PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

QUINTON BROWN; JASON GUY;



RAMON ROANE; ALVIN SIMMONS;

SHELDON SINGLETARY; GERALD

WHITE; JACOB RAVENELL,

individually and on behalf of the

 class they seek to represent, Plaintiffs-Appellants,

v.

NUCOR CORPORATION; NUCOR STEEL BERKELEY,

 Defendants-Appellees.

No. 08-1247

Appeal from the United States District Court for the District of South Carolina, at Charleston.
C. Weston Houck, Senior District Judge. (2:04-cv-22005-CWH-GCK)
Argued: January 27, 2009
Decided: August 7, 2009
Before MICHAEL, GREGORY, and AGEE, Circuit Judges.

Vacated and remanded with instructions by published opinion. Judge Gregory wrote the opinion, in which Judge Michael joined. Judge Agee wrote a separate opinion concurring in part and dissenting in part.

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BROWN v. NUCOR CORP.

COUNSEL

ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN & PANTAZIS, P.C., Birmingham, Alabama, for Appellants. Earle Duncan Getchell, Jr., MCGUIREWOODS, L.L.P., Richmond, Virginia, for Appellees. ON BRIEF: Armand Derfner, D. Peters Wilborn, Jr., DERFNER, ALTMAN & WILBORN, Charleston, South Carolina; Ann K. Wiggins, Susan Donahue, WIGGINS, CHILDS, QUINN & PANTAZIS, P.C., Birmingham, Alabama, for Appellants. Cary A. Farris, Marc Patton, ALANIZ & SCHRAEDER, L.L.P., Houston, Texas; Erin M. Sine, MCGUIREWOODS, L.L.P., Richmond, Virginia; John S. Wilkerson, III, Nosizi Ralephata, TURNER, PADGET, GRAHAM & LANEY, P.A., Charleston, South Carolina, for Appellees.

OPINION
GREGORY, Circuit Judge:
This case involves allegations of racial discrimination at a steel manufacturing plant in Huger, South Carolina, owned by Nucor Corporation and Nucor Steel Berkeley (collectively, "Nucor"). We find that the district court abused its discretion and erred as a matter of law in denying class certification to the plaintiffs-appellants. We therefore vacate the order and remand the case to the district court for certification.
I.
The allegations that the appellants present in support of their racial discrimination and hostile work environment claims speak for themselves: white supervisors and employees frequently referred to black employees as "nigger," "bologna lips," "yard ape," and "porch monkey." White employees frequently referred to the black employees as "DAN," which

BROWN v. NUCOR CORP.

3

stood for "dumb ass nigger." These racial epithets were broadcast over the plant-wide radio system, along with "Dixie" and "High Cotton." Monkey noises were also broadcast over the radio system in response to the communications of black employees. The display of the Confederate flag was pervasive throughout the plant, and items containing Nucor’s logo alongside the Confederate flag were sold in the plant’s gift shop. Additionally, several e-mails that depicted black people in racially offensive ways, such as by showing them with nooses around their necks, were circulated by various employees. Once, an employee held up a noose and told a black co-worker that it was for him.

The plant is organized into six production departments: beam mill, hot mill, cold mill, melting, maintenance, and shipping. When a job opening at the plant becomes available, the position is advertised over a plant-wide posting and bidding system controlled by the central personnel department. Employees are allowed to bid on positions in any department. Although, by policy, the plant’s general manager approves all promotions and handles discrimination and harassment investigations, the record suggests that each department manager has unbridled discretion to make promotions within his department utilizing whatever objective or subjective factors he wishes. There were no black supervisors until after the institution of the Equal Employment Opportunity Commission charges that preceded this litigation. Indeed, a white supervisor testified that his department manager—who wore a Confederate flag emblem on his hardhat—told him that he would never promote a black employee to supervisor. (J.A. 1066, 1885-86.)

The present litigation arose on August 25, 2004, when seven black employees at the plant, along with employeeplaintiffs at plants owned by Nucor in other states, brought suit under 42 U.S.C. § 1981 (2000) and Title VII of the Civil Rights Act of 1964 in the U.S. District Court for the Western District of Arkansas on behalf of themselves and approxi-

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BROWN v. NUCOR CORP.

mately one-hundred other past and present black employees at the plant. At the time the litigation commenced, there were 611 employees working at Nucor’s South Carolina plant, of whom seventy-one were black. The Western District of Arkansas severed the case and transferred the claims brought by the seven plaintiffs in South Carolina to the District of South Carolina. The appellants seek a permanent injunction, back pay, compensatory and punitive damages, and attorney’s fees.

On May 7, 2007, the appellants filed a motion for class certification alleging:

(1) A pattern or practice of disparate treatment against African-American employees with respect to promotion opportunities at the plant; (2) Nucor’s promotion procedure, which allows white managers and supervisors to use subjective criteria to promote employees, has a disparate impact on AfricanAmerican employees who apply for promotions, and (3) Nucor requires African-American employees to work in a plant-wide hostile work environment.

(J.A. 8980.) The district court denied class certification, and the would-be class plaintiffs now appeal.

II.

We review the district court’s certification decision for abuse of discretion. Doe v. Chao, 306 F.3d 170, 183 (4th Cir. 2002), aff’d on other grounds, 540 U.S. 614 (2004). "[A] Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982).

III.

Rule 23(a) of the Federal Rules of Civil Procedure provides the following:

BROWN v. NUCOR CORP.

5

One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable,

(2) there are questions of law or fact common to the class,

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and

(4) the representative parties will fairly and adequately protect the interests of the class.

In our review of these factors, we bear in mind that

the final three requirements of Rule 23(a) "tend to merge," with commonality and typicality "serving as guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence."

Broussard v. Meineke Discount Muffler Shops, 155 F.3d 331, 337 (4th Cir. 1998) (quoting Falcon, 457 U.S. at 157 n.13) (alteration in original). Indeed, "[c]ertification is only concerned with the commonality (not the apparent merit) of the claims and the existence of a sufficiently numerous group of persons who may assert those claims." Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 332-33 (4th Cir. 1983).

The district court below considered each of the Rule 23(a) requirements in turn, and we shall do the same.

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BROWN v. NUCOR CORP.

A.

First, regarding numerosity, the district court found that the appellants satisfied the requirement because there were ninety-four black employees who worked at the plant from 2001 through 2004. Nucor argued that because only nineteen of these employees bid on positions from 2001 to 2006, the numerosity requirement had not been met. However, the district court held that the other black employees should be counted in the class because "potential applicants are eligible to prove that they would have applied for a promotion but for the discriminatory practice." (J.A. 8994.) Appellees do not challenge this finding, and we therefore presume it to be correct.

B.

Second, on commonality, the district court ruled against the appellants. The court reasoned that subjectivity in decisionmaking alone was insufficient to establish a disparate impact claim, discredited the statistical evidence presented in support of the disparate impact claim, and rejected the hostile work environment claim. We find that the district court improperly discounted the appellants’ direct evidence, which, alone, was sufficient to establish commonality. Moreover, the district court improperly excluded the appellants’ alternative benchmark for missing employment data and therefore erred in finding their statistical calculations to be insufficient to establish commonality. Finally, the district court erred in finding an insufficient basis for commonality on the hostile work environment claim.

1.

This Court has noted before that allegations of "a practice of disparate treatment in the exercise of unbridled discretion . . . rais[es] questions of law and fact common to all [subject] black employees." Lilly, 720 F.2d at 333. The Fifth Circuit

BROWN v. NUCOR CORP.

7

reasoned similarly in Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir. 1993):

The threshold requirements of commonality and typicality are not high; Rule 23(a) requires only that resolution of the common questions affect all or a substantial number of the class members. Allegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, satisfy the commonality and typicality requirements of Rule 23(a).

(internal citation omitted). In Lilly, we further concluded that statistical evidence is unnecessary to establish commonality:

[P]laintiffs need not, at the time of the motion for class certification, demonstrate by statistical evidence that blacks have been terminated [or promoted] at a higher rate than have whites, or any other differential. Certification is only concerned with the commonality (not the apparent merit) of the claims and the existence of a sufficiently numerous group of persons who may assert those claims . . . .

Lilly, 702 F.2d at 332-33.

The district court determined that the appellants’ statistics were insufficient to establish commonality. Yet, the appellants have certainly presented compelling direct evidence of discrimination, such as denials of promotions when more junior white employees were granted promotions (J.A. 1004, 1017), denial of the ability to cross-train during regular shifts like their white counterparts (J.A. 1000, 1023), and a statement by a white supervisor that he would never promote a black employee (J.A. 1885-86). This evidence alone establishes common claims of discrimination worthy of class certification. See Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267,

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BROWN v. NUCOR CORP.

278 (4th Cir. 1980) (noting that class certification for a pattern-or-practice claim might be based on inferential, statistical, or direct evidence of discrimination). That the appellants also presented statistical data only strengthens their case.

The appellants have presented five statistical calculations in support of their discrimination claims,1 but we need focus on only one. In order to demonstrate a disparity in job promotions, the appellants compared the estimated percentage of blacks who sought promotions between December 1999 and December 2003 with the estimated percentage of blacks who received promotions during that period. The former figure was 19.24%, and the latter figure was 7.94%. However, the appellants could not rely entirely on actual applicant data in making this calculation because Nucor has destroyed such data for promotion periods prior to 2001.2 Instead, in an effort to establish an alternative benchmark, the appellants, using change-of-status forms, identified twenty-seven positions

1First, the appellants presented a calculation of the disparity in utilization rates at Nucor by comparing the average percentage of blacks in skill positions at the plant from 2000 to 2004 with the percentage of blacks in the surrounding population in 2000 who were qualified for the skill positions at the plant. In the surrounding area, blacks made up 38.2% of the population qualified to hold skilled positions. However, only 13.42% of the employees at the plant from 2000 through 2004 were black. The second calculation was the same as the first, except the appellants extended the time period to 2006 to demonstrate that the disparity continued.
To demonstrate a disparity in the number of job applications by black applicants, the third calculation compared the percentage of qualified blacks in the surrounding population in 2000 with the percentage of blacks who bid on plant promotions between 2001 and December 2003. The former percentage was 38.2, and the latter was 16. The fourth calculation is discussed infra. Finally, the fifth calculation compared the percentage of qualified blacks in the surrounding community in 2000 with the estimated percentage of blacks who received promotions from December 1999 to December 2003. The former figure was 38.2%, and the latter figure was 7.9%.
2We make no judgment regarding the propriety of Nucor’s destruction of the data.

BROWN v. NUCOR CORP.

9

filled during the 1999-2000 time period and extrapolated from that data using the assumption that the racial composition of the bidding pool for those jobs was the same as the weighted average of the racial composition of the bidding pools for the subsequent, post-2000 period.

Nucor provided selected promotions data for 2001 through 2006, and it argues that this data should have been used instead of the extrapolated 1999-2000 data because the appellants gathered the extrapolated data from the change of status forms, which do not indicate whether a position was open for bidding. The district court decided to exclude the appellants’ pre-2001 data and Nucor’s post-2003 data and rely solely on the data that Nucor provided for January 2001 through December 2003.3 Although the appellants argued that the 80% rule was the proper standard by which to evaluate their statistical evidence,4 the district court determined that standard deviation analysis was the proper method by which to do so.5

3Nucor complains that the appellants themselves have created an unduly restricted data set by excluding the promotions that occurred after the filing of their suit in 2004. However, post-lawsuit promotions would not enhance the accuracy of the data on Nucor’s promotion practices. Indeed, such promotions would likely detract from their accuracy, since it is no secret that the institution of litigation often prompts companies to change their practices. These post-suit changes have only minimal weight with regard to the merits of the plaintiffs’ claims. See Holsey v. Armour & Co., 743 F.2d 199, 214 n.5 (4th Cir. 1984) ("We find no error in the fact that the district court minimized the significance of evidence of Armour’s postcomplaint hiring and promotion of black employees."). The district court found in the appellants’ favor on this issue, which is why it did not utilize Nucor’s post-2003 data, and we find no abuse of discretion in its doing so.
4The 80%, or four-fifths, rule "is an administrative rule of thumb used by agencies concerned with Title VII cases. It offers a definition of what is a serious difference in the passing rates for protected classes. If the selection rate for a protected class is less than 80% of the selection rate for the group selected at the highest rate, that constitutes adverse impact." Chisholm v. U.S. Postal Serv., 665 F.2d 482, 495 n.22 (4th Cir. 1981).
5Standard deviation analysis considers the differences between expected and observed values—in this case, for example, the number of blacks pro-

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BROWN v. NUCOR CORP.

In its subsequent assessment of the statistics, the district court found that the appellants had not proven a statistically significant disparity, and it therefore ruled against them on the commonality prong of their claims. The appellants argue that the district court’s decisions were improper and negatively affected their statistics.

In another Title VII suit involving destroyed data, United States v. County of Fairfax, 629 F.2d 932 (4th Cir. 1980), Fairfax County destroyed its job applications for the 1974-77 period. "As a consequence, the government extrapolated the figures for 1974-77 from the 1978 applicant pool by assuming that the applicant pool for 1974-77 contained the same proportions of blacks and women as did the 1978 applicant pool." Id. at 940. The Court approved the use of this alternative benchmark and concluded that it was "the most salient proof of the County’s labor market." Id.6 In this case, since Nucor

moted versus the number of blacks one would expect to be promoted based on their percentage in the relevant population (e.g., job applicants or the plant workforce). Standard deviation analysis is often viewed as superior to the 80% rule because it takes into account the natural fluctuations from the expected value that come with any random sample. In other words, for any given sample of black applicant data, an observed disparity might be the result of chance. The smaller the standard deviation, the more closely the data points are clustered around the mean (expected value), and the more likely the data points are the result of chance. "For example, if a coin were tossed ten times . . . and came up heads four times, no one would think the coin was biased (0.632 standard deviations), but if this same ratio occurred for a total of 10,000 tosses, of which 4,000 were heads, the result could not be attributed to chance (20 standard deviations)." Lilly, 720 F.2d at 336 n.17.
6The dissent does not argue with the underlying reasoning of County of Fairfax: when an employer destroys relevant employment data, the plaintiffs may utilize alternative benchmarks to make up for this lost data. Certainly, the benchmarks will not be as good as the destroyed data themselves—that would be next to impossible to achieve. Nevertheless, the plaintiffs should not be penalized by the destruction (however innocent) of such data. Any factual differences between the cases do not overcome this underlying reasoning:

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11

destroyed the pre-2001 job promotions data, the appellants likewise were free to attempt to utilize an alternative benchmark in order to form their calculations, and the district court abused its discretion in ruling that only the data that Nucor provided could be used.7 The appellants should not be penalized because Nucor destroyed the actual pre-2001 job promotions data.8

The question before the district court was not whether the appellants have definitively proven disparate treatment and a disparate impact; rather, the question was whether the basis of appellants’ discrimination claims was sufficient to support class certification. See Lilly, 720 F.2d at 332. In excluding the

First, the fact that there is only one year of missing data in this case is inapposite—the point is that a year of relevant data has been destroyed, and that destruction should not be used to weaken the appellants’ case. Likewise, the absence of a statutory duty upon Nucor to maintain any data does not imply a judicial bar from allowing the appellants to approximate the destroyed data in making their claim. Finally, we certainly do not agree with the dissent’s insinuation that, because this case involves promotions and not hiring, the appellants are less entitled to data (and approximations thereof) to support their claims. The dissent is correct, and should itself remember, that we are not reviewing the merits of this case, and the district court was simply incorrect to exclude all evidence of the 19992000 promotions.
7The district court made the following determination in excluding the appellants’ pre-2001 data: "Nucor provided the plaintiffs with records of promotions occurring in the plant from January 2001 to December 2003. Statistics based on actual data is [sic] more probative than statistics based on assumptions. Consequently, the Court relies on statistics resulting from an analysis of this data." (J.A. 8985.)
8In response to appellants’ argument that the district court should have compelled Nucor to provide more data during discovery, Nucor argues that the appellants cannot appeal a discovery order under FRCP 23(f). We agree with the Eleventh Circuit that "jurisdiction granted by Rule 23(f) does not extend to [a] separate [discovery] order." DeLeon-Granados v. Eller & Sons Trees, Inc., 497 F.3d 1214, 1218 n.1 (11th Cir. 2007). We therefore express no opinion at this time regarding the district court’s decision not to compel Nucor to produce additional data.

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BROWN v. NUCOR CORP.

appellants’ data, the district court ruled, "These assumptions [regarding the 1999-2000 data] may be reasonable and the statistics based thereon may be relevant to prove discrimination at the plant. However, the necessity of the assumptions diminishes their probative value." (J.A. 8985.) Yet, evidence need not be conclusive to be probative, and even evidence that is of relatively weak probative value may be useful in meeting the commonality requirement.

With the 1999-2000 data included, the record indicates that the appellants’ statistics would be significant at greater than two standard deviations.9 The appellants have therefore presented valid statistical evidence that independently indicates a disparate impact and disparate treatment in job promotions at Nucor, and we reiterate that an in-depth assessment of the merits of appellants’ claims at this stage would be improper. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974); Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006). We therefore find that the appellants’ calculations

9The Supreme Court has indicated that anything greater than two or three standard deviations in racial discrimination cases is suspicious. Hazelwood School Dist. v. United States, 433 U.S. 299, 308 n.14 (1977); Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977). We will presume that two standard deviations is the proper threshold for this case, but we reserve the unanswered question of whether this rule should be limited to large sample sizes. With the 1999-2000 data excluded, the appellants’ promotion data demonstrated a disparity resulting in only 1.48 standard deviations—below the Supreme Court’s threshold. With the data included, however, the appellants indicate that their calculations yielded 2.54 standard deviations.
For our purposes, a threshold of two standard deviations corresponds roughly to a 95% confidence level or a .05 level of significance, i.e., there is only a 5% probability that the result is due to chance. Three standard deviations would equate to a 99.7% confidence level. See generally Bruce J. Chalmer, Understanding Statistics 97-98 (1987); Wikipedia, Standard deviation, http://en.wikipedia.org/wiki/Standard_deviation (last visited June 19, 2009).

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based on their alternative benchmark were adequate to establish commonality.10

In summary, because the appellants’ direct evidence alone was sufficient to demonstrate common claims of disparate treatment and disparate impact, their statistical data did not need to meet a two-standard-deviation threshold, and the district court erred as a matter of law in requiring them to do so. Yet, we further find that the district court abused its discretion when it excluded the appellants’ alternative calculations of the destroyed pre-2001 promotions data. With this data included, the appellants’ statistics were independently sufficient to meet the Rule 23 commonality requirement. We therefore conclude that the appellants satisfied the commonality requirement for their discrimination claims, and the district court should have found in the appellants’ favor on this portion of their motion. See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999) ("More detailed statistics might be required to sustain the Plaintiffs’ burden of persuasion, but [these statistics], in conjunction with the anecdotal evidence, satisf[y] the Class Plaintiffs’ burden of demonstrating commonality for purposes of class certification." (internal citation omitted)).

2.

The district court also discounted the sixteen affidavits that

10The dissent takes issue with our crediting the appellants’ statistics. However, we emphasize that at this stage, we are dealing only with whether the appellants have presented sufficient statistical information to establish commonality. We must walk a fine line between a facial class certification assessment and an assessment on the merits, and the dissent has stepped to the other side. The dissent’s critiques might very well discredit the appellants’ statistics later, upon a full review of the merits, but the information that the appellants have presented is enough to allow them to get to that point. Our crediting the statistics certainly does not portend the opening of any class certification floodgates. There are many requirements for class certification, and our decision today respects that fact.

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the appellants presented in support of their pattern-or-practice and hostile-work-environment claims because only two of the affiants were in departments other than the beam mill department. The district court found that this concentration precluded the establishment of a pattern or practice of discrimination. It reached a similar conclusion on the appellants’ hostile work environment claim: "The plant’s production departments can be classified as separate ‘environments.’ A class members [sic] claim of a hostile work environment in the hot mill will vary significantly from a class member’s claim of a hostile work environment in the beam mill." (J.A. 8989.)

The appellants challenge the district court’s ruling by arguing that the court’s "separate environments" analysis was flawed. The district court noted that "[t]he plaintiffs have presented plant-wide racist acts potentially experienced by every African-American employee working at the plant when the acts occurred. These acts include: (1) racist e-mails, (2) display of the confederate flag, and (3) racist remarks over the plant radio." (J.A. 8988-89.) Yet, it then proceeded to classify the departments as unique environments.

The Supreme Court has held, "When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). This is essentially what the appellants argue: despite the formal classification of the plant into six production departments, the racist acts had plant-wide repercussions and affected all black employees. A hostile environment determination can be made "only by looking at all the circumstances." Harris, 510 U.S. at 23. Such circumstances include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

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whether it unreasonably interferes with an employee’s work performance." Id.; accord Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002). The allegations made in the affidavits that the district court discredited should have factored into the totality-of-the-circumstances assessment of the plant as a whole.

In Hill v. Western Electric Co., 596 F.2d 99, 102 (4th Cir. 1979), the Court held:

A person who has been injured by unlawful, discriminatory promotion practices in one department of a single facility may represent others who have been injured by the same discriminatory promotion practices in other departments of the same facility. In such a case, the representatives of the class all have the same interests in being free from job discrimination, and they have suffered injury in precisely the same way in the denial of promotion.

In Hill, the Court determined that employees in one department could not be included in the class because they did all of their work off-site. Id. That is not the case here.

The appellees argue that Nucor’s management provided "clear evidence" of "the decentralized nature of Nucor’s practices." (Appellees’ Br. 18.) However, the "clear evidence" they cite is itself contradictory on this matter. While the manager of the beam mill indicated that his department is "separate from the buildings and areas of other Nucor Steel Berkeley departments" (J.A. 7885), the melt shop manager and supervisor noted that their building "is attached to Beam Mill and Hot Mill" (J.A. 7896, 7917). Moreover, "Nucor Berkeley employees share a locker room with caster, caster maintenance, hot mill, melt shop maintenance, hot mill maintenance, as well as environmental." (J.A. 7896, 7917.) And as noted previously, racial slurs, monkey noises, and other offensive statements were broadcast over the plant-wide radio.

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Thus, there is scant, if any, evidence that each of the departments is so autonomous as to justify classifying them as separate environments.

In light of the foregoing cases and facts, it was an abuse of discretion for the district court to find that the employees at the plant were separated into different environments. All of the employees worked at a single facility, in departments that were, at minimum, connected to each other, and employees shared several common areas. There is therefore sufficient evidence to indicate that all of the black employees were affected by the comments and actions of the white employees and supervisors in other departments. Thus, the affidavits of employees in one department are admissible to prove a plantwide hostile environment that affected employees in other departments, and the plaintiffs have satisfied the commonality requirement for their hostile work environment claim. See Holsey, 743 F.2d at 216-17.

C.

The district court determined that in order for the appellants to prove typicality for their disparate treatment claim, they would have to satisfy the framework set forth in McDonnell Douglas, 411 U.S. 792. However, because the court found that the plaintiffs had not demonstrated a pattern or practice of discrimination, it held that the attempts by the individual plaintiffs to demonstrate disparate treatment would not be typical of the attempts of the other class members to do so. Moreover, the district court found that because the plaintiffs had not demonstrated a disparity in black promotion rates, their disparate impact claims also would not be typical of the class. Finally, the district court found that the named plaintiffs’ hostile work environment claims were not typical of the claims of class members outside of the beam mill.

As noted previously, the district court abused its discretion in its rulings on the appellants’ disparate treatment, disparate

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impact, and hostile work environment claims; therefore, it was also an abuse of discretion for the district court to base its typicality conclusion on these rulings. Moreover, as we noted supra, commonality and typicality "tend to merge," Broussard, 155 F.3d at 337, and the appellants have presented sufficient evidence to satisfy the threshold typicality requirement of Rule 23(a).

D.

Finally, regarding adequacy, the district court found the plaintiffs not to be adequate representatives for the disparate treatment and disparate impact claims. However, the court could "discern no conflicts of interest among the plaintiffs and class members regarding hostile work environment claims." (J.A. 8993.) Given the above conclusions that we have reached regarding the appellants’ disparate treatment and disparate impact claims, we also find that the district court’s assessment of the adequacy factor with regard to these claims was an abuse of discretion.

To the extent that the district court was correct that the putative class representatives have a conflict with the class in terms of competition for promotions, this conflict should not defeat class certification. Indeed, if this were true, how might a class action challenging promotion practices ever be brought—unless the EEOC deems fit to do so—when the plaintiffs seek instatement into previously denied positions? The appellees point to General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980), but that case is to no avail. There, the Supreme Court simply "note[d]" as an "example" that "[i]n employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes." Id. at 331. Setting aside the question of whether this language was meant to be controlling, it plainly

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does not apply to this case, which deals with promotions and not the competition for "fringe benefits or seniority" posed by new hires.

The district court can address plaintiffs’ claims for injunctive or other relief after liability and other common issues are determined. See Fed. R. Civ. P. 23(c)(5); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361-62 (1977) ("[A]s is typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial."); Hill, 672 F.2d at 387 ("Bifurcation of Title VII class action proceedings for hearings on liability and damages is now commonplace . . . ."). If, at the second stage of the proceeding, conflicts need to be resolved with regard to promotions, the district court can do so then. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 429 (4th Cir. 2003) ("[T]he need for individualized proof of damages alone will not defeat class certification."); Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157, 1178 (5th Cir. 1978). Of course, certification is conditional, and should the conflicts prove intractable at the second stage, the district court may simply decertify the class. See In re Sch. Asbestos Litig., 789 F.2d 996, 1011 (3d Cir. 1986). But at this stage of the proceedings, we find that the appellants are adequate representatives for the disparate impact and treatment claims of the putative class.

As noted previously, the district court found the appellants to be adequate representatives for the hostile work environment claim. The appellees do not dispute this finding, and we find no abuse of discretion in the district court’s so concluding.

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IV.

Our review of the district court’s assessment of the Rule 23(a) factors leads us to conclude that the court abused its discretion in denying class certification. Given our consideration above, we find that the class certification requirements of Rule 23(a) have been satisfied with regard to the appellants’ disparate impact, disparate treatment, and hostile work environment claims. Moreover, our assessment inevitably leads us to conclude that the requirements of Federal Rule of Civil Procedure 23(b)(3) have also been satisfied for these claims.11 See Pope v. R.R. Ret. Bd., 672 F.2d 972, 976 (D.C. Cir. 1982). We therefore vacate the district court’s denial of the appellants’ motion for class certification, and we remand the case to the district court with instructions to certify the appellants’ class action and to engage in further proceedings consistent with this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS

AGEE, Circuit Judge, concurring in part and dissenting in part:

I.

I concur in the majority opinion as to Section III(A) (the district court’s determination on the numerosity factor), that portion of Section III(B)(2) reversing the district court’s judgment as to the hostile work environment claim concerning the commonality factor,1 that portion of Section III(C) as to the

11Fed. R. Civ. P. 23(b)(3) states that a class action may be maintained if Rule 23(a) is satisfied and if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."
1To the extent the district court’s judgment was based upon a determination with regard to Sections III(B)(2) and (C) that the appellants’ hostile

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typicality factor for the hostile work environment claim only, and Section III(D) reversing the district court’s judgment as to the adequacy of representation.2 However, because I believe the majority opinion fails to adhere to the standard of review and usurps the role of the district court, I respectfully dissent as to sections III(B)(1), (2), and III(C) regarding the commonality and typicality factors for the disparate treatment and disparate impact claims. For the following reasons, I would affirm the district court’s judgment not to grant class certification as to those claims.

II.

"We review the district court’s certification decision for abuse of discretion." Gregory v. Finova Capital Corp., 442 F.3d 188, 190 (4th Cir. 2006) (citing McClain v. S. C. Nat. Bank, 105 F.3d 898, 902 (4th Cir. 1997)). It is the party seeking class certification who bears the burden of proving the requirements of Rule 23. Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001); Int’l Woodworkers of Am. v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1267 (4th Cir. 1981). "A court has broad discretion in deciding whether to allow the maintenance of a class action." Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976).

work environment claim did not have common questions of law or fact or was not typical of the class because the evidence showed separate, unconnected work environments, that determination is not supported by the record. While Nucor’s evidence shows its operation of the plant departments was distinct and separated among the departments, that evidence is not probative as to the effects of the alleged acts on the employees’ working environment across the whole facility. However, should Nucor adduce relevant evidence on the merits showing distinct and unconnected work environments as affects the appellants and other employees, the district court may take such further action as Rule 23(c)(1)(C) permits.
2I also concur in the holdings represented by footnote 4, that the district court did not abuse its discretion in excluding post-2003 promotion data, and footnote 8, that Rule 23(f) did not permit interlocutory appeal of the discovery order.

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21

A district court has abused its discretion if its decision "is guided by erroneous legal principles" or "rests upon a clearly erroneous factual finding." Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). We do not ask whether we would have come to the same conclusion as the district court if we were examining the matter de novo. Fellheimer, Eichen & Braverman, P.C. v. Charter Techs., 57 F.3d 1215, 1223 (3d Cir. 1995). Rather, after reviewing the record and the reasons the district court offered for its decision, we reverse for abuse of discretion if we form "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Westberry, 178 F.3d at 261.

Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006); see also Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir. 2006) ("A district court per se abuses its discretion when it makes an error of law or clearly errs in its factual findings.").

In the class certification context of Rule 23, our decisions have specifically acknowledged that there is no abuse of discretion, as a matter of law, when a reasonable jurist could have made the decision at issue based on the evidence in the record.

[A] great deal of deference must be afforded to a District Court’s decision to deny certification of a plaintiff class for a class action. Indeed, even if reasonable persons can disagree as to whether the class certification was proper, the District Court’s decision certainly does not amount to an abuse of discretion.

Simmons v. Poe, 47 F.3d 1370, 1381-82 (4th Cir. 1995). "[W]e cannot hold that the district court’s refusal to expand the class . . . was an abuse of discretion, though reasons

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clearly existed for taking the other course, and taking it surely would not either have abused discretion." Lewis v. Bloomberg Mills, Inc., 773 F.2d 561, 564 (4th Cir. 1985).

On appeal from an order granting or denying certification, the appellate court does not reweigh the evidence de novo, but is to accord the district court’s decision "broad discretion." See Lienhart, 255 F.3d at 146 (Within the framework of Rule 23 "[a] district court has broad discretion in deciding whether to certify a class." (internal quotations omitted)).

At its core, the district court determined the appellants could not meet either the commonality or typicality factors for certification under Rule 23(a) because they failed to meet their burden of proof as to the direct or statistical evidence of discriminatory promotions. The record in this case reflects the district court’s judgment was neither "guided by erroneous legal principles" nor grounded "upon a clearly erroneous factual finding." Thus, when the full context of the appellants’ proffered evidence is examined and the standard of review is observed, the district court cannot be said to have abused its discretion in denying certification because a reasonable jurist could have reached that decision on this record.

While the majority opinion is correct that a certification determination is not a judgment on the merits of the underlying claims, neither is it a pleadings-based determination that can be verified by any evidence, no matter how deficient. Certainly since the United States Supreme Court’s decision in General Telephone Co. v. Falcon, 457 U.S. 147 (1982), district courts have been required to undertake a "rigorous analysis" not just of the plaintiffs’ claims as pled, but of the evidence to support those claims in order to make an appropriate judgment on Rule 23 certification. 457 U.S. at 161 ("[A] Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied."). "[S]ometimes it may be necessary for the court to

BROWN v. NUCOR CORP.

23

probe behind the pleadings before coming to rest on the certification question." Id. at 160.

In the case at bar, the district court followed its duty and performed that rigorous analysis, although with a result that the majority may not have reached if they were sitting as the trier of fact. This Court has been clear in explaining that an objection to examining the merits of a class certification claim, as reflected by the majority opinion’s citation to Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), supra at 12-13, was rendered invalid after Falcon. The district court’s role, and ours, as explained in Gariety v. Grant Thornton, LLP, 368 F.3d 356 (4th Cir. 2004), is telling:

If it were appropriate for a court simply to accept the allegations of a complaint at face value in making class action findings, every complaint asserting the requirements of Rule 23(a) and (b) would automatically lead to a certification order, frustrating the district court’s responsibilities for taking a "close look" at relevant matters, Amchem, 521 U.S. at 615, 117 S.Ct. 2231, for conducting a "rigorous analysis" of such matters, Falcon, 457 U.S. at 161, and for making "findings" that the requirements of Rule 23 have been satisfied, see FED. R. CIV. P. 23(b)(3). Moreover, if courts could only consider the pleadings, then "parties would have wide latitude to inject frivolous issues to bolster or undermine a finding of predominance." Robert G. Bone & David S. Evans, Class Certification and the Substantive Merits, 51 Duke L.J. 1251, 1269 (2002).

When Rule 23(c), which originally required certification orders to be made "as soon as practicable after commencement of [the] action," was amended in 2003 to require the court to determine class certifications "at an early practicable time," the Advisory

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Committee on Civil Rules explained the preexisting and longstanding practice that prompted the change:

Time may be needed to gather information necessary to make the certification decision. Although an evaluation of the probable outcome on the merits is not properly part of the certification decision, discovery in aid of the certification decision often includes information required to identify the nature of the issues that actually will be presented at trial. In this sense, it is appropriate to conduct controlled discovery into the "merits," limited to those aspects relevant to making the certification decision on an informed basis.

FED. R. CIV. P. 23 advisory committee’s note to 2003 amendments (emphasis added).

The Eisen decision, upon which the district court relied, does not require a court to accept plaintiffs’ pleadings when assessing whether a class should be certified. In Eisen, the Supreme Court held that the district court’s preliminary hearing on the merits of the case—concluding that the plaintiff was "more than likely" to prevail—was inappropriate for the purpose of determining whether a class action could be maintained. 417 U.S. at 177-78, 94 S.Ct. 2140. Eisen simply restricts a court from expanding the Rule 23 certification analysis to include consideration of whether the proposed class is likely to prevail ultimately on the merits. See Castano, 84 F.3d at 744; 5 Moore’s Federal Practice ¶ 23.84[2][a] (3d ed. 2003). As the Supreme Court itself stated in a post-Eisen case, "sometimes it may be necessary for the [district] court to probe behind the pleadings before coming to rest on the certification question."

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Falcon, 457 U.S. at 160; see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 102 S.Ct. 2364 (1978) ("[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action" (internal quotation marks omitted)).

Thus, while an evaluation of the merits to determine the strength of plaintiffs’ case is not part of a Rule 23 analysis, the factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits. Eisen’s prohibition against assessing plaintiffs’ likelihood of success on the merits as part of a Rule 23 certification does not mean that consideration of facts necessary to a Rule 23 determination is foreclosed merely because they are required to be proved as part of the merits. The analysis under Rule 23 must focus on the requirements of the rule, and if findings made in connection with those requirements overlap findings that will have to be made on the merits, such overlap is only coincidental.

368 F.3d at 365-66.

The majority’s citation to Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006), is also puzzling, as this post-Gariety decision acknowledged the type of inquiry undertaken by the district court in the case at bar:

At the class certification phase, the district court must take a "close look" at the facts relevant to the certification question and, if necessary, make specific findings on the propriety of certification. Gariety, 368 F.3d at 365 (internal quotations omitted). Such findings can be necessary even if the issues tend to overlap into the merits of the underlying case. Falcon, 457 U.S. at 160.

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Thorn, 445 F.3d at 319.

Thus, the district court’s examination and evaluation of the plaintiffs’ evidence to support the class certification claim was not only appropriate, but required under Falcon and Gariety. That the majority would have reached a different conclusion, albeit lacking all the advantages of the district court’s first-hand knowledge of the case, establishes nothing because the standard of review goes to what a reasonable jurist could have found, which may very well lead to differing views on the same set of facts. See Morris, 448 F.3d at 277 ("We do not ask whether we would have come to the same conclusion as the district court if we were examining the matter de novo.") (citing Fellheimer, Eichen & Braverman, P.C. v. Charter Techs., 57 F.3d 1215, 1223 (3rd Cir. 1995)).

In my view, the majority opinion steps beyond the standard of review and improperly reweighs the evidence so as to achieve a certification that was properly within the district court’s discretion to deny. The majority appears to sanction a rule of mandated class certification even where a reasonable jurist could properly find the named plaintiffs’ evidentiary basis was insufficient. Such a result is not consonant with the appellate standard of review.

III.

The majority opinion initially rests on the conclusion that the appellants’ direct evidence alone was sufficient to require class certification of the claims for disparate treatment and disparate impact. Supra at 6-7. I agree with the majority opinion that direct evidence could be sufficient, in a proper case, to support a certification decision without corollary statistical proof, although that is not a common practice in at least the disparate impact context. Nonetheless, the majority’s conclusion — that the direct evidence alone was sufficient to merit certification — seems an odd decisional basis because that argument was not made by the appellants in the district court.

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27

Neither the appellants’ Statement of Issues, briefs or oral argument raised, as a point of error, the failure of the district court to grant certification on the basis of direct evidence alone.

The appellants’ argument below was that the direct evidence "bolstered" their main evidentiary claim, which was their statistical analysis. See, e.g., J.A. 965 ("The plaintiffs have also bolstered the statistical evidence of a pattern or practice of subjective bias with both direct and anecdotal evidence of actual racial bias by the promotion decision-makers . . . .") (emphasis added); J.A. 8473 ("The commonality and typicality of plaintiffs’ pattern-or-practice claim is further bolstered by the subjective nature of the interview and selection stage of Nucor’s promotion process.") (emphasis added); Br. of Appellant at 37 ("Plaintiffs did not rely on the mere existence of a subjective promotion procedure, but presented a combination of statistical, anecdotal and direct evidence showing that such procedure was racially discriminatory throughout the plant."). Nonetheless, as noted below, when the appellants’ limited direct evidence is examined, a reasonable jurist could find that evidence failed to meet the appellants’ burden of proof as to either commonality or typicality for the certification of a class of all African-American plant employees.

Similarly, the majority opinion appears to reweigh the evidence in order to sustain the appellants’ statistical model. As noted below, the district court was within its proper exercise of discretion to accord the statistical evidence little or no weight in the class certification decision. A reasonable jurist, on this record, could find the appellants’ statistical evidence too speculative and lacking a proper foundation so as to be without evidentiary value in meeting the appellants’ burden of proof.

A. The Direct Evidence

The appellants did not argue to the district court that their "direct evidence" was alone sufficient to support a finding of

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commonality or typicality for class certification under Rule 23. They presented direct evidence to "bolster" their statistical evidence, not as standalone proof for Rule 23(a) purposes. However, the appellants’ choice of methodology is not the dispositive issue on appeal. What the standard of review should examine in this case is whether the district court, based on the direct evidence alone, could have reasonably found that evidence insufficient to meet the appellants’ burden of proof on typicality and commonality for the proposed class. That a reasonable jurist could have also found the same evidence sufficient for certification is irrelevant to the abuse of discretion standard where the evidence also could support the opposite finding. It appears plain, on this record, that a reasonable jurist could have found, as the district court did, that the appellants’ direct evidence (though considered as only supplemental evidence) was simply inadequate to meet their burden of proof.

Under Rule 23(a)(2) and (3), the appellants were required to prove there were "questions of law or fact common to the class" and "claims . . . of the representative parties are typical . . . of the class." FED. R. CIV. P. 23. The purported class, all former and current African-American employees of the Nucor plant during the relevant time period, worked in all the plant’s departments, which include at least the beam mill, hot mill, melt shop, cold mill and shipping departments. Thus, the appellants’ claims must have common questions among the employees in all these departments and be typical of those claims. The appellants’ direct evidence, however, could reasonably be determined as failing to meet the burden of proof for either commonality or typicality for the purported class.

The statements of the three affiants cited by the majority do claim race-based denials of promotions, the employment practice at issue in their disparate treatment and disparate impact claims. However, all three were employees only in the beam mill. While some of the appellants’ declarations allege employment discrimination in other departments as to them as

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beam mill employees, they fail to do so as to non-beam mill employees.

The district court noted that of all the appellants’ direct evidence, only two non-beam mill employees allege discrimination in another department. Even the statement alleging bias of a supervisor was a statement by the department manager in charge of the beam mill about employees in the beam mill.

[T]he existence of a valid individual claim does not necessarily warrant the conclusion that the individual plaintiff may successfully maintain a class action. It is equally clear that a class plaintiff’s attempt to prove the existence of a companywide policy, or even a consistent practice within a given department, may fail even though discrimination against one or two individuals has been proved.

Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 877–78 (1984) (characterizing the holding in Falcon); see also Int’l Bd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) (to prove a pattern or practice violation a plaintiff must "prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts" but must "establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure—the regular rather than the unusual practice").

On this record, a reasonable jurist could conclude the appellants failed to meet their burden of proof to show common issues and typical claims between themselves, as employees in the beam mill seeking promotions, and the workers in all the other departments who sought promotions. The appellants simply failed to produce that evidence.

The effect of this failure of proof, for certification purposes, is that the appellants failed to prove commonality or typicality for the non-beam mill employees they seek to repre-

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sent. In that circumstance, a reasonable jurist, like the learned district court judge in this case, could find the appellants failed to show commonality or typicality for certification of a class consisting of all African-American plant employees. Accordingly, the district court acted within its discretion to deny class certification on the basis of the appellants’ direct evidence.3

B. Statistical Evidence

Nucor provided the appellants with actual promotionrelated job posting and applicant data from January 2001 to February 2006.4 According to the appellants’ own expert, statistical analysis of this data resulted in a standard deviation of -.84, a result indicating no statistically significant disparity in the actual versus expected percentage of African-American employees successfully bidding on jobs. J.A. 5872-73. The appellants, however, objected to use of the 2001 to 2006 time period because it included job posting and bidding information occurring after suit was filed at the end of 2003.5 The dis-

3If the purported class was only beam mill employees, it may well have been an abuse of discretion not to certify the promotion claims (ignoring the numerosity factor). However, that was not the proposed class. The purported class in this case is all the plant’s African-American employees and, for the reasons stated, the direct evidence is simply insufficient to find an abuse of discretion by the district court.
4The appellants’ case is solely concerned with Nucor’s actions on promotions within the South Carolina plant’s internal workforce. Hiring or termination of employment is not at issue. Moreover, it is uncontested that promotions at the Nucor plant are only from within the existing workforce and the promotions at issue in this case are those subject to bid by employees.
5The district court’s opinion states that suit was originally filed on August 25, 2004. However, court records indicate that suit was originally filed against Nucor Steel on a company-wide basis in the Western District of Arkansas on December 8, 2003. That portion of the suit pertaining to discrimination claims at the Nucor-Berkeley plant at issue here was transferred to the District of South Carolina on August 25, 2004. J.A. 9007. The appellants then filed a Third Amended Complaint on January 28, 2005. J.A. 43.

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trict court agreed and held "that the most reliable statistics are those gathered from [actual] promotion data occurring before this action was filed", and determined that "post-suit promotion data is entitled to minimal weight." J.A. 8986 n.4.

With the post-lawsuit data favorable to Nucor excluded from consideration, the appellants’ experts calculated the actual versus expected standard deviation based on the actual job posting and bidding data from 2001 to 2003 as -1.48.6 In other words, the appellants were unable to produce statistically significant evidence of race discrimination in promotions based on actual job posting data.7 See Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977) (recognizing that differences between the expected value and the observed number greater than two or three standard deviations are significant); Warren v. Halstead Indus., Inc., 802 F.2d 746, 759 n.17 (4th Cir. 1986) (recognizing that a standard deviation greater than two or three excludes "chance" as the cause of underrepresentation).

Since the appellants could not prevail based on the actual promotions data from 2001 through 2003, they sought to create additional data that would dilute the actual data analy-

6Our case law makes clear that standard deviation analysis is the proper method of statistical analysis. See EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 647 (4th Cir. 1983), rev’d on other grounds, sub nom. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984) ("[W]e have adopted the rule that the proper method for determining ‘legal significance’ on the basis of statistical evidence is through the use of the standard deviation analysis. . . .") (citing Moultrie v. Martin, 690 F.2d 1078 (4th Cir. 1982)). The -1.48 standard deviation resulted from data that controlled for two factors, the employees’ training and discipline. When those two factors were not controlled, the standard deviation was calculated at -1.53, which the appellants’ expert testified was not a statistically significant difference. J.A. 5857.
7The actual data from 2001 to 2003 came from "the posting notices of the jobs, the bids that were submitted by the individual employees, the prevailing bidder, and the personnel files and everybody that bid on those jobs." J.A. 9024.

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sis and produce the needed -2.00 or greater standard deviation. The appellants contended they could do so by comparing "the estimated percentage of blacks who sought promotions between December 1999 and December 2003 with the estimated percentage of blacks who received promotions during that period." Supra at 8. However, their proposed data substitute (the "2000 data") was only estimated for 2000 because the bulk of the time period (from 2001 to 2003), reflected actual job postings for which African-American employees were known to have applied.8 9 The appellants contended to the district court that if their version of the promotion statistics for the 2000 through 2003 period (four years) was considered instead of three years (2001 to 2003), they could show the required standard deviation to make a prima facie case of discrimination. It is the appellants’ means of creating the 2000 data that validates the district court’s exercise of discretion in discounting that analysis because the 2000 data was without a valid foundation, purely speculative, and thus not entitled to probative weight. Even the appellants’ own experts agreed the 2000 data suffered from significant infirmities.

Dr. Edwin Bradley, one of the appellants’ statistical experts, stated that "[a]ll statistics involve a comparison between a benchmark of what was expected to occur and what actually happened." J.A. 404 (emphasis added). Thus, there were two variables that the appellants’ experts, Dr. Bradley

8The majority opinion recites the additional time period for statistical information as "1999-2000." The actual period was December 9, 1999 to January 4, 2001, not quite 13 months. J.A. 1162 n.16-17. I refer to that December 9, 1999 to January 4, 2001 time period as simply "2000" to more accurately reflect the single year for which the appellants sought to create a statistical data substitute.
9As explained in more detail, infra, the "2000 data" consisted of 27 "change-of-status" forms for employment actions taken by Nucor from December 1999 to January 2001 and the appellants’ resulting projection of the percentages of African-American employees who applied for the employment positions represented by the change-of-status forms during this timeframe and were not promoted.

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and Dr. Liesl Fox, needed to formulate as to what was expected to occur in 2000 and what actually happened: (1) the number of posted job promotions available for bidding by the existing Nucor employees during 2000, and (2) whether those job promotions were "similarly situated" as defined by the district court (i.e., job promotions for which at least one African-American employee applied). The assumptions required for both variables undermine the validity of the 2000 data.

In order to construct the first variable, the number of promotion positions available in 2000 open for employee bid, the appellants relied on twenty-seven "change-of-status" forms culled from the personnel files produced by Nucor. It is not clear from the record whether the twenty-seven change-ofstatus forms represent all, or only selected, jobs open for promotion in 2000 because these forms are not identified. Nucor argues that the change-of-status forms "are simply a company record which documents any employee’s change of status, whether the employee was promoted, demoted, received a standard pay increase, or was transferred." Appellee’s Br. at 36.

Indeed, the change-of-status forms found in the record for 2000 fail to bolster the appellants’ claim that those forms reflect only promotion positions open to bid. For example, nine change-of-status forms appear in the record dated between December 1999 and January 2001 (including three in January 2001). J.A. 8397-99, 8406-07, 8416, 8673-74, 8701. Of these forms, one (J.A. 8399) simply reflects an increase in pay for an existing employee. Two (J.A. 8397, 8406) reflect completion of probation for an existing employee. Another (J.A. 8407), reflects a new hire and not a promotion. The remaining five reflect promotions of some type, though only one (J.A. 8673) identifies a promotion acquired through a bid process. On this record, it is difficult, if not impossible, to discern whether the 2000 data based on the nebulous change-ofstatus forms proves those positions were promotion positions

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available for employee bidding and thus relevant to the formulation of statistical evidence for the appellants’ claims. Perhaps that is one reason the district court found not that the 2000 data represented twenty-seven positions reflecting promotion openings available for bidding but that "the plaintiffs searched through personnel files provided by Nucor and located twenty-seven positions filled between December 1999 and January 2001." J.A. 8984 (emphasis added).

But even if one assumes the twenty-seven change-of-status forms represented actual promotion openings in 2000, Nucor’s expert, Dr. Finis Welch, testified "it is not known whether these were posted positions" (i.e. available for bid by employees). J.A. 5911 n.1. Thus, based on the record, or lack of it, to conclude that appellants established the first variable necessary for their statistical analysis to verify the 2000 data is highly dubious.

For the second variable, whether the twenty-seven positions represent positions "similarly situated," Drs. Bradley and Fox assumed "that the racial composition of the bidding pool [applicants] for those jobs was the same as the weighted average of the racial composition of the bidding pools (applicants) for the" 2001-2003 period. Supra at 9; J.A. 8984. However, through its discovery orders the district court had defined "similarly situated" jobs to mean those on which an AfricanAmerican employee actually bid. Drs. Bradley and Fox could only confirm that one of the twenty-seven "promotions" in the 2000 data involved an African-American employee actually bidding on the job.10 J.A. 5853. Dr. Fox testified in her deposition as follows:

Counsel: Okay. Now, what determine – what did

10In addition to Nucor’s assertion that the twenty-seven change-of-status forms may not have represented a "promotion," Nucor also asserts that even if each change-of-status form represented a promotion, there is no way to know if the job was posted for bidding.

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35

you do to determine that these [27] job selections met the Court’s definition of the same or similar?

Dr. Fox: Job title.

Counsel: Okay. How many of these job selections involved – these 27 job selections involved an African-American actually bidding on the job?

Dr. Fox: At least one.

Counsel: Okay. Other than the one, how many involved?

Dr. Fox: I don’t know.

Counsel: You don’t know. You have no way of knowing that?

Dr. Fox: No.

Counsel: Okay. Is not the definition of similarly situated, does that not also include a job on which an African-American actually bid?

Dr. Fox: That was the Court’s order, yes.

Counsel: Okay. So have you made any attempt in your analysis of these 27 to bring them within the Court’s definition of same or similar?

Dr. Fox: Those were destroyed. It’s not possible to do that.11

11The appellants proffered no evidence, from themselves or any other Nucor employee (past or present) that any African-American employee bid on any of the positions ostensibly represented by the 2000 data.

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J.A. 5852-54. Instead, Dr. Bradley and Dr. Fox determined the jobs were "similarly situated" based on the similarity of the job title alone. J.A. 5854.

Dr. Welch criticized these assumptions because "it is not known whether . . . any African-American employees applied" for the twenty-seven job selections.12 J.A. 5911 n.1. Dr. Welch also believed that "Drs. Bradley and Fox may have missed two selections of African-Americans into a job that is included in the posting data," and that there were "African Americans, including a named plaintiff, who moved into a job prior to 2001 that is a job held by employees at the time they won a position in the posting data." J.A. 5911-12 n.2,3.

Drs. Bradley and Fox also recognized that

Bidding records [from 2001 to 2006] were provided only for "similarly situated" jobs for which at least one African-American bid. That means that any postings which were for "similarly situated" jobs but had no African-American bidders, and therefore all white bidders, were not included in our calculation. Thus, the African-American representation among bidders for "similarly situated" jobs provided by Nucor-Berkeley is necessarily inflated.

J.A. 583. According to Dr. Welch, this necessarily means that by applying the 2001 to 2003 weighted average of the bid pool applicants to the 2000 data, "they are overstating the expected number of African-American selections." J.A. 5912. In Dr. Welch’s view, "there is no reason to assume that the applicant pools for each of [the twenty-seven] positions necessarily included at least one African American." J.A. 5912

12Accordingly, Dr. Welch limited his analysis to "all of the job postings containing applicant information" because "[p]rior to 2001 we know neither the applicant mix regarding race nor do we know anything regarding qualifications." J.A. 5893.

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n.4. Thus, the appellants’ support in the record for the second variable, that the twenty-seven positions used to create the 2000 data were positions for which it could be legitimately assumed at least one African-American applied, is as dubious as the first variable.

The appellants certainly were entitled to proffer valid statistical evidence for 2000 upon which to expand the standard deviation analysis. That being said, however, no precedent or principle of law requires inherently unreliable evidence to be given evidentiary weight. The appellants chose a method of statistical proof, but based it on evidence a trier of fact could determine was inherently faulty.13 Consequently, a reasonable jurist could have determined the appellants failed to meet their burden of proof for the Rule 23(a) factors through the proffered statistical evidence. Accordingly, the district court did not abuse its discretion by failing to give the appellants’ 2000 data, and the resulting standard deviation analysis, evidentiary weight and denying certification.14

IV.

Even if we assume that the 2000 data (and its resulting standard deviation analysis) was entitled to some evidentiary weight, the precedent cited by the majority opinion does not support the conclusion that the district court abused its discretion in refusing certification as to the disparate treatment and disparate impact claims. Our decision in United States v.

13The district court’s observations that the appellants’ "assumptions may be reasonable and the statistics based thereon may be relevant" means no more than it says. J.A. 8985. The district court, in context, was merely acknowledging the theoretical possibility that the appellants could present relevant evidence — a proposition disproved by the evidence they did present.
14Insomuch as neither the appellants’ direct evidence or statistical evidence met the Rule 23 burden of proof, it was not an abuse of discretion to determine the two deficient forms of evidence could not, taken together, meet the appellants’ burden of proof.

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BROWN v. NUCOR CORP.

County of Fairfax, 629 F.2d 932 (4th Cir. 1980), does not mandate that a district court must give evidentiary weight to every datum a prospective class representative presents just to increase the strength of their statistical proof.

Moreover, there are significant distinctions between the case at bar and County of Fairfax. A distinction of particular importance is that the "missing" data in County of Fairfax involved three out of the four years from which the statistical analysis was to be made. There was no credible basis in that case by which to use the one year of actual data to foster a valid analytical sample. One year’s data was simply insufficient upon which to make a statistical analysis. Accord EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1195 (4th Cir. 1981). In contrast, the case at bar is the exact opposite, with three years of actual data. There is no precedent that requires a court in all cases to add an additional period of data, particularly data lacking in evidentiary credibility.15 Moreover, Fairfax County, as a municipality, was under a statutory duty to maintain employment data in the 1970s, a duty which it failed to fulfill. No such duty is applicable to Nucor. See County of Fairfax, 629 F.2d at 937 n.4 ("In violation of the record keeping regulations of the Revenue Sharing Act and the Crime Control Act, defendants had destroyed pre-1978 applications for employment.").

Another distinction is that County of Fairfax involved an appeal from the district court’s judgment on the merits of the case, not a denial of class certification under Rule 23. Thus, the case at bar involves a different legal analysis and is subject to an abuse of discretion standard of review on appeal.

15The majority opinion seems to imply some bad purpose on the part of Nucor because the 2000 data on actual bid promotions was unavailable. Appellants have never made a spoliation of evidence claim or pointed to any legal duty on the part of Nucor to have maintained the precise records found absent. While appellants were certainly entitled to seek to create substitute data for 2000, nothing entitled them to a data substitute based on insufficient evidence and invalid assumptions.

BROWN v. NUCOR CORP.

39

Further, although County of Fairfax involved claims of discrimination "in recruitment, hiring, assignments, and promotions," 629 F.2d at 936, the sufficiency of the applicant flow data in that case involved only the hiring data, not promotions data. Unlike hirings, which came from the surrounding community in County of Fairfax, Nucor only promotes from within its existing workforce. The data universe for hiring in County of Fairfax was thus much larger and without restricting variables that made projections on estimated data problematic. However, in the case at bar, the data universe contained restrictive variables limiting extrapolations because only current Nucor employees who were qualified and who in fact bid on a promotion could comprise that group.

County of Fairfax does not stand for the proposition that class certification claimants are entitled to a waiver of the rules of evidence for purposes of meeting their burden of proof. The district court’s judgment was not based on erroneous legal principles and was thus not an abuse of discretion.

V.

When an appellate court reviews a trial court’s determination upon an abuse of discretion standard, it must accord that court’s factual conclusions supported by the record proper deference. See United States v. Pittman, 209 F.3d 314, 316 (4th Cir. 2000) (The abuse of discretion "standard of review mandates a significant measure of appellate deference to the judgment calls of trial courts."); see also United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995) ("Under the abuse of discretion standard, this Court may not substitute its judgment for that of the district court; rather, we must determine whether the court’s exercise of discretion, considering the law and the facts, was arbitrary or capricious.").

This Court has recently stated that "[a]t its immovable core, the abuse of discretion standard requires a reviewing court to show enough deference to a primary decision-maker’s judg-

40

BROWN v. NUCOR CORP.

ment that the court does not reverse merely because it would have come to a different result in the first instance." Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008). Based on the record in this case, a reasonable jurist could plainly find the appellants’ direct and statistical evidence failed to show commonality and typicality for the purported class sufficient to meet the certification threshold. As the district court’s judgment was neither based on a "clearly erroneous factual finding" nor "erroneous legal principles," it should be accorded the deference due under the abuse of discretion standard of review.

In my view, the majority opinion fails to accord the district court proper deference in this case and, instead, reaches factual conclusions de novo that are not within the proper scope of review by an appellate court. The majority’s opinion could reasonably be interpreted to require class certification so long as future plaintiffs seeking class certification can produce any data set exceeding two standard deviations without regard to the unreliability of that data or the process by which it was derived. Equally troubling is the prospect that certification is required no matter how attenuated and insufficient a plaintiff’s direct evidence is shown to be. Such an extension of our case law ignores the prudent judgment and proper discretion of a district court, which has seen and heard the prolific evidence first-hand, and constrains the district court to a merely ministerial act devoid of evidentiary grounding. That result is incongruent with an appellate court’s adherence to the standard of review for an abuse of discretion. I would thus affirm the district court’s judgment denying class certification on the appellants’ disparate impact and disparate treatment claims for the reasons set forth above, and respectfully dissent from the majority opinion in that regard.

 
 Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 1 of 65

U.S. District Court District of South Carolina (Charleston) CIVIL DOCKET FOR CASE #: 2:04−cv−22005−DCN

CLOSED

Brown, et al v. Nucor Corporation, et al Assigned to: Honorable David C Norton Demand: $0 Case in other court: 4CCA, 08−01247
USCA, 13−01779 Cause: 42:2000 Job Discrimination (Race) Plaintiff
Quinton Brown

Date Filed: 08/25/2004 Date Terminated: 12/28/2018 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Aaron Tobias Polkey Derfner Altman and Wilborn PO Box 600 Charleston, SC 29402 843−723−9804 TERMINATED: 08/17/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Armand Georges Derfner Derfner Altman and Wilborn PO Box 600 Charleston, SC 29402 843−723−2460 Fax: 843−723−7446 Email: aderfner@derfneraltman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Kent Spriggs Spriggs Law Firm 2007 W Randolph Circle Tallahassee, FL 32308−0748 850−224−8700 Email: kspriggs@spriggslawfirm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Wilborn Law Office of Peter Wilborn 57 Cannon Street Charleston, SC 29403 843−416−9060 Fax: 843−416−9060 Email: peter@bikelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ray Pratt McClain Ray McClain Law Firm PO Box 608 Charleston, SC 29402 843−577−3170 Fax: 843−577−3097 Email: ray@raymcclain−atty.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan G Donahue

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 2 of 65

Plaintiff Jason Guy

Wiggins Childs Quinn and Pantazis The Kress Building 301 North 19th Street Birmingham, AL 35215 205−314−0500 Email: sgd@wcqp.com TERMINATED: 09/08/2010 LEAD ATTORNEY PRO HAC VICE
Ann Korns Wiggins Wiggins Childs Quinn and Pantazis The Kress Building 301 North 19th Street Birmingham, AL 35215 205−314−0500 Email: awiggins@wcqp.com PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin John DeGweck Maynard Cooper and Gale PC 1901 6th Avenue N Suite 2400 Birmingham, AL 35242 205−254−1000 Fax: 205−254−1999 Email: bdegweck@maynardcooper.com TERMINATED: 03/02/2007 ATTORNEY TO BE NOTICED
Robert L Wiggins , Jr Wiggins Childs Quinn and Pantazis The Kress Building 301 North 19th Street Birmingham, AL 35215 205−314−0500 Email: rwiggins@wcqp.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aaron Tobias Polkey (See above for address) TERMINATED: 08/17/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Armand Georges Derfner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Kent Spriggs (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Wilborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 3 of 65

Plaintiff
Ramon Roane TERMINATED: 12/19/2016

Ray Pratt McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan G Donahue (See above for address) TERMINATED: 09/08/2010 LEAD ATTORNEY PRO HAC VICE
Ann Korns Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin John DeGweck (See above for address) TERMINATED: 03/02/2007 ATTORNEY TO BE NOTICED
Robert L Wiggins , Jr (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aaron Tobias Polkey (See above for address) TERMINATED: 08/17/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Armand Georges Derfner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Kent Spriggs (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Wilborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ray Pratt McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan G Donahue (See above for address) TERMINATED: 09/08/2010 LEAD ATTORNEY PRO HAC VICE
Ann Korns Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 4 of 65

Plaintiff Alvin Simmons
Plaintiff Sheldon Singletary

Benjamin John DeGweck (See above for address) TERMINATED: 03/02/2007 ATTORNEY TO BE NOTICED
Robert L Wiggins , Jr (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aaron Tobias Polkey (See above for address) TERMINATED: 08/17/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Armand Georges Derfner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Kent Spriggs (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Wilborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ray Pratt McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan G Donahue (See above for address) TERMINATED: 09/08/2010 LEAD ATTORNEY PRO HAC VICE
Ann Korns Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin John DeGweck (See above for address) TERMINATED: 03/02/2007 ATTORNEY TO BE NOTICED
Robert L Wiggins , Jr (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aaron Tobias Polkey (See above for address) TERMINATED: 08/17/2009

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 5 of 65

Plaintiff Gerald White

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Armand Georges Derfner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Kent Spriggs (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Wilborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ray Pratt McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan G Donahue (See above for address) TERMINATED: 09/08/2010 LEAD ATTORNEY PRO HAC VICE
Ann Korns Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin John DeGweck (See above for address) TERMINATED: 03/02/2007 ATTORNEY TO BE NOTICED
represented by Aaron Tobias Polkey (See above for address) TERMINATED: 08/17/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Armand Georges Derfner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Kent Spriggs (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Wilborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ray Pratt McClain

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 6 of 65

Plaintiff Jacob Ravenell
V. Defendant Nucor Corporation

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan G Donahue (See above for address) TERMINATED: 09/08/2010 LEAD ATTORNEY PRO HAC VICE
Ann Korns Wiggins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Benjamin John DeGweck (See above for address) TERMINATED: 03/02/2007 ATTORNEY TO BE NOTICED
Robert L Wiggins , Jr (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Aaron Tobias Polkey (See above for address) TERMINATED: 08/17/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Armand Georges Derfner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Kent Spriggs (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Wilborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan G Donahue (See above for address) TERMINATED: 09/08/2010 LEAD ATTORNEY PRO HAC VICE
represented by Brian G Patterson Alaniz and Schraeder 2500 City West Boulevard Suite 1000 Houston, TX 77042 281−833−2200

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 7 of 65
Fax: 281−833−2240 Email: bpatterson@alaniz−schraeder.com TERMINATED: 01/09/2012 LEAD ATTORNEY PRO HAC VICE
David Starr Cobb Turner Padget Graham and Laney PO Box 22129 Charleston, SC 29413−2129 843−576−2803 Fax: 843−577−1629 Email: dcobb@turnerpadget.com TERMINATED: 06/28/2006 LEAD ATTORNEY
David M Minces Alaniz and Schraeder 2500 City West Boulevard Suite 1000 Houston, TX 77042 281−833−2200 TERMINATED: 06/30/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Brandon Mosley Alaniz and Schraeder 2500 City West Boulevard Suite 1000 Houston, TX 77042 281−531−0927 TERMINATED: 02/13/2008 LEAD ATTORNEY
Gabriel E Gore Dowd Bennett 7733 Forsyth Blvd Suite 1900 Saint Louis, MO 63105 314−889−7300 Email: ggore@dowdbennett.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gail A Jensen Alaniz and Schraeder 2500 City West Boulevard Suite 1000 Houston, TX 77042 281−833−2200 TERMINATED: 03/02/2007 LEAD ATTORNEY
James Forest Bennett Dowd Bennett 7733 Forsyth Blvd Suite 1900 Saint Louis, MO 63105 314−889−7302 Fax: 314−863−2111 Email: jbennett@dowdbennett.com LEAD ATTORNEY

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 8 of 65
PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer S Kingston Dowd Bennett 7733 Forsyth Blvd Suite 1900 Saint Louis, MO 63105 314−889−7300 Email: jkingston@dowdbennett.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John Smith Wilkerson , III Turner Padget Graham and Laney PO Box 22129 Charleston, SC 29413−2129 843−576−2800 Fax: 843−577−3369 Email: jwilkerson@turnerpadget.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcus Roland Patton Alaniz and Schraeder 2500 City West Boulevard Suite 1000 Houston, TX 77042 281−833−2200 TERMINATED: 06/30/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melanie G Stith Turner Padget Graham and Laney PO Box 22129 Charleston, SC 29413−2129 843−576−2800 Fax: 843−577−3369 TERMINATED: 11/28/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah Seth Heilbrun Alaniz and Schraeder 2500 CityWest Boulevard Suite 1000 Houston, TX 77042 281−833−2200 TERMINATED: 06/30/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nosizi Ralephata Resnick and Louis PC 234 Seven Farms Drive Suite 128 Charleston, SC 29492 843−410−7802 Fax: 602−456−6256 Email: nralephata@rlattorneys.com TERMINATED: 07/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 9 of 65
O Mishell Parreno Alaniz and Schraeder 2500 CityWest Boulevard Suite 1000 Houston, TX 77042 281−833−2200 TERMINATED: 01/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheena R Hamilton Dowd Bennett 7733 Forsyth Blvd Suite 1900 Saint Louis, MO 63105 314−889−7325 Fax: 314−868−2111 Email: shamilton@dowdbennett.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sidney C Watts Alaniz and Schraeder 2500 City West Boulevard Suite 1000 Houston, TX 77042 281−833−2200 TERMINATED: 03/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrian V Villacorta Alaniz and Schraeder 16010 Barker's Point Lane Suite 500 Houston, TX 77079 713−531−0927 TERMINATED: 03/02/2007
Cary Andrew Farris Winstead PC 600 Travis Street Suite 1100 Houston, TX 77002 713−650−8400 Fax: 713−650−2400 Email: cfarris@alaniz−schraeder.com PRO HAC VICE ATTORNEY TO BE NOTICED
Diana M Brockman Alaniz and Schraeder 16010 Barker's Point Lane Suite 500 Houston, TX 77079 713−531−0927 TERMINATED: 03/02/2007
James Shannon Gatlin Alaniz and Schraeder 2500 City West Boulevard Suite 1000 Houston, TX 77042

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 10 of 65

Defendant Nucor Steel Berkeley

281−833−2200 Email: sgatlin@alaniz−schraeder.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey S Mayes Alaniz and Schraeder 2500 City West Boulevard Suite 1000 Houston, TX 77042 281−833−2200 Email: jmayes@alaniz−schraeder.com PRO HAC VICE ATTORNEY TO BE NOTICED
John K Linker Winstead PC 600 Travis Street Suite 1100 Houston, TX 77002 713−650−8400 Fax: 713−650−2400 Email: jlinker@alaniz−schraeder.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael J Kuhn Dowd Bennett LLP 7733 Forsyth Blvd Suite 1900 St Louis, MO 63105 314−889−7300 Email: mkuhn@dowdbennett.com PRO HAC VICE ATTORNEY TO BE NOTICED
Richard D Alaniz Alaniz and Schraeder 2500 CityWest Boulevard Suite 1000 Houston, TX 77042 281−531−0927 Email: mail@alaniz−schraeder.com
Terry E Schraeder Alaniz and Schraeder 16010 Barker's Point Lane Suite 500 Houston, TX 77079 713−531−0927
represented by Brian G Patterson (See above for address) TERMINATED: 01/09/2012 LEAD ATTORNEY PRO HAC VICE
David Starr Cobb (See above for address) TERMINATED: 08/01/2006 LEAD ATTORNEY
David M Minces (See above for address)

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 11 of 65
TERMINATED: 06/30/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Brandon Mosley (See above for address) TERMINATED: 02/13/2008 LEAD ATTORNEY
Gabriel E Gore (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gail A Jensen (See above for address) TERMINATED: 03/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Forest Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer S Kingston (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John Smith Wilkerson , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcus Roland Patton (See above for address) TERMINATED: 06/30/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melanie G Stith (See above for address) TERMINATED: 11/28/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micah Seth Heilbrun (See above for address) TERMINATED: 06/30/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nosizi Ralephata (See above for address) TERMINATED: 07/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
O Mishell Parreno (See above for address)

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 12 of 65

TERMINATED: 01/11/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheena R Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sidney C Watts (See above for address) TERMINATED: 03/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrian V Villacorta (See above for address) TERMINATED: 03/02/2007
Cary Andrew Farris (See above for address) PRO HAC VICE
Diana M Brockman (See above for address) TERMINATED: 03/02/2007
James Shannon Gatlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey S Mayes (See above for address) PRO HAC VICE
John K Linker (See above for address) PRO HAC VICE
Michael J Kuhn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard D Alaniz (See above for address)
Terry E Schraeder (See above for address)

V. Interested Party Esq. Timothy W Bouch

Date Filed 08/25/2004

# Docket Text
1 Original file, certified copy of transfer order and docket sheet received from Western District of Arkansas (eric) (Entered: 08/25/2004)

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 13 of 65

09/17/2004 09/17/2004 09/17/2004
09/17/2004 09/17/2004 09/17/2004 09/17/2004 09/22/2004 09/22/2004 09/28/2004 09/28/2004 09/28/2004 10/04/2004 10/04/2004
10/04/2004
10/04/2004

2 ANSWER to Local Rule 26 Interrogatories by plaintiff Quinton Brown, plaintiff Jason Guy, plaintiff Ramon Roane, plaintiff Alvin Simmons, plaintiff Sheldon Singletary, plaintiff Gerald White; jury demand (cmur) (Entered: 09/17/2004)
3 MOTION by plaintiff Quinton Brown, plaintiff Jason Guy, plaintiff Ramon Roane, plaintiff Alvin Simmons, plaintiff Sheldon Singletary, plaintiff Gerald White for Robert L. Wiggins to appear pro hac vice FILING FEE AMOUNT $150.00 Receipt # scx200001743 (cmur) (Entered: 09/17/2004)
4 AFFIDAVIT of Robert L. Wiggins, Jr. by plaintiff Quinton Brown, plaintiff Jason Guy, plaintiff Ramon Roane, plaintiff Alvin Simmons, plaintiff Sheldon Singletary, plaintiff Gerald White Re: [3−1] motion for Robert L. Wiggins to appear pro hac vice FILING FEE AMOUNT $150.00 Receipt # scx200001743 (cmur) (Entered: 09/17/2004)
5 MOTION by plaintiff Quinton Brown, plaintiff Jason Guy, plaintiff Ramon Roane, plaintiff Alvin Simmons, plaintiff Sheldon Singletary, plaintiff Gerald White for Ann K. Wiggins to appear pro hac vice FILING FEE AMOUNT $150.00 Receipt # scx200001743 (cmur) (Entered: 09/17/2004)
6 AFFIDAVIT of Ann K. Wiggins by plaintiff Quinton Brown, plaintiff Jason Guy, plaintiff Ramon Roane, plaintiff Alvin Simmons, plaintiff Sheldon Singletary, plaintiff Gerald White Re: [5−1] motion for Ann K. Wiggins to appear pro hac vice FILING FEE AMOUNT $150.00 Receipt # scx200001743 (cmur) (Entered: 09/17/2004)
7 MOTION by plaintiff Quinton Brown, plaintiff Jason Guy, plaintiff Ramon Roane, plaintiff Alvin Simmons, plaintiff Sheldon Singletary, plaintiff Gerald White for Benjamin J. De Gweck to appear pro hac vice FILING FEE AMOUNT $150.00 Receipt # scx200001743 (cmur) (Entered: 09/17/2004)
8 AFFIDAVIT of Benjamin J. De Gweck by plaintiff Quinton Brown, plaintiff Jason Guy, plaintiff Ramon Roane, plaintiff Alvin Simmons, plaintiff Sheldon Singletary, plaintiff Gerald White Re: [6−1] affidavit (cmur) (Entered: 09/17/2004)
9 NOTICE of attorney appearance for defendant Nucor Corporation, defendant Nucor Steel Berkeley by John Smith Wilkerson III, Melanie G Stith, David Starr Cobb (pchi) (Entered: 09/23/2004)
10 ANSWER to Local Rule 26 Interrogatories by defendant Nucor Corporation, defendant Nucor Steel Berkeley; jury demand (pchi) (Entered: 09/23/2004)
11 ORDER granting [7−1] motion for Benjamin J. De Gweck to appear pro hac vice ( signed by Judge C W. Houck ) (eod 9/29/04) (erav) (Entered: 09/29/2004)
12 ORDER granting [5−1] motion for Ann K. Wiggins to appear pro hac vice ( signed by Judge C W. Houck ) (eod 9/29/04) (erav) (Entered: 09/29/2004)
13 ORDER granting [3−1] motion for Robert L. Wiggins to appear pro hac vice ( signed by Judge C W. Houck ) (eod 9/29/04) (erav) (Entered: 09/29/2004)
14 MOTION by defendant Nucor Corporation, defendant Nucor Steel Berkeley for Richard D. Alaniz, Terry E. Schraeder, John K. Linker, Jeff S. Mayes, Cary A. Farris, Adrian V. Villacorta and Diana M. Brockman to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 (erav) (Entered: 10/05/2004)
15 APPLICATION/AFFIDAVIT of Richard D. Alaniz by defendant Nucor Corporation, defendant Nucor Steel Berkeley Re: [14−1] motion for Richard D. Alaniz, Terry E. Schraeder, John K. Linker, Jeff S. Mayes, Cary A. Farris, Adrian V. Villacorta and Diana M. Brockman to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 (erav) (Entered: 10/05/2004)
16 APPLICATION/AFFIDAVIT of Terry E. Schraeder by defendant Nucor Corporation, defendant Nucor Steel Berkeley Re: [14−1] motion for Richard D. Alaniz, Terry E. Schraeder, John K. Linker, Jeff S. Mayes, Cary A. Farris, Adrian V. Villacorta and Diana M. Brockman to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 (erav) (Entered: 10/05/2004)
17 APPLICATION/AFFIDAVIT of John K. Linker by defendant Nucor Corporation, defendant Nucor Steel Berkeley Re: [14−1] motion for Richard D. Alaniz, Terry E.

