Article 5). Each hourly employee has plant-wide seniority based on the date of hire, as well as seniority within his or her department classification. (Pl.Ex. 11, Doyle Dep. at 156-158). The Collective Bargaining Agreement states that, “[t]he ability of candidates being equal, the senior employee shall be given preference” in filling job vacancies. (Pl.Ex. 2, 2001-2004 Collect. Barg. Agmt. at p. 3, Article 5, Section 3). The Agreement thus requires Kraft to fill both permanent and temporary vacancies on the basis of seniority. (Pl.Ex. 11, Doyle Dep. at 166-69, 178-79, 184.) Plaintiff alleges that Kraft management nonetheless retains discretion in assigning employees to temporary vacancies. (Pl. Mem. in Support of her Motion for Partial Summ. Judg. at p. 8-9). Many of these temporary positions become permanent assignments, with the potential for higher pay. (Pl.Ex. 11, Doyle Dep. at 222; Pl.Ex. 10, Campbell Dep. at 288-289, Pl.Ex. 2, Collect. Barg. Agmt. at p. 11-12, Article 24). Plaintiff alleges that Kraft placed more nonminorities in temporary vacancies that became permanent positions, circumventing the bidding process required by the Agreement.
B. Kraft’s Disciplinary System Under the Collective Bargaining Agreement, the “full power of employee discipline and discharge lies with the Company.” Kraft maintains a “progressive discipline policy” with respect to hourly employees, as explained in the Bakery’s Supervisory Guidelines Handbook. Under this policy, infractions are deemed either major or minor. (Pl.Ex. 5, Phila. Bakery Supervisory Guidelines Handbook at 19). Major infractions include “fighting, threatening bodily injury, using abusive, threatening language or exhibiting any type of harassment towards fellow employees or management.” (Id. at 18). Minor infractions include tardiness and absenteeism. (Pl.Ex. 10, Campbell Dep. at 213-214). An employee committing a major infraction is subject to immediate suspension pending investigation or discharge. (Id. at 19). An employee committing a minor infraction is subject to five levels of discipline: 1) counseling; 2) verbal warning; 3) written warning; 4) disciplinary suspension; 5) suspension pending investigation or discharge. (Id. at 19-20). Supervisors decide levels of discipline up through suspension, and provide discipline-related coaching, counseling, and warnings. (Pl.Ex. 10, Campbell Dep. at 208-209; Pl.Ex. 13, Wojakowski Dep. at 66).
Kraft’s Human Resources Department usually becomes involved in the discipline process when a suspension is

warranted. (Pl.Ex. 10, Campbell Dep. at 215). Kraft’s department heads-and sometimes the Plant Manager-also become involved if termination is considered. (Id. at 217-18). Kraft maintains “zero tolerance” of harassment in the workplace. (Id. at 155). Supervisors and managers have the discretion to impose a range of discipline when an employee violates the “zero tolerance” policy. (Id. at 179-80; Pl.Ex. 13, Wojakowski Dep. at 55-56; Pl.Ex. 8, Savoy Dep. at 183-84).
*3 An hourly employee may challenge any disciplinary measure by filing a Union grievance, which the employee may appeal through several levels of review: 1) the employee’s immediate supervisor; 2) the department head; 3) the HR Manager; 4) the Plant Manager; and 5) Kraft’s representative from outside the Philadelphia Bakery. (Pl.Ex. 2, 2001-2004 Collect. Barg. Agmt. at 14, Article 31; Pl.Ex. 11, Doyle Dep. at 37, 42, 46). Once the employee has gone through these levels of review, the Union may pursue the grievance to arbitration. Managers and supervisors have significant discretion in deciding grievances at the first and second levels. (Pl.Ex. 11, Doyle Dep. at 37; Pl.Ex. 13, Wojakowski Dep. at 34-35).
Ms. Davis’s expert witness examined Kraft’s Human Resources Database and concluded that: 1) sanctions were more likely to be assessed against African-American employees, and 2) the most severe disciplinary sanction-termination-was invoked more frequently against African-Americans. (Pl.Ex. 4, Expert Report of Dr. David L. Crawford, Ph.D. at ¶¶ 25, 26).
II. Allegations Relating to Kraft’s Treatment of Plaintiff Nabisco hired Ms. Davis on August 12, 1997. (Complaint ¶ 30). After completing an initial training period, she worked as a machine operator. (Def. Ex. F, Dep. of Debra Davis, p. 35-38). Her initial hourly compensation was $11.30. (Def.Ex. C, Coll.Barg.Agmt.1996-2001). Having received regular raises, she earned $18.94 an hour at the time of her 2002 termination. (Def.Ex. C, Coll.Barg.Agmt.2001-2004). During her nearly five-year tenure at the Bakery, she continued as a machine operator and never bid on any other job. (Def. Ex. F, Dep. of Debra Davis, p. 89-90).
On March 15, 2002, Bakery worker Veronica Naulty wore a green shirt to celebrate St. Patrick’s Day. (Id. at p. 139-145; 167-170). Ms. Davis complained that Naulty, a Caucasian, was not wearing the required Kraft uniform. (Id. at p. 139-145). Naulty’s supervisor directed her to change into her uniform. (Id. at p. 145). Naulty complained about the incident, prompting further investigation. (Id. at p. 150-152).
At the conclusion of the March 15th shift, there was a
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Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

two-week layoff of all Bakery production workers. (Id. at p. 165-166; Def. Ex. A, Dep. of Kelly Wojakowski at p. 97-98). Ms. Naulty, Ms. Davis, and other production workers returned to the Bakery on April 1st. (Def. Ex. F, Dep. of Debra Davis, p. 165-166). That evening, Naulty alleged that while she was in the women’s locker room, someone stabbed her. (Def. Ex. G, Investigation Notes p. 1-2). She reported to the nurse’s station with back lacerations and a ripped shirt, but could not identify the perpetrator. (Id.) Kraft immediately investigated the incident. (Id.) After interviewing several Bakery workers, Kraft suspended three African-American employees without pay pending further investigation: Angela Price, Tracy Dunston, and Ms. Davis. (Def. Ex. A, Dep. of Kelly Wojakowski at p. 211-215).
*4 During the Naulty investigation, Kraft learned that on the evening of March 15th, African-American employee Eric Gray defended Naulty to Ms. Davis. (Id. at p. 185-189). According to Mr. Gray and another employee, Ms. Davis responded by calling Mr. Gray “a faggot, a sellout, an Uncle Tom, a Nazi.” (Def. Ex. Q, Dep. of Sondra Dean I, p. 196-199). Ms. Davis has consistently denied making these comments to Mr. Gray.
Kraft never determined who had assaulted Ms. Naulty. (Def. Ex. A, Dep. of Kelly Wojakowski, p. 208-210). Consequently, Kraft permitted both Ms. Price and Ms. Dunston to return to work with back pay. (Id. at 211-215). Kraft concluded that Ms. Davis’s alleged statement to Eric Gray, however, had violated its “zero tolerance” anti-harassment policy, and terminated her employment. (Def. Ex. C, June 11, 2002 letter and Def. Ex. B, July 1, 2002 letter). Ms. Davis unsuccessfully challenged both her suspension and termination through the five-step internal grievance process. (Def. Ex. F, Dep. of Debra Davis at p. 105-106; Def. Ex. I, August 29, 2002 letter and October 29, 2002 letter from Carolyn Binder to Debra Davis). The Union declined to pursue arbitration. (Id.)
Plaintiff alleges that Caucasian employees accused of engaging in conduct no less offensive than her alleged remarks to Eric Gray went undisciplined, or received less severe sanctions than termination. (See, e.g., Pl.Ex. 9, Beitzel Dep. at 281, 310).
DISCUSSION
I. Plaintiff’s Title VII Class Claims Are Not Procedurally Barred Kraft contends that I should deny class certification under Title VII because Davis did not file a charge of class-wide discrimination with the Equal Employment Opportunity Commission. I disagree.

As a threshold matter, Ms. Davis contends that Kraft waived its administrative exhaustion argument by failing explicitly to include it as an affirmative defense in its Answer. The record shows that exactly the opposite is true: Kraft’s Affirmative Defense No. 8 states, “Ms. Davis and the other allegedly similarly situated employees have failed to exhaust their administrative remedies.” (Def. Answer and Affirmative Defenses, p. 10). Accordingly, I conclude that Kraft has preserved the argument, whose merits I now evaluate.
Title VII requires that claimants exhaust their administrative remedies before they may proceed in federal court. Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.1997). Thus, a Title VII plaintiff must first file a discrimination charge with the EEOC, which may issue a “right to sue” letter if it cannot resolve the matter in 180 days. 42 U.S.C. § 2000e-5(e)(1), (f)(1). The scope of any ensuing federal lawsuit is limited by the “scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir.1978) (internal citations omitted).
On April 9, 2002, Ms. Davis, acting pro se, filed dual charges with the Philadelphia Commission on Human Relations and the EEOC, alleging that Kraft discriminated against her when it suspended her without pay pending the outcome of the Naulty investigation. (Def. Sur-Reply Brief, Ex. C, Letter from Stephen A. Whinston, Esq. to Marguerite S. Walsh, Esq., July 8, 2005). She filed a second charge with the PCHR and EEOC on June 19, 2002, alleging discrimination related to her termination. Id. It appears that these submissions relate exclusively to Ms. Davis’s individual claims of discrimination.
*5 On December 9, 2002, Ms. Davis sent a letter to her PCHR investigator, in which she compared her discipline to the discipline imposed on Caucasian employees:
These documents will exhibit the same behavior that I was accused of and was terminated for.... None of these employees were terminated who was involved. Here I am being terminated for allegely [sic] doing the same thing that these people were found to have done. The company has a history of being inconsistent and unfair with how they handle disciplinary actions with minorities and the severity of the actions taken against minorities.
(Pl. Corrected Reply Mem., Ex. A, Letter from Debra
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Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

Davis to Mr. Cowell, Dec. 9, 2002, p. 1) (emphasis added). With her December 9th letter, Ms. Davis submitted “documentation of cases involving employees of Kraft/Nabisco Philadelphia Bakery.” (Id.) Ms. Davis included in these papers her own handwritten descriptions of Kraft’s allegedly discriminatory acts against other minority employees, including the following:
I ask that you view the time frames on time frame [sic] on minorities cases. Notes: There are discrepancies in the way minorities are being disciplined and the severity of the disciplinary actions. Although some of these findings dates [sic] back to 1999 they are still in existing [sic] today.
(Id. at p. 10) (emphasis added).
Apparently conceding that her April and June EEOC submissions did not contain class-based allegations, Ms. Davis argues that I should construe her December 9th submission as amending her original EEOC charge to add a class claim. Federal regulations provide that EEOC charges may be amended to “clarify and amplify allegations made therein.” 29 C.F.R. § 1601.12(5)(b). The Third Circuit has held that, “[o]nce the charging party has done all that he can reasonably do to amend his charge in accordance with the Commission’s regulations, the statutory policy of providing the EEOC with an opportunity to reconcile the grievance has been fulfilled.” Hicks, 572 F.2d at 964. Although the Third Circuit has not yet addressed the question of what submissions to the EEOC constitute amendments, other courts have liberally construed letters and related documents sent to the EEOC as amending the original charges. See, e.g., Atkinson v. Washington International Ins. Co., 1995 U.S. Dist. LEXIS 1865, at *25-27 (N.D.Ill. Feb. 14, 1995) (holding that a detailed letter with various exhibits submitted by the claimant to the EEOC and containing a new allegation of constructive discharge was tantamount to a request for an amended charge). This is particularly true where the plaintiff was acting pro se during the administrative proceedings. See Jenson v. Eveleth Taconite Co., 139 F.R.D. 657, 666 (D.Minn.1991) (allowing as an amendment class based allegations made four years after the complainant’s initial pro se charge). Here, Ms. Davis was proceeding pro se when she made the December 9th submission to the PCHR. In these circumstances, I believe that submission amended her original EEOC charge.
*6 I must next consider whether the allegations in the December amendment are sufficient to allege class-based claims. In Lusardi v. Lechner, the Third Circuit underscored that a plaintiff may make class allegations even though she does not use the actual words “class action” in her EEOC charge. 855 F.2d 1062, 1078 (3d Cir.1988). This is in keeping with the great weight of authority that plaintiffs may proceed in federal court both as to those claims explicitly contained in or “reasonably

related” to their EEOC charges. Jenkins v. Blue Cross Mut. Hospital Ins., Inc., 538 F.2d 164, 167 (7th Cir.1976); Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.1971); Money v. Provident Mutual Life Co., 2004 U.S. Dist. LEXIS 10530, at *5 (E.D. Pa. June 3, 2004). Once again, a claim is reasonably related if the conduct complained of “would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Hicks, 572 F.2d at 966 (3d Cir.1978) (internal citations omitted). Accordingly, a plaintiff may prosecute a class claim of discrimination in district court only if the court determines that the class claim could reasonably have been expected to grow out of the discrimination charge filed with the EEOC. See Id. (plaintiff could prosecute his claims of sex discrimination only if that claim could have grown out of his original discrimination charge). In making this determination, the court must examine: 1) whether the disputed claim would have been discovered by the EEOC in the course of a reasonable investigation, and 2) whether the claim “which would have been uncovered [was] reasonably within the scope of the charge filed with the EEOC.” Id. at 967.
In her December 9th submission, Ms. Davis, acting pro se, plainly was trying to alert the EEOC to her belief that Kraft had a history of discriminatory discipline with respect to minorities. In these circumstances, “the scope of [Ms. Davis’s] ... complaint could include class allegations since EEOC investigation of class discrimination against [minorities] could reasonably be expected to grow out of her allegations....” Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir.). See also Paige v. California, 102 F.3d 1035 (9th Cir.1996) (allegations of racial discrimination in a state examination process necessarily would have required the EEOC to investigate potential class-based discrimination in that process). Accordingly, I conclude that an EEOC investigation respecting discrimination against African-Americans as a class could reasonably be expected to have grown out of the discrimination charges brought by Ms. Davis.
Kraft argues that even if Ms. Davis’s December 9th submission amended her EEOC charge to include class-based claims, she may not now bring those claims because Kraft did not receive notice of them until after she filed the instant lawsuit. (Trans. of Sept. 8, 2005 Oral Arg. at 19). Yet, the Third Circuit has held that a plaintiff will be deemed to have exhausted her administrative remedies “even where the EEOC has failed to give defendant notice of the charge or has failed to attempt to reconcile the parties either because of administrative failure or because of its finding of no cause.” Hicks, 572 F.2d at 966. Kraft correctly observes that in Lusardi v. Lechner, the Third Circuit stressed that an EEOC charge should place the defendant on notice of class-based allegations. 855 F.2d at 1078. I do not believe, however,
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Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

that the Lusardi Court intended to penalize a civil rights plaintiff for the EEOC’s failure to notify a defendant of class-based allegations. This is particularly true where, as here, the plaintiff acted pro se before the EEOC. See Gamble v. Birmingham Southern Railroad Co., 514 F.2d 678, 688-689 (5th Cir.1975) (Title VII’s notice and conciliation requirements must yield to its more basic purpose-to protect persons against employment discrimination).
*7 In sum, I find that Ms. Davis’s class claim falls within the scope of the EEOC investigation that could reasonably have been expected to grow out of her charge of discrimination. I thus reject Kraft’s administrative exhaustion argument.
Kraft next argues that Ms. Davis cannot bring Title VII class claims on behalf of those persons who themselves were time-barred from proceeding before the EEOC when Ms. Davis first brought her administrative charge. See Wetzel v. Liberty Mutual Life Ins. Co., 508 F.2d 239, 246 (3d Cir.1975). Title VII bars any administrative claim brought more than 300 days after the claim arose. See 42 U.S.C. § 2000e-5(e)(1) (imposing a 300-day limit where proceedings are instituted before a state or local agency). Here, Ms. Davis filed her discrimination charge with the PCHR on April 9, 2002. Accordingly, it appears that those putative class members whose claims of discrimination arose before June 14, 2001, cannot be included in any proposed Title VII class.
II. Certification of Plaintiff’s Title VII and § 1981 Claims To certify the proposed class, I must conclude that Plaintiff has satisfied all the prerequisites of Fed.R.Civ.P. 23(a), and fulfilled at least one of the requirements of Rule 23(b). See Georgine v. Amchem Products, Inc., 83 F.3d 610, 624 (3d Cir.1996), aff’d, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Nelson v. Astra Merck, Inc., 1998 U.S. Dist. LEXIS 16599, at *2 (E.D.Pa. Oct. 21, 1998). Rule 23(a)’s threshold requirements are typicality, adequacy, numerosity, and commonality. Fed.R.Civ.P. 23(a). Ms. Davis seeks certification pursuant to Rule 23(b)(2), under which a class action may be maintained if “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). Ms. Davis has the burden to show that the class should be certified. See Freedman v. Arista Records, 137 F.R.D. 225, 227 (E.D.Pa.1991) (citing Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir.1974)).
In determining whether to certify, I must accept as true all substantive allegations in the Complaint. See Blacki v.

Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); see also Lyon v. Caterpillar, Inc., 194 F.R.D. 206, 209 (E.D.Pa.2000); Steward v. Associates Consumer Discount Co., 183 F.R.D. 189, 193 (E.D.Pa.1998). I may look beyond the four corners of the Complaint for purposes of class certification, but I may not consider “whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (internal quotations omitted).
A. Typicality Ms. Davis seeks to represent a class of African-American hourly employees at the Bakery against whom Kraft discriminated, “particularly in the areas of job classification and discipline.” (Pl. Mem. of Law in Supp. of Mot. for Partial Class Cert. at p. 1). Kraft contends, inter alia, that she cannot meet Rule 23’s typicality requirements with respect to her job classification claims.
*8 To determine typicality, I must examine whether “the named plaintiff’[s] individual circumstances are markedly different or ... the legal theory upon which the claims are based differs from that upon which the claims of other class members will perforce be based.” Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir.1985) (internal quotations omitted). The Third Circuit has cautioned that “Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class, and that the named plaintiff demonstrate a personal interest or threat of injury ... [that] is ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.” ’ Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir.1988) (internal citations omitted).
In keeping with the Third Circuit’s formulation in Hassine, courts making typicality analyses have required that class representatives experience the same kinds of harm suffered by class members. For example, in General Telephone Co. of the Southwest v. Falcon, the putative class representative, a General Telephone employee, alleged that the company had failed to promote him because he was Mexican-American, and sought class certification of all individuals the company had failed to hire or promote on discriminatory grounds. 457 U.S. 147, 152, 158-59, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The Supreme Court reversed the decision to certify, holding that the representative’s failure to promote claim was not typical of those class members who were not hired:
[The employee]’s complaint provided an insufficient basis for concluding that the adjudication of his claim of discrimination in
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Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

promotion would require the decision of any common question concerning the failure of [General Telephone] to hire more Mexican Americans ... it was error for the District Court to presume that [the employee]’s claim was typical of other claims.
Id. at 158-159. See also Thompson v. American Chain & Cable Co., 84 F.R.D. 406, 407 (D.Conn.1979) (the claims of plaintiff employees were not typical of potential class members who were denied employment or deterred from seeking employment).
Applying these typicality criteria here may well compel me to come to different conclusions respecting plaintiff’s job classification and discipline claims.
Discriminatory Job Classification Ms. Davis alleges that Kraft discriminated with respect to job classification by: 1) hiring minority employees into the “lowest paid” entry level position of “general help,” 2) assigning African-American employees to lower wage grade categories than Caucasian employees, and 3) temporarily assigning non-minority employees to higher wage grades. (Trans. of Sept. 8, 2005 Oral Arg. at 6-8). Collectively, Ms. Davis refers to these allegations as “job classification claims.” Id. at 6.
I am compelled to note that Ms. Davis included no job classification claim in her EEOC charges. In these circumstances, I do not believe that her job classification claims could reasonably have been “expected to grow out of the charge of discrimination” in imposing discipline. Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir.1978). Thus, it appears that Ms. Davis failed to exhaust her administrative remedies with regard to her job classification claims.
*9 Nevertheless, assuming arguendo that her job classification claims are not procedurally barred, they do not pass muster under Rule 23(a). Ms. Davis has neither alleged nor shown that she suffered any of the wrongs that make up her job classification claims. Ms. Davis testified that Kraft did not assign her to an entry-level position of “general helper,” but rather hired her as a machine operator, a higher-paid position. (Davis Dep. at 35; Pl.Ex. D, 2001-2004 Collect. Barg. Agmt.). In addition, Ms. Davis never sought promotion, nor did she otherwise bid for any other positions. (Davis Dep. at 60-61; 64). The record also does not indicate that Ms. Davis ever sought or was discouraged from seeking a temporary or permanent position with a higher pay grade. In these circumstances, argues Kraft, Plaintiff’s claim with respect to job classification is not “typical” of the proposed class.

Ms. Davis responds that her claims are typical because she was “harmed by working in a segregated and racially stratified workforce, where opportunities are severely limited based upon race.” (Pl. Corrected Reply Memo. in Support of Pl. Mot. for Partial Class Cert., p. 16). In support, she offers her deposition testimony:
Question: Do you believe that you received lower compensation at the Bakery because you are African-American?
Answer: Yes.
Id. at p. 16 n. 11. Ms. Davis has never explained the basis of this belief. For instance, she has not alleged that she earned less than Caucasian machine operators. Nor does Ms. Davis point to any opportunities that she was denied or to any harm or potential injury that she suffered as a result of Kraft’s job classification practices. In these circumstances, Plaintiff has no job classification claim to bring. Her non-existent “claim” obviously cannot typify those of other class members. See Hassine, 846 F.2d at 177 (noting that the representative plaintiff must demonstrate a “real and immediate” personal interest or threat of injury).
Discriminatory Discipline In contrast, Ms. Davis’s claim that she was a victim of discriminatory discipline may well satisfy the Third Circuit’s typicality requirements: her suspension and termination demonstrate a “personal interest or threat of injury ... [that] is ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.” ’ Hassine, 846 F.2d at 177. As I explain below, however, I defer judgment on this question.
B. Adequacy To certify, I must conclude that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). This requirement has two components: 1) adequacy of class counsel, and 2) adequacy of the class representative.
To meet the adequacy requirement, counsel must have the ability and incentive to represent the class vigorously. In re Cendent Corp. Litig., 264 F.3d 201, 265 (3d Cir.2001). I may not appoint class counsel whose interests conflict with those of the class. Cf. Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 964 (3d Cir.1983) (suggesting circumstances in which class counsel could have conflicts of interest requiring separate representation). In determining adequacy of representation, I “must consider not only actual but also potential conflicts of interest that may arise during the course of litigation of the class
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Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

claims.” Polak v. Noel Indust., Inc., 64 F.R.D. 333, 336 (S.D.N.Y.1974).
*10 Kraft argues that Davis’s counsel, the law firm of Berger & Montague, is inadequate to represent the class because it has a conflict of interest with respect to the disparate discipline claim. Berger & Montague also represents Kraft’s former Employee Relations Manager, Sondra Dean, in a separate employment discrimination suit against Kraft currently set for trial on March 13, 2006. Dean v. Kraft Foods North America, Inc., 2:02-cv-8609-WY (E.D.Pa.) (Yohn, J.). Ms. Dean has testified that she was responsible for conducting pre-discipline investigations and, in many instances, disciplining African-American Bakery employees during her employment at Kraft from 1996 to 2002. (Dean I dep., 5/25/04, at p. 211, Ex. H). Ms. Dean emphasized that she performed these disciplinary tasks fairly and without regard to race. (Id.).
Significantly, Ms. Dean was involved in the investigation that led to Plaintiff’s suspension, and ultimately concurred in the decision to suspend Ms. Davis. (Dean Dep, 4/20/05, at p. 183-184). In addition, Ms. Dean has testified that once Kelly Wojakowski was appointed as Human Resources Manager at the Philadelphia Bakery in October 2001, Ms. Dean was responsible for investigating disciplinary incidents involving minorities:
[The][w]ay that it broke down is that I ended up getting involved in incidents dealing with minorities, and Kelly was handling all the incidents dealing with whites.
Id. at p. 220-221. Ms. Dean’s position also required her to investigate, defend, and resolve disputes regarding disciplinary decisions made through the Union grievance procedure. (Dean Dep. 5/25/04 at p. 211). See also Def. Ex. R, Expert Report of Dr. Bernard R. Siskin at 18 (concluding that Dean was the second most frequent discipliner of African-American Bakery employees during the proposed class period).
Kraft contends that Dean’s admitted role in disciplining minority employees and her concurrence in the decision to suspend Ms. Davis have put Berger & Montague in an untenable position: if the firm is adequately to represent class members-minorities who allege their discipline was the result of discrimination-then the firm must attack its client, Ms. Dean, who was involved in making those disciplinary decisions. Similarly, if Berger & Montague is adequately to represent Ms. Davis, it must again attack Ms. Dean, who joined in the decision to suspend Plaintiff without pay for two and a half months. Kraft thus argues that Berger & Montague’s representation of both the proposed class and Ms. Dean creates a conflict of interest

under Pennsylvania Rule of Professional Conduct 1.7(b), which provides in pertinent part:
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person ... unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
*11 (2) the client consents after full disclosure and consultation.
As the Third Circuit has held, because consent after full disclosure is impossible in class actions, the district court must protect the class’s interests when a potential conflict arises:
[A]s counsel to parties to the litigation, class action counsel possess, in a very real sense, fiduciary obligations to those not before the court. The ultimate responsibility of course is committed to the district court in whom, as the guardian of the rights of the absentees, is vested broad administrative, as well as adjudicative, power.
Greenfield v. Villager Indus., Inc., 483 F.2d 824, 831-32 (3d Cir.1973). See also Roger C. Cramton, Symposium: Individualized Justice, Mass Torts, and “Settlement Class Actions”: An Introduction, 80 Cornell L.Rev. 811, 834 (May 1995) (stating that “ultimately the consent requirement [in Rule 1.7(b) ] must be met by court scrutiny of the situation”).
The Berger firm strenuously contends that it is not burdened by a conflict. It offers the opinion of ethics expert Geoffrey Hazard that any consideration of conflict is premature:
[A]s the evidence now stands, Ms. Dean states that she participated in investigation of facts concerning disciplinary actions of Kraft, but did not participate in decisions concerning discipline itself.
Pl. Letter Brief in Further Support of Class Cert., Ex. C, 12/15/05 Letter from Geoffrey C. Hazard, Jr. at p. 1.
Professor Hazard’s reading of the record is simply wrong. There is abundant evidence-much of it from Ms. Dean herself-that Dean participated in the actual decisions to discipline minority employees during the proposed class
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Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

period. For example, at Ms. Dean’s deposition, the following exchange occurred:
Q: Did you discipline employees when you worked at Kraft-at the Philadelphia bakery both before and after the Kraft acquisition?
A: That was part of my job, yes.
Dean Dep., 5/25/04, at 211; see also Def. Letter Response to Pl. Letter Brief in Further Support of Class Cert., 12/23/05, Ex. J (noting that Ms. Dean suspended African-American hourly employees in March 2000, August 2000, and August 2002); Def. Letter Response to Pl. Letter Brief in Further Support of Class Cert., 12/23/05, Ex. G, Dean Dep., 5/25/04, at 212-213 (acknowledgment by Ms. Dean that she had the authority to make final disciplinary decisions in certain categories of violations, such as attendance issues). In these circumstances, I cannot see how the Berger firm can attack these decisions as racist-which it must do if it is adequately to represent the proposed class of minority workers-without attacking its client Ms. Dean. Indeed, Professor Hazard notes that if there were evidence of Ms. Dean’s participation in such discipline decisions, “the issue of conflict might be reconsidered.” (Pl. Letter Brief in Further Support of Class Cert., Ex. C, 12/15/05 Letter from Geoffrey C. Hazard, Jr. at p. 1).
*12 Moreover, even under Professor Hazard’s inexplicably flawed reading of the record, there remains a serious potential conflict of interest that could well compromise the Berger firm’s efforts in this case. If Kraft even partly based its decisions to discipline minority employees on an investigation Dean conducted, the Berger firm could well be obligated to attack the investigator as racist. In these circumstances, only the retention of new counsel could ensure vigorous class representation. See Regan Henry Broadcast Group, Inc. v. Hughes, 1992 U.S. Dist. LEXIS 9718, at *15 (E.D. Pa. June 18, 1992) (the district court has latitude in refusing waivers of conflicts of interest where the potential for conflict exists (citing Wheat v. United States, 486 U.S. 153, 163, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988))).
To underscore the Berger firm’s difficulties, Kraft describes the inconsistent positions the firm has taken with respect to Ms. Davis’s suspension. Kraft notes that in her Complaint-prepared and filed by the Berger firm-Ms. Davis alleged that her suspension was an example of Kraft’s “discriminatory disciplinary practices,” and that the suspension was “unjust.” (Compl. §§ 12, 40). Ms. Davis’s Memorandum in Support of Class Certification states:
Based on the fact that ... Ms. Davis was African-American, Kraft immediately suspended Ms. Davis

and two other African-American women.... Defendant ignored the fact that a Caucasian employee ... was in or near the locker room at the time of the alleged attack, and did not suspend or investigate her.
(Pl. Mem. in Support of Class Cert. at 23-24). It is extremely troubling that the Berger firm took exactly the opposite position only after Kraft raised the conflict question. At oral argument, when asked to explain how the Berger firm could represent both Ms. Davis and Ms. Dean, Plaintiff’s counsel stated, “we’re not complaining about the suspension at all.” (Trans. of Sept. 8, 2005 Oral Arg. at 28). Rather, Plaintiff’s counsel asserted that Ms. Davis was arguing that only her termination was discriminatory. The firm has explained that Kraft reinstated Ms. Price and Ms. Dunston with back pay at the conclusion of the Naulty investigation. The Berger firm thus argues that, were it not for the separate incident of alleged harassment for which she was terminated, Ms. Davis would likewise have been reinstated with pay. Thus, the Berger firm argues, the only disciplinary measure that adversely affected Ms. Davis was her termination: “Ms. Davis could not assert a claim for discriminatory suspension because no adverse consequence can be linked to the suspension.” (Pl. Surreply Brief, 1/5/06, at p. 2).
I do not understand the firm’s explanation of its actions. If Ms. Davis’s suspension claim was frivolous, surely the Berger firm would not have included it in her Complaint and class certification memorandum. In fact, the suspension allegations, if true, are quite serious. If Kraft suspended Ms. Davis for racist reasons, she could well be entitled to redress, regardless of whether or not she was reinstated with back pay. See, e.g., Reyes v. City College of the City Univ. of N.Y., 2005 U.S. Dist. LEXIS 26953, at *9 (S.D.N.Y. Nov. 4, 2005) (under Title VII, a suspension, even without a loss of pay, is a materially adverse employment action, given the likelihood that the suspension could remain in a personnel file or diminish prospects for promotion) (internal citations omitted); cf. Torre v. Casio, Inc., 42 F.3d 825, 831 n. 7 (3d Cir.1994) (concluding that a transfer, even without loss of pay, may in some circumstances constitute an adverse job action). Moreover, conflict-free counsel would undoubtedly point to the allegedly racist decision to suspend Ms. Davis as powerful evidence in support of the class’s racially disparate discipline claim. See, e.g., Lusardi v. Lechner, 855 F.2d 1062, 1073 n. 13 (3d Cir.1988) (a pattern of disparate treatment may be established through statistical and anecdotal evidence of discriminatory intent) (internal citations omitted). In fact, in its class certification memorandum, the Berger firm observed that “Plaintiff’s individual claim constitutes important ‘anecdotal’ evidence which supports class claims.” (Pl. Memo. in
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Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

Support of Partial Class Cert., p. 23). The Berger firm cannot use this anecdotal evidence, however, without attacking its other client Ms. Dean.
*13 Equally troubling is the Berger firm’s suggestion that the affidavit it has submitted-in which Ms. Davis states “to the extent that any conflict may exist with respect to my individual claim, I hereby waive it”-eliminates any conflict or potential conflict. (Pl. Letter Brief in Further Support of Class Cert., 12/16/05, Ex. B, Decl. of Debra Davis, at p. 2). Even assuming Ms. Davis has knowingly and intelligently waived a conflict on her own behalf, I do not believe she can waive any conflict on the class’s behalf. See Pa. Rule of Prof’l Conduct 1.7 cmt. (stating that “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent”); In Re Terazosin Hydrochloride Antitrust Litigation, 223 F.R.D. 666, (S.D.Fla.2004) (expressing doubt as to whether “representative class members can waive any actual or potential conflicts for the remaining ... members of the defined proposed class.”).
I am even more troubled by the Berger firm’s suggestion that “in the event [its] representation of [Ms. Dean] jeopardizes the ability for a class to be certified, [Ms. Dean] will secure alternative counsel to try her case.” (Pl. Letter Brief in Further Support of Class Cert at p. 1-2; id., ex. A, Declaration of Sondra Dean, p. 3). Ms. Dean’s Complaint was filed in 2002; Judge Yohn has scheduled trial for March 2006. The Berger firm cannot withdraw from the Dean case without Judge Yohn’s permission. See Local Rule 5.1(c). Moreover, the Berger firm’s unseemly suggestion that, having represented Ms. Dean for some four years, it can abandon her two months before trial, is contrary to any semblance of client loyalty. See In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 162 (3d Cir.2000) (stating, “[a] client has a right to expect the loyalty of his attorney in the matter for which he is retained.”); Pa. Rule of Prof’l Conduct 1.7 cmt. (“Loyalty is an essential element in the lawyer’s relationship to the client.”).
Finally, the Berger firm’s proffered withdrawal from the Dean case would appear to violate the so-called “hot potato rule,” under which a lawyer “may not drop one client like a ‘hot potato’ in order to avoid a conflict with another, more remunerative client.” International Longshoremen’s Ass’n, Local Union 1332 v. International Longshoremen’s Ass’n, 909 F.Supp. 287, 293 (E.D.Pa.1995). See also Pyle v. Meritor Savings Bank, 1993 WL 483196, at *2 n. 2 (E.D.Pa. Nov.23, 1993) (law firm may not undertake representation of two potentially adverse clients and then, when a conflict arises, choose between the clients); Santacroce v. Neff, 134 F.Supp.2d 366, 370-71 (D.N.J.2001) (applying “hot potato” rule to

preclude law firm from dropping one client to avoid conflict with another client).
*14 In sum, representing Sondra Dean, Debra Davis, and the proposed class would unquestionably place the Berger firm in an untenable position. The firm’s arguments against the finding of a conflict, and its actions to evade the conflict, only underscore the need for new counsel in this case. Accordingly, I conclude that Ms. Davis presently is not an adequate class representative as to the disciplinary claims. I will deny certification as to these claims without prejudice, pending Plaintiff’s retention of replacement counsel.
C. Other Class Certification Criteria Kraft vigorously argues that Ms. Davis’s disparate discipline claims do not pass muster under the remaining Rule 23 requirements. In light of my ruling respecting adequacy, I will defer making any decision on this question until Plaintiff obtains new counsel.
IV. Expert Report Kraft has moved to strike the Report of Ms. Davis’s expert, Dr. David Crawford, arguing that it does not comport with Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As I stated at oral argument, the contention is premature. See Trans. of Sept. 8, 2005 Oral Arg. at 42; In re Visa Check/Mastercard Antitrust Litig., 280 F.3d 124, 135 (2d Cir.2001) (a court on class certification is limited to determining whether an expert report is “not so flawed that it would be inadmissible as a matter of law”); Nichols v. Smithkline Beecham Corp., 2003 WL 302352 (E.D.Pa. Jan.29, 2003) (“At [the class certification] stage of the proceeding the Court does not consider whether an expert witness’s opinion would be admissible pursuant to Daubert ....”). Accordingly, I deny the Motion without prejudice to the extent that it relates to Plaintiff’s claim of disparate discipline. I deny the Motion as moot to the extent that it relates to those portions of Dr. Crawford’s report dealing with Plaintiff’s “job classification” claims.
An appropriate Order follows.
ORDER
1. Plaintiff’s Motion for Partial Class Certification is DENIED with prejudice with respect to Plaintiff’s claims of discriminatory job classification brought pursuant to 42 U.S.C. §§ 2000e, et seq. and 42 U.S.C. § 1981.
9

Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

2. Plaintiff’s Motion for Partial Class Certification is DENIED without prejudice with respect to Plaintiff’s claims of discriminatory discipline brought pursuant to 42 U.S.C. §§ 2000e, et seq. and 42 U.S.C. § 1981. Plaintiff may renew her motion after she obtains replacement counsel.
3. Defendant’s Motion to Strike Plaintiff’s Expert Report is DENIED as moot to the extent it relates to those portions of Dr. Crawford’s report dealing with Plaintiff’s job classification claims.
4. Defendant’s Motion to Strike Plaintiff’s Expert Report is DENIED without prejudice to the extent it relates to

those portions of Dr. Crawford’s report dealing with Plaintiff’s claims of disparate discipline.
5. This case is stayed until April 1, 2006 to allow Plaintiff to obtain replacement counsel and for replacement counsel to enter its appearance on the docket.
Parallel Citations 87 Empl. Prac. Dec. P 42,349
	  

10

 
 Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

2006 WL 3486461 Only the Westlaw citation is currently available.
United States District Court, E.D. Pennsylvania.
Debra DAVIS, on behalf of herself and all other similarly situated persons v.
KRAFT FOODS NORTH AMERICA.
Civil Action No. 03-6060. | Dec. 1, 2006.
Attorneys and Law Firms
Martin J. D’Urso, Kohn Swift & Graf, P.C., Robert T. Vance, Jr., Law Offices of Robert T. Vance, Jr., Shanon J. Carson, Stephen A. Whinston, William T. Coleman, III, Berger & Montague PC, Hadley Perkins Roeltgen, Kohn, Swift & Graf, Philadelphia, PA, for Debra Davis.
Allan G. King, Littler, Mendelson, Dallas, TX, Marguerite S. Walsh, Michele Halgas Malloy, Littler Mendelson Prof Corp., Philadelphia, PA, for Kraft Foods North America.
Opinion
MEMORANDUM
DIAMOND, J.
*1 Debra Davis alleges that Kraft Foods has discriminated against African-American employees working in Kraft’s Philadelphia Bakery with respect to job classification and discipline. Complaint at 1-2, Doc. # 1. On January 31, 2006 I denied with prejudice Davis’s Motion for Class Certification with respect to her claims of discriminatory job classification, concluding that she did not meet Rule 23(a)’s typicality requirements. F.R. Civ. P. 23(a). I denied without prejudice Davis’s Motion for Partial Class Certification with respect to her claims of discriminatory discipline, ruling that her counsel was inadequate under Rule 23(a) because it was burdened by a conflict of interest. Davis v. Kraft Foods North America, 2006 WL 237512 (E.D. Pa 2006), Doc. # 53. Represented by new counsel, Davis has filed an Amended Complaint and renewed her Motion for Class Certification. Doc. # 71. Kraft asks me to strike portions of Davis’s Supplemental Memorandum of Law in Support of Class Certification, arguing that Exhibits 7, 8, and 9 are subject to the “self-critical analysis privilege.” Doc. # 72. I deny Kraft’s Motion.

BACKGROUND As I explained in my earlier ruling, Kraft acquired its Philadelphia Bakery from Nabisco in December 2000. Davis v. Kraft, 2006 WL 237512 at *1, Doc. # 53. In April 2005, Nabisco’s former Director of Diversity, David Matthews, provided Davis’s former counsel with several boxes of documents that related to Nabisco’s employment practices. Motion to Strike at 1. Kraft argued that the self-critical analysis privilege barred disclosure of a number of these documents. See Clark v. Pennsylvania Power and Light, Co., 1999 U.S. Dist. LEXIS 5118, *5 (E.D.Pa.) (explaining and applying the privilege). I agreed, and, on May 18, 2005, precluded Davis from using several of the documents. 5/18/05 Order, Doc. # 25.
On October 13, 2006, Kraft moved to strike three documents produced by Matthews and attached as Exhibits 7, 8, and 9 to Davis’s Supplemental Memorandum on Class Certification, arguing that they are protected by my May 18th Order. Doc. # 72. Exhibit 7 is a 1999 “Executive Summary” of a minority and non-minority employee compensation analysis prepared by Nabisco’s “Affirmative Action Diversity Group.” Exhibit 8 is an undated two-page summary of employee responses to a survey on race relations conducted by Nabisco. Exhibit 9 consists of charts and graphs from a 1999 report depicting demographically disciplinary actions taken by Nabisco.
After reviewing Kraft’s Motion to Strike and Davis’s response, I ordered the parties to submit new briefs addressing the question of whether the self-critical analysis privilege is recognized in this Circuit. Acting mea sponte, I vacate my previous Order and conclude that my earlier ruling recognizing the privilege was incorrect.
NATURE OF PRIVILEGE The self-critical analysis (or “self-evaluation”) privilege protects evaluative materials created in accordance with Federal Government requirements or for purposes of “self-improvement.” See Note, The Privilege of Self-Critical Analysis, 96 Harv. L.Rev. 1083, 1083 (1983) (discussing early development of the privilege). Courts have applied the privilege to encourage employers both to comply with anti-discrimination laws and to evaluate compliance efforts without fear that those evaluations will be used against them. Clark, 1999 U.S. Dist. LEXIS 5118 at *5; McClain v. Mack Trucks, 85 F.R.D. 53, 58 (E.D.Pa.1979). Whether a document is subject to the privilege is usually determined by a three part test: 1) the party asserting the privilege must have prepared the document to comply with Government requirements or for self-critical analysis; 2) the data sought is subjective
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Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

or evaluative; and 3) the policy favoring non-disclosure clearly outweighs plaintiff’s need for the documents. See e. g. Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 425-26 (9th Cir.1992) (discussing the test for the privilege but refusing to apply it); Clark, 1999 U.S. Dist. LEXIS 5118 at *5 (setting out the test and applying the privilege).
VIABILITY OF PRIVILEGE IN THIS CIRCUIT *2 Given the Third Circuit’s statements respecting the self-critical analysis privilege, I do not believe the Court will recognize its existence. For instance, in Armstrong v. Dwyer, the Court referred to “the so-called self-critical analysis privilege.” 155 F.3d 211, 214 (3d Cir.1998). Similarly, in In re Grand Jury, the Court cited with approval a Minnesota decision “deferring to [the] legislature to create a privilege for self-evaluation data.” 103 F.3d 1140, 1155 (3d Cir.1997) (citing In re Parkway Manor Healthcare Ctr., 448 N.W.2d 116, 121 (Minn.Ct.App.1989)). These decisions are of a piece with a substantial body of law disfavoring judicially-created privileges:
[A]s a court without the ability to consider matters beyond the evidentiary record presented, we should be chary about creating new privileges and ordinarily should defer to the legislature to do so.
In re Grand Jury, 103 F.3d at 1155. See also Branzberg v. Hayes, 408 U.S. 665, 706 (1972) (suggesting that the creation of new privileges should be left to legislatures); Pearson v. Miller, 211 F.3d 57, 66 (3d Cir.2000) (exercising caution in the creation of a privilege between a child and a mental health care provider); U.S. v. Weissman, 195 F.3d 96, 100 (2d Cir.1999) (privileges should be narrowly construed and only cautiously expanded); In re Grand Jury Investigation, 918 F.2d 374, 383 (3d Cir.1990) (exercising caution in the creation of clergy-communicant privilege); U.S. v. Roberson, 859 F.2d 1376, 1378 (9th Cir.1988) (federal courts construe evidentiary privileges narrowly, as privileges obstruct the search for the truth); Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir.1981) (privileges are disfavored and should be narrowly construed); ACLU of Mississippi, Inc. v. Finch, 638 F.2d 1336, 1344 (5th Cir.1981) (privileges are strongly disfavored in federal law).
A majority of the Circuits have refused to recognize or apply the self-critical analysis privilege. See In re Qwest Communications Intern, Inc., 450 F.3d 1179, 1198 n. 8 (10th Cir.2006) (only a minority of states have recognized the self-critical analysis privilege); Burden-Meeks v.

Welch, 319 F.3d 897, 899 (7th Cir.2003) (declining to recognize the self-critical analysis privilege); Union Pacific R. Co. v. Mower, 219 F.3d 1069, 1076 n. 7 (9th Cir.2000) (same); In re Kaiser Aluminum and Chemical Co., 214 F.3d 586, 593 (5th Cir.2000) (same); Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663, 667 (4th Cir.1977) (refusing to apply the self-critical analysis privilege to protect disclosures to the E .E.O.C.). But see LaClair v. City of St. Paul, 187 F.3d 824, 828-29 (8th Cir.1999) (affirming a District Court’s exclusion of documents based on the privilege and other doctrines but failing explicitly to adopt the privilege); F.T.C. v. TRW, Inc., 628 F.2d 207, 210-11 (D.C.Cir.1980) (recognizing the privilege but refusing to apply it to documents sought by a government agency); Bredice v. Doctors Hospital, Inc., 479 F.2d 920 (Table of unreported decisions) (D.C.Cir.1970) (affirming the District Court’s application of the privilege, widely acknowledged as the first court to do so).
*3 Although the Supreme Court has not explicitly refused to recognize the privilege, it refused to apply the analogous “peer review privilege” in a Title VII race and sex discrimination suit. University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 188 (1990). Significantly, the Court noted its reluctance to recognize in Title VII litigation any privilege not explicitly created by Congress Id. at 189.
In light of this authority, I cannot conclude that the self-critical analysis privilege is viable in this Circuit, especially in Title VII litigation. Accordingly, I must deny Kraft’s Motion to Strike, which is based primarily on the privilege.
I also note that of the three Exhibits Kraft seeks to strike, only one includes the kind of subjective, evaluative material to which the privilege could even arguably apply. Exhibit 9 includes graphs and charts breaking down demographically Nabisco’s 1999 disciplinary actions. Even if the privilege were viable in this Circuit, it would not apply to such objective data. See Clark, 1999 U.S. Dist. LEXIS 5118 at *5. Exhibit 8 summarizes the results of an undated employee survey Nabisco conducted on diversity issues. Once again, assuming the privilege’s viability, it would not apply to this kind of objective summary of employee opinion. Id. at *5, *6. Exhibit 7 is a one and a half page “Executive Summary” prepared in 1999 by Nabisco’s “Affirmative Action Discovery Group” of the company’s compensation analysis respecting minority and non-minority employees. It is clearly a draft document with many handwritten changes and deletions. The first page includes only objective data, describing various federal requirements and the steps Nabisco took to gather and analyze the compensation data summarized. The last half page includes recommendations and analysis respecting Nabisco’s compensation efforts. Although the privilege could apply
2

Davis v. Kraft Foods North America, Not Reported in F.Supp.2d (2006)

to this kind of subjective self-analysis, I do not believe Kraft’s need for non-disclosure clearly outweighs Davis’s need for the document. See Dowling, 971 F.2d at 425-26. Accordingly, even if the privilege were viable, it would not afford Kraft the protection it seeks here.
Finally, Kraft argues that even if the privilege does not apply to the disputed Exhibits, I should nonetheless strike them because they do not relate to discipline imposed at the Philadelphia Bakery or are outside the class period. Once again, I disagree. The Exhibits relate to how Nabisco (Kraft’s predecessor) treated its minority employees immediately before Kraft took over the Philadelphia Bakery. Whatever the Exhibits’ probative value, I cannot conclude that they are not relevant to the question of whether I should certify a class of minority employees alleging disparate treatment. See JACK B. WEINSTEIN & MARGARET BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 401.03 (2d ed. 2004) (“Trial judges have broad discretion to determine whether an item of evidence is relevant”); Spain v. Gallegos, 26 F.3d 439, 452 (3d Cir.1994) ( F.R. Evid. 401 gives judges great freedom to admit evidence, but “diminishes substantially their authority to exclude evidence as irrelevant”).
CONCLUSION *4 The Third Circuit has not recognized the self-critical analysis privilege, and is unlikely to do so. Accordingly, I vacate my May 18, 2005 Order applying the privilege. In the alternative, I conclude that even if the privilege were recognized in this Circuit, it would not apply to the disputed Exhibits. Finally, Kraft’s relevance objections do not justify striking the Exhibits.
An appropriate Order follows.

ORDER
AND NOW, this 20th day of November, 2006, upon mea sponte reconsideration of my May 18, 2005 Order applying the self-critical analysis privilege to documents produced by David Matthews, as well as consideration of Letter-briefs submitted by the Parties on the self-critical analysis privilege, it is hereby ORDERED that my May 18, 2005 Order be vacated.
It is further ORDERED that
1) Plaintiff file the challenged Exhibits and any other documents produced by Matthews under seal.
2) Plaintiff shall submit by December 14, 2006 supplemental memorandum in her Motion for Class Certification without any encumbrance based on the privilege. Defendant’s response must be filed by December 28, 2006 date.
3) After my decision on class certification, Plaintiff shall be permitted to take a supplemental deposition of David Matthews, Nabisco’s former Director of Diversity by telephone to investigate further issues previously protected by the self-critical analysis privilege. Plaintiff’s counsel indicated by letter preference to defer a second Matthews deposition until after the decision on class certification. That deposition shall be limited to three and a half hours. Defendant may also question Matthews during this deposition.
AND IT IS SO ORDERED.
	  

3

 
 SPECIAL, SUSPENSE
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:03−cv−06060−PD

DAVIS v. KRAFT FOODS NORTH AMERICA, INC. Assigned to: HONORABLE PAUL S. DIAMOND Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 11/03/2003 Date Terminated: 12/19/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

DEBRA DAVIS ON BEHALF OF HERSELF AND ALL OTHER SIMILARLY SITUATED PERSONS

represented by MARTIN J. D'URSO KOHN SWIFT &GRAF, P.C. ONE SOUTH BROAD STREET SUITE 2100 PHILADELPHIA, PA 19107 215−238−1700 Fax: 215−238−1968 Email: mdurso@kohnswift.com TERMINATED: 04/20/2007 LEAD ATTORNEY

ROBERT T. VANCE, JR. LAW OFFICES OF ROBERT T. VANCE, JR. 100 S. BROAD ST. SUITE 1530 PHILADELPHIA, PA 19110 215−557−9550 Fax: 215−557−9552 Email: rtvance@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

SHANON J. CARSON BERGER &MONTAGUE PC 1622 LOCUST ST PHILADELPHIA, PA 19103 215−875−4656 Fax: 215−875−4674 Email: scarson@bm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

STEPHEN A. WHINSTON BERGER &MONTAGUE 1622 LOCUST ST PHILA, PA 19103−6365 215−875−3097 Fax: 215−875−5804 Email: swhinston@bm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

HADLEY PERKINS ROELTGEN KOHN, SWIFT &GRAF ONE SOUTH BROAD STREET SUITE 2100 PHILADELPHIA, PA 19107 215−238−1700 Fax: 215−238−1968 Email: hroeltgen@kohnswift.com

Plaintiff FRANCENIA CANION

ATTORNEY TO BE NOTICED
WILLIAM T. COLEMAN, III BERGER &MONTAGUE P.C. 1622 LOCUST STREET PHILADELPHIA, PA 19103 215−875−3000 Email: wcoleman@bm.net ATTORNEY TO BE NOTICED
represented by MARTIN J. D'URSO (See above for address) TERMINATED: 04/20/2007 LEAD ATTORNEY
HADLEY PERKINS ROELTGEN (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
KRAFT FOODS NORTH AMERICA, INC.

represented by ALLAN G. KING LITTLER, MENDELSON 300 CRESCENT COURT SUITE 600 DALLAS, TX 75201 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARGUERITE S. WALSH LITTLER MENDELSON PROF CORP THREE PARKWAY 1601 CHERRY ST., SUITE 1400 PHILADELPHIA, PA 19102−1321 267−402−3016 Email: mwalsh@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHELE HALGAS MALLOY LITTLER MENDELSON PC 1601 CHERRY ST. STE. 1400 THREE PKWY PHILADELPHIA, PA 19102−1321 267−402−3004 Email: mmalloy@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # 11/03/2003
11/03/2003

Docket Text
1 COMPLAINT against KRAFT FOODS NORTH AMERICA, INC. ( Filing fee $ 150 receipt number 899042.), filed by DEBRA DAVIS.(ig, ) Modified on 11/4/2003 (ig, ). (Entered: 11/04/2003)
1 Summons Issued as to KRAFT FOODS NORTH AMERICA, INC.. Forwarded To: counsel on 12/03/03 (ig, ) Modified on 11/4/2003 (ig, ). (Entered: 11/04/2003)

11/03/2003 11/21/2003 11/21/2003 12/12/2003
12/12/2003 01/08/2004 01/12/2004 01/28/2004 04/13/2004
04/20/2004 05/05/2004

DEMAND for Trial by Jury by DEBRA DAVIS. (ig, ) (Entered: 11/04/2003)
2 ORDER THAT THIS CASE IS REASSIGNED FROM JUDGE WILLIAM H. YOHN TO JUDGE EDMUND V. LUDWIG FOR ALL FURTHER PROCEEDINGS. SIGNED BY MICHAEL E. KUNZ, CLERK OF COURT, ON 11/21/03. 11/21/03 ENTERED AND COPIES MAILED.(fdc) (Entered: 11/21/2003)
3 DEFENDANT, KRAFT FOODS NORTH AMERICA, INC.'S MOTION TO DISQUALIFY BERGER &MONTAGUE, P.C. FROM REPRESENTING PLAINTIFF, MEMORANDUM, CERTIFICATE OF SERVICE.(Attachments: # 1 memorandum# 2 proposed order)(fdc) (Entered: 11/24/2003)
4 STIPULATION AND ORDER THAT THE TIME FOR PLAINTIFF TO RESPOND TO DEFENDANT'S MOTION TO DISQUALIFY BERGER &MONTAGUE, P.C. FROM REPRESENTING PLAINTIFF IS EXTENDED AND SUCH RESPONSE IS NOW DUE ON OR BEFORE DECEMBER 12, 2003. SIGNED BY JUDGE EDMUND V. LUDWIG ON 12/12/03. 12/12/03 ENTERED AND COPIES MAILED.(fdc) (Entered: 12/12/2003)
5 PLAINTIFF DEBRA DAVIS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO DISQUALIFY BERGER &MONTAGUE, P.C. FROM REPRESENTING PLAINTIFF, CERTIFICATE OF SERVICE. (EXHIBITS IN PAPER FORM). (jpd, ) Additional attachment(s) added on 8/16/2007 (ke, ). Modified on 8/16/2007 (ke, ). (Entered: 12/15/2003)
6 NOTICE of Hearing: SCHEDULING CONFERENCE SET FOR 2/10/2004 11:30 AM IN JUDGE'S CHAMBERS BEFORE HONORABLE EDMUND V. LUDWIG. (Attachments: # 1 C A S E Managment Program)(kc, ) (Entered: 01/08/2004)
7 REPLY Brief in Further Support of Motion re 3 MOTION to Disqualify Counsel filed by KRAFT FOODS NORTH AMERICA, INC., Certificate of Service. (WALSH, MARGUERITE) Modified on 1/13/2004 (np). (Entered: 01/12/2004)
8 PLAINTIFF DEBRA DAVIS'S Sur−Reply in Opposition to Defendant's Motion to Disqualify Berger &Montague, P.C. from representing Plaintiff, Certificate of Service. (fdc) Additional attachment(s) added on 8/16/2007 (ke, ). (Entered: 01/29/2004)
9 ORDER THAT THE MOTION OF DEFENDANT KRAFT FOODS NORTH AMERICA, INC. TO DISQUALIFY BERGER &MONTAGUE, P.C. FROM ACTING AS COUNSEL TO PLAINTIFF DEBRA DAVIS AND OTHERS SIMILARLY SITUATED IS DENIED. SIGNED BY JUDGE EDMUND V. LUDWIG ON 4/13/04. 4/13/04 ENTERED AND COPIES MAILED. (fdc) (Entered: 04/13/2004)
10 NOTICE of Hearing: SCHEDULING CONFERENCE SET FOR 5/4/2004 11:00 AM IN JUDGE'S CHAMBERS ROOM 12614 BEFORE HONORABLE EDMUND V. LUDWIG. (kc, ) (Entered: 04/20/2004)
11 ORDER THAT BY FRIDAY, MAY 7, 2004, PLAINTIFF SHALL REQUEST, IN WRITING, PRODUCTION OF THE DEFENDANT'S HUMAN RESOURCES DATABASE, AND SHALL DESCRIBE IN DETAIL THE PARAMETERS OF THE DESIRED PRODUCTION. THIS REQUEST SHALL BE MADE SEPARATELY FROM ANY OTHER REQUEST FOR THE PRODUCTION OF DOCUMENTS AND THINGS THAT PLAINTIFF MAY MAKE. BY FRIDAY, MAY 14, 2004, DEFENDANT SHALL ADVISE, IN WRITING, WHETHER IT OBJECTS TO THE PARAMETERS OF THE PRODUCTION REQUESTED BY PLAINTIFF, AND SHALL ALSO ADVISE WHEN PRODUCTION OF NON−OBJECTED TO INFORMATION CAN BE MADE. A RULE 16 CONFERENCE WILL BE HELD ON WEDNESDAY, JULY 7, 2004 AT 11:30 AM. PRIOR TO THE CONFERENCE, PLAINTIFF SHALL MAKE A SETTLEMENT DEMAND OUTLINING BOTH MONETARY AND NON−MONETARY RELIEF. SIGNED BY JUDGE EDMUND V. LUDWIG ON 5/5/04. 5/5/04 ENTERED AND COPIES MAILED.(fdc) (Entered: 05/05/2004)