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 14 of 65

10/04/2004 10/04/2004 10/04/2004 10/04/2004 10/08/2004
10/13/2004 10/13/2004 10/13/2004 10/13/2004 10/13/2004 10/13/2004 10/13/2004 11/19/2004

Schraeder, John K. Linker, Jeff S. Mayes, Cary A. Farris, Adrian V. Villacorta and Diana M. Brockman to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 (erav) (Entered: 10/05/2004)
18 APPLICATION/AFFIDAVIT of Cary Andrew Farris by defendant Nucor Corporation, defendant Nucor Steel Berkeley Re: [14−1] motion for Richard D. Alaniz, Terry E. Schraeder, John K. Linker, Jeff S. Mayes, Cary A. Farris, Adrian V. Villacorta and Diana M. Brockman to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 (erav) (Entered: 10/05/2004)
19 APPLICATION/AFFIDAVIT of Jeffrey Shannon Mayes by defendant Nucor Corporation, defendant Nucor Steel Berkeley Re: [14−1] motion for Richard D. Alaniz, Terry E. Schraeder, John K. Linker, Jeff S. Mayes, Cary A. Farris, Adrian V. Villacorta and Diana M. Brockman to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 (erav) (Entered: 10/05/2004)
20 APPLICATION/AFFIDAVIT of Adrian Victor Villacorta by defendant Nucor Corporation, defendant Nucor Steel Berkeley Re: [14−1] motion for Richard D. Alaniz, Terry E. Schraeder, John K. Linker, Jeff S. Mayes, Cary A. Farris, Adrian V. Villacorta and Diana M. Brockman to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 (erav) (Entered: 10/05/2004)
21 APPLICATION/AFFIDAVIT of Diana Michelle Brockman by defendant Nucor Corporation, defendant Nucor Steel Berkeley Re: [14−1] motion for Richard D. Alaniz, Terry E. Schraeder, John K. Linker, Jeff S. Mayes, Cary A. Farris, Adrian V. Villacorta and Diana M. Brockman to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 (erav) (Entered: 10/05/2004)
22 CONFERENCE AND SCHEDULING ORDER setting 26(f) Conference no later than 10/27/04 ; 26(a) Initial Disclosures served by 11/10/04 ; 26(f) Report filed by 11/19/04 ; Joining of parties,amending of pleadings on 11/19/04 ; Plaintiff's ID of Experts set for 12/10/04 ; Defendant's ID of Experts set for 12/17/04 ; Records Custodian Affidavit filed by 4/8/05 ; Discovery cutoff 3/31/05 ; Motion In Limine filed by 6/23/05 ; Deadline for filing of all motions 3/18/05 ; 26(a)3 Pretrial Disclosures filed by 5/13/05 ; Pretrial Brief filed by 6/24/05 ; Jury Selection deadline set for 7/1/05 ; ADR Statement/Cert due by 3/15/05 Mediation deadline for 4/15/05 ( signed by Magistrate Judge George C. Kosko ) eod (cmur) (Entered: 10/08/2004)
23 ORDER granting [14−1] motion for Richard D. Alaniz to appear pro vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 ( by Judge C W. Houck ) (eod 10/14/04) (erav) (Entered: 10/14/2004)
24 ORDER granting [14−1] motion for Terry E. Schraeder to appear pro hac vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 ( by Judge C W. Houck ) (eod 10/14/04) (erav) (Entered: 10/14/2004)
25 ORDER granting [14−1] motion for John K. Linker to appear pro vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 ( by Judge C W. Houck ) (eod 10/14/04) (erav) (Entered: 10/14/2004)
26 ORDER granting [14−1] motion for Cary Andrew Farris to appear pro vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 ( by Judge C W. Houck ) (eod 10/14/04) (erav) (Entered: 10/14/2004)
27 ORDER granting [14−1] motion for Jeff S. Mayes to appear pro vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 ( by Judge C W. Houck ) (eod 10/14/04) (erav) (Entered: 10/14/2004)
28 ORDER granting [14−1] motion for Adrian V. Villacorta to appear pro vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 ( by Judge C W. Houck ) (eod 10/14/04) (erav) (Entered: 10/14/2004)
29 ORDER granting [14−1] motion for Diana M. Brockman to appear pro vice FILING FEE AMOUNT $1050 Receipt # SCX200001847 ( by Judge C W. Houck ) (eod 10/14/04) (erav) (Entered: 10/14/2004)
30 JOINT 26(f) Report by Nucor Steel Berkeley, Nucor Corporation, Gerald White, Sheldon Singletary, Alvin Simmons, Ramon Roane, Jason Guy, Quinton Brown .

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11/19/2004 11/23/2004
12/09/2004 01/26/2005 01/28/2005 02/03/2005 02/10/2005 02/14/2005 02/14/2005
02/24/2005
02/25/2005 03/07/2005 03/15/2005 03/15/2005 03/16/2005
03/21/2005 03/28/2005

Parties Disagree to Conference and Scheduling Order. (cmur) Modified on 11/22/2004 (Entered: 11/22/2004)
31 JOINT 26(f) Answers to Local Rule 26 Interrogatories by Nucor Steel Berkeley, Nucor Corporation, Gerald White, Sheldon Singletary, Alvin Simmons, Ramon Roane, Jason Guy, Quinton Brown . (cmur) (Entered: 11/22/2004)
32 CONSENT SCHEDULING ORDER setting 26(f) Conference no later than 11/2/04 ; 26(a) Initial Disclosures served by 12/31/04 ; 26(f) Report filed by 11/19/04 ; Joining of parties,amending of pleadings on 1/28/05 ; Plaintiff's ID of Experts set for 11/4/05 ; Defendant's ID of Experts set for 12/5/05 ; Discovery cutoff 2/3/06 ; ( signed by Magistrate Judge George C. Kosko ) eod (cmur) (Entered: 11/23/2004)
33 ORDER substituting attorney terminated D.P. Marshall, Jr. Added John S. Wilkerson, III ( signed by Magistrate Judge George C. Kosko ) eod (cmur) (Entered: 12/09/2004)
34 AMENDED ANSWER to Local Rule 26.01 Interrogatories by defendant Nucor Steel Berkeley, defendant Nucor Corporation; jury demand (erav) (Entered: 01/27/2005)
35 MOTION by plaintiff Gerald White, plaintiff Sheldon Singletary, plaintiff Ramon Roane, plaintiff Jason Guy, plaintiff Quinton Brown, plaintiff Alvin Simmons to amend complaint (cmur) (Entered: 01/31/2005)
36 NOTICE of Hearing before Magistrate Judge George C. Kosko set Motion Hearing to 2:30 2/14/05 for [35−1] motion to amend complaint (obri) (Entered: 02/03/2005)
37 JOINT RESPONSE by defendant Nucor Steel Berkeley, defendant Nucor Corporation to [35−1] motion to amend complaint (cmur) (Entered: 02/11/2005)
MOTION HEARING [35−1] motion to amend complaint held ORAL ORDER withdrawing [35−1] motion to amend complaint (before Magistrate Judge George C. Kosko ) Court Reporter: Gilbert O'Brien,ESR. (obri) (Entered: 02/14/2005)
38 REPLY by plaintiff Gerald White, plaintiff Sheldon Singletary, plaintiff Ramon Roane, plaintiff Jason Guy, plaintiff Quinton Brown, plaintiff Alvin Simmons to defendant's response to [35−1] motion to amend complaint (cmur) (Entered: 02/15/2005)
39 CONSENT ORDER allowing plaintiffs leave to file third amended complaint. Defendants have 20 days from the date of this order to serve their responsive pleadings to the third amended complaint. Signed by Judge George C Kosko on 2/24/2005. (cmur, ) (Entered: 02/25/2005)
40 MOTION to Compel Discovery by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 3/15/2005 (cmur, ) (Entered: 02/28/2005)
42 NOTICE of Hearing on Motion 40 MOTION to Compel: Motion Hearing set for 3/22/2005 10:00 AM in Charleston #5, U. S. Court House, 85 Broad St, Charleston before Magistrate Judge George C Kosko. (obri, ) (Entered: 03/07/2005)
44 ANSWER to Third Amended Complaint by Nucor Corporation, Nucor Steel Berkeley.(erav, ) (Entered: 03/21/2005)
45 RESPONSE in Opposition re 40 MOTION to Compel Discovery filed by Nucor Steel Berkeley. (erav, ) (Entered: 03/21/2005)
43 NOTICE of Hearing on Motion 40 MOTION to Compel: RE SCHEDULING Motion Hearing TO 3/29/2005 AT 02:30PM PREVIOUSLY SET FOR 3/22/05 AT 10:00 in Charleston #5, U. S. Court House, 85 Broad St, Charleston before Magistrate Judge George C Kosko. (obri, ) (Entered: 03/16/2005)
46 REPLY to Response to Motion re 40 MOTION to Compel filed by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. (cmur, ) (Entered: 03/23/2005)
47 MOTION to Appear Pro Hac Vice by Brandon David Mosley Filing Fee Receipt Number 200002646 by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 4/15/2005 (Attachments: # 1 Affidavit Brandon David Mosley)(eric) (Entered:

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03/28/2005 03/29/2005
04/12/2005 04/21/2005 04/22/2005 04/28/2005 05/02/2005 05/09/2005 05/09/2005 05/24/2005 05/24/2005 05/25/2005 05/27/2005 06/01/2005 06/07/2005

03/28/2005)
48 ORDER granting 47 Motion to Appear Pro Hac Vice for Brandon David Mosley Signed by Judge David C Norton on 3/28/05. (eric) (Entered: 03/28/2005)
49 Minute Entry for proceedings held before Judge George C Kosko : denying 40 Motion to Compel, Motion Hearing held on 3/29/2005 re 40 MOTION to Compel filed by Alvin Simmons,, Quinton Brown,, Jason Guy,, Ramon Roane,, Sheldon Singletary,, Gerald White,. (Court Reporter gob esr.) (obri, ) Modified docket text on 3/29/2005 (obri, ). (Entered: 03/29/2005)
50 OBJECTIONS and APPEAL by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White to 49 Order denying Motion to Compel. (cmur, ) (Entered: 04/13/2005)
51 TRANSCRIPT of Motion Hearing, pp 1−53, held on 3−29−2005 before Judge George C. Kosko. Court Reporter: Debbie Potocki. (dpotocki, ) (Entered: 04/21/2005)
52 RESPONSE filed by Nucor Steel Berkeley to Plaintiffs' Objections and Appeal of Magistrate's denial of motion to compel discovery. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Wilkerson, John) Modified on 4/25/2005 to clarify docket text, per attorney's request (ssan, ). (Entered: 04/22/2005)
53 Unoppossed MOTION for Extension of Time to File Reply as to 52 Response to Motion, by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 5/16/2005 (Attachments: # 1 Proposed Order)(jwol, ) (Entered: 04/28/2005)
54 ORDER granting 53 Motion for Extension of Time to File Reply to the Response of defendant Nucor Steel Berkeley to plaintiffs' objections and appeal of the Magistrate's denial of their motion to compel discovery is hereby extended through 5/9/05. Signed by Judge C Weston Houck on 5/2/05. (erav, ) (Entered: 05/03/2005)
55 DECLARATION of Edwin L. Bradley Ph.D by plaintiff's Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. (jwol, ) (Entered: 05/10/2005)
56 Reply to defendant's opposition to objection and appeal of Magistrate's denial of motion to compel discovery by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White re 52 Response to Motion, (jwol, ) (Entered: 05/10/2005)
57 MOTION for Protective Order by Nucor Steel Berkeley. Response to Motion due by 6/13/2005 Proposed Order sent to Judge Chambers email account? No. (Attachments: # 1 Exhibit Defendant's Exhibits 1−5)(Wilkerson, John) (Entered: 05/24/2005)
58 CERTIFICATE OF SERVICE by Nucor Steel Berkeley re 57 MOTION for Protective Order (Wilkerson, John) (Entered: 05/24/2005)
59 NOTICE of Hearing on Motion 57 MOTION for Protective Order: Motion Hearing set for MONDAY 6/20/2005 10:00 AM in Charleston Courtroom #5, U. S. Court House, 85 Broad St, Charleston before Magistrate Judge George C Kosko. (obri, ) (Entered: 05/25/2005)
60 NOTICE of Hearing: On Plaintiff's Appeal of the Order Denying the Motion to Compel (50) and Defendant's Motion for Protective Order (57) set for 6/8/2005 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (erav, ) (Entered: 05/27/2005)
61 NOTICE OF CANCELLATION of hearing: on Motion for Protective Order set for 6/20/05,10:00 A.M. before Magistrate Judge George C Kosko. (jwol, ) (Entered: 06/01/2005)
62 RESPONSE to Motion re 57 for Protective Order Response filed by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Reply to Response to Motion due by 6/17/2005 (Attachments: # 1 Attachments (2) Deposition of Meleah Barnhill)(jwol, ) (Entered: 06/07/2005)

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 17 of 65

06/08/2005
09/28/2005 09/30/2005 10/03/2005 10/19/2005 10/19/2005 10/19/2005 10/20/2005 10/25/2005
10/25/2005 11/07/2005 11/07/2005 11/10/2005

63 Minute Entry for proceedings held before Judge C Weston Houck : taking under advisement 57 Motion for Protective Order, Motion Hearing held on 6/8/2005 re 57 MOTION for Protective Order filed by Nucor Steel Berkeley,, 40 MOTION to Compel under advisement(previously denied by Judge Kosko) filed by Alvin Simmons,, Quinton Brown,, Jason Guy,, Ramon Roane,, Sheldon Singletary,, Gerald White,. Court to issue written order (Court Reporter Potocki.) (obri, ) (Entered: 06/08/2005)
64 MOTION to Compel by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 10/17/2005 (Attachments: # 1 Exhibit 1−2)No proposed order(Wilkerson, John) (Entered: 09/28/2005)
65 NOTICE of Hearing on Motion 64 MOTION to Compel: Motion Hearing set for Wednesday 10/26/2005 02:00 PM in Charleston Courtroom #5, U. S. Court House, 85 Broad St, Charleston before Magistrate Judge George C Kosko. (obri, ) (Entered: 09/30/2005)
66 NOTICE of Hearing on Motion 64 MOTION to Compel: Motion Hearing set for Wednesday 10/26/2005 02:00 PM in Charleston Courtroom #5, U. S. Court House, 85 Broad St, Charleston before Magistrate Judge George C Kosko. (obri, ) (Entered: 10/03/2005)
67 NOTICE of Cancellation of Motion Hearing: 10/26/05 at 2:00 HEARING CANCELED(obri, ) (Entered: 10/19/2005)
68 ORAL ORDER withdrawing 64 Motion to Compel per fax received to Judge Kosko's chambers Signed by Judge George C Kosko on 10/19/05. (obri, ) (Entered: 10/19/2005)
69 MOTION for Protective Order by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 11/7/2005 No proposed order(Wilkerson, John) (Entered: 10/19/2005)
70 MOTION for Extension of Time to Complete Discovery Unopposed by Defendants by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 11/7/2005 No proposed order(McClain, Ray) (Entered: 10/20/2005)
71 CONSENT AMENDED SCHEDULING ORDERPlaintiffs ID of Expert Witness due by 1/4/2006. Defendants ID of Expert Witnesses Due by 2/6/2006. Class Discovery due by 4/3/2006. Any rebuttal report by Plaintiffs' experts will be filed no later than 3/8/2006. Supplementation shall be made no later than 3/8/2006. Plaintiffs' motion and brief regarding class certification due no later than 5/6/2006. Defendants' reply brief regarding class certification no later than 6/5/2006. Plaintiffs' reply brief regarding class certification no later than 6/20/2006. Signed by Judge George C Kosko on 10/24/2005. (ssan, ) (Entered: 10/25/2005)
72 ORDER granting 70 Unopposed Motion for Extension of Time to Complete Discovery. See Amended Consent Scheduling Order, #71 for revised dates. Signed by Judge George C Kosko on 10/24/2005. (ssan, ) (Entered: 10/26/2005)
73 RESPONSE in Opposition re 69 MOTION for Protective Order re: Executive Summary Response filed by Ravenel.Reply to Response to Motion due by 11/18/2005 (Attachments: # 1 Appendix #1# 2 Appendix #2)(McClain, Ray) (Entered: 11/07/2005)
74 RESPONSE in Opposition re 57 MOTION for Protective Order, 69 MOTION for Protective Order re: Hiring Data Response filed by Ravenel.Reply to Response to Motion due by 11/18/2005 (Attachments: # 1 Appendix A −− Order in Arkansas# 2 Appendix B −− Order (dkt 40) in Ark# 3 Appendix C −− Employee Handbook# 4 Appendix D − Defendant's Policies)(McClain, Ray) (Entered: 11/07/2005)
75 MOTION to Quash Subpoena and continue Deposition of Dr. John Seres filed by Timothy Bouche, attorney for Dr. Seres. Response to Motion due by 11/28/2005 No proposed order(jdod, ) Additional attachment(s) added on 11/10/2005 (jdod, ). (Entered: 11/10/2005)

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11/10/2005 11/18/2005 11/18/2005 12/20/2005 01/24/2006 03/30/2006 04/10/2006
04/11/2006
04/12/2006 04/19/2006 04/25/2006
04/26/2006
04/28/2006 05/05/2006

76 AFFIDAVIT in Opposition to Plaintiff's Subpoena for Deposition and Production of Documents filed by Non−Party Dr. John Seres. (jdod, ) (Entered: 11/10/2005)
77 REPLY to Response to Motion re 69 MOTION for Protective Order Re: Hiring Issues Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 11/18/2005)
78 REPLY to Response to Motion re 69 MOTION for Protective Order Re: Executive Summary Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 11/18/2005)
79 MOTION to Stay re 71 Scheduling Order,, Deadlines, without opposition by Quinton Brown. Response to Motion due by 1/9/2006 Proposed order is being emailed to chambers with copy to opposing counsel(McClain, Ray) (Entered: 12/20/2005)
80 ORDER that the Court hereby stays all deadlines in this case and upon issuance of an order resolving the outstanding discovery disputes will set a status conference to set new deadlines in this matter; granting 79 Motion to Stay. Signed by Judge C Weston Houck on 1/24/06.(erav, ) (Entered: 01/24/2006)
81 ORDER granting 57 Motion for Protective Order and denying 40 motion to compel Signed by Judge C Weston Houck on 3/30/06.(wwil, ) (Entered: 03/30/2006)
82 NOTICE of Hearing on Motion 69 MOTION for Protective Order, 75 MOTION to Quash; Status Conference to set new discovery deadlines pursuant to the order on 1/24/06. Motion Hearing set for 4/25/2006 02:30 PM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (erav, ) (Entered: 04/10/2006)
83 NOTICE of Hearing on Motion 69 MOTION for Protective Order, 75 MOTION to Quash: Motion Hearing set for 4/25/2006 02:30 PM AND Status Conference to Set New Discovery Deadlines Pursuant to Order filed 1/24/06 in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (jdod, ) (Entered: 04/11/2006)
84 ORAL ORDER withdrawing 75 Motion to Quash. Counsel for Dr. Seres submitted letter withdrawing motion. Signed by Judge C Weston Houck on 4/12/06.(wwil, )There is no document for this entry (Entered: 04/12/2006)
85 NOTICE OF RESCHEDULED HEARING Motion Hearing set for April 25, 2006 at 2:30 PM CANCELLED AND RESCHEDULED to: APRIL 26, 2006 @ 2:30 PM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (jdod, ) (Entered: 04/19/2006)
86 MOTION to Appear Pro Hac Vice by O. Mishell Parreno ( Filing fee $ 250 receipt number 552092) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 5/15/2006 (Attachments: # 1 Affidavit Application of O. Mishell Parreno# 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 04/25/2006)
87 Minute Entry for proceedings held before Judge C. Weston Houck: GRANTING 69 Motion for Protective Order preventing discovery of the executive summary filed by Nucor Corporation, Nucor Steel Berkeley. Parties to submit Amended Scheduling Order. Motion Hearing held on 4/26/2006. (Court Reporter Janet Collins.) (jdod, ) (Entered: 04/26/2006)
88 ORDER granting 86 Motion for O Mishell Parreno to Appear Pro Hac Vice on behalf of defendants. Signed by Judge C Weston Houck on 4/27/06.(erav, ) (Entered: 04/28/2006)
89 AMENDED SCHEDULING ORDER:Plaintiffs ID of Expert Witness due by 12/12/2006. Defendants ID of Expert Witnesses due by 10/12/2006. Discovery due by 12/4/2006. Plaintiffs will designate their experts and provide their experts' report on or before 9/12/06; Defendants will designate and provide their experts' reports on or before 10/12/06. Plaintiffs' motion and brief regarding class certification must be filed by 2/6/07; Defendants' reply brief regarding class certification must be filed no later than 3/6/07. Plaintiffs' reply brief regarding class certification must be filed no later than 3/21/07. Signed by Judge C Weston Houck on 5/5/06. (erav, ) (Entered:

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05/24/2006 06/02/2006
06/02/2006 06/06/2006
06/08/2006 06/16/2006 06/28/2006 06/28/2006 06/28/2006 07/17/2006 07/17/2006 07/20/2006 07/31/2006
07/31/2006 08/03/2006

05/05/2006)
90 TRANSCRIPT of Motions held on 4/26/06 before Judge C. Weston Houck. Court Reporter: Janet Collins. (jcollins, ) (Entered: 05/24/2006)
91 MOTION to Appear Pro Hac Vice by Sidney C. Watts ( Filing fee $ 250 receipt number 603503) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 6/20/2006 (Attachments: # 1 Affidavit # 2 Exhibit Certificate in Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 06/02/2006)
92 ORDER granting 91 Motion for Sidney C Watts to Appear Pro Hac Vice on behalf of defendants. Signed by Judge C Weston Houck on 6/2/06.(erav, ) (Entered: 06/05/2006)
93 MOTION to Appear Pro Hac Vice by Micah Heilburn ( Filing fee $ 250 receipt number 607695) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 6/26/2006 (Attachments: # 1 Affidavit # 2 Exhibit)Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 06/06/2006)
94 ORDER granting 93 Motion for Micah Seth Heilburn to Appear Pro Hac Vice on behalf of defendants. Signed by Judge C Weston Houck on 6/8/06.(erav, ) (Entered: 06/08/2006)
95 MOTION to Appear Pro Hac Vice by Susan G. Donahue (By Consent) ( Filing fee $ 250 receipt number 622925) by Quinton Brown. Response to Motion due by 7/5/2006 Proposed order is being emailed to chambers with copy to opposing counsel(McClain, Ray) (Entered: 06/16/2006)
96 MOTION to Withdraw as Attorney Relieving David S. Cobb as counsel by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 7/17/2006 Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 06/28/2006)
97 ORDER granting 95 Motion for Susan G Donahue to Appear Pro Hac Vice on behalf of the plaintiffs. Signed by Judge C Weston Houck on 6/28/06.(erav, ) (Entered: 06/28/2006)
98 ORDER granting 96 Motion for David S Cobb to Withdraw as Attorney for defendants Nucor Corporation, Nucor Steel Berkeley. Signed by Judge C Weston Houck on 6/28/06.(erav, ) (Entered: 06/28/2006)
99 MOTION for Protective Order by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 8/4/2006 No proposed order(Wilkerson, John) (Entered: 07/17/2006)
100 MOTION for Protective Order by Ramon Roane, Brown, Guy, Simmons, Singletary and White. Response to Motion due by 8/4/2006 (Attachments: # 1 Exhibit Dep excerpts dep of Ramon Roane)No proposed order(McClain, Ray) Modified text to add additional plaintiffs as filers on 7/18/2006 (cmur, ). (Entered: 07/17/2006)
101 MOTION for Protective Order by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 8/7/2006 (Attachments: # 1 Exhibit 1 and 2)No proposed order(Wilkerson, John) (Entered: 07/20/2006)
102 MOTION to Appear Pro Hac Vice by Gail A. Jensen ( Filing fee $ 250 receipt number 673704) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 8/18/2006 (Attachments: # 1 Affidavit Application# 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 07/31/2006)
103 RESPONSE in Opposition re 100 MOTION for Protective Order Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 8/7/2006 plus 3 calendar days per FRCvP 6(e) (Wilkerson, John) (Entered: 07/31/2006)
104 NOTICE of Appearance by Peter Wilborn on behalf of Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White (Wilborn, Peter) (Entered: 08/03/2006)

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08/03/2006 08/04/2006 08/07/2006 08/10/2006 08/14/2006 08/14/2006 08/14/2006 09/21/2006 09/21/2006 10/18/2006 10/18/2006 10/18/2006 10/27/2006
10/30/2006

105 NOTICE of Appearance by Armand Georges Derfner on behalf of Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White (Derfner, Armand) (Entered: 08/03/2006)
106 RESPONSE in Opposition re 101 MOTION for Protective Order Response filed by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 8/11/2006 plus 3 calendar days per FRCvP 6(e) (Attachments: # 1 Exhibit 1)(Wilborn, Peter) (Entered: 08/04/2006)
107 RESPONSE in Opposition re 101 MOTION for Protective Order Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 8/14/2006 plus 3 calendar days per FRCvP 6(e) (Wilborn, Peter) (Entered: 08/07/2006)
108 REPLY to Response to Motion re 100 MOTION for Protective Order Response filed by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Exhibit 1)(Wilborn, Peter) (Entered: 08/10/2006)
109 REPLY to Response to Motion re 99 MOTION for Protective Order Defendants' Reply to Plaintiffs' Response to Nucor Steel Berkeley's Motion for Protective Order Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 08/14/2006)
110 ORAL ORDER withdrawing 101 Motion for Protective Order. The defendants submitted a letter to the Court dated August 10, 2006, withdrawing the motion.Signed by Judge C Weston Houck on 8/14/06.(wwil,)There is no document for this entry Modified on 8/14/2006 by Clerk to add the word "Oral" to text (erav, ). (Entered: 08/14/2006)
111 ORDER granting 102 Motion for Gail A Jensen to Appear Pro Hac Vice on behalf of defendants. Signed by Judge C Weston Houck on 8/14/06.(erav, ) (Entered: 08/15/2006)
112 ORAL ORDER during telephone conference granting 99 Motion for Protective Order as to the question objected to by the defendants and not answered during William Seres's depostion (p.305−307). Signed by Judge C Weston Houck on 9/21/06.(wwil,)There is no document for this entry (Entered: 09/21/2006)
113 ORAL ORDER issued during a telephone conference granting 100 Motion for Protective Order. Based on the plaintiffs' assertions made in the briefs and during the telephone conference, the disputed communications are protected by attorney−client privilege. Signed by Judge C Weston Houck on 9/21/06.(wwil,)There is no document for this entry (Entered: 09/21/2006)
114 MOTION for Protective Order Regarding Inspection by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 11/6/2006 (Attachments: # 1 Memo in Support of Defendants Motion for Protective Order# 2 Exhibit 1)No proposed orderMotions referred to George C Kosko.(Wilkerson, John) (Entered: 10/18/2006)
115 MOTION for Protective Order re Ferguson Deposition by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 11/6/2006 (Attachments: # 1 Exhibit 1; Pages 1−65# 2 Exhibit 1; Pages 66−115# 3 Exhibit 2)No proposed orderMotions referred to George C Kosko.(Wilkerson, John) (Entered: 10/18/2006)
116 MOTION to Compel Production by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 11/6/2006 (Attachments: # 1 Appendix A1)No proposed orderMotions referred to George C Kosko.(Wilborn, Peter) (Entered: 10/18/2006)
117 MOTION for Extension of Time to File Response/Reply as to 114 MOTION for Protective Order Regarding Inspection, 115 MOTION for Protective Order re Ferguson Deposition by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 11/16/2006 Proposed order is being emailed to chambers with copy to opposing counselMotions referred to George C Kosko.(Wilborn, Peter) (Entered: 10/27/2006)
118 MOTION for Protective Order Prohibiting Deposition of DiMicco by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 11/17/2006

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10/31/2006 11/03/2006 11/06/2006 11/08/2006
11/08/2006
11/13/2006
11/14/2006 11/17/2006 11/17/2006
11/20/2006 11/20/2006 11/22/2006
11/22/2006

(Attachments: # 1 Exhibit A and B)No proposed orderMotions referred to George C Kosko.(Wilkerson, John) (Entered: 10/30/2006)
119 ORDER granting 117 Motion for Extension of Time to File Response re 115 MOTION for Protective Order re Ferguson Deposition, 114 MOTION for Protective Order Regarding Inspection until 11/8/06. Response to Motion due by 11/8/2006. Signed by Judge C Weston Houck on 10/30/06. (erav, ) (Entered: 10/31/2006)
120 MOTION for Protective Order by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 11/24/2006 (Attachments: # 1 Exhibit 1−27)No proposed orderMotions referred to George C Kosko.(Wilkerson, John) (Entered: 11/03/2006)
121 RESPONSE in Opposition re 116 MOTION to Compel Production Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 11/17/2006 (Attachments: # 1 Exhibit A−B)(Wilkerson, John) (Entered: 11/06/2006)
122 RESPONSE in Opposition re 114 MOTION for Protective Order Regarding Inspection Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 11/20/2006 (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Wilborn, Peter) (Entered: 11/08/2006)
123 RESPONSE in Opposition re 115 MOTION for Protective Order re Ferguson Deposition Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 11/20/2006 (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Wilborn, Peter) (Entered: 11/08/2006)
124 MOTION to Compel by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 12/1/2006 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)Proposed order is being emailed to chambers with copy to opposing counselMotions referred to George C Kosko.(Wilborn, Peter) (Entered: 11/13/2006)
125 ORDER directing Clerk to remove Magistrate Judge Kosko from the action. Signed by Judge C Weston Houck on 11/14/06. (wwil,) (Entered: 11/14/2006)
126 REPLY to Response to Motion re 116 MOTION to Compel Production Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Exhibit Examples Referred to in Reply# 2 Exhibit Deposition Notes)(Derfner, Armand) (Entered: 11/17/2006)
127 RESPONSE in Opposition re 118 MOTION for Protective Order Prohibiting Deposition of DiMicco Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 11/30/2006 (Attachments: # 1 Exhibit Doc 119# 2 Exhibit Employee Handbook# 3 Summons Mercer Survey)(Derfner, Armand) (Entered: 11/17/2006)
128 REPLY to Response to Motion re 115 MOTION for Protective Order re Ferguson Deposition Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Exhibit)(Wilkerson, John) (Entered: 11/20/2006)
129 REPLY to Response to Motion re 114 MOTION for Protective Order Regarding Inspection Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 11/20/2006)
130 MOTION for Protective Order regarding Ken Hubbard Deposition by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 12/11/2006 (Attachments: # 1 Exhibit Hubbard)Proposed order is being emailed to chambers with copy to opposing counsel(Wilborn, Peter) (Entered: 11/22/2006)
131 RESPONSE in Opposition re 120 MOTION for Protective Order Response filed by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 12/4/2006 (Attachments: # 1 Exhibit Transcript# 2 Exhibit Scheduling Order# 3 Exhibit Deposition Extracts# 4 Exhibit Deposition Extracts)(Wilborn, Peter) (Entered: 11/22/2006)

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11/28/2006 11/29/2006 11/30/2006 11/30/2006 12/01/2006 12/04/2006 12/05/2006
12/05/2006 12/06/2006 12/07/2006 12/07/2006 12/11/2006 12/11/2006 12/11/2006
12/13/2006 12/18/2006

132 Letter from John S. Wilkerson, III regarding Relieving Counsel from Civil Docket. (Wilkerson, John) (Entered: 11/28/2006)
133 NOTICE of Appearance by Nosizi Ralephata on behalf of Nucor Corporation, Nucor Steel Berkeley (Ralephata, Nosizi) (Entered: 11/29/2006)
134 REPLY to Response to Motion re 118 MOTION for Protective Order Prohibiting Deposition of DiMicco Response filed by Nucor Corporation, Nucor Steel Berkeley. (Ralephata, Nosizi) (Entered: 11/30/2006)
135 MOTION for Protective Order re: Jeanerret's Work Product by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 12/18/2006 No proposed order(Ralephata, Nosizi) (Entered: 11/30/2006)
136 RESPONSE in Opposition re 124 MOTION to Compel Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 12/11/2006 (Attachments: # 1 Exhibit 1−4)(Wilkerson, John) (Entered: 12/01/2006)
137 REPLY to Response to Motion re 120 MOTION for Protective Order re: resumption of depositions of 6 company witnesses Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Exhibit 1−2)(Ralephata, Nosizi) (Entered: 12/04/2006)
138 AMENDED SCHEDULING ORDER: all parties have agreed that the following depositions will be completed on the dates listed below, after the close of discovery on 12/4/06. Earl Ravenel 12/5/06; Walter J Cook, Bernard Beaufort: 12/6/06; John Singletary, Doug Adams, Chris Anderson: Week of December 11, 2006. Signed by Judge C Weston Houck on 11/30/06. (erav, ) (Entered: 12/05/2006)
***DOCUMENT MAILED 138 Order, placed in U.S. Mail to Gail A Jenson (erav, ) (Entered: 12/05/2006)
139 MOTION for Protective Order re: redeposing Phillip Clarke by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 12/26/2006 (Attachments: # 1 Exhibit 1−2)No proposed order(Wilkerson, John) (Entered: 12/06/2006)
140 MOTION for Protective Order by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 12/26/2006 Proposed order is being emailed to chambers with copy to opposing counsel(Wilborn, Peter) (Entered: 12/07/2006)
141 MOTION for Protective Order on Brian Kurtz's Deposition by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 12/26/2006 No proposed order(Wilkerson, John) (Entered: 12/07/2006)
142 REPLY to Response to Motion re 124 MOTION to Compel Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Wilborn, Peter) (Entered: 12/11/2006)
143 RESPONSE in Opposition re 130 MOTION for Protective Order regarding Ken Hubbard Deposition Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 12/21/2006 (Attachments: # 1 Exhibit 1)(Wilkerson, John) (Entered: 12/11/2006)
144 MOTION to Appear Pro Hac Vice by Marcus Roland Patton ( Filing fee $ 250 receipt number 828575) by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 12/29/2006 (Attachments: # 1 Exhibit Application and Certificates of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Ralephata, Nosizi) (Entered: 12/11/2006)
145 ORDER granting 144 Motion for Marcus Roland Patton to Appear Pro Hac Vice on behalf of the defendants. Signed by Judge C Weston Houck on 12/13/06.(erav,). (Entered: 12/13/2006)
146 RESPONSE in Opposition re 135 MOTION for Protective Order re: Jeanerret's Work Product Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 1/2/2007 (Wilborn, Peter) (Entered: 12/18/2006)

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12/21/2006
12/21/2006 12/21/2006 12/22/2006 12/27/2006 12/27/2006 01/02/2007 01/03/2007 01/04/2007 01/05/2007
01/05/2007 01/12/2007 01/16/2007 01/16/2007

147 MOTION for Extension of Time to File Response/Reply as to 141 MOTION for Protective Order on Brian Kurtz's Deposition, 139 MOTION for Protective Order re: redeposing Phillip Clarke by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 1/8/2007 Proposed order is being emailed to chambers with copy to opposing counsel(Wilborn, Peter) (Entered: 12/21/2006)
148 REPLY to Response to Motion re 130 MOTION for Protective Order regarding Ken Hubbard Deposition Response filed by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Exhibit)(Wilborn, Peter) (Entered: 12/21/2006)
149 MOTION for Protective Order Regarding John Singleton's Deposition by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 1/8/2007 (Attachments: # 1 Exhibit # 2 Exhibit)Proposed order is being emailed to chambers with copy to opposing counsel(Wilborn, Peter) (Entered: 12/21/2006)
150 RESPONSE in Opposition re 140 MOTION for Protective Order Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 1/8/2007 (Attachments: # 1 Exhibit 1−2)(Wilkerson, John) (Entered: 12/22/2006)
151 ORDER granting 147 Motion for Extension of Time to File Response to 141 MOTION for Protective Order, 139 MOTION for Protective Order. Response to Motion due by 1/5/2007. Signed by Judge C Weston Houck on 12/27/06.(erav, ) (Entered: 12/27/2006)
***DOCUMENT MAILED 151 Order on Motion for Extension of Time to File Response placed in U.S. Mail to Gail A Jensen (erav, ) (Entered: 12/27/2006)
152 REPLY to Response to Motion re 135 MOTION for Protective Order re: Jeanerret's Work Product Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 01/02/2007)
153 MOTION to Compel by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 1/22/2007 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9)No proposed order(Wilborn, Peter) (Entered: 01/03/2007)
154 RESPONSE in Opposition re 139 MOTION for Protective Order re: redeposing Phillip Clarke Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 1/16/2007 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Wilborn, Peter) (Entered: 01/04/2007)
155 RESPONSE in Opposition re 141 MOTION for Protective Order on Brian Kurtz's Deposition Response filed by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 1/16/2007 (Attachments: # 1 Exhibit Exhibit 1# 2 Summons Exhibit 2(a)# 3 Exhibit Exhibit 2(b)# 4 Exhibit Exhibit 3# 5 Summons Exhibit 4)(Wilborn, Peter) (Entered: 01/05/2007)
156 Withdrawal of Motions: 140 MOTION for Protective Order filed by Gerald White, Ravenel, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons.. (Wilborn, Peter) (Entered: 01/05/2007)
157 MOTION to Stay Deadlines by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 2/1/2007 Proposed order is being emailed to chambers with copy to opposing counsel(Wilborn, Peter) (Entered: 01/12/2007)
159 REPLY to Response to Motion re 141 MOTION for Protective Order on Brian Kurtz's Deposition Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 01/16/2007)
160 REPLY to Response to Motion re 139 MOTION for Protective Order re: redeposing Phillip Clarke Response filed by Nucor Corporation, Nucor Steel Berkeley.

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01/16/2007 01/22/2007
01/22/2007 01/22/2007 01/23/2007 01/23/2007 02/01/2007 02/05/2007
02/06/2007 02/07/2007 02/08/2007

(Wilkerson, John) (Entered: 01/16/2007)
ENTRY DELETED: Doc #158 Reply. Corrected Filing Document Number: 160. Modified filing date to that of original filing: 1/16/07 (erav, ) (Entered: 01/16/2007)
161 NOTICE of Hearing on all pending Motions: 115 MOTION for Protective Order re Ferguson Deposition, 157 MOTION to Stay 135 MOTION for Protective Order re: Jeanerret's Work Product, 141 MOTION for Protective Order on Brian Kurtz's Deposition, 153 MOTION to Compel, 124 MOTION to Compel, 116 MOTION to Compel, 118 MOTION for Protective Order Prohibiting Deposition of DiMicco, 120 MOTION for Protective Order, 114 MOTION for Protective Order Regarding Inspection, 140 MOTION for Protective Order, 149 MOTION for Protective Order Regarding John Singleton's Deposition, 139 MOTION for Protective Order re: redeposing Phillip Clarke, 130 MOTION for Protective Order regarding Ken Hubbard Deposition : Motion Hearing set for 2/5/2007 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (erav, ) (Entered: 01/22/2007)
***DOCUMENT MAILED 161 Notice of Hearing on Motion, placed in U.S. Mail to Gail A Jensen (erav, ) (Entered: 01/22/2007)
162 RESPONSE in Opposition re 153 MOTION to Compel Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 2/1/2007 (Attachments: # 1 Exhibit A and B)(Wilkerson, John) (Entered: 01/22/2007)
163 NOTICE OF RESCHEDULED HEARING Originally set for 2/5/07 @ 11:00 A.M. cancelled and rescheduled to: Hearing on all Pending Motions: Hearing set for 2/5/2007 02:30 PM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (erav, ) (Entered: 01/23/2007)
***DOCUMENT MAILED 163 Notice of Rescheduled Hearing, placed in U.S. Mail to Gail A Jensen (erav, ) (Entered: 01/23/2007)
164 REPLY to Response to Motion re 153 MOTION to Compel Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Appendix A# 2 Appendix B# 3 Appendix C# 4 Appendix D# 5 Appendix E# 6 Appendix F# 7 Appendix G# 8 Appendix H# 9 Appendix I# 10 Appendix J# 11 Appendix K# 12 Appendix L# 13 Appendix M# 14 Appendix N)(Wilborn, Peter) (Entered: 02/01/2007)
165 Minute Entry. Proceedings held before Judge C Weston Houck: denying 114 Motion for Protective Order; denying 115 Motion for Protective Order; taking under advisement 116 Motion to Compel (Defendant's to submit 73 Affidavits); granting 118 Motion for Protective Order; denying 120 Motion for Protective Order; denying 124 Motion to Compel; granting 130 Motion for Protective Order; taking under advisement 135 Motion for Protective Order (Defendant's to submit expert reports, Defendant's to submit deposition of Dr. Jeanerret) ; denying 139 Motion for Protective Order; withdrawing 140 Motion for Protective Order; granting 141 Motion for Protective Order; finding as moot by agreement of parties 149 Motion for Protective Order; granting in part and denying in part 153 Motion to Compel (Defendant's to respond to answers to interrogatories within 15 days from the date of the hearing); granting 157 Motion to Stay Deadlines; Discovery extended for an additional 60 days, Plaintiff's granted an additional 15 days to file class certification brief, defendant's granted 15 days to respond. Motion Hearing held on 2/5/2007. Court Reporter Debbie Potocki. (erav,) (Entered: 02/06/2007)
166 DEPOSITION of P. Richard Jeanneret, Ph.D. taken on 11/21/06 by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Exhibit Jeanneret depo Part I# 2 Exhibit Jeanneret depo Part II)(Wilborn, Peter) (Entered: 02/06/2007)
167 TRANSCRIPT of Motion hearing, 76 pp., held on 2−5−07 before Judge C. Weston Houck. Court Reporter: Debra Potocki. (dpotocki, ) (Entered: 02/07/2007)
168 SUPPLEMENT by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 EEOC Guidelines# 2 Jeanneret's Report pages 1−33# 3 Jeanneret's report pages 34−59# 4 Buckley report)(Wilkerson, John) (Entered: 02/08/2007)

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02/14/2007
02/20/2007 02/26/2007 02/28/2007 02/28/2007 03/02/2007 03/02/2007 03/05/2007 03/05/2007 03/05/2007 03/14/2007 03/22/2007
04/13/2007 04/23/2007

169 MOTION to Strike /Exclude Defendants' Affidavits Taken from Class Members by Quinton Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 3/5/2007 (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7)Proposed order is being emailed to chambers with copy to opposing counsel(Derfner, Armand) (Entered: 02/14/2007)
170 MOTION for Extension of Time (Unopposed) by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 3/12/2007 No proposed order(Wilkerson, John) (Entered: 02/20/2007)
171 ORAL ORDER granting 170 unopposed motion to extend the time to respond to interrogatory number 6 of the plaintiffs' third set of interrogatories. Responses to the interrogatory are due on March 2, 2007. Signed by Judge C Weston Houck on 2/26/07.(wwil,) (Entered: 02/26/2007)
172 Consent MOTION to Withdraw as Attorney Sidney C. Watts, Gail A. Jensen, Adrian Villacorta, and Diana Brockman by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 3/19/2007 Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 02/28/2007)
173 Consent MOTION to Withdraw as Attorney Benjamin J. De Gweck by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 3/19/2007 Proposed order is being emailed to chambers with copy to opposing counsel(Wilborn, Peter) (Entered: 02/28/2007)
174 ORDER granting 172 Motion to Withdraw as Attorney Sidney C. Watts, Gail A. Jensen, Adrian Villacorta, and Diana Brockman. Signed by Judge C Weston Houck on 2/28/07.(jdod, ) Additional attachment(s) added on 3/5/2007 (erav, ). (Entered: 03/02/2007)
175 ORDER granting 173 Motion to Withdraw Benjamin K DeGweck as Attorney. Signed by Judge C Weston Houck on 3/1/07.(erav, ) (Entered: 03/05/2007)
DOCKET ANNOTATION − NO Correction by attorney required. Document #174 modified, correct order attached to entry. (erav, ) (Entered: 03/05/2007)
***DOCUMENT MAILED 175 Order on Motion to Withdraw as Attorney, 174 Order on Motion to Withdraw as Attorney placed in U.S. Mail to Gail A Jensen, Sidney C Watts (erav, ) (Entered: 03/05/2007)
176 RESPONSE in Opposition re 169 MOTION to Strike /Exclude Defendants' Affidavits Taken from Class Members Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 3/15/2007 (Wilkerson, John) (Entered: 03/05/2007)
177 MOTION for Extension of Time to File Response/Reply as to 176 Response in Opposition to Motion by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 4/2/2007 No proposed order(Wilborn, Peter) (Entered: 03/14/2007)
178 REPLY to Response to Motion re 169 MOTION to Strike /Exclude Defendants' Affidavits Taken from Class Members Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Exhibit Declaration of Bernard Beaufort# 2 Exhibit Declaration of Robyn Spann)(Derfner, Armand) (Entered: 03/22/2007)
181 Joint MOTION for Extension of Time to File Motion for Class Certification and Responsive Briefs by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 5/3/2007 No proposed order(Derfner, Armand) (Entered: 04/13/2007)
182 ORAL ORDER granting 181 Joint Motion for Extension of Time. The plaintiffs' motion for class certification is due on May 7, 2007. The defendants' response is due on June 5, 2007, and a reply is due on June 15, 2007. Signed by Judge C Weston Houck on 4/23/07.(wwil,) (Entered: 04/23/2007)

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05/07/2007
05/08/2007
05/08/2007 05/08/2007 05/08/2007 05/08/2007 05/08/2007 05/08/2007 05/08/2007 05/24/2007 06/01/2007 06/05/2007
06/05/2007

184 MOTION to Certify Class by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 5/25/2007 (Attachments: # 1 Memo in Support)No proposed order(Derfner, Armand) Modified on 5/9/2007 to reference Additional Attachments 185 (Exhibits 1−20), 186 (Exhibits 21−26B), 187 (Exhibits 27A−31), 188 (Exhibits 32A−34D), 190 (Exhibits 35A−36D), 191 (Exhibits 37A−39), 192 (Exhibits 40−44), 193 (Exhibits 45A−51) filed on 5/8/07 by Plaintiffs; Descriptive names for all Exhibits included with each main document filed(sshe, ). (Entered: 05/07/2007)
185 Additional Attachments to Main Document 184 MOTION to Certify Class Exhibit Vol. I. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7# 8 Exhibit Exhibit 8# 9 Exhibit Exhibit 9# 10 Exhibit Exhibit 10# 11 Exhibit Exhibit 11# 12 Exhibit Exhibit 12# 13 Exhibit Exhibit 13# 14 Exhibit Exhibit 14# 15 Exhibit Exhibit 15# 16 Exhibit Exhibit 16# 17 Exhibit Exhibit 17# 18 Exhibit Exhibit 18# 19 Exhibit Exhibit 19# 20 Exhibit Exhibit 20)(Derfner, Armand) (Entered: 05/08/2007)
186 Additional Attachments to Main Document 184 MOTION to Certify Class. (Attachments: # 1 Exhibit 21# 2 Exhibit 22# 3 Exhibit 23A# 4 Exhibit 23B# 5 Exhibit 23C# 6 Exhibit 24# 7 Exhibit 25# 8 Exhibit 26A# 9 Exhibit 26B)(Derfner, Armand) (Entered: 05/08/2007)
187 Additional Attachments to Main Document 184 MOTION to Certify Class. (Attachments: # 1 Exhibit 27A# 2 Exhibit 27B# 3 Exhibit 27C# 4 Exhibit 27D# 5 Exhibit 28# 6 Exhibit 29# 7 Exhibit 30# 8 Exhibit 31)(Derfner, Armand) (Entered: 05/08/2007)
188 Additional Attachments to Main Document 184 MOTION to Certify Class. (Attachments: # 1 Exhibit 32A# 2 Exhibit 32B# 3 Exhibit 32C# 4 Exhibit 33A# 5 Exhibit 33B# 6 Exhibit 33C# 7 Exhibit 34A# 8 Exhibit 34B# 9 Exhibit 34C# 10 Exhibit 34D)(Derfner, Armand) (Entered: 05/08/2007)
190 Additional Attachments to Main Document 184 MOTION to Certify Class. (Attachments: # 1 Exhibit 35A# 2 Exhibit 35B# 3 Exhibit 35C# 4 Exhibit 35D# 5 Exhibit 36A# 6 Exhibit 36B# 7 Exhibit 36C# 8 Exhibit 36D)(Derfner, Armand) (Entered: 05/08/2007)
191 Additional Attachments to Main Document 184 MOTION to Certify Class. (Attachments: # 1 Exhibit 37A# 2 Exhibit 37B# 3 Exhibit 37C# 4 Exhibit 37D# 5 Exhibit 38# 6 Exhibit 39)(Derfner, Armand) (Entered: 05/08/2007)
192 Additional Attachments to Main Document 184 MOTION to Certify Class. (Attachments: # 1 Exhibit 40# 2 Exhibit 41# 3 Exhibit 42# 4 Exhibit 43# 5 Exhibit 44)(Derfner, Armand) (Entered: 05/08/2007)
193 Additional Attachments to Main Document 184 MOTION to Certify Class. (Attachments: # 1 Exhibit 45A# 2 Exhibit 45B# 3 Exhibit 45C# 4 Exhibit 46A# 5 Exhibit 46B# 6 Exhibit 46C# 7 Summons 46D# 8 Exhibit 47# 9 Exhibit 48# 10 Exhibit 49# 11 Exhibit 50# 12 Exhibit 51)(Derfner, Armand) (Entered: 05/08/2007)
194 MOTION for Leave to File Excess Pages by Nucor Corporation, Nucor Steel Berkeley.Response to Motion due by 6/11/2007 No proposed order(Wilkerson, John) (Entered: 05/24/2007)
196 ORAL ORDER granting 194 Motion for Leave to File a brief up to 60 pages. Plaintiffs also have the right to file a brief up to 60 pages. Signed by Judge C Weston Houck on 6/1/07.(wwil,) (Entered: 06/01/2007)
197 RESPONSE in Opposition re 184 MOTION to Certify Class Exhibits 5 − 39 to be filed as Supplement Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 6/15/2007 (Attachments: # 1 Exhibit 1 and 2 # 2 Exhibit 3 and 4)(Wilkerson, John) Modified on 6/7/2007 to reference Additional Attachments 198 , 199 filed on 6/5/07 and 200 , 201 , 202 , 203 , 204 , 205 , 206 , 207 filed on 6/6/07; 207 includes Exhibit List, Table of Authorities, Table of Contents(sshe, ). (Entered: 06/05/2007)
198 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 5 Part 1# 2 Exhibit 5 Part 2# 3 Exhibit 6A−H# 4 Exhibit

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06/05/2007 06/06/2007 06/06/2007 06/06/2007 06/06/2007 06/06/2007 06/06/2007 06/06/2007 06/06/2007 06/12/2007
06/14/2007
06/22/2007 06/22/2007

6I−M# 5 Exhibit 6N−Q# 6 Exhibit 6Q−U# 7 Exhibit 6V−Y# 8 Exhibit 6Z−DD)(Wilkerson, John) (Entered: 06/05/2007)
199 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 6EE−HH# 2 Exhibit 6II−LL# 3 Exhibit 6MM−RR# 4 Exhibit 6SS−YY# 5 Exhibit 6ZZ−EEE)(Wilkerson, John) (Entered: 06/05/2007)
200 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 6FFF−III# 2 Exhibit 6JJJ−NNN# 3 Exhibit 6OOO−SSS# 4 Exhibit 6TTT−WWW# 5 Exhibit 6XXX−BBBB)(Wilkerson, John) (Entered: 06/06/2007)
201 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 7−14# 2 Exhibit 15)(Wilkerson, John) (Entered: 06/06/2007)
202 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 16 Part 1# 2 Exhibit 16 Part 2# 3 Exhibit 16 Part 3# 4 Exhibit 16 Part 4)(Wilkerson, John) (Entered: 06/06/2007)
203 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 16 Part 5# 2 Exhibit 16 Part 6# 3 Exhibit 16 Part 7# 4 Exhibit 16 Part 8)(Wilkerson, John) (Entered: 06/06/2007)
204 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 16 Part 9# 2 Exhibit 16 Part 10# 3 Exhibit 16 Part 11# 4 Exhibit 17 and 18)(Wilkerson, John) (Entered: 06/06/2007)
205 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 19, 20, and 21# 2 Exhibit 22, 23, 24, 25 and 26# 3 Exhibit 27, 28, 29 and 30# 4 Exhibit 31, 32 and 33)(Wilkerson, John) (Entered: 06/06/2007)
206 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Exhibit 34# 2 Exhibit 35 and 36# 3 Exhibit 37, 38 and 39)(Wilkerson, John) (Entered: 06/06/2007)
207 Additional Attachments to Main Document 197 Response in Opposition to Motion,. (Attachments: # 1 Addendum Exhibit List# 2 Addendum Table of Authorities# 3 Addendum Table of Contents)(Wilkerson, John) (Entered: 06/06/2007)
209 MOTION for Extension of Time to File Response/Reply as to 197 Response in Opposition to Motion,, by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 7/2/2007 Proposed order is being emailed to chambers with copy to opposing counsel(Derfner, Armand) (Entered: 06/12/2007)
210 ORDER granting 209 Motion for Extension of Time to File Response/Reply as to 197 Response in Opposition to Motion that Plaintiffs have until Friday, June 22, 2007 to file their response to the Defendants' Response to Plaintiffs' Motion for Class Certification (Document 197); Replies due by 6/22/2007. Signed by Judge C Weston Houck on 6/13/07.(sshe, ) (Entered: 06/14/2007)
212 MOTION for Leave to File Excess Pages For Reply Brief by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 7/12/2007 Proposed order is being emailed to chambers with copy to opposing counsel(Derfner, Armand) (Entered: 06/22/2007)
213 REPLY to Response to Motion re 184 MOTION to Certify Class Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Exhibit 52# 2 Exhibit 53# 3 Exhibit 54# 4 Exhibit 55# 5 Exhibit 56# 6 Exhibit 57# 7 Exhibit 58# 8 Exhibit 59# 9 Exhibit 60# 10 Exhibit 61# 11 Exhibit 62# 12 Exhibit 63# 13 Exhibit 64# 14 Exhibit 65# 15 Exhibit 66# 16 Exhibit 67# 17 Exhibit 68# 18 Exhibit 69# 19 Exhibit 70# 20 Exhibit 71# 21 Exhibit 71A# 22 Exhibit 71B# 23 Exhibit 71C# 24 Exhibit 71D# 25 Exhibit 71E# 26 Exhibit 71F# 27 Exhibit 71G# 28 Exhibit 71H# 29 Exhibit 71I# 30 Exhibit 71J# 31 Exhibit 71K# 32 Exhibit 71L# 33 Exhibit 72# 34 Exhibit 73# 35 Exhibit 74 VOL. I# 36 Exhibit 74 VOL. II# 37 Exhibit 75 VOL. I# 38 Exhibit 75 VOL. 2)(Derfner, Armand) (Entered: 06/22/2007)

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06/28/2007 07/03/2007 07/05/2007 07/13/2007
07/17/2007 07/20/2007
08/07/2007 08/07/2007 08/16/2007 08/17/2007
08/17/2007 08/21/2007 09/10/2007 09/20/2007 10/01/2007

214 CERTIFICATE OF CONSULTATION byQuinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White re 212 MOTION for Leave to File Excess Pages For Reply Brief. (Derfner, Armand) (Entered: 06/28/2007)
215 NOTICE of Hearing on Motion 184 MOTION to Certify Class: Motion Hearing set for 7/18/2007 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (erav, ) (Entered: 07/03/2007)
216 MOTION for Leave to File Sur−Reply by Nucor Corporation.Response to Motion due by 7/23/2007 (Attachments: # 1 Memo in Support Sur−Reply)No proposed order(Wilkerson, John) (Entered: 07/05/2007)
218 NOTICE OF RESCHEDULED HEARING on 184 MOTION to Certify Class Motion Hearing 7/18/2007 11:00 AM CANCELLED AND RESCHEDULED to: Motion Hearing set for 7/19/2007 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (sshe, ) (Entered: 07/13/2007)
219 RESPONSE in Opposition re 216 MOTION for Leave to File Sur−Reply Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 7/27/2007 (Derfner, Armand) (Entered: 07/17/2007)
220 Minute Entry. Proceedings held before Judge C Weston Houck : Finding as Moot 116 Motion to Compel filed by Plaintiffs. Finding as Moot 135 Motion for Protective Order filed by Defendants. Denying 169 Motion to Strike filed by Defendants. Taking Under Advisement 184 Motion to Certify Class filed by Plaintiffs; Motion Hearing held on 7/20/2007. Court Reporter Amy Diaz. (jdod, ) (Entered: 07/20/2007)
223 ORDER finding as moot 212 Motion for Leave to File Excess Pages; finding as moot 216 Motion for Leave to File Signed by Judge C Weston Houck on 8/7/07.(wwil,) (Entered: 08/07/2007)
224 ORDER denying 184 Motion to Certify Class Signed by Judge C Weston Houck on 8/7/07.(wwil,) (Entered: 08/07/2007)
225 TRANSCRIPT (Unredacted) of Motion Hearing held on July 19, 2007 before Judge C. Weston Houck. Court Reporter: Amy Diaz. (adia, ) (Entered: 08/16/2007)
226 AMENDED SCHEDULING ORDER Amended Pleadings due by 10/1/2007, Plaintiffs ID of Expert Witness due by 10/1/2007, Defendants ID of Expert Witnesses Due by 11/1/2007, Discovery due by 12/1/2007, Motions due by 12/16/2007, Case ready for trial no later than 2/4/2008, ADR Statement due by 1/1/2008, Mediation Due by 1/1/2008.Details set forth in Order. Signed by Judge C Weston Houck on 8/16/07. (sshe, ) Modified text for typo on 8/17/2007 (sshe, ). (Entered: 08/17/2007)
227 DOCKET ANNOTATION − NO Correction by attorney required. Clerk corrected for typo 226 Amended Scheduling Order docket text to read Case ready for trial no later than 2/4/2008, not 2/4/2007 (sshe, ) (Entered: 08/17/2007)
228 MOTION for Reconsideration re 224 Order on Motion to Certify Class by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 9/10/2007 No proposed order(Derfner, Armand) (Entered: 08/21/2007)
229 RESPONSE in Opposition re 228 MOTION for Reconsideration re 224 Order on Motion to Certify Class Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 9/20/2007 (Wilkerson, John) (Entered: 09/10/2007)
230 REPLY to Response to Motion re 228 MOTION for Reconsideration re 224 Order on Motion to Certify Class Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. (Derfner, Armand) (Entered: 09/20/2007)
231 MOTION to Intervene by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 10/19/2007 (Attachments: # 1 Complaint in Intervention)Proposed order is being emailed to chambers with copy to opposing counsel(Derfner, Armand) (Entered: 10/01/2007)

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10/01/2007 10/03/2007 10/08/2007 10/19/2007 10/23/2007
10/24/2007 10/31/2007 11/09/2007 11/21/2007 11/30/2007 11/30/2007 12/18/2007 12/20/2007 01/03/2008 01/08/2008

232 MOTION for Extension of Time to Comply with FCRP 26(a)(2) by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 10/19/2007 Proposed order is being emailed to chambers with copy to opposing counsel(Derfner, Armand) (Entered: 10/01/2007)
235 ORDER granting 232 Plaintiffs' Unopposed Motion for Extension of Time to comply with FRCP 26(a)(2). Plaintiffs will have until October 8, 2007. Signed by Judge C Weston Houck on 10/1/07.(sshe, ) (Entered: 10/03/2007)
237 PLAINTIFF'S ID OF EXPERT WITNESSES − NOTICE OF COMPLIANCE WITH FED. R. CIV. PRO. 26(a)(2) by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.(Derfner, Armand) (Entered: 10/08/2007)
239 RESPONSE in Opposition re 231 MOTION to Intervene Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 10/29/2007 (Attachments: # 1 Exhibit A and B)(Wilkerson, John) (Entered: 10/19/2007)
240 MOTION for Extension of Time to File Response/Reply as to 239 Response in Opposition to Motion, 231 MOTION to Intervene by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White.Response to Motion due by 11/13/2007 Proposed order is being emailed to chambers with copy to opposing counsel(Derfner, Armand) (Entered: 10/23/2007)
241 ORAL ORDER granting 240 Motion for Extension of Time to File Response/Reply. (jebe) (Entered: 10/24/2007)
242 DEFENDANT'S ID OF EXPERT WITNESSES by Nucor Corporation, Nucor Steel Berkeley.(Wilkerson, John) (Entered: 10/31/2007)
244 REPLY to Response to Motion re 231 MOTION to Intervene Response filed by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. (Derfner, Armand) (Entered: 11/09/2007)
245 MOTION to Stay Current Deadlines or in the Alternative, Motion for Permission to Re−Depose Proposed Intervenors and Motion to Compel Discovery from Proposed Intervenors by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 12/10/2007 No proposed order(Wilkerson, John) (Entered: 11/21/2007)
246 NOTICE of Hearing: Bar Meeting set for 1/3/2008 10:00 AM in Charleston Courtroom #6, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. Jury Selection set for 2/4/2008 10:00AM before Honorable C Weston Houck (sshe, ) (Entered: 11/30/2007)
247 ORDER that the Court hereby stays all deadlines in this case, and upon issuance of an order resolving the outstanding issues regarding certification and intervention will set a status conference to set new deadlines in this matter; granting 245 Motion to Stay Signed by Honorable C Weston Houck on 11/30/07.(sshe, ) (Entered: 11/30/2007)
250 NOTICE of Hearing on Motion 231 MOTION to Intervene : Motion Hearing set for 1/8/2008 11:00 AM in Charleston Courtroom #6, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (sshe, ) (Entered: 12/18/2007)
251 NOTICE OF RESCHEDULED HEARING Motion Hearing 1/8/2008 11:00 AM cancelled and rescheduled to: Motion Hearing set for 1/11/2008 11:00 AM in Charleston Courtroom #6, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (sshe, ) (Entered: 12/20/2007)
252 Minute Entry. Proceedings held before Honorable C Weston Houck: Bar Meeting held on 1/3/2008. Case continued to May term of Court. ( Jury Selection Deadline 5/1/2008,). Court Reporter E. Ravenel, FTR. (jdod, ) Modified to edit text on 1/3/2008 (jdod, ). (Entered: 01/03/2008)
253 MOTION to Appear Pro Hac Vice by David M. Minces ( Filing fee $ 250 receipt number 04200000000001318158) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 1/28/2008 (Attachments: # 1 Affidavit Application for Admission, # 2 Certificate in Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 01/08/2008)

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01/08/2008 01/10/2008 01/10/2008 01/11/2008 01/11/2008 01/18/2008 01/29/2008
01/29/2008 01/29/2008
01/29/2008
01/29/2008

254 MOTION to Withdraw as Attorney Relieving O. Mishell Parreno as counsel by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 1/28/2008 Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 01/08/2008)
255 ORDER granting 254 Motion for O Mishell Parreno to Withdraw as Attorney. Signed by Honorable C Weston Houck on 1/9/08.(jwol, ) (Entered: 01/10/2008)
256 ORDER granting 253 Motion for David M Minces to Appear Pro Hac Vice Signed by Honorable C Weston Houck on 1/9/08.(jwol, ) (Entered: 01/10/2008)
257 Minute Entry. Proceedings held before Honorable C Weston Houck: Denying 231 Motion to Intervene filed by Gerald White, Ravenel, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons.; Motion Hearing held on 1/11/2008 filed by Gerald White, Ravenel, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons Court Reporter Amy Diaz. (jdod, ) (Entered: 01/11/2008)
259 ORDER denying 228 Motion for Reconsideration Signed by Honorable C Weston Houck on 1/11/08.(jwol, ) (Entered: 01/11/2008)
260 TRANSCRIPT (Unredacted) of Motion Hearing held on January 11, 2008 before Judge C. Weston Houck. Court Reporter: Amy Diaz. (adia, ) (Entered: 01/18/2008)
261 MOTION to Exclude Plaintiffs' Expert Witnesses by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/19/2008 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1 − Bradley/Fox Expert Report, # 3 Exhibit 2 − Bradley Deposition, # 4 Exhibit 3 − Part 1 of Fox Deposition, # 5 Exhibit 3 − Part 2 of Fox Deposition, # 6 Exhibit 3 − Part 3 of Fox Deposition, # 7 Exhibit 4 − Welch Report, # 8 Exhibit 4 − Bradley Declaration, # 9 Exhibit Bradley CV, # 10 Exhibit 7 − Fox CV, # 11 Exhibit 8 − Buckley Report, # 12 Exhibit 9 − Buckley Deposition)No proposed order(Wilkerson, John) (Entered: 01/29/2008)
262 MOTION for Summary Judgment on Plaintiffs' Pattern and Practice and Disparate Impact Claims by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/19/2008 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1 − Fox Deposition, # 3 Exhibit 2 − Welch Report, # 4 Exhibit 3 − Examples of Change of Status Forms, # 5 Exhibit 4 − Welch Supplemental Report, # 6 Exhibit 5 − Plaintiffs' EEOC Claims)No proposed order(Wilkerson, John) (Entered: 01/29/2008)
263 MOTION for Summary Judgment as to Sheldon Singletary by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/19/2008 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1 − Employee Handbook Acknowledgment Form, # 3 Exhibit 2 − Absence Policy, # 4 Exhibit Ray Billbrough's Change of Status Form, # 5 Exhibit 4 − Excerpts of Deposition of Sheldon Singletary, # 6 Exhibit 5 − Singletary's Warnings, Counselings and Termination Notice, # 7 Exhibit 6 − Order Transferring Case, # 8 Exhibit 7 − Third Amended Complaint, # 9 Exhibit Declaration of Sheldon Singletary, # 10 Exhibit Sheldon Singletary's EEOC Charges, # 11 Exhibit Policy Statement on Harassment, # 12 Exhibit 11 − Affidavit of Meleah Reynolds)No proposed order(Wilkerson, John) (Entered: 01/29/2008)
264 MOTION for Summary Judgment as to Quinton Brown by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/19/2008 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1 − Third Amended Complaint, # 3 Exhibit 2 − Brown's Change of Status, # 4 Exhibit Brown's Disciplinary Records, # 5 Exhibit 4 − Declaration of Quinton Brown, # 6 Exhibit 5− Excerpts of the Deposition of Quinton Brown, # 7 Exhibit 6 − Second Affidavit of P. Ferguson, # 8 Exhibit Brown's EEOC Charges, # 9 Exhibit 8 − Affidavit of Meleah Reynolds, # 10 Exhibit 9 − Affidavit of Robert Schwartz, # 11 Exhibit 10 − Employee Manual Acknowledgement Forms, # 12 Exhibit 11 − Employee Handbook 1997 Policy Statement on Harassment, # 13 Exhibit 12 − Employee Handbook 2002 Policy Statement on Harassment)No proposed order(Wilkerson, John) (Entered: 01/29/2008)
265 MOTION for Summary Judgment by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/19/2008 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1 − Third Amended Complaint, # 3 Exhibit 2 − Declaration of Jacob Ravenell, # 4 Exhibit 3 − Affidavit of Jacob Ravenell, # 5 Exhibit 4 Part 1 − Ravenell Deposition, # 6 Exhibit 4 Part 2 − Ravenell Deposition, # 7 Exhibit 5 − Second

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01/29/2008 01/29/2008

Affidavit of Al Smith, # 8 Exhibit 6 − Ravenell Application for Transfer, # 9 Exhibit 7 − Exit Operator Reversing MIll Job Posting, # 10 Exhibit 8 − Exit Operator Reversing Mill Applications, # 11 Exhibit 9 − Tilman Change of Status Form, # 12 Exhibit 10−Ravenell Application for Transfer, # 13 Exhibit 11 − Reversing Mill Entry Operator Applications, # 14 Exhibit 12 − Reversing Mill Entry Operator Job Posting, # 15 Exhibit 13 − Kolesar Change of Status Form, # 16 Exhibit 14 − Employee Handbook 1997 Policy Statement on Harassment, # 17 Exhibit 16 − Employee Handbook 2002 Policy Statement on Harassment, # 18 Exhibit 15 − Employee Handbook 1997 Policy Statement on Harassment)No proposed order(Wilkerson, John) (Entered: 01/29/2008)
266 MOTION for Summary Judgment as to Alvin Simmons ( Response to Motion due by 2/19/2008) by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1 − Declaration of Alvin Simmons, # 3 Exhibit 2 − Excerpts of the Deposition of Alvin Simmons, # 4 Exhibit 3 − Disciplinary Records of Alvin Simmons, # 5 Exhibit 4 − Order Severing and Tranferring case to this Court, # 6 Exhibit 5 − Third Amended Complaint, # 7 Exhibit 6 − Alvin Simmons Application for Transfer, # 8 Exhibit 7 − Second Affidavit of Paul Ferguson, # 9 Exhibit 8 − 8.Beam Mill−Mill Adjuster Job Posting, # 10 Exhibit 9 − Affidavit of Sean McCarthy, # 11 Exhibit 10−Affidavit of Robert Schwartz, # 12 Exhibit 11.Alvin Simmons Application for Transfer (Mill Inspector Position), # 13 Exhibit 12.Affidavit of Gary Henderson, # 14 Exhibit 13.Beam Mill−Mill Inspector Position Job Posting, # 15 Exhibit 14.Alvin Simmonss Counseling Notice, July 15, 2000, # 16 Exhibit 15.Alvin Simmons Application for Transfer (Mill Adjuster), # 17 Exhibit 16.Beam Mill−Mill Adjuster Job Posting, March 19, 2004, # 18 Exhibit 17.Alvin Simmons Application for Transfer (CP1 Operator Position), # 19 Exhibit 18.Beam Mill− CP1 Operator Job Posting, # 20 Exhibit 19.Alvin Simmons Application for Transfer (Finishing Stacker Position), # 21 Exhibit 20.Beam Mill−Finishing Stacker Operator Job Posting, # 22 Exhibit 21.Alvin Simmons Application for Transfer (Strand Tender), # 23 Exhibit 22.Excerpts of the Deposition of John Bell, # 24 Exhibit 23.Change of Status Form for Randy Tisdale, # 25 Exhibit 24.Melt Shop−Stand Tender Job Posting, # 26 Exhibit 25.Randy Tisdale Evaluation forms, # 27 Exhibit 26.Randy Tisdale Change of Status Form, # 28 Exhibit 27.Randy Tisdales Training records, # 29 Exhibit 28.Alvin Simmons Application for Transfer (Strand Tender Position), # 30 Exhibit 29.Change of Status Form for Bryan Daniels, # 31 Exhibit 30.Alvin Simmons Application for Transfer (Coiler Technician Position), # 32 Exhibit 31.Second Affidavit of Barry Thad Solomon, # 33 Exhibit 32.1997 Employee Handbook (harassment policy), # 34 Exhibit 33.2002 Employee Handbook (harassment policy), # 35 Exhibit 34.Alvin Simmons EEOC Charge, # 36 Exhibit 35.Affidavit of Meleah Reynolds, # 37 Exhibit 36.Alvin Simmons Employee Acknowledgment forms, # 38 Exhibit 37.Hot Mill−Coiler Technician Job Posting)No proposed order(Wilkerson, John) Modified on 2/4/2008 (jwol, ). (Entered: 01/29/2008)
267 MOTION for Summary Judgment as to Ramon Roane by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/19/2008 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1. Part 1Deposition of Ramon Roane, # 3 Exhibit 1. Part 2Deposition of Ramon Roane, # 4 Exhibit 2.Declaration of Ramon Roane, # 5 Exhibit 3.Rolling Mill Supervisor Position Applications for Transfer, # 6 Exhibit 4.Second Affidavit of Paul Ferguson, # 7 Exhibit 5.Mill Adjustor Position Applications for Transfer Feb. 2001, # 8 Exhibit 6.Ramon Roanes Application for Transfer March 6, 2001, # 9 Exhibit 7.Change of Status Form for Matt Blitch, # 10 Exhibit Steel Counseling Form Issued to Ramon Roane 09/23/02, # 11 Exhibit 9.Disciplinary Write−Ups and Employee Evaluations for Matt Blitch, # 12 Exhibit 10.Disciplinary Write−Ups and Employee Evaluations for Ramon Roane, # 13 Exhibit Mill Adjustor Position Applications for Transfer November 9, 2001, # 14 Exhibit 12. Ramon Roanes Application for Transfer to the Stand Assembly Operator Position, # 15 Exhibit 13.Stand Assembly Shop Supervisor Position Applications for Transfer, # 16 Exhibit 14.Jerry Hermanns Change of Status Form, # 17 Exhibit 15.Job Posting for Stand Assembly Shop Supervisor Position, # 18 Exhibit 16.Ray Roanes First EEOC Charge, # 19 Exhibit 17.Ramon Roanes Second EEOC Charge, # 20 Exhibit 18.1997 Nucor Steel Berkeleys Anti−Harassment Policy, # 21 Exhibit 19.2002 Nucor Steel Berkeleys Anti−Harassment Policy, # 22 Exhibit 20.Affidavit of Robert Schwartz, # 23 Exhibit 21.Affidavit of Sean McCarthy, # 24 Exhibit 22.Plaintiffs Third Amended Complaint, # 25 Exhibit 23.Ramon Roanes Handbook Acknowledgement Forms, # 26 Exhibit 24.Affidavit of Meleah Reynolds)No proposed order(Wilkerson, John) (Entered:

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01/29/2008
01/29/2008
01/30/2008 02/07/2008 02/08/2008 02/12/2008