05/28/2004 07/01/2004 08/09/2004 08/09/2004 02/11/2005 02/15/2005
03/29/2005 03/31/2005 04/01/2005 04/01/2005 04/04/2005 05/02/2005
05/13/2005

12 ANSWER to Complaint together with Affirmative Defenses by KRAFT FOODS NORTH AMERICA, INC., Certificate of Service.(MALLOY, MICHELE) Modified on 6/1/2004 (fh) (Entered: 05/28/2004)
13 AMENDED NOTICE of Hearing: SCHEDULING CONFERENCE SET FOR 8/12/2004 11:00 AM (CHANGED FROM 7/7/2004)IN JUDGE'S CHAMBERS BEFORE HONORABLE EDMUND V. LUDWIG. (kc, ) (Entered: 07/01/2004)
14 ORDER THAT THIS CASE IS REASSIGNED FROM JUDGE EDMUND V. LUDWIG TO JUDGE PAUL S. DIAMOND FOR ALL FURTHER PROCEEDINGS SIGNED BY CLERK OF COURT MICHAEL E. KUNZ ON 8/9/04. 8/9/04 ENTERED AND COPIES MAILED AND FAXED.(stb, ) (Entered: 08/09/2004)
15 NOTICE of Cancellation of Hearing: SCHEDULING CONFERENCE SET FOR 8/12/2004 11:00 AM IS CANCELLED, THIS ACTION HAS BEEN REASSIGNED TO JUDGE PAUL S. DIAMOND. (kc, ) (Entered: 08/09/2004)
16 NOTICE of Hearing: STATUS CONFERENCE SET FOR 2/16/2005 09:30 AM IN JUDGE'S CHAMBERS BEFORE HONORABLE PAUL S. DIAMOND. (cdj, ) (Entered: 02/11/2005)
17 SCHEDULING ORDER. A FINAL PRETRIAL CONFERENCE IS SET FOR 8/10/2005 AT 10:00 AM IN COURTROOM BEFORE HONORABLE PAUL S. DIAMOND. DISCOVERY DUE BY 6/17/2005. MOTIONS DUE BY 7/25/2005. PLAINTIFF PRETRIAL MEMO DUE BY 7/21/2005. DEFENDANT PRETRIAL MEMO DUE BY 7/25/2005. TRIAL DATE SET FOR 8/16/2005 09:30 AM BEFORE HONORABLE PAUL S. DIAMOND. SIGNED BY JUDGE PAUL S. DIAMOND ON 2/15/05. 2/15/05 ENTERED AND COPIES E−MAILED AND FAXED.(fdc) (Entered: 02/15/2005)
18 ORDER THAT PLAINTIFF SHALL FILE AND SERVE UPON OPPOSING COUNSEL A MOTION TO COMPEL ADDRESSING THE TWO SUBJECTS RAISED IN TODAY'S CONFERENCE CALL BY 4:00 PM ON 3/31/05. SIGNED BY JUDGE PAUL S. DIAMOND ON 3/29/05. 3/29/05 ENTERED AND COPIES MAILED AND FAXED.(fdc) (Entered: 03/29/2005)
19 PLAINTIFF'S MOTION TO COMPEL DISCOVERY, MEMORANDUM, CERTIFICATE OF SERVICE.(fdc) Additional attachment(s) added on 4/4/2005 (fdc, ). (Entered: 04/01/2005)
20 Memorandum of Law in Opposition re 19 MOTION to Compel and Proposed Order filed by KRAFT FOODS NORTH AMERICA, INC., Certificate of Service. (MALLOY, MICHELE) Modified on 4/4/2005 (np). (Entered: 04/01/2005)
21 Exhibits Re: Memorandum of Law in Opposition re 19 MOTION to Compelfiled by KRAFT FOODS NORTH AMERICA, INC.. (MALLOY, MICHELE) Modified on 4/4/2005 (np). (Entered: 04/01/2005)
22 ORDER THAT PLAINTIFF'S MOTION TO COMPEL IS GRANTED IN PART AND DENIED IN PART. SIGNED BY JUDGE PAUL S. DIAMOND ON 4/4/05. 4/4/05 ENTERED AND COPIES E−MAILED AND FAXED. (fdc) (Entered: 04/04/2005)
23 STIPULATION AND ORDER THAT THE TIME FOR PLAINTIFF TO FILE AND SERVE THEIR MEMORANDUM OF LAW IN SUPPORT OF CLASS CERTIFICATION IS EXTENDED AND SUCH MEMORANDUM IS NOW DUE ON OR BEFORE 5/13/05; AND DEFENDANT SHALL FILE ITS MEMORANDUM OF LAW IN OPPOSITION TO CLASS CERTIFICATION ON OR BEFORE 5/31/05. SIGNED BY JUDGE PAUL S. DIAMOND ON 5/2/05. 5/2/05 ENTERED AND COPIES MAILED AND FAXED.(fdc) (Entered: 05/02/2005)
24 ORDER THAT ALL DISCOVERY IS DUE BY 5/31/2005. SIGNED BY JUDGE PAUL S. DIAMOND ON 5/12/05. 5/13/05 ENTERED AND COPIES E−MAILED.(fdc) (Entered: 05/13/2005)

05/18/2005
06/07/2005
06/14/2005 06/24/2005 06/28/2005 06/28/2005 06/28/2005
07/05/2005 07/05/2005

25 ORDER THAT THE DOCUMENTS PRODUCED BY DAVID MATTHEWS TO PLAINTIFFS' COUNSEL ARE PROTECTED BY THE SELF−CRITICAL ANALYSIS PRIVILEGE. DEFENDANT IS NOT OBLIGED TO PRODUCE ANY SUBJECTIVE OR EVALUATIVE MATERIALS CONTAINED IN THE DOCUMENTS. DEFENDANT SHALL PRODUCE THOSE PORTIONS OF THE DOCUMENTS CONTAINING FACTUAL INFORMATION BY 5:00 PM ON 5/23/05. BECAUSE THE RECORD IS INCOMPLETE, I CANNOT DETERMINE IF THE WORK PRODUCT PRIVILEGE APPLIES TO ANY DOCUMENTS PRODUCED BY MR. MATTHEWS. SIGNED BY JUDGE PAUL S. DIAMOND ON 5/18/05. 5/19/05 ENTERED AND COPIES E−MAILED.(fdc) (Entered: 05/19/2005)
26 STIPULATION AND AMENDED SCHEDULING ORDER. ALL FACT DISCOVERY SHALL BE COMPLETED WITHIN THIRTY (30) DAYS FOLLOWING THE COURT'S DECISION WITH RESPECT TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION. THE PARTIES SHALL DISCLOSE ALL EXPERT REPORTS WITHIN FOURTEEN (14) DAYS FOLLOWING THE CLOSE OF FACT DISCOVERY. THE PARTIES MAY ENGAGE IN EXPERT DISCOVERY FOR A PERIOD OF THIRTY (30) DAYS FOLLOWING THE DISCLOSURE OF EXPERT REPORTS, AS REQUIRED IN PARAGRAPH 2, ABOVE. ANY SUMMARY JUDGMENT MOTION OR OTHER DISPOSITIVE MOTION, TOGETHER WITH SUPPORTING BRIEF, SHALL BE FILED WITHIN FOURTEEN (14) DAYS FOLLOWING THE CLOSE OF EXPERT DISCOVERY. SIGNED BY JUDGE PAUL S. DIAMOND ON 6/6/05. 6/7/05 ENTERED AND COPIES MAILED AND FAXED.(fdc) (Entered: 06/07/2005)
27 PLAINTIFF'S MOTION FOR PARTIAL CLASS CERTIFICATION FOR THE PURPOSE OF INJUNCTIVE AND DECLARATORY RELIEF ONLY, MEMORANDUM, CERTIFICATE OF SERVICE.(fdc) Additional attachment(s) added on 6/17/2005 (fdc, ). (Entered: 06/15/2005)
28 ORDER THAT DEFENDANT MAY FILE ANY SUPPLEMENTAL BRIEF RELATED TO THE TESTIMONY OF DAVID MATTHEWS BY 9:00 A.M. ON 7/14/05; PLAINTIFF MAY FILE A RESPONSE BY 5:00 P.M. ON 7/12/05.. SIGNED BY JUDGE LEGROME D. DAVIS ON 6/23/05. 6/27/05 ENTERED AND COPIES E−MAILED.(afm, ) (Entered: 06/27/2005)
29 RESPONSE in Opposition re 27 MOTION to Certify Class and Motion to Stike Expert Report filed by KRAFT FOODS NORTH AMERICA, INC.. (MALLOY, MICHELE) (Entered: 06/28/2005)
30 Appendix to DEFENDANT KRAFT FOODS GLOBAL, INC.'S Memorandum of Law in Opposition to Class Certification and in Support of Motion to Strike Plaintiff's Expert Report. (fdc) (Entered: 06/29/2005)
31 SCHEDULING ORDER. DEFENDANT MAY FILE ANY SUPPLEMENTAL BRIEF RELATED TO THE TESTIMONY OF DAVID MATTHEWS BY 9:00 AM ON JULY 11, 2005. IF DEFENDANT FILES A SUPPLEMENTAL BRIEF PLAINTIFF MAY FILE A RESPONSE BY 5:00 PM ON JULY 12, 2005. ANY SUCH BRIEF SHALL BE RELATED SOLELY TO THE TESTIMONY OF DAVID MATTHEWS TO BE TAKEN ON JULY 7, 2005. ALL OTHER DATES ESTABLISHED BY THE MAY 12, 2005 SCHEDULING ORDER SHALL REMAIN IN EFFECT. THE JUNE 23, 2005 SCHEDULING ORDER IS HEREBY VACATED. SIGNED BY JUDGE PAUL S. DIAMOND ON 6/27/05. 6/29/05 ENTERED AND COPIES E−MAILED.(fdc) (Entered: 06/29/2005)
32 REPLY Memorandum in Support of Motion re 27 MOTION to Certify Class filed by DEBRA DAVIS, Certificate of Service. (COLEMAN, WILLIAM) Modified on 7/7/2005 (np, ). (Entered: 07/06/2005)
33 Plff's Memorandum in opposition to Deft's motion to strike report of Plff's expert, certificate of service. (sc, ) Additional attachment(s) added on 7/14/2005 (fdc, ). (Entered: 07/06/2005)

07/06/2005
07/06/2005 07/15/2005 07/15/2005 07/25/2005 07/26/2005 07/27/2005 08/03/2005
08/12/2005 08/16/2005 08/16/2005 08/16/2005
09/08/2005 09/12/2005 09/13/2005

34 SCHEDULING ORDER THAT TO ALLOW DAVID MATTHEWS TIME TO RETAIN COUNSEL, DEFENDANT MAY FILE ANY SUPPLEMENTAL BRIEF RELATED TO THE TESTIMONY OF MR. MATTHEWS BY 9:00 ON 7/25/05. IF DEFENDANT FILES A SUPPLEMENTAL BRIEF, PLAINTIFF MAY FILE A RESPONSE BY 5:00 P.M. ON 7/26/05. ANY SUCH BRIEF SHALL BE RELATED SOLELY TO THE TESTIMONY OF MR. MATTHEWS; ETC.. SIGNED BY JUDGE PAUL S. DIAMOND ON 7/6/05. 7/6/05 ENTERED AND E−MAILED.(jl, ) (Entered: 07/06/2005)
35 Corrected Reply Memorandum in Support of Plaintiff's Motion for Partial Class Certification for the Purpose of Injunctive and Declaratory Relief only, Certificate of Service. (fdc) Additional attachment(s) added on 7/14/2005 (np, ). (Entered: 07/07/2005)
36 MOTION for Leave to File Reply Memorandum in Further Support of Motion to Strike filed by KRAFT FOODS NORTH AMERICA, INC..Memorandum; Certificate of Service.(MALLOY, MICHELE) (Entered: 07/15/2005)
37 MOTION for Leave to File Sur−Reply Memorandum filed by KRAFT FOODS NORTH AMERICA, INC..Memorandum; Certificate of Service.(MALLOY, MICHELE) (Entered: 07/15/2005)
38 Supplemental Memorandum in Opposition re 27 MOTION to Certify Class filed by KRAFT FOODS NORTH AMERICA, INC., Certificate of Service. (WALSH, MARGUERITE) Modified on 7/26/2005 (np). (Entered: 07/25/2005)
39 Supplemental Memorandum in Support of Her 27 MOTION FOR PARTIAL CLASS CERTIFICATION FOR THE PURPOSE OF INJUNCTIVE AND DECLARATORY RELIEF ONLY , Certificate of Service. (CARSON, SHANON) Modified on 7/27/2005 (fh) (Entered: 07/26/2005)
40 PLAINTIFF DEBRA DAVIS' Exhibit re: 39 Supplemental Memorandum in Support of Her 27 MOTION FOR PARTIAL CLASS CERTIFICATION FOR THE PURPOSE OF INJUNCTIVE AND DECLARATORY RELIEF ONLY. (CARSON, SHANON) Modified on 7/27/2005 (fh) (Entered: 07/27/2005)
41 ORDER THAT AN ORAL ARGUMENT ON PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S EXPERT REPORT IS SCHEDULED AT 9:30 AM ON 8/23/05. SIGNED BY JUDGE PAUL S. DIAMOND ON 8/3/05. 8/3/05 ENTERED AND COPIES E−MAILED.(fdc) (Entered: 08/03/2005)
42 ORDER THAT THE ORAL ARGUMENT IN THE ABOVE−CAPTIONED CASE IS RESCHEDULED TO 9/8/05 AT 2:00 PM. SIGNED BY JUDGE PAUL S. DIAMOND ON 8/12/05. 8/15/05 ENTERED AND COPIES E−MAILED.(fdc) (Entered: 08/15/2005)
43 MOTION for Leave to Appear Pro Hac Vice of Allan G. King filed by KRAFT FOODS NORTH AMERICA, INC..Affidavit of Allan G. King; Certificate of Service.(MALLOY, MICHELE) (Entered: 08/16/2005)
Filing Fee (Pro Hac Vice − Allan G. King): $ 40.00, receipt number 920069. (fdc) (Entered: 08/16/2005)
44 ORDER THAT DEFENDANT'S MOTION FOR ALLAN G. KING, ESQ. TO APPEAR PRO HAC VICE IS GRANTED. SIGNED BY JUDGE PAUL S. DIAMOND ON 8/16/05. 8/16/05 ENTERED AND COPIES MAILED AND FAXED. (fdc) Additional attachment(s) added on 8/16/2007 (ke, ). (Entered: 08/16/2005)
45 Minute Entry for Oral Argument held on 9/8/2005 before Judge Diamond. ESR/Court Reporter: John Stasny. (mbh, ) (Entered: 09/09/2005)
47 TRANSCRIPT of Hearing held on 9/8/05 at 2:10 pm before Judge Diamond. (fdc) (Entered: 09/13/2005)
46 Memorandum re 27 MOTION to Certify Class Plaintiff's Supplemental Memorandum Of Law In Support Of Class Certification filed by DEBRA DAVIS, Certificate of Service. (CARSON, SHANON) Modified on 9/14/2005

09/16/2005 12/16/2005 12/23/2005 12/23/2005 01/05/2006 01/31/2006
02/03/2006
04/03/2006
05/01/2006 05/08/2006 05/08/2006 05/11/2006 05/11/2006 05/16/2006