01/29/2008)
268 MOTION for Summary Judgment as to Gerald White by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/19/2008 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1. Gerald White Change of Status, # 3 Exhibit 2. Gerald White Change of Status, # 4 Exhibit 3. Counseling Records of Gerald White, # 5 Exhibit 4. Termination Notice Gerald White, # 6 Exhibit 5. Termination Notice Gerald White, # 7 Exhibit 6. Gerald White Deposition Excerpts, # 8 Exhibit 7. Gerald Whites Answers to Defendants First Interrogatories, # 9 Exhibit 8. Jerry Hermann Change of Status, # 10 Exhibit 9. Second Affidavit of Paul Ferguson, # 11 Exhibit 10. Jeffrey Durand Change of Status, # 12 Exhibit 11. Employee Handbook Acknowledgement Forms, # 13 Exhibit 12. Employee Handbook 1997 Policy Statement on Harassment, # 14 Exhibit 13. Employee Handbook 2002 Policy Statement on Harassment, # 15 Exhibit 14. Gerald Whites EEOC Charges, # 16 Exhibit 15. Affidavit of Meleah Reynolds, # 17 Exhibit 16. Third Amended Complaint, # 18 Exhibit 17. Affidavit of Robert E. Schwartz, # 19 Exhibit 18. Affidavit of Jerry Hermann)No proposed order(Wilkerson, John) (Entered: 01/29/2008)
269 MOTION for Summary Judgment as to Jason Guy by Nucor Corporation, Nucor Steel Berkeley. Additional attachments document # 270. Response to Motion due by 2/19/2008 (Attachments: # 1 Exhibit 1. Third Amended Complaint, # 2 Exhibit 2.Declaration of Jason Guy, # 3 Exhibit 3. Change of Status Forms for Jason Guy, # 4 Exhibit 4.Jason Guys Warnings, Counselings and Termination Notice, # 5 Exhibit 5.Order Severing and Transfering cases to this Court, # 6 Exhibit 6.Excerpts from Deposition of Jason Guy, (Guy Depo), # 7 Exhibit 7.Jason Guy Application for Transfer (Mill Inspector), # 8 Exhibit 8.Beam Mill−Mill Inspector Job Posting, # 9 Exhibit 9.Second Affidavit of Paul Ferguson, # 10 Exhibit 10.Jason Guy Application for Transfer (Furnace Recorder), # 11 Exhibit 11.Beam Mill−Furnace Recorder Job Posting, # 12 Exhibit 12.Jason Guy Application for Transfer (Mill Inspector), # 13 Exhibit 13.Affidavit of Sean McCarthy, # 14 Exhibit 14.Beam Mill−Mill Inspector Job Posting, # 15 Exhibit 15.Jason Guy Application for Transfer (Mill Inspector), # 16 Exhibit 16.Beam Mill−Mill Inspector Job Posting, # 17 Exhibit 17.Jason Guy Application for Transfer (Finishing Stacker Operator), # 18 Exhibit 18.Beam Mill−Finishing Stacker Operator Job Posting, # 19 Exhibit 19.Jason Guy Application for Transfer (Straightener Operator), # 20 Exhibit 20.Beam Mill−Straightener Operator Job Posting, # 21 Exhibit 21.Jason Guy Application for Transfer (Lead Inspector), # 22 Exhibit 23.Jason Guy Application for Transfer (#2 Utility Man), # 23 Exhibit 24.Cold Mill−#2 Utility Man Reversing Mill Job Posting, # 24 Exhibit 25.Jason Guy Application for Transfer (Ladle Wall Helper), # 25 Exhibit 26.Melt Shop Ladle Wall Helper Job Posting, # 26 Exhibit 27.Second Affidavit of Darin Reynolds, # 27 Exhibit 28.Second Affidavit of Al Smith, # 28 Exhibit 29.Affidavit of Kenneth Hubbard, # 29 Exhibit 30.Affidavit of Robyn Spann, # 30 Exhibit 31.Jason Guys EEOC Charge, # 31 Exhibit 32.1997 Policy Statement on Harassment, # 32 Exhibit 33.Affidavit of Paul Ferguson, # 33 Exhibit 34.Affidavit of Robert E. Schwartz, # 34 Exhibit 35.Affidavit of Gary Henderson, # 35 Exhibit 36.Affidavit of Maleah Reynolds, # 36 Exhibit 37.Nucors Disciplinary Policy for Violations of Work and/or Safety Rules, # 37 Addendum Exhibit List)No proposed order(Wilkerson, John) Modified on 1/31/2008 (jwol, ). (Entered: 01/29/2008)
270 Additional Attachments to Main Document 269 MOTION for Summary Judgment as to Jason Guy Exhibit 22 − Beam Mill Lead Inspector Job Posting. (Wilkerson, John) (Entered: 01/30/2008)
271 ORDER Pursuant to Local Civil Rule 73.02(B)(2)(g), the Court refers the remaining pretrial proceedings to a Magistrate Judge. Magistrate Judge Robert S Carr added. Signed by Honorable C Weston Houck on 2/6/2008. (sshe, ) (Entered: 02/07/2008)
272 ORAL ORDER REFERRING CASE to Magistrate Judge George C Kosko. Magistrate Judge Robert S Carr no longer assigned to case. Per C Weston Houck. (jwol, ) (Entered: 02/08/2008)
273 MOTION to Withdraw as Attorney Relieving Brandon D. Mosley as counsel of record by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 3/3/2008 Proposed order is being emailed to chambers with copy to opposing counselMotions referred to George C Kosko.(Wilkerson, John) (Entered: 02/12/2008)

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02/13/2008 02/20/2008
02/27/2008 03/03/2008
03/03/2008 03/03/2008 03/04/2008
03/05/2008
03/11/2008 03/12/2008 03/12/2008 03/18/2008 04/03/2008 05/05/2009 06/23/2009

274 ORDER granting 273 Motion to Withdraw as Attorney. Brandon D. Mosley is relieved as counsel for Defendants. Signed by Magistrate Judge George C Kosko on 2/13/08.(rpol, ) (Entered: 02/13/2008)
276 ORDER granting a twenty one (21) day period in which to file a response. Plaintiffs' responsive memoranda shall be filed with this Court on or beforeMarch 11,2008. Defendants' Reply to Plaintiffs' response, if any, must be filed with this Court within twenty one (21) days from date on which Plaintiffs' responsive memoranda is served. Signed by Honorable C Weston Houck on 2/19/08. (rpol, ) (Entered: 02/20/2008)
277 ORDER for Joint Factual Brief. Content and scheduling details outlined in Order. Signed by Magistrate Judge George C Kosko on 2/27/08. (rpol, ) (Entered: 02/27/2008)
278 NOTICE OF INTERLOCUTORY APPEAL "Plaintiffs' Petition For Permission To Appeal Pursuant to FRCP 23(f)" filed 1/28/2008 with 4CCA as to 224 Order denying Motion to Certify Class by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. The Docketing Statement form, Transcript Order form, and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov. No fee paid. (sshe, ) (Entered: 03/03/2008)
280 ORDER of USCA as to 278 Notice of Interlocutory Appeal, filed by Gerald White, Ravenel, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons. The 4CCA grants plaintiffs' petition for permission to appeal the denial of the class certification motion. (sshe, ) (Entered: 03/03/2008)
283 Appeal Remark re 278 Notice of Interlocutory Appeal: Fee Notice − Fee or IFP Motion due to District Court by 3/18/2008. (sshe, ) (Entered: 03/03/2008)
284 NOTICE of Bar Meeting set for Tuesday, 3/25/2008 10:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. Jury Selection set for 5/5/2008 10:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck (jwol, ) (jwol, ). (Entered: 03/04/2008)
286 MOTION to Stay or Continue Pending Appeal by Quinton Brown, Jason Guy, Ramon Roane, Ravenel, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 3/24/2008 Proposed order is being emailed to chambers with copy to opposing counselMotions referred to George C Kosko.(Derfner, Armand) (Entered: 03/05/2008)
287 MOTION for Extension of Time by Quinton Brown. Response to Motion due by 3/31/2008 Proposed order is being emailed to chambers with copy to opposing counselMotions referred to George C Kosko.(Wilborn, Peter) (Entered: 03/11/2008)
288 ORAL ORDER granting 287 Motion for Extension of Time to respond to Defendants' motions for summary judgment until March 31, 2008. Signed by Magistrate Judge George C Kosko on 03/12/08.(elac, ) (Entered: 03/12/2008)
289 USCA Appeal Fees received $ 455 receipt number SCX200005785 re 278 Notice of Interlocutory Appeal, filed by Gerald White, Ravenel, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons (sshe, ) (Entered: 03/12/2008)
291 ORDER granting 286 Motion to Stay or Continue Proceedings pending appeal. Signed by Honorable C Weston Houck on 3/17/08.(jwol, ) (Entered: 03/18/2008)
ASSEMBLED INITIAL ELECTRONIC RECORD TRANSMITTED TO FOURTH CIRCUIT COURT OF APPEALS re 278 Notice of Interlocutory Appeal, Electronic record successfully transmitted. (ltap, ) (Entered: 04/03/2008)
292 ORAL ORDER granting John S Wilkerson III protection from court appearances for the period of time from 7/25/09 through 8/3/09. Entered by Honorable C Weston Houck on 5/5/09. (jwol, ) (Entered: 05/05/2009)
293 MOTION to Withdraw as Attorney David M. Minces, Marcus Roland Patton and MIcah Seth Heilburn by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 7/13/2009 Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 06/23/2009)

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06/23/2009 06/30/2009 07/08/2009
07/10/2009 08/11/2009 08/11/2009 08/17/2009 08/24/2009 10/19/2009 10/19/2009 10/22/2009
11/09/2009 11/20/2009 01/25/2010 02/03/2010 02/03/2010

295 DELETION OF ENTRY NUMBER 294 Reason: deletion of motion per conversation with attorney (jwol, ) (Entered: 06/23/2009)
296 ORDER granting 293 Motion to Withdraw as Attorney. Signed by Honorable C Weston Houck on 6/30/09.(jwol, ) (Entered: 06/30/2009)
298 MOTION to Appear Pro Hac Vice by Brian G. Patterson ( Filing fee $ 250 receipt number 04200000000002179982) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 7/27/2009 (Attachments: # 1 Addendum Application, # 2 Addendum Letter of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 07/08/2009)
299 ORDER granting 298 Motion for Brian G Patterson to Appear Pro Hac Vice Signed by Honorable C Weston Houck on 7/9/09.(jwol, ) (Entered: 07/10/2009)
301 USCA OPINION vacating and remanding 278 Notice of Interlocutory Appeal, filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons. (jwol, ) (Entered: 08/11/2009)
302 USCA JUDGMENT as to 278 Notice of Interlocutory Appeal, filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons vacating and remanding to USDC. (jwol, ) (Entered: 08/11/2009)
303 Letter from D Peters Wilborn Jr. asking for Aaron Polkey to be removed from this case since he is no longer with the firm. (jwol, ) (Entered: 08/17/2009)
305 Appeal Remark re 278 Notice of Interlocutory Appeal, : 4CCA is staying the Court's mandate pending disposition of a petition for panel and/or enbanc rehearing. (jwol, ) (Entered: 08/24/2009)
306 ORDER of USCA as to 278 Notice of Interlocutory Appeal, filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons costs for these proceedings are taxed and certified as follows for inclusion in this Court's mandate. Total costs awarded: $13,893.00 (jwol, ) (Entered: 10/19/2009)
307 USCA MANDATE as to 278 Notice of Interlocutory Appeal, filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons entered 10/8/09. (jwol, ) (Entered: 10/19/2009)
308 MOTION Consideration of FRCP 23(b) and Motion to Deny Class Certification by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 11/9/2009 (Attachments: # 1 Exhibit 1 − Amended Opinion, # 2 Exhibit 2 − Order Amending Opinion, # 3 Exhibit 3 − Original Opinion)No proposed order(Wilkerson, John) (Entered: 10/22/2009)
309 RESPONSE in Opposition re 308 MOTION Consideration of FRCP 23(b) and Motion to Deny Class Certification MOTION Consideration of FRCP 23(b) and Motion to Deny Class Certification Response filed by Quinton Brown.Reply to Response to Motion due by 11/20/2009 (Derfner, Armand) (Entered: 11/09/2009)
310 REPLY to Response to Motion re 308 MOTION Consideration of FRCP 23(b) and Motion to Deny Class Certification MOTION Consideration of FRCP 23(b) and Motion to Deny Class Certification Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 11/20/2009)
311 ORAL ORDER of protection for John S Wilkerson, III for the dates of 3/1/10 through 3/5/10 and 7/23/10 through 8/10/10. Entered at the Direction of Honorable C Weston Houck on 1/25/10. (jwol, ) Modified to correct text on 1/26/2010 (jwol, ). (Entered: 01/25/2010)
312 NOTICE of Request for Protection from Court Appearance by Nosizi Ralephata for 2/25//2010 − 2/26/2010; 5/12/2010−5/14/2010; 6/10/2010 − 6/11/2010; 8/5/10201−8/10/2010 (Ralephata, Nosizi) (Entered: 02/03/2010)
313 TEXT ORDER dismissing 261 Motion without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010. (pque,) (Entered: 02/03/2010)

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02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/04/2010 02/10/2010 02/25/2010
04/08/2010
04/13/2010 04/14/2010 04/21/2010 09/03/2010

314 TEXT ORDER dismissing 262 Motion for Summary Judgment without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010. (pque,) (Entered: 02/03/2010)
315 TEXT ORDER dismissing 263 Motion for Summary Judgment without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010. (pque,) (Entered: 02/03/2010)
316 TEXT ORDER dismissing 264 Motion for Summary Judgment without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010. (pque,) (Entered: 02/03/2010)
317 TEXT ORDER dismissing 265 Motion for Summary Judgment without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010.(pque,) (Entered: 02/03/2010)
318 TEXT ORDER dismissing 266 Motion to Alter Judgment without prejudice and with leave to refile at a later date AND dismissing 266 Motion for Summary Judgment without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010.(pque,) (Entered: 02/03/2010)
319 TEXT ORDER dismissing 267 Motion for Summary Judgment without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010.(pque,) (Entered: 02/03/2010)
320 TEXT ORDER dismissing 268 Motion for Summary Judgment without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010. (pque,) (Entered: 02/03/2010)
321 TEXT ORDER dismissing 269 Motion for Summary Judgment without prejudice and with leave to refile at a later date. Entered at the direction of the Honorable C Weston Houck on February 3, 2010.(pque,) (Entered: 02/03/2010)
322 ORDER OF PROTECTION for Attorney Ralephata from Court appearances for the dates February 25−February 26,2010; May 12−May 14,2010; June 10−June 11, 2010; and August 5−August 10, 2010. Signed by Honorable C Weston Houck on 2/4/2010. (vdru, ) (Entered: 02/04/2010)
323 TEXT ORDER of protection for John S. Wilkerson, III for the dates of 3/1/2010 through 3/5/10 and 7/23/10 through 8/10/10. Entered at the Direction of The Honorable C Weston Houck on 2/9/2010. (vdru) (Entered: 02/10/2010)
324 ORDER granting (53) Motion to Consolidate Cases and finding as moot(54) Motion for Summary Judgment in case 2:08−cv−02429−CWH−BM. The Clerk is directed to consolidate Civil Action 2:08−cv−02429−CWH−BM into Civil Action 2:04−22005, and to administratively close Civil Action 2:08−cv−02429−CWH−BM. Signed by Magistrate Judge Bristow Marchant on 2/24/10. Associated Cases: 2:08−cv−02429−CWH −BM, 2:04−cv−22005−CWH. (rpol, ) (Entered: 02/25/2010)
325 NOTICE of Hearing on Motion 308 MOTION Consideration of FRCP 23(b) and Motion to Deny Class Certification MOTION Consideration of FRCP 23(b) and Motion to Deny Class Certification : Motion Hearing set for 4/29/2010 at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru ) (Entered: 04/08/2010)
326 NOTICE of Cancellation of Hearing: 4/29/2010 at 11:00 a.m. (vdru, ) (Entered: 04/13/2010)
327 NOTICE of Hearing: Telephone Conference set for 4/22/2010 11:00 AM before Honorable C Weston Houck. (vdru,) (Entered: 04/14/2010)
328 NOTICE OF RESCHEDULED HEARING 4/22/2010 at 11:00 a.m. cancelled and rescheduled to: Telephone Conference set for 4/22/2010 02:30 PM before Honorable C Weston Houck. (vdru, ) (Entered: 04/21/2010)
329 MOTION to Withdraw as Attorney of Record for Plaintiffs by Quinton Brown. Response to Motion due by 9/20/2010 No proposed order(Derfner, Armand) (Main Document 329 replaced on 9/7/2010) (vdru, ). Modified to correct case number on document as verified by filing user on 9/7/2010 (vdru, ). (Entered: 09/03/2010)

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09/08/2010 10/26/2010 10/27/2010 02/03/2011 02/10/2011 02/10/2011 02/10/2011
02/17/2011
02/17/2011 02/17/2011 02/25/2011 02/25/2011 03/02/2011

331 TEXT ORDER granting 329 Motion to Withdraw as Attorney. Entered at the Direction of The Honorable C Weston Houck on 9/7/2010.(vdru, ) (Entered: 09/08/2010)
333 NOTICE of Request for Protection from Court Appearance by Nosizi Ralephata for 12/20/10 − 1/3/11 (Ralephata, Nosizi) (Entered: 10/26/2010)
334 ORDER re 333 Notice of Request for Protection from Court Appearance filed by Nucor Steel Berkeley and Nucor Corporation. Attorney Nosizi Ralephata is protected from Court appearances from December 20, 2010 through January 3, 2011. Signed by Honorable C Weston Houck on 10/27/2010. (vdru, ) (Entered: 10/27/2010)
335 MOTION to Certify Class Plaintiffs Motionand Memorandum for Ruling by Quinton Brown. Response to Motion due by 2/22/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Derfner, Armand) (Entered: 02/03/2011)
336 NOTICE of Request for Protection from Court Appearance by Nosizi Ralephata for 2/23/11−2/28/11, 5/16/11−5/23/11, and 8/4/11−8/11/11 (Ralephata, Nosizi) (Entered: 02/10/2011)
337 RESPONSE in Opposition re 335 MOTION to Certify Class Plaintiffs Motionand Memorandum for Ruling Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 2/22/2011 (Attachments: # 1 Exhibit A − Holloway v. Best Buy Order, # 2 Exhibit B − Ellis v. Costco Order)(Wilkerson, John) (Entered: 02/10/2011)
338 TEXT ORDER re 336 Notice of Request for Protection from Court Appearance filed by Nucor Steel Berkeley, Nucor Corporation. Nosizi Ralephata, counsel for Defendants, is granted protection from court appearances in this matter for the following dates: February 23 through February 28, 2011, May 16 through May 23, 2011, and August 4 through August 11, 2011. Entered at the Direction of The Honorable C Weston Houck on 2/10/2011. (vdru, ) Modified to edit text on 2/11/2011 (vdru, ). (Entered: 02/10/2011)
339 ORDER denying 308 Defendants' Motion to deny class certification>. After careful evaluation of the proposed class under Rule 23(b), the Court declines to certify the class under Rule 23(b)(2)and also declines to certify a Rule 23(b)(2)/(b)(3) hybrid class action. However,having reconsidered the evidence in light of the Fourth Circuit's opinion, the Court finds that common issues predominate and that a class action is superior to any other method for adjudication of the claims in this case and certifies a class under Rule 23(b)(3). Description of the class, instructions regarding notice to members of the class, scheduling of a status conference, and further details are set forth in the Order. Signed by Honorable C Weston Houck on 2/16/2011.(vdru, ) (Entered: 02/17/2011)
340 NOTICE of Hearing: Status Conference set for Tuesday, 3/1/2011 at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru, ) (Entered: 02/17/2011)
341 TEXT ORDER re #335 MOTION to Certify Class Plaintiffs Motion and Memorandum for Ruling by Quinton Brown: The motion is moot and is therefore denied. Entered at the Direction of The Honorable C Weston Houck on 2/16/2011. (vdru, ) (Entered: 02/17/2011)
343 TEXT ORDER re 340 Notice of Hearing: The status conference currently scheduled for Tuesday, March 1, 2011 is cancelled and will be rescheduled for a later date. Entered at the Direction of The Honorable C Weston Houck on 2/25/2011. (vdru, ) (Entered: 02/25/2011)
344 NOTICE of Cancellation of Hearing: The Status Conference originally set for 3/1/2011 at 11:00 a.m. is cancelled and will be rescheduled for a later date. (vdru, ) (Entered: 02/25/2011)
345 NOTICE of Hearing: Status Conference set for Wednesday, 4/6/2011 at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St., Charleston before Honorable C Weston Houck. (vdru, ) (Entered: 03/02/2011)

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03/07/2011
03/07/2011 03/09/2011 03/10/2011 03/11/2011 03/24/2011
03/24/2011 03/24/2011 04/04/2011 04/04/2011 04/06/2011
04/07/2011

346 MOTION for Reconsideration re 339 Order on Motion for Miscellaneous Relief,,, by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 3/24/2011 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit A − Reaves v. Marion County, # 3 Exhibit B − Bates v. Chase, # 4 Exhibit C − Hunter v. American General Life & Accident Insurance Co., # 5 Exhibit D − Britton v. Car Toys, Inc., # 6 Exhibit E − Thompson v. Merck & Co., # 7 Exhibit F − National Federation of the Blind v. Target Corp., # 8 Exhibit G − Zapka v. Coca−Cola Co., # 9 Exhibit H − Canady v. Allstate Insurance Co., # 10 Exhibit I − Brown et al v. Nucor, # 11 Exhibit J − Selwood v. Virginia Mennonite Retirement Community)No proposed order(Wilkerson, John) (Entered: 03/07/2011)
347 MOTION to Stay by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 3/24/2011 (Attachments: # 1 Exhibit A − Collins v. S.C. Public Service Authority)No proposed order(Wilkerson, John) (Entered: 03/07/2011)
348 Plaintiffs' Submission of Proposed Class Notice . (Derfner, Armand) Modified text on 3/9/2011 (erav,). (Entered: 03/09/2011)
349 AMENDED NOTICE of Hearing: Status Conference set for 4/6/2011 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. PLEASE BE ADVISED THAT ALL OUTSTANDING MOTIONS WILL BE CONSIDERED AT THIS CONFERENCE.(vdru, ) (Entered: 03/10/2011)
350 OBJECTIONS byNucor Corporation, Nucor Steel Berkeley to 348 Declaration. (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit A − In re Cmty. Bank of N. Va. & Guar. Bank Second Mortgage Litig., # 3 Exhibit B − Sibley v. Sprint Nextel, # 4 Exhibit C − Flanagan v. Allstate, # 5 Exhibit D − Krzesniak v. Cendant)(Wilkerson, John) (Entered: 03/11/2011)
351 RESPONSE in Opposition re 346 MOTION for Reconsideration re 339 Order on Motion for Miscellaneous Relief,,, MOTION for Reconsideration re 339 Order on Motion for Miscellaneous Relief,,, MOTION for Reconsideration re 339 Order on Motion for Miscellaneous Relief,,, MOTION for Reconsideration re 339 Order on Motion for Miscellaneous Relief,,, Response filed by Quinton Brown.Reply to Response to Motion due by 4/4/2011 (Derfner, Armand) (Main Document 351 replaced on 3/28/2011) (vdru, ). Modified to correct case number on document as verified by filing user on 3/28/2011 (vdru, ). (Entered: 03/24/2011)
352 RESPONSE in Opposition re 347 MOTION to Stay Response filed by Quinton Brown.Reply to Response to Motion due by 4/4/2011 (Derfner, Armand) (Main Document 352 replaced on 3/28/2011) (vdru, ). Modified to correct case number on document as verified by filing user on 3/28/2011 (vdru, ). (Entered: 03/24/2011)
353 REPLY by Quinton Brown to 348 Declaration. (Derfner, Armand) (Main Document 353 replaced on 3/28/2011) (vdru, ). Modified to correct case number on document as verified by filing user on 3/28/2011 (vdru, ). (Entered: 03/24/2011)
354 REPLY to Response to Motion re 346 MOTION for Reconsideration re 339 Order on Motion for Miscellaneous Relief, MOTION for Reconsideration re 339 Order on Motion for Miscellaneous Relief. Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Exhibit A)(Wilkerson, John) Modified to edit text on 4/5/2011 (vdru, ). (Entered: 04/04/2011)
355 NOTICE of Request for Protection from Court Appearance by John Smith Wilkerson, III for 5/18/11−5/23/11 and 7/22/11−8/5/11 (Wilkerson, John) (Entered: 04/04/2011)
357 Minute Entry. Proceedings held before Honorable C Weston Houck: taking under advisement 346 Motion for Reconsideration ; taking under advisement 347 Motion to Stay; Motion Hearing held on 4/6/2011. Within ten (10) days Plaintiffs are to submit a letter to the Court outlining the scope of discovery to be pursued in the next three months, and the Defendants are invited to comment on the Plaintiffs' proposal. The parties are instructed to confer regarding the language of the notice to the class and to submit a proposed notice within ten (10) days. Court Reporter Gil O'Brien, CS. (gjoh, ) (Entered: 04/07/2011)
356 ORDER re 355 Notice of Request for Protection from Court Appearance filed by Nucor Steel Berkeley, Nucor Corporation. It is ordered that Attorney Wilkerson

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04/20/2011 04/27/2011 05/12/2011 05/16/2011 05/17/2011 05/17/2011
05/17/2011
05/26/2011 05/31/2011

is protected from Court appearances for the following dates: May 18 through May 23, 2011 and July 22 through August 5, 2011. Signed by Honorable C Weston Houck on 4/6/2011. (vdru, ) (Entered: 04/07/2011)
358 TEXT ORDER: The parties joint request for an additional 10 days to submit their report and proposed alternative notice to class members is granted. Signed by Honorable C Weston Houck on 4/20/2011. (vdru, ) (Entered: 04/20/2011)
359 ORDER denying 346 Motion for Reconsideration ; denying 347 Motion to Stay. Details including the modification of the class definition set forth in the Order. Should this Court be required to revisit the issue of class certification, the defendants may make a motion to decertify or modify the class at that time. Signed by Honorable C Weston Houck on 4/25/2011.(vdru, ) (Entered: 04/27/2011)
360 NOTICE of Hearing: Status Conference called by the Court regarding the notice to the class. Telephone Conference set for Tuesday, 5/17/2011, at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. Plaintiff's counsel shall join all participating counsel on the call and then call in to Chambers (843−579−1480) at 11:00 a.m. Please be advised that any party wishing to have a court reporter present in Chambers must advise the Clerk of Court (843−579−1407) by Monday, May 16, 2011. (vdru, ) (Entered: 05/12/2011)
361 Proposed MOTION for Protective Order and Remedial Measure by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 6/3/2011 (Attachments: # 1 Exhibit A − Nucor's Proposed Remedial Notice to Employees, # 2 Exhibit B − Audio Transcript, # 3 Exhibit C − Advertising Materials, # 4 Exhibit D − Cover of Roane's book, # 5 Exhibit E − Images of websites)No proposed order(Wilkerson, John) (Entered: 05/16/2011)
362 Minute Entry. Proceedings held before Honorable C Weston Houck: Telephone Conference held on 5/17/2011 re: Notice to class. Parties to submit stipulation to Court re: Exclusion Request Form. Names of employees who might be members of class to be produced by next Friday, May 27, 2011. 361 Motion for Protective Order held in abeyance. Plaintiff's to respond to motion within 15 days. Court Reporter Debbie Potocki. (erav, ) (Entered: 05/17/2011)
363 NOTICE OF FILING OF OFFICIAL TRANSCRIPT, Excerpt of Telephone status conference held on 5−17−11, before Judge C. Weston Houck. Court Reporter/Transcriber Debra Potocki, Telephone number/E−mail 843−723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 6/7/2011. Redacted Transcript Deadline set for 6/17/2011. Release of Transcript Restriction set for 8/15/2011. (dpotocki, ) (Entered: 05/17/2011)
364 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephone conference, complete proceeding, held on 5−17−11, before Judge C. Weston Houck. Court Reporter/Transcriber Debra Potocki, Telephone number/E−mail 843−723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 6/7/2011. Redacted Transcript Deadline set for 6/17/2011. Release of Transcript Restriction set for 8/15/2011. (dpotocki, ) (Entered: 05/17/2011)
365 TEXT ORDER: The Exclusion Request Form mutually agreed upon by the parties and submitted to the Court is approved. Entered at the Direction of The Honorable C Weston Houck on 5/25/2011. (vdru, ) (Entered: 05/26/2011)
366 MOTION for Extension of Time to File Response to Defendants' Motion for Protective Order and Remedial Measure by Quinton Brown. Response to Motion due by 6/17/2011 No proposed order.(Derfner, Armand) (Main Document 366 replaced on 6/2/2011) (vdru, ). Modified to edit text and replace incorrect document with correct document as provided by filing user on 6/2/2011 (vdru, ). (Entered: 05/31/2011)

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06/03/2011 06/03/2011 06/06/2011 06/09/2011 06/10/2011
06/20/2011
06/22/2011 06/28/2011 06/29/2011 06/30/2011 07/06/2011

367 MOTION for Protective Order for Robert L. Wiggins, Jr. and Ann Wiggins by Quinton Brown. Response to Motion due by 6/20/2011 No proposed order(Derfner, Armand) (Entered: 06/03/2011)
368 ORDER granting 366 Motion for Extension of Time. It is ordered that the deadline for the Plaintiff's response to Defendants' Motion for Protective Order and Remedial Measure is extended to June 10, 2011. Signed by Honorable C Weston Houck on 6/2/2011.(vdru, ) (Entered: 06/03/2011)
369 NOTICE of Request for Protection from Court Appearance by Nosizi Ralephata for 6/28/11 through 7/11/11 Associated Cases: 2:04−cv−22005−CWH, 2:08−cv−02429−CWH −BM(Ralephata, Nosizi) (Entered: 06/06/2011)
370 ORDERED that Nosizi Ralephata is protected from Court appearances for the dates of 6/28/11 through 7/11/11. Signed by Honorable C Weston Houck on 6/9/11. (jwol, ) (Entered: 06/09/2011)
371 RESPONSE in Opposition re 361 Proposed MOTION for Protective Order and Remedial Measure Plaintiffs' Opposition to Motion for Protective Order and Remedial Notice Response filed by Quinton Brown.Reply to Response to Motion due by 6/20/2011 (Attachments: # 1 Exhibit 1− Omitted, # 2 Exhibit 2−Deposition, Guy, # 3 Exhibit 3−EEOC Charge, Singletary, # 4 Exhibit 4− EEOC Charge, Roane, # 5 Exhibit 5− Notice to Class Members, # 6 Exhibit 6−Nucor Handbook, # 7 Exhibit 7−Deposition, Kurtz, # 8 Exhibit 8−Nucor Steel, # 9 Exhibit 9−Declaration of Quinton Brown, # 10 Exhibit 10−Press Release, # 11 Exhibit 11−Email from Dautridge, # 12 Exhibit 12−Declaration of Earl Ravenell)(Derfner, Armand) (Additional attachment(s) added on 6/13/2011: # 13 Exhibit List Descriptions for exhibits 1−12) (alan, ). Modified on 6/13/2011 to add descriptions to exhibits 1 − 12 (alan, ). (Entered: 06/10/2011)
372 REPLY to Response to Motion re 366 MOTION for Extension of Time to File Response to Defendants' Motion for Protective Order and Remedial Measure Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit A − Images of Website, # 3 Exhibit B − Images of Website, # 4 Exhibit C − The Christian Perspective Blogtalk Radio, # 5 Exhibit D − Images of Websites established by Plaintiffs, # 6 Exhibit E − Audio Transcript, # 7 Exhibit F − Excerpt from Exhibit 6 of Nucor Corporation and Nucor Steel Berkeleys Response to Plaintiffs Motion for Class Certification, # 8 Exhibit G − Excerpt from Nucor's Employee Handbook, # 9 Exhibit H − Excerpt from Jason Guy Deposition)(Wilkerson, John) (Entered: 06/20/2011)
373 MOTION to Hold Class Notice and Class Discovery in Abeyance by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 7/11/2011 No proposed order(Wilkerson, John) (Entered: 06/22/2011)
374 NOTICE of Hearing on Motion 373 MOTION to Hold Class Notice and Class Discovery in Abeyance : Telephone Conference set for 6/30/2011 02:30 PM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. THE PARTIES SHOULD NOTIFY THE JUDGE'S CHAMBERS IF A COURT REPORTER IS NEEDED.(cmur, ) (Entered: 06/28/2011)
375 RESPONSE in Opposition re 373 MOTION to Hold Class Notice and Class Discovery in Abeyance Plaintiffs' Request to Treat Defendants' Motion to Withhold Notice as a Motion for Decertification and to Expedite Denial of Said Motion Response filed by Quinton Brown.Reply to Response to Motion due by 7/11/2011 (Derfner, Armand) (Entered: 06/29/2011)
376 Minute Entry. Proceedings held before Honorable C Weston Houck: Motion hearing held on 6/30/2011. Written order to follow. Court Reporter Amy Diaz. (jwol, ) (Entered: 06/30/2011)
377 ORDER granting 367 Motion for Protective Order; granting in part and denying in part 373 Motion to hold in abeyance. It is ordered that Attorney Robert L Wiggins and Ann K Wiggins are protected from Court appearances from July 18 through August 20, 2011. It is ordered that Defendants' motion to hold class discovery in abeyance is denied and defendants' motion to hold the class notice in abeyance is granted. The defendants have fifteen (15) days from the date of the telephone conference to file their motion to decertify the class. Signed by

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07/15/2011 07/15/2011
07/15/2011 07/15/2011
07/19/2011 07/28/2011 08/01/2011 08/16/2011

Honorable C Weston Houck on 7/1/2011.(vdru, ) (Entered: 07/06/2011)
378 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on April 6, 2011, before Judge C. Weston Houck. Court Reporter/Transcriber Amy Diaz, Telephone number/E−mail 367−4604. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 8/5/2011. Redacted Transcript Deadline set for 8/15/2011. Release of Transcript Restriction set for 10/13/2011. (adia, ) (Entered: 07/15/2011)
379 MOTION to Exclude Plaintiffs' Expert Witnesses by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 8/1/2011 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit 1 − Report of Edwin L. Bradley and Liesl Fox, # 3 Exhibit 2 − Deposition of E. Bradley, # 4 Exhibit 3 part 1 − Deposition of L. Fox, pp. 1 − 75, # 5 Exhibit 3 part 2 − Deposition of L. Fox, pp. 76−150, # 6 Exhibit 3 part 3 − Deposition of L. Fox, pp. 151−228, # 7 Exhibit 4 − Report of Finis Welch, # 8 Exhibit 5 − Declaration of E. Bradley, # 9 Exhibit 6 − CV of E. Bradley, # 10 Exhibit 7 − CV of L. Fox, # 11 Exhibit 8 − Preliminary Report of Michael Buckley, # 12 Exhibit 9 − Deposition of M. Buckley)No proposed order(Wilkerson, John). Modified to edit text on 7/18/2011 (vdru, ). (Entered: 07/15/2011)
380 MOTION for Leave to File Excess Pages by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 8/1/2011 No proposed order(Wilkerson, John) (Entered: 07/15/2011)
381 MOTION Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Decertification of the Current Plaintiff Class by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 8/1/2011 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit A − Walter v. Hughes Commcns, Inc., # 3 Exhibit B − Lee v. ITT Corp., # 4 Exhibit C − Bayshore Ford Truck v. Ford Motor Co., # 5 Exhibit D − Reaves v. Marion County, # 6 Exhibit E − Barner v. City of Harvey, # 7 Exhibit F − Wal−Mart Stores, Inc. v. Dukes, # 8 Exhibit G − Brown v. Nucor Corp., # 9 Exhibit H − Defendants EEO and Anti−Discrimination Policies, # 10 Exhibit I − Expert Report Workforce Distribution and Selection Process at Nucor Steel−Berkeley, # 11 Exhibit J − Beyond the Class Ramifications of Dukes, # 12 Exhibit K − Case Study: Wal−Mart v. Dukes, # 13 Exhibit L − Wal−Mart Ruling Raises Bar for Class Actions, # 14 Exhibit M − Employment Lawyers Weigh In On Wal−Mart v. Dukes, # 15 Exhibit N − Armstrong v. Whirlpool Corp., # 16 Exhibit O − Carlson v. C.H. Robinson Worldwide, Inc., # 17 Exhibit P − Westlaw Next Fourth Circuit Hostile Work Environment Class Action Search, # 18 Exhibit Q − Thompson v. Merck & Co., # 19 Exhibit R − Britton v. Car Toys, Inc., # 20 Exhibit S − Humphrey v. Intl Paper)No proposed order(Wilkerson, John) (Entered: 07/15/2011)
382 TEXT ORDER granting 380 Defendants Motion for Leave to File Excess Pages. It is ordered that the Defendants will be allowed to file a Motion to Decertify the Class which exceeds the thirty−five (35) page limitation, but said motion is not to exceed fifty (50) pages. Entered at the Direction of The Honorable C Weston Houck on 7/19/2011.(vdru, ) (Entered: 07/19/2011)
383 MOTION for Extension of Time and Increase Page Limits by Quinton Brown. Response to Motion due by 8/15/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Derfner, Armand) (Entered: 07/28/2011)
384 ORDER granting 383 Plaintiff's unopposed Motion for Extension of Time and increase of page limit. Deadline for plaintiff's responses to #381 and #379 extended to 8/16/2011. Signed by Honorable C Weston Houck on 7/29/2011.(vdru, ) (Entered: 08/01/2011)
386 RESPONSE in Opposition re 381 MOTION Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Decertification of the Current Plaintiff Class Plaintiffs' Opposition to Class Decertification Response filed by Quinton Brown.Reply to Response to Motion due by 8/26/2011 (Derfner, Armand) (Entered: 08/16/2011)

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08/16/2011 08/23/2011 08/29/2011 09/01/2011 09/06/2011 09/09/2011 09/09/2011 10/06/2011 10/21/2011 10/24/2011 10/27/2011
12/21/2011

387 RESPONSE in Opposition re 379 MOTION to Exclude Plaintiffs' Expert Witnesses Plaintiffs' Opposition to Motion to Exclude Expert Testimony Response filed by Quinton Brown.Reply to Response to Motion due by 8/26/2011 (Derfner, Armand) (Entered: 08/16/2011)
388 MOTION for Extension of Time to File Response/Reply as to 381 MOTION Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Decertification of the Current Plaintiff Class, 379 MOTION to Exclude Plaintiffs' Expert Witnesses by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 9/9/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Wilkerson, John) (Entered: 08/23/2011)
389 ORDER granting 388 Motion for Extension of Time to File Response/Reply as to 386 Plaintiffs' responses to Motion to Decertify the Current Plaintiff Clas and 387 Motion to Exclude Plaintiffs' Expert Witness Testimony. Replies due by 9/9/2011. Signed by Honorable C Weston Houck on 8/24/2011.(vdru, ) (Entered: 08/29/2011)
390 NOTICE of Request for Protection from Court Appearance by Nosizi Ralephata for 9/15−16/11 and 10/11−17/11 (Ralephata, Nosizi) (Entered: 09/01/2011)
391 TEXT ORDER re 390 Notice of Request for Protection from Court Appearance filed by Nucor Steel Berkeley, Nucor Corporation. Attorney Ralephata is granted protection from court appearances from 9/15 through 9/16/2011 and 10/11 through 10/17/2011. Signed by Honorable C Weston Houck on 9/2/2011. (vdru, ) (Entered: 09/06/2011)
392 REPLY to Response to Motion re 379 MOTION to Exclude Plaintiffs' Expert Witnesses Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit A−Welch Supplemental Report, # 3 Exhibit B−Adams v. Austal, U.S.A., # 4 Exhibit C−Rollins v. Alabama Community College System (Part 1), # 5 Exhibit C−Rollins v. Alabama Community College System (Part 2))(Wilkerson, John) (Entered: 09/09/2011)
393 REPLY to Response to Motion re 381 MOTION Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Decertification of the Current Plaintiff Class Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Exhibit 1 − Declaration of Meleah Reynolds)(Wilkerson, John) (Entered: 09/09/2011)
394 NOTICE of Hearing on Motion 361 Proposed MOTION for Protective Order and Remedial Measure, 379 MOTION to Exclude Plaintiffs' Expert Witnesses, 381 MOTION Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Decertification of the Current Plaintiff Class : Motion Hearing set for Thursday, 10/27/2011 at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru, ) (Entered: 10/06/2011)
395 MOTION to Appear Pro Hac Vice by James Shannon Gatlin ( Filing fee $ 250 receipt number 0420−3679373) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 11/7/2011 (Attachments: # 1 Addendum Application for Admission, # 2 Addendum Certificate in Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Ralephata, Nosizi) (Entered: 10/21/2011)
396 ORDER granting 395 Motion to Appear Pro Hac Vice. Attorney James Shannon Gatlin who represents the Defendants is granted admission pro hac vice in this case. Signed by Honorable C Weston Houck on 10/24/2011.(vdru, ) (Entered: 10/24/2011)
397 Minute Entry. Proceedings held before Honorable C Weston Houck: Motion Hearing held on 10/27/2011, denying with leave to re−file 361 Motion for Protective Order; taking under advisement 381 MOTION Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Decertification of the Current Plaintiff Class filed by Nucor Steel Berkeley, Nucor Corporation, taking under advisement 379 MOTION to Exclude Plaintiffs' Expert Witnesses filed by Nucor Steel Berkeley, Nucor Corporation. Court Reporter Debbie Potocki. (cper, ) (Entered: 10/27/2011)
398 MOTION to Withdraw 299 Order on Motion to Appear Pro Hac Vice, MOTION to Withdraw as Attorney Brian Patterson ( Response to Motion due by 1/9/2012) by Nucor Corporation, Nucor Steel Berkeley. Proposed order is being emailed to

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 42 of 65

01/04/2012 01/09/2012 01/09/2012 02/07/2012 02/07/2012 05/09/2012
07/12/2012 07/19/2012 07/23/2012 09/11/2012
09/21/2012

chambers with copy to opposing counsel(Wilkerson, John) (Entered: 12/21/2011)
399 NOTICE of Request for Protection from Court Appearance by John Smith Wilkerson, III for March 2 through March 12, 2012 (Wilkerson, John) (Entered: 01/04/2012)
400 ORDER granting 398 Motion to Withdraw as Attorney. Attorney Brian Patterson, admitted pro hac vice, is relieved as counsel for Defendants. Signed by Honorable C Weston Houck on 1/6/2012.(vdru, ) (Entered: 01/09/2012)
402 ORDER re 399 Notice of Request for Protection from Court Appearance filed by Nucor Steel Berkeley, Nucor Corporation. Attorney Wilkerson is protected from Court appearances from 3/2/12 through 3/12/12. Signed by Honorable C Weston Houck on 1/6/2012. (vdru, ) (Entered: 01/09/2012)
403 NOTICE of Request for Protection from Court Appearance by John Smith Wilkerson, III for April 16 through 20, 2012 and July 16 through October 22, 2012 (Wilkerson, John) (Entered: 02/07/2012)
404 ORDER re 403 Notice of Request for Protection from Court Appearance filed by Nucor Steel Berkeley, Nucor Corporation. Attorney John Smith Wilkerson III is protected from Court appearances from April 16−April 20, 2012 and July 16 through October 22, 2012. Signed by Honorable C Weston Houck on 2/7/2012. (vdru, ) (Entered: 02/07/2012)
405 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of motion hearing held on 10−27−11, before Judge C. Weston Houck. Court Reporter/Transcriber Debra Potocki, Telephone number/E−mail 843−723−2208/potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 5/30/2012. Redacted Transcript Deadline set for 6/11/2012. Release of Transcript Restriction set for 8/7/2012. (dpotocki, ) (Entered: 05/09/2012)
406 NOTICE of Request for Protection from Court Appearance by Nosizi Ralephata for July 23, 2012 through August 6, 2012 (Ralephata, Nosizi) (Entered: 07/12/2012)
407 NOTICE of Request for Protection from Court Appearance by Armand Georges Derfner for August 13, 2012 through September 7, 2012 and September 17, 2012 through September 27, 2012. (vdru, ) Modified to correct event type on 7/20/2012 (vdru, ). (Entered: 07/20/2012)
408 ORDER OF PROTECTION for attorney Armand Derfner from Court appearances for the dates August 13, 2012 through September 7, 2012 and September 17, 2012 through September 27, 2012. Signed by Honorable C Weston Houck on 07/23/2012. (alan, ) (Entered: 07/23/2012)
409 ORDER finding as moot 379 Motion to Exclude and granting in part and denying in part 381 Motion to Decertify. The Defendants' motion to decertify the plaintiffs' class is granted with respect to the plaintiffs' claims for disparate treatment and disparate impact, and is denied with respect to the plaintiffs' claim for a hostile work environment. Class members who wish to pursue claims for disparate treatment and/or disparate impact may do so individually. The Defendants' Motion to Exclude is moot. Signed by Honorable C Weston Houck on 9/11/2012.(vdru, ) (Entered: 09/11/2012)
411 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of motion hearing held on 4−6−11, before Judge C. Weston Houck. Court Reporter/Transcriber O'Brien/Potocki, Telephone number/E−mail 843−723−2208/potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 10/12/2012. Redacted Transcript Deadline set for 10/22/2012. Release of Transcript Restriction set for 12/20/2012. (dpotocki, ) (Entered: 09/21/2012)

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 43 of 65

09/25/2012
09/28/2012 10/12/2012 10/15/2012
10/23/2012 10/24/2012 11/08/2012 12/04/2012 12/07/2012 12/10/2012 12/18/2012 12/19/2012

412 MOTION to Amend/Correct 409 Order on Motion for Miscellaneous Relief,,,,, by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 10/12/2012. (Attachments: # 1 Appendix A: Change of Status Forms , # 2 Appendix B: Declaration of Liesl M. Fox, Ph.D. , # 3 Appendix C: Curriculum Vitae of Liesl M. Fox, Ph.D. and Deposition of Liesl M. Fox, Ph.D)No proposed order.(Derfner, Armand) (Main Document 412 replaced on 9/27/2012) (vdru, ). Modified to correct case number on document as verified by filing user and add descriptions to exhibits on 9/27/2012 (vdru, ). (Entered: 09/25/2012)
414 MOTION for Sanctions by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 10/15/2012. (Attachments: # 1 Exhibit A − Email to Nucor Steel Berkeley Team, # 2 Exhibit B − Case 2010 WL 1879922 (E.D.N.Y.))No proposed order.(Derfner, Armand) (Entered: 09/28/2012)
415 RESPONSE to Motion re 412 MOTION to Amend/Correct 409 Order on Motion for Miscellaneous Relief,,,,, Response of Defendants to Plaintiffs' Motion to Alter and Amend Order Decertifying Promotions Class Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 10/22/2012 (Attachments: # 1 Exhibit Brown v. Nucor Corp.)(Ralephata, Nosizi) (Entered: 10/12/2012)
416 RESPONSE to Motion re 414 MOTION for Sanctions Defendants' Response to Plaintiffs' Motion for Sanctions Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 10/25/2012 (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit A: September 12, 2012 E−Mail, # 3 Exhibit B: Transcript Excerpt , # 4 Exhibit C: Excerpts from Handicap , # 5 Exhibit D: Back cover of Handicap, # 6 Exhibit E: Roane Internet Posting, # 7 Exhibit F: Jones v. Natl Council of YMCA )(Ralephata, Nosizi) Modified to add descriptions to exhibits on 10/16/2012 (vdru, ). (Entered: 10/15/2012)
417 RESPONSE in Support re 412 MOTION to Amend/Correct 409 Order on Motion for Miscellaneous Relief,,,,, Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. (Derfner, Armand) (Entered: 10/23/2012)
418 RESPONSE in Support re 414 MOTION for Sanctions Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. (Derfner, Armand) (Entered: 10/24/2012)
419 ORDER of USCA denying Rule 5 Petition for permission to appeal filed with 4CCA on September 25, 2012 by Nucor Corporation and Nucor Steel−Berkeley. 4CCA Case number : 12−328. (vdru, ) (Entered: 11/09/2012)
420 NOTICE of Request for Protection from Court Appearance by Nosizi Ralephata for 12/18/12 − 1/4/13 (Ralephata, Nosizi) (Entered: 12/04/2012)
421 NOTICE of Hearing on Motion 414 MOTION for Sanctions , 412 MOTION to Amend/Correct 409 Order on Motion for Miscellaneous Relief : Motion Hearing set for Wednesday, 1/30/2013 at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru, ) (Entered: 12/07/2012)
422 ORDER re 420 Notice of Request for Protection from Court Appearance filed by Nucor Steel Berkeley, Nucor Corporation. Attorney Nosizi Ralephata is protected from Court appearances from 12/18/12 − 1/4/13. Signed by Honorable C Weston Houck on 12/6/2012. (vdru, ) (Entered: 12/10/2012)
423 MOTION to Continue Hearing scheduled for January 30, 2013 by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 1/7/2013. No proposed order.(Derfner, Armand) (Entered: 12/18/2012)
424 TEXT ORDER granting 423 Motion to Continue. Cancellation of Motion Hearing set for Wednesday, 1/30/2013 at 11:00 AM. Entered at the Direction of The Honorable C Weston Houck on 12/19/12.(cper, ) (Entered: 12/19/2012)

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01/04/2013 04/05/2013 04/08/2013 04/08/2013 04/10/2013
04/19/2013
04/25/2013 04/26/2013 05/06/2013 05/09/2013 05/10/2013

425 NOTICE OF RESCHEDULED HEARING on Motions 414 MOTION for Sanctions and 412 MOTION to Amend/Correct 409 Order on Motion : Motion Hearing previously set for 1/30/2013 at 11:00 AM cancelled and RESCHEDULED to: Motion Hearing set for Wednesday, 4/10/2013 at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru, ) (Entered: 01/04/2013)
426 ORDER denying 412 Motion to Amend the Order and Opinion decertifying the promotions class (ECF# 412). The plaintiffs have failed to show that the Court committed a clear error of law. Details set forth in order. Signed by Honorable C Weston Houck on 4/5/2013.(vdru, ) (Entered: 04/05/2013)
427 AMENDED NOTICE of Hearing on Motion on 414 MOTION for Sanctions : Motion Hearing set for Wednesday, 4/10/2013 at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru, ) Modified to edit text per Chambers on 4/8/2013 (vdru, ). (Entered: 04/08/2013)
428 MOTION Motion for Decertification of Hostile Work Environment Class by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 4/25/2013. (Attachments: # 1 Addendum Reaves v. Marion County)No proposed order.(Wilkerson, John) (Entered: 04/08/2013)
429 Minute Entry. Proceedings held before Honorable C Weston Houck: Motion Hearing held on 4/10/2013 re 414 MOTION for Sanctions filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons. Based on the agreement to be drafted by defendants' counsel, the court denies the Motion for Sanctions. Parties are to submit a letter to the court for filing regarding the agreement. Court Reporter Amy Diaz. (cper, ) Modified text per chambers on 4/11/2013 (cper, ). (Entered: 04/10/2013)
430 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Motion Hearing held on April 10, 2013, before Judge C. Weston Houck. Court Reporter/Transcriber Amy Diaz, Telephone number/E−mail 367−4604. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 5/13/2013. Redacted Transcript Deadline set for 5/20/2013. Release of Transcript Restriction set for 7/18/2013. (adia, ) (Entered: 04/19/2013)
433 TEXT ORDER: Plaintiff's counsel orally requested a one (1) day extension to file the response to the motion for decertification of hostile work environment (ECF #428). The Court hereby grants this request and extends the deadline for the response to April 26, 2013. Entered at the Direction of The Honorable C Weston Houck on 4/25/2013. (vdru, ) Modified to edit text per Chambers on 4/25/2013 (vdru, ). (Entered: 04/25/2013)
434 RESPONSE in Opposition re 428 MOTION Motion for Decertification of Hostile Work Environment Class 1 Response filed by Timothy W Bouch, Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 5/6/2013 (Derfner, Armand) (Entered: 04/26/2013)
435 REPLY to Response to Motion re 428 MOTION Motion for Decertification of Hostile Work Environment Class Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Addendum Unpublished Opinions, # 2 Exhibit Smith v. Family Video Movie Club, Inc., # 3 Exhibit Roach v. T.L. Cannon Corp., # 4 Exhibit Wright v. St. Louis Bd. of Police Comm'rs, # 5 Exhibit Cochran v. Volvo Group N. Am.)(Wilkerson, John) (Entered: 05/06/2013)
436 NOTICE of Request for Protection from Court Appearance by John Smith Wilkerson, III for July 29, 2013 through August 2, 2013 (Wilkerson, John) (Entered: 05/09/2013)
437 PROTECTION ORDER that attorney John S. Wilkerson, III is protected from Court appearances for the dates July 29, 2013 through August 2, 2013. Signed by Honorable C Weston Houck on 05/10/2013. (egra, ) (Entered: 05/10/2013)

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05/21/2013 05/23/2013 06/18/2013
06/19/2013 06/20/2013
06/24/2013
06/24/2013 07/12/2013 07/31/2013 08/02/2013 08/07/2013 08/12/2013 09/04/2013

438 SUPPLEMENT by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White to 428 MOTION Motion for Decertification of Hostile Work Environment Class . (Attachments: # 1 Exhibit Westlaw Findings, # 2 Exhibit Westlaw Findings, # 3 Exhibit Westlaw Findings)(Derfner, Armand) (Entered: 05/21/2013)
439 REPLY by Nucor Corporation, Nucor Steel Berkeley to 438 Supplement, . (Wilkerson, John) (Entered: 05/23/2013)
440 USCA order granting Permission for NOTICE OF INTERLOCUTORY APPEAL as to 409 Order on Motion to Exclude and Motion to Decertify by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Filing fee $ 455. The Docketing Statement form, Transcript Order form, and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov. (Attachments: # 1 Petition for Permission to Appeal, # 2 Addendum to the Petition for Permission to Appeal)(vdru, ) (Entered: 06/19/2013)
442 Transmittal Sheet for Notice of Appeal to USCA re 440 Notice of Interlocutory Appeal. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (vdru, ) (Entered: 06/19/2013)
443 NOTICE of Hearing: Telephone Conference set for Monday, 6/24/2013 at 11:30 AM before Honorable C Weston Houck. Attorney Wilkerson shall join all participating counsel on the call and then call in to Chambers (843−579−1480) at 11:30 a.m. Any party wishing to have a court reporter present in Chambers must advise the Clerk of Court (843−579−1407) by 3 p.m. on Friday, June 21.(vdru, ) Modified to edit text on 6/21/2013 (vdru, ). (Entered: 06/20/2013)
444 Minute Entry. Proceedings held before Honorable C Weston Houck: Telephone Conference held on 6/24/2013. Parties will not request a stay of the action and do not oppose Judge Houck issuing a ruling on the defendant's pending motion to decertify the hostile work environment class (ECF No. 428) even though the order on the decertification of the disparate treatment/disparate impact claim is on appeal. (jwol, ) (Entered: 06/24/2013)
445 NOTICE of Hearing on Motion 428 MOTION Motion for Decertification of Hostile Work Environment Class : Motion Hearing set for 9/5/2013 at 11:00 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru, ) (Entered: 06/24/2013)
446 RECEIPT by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White for Fee for Interlocutory Appeal. Amount: $455.00. Receipt # SCX200010531. (vdru, ) (Entered: 07/12/2013)
447 NOTICE of Request for Protection from Court Appearance by John Smith Wilkerson, III for 9−16−13 through 9−27−13 (Wilkerson, John) (Entered: 07/31/2013)
448 ORDER granting 447 Request for Protection from Court Appearance filed by Nucor Steel Berkeley, Nucor Corporation. Attorney John Smith Wilkerson, III is granted protection from Court appearances from 9−16−13 through 9−27−13. Signed by Honorable C Weston Houck on 8/1/2013. (vdru, ) (Entered: 08/02/2013)
449 NOTICE of Request for Protection from Court Appearance by Nosizi Ralephata for September 16, 2013 through September 20, 2013 (Ralephata, Nosizi) (Entered: 08/07/2013)
450 ORDER granting 449 Request for Protection from Court Appearance filed by Nucor Steel Berkeley and Nucor Corporation. Attorney Nosizi Ralephata is protected from Court appearance in this case from September 16, 2013 through September 20, 2013. Signed by Honorable C Weston Houck on 8/9/2013. (vdru, ) (Entered: 08/12/2013)
451 RESPONSE in Opposition re 428 MOTION Motion for Decertification of Hostile Work Environment Class Supplemental Authorities in Opposition to Motion to Decertify Based on Comcast Corp. v. Behrend Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 9/16/2013 (Derfner, Armand)

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09/05/2013 09/25/2013 09/27/2013 10/11/2013
10/29/2013 10/29/2013 10/30/2013 11/05/2013

(Entered: 09/04/2013)
452 Minute Entry. Proceedings held before Honorable C Weston Houck: Motion Hearing held on 9/5/2013 re 428 MOTION Motion for Decertification of Hostile Work Environment Class filed by Nucor Steel Berkeley, Nucor Corporation. Court to issue an Order. Court Reporter Debra Potocki. (jwol, ) (Entered: 09/05/2013)
453 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of motion hearing held on 9−5−13, before Judge C. Weston Houck. Court Reporter/Transcriber Debra Potocki, Telephone number/E−mail 843−723−2208. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 10/16/2013. Redacted Transcript Deadline set for 10/28/2013. Release of Transcript Restriction set for 12/27/2013. (dpotocki, ) (Entered: 09/25/2013)
454 ORDER denying 428 the defendant's motion to decertify the plaintiffs' class with respect to the plaintiffs' claim for a hostile work environment. Signed by Honorable C Weston Houck on 9/26/2013.(vdru, ) (Entered: 09/27/2013)
455 MOTION for Reconsideration re 454 Order on Motion for Miscellaneous Relief, Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Reconsideration of Denial of Motion to Decertify Plaintiffs' Hostile Work Environment Class by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 10/28/2013. (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit A − Reaves v. Marion County, # 3 Exhibit B − Semenko v. Wendys Intl, Inc., # 4 Exhibit C − Powell v. Tosh, # 5 Exhibit D − Butler v. Sears, Roebuck & Co., # 6 Exhibit E − Parra v. Bashas, Inc., # 7 Exhibit F − Healy v. International Bhd. of Elec. Workers, Local Union No. 134, # 8 Exhibit G − Rosenberg v. Renal Advantage, Inc., # 9 Exhibit H − Buchanan v. Homeservices Lending LLC, # 10 Exhibit I − Wheeler v. United Servs. Auto. Assn, # 11 Exhibit J − Seabron v. American Family Mut. Ins. Co., # 12 Exhibit K − Jacob v. Duane Reade, Inc.)No proposed order.(Wilkerson, John) (Entered: 10/11/2013)
456 Consent MOTION for Extension of Time to File Response/Reply as to 455 MOTION for Reconsideration re 454 Order on Motion for Miscellaneous Relief, Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Reconsideration of Denial of Motion to Decertify Plaintiffs' Hostile Work Environ Consent Motion for One Day Late Filing by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 11/15/2013. (Attachments: # 1 Exhibit Plaintiffs' Opposition to Motion to Reconsider Denial of Decertification)No proposed order.(Derfner, Armand) (Entered: 10/29/2013)
459 RESPONSE in Opposition re 455 MOTION for Reconsideration re 454 Order on Motion for Miscellaneous Relief, Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Reconsideration of Denial of Motion to Decertify Plaintiffs' Hostile Work Environ Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 11/8/2013. Modified to refile document previously filed as attachment (ECF# 456−1) as verified by filing user and per Chambers. (vdru, ) (Entered: 11/20/2013)
457 TEXT ORDER granting 456 Motion for Extension of Time to File Response/Reply re 455 MOTION for Reconsideration re 454 Order on Motion for Miscellaneous Relief, Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Reconsideration of Denial of Motion to Decertify Plaintiffs' Hostile Work Environment. Response to Motion due by 10/29/2013. Entered at the Direction of The Honorable C Weston Houck on 10/29/2013.(vdru, ) Modified to edit text on 10/30/2013 (vdru, ). (Entered: 10/30/2013)
458 REPLY to Response to Motion re 455 MOTION for Reconsideration re 454 Order on Motion for Miscellaneous Relief, Defendants Nucor Corporation's and Nucor Steel Berkeley's Motion for Reconsideration of Denial of Motion to Decertify Plaintiffs' Hostile Work Environ Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Addendum Healy v. International Brotherhood of Electrical

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02/14/2014 07/25/2014 08/25/2014 05/11/2015 06/24/2015 07/02/2015
12/15/2015 12/21/2015 12/22/2015 12/22/2015 01/06/2016 01/06/2016

Workers, # 2 Addendum Cuevas v. Citizens Financial Group, # 3 Addendum Scott v. Family Dollars Store)(Wilkerson, John) (Entered: 11/05/2013)
461 ORDER denying 455 Motion for Reconsideration re 454 Order on Motion for Miscellaneous Relief. Additionally, the Court declines to certify its September 27, 2013 Order for immediate appeal. Signed by Honorable C Weston Houck on 2/11/2014.(vdru, ) (Entered: 02/14/2014)
464 ORDER of USCA as to 440 Notice of Interlocutory Appeal,, filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons. The Court denies the petition for interlocutory review of the refusal to decertify as untimely. (vdru, ) (Entered: 07/25/2014)
465 ORDER of USCA as to 440 Notice of Interlocutory Appeal and 278 Notice of Interlocutory Appeal. The USCA denies the petition for hearing en banc. (vdru, ) (Entered: 08/26/2014)
466 USCA OPINION for 440 Notice of Interlocutory Appeal, filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons. Decision of Appeals Court: The District Court's decision is vacated in part and remanded with instructions. (vdru, ) (Entered: 05/11/2015)
467 ORDER of USCA denying the petition for rehearing en banc as to 440 Notice of Interlocutory Appeal, filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons. (vdru, ) (Entered: 06/25/2015)
468 USCA MANDATE and JUDGMENT as to 440 Notice of Interlocutory Appeal. The judgment of the district court is vacated in part. This case is remanded to the district court for further proceedings consistent with the court's decision. (Attachments: # 1 4CCA Judgment)(vdru, ) (Additional attachment(s) added on 7/6/2015: # 2 USCA Order granting Motion for Costs) (vdru, ). Modified to add Order re Costs Taxed per Fed. R. App. P. 39(d) on 7/6/2015 (vdru, ). (Entered: 07/02/2015)
469 MOTION to Compel by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 1/4/2016. (Attachments: # 1 Exhibit Production Requests)No proposed order.(Derfner, Armand) (Entered: 12/15/2015)
470 Consent MOTION for Extension of Time to Respond to Plaintiffs' Motion to Compel by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 1/7/2016. Proposed order is being emailed to chambers with copy to opposing counsel.(Wilkerson, John) (Entered: 12/21/2015)
471 ORDER: In light of the Fourth Circuit's opinion, this Court certifies the promotions class. Currently, the hostile work environment class is certified. Therefore, both the promotions class and the hostile work environment classes are certified. Signed by Honorable C Weston Houck on 12/22/2015. (vdru, ) (Entered: 12/22/2015)
472 ORDER granting 470 Motion for Extension of Time to file responses to motion to compel. Signed by Honorable C Weston Houck on 12/22/15.(jwol, ) (Entered: 12/22/2015)
474 NOTICE of Status Conference and Hearing on Motion 469 MOTION to Compel : Motion Hearing set for Thursday, 2/11/2016 at 11:30 AM in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru, ) (Entered: 01/06/2016)
475 AMENDED NOTICE of Hearing: A Telephone Status Conference is set for Thursday, 2/11/2016 at 11:30 AM before The Honorable C Weston Houck. Please be advised that Judge Houck will also hear the MOTION to Compel 469 if the motion is still pending at the time of the hearing. Plaintiffs counsel shall join all participating counsel on the call and then call in to Chambers (843−579−1480) at 11:30 a.m. A court reporter will be present in Chambers (vdru, ) Modified to edit text per Chambers instruction on 1/6/2016 (vdru, ). (Entered: 01/06/2016)

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 48 of 65

01/18/2016 01/18/2016 01/28/2016
02/01/2016 02/04/2016 02/10/2016 02/11/2016

476 MOTION Motion to Alter or Amend Class Definition by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/4/2016. (Attachments: # 1 Exhibit Ex. A. Brockman v. Barton Brands, LTD, # 2 Exhibit Ex. B. Kemblesville HHMO Center, LLC v. Landhope Realty Co., # 3 Exhibit Ex. C. Cruz v. Dollar Tree Stores, Inc., # 4 Exhibit Ex. D. Duffin v. Exelon Corp., # 5 Exhibit Ex. E. Copp v. Am. Enter. Servc. Co., # 6 Exhibit Ex. F. Panache Broadcasting of Pennsylvania, Inc. v Richardson, # 7 Exhibit Ex. G. Barry v Moran.)No proposed order.(Wilkerson, John) (Entered: 01/18/2016)
477 RESPONSE in Opposition re 469 MOTION to Compel Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 1/28/2016 (Attachments: # 1 Exhibit Ex. A. Correspondence between counsel, # 2 Exhibit Ex. B. Church of Christ at Azalea Drive v. Forest River, Inc., # 3 Exhibit Ex. C. Brockman v. Barton Brands)(Wilkerson, John) (Entered: 01/18/2016)
479 RESPONSE in Support re 469 MOTION to Compel Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. (Attachments: # 1 Exhibit Quinton Brown Declaration, # 2 Exhibit Ray Roane Declaration, # 3 Exhibit Gerald White Declaration, # 4 Exhibit Sheldon Singletary Declaration, # 5 Exhibit Aaron Butts Declaration, # 6 Exhibit Ken Hubbard Declaration, # 7 Exhibit Bernard Beaufort Declaration, # 8 Exhibit Alvin Simmons Declaration, # 9 Exhibit Deposition Excerpts of Ray Roane, # 10 Exhibit Deposition Excerpts of Scott Clark, # 11 Exhibit Application for Transfer (Gerald White), # 12 Exhibit Deposition Excerpts of Gerald White, # 13 Exhibit Roll Shop Crew Leader, 2/16/04 Application (Gerald White), # 14 Exhibit Deposition Excerpts of Sheldon Singletary, # 15 Exhibit Jason Guy Declaration, # 16 Exhibit Robyn Spann Declaration, # 17 Exhibit Earl Ravenell Declaration, # 18 Exhibit Deposition Excerpts of Aaron Butts, # 19 Exhibit Deposition Excerpts of Jason Guy, # 20 Exhibit Byron Turner Declaration, # 21 Exhibit Deposition Excerpts of Bernard Beaufort, # 22 Exhibit Jacob Ravenell, Jr. Declaration, # 23 Exhibit Eric Conyers Declaration, # 24 Exhibit Joseph Cook Declaration, # 25 Exhibit Deposition Excerpts of Quinton Brown, # 26 Exhibit Deposition Excerpts of Kenneth Hubbard, # 27 Exhibit Deposition Excerpts of Robyn Spann, # 28 Exhibit Deposition Excerpts of Earl Ravenell, # 29 Exhibit Ladle Wall Helper posting, 2/24/06, # 30 Exhibit Ladle Wall Helper posting, 5/31/02, # 31 Exhibit Ladle Wall Helper Refactory posting, 2/12/01, # 32 Exhibit Bricker posting, 6/16/03, # 33 Exhibit Rev. Mill Exit Operator posting, 8/12/03, # 34 Exhibit Forklift/Crane Operator (4 positions) Coil Shipping posting, 7/31/02, # 35 Exhibit Taylor/Crane Operator (1 position) Coil Shipping posting, 7/5/02, # 36 Exhibit Forklift Taylor/Crane Operator posting, 8/9/02, # 37 Exhibit Deposition Excerpts of Paul Ferguson, # 38 Exhibit Tagger posting, 7/10/01, # 39 Exhibit Individuals applying for Tagger position, # 40 Exhibit Application for Transfer − Michael Bodony for Tagger position, # 41 Exhibit Application for Transfer − Robyn Spann for Tagger position, # 42 Exhibit Application for Transfer − Ray Messemer for Tagger position, # 43 Exhibit Change of Status − R. Waldron, 3/10/02, # 44 Exhibit Deposition Excerpts of Al Smith, # 45 Exhibit Joseph (Joe) M. Rider Application for Transfer for Reversing Mill #2 Utility, 6/4/02)(Derfner, Armand) Modified to correct filing date on 2/1/2016 (vdru, ). (Entered: 02/01/2016)
480 DELETION OF DOCKET ENTRY NUMBER 478 Reason: Document refiled by the filing attorney in order to file under the correct event and to provide separated exhibits with their descriptions. Corrected Filing Document Number 479 Modified filing date to that of original filing: 1/28/2016. (vdru, ) (Entered: 02/01/2016)
481 RESPONSE in Opposition re 476 MOTION Motion to Alter or Amend Class Definition Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 2/16/2016 (Derfner, Armand) (Entered: 02/04/2016)
482 REPLY to Response to Motion re 476 MOTION Motion to Alter or Amend Class Definition Defs' Reply to Plaintiff's Response Opposing Defs' Motion to Alter or Amend Class Definition Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 02/10/2016)
483 Minute Entry. Proceedings held before Honorable C Weston Houck: granting in part and denying in part 469 Motion to Compel; Telephone Status Conference and Motion Hearing held on 2/11/2016 re 469 MOTION to Compel filed by

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02/12/2016
02/17/2016 02/26/2016 03/01/2016
05/09/2016 05/27/2016 05/31/2016 06/02/2016 06/07/2016 06/07/2016

Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons. Defendants ordered to produce supplemental discovery as discussed on the record up to the cut−off date of April 27, 2011 to Plaintiffs within 30 days. The April 27, 2011 cut−off is for members to join class and for discovery, excluding discovery for injunctive relief. Court Reporter Debbie Potocki. (ssam, ) Modified to edit text on 2/11/2016 (ssam, ). (Entered: 02/11/2016)
484 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephone conference held on 2−11−16, before Judge C. Weston Houck. Court Reporter/Transcriber Debra Potocki, Telephone number/E−mail 843−723−2208/potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 3/4/2016. Redacted Transcript Deadline set for 3/14/2016. Release of Transcript Restriction set for 5/12/2016. Associated Cases: 2:04−cv−22005−CWH, 2:08−cv−02429−CWH−BM(dpotocki, ) (Entered: 02/12/2016)
485 ORDER denying 476 Motion to Amend the Class Certification. It is ordered that the class certification provided in the Court's April 27, 2011 Order remains the same. Signed by Honorable C Weston Houck on 2/16/2016.(vdru, ) (Entered: 02/17/2016)
486 Consent MOTION for Extension of Time to Complete Discovery Consent Motion and Memorandum for an Extension of Time to Supplement Discovery Responses by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 3/14/2016. (Attachments: # 1 Proposed Order Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Wilkerson, John) (Entered: 02/26/2016)
487 TEXT CONSENT ORDER granting 486 Motion for Extension of Time to Complete Discovery: Defendants have moved for a 30−day extension of time to supplement their discovery responses in compliance with the Courts Order of February 11, 2016 (#483), and Plaintiffs have consented to that Motion. Having considered the volume of the supplementation and the efforts that will be required to make this supplemental production, Defendants Motion is GRANTED. Defendants deadline for supplementing their document production will now be APRIL 11, 2016. Entered at the Direction of The Honorable C Weston Houck on 3/1/2016.(vdru, ) (Entered: 03/01/2016)
488 NOTICE of Hearing: Telephone Status Conference set for Thursday, 6/2/2016 at 2:30 PM before Honorable C Weston Houck. Plaintiffs' counsel shall join all participating counsel on the call and then call in to Chambers (843−579−1480) at 2:30 p.m. A court reporter will be present in Chambers. (vdru, ) (Entered: 05/09/2016)
489 NOTICE of Request for Protection from Court Appearance by John Smith Wilkerson, III for July 15, 2016, July 19−21, 2016, July 25−29, 2016 and September 9−19, 2016 (Attachments: # 1 Proposed Order)(Wilkerson, John) (Entered: 05/27/2016)
490 ORDER re 489 Notice of Request for Protection. It is ordered that John Wilkerson, III is protected from Court Appearances in this case for July 15, 2016, July 19−21, 2016, July 25−29, 2016 and September 9−19, 2016. Signed by Honorable C Weston Houck on 5/27/2016. (vdru, ) (Entered: 05/31/2016)
491 NOTICE OF RESCHEDULED HEARING: The Telephone Hearing previously set for Thursday, 6/2/2016 at 2:30 PM is CANCELLED and RESCHEDULED to: Please be advised that the Telephone Conference has been rescheduled for Tuesday, 6/7/2016 at 2:30 PM before Honorable C Weston Houck. Plaintiffs' counsel shall join all participating counsel on the call and then call in to Chambers (843−579−1480) at 2:30 p.m. A court reporter will be present in Chambers.(vdru, ) (Entered: 06/02/2016)
492 Minute Entry. Proceedings held before Honorable C Weston Houck: Telephone Conference held on 6/7/2016. Court Reporter Amy Diaz. (jwol, ) (Entered: 06/07/2016)
493 CONSENT SCHEDULING ORDER Plaintiffs ID of Expert Witness due by 9/30/2016, Defendants ID of Expert Witnesses Due by 11/1/2016, Records

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07/01/2016 08/31/2016 08/31/2016 08/31/2016 08/31/2016 09/06/2016 09/06/2016 09/06/2016 09/06/2016 09/23/2016 10/04/2016 10/05/2016

Custodian Affidavit due by 12/1/2016, Discovery due by 12/16/2016, Motion in Limine due by 3/1/2017, Motions due by 1/17/2017, Pretrial Briefs due by 4/14/2017, Jury Selection Deadline 5/1/2017, Mediation Due by 3/31/2017, a pretrial trial conference shall be held on or about 4/17/17. Signed by Honorable C Weston Houck on 6/7/16. (jwol, ) (Entered: 06/07/2016)
494 Letter from John S. Wilkerson. (Attachments: # 1 Exhibit proposed Class Notice, # 2 Exhibit Exclusion Request Form)(Wilkerson, John) (Entered: 07/01/2016)
495 MOTION to Appear Pro Hac Vice by James F. Bennett ( Filing fee $ 250 receipt number 0420−6738118) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 9/19/2016. (Attachments: # 1 Affidavit, # 2 Supporting Documents Certificate)No proposed order.(Wilkerson, John) (Entered: 08/31/2016)
496 MOTION to Appear Pro Hac Vice by Sheena R. Hamilton ( Filing fee $ 250 receipt number 0420−6738176) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 9/19/2016. (Attachments: # 1 Affidavit, # 2 Supporting Documents Certificate)No proposed order.(Wilkerson, John) (Entered: 08/31/2016)
497 MOTION to Appear Pro Hac Vice by Jennifer S. Kingston ( Filing fee $ 250 receipt number 0420−6738226) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 9/19/2016. (Attachments: # 1 Affidavit, # 2 Supporting Documents Certificate)No proposed order.(Wilkerson, John) Modified to correct spelling on 9/6/2016 (vdru, ). (Entered: 08/31/2016)
498 MOTION to Appear Pro Hac Vice by Gabriel E. Gore ( Filing fee $ 250 receipt number 0420−6738248) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 9/19/2016. (Attachments: # 1 Affidavit, # 2 Supporting Documents Certificate)No proposed order.(Wilkerson, John) (Entered: 08/31/2016)
499 ORDER granting 495 Motion to Appear Pro Hac Vice. James F. Bennett, who represents Nucor Corporation and Nucor Steel−Barkley is granted admission pro hac vice in this case. Signed by Honorable C Weston Houck on 9/6/2016.(vdru, ) (Entered: 09/06/2016)
500 ORDER granting 496 Motion to Appear Pro Hac Vice. Sheena R. Hamilton, who represents Nucor Corporation and Nucor Steel−Barkley, is granted admission pro hac vice in this case. Signed by Honorable C Weston Houck on 9/6/2016.(vdru, ) (Entered: 09/06/2016)
501 ORDER granting 497 Motion to Appear Pro Hac Vice. Jennifer S. Kingston, who represents Nucor Corporation and Nucor Steel−Barkley, is granted admission pro hac vice in this case. Signed by Honorable C Weston Houck on 9/6/2016.(vdru, ) (Entered: 09/06/2016)
502 ORDER granting 498 Motion to Appear Pro Hac Vice. Gabriel E. Gore, who represents Nucor Corporation and Nucor Steel−Barkley, is granted admission pro hac vice in this case. Signed by Honorable C Weston Houck on 9/6/2016.(vdru, ) (Entered: 09/06/2016)
503 MOTION for Extension of Time by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 10/11/2016. No proposed order.(Derfner, Armand) (Main Document 503 replaced on 9/23/2016) (sshe, ). Modified on 9/23/2016 to replace with corrected document as requested and provided by filing user (sshe, ). (Entered: 09/23/2016)
504 RESPONSE to Motion re 503 MOTION for Extension of Time Memorandum in Response to Plaintiffs' Motion to Extend Time for Expert Reports and Related Pre−Trial Deadlines, and in Support of Defendants' Request for Revised Scheduling Order Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 10/14/2016 (Wilkerson, John) (Entered: 10/04/2016)
505 MOTION to Seal Defendants' Motion for Leave to File Under Seal by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 10/24/2016. (Attachments: # 1 Memo in Support, # 2 Exhibit Index of Items Filed Under Seal, # 3 Exhibit Certificate of Compliance, # 4 Exhibit Attachment regarding hand delivery of sealed documents)No proposed order.(Wilkerson, John) (Entered: 10/05/2016)

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10/05/2016 10/13/2016 10/13/2016 10/13/2016 10/17/2016 10/17/2016
10/20/2016 10/27/2016 11/04/2016
11/15/2016 11/17/2016

516 Sealed Motion. (Attachments: # 1 Exhibit A − Flash Drive, # 2 Exhibit B − proposed Order, # 3 Exhibit C − Remedial Notice)(Wilkerson, John) Modified to correct filing date to the day that the motion was mailed to the Court per Chambers instruction on 11/8/2016 (vdru, ). Modified to create linkage to 508 and 512 per Chambers on 11/8/2016 (vdru, ). Modified to correct event to show as Sealed Motion instead of Sealed Document per chambers on 11/30/2016 (ssam, ). (Entered: 11/07/2016)
506 RESPONSE in Support re 505 MOTION to Seal Defendants' Motion for Leave to File Under Seal Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons. (Derfner, Armand) Modified to remove a party incorrectly listed as a filer per filer's request on 10/13/2016 (vdru, ). (Entered: 10/13/2016)
507 MOTION for Leave to File Response to ECF Docket Entry #505 Under Seal by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons. Response to Motion due by 10/31/2016. (Attachments: # 1 Exhibit Index of Documents, # 2 Exhibit Certificate of Compliance)No proposed order.(Derfner, Armand) (Entered: 10/13/2016)
508 Sealed Document in re document 505 . (Attachments: # 1 Exhibit Declaration of Ramon Roane, # 2 Exhibit Excerpts from Cook Deposition)(Derfner, Armand) Modified to create linkage to 516 per Chambers on 11/8/2016 (vdru, ). (Entered: 10/13/2016)
509 TEXT ORDER granting 505 Motion to Seal and granting 507 Motion for Leave to File Response Under Seal. Entered at the Direction of The Honorable C Weston Houck on 10/17/2016.(vdru, ) (Entered: 10/17/2016)
510 AMENDED SCHEDULING ORDER: Plaintiffs ID of Expert Witness due by 10/31/2016, Defendants ID of Expert Witnesses Due by 12/1/2016, Records Custodian Affidavit due by 1/2/2017, Discovery due by 1/16/2017, Motion in Limine due by 3/1/2017, Motions due by 2/16/2017, Pretrial Briefs due by 4/14/2017, Jury Selection Deadline 5/1/2017, Mediation Due by 3/31/2017. Other deadlines set forth in Order. Signed by Honorable C Weston Houck on 10/17/2016. (vdru, ) (Entered: 10/17/2016)
512 Sealed Document. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Wilkerson, John) Modified to create linkage to 516 per Chambers on 11/8/2016 (vdru, ). (Entered: 10/20/2016)
513 Consent MOTION for Extension of Time Consent Motion for Day Certain Trial Date and Extension of Discovery Deadlines by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 11/14/2016. No proposed order.(Wilkerson, John) (Entered: 10/27/2016)
514 ORDER granting in part and denying in part the parties' 513 Motion for Extension of Time. The Court grants the parties' request to move the trial from the May 2017 Term of Court to the November 2017 Term of Court. In addition, the Court grants the parties' request to set the case for a day certain trial date. Jury selection in this action shall commence on November 6, 2017, and the trial will commence upon the completion of jury selection. The Court denies the request to bifurcate the trial at this time. The request to bifurcate the trial will be determined at the October 2017 Bar Meeting. With respect to the parties' request for an extension of the deadlines set forth in the current scheduling order, the Court denies such request, holding that all deadlines shall remain the same as those provided in the October 17, 2016 Amended Scheduling Order. AND IT IS SO ORDERED. Signed by Honorable C Weston Houck on 11/4/2016.(sshe, ) (Entered: 11/04/2016)
517 Joint MOTION to Amend/Correct 510 Scheduling Order, by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 12/2/2016. (Attachments: # 1 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Wilkerson, John) (Entered: 11/15/2016)
518 NOTICE of Hearing on Motions Dkt. No. 516 Motion for Protective Order and 517 Joint MOTION to Amend/Correct 510 Scheduling Order, : Motion Hearing set for 11/30/2016 11:30 AM in Charleston Courtroom To Be Determined, U. S. Court House, Meeting at Broad St, Charleston before Honorable C Weston Houck. (sshe, ) (Entered: 11/17/2016)

Case: 2:04-cv-22005 As of: 06/09/2019 04:04 PM EDT 52 of 65

11/30/2016 11/30/2016 11/30/2016 12/05/2016 12/06/2016 12/07/2016 12/19/2016
12/19/2016
01/11/2017 01/13/2017

519 AMENDED NOTICE of Hearing− Announcement of COURTROOM LOCATION: Please be advised that the hearing on 517 Joint MOTION to Amend/Correct Scheduling Order and 516 Motion for Protective Order which is set for Wednesday, 11/30/2016 at 11:30 AM will be in Charleston Courtroom #4, U. S. Court House, 85 Broad St, Charleston before Honorable C Weston Houck. (vdru, ) (Entered: 11/30/2016)
520 Minute Entry. Proceedings held before Honorable C Weston Houck: granting in part, deferring in part 516 SEALED MOTION. Motion Hearing held on 11/30/2016 re 516 SEALED MOTION filed by Nucor Steel Berkeley, Nucor Corporation, 517 Joint MOTION to Amend/Correct 510 Scheduling Order, filed by Nucor Steel Berkeley, Nucor Corporation. Court schedules a telephone conference for Wednesday, December 7, 2016 at 11:30 a.m. Court Reporter Virginia Druce, CourtSmart. (ssam, ) (Entered: 11/30/2016)
522 NOTICE of Hearing: Telephone Conference set for 12/7/2016 11:30 AM before Honorable C Weston Houck. Plaintiffs' counsel shall join all participating counsel on the call and then call in to Chambers (843−579−1480) at 11:30 a.m. A court reporter will be present in Chambers. (ssam, ) (Entered: 11/30/2016)
523 SUPPLEMENT by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons to 516 SEALED MOTION . (Derfner, Armand) (Entered: 12/05/2016)
524 NOTICE OF RESCHEDULED HEARING− The telephone conference which was previously set for Wednesday, 12/7/2016 at 11:30 AM before Honorable C Weston Houck is RESCHEDULED: Please be advised that a Telephone Conference is set for Wednesday, 12/7/2016 at 02:00 PM before Honorable C Weston Houck. The rescheduling is a TIME CHANGE ONLY. Plaintiffs' counsel shall join all participating counsel on the call and then call in to Chambers (843−579−1480) at 11:30 a.m. A court reporter will be present in Chambers.(vdru, ) (Entered: 12/06/2016)
525 Minute Entry. Proceedings held before Honorable C Weston Houck: Telephone Conference held on 12/7/2016. Parties are to submit a proposed order. Court Reporter Amy Diaz. (ssam, ) (Entered: 12/07/2016)
526 ORDER re 516 Sealed Motion and 517 Motion to Amend the Scheduling Order. It is ordered that Nucor's motion for a protective order and sanctions (ECF No. 516) is granted as modified with respect to the request for a remedial notice, denied with respect to the request for a protective order, and mooted with respect to the request to remove Roane as a class representative. The parties' motion to amend the scheduling order (ECF No. 517) is granted as modified. The amended scheduling order will be issued forthwith. The Court has accepted Roane's voluntary withdrawal as a class representative. Signed by Honorable C Weston Houck on 12/16/2016.(vdru, ) Modified to add text on 12/19/2016 (vdru, ). (Entered: 12/19/2016)
527 AMENDED SCHEDULING ORDER: Plaintiffs ID of Expert Witness due by 1/17/2017, Defendants ID of Expert Witnesses Due by 3/15/2017, Records Custodian Affidavit due by 6/1/2017, Discovery due by 5/15/2017, Motion in Limine due by 9/1/2017, Motions due by 5/1/2017, Proposed Class Notice to the Court by 7/1/2016, Final witness lists, exhibit lists, and depposition designations by 9/1/2017 with objections by 9/15/2017, Pretrial Briefs due by 10/2/2017, Jury Selection Deadline 11/6/2017, Mediation Due by 8/1/2017. Signed by Honorable C Weston Houck on 12/8/2016. (vdru, ) Modified to edit text to correct a deadline on 1/12/2017 (vdru, ). (Entered: 12/19/2016)
528 Joint MOTION for Extension of Time to Exchange Expert Reports by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 1/25/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) (Entered: 01/11/2017)
529 TEXT ORDER granting 528 Joint Motion for Extension of Time. It is ordered that the requested 30 day extension to exchange expert reports is granted. Entered at the Direction of The Honorable C Weston Houck on 1/13/2017.(vdru, ) (Entered: 01/13/2017)

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01/19/2017
01/23/2017 01/27/2017 02/10/2017 02/24/2017 03/10/2017 03/15/2017 03/17/2017
03/17/2017 03/17/2017 03/20/2017 03/20/2017

530 MOTION to Appear Pro Hac Vice by Kent Spriggs ( Filing fee $ 250 receipt number 0420−6951469) by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 2/2/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Application for Pro Hac Vice, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Derfner, Armand) (Entered: 01/19/2017)
531 MOTION to Appear Pro Hac Vice by Michael J. Kuhn ( Filing fee $ 250 receipt number 0420−6957582) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 2/6/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Wilkerson, John) (Entered: 01/23/2017)
532 ORDER granting 531 Motion to Appear Pro Hac Vice. Signed by Honorable C Weston Houck on 1/27/17.(cmur, ) (Entered: 01/27/2017)
533 ORDER granting 530 Motion of Kent Spriggs to Appear Pro Hac Vice for Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Signed by Honorable C Weston Houck on 2/9/2017.(sshe, ) (Entered: 02/10/2017)
534 MOTION to Compel Discovery by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 3/10/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) (Entered: 02/24/2017)
535 RESPONSE in Opposition re 534 MOTION to Compel Discovery Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 3/17/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit Excerpt of telephone conference 2/11/16)(Wilkerson, John) (Entered: 03/10/2017)
536 STIPULATION STIPULATION REGARDING THE PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Proposed Order)(Wilkerson, John) (Entered: 03/15/2017)
537 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of motion hearing held on 6−8−05, before Judge C. Weston Houck. Court Reporter/Transcriber Debra Potocki, Telephone number/E−mail 843−723−2208/potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 4/7/2017. Redacted Transcript Deadline set for 4/17/2017. Release of Transcript Restriction set for 6/15/2017. Associated Cases: 2:04−cv−22005−CWH, 2:08−cv−02429−CWH−BM(dpotocki, ) (Entered: 03/17/2017)
538 Consent MOTION for Extension of Time by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. Response to Motion due by 3/31/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) (Entered: 03/17/2017)
539 TEXT ORDER granting 538 Motion for Extension of Time. Entered at the direction of Honorable C Weston Houck on 3/17/2017.(ssam, ) (Entered: 03/17/2017)
541 ORDER re 536 Stipulation filed by Nucor Steel Berkeley, Nucor Corporation. The Court orders that the parties' stipulation regarding the production of documents and electronically stored information is not adopted. Signed by Honorable C Weston Houck on 3/20/2017. (vdru, ) (Entered: 03/20/2017)
542 REPLY to Response to Motion re 534 MOTION to Compel Discovery Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons,

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Sheldon Singletary, Gerald White. (Derfner, Armand) (Entered: 03/20/2017)
543 OBJECTIONS by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White. (Derfner, Armand) (Entered: 03/27/2017)
544 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Telephone Conference held on June 7, 2016, before Judge C. Weston Houck. Court Reporter/Transcriber Amy Diaz, Telephone number/E−mail jmarkdiaz@att.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 4/19/2017. Redacted Transcript Deadline set for 5/1/2017. Release of Transcript Restriction set for 6/27/2017. (adia, ) (Entered: 03/29/2017)
545 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Telephone Conference held on December 7, 2016, before Judge C. Weston Houck. Court Reporter/Transcriber Amy Diaz, Telephone number/E−mail jmarkdiaz@att.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 4/19/2017. Redacted Transcript Deadline set for 5/1/2017. Release of Transcript Restriction set for 6/27/2017. (adia, ) (Entered: 03/29/2017)
546 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of motion hearing held on 11−30−16, before Judge C. Weston Houck. Court Reporter/Transcriber Druce/Potocki, Telephone number/E−mail 843−723−2208/potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 4/19/2017. Redacted Transcript Deadline set for 5/1/2017. Release of Transcript Restriction set for 6/27/2017. (dpotocki, ) (Entered: 03/29/2017)
547 MOTION to Compel Defendants Nucor Steel−Berkeley and Nucor Corporation's Motion to Compel Depositions and Motion to Exceed 10 Depositions Under Rule 30(a) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 4/13/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Addendum Exhibit List, # 2 Exhibit A − 11/30/16 Hearing Transcript, # 3 Exhibit B − Wiggins Email − Supplementation, # 4 Exhibit C − Kingston Email − Schedule, # 5 Exhibit D − Wiggins Email − Staffing, # 6 Exhibit E − Wiggins Email − Many Months, # 7 Exhibit F − Farris Email − Deponent Names, # 8 Exhibit G − Farris Email − Deponent Names 2, # 9 Exhibit H − Wiggins Email − Availability, # 10 Exhibit I − Wiggins Email − Counter Proposal, # 11 Exhibit J − Farris Email − Liability and Damages Discovery, # 12 Exhibit K − Farris Email − Expert Extension, # 13 Exhibit L − Class Notice, # 14 Exhibit M − Kingston Email − Depo Dates March 8−22, # 15 Exhibit N − Kingston Email − Depo Notices, # 16 Exhibit O − 5/17/16 Hearing Transcript, # 17 Exhibit P − Plaintiffs Rule 26 Disclosures)No proposed order.(Wilkerson, John) (Attachment 17 replaced on 4/3/2017) (vdru, ). Modified to replace attachment #17 (Exhibit P) with a standard sized copy in order to show the document's filing header on 4/3/2017 (vdru, ). (Entered: 03/30/2017)
548 NOTICE of Hearing on Motion 534 MOTION to Compel Discovery, 547 MOTION to Compel Defendants Nucor Steel−Berkeley and Nucor Corporation's Motion to Compel Depositions and Motion to Exceed 10 Depositions Under Rule 30(a) : A Telephone Conference is set for Thursday, 4/13/2017 at 02:30 PM before Honorable C Weston Houck. Plaintiff's counsel shall join all participating counsel on the call and then call in to Chambers (843−579−1480) at 2:30 P.M.(vdru, ) Modified to edit text on 4/12/2017 (vdru, ). (Entered: 04/11/2017)
549 RESPONSE in Opposition re 547 MOTION to Compel Defendants Nucor Steel−Berkeley and Nucor Corporation's Motion to Compel Depositions and Motion to Exceed 10 Depositions Under Rule 30(a) Response filed by Quinton Brown.Reply

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to Response to Motion due by 4/19/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Supporting Documents Evidentiary Submission Exhibit List, # 2 Exhibit 1 Email to Jennifer Kingston from Bob Wiggins dated February 24, 2017, # 3 Exhibit 2 Email to Jennifer Kingston from Bob Wiggins dated March 14, 2017 at 2:09 p.m., # 4 Exhibit 3 Email to Jennifer Kingston from Bob Wiggins dated March 23, 2017 at 11:50 a.m., # 5 Exhibit 4 Email to Cary Farris and Jennifer Kingston from Bob Wiggins dated March 23, 2017 at 10:06 a.m., # 6 Exhibit 5 Email to Jennifer Kingston from Bob Wiggins dated March 14, 2017 at 9:22 a.m., # 7 Exhibit 6 Email to Bob Wiggins from Jennifer Kingston dated February 23, 2017, # 8 Exhibit 7 List of 19 depositions already taken by Defendant Nucor Berkeley, # 9 Exhibit 8 List of 21 depositions already taken by Plaintiffs)(Derfner, Armand) Modified on 4/13/2017 to add descriptions to exhibits in docket text(sshe, ). (Entered: 04/12/2017)
550 Minute Entry. Proceedings held before Honorable C Weston Houck: Telephone Conference held on 4/13/2017 re 534 MOTION to Compel Discovery filed by Gerald White, Jacob Ravenell, Jason Guy, Sheldon Singletary, Ramon Roane, Quinton Brown, Alvin Simmons, 547 MOTION to Compel Defendants Nucor Steel−Berkeley and Nucor Corporation's Motion to Compel Depositions and Motion to Exceed 10 Depositions Under Rule 30(a) filed by Nucor Steel Berkeley, Nucor Corporation. Court to issue order. Court Reporter: Gil O'Brien, Court Smart. (ssam, ) (Entered: 04/13/2017)
551 ORDER denying 534 Motion to Compel and withdrawing 547 Motion to Compel. Details set forth in Order. Signed by Honorable C Weston Houck on 4/18/2017.(vdru, ) (Entered: 04/18/2017)
552 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephone conference/motions hearing held on 4−13−17, before Judge C. Weston Houck. Court Reporter/Transcriber O'Brien/Potocki, Telephone number/E−mail 843−723−2208/potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 5/22/2017. Redacted Transcript Deadline set for 6/1/2017. Release of Transcript Restriction set for 7/31/2017. Associated Cases: 2:04−cv−22005−CWH, 2:08−cv−02429−CWH−BM(dpotocki, ) (Entered: 05/01/2017)
553 MOTION for Summary Judgment by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 5/15/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support, # 2 Addendum Exhibit List, # 3 Exhibit 1 Plaintiffs Expert Report of Drs. Fox and Bradley, February 15, 2017, # 4 Exhibit 2 Deposition Transcript of Dr. Edwin Bradley, March 6, 2017, # 5 Exhibit 3 March 4, 2016 Production, # 6 Exhibit 4 April 11, 2016 Production, # 7 Exhibit 5 January 2017 Production, # 8 Exhibit 6 February 6, 2017 Production, # 9 Exhibit 7 Defendants Expert Report of Dr. Robert Topel, April 14, 2017, # 10 Exhibit 8 Deposition Transcript of Dr. Liesl Fox, March 21, 2017, # 11 Exhibit 10 Cold Mill Scheduler Job Bid Packet, # 12 Exhibit 11 − Hot Mill Lab Tech Job Bid Packet, # 13 Exhibit 12 Employment Policies, # 14 Exhibit 13 Harassment Policies, # 15 Exhibit 14 Complaint Procedure Policies)No proposed order.(Wilkerson, John) (Additional attachment(s) added on 5/5/2017: # 16 Exhibit 9: Employee Affidavits Part 1, # 17 Exhibit 9: Employee Affidavits Part 2, # 18 Exhibit 9: Employee Affidavits Part 3, # 19 Exhibit 9: Employee Affidavits Part 4, # 20 Exhibit 9: Employee Affidavits Part 5, # 21 Exhibit 9: Employee Affidavits Part 6, # 22 Exhibit 9: Employee Affidavits Part 7, # 23 Exhibit 9: Employee Affidavits Part 8, # 24 Exhibit 9: Employee Affidavits Part 9, # 25 Exhibit 9: Employee Affidavits Part 10, # 26 Exhibit 9: Employee Affidavits Part 11, # 27 Exhibit 9: Employee Affidavits Part 12) (vdru, ). Modified to add Exhibit 9 (divided into 12 parts and added later due to volume) per filer's request on 5/5/2017. (vdru, ). Modified to reference evidentiary supplement in opposition to 560 , 561 and 562 on 6/16/2017 (vdru, ). (Entered: 05/01/2017)
554 MOTION for Protective Order Defendants' Motion for Protective Order Under FRCP 26(c) and LR 30.04(c) by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 5/25/2017. Add an additional 3 days only if served by mail or

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05/19/2017 05/31/2017 06/08/2017 06/08/2017 06/14/2017 06/15/2017
06/15/2017

otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit 1 − 2/11/16 Hearing Transcript, # 2 Exhibit 2 − 4/13/17 Hearing Transcript, # 3 Exhibit 3 − Depo. Excerpts − Dr. Liesl Fox)No proposed order.(Wilkerson, John) (Entered: 05/11/2017)
555 ORDER denying 554 Motion for Protective Order. If the defendants wish to provide the Court with information specified in this Order, they may do so within twenty days of this Order, and, at that time, the Court will address their pending motion for a protective order on its merits. Signed by Honorable C Weston Houck on 5/19/2017.(vdru, ) (Entered: 05/19/2017)
556 MOTION to Strike Motion to Strike Expert by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 6/14/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit 1. Dr. Veres' report, # 2 Exhibit 2. May 15, 2017 email, # 3 Exhibit 3. Dr. Jacobs' report, # 4 Exhibit 4. Dr. Buckley's report, # 5 Exhibit 5. Dr. Jeanneret report)No proposed order.(Wilkerson, John) (Entered: 05/31/2017)
557 MOTION for Protective Order Renewed Motion for Protective Order by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 6/22/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit 1. Feb. 11, 2016 Transcript, # 2 Exhibit 2. April 13, 2017 Transcript, # 3 Exhibit 3. Depo excerpt. Liesl Fox)No proposed order.(Wilkerson, John) (Entered: 06/08/2017)
558 MOTION to Seal by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 6/22/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support, # 2 Exhibit Index of Items Filed Under Seal, # 3 Exhibit Certificate of Compliance, # 4 Certificate of Service)No proposed order.(Wilkerson, John) (Entered: 06/08/2017)
559 RESPONSE in Opposition re 556 MOTION to Strike Motion to Strike Expert Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White.Reply to Response to Motion due by 6/21/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Derfner, Armand) (Entered: 06/14/2017)
560 SUPPLEMENT by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White Plaintiffs' Evidentiary Submission in Opposition to Summary Judgment (Part 1). (Attachments: # 1 Exhibit Dec of R. Roane, # 2 Exhibit Dec of Q Brown, # 3 Exhibit Dec of A Simmons, # 4 Exhibit Dec of J Ravenell, # 5 Exhibit Dec of G White, # 6 Exhibit Dec of S Singletary, # 7 Exhibit Dec of J Guy, # 8 Exhibit Dec of W Cook, # 9 Exhibit Dec of E Conyers, # 10 Exhibit Dec of A Butts, # 11 Exhibit Dec of J Nick, # 12 Exhibit Dec of K Hubbard, # 13 Exhibit Dec of R Spann, # 14 Exhibit Dec of E Ravenell, # 15 Exhibit Dec of B Beaufort, # 16 Exhibit Dec of B Turner, # 17 Exhibit Aff of L Hall, # 18 Exhibit Aff of A. Rae Eagle, # 19 Exhibit Aff of Meleah Barnhill, # 20 Exhibit Order entered 8.23.04, # 21 Exhibit Bradley and Fox Expert Report, # 22 Exhibit Depo of E. Bradley, # 23 Exhibit Depo of L. Fox, # 24 Exhibit Exhs to Fox and Bradley Depos, # 25 Exhibit Expert Report of M. Buckley, # 26 Exhibit Depo of M. Buckley, # 27 Exhibit Depo Testimony, # 28 Exhibit Depo Testimony, # 29 Exhibit Depo Testimony, # 30 Exhibit Depo Testimony, # 31 Exhibit No Exhibit, # 32 Exhibit Depo Extracts from W Cook, # 33 Exhibit Depo Extracts from S Clark, # 34 Exhibit Depo Extracts from T Primm, # 35 Exhibit Part 1 of Depo of R. Roane, # 36 Exhibit Part 2 of Depo of R. Roane, # 37 Exhibit Part 1 of Depo of Q. Brown, # 38 Exhibit Part 2 of Depo of Q Brown, # 39 Exhibit Part 1 of Depo of A Simmons, # 40 Exhibit Part 2 of A Simmons Depo, # 41 Exhibit Part 1 of J Ravenell Depo, # 42 Exhibit Part 2 of J Ravenell Depo, # 43 Exhibit Part 1 of G White Depo, # 44 Exhibit Part 2 of G White Depo, # 45 Exhibit Part 1 of S Singletary Depo, # 46 Exhibit Part 2 of S Singletary Depo, # 47 Exhibit Depo of E Conyers, # 48 Exhibit Depo of R Spann, # 49 Exhibit Depo of A Butts)(Derfner, Armand) (Entered: 06/15/2017)
561 SUPPLEMENT by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White Plaintiffs' Evidentiary Submission in Opposition to Defendants' Motion for Summary Judgment (Part 2). (Attachments: # 1

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06/15/2017
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Exhibit Depo of B Beauford, # 2 Exhibit Depo of B Turner, # 3 Exhibit Depo of E Ravenell, # 4 Exhibit Depo of J Nick, # 5 Exhibit Depo of K Hubbard, # 6 Exhibit Part 1 of Depo of J Guy, # 7 Exhibit Part 2 of Depo of J Guy, # 8 Exhibit Depo of J. Singletary, # 9 Exhibit Photograph, # 10 Exhibit Email by D Pew, # 11 Exhibit Email and screensaver − B Beaufort, # 12 Exhibit Email from R. Roane, # 13 Exhibit Selection Policies, # 14 Exhibit Harassment Policies, # 15 Exhibit Dr. Fox Rebuttal Report, # 16 Exhibit Dr. Veres Rebuttal Report, # 17 Exhibit Dec of Anthony Moore, # 18 Exhibit Dec of Gabriel Harper, # 19 Exhibit Dec of Winston Hudson, # 20 Exhibit Dec of Ricky Ravenell, # 21 Exhibit Dec of James Heyward, # 22 Exhibit Dec of Darryl Wright, # 23 Exhibit Dec of Korico Cobin, # 24 Exhibit Dec of Brandon Smalls, # 25 Exhibit Dec of Quentin Scott, # 26 Exhibit Dec of Oscar Moultrie, # 27 Exhibit Dec of Keon Rhodan, # 28 Exhibit Dec of Carlos McCutchen, # 29 Exhibit Dec of Gary Washington, # 30 Exhibit Dec of Isiah Denmark, # 31 Exhibit Dec of Kevin Jamison, # 32 Exhibit Dec of Macella Davis, # 33 Exhibit Dec of Wayne Brown, # 34 Exhibit Depo Excerpts of K. Cills, # 35 Exhibit Depo Excerpts of J Lawrence, # 36 Exhibit Depo Excerpts of Alex Simmons, # 37 Exhibit Depo Excerpts of Rodney Porcher, # 38 Exhibit Depo Excerpts of Q. Brown, # 39 Exhibit Depo Excerpts of J Nick, # 40 Exhibit Depo Excerpts of J Ravenell, # 41 Exhibit Depo Excerpts of Alvin Simmons)(Derfner, Armand) (Entered: 06/15/2017)
562 SUPPLEMENT by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White Plaintiffs' Evidentiary Submission in Opposition to Defendants' Motion for Summary Judgment (Part 3). (Attachments: # 1 Exhibit Depo Excerpts of B Turner, # 2 Exhibit Depo Excerpts of T. Dingle, # 3 Exhibit Depo Excerpts of R. Edwards, # 4 Exhibit Depo Excerpts of M. Walker, # 5 Exhibit Depo Excerpts of B Middleton, # 6 Exhibit Depo Excerpts of T Howard, # 7 Exhibit Depo Excerpts of J Peeler, # 8 Exhibit Depo Excerpts of J Bowman, # 9 Exhibit Depo Excerpts of P Kiger, # 10 Exhibit Depo Excerpts of E. Brockington, # 11 Exhibit Depo Excerpts of J McCall, # 12 Exhibit Depo Excerpts of D Conyers, # 13 Exhibit Depo Excerpts of G Roper, # 14 Exhibit Depo Excerpts of Susan Smith, # 15 Exhibit Excerpts of D. Hamilton, # 16 Exhibit Excerpts of Sammy Smith, # 17 Exhibit Depo Testimony of G Daughtridge, # 18 Exhibit Depo Testimony of M Reynolds, # 19 Exhibit Depo Testimony of N Santana, # 20 Exhibit Depo Testimony of S. Theron Denmark, # 21 Exhibit Depo Testimony of R Marraccini, # 22 Exhibit Depo Testimony of S. McCarthy, # 23 Exhibit Depo Testimony of Dr. Robert Topel, # 24 Exhibit Depo Testimony of S. Slesinski, # 25 Exhibit Depo Testimony of S. Anderson, # 26 Exhibit Deposition Testimony, # 27 Exhibit Deposition Testimony, # 28 Exhibit Deposition Testimony, # 29 Exhibit Deposition Testimony, # 30 Exhibit Desposition Testimony, # 31 Exhibit Deposition Testimony, # 32 Exhibit Deposition Testimony, # 33 Exhibit Deposition Testimony, # 34 Exhibit Deposition Testimony, # 35 Exhibit Deposition Testimony, # 36 Exhibit Deposition Testimony, # 37 Exhibit Deposition Testimony, # 38 Exhibit Deposition Testimony, # 39 Exhibit Deposition Testimony, # 40 Exhibit Deposition Testimony, # 41 Exhibit Deposition Testimony, # 42 Exhibit Deposition Testimony, # 43 Exhibit Deposition Testimony)(Derfner, Armand) (Entered: 06/15/2017)
563 RESPONSE in Opposition re 553 MOTION for Summary Judgment Plaintiffs' Opposition To Summary Judgment Response filed by Quinton Brown.Reply to Response to Motion due by 6/22/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Derfner, Armand) (Entered: 06/15/2017)
564 NOTICE of Request for Protection from Court Appearance by John Smith Wilkerson, III for July18, 2017 through July 28, 2017 and August 7, 2017 through August 11, 2017 (Wilkerson, John) (Entered: 06/21/2017)
565 REPLY to Response to Motion re 556 MOTION to Strike Motion to Strike Expert Defendants' Reply in Support of Motion to Strike Expert Report of John G. Veres, III Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 06/21/2017)
566 TEXT ORDER granting 564 Notice of Request for Protection from Court Appearance filed by Nucor Steel Berkeley, Nucor Corporation. John Wilkerson, III is protected from Court appearances in this case from July 18, 2017 through July 28, 2017 and August 7, 2017 through August 11, 2017. Entered at the Direction of The Honorable C Weston Houck on 6/22/2017. (vdru, ) (Entered:

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06/22/2017)
567 REPLY to Response to Motion re 553 MOTION for Summary Judgment Defendants' Reply in Support of Summary Judgment Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Exhibit 1 − Fox Depo., # 2 Exhibit 2 − Bradley Depo., # 3 Exhibit 3 − Topel Depo., # 4 Exhibit 4 − Jacobs Report, # 5 Exhibit 5 − Topel Aff.)(Wilkerson, John) (Entered: 06/22/2017)
568 RESPONSE in Opposition re 557 MOTION for Protective Order Renewed Motion for Protective Order Plaintiffs' Opposition To Motion For Protective Order Response filed by Quinton Brown.Reply to Response to Motion due by 6/29/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit 1 − Brown 2017 Depo. Extracts, # 2 Exhibit 2 − Brown Decl. extracts, # 3 Exhibit 3 − Brown 2006 Depo. extracts, # 4 Exhibit 4 − Porcher Depo. Extracts, # 5 Exhibit 5 − Daughtridge Depo. Extracts, # 6 Exhibit 6 − Conyers Decl. Extracts, # 7 Exhibit 7 − Spann Decl. Extracts, # 8 Exhibit 8 − Cook Decl. Extracts, # 9 Exhibit 9 − Hubbard Decl. Extracts, # 10 Exhibit 10 − Henderson Depo. Extracts, # 11 Exhibit 11 − D. Reynolds Depo. Extracts, # 12 Exhibit 12 − Marraccini Depo. Extracts, # 13 Exhibit 13 − Depo. Extracts on Add. Instr., # 14 Exhibit 14− String Cites, # 15 Financial Certificate 15 − D. Conyers Depo. Extracts)(Derfner, Armand) (Entered: 06/22/2017)
569 REPLY to Response to Motion re 557 MOTION for Protective Order Renewed Motion for Protective Order Defendants' Reply in Support of Motion for Protective Order Under FRCP 26(c) and LR 30.04(C) Response filed by Nucor Corporation, Nucor Steel Berkeley. (Attachments: # 1 Exhibit 1 − 2/11/16 Telephone Transcript, # 2 Exhibit 2 − 4/13/17 Telephone Transcript)(Wilkerson, John) (Entered: 06/29/2017)
570 MOTION to Exclude Defendants' Motion to Exclude the Proposed Expert Testimony of Dr. Fox and Dr. Bradley by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 7/19/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support, # 2 Addendum Exhibit List, # 3 Exhibit 1 − Fox/Bradley Feb. 2017 Report, # 4 Exhibit 2 − Topel Report, # 5 Exhibit 3 − Fox/Bradley Rebuttal Report, # 6 Exhibit 4 − Topel Affidavit, # 7 Exhibit 5 − Fox Deposition Transcript, # 8 Exhibit 6 − Topel Deposition Transcript, # 9 Exhibit 7 − Bradley Deposition Transcript, # 10 Exhibit 8 − Jacobs Report, # 11 Exhibit 9 − Susan Smith Deposition Transcript, # 12 Exhibit 10 − Sammy Smith Deposition Transcript, # 13 Exhibit 11 − February 11, 2016 Hearing Transcript)No proposed order.(Wilkerson, John) (Entered: 07/05/2017)
571 MOTION to Strike 567 Reply to Response to Motion, Plaintiffs Motion to Strike New Summary Judgment Evidence Submitted With Defendants' Reply Brief by Quinton Brown. Response to Motion due by 7/20/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) (Entered: 07/06/2017)
572 MOTION to Withdraw as Attorney by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 7/25/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Proposed order is being emailed to chambers with copy to opposing counsel.(Ralephata, Nosizi) (Entered: 07/11/2017)
573 RESPONSE in Opposition re 570 MOTION to Exclude Defendants' Motion to Exclude the Proposed Expert Testimony of Dr. Fox and Dr. Bradley Plaintiffs' Opposition To Motion To Exclude Expert Report and Testimony Response filed by Quinton Brown.Reply to Response to Motion due by 7/26/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Derfner, Armand) Modified to reference additional attachments 574 and 575 on 7/20/2017 (vdru, ). (Entered: 07/19/2017)
574 Additional Attachments to Main Document 573 Response in Opposition to Motion,. First attachment description: Volume I of II of Plaintiffs' Evidentiary Submission in Support of Plaintiffs' Opposition to Motion to Exclude Expert Report and Testimony . (Attachments: # 1 Exhibit #1 − Def 2nd Set of Supplemental Responses to Pl First Discovery Request, # 2 Exhibit #21 − Bradley and Fox Expert Report, # 3 Exhibit #22 Depo of Bradley, # 4 Exhibit #23 − Depo of Dr. Fox, # 5 Exhibit #24 − Exh to Depo of Fox and Bradley, # 6 Exhibit #25 − Expert Report of Dr. Buckley, # 7 Exhibit #26 −

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07/20/2017
07/20/2017
07/24/2017 07/26/2017 07/26/2017 07/26/2017 07/27/2017

Depo of Dr. Buckley, # 8 Exhibit #27A − Exracts from Nucor's Officials, # 9 Exhibit #27B − Extracts from Nucor's Officials, # 10 Exhibit #27C − Extracts from Nucor's Officials, # 11 Exhibit #52 − Defendant's Selection Policies, # 12 Exhibit #54 − Dr. Fox's Rebuttal Report, # 13 Exhibit #55 − Dr. Veres Rebuttal Expert Report, # 14 Exhibit #97 − Depo Test of G. Daughtridge, # 15 Exhibit #98 − Depo Test of M. Reynolds, # 16 Exhibit #99 − Depo Test of N.. Santana, # 17 Exhibit #100 − Depo Test of S. Denmark, # 18 Exhibit #101 − Depo Test of R. Marraccini, # 19 Exhibit #102 − Depo Test of S. McCarthy, # 20 Exhibit #103 − Depo Test of Dr. Robert Topel, # 21 Exhibit #104 − Depo Test of S. Slesinski, # 22 Exhibit #106 − Depo Test, # 23 Exhibit #107 − Depo Test, # 24 Exhibit #108 − Depo Test)(Derfner, Armand) (Entered: 07/20/2017)
575 Additional Attachments to Main Document 573 Response in Opposition to Motion,. First attachment description: Volume II of II of Evidentiary Submission in Supoort of Plaintiffs' Opposition to Motion to Exclude Expert Report and Testimony . (Attachments: # 1 Exhibit #109 − Depo Testimony, # 2 Exhibit #110 − Depo Testimony, # 3 Exhibit #111 − Depo Testimony, # 4 Exhibit #112 − Depo Testimony, # 5 Exhibit #113 − Depo Testimony, # 6 Exhibit #114 − Depo Testimony, # 7 Exhibit #115 − Depo Testimony, # 8 Exhibit #116 − Depo Testimony, # 9 Exhibit #121 − Depo Testimony, # 10 Exhibit #29 − Ladle Wall Helper Posting, # 11 Exhibit #30 − Ladle Wall Helper Posting, # 12 Exhibit #31 − Ladle Wall Helper Refractory Posting, # 13 Exhibit #32 − Bricker posting, # 14 Exhibit #33 − Rev. Mill Exit Operator Posting, # 15 Exhibit #34 − Forklift/Crane Operator Coil Shipping Posting, # 16 Exhibit #35 − Taylor Crame Operator Coil Shipping Posting, # 17 Exhibit #36 − Forklift Taylor Crane Operator Posting, # 18 Exhibit #37 − Depo Excerpts of P. Ferguson, # 19 Exhibit #38 − Tagger Posting, # 20 Exhibit #39 − Individuals applying for Tagger position, # 21 Exhibit #40 − Application for Transfer−Michael Bodony for Tagger position, # 22 Exhibit #41 − Application for Transfer − Robyn Spann for Tagger position, # 23 Exhibit #42 − Application for Transfer − Ray Messemer for Tagger position, # 24 Exhibit #43 − Change of Status − R. Waldron, # 25 Exhibit #44 − Depo Excerpts of A. Smith, # 26 Exhibit #45 − Joe Rider Application for Transfer for Reversing Mill #2 Utility)(Derfner, Armand) (Entered: 07/20/2017)
576 RESPONSE in Opposition re 571 MOTION to Strike 567 Reply to Response to Motion, Plaintiffs Motion to Strike New Summary Judgment Evidence Submitted With Defendants' Reply Brief Defendants' Brief in Opposition to Plaintiffs' Motion to Strike New Summary Judgment Evidence Submited with Defendants' Reply Brief Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 7/27/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit 1 − Fox/Bradley Rebuttal Rpt., # 2 Exhibit 2 − Fox/Bradley Feb. 2017 Rpt., # 3 Exhibit 3 − Topel Affidavit)(Wilkerson, John) (Entered: 07/20/2017)
577 ORDER granting 572 Motion to Withdraw as Attorney. Signed by Honorable David C Norton on 7/24/2017.(jbry, ) (Entered: 07/24/2017)
579 Case Reassigned to Judge David C Norton. Judge C Weston Houck no longer assigned to the case. (suro) (Entered: 07/26/2017)
581 DELETION OF DOCKET ENTRY NUMBER 580, per filing user's request. Reason: Incorrect Main Document. Original filing date: 07/26/17. (rshu, ) (Entered: 07/26/2017)
582 REPLY to Response to Motion re 570 MOTION to Exclude Defendants' Motion to Exclude the Proposed Expert Testimony of Dr. Fox and Dr. Bradley DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE THE PROPOSED EXPERT REPORT AND TESTIMONY Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 07/26/2017)
583 RESPONSE in Support re 571 MOTION to Strike 567 Reply to Response to Motion, Plaintiffs Motion to Strike New Summary Judgment Evidence Submitted With Defendants' Reply Brief Plaintiffs' Reply Brief In Support Of Motion To Strike New Summary Judgment Evidence Response filed by Quinton Brown. (Derfner, Armand) (Entered: 07/27/2017)

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07/28/2017 07/31/2017 08/03/2017 08/21/2017 08/21/2017
08/28/2017 08/30/2017 09/05/2017 09/19/2017

584 Joint MOTION for Extension of Time Joint Motion To Extend The Mediation Deadline by Quinton Brown. Response to Motion due by 8/11/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) (Entered: 07/28/2017)
585 ORDER granting 584 Motion for Extension of Time. The parties shall have until October 1, 2017 to mediate this case. Signed by Honorable David C Norton on 7/31/2017.(jbry, ) (Entered: 07/31/2017)
586 Letter from John S. Wilkerson, III. (Wilkerson, John) (Entered: 08/03/2017)
587 MOTION to Compel Plaintiffs' Motion to Compel Production of Electronic Payroll Data and Backpay Data by Quinton Brown. Response to Motion due by 9/5/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) Modified on 8/22/2017 to create linkage to 588 Additional attachments filed 8/21/2017 (jbry, ). (Entered: 08/21/2017)
588 Additional Attachments to Main Document 587 MOTION to Compel Plaintiffs' Motion to Compel Production of Electronic Payroll Data and Backpay Data. First attachment description: Plaintiffs' Evidentiary Submission In Support of Their Motion To Compel . (Attachments: # 1 Exhibit 1−A − Nucor's Response to Plaintiffs First Inter No, # 2 Exhibit 1−B Nucor's Response to Plaintiffs First RFP No 9, # 3 Exhibit 1−C − Nucors 2nd Resp to Plts RFP 2, 8, 10, 23, # 4 Exhibit 1−D − Nucor Resp Plts First Inter, # 5 Exhibit 1−E − Nucor Resp Plts First RFP, # 6 Exhibit 1−F Depo Testimony of Nucor Per Dir. Maleah Reynolds, # 7 Exhibit 1−G − Depo. Testimony of Nicole Santana, # 8 Exhibit 1−H − Deposition Testimony of Maleah Barnhill, # 9 Exhibit 1−I − Depo Testimony of Nucor's 30(b)(6) deponent Shawn Anderson, # 10 Exhibit 1−J Deposition testimony of Hot Mill Mgr Thad Solomon, # 11 Exhibit 1−K Deposition Testimonny of Cold Mill Dept Mgr Al Smith, # 12 Exhibit 1−L − Deposition Testimony of Ship Dpt Mgr Roberson, # 13 Exhibit 2 − Plaintiffs Motion Compel (ECF 469), # 14 Exhibit 3 − Order Granting Plaintiffs; Motion Compel (ECF 483), # 15 Exhibit 4 − Letter from Nucor's Aty, Cary Farris agreeding to produce, # 16 Exhibit 5 − Letter from Wilkerson re agreeing to produce, # 17 Exhibit 6 − Letter from Plaintiffs' Attorney re confirming agreement, # 18 Exhibit 7 − Examples of Wage and bonus records for black employees, # 19 Exhibit 8 − Examples of Pay Rate records, # 20 Exhibit 9 − Email dated May 25 2017 from plts aty, # 21 Exhibit 10 − Email dated July 10 2017 from plts aty, # 22 Exhibit 11 − Email dated July 10 2017 from Kingston, # 23 Exhibit 12 − Email dated July 10, 207 from plt. counsel, # 24 Exhibit 13− Email dated August 4, 2017 from plts counsel, # 25 Exhibit 14 − Email dated August 16 2017 from plt. counsel, # 26 Exhibit 15 − Email dated August 16, 2017 from Plts counsel, # 27 Exhibit 16 − Email dated August 16 2017 from Nucor's counsel (Kingston))(Derfner, Armand) (Entered: 08/21/2017)
589 Joint MOTION to Amend/Correct 527 Scheduling Order,, 585 Order on Motion for Extension of Time JOINT MOTION TO AMEND SCHEDULING ORDERS by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 9/11/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Wilkerson, John) (Entered: 08/28/2017)
590 ORDER granting 589 Motion to Amend/Correct Signed by Honorable David C Norton on August 30, 2017.(span, ) (Entered: 08/30/2017)
591 RESPONSE in Opposition re 587 MOTION to Compel Plaintiffs' Motion to Compel Production of Electronic Payroll Data and Backpay Data Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 9/12/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Wilkerson, John) (Entered: 09/05/2017)
593 NOTICE of Hearing on Motions 570 MOTION to Exclude Defendants' Motion to Exclude the Proposed Expert Testimony of Dr. Fox and Dr. Bradley, 556 MOTION to Strike Motion to Strike Expert : Motion Hearing set for Tuesday, 11/7/2017 at 10:00 AM in Charleston Courtroom #2, J. Waties Waring Judicial Center, 83 Meeting St, Charleston before Honorable David C Norton. (jbry, ) (Entered: 09/19/2017)

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09/22/2017 09/25/2017 10/02/2017 10/09/2017 10/11/2017 10/18/2017 10/19/2017 10/27/2017
11/02/2017

594 Joint MOTION to Amend/Correct 590 Order on Motion to Amend/Correct by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 10/6/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Wilkerson, John) (Entered: 09/22/2017)
595 SCHEDULING ORDER( Motion in Limine due by 12/15/2017, Oppositions to motionsin limine must be filed on or before January 8, 2018, Pretrial Briefs due by 1/5/2018, Final witness lists, exhibit lists, and deposition designations shall be due no later than January 5, 2018. Objections and counter deposition designations must be filed on or before January 19, 2018.), Motions terminated: 594 Joint MOTION to Amend/Correct 590 Order on Motion to Amend/Correct filed by Nucor Steel Berkeley, Nucor Corporation. Signed by Honorable David C Norton on 9/25/2017. (jbry, ) (Entered: 09/25/2017)
596 MOTION to Compel Defendants' Motion to Strike Rule 26 Disclosures or, Alternatively, Compel Depositions by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 10/16/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Ex. 1. Plaintiffs' Supp. Rule 26 Disclosures (19 fact witnesses), # 2 Exhibit Ex. 2. Plaintiffs' series of e−mails, # 3 Exhibit Ex. 3. Plaintiffs' Supp. Rule 26 Disclosures (72 fact witnesses))No proposed order.(Wilkerson, John) (Entered: 10/02/2017)
597 MOTION for Extension of Time to File Response/Reply as to 596 MOTION to Compel Defendants' Motion to Strike Rule 26 Disclosures or, Alternatively, Compel Depositions (UNOPPOSED) by Quinton Brown. Response to Motion due by 10/23/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) (Entered: 10/09/2017)
598 ORDER granting 597 Motion for Extension of Time to File Response/Reply re 596 MOTION to Compel Defendants' Motion to Strike Rule 26 Disclosures or, Alternatively, Compel Depositions Response to Motion due by 10/20/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Honorable David C Norton on 10/11/2017.(jbry, ) (Entered: 10/11/2017)
599 MOTION for Extension of Time to File Response/Reply as to 596 MOTION to Compel Defendants' Motion to Strike Rule 26 Disclosures or, Alternatively, Compel Depositions Unopposed Motion For Seven Day Extension Of Time to Respond To Defendants' Motion to Strike Rule 26 Disclosures Or, Alternatively, Compel Depositions by Quinton Brown. Response to Motion due by 11/1/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) (Entered: 10/18/2017)
600 ORDER granting 599 Motion for Extension of Time to File Response/Reply re 596 MOTION to Compel Defendants' Motion to Strike Rule 26 Disclosures or, Alternatively, Compel Depositions. Response to Motion due by 10/27/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Signed by Honorable David C Norton on 10/19/2017.(jbry, ) (Entered: 10/19/2017)
601 RESPONSE in Opposition re 596 MOTION to Compel Defendants' Motion to Strike Rule 26 Disclosures or, Alternatively, Compel Depositions Plaintiffs' Opposition to Defendants' Motion To Strike Rule 26 Disclosures or, Alternatively, Compel Depositions Response filed by Quinton Brown.Reply to Response to Motion due by 11/3/2017 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit 1 − Declaration of Karen Allen, # 2 Exhibit 2 − Nucor's March 10, 2017 email and deposition schedule, # 3 Exhibit 3 − Plaintiffs April 21, 2017 emails and supplemental witness list, # 4 Exhibit 4 − Nucor's Second Supplemental Disclosures dated April 21. 2017, # 5 Exhibit 5 − Extracts from Hearing Transcript dated April 13, 2017)(Derfner, Armand) (Entered: 10/27/2017)
602 AMENDED NOTICE of Hearing on Motions 570 MOTION to Exclude Defendants' Motion to Exclude the Proposed Expert Testimony of Dr. Fox and Dr. Bradley, 556

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11/02/2017 11/06/2017 12/26/2017
12/27/2017 12/28/2017 02/12/2018 02/13/2018
02/14/2018 02/14/2018 02/15/2018

MOTION to Strike Motion to Strike Expert, 596 MOTION to Compel Defendants' Motion to Strike Rule 26 Disclosures or, Alternatively, Compel Depositions : Motion Hearing set for 11/7/2017 10:00 AM in Charleston Courtroom #2, J. Waties Waring Judicial Center, 83 Meeting St, Charleston before Honorable David C Norton. Amended to add Motion #596 (jbry, ) (Entered: 11/02/2017)
603 Consent MOTION for Extension of Time to File Reply to ECF 596 by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 11/16/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Wilkerson, John) (Entered: 11/02/2017)
604 NOTICE of Cancellation of Hearing: on Motions 570 MOTION to Exclude Defendants' Motion to Exclude the Proposed Expert Testimony of Dr. Fox and Dr. Bradley, 556 MOTION to Strike Motion to Strike Expert, 596 MOTION to Compel Defendants' Motion to Strike Rule 26 Disclosures or, Alternatively, Compel Depositions : Motion Hearing set for Tuesday, 11/7/2017 at 10:00 AM (jbry, ) (Entered: 11/06/2017)
606 Joint MOTION for Settlement Joint Motion for Preliminary Approval of Settlement Agreement by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 1/9/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support Joint Memo in Support of Motion for Approval of Settlement Agreement, # 2 Exhibit Exhibit A to Joint Memo in Support: Settlement Agreement and Release, # 3 Exhibit Exhibit A to Settlement Agreement: Claims Form, # 4 Exhibit Exhibit B to Settlement Agreement: Notice of Settlement, # 5 Proposed Order Exhibit C − Proposed Order for Preliminary Approval)Proposed order is being emailed to chambers with copy to opposing counsel.(Wilkerson, John) (Entered: 12/26/2017)
607 ORDER granting 606 Motion for Preliminary Approval of Settlement Agreement Signed by Honorable David C Norton on December 27, 2017.(span, ) (Entered: 12/27/2017)
609 NOTICE of Hearing: Final Fairness Hearing set for 2/15/2018 09:00 AM in Charleston Courtroom #2, J. Waties Waring Judicial Center, 83 Meeting St, Charleston before Honorable David C Norton. (egra, ) (Entered: 12/28/2017)
610 RESPONSE in Support re 606 Joint MOTION for Settlement Joint Motion for Preliminary Approval of Settlement Agreement Joint Memorandum of Law in Support of Motion for Final Approval of Settlement Agreement Response filed by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 02/12/2018)
611 MOTION for Attorney Fees Motion to Approve Attorneys' Fees and Expenses Pursuant to the Parties' Settlement Agreement by Quinton Brown. Response to Motion due by 2/27/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Whatley Decl., # 2 Exhibit Robert L. Wiggins Decl., # 3 Exhibit A − list of reported cases, # 4 Exhibit B − Wiggins Childs time & expenses, # 5 Exhibit Ann Wiggins Decl., # 6 Exhibit Derfner & Bennett Decl., # 7 Exhibit McClain Decl., # 8 Exhibit Spriggs time records)No proposed order.(Derfner, Armand) Modified on 2/15/2018 to create linkage to 613 Additional Attachments filed 2/14/2018 (jbry, ). (Entered: 02/13/2018)
612 DECLARATION by Quinton Brown. (Derfner, Armand) (Main Document 612 replaced on 2/22/2018) (jbry, ). Modified on 2/22/2018 to replace document with corrected signature as provided by filing user (jbry, ). (Entered: 02/14/2018)
613 Additional Attachments to Main Document 611 MOTION for Attorney Fees Motion to Approve Attorneys' Fees and Expenses Pursuant to the Parties' Settlement Agreement. First attachment description: Kent Spriggs Declaration. (Attachments: # 1 Exhibit Kent Spriggs Declaration) Refiled to correct event type. (jbry, ) (Entered: 02/15/2018)
615 Minute Entry. Proceedings held before Honorable David C Norton: Settlement Conference held on 2/15/2018. Parties agree on the settlement with no objection to the fee amount. There is one class member who has opted out. The Court will take this issue under advisement. The parties will issue a proposed order for the Court's consideration. Court Reporter Debbie Potocki. (cmur, ) (Entered:

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02/16/2018
02/22/2018 03/01/2018 03/26/2018 03/27/2018 03/28/2018
04/13/2018 04/13/2018 04/13/2018 04/13/2018

02/16/2018)
614 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Fairness Hearing held on 2−15−18, before Judge David C. Norton. Court Reporter/Transcriber Debra Potocki, Telephone number/E−mail potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 3/9/2018. Redacted Transcript Deadline set for 3/19/2018. Release of Transcript Restriction set for 5/17/2018. Associated Cases: 2:04−cv−22005−DCN, 2:08−cv−02429−CWH−BM(dpotocki, ) (Entered: 02/16/2018)
616 FINAL ORDER APPROVING SETTLEMENT, CLASS COUNSEL FEE PAYMENT AND CLASS REPRESENTATIVE SERVICE PAYMENTS granting 611 Motion for Attorney Fees. Details within order. Signed by Honorable David C Norton on 2/22/2018.(jbry, ) (Entered: 02/22/2018)
618 NOTICE of Hearing: Status Conference set for Tuesday, 4/17/2018 at 1:30 PM in Charleston Courtroom #2, J. Waties Waring Judicial Center, 83 Meeting St, Charleston before Honorable David C Norton. Plaintiff's brief is due no later than March 26, 2018, and defendant's brief is due no later than April 11, 2018.(jbry, ) (Entered: 03/01/2018)
619 MOTION for Extension of Time Unopposed Motion to Extend Briefing Schedule by Two Days by Quinton Brown. Response to Motion due by 4/9/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Derfner, Armand) (Entered: 03/26/2018)
620 ORDER granting 619 Motion for Extension of Time. Plaintiffs shall have until March 28, 2018 to file their brief, and defendants shall have until April 13, 2018 to file their brief. Signed by Honorable David C Norton on 3/27/2018.(jbry, ) (Entered: 03/27/2018)
621 MOTION Plainiffs' Brief In Support of Ramon Roane's Request To Proceed With His Claims As a Named Individual Plaintiff And Alternatively For Exclusion From The Settlement by Quinton Brown. Response to Motion due by 4/11/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit 1 − Agreement, # 2 Exhibit 2 − Notice, # 3 Exhibit 3 − Third Amended Complaint, ECF #35 excerpts)No proposed order.(Derfner, Armand) (Main Document 621 replaced on 3/30/2018) (jbry, ). Modified on 3/30/2018 to replace incorrect document with correct document as provided by filing user (jbry, ). (Entered: 03/28/2018)
622 ORDER TO ENTER FINAL JUDGMENT PURSUANT TO RULE 54(b) Signed by Honorable David C Norton on 4/13/2018. (jbry, ) (Entered: 04/13/2018)
623 JUDGMENT in favor of Alvin Simmons, Gerald White, Jacob Ravenell, Jason Guy, Quinton Brown, Sheldon Singletary against Nucor Corporation, Nucor Steel Berkeley in accordance with Entry #616, Final Order Approving Settlement, Class Counsel Fee Payment and Class Representative Service Payments dated February 22, 2018 and Entry #622 Order to Enter Final Judgment Pursuant to Rule 54(b) dated April 13, 2018. (jbry, ) (Entered: 04/13/2018)
624 MOTION to Seal Document by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 4/27/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support, # 2 Exhibit Item to be produced under seal, # 3 Certificate of Service)No proposed order.(Wilkerson, John) (Entered: 04/13/2018)
625 RESPONSE in Opposition re 621 MOTION Plainiffs' Brief In Support of Ramon Roane's Request To Proceed With His Claims As a Named Individual Plaintiff And Alternatively For Exclusion From The Settlement Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 4/20/2018 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit 1. Dec. of Roane, # 2 Exhibit 2. Feb. 15, 2018 hearing, # 3 Exhibit 3. Depo. of Edwards, # 4 Exhibit 4. Dec. 26, 2017 Settlement

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04/17/2018 04/25/2018 06/12/2018 06/21/2018 06/25/2018
06/25/2018 06/25/2018 06/27/2018 07/02/2018
07/03/2018 07/06/2018

Agreement, # 5 Exhibit 5. May 17, 2011 Conference, # 6 Exhibit 6. Flash drive (Sealed), # 7 Exhibit 7. Nov. 30, 2016 Hearing, # 8 Exhibit 8. Depo of Roane)(Wilkerson, John) (Entered: 04/13/2018)
626 Minute Entry. Proceedings held before Honorable David C Norton: Status Conference held on 4/17/2018. Arguments re: plaintiff Ramon Roane's "opting out" as a class representative. Court Reporter Jack Bryan, Court Smart. (cmur, ) (Entered: 04/17/2018)
627 ORDER granting 624 Motion to Seal Document Signed by Honorable David C Norton on 4/25/2018.(jbry, ) (Entered: 04/25/2018)
628 Emergency MOTION Emergency Motion to Require Immediate Payment of Settlement Funds to Eligible Class Members by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons. Response to Motion due by 6/26/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Settlement Agreement and Release)No proposed order.(Derfner, Armand) (Entered: 06/12/2018)
629 TEXT ORDER: The deadline for filing a response in opposition to the Emergency Motion to Require Immediate Payment of Settlement Funds to Eligible Class Members 628 is June 25, 2018. Signed by Honorable David C Norton on 6/21/2018. (eric, ) (Entered: 06/21/2018)
630 RESPONSE in Opposition re 628 Emergency MOTION Emergency Motion to Require Immediate Payment of Settlement Funds to Eligible Class Members Response filed by Nucor Corporation, Nucor Steel Berkeley.Reply to Response to Motion due by 7/2/2018 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit Ex. 1. Settlement Agreement, # 2 Exhibit Ex. 2. April 23, 2018 Correspondence, # 3 Exhibit Ex. 3. Cover Sheet only. UNDER SEAL. Class Action Settlement Administration Services Estimate., # 4 Exhibit Ex. 4. April 30, 2018 Correspondence., # 5 Exhibit Ex. 5. Cover Sheet only. UNDER SEAL. Awards Administration Flat−Fee Proposal)(Wilkerson, John) (Entered: 06/25/2018)
631 MOTION to Seal Exhibits 3 & 5 of ECF 630 by Nucor Corporation, Nucor Steel Berkeley. Response to Motion due by 7/9/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support, # 2 Exhibit Index of Items Filed Under Seal, # 3 Certificate of Service)No proposed order.(Wilkerson, John) (Entered: 06/25/2018)
632 NOTICE of Hearing on Motion 628 Emergency MOTION Emergency Motion to Require Immediate Payment of Settlement Funds to Eligible Class Members : Motion Hearing set for Monday, 7/2/2018 at 2:00 PM in Hon. Sol Blatt, Jr., Courtroom, J. Waties Waring Judicial Cntr, 83 Meeting St, Charleston before Honorable David C Norton. (jbry, ) (Entered: 06/25/2018)
633 NOTICE OF RESCHEDULED HEARING on Motion 628 Emergency MOTION Emergency Motion to Require Immediate Payment of Settlement Funds to Eligible Class Members : Motion Hearing set for Monday, 7/2/2018 at 2:00 PM cancelled and rescheduled to: Motion Hearing set for Friday, 7/6/2018 at 10:00 AM in Hon. Sol Blatt, Jr., Courtroom, J. Waties Waring Judicial Cntr, 83 Meeting St, Charleston before Honorable David C Norton. (jbry, ) (Entered: 06/27/2018)
634 RESPONSE in Support re 628 Emergency MOTION Emergency Motion to Require Immediate Payment of Settlement Funds to Eligible Class Members Response filed by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons. (Attachments: # 1 Exhibit Patton Declaration, # 2 Exhibit Kingston Email with Final MOU, # 3 Exhibit Draft MOU, # 4 Exhibit MOU, # 5 Exhibit Kingston Email, # 6 Exhibit Kingston Email, # 7 Exhibit Kingston Email, # 8 Exhibit Kingston Email, # 9 Exhibit Case Law)(Derfner, Armand) (Entered: 07/02/2018)
635 ORDER granting 631 Motion to Seal Signed by Honorable David C Norton on 7/3/2018.(jbry, ) (Entered: 07/03/2018)
636 Minute Entry. Proceedings held before Honorable David C Norton: granting 628 Motion Emergency Motion to Require Immediate Payment of Settlement Funds

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12/07/2018 12/27/2018

to Eligible Class Members; Motion Hearing held on 7/6/2018 re 628 Emergency MOTION Emergency Motion to Require Immediate Payment of Settlement Funds to Eligible Class Members filed by Jacob Ravenell, Jason Guy, Ramon Roane, Quinton Brown, Alvin Simmons. Court Reporter Debbie Potocki. (cmur, ) (Entered: 07/06/2018)
637 ORDER denying 621 Motion in Support of Ramon Roane's Request To Proceed With His Claims As a Named Individual Plaintiff And Alternatively For Exclusion From The Settlement Signed by Honorable David C Norton on December 7, 2018.(kwhe, ) (Entered: 12/07/2018)
638 STIPULATION of Dismissal With Prejudice Joint Stipulation of Dismissal by Nucor Corporation, Nucor Steel Berkeley. (Wilkerson, John) (Entered: 12/27/2018)

 
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EXHIBIT
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IN THE UNITED STATES J)JSTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

QUINTON BROWN, RAMON ROANE, ALVIN SIMMONS, SHELDON SINGLETARY, GEHALD WI-liTE, .JASON GUY, and JACOB RAVENELL, individually and on behalf of the class they seek to represent,
Plaintiffs,
v.
NUCOH COHPORATION and NUCOH STEEL-BEHKELEY
Defendants.

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CASE No. 2:04-22005-12BG

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CLASS ACTION

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THIRD AMENDED COMPLAINT- CLASS ACTION
I. NATUREOFCOMPLAINT I. This action is brought by seven African-Americans, who are current and former employees of Nucor Corporation ("Nucor") and/or Nucor Steel-Berkeley ("NucorBerkeley"). Ramon Roane, Quinton Brown, Sheldon Singletary, Gerald White, Alvin Simmons, Jason Guy, and Jacob Ravenell bring claims against Nucor-Berkeley and/or Nucor arising ti"om Nucor-Berkeley's Huger, South Carolina plant. 2. Ramon Roane, Quinton Bmwn, Sheldon Singletary, Gerald White, Alvin Simmons, Jason Guy, and Jacob Ravenell (hereinafter "named plaintiffs") seek a declaratory judgment that Nucor Corporation and Nucor-Berkeley have engaged in systemic

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pattern and practices of racial discrimination in employment opportunities at the Berkeley facility in Huger, Carolina and that such conduct is unlawful under two statutes: (a) Title VII ofthe Civil Rights Act of 1964, as amended in 1972 and 1991, 42 U.S.C. §§2000e, et seq., and (b) Section One of the Civil Rights Act of 1866, as amended in 1991, 42 U.S.C. 1981a. They seek a permanent injunction and other equitable relief necessary to eliminate the effects of the Nucor's and/or NucorBerkley's past and present racial discrimination and prevent such discrimination from continuing to adversely affect their lives and careers, including, but not limited to, affirmative restructuring of the selection procedures, training and other terms and conditions of employment, reimbursement of expenses incurred in prosecuting this action, and altorneys' fees. Each plaintiff further seeks damages, back-pay and other equitable remedies necessary to make themselves and the members ofthe class which they seek to represent whole. II. JURISDICTIONAND VENUE 3. This Court has jurisdiction pursuant to 28 U.S.C. §§1331, 1343(4), and Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§2000e, et seq., as amended. III. CONDITIONS PRECEDENT TO SUIT UNDER TITLE VII 4. The named plaintiffs have fulfilled all precedent conditions necessary to the institution of this action under Title VII. Plaintiffs' claims arising under 42 U.S.C. §1981 do not require administrative exhaustion. IV. PARTIES A. Defendants
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5. Defendant Nucor Corporation is a corporation doing business in various States, with its corporate headquarters in Charlotte, North Carolina. Nucor is an employer as defined by 42 U.S.C. §2000e(b). It is also an individual subject to suit under 42 U.S.C. §1981, as amended. Nucor maintains either actual or constructive control, oversight, or direction over the operation, including the employment practices of the other defendants.
6. Defendant Nucor Steel-Berkeley, is a corporation doing business in the State of South Carolina and an employer as defined by 42 U.S.C. §2000e(b). It is also an individual subject to suit under 42 U.S.C. §1981, as amended.
B. NAMED PLAINTIFFS 7. Named Plaintiff Quinton Bmwn is an Atrican-American resident of the State of
South Carolina and a citizen ofthe United States. At all times material to this action, he has been employed at Nucor-Bcrkcley's plant in Huger, South Carolina. 8. Named Plaintiff Ramon Roane is an Afi·ican-American resident of the State of South Carolina and a citizen ofthe United States. At all times material to this action, he has been employed at Nucor-Berkeley's plant located in Huger, South Carolina. 9. Named Plaintiff Alvin Simmons is an African-American resident of the State of South Carolina and a citizen ofthe United States. At all times material to this action, be bas been employed at Nucor-Berkeley's plant located in Huger, South Carolina. I0. Named Plaintiff Sheldon Singletary is an A!l·ican-American resident of the State of South Carolina and a citizen of the United States. He was employed at NucorBerkclcy's plant located in Huger, South Carolina, from September 1995 until
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September 2001 .

II. Named Plaintiff Gerald White is an African-American resident of the State of

South Carolina and a citizen ofthe United States. At all times material to this action,

he has been employed at Nucor-Berkeley's plant located in Huger, South Carolina.

12. Named PlaintiffJason Guy is an African-American resident ofthe State ofGeorgia

and a citizen of the United States. At all times material lo this action, he has been

employed at Nucor-Berkeley's plant located in Huger, South Carolina.

13. Named Plaintiff .Jacob Ravenell is an African-American resident of the State of

South Carolina and a citizen ofthe United States. At all times material to this action,

he has been employed at Nucor-Berkeley's plant located in Huger, South Carolina.

V.

CLASS CERTIFICATION

14. Racially discriminatory treatment is manifested by such policies and/or patterns or

practices as denying African-American applicants positions with the companies and

employees desirable job assignments, promotional opportunities, training, and other

benefits and conditions of employment on the same terms applied to white

employees. In particular, each defendant deters deter African-American employees

and/or applicants from seeking promotions and desirable job assignments; fail to

select and/or train African-Americans for desirable job assignments; ignore, and in

some cases actively supports, racist comments, racist jokes, and racist behavior

among its staft; and fails to enforce policies prohibiting racial discrimination.