(np). (Entered: 09/13/2005)
48 Supplemental Memorandum in Opposition re 27 MOTION to Certify Class filed by KRAFT FOODS NORTH AMERICA, INC., Certificate of Service. (MALLOY, MICHELE) Modified on 9/20/2005 (np). (Entered: 09/16/2005)
49 Plaintiff's Letter Brief In Further Support Of Class Certification filed by DEBRA DAVIS. (COLEMAN, WILLIAM) Modified on 12/19/2005 (cdd, ). (Entered: 12/16/2005)
50 Letter Re: RESPONSE in Opposition re 27 MOTION to Certify Class filed by KRAFT FOODS NORTH AMERICA, INC. (MALLOY, MICHELE) Modified on 12/27/2005 (np). (Entered: 12/23/2005)
51 EXHIBITS to Deft Kraft Foods Global, Inc.'s Letter Brief in response to Plff's opposition to motion to certify class.(sc, ) (Entered: 12/23/2005)
52 Plaintiff's Surreply Letter Brief Re: Alleged Conflict Issue And In Further Support Of Class Certification filed by DEBRA DAVIS. (CARSON, SHANON) Modified on 1/9/2006 (np). (Entered: 01/05/2006)
53 MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION FOR CLASS CERTIFICATION IS DENIED WITH PREJUDICE WITH RESPECT TO PLAINTIFF'S CLAIMS OF DISCRIMINATORY JOB CLASSIFICATION. PLAINTIFF'S MOTION FOR PARTIAL CLASS CERTIFICATION IS DENIED WITHOUT PREJUDICE WITH RESPECT TO PLAINTIFF'S CLAIMS OF DISCRIMINARTORY DISCIPLINE. DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S EXPERT REPORT IS DENIED AS MOOT TO THE EXTENT IT RELATES TO THOSE PORTIONS OF DR. CRAWFORD'S REPORT DEALING WITH PLAINTIFF'S JOB CLASSIFICATION CLAIMS. DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S EXPERT REPORT IS DENIED WITHOUT PREJUDICE TO THE EXTENT IT RELATES TO THOSE PORTIONS OF DR. CRAWFORD'S REPORT DEALING WITH PLAINTIFF'S CLAIMS OF DISPARATE DISCIPLINE. SIGNED BY JUDGE PAUL S. DIAMOND ON 1/31/06. (Attachments: # 1 order) 2/1/06 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 02/01/2006)
54 ORDER THAT THE CLERK OF COURT MARK THIS ACTION CLOSED FOR STATISTICAL PURPOSES AND PLACE THE MATTER IN THE CIVIL SUSPENSE FILE. SIGNED BY JUDGE PAUL S. DIAMOND ON 2/2/06. 2/3/06 ENTERED AND COPIES MAILED, E−MAILED.(gs) (Entered: 02/03/2006)
55 ORDER THAT PLAINTIFF'S REQUEST FOR AN EXTENSION OF TIME TO SECURE REPLACEMENT COUNSEL IS GRANTED. PLAINTIFF SHALL HAVE UNTIL 4/30/06 TO FIND REPLACEMENT COUNSEL TO REPRESENT HER IN THE CLASS PROCEEDINGS. SIGNED BY JUDGE PAUL S. DIAMOND ON 3/31/06. 4/3/06 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 04/03/2006)
56 STATUS REPORT Letter to Honorable William H. Yohn by DEBRA DAVIS. (Attachments: # 1)(COLEMAN, WILLIAM) (Entered: 05/01/2006)
57 NOTICE of Appearance by ROBERT T. VANCE, JR on behalf of DEBRA DAVIS (fdc, ) (Entered: 05/08/2006)
58 Entry of Appearance of MARTIN J. D'URSO, ESQ. on behalf of DEBRA DAVIS, Certificate of Service. (fdc) (Entered: 05/09/2006)
59 NOTICE of Hearing: STATUS CONFERENCE SET FOR 5/19/2006 02:00 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE PAUL S. DIAMOND. (cj, ) (Entered: 05/11/2006)
60 NOTICE of Withdrawal of Appearance by SHANON J. CARSON on behalf of DEBRA DAVIS (CARSON, SHANON) (Entered: 05/11/2006)
61 ORDER THAT THE CLERK OF COURT TRANSFER SAID CASE FROM THE CIVIL SUSPENSE FILE TO THE CURRENT DOCKET FOR FINAL

05/22/2006
05/26/2006 05/30/2006 05/31/2006 06/30/2006 07/14/2006 07/28/2006 08/10/2006
08/11/2006 08/16/2006 09/29/2006
10/13/2006

DISPOSITION. SIGNED BY JUDGE PAUL S. DIAMOND ON 5/11/06. 5/16/06 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 05/16/2006)
62 SCHEDULING ORDER THAT PLAINTIFF'S MOTION TO AMEND THE COMPLAINT TO ADD AN ADDITIONAL NAMED PLAINTIFF SHALL BE DUE FRIDAY, 5/26/06. DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO AMEND SHALL BE DUE MONDAY, 5/29/06. SIGNED BY JUDGE PAUL S. DIAMOND ON 5/19/06. 5/22/06 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 05/22/2006)
63 PLAINTIFF'S MOTION TO AMEND THE COMPLAINT. MEMORANDUM IN SUPPORT, PROPOSED ORDER, CERTIFICATE OF SERVICE.(tjd) (Entered: 05/30/2006)
64 RESPONSE to Motion re 63 MOTION to Modify /Amend the Complaint filed by KRAFT FOODS NORTH AMERICA, INC.. (MALLOY, MICHELE) (Entered: 05/30/2006)
65 ORDER THAT PLAINTIFF'S UNOPPOSED MOTION TO AMEND THE COMPLAINT IS GRANTED. SIGNED BY JUDGE PAUL S. DIAMOND ON 5/31/06. 5/31/06 ENTERED AND COPIES MAILED, E−MAILED. (fdc) (Entered: 05/31/2006)
66 AMENDED COMPLAINT against KRAFT FOODS NORTH AMERICA, INC. , filed by FRANCENIA CANION, DEBRA DAVIS, CERTIFICATE OF SERVICE, Jury Demand.(jl, ) (Entered: 07/03/2006)
67 STIPULATION AND ORDER THAT DEFENDANT KRAFT FOODS NORTH AMERICA, INC. SHALL HAVE AN EXTENSION OF TIME UNTIL 7/28/2006 TO RESPOND TO PLAINTIFF'S AMENDED COMPLAINT.. SIGNED BY JUDGE PAUL S. DIAMOND ON 7/14/06. 7/17/06 ENTERED AND COPIES MAILED AND E−MAILED.(afm, ) (Entered: 07/17/2006)
68 ANSWER to Amended Complaint and Certificate of Service by KRAFT FOODS NORTH AMERICA, INC..(MALLOY, MICHELE) (Entered: 07/28/2006)
69 SCHEDULING ORDER. ORDER THAT PLAINTIFFS' UNOPPOSED REQUEST TO FILE A SUPPLEMENTAL MOTION FOR CLASS CERTIFICATION AND FOR A SCHEDULING ORDER IS GRANTED AS FOLLOWS: PLAINTIFF FRANCENIA CANION WILL BE DEPOSED ON OR BEFORE 9/15/06. WRITTEN DISCOVERY RELATING TO CLASS CERTIFICATION ISSUES SHALL BE COMPLETED ON OR BEFORE 9/15/06. PLAINTIFFS SHALL FILE A SUPPLEMENTAL MOTION FOR CLASS CERTIFICATION ON OR BEFORE 9/29/06. DEFENDANT SHALL RESPOND TO THE SUPPLEMENTAL MOTION FOR CLASS CERTIFICATION ON OR BEFORE 10/13/06. SIGNED BY JUDGE PAUL S. DIAMOND ON 8/10/06. 8/11/06 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 08/11/2006)
Set/Reset Deadlines: DISCOVERY DUE BY 9/15/2006. (fdc, ) (Entered: 08/11/2006)
70 NOTICE of Appearance by HADLEY PERKINS ROELTGEN on behalf of FRANCENIA CANION, DEBRA DAVIS with certificate of service (ROELTGEN, HADLEY) (Entered: 08/16/2006)
71 Supplemental Memorandum in Support of Motion for Class Certification filed by FRANCENIA CANION, DEBRA DAVIS and Certificate of Service. (Attachments: # Exhibit Part 1# Exhibit Exhibits 2# Exhibit Part 3# Exhibit Part 4# Exhibit Part 5# Exhibit Part 6) (ROELTGEN, HADLEY) Modified on 10/3/2006 (np). Additional attachment(s) added on 12/13/2006 (np, ). (Entered: 09/29/2006)
72 MOTION to Strike Portions of Plaintiffs' Supplemental Memorandum of Law in Support of Class Certification filed by KRAFT FOODS NORTH AMERICA, INC..Memorandum, Proposed Order, Certificate of Service.(MALLOY,

10/13/2006 10/27/2006 10/27/2006 11/01/2006 11/01/2006 11/03/2006 11/09/2006 12/01/2006
12/04/2006
12/06/2006 12/13/2006 12/13/2006

MICHELE) (Entered: 10/13/2006)
73 RESPONSE in Opposition re 71 Supplemental Memorandum in Support of Motion for Class Certification and Proposed Order filed by KRAFT FOODS NORTH AMERICA, INC.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C through L# 4 Exhibit I THROUGH K# 5 Exhibit L THROUGH N)(MALLOY, MICHELE) (Entered: 10/13/2006)
74 RESPONSE in Opposition re 72 MOTION to Strike Portions of Plaintiffs' Supplemental Memorandum of Law in Support of Class Certification filed by FRANCENIA CANION, DEBRA DAVIS. (Attachments: # 1 Exhibit)(ROELTGEN, HADLEY) (Entered: 10/27/2006)
75 REPLY to Response to Motion re 71 Supplemental Memorandum in Support of Motion for Class Certification filed by FRANCENIA CANION, DEBRA DAVIS. (ROELTGEN, HADLEY) (Entered: 10/27/2006)
76 ORDER THAT DEFENDANT SHALL PROVIDE THE COURT WITH A BRIEF ON THIS QUESTION (WHETHER TO RECONSIDER THE ORDER OF 5/18/05) BY 5 PM ON 11/1/06. PLAINTIFF SHALL RESPOND BY 5 PM ON 11/3/06. SIGNED BY JUDGE PAUL S. DIAMOND ON 11/1/06. 11/1/06 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 11/01/2006)
77 Letter Re: RESPONSE in Support re 72 MOTION to Strike Portions of Plaintiffs' Supplemental Memorandum of Law in Support of Class Certification filed by KRAFT FOODS NORTH AMERICA, INC.. (MALLOY, MICHELE) Modified on 11/2/2006 (np). (Entered: 11/01/2006)
78 Letter Brief in Response to Defendant's Letter Brief RE: RESPONSE in Opposition re 72 MOTION to Strike Portions of Plaintiffs' Supplemental Memorandum of Law in Support of Class Certification filed by FRANCENIA CANION, DEBRA DAVIS. (ROELTGEN, HADLEY) Modified on 11/6/2006 (np). (Entered: 11/03/2006)
79 Minute Entry for proceedings held before Judge PAUL S. DIAMOND : Status Conference held on 11/9/06. (fdc, ) (Entered: 11/09/2006)
80 MEMORANDUM AND ORDER THAT THE 5/18/05 ORDER BE VACATED. IT IS FURTHER ORDERED THAT PLAINTIFF FILE THE CHALLENGED EXHIBITS AND ANY OTHER DOCUMENTS PRODUCED BY MATTHEWS UNDER SEAL. PLAINTIFF SHALL SUBMIT BY 12/14/06 SUPPLEMENTAL MEMORANDUM IN HER MOTION FOR CLASS CERTIFICATION WITHOUT ANY ECUMBERANCE BASED ON THE PRIVILEGE. DEFENDANT'S RESPONSE MUST BE FILED BY 12/28/06. SIGNED BY JUDGE PAUL S. DIAMOND ON 11/20/06. 12/1/06 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 12/01/2006)
81 SCHEDULING ORDER. ORDER THAT THE ORDER OF 11/20/06 IS HEREBY AMENDED. DEFENDANT SHALL FILE A SURREPLY BY 12/6/06. PLAINTIFF SHALL FILE A RESPONSE TO DEFENDANT'S SURREPLY BY 12/13/06. SIGNED BY JUDGE PAUL S. DIAMOND ON 12/1/06. 12/4/06 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 12/04/2006)
82 RESPONSE in Opposition re 71 Supplemental Memorandum in Support of Motion for Class Certification filed by KRAFT FOODS NORTH AMERICA, INC.. (Attachments: # 1 Exhibit A through D)(MALLOY, MICHELE) (Entered: 12/06/2006)
83 REPLY to Response to Motion re 71 Supplemental Memorandum in Support of Motion for Class Certification filed by FRANCENIA CANION, DEBRA DAVIS. (Attachments: # 1 Exhibit Exh. A# 2 Exhibit Exhs. B &C and COS)(ROELTGEN, HADLEY) (Entered: 12/13/2006)
84 Exhibits. Re: Plaintiff's Supplemental Memorandum in Support of Motion for Class Certification (Exhibits 7, 8, and 9 Filed under Seal). (fdc) (Entered: 12/14/2006)

01/09/2007 01/10/2007 01/12/2007
01/31/2007 02/02/2007 02/06/2007 02/21/2007 02/21/2007 02/27/2007 04/17/2007 04/20/2007 05/01/2007
05/21/2007
05/21/2007

85 Minute Entry for proceedings held before Judge PAUL S. DIAMOND: Oral Argument held on 1/9/07. Re: Plaintiff's Motion for Class Certification. (fdc) (Entered: 01/09/2007)
86 TRANSCRIPT of Hearing held on 1/9/07 before Judge Diamond. (fdc) (Entered: 01/10/2007)
87 AMENDED SCHEDULING ORDER. THE SETTLEMENT CONFERENCE IS SET FOR 1/30/07 AT 1:30 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE PAUL S. DIAMOND. SIGNED BY JUDGE PAUL S. DIAMOND ON 1/10/07. 1/12/07 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 01/12/2007)
88 Minute Entry for proceedings held before Judge PAUL S. DIAMOND : Settlement Conference held on 1/30/07. (fdc, ) (Entered: 01/31/2007)
89 ORDER THAT A SETTLEMENT CONFERENCE IS SET FOR 2/8/07 AT 9:30 AM IN JUDGE'S CHAMBERS BEFORE HONORABLE PAUL S. DIAMOND. SIGNED BY JUDGE PAUL S. DIAMOND ON 2/2/07. 2/2/07 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 02/02/2007)
90 ORDER THAT THE SETTLEMENT CONFERENCE IS RESCHEDULED FOR 2/20/07 AT 2:00 PM BEFORE HONORABLE PAUL S. DIAMOND. SIGNED BY JUDGE PAUL S. DIAMOND ON 2/6/07. 2/6/07 ENTERED AND COPIES E−MAILED.(fdc) (Entered: 02/06/2007)
91 ORDER THAT A SETTLEMENT CONFERENCE IS SET FOR 2/27/07 AT 2:00 PM BEFORE HONORABLE PAUL S. DIAMOND. SIGNED BY JUDGE PAUL S. DIAMOND ON 2/20/07. 2/21/07 ENTERED AND COPIES E−MAILED.(fdc) (Entered: 02/21/2007)
92 Minute Entry for proceedings held before Judge PAUL S. DIAMOND : Docket Call held on 2/20/07. (mas, ) (Entered: 02/21/2007)
93 ORDER THAT THE SETTLEMENT CONFERENCE IS RESCHEDULED FOR 3/8/07 AT 3:00 PM BEFORE HONORABLE PAUL S. DIAMOND. SIGNED BY JUDGE PAUL S. DIAMOND ON 2/26/07. 2/27/07 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 02/27/2007)
94 MOTION for Settlement Preliminary Approval filed by FRANCENIA CANION, DEBRA DAVIS.Memorandum, COS. (Attachments: # 1 Memorandum and COS# 2 Exhibit)(ROELTGEN, HADLEY) (Entered: 04/17/2007)
95 Withdrawal of Appearance by MARTIN J. D'URSO on behalf of FRANCENIA CANION, DEBRA DAVIS, Certificate of Service. (fdc) (Entered: 04/20/2007)
96 ORDER THAT THE MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT WITH KRAFT FOODS NORTH AMERICA, INC. IS GRANTED. THE COURT WILL HOLD A HEARING ON 7/12/07 AT 9:30 AM IN COURTROOM 6B, BEFORE HONORABLE PAUL S. DIAMOND TO DETERMINE FAIRNESS, REASONABLENESS AND ADEQUACY OF THE PROPOSED SETTLEMENT WITH KRAFT. SIGNED BY JUDGE PAUL S. DIAMOND ON 4/30/07. 5/1/07 ENTERED AND COPIES MAILED.(fdc) Additional attachment(s) added on 5/17/2007 (fdc, ). (Entered: 05/01/2007)
97 MOTION FOR FINAL APPORVAL OF PROPOSED SETTLEMENT WITH KRAFT FOODS NORTH AMERICA, INC. AND FOR FINAL APPROVAL OF PLAINTIFFS' PROPOSED PLAN FOR DISTRIBUTION OF SETTLEMENT FUNDS filed by FRANCENIA CANION, DEBRA DAVIS, MEMORANDUM, , Certificate of Service. (Attachments: # 1 Exhibit)(ROELTGEN, HADLEY) Modified on 5/22/2007 (fh) (Entered: 05/21/2007)
98 APPLICATION for Attorney Fees and Costs filed by FRANCENIA CANION, DEBRA DAVIS, MEMORANDUM, CERTIFICATE OF SERVICE.(Attachments: # 1 Exhibit Exhibit A# 2 Affidavit Exhibit

07/05/2007 07/09/2007 07/10/2007 07/19/2007 07/26/2007 07/27/2007 08/10/2007 08/10/2007
12/19/2007 12/31/2007

B)(ROELTGEN, HADLEY) Modified on 5/22/2007 (fh, ). (Entered: 05/21/2007)
99 Declaration re 97 MOTION FOR FINAL APPORVAL OF PROPOSED SETTLEMENT WITH KRAFT FOODS NORTH AMERICA, INC. AND FOR FINAL APPROVAL OF PLAINTIFFS' PROPOSED PLAN FOR DISTRIBUTION OF SETTLEMENT FUNDS by FRANCENIA CANION, DEBRA DAVIS. (ROELTGEN, HADLEY) (Entered: 07/05/2007)
100 SCHEDULING ORDER THAT THE COURT WILL HOLD A HEARING ON 7/19/07 AT 9:30 AM IN COURTROOM 6B BEFORE HONORABLE PAUL S. DIAMOND. SIGNED BY JUDGE PAUL S. DIAMOND ON 7/9/07. 7/9/07 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 07/09/2007)
101 Disclosure Statement Form pursuant to FRCP 7.1 with Certificate of Service by KRAFT FOODS NORTH AMERICA, INC..(MALLOY, MICHELE) (Entered: 07/10/2007)
102 ORDER THAT THE ORAL ARGUMENT HAS BEEN RESCHEDULED FOR FRIDAY, 7/27/07 AT 11:00 AM IN COURTROOM BEFORE HONORABLE PAUL S. DIAMOND. SIGNED BY JUDGE PAUL S. DIAMOND ON 7/19/07. 7/20/07 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(fdc) (Entered: 07/20/2007)
103 AFFIDAVITS in Support of 98 Application, by FRANCENIA CANION and DEBRA DAVIS with Certificate of Service. (Attachments: # 1 Affidavit # 2 Affidavit)(ROELTGEN, HADLEY) Modified on 7/27/2007 (le, ). (Entered: 07/26/2007)
104 Minute Entry for proceedings held before Judge PAUL S. DIAMOND : FAIRNESS HEARING held on 7/27/07. (jl, ) (Entered: 07/27/2007)
105 ORDER THAT THE COURT FINDS THAT DUE AND ADEQUATE NOTICE WAS PROVIDED OF THE SETTLEMENT WITH KRAFT, PURSUANT TO RULE 23 OF THE FRCP, TO ALL MEMBERS OF THE CLASS AS DEFINED IN THE COURT'S 4/30/07 ORDER. SIGNED BY JUDGE PAUL S. DIAMOND ON 8/9/07. 8/10/07 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 08/10/2007)
106 ORDER THAT PLAINTIFFS' APPLICATION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES IS GRANTED AS FOLLOWS: THE COURT AWARDS PLAINTIFFS' COUNSEL ATTORNEY FEES IN THE AMOUNT OF $450,000 PURSUANT TO THE SETTLEMENT REACHED WITH DEFENDANT KRAFT FOODS NORTH AMERICA; AND THE COURT APPROVES A PAYMENT OF UNREIMBURSED LITIGATION EXPENSES IN THE AMOUNT OF $113,582.10 FROM THE SETTLEMENT FUND TO PLAINTIFFS' COUNSEL. SIGNED BY JUDGE PAUL S. DIAMOND ON 8/9/07. 8/10/07 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 08/10/2007)
107 ORDER THAT THE CLERK OF COURT MARK THIS ACTION CLOSED FOR STATISTICAL PURPOSES AND PLACE THE MATTER IN THE CIVIL SUSPENSE FILE. SIGNED BY HONORABLE PAUL S. DIAMOND ON 12/19/07. 12/20/07 ENTERED AND COPIES MAILED, E−MAILED.(fdc) (Entered: 12/20/2007)
108 COPY OF AN ORDER DATED 12/19/07 MAILED TO ALLAN G. KING, RETURNED AS UNDELIVERABLE. (rf, ) (Entered: 12/31/2007)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA DAVIS and FRANCENIA CANION, on : behalf ofthemselves and all other similarly situated: persons,
Plaintiffs, v.