15. This action in part seeks to enjoin each defendant ti·om pursuing specific illegal

policies and/or practices that have iqjured and continue to injure plaintiffs and other

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African-American employees and/or applicants for employment opportunities in all aspects of Defendants' employment operations. Each defendant has created and maintained a system-wide employment policy of race-based disparate treatment, which limits the employment opportunities for African-Americans in various aspects of defendants' employment operation including, but not limited to job selections, training and adverse terms and conditions of employment. 16. Such illegal policies and practices are premised on an invidious and racially discriminatory animus directed against African-American people and are specifically calculated to deny members of the African-American race equal treatment and opportunities guaranteed by 42 U.S.C. §1981 and Title VII. 17. The plaintiffs seek certification of a class of African-Americans adversely affected by the employment practices at Nucor-Berkeley's plant in Huger, South Carolina. VI. COUNT ONE- CLAIMS AGAINST NlJCOR AND NlJCOR-BERKELEY ARISING FROM THE HUGER, IN SOUTH CAROLINA PLANT A. CLASS DEFINITION AND COMMON QUES110NS OF LAW AND FACT 18. The Ati-ican-American named plaintiffs, Quinton Brown, Ramone Roane, Alvin Sinunons, Sheldon Singletary, Gerald White, Jason Guy and Jacob Ravenell are members of the class they seek to represent and bring this suit against NucorBerkeley and/or Nucor for claims arising at the Huger, South Carolina plant. That class consists of African-Americans who have been subject to one or more aspects of the systemic racial discrimination described in the class claims of this Amended Complaint which include I) Nucor's and/or Nucor-Berkeley's selection procedures, 2) racially hostile reputation and working conditions, and 3) unequal tenus and
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conditions of employment. The prosecution of the claims of the named plaintiffs requires adjudication of the question common to the putative class: whether Defendants Nucor and/or Nucor-Berkeley have engaged in systemic racial discrimination in its selection and compensation practices and the terms and conditions of work and employment in a manner made unlawful by the statutes under which this action is brought. 19. The claims of the named plaintiffs are embedded in common questions of law and fact because defendants Nucor and/or Nucor-Berkeley have: I) prevented AfricanAmericans fi·om learning about or competing for opportunities in jobs traditionally held by white employees; 2) precluded or delayed their hiring and promotion into such jobs; and 3) subjected African-American employees to adverse terms and conditions of employment. B. TYPICALITY OF RELIEF SOUGHT 20. The relief necessary to remedy the claims of the named plaintiffs is the same as that necessary for the class. The named plaintiffs seek the following relief·for their individual claims and those ofthe class: I) a declaratory judgment that the defendants Nucor and/or Nucor-Berkeley have engaged in systemic racial discrimination in limiting the employment opportunities ofAti·ican-Americans to lower classifications; 2) a permanent injunction against such continuing discrimination; 3) restructuring of said defendants' selection procedures so that Ati'ican-Americans are able to learn about and fairly compete in the future for better classifications, compensation levels, and terms and conditions ofemployment traditionally enjoyed by white employees;
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4) restruch1ring of said defendants' workforce so that African-Americans are assigned to the classifications, locations and compensation levels they would have now hold in the absence of defendant Nucor's and/or Nucor-Berkeley's past racial discrimination; and 5) damages, back pay and other equitable remedies necessary to make the named plaintiffs and the class they seek to represent whole fi·om defendant Nucor's and Nucor Berkeley's past discrimination. C. NUMEROSITY AND IMPRACTICABILITY OF JOINDER 21. The persons whom the named plaintiffs seek to represent are too numerous to make joinder practicable. The proposed class consists of more than one hundred former, current, and fi.1ture African-American applicants and employees who have been, are, or will be employed at the Nucor-Berkeley's and/or Nucor's facilities in the State of South Carolina. Defendant Nucor's and/or Nucor-Berkeley's pattern and practice of racial discrimination also makes joinder impracticable by discouraging AfricanAmericans from applying or pursuing employment opportunities, thereby making it impractical and inefficient to identity many members of the class prior to determination of the merits of such defendants' class-wide liability. D. ADEQUACY OF REPRESENTATION 22. The named plaintiff~ interests are coextensive with those of the class in that each seeks to remedy Nucor-Berkeley and/or Nucor's discriminatory employment practices so that racially hostile conditions of work will be eradicated and AfricanAmericans will no longer be segregated in unequal positions and prevented from obtaining management and other more desirable positions. Such named plaintifts are
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able and willing to represent the class fairly and vigorously, as they pursue their common goals through this action. Plaintiffs' counsel are also qualified, experienced, and able to conduct the litigation and to meet the time and fiscal demands required to litigate an employment discrimination class action of this size and complexity. The combined interest, experience and rcsonrces of the named plaintiffs and their counsel to litigate competently the individual and class claims of race-based employment discrimination at issue, satisfY the adequacy ofrepresentation requirement of Federal Rule of Civil Procedure 23(a)(4). E. EFFICIENCY OF CLASS PROSECUTION OF COMMON CLAIMS 23. Certification of a class of similarly situated African-Americans is the most efficient and economical means of resolving the questions of law and fact that are common to the individual claims of the named plaintiffs and the putative class. The claims of the named plaintiffs require resolution of the common question of whether NucorBerkeley and/or Nucor have engaged in a systemic pattern of racial discrimination against African-Americans. Such named plaintiffs seek remedies to undo the adverse effects of such discrimination in their own lives, careers and working conditions and to prevent continued racial discrimination in the future. The named plaintiffs have standing to seek such relief in part because of the adverse effect that racial discrimination against African-Americans has had on their own interest in working and living in conditions free from the pernicious effects of racial bias and hostility. In order to gain such relief for themselves, as well as for the putative class members, the named plaintiffs must first establish the existence of systemic racial
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discrimination as the premise ofthe reliefthey seek. Without class certification, the same evidence and issues would be subject to repeated re-litigation in a multitude of individual lawsuits with an attendant risk of inconsistent adjudications and conflicting obligations. Certification of the class of African-Americans affected by the common question of law and fact is the most efficient and judicious means of presenting the evidence and argument necessary to resolve such questions for the named plaintiffs, the putative class and the defendants. The named plaintiffs' individual and class claims are premised upon the traditional bifurcated method of proof and trial for disparate impact and systemic disparate treatment claims of the type at issue in tllis Third Amended Complaint. Such a bifurcated method of proof and trial is the most efficient method of resolving such common issues. F. CERTIFICATION IS SOUGHT PURSUANT TO FED.R.CIV.P. 23(b) 24. Nucor-Berkeley and/or Nucor have acted on grounds generally applicable to the class by adopting and following systemic practices and procedures which are racially discriminatory. 25. Nucor-Berkeley's and/or Nucor's racial discrimination is their standard operating procedure rather than a sporadic occurrence. Such defendants have refused to act on grounds generally applicable to the class by refusing to adopt or follow selection procedures which do not have disparate impact or otherwise do not systemically discriminate against Afi-ican-Americans and by refusing to establish conditions of work that are not hostile to African-Americans. Nucor-Berkeley's and/or Nucor's systemic discrimination and refusal to act on grounds that are not racially
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discriminatory have made appropriate final injunctive relief and corresponding declaratory relief with respect to the putative class as a whole. 26. Injunctive and declaratory relief are the predominant relief sought because they are both the culmination ofthe proofofNucor-Berkcley's and/or Nucor's individual and class-wide liability at the end of Stage I of a bifurcated trial and the essential predicate for the named plaintiffs' and putative class members' entitlement to equitable remedies and legal relief at Stage II of such trial. Declaratory and injunctive relief flow directly and automatically from proof ofthe common question of law and fact regarding the existence of systemic racial discrimination against African-Americans. Such relief is the factual and legal predicate for the named plaintiffs' and putative class members' entitlement to equitable remedies for individual losses caused by such systemic discrimination. VII. FACTS SUPPORTING ALLEGATIONS OFSYSTEMICRACIAL DISCRIMINA 110N A. THE NAMED PLAINTIFFS 27. Named Plaintiff Quinton Brown has been employed at Nucor-Berkeley's and/or Nucor's Huger, South Carolina facility from approximately July 1998 until the present. He has been employed in the capacity of furnace operator. During his employment, Brown has performed his duties and fulfilled his responsibilities in a satisfactory manner. Brown has been adversely affected by the challenged systemic practices and pattern of racial discrimination by not being able to learn about or compete for employment opportunities in traditionally white job classifications; by being required to work in conditions in which he and other members of his race were
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demeaned; by being required to work under discriminatory terms and conditions of employment, including being required to endure racial hostilities directed at himself and members of his race. The challenged practices have directly effected Brown. Nucor-Berkeley and/or Nucor has routinely promoted white employees to vacant positions over African-American employees of comparable or more extensive experience. For example, in approximately May 2002, Brown applied for a control pulpit operator position. Brown was qualified for the position. The position was awarded to Blake Murray, a white male employee, with less experience than Brown. Brown has personally observed and been subjected to the Defendants' tolerance of a racially hostile work environment. For example, in 2001, Brown was called "Dan" by a white co-employee. When Brown asked the co-employee why he had called him "Dan," the co-employee told Brown that it referred to "dumb ass nigger." Brown repmted the slur to a white supetvisor, Paul Ferguson. Ferguson told Brown that he (Ferguson) could do nothing about the slur because he (Ferguson) had not heard the white employee make the comment. Nucor-Berkeley and/or Nucor have tolerated other racially offensive comments and paraphernalia. Nucor-Berkeley and/or Nucor allow white employees to prominently display the confederate flag on clothing and toolboxes. A white supervisor has rcfetTed to Brown as a "boy." 28. On or about December 2002, Brown filed a Charge of Discrimination with the Equal Employment Opportunity Commission alleging that he had been denied promotions as a result ofracial discrimination. Since the filing of his Charge ofDiscrimination, Brown has suffered retaliation. On March 28,2003, Brown notified Nucor-Berkeley
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and/or Nucor that he was sick and was unable to report to work. Brown followed all the proper procedures in reporting his absence. Nevertheless, he was given disciplinary write-ups and a suspension by such defendants in retaliation for filing a Charge of Discrimination. 29. As a result ofNucor-Berkeley's and/or Nucor's discriminatory actions, Brown has suffered extreme harm. 30. Named Plaintiff Ramon Roane has been employed at Nucor-Berkeley's and/or Nucor's !-luger, South Carolina from approximately April 1996 until the present. He has been employed in the capacity of coiler operator and control pulpit operator. During his employment, Roane has performed his duties and fultilled his responsibilities in a satisfactory mam1er. Roane has been adversely affected by the challenged systemic practices and pattern of racial discrimination by not being able to learn about or compete for employment opportunities in traditionally white job classifications; by being required to work in conditions in which he and other members ofhis race were demeaned; by being required to work under discriminatory the terms and conditions of employment, including being required to endure racial hostilities directed at himself and members of his race; and by not being provided training available to similarly situated white employees. 31. Nucor-Berkeley's and/or Nucor's discriminatory selection procedures and adverse terms and conditions of employment have adversely affected Roane. During his employment Roane, informed his supervisors that he was interested in being promoted to positions with better opportunities for advancement. Moreover, Nucor-
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Berkeley and/or Nucor routinely promote white employees to vacant positions over Afi·ican-American employees of comparable or more extensive experience. For example, Roane applied for two positions, rolling mill supervisor and mill adjuster. Roane was qualified for both positions. The positions were given to white employees with less seniority and experience than Roane. Roane has personally observed and been subjected to the such defendants' tolerance of a racially hostile work environment. For example, Roane is aware of Nucor-Berkeley and/or Nucor condoning the use of its email system to send racially demeaning comments and photographs. Nucor-Berkeley and/or Nucor have tolerated other racially offensive comments and paraphernalia. 32. On or about March 2002, Roane filed a Charge of Discrimination with the Equal Employment Opportunity Commission alleging that he had been denied promotions as a result of racial discrimination. Since that time, Roane has suffered retaliation. On September 23, 2002, Roane committed a minor error at work which resulted in no damage. However, Paul Nowlin, a white male supervisor, gave Roane a written disciplinary action even though white operators have made similar mistakes for which they have not been disciplined. 33. As a result ofNucor-Berkeley's and/or Nucor's discriminatory actions, Roane has suffered extreme harm. 34. Named l'laintif'f Alvin Simmons has been employed at Nucor Berkeley's and/or Nucor's facility in Huger, South Carolina from 1998 until the present. He has been employed in the capacity ofshipping table operator and stacker inspector. During his
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employment, Simmons has performed his duties and fulfilled his responsibilities in a satisfactory manner. Simmons has been adversely affected by the challenged systemic practices and pattern of racial discrimination by not being considered for traditionally white job classifications at the time he applied for employment; by not being able to learn about or compete for employment opportunities in traditionally white job classifications; by being required to work in conditions in which he and other members of his race were demeaned; by being required to work under discriminatory terms and conditions of employment, including being required to endure racial hostilities directed at himselfand members ofhis race; and by no! being provided training available to similarly situated white employees. 35. Nucor-Berkeley'sand/or Nucor's discriminatory selection procedures have adversely affected Simmons. During his employment, Simmons has informed his supervisors that he was interested in being trained and promoted to positions with better opportunities for advancement. Moreover, Nucor-Berkeley and/or Nucor have routinely promoted white employees to vacant positions over African-American employees of comparable or more extensive experience. For example, on or about March 2002, Simmons applied for three positions: stacker operator, mill inspector and control pulpit operator. Simrnons was qualified for all three positions. Nevertheless, these positions were given to three white employees, who were equally or less qualified than Simmons. Simmons was also never given the opportunity to train during his shift. White employees, in contrast, are allowed to train during their regular shifts.
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36. As a result ofNucor-Berkeley's and/or Nucor's discriminatory actions, Simmons has suffered extreme harm.
37. Named Plaintiff Sheldon Singletary was employee\ at Nucor-Berkeley's and/or Nucor's Huger, South Carolina facility from September 1995 until September 2001. He was employed as a collier operator. During his employment, Singletary performed his duties and fulfilled his responsibilities in a satisfactory manner. Singletary has been adversely affected by the challenged systemic practices and pattern of racial discrimination by being able to learn about or compete for employment opportunities in traditionally white job classifications; by being required to work in conditions in which he and other members of his race were demeaned; by not being provided training available to similarly situated white employees; and by being required to work under discriminatory tenus and conditions of employment, including being required to endure racial hostilities directed at himself and members of his race.
38. Nucor-Berkeley's and/or Nucor's discriminatory practices and procedures have adversely affected Singletary. During his employment, Singletary informed his supervisors that he was interested in being promoted to positions with better opportunities for advancement. Moreover, Nucor-Berkeley and/or Nucor routinely promoted white employees to vacant positions over African-American employees of comparable or more extensive experience. For example, Singletary applied for several promotions. He was qualified for those positions. Nevertheless, those positions were always given to white employees with less seniority and experience than Singletary. Singletary trainee\ some of the white employees, who were given
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the positions for which Singletary applied. Fmihennore, white employees were allowed to train "on the job" during their normal working hours whereas Afi-icanAmerican employees were only allowed to train on their days of[ Singletary has personally observed that the plant in which he works is disproportionately white. Singletary has been subjected to a work environment that tolerates the use of racial slurs and prominent displays of the confederate flag. 39. Nucor-Bcrkelcy and/or Nucor retaliated against Singletary tor opposing racial discrimination. On July 8, 200 I, Singletary requested a leave of absence under the Family Medical Leave Act ("FMLA") because of a family emergency. During a meeting with his supervisor, Singletary stated that there was racism at the plant and that Afi·ican-American employees were treated as "second class citizens." Shmily thereafter, Singletary was told that he did not qualify for the FMLA and that he would be discharged ifhe did not return to work. Singletary was unable to return to work and was discharged by such defendants. 40. As a result ofNucor-Berkeley'sand/or Nucor' s discriminatory actions, Singletary has suffered extreme harm. 41. Named l'laintiff Gerald White has been employed at Nucor-Berkeley's and/or Nucor' s Huger, South Carolina facility since July 1998 until the present. He has been employed in the capacity ofguide builder/welder. During his employment, White has performed his duties and fulfilled his responsibilities in a satisfactory matmer. White has been adversely affected by the challenged systemic practices and pattern ofracial discrimination by not being able to learn about or compete for employment
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opportunities in traditionally white job classifications; by being required to work in conditions in which he and other members of his race were demeaned; by being required to work under discriminatory terms and conditions of employment, including being required to endure racial hostilities members of his race. 42. Nucor-Berkeley's and/or Nucor's discriminatory practices and procedures have adversely affected White. During his employment, White has informed his supervisors that he was interested in being promoted to positions with better opportunities for advancement. Moreover, Nucor-Berkeley and/or Nucor have routinely promoted white employees to vacant positions over African-American employees ofcomparable or more extensive experience. For example, White applied for a roll shop supervisor position in 200 I. Said defendants selected Jerry Herman, a less qualified white employee for the position. Herman had been previously demoted and had never worked in the roll shop department. White was required to train Herman in the roll shop operation. White has personally observed that the plant in which he works is disproportionately white despite the fact that it is located in a predominately black neighborhood. White has been subjected to discriminatory working conditions. Throughout much of2000, White's crew worked the day shift, which was helpful for White. White's wife was hospitalized for three months and working the day shift enabled White to be with his wife in the evenings. In September 2002, White's crew was re-organized, and White was assigned to work a swing shift that included working during evening hours. White asked Chris Anderson, a white supervisor, to return to his day shift because his wife was
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hospitalized. Anderson refused to accommodate his schedule. Upon information and belief, white employees are provided special treatment and their schedules are accommodated by Nucor-Berkeley and/or Nucor. White has told the plant manager than he believed racism existed at the plant. 43. As a result ofNucor-Berkeley's and/or Nucor's discriminatory actions, White has suffered exh·eme harm. 44. Named PlaintiffJason Guyhas been employed at Nucor-Berkeley'sand/or Nucor's Huger, South Carolina facility since 1996 until the present. He has been employed in the capacity of saw operator and stacker. During his employment, Guy has performed his duties and fulfilled his responsibilities in a satisfactory mam1er. Guy has been adversely affected by the challenged systemic practices and pattern ofracial discrimination by not being considered for traditionally white job classifications at the time he applied for employment; by not being able to learn about or compete for employment opportunities in traditionally white job classifications; by being required to work in conditions in which he and other members ofhis race were demeaned; by being required to work under discriminatory terms and conditions of employment, including being required to endure racial hostilities directed at himselfand members of his race; and by not being provided training available to similarly situated white employees. 45. Nucor-Berkeley's and/or Nucor's discriminatory procedures have adversely atlected Guy. During his employment, Guy has informed his supervisors that he was interested in being promoted to positions with better opportunities for advancement.
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Moreover, Nucor-Berkeley's and/or Nucor have routinely promoted white employees to vacant positions over Afi·ican-American employees of comparable or more extensive experience. In approximately May, 2003, Guy applied for a promotion that was awarded to a white employee. 46. In June 2003, Guy was wronglhlly disciplined and terminated because of his race and in retaliation for his opposition to racial discrimination. Guy filed a charge of discrimination in December 2002 alleging race discrimination against NucorBerkeley and/or Nucor. In March 2003, Guy was subjected to disparate disciplinary treatment. Guy's team of fellow employees was accidentally involved in an incident at work. Five ofthe employees, all ofwhom are white, were disciplined by receiving only a write-up. However, Guy received the more severe disciplinary action of a suspension. 47. As a result ofNucor-Berkeley's and/or Nucor's discriminatory actions, Guy has suffered extreme harm. 48. Named Plaintiff Jacob Ravenell has been employed at Nucor-Berkeley's and or Nucor's Huger South Carolina facility from approximately July 1998 through the present. During his employment, Ravenell has performed his duties and fulfilled his responsibilities in a satisfactory manner. Ravenellhas been adversely affected by the challenged systemic practices and pattern of racial discrimination by not being able to learn about or compete for employment opportunities in traditionally white job classifications; by being required to work in conditions in which he and other members ofhis race were demeaned; by being required to work under discriminatory
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terms and conditions of employment, including being required to endure racial hostilities directed at himself and members of his race and by not being provided training available to similarly situated white employees. 49. Nucor-13erkeley's and/or Nucor's discriminatory selection procedures and adverse terms and conditions of employment have adversely affected Ravenell. During his employment Ravenell has informed his supervisors that he was interested in being promoted to positions with better opportunities for advancement. The challenged practices have directly effected Ravenell. Nucor-Berkeley and/or Nucor has routinely promoted white employees to vacant positions over African-American employees of comparable or more extensive experience. For example, in approximately August of 2003, Ravenell applied for a #I Exit Operator Position in the Reversing Mill Department. Ravenell was qualified for the position. Additionally, in October of 2003, Ravenell applied for a #I Entry Operator position in the Reversing Mill Department. Ravenell was qualified for this position. On both occasions Ravenell was denied the position. Ravenell has been denied the opportunity to train for these and other positions. 50. Ravenell has personally observed and been subjected to the Defendants' tolerance of a racially hostile work environment. For example, Ravenell has been called "Dan" by a white co-employee. A white co-employee later informed Ravenell that the name "Dan" stood for "dumb ass nigger." Ravenell has also observed racially hostile graffiti during his employment. Nucor-Berkeley and/or Nucor have tolerated other raciaily offensive comments and paraphernalia.
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51. As a result ofNucor-Bcrkeley's and/or Nucor's discriminatory actions, Ravenell has suffered extreme harm.
VIII. CLASS CLAIMSAGAINSTNUCOR-BERKELEYAND NUCOR ARISING FROM THE HUGER, SOUTH CAROLINA PLANT A. DISCRIMINATION ON THE BASIS OF RACE IN VIOLATION OF
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. §§ 2000(c), ct seq., AS AMENDED, AND THE CIVIL RIGHTS ACT OF 1866, 42 U.S.C. § 1981, AS AMENDED CLAIMS FOR DECLARATORY, INJUNCTIVE, AND OTHER EQUITABLE RELIEF
52. The named plaintiffs restate and incorporate by reference Paragraphs I through 51 above as part of this Count of the Third Amended Complaint.
53. The named plaintiffs and the class they seek to represent have been subject to systemic racial discrimination including, but not limited to, a pattern and practice of intentional discrimination and a battery ofpractices having unlawtlll disparate impact on their employment opportunities. Such racial discrimination includes a policy and practice of restricting African-Americans' employment opportunities to the lower classification and compensation levels. The systemic means of accomplishing such racial discrimination include, but are not limited to, Nucor-Berkeley's and/or Nucor's selection procedures, racially hostile reputation and conditions of work, and unequal terms and conditions of employment.
54. Nucor-Berkeley' sand/or Nucor's selection and compensation procedures incorporate the following racially discriminatory practices: I) reliance upon subjective procedures and criteria which permit and encourage the incorporation of racial stereotypes and bias of such defendants' predominantly white managerial staff; 2) refusal to establish or follow policies, procedures, or criteria that reduce or eliminate
21

2:04-cv-22005-CWH Date Filed 01/29/08 Entry Number 263-8 Page 23 of 30
disparate impact and/or intentional racial bias or stereotypes in such defendants' decision making process; 3) refusal to post or announce vacancies or employment opportunities in a manner that allows Ati·ican-Americans to learn about such opportunities and compete for them before they arc tilled by white employees or applicants; 5) pre-selection of whites before vacancies or opportunities become known; and 7) discouragement ofapplications and expressions ofinterest by AfricanAmericans through a reputation for racial bias, racially hostile conditions of work, and unequal terms and conditions of employment in such areas as work hours and position assignments. 55. Nucor-Berkeley's and/or Nucor's selection have a disparate impact on the individual named plaintiffs and the class they represent. Such procedures are not valid, job related orjustified by business necessity. There are objective and structured selection procedures available to Nucor-Berkeley and/or Nucor which have less disparate impact on Afi:ican-Americans and equal or greater validity and job relatedness, but such defendants have refused to consider or to use such procedures. 56. Nucor-Berkcley's and/or Nucor's selection procedures are intended to have a disparate impact on the named plainti!Is and the class they seek to represent. 57. Nucor-Berkeley's and/or Nucor's selection procedures have adversely affected the named plaintiffs and the class they seek to represent, including but not limited to, the following: not hiring or promoting African-Americans in the traditionally white classification and compensation levels; assigning Ali-ican-Americans to inferior work hours and other unequal terms and conditions of employment; and encouraging or
22

2:04-cv-22005-CWH Date Filed 01/29/08 Entry Number 263-8 Page 24 of 30
ratifYing racially hostile conditions of work and racially demeaning stereotypes regarding the capabilities, motivation and interests of African-Americans. 58. Nucor-Berkeley and/or Nucor have also continuously engaged in, condoned and ratified discrimination which constih1tes a continuing violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e, el seq., as amended, and 42 U.S.C. § 1981, as amended. 59. The named plaintiffs have no plain, adequate, or complete remedy oflaw to redress the wrongs alleged herein, and this suit for back-pay, an injunction other equitable relief, and a declaratory judgment is their only means of securing adequate equitable relief. Plaintiffs are now suffering and will continue to suffer irreparable injury from Nucor-Berkeley's and/or Nucor's unlawful policies and practices as set fmth herein unless enjoined by this Court. 60. By reason ofNucor-Berkeley's and/or Nucor's discriminatory employment practices, the named plaintitTs have experienced harm, including loss of compensation, back and front pay, and other employment benefits. 8. CLAIMS FOR NOMINAL, COMPENSATORY AND PUNITIVE DAMAGES
PURSUANT TO 23(8)(3) 61. The common issues of fact and law affecting the claims of the representative named
plaintitrs and proposed class members, including, but not limited to, the common issues identified in paragraphs 1-60 above, predominate over any issues affecting only individual claims. 62. A class action is superior to other available means for the fair and efficient adjudication ofthe claims ofthe named plaintiff.~ and members ofthe proposed class.
23

2:04-cv-22005-CWH Date Filed 01/29/08 Entry Number 263-8 Page 25 of 30
63. The cost of proving the Nucor-Berkeley's and/or Nucor's pattern or practice of discrimination makes it impracticahle for the named plaintifls and members of the proposed class to prosecute their claims individually.
IX. PRAYER FOR RELIEF 64. Wherefore, the named plaintiffs on behalf of themselves and the class members whom they seek to represent request the following relief: a. Acceptance ofjurisdiction of this cause; b. Certification of the case as a class action maintainable under Federal Rules of Civil Procedure Rule 23 (a) and (b)(2), on behalf ofthe proposed plaintiff class, and designation of such Plaintiff.~(and appointment of such plaintiffs as designated,) as representatives ofthe class defined above and their counsel of record as class counsel; c. A declaratory judgment that the Nucor-Berkeley's and/or Nucor's employment practices challenged herein arc illegal and in violation of Title VII and 42 U.S.C. §1981; d. A temporary and pennanent injunction against Nucor-Berkeley and/or Nucor and their partners, officers, owners, agents, successors, employees, representatives and any and all persons acting in concert with them, from engaging in any further unlawful practices, policies, customs, usages, racial discrimination and retaliation by such defendants set fmth herein; e. An Order requiring Nucor-Berkeley and/or Nucor to initiate and implement programs that provide (i) equal employment oppmtunities for African-
24

2:04-cv-22005-CWH Date Filed 01/29/08 Entry Number 263-8 Page 26 of 30

American employees; (ii) remedy the effect of Nucor-Berkeley's and/or

Nucor's past and present unlawful employment practices; and (iii) eliminate

the continuing effects ofthe discriminatory and retaliatory practices described

above;

f.

An Order requiring Nucor-Berkeley and/or Nucor to initiate and implement

systems of assigning, training, transferring, compensating, and promoting

African-American employees in a non-discriminatory manner;

g. An Order establishing a task force on equality and fairness to determine the

effectiveness of the programs described in (e) and (f), above, which would

provide for (i) the monitoring, reporting, and retaining of jurisdiction to

ensure equal employment opportunity, (ii) the assurance that injunctive relief

is properly implemented, and (iii) a quarterly report setting fmth information

relevant to the determination of the effectiveness of the programs described

in (e) and (f), above;

h. An Order restoring the named plaintiffs and the class they seek to represent

to those jobs they would now be occupying but for Nucor-Berkeley's and/or

Nucor's discriminatory practices;

1.

An Order directing Nucor-Berkeley and/or Nucor to adjust the wage rates and

benefits for the named plaintiffs and the class they seek to represent to the

level that they would be e1~joying but lor such defendants' discriminatory

practices;

J.

An award of back pay; fl·ont pay; lost job benefits; preferential rights to jobs,

25

2:04-cv-22005-CWH Date Filed 01/29/08 Entry Number 263-8 Page 27 of 30

and other equitable relief for the named plaintiffs and the class they seek to

represent;

k.

An award ofnominal, Compensatory and punitive damages for all legal relief

sought in this complaint

I.

An award of litigation costs and expenses, including reasonable attorney's

fees to the named plaintitTs and class members;

m. Prejudgment interest; and

n.

Such other and further relief as the Court may deem just and proper.

Respectfully submitted this ~~ day of January, 2005.
()RA~~I~N, h'~~
38 BROAD STREET, TI-IIRD FLOOR CHARLESTON, SC 29401 843/577-3170 843/723-7436(facsimile)

ROBERT L. WIGGINS, JR., ABS-1754-G-63R ANN K. WIGGINS, ABS-7006-I-61A BENJAMIN J. DeGWECK, ABS-8943-B-46-D WIGGINS, CHILDS, QUINN & PANTAZIS, P.C. THE KRESS BUILDING 301191hSTH.EETNORTH BIRMINGHAM, ALABAMA 35203 205/314-0500 205-254- I 500 (Htcsimile)

GRANT MORRIS, ESQ., Washington, D.C. BarNo. 926253 7 DUPONT CIRCLE, N.W., SUITE 250 WASI-IINGTON, D.C. 20036 Telephone: (202) 331-4707

26

2:04-cv-22005-CWH Date Filed 01/29/08 Entry Number 263-8 Page 28 of 30

IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

)

QUINTON BROWN, JASON GUY,

)

RAMON ROANE, ALVIN SIMMONS,

)

SHELDON SINGLETARY, and

)

GERALD WHITE, individually and

)

on behalf of the class they seek to represent, )

)

Plaintiffs,

)

)

v.

)

)

NUCOR CORPORATION and NUCOR

)

STEEL-BERKELEY

)

)

Defendants.

)

CASE No.: 04-CV-22005 CLASS ACTION

CERTIFICATE OF CONSULTATION Undersigned local counsel for Plaintiffs hereby certifies that he has contacted the office of local counsel for the defendants in an etfmt to consult regarding possible consent to this Motion. Both local cotmsel for the defendants are out of town, so that consultation carmot be obtained prior to the tiling deadline in the Scheduling Order, which is today. Undersigned counsel will continue to seek consultation as to defendants' possible consent to this Motion. and, if consent be forthcoming, will notify the Court promptly that the Motion is not opposed.
Respectfully submitted thisb( <gft\ day of January, 2005.

38 BROAD STREET. THIRD FLOOR CHARLESTON, SC 29401 843/577-3170 843/723-7436(facsimile)

2:04-cv-22005-CWH Date Filed 01/29/08 Entry Number 263-8 Page 29 of 30
ROBERT L. WIGGINS. JR., ABS-1754-G-63R ANN K. WIGGINS, ABS-7006-l-61A BENJAMIN .1. DeGWECK, ABS-8943-B-46-D WIGGINS, CHILDS, QUINN & PANTAZIS, P.C. TI-lE KRESS BUILDING 301 19'" STREET NORTH BIRMINGHAM, ALABAMA 35203 205/314-0500 205-254-1500 (facsimile)
GRANT MORRIS, ESQ., Washington, D.C. Bar No. 9262537 2121 K STREET N.W., SUITE 700 WASHINGTON, D.C. 20037 Telephone: (202) 331-4707

2:04-cv-22005-CWH Date Filed 01/29/08 Entry Number 263-8 Page 30 of 30
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Motion to File Third Amended Complaint with Exhibits attached to the Motion and the Certificate of Consultation was sent, by U.S. Mail, properly addressed and first-class postage prepaid, on the following:
Richard D. Alaniz Terry E. Sclu·aeder 16010 Barker's Point Lane, Suite 500 Houston, TX 77079
John S. Wilkerson, III Melanie Stith Gateway Center, Suite 200 40 Calhoun Street P.O. Box 22129 Charleston, SC 29413
Done this 281h day of January, 2005

 
 2:04-cv-22005-DCN Date Filed 04/27/11 Entry Number 359 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Quinton Brown, Jason Guy,

)

Ramon Roane, Alvin Simmons,

)

Sheldon Singletary, Gerald White,

)

and Jacob Ravenell,

)

Individually and on behalf of the class )

they seek to represent,

)

)

Plaintiffs,

)

)

vs.

)

)

Nucor Corporation and

)

Nucor Steel Berkeley,

)

)

Defendants.

)

Civil Action No.: 2:04-22005-CWH ORDER

This matter is before the Court on the defendants' motion for reconsideration of class certification ("motion for reconsideration") (ECF No. 346). For the reasons set forth in this order, the motion is denied.
I. BACKGROUND The Court assumes familiarity with the facts and procedural history of this case, which are set forth in detail in the Court's order of February 17, 2011 (ECF No. 339). The following procedural history is relevant to the motion at hand. The original case was filed in the Western District of Arkansas on December 8, 2003, as a nationwide class action alleging employment discrimination against Nucor Corporation and several of its subsidiaries. The action was severed into four separate cases on August 24, 2004, and each case was transferred to the judicial district in which the unlawful employment practices allegedly occurred. The named plaintiffs in this particular

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case are seven African-Americans who are or were employed at the Nucor Steel plant in Huger, South Carolina. The plaintiffs allege that Nucor Steel Berkeley and Nucor Corporation ("the defendants") discriminated on the basis ofrace in their promotions. The plaintiffs advance causes of action for disparate treatment, disparate impact, and a hostile work environment.
On May 7, 2007, the plaintiffs moved to certify the following class: All African-Americans who are or were employed at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance and shipping departments (hereafter "production departments") or, in the alternative, for such separate classes or subclasses ofsuch persons as may be appropriate under the Federal Rules of Civil Procedure. Mot. for Class Certification I, ECF No. 184. On August 7, 2007, this Court denied the plaintiffs' motion for class certification, holding that the plaintiffs had failed to satisfy the requirements ofRule 23(a). Order Den. Mot. to Certify Class, Aug. 7, 2007, ECF No. 224. Two years later, on August 7, 2009, a 2-1 panel of the Fourth Circuit Court of Appeals reversed. In its initial order, the Fourth Circuit concluded that the plaintiffs had satisfied the requirements of Rule 23(a) and Rule 23(b)(3) and remanded the case to this Court "with instructions to certify the appellants' class action." Brown v. NucorCom., No. 08-1247, at 19 (4th Cir. Aug. 7, 2009), amended by Brown v. Nucor Com., 576 F.3d 149 (4th Cir. 2009). On October 8, 2009, the panel modified its opinion by deleting its lone reference to Rule 23(b)(3). The portion ofthe majority's opinion instructing this Court to certify the class remained unchanged. Brown, 576 F.3d at 160. On October 22, 2009, the defendants filed their motion for consideration ofFRCP 23(b) and motion to deny class certification (ECF No. 308), urging this Court to analyze the putative class under Rule 23(b) and to deny class certification. On November II, 2009, the plaintiffs responded
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in opposition (ECFNo. 309), and the defendants filed a reply (ECF No. 31 0) on November 20,2009. Although the Fourth Circuit remanded the case "with instructions to certify the appellants' class action," Brown, 576 F.3d at 160, the defendants insisted that the Fourth Circuit's opinion governed only the 23(a) analysis, and that this Court could deny class certification if it found that the plaintiffs had not satisfied Rule 23(b). In response, the plaintiffs argued that by instructing this Court to "certify the appellants' class action," the Fourth Circuit's opinion required this Court to certify a class under either Rule 23(b)(2) or a hybrid of 23(b)(2) and 23(b)(3) because those were the provisions pursuant to which the plaintiffs originally sought certification.
On February 17, 2011, this Court issued an order certifying a class under Rule 23(b)(3). The Court agreed with the plaintiffs that, in light of the Fourth Circuit's opinion, the Court was required to certify a class. Order Den. Defs.' Mot. to Den. Class Certification II, Feb. 17, 20 II, ECF No. 339 ("Order Granting Class Certification"). However, the Court also found that by removing its lone reference to Rule 23(b), the Fourth Circuit had given the Court discretion to conduct a Rule 23(b) analysis for the purpose of determining the type of class to certify. See id. at 13-15. 1 Accordingly, this Court carefully considered the plaintiffs' class under the various provisions of Rule 23(b). The Court found that the monetary relief sought by the plaintiffs predominated over the injunctive relief requested, and therefore, certification was not proper under Rule 23(b)(2). !d. at 23.
1 Before conducting its analysis, this Court noted that "the question of which provision the plaintiffs' class satisfies essentially requires the same analysis as the question of whether the plaintiffs have satisfied any of the requirements at all." Order Granting Class Certification 15, Feb. 17,2011, ECF No. 339. Thus, while the Fourth Circuit's opinion compelled a particular outcome (class certification in some form), the analysis required to reach that outcome was otherwise identical to the analysis the Court would have performed had the Fourth Circuit remanded the case with instructions to consider whether the appellants' class satisfies Rule 23(b).
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2:04-cv-22005-DCN Date Filed 04/27/11 Entry Number 359 Page 4 of 14
Furthermore, the Court declined to certifY the class using a "(b)(2)/(b)(3) hybrid" because this approach is not well established within the Fourth Circuit. Id. at 24-25. At the same time, the Court acknowledged that certifying a separate subclass for plaintiffs seeking monetary relief might prove a workable solution. !d. at 25 n.ll. Although the plaintiffs initially sought hybrid certification as an alternative to certification under Rule 23(b)(2), they never proposed any specific subclasses, and failed to address the defendants' arguments against the hybrid approach in their response. See id. 24-25.
Finally, the Court considered the putative class under Rule 23(b)(3), noting that although it retained discretion as to which type of class to certifY, its evaluation of the facts was significantly constrained by the Fourth Circuit's ruling above. !d. at 27 ("[T]he Court of Appeals significantly altered the lens through which this Court must evaluate the facts relevant to an analysis under Rule 23(b)(3)."). Consequently, in considering whether the putative class satisfied Rule 23(b)(3), this Court could not revert to factual findings or assumptions that the Fourth Circuit had explicitly rejected in reversing this Court's analysis of Rule 23(a). After examining the putative class in light of the Fourth Circuit's opinion and applying the relevant factors under Rule 23(b)(3), this Court found that the putative class satisfied both the predominance and superiority requirements of Rule 23(b)(3) and certified the following class:
All African-Americans who are or were employed at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance, and shipping department. !d. at 30. On March 7, 2011, the defendants filed a motion for reconsideration (ECF No. 346) and a motion to stay the case (ECF No. 347) until the Supreme Court issues its opinion in Wal-Mart
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2:04-cv-22005-DCN Date Filed 04/27/11 Entry Number 359 Page 5 of 14
Stores. Inc. v. Dukes. On March 24, 2011, the plaintiffs filed a response in opposition (ECF No. 351 ), and the defendants filed a reply (ECF No. 354) on April 4, 2011. Additionally, the plaintiffs submitted a proposed class notice (ECFNo. 348) on March 9, 2011. The defendants filed objections to the proposed notice (ECF No. 350) on March 11, 2011, and the plaintiffs filed a reply (ECF No. 353) on March 24,2011. On April6, 2011, the Court held a hearing to consider the parties' motions. The parties suggested that they be given additional time to confer regarding the proposed notice as many of the issues appear susceptible to resolution by mutual consent. The Court agreed and instructed the parties to confer and submit a new proposed notice. The Court indicated that it was reluctant to issue a stay given the age of the case and requested that the plaintiffs submit a letter proposing steps that might be taken to advance the case over the next several months while delaying dispositive motions until after the Supreme Court issues its opinion in Dukes. Finally, the Court heard arguments in support of and opposition to the motion for reconsideration, to which the Court now turns.
II. DISCUSSION Motions to alter or amend an order under Rule 59(e) are disfavored, Stoudemire v. Branch Banking & Trust Bankcard Com., No. 3:09-2485,2010 WL 4340460 (D.S.C. Oct. 25, 2010), and should only be granted on three limited grounds: "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available earlier; or (3) to correct a clear error oflaw or prevent manifest injustice." Hutchinson v. Staton, 994 F.2d I076, I081 (4th Cir. 1993). A party's "mere disagreement" with a court's decision "does not support a Rule 59(e) motion." Id. at 1082. "Hindsight being perfect, any lawyer can construct a new argument to support a position previously rejected by the court, especially once the court has spelled out its reasoning in an order."
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2:04-cv-22005-DCN Date Filed 04/27/11 Entry Number 359 Page 6 of 14
Potter v. Potter, 199 F.R.D. 550,553 (D. Md. 2001). Rule 59(e) was not designed to give parties "a second bite at the apple," Shields v. Shetler, 120 F.R.D. 123, 126 (D. Colo. 1988), and it "may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry ofjudgment." Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (quotation marks and citations omitted).
A. Request to Reconsider Certification Under Rule 23(b)(3) The defendants advance two primary arguments in support of their motion to reconsider. First, the defendants claim that the parties have not had an adequate opportunity to present arguments regarding certification under Rule 23(b)(3). Second, the defendants argue that the plaintiffs have not satisfied the predominance and superiority requirements of Rule 23(b)(3), and thus the Court's decision to certify a class under Rule 23(b)(3) was a clear error of law.
1. The parties have not had an opportunity to address Rule 23(b)(3) The defendants contend that because the plaintiffs never sought certification under Rule 23(b)(3 ), the defendants "never had the opportunity or the motive to fully brief the issue, much less request a hearing solely on 23(b)(3) factors." Mot. for Recons. 5, ECF No. 346. Thus, the defendants claim that the Court erred by certifying a class "sua sponte" without requiring the plaintiffs to satisfy the requirements of23(b)(3) or affording the defendants an opportunity to contest the certification. !d. A "court has an independent obligation to decide whether an action brought on a class basis is to be so maintained even if neither of the parties moves for a ruling under subdivision (c)(I)." 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1785 (3d ed. 2005). Therefore, even if the Court did certify a (b)(3) class sua sponte, there is no
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2:04-cv-22005-DCN Date Filed 04/27/11 Entry Number 359 Page 7 of 14
clear error. Moreover, the defendants' contention that they lacked both an opportunity and a motive to address Rule 23(b)(3) is misleading. In fact, the defendants have repeatedly challenged the propriety of (b)(3) certification as a part of their opposition to the plaintiffs' request to certifY a hybrid class. From the outset, the defendants maintained that the Court could only certifY a hybrid class if the plaintiffs satisfied the requirements of both 23(b)(2) and 23(b)(3). See Resp. to Pis.' Mot. for Class Certification 57, ECF No. 197 (citing Lott v. Westinghouse, 200 F.R.D. 539, 563 (D.S.C. 2000)). Indeed, the defendants have repeatedly argued that the plaintiffs failed to satisfY the predominance and superiority requirements of Rule 23(b)(3), and they advance the same argument again in their motion forreconsideration. Compare Resp. to Pis.' Mot. for Class Certification 57-59, ECF No. 197, and Defs.' Mot. to Den. Certification 8-11, ECF No. 308, with Defs.' Mot. for Recons. 5-11, ECF No. 346.
Although the Fourth Circuit amended its initial opinion to remove its brief mention of Rule 23(b)(3), as a practical matter, the omitted language indicated that (b)(3) certification was a possibility. The Fourth Circuit said, "our assessment inevitably leads us to conclude that the requirements of Federal Rule of Civil Procedure 23(b)(3) have also been satisfied for these claims." Brown, No. 08-1247, at 19 (emphasis added) (footnote and citation omitted), amended by Brown, 576 F.3d at 160. On remand, the plaintiffs argued that by deleting this language and instructing the Court to certifY a class, "the Court of Appeals recognized that this case easily satisfies both subsection b-2 and b-3 in the manner set forth in [the] plaintiffs' Motion For Class Certification." Pis.' Opp'n to Mot. to Deny Class Certification 4 n.2, ECF No. 309. In summary, the issue of(b)(3) certification was raised by both the plaintiffs and the Fourth Circuit, and, notwithstanding their objection, the defendants have previously addressed the issue on several occasions.
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2:04-cv-22005-DCN Date Filed 04/27/11 Entry Number 359 Page 8 of 14
2. Certification under Rule 23(b)(3) was in error In its order granting certification, this Court analyzed the plaintiffs' class under Rule 23(b), as the defendants maintained was necessary. The Court agreed with the defendants that the presence of the plaintiffs' punitive damages claims caused monetary relief to predominate over injunctive or declaratory relief, rendering certification under Rule 23(b)(2) inappropriate. This left the Court to decide between certifying a (b)(2)/(b)(3) hybrid class or a standard (b)(3) class? As a practical matter, the primary difference between a (b)(2)/(b)(3) hybrid and a standard (b)(3) class is that under a (b)(2)/(b)(3) hybrid, only class members seeking monetary damages receive notice and the opportunity to opt out, whereas under a standard (b)(3) class, all class members are afforded notice and the opportunity to opt out. As the Court discussed in its order, the hybrid approach is not well established within this circuit, and the plaintiffs appeared to have abandoned their arguments for this approach. Having reviewed the Fourth Circuit's opinion and having carefully analyzed the proposed class under Rule 23(b)(3), the Court determined that the best course of action was to certify the class under Rule 23(b)(3). The defendants have not demonstrated that this decision was a clear error of law,3 and therefore, the Court denies their motion to reconsider.
2 The defendants contend that this Court should not have certified any class at all; however, to maintain this position they must completely ignore the Fourth Circuit's directive: "we remand the case to the district court with instructions to certify the appellants' class action ...." Brown, 576 F.3d at 160. Although the defendants may find it odd that the Fourth Circuit would dictate the general outcome to be reached (class certification) while leaving this Court to fill in the details, that appears to be precisely what the Fourth Circuit did. While the defendants may insist that the Fourth Circuit made an error, they did not prevail on the Fourth Circuit or the Supreme Court to correct it. See Nucor Corp. v. Brown, 130 S.Ct. 1720 (Mar. I, 2010) (denying certiorari).
3 The defendants correctly point out that many courts have declined to certify Title VII discrimination classes under Rule 23(b)(3). See. e.g., Allison v. Citgo Petroleum Corp., !51 F.3d 402, 420 (5th Cir. 1998); Hunter v. Am. Gen. Life & Ace. Ins. Co.. Nos. CA 301-5000-22, CA 301-4506-22, CA 302-1483-22,2004 WL 5231631, at *10, *12-15 (D.S.C. Dec. 2, 2004); Talley
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2:04-cv-22005-DCN Date Filed 04/27/11 Entry Number 359 Page 9 of 14
B. The Scope of the Class Must be Narrowed The defendants argue that if the Court is unwilling to reconsider its certification decision, it should at least narrow the scope of the class. The defendants assert that the "class as currently certified has never been examined under Rule 23" and "is far more broad than the class analyzed by both this Court and the Fourth Circuit under Rule 23's requirements." Defs.' Mot. for Recons. 2, ECF No. 346. Contrary to this claim, the class certified by the Court is essentially identical to the class originally proposed by the plaintiffs in May of 2007, which included: All African-Americans who are or were employed at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance and shipping departments (hereafter "production departments") or, in the alternative, for such separate classes or subclasses of such persons as may be appropriate under the Federal Rules of Civil Procedure. Motion for Class Certification 1, ECF No. 184. In February of 2011, the Court certified the following class: All African-Americans who are or were employed at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance, and shipping
departments. Order Granting Certification 30, ECF No. 339. As is obvious, the class ultimately certified by the Court was drawn directly from the class proposed by the plaintiffs.
v. ARINC. Inc., 222 F.R.D. 260,270-71 (D. Md. 2004); Carson v. Giant Food, Inc., 187 F. Supp. 2d 462,471-72 (D. Md. 2002), affd sub nom. Skipper v. Giant Food. Inc., 68 F. App'x 393,398 (4th Cir. 2003) (per curiam unpublished opinion); Miller v. Hygrade Food Prods. Com., 198 F.R.D. 638, 643-44 (E.D. Pa. 2001); Adams v. Henderson, 197 F.R.D. 162, 171-72 (D. Md. 2000). However, the fact that courts in several circuits have authorized the use ofthe (b)(2)/(b)(3) hybrid in employment discrimination cases suggests that the use of Rule 23(b)(3) is not inherently incompatible with such actions. See. e.g., Jefferson v. Ingersoll Intern., Inc., 195 F.3d 894, 898-99 (7th Cir. 1999); Eubanks v. Billington, 110 F.3d 87,96 (D.C. Cir. 1997).
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Because the class definition does not include a cut-off date, the number of individuals who fall within the definition is likely to have increased with time; however, excepting these changes, any flaw that exists in the current class definition also existed at the time the class was proposed by the plaintiffs, opposed by the defendants, rejected by this Court, reviewed by the Fourth Circuit, opposed by the defendants again, and only then adopted by this Court. The defendants have been afforded every imaginable opportunity to raise objections to the scope of the plaintiffs' class and have previously presented most, if not all of the arguments advanced in their motion for reconsideration.
Nevertheless, the defendants argue that the class defined by the Court is overly broad because it encompasses "departments in which no named Plaintiffs have worked, jobs which no named Plaintiff has sought, and time periods for which there is no evidence in the record of discrimination of any form." Defs.' Mot. for Recons. 2, ECF No. 346. The Court will address each of these arguments in tum.
1. Departments in which no named Plaintiffs have worked The defendants object that the class includes "departments in which no named Plaintiffs have worked," and therefore they argue that the named plaintiffs are not adequate representatives of the class. !d. at 2, 19. The Fourth Circuit rejected this very argument. A person who has been injured by unlawful, discriminatory promotion practices in one department of a single facility may represent others who have been injured by the same discriminatory promotion practices in other departments of the same facility. In such a case, the representatives ofthe class all have the same interests in being free from job discrimination, and they have suffered injury in precisely the same way in the denial of promotion. Brown, 576 F.3d at 158 (quoting Hill v. W. Elec. Co., 596 F.2d 99, 102 (4th Cir. 1979)). This Court's finding that Nucor lacked a plant-wide promotion procedure did not stop the Fourth Circuit
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from concluding, "the appellants are adequate representatives for the disparate impact and treatment
claims of the putative class." Brown, 576 F.3d at 160. The Court declines to narrow the number of
departments represented in the class definition.
2. Jobs which no named Plaintiff has sought
The defendants object that the class includes "jobs which no named Plaintiffhas sought" and
jobs that are not "similarly situated to those held by the named Plaintiffs." Defs.' Mot. for Recons.
2, 19, ECF No. 346. Again, it should be noted that the Fourth Circuit was aware of these facts, yet
found that the named plaintiffs were "adequate representatives" for the claims "ofthe putative class."
Brown, 576 F.3d at 160 (emphasis added). Furthermore, the proper scope of the class was
thoroughly addressed by this Court on remand.
From the outset ofthis case, it has been clear that the plaintiffs alleged a group injury. The relevant question was the level at which the injury was inflicted. The Fourth Circuit held that "a practice of disparate treatment in the exercise of unbridled discretion ... rais[es] questions of law and fact common to all [subject] black employees." Brown, 576 F.3d at 153 (alteration in original)(quoting Lilly v. HarrisTeeter Supermarket, 720 F.2d 326, 333 (4th Cir. 1983)). Since the Fourth Circuit rejected this Court's characterization of the production departments as separate environments, the Court must proceed under the assumption that the production departments were permeable, ifnot unitary. This assumption is buttressed by the fact that Nucor's bidding is plant-wide, and this Court already has held that "potential applicants are eligible to prove that they would have applied for a promotion but for the discriminatory practice." Brown, 2007 WL 2284581, at *9. Therefore, all African-Americans who worked in the production departments qualify as "subject black employees."
Order Granting Class Certification 28, Feb. 17,2011, ECF No. 339. In light of the Fourth Circuit's
opinion, the fact that class members may have worked in different departments, held positions with varying responsibilities, and applied for jobs with distinct qualifications does not render their claims uncommon or defeat the predominance of common issues under Rule 23(b)(3). The various
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distinctions emphasized by the defendants may be relevant to a determination on the merits, and the defendants will be afforded the opportunity to raise such arguments. However, at this time, the Court declines to narrow the class by job description.
3. Time periods for which there is no evidence in the record of discrimination Finally, the defendants argue that the class "combine[s] potential plaintiffs from 1999 with those up to the present time" and claim that "significant changes undergone in the last eight years at NSB" render the class "uncommon." Defs.' Resp. to Pis.' Mot. for Class Certification 47, ECF No. 197. Since the Court discounted the promotions data from the period following December 2003, when the plaintiffs filed their action, the defendants claim that the class should be limited to AfricanAmerican employees who worked at the Berkeley plant between December of 1999 and December of2003. The Court rejects the notion that the temporal scope of the class is strictly limited by the temporal scope of the plaintiffs' statistical evidence. Class definitions in other Title VII cases have extended up to the date ofcertification and indefinitely into the future. See Newsome v. Up-To-Date Laundrv. Inc., 219 F.R.D. 356,360,369 (D. Md. 2004);4 Dukes v. Wal-Mart Stores. Inc., 222 F.R.D. 137, 188 (N.D. Cal. 2004);5 Adams v. Pinole Point Steel Co., No. C-92-1962, 1994 WL 515347, at *4, *9 (N.D. Cal. May 18, 1994); Jenson v. Eveleth Taconite Co., 139 F.R.D. 657, 667 (D. Minn.
4 In Newsome, the district court certified the following class: "All African Americans employed by defendant Up-To-Date Laundry, Inc. as hourly workers in Departments I 00 through 500 at any time from August I, 1998 to the present." 219 F.R.D. at 360.
5 In Dukes, the district court certified the following class: "All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices." 222 F.R.D. at 188.
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1991). Nevertheless, the Court finds that a cutoff date is needed to allow the parties and this Court to define the class with precision and to ensure that potential class members will be able to determine whether they fall within the parameters of the class. See Lee v. ABC Carpet & Home, No. Civ. 0984,2008 WL 2073932, at *2 (S.D.N.Y. May 9, 2008) (concluding that the notice "should inform potential litigants of a cut-off date for inclusion in the class" and requiring the plaintiff to propose a cut-offdate no later than 90 days after the mailing ofthe notice); Saur v. Snappy Apple Farms. Inc., 203 F.R.D. 281, 285-86 (W.D. Mich. 2001) (limiting the class to those who failed to receive overtime payments up until the filing ofthe action); In re Wal-Mart Stores. Inc. Wage & Hour Litig., No. cv 06-2069, 2008 WL 1990806, at *6-7 (N.D. Cal. May 5, 2008) (modifying the class and implementing the date of the notice as a cut-off date). The cut-off date for the class in this case shall be the date of this order.
The Court's review of the class certified in this case leads it to conclude that two additional modifications to the class definition are needed. First, for the sake of clarity, the Court finds that the class definition should indicate that it includes only those individuals who may have been discriminated against by the defendants. Second, the Court will grant the defendants' request that the definition be amended to make it clear that the class is limited to African-Americans who were employed by the defendants in one or more of the six enumerated departments at the Nucor Steel Berkeley plant and does not encompass individuals who may have worked at the plant as independent contractors or in some other capacity.
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III. CONCLUSION

For the reasons set forth in this order, the defendants' motion for reconsideration (ECF No.

346) is denied. The Court modifies the class definition, which now reads as follows:

All African-Americans who are, as of the date of this order, or were employed by Nucor Corporation or Nucor Steel Berkeley at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time between December 2, 1999, and the date of this order, in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because of
Nucor's challenged practices.

In addition, as the Court indicated at the status conference on April6, 2011, the defendants' motion

to stay (ECF No. 347) is denied. Should the Supreme Court's anticipated opinion in Wal-Mart

Stores. Inc. v. Dukes require this Court to revisit the issue of class certification, the defendants may

make a motion to decertify or modify the class at that time.

AND IT IS SO ORDERED.
April~011
Charleston, South Carolina

c~
UNITED STATES DISTRICT JUDGE

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 2:04-cv-22005-CWH Date Filed 09/11/12 Entry Number 409 Page 1 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Quinton Brown, Jason Guy,

)

Ramon Roane, Alvin Simmons,

)

Sheldon Singletary, Gerald White,

)

and Jacob Ravenell,

)

Individually and on behalf of the class

)

they seek to represent,

)

Civil Action No.: 2:04-22005-CWH

)

Plaintiffs,

)

)

VS.

)

ORDER

)

Nucor Corporation and

)

Nucor Steel Berkeley,

)

)

Defendants.

)

This order marks the fifth time this Court has addressed the issue of class certification in this case. 1 The matter is before the Court on the defendants' motion for decertification of the current plaintiff class ("motion to decertify") (ECF No. 381) and the defendants' motion to exclude the plaintiffs' expert witness ("motion to exclude") (ECF No. 379). For the reasons set forth in this order, the defendants' motion for decertification is granted with regard to the disparate treatment and disparate impact claims and is denied with regard to the hostile work environment claim. The defendants' motion to exclude is moot.

1 See ECF No. 224 (order denying plaintiffs' motion for class certification); ECF No. 259 (order denying plaintiffs' motion to reconsider denial of class certification); ECF No. 339 (order denying defendants' motion to deny class certification and certifYing a class under Rule 23(b)(3)); ECF No. 359 (order denying defendants' motion to reconsider class certification, denying defendants' motion to stay, and denying in part and granting in part
~ ''''"'~"' mo<;oo W mOOory '"' "'";
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I. BACKGROUND
A. FACTS
The Court assumes familiarity with the facts of this case, which are set forth in detail in the Court's order of February 17, 2011 (ECF No. 339).
B. PROCEDURAL HISTORY
The following procedural history is relevant to the motions at hand. This case was originally filed in the Western District of Arkansas on December 8, 2003, as a nationwide class action alleging employment discrimination against Nucor Corporation and several of its subsidiaries. The action was severed into four separate cases on August 24, 2004, and each case was transferred to the judicial district in which the unlawful employment practices allegedly occurred. The named plaintiffs in this particular case are seven African-Americans who are or were employed at the Nucor Steel plant in Huger, South Carolina ("the Berkeley plant"). The plaintiffs allege that Nucor Steel Berkeley and Nucor Corporation ("the defendants") discriminated on the basis of race with respect to their promotions. The plaintiffs advance causes of action for disparate treatment, disparate impact, and a hostile work environment.
l. This Court Denies Class Certification
On May 7, 2007, the plaintiffs moved to certify the following class: All African-Americans who are or were employed at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance and shipping departments (hereafter ''production departments") or, in the alternative, for such separate classes or subclasses of such persons as may be appropriate under the Federal Rules of Civil Procedure.
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Mot. for Class Certification I, ECF No. 184. On August 7, 2007, this Court denied the plaintiffs' motion for class certification, holding that the plaintiffs had failed to satisfy the requirements of Rule 23(a) (ECF No. 224). The plaintiffs moved for reconsideration (ECF No. 228), and the Court denied the motion (ECF No. 259).
2. The Fourth Circuit Reverses
Two years later, on August 7, 2009, a 2-1 panel of the Fourth Circuit Court of Appeals reversed. In its initial order, the Fourth Circuit concluded that the plaintiffs had satisfied the requirements of Rule 23(a) and Rule 23(b)(3) and remanded the case to this Court "with instructions to certify the appellants' class action." Brown v. Nucor Com., No. 08-1247, at 19 (4th Cir. Aug. 7, 2009), amended by Brown v. Nucor Com., 576 F.3d 149 (4th Cir. 2009). On October 8, 2009, the panel modified its opinion by deleting its lone reference to Rule 23(b)(3). The portion of the majority's opinion instructing this Court to certify the class remained unchanged. Brown, 576 F.3d at 160.
3. This Court Certifies a Class on Remand
On October 22, 2009, the defendants filed their motion for consideration of FRCP 23(b) and motion to deny class certification (ECF No. 308), urging this Court to analyze the putative class under Rule 23(b) and to deny class certification. Although the Fourth Circuit remanded the case "with instructions to certify the appellants' class action," Brown, 576 F.3d at 160, the defendants insisted that the Fourth Circuit's opinion governed only the 23(a) analysis, and that this Court could deny class certification if it found that the plaintiffs had not satisfied Rule 23(b). In response, the plaintiffs argued that by instructing this Court to "certify the appellants' class action," the Fourth Circuit's opinion required this Court to certify a class under either Rule
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23(b)(2) or a hybrid of23(b)(2) and 23(b)(3) because those were the provisions pursuant to which the plaintiffs originally sought certification.
On February 17,2011, this Court issued an order (ECF No. 339) certifying a class under Rule 23(b)(3). The Court agreed with the plaintiffs that, in light of the Fourth Circuit's opinion, the Court was required to certify a class. Order Den. Defs.' Mot. to Den. Class Certification II, Feb. 17,2011, ECF No. 339 ("Order Granting Class Certification"). However, the Court also found that by removing its lone reference to Rule 23(b), the Fourth Circuit had given the Court discretion to conduct a Rule 23(b) analysis for the purpose of determining the type of class to certify. See id. at 13-15 2 Accordingly, this Court considered the plaintiffs' class under the various provisions of Rule 23(b) and found that the monetary relief sought by the plaintiffs predominated over the injunctive relief requested, and, therefore, certification was not proper under Rule 23(b)(2). !d. at 23. This Court also declined to certify the class using a "(b)(2)/(b)(3) hybrid," noting that this approach was not well established within the Fourth Circuit. !d. at 2425.
Finally, the Court considered the putative class under Rule 23(b)(3), noting that although it retained discretion as to the type of class to certify, its evaluation of the facts was significantly constrained by the Fourth Circuit's ruling. !d. at 27 ("[T]he Court of Appeals significantly altered the lens through which this Court must evaluate the facts relevant to an analysis under Rule 23(b)(3)."). Consequently, in considering whether the putative class satisfied Rule 23(b)(3), this Court could not revert to factual findings or assumptions that the Fourth Circuit
2 Before conducting its analysis, this Court remarked, "the question of which provision the plaintiffs' class satisfies essentially requires the same analysis as the question of whether the plaintiffs have satisfied any of the requirements at all." Order Granting Class Certification 15, Feb. 17, 2011, ECF No. 339. Thus, while the Fourth Circuit's opinion compelled a particular outcome (class certification in some form), the analysis required to reach that outcome was otherwise identical to the analysis the Court would have performed had the Fourth Circuit remanded the case with instructions to consider whether the appellants' class satisfied Rule 23(b).
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had explicitly rejected in reversing this Court's analysis of Rule 23(a). After examining the putative class in light of the Fourth Circuit's opinion and applying the relevant factors under Rule 23(b)(3), this Court found that the putative class satisfied both the predominance and superiority requirements of Rule 23(b)(3) and certified the following class:
All African-Americans who are or were employed at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments. Order Granting Class Certification 30, ECF No. 339.
4. The Defendants' Motions to Reconsider/Stay/Narrow the Class
On March 7, 2011, the defendants filed a motion for reconsideration (ECF No. 346) and a motion to stay the case (ECF No. 347) until after the Supreme Court issued an opinion in WalMart Stores, Inc. v. Dukes. On April6, 2011, the Court held a hearing to consider the defendants' motions. The Court declined to stay the case pending a ruling in Wal-Mart and instructed the defendants that if Wal-Mart were to require this Court to reexamine its certification decision, the defendants could make a motion to decertify the class at that time.
The Court also declined to reconsider its order certifying the class. Noting that the Fourth Circuit had clearly ordered it to certify the plaintiffs' class, the Court rejected the defendants' claim that this Court had the authority to deny class certification altogether. In a footnote, this Court explained:
The defendants contend that this Court should not have certified any class at all; however, to maintain this position they must completely ignore the Fourth Circuit's directive: "we remand the case to the district court with instructions to certify the appellants' class action ...." Brown, 576 F.3d at 160. Although the defendants may find it odd that the Fourth Circuit would dictate the general outcome to be reached (class certification) while leaving this Court to fill in the details, that appears to be precisely what the Fourth Circuit did. While the defendants may insist that the Fourth Circuit made an error, they did not prevail
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on the Fourth Circuit or the Supreme Court to correct it. See Nucor Com. v. Brown, 130 S. Ct. 1720 (Mar. I, 2010) (denying certiorari).
Order Den. Mot. for Recons. 8 n.2, ECF No. 359.
The defendants also moved the Court to narrow the scope of the class. The Court largely
rejected the defendants' argument that the scope of the class should be narrowed. The Court did,
however, find that three modifications to the class were needed. First, the Court agreed with the
defendants that the class definition should indicate that it encompassed only those individuals
who may have been discriminated against by the defendants. Second, the Court granted the
defendants' request that the class definition specify that it was limited to African-Americans who
were employed by the defendants in one or more of the six enumerated departments at the Nucor
Steel Berkeley plant and did not encompass individuals who may have worked at the plant as
independent contractors or in some other capacity. Finally, the Court found that it would be
helpful to provide a cutoff date for inclusion in the class, which the Court determined would be
the date of its order. Accordingly, the class was modified, and was defined as follows:
All African-Americans who are, as of the date of this order [April 4, 20 II], or were employed by Nucor Corporation or Nucor Steel Berkeley at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time between December 2, 1999, and the date of this order, in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because ofNucor's challenged practices.

ld. at 14.

5. Wal-Mart v. Dukes

In June 2011, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.

2541 (20 II). Wal-Mart involved the certification of a class encompassing 1.5 million current

and former female employees of Wal-Mart who may have been subjected to discrimination on

~.

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the basis of their sex. Wal-Mart delegated decisions about pay and promotion to local managers and gave them broad discretion, which was exercised in a largely subjective manner. The plaintiffs did not claim that Wal-Mart had an explicit policy not to promote women; but contended that Wal-Mart's "strong and uniform 'corporate culture' permit[ted] bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one ofWalMart's thousands of managers- thereby making every woman at the company the victim of one common discriminatory practice." Wal-Mart, 131 S. Ct. at 2548. The district court found that "[w]omen fill 70 percent of the hourly jobs in [Wal-Mart's] stores but make up only 33 percent
of management employees." 1.\L. at 2563 (Ginsburg, J., dissenting) (quoting Dukes v. Wal-Mart,
222 F.R.D. 137, 146 (N.D. Cal. 2004)). The Wal-Mart decision involved two primary questions: (I) did the plaintiffs' class
satisfy the commonality requirement of Rule 23(a); and (2) did the plaintiffs' class satisfy the requirements of Rule 23(b)(2). The Court answered both questions in the negative. On the issue of whether the class satisfied the commonality requirement of Rule 23(a), a 5-4 majority composed of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito found that the class did not satisfY the requirements of Rule 23(a). Justice Ginsburg dissented on behalf of herself and Justices Breyer, Sotomayor, and Kagan. On the issue of whether the class was properly certified under Rule 23(b)(2), the Court unanimously found that certification was not proper. The dissenters would have remanded the case to the district court to consider whether the class could be certified under Rule 23(b)(3); however, given the majority's finding that the class did not even meet the commonality requirement of Rule 23(a), the case was not remanded. Applying the Wal-Mart holding to the case at bar, the defendants contended that these holdings
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upended the reasoning of the Fourth Circuit's opinion in this case and required this Court to decertify the plaintiffs' class.
II. DISCUSSION
Rule 23(c)(l )(C) authorizes a district court to alter or amend its certification of a class at any time prior to final judgment. A court has an ongoing duty to monitor a class and has "considerable discretion" to decertify it if it finds that class treatment is no longer appropriate. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 433 (4th Cir. 2003). Furthermore, the burden remains on the plaintiff to demonstrate that certification remains appropriate. Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 277-78 (4th Cir. 1980) (holding that the class representative has the burden of producing an adequate record establishing the continued propriety of maintaining a class action).
The plaintiffs argue that Wal-Mart is distinguishable from the case at hand and should have no impact on the class certified by this Court. This Court agrees with the plaintiffs that there are significant differences between the facts in the present case and those at issue in WalMart. Whereas Wal-Mart involved a class of over 1.5 million plaintiffs, this case involves a class of approximately 200. Whereas Wal-Mart involved approximately 3,400 stores spread throughout the United States, this case involves a single plant. Whereas Wal-Mart involved social framework evidence and a proposal to resolve individual issues through trial by proxy, this case involves neither. Nevertheless, the Court finds that three of Wal-Mart's central holdings are relevant to this case.
First, the Wal-Mart Court reaffirmed the need for a district court to perform "a rigorous analysis" before certifying a class and explained that such an analysis will often require a court to reach determinations that overlap with the merits. Wal-Mart, 131 S. Ct. at 2551 (citation
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omitted). Second, the Court clarified the commonality requirement under Rule 23(a)(2), explaining that commonality is not the raising of common questions, but the potential for a single proceeding to produce common answers. ld. Specifically, the Court held that to establish commonality in a Title VII action for discrimination, plaintiffs must present "significant proof' that the defendant "operated under a general policy of discrimination" and demonstrate that they have suffered a common injury. Id. at 2553. Finally, the Court explained that delegation of subjective decision-making authority is not, without more, a "policy" that is sufficiently uniform to raise "'common" issues appropriate for resolution on a class-wide basis3 lQ, at 2554. These holdings call into question the Fourth Circuit's opinion in this case, and require this Court to reexamine its order granting class certification. The Court will begin by considering whether class certification remains proper with regard to the plaintiffs' disparate treatment and disparate impact claims ("promotions claims") and then turn to the plaintiffs' hostile work environment claim.

A.

"A RIGOROUS ANALYSIS"

In Wal-Mart, the Supreme Court reaffirmed its holding in General Telephone Co. of
Southwest v. Falcon, 457 U.S. 147 (1982), that "[class] certification is proper only if 'the trial
court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been
satisfied."' Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 161). The Court
acknowledged that ''frequently," the required analysis "will entail some overlap with the merits
3 Aside from the clarification of Rule 23(a), the other significant holding of Wal-Mart is the Court's holding that a (b)(2) class should not be certified where the plaintiffs seek "monetary relief' that is "not incidental to ... injunctive or declaratory relief." Wal-Mart, 131 S. Ct. at 2557. The Court held that in light of the structure of Rule 23,
"individualized monetary claims belong in Rule 23(b)(3)." Ill at 2558. This holding merely confirms that this
Court was correct in refusing to certify a Rule 23(b)(2) class as requested by the plaintiffs. Because this Court certified the plaintiffs class under Rule 23(b)(3), this holding does not affect the class in this case.

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of the plaintiffs underlying claim," a result which "cannot be helped." Wal-Mart, 131 S. Ct. at 2551. "Actual, not presumed, conformance with Rule 23(a) remains indispensable." !d. (quoting Falcon, 457 U.S. at 160). That the plaintiffs must establish a particular fact at trial does not relieve them of the obligation to establish the same fact at the class certification stage if the fact is necessary to satisfy a Rule 23 requirement. See id. at 2552 n.6 (observing that plaintiffs seeking class certification in a securities fraud action often rely upon the "fraud on the market" presumption, which requires them to "prove that their shares were traded on an efficient market, an issue that they will surely have to prove again at trial").
The Wal-Mart Court also explained that language from its decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), is sometimes "mistakenly cited" for the proposition that a court may not delve into the merits of a case at the certification stage. Wal-Mart, 131 S. Ct. at 2552, n.6. In Eisen, the Supreme Court said: "We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." 417 U.S. at 177. The Wal-Mart Court distinguished the inquiry in Eisen from the typical certification inquiry, noting that in Eisen, "the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b)[,] ... but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants." Wal-Mart, 131 S. Ct. at 2552 n.6. The Wal-Mart Court concluded: "To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum
and is contradicted by our other cases.'' .!st. In short, Eisen's prohibition on considering the
merits at the class certification stage is inapplicable as long as the purpose of the inquiry is to determine whether the requirements of Rule 23 have been satisfied.
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As in Wal-Mart, the plaintiffs in this case allege a "pattern or practice" of discrimination in violation of Title VII. To prevail on this claim, the plaintiffs must "establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure the regular rather than the unusual practice." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) (footnote omitted). To establish commonality, the plaintiffs must present "'significant proof that [the defendant] 'operated under a general policy of discrimination.'" Wal-Mart, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n.IS). The standard for establishing commonality is so similar to the standard for establishing liability that it is hard to imagine how a court could evaluate commonality without delving deeply into the merits of the plaintiffs' claims. "[P]roof of commonality necessarily overlaps with [the plaintiffs'] merits contention that [the defendant] engages in a pattern or practice of discrimination.... [b]ecause, in resolving an individual's Title VII claim, the crux of the inquiry is 'the reason for a particular employment decision."' ld. at 2252 (quoting Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984) (footnote omitted)). Without proof of a general policy of discrimination, there is no "glue" to hold together the "reasons" for challenged employment decisions, making it "impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Id. Accordingly, in Title VII pattern or practice actions, a trial court not only may, but must evaluate the merits of the plaintiffs' case to ensure that the plaintiffs have satisfied the commonality requirement.
The statistical evidence presented in this case is thoroughly described in this Court's previous orders on class certification, see Order 5-8, Feb. 16,2011, ECF No. 339; Order 6-10, Aug. 7, 2007, ECF No. 224, as well as in the Fourth Circuit's opinion. See Brown, 576 F.3d at
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153-57. The plaintiffs presented five statistical comparisons4 that purported to demonstrate a
statistically significant disparity in the rate at which African-American employees were
promoted. This Court and the Fourth Circuit focused on the plaintiffs' final comparison, which
this Court summarized as follows:
The final statistic offered by the plaintiffs was "a comparison of the estimated percentage of African-Americans who bid on promotions between December 1999 and December 2003 and the estimated percentage of African-Americans who received promotions for the same time period." Brown, 2007 WL 2284581, at *4. Nucor failed to maintain its bidding records prior to January 2001, so the plaintiffs' experts used change-of-status forms produced by the defendants to identify twenty-seven positions that they claimed the defendants filled between December 1999 and January 2001. Id.; Drs. Bradley's & Fox's Expert Report lOll, Sept. 12, 2006, ECF No. 186-1. The plaintiffs' experts "estimated that the percentage of African-Americans who bid on the twenty-seven jobs was the same as the average percentage of African-Americans who bid on jobs from 2001 to December 2003." Drs. Bradley's & Fox's Expert Report 10-11. They concluded that "19.24% of applicants were African-American and 7.94% of applicants selected for promotion were African-American." Brown, 2007 WL 2284581, at *4. Using these numbers, the plaintiffs' experts concluded that "[t]he difference between [the] African-American selection rate of7.94% and their bidding rate of 19.24% [was] statistically significant at -2.54 standard deviations from what would be expected if race were neutral in the selection process." Drs. Bradley's & Fox's Expert Report I I.
Order 6, Feb. 16, 2011, ECF No. 339.
This Court excluded the plaintiffs' comparison, finding that the alternative benchmark for
the period between December of 1999 and January of 200 I required assumptions that rendered
the comparison less probative than a comparison constructed using the actual bidding records for
2001-2003. Limited to this period, the comparison did not demonstrate a statistically significant
disparity. In dissent, Judge Agee agreed with this Court, finding that the plaintiffs' alternative
4 This Court rejected four of these comparisons because they employed benchmarks drawn from Census estimates of the qualified Arrican-American workforce in the geographic area surrounding the Berkeley plant, despite undisputed evidence that the defendants' hiring was almost exclusively internal. The majority did not address this Court's decision to exclude the four comparisons based on the qualified African-American workforce, and the Court continues to believe that these comparisons are of little relevance in this case.
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benchmark "was without a valid foundation, purely speculative, and thus not entitled to probative weight." Brown, 576 F.3d at 167 (Agee, J., concurring in part and dissenting in part).
The majority began by noting, "statistical evidence is unnecessary to establish commonality."
[P]laintiffs need not, at the time of the motion for class certification, demonstrate by statistical evidence that blacks have been terminated [or promoted] at a higher rate than have whites, or any other differential. Certification is only concerned with the commonality (not the apparent merit) of the claims and the existence of a sufficiently numerous group of persons who may assert those claims .... !d. at 153 (quoting Lilly v. Harris-Teeter Supermarket, 720 F.2d 326,332-33 (4th Cir. 1983)). As discussed in the following section, Wal-Mart heightens the commonality standard by requiring that the plaintiffs identify a biased testing procedure or present "significant proof that [the defendant] operated under a general policy of discrimination." Wal-Mart, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159.) Nothing in Wal-Mart implies that the requisite "glue" must be in the form of statistical evidence. Writing for the majority, Justice Scalia suggested that
evidence of"discriminatory bias on the part of the same supervisor" might suffice, !.!L at 2551,
and such evidence will often be anecdotal as opposed to statistical. On the other hand, whatever significant proof is offered must be sufficiently broad to
demonstrate a general policy of discrimination. The term "general" suggests that the policy must be applicable to the class as a whole, not to just a small subsection of the class, such as a few Wai-Mart stores, or to a single department in the case at hand. Furthermore, in cases where a defendant delegates discretion over promotion decisions to numerous low level managers, proof that a particular manager exercised his or her discretion in a discriminatory manner will not be sufficient to certify a class extending beyond those workers affected by the particular manager. In such cases, statistical evidence is critical because it may help the plaintiffs to "identifly] a
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common mode of exercising discretion that pervades the entire company [or plant]." Wal-Mart, 131 S. Ct. at 2554-55. In summary, although Wal-Mart does not explicitly hold that statistical evidence is required, in the absence of evidence of a common biased test or proof of discriminatory bias on the part of a manager who has discretionary authority over the entire class, statistical evidence will almost always be needed to establish commonality.
Relying on United States v. County of Fairfax, 629 F.2d 932 (4th Cir. 1980), in which the Fourth Circuit approved the use of an alternative benchmark after the defendant destroyed job applications, the Fourth Circuit held that "since Nucor destroyed the pre-2001 job promotions data, the appellants likewise were free to attempt to utilize an alternative benchmark in order to form their calculations, and the district court abused its discretion in ruling that only the data that Nucor provided could be used." Brown, 576 F.3d at 155. This Court interprets the Fourth Circuit's ruling to hold that a district court abuses its discretion where it excludes an alternative benchmark employed to replace missing data based on the broad assertion that statistical comparisons drawn from the limited actual data are more reliable than statistical comparisons that utilize the alternative benchmark. The Court does not understand the Fourth Circuit to suggest that a court must accept whatever alternative statistical analysis plaintiffs may offer, regardless of its reliability.
Although it acknowledged that a district court has an obligation to perform "a rigorous analysis" before granting class certification,5 the Fourth Circuit majority faulted this Court and Judge Agee for delving too far into the merits of the plaintiffs' claims and for rejecting the plaintiffs' statistical evidence. Citing Eisen, the Fourth Circuit "reiterate[d) that an in-depth assessment of the merits of appellants' claims at [the class certification] stage would be
5 Brown, 576 F.3d at 162 (quoting Falcon, 457 U.S. at 161) ("[A] Title Vll class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.").
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improper." Brown, 576 F.3d at 156. Significantly, the Fourth Circuit never suggested that the substance of Judge Agee's analysis was wrong; it was simply premature:
[We] emphasize that at this stage, we are dealing only with whether the appellants have presented sufficient statistical information to establish commonality. We must walk a fine line between a facial class certification assessment and assessment on the merits, and the dissent has stepped to the other side. The dissent's critiques might very well discredit the appellants' statistics later, upon a full review of the merits, but the information that the appellants have presented is enough to allow them to get to that point. !d. at 156 n.l 0. If the Fourth Circuit majority had based its decision on a finding that the plaintiffs' statistical evidence was inherently reliable, this Court would be extremely hesitant to revisit the issue of class certification, even in light of Wal-Mart. However, the Fourth Circuit majority did not base its ruling on the strength of the plaintiffs' statistical evidence, but on the claim that strong evidence is not required at the class certification stage, Brown, 576 F.3d at 156 (finding that '"evidence need not be conclusive to be probative, and even evidence that is of relatively weak probative value may be useful in meeting the commonality requirement"), and the contention that statistical proof was not necessary at all. Id. at 153. Wal-Mart suggests that a rigorous analysis of the merits for the purpose of assessing commonality is not only permitted, but required. There is nothing to indicate that this Court or Judge Agee examined the merits of the plaintiffs' evidence for any purpose other than determining whether the plaintiffs had satisfied the requirements of Rule 23(a). The majority's reliance on Eisen and repeated criticism of this Court and Judge Agee for examining the merits of the plaintiffs' evidence is arguably inconsistent with Wal-Mart. For this reason, the Court concludes that Wal-Mart requires it to reevaluate the plaintiffs' class certification evidence.
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In rejecting the plaintiffs' statistics in its original order denying class certification, this Court failed to explicitly identify significant flaws in the construction of the plaintiffs' alternative benchmark analysis and to explain that these flaws rendered the benchmark unreliable. Instead, the Court merely suggested that the alternative benchmark for the period between December of 1999 and January of 200 I required assumptions that rendered the comparison less probative than a comparison constructed using the actual bidding records for 2001-2003. The Court regrets this understatement and will take this opportunity to state, unequivocally, that the plaintiffs' statistical analysis is not only relatively less probative than an analysis based on the actual data, it is fundamentally unreliable.
This Court shares Judge Agee's view of the plaintiffs' statistical analysis, and his opinion dissenting in part and concurring in part thoroughly expresses this Court's concerns. Judge Agee explained that in order to conduct their statistical analysis, the plaintiffs' experts were required to formulate two variables: "(I) the number of posted job promotions available for bidding by the existing Nucor employees during 2000, and (2) whether those job promotions were 'similarly situated' as defined by the district court (i.e., job promotions for which at least one AfricanAmerican employee applied)." Brown, 576 F.3d at 167 (Agee, J., dissenting in part and concurring in part). In constructing these variables, the plaintiffs' experts made at least two significant assumptions that rendered their analysis unreliable.
First, the plaintiffs' experts determined the number of posted job promotions available for bidding in the period between December 1999 and January 200 I by looking at change-of-status forms produced by the defendants. The plaintiffs' experts claim to have identified 27 change-ofstatus forms. which they contend represent posted promotions available for bidding. As Judge
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Agee explained, there were substantial ambiguities regarding how the plaintiffs' experts
determined that the 27 forms they located actually represented 27 promotions open for bidding:
It is not clear from the record whether the twenty-seven change-of-status forms represent all, or only selected, jobs open for promotion in 2000 because these forms are not identified. Nucor argues that the change-of-status forms "are simply a company record which documents any employee's change of status, whether the employee was promoted, demoted, received a standard pay increase, or was transferred." Appellee's Br. at 36.
Indeed, the change-of-status forms found in the record for 2000 fail to bolster the appellants' claim that those forms reflect only promotion positions open to bid. For example, nine change-of-status forms appear in the record dated between December 1999 and January 2001 (including three in January 2001). J.A. 839799, 8406-07, 8416, 8673-74, 8701. Of these forms, one (J.A. 8399) simply reflects an increase in pay for an existing employee. Two (J.A. 8397, 8406) reflect completion of probation for an existing employee. Another (J.A. 8407), reflects a new hire and not a promotion. The remaining five reflect promotions of some type, though only one (J.A. 8673) identifies a promotion acquired through a bid process. On this record, it is difficult, if not impossible, to discern whether the 2000 data based on the nebulous change-of-status forms proves those positions were promotion positions available for employee bidding and thus relevant to the formulation of statistical evidence for the appellants' claims.
!d. at 167-68 (emphasis added). Furthermore, Judge Agee noted that even if all 27 of the
change-of-status forms represented promotions, the plaintiffs must further assume that each of
these promotions was actually posted for bidding by employees. Id. at 168. Given these
uncertainties, Judge Agee concluded that it was "highly dubious" that the plaintiffs had reliably
established the number of positions available for bidding. !d.
This Court agrees. The most significant problem, with regard to the plaintiffs' first
variable, is that it is impossible for this Court to determine how the plaintiffs' experts reached the
conclusion that a particular change-of-status form represented a promotion. Despite repeated
criticism of their analysis by the defendants, this Court, and Judge Agee, the plaintiffs have done
nothing to assure the Court that the "promotions" their experts identified were, in reality,
promotions. The plaintiffs have submitted thousands of pages of evidence in support of their
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class, yet the Court has never seen the 27 change-of-status forms upon which their experts apparently relied. This Court is every bit as qualified as the plaintiffs' experts to look at an employment record and determine what, if anything, it represents. The plaintiffs have claimed that, with regard to the positions implicated in this case, Nucor Berkeley promoted only a single African-American between December 1999 and January 200 I, and whether that promotion was I of27, I of 14, or I of4 is a fact that matters. The plaintiffs have not explained how their experts determined the number of promotions available, and the Court is not inclined to take their word for it.
Second, having identified what they believed to be 27 relevant "promotions" between December 1999 and January 2001, the plaintiffs' experts needed a way to estimate how many African-Americans had applied for each one of these ''promotions." Because Nucor had destroyed the bidding data, the plaintiffs' experts "assumed 'that the racial composition of the bidding pool' [applicants] for those [27] jobs was the same as the weighted average of the racial composition of the bidding pools (applicants) for the' 2001-2003 period." Brown, 576 F.3d at 168 (Agee, J., concurring in part and dissenting in part). The data from the 2001-2003 period was drawn exclusively from "similarly situated" jobs, meaning "promotions for which at least one African-American employee applied." However. because they lacked the bidding data, the plaintiffs' experts could not determine how many of the 27 "promotions" they identified were likewise "similarly situated." In other words, the plaintiffs' experts took an average drawn exclusively from bidding pools that included at least one African-American and applied it to bidding pools that may not have included any African-Americans. In so doing, they effectively assumed that at least one African-American had bid for each one of the 27 "promotions," despite
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the fact that they could point to only one instance where they knew for sure that an AfricanAmerican had done so.
The plaintiffs' experts admitted that because the definition of "similarly situated" requires that at least one African-American bid on the position, "the African-American representation among bidders for 'similarly situated' jobs provided by Nucor-Berkeley is necessarily inflated." ld. at 169 (Agee, J., concurring in part and dissenting in part). When this "inflated" average is applied to "promotions" for which an African-American may not have applied, it almost certainly overstates the expected number of African-American promotions.
In summary, to take the plaintiffs' statistical analysis at face value, the Court must assume that the 27 change-of-status forms selected by the plaintiffs' experts actually represent 27 promotions posted for bidding and that each of these 27 "promotions" fell within the Court's definition of a "similarly situated" promotion. The plaintiffs' assumptions are self-serving, and without them, the plaintiffs cannot demonstrate a statistically significant disparity in the rate at which African-Americans were promoted at the Berkeley plant. Allowing the plaintiffs to utilize such statistics to satisfy their burden to present significant proof of a common policy of discrimination effectively permits them to assume what they would otherwise be required to prove.
This Court cannot, consistent with Wal-Mart, allow the plaintiffs to rely on inherently faulty evidence simply to ensure evidentiary fairness. The Court is, however, cognizant of the Fourth Circuit's concern that the plaintiffs not be prejudiced by the defendants' destruction of some of their promotions data. Perhaps the best way to accommodate this concern is for the
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Court to revisit its ruling on the scope of discovery.6 It was, after all, the plaintiffs' experts who initially claimed that they needed more data to be able to present reliable statistics. The Court is mindful that, when using the standard deviation analysis, the smaller the number of decisions analyzed, the more difficult it is to demonstrate a statistically significant disparity. Thus, the destruction of evidence or an overly restrictive discovery regime may effectively mask a true disparity. Accordingly, if the plaintiffs believe that the production of additional evidence will enable their experts to conduct a reliable statistical analysis or construct a more meaningful alternative benchmark, the Court will entertain a motion to revisit the scope of discovery. 7

B.

COMMONALITY

Federal Rule of Civil Procedure 23(a)(2) requires plaintiffs seeking to represent a class to show that "there are questions of law or fact common to the class." This "language is easy to misread, since '[a]ny competently crafted class complaint literally raises common 'questions."'8 Wal-Mart, 131 S. Ct. at 2551 (quoting Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-32 (2009)). As the Wal-Mart Court explained, "[w)hat matters to class certification ... is not the raising of common 'questions'- even in droves- but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." !d. (quoting Nagareda, 84 N.Y.U. L. Rev. at 132).

6 The Fourth Circuit declined to address the plaintiffs' argument that this Court should have compelled Nucor to

provide more data because the Court of Appeals concluded that it lacked jurisdiction under Rule 23(!) to consider a

separate discovery order. Brown, 576 F.3d at 155 n.8. 7 The Court is reluctant to reconsider its discovery order in light of the age of this case, however, it can conceive of

no other way, short of accepting inherently unreliable evidence, to accommodate the Fourth Circuit's fairness

concerns.
8 The Wai-Mart majority offered the following examples of questions that, while "common" in a literal sense, are

not "common" for the purposes of Rule 23(a)(2): "Do all of us plaintiffs indeed work for Wal-Mart" Do our

managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get?"

According to the majority, "[r]eciting these questions is not sufficient to obtain class certification." Wal-Mart, 131

S. Ct. at 2551.
~'

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Wal-Mart teaches that establishing commonality requires more than simply identifying a sufficient number of employees who claim to have suffered discrimination at the hands of the same company; the plaintiffs must establish a "common injury," which "does not mean merely that they have all suffered a violation of the same provision of law." Wal-Mart, 131 S. Ct. at 2551.
[T]he mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention- for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolutionwhich means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. ld. The defendants refer to the concept set forth above as Wal-Mart's "common injury requirement." "[T]here is a wide gap" between an individual's claims of discrimination and "the existence of a class of persons who have suffered the same injury ... such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims." Falcon, 457 U.S. at 157. To bridge this "gap," the plaintiffs must point to a "testing procedure or other companywide evaluation method that can be charged with bias," or present "'significant proof' that [the defendant] 'operated under a general policy of discrimination."' Wal-Mart, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n.l5). Evidence of a common biased evaluation method or a general policy of discrimination provides the requisite "glue" to link various employment decisions to one another. Without such "glue," "it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Wal-Mart, 131 S. Ct. at 2552. The defendants refer to this concept as Wal-Mart's "common policy" requirement.
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The "common injury" and "common policy" requirements do not demand that the plaintiffs prove that every member of their class has actually suffered an injury at the class certification stage. As the plaintiffs point out, such a requirement would be inconsistent with the two-stage approach set forth in Teamsters and referenced with approval in Wal-Mart. At the class certification stage, Wal-Mart simply requires that the plaintiffs identify a common discriminatory mechanism that potentially affects the entire class- the same discriminatory policy, the same biased test, the same prejudiced supervisor (or group of supervisors). 9 By presenting this "common contention," the plaintiffs assure the Court that jfthey succeed in establishing an injury, it will be a class-wide injury. See Stastny, 628 F.2d at 273 ("Central to both [disparate impact and disparate treatment] theories of liability where class-wide sex (as other) discrimination is alleged is the existence of an identifiable employment pattern, practice or policy that demonstrably affects all members of a class in substantially, if not completely, comparable ways.").
The plaintiffs argue that Wal-Mart merely reaffirms Falcon and Teamsters and that the "common injury" and "common policy" requirements are well-established concepts that change nothing in the commonality analysis.
Defendants have organized their argument under the headings of "common policy" and "common injury," as if those were new concepts just announced in Wal-Mart, and unknown to the Court of Appeals and this Court when it issued its class certification order. ... [T]he Court of Appeals and this Court trod well-

9 Construed in this manner, the "common injury" and ·•common policy" requirements are neither inconsistent nor incompatible with the Teamsters framework. At Stage I, a jury will determine whether the mechanism or
mechanisms identified by the plaintiffs are in fact discriminatory, i.e. whether the company has engaged in a pattern or practice of discrimination. However, establishing that the defendant employed a discriminatory policy, a biased
test, or a prejudiced supervisor does not automatically establish that every individual who was subject to the policy, or took the test, or worked for the supervisor incurred damages as a result thereof. There may be individual claimants who were never affected by the discriminatory policy, or excelled on the biased test, or were favored by an otherwise prejudiced supervisor. It may be that the defendant can show that the reason a particular claimant was denied a promotion had nothing to do with the discriminatory policy, biased test, or prejudiced supervisor. Such claimants are still properly a part of the class at Stage I because they were subjected to the discriminatory mechanism, even if it caused them no harm.

t:

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defined paths in certifying this class. The Supreme Court trod those same paths in rejecting the sprawling Wal-Mart class. Its decision provides this Court's class certification order with reassurance, not doubt. Pls.' Opp. to Class Decert. 5, ECF No. 386. The requirements that the plaintiffs seeking class certification "demonstrate that the class members 'have suffered the same injury'" and present '"significant proof that [the defendant] 'operated under a general policy of discrimination'" are drawn directly from the language of Falcon; however, Wal-Mart's application of this language effectively heightened the standard under Rule 23(a)(2). See Wal-Mart, 131 S. Ct. at 2565 (Ginsburg, J., dissenting) ('The Court blends Rule 23(a)(2)'s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer 'easily satisfied."') (citation omitted). 10 Whether Wal-Mart's application of Rule 23(a)(2) is characterized as a "clarification" oflong-standing precedent or an abrupt change in the law, one need look no further than the numerous classes that have been decertified in its wake 11 to

10 Additionally, numerous scholars have acknowledged (often with criticism) that the practical effect ofWai-Mart is

to heighten the requirements for class certification in general and the certification of Title VII pattern-or-practice

classes in particular. See. e.g., Suzette M. Malveaux, How Goliath Won: The Future Implications of Dukes v. Wai-

Mart, 106 Nw. U. L. Rev. Colloquy 34,39 (2011) (observing that the requirement that plaintiffs, to demonstrate

commonality, provide '"significant proof that [the defendant] 'operated under a general policy of discrimination' ..

. goes beyond prior Title VII class action jurisprudence"); Tristin K. Green, The Future of Systemic Disparate

Treatment Law, 32 Berkeley J. Emp. & Lab. L. 395, 397 (20 II) (predicting that if a '"policy-required' view of

systemic disparate treatment theory ... succeeds in gaining conceptual foothold beyond Wai-Mart, [it] will result in

a drastic reshaping of systemic disparate treatment law"); Myriam Gilles & Gary Friedman, After Class: Aggregate

Litigation in the Wake of AT&T Mobility v. Concepcion, 79 U. Chi. L. Rev. 623,623 (2012) (describing the Wai-

Mart Court's interpretation of the Rule 23(a) commonality requirement as "new and highly restrictive"). 11 See, e.g., Cruz v. Dollar Tree Stores. Inc., Nos. 07-2050 SC, 07-4012 SC, 2011 WL 2682967 (N.D. Cal. July 8,

2011) (employee misclassification claims); Walter v. Hughes Commc'ns, Inc., No. 09-2136 SC, 2011 WL 2650711

(N.D. Cal. July 6, 2011) (tort and consumer law claims); and Lee v. ITT Corp., 275 F.R.D. 318 (W.O. Wash. 2011)

(contract claims)): Pipefitters Local636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618(6th Cir. 2011)

(ERISA claims): Premium Plus Partners. L.P. v. Goldman, Sachs & Co., 648 F.3d 533, (7th Cir. 2011) (securities

law claims); Haynes v. Planet Automall. Inc., 276 F.R.D. 65 (E.D.N.Y. 2011) (consumer law claims): Daskalea v.

Washington Humane Soc'y, 275 F.R.D. 346(D.D.C. 2011) (constitutional and tort claims); Soto v. Diakon Logistics

<Del.). Inc., Civil No. 08cv33-L (WMC), 20 II WL 3515917 (S.D. Cal. Aug. I0, 2011) (state wage and hour claims);

Corwin v. Lawyers Title Ins. Co., 276F.R.D. 484 (E. D. Mich. 2011) (consumer law claims); Khan v. H & R Block

E. Enters.. Inc., No. 11-20335-Civ, 2011 WL 3269440 (S.D. Fla. July 29, 2011) (state constitutional and wage and

hour claims); Bacon v. Stiefel Labs.. Inc., 275 F.R.D. 681 (S.D. Fla. 2011) (ERISA claims); Gray v. Bayer Corp.,

Civil Action No. 08-4716 (JLL), 2011 WL 2975768 (D.N.J. July 21, 2011) (consumer law claims); Garcia v.

McNeil, No. 4:07cv474-SPM/WCS, 2011 WL 3274009 (N.D. Fla. July 20, 2011) (ADA claims); In re Bisphenoi-A

(BPA) Polycarbonate Plastic Prods. Liab. Litig., 276 F.R.D. 336 (W.D. Mo. 2011) (products liability claims). See

:/r.J_ Defs.' Reply to Pis.' Opp. I n.4 & 2 n.5. ~

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conclude that Wal-Mart has changed the class-action landscape. Although the common injury and common policy requirements set forth in Wal-Mart are drawn directly from the language of Falcon, they are, in reality, new requirements that heighten the standard under Rule 23(a).
The commonality standard applied by the Fourth Circuit in Brown was less rigorous than the standard applied by the Wal-Mart Court. The Fourth Circuit said, "allegations of 'a practice of disparate treatment in the exercise of unbridled discretion ... rais[es] questions of law and fact common to all [subject] black employees."' Brown, 576 F.3d at 153 (quoting Lilly, 720 F.2d at 333). After Wal-Mart, the plaintiffs must do more than allege a pattern or practice of discrimination- they must offer "significant proof' that the defendant "operated under a general policy of discrimination." The plaintiffs' allegations may raise common questions in a literal sense, but without significant proof of a general policy of discrimination, there is no reason to believe that a class-wide proceeding will generate '"common answers" regarding the reasons for Nucor's promotion decisions.
The Fourth Circuit found that the plaintiffs had "presented compelling direct evidence of discrimination" and that "[t]his evidence alone establishe[d] common claims of discrimination worthy of class certification." Brown, 576 F.3d at 153. The Fourth Circuit cited the declarations of several African-American employees describing "denials of promotions when more junior white employees were granted promotions (J.A. I004, I017), denial of the ability to cross-train during regular shifts like their white counterparts (J.A. I000, I023), and a statement by a white supervisor that he would never promote a black employee (J.A. 1885-86)." !d. This is "compelling direct evidence of discrimination," but all of the individuals who offered the testimony cited by the Fourth Circuit worked primarily in a single department- the Beam Mill. 12
12 See Decl. of [Beam Mill employee] Ramon Roane~ 30 (J.A. 1004) (alleging that African-American employees
~-were equally If not better qualified than the non~Afncan-Amencan employees who received promotions), Dec! of Page 24 of 48

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Anecdotes from the Beam Mill dominate not only the evidence cited by the Fourth
Circuit majority, but also the record as a whole. Of the 16 declarations submitted by the
plaintiffs in support of class certification, II of them were provided by Beam Mill employees.
Of the remaining declarants, three of them worked 13 in the Hot Mill, one worked in the Melt
Shop, and one worked in the Shipping Department.
This Court has reviewed the declarations submitted by the plaintiffs, as well as the
affidavits of approximately 80 African-American employees who worked at the Berkeley plant.
The defendants took these affidavits in 2003, prior to the filing of this litigation, and submitted
them to the Court in support their original opposition to the plaintiffs motion for class
certification. 14 Affidavits, ECF Nos. 198-3-198-8; 199-1-199-5; 200-1-200-5. The affidavits
are not universally positive, and varied significantly by department. For example, of the 13
affiants who worked in the Cold Mill, not a single one claimed to have been unfairly denied a
promotion on the basis ofrace. Furthermore, several of these employees specifically stated they
had good working relationships with their supervisors and believed them to be fair. Likewise,
[Beam Mill employee] Quinton Brown~ 29 (J.A. I0 17) (same); Dec!. of [Beam Mill employee] Ramon Roane~ 17 (J .A. I000) (alleging that he was denied the opportunity to cross train during his shift. an opportunity which was granted to white employees working in his department); Dec!. of[ Beam Mill employee] Alvin Simmons~ 17 (J.A. 1023) (alleging that he and fellow Beam Mill employee Quinton Brown were denied the opportunity to cross train for a position that they had applied for in the Beam Mill, while the white employee who was ultimately selected for the position was permitted to cross train); Dep. of [former Beam Mill Supervisor] Scott Clark I I3: I0-1 I4:4 (J.A. 1885-86) (alleging that Beam Mill Manager Paul Ferguson said, "I don't think we'll ever have a black supervisor while I'm here"). 13 Several of the declarants worked in more than one department, but in each of these instances, the declarant's allegations relate almost exclusively to the single department to which he or she is attributed for the purposes of this
order. 14 The plaintiffs moved the Court to exclude these affidavits because of the circumstances under which they were taken (as a part ofNucor's pre-lawsuit, internal investigation in connection with the related EEOC charges). See
Pis.' Mot. to Strike, ECF No. 169. The Court denied the plaintiffs' motion, holding that the plaintiffs' objections went to the weight of the evidence, and not its admissibility. See Transcript of July 19, 2007 Hearing 3: 16-4:24, ECF No. 225. The Court afforded the affidavits limited weight, and, to the extent that any of the affidavits submitted by the defendants conflicted with a declaration of the same individual submitted by the plaintiffs, the Court disregarded the affidavit. Furthermore, it should be noted that although the affidavits submitted by the defendants helped to confirm this Court's view that the allegations of discrimination in promotions against select managers did not reflect conduct that was typical of managers at the Berkeley plant, the Court's review of the affidavits actually bolstered the plaintiffs' claims of a common hostile work environment because employees from every department reported that they were exposed to the Confederate flag, racist graffiti, and offensive emails.
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the overwhelming majority of employees who worked in the Melt Shop said they did not believe that they had ever been denied a promotion on the basis of race. Admittedly, there were more allegations of discrimination in the Hot Mill, but even when the declarations of the three Hot Mill employees seeking to join the named plaintiffs are factored in, a significant majority of the Hot Mill employees denied that they had been denied promotions on the basis of race. Notably, the departments in which all or most of the affiants denied that they had suffered discrimination in promotions are the same departments that are poorly represented or not represented at all in the plaintiffs' declarations- the Cold Mill, the Melt Shop, and the Maintenance Department. 15 In short, while there is significant direct evidence of a pattern of discrimination in promotions, the scope of that evidence does not correspond to the scope of the current class.
In addition to comprising a majority of the plaintiffs' declarations, testimony from Beam Mill employees accounts for almost all of the allegations of overtly racist behavior on the part of managers or supervisors. The same four names appear repeatedly in the declarations and depositions submitted by the plaintiffs: Beam Mill Manager Paul Ferguson, and Beam Mill Supervisors Gary Henderson, Paul Nowlin, and Dennis Pew. See Dep. of Scott Clark 113:10114:4 (alleging that Ferguson said "1 don't think we'll ever have a black supervisor while I'm here"); Roane Dec!.~ 13, Brown Dec!.~ 5, 26, Decl. of Gerald White~ 8, and Dec!. of Jason Guy~ 6 (alleging that Ferguson denied them promotions in favor ofless qualified white candidates and specifically identifying the white candidates selected); Guy Dec!. (alleging that Paul Fe<guson refused to sign his transfer form even though he had been selected for a position
15 The affidavits submitted from the Beam Mill did not reflect a higher rate of claims of discrimination in promotions, but the defendants apparently took affidavits from only one of the named plaintiffs in this case (Jacob Ravenell). Additionally, the Court disregarded the affidavits of several Beam Mill employees who later provided declarations in support of the plaintiffs' case. Taken together, over half of the Beam Mill employees collectively represented in the defendants' affidavits and the plaintiffs' declarations alleged that they had been denied promotions on the basis of their race,
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in the Cold Mill); Brown Dec!.~ 26 (alleging that Ferguson disciplined him unfairly); Dec!. of Walter Cook (alleging that Henderson remarked "[t]he damn niggers have been in here messing with my computer and copier machine, I can't keep paper in here because the damn niggers" and said "that he was "glad the damn nigger got fired" in reference to the termination of Ken Hubbard); Dec!. of Eric Conyers~ 7 (alleging that Henderson made derogatory comments about eating fried chicken to Conyers and his wife at a co-worker's wedding); Dec!. of Robyn Spann (alleging that Henderson intimidated her for applying for a promotion in the Beam Mill); Dec!. of Ken Hubard (alleging that Henderson wore aT shirt bearing the Confederate Flag); Brown Dec!.~ 16, Dec!. of Alvin Simmons~~ 7, 9-10 (alleging that Henderson denied them promotions in favor ofless qualified white candidates and specifically identifying the white candidates selected); Clark Dec!.~ 2 (alleging that Nowlin "used the word "nigger" so frequently, it was part of his everyday language"); Brown Dec!.~ 26 (alleging that Nowlin disciplined him unfairly); Conyers Dec!.~ 2, 5 (alleging that Nowlin discriminated against him with regard to cross training, refused to submit his bid for a position in the Melt shop, said in his presence, "when I first started working for Nucor, they worked me like a nig .... like a brother," and began requiring Conyers to perform menial tasks after Conyers complained about the comment); Roane Dec!. ~ 22, Guy Dec!.~ 9 (alleging that Pew circulated a racially offensive email); Simmons Dec!. (alleging that Pew enabled a white employee to cross train for a position Simmons was seeking, but denied Simmons a similar opportunity); Guy Dec!.~ 9 (alleging that Pew laughed in his face after he complained that he was being given the dirtiest clean up jobs); Dec!. of Aaron Butts, Sr.~ 5 (alleging that Pew told him that his application for a promotion had been "misplaced"); Guy Dec!.~ 6, Butts Dec!.~ 4 (alleging that Pew denied them promotions in favor of less qualified white candidates and specifically identifying the white candidates
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selected). In summary, the vast majority of the direct evidence alleging clear racial bias on the part of managers and supervisors concerns one manager and three supervisors, all of whom worked in the Beam Mill.
In Brown, the Fourth Circuit said: [A] person who has been injured by unlawful, discriminatory promotion practices in one department of a single facility may represent others who have been injured by the same discriminatory promotion practices in other departments of the same facility. In such a case, the representatives of the class all have the same interests in being free from job discrimination, and they have suffered injury in precisely the same way in the denial of promotion. 576 F.3d at 158 (quoting Hill v. W. Elec. Co., 596 F.2d 99, 102 (4th Cir. 1979)). After Wal-
. Mart, the critical qualifYing language in this passage is that the employees must be "injured by
the same discriminatory promotion practices." !d. (emphasis added). Wal-Mart specifically held that proof that one manager exercised his discretion to discriminate against a protected class does not permit a court evaluating commonality to assume that other managers exercised their discretion in a similar way. See 131 S. Ct. at 2554. Strong evidence of discrimination in one store or one department is not a substitute for proof that the class has suffered a common injury or proof that the defendant operates under a general policy of discrimination.
To be very clear, this Court is not discounting the gravity of the plaintiffs' allegations. Without question, the plaintiffs have presented evidence of a serious pattern of racial discrimination regarding promotions in the Beam Mill, and their evidence would almost certainly satisfy Wal-Mart's demand for "significant proof' of a general policy of discrimination in that particular department. Assuming that the plaintiffs could satisfy the numerosity requirement, this Court could probably certify a promotions class consisting of all African-American

tit.

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employees who worked in the Beam Mill or applied to work in the Beam Mill. 16 The Court concludes, however, that the plaintiffs have failed to present "significant proof" that the departments encompassed within the current class operated under a common policy of discrimination. Without such proof, the plaintiffs cannot establish a common injury, and their promotions class must be decertified.

C.

SUBJECTIVITY AS A POLICY

Wal-Mart rejected the argument that the delegation of discretion to supervising

employees is, without more, a "general policy of discrimination." Like the plaintiffs in the case at hand, 17 the plaintiffs in Wal-Mart alleged that the offending policy was the defendant's

decision to allow individual managers to make decisions about compensation and promotions

based on subjective factors. The Wal-Mart Court took issue with this approach:

The only corporate policy that the plaintiffs' evidence convincingly establishes is Wal-Mart's "policy" of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business-one that we have said "should itself raise no inference of discriminatory conduct."

ld. at 2554 (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988)).

Although the Court acknowledged that "giving discretion to lower-level supervisors can

be the basis of Title VII liability under a disparate-impact theory," it held that the existence of

16 The impact that Ferguson and his supervisors may have had upon the ability of Beam Mill employees to secure

promotions in other departments would be accounted for by defining the hypothetical class to include all African-

Americans who worked in the Beam Mill 17 In their most recent filing, the plaintiffs

as well as those who take the position that

applied for positions in they have never relied

the Beam Mill. on evidence of

subjective

hiring alone. Although the plaintiffs have presented proportionally more anecdotal evidence than the plaintiffs in

Wai-Mart, their evidence suffers from a similar flaw- the absence of facts demonstrating that the various decision

makers exercised their discretion in a common way.

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such a policy does not automatically create a common question suitable for resolution on a classwide basis.
[R]ecognition that this type of Title VII claim '"can" exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation-and surely most managers in a corporation that forbids sex discrimination-would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact-such as scores on general aptitude tests or educational achievements. And still other managers may be guilty of intentional discrimination that produces a sex-based disparity. In such a company, demonstrating the invalidity of one manager's use of discretion will do nothing to demonstrate the invalidity of another's. A party seeking to certify a nationwide class will be unable to show that all the employees' Title VII claims will in fact depend on the answers to common questions. Id. (citation omitted). The Wal-Mart Court concluded that the plaintiffs had failed to identify "a common mode
of exercising discretion that pervades the entire company." .!!L at 2554-55. Similarly, this Court
finds that the plaintiffs have failed to identify any factor that unites the manner in which the various decision makers throughout the Berkeley plant exercised their discretion. Showing that a particular manager or supervisor was biased- or even that all the management in a single department was biased- does not establish a plant-wide policy that may be challenged by a plant-wide class. Finally, even if the plaintiffs can distinguish their disparate impact theory from the theory rejected in Wal-Mart, their statistical evidence is not sufficiently reliable to withstand the rigorous analysis required by Wal-Mart.
In light of the Supreme Court's clarification of the commonality standard in Wal-Mart, this Court concludes that the plaintiffs have failed to raise "questions of law or fact common to the class" as required by Rule 23(a)(2).
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Since the plaintiffs have not presented any common issues, it necessarily follows that common issues do not predominate as required under Rule 23(b)(3). However, even if the Fourth Circuit subsequently concludes that the plaintiffs have identified a common issue that satisfies Rule 23(a)(2), this Court nonetheless finds that "common issues," as that term is defined by Wal-Mart, do not predominate over individual issues with regard to the plaintiffs' promotions claims.
'The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods. v. Windsor, 521 US. 591, 623 (1997). The predominance requirement is "far more stringent than the commonality requirement of Rule 23(a)." Lott v. Westinghouse Savannah River Co., 200 F.R.D. 539, 563 (D.S.C. 2000) (citing Amchem Prods., 521 U.S. at 623-24). Although "individualized damage determinations cut against class certification under Rule 23(b)(3)[,]" Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010), "if 'common questions predominate over individual questions as to liability, courts generally find the predominance standard of Rule 23(b)(3) to be satisfied."' Gunnells, 348 F.3d at 428 (quoting 5 Moore's Federal Practice§ 23.46[2][a] (1997)). Accordingly, in the context of a Teamsters two-stage trial, it is particularly important that common issues predominate in Stage I.
Perhaps the best way to illustrate the lack of cohesion in the current promotions class is to compare the Court's strictly hypothetical "Beam Mill class," which probably would satisfy the predominance requirement, with the class that is currently certified. The Court has no difficulty envisioning how it would try a Beam Mill class given the anecdotal evidence in the record. In Stage I, the parties would present evidence regarding whether or not Ferguson and the supervisors who worked for him engaged in a pattern or practice of discrimination in
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promotions. See Teamsters, 431 U.S. at 360 (noting that at Stage I, the plaintiffs' burden "is to establish a prima facie case that ... a [discriminatory] policy existed"). The plaintiffs could present evidence such as Ferguson's alleged statements that he would never promote a black employee, and the defendants would be afforded the opportunity to respond. At this stage, the plaintiffs' case would presumably rest upon a "common contention"- the alleged biases of one manager and/or a group of supervisors who were responsible for awarding promotions in the Beam Mill. The focus of the proceeding would be on proving or disproving this common contention, so it is likely that common issues would predominate.
If the jury believed the plaintiffs' claims about the behavior of Beam Mill management, it might find that Ferguson and his supervisors had engaged in a pattern or practice of discrimination against African-Americans. At that point, the class would be entitled to prospective relief in the form of an order from the Court enjoining the pattern or practice of discrimination. See id. at 361 ("Without any further evidence from the [plaintiff], a court's finding of a pattern or practice justifies an award of prospective relief.").
In Stage 11, each African-American who worked in the Beam Mill or applied for a promotion in the Beam Mill would be afforded the opportunity to prove that he or she was damaged by the pattern or practice of discrimination and to prove the amount of such damages. In doing so, the members of the class would be entitled to a presumption that any promotion decision that was made or influenced by Ferguson and his supervisors was a product of the pattern or practice of discrimination established in Stage I. See id. at 361-62 ("[T]he question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial.").
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Assuming the plaintiffs had established a pattern or practice of discrimination at Stage I, there would be nothing unfair in the Court instructing the jury to presume that each promotion decision involving the Beam Mill management was affected by the previously established pattern or practice of discrimination. The law essentially allows a jury to presume that the same racial animus that influenced the decisionmaker's choice in the instances presented in support of the pattern or practice also influenced the same decisionmaker's choice in each of the employment decisions presented in Stage II. See id. at 362 ("The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy."). The defendants, of course, would be permitted the opportunity to rebut this presumption with regard to any specific individual by showing that a particular promotion decision was made for a legitimate, nondiscriminatory reason. See id. ("[T)he burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons."). The Court could then submit this evidence to a jury to determine which, if any, of the plaintiffs was entitled to damages and the amount of damages to be awarded. This would require individualized findings, but, as previously noted, the need for these findings at Stage II should not preclude a court from concluding that common issues predominate with regard to the class as a whole.
The problem is that the current class encompasses African-American employees who worked in or applied for promotions in the Beam Mill, as well as those who worked in or applied for promotions in the Hot Mill, Cold Mill, Melt Shop, Shipping, and Maintenance Departments. Except in a few limited instances where Beam Mill employees applied for transfers or promotions in other departments, the plaintiffs have presented no evidence that Ferguson and his supervisors exercised any influence over the promotions decisions in other departments. To
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employ the language of Wal-Mart, there is no "glue" connecting the promotions decisions in the Beam Mill to the decisions in other departments. Establishing that Ferguson and his supervisors engaged in a pattern or practice of discrimination with respect to promotions in the Beam Mill does not provide a "common answer" to the "crucial question" "why was I disfavored" as to any African-American employee in the Cold Mill or Melt Shop. Furthermore, it would clearly be unfair for this Court to instruct the jury to presume that an African-American employee in the Hot Mill or Shipping Department failed to receive a promotion because of a pattern of behavior on the part of individuals who had absolutely no ability to affect the promotion in question.
Although there are, to varying degrees, a few allegations of discrimination in promotions in departments other than the Beam Mill, there is nothing to link these allegations to the pattern of behavior alleged in the Beam Mill. The primary evidence against the non-Beam Mill managers and supervisors consists of allegations made by a limited number of claimants who contend that they were denied promotions in favor of less qualified white applicants. In contrast to the evidence regarding the Beam Mill management, there is little to no evidence, aside from the actual promotions decisions, to support the claim that any of the non-Beam Mill managers harbored discriminatory bias against African-Americans. Thus, at Stage I, a jury examining the plaintiffs' evidence of discrimination in departments other than the Beam Mill would have to delve into the merits of each individual promotion decision to determine whether there was a pattern of discrimination. This would undoubtedly raise a myriad of individualized issues regarding the qualifications of particular employees, and common issues would no longer predominate. For this reason, the Court concludes that even if the plaintiffs have raised common issues regarding their promotions claims, such issues do not predominate.
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For all the reasons set forth above, the Court concludes that it must decertify the plaintiffs' class with regard to their claims for disparate treatment and disparate impact

D.

HOSTILE WORK ENVIRONMENT

In Brown, the Fourth Circuit held that this Court abused its discretion when it classified

the production departments at the Berkeley plant as "separate environments" and refused to

certify the plaintiffs' hostile work environment claim. Brown, 576 F.3d at 158. The defendants

claim that Wal-Mart requires this Court to decertify the plaintiffs' hostile work environment

class because the Fourth Circuit failed to rigorously examine the plaintiffs' evidence and failed

to require the plaintiffs to meet Wal-Mart's common policy and common injury requirements.

Having carefully reviewed the evidence, the Court declines to decertify the plaintiffs' class with

respect to the hostile work environment claim.

Title VII makes it unlawful for an employer "to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual's race [or] ... sex." 42 U.S.C. § 2000e-2(a)(l). "Since an employee's work

environment is a term or condition of employment, Title VII creates a hostile working

environment cause of action." EEOC v. Cent Wholesalers, Inc., 573 F.3d 167, 174 (4th Cir.

2009) (quoting EEOC v. R & R Ventures, 244 F.3d 334, 338 (4th Cir. 2001)).

"When the workplace is permeated with discriminatory intimidation, ridicule, and insult,

that is sutliciently severe or pervasive to alter the conditions of the victim's employment and

create an abusive working environment, Title VII is violated." Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993) (quotation marks and citations omitted). To establish a hostile work

environment in the present case, the plaintiffs must prove that the harassment was "(I)

unwelcome, (2) based on [race], (3) sutliciently severe or pervasive to alter the conditions of [the

~

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plaintiffs'] employment and create an abusive atmosphere, and (4) imputable to [the defendant]." Central Wholesalers, 573 F.3d at 175. "The 'severe or pervasive' element of a hostile work environment claim 'has both subjective and objective components."' EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306,315 (2008) (quoting Ocheltree v. Scollon Prods., Inc., 335 F.3d 325,333 (4th Cir. 2003) (en bane)).
To satisfy the subjective component, a plaintiff must show that he actually viewed the environment as hostile. Sunbelt Rentals, 521 F.3d at 3I5; see also Harris, 5IO U.S. at 21-22 (reasoning that "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation."). To satisfy the objective component, a plaintiff"must demonstrate that the conduct was such that 'a reasonable person in the plaintiffs position' would have found the environment objectively hostile or abusive." Sunbelt Rentals, 521 F.3d at 315 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998)). This inquiry requires consideration of"all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Sunbelt Rentals, 521 F.3d at 315 (quotation marks and citations omitted).
The appropriate standard to use when determining whether harassment is imputable to a defendant differs depending on whether the plaintiff alleges harassment by a supervisor or a coworker. "An employer is liable for harassment by the victim's coworkers only 'if it knew or should have known about the harassment and failed to take effective action to stop it."' Sunbelt Rentals, 521 F.3d at 319 (quoting Howard v. Winter, 446 F.3d 559,565 (4th Cir. 2006)). An employer placed on notice that harassment is occurring "must respond with remedial action
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'reasonably calculated to end the harassment."' Sunbelt Rentals, 521 FJd at 319 (quoting Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131-32 (4th Cir. 2008)). "[T]he mere fact that harassment reoccurs in the workplace, either by the same offender or different offenders, does not, ipso facto, allow a jury to conclude that an employer's response was not reasonably calculated to end the harassment." EEOC v. Xerxes Com., 639 F.3d 658, 669 (4th Cir. 2011 ).
An employer is "'liable under the doctrine of respondeat superior" if a victim's supervisor created a hostile work environment ...." Dulaney v. Packaging Com. of Am., 673 F.3d 323, 328 (4th Cir. 20 12). However, provided the employer took no tangible employment action against the victim, the employer may raise an affirmative defense, known as the Faragher-Ellerth defense, by showing: "(a) that the employer exercised reasonable care to prevent and correct promptly any ... harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Mosby-Grant v. City of Hagerstown, 630 F.3d 326,337 (4th Cir. 2010) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
As the discussion above makes clear, a court must consider a number of individualized facts when determining whether a hostile work environment exists. The defendants contend that "hostile work environment claims are far too individualized for Rule 23 class treatment" and cite a long list of cases where courts have declined to certify classes advancing such claims. Defs.' Mot. For Decert. 19, ECF No. 381. Additionally, the defendants assert that the Fourth Circuit's mandate that this Court certify the plaintiffs' hostile work environment as a class "'mark[s] the only instance in which the Fourth Circuit [has] approved a Rule 23 hostile work environment

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class." !d. at 19 n.76. Nevertheless, several district courts, including one within the Fourth Circuit, have certified hostile work envirorunent claims for class treatment. See, e.g., Newsome v. Up-To-Date Laundry, Inc., 219 F.R.D. 356, 362 (D. Md. 2004); BreMiller v. Cleveland Psychiatric Inst., 195 F.R.D. I, 21 (N.D. Ohio 2000); Markham v. White, 171 F.R.D. 217,224 (N.D. Ill. 1997). Furthermore, the Fourth Circuit's instruction to certify the plaintiffs' hostile work environment class suggests that it is at least theoretically possible for a hostile work environment class to satisfy the requirements of Rule 23, and nothing in the Wal-Mart opinion explicitly forecloses this possibility.
The Fourth Circuit majority explained, in assessing class claims of hostile work envirorunent, that this Court should have made a "totality-of-the-circumstances assessment of the plant as a whole." Brown, 576 F.3d at 168. This approach is consistent with the idea that "[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice."' Nat'! R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (quoting 42 U.S.C. § 2000e-5(e)(l)). Significantly, courts have held that a plaintiff pursuing an individual claim of a hostile work envirorunent may present evidence of abusive conduct against other employees to establish severe or pervasive harassment. See, e.g., Sunbelt Rentals, 521 F.3d at 317 ("[C]omments made to others are also relevant to determining whether [the plaintiff] was subjected to severe or pervasive harassment.") (quotation marks and citations omitted). Because the proper focus is on the overall environment, and not on any one specific act, a hostile work environment may be established through aggregate proof, even if the individuals providing accounts of harassment experienced separate instances of abuse at the hands of various individuals. See id. ("[W]e are, after all, concerned with the envirorunent of workplace hostility, and whatever the contours of one's environment, they surely may exceed the
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individual dynamic between complainant and his coworkers.") (quotation marks and citations omitted).
The members of a class alleging a hostile work environment are not required to prove that each of them experienced abuse, which, considered in isolation, was objectively sufficiently severe or pervasive to alter the conditions of their employment and create an abusive atmosphere. Rather, the plaintiffs must "demonstrate that the 'landscape of the total work environment' was hostile towards the class." Newsome, 219 F.R.D. at 362 (quoting BreMiller, 195 F.R.D. at 21).
Shortly before the issuance of this opinion, the defendants submitted a letter attaching the Seventh Circuit's opinion in Bolden v. Walsh Constr. Co., No. 12-2205, --- F.3d.---, 2012 WL 3194593 (7th Cir. Aug. 8, 20 12). In Bolden, the District Court for the Northern District of Illinois certified a hostile work environment class consisting of all African-Americans employed by the defendant at its construction sites in the Chicago Metropolitan area. See Bolden v. Walsh Qm.., No. 06 C 4104,2012 WL 1079893 (N.D. Ill. Mar. 30, 2012). During the relevant period, the defendant Walsh, a construction company, employed workers at "262 construction projects in the Chicago area." !d. at *I. The district court reasoned that the plaintiffs had raised common issues, including "whether Walsh management knew of its supervisors' harassing conduct at various construction sites and yet allowed supervisors to act with unfettered discretion on the job" and "whether Walsh exercised reasonable care to prevent and correct ... racial harassment." !d. at *10. The Seventh Circuit reversed, reasoning that "[t]he 12 plaintiffs did not experience the working conditions at all 262 sites either individually or collectively, and a given plaintiffs bad experience with one of the five supervisors we have named does not present any question about the conduct ofWalsh"s many other superintendents and foremen." 2012 WL
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3194593, at *5. Additionally, the Court of Appeals found that the hostile work environment class was unmanageable. Id.
The defendants contend that under Wal-Mart and Bolden, a group of plaintiffs alleging a hostile work environment can only pursue relief through supervisor-specific classes in which all claimants worked for or with the same bad actor. This Court does not read either case to stand for that proposition. Both Wai-Mart and Bolden involved classes that spanned hundreds or thousands of geographically separate work sites. In contrast, the case at hand involves what the Fourth Circuit has classified as a single work environment. In Bolden, the Seventh Circuit said that "[pjlaintiffs may choose to propose site- or superintendent-specific classes, which the district court may certify if all requirements of Rule 23(a) and Rule 23(b)(3) are met." Id. (emphasis added). Given the Fourth Circuit's rejection of this Court's ''separate environments" analysis, the plaintiffs' class is sufficiently "site-specific."
Furthermore, the defendants contend that the Court should require the plaintiffs to provide significant proof of a common policy of discrimination and to demonstrate that the members of the class have suffered a common injury. These concepts apply to hostile work environment claims, but look different than they do in the promotions context. A defendant need not actively adhere to a policy of discrimination to create a hostile work environment, which often is as much a product of what an employer tolerates as what it promotes. If the plaintiffs present significant proof"that the 'landscape of the total work environment' was hostile towards the class," the only "common policy'' they need to evince is the defendants' failure to take "remedial action 'reasonably calculated to end the harassment."' 18

18 The plaintiffs must also establish that the defendants had notice of the harassment, however, "[i]fthe harassment

is pervasive, it can be presumed, subject ... to rebuttal, to have come to the attention of someone authorized to do

something about it." Young v. Bayer Corn., 123 F.3d 672, 674 (7th Cir. 1997). In this case, there is no shortage of

allegations that various members of the plaintiffs' class complained to management about racial harassment.

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The common contention required to support the presentation of a common injury is the existence of a single, class-wide hostile work environment. That a group of employees who share a protected trait can cobble together a long list of abusive conduct does not entitle them to adjudicate their claims in a single case. As Wal-Mart held, there must be some "glue" that holds the plaintiffs' claims together. What is critical is that the plaintiffs be able to show that they are subject to a single, shared hostile work environment as opposed to several separate hostile work environments or to a series of unrelated instances of harassment. It is not entirely clear what factors this Court should consider in determining the contours of a particular hostile work environment. 19 At a minimum, the Court agrees with the Seventh Circuit that a class should almost always be "site- or superintendent-specific." Bolden, 2012 WL 3194593, at *5. Additionally, where the plaintiffs allege a hostile work environment across several departments in a large facility such as the one at issue in this case, the plaintiffs should be able to point to at least some plant-wide behavior affecting the class as a whole, as well as to evidence that the defendants knew or should have known about the plant-wide pattern.
Having once again reviewed the evidence, this Court finds that the plaintiffs have submitted significant proof that the landscape of the total work environment at the Berkeley plant was hostile towards African-Americans and that the defendants failed to take "remedial action 'reasonably calculated to end the harassment."' As discussed in this order and in those that have preceded it, a significant number of the plaintiffs have alleged a substantial pattern of racial harassment by their supervisors and coworkers in the Beam Mill. The Court sees no reason to
19 Courts regularly consider whether specific evidence of harassment can be considered a part of a single hostile work environment for the purpose of establishing the Title VII limitations period. See generally Nat' I R.R. Passenger Com. v. Morgan, 536 U.S. 101 (2002); McGullam v. Cedar Graphics. Inc., 609 F.3d 70 (2d Cir. 2010). These cases primarily address the temporal scope of a hostile work environment, but some of the factors considered might be useful in determining the breadth of a particular hostile work environment as well. Because the Fourth Circuit has already determined that the Berkeley plant should be treated as a single work environment, this Court need not address the issue of how a court should determine the contours of a hostile work environment.
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recite these allegations again. It suffices to say that they are sufficiently numerous and offensive to raise questions of law and fact common to all African-Americans who worked in the Beam Mill.
Claims of harassment in other departments are less prevalent and typically do not involve managers and supervisors participating directly in the harassment. Nevertheless, most of the declarations of non-Beam Mill employees submitted by the plaintiffs allege significant instances of racist behavior by coworkers. See Decl. of Sheldon Singletary (Hot Mill)~~ 14-15 (alleging that a white employee, while sitting in his truck and holding pistols, said he ought to shoot Singletary and a fellow black employee; alleging that the Confederate flag was displayed pervasively throughout the plant; alleging that numerous white co-workers made derogatory comments about African-Americans and used the term "nigger;" and alleging that the song "Dixie" was broadcast over the plant radio); Dec!. of Byron Turner (Hot Mill)~~ 3-5 (alleging that he observed the Confederate flag at the plant despite a company directive that it was not to be displayed; alleging that numerous white co-workers made derogatory comments about African-Americans and one co-worker used the term "nigger"); Decl. of Bernard Beaufort (Shipping)~~ 3-6 (alleging that racist screen savers were put on his computer; alleging that the Confederate flag was displayed pervasively throughout the plant; alleging that he observed a hangman's noose suspended from the ceiling of the shipping bay; alleging that numerous white co-workers made derogatory comments about African-Americans and one co-worker used the term "nigger"); Decl. of Earl Ravenell (Melt Shop) (alleging that the Confederate flag was displayed throughout the plant; alleging that a white co-worker called him "boy"; alleging that a white co-worker made a derogatory comment over the radio; alleging that he observed racist graffiti in the men's bathroom in the refractory).
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Beyond the declarations provided by the plaintiffs, the Court also reviewed approximately 80 affidavits of African-American employees that were submitted by the defendants. These affidavits support the Court's conclusion that although allegations of a hostile work environment were most prevalent and severe in the Beam Mill, employees from all of the production departments were subjected to abusive behavior. Specifically, employees from every department reported seeing the Confederate flag; employees from every department reported seeing racist graffiti; and employees from every department reported receiving racially offensive e-mails. Furthermore, in several instances, employees who worked in one department indicated that they were harassed by employees from other departments, and many employees reported observing what they considered to be racist symbols and racist graffiti in common areas of the plant.
From the declarations and affidavits it has reviewed, the Court gathers that, in at least a few instances, management, including Plant Manager Ladd Hall, took some action in response to the victims' reports of harassment. For example, at some point, it appears that employees were instructed that the Confederate flag was not to be displayed on company property, although there are numerous allegations that this directive was ignored.20 Additionally, after a racially offensive email was circulated in the plant, Hall appears to have warned all employees that email was to be used for work purposes only. Despite these remedial efforts, there is significant evidence that management ignored a wide range of harassment, and thus the Court concludes that the plaintiffs have met their burden to present significant proof of a general policy of discrimination.
20 In 2005. Hall testified that the company had no policy against displaying the Confederate flag.
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I'

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The Court also finds that the plaintiffs' claims that they were subjected to a single hostile work environment present a common contention sufficient to satisfy the requirement that the plaintiffs advance a common injury. As the history of this case has unfolded, the critical question has always been whether the other departments at the plant could be considered a part of a unitary environment. The Fourth Circuit answered that question in the affirmative. Indeed, the Fourth Circuit's classification of the various departments at the Berkeley plant as a single work environment simplifies the plaintiffs' task of showing a common injury. From the outset, the plaintiffs have presented sufficient evidence of a hostile work environment to proceed with a pattern or practice claim with respect to the Beam Mill. Although Wal-Mart calls into question the Fourth Circuit's reasoning with regard to the disparate treatment and disparate impact classes, it does little to help the defendants escape the Fourth Circuit's holding that this Court abused its discretion by classifying the various departments at the Berkeley plant as "separate environments." Brown, 576 F.3d at 158 ("[T]here is scant, if any, evidence that each of the departments is so autonomous as to justify classifying them as separate environments.").
The defendants argue that the Fourth Circuit's reliance on Eisen invalidates all of the Fourth Circuit's factual analysis. This Court disagrees. A fair reading of the Fourth Circuit's opinion indicates that it relied on Eisen primarily, if not exclusively, with regard to its review of the statistical evidence. As previously noted, the Fourth Circuit criticized the treatment by this Court and by Judge Agee of the statistical evidence as premature and perhaps unfair, but not as substantively t1awed. The Fourth Circuit did not hold that the plaintiffs' statistical evidence was actually more reliable than this Court or Judge Agee claimed; it held that the plaintiffs' statistical evidence did not need to be as reliable as this Court and Judge Agee claimed. By contrast, the panel majority in Brown never suggested that this Court looked too closely at the plaintiffs'
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anecdotal evidence. Rather it suggested that the Court had erred in ignoring accounts of plant-
wide racist acts and in assuming that departments that were operated separately were, therefore,
separate environments.
Notably, Judge Agee agreed with the majority that this Court abused its discretion in
classifying the departments as separate environments:
To the extent the district court's judgment was based upon a determination with regard to Sections IIJ(B)(2) and (C) that the appellants' hostile work environment claim did not have common questions oflaw or fact or was not typical of the class because the evidence showed separate, unconnected work environments, that determination is not supported by the record. While Nucor's evidence shows its operation of the plant departments was distinct and separated among the departments, that evidence is not probative as to the effects of the alleged acts on the employees' working environment across the whole facility. However, should Nucor adduce relevant evidence on the merits showing distinct and unconnected work environments as affects the appellants and other employees, the district court may take such further action as Rule 23(c)(l)(C) permits.
Brown, 576 F.3d at 160 n.l (Agee, J., concurring in part and dissenting in part). The defendants
do not contend that Judge Agee failed to conduct a rigorous analysis, and he agreed with the
majority that the record did not support treating the various departments as separate
environments. The defendants have not presented significant new facts to support their claim that the production departments should be treated as separate environments? 1 The only significant
change in the law or facts of this case since this Court certified the plaintiffs' class has been the
issuance of the Wal-Mart opinion. As noted above, nothing in that decision leads this Court to
question the Fourth Circuit's finding that the production departments at the Berkeley plant
should be treated as a single work environment. The plaintiffs have presented significant

21 The defendants claim that the deposition testimony of plaintiff Jason Guy undermines the plaintiffs' contention that racist comments and songs like "Dixie" and ''High Cotton" were broadcast over a "plant-wide radio." Guy testified that each department had its own radio channels, so employees outside the Beam Mill would have had to be tuned in to the Beam Mill's channel to have heard the offensive material. Dep. of Jason Guy 216-17, May 8, 2007, ECF No. 193-6. Even if Guy's testimony is construed to suggest that there was no plant-wide radio, this testimony is not particularly strong evidence of"distinct and unconnected work environments." At most, it undermines one of
k . s,.everal alleged instances of plant-wide racial harassment.

~

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allegations of racial harassment within this environment and have thus presented a common injury. For the reasons discussed above, the Court concludes that, with regard to the plaintiffs' hostile work environment claim, the class certified in this case continues to satisfy the requirements of Rule 23(a).
Whether the plaintiffs have satisfied the predominance requirement of Rule 23(b)(3) is a much closer question. Even if the Berkeley plant is treated as a single environment, there is significant variation in the prevalence and severity of the conduct alleged across the various departments. Moreover, hostile work environment claims require a range of individualized findings. At a minimum, each plaintiff must show that the conduct was unwelcome and subjectively abusive. Additionally, it also is likely that individualized findings regarding the defendants' "notice and negligence" would be required at the second stage of a pattern or practice trial. See EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1074 n.7 (C. D. Ill. 1998) ("A company's notice of a pattern or practice and its notice of individual harassment, although related, involve slightly different inquiries. Similarly, a company's negligence in responding to a systemic problem of ... harassment requires different findings than those required to hold a company negligent for failing to remedy an individual act of ... harassment.").
Although Wal-Mart did not specifically address Rule 23(b)(3), the defendants argue that in effect, it heightened the 23(b)(3) standard because the predominance requirement has been described as a more stringent version of the 23(a) commonality requirement. See Amchem Prods., 521 U.S. at 609. The Court agrees that it may be more difficult for the plaintitTs to satisfy Rule 23(b)(3) in the wake ofWal-Mart, but it is important to note why that is the case. By clarifying the definition of commonality, Wa1-Mart narrows the number of questions that
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now may properly be considered "common." A court that certified a class prior to Wal-Mart now may find that some of the questions it previously had regarded as "common" no longer qualify as such and thus should not be considered in evaluating whether common questions predominate.
With respect to the plaintiffs' hostile work environment claim, the defendants have not identified any issues that this Court previously had treated as common, but which no longer should be considered common under Wal-Mart. This Court previously held that the plaintiffs' class satisfied the requirements of Rule 23(b)(3), and, at least with regard to the plaintiffs' hostile work environment claim, the Court finds no change in the law or the facts to justify reversing that decision.
III. CONCLUSION This Court has never believed that trying this case as a class was a sensible course of action. From the outset, the Court's consistent concern was that the plaintiffs were attempting to extend the numerous allegations of misconduct in a single department to reach a plant-wide class. Indeed, this concern is well known to the parties and the Fourth Circuit. The Supreme Court's Wal-Mart decision unquestionably changes the nature of the class certification inquiry, but this Court does not regard it as a broad invitation to ignore the Fourth Circuit's prior holding. To the best of its ability. this Court has attempted to fairly analyze Wal-Mart and to carefully apply its holdings to the facts of this case and the Fourth Circuit's opinion. This process has required a thorough reexamination of an extensive record, significant study of the relevant authorities, and careful reflection upon both. The Court appreciates the parties' patience. For the reasons set forth in this order, the defendants' motion to decertify the plaintiffs' class (ECF No. 381) is granted with respect to the plaintiffs' claims for disparate treatment and
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disparate impact, and is denied with respect to the plaintiffs' claim for a hostile work

environment. Class members who wish to pursue claims for disparate treatment and/or disparate

impact may do so individually. The defendants' motion to exclude (ECF No. 379) is moot.

AND IT IS SO ORDERED.
SChepatrelmebsetron/,J~t,h2C01a2rolina

c~
UNITED STATES DISTRICT JUDGE

!Ji,

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 2:04-cv-22005-CWH Date Filed 09/27/13 Entry Number 454 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

QUINTON BROWN, RAMON ROANE, )

ALVIN SIMMONS, SHELDON

)

SINGLETARY, GERALD WHITE,

)

JASON GUY, and JACOB RAVENELL, )

individually and on behalf of

)

the class they seek to represent,

)

)

Plaintiffs,

)

)

vs.

)

)

NUCOR CORPORATION and NUCOR )

STEEL-BERKELEY,

)

)

Defendants.

)

Civil Action No.: 2:04-22005-CWH
ORDER

This Order marks the seventh time this Court has addressed the issue of class certification in this case.' The matter is before the Court on the defendants' motion for decertification of the hostile work environment class based on the United States Supreme Court's recent decision in Comcast Com. v. Behrend, 569 U.S.---, 133 S. Ct. 1426 (2013) ("motion to decertify") (ECF No. 428). On September 5, 2013, the Court heard oral argument on the motion. For the reasons set forth in this Order, the defendants' motion to decertify is denied.

1 See ECF No. 224 (Order denying plaintiffs' motion for class certification); ECF No. 259 (Order denying plaintiffs' motion to reconsider denial of class certification); ECF No. 339 (Order denying defendants' motion to deny class certification and certifying a class under Rule 23(b)(3)); ECF No. 359 (Order denying defendants' motion to reconsider class certification, denying defendants' motion to stay, and denying in part and granting in part defendants' motion to modify the class); ECF No. 409 (Order granting the defendants' motion to decertify the class with respect to the disparate treatment and disparate impact claims and denying the defendants' motion to decertify the class with respect to the hostile work environment claim); ECF No. 426 (Order denying the plaintiffs' motion to reconsider the Court's class decertification with respect to the disparate treatment and disparate impact claims).
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I. BACKGROUND A. FACTS
The Court assumes familiarity with the facts of this case, which are set forth in detail in the Court's Order of February I7, 2011 (ECF No. 339).
B. PROCEDURAL HISTORY The following procedural history is relevant to the motion at hand. This case was
originally filed in the Western District of Arkansas on December 8, 2003, as a nationwide class action alleging employment discrimination against Nucor Corporation and several of its subsidiaries. The action was severed into four separate cases on July 19, 2004, and each case was transferred to the judicial district in which the unlawful employment practices allegedly occurred. The named plaintiffs in this particular case are seven African-Americans who are or were employed at the Nucor Steel plant in Huger, South Carolina ("the Berkeley plant"). The plaintiffs allege that Nucor Steel-Berkeley and Nucor Corporation (collectively "the defendants") discriminated on the basis ofrace with respect to their promotions. The plaintiffs advance causes ofaction for disparate treatment, disparate impact, and a hostile work environment.
1. This Court Denies Class Certification On May 7, 2007, the plaintiffs moved to certify the following class: All African-Americans who are or were employed at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance and shipping departments (hereafter "production departments") or, in the alternative, for such separate classes or subclasses of such persons as may be appropriate under the Federal Rules of Civil Procedure. (Mot. for Class Certification I , ECF No. 184). On August 7, 2007, this Court denied the plaintiffs' motion for class certification, holding that the plaintiffs had failed to satisfy the
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requirements of Rule 23(a). (ECF No. 224). The plaintiffs moved for reconsideration (ECF No. 228), and the Court denied the motion (ECF No. 259).
2. The Fourth Circuit Reverses Two years later, on August 7, 2009, a 2-1 panel of the Fourth Circuit Court of Appeals reversed. In its initial Order, the Fourth Circuit concluded that the plaintiffs had satisfied the requirements of Rule 23(a) and Rule 23(b)(3) and remanded the case to this Court "with instructions to certify the appellants' class action ...." Brown v. Nucor Corp., No. 08-1247, at 19 (4th Cir. Aug. 7, 2009), amended by Brown v. Nucor Corp., 576 F.3d 149, 160 (4th Cir. 2009). On October 8, 2009, the panel modified its opinion by deleting its lone reference to Rule 23(b)(3). The portion of the majority's opinion instructing this Court to certify the class remained unchanged. Brown, 576 F.3d at 160. 3. This Court Certifies a Class on Remand On October 22, 2009, the defendants filed their motion for consideration of Federal Rule of Civil Procedure 23(b) and motion to deny class certification, urging this Court to analyze the putative class under Rule 23(b) and to deny class certification. (ECF No. 308). Although the Fourth Circuit remanded the case "with instructions to certify the appellants ' class action," Brown, 576 F.3d at 160, the defendants insisted that the Fourth Circuit's opinion governed only the 23(a) analysis and that this Court could deny class certification if it found the plaintiffs had not satisfied Rule 23(b). In response, the plaintiffs argued that by instructing this Court to "certify the appellants' class action," the Fourth Circuit's opinion required this Court to certify a class under either Rule 23(b)(2) or a hybrid of23(b)(2) and 23(b)(3) because those were the provisions pursuant to which the plaintiffs originally sought certification.
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On February 17, 2011, this Court issued an Order (ECF No. 339) certifying a class under Rule 23(b)(3). The Court agreed with the plaintiffs that, in light of the Fourth Circuit's opinion, the Court was required to certify a class. Order Den. Defs. ' Mot. to Den. Class Certification 11 , Feb. 17, 2011, ECF No. 339 ("Order Granting Class Certification"). However, the Court also found that by removing its lone reference to Rule 23(b), the Fourth Circuit had given the Court discretion to conduct a Rule 23(b) analysis for the purpose of determining the type of class to certify. ld. at 13-15.2 Accordingly, thls Court considered the plaintiffs' class under the various provisions of Rule 23(b) and found that the monetary relief sought by the plaintiffs predominated over the injunctive relief requested, and, therefore, certification was not proper under Rule 23(b)(2). ld. at 23. This Court also declined to certify the class using a "(b)(2)/(b)(3) hybrid," noting that this approach was not well established within the Fourth Circuit. ld. at 24-25.
Finally, the Court considered the putative class under Rule 23(b)(3), noting that although it retained discretion as to the type of class to certify, its evaluation of the facts was significantly constrained by the Fourth Circuit's ruling. ld. at 27 ("(T]he Court of Appeals significantly altered the lens through which this Court must evaluate the facts relevant to an analysis under Rule 23(b)(3)."). Consequently, in considering whether the putative class satisfied Rule 23(b)(3), this Court could not revert to factual findings or assumptions that the Fourth Circuit explicitly rejected in reversing this Court's analysis of Rule 23(a). After examining the putative class in light of the Fourth Circuit's opinion and applying the relevant factors under Rule
2 Before conducting its analysis, this Court remarked, ''the question of which provision the plaintiffs' class satisfies essentially requires the same analysis as the question of whether the plaintiffs have satisfied any of the requirements at all." Order Granting Class Certification 15, ECF No. 339. Thus, while the Fourth Circuit's opinion compelled a particular outcome (class certification in some form), the analysis required to reach that outcome was otherwise identical to the analysis the Court would have performed had the Fourth Circuit remanded the case with instructions to consider whether the appellants' class satisfied Rule 23(b).
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23(b)(3), this Court found that the putative class satisfied both the predominance and superiority requirements of Rule 23(b)(3) and certified the following class:
All African-Americans who are or were employed at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments. Order Granting Class Certification 30, ECF No. 339. 4. The Defendants' Motions to Reconsider/Stay/Narrow the Class On March 7, 2011, the defendants filed a motion for reconsideration (ECF No. 346) and a motion to stay the case (ECF No. 347) until after the Supreme Court issued a decision in WalMart Stores, Inc. v. Dukes. On April 6, 2011, this Court held a hearing to consider the defendants' motions. The Court declined to stay the case pending a ruling in Wal-Mart and instructed the defendants that ifWal-Mart were to require this Court to re-examine its certification decision, the defendants could move to decertify the class at that time. Order Den. Defs.' Mot. for Recons. & Mot. to Stay 14, Apr. 27, 2011, ECF No. 359. The Court also declined to reconsider its Order certifying the class. Id. Noting that the Fourth Circuit had clearly ordered it to certify the plaintiffs' class, the Court rejected the defendants' claim that this Court had the authority to deny class certification altogether. Id. at 8 n.2. In a footnote, this Court explained: The defendants contend that this Court should not have certified any class at all; however, to maintain this position they must completely ignore the Fourth Circuit's directive: "we remand the case to the district court with instructions to certify the appellants' class action ...." Brown, 576 F.3d at 160. Although the defendants may find it odd that the Fourth Circuit would dictate the general outcome to be reached (class certification) while leaving this Court to fill in the details, that appears to be precisely what the Fourth Circuit did. While the defendants may insist that the Fourth Circuit made an error, they did not prevail
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on the Fourth Circuit or the Supreme Court to correct it. See Nucor Com. v. Brown, 130 S. Ct. 1720 (Mar. 1, 201 0) (denying certiorari).
The defendants also moved the Court to narrow the scope of the class. (ECF No. 346, at 2). The Court largely rejected the defendants' argument that the scope of the class should be narrowed. Order Den. Defs.' Mot. for Recons. & Mot. to Stay 11-13, ECF No. 359. The Court did, however, find that three modifications to the class were needed. Id. at 13. First, the Court agreed with the defendants that the class definition should indicate that it encompassed only those individuals who may have been discriminated against by the defendants. Id. Second, the Court granted the defendants' request that the class definition specify that it was limited to African-Americans who were employed by the defendants in one or more of the six enumerated departments at the Berkeley plant and did not encompass individuals who may have worked at the plant as independent contractors or in some other capacity. Id. Finally, the Court found that it was necessary to provide a cutoff date for inclusion in th.e class, which the Court determined would be the date of its Order. Id. Accordingly, the class was modified and defined as follows:
All African-Americans who are, as of the date of this order [April 4, 2011], or were employed by Nucor Corporation or Nucor Steel Berkeley at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time between December 2, 1999, and the date of this order, in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because ofNucor's challenged practices. Id. at 14. 5. This Court Decertifies the Class With Respect to the Disparate Treatment
and Disparate Impact Claims but Declines to Decertify the Class With Respect to the Hostile Work Environment Claim On July 15, 2011, the defendants filed a motion for decertification of the plaintiffclass in light ofWai-Mart v. Dukes, 564 U.S.---, 131 S. Ct. 2541 (2011), which they claimed upended
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the reasoning of the Fourth Circuit's opinion in this case. (ECF No. 381, at 8). After a hearing,
the Court decertified the plaintiffs' class with respect to the disparate treatment and disparate
impact claims but declined to decertify the plaintiffs' class with respect to the hostile work
environment claim. Order Decertifying Disparate Treatment & Disparate Impact Claims, Sept.
11, 2012, ECF No. 409. With respect to the hostile work environment claim, the Court found
that Wal-Mart presented no change in the law that would require it to reverse its previous
decision certifying the class. ld. at 47.
On September 25, 2012, the plaintiffs moved for reconsideration with respect to the
decertification of the disparate treatment and disparate impact claims (ECF No. 412), and the Court denied the motion (ECF No. 426).3
6. The Defendants' Motion Pending Before this Court
On April 8, 2013, the defendants filed their motion for decertification of the hostile work
environment class based on Comcast Corp. v. Behrend, 569 U.S. ---, 133 S. Ct. 1426 (2013).
(ECF No. 428). On April26, 2013, the plaintiffs filed their response in opposition to class decertification.4 (ECF No. 434). On May 6, 2013, the defendants filed their reply. (ECF No.
3 On April19, 2013, the plaintiffs petitioned for permission to appeal the Court's Order decertifying the class with respect to the disparate treatment and disparate impact claims pursuant to Federal Rule of Civil Procedure 23(f). On June 18, 2013, the Fourth Circuit granted the plaintiffs' petition. (ECF No. 440). Currently, this interlocutory appeal is pending before the Fourth Circuit. 4 On May 21, 2013, the plaintiffs supplemented their response advising the Court that on May 20, 2013, the United States Supreme Court denied the defendants' petition for certiorari that sought to decertify the hostile work environment class. (ECF No. 438); see Nucor Corp. v. Brown, 133 S. Ct. 2393 (2013). The plaintiffs claim that if the Supreme Court thought Comcast should be applied, it likely would have indicated so by granting the defendants' petition for certiorari and remanding the case to the Fourth Circuit in light of Comcast. (ECF No. 438, at 2).
On May 23, 2013, the defendants filed their response to the plaintiffs' supplement. (ECF No. 439). First, the defendants contend that the Supreme Court's denial of the defendants' petition is not dispositive of any issue. (ECF No. 439, at 1); see Knight v. Florida, 528 U.S. 990, 990 (1999) (citation omitted) (emphasizing that "the denial of these petitions for certiorari does
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435). On May 21,2013, the plaintiffs supplemented their response in opposition. (ECF No. 438). On May 23, 2013, the defendants responded to the plaintiffs' supplement. (ECF No. 439). On September 4, 2013, the plaintiffs filed a second supplement to their response. (ECF No. 451).
II. COMCAST CORP. V. BEHREND On March 27, 2013, the Supreme Court decided Comcast Corp. v. Behrend, 569 U.S.---, 133 S. Ct. 1426 (2013). Comcast involved the certification of a cJass that contained more than two million current and former Comcast subscribers across eighteen counties located in Pennsylvania, Delaware, and New Jersey; the parties referred to this region as the Philadelphia "cluster" or the Philadelphia "Designated Market Area." Id. at 1429-30. The petitioners, Comcast Corporation and its subsidiaries, engaged in a series of transactions described as "clustering"-a strategy that concentrates cable-television services in a particular region like the one noted above. Id. at 1430. Comcast pursued its cJustering strategy by acquiring competitor service providers in a designated region and then swapping its own services in another region with that acquired competitor. Id. For example, Comcast acquired the Philadelphia duster from cable service provider Adelphia Communications, and, in exchange, Comcast sold its holdings in Palm Beach, Florida and Los Angeles, California to Adelphia Communications. Id. From 1998 to 2007, Comcast entered into nine clustering transactions, increasing its market share in the Philadelphia cluster by 45.6%. ld.
not constitute a .ruling on the merits"). Next, the defendants argue that their petition was based on pre-Comcast law and did not address any of the issues raised in the pending motion to decertify. (ECF No. 439, at 2). Specifically, the defendants claim that their petition to the Supreme Court focused exclusively on Federal Rule of Civil Procedure 23(a)(2), whereas the gravamen of their pending motion to decertify concerns the effect of Comcast on the Federal Rule of Civil Procedure 23(b)(3) analysis with respect to individualized damages inquiries. (ECF No. 439, at 2).
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The respondents, subscribers within the Philadelphia cluster, claimed that Comcast's clustering strategy eliminated competition and held prices for cable services above competitive levels, which in tum created an adverse "antitrust impact." Id. In their class action antitrust suit against Comcast, the subscribers claimed that Comcast entered into unlawful swap agreements and monopolized or attempted to monopolize cable services in the Philadelphia cluster in violation of Sections 1 and 2 of the Sherman Act. Id. The subscribers sought to certify a class under Federal Rule of Civil Procedure 23(b)(3). Id.
In Comcast, the Supreme Court granted review of the following question: '"Whether a district court may certify a class action without resolving whether the plaintiffclass has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis."'5 Id. at 1435 (Ginsburg and Breyer, JJ., dissenting) (quoting Comcast, 567 U.S.---, 133 S. Ct. 24). The plaintiffs proposed four different theories of antitrust impact, but the district court determined that only one could be proven in a manner common to all class members. Id. at 1430-31. The plaintiffs' expert, however, failed to isolate the damages resulting from the single theory of antitrust accepted by the district court; instead, he calculated damages based on a model that included all four theories. Id. at 1431. In other words, the damages model was inconsistent with the plaintiffs' liability theory, and the model
5 On petition, Comcast sought to certify a different question: "[W]hether a district court may certify a class action without resolving 'merits arguments' that bear on [Federal Rule of Civil Procedure] 23's prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3)." Comcast, 133 S. Ct. at 1435 (Ginsburg and Breyer, JJ., dissenting) (alterations in original) (citation omitted). Though the reformulated certified question sought to shift the issue from Rule 23(b)(3) to the admissibility of expert testimony set out in Federal Rule of Evidence 702, the majority's focus centers on aggregate damage calculation methodology and its fit with the accepted liability theory's ability to satisfy Rule 23(b)(3)'s predominance prong. Id. at 1432-35. The Comcast dissent notes that the certified question and the parties' corresponding briefings centered on admissibility, not on Rule 23(b)(3). Id. at 1435.
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did not prove that damages could be measured without complicated individual calculations for the two million class members. Nonetheless, the district court certified the class, fmding that the damages related to the allowed theory could be determined on a classwide basis. Id. In a 5-4 opinion, the Supreme Court reversed. ld. at 1435. The Supreme Court held: "By refusing to entertain arguments against respondents' damages model that bore on the propriety of class certification, simply because those arguments would also be pertinent to the merits determination, the Court of Appeals ran afoul of our precedents requiring precisely that inquiry." Id. at 1432-33.
"The majority in Comcast . .. conclude[d] that the case 'tum[ed] on the straightforward application of class certification principles,' . .. and the dissent concur[red] that 'the opinion breaks no new ground on the standard for certifying a class action under Federal Rule of Civil Procedure 23(b)(3). "' In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig. v. Whirlpool Corp., 722 F.3d 838, 860 (6th Cir. 2013) (citing Comcast, 133 S. Ct. at 1433, 1436). The dissent also stated that the majority opinion "should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable on a class-wide basis." Comcast, 133 S. Ct. at 1436 (Ginsburg and Breyer, JJ., dissenting) (citation omitted) (internal quotation marks omitted); see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., --- F. Supp. 2d ---,No. 06-cv-1842 (NG)(JO), 2013 WL 4067116, at* 13 (E.D.N.Y. Aug. 7, 2013) (stating "Comcast ... does not create a heightened standard for satisfaction of Rule 23(b)(3) predominance, but rather 'turns on the straightforward application of class certification principles"') (quoting Comcast, 133 S. Ct at 1433); Manno v. Healthcare Revenue Recovery Gro., LLC, 289 F.R.D. 674, 694 (S.D. Fla. 2013) (citation omitted) (stating that Comcast does not "tread[] any new ground in class action law" and " therefore does not represent
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a change in law that would warrant reconsideration"); Harris v. comScore, Inc., --- F.R.D. ---, No. ll C 5807, 2013 WL 1339262, at* 10 n.9 (N.D. Ill. Apr. 2, 2013) (citation omitted) (The assumption that "damages must be measurable based on a common methodology applicable to the entire class in antitrust cases ... even assuming it is applicable to privacy class actions in some way, is merely dicta and does not bind this court.").6
Nonetheless, the defendants claim that "Comcast is every bit the 'game-changer' for Rule 23(b)(3) damages analysis [that) Wal-Mart ... was for Rule 23(a) analysis." (ECF No. 428, at 1). In their response, the plaintiffs contend that Title VII class actions can be bifurcated into separate liability and damages stages and that, unlike Comcast, individual damages calculations do not overwhelm questions common to the class. (ECF No. 434). Finally, the plaintiffs argue that "there is no legitimate basis for decertifying the class that the Fourth Circuit held must be certified in its mandate." (ECF No. 434, at l).
The interpretation of the scope, effect, and application of Comcast is of first impression in this Court. Neither the Fourth Circuit nor this Court's sister district courts have issued a decision with respect to class certification since the issuance of Comcast. This Court finds that
Comcast does not hold that every case must have a classwide model or formula approach;
6 The Fourth Circuit has yet to address class certification under Rule 23(b)(3) post-Comcast. At
the time of this Order, the Sixth Circuit's In re Whirlpool, 722 F.3d 838, and the Seventh
Circuit's Butler v. Sears, Roebuck and Co., --- F.3d ---, Nos. 11-8029, 12-8030, 2013 WL 4478200 (7th Cir. Aug. 22, 2013), are the only circuit court decisions issued after the Supreme Court vacated the circuit courts' judgments and remanded the cases to these circuit courts for further consideration in light of Comcast. In re Whirlpool is a consumer class action that bifurcated and certified the class on the common issue of manufacturer liability, reserving individual damage calculations for a Later stage. 722 F.3d at 844. On remand, the Sixth Circuit upheld the district court's decision that the Rule 23(a) and (b)(3) requirements were satisfied. Id. at 861. In Butler, the Seventh Circuit reinstated its November 13, 2012judgment, which found class certification appropriate because it would be more efficient to try the case in a single proceeding despite the presence of individualized damages. 2013 WL 4478200, at *6.
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instead, the Court holds that the straightforward principles of Rule 23(b)(3) apply. Therefore, the Court takes this opportunity to conduct another analysis of Rule 23(b)(3)'s requirements.
III. LEGALSTANDARD Rule 23(c)(l)(C) authorizes a district court to alter or amend its certification of a class at any time prior to final judgment. The court has an ongoing duty to monitor a class and "considerable discretion" to decertify the class if the court determines class treatment is no longer appropriate. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 433 (4th Cir. 2003). Furthermore, the burden remains on the plaintiff to demonstrate that certification remains appropriate. Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267,277-78 (4th Cir. 1980) (holding that the class representative has the burden of producing an adequate record establishing the continued propriety of maintaining a class action).
IV. ARGUMENTS OF THE PARTIES The defendants claim that, in light of Comcast, the plaintiff class does not meet the Rule 23(b)(3) requirements because questions concerning the plaintiffs' damages will entail individualized inquiries that outweigh and predominate over those issues common to the class as a whole, and, as a result, the class action is an inferior means of adjudication. (ECF No. 428, at 6-1 0). In so arguing, the defendants rely on the Court's prior Orders which have found that individual questions of damages and affirmative defenses are present in this case. (ECF No. 428, at 5) (citing Order Granting Class Certification 26-27, 29, ECF No. 339 & Order Decertifying Disparate Treatment & Disparate Impact Claims 46-47, ECF No. 409). In their motion, the defendants composed a non-exhaustive list ofthe individual inquiries relevant to the calculation of damages: [T]he number of incidents each plaintiff experienced; the frequency of those incidents over a specific period of time; the severity of those incidents; the
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amount of each plaintiffs pecuniary losses; the level of each plaintiffs emotional pain and suffering and whether each plaintiff sought treatment of it; the type and extremity of each plaintiff's mental anguish and loss of enjoyment of life, if any; whether each plaintiff suffered any other non-pecuniary losses . . . . In addition, Defendants will also be entitled to put on proof of any individualized defenses which could reduce or entirely negate damages, such as the Faragher-Ellerth defense, in response to most class members' claims. (ECF No. 428, at 8).7 The defendants claim that "[m]ini-trials will be required for each class
member to calculate the precise amount of damages to which that individual is entitled based
upon the numerous individualized factors listed above." (ECF No. 428, at 9).
In opposition, the plaintiffs respond that the defendants "grossly distort[] the Supreme
Court's decision in Comcast ... "and that Comcast "primarily determined that the particular
evidence offered by the plaintiffs was not sufficiently geared to the lone anti-trust theory of
liability that the lower courts had allowed." (ECF No. 434, at l, 7). The plaintiffs claim that the
list of individual inquiries above does not include any issue relevant to the Stage I pattern-or-
practice determination and that it is hardly relevant to the Stage II determination of damages.
(ECF No. 434, at 22). Even if these inquiries have minor relevance at Stage II, the plaintiffs
contend that the "personally offensive" requirement is a minor element of proof that should not
preclude class treatment of the dominant and common factual dispute in this case: the existence
of a severe or pervasive hostile work envirorunent, which was objectively offensive to a
reasonable person and that injunctive, declaratory or other relief is appropriate. (ECF No. 434, at

~.