CIVIL ACTION NO. 03-6060

KRAFT FOODS NORTH AMERICA, INC.,

Defendant.

PLAINTIFFS' UNOPPOSED MOTION FOR: (1) PRELIMINARY APPROVAL OF A PROPOSED SETTLEMENT, AND (2) AUTHORIZATION TO DISSEMINATE NOTICE

Named Plaintiffs Debra Davis and Francenia Canion by their undersigned Counsel,

respectfully move this Honorable Court for preliminary approval of the class-wide settlement

that they have negotiated with Defendant Kraft Foods North America, Inc. ("Kraft"). The

Settlement Agreement in question is attached as Exhibit A hereto. The proposed class action

notice, which the parties have also agreed upon, is attached as Exhibit B hereto.

In support of this Motion for Preliminary Approval, Plaintiffs also rely upon the

Memorandum of Law which is attached hereto.

Dated: April 17,2007
~1
Robert T. Vance, Jr., Es uire LA W OFFICES OF ROBERT T. VANCE, JR. 100 South Broad Street, Suite 1530 Philadelphia, PA 19110 (215) 557-9550

Joseph Cohn, squir Hadley Perkins Roeltgen, Esquire
KaHN, SWIFT & GRAF, P.c.
One South Broad, Suite 2100 Philadelphia, PA 19107 (215) 238-1700

Counsel for Plaintiffs and the Class

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

DEBRA DAVIS and FRANCENIA CANION, on : behalf of themselves and all other similarly situated: persons,
Plaintiffs,

CIVIL ACTION NO. 03-6060

v.

KRAFT FOODS NORTH AMERICA, INC.,

Defendant.

ORDER PRELIMINARILY APPROVING CLASSWIDE SETTLEMENT AND NOW, this ___ day of _ _ _ _ _ _ _ 200_, upon consideration of the Motion for Preliminary Approval of Proposed Settlement with Kraft Foods NOlih America, Inc. and for Authorization to Disseminate Notice ("Motion"), it is hereby ORDERED as follows: 1. The Motion is hereby GRANTED. 2. The Court finds that the proposed settlement with Kraft Foods North America, Inc. and its corporate predecessor Nabisco Biscuit Company (collectively hereafter "Kraft") as set forth in the Settlement Agreement, and subject to final determination following a hearing after notice to the proposed Settlement Class, is sufficiently fair, reasonable and adequate to authorize dissemination of notice to the proposed Settlement Class. 3. Notice shall be provided to the following proposed Settlement Class (the "Settlement Class"):
All African-Americans hourly employees who worked at the Kraft Philadelphia Bakery from November 3, 1999 to December 31, 2006.

4. The Court appoints the firms ofKohn, Swift & Graf, P.c. and the Law Offices of Robert T. Vance as Class Counsel for the Settlement Class. Plaintiffs Debra Davis and Francenia Canion are adequate representatives of the Settlement Class and are hereby appointed as the class representatives of the Settlement Class.
5. The Court approves the Notice, submitted as Exhibit "B" to the motion for preliminary approval of the Settlement Agreement, upon the condition that the content of the Notice, including all dates, times, and addresses, conform to the requirements of this Order. The Court further finds that the mailing ofthe Notice in the manner set forth in Paragraphs 6 and 7 below constitutes the best notice practicable under the circumstances as well as valid, due and sufficient notice to all persons entitled thereto and complies fully with the requirements of Federal Rule of Civil Procedure 23 and the due process requirements of the Constitution of the United States.
6. Class Counsel are hereby directed to cause a Notice Of Pendency And Of Proposed Settlement Of Class Action With Kraft Foods N0l1h America, Inc. And Hearing on Settlement Approval ("Notice"), in the form attached as Exhibit "B" to the motion for preliminary approval of the Settlement Agreement, to be (a) mailed by first class mail, postage prepaid, within 10 days of entry of this Order ("Notice Date") to all members of the Settlement Class.
7. Class Counsel are hereby directed to identify and maintain an address to receive requests from parties seeking to exclude themselves from the Settlement Class. Class Counsel must identify the address in the Notice and in the Summary Notice prior to mailing, providing, or distributing any Notice pursuant to Paragraph 6 herein.
2

8. The Court will hold a hearing (the "Hearing") on

,2007,

at

_.m. at 601 Market Street, Courtroom

, Philadelphia, Pennsylvania 19106,

to determine the fairness, reasonableness and adequacy of the proposed settlement with Kraft, to

consider the proposed plan of distribution and Class Counsel's application for attorneys' fees and

reimbursement of expenses, and to determine whether the proposed settlement, plan of

distribution and application for attorneys' fees and reimbursement of expenses should be

approved by the Court and a final judgment entered thereon. Any Settlement Class Member who

follows the procedure set forth in the Notices may appear and be heard at this hearing. The

hearing may be continued without further notice to the Settlement Class.

9. Class Counsel shall file with the Court and serve on the parties their motion for

final approval of the Settlement Agreement, and their application for attomeys' fees and

reimbursement of expenses 60 days prior to the Hearing.

1O,~~AllrequestsJor exclusion from the Settlement Class shall be postmarked no later

than 20 days prior to the Hearing, and shall otherwise comply with the requirements set forth in

the Notices.

11. Any member of the Settlement Class who wishes to object to the terms of the

Settlement Agreement between the Settlement Class and Kraft, the proposed plan of distribution,

or the application for attomeys' fees and reimbursement of expenses must do so in writing,

postmarked no later than 20 days prior to the Hearing, and shall otherwise comply with the

requirements set forth in the Notice.

12. Ten days before the date fixed by this Court for the Hearing, Class Counsel shall

cause to be filed with the Clerk of this Court, and served upon counsel for defendants, affidavits

3

or declarations of the person under whose general direction the mailing ofthe Notice was made, showing that mailing was made in accordance with this Order.
13. The litigation against Kraft Foods North America, Inc. is stayed except to the extent necessary to effectuate the Settlement Agreement.
BY THE COURT: HONORABLE PAUL S. DIAMOND
4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA DAVIS and FRANCENIA CANION, on : behalf of themselves and all other similarly situated: persons,
Plaintiffs,

CIVIL ACTION NO. 03-6060

v.

KRAFT FOODS NORTH AMERICA, INC.,

Defendant.

PLAINTIFFS' MEMORANDUM IN SUPPORT OF THEIR UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT AND FOR AUTHORIZATION TO DISSEMINATE NOTICE I. INTRODUCTION As this Honorable Court is aware, Plaintiffs have reached a proposed class-wide settlement with defendant Kraft Foods Global, Inc. (f/k/a "Kraft Foods North America, Inc.") ("Kraft") that provides for the payment of $1.325 million as well as comprehensive nonmonetary relief for the class. At this juncture, the Court need only determine whether the settlement appears to be sufficiently fair, reasonable and adequate to authorize dissemination of the Notices to the Class. Plaintiffs submit that the proposed settlement amply satisfies this minimal standard. Attached as Exhibit A hereto is the Settlement Agreement, upon which the parties have agreed. Exhibit B is an agreed-upon form of notice that may be mailed to all class members. The proposed order attached hereto preliminarily approves the settlement and directs that notice be given to the settlement class.

II. BACKGROUND
The amended complaint in this race discrimination class action was filed by one current and one former African-American employee of defendant Kraft under Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1866, 42 U.S.C. § 1981, to redress alleged discrimination in Kraft's disciplinary practices and procedures.
After this Court determined that Plaintiff Davis' prior counsel had a conflict of interest, 1 Plaintiffs filed an amended complaint on behalf of Plaintiffs Debra Davis and Francenia Canion, and moved for certification of a class pursuant to Fed. R. Civ. P. 23(b)(2) consisting of all African-American hourly employees who worked at the Kraft Philadelphia Bakery from November 3, 1999 to the present.2 This is essentially the same class for which certification is hereby sought for purposes of implementing the settlement. The proposed settlement class is very modest in scope in that it is limited to a relatively small number (260) of one type of employee (African-American, hourly), who work(ed) at one facility (the Philadelphia bakery), who seek to pursue only one type of class-wide claim (discriminatory discipline). This class could have been certified for litigation purposes. A fortiori, it may be certified for settlement purposes because, in the instant setting, manageability does not need to be addressed. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997). Moreover, the class should be ce11ified pursuant to Fed. R. Civ. P. 23(b)(2) - the provision intended for civil rights actions.
1 See Davis v. Kraft Foods North America, c.A. No. 03-6060,2006 WL 237512 (E.D. Pa. Jan. 31,2006) ("Davis
1131/06 Memorandum and Order"). 2 The only difference is that the proposed settlement class period has an end date (December 31, 2006) that had to be designated in order to finalize the identity of class members and the amount of their individual settlement proceeds. The class period may begin on November 3, 1999 because a four-year statute oflimitations applies to claims brought under 42 U.S.C. § 1981. See Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004). Recovery based on Title VII claims, however, may be limited to the period of June 14, 2001 to the present because this Court held, in its January 31, 2006 Memorandum and Order, that the Title VII putative class is limited by the Title VII 300-day statute of limitation. See Davis 113 ]/06 Memorandum and Order, supra n. 1, at 12.
2

Plaintiffs' position is that discipline in the Philadelphia bakery was imposed on the basis of race, not fairness. Plaintiffs support their position with statistical and anecdotal evidence. Plaintiffs' assert that their statistical evidence demonstrated that discipline at the bakery had a disparate impact on class members. Plaintiffs' anecdotal evidence included specific examples of class members allegedly receiving more severe and more frequent discipline for actions that resulted in no or lesser discipline when committed by White hourly employees. Defendant vigorously denies these allegations. Defendant maintains that it imposed discipline at the bakery without regard to race, including discipline it issued to Plaintiffs. III. SUMMARY OF THE SETTLEMENT TERMS
As set forth in the Settlement Agreement (Exhibit A hereto), this class action is being resolved on the following terms:
Kraft shall pay a total of$1.325 million to resolve the Class Action, to be distributed as follows: (1) each Class member shall receive $1,000; in addition, each class member suspended during the class period shall receive $3,000, and each person terminated shall receive $10,000, provided no employee receives both the $3,000 suspension payment and the $10,000 termination payment; (2) Kraft shall pay to Named Plaintiffs Debra Davis and Francenia Canion special compensatory awards, in addition to the amounts they are due as Class members; and (3) Plaintiffs' Counsel will seek an award of$450,000 in Attorneys' Fees and $140,000 in litigation costs, subject to court approval.
Kraft also has agreed to provide the non-monetary relief to the Class members, as outlined below:
3

a. Purging of Disciplinary/Corrective Records3 All records of coaching as well as minor violations that were given to class members during the first twenty-six months of the class period (i.e., from 11/3/99 to 1/1/03), to the extent practicable, shall be removed from Kraft's HR databases, and not relied upon in any way.
b. Internal and External Disciplinary Tracking and Monitoring All future discipline (all warnings or more severe punishments) shall be tracked by a form that will include the race(s) of the persons receiving and imposing the discipline. In addition, Human Resources ("HR") shall review each discipline and either approve or disapprove it. HR shall also note whether the discipline has placed an employee in jeopardy of a written warning or suspension based on the number of previous disciplines which (s)he has received. If an employee is in such a position, HR shall confirm that (s)he has been so notified. Summaries of the discipline received by class members shall be submitted to an outside expert who shall be paid by Kraft but selected by both sides and/or approved by the Court. If the expert determines that class members are being disciplined at a rate substantially greater than expected, then (s)he shall investigate. Kraft will cooperate with the expert's investigation by, among other things, making all pertinent records available to him or her and permitting interviews of pertinent personnel. If either the expert or Class counsel form a good faith belief that racially discriminatory discipline is occurring, they may inform the Court. Kraft's enhanced and racespecific record-keeping of discipline shall continue indefinitely. Related reporting to an outside expert shall continue for no less than two years and no more than five years. If no disputes between Kraft and Class counsel arise during the second year of outside monitoring, it shall cease.
3 "Corrective Actions" as used herein refer to the "Corrective Action Steps" as described in Kraft's Employee Guidelines (Exh. A to Defendant's Class Cert. Opposition) at pp. 19-20.
4

c. Employee Surveys Beginning in 2007, all present hourly employees at the Philadelphia bakery shall be annually and anonymously surveyed to determine their attitudes with regard to workplace fairness. Survey questions will include inquiries about the fairness of supervisors. In addition, employees will be permitted to identify by name any supervisors whom they believe discriminate or harass on the basis of race.
d. Enhanced Supervisors' Performance Evaluations Henceforth, Kraft bakery supervisors shall be evaluated annually. A factor that Kraft will consider in evaluating bakery supervisors is the imposition of discipline in compliance with all anti-discrimination laws and with Kraft's equal employment opportunity policies. IV. THE COURT SHOULD DETERMINE THAT THE PROPOSED SETTLEMENT IS SUFFICIENTLY FAIR, REASONABLE AND ADEQUATE TO AUTHORIZE DISSEMINATION OF NOTICE TO THE CLASS A. Governing Standards. The procedure for disseminating notice to the class and then conducting a hearing to approve the settlement is well established by courts in the Third Circuit. See In re Automotive Refinishing Paint Antitrust Litig., MDL 1426 (Mem. May 10,2004) (E.D. Pa. 2004), 2003 U.S.
u.s. Dist. LEXIS 4681 (E.D. Pa. Mar. 17, 2003). See generally Stoetzner v. Steel Corp., 897
F.2d 115,117-120 (3d Cir. 1990). The Manual For Complex Litigation (Fourth) § 21.632 (2004) provides a framework for
the Court's preliminary evaluation of a proposed class action settlement. Review of a proposed class action settlement generally involves two hearings. First counsel submit the proposed terms of settlement and the judge makes a preliminary fairness evaluation.. .. The Judge must make a preliminary determination on the fairness, reasonableness and adequacy of the settlement terms and
5

must direct the preparation of notice of the ... proposed settlement, and the date of the fairness hearing. See also 2 NEWBERG ON CLASS ACTIONS, §11.24 (3d ed. 1992); In re Warfarin Sodium Antitrust Litig., 212 F.R.D. 231,254 (D. Del. 2002); In re NASDAQ Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y 1997). A court's authorization to disseminate notice constitutes its recognition that the settlement is within the range of possible approval. In re Corrugated Container Antitrust Litig., 643 F.2d 195,205 (5th Cif. 1981); Holden v. Burlington Northern, Inc., 665 F. Supp. 1398, 1402 (D. Minn. 1987); In re MontgomelY County Real Estate Antitrust Litig., 83 F.R.D. 305, 313 (D. Md. 1979). As one court noted, approving dissemination of notice "is at most a determination that there is what might be termed 'probable cause' to submit the proposal to class members and hold a full-scale hearing as to its fairness." In re Traffic Executive ASSOC.-Eastern R.R, 627 F.2d 631, 634 (2d Cir. 1980). A proposed settlement falls within the "range of possible approval" under Rule 23(e) where there is a conceivable basis for presuming that the proposed settlement will meet the more rigorous standards applied for final approval. The standard for final approval of a class action settlement is whether the proposed settlement is fair, reasonable and adequate. FED. R. CIV. P. 23(e)(1)(C); Stoetzner, 897 F.2d at 118; Walsh v. Great Atlantic & Pacific Tea Co., Inc., 726 F.2d 956, 965 (3d Cif. 1983). When authorizing the dissemination of notice, a court does not conduct a "definitive proceeding on the fairness of the proposed settlement, and the judge must be careful to make clear that the determination permitting notice to members of the class is not a finding that the settlement is fair, reasonable and adequate." In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379, 1384 (D. Md. 1983). That determination must await the final hearing where the fairness, reasonableness and adequacy of the settlement is assessed under the factors set forth in
6

Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975).4 See In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631, 638 (E.D. Pa. 2003).
B. The Proposed Settlement Is Fair and Within The Range of Possible Approval Courts favor settlements. See, e.g., In re BeefIndustry Antitrust Litigation, 607 Fold 167, 174 (5th Cir. 1979), cert. denied sub nom., Iowa BeefProcessors, Inc., v. Meat Price Investigators Association, 452 U.S. 905 (1981). Settlements proposed by experienced counsel and which result from arms-length negotiations are entitled to deference from the court. In re Automotive Refinishing Paint, 2003 WL 23316645 at *6 (E.D. Pa. Sept. 5,2003). See also In re Linerboard Antitrust Litig., 292 F. Supp. 2d at 640 ("A presumption of correctness is said to attach to a class settlement reached in arms-length negotiations between experienced, capable counsel after meaningful discovery.") (citing Hanrahan v. Britt, 174 F.R.D. 356, 366 (E.D. Pa. 1997)); Petruzzi's, Inc. v. Darling-Delaware Co., 880 F. Supp. 292, 301 (M.D. Pa. 1995) ("the opinions and recommendations of such experienced counsel are indeed entitled to considerable weight."); Lake v. First National Bank, 156 F.R.D. 615,628 (E.D. Pa. 1994) (giving "due regard to the recommendations of the experienced counsel in this case, who have negotiated this settlement at arms-length and in good faith."). The initial presumption in favor of such settlements reflects courts' understanding that vigorous negotiations between seasoned counsel protects against collusion and advances the fairness concerns of Rule 23(e). Plaintiffs submit that the proposed settlement before the Court is well within the range of possible approval and is sufficiently fair to warrant notice to class members. The settlement with
4 The Girsh factors that a court considers on a motion for final approval of a class settlement as "fair, reasonable and adequate" include the following: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best possible recovery; and (9) the range of reasonableness of the settlement in light of all attendant risks oflitigation. Girsh, 521 F.2d at 157.
7

Kraft provides for substantial cash payments to class members5 as well as meaningful non-
monetary components designed to maintain an equal employment opportunity workplace at
Kraft's Philadelphia bakery.
The settlement was negotiated by experienced counseV at arms-length, following
substantial discovery, and under the supervision of this Court. Class Counsel have concluded,
after investigation of the facts and after considering the circumstances of the case and the
applicable law, that it would be in the best interest of Plaintiffs and the Class to enter into the
Settlement Agreement.
While the standards that have developed for approval of class action settlements use
varying terminology, the "bottom line" ofthis jurisprudence is that the settlement must be in the
5 Named Plaintiffs will receive special payments to compensate them for the time and effort that they have devoted to this litigation and for losses which Plaintiffs believe they have suffered as a result of this lawsuit. In these circumstances, the special payments to the Named Plaintiffs are appropriate and consistent with prevailing guidelines. See, e.g., Butlram v. United Parcel Service, No. C-97-Dl590 (N.D.Cal. April 9, 1997) (race discrimination suit settled for $12.1 million to be shared by some 15,000 part time UPS workers; $150,500 to be paid to seven named plaintiffs); Royal v. Aramark Corp. No. 97-CV-6226 (E. D. Pa. July 29, 1999) (approving settlement in which three named plaintiffs each received $50,000 in $3.75 million settlement arising from alleged race discrimination). See generally Gaskill v. Boula, 1995 US Dist. LEXIS 18576 (E.D. Ill. 1995) ("these individuals [class representatives] invested their time and effort and exposed themselves to litigation costs even though there was a significant risk that they might lost. Equity requires that they receive greater compensation than others who did not."); Carroll v. Blue Cross and Blue Shield o/Massachusetts, 157 F.R.D. 142, 143 (D. Mass. 1994) (class representative received additional payments "as compensation for services rendered to the class in initiating and prosecuting this action ..."); In re Dun & Bradstreet Credit Services Customer Litigation, 130 F.R.D. 366, 376 (S.D. Ohio 1990) (incentive awards to compensate the class representatives for "time, risk and expenses" granted). Generally, the courts look favorably upon such reasonable additional compensation for named class representatives who play an active role in the suit, because such awards serve as an incentive for average persons to commence and work actively on the prosecution of a class suit for the benefit of others. See, e.g., Bogosian v. GulfOil COIl)., 621 F. Supp. 27, 32 (E.D. Pa 1985).
6 The experience and reputation of counsel and the arms-length nature of the negotiations have often been recognized as important facts to be considered in assessing the fairness and reasonableness of proposed settlements. See, e.g., Fisher Brothers, 604 F. Supp. 446 at 452 (the "professional judgment of counsel involved in the litigation is entitled to significant weight."); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F. Supp. 659, 667 (D. Minn. 1974) (the "recommendation of experienced antitrust counsel is entitled to great weight."); Blank v. Talley Industries, Inc., 64 F.R.D. 125, 132 (S.D.N.Y. 1974) (a factor "entitled to substantial weight, is that [the settlement] bears the imprimatur of seasoned and experienced counsel").
8

best interests of the class. 2 NEWBERG ON CLASS ACTIONS (3d ed. 1992 and 1996 Cumm. Supp.) § 11.43. The proposed settlement undoubtedly satisfies this standard.
C. Class Notice Fed. R. Civ. P. 23(e) provides that "notice of the proposed dismissal or compromise (ofa class action) shall be given to all members of the class in such manner as the court directs." The notice to class members should make it clear that no decision on final approvaF has yet been reached. In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379, 1384 (D. Md. 1983). See also Holden, 665 F. Supp. at 1403 (in authorizing notice, the cOUli refrained from "expressing any opinion concerning the ultimate merits of the proposed settlement."). Plaintiffs have prepared, and respectfully submit for the Court's consideration, a proposed Notice of Class Action Settlement. Kraft has agreed to the language of the same. The settling parties propose providing individual notice to Class Members via first class mail. The content and mode of dissemination of the Notice fulfill the requirements of Rule 23(e), and due process. See generally In re Prudential Ins. Co. America Practices Sales Litig., 148 F.3d 283, 326-27 (3d Cir. 1998).
7 The standard for final approval of a settlement is that the settlement is fair, reasonable and adequate. See Stoetzner
u.s. v. Steel Corp., 897 F.2d 115, 118 (3d Cir. 1990); Walsh v. Great Atlantic & Pacific Tea Co. Inc., 726 F.2d 956,
965 (3d Cir. 1983).
9

V. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that the Court grant preliminary
approval of the proposed settlement with Kraft, and authorize the mailing of notice to class members.

Dated: April 17,2007

Respectfully submitted,

Robert T. Vance, Jr., Esquire LA W OFFICES OF ROBERT T. VANCE, JR. 100 South Broad Street, Suite 1530 Philadelphia, PA 19110 (215) 557-9550

. ohn, Esqu Hadley erkins Roeltgen, Esquire KOl-IN, SWIFT & GRAF, P.C. One South Broad, Suite 2100 Philadelphia, PA 19107 (215) 238-1700

Counsel for Plaintiffs and the Class

10

CERTIFICATE OF SERVICE
I, Hadley Perkins Roeltgen, hereby certify that, on this 1i h day of April, 2007, a true and
correct copy of Plaintiffs' Unopposed Motion for: (1) Preliminary Approval of a Proposed
Settlement, and (2) Authorization to Disseminate Notice and Supporting Memorandum were
served upon the following by ECF and first class mail:
Marguerite S. Walsh, Esquire Michele Halgas Malloy, Esquire Littler Mendelson, P.c. Three Parkway, Suite 1400 1601 Cherry Street Philadelphia, PA 19102

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA DAVIS and FRANCENIA CANION, on : behalf of themselves and all other similarly situated : persons,
Plaintiffs,

CIVIL ACTION NO. 03-6060

v.

KRAFT FOODS NORTH AMERICA, INC.,

Defendant.

CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE
This Class Action Settlement Agreement ("Agreement") is made and entered into this _ _ day of April 2007 (the "Execution Date"), by and between Defendant Kraft Foods North America, Inc., now known as Kraft Foods Global, Inc. and its corporate predecessor Nabisco Biscuit Company (collectively hereafter, "Kraft") and Plaintiff Class Representatives Debra Davis and Francenia Canion (together, "Plaintiffs"), both individually and on behalf of a class of all African-American hourly employees employed at the Kraft Philadelphia Bakery from November 3, 1999 to December 31,2006 (the "Class").
WHEREAS, Plaintiffs allege that Kraft created and maintained a racially hostile and unfair system of discipline at the Philadelphia Bakery; and
WHEREAS, Kraft denies Plaintiffs' allegations; and WHEREAS, Plaintiffs have conducted an investigation into the facts and the law regarding this action and have concluded that a settlement with Kraft according to the terms set forth below is in the best interests of Plaintiffs and the Class; and

WHEREAS, Plaintiffs and Kraft mutually desire to settle and terminate the Class Action and any and all disputes between them, which settlement shall not be deemed or construed to be an admission of liability or wrongdoing by Kraft, but which constitutes a good faith settlement of the disputed claims;
NOW, THEREFORE, in consideration of the covenants, agreements and releases set forth herein and for other good and valuable consideration, it is agreed by and among the undersigned that this action against Kraft (hereafter, the "Action") be settled, compromised, and dismissed with prejudice, without costs to the Plaintiffs or the Class, subject to the approval of the Court, on the following terms and conditions.
A. Definitions The following terms, as used in this Agreement, have the following meanings: 1. "Class" means:
All African-American hourly employees employed at the Kraft Philadelphia Bakery from November 3, 1999 to December 31, 2006. 2. "Class Counsel" shall refer to the law firms of Kohn, Swift, & Graf, P.c. (hereafter, "KSG"), One South Broad Street, Suite 2100, Philadelphia, PA 19107, and The Law Offices of Robert T. Vance, 100 South Broad Street, Suite 1530, Philadelphia, PA 19110. 3. "Class Member" means each member of the Class who does not timely elect to be excluded from the Class. 4. "Class Period" means the period from and including November 3, 1999 to and including December 31, 2006. 5. "Class Representative" or "Plaintiffs" means Debra Davis and Francenia Canion. 6. "Releasees" shall refer jointly and severally, individually and collectively to Kraft, Foods North America, Inc. and its corporate predecessor Nabisco Biscuit Company, its

direct and indirect parents, subsidiaries, affiliates, divisions, and partners, the past and present

officers, directors, members of any supervisory board or board of management, employees,

agents, attorneys, servants, and representatives of the aforesaid entity, and the predecessors,

successors, heirs, executors, administrators, and assigns of each of the foregoing.

7. "Releasors" shall refer jointly and severally, individually and collectively to

Plaintiffs and the Class Members and their respective past and present parents, subsidiaries,

affiliates, predecessors, and agents. As used in this definition, "affiliates" means entities

controlling, controlled by or under common control with a Releasor. Plaintiffs shall release all

legally waivable employment-related claims that they currently may have against Kraft. Class

Members shall only release claims related to or arising from allegedly unfair discipline.

8.

"Settlement Amount" means One Million Three Hundred Twenty-Five Thousand

Dollars ($1,325,000) in United States currency.

9. The "Settlement Fund" shall be the Settlement Amount after Kraft transfers the

Settlement Amount to an escrow account at PNC Bank in Philadelphia established by Plaintiffs'

Counsel, on behalf of the Class.

B. Stipulation to Class Certification

10. The pm1ies to this Agreement hereby stipulate for purposes of settlement only that

the requirements of Federal Rules of Civil Procedure 23(a) and 23(b) are satisfied in this case,

and, subject to Court approval, the following Settlement Class shall be certified for settlement

purposes:

All African-American hourly employees employed at the Kraft Philadelphia Bakery from November 3, 1999 to December 31, 2006.

11. Subject to any opt-outs, it is presently anticipated that the class is comprised of two hundred sixty individuals, of whom thirty-three were suspended and twenty-one were terminated (for cause).
12. A class may be certified under Fed.R.Civ.P. 23(b)(2) for purposes of effecting this settlement. A subclass class may be certified under Rule 23(b)(3) for purposes of distributing monetary payments pursuant to this settlement.
13. If this Agreement fails to gain Preliminary Approval or Final Approval by the Court or the Effective Date, as defined in paragraph 17, does not occur, Kraft retains all rights to object to the maintenance of this case as a class action, and the Agreement is not admissible in any proceeding for any purpose.
C. Approval of this Agreement and Dismissal of Claims 14. Plaintiffs and Kraft shall use their best efforts to effectuate this Agreement, including cooperating in promptly seeking the Court's approval of procedures under Federal Rules of Civil Procedure n(c) and (e) to secure certification of the Settlement Class and the prompt, complete, and final dismissal with prejudice of the Action. 15. After the execution of this Agreement, Plaintiffs shall submit to the Court a motion, to be joined in or stipulated to by Kraft, requesting entry of an Order preliminarily approving the settlement and authorizing dissemination of notice to the proposed Settlement Class (the "Motion"). The Motion shall include: (a) the definition of the Settlement Class to be certified by the Court pursuant to this Agreement; and (b) the proposed form and date of notice to be mailed to the Settlement Class. 16. Plaintiffs and Kraft shall jointly seek entry of a final judgment order providing:
(a) as to the Action, approving finally this Agreement and its terms as being a fair, reasonable, and adequate settlement as to the Settlement Class

Members within the meaning of Rule 23 ofthe Federal Rules of Civil Procedure and directing its consummation according to its terms; (b) directing that the Action be dismissed with prejudice and, except as provided for in this Agreement, without costs; (c) reserving exclusive jurisdiction over the settlement and this Agreement, including the administration and consummation of this settlement; and (d) determining under Federal Rule of Civil Procedure 54(b) that there is no just reason for delay and directing that the judgment of dismissal shall be final and entered forthwith. 17. This Agreement shall become final only when: (a) the Court has entered a final judgment order approving this Agreement under Rule 23(e) of the Federal Rules of Civil Procedure and a final judgment dismissing the Action with prejudice as to all Settlement Class Members and without costs has been entered, and (b) the time for appeal or to seek permission to appeal from the Court's approval of this Agreement and entry of a final judgment as described in clause (a) above has expired or, if appealed, approval of this Agreement and the final judgment has been affirmed in its entirety by the Court of last resort to which such appeal has been taken and such affirmance has become no longer subject to further appeal or review, and (c) the optout period of thirty (30) days has ended and no more than five (5) percent of absent class members have elected to opt out. ("Effective Date"). If more than five (5) percent of absent class members have elected to opt out, this proposed settlement may, at Kraft's sole discretion, be tenninated and shall become null and void. It is agreed that neither the provisions of Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. §1651, shall be taken into account in determining the above-stated times. D. Release and Discharge 18. Plaintiffs shall release all legally waivable employment-related claims that they currently may have against Kraft, pursuant to a separate Settlement and Release Agreement.

This Agreement shall preclude any absent class members from pursuing any claim(s) for alleged racially discriminatory discipline during the class period.
19. The Plaintiffs acknowledge: (a) that they have read the terms of the Agreement, that they have been
advised that prior to executing this Agreement they should discuss the language of this Agreement with their attorneys, that they have had an opportunity to do so, and that they understand this Agreement's terms and effects;
(b) that they are not waiving any rights or claims arising after the date of this Agreement; and
(c) that they are executing this Agreement of their own volition, with full understanding of its terms and effects, and with the intention of releasing all claims recited herein in exchange for the consideration described herein, which they acknowledge is adequate and satisfactory to them and which is in addition to anything to which they are already entitled. Neither Kraft nor any of its agents, representatives, or attorneys has made any representations to them concerning the terms or effects of this Agreement other than those contained herein.
E. Claims Administration 20. Kraft shall payor cause to be paid the Settlement Amount of One Million Three Hundred Twenty-Five Thousand Dollars ($1,325,000) in settlement ofthe Action. The Settlement Amount shall be wire transferred by Kraft within ten (10) business days after the Court grants preliminary approval of the settlement, into the Settlement Fund which shall be managed and administered by Class Counsel in accordance with the provisions of Sections E, F, J and H of this Agreement.

21. The Settlement Fund shall be invested in United States Government Treasury obligations (provided, however, that such portions of the Settlement Fund as may reasonably be needed to pay current expenses associated with providing notice to the Class, administering the Settlement Fund and the settlement, and any taxes may be deposited in a federally insured bank account in the Bank or United States Treasury Money Market funds in an amount not exceeding $100,000). All interest earned on the Settlement Fund shall become and remain part of the Settlement Fund.
22. Upon making the settlement payment as set forth in paragraph 20 above, Kraft shall not have any responsibility, financial obligation, or liability whatsoever with response to the investment, distribution among Class Members, use, or administration of the Settlement Fund, including, but not limited to, the costs and expenses of such investment, distribution or administration.
23. After the Effective Date of this Agreement, Plaintiffs and Class Counsel shall be reimbursed and paid solely out of the Settlement Fund for all expenses including, but not limited to, attorneys' fees, and past, current, or future litigation expenses, including expert expenses. Kraft shall not be liable for any costs, fees, or expenses of any of Plaintiffs' attorneys, expelis, advisors, agents, or representatives, but all such costs, fees, and expenses as approved by the Court shall be paid out of the Settlement Fund. No disbursements shall be made from the Settlement Fund prior to the Effective Date of this Agreement except as described in paragraph 21 above.
F. Plan of Distribution 24. Within ten (10) days of the Parties' execution of this Agreement, Kraft agrees that it will provide to Class Counsel the name, last known address and, for purposes of distribution,

social security numbers, of all Class members and the distribution to which each is entitled. Class members' personal information shall be used only for distribution purposes and shall remain confidential. Any disputes related to this paragraph shall be resolved by the Court. Class Counsel shall be responsible for sending via first class mail a personalized notice to each Class Member, in the form agreed to by the parties, notifying him/her of his/her rights under this Agreement.
25. Before the Effective Date of this Agreement, reasonable disbursements for expenses associated with providing notice of the settlement to the Settlement Class, expenses associated with administering the settlement, and any payments and expenses incurred in connection with taxation matters relating to the settlement and this Agreement (as addressed by paragraph 36 of this Agreement) may be made from the Settlement Fund, and such amounts shall not be refundable to Kraft in the event the Agreement is disapproved, rescinded, or otherwise fails to become effective.
26. Kraft shall not have any responsibility, financial obligation, or liability whatsoever with respect to the investment, distribution, use, or administration of the Settlement Fund, including, but not limited to, the costs and expenses of such investment, distribution, administration, or use except as expressly otherwise provided in this Agreement. Kraft specifically shall not be responsible for any claims administration expenses, notice expenses, attorneys' fees, escrow fees, or any other costs and expenses incurred by Plaintiffs in bringing and settling the Action.
27. The Settlement Fund shall be distributed as follows: (a) Each Class Member shall receive $1,000. In addition, each Class Member
suspended during the class period shall receive $3,000, and Class Member terminated shall

receive $10,000. Class Members shall receive the higher of the suspension or termination amount to which they are entitled but, in any event, shall only receive one such recovery. Thus, the most that may be distributed to an absent Class Member is $11,000.
(b) In addition to the payments referred to in subparagraph (a) hereof, Kraft has agreed to certain payments to be made to the Plaintiffs pursuant to separate Settlement Agreements and Releases to be executed by Kraft and the Plaintiffs.
(c) Garden City Group shall serve as the Claims Administrator solely for purposes of distributing payments to the Class Members. For each Class Member, Garden City Group shall: (i) calculate the amount of tax withholding under this agreement; (ii) calculate the net payment to the Class Member; (iii) cause a check to be sent via first class U.S. Mail to each Class Member at the address provided by Class Counsel; (iv) pay the amounts due to all taxing authorities; and (v) issue a report of all such calculations and payments to Class Counsel and counsel for Kraft. As soon as practicable after the Effective Date, Garden City Group shall request Class Counsel to transmit a payment from the Settlement Fund in the amount necessary to pay the Class Members and taxing authorities.
28. At the conclusion of the distribution of the settlement fund, and after the expiration of that period of time during which Kraft reports disciplinary actions to an outside expert as set forth in paragraph 29(b), any remaining funds after all payments to Class members, costs of administration, taxes, and payment of attorneys' fees and costs shall be paid cy pres, subject to Court approval, to a charity agreed to by the parties or, in the absence of agreement, designated by the Court.
G. Non-Monetary Relief