7 The defendants reference the plaintiffs' prayer for compensatory damages; however, at the July 19, 2007 hearing, plaintiffs' counsel informed this Court that the plaintiffs had "waived their compensatory damage claim[s]." (Hr'g Tr. 24:24-25:1, July 19, 2007, ECF No. 225). At the September 5, 2013 hearing, plaintiffs' counsel clarified that the plaintiffs are, in fact, seeking compensatory damages, but had waived the class certification of compensatory damages on July 19, 2007, when they sought to certify the class under Rule 23(b)(2). Because the class is currently certified under Rule 23(b)(3), the plaintiffs plan to pursue compensatory damages. (Hr'g Tr. 10:17-18, Sept. 5, 2013).
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22). In addition, the plaintiffs note that the class members not personally offended by the pattern
of racial hostility would not file claims at Stage II. (ECF No. 434, at 22).
V. DISCUSSION "Class certification is appropriate if the court finds, after conducting a 'rigorous analysis,'
that the requirements of Rule 23 have been met." In re Whirlpool, 722 F.3d at 851 (quoting
Wal-M;m, 131 S. Ct. at 2551 ). Under Federal Rule of Civil Procedure 23, class certification
requires two steps: (1) the class must satisfy all four of the Rule 23(a) prerequisites-
numerosity, commonality, typicality, and adequacy of representation; and (2) the class must fall
within one of the three categories in Rule 23(b). Fed. R. Civ. P. 23. The only class certification issues that remain in dispute are Rule 23(b)(3)'s predominance and superiority requirements.8
Rule 23(b)(3) provides for class certification if"the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy." Fed. R. Civ. P. 23(b)(3). In short, Rule 23(b)(3) presents two central
requirements: (1 ) predominance, which weighs class-wide versus individualized questions; and
(2) superiority, which assesses whether the class action is the preferable means of adjudication.
The following factors are relevant in determining whether these requirements are satisfied:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

~I

8 In the Court' s Order on September 11, 2012, the Court determined that the Rule 23(a) requirements- numerosity, commonality, typicality, and adequacy-were satisfied by the class. The defendants do not contest this determination; therefore, this Order addresses only whether the requirements ofRule 23(b)(3) are satisfied.
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Fed. R. Civ. P. 23(b)(3)(A)-(D). A. PREDOMINANCE The predominance requirement, which has a more demanding criterion than Rule 23(a),
'"tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation."' Butler, 2013 WL 4478200, at *4 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591,623 (1997)). Predominance is a question of efficiency. Amchem, 521 U.S. at 615. The Court must ask whether it is "more efficient, in terms of both economy ofjudicial resources and of the expense of litigation to the parties, to decide some issues on a class basis or all issues in separate trials[.]" Butler v. Sears, Roebuck & Co., 702 F.3d 359,362 (7th Cir. 2012) (en bane), vacated, 133 S. Ct. 2768 (2013).9 Class treatment is justified if"[a]n issue 'central to the validity of each one of the claims' ... can be resolved 'in one stroke[]' ...." Butler, 2013 WL 4478200, at *4 (quoting Wal-Mart, 131 S. Ct. at 2551). However, "the requirement of predominance is not satisfied if'individual questions .. . overwhelm questions common to the class[]' ...." Id. (alteration in original) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S.---, 133 S. Ct. 1184, 1196 (2013).
Predominance involves a qualitative, not quantitative, assessment-"common issues need only predominate, not outnumber individual issues." ld. (citation omitted); see Stillmock v. Weis Mkts., Inc., 385 F. App'x 267, 273 (4th Cir. 2010) (stating "while courts have properly denied class certification where individual damages issues are especially complex or burdensome, ... here, the qualitatively overarching issue by far is the liability issue ...") (internal citation omitted); Gunnells, 348 F.3d at 429 (alteration in original) (quoting In re Honda
9 In its opinion on August 22, 2013, the Seventh Circuit reinstated this judgment. Butler, 2013 WL 4478200, at *6.
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2:04-cv-22005-CWH Date Filed 09/27/13 Entry Number 454 Page 16 of 25
Motor Co., 979 F. Supp. 365,367 (D. Md. 1997) ('"Quantitatively, almost by definition there will always be more individual damages issues than common liability issues .... Qualitatively, however, . .. liability issues' may ' far exceed in complexity the more mundane individual damages issues."')); Healy v. Int'l Bhd. ofElec. Workers, Local Union,--- F.R.D. ---, No. 11-C8892, 2013 WL 4494685, *7 (N.D. Ill. Aug. 22, 2013) (citations omitted) ("The issue for Rule 23(b)(3) purposes is not whether there are individual issues-there are some individual issues in virtually every situation in which class certification is sought-but rather whether common issues predominate over any individual issues.").
"[P]redominance requires not just the presence of common issues, but also that those common issues actually outweigh any individualized issues in the litigation." Manno, 289 F.R.D. at 689. In fact, '"[c]ommon issues of fact and law predominate if they have a direct impact on every class member's effort to establish liability and on every class member's entitlement to injunctive and monetary relief."' Stillmock, 385 F. App'x at 273 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004)). In addition,"' [c]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof."' Shady Grove, 2013 WL 4067116, at *11 (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)); Manno, 289 F.R.D. at 689 (stating that "[t]o satisfy the predominance requirement, the named plaintiff must establish that the issues subject to generalized proof in the class action, and thus applicable to the class as a whole, predominate over those issues that are subject only to individualized proof') (citing Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)). To determine whether common questions predominate, the Court
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must identify the substantive issues of the plaintiffs' claims and ''then considerD the proof necessary to establish each element of the claim or defense .. . ." Gaudin v. Saxon Mortg. Servs., Inc.,--- F.R.D. ---,No. 11-cv-01663-JST, 2013 WL 4029043, at *7 (N.D. Cal. Aug. 5, 2013) (citation omitted); see also Manno, 289 F.R.D. at 689 ("'Considering whether questions of law or fact common to class members predominate begins, of course, with the elements of the underlying cause of action."') (quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S.---, 131 S. Ct. 2179,2184 (2011)) (internal quotation marks omitted).
As to the plaintiffs' hostile work environment claim, the Court finds that common questions of law and fact predominate. To establish a hostile work environment claim, the plaintiffs must show that the harassment was "(1) unwelcome, (2) based on .. . race, (3) sufficiently severe or pervasive to aJter the conditions of [the plaintiffs'] employment and create an abusive atmosphere, and (4) imputable to [the defendants]." EEOC v. Cent. WholesaJers, Inc., 573 F.3d 167, 175 (4th Cir. 2009) (citation omitted). As the Fourth Circuit has noted, '"the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination."' Brown, 576 F.3d at 159 (quoting Int' l Bhd. ofTeamsters v. United States, 431 U.S. 324,36 1-62 (1977)). "The class-wide liability phase ofa pattern or practice hostile environment claim merely requires objective proof of a hostile work environment; claims based on individual experiences are resolved in the remedial phase of the trial." Newsome v. Up-To-Date Laundry, lnc., 219 F.R.D. 356,361, n.2 (D. Md. 2004) (citation omitted). To satisfy the objective component, a plaintiff"must demonstrate that the conduct was such that 'a reasonable person in the plaintiffs position' would have found the environment objectively hostile or abusive." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,81-82 (1998)).
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To satisfy the subjective component, a plaintiffmust show that he actually viewed the environment as hostile. ld.
Although the Court will have to engage in individual inquiries with respect to the subjective component of this claim, the generalized proof of the defendants' liability will not be overshadowed by the individual determinations. See EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1078 (C.D. Ill. 1998) ("The proof needed to establish a subjective perception of abuse in the typical individual case for hostile environment ... is minimal, virtually a formality; the charging party must merely testify that she found the alleged conduct to be hostile or abusive at the time it occurred."); accord Markham v. White, No. 95-C-2065, 1999 WL 1072647, at *4 (N.D. Ill. Sept. 9, 1999) (citation omitted) ("[T]he subjective element of establishing hostile environment generally is not time consuming or difficult to establish.").
As stated above, the defendants claim that, in light of Comcast, the plaintiff class does not satisfy the predominance requirement because questions concerning the plaintiffs' damages will entail individualized inquiries that outweigh and predominate over those issues common to the class as a whole. "Courts have routinely rejected this argument, concluding ... that the need for individualized proof of damages alone will not defeat class certification." Gunnells, 348 F.3d at 429 (citations omitted); see also Comcast, 133 S. Ct. at 1437 (Ginsburg and Breyer, JJ., dissenting) (citing Advisory Committee's 1966 Notes on Fed. R. Civ. P. 23,28 U.S.C.App. , p. 141) (stating "when adjudication of questions ofliability common to the class will achieve economies of time and expense, the predominance standard is generally satisfied even if damages are not provable in the aggregate"); 2 William B. Rubenstein & Alba Conte, Newberg on Class Actions§ 4.54 (5th ed. 2013) ("Courts in every circuit have therefore uniforrnly held that the 23(b)(3) predominance requirement is satisfied despite the need to make individualized
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damage determinations."). Furthermore, decisions since Comcast have also held that "the presence of individualized damages issues does not prevent a finding that the common issues in the case predominate and that class treatment is superior." Manno, 289 F.R.D. at 692 (citations omitted); see also In re Whirlpool Corp., 722 F.3d at 861 (quoting Comcast, 133 S. Ct. at 1437) (Ginsburg and Breyer, JJ., dissenting) ('" [I]t remains the "black letter rule" that a class may obtain certification under Rule 23(b)(3) when liability questions common to the class predominate over damages questions unique to class members. "'). In fact, the Supreme Court has stated that "individualized monetary claims belong in Rule 23(b)(3)." Wal-Mart, 131 S. Ct. at 2558. Indeed, "(r]ecognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal." Comcast, 133 S. Ct. at 1437 (Ginsburg and Breyer, JJ., dissenting) (emphasis omitted) (citation omitted).
Similar to the case at hand, the defendants in Healy claimed that Comcast dramatically changed the test for predominance, "and that as a result, the common questions ... (cannot]
predominate due to variations in damages among class members." 2013 WL 4494685, at *7.
However, Judge Kennelly in the Northern District of Illinois found that "Comcast does not come close to saying . .. that a [Rule 23(b)(3)] class cannot be certified whenever there are variations among class members' damages." ld. In Healy, the court stated that Comcast does not stand for the proposition that a Rule 23(b)(3) case can be certified only if damages can be determined according to a single formula. ld. at *8. The court emphasized that the question whether common issues predominate over individual issues must be asked in every case and that "the answer can and will differ from case to case." ld. at *9. The court further stated:
When the Supreme Court said that the plaintiffs in Comcast had failed to show that damages were ''capable of measurement on a classwide basis" and that as a result, "[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class," the Court was making a Rule 23(b)(3)
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predominance determination in a case involving a two million member class. The question of whether individual damages issue predominate over other common issues is necessarily dependent on (perhaps among other things) the size of the class and the nature ofthe damage calculation. Id. at *8 (alteration in original) (internal citation omitted). The court acknowledged that "it is unlikely that damages can be determined on an overarching, class-wide basis or based on a single formula." Id. at 9. However, the court analyzed whether the individual issues predominated over the common issues. Unlike the two million member class in Comcast, the proposed class in Healy contained approximately forty members. Id. The court found this fact had a "significant bearing on the predominance issue," and that "it defie[d] credulity to contend ... that calculation of individual damages will predominate over the common issues concerning liability.'' ld. Therefore, the court held that the predominance requirement was satisfied. Id. In Butler, the Seventh Circuit found that "Comcast holds that a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide
i.!:lh!rY that the suit alleges." 2013 WL 4478200, at *3. The court further found that class
certification in Comcast was precluded because the plaintiffs ''fail[ed] to base all the damages they sought on the antitrust impact-the injury-of which the plaintiffs were complaining." Id. at *4. The Seventh Circuit distinguished Butler from Comcast by stating that "there is no possibility in [Butler] that damages could be attributed to acts of the defendants that are not challenged on a class-wide basis; all members of the mold class attribute their damages to mold and all members of the control-unit class to a defect in the control unit." ld. at *3. The Seventh Circuit also noted that "the district court in [Butler], unlike Comcast, neither was asked to decide nor did decide whether to determine damages on a class-wide basis." ld. at *4. The Seventh Circuit ruled:
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It would drive a stake through the heart of the class action device, in cases in which damages were sought ... , to require that every member of the class have identical damages. If the issues of liability are genuinely common issues, and the damages of individual class members can be readily determined in individual hearings, in settlement negotiations, or by creation of subclasses, the fact that damages are not identical across all class members should not preclude class certification. Id. at *5. ln Butler, the court found that "a single, central, common issue of liability" existed"whether the Sears washing machine was defective." Id. The court also found that the individual questions are the amount of damages owed to the washing machine owner. Butler, 702 F.3d at 361. The Seventh Circuit found and later reaffirmed that "[i]t is more efficient for the question whether the washing machines were defective-the question common to all class members-to be resolved in a single proceeding than for it to be litigated separately in hundreds of different trials . . . ." Id. at 363. As stated above, '"Rule 23(b)(3) requires that common questions predominate, not that the action include only common questions."' Shady Gove, 2013 WL 4067116, at *11 (quoting Brown v. Kelly, 609 F.3d 467, 484 (2d Cir. 201 0)). Similar to Butler, the case at hand presents a "single, central, common issue of liability"-whether the plaintiffs were subjected to a hostile work environment at the Berkeley plant-and individual questions with respect to the subjective component of the claim and the amount of damages owed to the plaintiffs. Although the defendants claim they will assert individualized defenses, these defenses do not predominate over the common issues present in this case. See Shady Grove, 2013 WL 4067116, at *12 ("To the extent that Allstate argues that it may be able to assert individualized defenses ... , I note that the existence of such defenses does not bar predominance where 'a sufficient constellation ofcommon issues binds class members together."') (quoting Kelly, 609 F.3d at 483). The Court previously noted that "the defendants will be afforded the opportunity to present affirmative
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defenses in the second stage" of the proceeding. Order Granting Class Certification 29, ECF No. 339.
Here, the Berkeley plant has been defined as a single site. See Brown, 576 F.3d at 158 ("[T]here is scant, if any, evidence that each of the departments is so autonomous as to justify classifying them as separate environments."). As a result, evidence demonstrating hostility to African-Americans at that single site is common to the class as a whole and predominates over any individualized questions that may arise at the remedial stage of proceedings. See Newsome, 219 F.R.D. at 361 n.2 (citation omitted) ("The class-wide liability phase of a pattern or practice hostile environment claim merely requires objective proof of a hostile work environment; claims based on individual experiences are resolved in the remedial phase of the trial."). Therefore, every incident of a discriminatory practice in any of the Berkeley plant' s six departments within the applicable limitations period provides common evidence of a single, objective theory of liability that is susceptible to proof on a class-wide basis. Further, as in Healy, the plaintiff class in this case is composed of a drastically smaller amount of members than the two million member class in Comcast. 10 Similar to Healy, the Court finds that the small size of the proposed class has "significant bearing on the predominance issue."
In addition, it is more efficient for the Court to decide the hostile work environment claim on a classwide basis. The plaintiffs contend that if the class were decertified, then "all of the evidence ofa hostile work environment would have to be repeated over and over in individual lawsuits . .. ." (ECF No. 434, at 16). In opposition, the defendants argue that several mini-trials will result if the class remains certified. (ECF No. 428, at 9). The Court finds that common issues of law and fact will directly impact every class member's effort to establish liability and
10 At the September 5, 2013 hearing, plaintiffs' counsel stated the class will not include more than one hundred members. (Hr' g Tr. 13:13-14, Sept. 5, 2013).
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every class member's entitlement to injunctive and monetary relief. The elements of the hostile work environment claim can be satisfied through generalized proof; therefore, "in terms of both economy ofjudicial resources and of expense of litigation to the parties," it is more efficient to decide this action on a class basis. Therefore, this Court finds that the predominance inquiry is satisfied.
B. SUPERIORITY
The predominance analysis stated above "has a tremendous impact on the superiority analysis for the simple reason that, the more common issues predominate over individual issues, the more desirable a class action lawsuit will be as a vehicle for adjudicating the plaintiffs' claims ...." Manno, 289 F.R.D. at 690. This Court has previously determined that a class is superior to other methods when examined against the four factors set forth in Rule 23(b)(3)(A)(D). Order Granting Class Certification 28-29, ECF No. 339. First, "[n]o member of the class has asserted an interest in individually controlling the prosecution or defense of separate actions." Id. at 29. Second, "[t]he named plaintiffs and their counsel have already invested substantial time in the development of this case, and efficiency favors allowing them to represent the class." ld. Third, " [t]be claims in this case were transferred to this Court because they arise out of allegations regarding a South Carolina plant, so the Court is confident that the claims are in the proper forum." Id. Fourth, the Court has noted that the remedial stage of this proceeding may increase the difficulty of managing this action due to its individualized damages issues and the defendants' opportunity to present affirmative defenses at that stage. Id. "However, the Court does not believe that the need for these individualized findings renders the class unmanageable, and the Court retains discretion to decertify the class should class adjudication prove unworkable." Id. (citing Brown, 576 F.3d at 159-60); see also Harris, 2013 WL 1339262,
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at *10 (citation omitted) ("[I]t is far more efficient to resolve all of the common issues in a single
proceeding, and then to hold individual hearings on damages if necessary, than it would be to litigate all of the common issues repeatedly in individual trials."). In sum, the Court reaffirms its previous holding that "given the number of [current and former] employees potentially affected by the defendants' alleged conduct, the Court finds that a class action is superior to any other method that might be used to adjudicate [the hostile work environment claim]." Order Granting Class Certification 29, ECF No. 339.
VI. CONCLUSION The defendants' assertion that the decision in Comcast warrants decertification of the hostile work environment class overstates the impact and applicability of Comcast with respect to the present matter. Though damages for the plaintiffs' hostile work environment claim may not be provable in the aggregate, the adjudication of a common question of liability will achieve economies oftime and expense, and, therefore, Rule 23(b)(3)'s predominance standard is satisfied. The Rule's superiority standard likewise is satisfied because the class action will prove to be more efficient and fair than individual suits adjudicating issues of both liability and damages for each class member. Once the Court resolves the common question of liability with respect to the plaintiffs' hostile work environment claim, the Court will either enter judgment for the defendants or proceed to the question of plaintiffs' damages. See Brown, 576 F.3d at 159 (citations omitted) ("The district court can address [the] plaintiffs' claims for injunctive or other relief after liability and other common issues are determined.").
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For the reasons set forth in this Order, the defendants' motion to decertify the plaintiffs' class (ECF No. 428) is denied with respect to the plaintiffs' claim for a hostile work environment.
AND IT IS SO ORDERED.

September~, 2013
Charleston, South Carolina

UNITED STATES DISTRICT JUDGE

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 2:04-cv-22005-DCN Date Filed 07/25/14 Entry Number 464 Page 1 of 5

Appeal: 14-154 Doc: 20

Filed: 07/25/2014 Pg: 1 of 5 PUBLISHED

FILED: July 25, 2014

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 14-154 (2:04-cv-22005-CWH)

NUCOR CORPORATION; NUCOR STEEL-BERKELEY,
Petitioners,
v.
QUINTON BROWN; JASON GUY; RAMON ROANE; ALVIN SIMMONS; SHELDON SINGLETARY; GERALD WHITE; JACOB RAVENELL, individually and on behalf of the class they seek to represent,
Respondents.

O R D E R
GREGORY, Circuit Judge: In this class action litigation, Defendants Nucor
Corporation and Nucor Steel Berkeley (collectively, “Nucor”) sought decertification of a class alleging hostile work environment claims. The district court denied Nucor’s motion, and Nucor now petitions for interlocutory review of the refusal to decertify. We deny the petition as untimely.

2:04-cv-22005-DCN Date Filed 07/25/14 Entry Number 464 Page 2 of 5

Appeal: 14-154 Doc: 20

Filed: 07/25/2014 Pg: 2 of 5 I.

This litigation concerns substantive allegations of racial

discrimination, see Brown v. Nucor Corp., 576 F.3d 149 (4th Cir.

2009), however, only the procedural history is relevant to this

order. The district court initially denied the plaintiffs’

motion for class certification, and we vacated and remanded for

certification. Id. at 160. In 2011, the district court issued

an order (the “certification order”) certifying two classes: a

promotions class--involving disparate treatment and disparate

impact claims--and a hostile work environment class. The

district court denied a motion to reconsider the certification

order, and Nucor subsequently filed four motions for

decertification. After denying the first motion, the district

court granted in part the second motion for decertification (the

“2012 Order”). In light of Wal-Mart Stores, Inc. v. Dukes, 131

S. Ct. 2541 (2011), the 2012 Order decertified the promotions

class yet left intact the hostile work environment class. After

the court denied a third motion to decertify, Nucor sought

decertification of the hostile work environment class in light

of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). The

district court denied this motion. Nucor now embarks on a

2

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Appeal: 14-154 Doc: 20

Filed: 07/25/2014 Pg: 3 of 5

second attempt to file an interlocutory appeal challenging the

refusal to decertify the hostile work environment class.1

II. Federal Rule of Civil Procedure 23(f) permits review of decisions granting or denying class certification. Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 111 (4th Cir. 2013). An appeal from a certification order must be filed within fourteen days of the order. Pashby v. Delia, 709 F.3d 307, 318 (4th Cir. 2013). The time for appeal runs once the original order on certification is entered, and begins anew only after the court rules on a timely motion to reconsider that original order. Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 837 (7th Cir. 1999); see also In re DC Water & Sewer Auth., 561 F.3d 494, 495-96 (D.C. Cir. 2009). The “rigid and inflexible” nature of this deadline is “well-established.” Fleischman v. Albany Med. Ctr., 639 F.3d 28, 31 (2d Cir. 2011). An out-of-time motion for reconsideration--regardless of whether the motion is styled as one for reconsideration or for decertification--cannot “restart the clock for appellate review” under Rule 23(f). Gary v. Sheahan, 188 F.3d 891, 892 (7th Cir. 1999).
1 Nucor petitioned for interlocutory review of the 2012 Order, challenging the district court’s refusal to decertify the hostile work environment class. We denied the petition.
3

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Furthermore, the time for appeal will not reset when a court rules on certification motions filed subsequent to the original ruling so long as the later rulings do not alter the original ruling. See In re DC Water & Sewer Auth., 561 F.3d at 496 (joining the Third, Fifth, Seventh, Tenth, and Eleventh Circuits in adopting this rule). This is because “[a]n order that leaves class-action status unchanged from what was determined by a prior order is not an order ‘granting or denying class action certification.’” Carpenter v. Boeing Co., 456 F.3d 1183, 1191 (10th Cir. 2006). These subsequent motions are just attempts to amend the original certification order, and attempts to appeal them are untimely if filed more than fourteen days after the order granting or denying certification. Fleischman, 639 F.3d at 31-32.
In light of these parameters, we find Nucor’s instant petition untimely. The fourth motion for decertification, filed two years after the certification order, represents Nucor’s latest attempt at persuading the district court to decertify the hostile work environment class. The district court’s postcertification orders never altered the status of the hostile work environment class and thus were not orders granting or denying certification as to that class. Carpenter, 456 F.3d at 1191. We will not render the Rule 23(f) deadline “toothless” by permitting Nucor to “easily circumvent Rule 23(f)’s deadline by
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filing a motion to amend or decertify the class at any time after the district court’s original order” certifying the hostile work environment class. Fleischman, 639 F.3d at 31 (quoting In re DC Water & Sewer Auth., 561 F.3d at 496-97).2 The latest Nucor could have appealed the certification of the hostile work environment class was fourteen days after the district court denied the motion to reconsider the certification order. That date passed more than three years ago.
Entered at the direction of Judge Gregory with the concurrences of Judge King and Judge Agee.
PETITION DENIED
For the Court /s/ Patricia S. Connor, Clerk

2 In arguing that the petition is timely, Nucor cites to non-binding precedent that permitted what would have been an otherwise untimely petition. McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012). The Seventh Circuit created the exception because it found Wal-Mart to be a “milestone” decision that significantly altered class action jurisprudence and clearly required reversal of the challenged order. Id. at 485-87. We are not persuaded that Comcast rises to this level demanding exceptional treatment in this case.
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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 13-1779

QUINTON BROWN; JASON GUY; ALVIN SIMMONS; SHELDON SINGLETARY; GERALD WHITE; RAMON ROANE; JACOB RAVENELL, individually and on behalf of the class they seek to represent,
Plaintiffs - Appellants,
v.
NUCOR CORPORATION; NUCOR STEEL-BERKELEY,
Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Charleston. C. Weston Houck, Senior District Judge. (2:04-cv-22005-CWH)

Argued: September 17, 2014

Decided: May 11, 2015

Before GREGORY, AGEE, and KEENAN, Circuit Judges.

Vacated in part, and remanded with instructions by published opinion. Judge Gregory wrote the opinion, in which Judge Keenan joined. Judge Agee wrote the dissenting opinion.
ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants. Lisa Schiavo Blatt, ARNOLD & PORTER LLP, Washington, D.C., for Appellees. ON BRIEF: Armand Derfner, D. Peters Wilborn, Jr., DERFNER, ALTMAN & WILBORN, Charleston, South Carolina; Ann K. Wiggins, WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants. Cary A. Farris, John K. Linker, J. Shannon Gatlin, ALANIZ SCHRAEDER LINKER FARRIS MAYES, LLP, Houston, Texas;

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Dirk C. Phillips, Sarah M. Harris, ARNOLD & PORTER LLP, Washington, D.C.; J. Tracy Walker, IV, Robert L. Hodges, Matthew A. Fitzgerald, MCGUIREWOODS, LLP, Richmond, Virginia, for Appellees.

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GREGORY, Circuit Judge:

This case concerns the certification of a class of black

steel workers who allege endemic racial discrimination at a

South Carolina plant owned by Nucor Corporation and Nucor Steel

Berkeley (collectively, “Nucor”). Plaintiffs-appellants (“the

workers”) accuse Nucor of both discriminatory job promotion

practices and a racially hostile work environment under Title

VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The

district court originally denied class certification for both

claims, and this Court reversed. See Brown v. Nucor Corp., 576

F.3d 149 (4th Cir. 2009) (“Brown I”).

The district court has revisited certification and

decertified the promotions class in light of the Supreme Court’s

opinion in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541 (2011).1 We thus again confront the question of whether

the workers’ have presented a common question of employment

discrimination through evidence of racism in the workplace.

Despite Wal-Mart’s reshaping of the class action landscape, we

hold that the district court has for a second time erred in

refusing to certify the workers’ class, where (1) statistics

1 The district court refused to decertify the workers’ hostile work environment claim. We have previously denied as untimely Nucor’s petition for interlocutory review of that decision. Nucor Corp. v. Brown, 760 F.3d 341, 342 (4th Cir. 2014).
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indicate that promotions at Nucor depended in part on whether an

individual was black or white; (2) substantial anecdotal

evidence suggests discrimination in specific promotions

decisions in multiple plant departments; and (3) there is also

significant evidence that those promotions decisions were made

in the context of a racially hostile work environment.

Against that backdrop, the district court fundamentally

misapprehended the reach of Wal-Mart and its application to the

workers’ promotions class. We thus vacate the district court’s

decision in part and remand for re-certification of the class.

I. The Nucor plant encompasses six production departments that work together to melt, form, finish, and ship steel products to customers. See Brown I, 576 F.3d at 151. At the start of this litigation, 611 employees worked at the plant. Seventy-one (11.62%) were black.2 There was, however, at most one black supervisor in the production departments until after the Equal Employment Opportunity Commission (“EEOC”) initiated charges that preceded the putative class action.

2 By comparison, more than 38% of the available local labor market is black, according to Census data provided by the workers’ experts.
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The workers’ promotions claim rests on alternative theories

of liability under Title VII, which prohibits employment

discrimination because of an individual’s “race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2. The

promotions claim first alleges a pattern or practice of racially

disparate treatment in promotions decisions. See Teamsters v.

United States, 431 U.S. 324, 336 (1977). Second, it charges

that Nucor’s facially neutral promotions policies and procedures

had a racially disparate impact. See Griggs v. Duke Power Co.,

401 U.S. 424, 431 (1971); Wal-Mart, 131 S. Ct. at 2554.

Both theories are grounded in a statistical analysis of

racial disparities in job promotions at the plant combined with

anecdotal evidence of discrimination. The workers’ statistical

evidence spans the four-year period preceding the litigation,

between December 1999 and December 2003.

Because Nucor

destroyed and/or discarded the actual bidding data for the

period before 2001, the workers’ experts established an

alternative benchmark using ‘change-of-status’ forms filed by

the company whenever a promotion took place at the plant. The

experts extrapolated comparative statistics for that period

using an assumption that the racial composition of the bidding

pool for those jobs was the same as for the post-2001 jobs

analyzed (when Nucor retained actual bidding records).

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The workers also presented abundant direct and

circumstantial anecdotal evidence of discrimination in

promotions, including:

* Anecdotal evidence provided by the seven named plaintiffs and nine other putative class members, claiming discrimination in specific promotions decisions in the Nucor production departments;

* A description of complaints, contained in affidavits and depositions, made to plant General Manager Ladd Hall, who the workers allege failed to meaningfully respond;

* Descriptions of retaliation against those who complained to management;

* A written copy of Nucor’s promotions policy and testimony that the policy was largely ignored in favor of giving unbridled discretion to supervisors; and

* Testimony by a white supervisor that his department manager told him that “I don’t think we’ll ever have a black supervisor while I’m here.”

The facts undergirding the workers’ separate hostile work

environment claim, not directly at issue in this appeal, also

bear on the promotions analysis. Those facts are disquieting in

their volume, specificity, and consistency.

Supervisors

allegedly routinely referred to black workers as “nigger” and

“DAN (dumb ass nigger),” with one supervisor reportedly stating

“niggers aren’t smart enough” to break production records, while

others tolerated the routine use of epithets like “bologna

lips,” “yard ape,” and “porch monkey.” These epithets and

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others were broadcast over the plant-wide radio system comprising a network of walkie-talkies used to communicate along with monkey noises and the songs “Dixie” and “High Cotton.” The workers’ declarations and depositions further suggest that departmental supervisors and the plant’s general manager consistently ignored racial harassment carried out by white workers, including the circulation of racist emails, the prominent display of a hangman’s noose, the commonplace showing of the Confederate flag, and an episode when a white employee draped a white sheet over his head with eyes cut out in the form of a KKK hood.
In 2007, the South Carolina district court denied the workers’ motion for class certification for both the promotions and hostile work environment claims. In 2009, a divided panel of this Court reversed, concluding that the workers satisfied the threshold requirements of Federal Rule of Civil Procedure 23. We remanded the case “with instructions to certify the appellants’ class action.” Brown I, 576 F.3d at 160.
On February 17, 2011, the district court followed our instructions to certify the class, concluding that the workers satisfied Rule 23(b)(3)’s requirements that common questions predominate and that the class action was superior to other litigation devices to resolve the dispute. The district court
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later declined to stay the case pending a ruling in Wal-Mart, and it declined to reconsider its order certifying the class.
The Supreme Court decided Wal-Mart in June 2011, decertifying an unprecedented nationwide class of approximately 1.5 million female employees spread over 3,400 stores. Wal-Mart held that the plaintiffs had failed to present a “common contention” of employment discrimination capable of “classwide resolution,” as required by Rule 23(a)(2). Wal-Mart, 131 S.Ct. at 2551. Given the diffuse class and number of employment decisions at issue, the Supreme Court observed that “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Id. at 2552 (emphasis in original). The plaintiffs, Wal-Mart concluded, failed to meet that standard when they premised liability on a company policy of decentralized subjective decision-making by local managers, combined with statistics showing gender-based employment disparities, limited anecdotal evidence, and expert testimony about a corporate culture that allowed for the transmission of bias. See id. at 2551, 2554-55.
On September 11, 2012, the district court relied on WalMart to decertify the workers’ promotions class, invoking the court’s authority under Rule 23(c)(1)(C) to amend a
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certification order at any time before final judgment. WalMart, the court observed, clarified and heightened the commonality requirement of Rule 23(a)(2), requiring the workers to present “significant proof” that Nucor “operated under a general policy of discrimination” and that they suffered a common injury. J.A. 10934 (quoting Wal-Mart, 131 S.Ct. at 2553).
Under that standard, the district court concluded that decertification of the promotions class was required because: (1) this Court’s examination of the workers’ statistical analysis in Brown I was not sufficiently “rigorous” to assess whether it raised questions common to the class under Rule 23(a)(2); (2) the workers’ statistical and anecdotal evidence failed to establish such commonality because it did not provide “significant proof” that there existed both a “general policy of discrimination” and a “common injury”; (3) the delegation of subjective decision-making to Nucor supervisors was not, without more, a sufficiently uniform policy to present “‘common’ issues appropriate for resolution on a class-wide basis”; and (4) even if the workers had identified a common question of law or fact satisfying Rule 23(a)(2), they failed to independently satisfy Rule 23(b)(3)’s requirements that common issues predominate and that the class action is a superior litigation device.
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Although the court decertified the class for the promotions claim, it refused to do so for the hostile work environment claim. The district court reaffirmed that the workers had demonstrated that the “landscape of the total work environment was hostile towards the class.” J.A. 10964 (quoting Newsome v. Up-To-Date Laundry, Inc., 219 F.R.D. 356, 362 (D. Md. 2004)). Unlike the promotions claim, the court determined that the hostile environment allegations required no showing of a company-wide adherence to a common policy of discrimination. Still, the court found that “there is significant evidence that management ignored a wide range of harassment” and that the workers “met their burden to present significant proof of a general policy of discrimination.” J.A. 10968.
On September 30, 2013, the workers appealed the district court’s decertification of the promotions class.
II. We typically review a district court’s certification order for abuse of discretion. Doe v. Chao, 306 F.3d 170, 183 (4th Cir. 2002), aff’d on other grounds, 540 U.S. 614 (2004). We review de novo, however, whether a district court contravenes a prior express or implicit mandate issued by this Court. United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993); S. Atl. Ltd. P’ship of Tenn. v. Riese, 356 F.3d 576, 583 (4th Cir. 2004) (“We
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review de novo . . . whether a post-mandate judgment of a district court contravenes the mandate rule, or whether the mandate has been ‘scrupulously and fully carried out.’” (quoting 2A Fed. Proc., L. Ed. § 3:1016)).
Determining the appropriate standard of review thus requires a two step approach. First, we examine de novo whether the district court’s decertification order violated our mandate in Brown I to certify the workers’ class. Second, if no such violation occurred, we must determine anew whether the district court abused its discretion in decertifying the promotions class.
As to the first question, an “extraordinary” exception to the mandate rule exists when there is “a show[ing] that controlling legal authority has changed dramatically.” Bell, 5 F.3d at 67 (alteration in original). Moreover, Rule 23(c)(1)(C) provides a district court with broad discretion to alter or amend a prior class certification decision at any time before final judgment.
Against that backdrop, the parties disagree about whether Wal-Mart provided sufficient justification for the district court to invoke its powers to revisit certification. Nucor maintains that Wal-Mart represents a “sea change” and that “class actions may proceed only in the most exceptional of cases.” Resp’ts’ Br. 15, 20. The workers suggest, however,
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that the Supreme Court instead largely reaffirmed existing precedent. Appellants’ Br. 34.
The truth has settled somewhere in between. See Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113-14 (4th Cir. 2013) (discussing limitations on the scope of Wal-Mart’s holding); McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 487-88 (7th Cir. 2012), cert. denied, 133 S. Ct. 338 (2012) (finding that Wal-Mart provided the basis for a renewed class certification motion); DL v. District of Columbia, 713 F.3d 120, 126 (D.C. Cir. 2013) (surveying how Wal-Mart has changed the class action landscape); Elizabeth Tippett, Robbing A Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Emp. L.J. 433 (2012) (using an empirical analysis to predict Wal-Mart’s likely impact on class certifications in the future). At the very least, Wal-Mart recalibrated and sharpened the lens through which a court examines class certification decisions under Rule 23(a)(2), an impact plainly manifested by the number of certifications overturned in its wake. See, e.g., EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014); Rodriguez v. Nat’l City Bank, 726 F.3d 372, 376 (3d Cir. 2013); M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839, 841-44 (5th Cir. 2012); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 974 (9th Cir. 2011).
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In that light, we find that the district court’s decision to reconsider the certification of the workers’ class did not itself violate our mandate in Brown I. Per this Court’s original remand instructions, the district court certified both the promotions and hostile work environment classes. Although the court had no discretion to then reconsider questions decided by this Court under then-existing facts and law, Wal-Mart provided a sufficiently significant change in the governing legal standard to permit a limited reexamination of whether the class satisfied the commonality requirement of Rule 23(a)(2).3 There are, however, instances described below when the district court unnecessarily revisited other discrete determinations made by this Court in Brown I, such as whether the Nucor plant should be treated analytically as a single entity, and whether the class independently met the requirements of Rule 23(b)(3). The reconsideration of those determinations was not compelled by Wal-Mart and contravened our mandate in Brown I.
Because the district court could reexamine whether the workers met the requirement of commonality, we review those
3 Furthermore, this Court’s original mandate did not entirely divest the district court of its ongoing authority under Rule 23(c)(1)(C) to monitor the class and make changes when appropriate. See Prado-Steiman v. Bush, 221 F.3d 1266, 1273 (11th Cir. 2000) (“Class certification orders . . . are not final judgments impervious to lower court review and revision.”); Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 702-03 (5th Cir. 2010).
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findings under the abuse of discretion standard that typically applies to certification orders. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 630 (1997) (“The law gives broad leeway to district courts in making class certification decisions, and their judgments are to be reviewed by the court of appeals only for abuse of discretion.”); Brown I, 576 F.3d at 152; Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir. 2006). A district court abuses its discretion when it materially misapplies the requirements of Rule 23. See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir. 2003); Thorn, 445 F.3d at 317-18 (“A district court per se abuses its discretion when it makes an error of law or clearly errs in its factual findings.”). The decisive question here is whether the district court materially misapplied Rule 23(a)(2) to the facts at hand in light of Wal-Mart.4

4 The dissent is skeptical that an appellate court can articulate a deferential standard of review while then finding reversible error in many of the factual and legal determinations made by a district court. See post at 84. Deference, however, clearly does not excuse us from conducting a detailed review of the record. Nor does it blind us from factual findings that were not supported and legal determinations that represent a fundamental misunderstanding of Wal-Mart’s scope. Indeed, we recently applied similar scrutiny when overturning a district court’s class certification order. See EQT Production, 764 F.3d at 357-58.
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III. Rule 23(a)(2) establishes that a class action may be maintained only if “there are questions of law or fact common to the class.” The district court determined that Wal-Mart required decertification of the workers’ promotions class insofar as the Supreme Court’s interpretation of the rule (1) emphasized the analytical rigor required to evaluate a plaintiff’s statistical evidence of commonality at the class certification stage, (2) placed the burden on plaintiffs to provide “significant proof” of a “general policy of discrimination” and “common injury,” and (3) relatedly established that a company’s policy of discretionary decisionmaking cannot sustain class certification without a showing that supervisors exercised their discretion in a common way. Each of these arguments is considered in turn.
A. Wal-Mart reaffirmed existing precedent that courts must rigorously examine whether plaintiffs have met the prerequisites of Rule 23(a) at the certification stage, an analysis that will often overlap with the merits of a claim. Wal-Mart, 131 S. Ct. at 2551 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-61 (1982)). But as the Court later clarified, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret.
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Plans & Trust Funds, __ U.S. __, 133 S. Ct. 1184, 1194–95
(2013). Instead, the merits of a claim may be considered only
when “relevant to determining whether the Rule 23 prerequisites
for class certification are satisfied.” Id. at 1195.5
This Court’s precedent and its approach in Brown I are
consistent with Wal-Mart and Falcon. See Gariety v. Grant
Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004) (observing that
“while an evaluation of the merits to determine the strength of
the plaintiffs’ case is not part of a Rule 23 analysis, the
factors spelled out in Rule 23 must be addressed through
findings, even if they overlap with issues on the merits”). In
Brown I, this Court expressly invoked Falcon’s requirement of a
rigorous analysis to determine compliance with Rule 23. 576
F.3d at 152. More important, of course, we actually conducted
5 The Wal-Mart majority confronted a split among courts regarding the depth of review necessary to sustain class certification under Rule 23. See Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 582-84 (9th Cir. 2010), rev’d, 131 S. Ct. 2541 (2011) (describing the split between circuits); Wal-Mart, 131 S. Ct. at 2551-52. On one end of the spectrum, a number of courts liberally construed the Supreme Court’s language in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), stating that “nothing in either the language or history of Rule 23 . . . gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” 417 U.S. at 177. On the other end, many courts, including this Circuit, heeded the Supreme Court’s later call for a “rigorous analysis,” as announced in Falcon. See 457 U.S. at 160. As Falcon held, “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id.
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such an analysis, providing a detailed evaluation of the workers’ anecdotal and statistical evidence to ensure that it presented a common question under Rule 23(a)(2). Id. at 153-56.
Contrary to the dissent’s assertion, we do not (and Brown I did not) suggest that Rule 23 is a mere pleading standard. See post at 92. Far from it. It is true that Brown I cautioned that “an in–depth assessment of the merits of appellants’ claim at this stage would be improper.” Id. at 156. Such a statement, however, is consistent with the Supreme Court’s dictate in Amgen that a court should engage the merits of a claim only to the extent necessary to verify that Rule 23 has been satisfied. Amgen, 133 S. Ct. at 1194-95. Brown I did precisely that.
1. Even evaluated in a still more painstaking manner, the workers’ statistical evidence is methodologically sound while yielding results that satisfy Wal-Mart’s heightened requirement of commonality discussed below. The parties’ central dispute concerns the data used to analyze the period from December 1999 to January 2001, when Nucor failed to retain actual bidding records. For that period, the workers’ expert developed an alternative benchmark that uses 27 relevant ‘change-of-status’ forms – filled out when an employee changes positions at the
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plant – to extrapolate promotions data because actual bidding information was unavailable.
Of course, it belabors the obvious to observe that the alternative benchmark is a less precise measure than actual bidding data. It is also clear, however, that plaintiffs may rely on other reliable data sources and estimates when a company has destroyed or discarded the primary evidence in a discrimination case. More than two decades of this Court’s precedent affirm as much. See Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561 (4th Cir. 1985); United States v. County of Fairfax, 629 F.2d 932, 940 (4th Cir. 1980); see generally Ramona L. Paetzold & Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases § 4.03 (2014) (describing the use of proxy data when actual data is unavailable or unreliable). In Lewis v. Bloomsburg Mills, Inc., this Court approved the use of Census data to establish a hypothetical available pool of black female job applicants after a company discarded employment applications for the relevant period. 773 F.2d at 568.6 Plaintiffs then compared the “observed” annual rate of hires of black women with
6 In Lewis, the company had “improperly disposed” of the relevant employment applications, unlike the present case where there is no direct evidence of any impropriety. 773 F.2d at 768. That fact, however, does not affect our analysis of the workers’ alternative benchmark.
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the “expected” rates based upon the proportional availability of
black females in the labor pool. Id. We endorsed a similar use
of proxy data in United States v. County of Fairfax, involving a
county government that had destroyed three years of employment
applications. 629 F.2d at 940. To analyze hiring during that
time, plaintiffs assumed that the proportion of black and women
applicants for those years was the same as in the first year for
which the county retained records. Id. This Court approved,
concluding the alternative benchmark was “the most salient proof of the County’s labor market.” Id.7
2.
The critical question is thus not whether the data used is
perfect but instead whether it is reliable and probative of
discrimination. To that end, a court must examine whether any
statistical assumptions made in the analysis are reasonable.
See Paetzold & Willborn, supra, § 4.16. The district court here
7 The dissent cites Allen v. Prince George’s County, 737 F.2d 1299, 1306 (4th Cir. 1984), to support its argument that a court has wide discretion to reject alternative benchmarks. Post at 110-11. In Allen, however, the defendants produced actual “applicant flow data” that contradicted the conclusions of the plaintiffs’ statistics that were based on more general workforce/labor market comparisons. Allen, 737 F.2d at 1306. Here, like in Lewis, such actual applicant data is unavailable. See Lewis, 773 F.2d at 568 (noting that “applicant flow data” was not available). Furthermore, Nucor has not presented any alternative statistical study, or shown that data exists that may be more reliable than the alternative benchmark used by the workers.
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identified two assumptions made by the workers’ experts as problematic.
The district court first questioned the assumption that the job changes described on the 27 forms represent promotions. See J.A. 10942. As an example of clear factual error committed by the court, it quoted at length from the dissent in Brown I to argue that the forms may represent job changes unrelated to promotions. J.A. 10942 (quoting Brown I, 576 F.3d at 167-68 (Agee, J., concurring in part and dissenting in part)). The forms cited in Judge Agee’s original dissent, however, are plainly not among the 27 relied upon by the workers’ experts in constructing the alternative benchmark. Compare J.A. 10942 (the district court’s decertification order quoting the dissent in Brown I), with J.A. 11005-11032 (copies of the actual change-ofstatus forms used in the expert analysis). Worse still, the dissent in Brown I reached the question of whether the 27 forms represented promotions without the issue having been raised, much less analyzed, by the district court in its original order denying certification, see J.A. 8979, or by Nucor itself in its briefing before this Court in Brown I.8 The dissent in Brown I
8 Nucor instead argued that the change of status forms failed to capture whether black employees bid on the positions, and whether the positions were open for bidding in the first place. Given the lack of controversy surrounding whether the 27 forms described promotions, the forms themselves were not (Continued)
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thus both engaged in sua sponte fact-finding to divine which forms were used, and then got the facts wrong.9 Using the flawed
data, the dissent concluded in Brown I that “[o]n this record,
it is difficult, if not impossible to discern whether the 2000
data based on the nebulous change-of-status forms proves those
positions were promotion positions available for employee
bidding and thus relevant to the formulation of statistical
evidence for the appellants’ claims.” Brown I, 576 F.3d at 168
(Agee, J., concurring in part and dissenting in part). The
district court expressly embraced that conclusion in
decertifying the promotions class after Wal-Mart. J.A. 10942.
Upon examining the correct change-of-status forms,
discerning whether they represent promotions is a relatively
straightforward enterprise. Nineteen of the 27 forms expressly
state they are for a promotion, for a “successful bidder” on a
“higher position,” or for a new position that was “awarded” or
introduced into the record until 2012, after the district embraced the fact-finding conducted by the dissent in Brown I and observed that “the Court has never seen the 27 change-ofstatus forms. . . .” J.A. 10943. The workers then appended all the forms to their motion to “alter and amend” the decertification order – a motion that was denied. J.A. 11005, 11083. Notably, it also appears that in 2006 the workers’ expert provided Nucor with a list of the 27 employees used in the benchmark analysis. See J.A. 1409, 1438.
9 Given that history, we would be remiss not to acknowledge the irony inherent in the dissent’s insistence that we are now impermissibly making factual determinations without due deference to the district court.
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“earned.”

Two of the forms describe changes in job

classification accompanied by an increase in pay. One form

notes that an inspector was a “successful bidder” on a mill

adjuster job – a move referred to on another change form as a

promotion. Two forms are for a “successful bidder” on a new

position where no new pay grade is noted. The remaining three

forms appear to involve changes in positions or training that

involved a decrease in pay, but there is no indication, or

argument by Nucor or the district court, that the exclusion of

those forms would substantially undermine the probativeness of

the expert analysis.

The second assumption criticized by the district court was

that the bidding pools for the 27 positions filled between

December 1999 and January 2001 had the same average racial

composition as the pools for similar jobs analyzed from 2001 to

December 2003, when the company retained actual bidding data.

Because of discovery limitations imposed by the district court,

the information available regarding the 2001-2003 promotions was

restricted to positions similar to ones bid on by the named

plaintiffs, where there was at least one black bidder. However,

because Nucor failed to retain bidding records for 1999-2000,

the data from that period could not be limited to positions

where there was a known black bidder. Instead, the alternative

benchmark had to assume that there was at least one black worker

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applying for each promotion analyzed – an assumption that the district court concluded helped render the statistical analysis unreliable. But as we already determined in Brown I, the assumption does not fatally undermine the probativeness of the experts’ findings. The workers’ experts limited the records they analyzed to the same positions identified in the later period when bidding data was available, positions for which there was a black bidder. J.A. 1161-62. In its original order denying certification, the district court observed that the assumptions regarding bidding “may be reasonable and the statistics based thereon may be relevant to prove discrimination at the plant,” but “the necessity of the assumptions diminishes their probative value.”10 J.A. 8987; see also Brown I, 576 F.3d at 156. As we previously concluded, an incremental reduction in probative value – which is a natural consequence of the use of proxy data – does not itself render a statistical study unreliable in establishing a question of discrimination common to the class. Brown I, 576 F.3d at 156. Indeed, to conclude otherwise would undermine our prior precedent in cases like Lewis and Fairfax, rendering plaintiffs unable to bring a statistics-based employment discrimination claim after a company
10 After we pointed to this language in Brown I, the district court did an about-face and changed its conclusion to state that the statistics were “fundamentally unreliable.” J.A. 10941.
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has intentionally or inadvertently destroyed actual applicant data.11 See Lewis, 773 F.2d at 568; Fairfax, 629 F.2d at 940.

3.

The dissent points to still more statistical assumptions –

assumptions not discussed by either the district court or Nucor

– to further question the reliability of the alternative

benchmark. Specifically, the dissent suggests that the black

workers may not have been qualified for higher paying jobs and

that they may have been denied promotions because of

disciplinary records that were not themselves the result of

racial animus.

See post at 111, 114-17.

As to the

qualifications of the workers, Nucor identifies nothing in the

record – or in any factual findings by the district court - to

suggest that black workers regularly applied for jobs for which

they were not qualified, such that the reliability of the study

would be compromised. Indeed, the Nucor job postings explicitly

listed the minimum qualifications required, and the workers’

experts reasonably assumed that individuals would normally apply

11 The workers’ experts acknowledged that the incomplete data “undermined” their “ability to use posting and bidding records to analyze [those] promotions.” J.A. 1161. In context, however, the experts were lamenting the failure of Nucor to “produce all such records.” J.A. 1161. As the experts concluded, they were able to “calculate reliable statistics” for the limited universe of positions they analyzed, even though greater discovery would have allowed them to make a more “powerful” study of plantwide disparities. J.A. 1253-54; see also J.A. 1340-41.

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only if they believe they met such qualifications. See J.A. 7763 (an example of a job posting); J.A. 1162. That is not to say that patently unqualified workers did not apply in isolated cases. But there is no reason to believe that such incidents would have substantially reduced the reliability of the statistical conclusions. It also bears repeating that it was Nucor that failed to retain or produce records that would have allowed the experts to take other variables like qualifications more precisely into account. See J.A. 1165.
The dissent, however, goes a step further in speculating that black workers may have been denied promotions because of their disciplinary records. See post at 111. Again, Nucor itself does not make this argument. Instead, the argument the dissent constructs is based on the company’s self-serving responses to the workers’ interrogatories and requests for production – where Nucor asserts that some of the black workers were not chosen for promotions due to disciplinary issues. The record, however, does not include disciplinary records for the named plaintiffs or putative class members. More fundamental, the workers allege that any disproportionate disciplinary action levied against them was itself a product of racial discrimination, with the disciplinary records then used as a pretext in hiring decisions. As worker Ramon Roane has stated:
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Discipline, attendance, and safety allegations are similar factors that are not equally applied and that have been used as an excuse to deny promotions to me and other persons of my race. The attitudes I have experienced with white supervisors lead me to believe that my race and that of other black employees makes a difference in how we are treated and viewed for discipline[,] promotions[,] and training. J.A. 1000; see also J.A. 1024 (Alvin Simmons’s statement that a white employee was promoted over him despite the fact that the white employee “had been disciplined less than a year earlier for ‘not paying attention’ when operating equipment”); J.A. 1111 (Earl Ravenell’s statement that black workers were disproportionately singled out for disciplinary action); J.A. 6783 (Michael Rhode’s description of discrimination in disciplinary action). See generally J.A. 10960-10972 (the district court’s factual findings regarding the existence of a racially hostile work environment); Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003) (allowing the use of circumstantial evidence to show that race was a motivating factor in a “mixed-motive” case involving both legitimate and illegitimate reasons for an employment decision); Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 193-94 (4th Cir. 2003) (allowing the use of circumstantial evidence to show that gender was “a motivating factor” in a failure to promote an employee). Given that background, it is easy to see why the district court chose not to advance the arguments that the dissent makes today.
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Finally, the dissent criticizes the assumption that the 27 positions identified were actually open for bidding.12 Post at 109. That assumption, however, derives directly from Nucor’s stated policy that every job vacancy is posted on plant bulletin boards and is open to bidding plant-wide – a policy cited by Nucor’s own expert and the district court. See J.A. 5887 (the Report of Finis Welch, observing that “[o]pen positions are posted on bulletin boards and through email,” and that “[a]ll employees in the plant are eligible to bid on a posted job”); see also Resp’ts’ Br. 9 (“Department managers set the process in motion by sending postings for available promotions to Personnel employees, who performed a purely clerical role and advertised postings plantwide.”); J.A. 8979 (the district court’s original order denying certification, finding that “[w]hen a position in a department becomes available, the job is posted on the plant’s e-mail system, which is accessible to all

12 At times, the dissent seems to suggest that statistical

assumptions themselves are to be viewed with great suspicion.

What matters, however, is not whether an analysis makes

assumptions based on imperfect data, but whether those

assumptions are reasonable.

Indeed, statistics are not

certainties but are merely “a body of methods for making wise

decisions in the face of uncertainty.” W. Allen Wallis & Harry

V. Roberts, The Nature of Statistics 11 (4th ed. 2014); see also

M.J. Moroney, Facts from Figures 3 (1951) (“A statistical

analysis, properly conducted, is a delicate dissection of

uncertainties, a surgery of suppositions.”).

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employees in the plant”). The dissent nonetheless argues that the statistical assumption was unreasonable.13 We disagree.
4.
With the alternative benchmark evidence included, the
statistical disparity in promotions is statistically significant
at 2.54 standard deviations from what would be expected if race
were a neutral factor. See Hazelwood Sch. Dist. v. United
States, 433 U.S. 299, 308 n. 14 (1977) (indicating that anything
greater than two or three standard deviations in racial
discrimination cases is suspicious, at least for large sample
sizes); Brown I, 576 F.3d at 156 n.9 (applying the Hazelwood
standard to the workers’ statistical evidence); Jones v. City of
Boston, 752 F.3d 38, 46-47 (1st Cir. 2014) (observing that two
standard deviations has become the commonly accepted threshold
for social scientists and federal courts “in analyzing
statistical showings of disparate impact”). According to the
experts’ analysis, black employees constitute 19.24% of those
13 The record does indicate that “supervisory positions” are not typically posted for bidding under the Nucor hiring policy. J.A. 257. Neither Nucor nor the district court, however, has provided any reason to believe that any of the 27 records at issue describe open supervisory jobs, as Nucor defined the term, and were thus not posted. Furthermore, the dissent suggests that there may have been isolated instances when Nucor did not follow its posting policy for non-supervisory jobs. The fact that a company does not follow its policy to a tee, however, does not fatally undermine a statistical assumption based upon such a policy.
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who applied for relevant promotions. Yet such employees were only 7.94% percent of those promoted.
Of course, statistical significance is not always synonymous with legal significance. EEOC v. Fed. Reserve Bank of Richmond, 698 F.2d 633, 648 (4th Cir. 1983) rev’d on other grounds sub nom. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984). Indeed, the usefulness of statistical evidence often “depends on all of the surrounding facts and circumstances.” Teamsters, 431 U.S. at 340. Here, the surrounding circumstances and anecdotal evidence of discrimination, as described in greater detail below, are precisely what help animate the statistical findings.14 As we held in Brown I and reaffirm today, “because the appellants’ direct evidence alone was sufficient to demonstrate common claims of disparate treatment and disparate impact, their statistical data did not need to meet a two-standard-deviation threshold.” Brown I, 576 F.3d at 156-57. Thus it is plain that when the statistical disparity actually exceeded two standard

14 Indeed, the workers’ statistical analysis may actually underestimate the impact of race on promotions at Nucor. As worker Eric Conyers stated in his declaration: “If I believed that a truly level playing field existed at the company I would have bid on numerous other positions such as Roll Guide Builder in the Beam Mill.” J.A. 1079. But the expert analysis at issue could not capture the impact of discrimination on depressed bidding rates.
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deviations, the district court abused its discretion in decertifying the class.
B. The district court further concluded that the workers’ statistical and anecdotal evidence was insufficient for class certification insofar as the evidence did not demonstrate a uniform class-wide injury that spanned the entire Nucor plant. As the court observed, Wal-Mart instructs that plaintiffs must present a common contention capable of being proven or disproven in “one stroke” to satisfy Rule 23(a)(2)’s commonality requirement. Wal-Mart, 131 S. Ct. at 2551. Thus, a class-wide proceeding must be able to generate common answers that drive the litigation. Id.; see also Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (observing that “a class meets Rule 23(a)(2)’s commonality requirement when the common questions it has raised are apt to drive the resolution of the litigation, no matter their number” (internal quotation marks omitted)). For a claim based on discrimination in employment decisions, “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Wal-Mart, 131 S. Ct. at 2552 (emphasis omitted);
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see also Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113

(4th Cir. 2013).

The workers here most generally present two such common

contentions capable of class-wide answers under Title VII.

Under a disparate treatment theory, the common contention is

that Nucor engaged in a pattern or practice of unlawful

discrimination against black workers in promotions decisions.

See Teamsters, 431 U.S. at 336. Under the workers’ disparate

impact theory, the common contention is that a facially neutral

promotions policy resulted in a disparate racial impact. See

Griggs, 401 U.S. at 429-31. As Wal-Mart observed, however,

semantic dexterity in crafting a common contention is not

enough.

Commonality instead “requires the plaintiff to

demonstrate that the class members ‘have suffered the same

injury[.]’” Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457

U.S. at 157). As such, a court must examine whether differences

between class members impede the discovery of common answers.

Id. at 2551.

In the absence of a common job evaluation procedure, Wal-

Mart held that statistical proof of employment discrimination at

the regional and national level, coupled with limited anecdotal

evidence from some states, was insufficient to show that the

company maintained a “general policy of discrimination” present

in each store where class members worked. See Wal-Mart, 131 S.

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Ct. at 2553. Similarly, the district court here found that the workers’ statistical and anecdotal evidence was insufficient to show a general policy in all Nucor departments that caused the class injury.
The district court, however, failed to adequately appreciate three significant differences from Wal-Mart that make the case largely inapposite to the facts at hand.
1. First, Wal-Mart discounted the plaintiffs’ statistical evidence in large part because the statistics failed to show discrimination on a store-by-store basis. See Wal-Mart, 131 S. Ct. at 2555. As such, the plaintiffs could not establish that a store greeter in Northern California, for instance, was subject to the same discrimination as a cashier in New Hampshire. These dissimilarities between class members were exacerbated by the sheer size of the Wal-Mart class - 1.5 million members working at 3,400 stores under “a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed.” Id. at 2557 (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 652 (9th Cir. 2010) (Kozinski, J., dissenting)). The scale and scope of the putative class, combined with the nature of the evidence offered, was thus essential to Wal-Mart’s holding. Had the class been limited to a single Wal-Mart store spanning multiple departments, or had the plaintiffs’ evidence
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captured discrimination at a store level, a very different Rule 23(a)(2) analysis would have been required.
In contrast to Wal-Mart, this litigation concerns approximately 100 class members in a single steel plant in Huger, South Carolina. The class members shared common spaces, were in regular physical contact with other departments, could apply for promotions in other departments, and were subject to hostile plant-wide policies and practices. See Brown I, 576 F.3d at 151. Such differences are not merely superficial. Instead, a more centralized, circumscribed environment generally increases the uniformity of shared injuries, the consistency with which managerial discretion is exercised, and the likelihood that one manager’s promotions decisions will impact employees in other departments. That is particularly the case where, as discussed further below, the entire Nucor plant was allegedly infected by express racial bias and stereotypes – a culture that management took few affirmative steps to meaningfully combat.
Nonetheless, the district court analogized to Wal-Mart in finding that the workers’ evidence of discrimination was insufficient because it disproportionately concerned a single department – the Beam Mill – and because there was an insufficient showing that all departments operated under a common policy of discrimination. J.A. 10949-54. As such, a
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class-wide proceeding would not generate “common answers” as Wal-Mart required, the district court found. See Wal-Mart, 131 S. Ct. at 2551.
The district court, however, inappropriately discounted, and often ignored, evidence that establishes discrimination in other Nucor departments. Although 11 of the 16 employees submitting declarations on behalf of the plaintiffs worked in the Beam Mill, the declarants describe frequent instances of alleged promotions discrimination in other departments. See J.A. 1021-24; 1032-35; 1049-51; 1055-56; 1061-63; 1085-86; 109192; 1103; 1110-11; 1118-19. Even the additional affidavits obtained by Nucor, discussed in further detail below, present numerous allegations of discrimination in non-Beam Mill departments. See J.A. 5992-95 (discrimination in the Hot Mill and Melt Shop); 6143-45 (discrimination in the Hot Mill); 6174 (general observations of promotions discrimination); 6369-70 (discrimination in the Melt Shop); 6505-07 (discrimination in the Hot Mill); 7036 (discrimination in the Melt Shop). The record additionally indicates numerous complaints of discrimination made to the plant’s general manager, who allegedly did little to nothing in response. Such alleged tolerance of discrimination from top management at the plant

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supports the workers’ contention of a class-wide injury that affected them all.15

The district court made a still more fundamental error by

choosing to treat the Nucor departments as autonomous operations

in the first place instead of part of a single facility,

contravening both this Court’s instructions in Brown I and the

district court’s own prior findings. The district court’s

original order to certify the class recognized that a

department-by-department approach had been foreclosed, writing:

Since the Fourth Circuit rejected this Court’s

characterization of the production departments as

separate environments, the Court must proceed under

the assumption that the production departments were

permeable, if not unitary.

This assumption is

buttressed by the fact that Nucor’s bidding is plant-

wide, and this Court already has held that “potential

15 As the district court found in the context of the workers’ hostile work environment claim:

These affidavits support the Court’s conclusion that

although allegations of a hostile work environment

were most prevalent and severe in the Beam Mill,

employees from all of the production departments were

subjected to abusive behavior.

Specifically,

employees from every department reported seeing the

Confederate flag, employees from every department

reported seeing racist graffiti; and employees from

every department reported receiving racially offensive

e-mails. Furthermore, in several instances, employees

who worked in one department indicated they were

harassed by employees from other departments, and many

employees reported observing what they considered to

be racist symbols and racist graffiti in common areas

of the plant.

J.A. 10968.

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applicants are eligible to prove they would have applied for a promotion but for the discriminatory practice.”
J.A. 9705. Wal-Mart provided no grounds for the court to
reconsider that finding because nothing in the Supreme Court’s
opinion suggests that single, localized operations must be analytically dissected into component departments.16 Here, all
of the workers’ evidence concerns a single connected facility.
Even if not required by our prior ruling, treating the
plant as a single entity remains sound. In addition to the
direct and circumstantial evidence of discrimination in
promotions decisions in multiple departments, racial bias in one
Nucor plant department itself diminished the promotional
opportunities for black workers in all the departments –
including those who wanted promotions into the infected
department and those who sought promotions to other departments
and needed their supervisors’ recommendations. To that end, the
workers cogently observe that requirements for dual approvals
16 The dissent insists that Brown I’s determination that the Nucor plant should be treated as a single facility only extended to the hostile work environment claim. Post at 123-24. Yet the discussion of the issue in Brown I was specifically premised on the district court’s findings regarding both the “pattern or practice” and the work environment claims. Brown I, 576 F.3d at 157. A district court may not typically relitigate “issues expressly or impliedly decided by the appellate court.” Bell, 5 F.3d at 66. Here, even the district court has recognized that Brown I prevented a finding that the plant was not a unitary environment in the context of the promotions claim. J.A. 9705 (Certification Order).
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for promotions – by originating and destination department heads – “carr[ied] the effects of racial discrimination from one department and supervisor to another, either by systemic tolerance, acquiescence or design.” Appellants’ Reply Br. 24 (citing Smith v. Bray, 681 F.3d 888, 897 & n.3 (7th Cir. 2012)).
Such a conclusion is further strengthened by the workers’ hostile work environment claim. As the district court itself found, “the plaintiffs have submitted significant proof that the landscape of the total work environment at the Berkeley plant was hostile towards African-Americans and that the defendants failed to take ‘remedial action reasonably calculated to end the harassment.’” J.A. 10966; see also Brown I, 576 F.3d at 157-58. That environment, the workers argue, supports their showing of an atmosphere of systemic tolerance of racial hostility by managers and supervisors, forming part of the overall pattern or practice that “infected black employees’ promotion opportunities.” We agree.
2. Second, the Wal-Mart plaintiffs’ theory of commonality relied, in part, on showing that the company maintained a corporate culture that facilitated the uniform transmission of implicit, or subconscious, bias into the hiring process. See Wal-Mart, 131 S. Ct. at 2548. To that end, the plaintiffs’ expert testified the company was “vulnerable” to “gender bias.”
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Id. at 2553. The Court, however, concluded that the expert could not with specificity determine how the culture concretely influenced individual employment decisions. Id. at 2553-54. The testimony was therefore insufficient to show a common policy that produced a common injury.
Here, however, the workers have provided substantial evidence of unadulterated, consciously articulated, odious racism throughout the Nucor plant, including affirmative actions by supervisors and a widespread attitude of permissiveness of racial hostility. The examples in the record are ubiquitous: bigoted epithets and monkey noises broadcast across the plant radio system, emails with highly offensive images sent to black workers, a hangman’s noose prominently displayed, a white supervisor stating that “niggers aren’t smart enough” to break production records, and abundant racist graffiti in locker rooms and shared spaces. Moreover, no more than one black supervisor worked in the Nucor production departments until after the EEOC charge that preceded this litigation. It strains the intellect to posit an equitable promotions system set against that cultural backdrop, particularly in light of the other evidence presented.
The dissent rejects the idea that evidence of a racially hostile work environment may help establish a claim for
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disparate treatment in promotions decisions.17 Post at 124-25. Indeed, the dissent goes so far as to observe that “locker rooms and radios bear no relationship to promotions decisions.” Id. at 125. Such a perspective, however, is perplexingly divorced from reality and the history of workplace discrimination. It is difficult to fathom how widespread racial animus of the type alleged here, an animus that consistently emphasized the inferiority of black workers, bears no relationship to decisions whether or not to promote an employee of that race. Although the dissent asserts that “nothing in the record supports” making a connection between the work environment and promotions practices, we are not limited to the record in making such elementary judgments. Justice is not blind to history, and we need not avert our eyes from the broader circumstances surrounding employment decisions, and the inferences that naturally follow.
3. Third, and related, the anecdotal evidence of discrimination in this case is substantially more probative than
17 We do not suggest, of course, that evidence of a hostile work environment is sufficient by itself to support a disparate treatment or disparate impact claim. Rather, we merely observe that the substantial showing of endemic prejudice at the plant – a prejudice that was allegedly tolerated and/or encouraged by management - heightens the probativeness of the workers’ other evidence.
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that in Wal-Mart. The Wal-Mart plaintiffs presented affidavits from about 120 female employees, representing approximately one affidavit for every 12,500 class members. Wal-Mart, 131 S. Ct. at 2556. The affidavits captured only 235 of Wal-Mart’s 3,400 stores, and there were no affidavits from workers in 14 states. Id. The evidence thus fell far short of the benchmark for a showing of company-wide discrimination established by Teamsters, 431 U.S. 324. In Teamsters, the plaintiffs produced statistical evidence of racial bias combined with approximately 40 accounts of discrimination from particular individuals. Id. at 338. Given the class size of approximately 334 persons, there was roughly one anecdote for every eight members of the class. See id. at 331, 338; Wal-Mart, 131 S. Ct. at 2556. “[T]he anecdotes came from individuals spread throughout the company who for the most part worked at the company’s operational centers that employed the largest numbers of the class members.” See WalMart, 131 S. Ct. at 2556 (internal quotation marks omitted). Similarly, this litigation includes anecdotal evidence from more than 16 individuals18 in a class that numbered approximately one-
18 This number includes both the 16 declarations introduced by the workers and other accounts of discrimination included in affidavits obtained by Nucor after the EEOC charge was filed. See, e.g., J.A. 5992-95, 6143-45, 6174, 6369-70, 6505-07, 7036. Of the 16 worker-filed declarations, Byron Turner’s statement fails to mention specific instances of promotions discrimination, but instead affirms that that he was “affected (Continued)
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hundred “past and present black employees at the plant” at the time litigation commenced – an approximate ratio of one anecdote for every 6.25 class members.19 See Brown I, 576 F.3d at 151 (describing the class size).

by the same practices that Ramon Roane and the other named plaintiffs” have raised. J.A. 1124. The dissent argues that the declaration of Walter Cook also fails to mention promotions. Post at 134. Cook’s declaration, however, states that he heard white employees talking about a black worker’s application for an Operator position. According to Cook, the employees stated they would “do everything that they could to make sure that nigger didn’t get the job.” J.A. 1075. Further, the dissent argues that the declaration from Kenneth Hubbard includes a complaint that Nucor in fact promoted him. Post at 134. Hubbard’s declaration, however, accuses Nucor of placing him “in the position to get [him] out of the mill and the line of progression that lead to supervisory positions.” J.A. 1097. Hubbard also observes that his trajectory at the company was dramatically different from that of a white co-worker who started at the plant at the same time and later became a supervisor. Id. Indeed, the dissent’s approach to the affidavits, consistent with its approach to the anecdotal evidence throughout, appears to be to cherry pick facts from an 11,000 page record, strip those facts of context, and then argue that they undermine the substantial, credible evidence of discrimination that the workers have produced.
19 There is some uncertainty about the precise size of the class. At the time the litigation began, seventy-one workers at the Nucor plant were black. Brown I, 576 F.3d at 151. As the district court found, there was a total of “ninety-four black employees who worked at the plant from 2001 through 2004.” Id. at 152. The workers’ experts estimated that there may have been about 150 black workers in total who “were potentially affected by the selection decisions regarding promotion at NucorBerkeley.” J.A. 1154. Even assuming a class size of 150, there would be more than one anecdotal account of racial discrimination for every 9.38 class members, a ratio that remains in line with the evidence in Teamsters. Furthermore, that number does not take into account the descriptions of (Continued)
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Balanced against such evidence, the district court gave “limited weight” to approximately 80 affidavits from Nucor employees largely disclaiming discrimination at the plant affidavits taken by company lawyers after the EEOC charges had been filed. See J.A. 10950-51. Common sense and prudence, however, instruct that the affidavits do little to rebut the evidence of discrimination insofar as they were given under potentially coercive circumstances, where the company reserved its ability to use them against other employees in any future lawsuit (a fact that was omitted from the Statement of Participation given to affiants). See J.A. 6003 (the Statement of Participation), 9379 (Nucor’s statement that it intended “to use the affidavits for every purpose permitted under the Federal Rules of Evidence,” including the opposition to class certification and the impeachment of witnesses); see also Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1202 (11th Cir. 1985) (observing that after a class action has been filed, “[a] unilateral communications scheme . . . is rife with potential for coercion”); Quezada v. Schneider Logistics Transloading & Distrib., No. CV 12-2188 CAS, 2013 WL 1296761, at *5 (C.D. Cal. Mar. 25, 2013) (finding in a class action context

discrimination in promotions decisions in the affidavits that Nucor itself obtained, as previously described.
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that “[f]ailing to inform the employees of the evidencegathering purpose of the interviews rendered the communications fundamentally misleading and deceptive because the employees were unaware that the interview was taking place in an adversarial context, and that the employees’ statements could be used to limit their right to relief”); Longcrier v. HL-A Co., 595 F. Supp. 2d 1218, 1228 (S.D. Ala. 2008); Mevorah v. Wells Fargo Home Mort., Inc., No. C 05-1175 MHP, 2005 WL 4813532, at *4 (N.D. Cal. Nov. 17, 2005). Of course, companies may investigate allegations of discrimination and take statements from employees. But when it comes to assessing the probative value of those statements – when weighed against the numerous declarations of employees who took the often grave risk of accusing an employer of a workplace violation - courts should proceed with eyes open to the imbalance of power and competing interests.20 Moreover, as previously observed, the companyobtained affidavits still contain numerous allegations of discrimination in promotions decisions - allegations that carry significant weight given the circumstances in which they were made. See J.A. 5992-95, 6143-46, 6174, 6370, 6506, 7036.
20 The dissent is thus mistaken when it asserts that we are articulating a new rule that courts categorically may not consider the affidavits obtained by companies as part of an investigation into allegations of discrimination. See post at 141. Instead, our analysis concerns the weight that should be given to such affidavits in these circumstances.
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Of course, a plaintiff need not “offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy.” Teamsters, 431 U.S. at 360; see also EEOC v. Korn Indus., Inc., 662 F.2d 256, 260 (4th Cir. 1981). Instead, a bifurcated class action proceeding allows for a “liability” stage to first determine whether an employer engaged in a pattern or practice of discriminatory conduct. Teamsters, 431 U.S. at 360; Korn, 662 F.2d at 260. Upon a finding of liability, a second damages stage allows for the consideration of which individuals were specifically harmed by the policy. Teamsters, 431 U.S. at 361; Korn, 662 F.2d at 260.
4. Here, for a liability determination in a disparate treatment claim, the workers’ statistical and anecdotal evidence, especially when combined, thus provide precisely the ‘glue’ of commonality that Wal-Mart demands. See Brown I, 576 F.3d at 156. Such a claim requires proof of a “systemwide pattern or practice” of discrimination such that the discrimination is “the regular rather than the unusual practice.” Teamsters, 431 U.S. at 336; Cooper, 467 U.S. at 87576; see also Wal-Mart, 131 S. Ct. at 2552 n.7. The required discriminatory intent may be inferred upon such a showing. See Teamsters, 431 U.S. at 339-40; Hazelwood, 433 U.S. at 308-09
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(observing that “[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination”).
Whereas there may have been many answers in Wal–Mart to the question of why any individual employee was disfavored, the workers here have sufficiently alleged that there is only one answer to the question of why Nucor’s black workers were consistently disfavored.21 Unlike a disparate impact claim, a showing of disparate treatment does not require the identification of a specific employment policy responsible for the discrimination. See Teamsters, 431 U.S. at 336 n.16 (discussing the legislative history of Title VII and concluding that the words “pattern or practice” should be interpreted according to their plain meaning). A pattern of discrimination, revealed through statistics and anecdotal evidence, can alone support a disparate treatment claim, even where the pattern is the result of discretionary decision-making.
To hold otherwise would dramatically undermine Title VII’s prophylactic powers. As the Supreme Court observed in Griggs, a central purpose of Title VII is “to achieve equality of
21 Contrary to the dissent’s assertion, we do not find “in the first instance” that the worker’s allegation is correct. Instead, we conclude that the district court clearly erred in finding that the allegation was not sufficiently supported by the record.
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employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” 401 U.S. at 429-30; see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975) (stressing Title VII’s prophylactic goals in addition to its purpose “to make persons whole for injuries suffered on account of unlawful employment discrimination”). Here, where substantial evidence suggests a pattern of engrained discriminatory decision-making that consistently disadvantaged black workers at Nucor, to deny class certification would significantly weaken Title VII as a bulwark against discrimination.
C. Statistics and anecdotes suggesting a pattern of discrimination, however, are not enough alone to sustain a disparate impact claim. See Wal-Mart, 131 S. Ct. at 2555; Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). Disparate impact liability requires the identification of a specific employment practice that caused racially disparate results. See 42 U.S.C. § 2000e-2(k); Watson, 487 U.S. at 98687; Griggs, 401 U.S. at 431. Unlike disparate treatment, the disparate impact theory does not require proof of improper intent to sustain a Title VII violation. Teamsters, 431 U.S. at 349; Griggs, 401 U.S. at 429-31 (finding the use of standardized
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tests resulted in a disparate impact). Instead, liability is premised on facially neutral policies. Griggs, 401 U.S. at 431.
Under Wal-Mart, a mere showing that a “policy of discretion has produced an overall . . . disparity does not suffice.” WalMart, 131 S. Ct. at 2556. Instead, plaintiffs who allege such a policy of discretion must demonstrate that a “common mode of exercising discretion” actually existed throughout a company. Id. at 2554; see also Tabor v. Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir. 2013) (observing that “after Wal-Mart, federal courts . . . have generally denied certification when allegedly discriminatory policies are highly discretionary and the plaintiffs do not point to a common mode of exercising discretion that pervades the entire company” (internal quotation marks omitted)). Given that standard, the district court here found that the workers “failed to identify any factor that unites the manner in which the various decision makers throughout the Berkeley plant exercised their discretion.” J.A. 10955.
Wal-Mart recognizes that in certain cases, “giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory,” 131 S. Ct. at 2554, because “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id.
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(alteration in original) (quoting Watson, 487 U.S. at 990). For a nationwide class, Wal-Mart found that proving a consistent exercise of discretion will be difficult, if not impossible in some circumstances. Id.; see also Davis v. Cintas Corp., 717 F.3d 476, 488 (6th Cir. 2013) (noting the difficulties Wal-Mart presents for parties seeking to certify a nationwide class).
But for a localized, circumscribed class of workers at a single facility, a policy of subjective, discretionary decisionmaking can more easily form the basis of Title VII liability, particularly when paired with a clear showing of pervasive racial hostility. In such cases, the underlying animus may help establish a consistently discriminatory exercise of discretion.
This Court’s recent opinion in Scott v. Family Dollar Stores, Inc. specifically provides several ways that such a disparate impact claim may satisfy Rule 23 after Wal-Mart, including: (1) when the exercise of discretion is “tied to a specific employment practice” that “affected the class in a uniform manner”; (2) when there is “also an allegation of a company-wide policy of discrimination” that affected employment decisions; and (3) “when high-level personnel exercise” the discretion at issue. Scott, 733 F.3d at 113-14.
The first and second of Scott’s alternatives are most relevant to this case. A specific employment practice or policy can comprise affirmative acts or inaction. Cf. Ellison v.
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Brady, 924 F.2d 872, 881 (9th Cir. 1991) (explaining an

employer’s responsibility to act to rectify a hostile or

offensive work environment under Title VII).