29. In addition to the Settlement Amount as described in Section F, Kraft agrees to provide the following non-monetary relief to the Class members:
(a) Non-Reliance on Certain Disciplinary/Corrective Records All records of coaching/counseling and verbal or written warnings that were given to class members during the first twenty-six months of the class period (i.e., from 1113/99 to 111/03) shall be removed, to the extent practicable, from Kraft's Human Resources (HR) databases, Kraft shall not rely upon such records in any way in the imposition of any future discipline.
(b) Internal and External Disciplinary Tracking and Monitoring All future discipline (at or above the level of warnings) shall be tracked by a form that will include the race(s) of the persons receiving and imposing the discipline. In addition, Human Resources ("HR"), as soon as reasonably practicable, shall review each discipline and either approve or disapprove it. Discipline forms given to employees, to the extent not already provided, shall be modified to state prominently thereon that any future infractions may result in discipline, up to and including termination. Summaries of the discipline received by class members shall be submitted to an outside expert(s) who shall be paid by Kraft (up to $50,000 from settlement proceeds) but selected by both sides and/or approved by the Court. Such Summaries shall be submitted to the parties on an annual basis for a period of at least two years, i.e., in January 2008 for discipline imposed in 2007 and in January 2009 for discipline imposed in 2008. If the expert(s) determine(s) that class members are being disciplined at a rate substantially greater than expected, then (s)he shall investigate. Kraft will cooperate with the expert investigation by, among other things, making all pertinent records available to him or her and permitting interviews of pertinent personnel. If either the expert(s) or Class counsel fonn a good faith belief that racially discriminatory discipline is occurring, they may inform the Court.

Kraft may respond accordingly. Related reporting to an outside expert shall continue for no less than two years and no more than five years. If no disputes between Kraft and Class counsel arise during the second year of outside monitoring, it shall cease. If disputes arise and the parties, after reasonable effOlis, cannot agree on any extended monitoring period, then either party may seek Court intervention.
(c) Employee Surveys In 2007,2008 and 2009, all present hourly employees at the Philadelphia bakery shall be annually and anonymously surveyed to determine their attitudes with regard to workplace fairness. Survey questions will include inquiries about the fairness of supervisors.
(d) Enhanced Supervisors' Performance Evaluations Kraft agrees that a factor that Kraft will consider in evaluating bakery supervisors is the imposition of discipline in compliance with all anti-discrimination laws and with Kraft's equal employment opportunity policies. H. Attorneys' Fees 30. Subject to approval of the District Court, Class Counsel shall be reimbursed and paid solely out ofthe Settlement Fund for all expenses including, but not limited to, attorneys' fees, past, current, or future litigation expenses. Kraft shall not be liable for any costs, fees, or expenses of any of Plaintiffs' respective attorneys, experts, advisors, agents, or representatives, but all such costs, fees, and expenses as approved by the Court shall be paid out of the Settlement Fund. 31. Plaintiffs' Counsels' request for attorneys' fees (exclusive of cost reimbursements) will not exceed the amount of$450,000. The amount of attorneys' fees and

costs awarded by the Court shall be paid from the Settlement Fund five (5) business days after the Effective Date.
32. Plaintiffs' Counsels' request for cost reimbursements will not exceed $135,000. 33. If the Court refuses to approve this Agreement or any part hereof, or if such approval is modified or set aside on appeal, or if the Court does not enter the final judgment order or if the Court enters the final judgment order and appellate review is sought and, on such review, such final judgment order is not affirmed, then Kraft and the Plaintiffs shall each, in their sole discretion, have the option to rescind this Agreement in its entirety and any and all amounts then constituting the Settlement Fund (including all interest earned thereon) shall be returned forthwith to Kraft, except for such disbursements made or incurred in accordance with paragraph 21 of this Agreement. A modification or reversal on appeal of any amount of Class Counsel's fees and expenses awarded by the Court from the Settlement Fund or any plan of allocation or distribution of the Settlement Fund shall not be deemed a modification of all or a part of the terms of this Agreement or such final judgment order. Kraft and Plaintiffs expressly reserve all of their rights if the Agreement does not become effective or if it is rescinded by Kraft or Plaintiffs. H. Taxes 34. Class Counsel shall be solely responsible for filing all informational and other tax returns necessary to report any net taxable income earned by the Settlement Fund and shall be solely responsible for taking out of the Settlement Fund, as and when legally required, any tax payments, including interest and penalties due on income earned by the Settlement Fund. All taxes (including any interest and penalties) due with respect to the income earned by the Settlement Fund shall be paid from the Settlement Fund. Kraft shall have no responsibility to

make any filings relating to the Settlement Fund and will have no responsibility to pay tax on any income earned by the Settlement Fund or to pay any taxes on the Settlement Fund unless the settlement is not consummated and the Settlement Fund is returned to Kraft. In the event the settlement is not consummated, Kraft shall be responsible for the payment of all taxes (including any interest or penalties), if any, on said income.
J. Taxation 35. Payments for suspensions and terminations made to Class Members will be deemed 70% compensatory damages for pain and suffering and this portion shall not be subject to withholding. Thirty percent (30%) of the disciplinary payments will be considered back pay, and will be taxed accordingly. Payments of$1,000 are not for back pay and shall not be subject to withholding. Garden City Group shall be responsible for calculating and paying all appropriate taxes relating to the payment to class members under this agreement. In the event that any governmental agency, taxing authority or court determines that the Settlement Amount and/or the payments set forth above, or any portion thereof, have been improperly classified, each Plaintiff, Class member, and Plaintiffs' Counsel who receives payment will be solely responsible for any and all taxes due as a result of his or her own non-payment or underpayment of taxes. K. Miscellaneous 36. The Named Plaintiffs and their Counsel agree to treat any reports, documents, and information received pursuant to this Agreement, particularly those reports, documents, and information received pursuant to paragraph G of this Agreement, as confidential. They agree not to divulge or communicate the contents of any reports, documents, and information in any way to any person or entity unless that disclosure is essential for the enforcement of this Agreement.

37. The parties agree not to promulgate any statement to any media source or any other individual or entity whatsoever regarding this settlement. If questioned regarding the matter, the parties agree that any response shall be limited to the statement: "The matter has been resolved to the mutual satisfaction of the parties."
38. This Agreement constitutes the entire agreement among Plaintiffs and Kraft pertaining to the settlement of the Action against Kraft and supersedes any and all prior and contemporaneous undertakings of Plaintiffs and Kraft in connection therewith. This Agreement may be modified or amended only by a writing executed by Plaintiffs and Kraft and approved by the Court.
39. This Agreement may be executed in counterparts by Plaintiffs and Kraft, and a facsimile signature shall be deemed an original signature for purposes of executing this Agreement.
40. The parties agree that this Agreement shall be interpreted under the laws of the Commonwealth of Pennsylvania.
41. The parties agree that the COUli shall retain jurisdiction of the Action. 42. Each of the undersigned attorneys represents that he or she is fully authorized to enter into the terms and conditions of, and to execute, this Agreement, subject to Court approval. IN WITNESS WHEREOF, and intending to be legally bound hereby, Plaintiffs Debra Davis and Francenia Canion and Plaintiffs' Counsel, on behalf of a class of all African-American hourly employees ofthe Kraft Philadelphia Bakery from November 3, 1999 to December 31, 2006, Kraft Foods North America, Inc., and Counsel for Kraft Foods North America, Inc. hereby execute the foregoing Settlement Agreement.

Joseph C. Kohn, Esquire Hadley Perkins Roeltgen, Esquire KOHN, SWIFT & GRAF, P.C. One South Broad, Suite 2100 Philadelphia, PA 19107 (215) 238-1700

Robert T. Vance, Jr., Esquire LAW OFFICES OF ROBERT T. VANCE, JR. 100 South Broad Street, Suite 1530 Philadelphia, PA 19110 (215) 557-9550

Counsel for The Named Plaintiffs and the Plaintiff Class

DEBRA DAVIS

FRANCENIA CANION

Plaintiffs

Marguerite S. Walsh LITTLER MENDELSON Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102 (267) 402-3000 Counsel for Defendants

KRAFT FOODS NORTH AMERICA, INC.

By: ________________

Dated: --------------------

Title: --------------------------

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA DAVIS and FRANCENIA CANION, on : behalf of themselves and all other similarly situated : persons,
Plaintiffs,

CIVIL ACTION NO. 03-6060

v.

KRAFT FOODS NORTH AMERICA, INC.,

Defendant.

STIPULATION OF VOLUNTARY DISMISSAL It is hereby stipulated, by and between counsel for Plaintiffs Debra Davis and Francenia Canion, on behalf of a class of hourly employees of the Kraft Philadelphia Bakery between November 3, 1999 until December 31, 2006, and Defendant Kraft, Inc., that the claims set forth in above-captioned action are hereby dismissed with prejudice pursuant to Fed. R. Civ. P. 41 (a)(l).

Joseph C. Kohn Hadley Perkins Roeltgen KOHN, SWIFT & GRAF, P.c. One South Broad Street, Suite 2100 Philadelphia, PA 19107 (215) 238-1700

Marguerite S. Walsh LITTLER MENDELSON Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102 (267) 402-3000

Robert T. Vance, Jr.

Attorneys for Defendant Kraft Foods North

LAW OFFICES OF ROBERT T. VANCE, JR. America, Inc.

100 South Broad Street, Suite 1530

Philadelphia, PA 19110 (215) 557-9550

Date: ---------------------

Co-Lead Counsel for Plaintiffs

Date: ---------------------

EXHIBITB

TO: ALL AFRICAN-AMERICAN PERSONS WHO ARE EMPLOYED BY KRAFT (OR HAVE BEEN EMPLOYED BY KRAFT SINCE NOVEMBER 3, 1999) IN AN HOURLY POSITION AT THE PHILADELPHIA BAKERY, LOCATED ON 12000 E. ROOSEVELT BOULEVARD

DEBRA DAVIS and FRANCENIA CANION, on behalf of themselves and all other similarly situated : persons,
Plaintiffs,
v.

u.s. DISTRICT COURT FOR THE
EASTERN DISTRICT OF PA
CIVIL ACTION NO. 03-6060

KRAFT FOODS NORTH AMERICA, INC., Defendant.

NOTICE OF A PROPOSED CLASS ACTION SETTLEMENT
This Notice is being sent to you, as ordered by the Court, to advise you of the preliminary approval of the settlement of a race discrimination action against Kraft Foods North America, Inc. ("Kraft").
1. Summary of Litigation. The Plaintiffs (i. e., the people who filed this lawsuit) claimed that Kraft discriminates against its African-American or Black hourly employees at the Philadelphia Bakery by disciplining them more frequently and more severely than Caucasian or White hourly employees at the bakery who have committed the same or similar types of infractions. The two people who filed this lawsuit are Debra Davis, a terminated employee, and Francenia Canion, a current employee. Kraft denies any wrongdoing.
2. Summary of the Proposed Settlement With Kraft. Under the terms of the proposed settlement, Kraft will pay a total of $1.325 million to resolve the Class Action, distributed, in part, as follows: (1) each Class member shall receive $1,000; in addition, each class member suspended during the class period shall receive $3,000, and each person terminated shall receive $10,000. Class members who were suspended and terminated during the class period shall receive the $10,000 payment only. They will not receive the $3,000 payment; (2) Kraft shall pay an agreed upon amount to Named Plaintiffs Debra Davis and Francenia Canion in special compensatory awards and (3) Plaintiffs' Counsel will petition the Court for an award of up to $450,000 in Attorneys' Fees and $]25,000 in reimbursement of their out of pocket litigation costs. Kraft also has agreed to provide the following non-monetary relief to the Class members. All records of coaching as well as minor violations that were given to class members during the first twenty-six months of the class period (i.e., from 1113/99 to 111103), to the extent practicable, shall be removed from Kraft's HR data bases. Kraft will not rely upon such disciplinary records in any way. All future discipline (all warnings or more severe punishments) shall be tracked by a form that will include the race(s) of the persons receiving and imposing the discipline. In addition, Human Resources ("HR") shall revise

discipline fOnTIS and shall amend them to display prominently that any future infractions may result in further discipline up to and including termination. Summaries of the discipline received by class members shall be submitted to an outside expert. If the expert determines that class members are being disciplined at a rate substantially greater than expected, then (s)he shall investigate. If either the expert or Class counsel form a good faith belief that racially discriminatory discipline is occurring, they may infonTI the Court. Beginning in 2007, all present hourly employees at the Philadelphia bakery shall be annually and anonymously surveyed to determine their attitudes with regard to workplace fairness. Survey questions will include inquiries about the fairness of supervisors. Finally, Kraft bakery supervisors shall be evaluated annually. A factor that Kraft will consider in evaluating bakery supervisors is the imposition of discipline in compliance with all anti-discrimination laws and with Kraft's equal employment opportunity policies.
3. Your Settlement Payment. Kraft's records indicate that under the terms of the settlement agreement, as set forth in paragraph 2 above, you are entitled to a payment of $1,000, from which no taxes will be withheld. [In addition, as a result of your suspension/termination, you are also entitled to a payment of $3,000/$1 0,000, from which taxes will be withheld as described in paragraph 6 below.]
4. The Settlement Process. Every class action settlement must be approved by the court which presided over the class action litigation. In order to decide whether to give final approval to the proposed settlement, the Court (the Hon. Paul S. Diamond) will consider the papers submitted by Kraft and by the Plaintiffs. In addition, Judge Diamond will hold a hearing in open court, as described in paragraph 7 below. You may submit any objections that you may have to the proposed settlement to the Court in writing. For any such written objections to be considered, they must be mailed to the following post office box and postmarked by _ _ _ _ __
Kraft Discrimination Class Action P.O. Box _ __
Philadelphia, PA _ __
Please do not send any comments directly to the Court or attempt to reach Judge Diamond in person. You may, however, review a copy of the Settlement Agreement at the Clerk's Office at the federal Courthouse in Philadelphia (6th & Market) or online at www.kohnswift.com.
5. Eligibility to Receive Settlement Money. You are eligible to participate in this Settlement if you are an African-American who worked in an hourly position at the KraftlNabisco bakery in Philadelphia at any time from November 3, 1999 to December 31, 2006. If you want to receive settlement funds, you do not need to take any action. The amount of your settlement check will be either $1,000 or $4,000 (if you have been suspended) or $11,000 (if you have been terminated), subject to applicable tax withholding, explained in Paragraph 5. If you elect to remain in the lawsuit, you will be

waiving (or dismissing) any and all claims that you might have filed against Kraft based on alleged racial discrimination in discipline.

6. Payments for suspensions and terminations made to Class Members will be deemed seventy percent (70%) compensatory damages for pain and suffering and this portion shall not be subject to tax. Thirty percent (30%) of the payments will be considered back pay, and will be subject to appropriate tax withholding. Therefore, any settlement checks received for a termination or suspension will have taxes withheld from 30% of the total amount. Payments of $1 ,000 are not for back pay and shall not be taxed.

7. Right To Opt Out of the Settlement. If you want to opt out or exclude yourself from

the Settlement, you must send a letter requesting exclusion to the post office box

identified above. Your exclusion request must be postmarked by

, 2007.

It must include your name, address, social security number, and the years during which

you worked at Kraft. If you exclude yourself from this Settlement, you will not be

eligible to receive any money. You will, however, be able to bring your own action

against Kraft for any alleged discrimination.

8. Final Fairness Hearing. A Settlement Hearing will be heJd on

, 2007 at

_ _ _ _ _ m., in the Courtroom of Judge Paul S. Diamond (U.S. Courthouse, 6th &

Market Streets, Philadelphia, Room

). You may attend this hearing. Further, any

person who has not opted out of the Settlement and who has filed a written objection to

the Settlement, may speak at the Final Fairness Hearing. If you seek to present any

evidence or appear through a lawyer at the final fairness hearing, you must state your

intention to do so in writing (sent to the post office box identified in this notice)

postmarked on or before _ _ _ __

9. Change of Address. If your name and address have recently changed, please provide any such change by writing to the P.O. Box listed above.

IMPORTANT REMINDER:

If you wish to remain a member of the Kraft Discrimination

Class, you do not need to do anything at this time.

If you want to object to the proposed settlement and/or the

request for attorneys' fees and costs, or exclude yourself from the

Class, you must send a letter to P.O. Box

,Philadelphia,

PA _ _ postmarked on or before _ _ _ __

If you have any questions concerning this settlement, you may write counsel at the addresses listed below.
Plaintiffs' Counsel:
Joseph C. Kohn, Esq., Hadley Perkins Roeitgen, Esq., Kohn, Swift & Graf, P.C., One South Broad St., Suite 2100, Philadelphia, PA 19107
Robert T. Vance, Jr., Esq., Law Offices of Robert T. Vance, Jr., 100 South Broad Street, Suite 1530, Philadelphia, PA 19110

Kraft's Counsel:
Marguerite S. Walsh, Esq., Littler Mendelson, P.C., Three Parkway, Suite 1400, 1601 Cherry Street, Philadelphia, PA 19102

PLEASE DO NOT CONTACT THE COURT.

If you have questions concerning this litigation, you may contact Class Counsel identified above. Do not contact the Clerk of the Court or the Judge.

Dated:_ _ _ _ _ _ __

BY ORDER OF: Michael E. Kunz The Clerk of the United States District Court for the Eastern District of Pennsylvania