Regarding

affirmative acts, the district court has established that

Nucor’s promotions practice provides that “[e]mployees in each

of the production departments may bid on positions available in

other departments,” and that in order to promote one of the

bidders, “the supervisor, the department manager, and the

general manager must approve a written change of status and then

submit the change of status form to the personnel office.” J.A.

477-78.

For purposes of class certification, the workers have

provided sufficient evidence that such a policy, paired with the

exercise of discretion by supervisors acting within it, created

or exacerbated racially disparate results. The promotions

system, requiring approvals from different levels of management,

created an environment in which the discriminatory exercise of

discretion by one department head harmed the promotions

opportunities for all black workers at the plant by foreclosing

on opportunities in that department and generally impeding

upward mobility. Moreover, the disproportionate promotions of

white workers had to be ratified by the general manager, Ladd

Hall, who was thus on notice, or should have been on notice,

that there were pronounced racial disparities in department-

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level promotion practices, as indicated by the statistical and anecdotal evidence presented.
The workers have also presented sufficient evidence of a practice of inaction by the general manager who ignored the evidence of, and complaints regarding, discrimination in promotions at the plant. See, e.g., J.A. 996-97, 1016, 1056, 1087, 1104. Such managerial inaction occurred despite Nucor’s status as an “Equal Opportunity Employer” and its claim to have a “plantwide policy barring racial discrimination.” Resp’ts’ Br. 6. One black worker, Ray Roane, has testified that he complained directly to Hall about discrimination in promotions. J.A. 996-97. Hall threatened his job. J.A. 997. Consistent with that evidence, the workers observe in the context of their hostile work environment claim that despite a policy of investigating complaints of racial harassment, “[n]ot even one of the five department managers has been shown to have lifted a finger to redress the racially hostile work environment found to exist both plant-wide and in each department.” Appellants’ Br. 25. The workers have sufficiently alleged that such a uniform policy of managerial inaction also contributed to racial disparities in promotions decisions.
Consistent with Scott, the workers have further demonstrated that the exercise of discretion at Nucor was joined by “a company-wide policy of discrimination” that was
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encouraged, or at least tolerated, by supervisors and managers. See Scott, 733 F.3d at 114. In addition to the evidence of a hostile work environment previously described in detail, one white supervisor has expressly stated in a deposition that he heard the head of the Beam Mill declare, “I don’t think we’ll ever have a black supervisor while I’m here.” J.A. 1885-86. Such facts provide a critical nexus between the racial animus at the plant and promotions decisions that impacted all black workers by foreclosing opportunities for them. Or, using WalMart’s language, the evidence of pervasive racial hostility in the working environment provides a “common mode of exercising discretion that pervade[d] the entire company.” Wal-Mart, 131 S. Ct. at 2554-55.
In the end, Wal-Mart simply “found it unlikely” that thousands of managers across different regions “would exercise their discretion in a common way without some common direction.” Tabor, 703 F.3d at 1222. Here, however, the workers have provided ample evidence supporting their allegation of a common, racially-biased exercise of discretion throughout the plant – demonstrated through alleged incidents of specific discrimination in promotions decisions, statistical disparities, and facts suggesting pervasive plant-wide racism. The district court abused its discretion in finding that such evidence was insufficient to meet the burden that Wal-Mart imposes.
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IV.
Nucor further argues that the workers have failed to
contest the district court’s independent finding that the
putative class failed to satisfy Rule 23(b)(3). As the company
observes, the district court specifically held that the class
failed to meet the rule’s requirements for a class action
seeking individualized money damages, namely, that common
questions predominate over individualized inquiries and that the
class action is “superior to other available methods for fairly
and efficiently adjudicating the controversy.” Fed. R. Civ. P.
23(b)(3). The court remarked that “even if the Fourth Circuit
subsequently concludes that the plaintiffs have identified a
common issue that satisfies Rule 23(a)(2), this Court
nonetheless finds that ‘common issues,’ as that term is defined
by Wal-Mart, do not predominate over individual issues with regard to the plaintiffs’ promotions claims.”22 J.A. 10956.
Nucor contends that nowhere in the workers’ opening brief
is the Rule 23(b)(3) ruling addressed, and that any challenge to
22 This Court has previously observed that “[i]n a class action brought under Rule 23(b)(3), the ‘commonality’ requirement of Rule 23(a)(2) is ‘subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class predominate over’ other questions.” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 n.4 (4th Cir. 2001) (quoting Amchem, 521 U.S. at 609). But as Wal-Mart made clear, the Rule 23(a) commonality requirement and the Rule 23(b)(3) predominance requirement remain separate inquiries. Wal–Mart, 131 S. Ct. at 2556.
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that decision has thus been waived. The doctrine of waiver derives from the Federal Rules of Appellate Procedure, which require that the argument section of an appellant’s opening brief contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A); see also Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 376-77 (4th Cir. 2012). “Failure of a party in its opening brief to challenge an alternate ground for a district court’s ruling . . . waives that challenge.” United States ex rel. Ubl v. IIF Data Solutions, 650 F.3d 445, 456 (4th Cir. 2011) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6 (9th Cir. 2010))).
The workers contend first, and we agree, that no waiver occurred because their arguments in the opening brief extended to the district court’s discussion of both predominance and commonality. The single issue identified by the workers on appeal did not differentiate between the court’s findings on either question. The issue, as presented, was this:
Was it error or an abuse of discretion for the district court not to follow this Circuit’s mandate holding that sufficient statistical and nonstatistical evidence has been presented to certify a pattern-or-practice and disparate impact class covering all six production departments of the defendants’ manufacturing plant in Huger, South Carolina?
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Consistent with that framing, the workers’ opening brief

describes the district court’s decision in equally broad terms

without distinguishing between commonality and predominance.

See Appellants’ Br. 28-29 (“The district court erred as a matter

of law by declining to follow this Court’s mandate that held

there is sufficient statistical and non-statistical evidence to

certify a class covering all six production departments.”);

Appellants’ Br. 3 (citing to the portion of the district court

opinion where predominance is discussed).

Although more explicit separation of the predominance and

commonality inquiries would no doubt have been wise, the

workers’ arguments throughout their brief directly respond to

the issues the district court raised in both contexts (issues

that, as discussed below, were intertwined by the court). The

workers, for instance, specifically cite cases discussing

predominance when arguing about the extent to which a court may

look to merits in deciding certification. See Appellants’ Br.

34-35.

Elsewhere, in discussing the sufficiency of the

anecdotal evidence presented, the workers argued in favor of our

holding in Brown I that “[t]his evidence alone establishes

common claims of discrimination worthy of class certification.”

Appellants’ Br. 42 (citing Brown I, 576 F.2d at 153).

Certification of the workers’ class required a finding that Rule

23(b) was satisfied, in addition to a finding of commonality

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under Rule 23(a)(2). More generally, without limiting its analysis to the question of commonality, the workers’ opening brief observes that “[t]he district court’s finding that there is no pattern-or-practice evidence in the non-Beam Mill departments is directly contrary to the evidence and [the Fourth Circuit’s] mandate.” Appellants’ Br. 42-43.
It is true that the workers arguments often focus expressly on the question of commonality, as Wal-Mart focused its analysis. In that regard, however, the workers have merely followed the district court’s lead insofar as the court itself raised the same arguments under Rule 23(b)(3) as it did regarding commonality under Rule 23(a)(2).23 See J.A. 10958-59; see also United States v. Goforth, 465 F.3d 730, 737 (6th Cir. 2006) (observing that “where an argument advanced in an appellant’s opening brief applies to and essentially subsumes an alternative basis for affirmance not separately argued therein, the appellant does not waive that alternative basis for affirmance”). The district court based its conclusion that common issues did not predominate on the observation that because the workers’ evidence disproportionately concerns the Beam Mill, “there is no ‘glue’ connecting the promotions
23 Even superficially, the district court includes its predominance analysis under the heading of “Subjectivity as a Policy,” dovetailing a discussion of commonality, instead of as a separate section of analysis. See J.A. 10954, 10956.
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decisions in the Beam Mill to the decisions in the other departments.” J.A. 10959. That is exactly the same argument raised, and responded to by the workers, in the context of Rule 23(a)(2) commonality. See J.A. 10950-54; Appellants’ Br. 42-47. Elsewhere in its Rule 23(b)(3) discussion, the court observes that “[a]lthough there are, to varying degrees, a few allegations of discrimination in promotions in departments other than the Beam Mill, there is nothing to link these allegations to the pattern of behavior alleged in the Beam Mill.” J.A. 10959. Again, this argument is also made in the Rule 23(a)(2) context and responded to in detail by the workers there. Indeed, the district court itself acknowledged that it “employ[ed] the language of Wal-Mart” regarding Rule 23(a)(2) in discussing the requirements of Rule 23(b)(3). J.A. 10958-59. In responding directly to the reasons given by the district court for its predominance determination, the workers have thus done far more than take a mere “passing shot at the issue.” See Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (finding that an issue was waived after a party mentioned the issue in a heading but failed to further develop the argument); see also Williams v. Woodford, 384 F.3d 567, 587 n.5 (9th Cir. 2002) (concluding that an appellant preserved a claim for review even though the argument consisted of “eight sentences in a footnote,” where the argument identified the basis of
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disagreement with the district court, the requested relief, and relevant citations to case law and the record).
Nonetheless, the dissent argues that “many different reasons underlay [the district court’s] predominance finding, including several individual questions that could ‘overwhelm’ common ones.” Post at 69. But a plain reading of the district court’s opinion belies the idea that it made any predominance arguments that were not responded to by the workers. The only specific argument cited by the dissent as unaddressed contends that because of the workers’ reliance on anecdotal evidence, a jury “would have to delve into the merits of each individual promotion decision.” J.A. 10959; post at 69. Yet, as observed above, the workers specifically argued that the anecdotal evidence establishes “common claims of discrimination” that merit certification, not merely a finding of commonality. Appellants’ Br. 42 (quoting Brown I, 576 F.2d at 153). Indeed, such an argument is consistent with the workers’ fundamental contention throughout their brief that plant-wide discrimination existed.
As this Court has observed, the purpose of the waiver doctrine is to avoid unfairness to an appellee and minimize the “risk of an improvident or ill-advised opinion being issued on an unbriefed issue.” United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006) (citing McBride v. Merrell Dow & Pharm.,
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Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986)). Given the briefing presented, the fully developed record below, and the lack of any showing of unfairness or prejudice, there is simply no reason why we should exercise our discretion to discard years of litigation on appeal because of an inartful opening brief. See A Helping Hand, LLC v. Baltimore Cnty., Md., 515 F.3d 356, 369 (4th Cir. 2008) (observing that even when an argument has been waived, this Court may nonetheless consider it if a “miscarriage of justice would otherwise result” (internal quotation marks omitted)); cf. In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000) (observing that a court may refuse to find waiver and consider an argument raised for the first time on appeal when the issue “is one of law and either does not depend on the factual record, or the record has been fully developed”).
Independent of the adequacy of the workers’ opening brief, the district court had no grounds to revisit the question of predominance in the first place given this Court’s remand instructions and mandate in Brown I. Unlike the requirement of commonality under Rule 23(a)(2) discussed above, Wal-Mart did not change, nor purport to change, the Rule 23(b)(3) analysis. Indeed, any impact of the Supreme Court’s ruling on the question of whether common questions predominate is only incidental insofar as Wal-Mart recalibrated what constitutes a common question in the first place. The majority in Wal-Mart only
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invoked Rule 23(b)(3) to argue that the rule’s well-established procedural protections should apply to the plaintiffs’ claims for backpay. See Wal-Mart, 131 S. Ct. at 2559.
Following our instructions in Brown I for the district court to “certify the appellants’ class action,” the court found that “the putative class satisfied both the predominance and superiority requirements of Rule 23(b)(3).” J.A. 10930. The court then certified the class for those employed in all six Nucor operations departments. The district court cites no new facts or legal precedent after Brown I to justify revisiting that determination once the underlying question of commonality has been resolved.
Nonetheless, the dissent insists that our decision in Brown I “did not prevent the district court in any way from considering predominance because our prior decision did not say anything about predominance.” Post at 75-76 (emphasis added). Such a conclusion misconstrues both the plain language of our original mandate and ignores the district court’s equally plain understanding of it. The pivotal question in determining the scope of the mandate is whether the district court was free on remand to find that the workers had not satisfied the predominance requirement. If so, then our mandate did not reach the issue and the district court was free to reconsider it. But if the court did not have such liberty, then we must ask whether
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“controlling legal authority has changed dramatically” regarding Rule 23(b)(3) such that the court could reconsider the question. See Bell, 5 F.3d at 67. If no such change has occurred, then the district court could not revisit it.
As for the first question, the district court had no discretion to find that the workers’ class failed to satisfy Rule 23(b)(3), after we expressly told it “to certify the appellants’ class action and to engage in further proceedings consistent with this opinion.” Brown I, 576 F.3d at 160; see also Bell, 5 F.3d at 66 (requiring that a district court “implement both the letter and spirit of the . . . mandate, taking into account [our] opinion and the circumstances it embraces” (internal quotation marks and citation omitted)); United States v. Pileggi, 703 F.3d 675, 679 (4th Cir. 2013) (observing that the mandate rule “forecloses relitigation of issues expressly or impliedly decided by the appellate court” (quoting Bell, 5 F.3d at 66)); S. Atl. Ltd., 356 F.3d at 583 (observing that a mandate must be “scrupulously and fully carried out” (internal quotation marks and citation omitted)).
Indeed, the district court itself recognized that we had “dictate[d] the general outcome to be reached (class certification) while leaving [the district court] to fill in the details.” J.A. 9886 (Order Den. Mot. for Recons. 8 n.2). Of course, the court could have, and did, evaluate whether
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certification was best under Rule 23(b)(2) or (b)(3). But it

had no discretion to then find that the prerequisites of either

rule were not met. As the court observed, Nucor’s argument on

remand that the workers had failed to satisfy Rule 23(b)

“overlook[ed] the Fourth Circuit’s prior holding in this case.” J.A. 9704 (Certification Order).24 Thus, the dissent misstates

the record when it maintains that our original decision did not

“in any way” prevent the district court from considering

predominance.

Post at 75-76.

Indeed, following our

instructions and findings in Brown I, the court proceeded to

make the only finding it could under Rule 23(b)(3), namely, that

“common issues predominate and that a class action is superior

to any other method for adjudication of the claims in this

case.” The dissent is thus also misinformed when it states we

are now certifying “a Rule 23(b)(3) class action without any

court ever finding that the Rule 23(b)(3) requirements are

satisfied.” Post at 78.

Given the fact that our prior ruling foreclosed the denial

of certification on the basis of Rule 23(b)(3), the district

24 The dissent also maintains that our mandate did not reach the question of predominance because we amended our original opinion in Brown I to delete a specific reference to Rule 23(b)(3). Post at 77. Such a deletion, however, did not change either our mandate to certify – a mandate that required the court to find the workers had met Rule 23(b) – or the district court’s express understanding of that mandate.
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court needed some compelling reason to reconsider the question.

Bell, F.3d at 67 (describing the “extraordinary” exception to

the mandate rule when there is “a show[ing] that controlling

legal authority has changed dramatically”). But the court cited

no such reason and, unlike the question of commonality, Wal-Mart

provided none.

Indeed, as the district court itself

acknowledged, Wal-Mart only incidentally narrowed an inquiry

into whether common questions predominate by clarifying what

constitutes a common question in the first place under Rule

23(a)(2). J.A. 10971-72.

V. More than seven years have now elapsed since the workers first filed their class certification motion, and the district court twice has refused to certify the class. The nature of the allegations, the evidentiary support buttressing them, and the inherent cohesiveness of the class all demonstrate that the court’s failure to certify was an error. Rule 23 provides wide discretion to district courts, in part, to promote the systemic class action virtues of efficiency and flexibility. The realization of such benefits, however, requires that a district court exercise its judgment in a reasoned and expeditious manner.

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The dissent rightly observes that the majority presses forward “[o]n the road to its desired result.” Post at 152. And that result is simple justice. At bottom, the workers seek nothing more than the chance to speak with one voice about the promotions discrimination they allegedly suffered as one class on account of one uniting feature: the color of their skin. The dissent would deny them that chance while leading this Court down a different road – a road that would further weaken the class action as a tool to realize Title VII’s core promise of equality.
We vacate the district court’s decertification of the workers’ promotions class and remand the case to the district court with instructions to certify the class.
VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

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AGEE, Circuit Judge, dissenting: We typically tread lightly when reviewing a class
certification decision, affording “substantial deference” to the district court, especially when it provides “well-supported factual findings.” Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010). Class certification proceedings often call for fact-intensive choices requiring intimate knowledge of the peculiarities of complex litigation. Id. We usually trust that the district court has the better eye for these sorts of questions.
The majority today declines to follow that path. It instead takes issue with almost every aspect of the district court’s decision to decertify, reversing that court’s determination because of newfound facts on appeal and different notions about the nature of this case. In doing so, the majority creates a split between this Court and another, see Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. 2011), overlooks a plain and decisive waiver from the appellants, and drains a critical Supreme Court decision of much of its meaning, see WalMart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). I respectfully dissent.

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I. Predominance A.
The district court decertified Plaintiffs’ promotions classes for two distinct reasons. First, the court found that Plaintiffs had not identified a “question[] of law or fact common to the class,” as Rule 23(a)(2) of the Federal Rules of Civil Procedure requires. Second, it held that any questions common to the class members did not “predominate over any questions affecting only individual members,” so the class could not be certified under Rule 23(b)(3). Each of these separate reasons -- commonality or predominance -- provide an independent ground to decertify the class. See, e.g., Thorn v. JeffersonPilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006).
Because the district court provided two different bases for its decision, Plaintiffs were required to contest both. They did not. Plaintiffs’ opening brief nowhere mentions the topic of predominance. Neither does it refer to Rule 23(b). And even though “the main concern in the predominance inquiry” is “the balance between individual and common issues,” Myers v. Hertz Corp., 624 F.3d 537, 549 (2d Cir. 2010), a reader searches in vain for any mention of such a “balancing” in Plaintiffs’ submissions. Instead, Plaintiffs’ opening brief focuses solely on Rule 23(a) commonality. The brief does not even contain a simple statement that the district court erred as to
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predominance for the same reasons that it purportedly erred as to commonality -- not to say that such a statement would be sufficient, either. See Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 n.4 (9th Cir. 2014) (holding that “cursory statements that the district court’s order also incorrectly applied Rule 23(b)(3)’s [predominance] requirement” are “not enough to preserve the issue for appeal”).
An appellant must raise every issue that he wishes to press in his opening brief. If the appellant fails to address an issue there, then we will deem the issue waived or abandoned. We have repeated this rule so often that it might rightfully be termed the best-established rule in appellate procedure. See, e.g., Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, 722 F.3d 591, 602 n.13 (4th Cir. 2013); Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cnty., 684 F.3d 462, 472 n.4 (4th Cir. 2012); Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 376 (4th Cir. 2012); A Helping Hand, LLC v. Balt. Cnty., 515 F.3d 356, 369 (4th Cir. 2008); French v. Assurance Co. of Am., 448 F.3d 693, 699 n.2 (4th Cir. 2006). As a rule that “all the federal courts of appeals employ,” waiver “makes excellent sense.” Joseph v. United States, 135 S. Ct. 705, 705 (2014) (Kagan, J., respecting denial of certiorari).
In past cases, we have endeavored to apply our waiver rule consistently, finding waiver whenever a party fails to “develop
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[his] argument” -- even if his brief takes a passing shot at the issue. Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012). We have further found arguments waived even though they might have had merit. See IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 308-09 (4th Cir. 2003); Pleasurecraft Marine Engine Co. v. Thermo Power Corp., 272 F.3d 654, 657 (4th Cir. 2001). And we have applied the doctrine despite its potentially significant impact. See, e.g., Carter v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002) (applying the doctrine in a death penalty case).
Given that Plaintiffs failed to challenge the district court’s ruling on predominance, the plain and consistent waiver rule defeats their appeal. “[T]o obtain reversal of a district court judgment based on multiple, independent grounds, an appellant must convince us that every stated ground for the judgment against him is incorrect.” In re Under Seal, 749 F.3d 276, 289 (4th Cir. 2014); accord Maher v. City of Chi., 547 F.3d 817, 821 (7th Cir. 2008); Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1086 (D.C. Cir. 2007). Appellate courts have repeatedly affirmed district court decisions denying class certification where plaintiffs failed to contest a predominance finding. See, e.g., Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1306-08 (11th Cir. 2012); Klay v. Humana, Inc., 382 F.3d 1241, 1268 (11th Cir. 2004), abrogated on other grounds by
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Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008); Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 573-74 (5th Cir. 1995). Nothing calls for a different result here.
B. In view of their failure to raise the predominance issue, Plaintiffs now suggest that “[p]redominance and commonality . . . are [both] part of Rule 23(b)(3),” such that a challenge concerning one should be treated as a challenge to both. Appellant’s Reply Br. 2. They are mistaken. Commonality, found in Rule 23(a)(2), asks whether the proposed class will “resolve an issue that is central to the validity of each of one of the claims in one stroke.” EQT Prod. Co. v. Adair, 764 F.3d 347, 360 (4th Cir. 2014). Predominance, found in Rule 23(b)(3), presents a “far more demanding” inquiry, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997), namely whether any common questions “pre-dominate over any questions affecting only individual members,” Fed. R. Civ. P. 23(b)(3). Thus, while a “common issue” will establish commonality, that common issue only goes to one part of the predominance inquiry. Consequently, courts and parties must address these requirements separately, rather than muddle them together. See Vega v. TMobile USA, Inc., 564 F.3d 1256, 1268-70 (11th Cir. 2009); In re Ins. Brokerage Litig., 579 F.3d 241, 277 (3d Cir. 2009); accord Ealy v. Pinkerton Gov’t Servs., Inc., 514 F. App’x 299, 305 (4th
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Cir. 2013) (“[T]he Rule 23(a) commonality requirement[] and the Rule 23(b)(3) predominance requirement remain separate inquiries and the inquiries should not be ‘blended.’”).
The majority excuses Plaintiffs’ waiver because it believes that Plaintiffs “followed the district court’s lead” in combining the two issues. Maj. op. at 55. Thus, even though commonality and predominance are legally distinct, the majority speculates that the district court did not treat them as such here. The majority’s analysis mischaracterizes the district court’s opinion.
The district court did not just repeat back its commonality findings in determining that Plaintiffs’ class failed as to predominance. To the contrary, the court expressly held that it could not find the required predominance “even if the Fourth Circuit subsequently conclude[d] that plaintiffs have identified a common issue that satisfies Rule 23(a)(2).” J.A. 10956. The court then explained -- over several pages -- that many different reasons underlay its predominance finding, including several individual questions that could “overwhelm” common ones. Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013). Because Plaintiffs heavily rely on anecdotal evidence, for instance, the district court correctly concluded that a jury “would have to delve into the merits of each individual promotion decision” to determine whether each
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decision evidenced discrimination. J.A. 10959. Thus, a trial

meant to resolve class-wide issues would likely devolve into a

series of mini-trials examining each promotion decision made in

the Nucor plant.

The court further acknowledged that

“individual damages determinations,” like those that would be

required here, can “cut against class certification.” J.A.

10956. Although it concluded that such damages determinations

did not, standing alone, compel decertification in this case,

J.A. 10958, they did provide the district court an additional

basis for caution in making its predominance finding. See,

e.g., Cooper v. So. Co., 390 F.3d 695, 722—23 (11th Cir. 2004),

overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S.

454 (2006) (noting that individualized damage issues could swamp

the advantages coming from an initial, class-wide liability

determination); accord Allison v. Citgo Petroleum Corp., 151

F.3d 402, 421—22 (5th Cir. 1998), cited with approval in

Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 445 n.18 (4th

Cir. 2003); see also Comcast Corp. v. Behrend, 133 S. Ct. 1426,

1433 (2013) (explaining that individual damage-related questions

might destroy predominance); Windham v. Am. Brands, Inc., 565

F.2d 59, 71—72 (4th Cir. 1977).

The district court appropriately resolved predominance

separately from commonality. Plaintiffs’ failure to address the

predominance finding in any way ends their appeal.

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C. The majority at least recognizes that Plaintiffs should have been “more explicit” in addressing predominance. Maj. op. at 54; see also id. at 55 (acknowledging that Plaintiffs’ “express[]” arguments largely concern commonality). Even so, it concludes that certain oblique references in Plaintiffs’ briefs preserved a predominance-related challenge on appeal. They do not. Plaintiffs’ statement of the issue on appeal, for instance, does not help them. See maj. op. at 53. The statement asks only whether “it [was] error or an abuse of discretion for the district court not to follow this Circuit’s mandate” when it decertified the class. See Appellant’s Br. 1. Here again, Plaintiffs never mention predominance, and the statement does not otherwise indicate any specific complaint with the district court’s predominance holding. Even if it had, that reference would not have been enough without some further argument on the matter -- an argument that Plaintiffs wholly failed to provide. See Belk, Inc., 679 F.3d at 153 n.6; 11126 Balt. Blvd., Inc. v. Prince George’s Cnty., Md., 58 F.3d 988, 993 n.7 (4th Cir. 1995). The majority also ignores Plaintiffs’ waiver because their brief contains some broadly stated attacks on the district court’s decertification decision -- attacks purportedly not
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“limit[ed] to the question of commonality.” Maj. op. at 55. But in the usual case, a generalized attack on the lower court’s decision does not preserve the specific arguments that might be subsumed within the broader one. Quite the opposite: a “generalized assertion of error” will not suffice to preserve anything. MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 659 (7th Cir. 2011); see also, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005); Norman v. United States, 429 F.3d 1081, 1091 n.5 (Fed. Cir. 2005). Preservation would have little to recommend it if litigants could make nebulous, broadly worded arguments and trust appellate courts to work out the details once the opposing party points out the default.
In much the same way, Plaintiffs did not preserve their predominance challenge by citing a few cases that happen to touch upon the concept. See maj. op. at 54. The traditional rule provides that citations to the “occasional case,” without any fuller discussion, do not preserve an argument. Pike v. Guarino, 492 F.3d 61, 78 n.9 (1st Cir. 2007); see also Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (“A fleeting statement in the parenthetical of a citation is no more sufficient to raise a claim than a cursory remark in a footnote[.]”). Similarly, “[m]ere notation of the applicable law, without any argumentation as to how it applies to [this]
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case, does not raise the issue of its application on appeal.”

Sou v. Gonzales, 450 F.3d 1, 6 n.11 (1st Cir. 2006) (internal

quotation marks and citations omitted here and throughout);

accord Johnson v. United States, 734 F.3d 352, 360 (4th Cir.

2013).

The majority’s analysis casts an inappropriate role for an

appellate court. Now, a court must review each decision that an

appellant cites and independently consider whether any part of

it might undermine the district court’s judgment for some reason

that the appellant never raised. That concept reconceives the

appellate courts’ role, as those “courts do not sit as self-

directed boards of legal inquiry and research.”

Nat’l

Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 147 n.10

(2011); see also Walker v. Prince George’s Cnty., Md., 575 F.3d

426, 429 n.* (4th Cir. 2009) (“Judges are not like pigs, hunting

for truffles buried in briefs.”). In addition, using the

majority’s new rule, appellants may now launch late-in-the-day

challenges to any part of a district court’s certification

decision so long as they serendipitously cited a case canvassing

Rule 23 in their opening brief. This “preservation-by-citation”

approach renders the waiver rule a nullity.

D.

In the end, the majority declares itself unwilling to

exercise its “discretion” to “discard years of litigation on

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appeal because of an inartful brief.” Maj. op. at 58. That approach seems to give pro se litigant treatment to a brief crafted by experienced class counsel -- counsel that has appeared in our court before. Surely it does not expect too much from veteran counsel to ask them to make their arguments straight up and square. All the more so when these counsel have been specifically cautioned about waiver on previous occasions. See, e.g., Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972-73 (11th Cir. 2008) (holding that party represented by same counsel had “abandoned” claim by failing to raise it in his opening brief); see also Angles v. Dollar Tree Stores, Inc., 494 F. App’x 326, 330 n.6 (4th Cir. 2012) (same); cf. Bennett, 656 F.3d at 821 (holding that party represented by same counsel had “essentially abandoned” argument by making only a “conclusory challenge”); Anderson v. Cagle’s, Inc., 488 F.3d 945, 959 (11th Cir. 2007) (same).
The “purpose” of the preservation rule is also not served by overlooking Plaintiffs’ waiver. See maj. op. at 57-58. The rule “ensures that the opposing party has an opportunity to reflect upon and respond in writing to the arguments that his adversary is raising.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012); see also United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006) (noting that late arguments are “unfair to the appellee”); Pignons S.A.
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de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983) (“In preparing briefs and arguments, an appellee is entitled to rely on the content of an appellant’s brief for the scope of the issues appealed[.]”). Nucor never had a chance to address Plaintiffs’ predominance arguments directly, as Plaintiffs waited until their reply brief to make them. Plaintiffs argued in their reply brief, for example, that no “heightened” predominance standard applies after Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011), and the majority agrees, see maj. op. at 62. There might very well be reason to believe otherwise, though Nucor has never had a chance to make that argument. See, e.g., Andrey Spektor, The Death Knell of Issue Certification and Why That Matters After Wal-Mart v. Dukes, 26 St. Thomas L. Rev. 165, 172 (2014) (suggesting that Wal-Mart rendered it harder for issues to predominate). It must be cold comfort to Nucor, then, to hear that it was not “prejudice[d]” by these and other unanswerable arguments. Maj. op. at 58.
E. The majority goes on to hold that the mandate rule barred the district court from examining Rule 23(b)(3) predominance. See maj. op. at 58-62. That view is factually and legally incorrect. The decision in the prior appeal in this case did not prevent the district court in any way from considering
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predominance because our prior decision did not say anything about predominance.
In its original class certification decision in 2007, the district court held that Plaintiffs did not satisfy three of Rule 23(a)’s four requirements. It expressly declined to consider “the remaining requirements of Rule 23(b).” J.A. 8997. On appeal, the parties’ submissions focused solely on Rule 23(a). A majority of the Court then reviewed these “Rule 23(a) factors” and found them “satisfied.” Brown v. Nucor Corp., 576 F.3d 149, 160 (4th Cir. 2009) (“Brown I”). The Brown I majority initially went on to hold, in a single sentence at the end of the opinion, that “the requirements of [Rule] 23(b)(3) ha[d] also been satisfied for these claims.” See Brown v. Nucor Corp., No. 08-1247, slip op. at 19 (4th Cir. Aug. 7, 2009). Nucor then petitioned for rehearing en banc, arguing, among other things, that neither the lower court nor the parties had previously analyzed the Rule 23(b) issue. See Nucor Pet. for Reh’g at 9, Brown I, 576 F.3d 149 (No. 08-1247), ECF No. 53. In response, the Brown I panel amended its opinion and excised any mention of Rule 23(b)(3). See Order, Brown v. Nucor Corp., No. 08-1247 (4th Cir. Oct. 8, 2009). One can easily discern why the opinion was amended: Brown I could not decide a fact-intensive issue -- that is, the predominance issue under Rule 23(b)(3) -when the parties had not yet argued it and the district court
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had not yet addressed it. See Transamerica Leasing, Inc. v. Instit. of London Underwriters, 430 F.3d 1326, 1332 (11th Cir. 2005) (explaining that the mandate rule and the broader law of the case doctrine “cannot apply when the issue in question was outside the scope of the prior appeal”). In fact, up to that point, Plaintiffs had never even sought certification under Rule 23(b)(3); they sought to certify only a Rule 23(b)(2) class or, in the alternative, a so-called “hybrid” action.
By removing any reference to Rule 23(b), Brown I left it to the district court to determine in the first instance whether Plaintiffs’ class met that provision’s requirements. The district court complied with both the letter and the spirit of Brown I, and it correctly took “into account [the] opinion and the circumstances it embrace[d].” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993); see also, e.g., Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1404-05 (9th Cir. 1993) (affirming district court’s decision not to order accounting or damages, despite appellate court’s instructions to “order an accounting and to award damages,” where district court acted in line with the “spirit” of the mandate). An appellate mandate “does not reach questions which might have been decided but were not.” United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008). And “[w]hile a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other
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issues.” Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939). Simply put, the Brown I mandate did not apply to Rule 23(b)(3), nor could it.
On remand after Brown I, the district court initially certified the two promotions classes under Rule 23(b)(3). The court later reconsidered, as it was entitled to do under Rule 23, which provides that “[a]n order that grants or denies class certification may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C); see also Fed. R. Civ. P. 54(b). “[C]ertifications are not frozen once made,” Amgen, Inc., 133 S. Ct. at 1202 n.9, and a district court has “considerable discretion to decertify the class,” Cent. Wesleyan Coll. v. W.R. Grace & Co., 6 F.3d 177, 189 (4th Cir. 1993). See also PradoSteiman ex rel. Prado v. Bush, 221 F.3d 1266, 1273 (11th Cir. 2000). The district court could revisit its interlocutory decision regardless of whether, as the majority puts it, “new facts or legal precedent [arose] after Brown I.” Maj. op. at 59.
In effect, the majority today certifies a Rule 23(b)(3) class action without any court ever finding that the Rule 23(b)(3) requirements are satisfied. It cannot genuinely contend that Brown I did the work, as “the Fourth Circuit has never allowed the rigorous Rule 23 analysis to be accomplished implicitly.” Partington v. Am. Int’l Specialty Lines Ins. Co.,
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443 F.3d 334, 341 (4th Cir. 2006). And the district court ultimately did not make such a finding either. The majority’s decision to certify in part on this illusory mandate, then, substantially damages Rule 23(b)(3)’s “vital prescription.” Amchem, 521 U.S. at 623. The Supreme Court recently reminded us that “plaintiffs wishing to proceed through a class action must actually prove -- not simply plead -- that their proposed class satisfies each requirement of Rule 23, including . . . the predominance requirement of Rule 23(b)(3).” Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2412 (2014). At least as to predominance, Plaintiffs have yet to prove anything.
* * * * Plaintiffs did not challenge the district court’s predominance ruling and do not credibly explain why they failed to do so. The district court’s decision should therefore be affirmed on that basis alone.
II. Relevant Standards Even ignoring Plaintiffs’ waiver of the predominance issue, they have not established that the district court abused its discretion in finding insufficient commonality. To see why, it is first necessary to recognize the standard that appellate courts use in reviewing a district court’s class-certification decision. Then, the standard that the district court used in
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evaluating the evidence at the certification stage must be considered.
A. 1. A district court’s ultimate class-certification decision -that is, how it applied the Rule 23 factors -- is reviewed for an abuse of discretion. See, e.g., EQT Prod. Co., 764 F.3d at 357; Ward, 595 F.3d at 179; Monroe v. City of Charlottesville, Va., 579 F.3d 380, 384 (4th Cir. 2009); Gregory v. Finova Capital Corp., 442 F.3d 188, 190 (4th Cir. 2006). But reciting the standard is not enough; there must be genuine respect and adherence paid to the limits that it imposes. The abuse-of-discretion standard does establish some substantial limits, representing “one of the most deferential standards of review.” Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir. 2001). Under it, the appellate court may reverse only when “the [trial] court’s exercise of discretion, considering the law and the facts, was arbitrary and capricious.” United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995). We act only when the decision could not “have been reached by a reasonable jurist,” or when we may call it “fundamentally wrong,” “clearly unreasonable, arbitrary, or fanciful.” Bluestein v. Cent. Wis. Anesthesiology, S.C., 769 F.3d 944, 957 (7th Cir. 2014); accord Am. Copper & Brass, Inc. 80

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v. Lake City Indus. Prods., Inc., 757 F.3d 540, 543 (6th Cir. 2014) (characterizing review of a class certification decision as “very limited”).
Of course, deference does not equal blind acceptance. If, for instance, the district court entirely fails to undertake some part of the requisite analysis, then it may be appropriate to reverse. See, e.g., EQT Prod., 764 F.3d at 371 (vacating and remanding a certification order where the district court failed to conduct an appropriately rigorous analysis of Rule 23’s requirements). But when our review ventures into intensely factual matters or areas of practical concern, then our deference must be at its greatest -- indeed, we must stand aside in those circumstances unless the lower court was “clearly wrong.” Windham, 565 F.2d at 65; accord CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014) (“[A]s long as the district court applies the proper Rule 23 standard, we will defer to its class certification ruling provided that decision falls within the bounds of rationally available choices given the facts and law involved in the matter at hand.”).
We do not then reverse anytime we disagree with the result that the district court reaches. See First Penn-Pac. Life Ins. Co. v. Evans, 304 F.3d 345, 348 (4th Cir. 2002). Rather, “the [abuse-of-discretion] standard draws a line . . . between the unsupportable and the merely mistaken, between the legal error,
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disorder of reason, severe lapse of judgment, and procedural failure that a reviewing court may always correct, and the simple disagreement that, on this standard, it may not.” Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (holding that the district court did not abuse its discretion where it “applied the correct legal standard and offered substantial justification for its finding”).
These principles might strike some as truisms, but they carry special force in the class-certification context. “Granting or denying class certification is a highly factintensive matter of practicality,” Monreal v. Potter, 367 F.3d 1224, 1238 (10th Cir. 2004), so much so that “[h]ighly factbased, complex, difficult matters” arise as a matter of routine, Amchem, 521 U.S. at 630 (Breyer, J., concurring in part and dissenting in part). Unsurprisingly, then, we give district courts “broad discretion in deciding whether to allow the maintenance of a class action.” Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976); see also Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 757-58 (4th Cir. 1998), vacated 527 U.S. 1031 (1999), reaff’d in relevant part, 206 F.3d 431 (4th Cir. 2000). As with any other decision that appellate courts review for abuse of discretion, we should affirm a certification decision even if we are convinced that “reasons clearly existed
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for taking the other course.” Lewis v. Bloomberg Mills, Inc., 773 F.2d 561, 564 (4th Cir. 1985); accord Simmons v. Poe, 47 F.3d 1370, 1382 (4th Cir. 1995).
2. An appellate court must be even more careful in reviewing any factual findings underlying the district court’s decision, as we review those only for clear error. Thorn, 445 F.3d at 317-18; see also Fed. R. Civ. P. 52(a)(6). “The clear error standard . . . protects district courts’ primacy as triers of fact.” Evans, 514 F.3d at 321. Our opinions have repeatedly emphasized that clear-error review is “narrow,” Walker v. Kelly, 593 F.3d 319, 323 (4th Cir. 2010), “highly deferential,” Green v. Johnson, 515 F.3d 290, 301 (4th Cir. 2008), and “particularly circumscribed,” Jimenez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995). We may reverse findings reviewed under this standard only when, having reviewed the entire record, we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Heyer, 740 F.3d 284, 292 (4th Cir. 2014). If the district court chose between “two permissible views of the evidence,” or if it otherwise offered a “plausible” account of that evidence, Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985), then its factual findings are “conclusive,” Walker, 594 F.3d at 323. And as with the abuse-of-discretion standard, we cannot reverse merely
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because we would have decided the matter differently. See Anderson, 470 U.S. at 573.
3. Despite these deferential standards of review, the majority identifies reversible error in virtually every legal and factual judgment that the district court rendered. Yet in searching the majority’s opinion for any of the hallmarks of deference -explanations as to how the district court clearly erred, or full analysis of how the district court abused its discretion -- we find very little. In truth, the majority seems to apply just about every standard of review but a deferential one. For the most part, the majority offers bare statements that the district court erred, apparently because the district court decided things differently than the majority would have. For instance, it insists that Plaintiffs’ statistical evidence is simply “less precise” and rejects out-of-hand the district court’s view that the evidence was “fundamentally unreliable.” Maj. op. at 18, 23. Likewise, it draws its own conclusions about the anecdotal evidence, reciting certain portions of certain affidavits and declaring them enough. It makes credibility determinations, categorically rejecting Nucor’s evidence as “self-serving,” id. at 25, or “coercive,” id. at 42, while embracing contrary statements from Plaintiffs because the majority finds them
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“credible,” id. at 41. And it offers its own notions about what is “plain,” id. at 29, “elementary,” id. at 39, or “common sense,” id. at 42. The majority does so even while decrying the dangers of “cherry pick[ing] facts from an 11,000 page record.” Id. at 41. In short, the majority opinion shows little respect for a district court that is far more familiar with each page of the record than we are.
Contravening our “axiomatic” rule against factual findings on appeal, Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310, 324 (4th Cir. 2014), the majority eventually finds in the first instance that “there is only one answer to the question of why Nucor’s black workers were consistently disfavored,” maj. op. at 45. This adventuresome approach is rather jarring when placed against the more measured methods found in some of our other class certification decisions. See, e.g., EQT Prod., 764 F.3d at 371 (remanding for further consideration of class certification after determining that district court misapplied the relevant standards); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004) (same). Making matters worse, the majority offers no good reason for it. Instead, it engages in a rather extended discussion of the Brown I dissent and then declares any attack on the majority’s factfinding today “iron[ic].” Maj. op. at 21.
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Too often, we fail to give standards of review the attention that they deserve. We see them recited in boilerplate and then dispensed with when the perceived exigencies of a case seem to call for it. But “[s]tandards of review are . . . an elemental expression of judicial restraint, which, in their deferential varieties, safeguard the superior vantage points of those entrusted with primary decisional responsibility.” Evans, 514 F.3d at 320-21. An appellate court should not be so quick to ignore them.
B. We must next consider the district court’s role in deciding the certification motion in the first place. The majority implies that the district court too readily dismissed Plaintiffs’ efforts to certify. But the district court was not just permitted to take a hard look at Plaintiffs’ submissions -it was required to.
1. Although plaintiffs shoulder the burden of demonstrating that a proposed class complies with Rule 23, the district court has an “independent obligation to perform a rigorous analysis to ensure that all of the prerequisites have been satisfied.” EQT Prod., 764 F.3d at 358. Among other things, this “rigorous analysis” requires the district court “to resolve a genuine legal or factual dispute relevant to determining the
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requirements.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008).
“[C]areful attention to the requirements of [Rule] 23 remains . . . indispensable” even in cases “alleging racial or ethnic discrimination.” E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405 (1977). Thus, “a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of [the Rule] have been satisfied.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (noting the “conventional rule[s] of civil litigation . . . generally appl[y] in Title VII cases”). And there is no “entitlement to class proceedings for the vindication of statutory rights,” Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013), Title VII included. Thus, the Court must be careful not to bend and twist the “rigorous analysis” that Rule 23 compels merely for the sake of abstract notions of Title VII’s objectives and purposes. Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979) (“[G]eneralized references to the ‘remedial purposes’ of [a statute] will not justify reading a provision more broadly than its language and the statutory scheme reasonably permit.”). To do so would not only ignore the
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Supreme Court’s warnings; it might also have unforeseen effects in the many other areas of law in which Rule 23 is implicated.
In basic terms, the rigorous-analysis standard tests whether plaintiffs have presented substantial evidence of compliance with Rule 23. Plaintiffs may “not simply plead” that the relevant requirements have been met, but must “actually prove” it. Halliburton, 134 S. Ct. at 2412; accord Monroe, 579 F.3d at 384. To meet that standard, plaintiffs must summon “evidentiary proof,” Comcast, 133 S. Ct. at 1432, and “affirmatively demonstrate [their] compliance with the Rule,” Wal-Mart, 131 S. Ct. at 2551. “[S]ome evidence” is not enough. In re Initial Pub. Offerings [“IPO”] Sec. Litig., 471 F.3d 24, 33 (2d Cir. 2006).
Before certifying a class action, courts will require a plaintiff to establish by a preponderance of the evidence that the action complies with each part of Rule 23. See In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 117 (2d Cir. 2013); Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012); Ala. Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 228 (5th Cir. 2008), abrogated in other respects by Halliburton, 134 S. Ct. 2398; accord In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328, 336 (D. Md. 2012); In re Mills Corp. Sec. Litig., 257 F.R.D. 101, 104 (E.D. Va. 2009); In re
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Safety-Kleen Corp. Bondholders Litig., No. 3:00-1145-17, 2004 WL 3115870, at *2 (D.S.C. Nov. 1, 2004); see also Anthony F. Fata, Doomsday Delayed: How the Court’s Party-Neutral Clarification of Class Certification Standards in Wal-Mart v. Dukes Actually Helps Plaintiffs, 62 DePaul L. Rev. 675, 681 (2013) (reading Wal-Mart to apply a preponderance-of-the-evidence standard).
2. “[T]he factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits.” Gariety, 368 F.3d at 366; accord In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 249 (D.C. Cir. 2013) (recognizing that certification will sometimes “resemble[] an appraisal on the merits”). Obviously, “[a] court may not say something like ‘let’s resolve the merits first and worry about the class later’ . . . or ‘I’m not going to certify a class unless I think that the plaintiffs will prevail.’” Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 677 (7th Cir. 2001), cited with approval in Wal-Mart, 131 S. Ct. at 2552. But overlap “cannot be helped,” as certification “generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Wal-Mart, 131 S. Ct. at 2551—52. Compare Brown I, 576 F.3d at 156 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), and refusing to inquire into Plaintiffs’ statistics because it would be an
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impermissibly “in-depth assessment of the merits”), with Wal-

Mart, 131 S. Ct. at 2552 & n.6 (admonishing courts not to

“mistakenly cite[]” Eisen for the incorrect idea that merits

inquiries are barred).

3.

Contrast these well-defined and rigorous standards with the

ambiguous and limitless ones found in the majority opinion. The

majority acknowledges the “rigorous analysis” that lower courts

must perform, but abandons that standard soon after mentioning

it.

Instead, it treats the evidentiary standard for

certification as one different from that required for a party to

prevail on the merits, never acknowledging that this view breaks

from the many courts (including those in our Circuit) that apply

the preponderance standard. Nor does it even tell us what a

“rigorous analysis” might consist of. Instead, it merely

invokes Amgen, a case that addresses what questions may be

considered on class certification, not what evidence will

suffice to answer them. 133 S. Ct. at 1194-95. Having rendered

the rigorous analysis less rigorous than other courts’ (though

to what degree, one does not know), the majority then proceeds

to apply its weakened test, repeatedly using mere allegations --

or, sometimes, allegations “proven” by allegations -- to justify

certification. See, e.g., maj. op. at 25, 33, 34, 39, 43, 45,

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50, 51, 62. The necessary implication is that the majority’s “rigorous analysis” consists of very little.
One finds a further hint at the level of proof that the majority means to apply when it embraces Brown I’s metric. Maj. op. at 16-17. Brown I held that “allegations” of disparate treatment were enough to establish commonality, a conclusion at odds with Wal-Mart. Compare Brown I, 576 F.3d at 153, with WalMart, 131 S. Ct. at 2553 (distinguishing between an “otherwise unsupported allegation” and the “significant proof” required to establish a common policy). The majority in Brown I also said that anecdotes from three employees concentrated in a single department proved a common policy of discrimination. 576 F.3d at 153. And it held that statistical evidence of “relatively weak probative value” was enough, even though problems in that evidence -- the statistical evidence seen here -- might “very well discredit” it at some later stage. Id. at 156 & n.10. In short, Brown I required the plaintiffs to summon an exceptionally low, almost non-existent level of proof at the class-certification stage.
The majority’s decision to reanimate Brown I’s negligible evidentiary standard leaves this circuit alone on an island. The Brown I majority suggested that its lenient view of the necessary evidence aligned with the Second Circuit’s decision in Caridad v. Metro-North Commuter Railroad, 191 F.3d 283 (2d Cir.
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1999). See Brown I, 576 F.3d at 157 (citing Caridad, 191 F.3d at 293). But by the time Brown I was issued, the Second Circuit had already repudiated any part of Caridad suggesting a lesser burden of proof than a preponderance of the evidence. See In re IPO, 471 F.3d at 42 (“[O]ur conclusions necessarily preclude the use of a ‘some showing’ standard, and to whatever extent Caridad might have implied such a standard for a Rule 23 requirement, that implication is disavowed.”). Only one circuit followed Brown I’s lead and accepted such a low degree of proof: the Ninth Circuit, in its now-reversed decision in Dukes v. Wal-Mart Stores, Inc. See 603 F.3d 571, 595-96 & n.17 (9th Cir. 2010). (citing Brown I, 576 F.3d at 156). In the meantime, another circuit rejected Brown I outright. See Bennett, 656 F.3d at 816 n.2 (declining to “follow” Brown I’s finding that sufficient evidence established commonality, as “Brown[ I] was decided without the benefit of the Supreme Court’s recent opinion in Dukes”).
All in all, despite assurances otherwise, the majority treats Rule 23 as something akin to a pleading standard. It is not. See Wal-Mart, 131 S. Ct. at 2551. Were the rule written as the majority envisions it, district courts would get to “duck hard questions.” West v. Prudential Sec., Inc., 282 F.3d 935, 938 (7th Cir. 2002). But framing class certification as a mere pleading standard “amounts to a delegation of judicial power to
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the plaintiffs.” Id. “[A] district court’s certification order often bestows upon plaintiffs extraordinary leverage, and its bite should dictate the process that precedes it.” Oscar Private Equity Invs. v. Allegiance Telecom, Inc., 487 F.3d 261, 267 (5th Cir. 2007), abrogated in other respects by Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179 (2011).

III. Commonality

With the proper standards in mind, it becomes evident that

the district court did not abuse its discretion in finding that

Plaintiffs failed to establish commonality.

“In this case, proof of commonality necessarily overlaps

with [Plaintiffs’] merits contention that [Nucor] engages in a

pattern or practice of discrimination.” Wal-Mart, 131 S. Ct. at

2552.

Plaintiffs must establish a unifying policy of

discrimination at certification, or “it will be impossible to

say that examination of all the class members’ claims for relief

will produce a common answer to the crucial question [of] why

was I disfavored.” Id. In other words, Plaintiffs cannot

simply identify a group of people who they allege have suffered

some type of Title VII injury. Id. To certify the class,

Plaintiffs must be able to trace that injury to a single, common

source. Id.; accord Ellis v. Costco Wholesale Corp., 657 F.3d

970, 981 (9th Cir. 2011); see also William B. Rubenstein,

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Newberg on Class Actions § 3:19 (5th ed. 2014) (citing Brown I

as an example of a case that approached commonality “loosely”

and explaining that Wal-Mart articulated “a more explicit

definition of commonality”). Plaintiffs here must identify a

common policy with common injury to members of a class spanning

more than a decade, covering Nucor’s entire South Carolina

production facility, and touching upon dozens of relevant

decisionmakers.

That task can be decidedly difficult,

especially given that Plaintiffs premise their class in part on

a disparate treatment theory. See Stastny v. S. Bell Tel. &

Tel. Co., 628 F.2d 267, 274 n.10 (4th Cir. 1980); see also

Garcia v. Johanns, 444 F.3d 625, 633 (D.C. Cir. 2006)

(“Establishing commonality for a disparate treatment class is

particularly difficult where, as here, multiple decisionmakers

with significant local autonomy exist.”).

A plaintiff who brings a class-wide charge of

discrimination must traverse a “wide gap” between his claim of

individual mistreatment and a class-wide harm. Falcon, 457 U.S.

at 157. The plaintiff could do so in one of two ways. See Wal-

Mart, 131 S. Ct. at 2553. First, he might identify a “biased

testing procedure” that is used to evaluate applicants and

employees. Id. By all accounts, Plaintiffs do not identify

that sort of procedure here. Second, a plaintiff might offer

“significant proof” that an employer “operated under a general

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policy of discrimination . . . [that] manifested itself in

hiring and promotion practices in the same general fashion.”

Id. This second route forms the focus of this case.

Plaintiffs offer two types of evidence that they say bridge

the gap between individual and class-wide claims: statistical

evidence and anecdotal evidence. Whether examining these two

categories of evidence separately or together, the district

court did not abuse its discretion in deeming the Plaintiffs’

case insufficient.

A. Statistical Evidence

1.

Plaintiffs first present a statistical study comparing a

hypothesized, weighted benchmark of black bidders for promotions

to the number of black employees that they assumed Nucor

promoted during the relevant period. This evidence performs a

double duty, as it goes to Plaintiffs’ disparate impact claim

and their disparate treatment claim.

As to the disparate impact claim, this sort of statistical

evidence should identify disparities that are “sufficiently

substantial” to raise “an inference of causation.” Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 281 (4th Cir.

2005).

Without “substantial” disparities, we cannot be

confident that a challenged policy produced an injury common to

the class. See Wal-Mart, 131 S. Ct. at 2551.

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As to the disparate treatment claim, “gross statistical

disparities” “may in a proper case constitute prima facie proof

of a pattern or practice of discrimination.” Hazelwood Sch.

Dist. v. United States, 433 U.S. 299, 307-08 (1977); accord

Ardrey v. United Parcel Serv., 798 F.2d 679, 683 (4th Cir.

1986). But see Warren v. Halstead Indus., Inc., 802 F.2d 746,

753 (4th Cir. 1986) (“[S]tatistics cannot alone prove the

existence of a pattern or practice of discrimination[.]”). But

not every case will present the truly egregious and unexplained

disparities that leave no room for any inference other than

intentional discrimination.

Moreover, “[i]nferring past

discrimination from statistics alone assumes the most dubious of

conclusions: that the true measure of racial equality is always

to be found in numeric proportionality.” Md. Trooper Ass’n,

Inc. v. Evans, 993 F.2d 1072, 1077 (4th Cir. 1993).

2.

The majority observes that Plaintiffs’ evidence is

“statistically significant at 2.54 standard deviations from what

would be expected if race were a neutral factor.” Maj. op. at

28. Statistical significance, however, is a necessary but not

sufficient condition to finding a discriminatory practice or

policy; statistical significance does not axiomatically equate

with legal significance. See EEOC v. Fed. Reserve Bank of

Richmond, 698 F.2d 633, 648 (4th Cir. 1983) (“[S]tatistical

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significance as measured by the standards of acceptable statistical principles will not necessarily be legally significant[.]”), rev’d sub nom on other grounds, Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984). High statistical significance levels might lack practical and legal significance, for instance, because “a high significance level may be a misleading artifact of the study’s design.” Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 362 (7th Cir. 2001). Thus, determining what is legally significant -- as opposed to statistically significant -- “is a legal determination properly made by the court and not by an expert.” Fed. Reserve Bank of Richmond, 698 F.2d at 648; cf. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 706 n.29 (D.D.C. 2006) (criticizing one of Plaintiffs’ experts for his undue reliance on statistical significance).
Nevertheless, the majority seems to defer to Plaintiffs’ experts and assume legal significance because the statistical evidence crosses the two-standard-deviation threshold, the threshold for statistical significance at a 95% confidence level. Yet “courts of law should be extremely cautious in drawing any conclusions from standard deviations in the range of one to three.” EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1192 (4th Cir. 1981); see also Kingsley R. Browne, Statistical Proof of Discrimination: Beyond “Damned Lies”, 68 Wash. L. Rev. 477, 503
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(1993) (“Random disparities of this magnitude are pervasive in the workplace and are not suggestive of a nonrandom cause, let alone an illegal one.”). In specific cases, even higher numbers may not be enough. EEOC v. Western Electric Co., Inc., 713 F.2d 1011 (4th Cir. 1983), provides one example. There, we held that a district court clearly erred in finding a policy or practice of discrimination, even though statistics showed overall disparities of 4.7955 and 5.883 standard deviations. Id. at 1018-19.
Similarly, other courts have rejected statistical evidence even though the evidence met the two-standard-deviation threshold. See, e.g., Carpenter, 456 F.3d at 1201 (7.95 and 38.03 standard deviations); Lopez v. Laborers Int’l Union Local No. 18, 987 F.2d 1210, 1213-14 (5th Cir. 1993) (3.26 and 3.01 standard deviations); Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1376 (2d Cir. 1991) (2.68 standard deviations); EEOC v. Chi. Miniature Lamp Works, 947 F.2d 292, 300 (7th Cir. 1991) (20.1 standard deviations); Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 551 (9th Cir. 1982) (2.45 standard deviations). In short, “there is nothing magical about two or three standard deviations.” Ramona L. Paetzold & Steve L. Willborn, The Statistics of Discrimination § 4:13 (2014).

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3. Instead of assuming “that any particular number of ‘standard deviations’” establishes a discriminatory policy, courts must evaluate statistical evidence on a “case-by-case basis.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3 (1988) (plurality opinion); see also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977). Neither “courts [n]or defendants [are] obliged to assume that plaintiffs’ statistical evidence is reliable.” Watson, 487 U.S. at 996. And we must always keep in mind that we are looking for reliable indications of “gross” or “substantial” disparities that amount to “significant proof.” Wal-Mart, 131 S. Ct. at 2551, 2553; Hazelwood, 433 U.S. at 307-08. The duty to test the relevant statistical evidence attaches at the class certification stage, Comcast, 133 S. Ct. at 1433, as “reliance on unverifiable evidence is hardly better than relying on bare allegations,” Unger v. Amedisys, Inc., 401 F.3d 316, 324 (5th Cir. 2005). District courts must probe the validity of statistical evidence, as “any method of measurement” would otherwise become “acceptable so long as it c[ould] be applied classwide, no matter how arbitrary the measurements may be.” Comcast, 133 S. Ct. at 1433; accord Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d at 254; Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010).
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In this case, the district court evaluated Plaintiffs’ statistical evidence, reasonably found it wanting, and explained in detail why that was so. It should not then be said that the district court clearly erred by refusing to give weight to unconvincing evidence. And when one takes a closer look, Plaintiffs’ statistical evidence truly is fundamentally unconvincing, not just -- as the majority calls it -- “less precise.” Maj. op. at 18.
4. “[T]rial judges may evaluate the data offered to support an expert’s bottom-line opinions to determine if that data provides adequate support to mark the expert’s testimony as reliable.” Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011). And in any case involving expert testimony, “a court may conclude that there is simply too great an analytical gap between the data and the opinion offered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Plaintiffs’ own experts conceded that they used problematic data. In support of a motion to compel, one of Plaintiffs’ experts affirmed under oath that the information he had received thus far was “incomplete in a number of important ways that ma[d]e it impossible to calculate reliable statistics.” J.A. 399. Because of this “inadequate” data, the expert opined that he could not calculate “proper statistics” or perform “any of
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th[e] three standard forms of statistical analysis.” J.A. 403, 409. Without additional data, it was concededly “impossible to calculate . . . statistical patterns that might show whether or not a common issue of fact exists in this case.” J.A. 403-04. Ultimately, the expert did not receive any of the additional data that he professed to need for a scientifically valid analysis. But, despite his sworn statements that the task was “impossible,” he and another expert nevertheless produced statistical analyses based on the “incomplete” and “inadequate” data.
Plaintiffs’ experts’ report confirms that they used incomplete data to support and reach their conclusions. For instance, even though the experts drew conclusions about positions throughout the Nucor plant, they did not employ any data from either the shipping or maintenance departments. J.A. 1154. They used only a “limited amount of data” for the remaining departments. J.A. 1153. And although Plaintiffs’ experts chose to use bidding data to determine an expected number of black promotions, they conceded that incomplete data “undermined” their “ability to use posting and bidding records to analyze [those] promotions.” J.A. 1161. Nucor’s expert identified other basic issues in Plaintiffs’ experts’ data that the majority opinion ignores. See J.A. 5892. For instance, Plaintiffs’ experts included a promotion won by an external
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candidate in their pool -- even though this case only concerns

internally filled promotions. They further overlooked seven

selections of black employees for promotions. See J.A. 5891.

The district court did not clearly err in discrediting this

incomplete work and deeming it unworthy of evidentiary weight.

5.

a.

To further understand why Plaintiffs’ statistical evidence

is problematic, it helps to consider how it came about. In

discovery, Nucor produced bidding packets and other promotion-

related applicant data covering certain promotions from January

2001 to February 2006. Plaintiffs’ analysis of the 2001-2006

data indicated that the black selection rate fell only 0.84

standard deviations from the mean -- a statistically

insignificant result.

See J.A. 5872.

Fortunately for

Plaintiffs, the district court limited the use of the actual

data to the January 2001 to December 2003 period. But an

analysis of that period’s data did not produce a statistically

significant disparity, either. At best, analysis of the 2001-

2003 data produced disparities falling only 1.53 standard

deviations from the mean. See J.A. 1449.

Left with no results from actual records that suggested

discrimination, Plaintiffs’ experts set about creating

extrapolated “benchmark” figures for promotions bidding between

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December 1999 and January 2001. They began by using so-called “change-of-status” forms plucked from personnel records to identify 27 purported promotions during the period. The experts then constructed a hypothetical bidding pool by essentially guessing that bidders in early years were racially identical to bidders in later ones. See J.A. 1162. With their theoretical promotion and bid figures established, Plaintiffs’ experts then calculated an expected black promotion rate and compared it to the “actual” black promotion rate for the same period. Tied with the actual promotions figures from 2001 through 2003, Plaintiffs’ extrapolated figures produced the number on which the majority now relies -- 2.54 standard deviations.
b. Plaintiffs’ experts, however, based their extrapolations on several erroneous assumptions that render their model unreliable. It begins with the change-of-status forms, which Nucor used to record any change of employee status. Because the forms also recorded demotions, pay increases, reassignments, and transfers, one cannot and should not assume that every form reflects a posted promotion. But up to the time that the district court decertified the promotions classes, Plaintiffs had never provided the 27 relevant change-of-status forms to the district court. Quite understandably, the district court wanted more
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concrete assurance that Plaintiffs’ selected forms showed actual promotions. The district court never got that assurance, and it was “not inclined” to “take [Plaintiffs’] word for it.” J.A. 10943. Plaintiffs did eventually submit the 27 relevant changeof-status forms -- but only after the district court decertified the promotions classes. As it turns out, those forms do little to dispel the concern that Plaintiffs misidentified promotions. For example, two forms seem to show transfers, not promotions, J.A. 11006 (Reynolds), 11028 (Forsell), while another just reflects training, J.A. 11029 (Green). Others do not involve pay raises, suggesting no promotion occurred. See J.A. 11006 (Haselden), 11030 (Cooper). Certain other forms are ambiguous, failing to indicate whether pay rates changed or what the nature of the position change was. See, e.g., J.A. 11022 (Anderson), 11024 (Proskine), 11025 (Pope). Most of the forms fail to indicate whether Nucor posted the relevant opening for bidding. See, e.g., J.A. 11006-15, 11019-21, 11023, 11026-32. So, the district court was reasonably concerned that the 27 purported promotions -- representing nearly half of the promotions in Plaintiffs’ statistical analysis -- were suspect and statistically useless.
The problems with Plaintiffs’ experts’ model continue to mount when the hypothesized bidding pools for the purported promotions are examined. Plaintiffs’ experts hypothesized that
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at least one black employee bid on each of the 27 assumed promotion opportunities. But that approach rejects the prospect of an all-white bidding pool during the projected period, something likely to randomly happen from time to time given Nucor’s 11% black workforce. Consequently, Nucor’s expert concluded that Plaintiffs’ experts’ model “overstat[ed] the expected number of African American selections” between December 1999 and January 2001, as the model very likely inflated the number of black bidders. J.A. 5912. And indeed, Plaintiffs’ experts calculated that black workers applied to jobs at a substantially higher pace than their actual percentage of the workforce, further suggesting some degree of inflation. Compare J.A. 1157 (noting that workforce was “11.3% African-American”), with J.A. 1162 (“The racial composition of the bidders . . . was 19.24% African-American.”).
An “inflated pool” like the one that Plaintiffs used “can undermine the validity of a statistical study to determine imbalances.” Smith v. Va. Commonwealth Univ., 84 F.3d 672, 677 (4th Cir. 1996). When a statistical model overestimates the number of black bidders, for instance, then black bidding rates artificially rise and black selection rates artificially fall. These effects might explain, for instance, why the black bidder selection rate for January 2001 to December 2003 -- when actual data was available -- was three times higher than the calculated
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selection rate for December 1999 to January 2001 -- when projected data was used. If, during the projected period, the hypothesized number of black bidders in the pool (artificially) rose while the number of black bidder selections stayed the same, then the hypothesized black selection rate would be (artificially) driven down during the projected period.
c. The majority nevertheless dubs the extrapolated data “sound.” Maj. op. at 17. That conclusion, however, reflects an unwillingness to confront genuine concerns over statistical validity. For instance, although admitting that the change-of-status forms are ambiguous, the majority blames Nucor for not explaining how these ambiguities would affect Plaintiffs’ statistical accuracy. Maj. op. at 22. That burden was not Nucor’s. Cf. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (noting that the “proponent of the testimony” bears the burden of proving that it is reliable). Recently, for example, the Court affirmed a district court’s refusal to consider statistical evidence offered to show disparate impact because the evidence contained a number of “mistakes and omissions” in its analysis. EEOC v. Freeman, 778 F.3d 463, 467 (4th Cir. 2015). The Court did so even though the plaintiff there raised the very same argument that the majority now
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embraces: that the employer never “show[ed] that correcting the errors would negate the disparate impact.” Brief for Appellant at 26, Freeman, 778 F.3d 463 (No. 13-2365), 2014 WL 320746. The Court appropriately rejected that argument then; it should have done the same now.
Rather than focusing on the reliability of the extrapolated statistics, the majority prefers to revisit the Brown I dissent. See maj. op. at 20-21. That dissent noted some of the concerns mentioned here: not all change-of-status forms used to extrapolate openings reflect promotions, many forms are unclear, and few forms indicate whether positions were posted. See Brown I, 576 F.3d at 168 (Agee, J., concurring in part and dissenting in part). To illustrate these concerns, the dissent examined “the change-of-status forms found in the record for 2000.” Id. Bear in mind that, at least up to that point, Plaintiffs had never produced the particular change-of-status forms that they relied upon to guesstimate their statistics. Nor had they informed the Court that the forms in the record were not those upon which they based their statistical evidence. So, the Brown I dissent used the only change-of-status forms that were available to assess whether they could credibly support Plaintiffs’ alleged statistical disparities. Id. Although the majority labels this exercise “sua sponte fact-finding,” maj.
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op. at 21, the discussion in the Brown I dissent consisted of nothing more than explication by example.
The majority then attempts to tie the district court’s decertification decision to the “error” that the majority mistakenly identifies in the Brown I dissent. According to the majority, the district court committed “clear factual error” by assuming that the change-of-status forms discussed in the Brown I dissent were those that Plaintiffs relied upon to build their statistical model. But here’s the rub: the district court expressly disclaimed that very assumption. The district court noted that, at the time of decertification, Plaintiffs still had not produced the relevant forms. So, it had “never seen the 27 change-of-status forms upon which [Plaintiffs’] experts apparently relied.” J.A. 10943. Thus, the district court cited the Brown I dissent only to emphasize the potential problems inherent in using the forms and why it needed to see them. See J.A. 10942-43. The majority’s protracted discussion of the Brown I dissent therefore does nothing to rehabilitate Plaintiffs’ evidence, resting as it does on a twofold misreading of the Brown I dissent and the district court’s decertification decision.
Nor does the majority explain why inflated black bidding rates can be excused. Rather than address that obstacle, the majority assures the reader that the problem causes only “an
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incremental reduction in probative value” that does not “fatally undermine the probativeness of the experts’ findings.” Maj. op. at 23. But it is hard to minimize these defects so quickly when Plaintiffs’ experts offered few explanations for their assumptions or any assessment of the expected impact of those assumptions. The experts did not say, for instance, whether black bidding rates varied during the years for which data was available. If they had shown that the rates remained steady, then one might assume that those same rates applied to the extrapolated years. But if the rates varied, then Plaintiffs’ experts’ assumptions are not sustainable. Oddly, the majority again blames Nucor for not summoning any evidence going to variation, but that tack once more reverses the burden of proof. “It is the plaintiffs’ burden to demonstrate compliance with Rule 23,” not Nucor’s. EQT Prod., 764 F.3d at 358. The majority further finds that Plaintiffs’ experts reasonably assumed that “every” position was posted for bidding. But Plaintiffs themselves submitted testimony identifying several unposted positions. See, e.g., J.A. 1010, 1051, 1091, 1110. Nucor’s stated policies also indicated that, at least for a time, “[v]acant supervisory positions [were] not [to] be posted for bidding.” J.A. 257.
The majority stresses that, as a general matter, plaintiffs may employ extrapolated data to prove discrimination. Maj. op.
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at 18-19. That can be true in some cases, but extrapolated data must still be statistically valid. And the majority ignores a significant and telling distinction between this case and past ones: Plaintiffs’ experts extrapolated two data points -- the composition of the applicant pool and the success rates -– whereas experts in our prior cases only extrapolated one data point. See Lewis, 773 F.2d at 568; United States v. Cnty. of Fairfax, Va., 629 F.2d 932, 940 (4th Cir. 1980).
The majority’s cited cases also involved defendants who wrongfully destroyed relevant evidence. See Lewis, 773 F.2d at 568 (noting that the defendant “improperly disposed” of applicant records); Cnty. of Fairfax, 629 F.2d at 936 n.4 (noting that the defendant destroyed applicant data “[i]n violation of the record keeping regulations of [two statutes]”). In a situation involving spoliation of evidence, the Court commonly draws adverse inferences against the spoliators. But this record contains no evidence of spoliation.
Regardless, no authority requires the district court to find extrapolated data convincing in every case. Our precedent holds just the opposite. In Allen v. Prince George’s County, 737 F.2d 1299, 1306 (4th Cir. 1984), for example, the district court relied solely upon actual applicant flow data “to the exclusion of all [other] statistical evidence,” including evidence crafted from alternative benchmarks. We affirmed,
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emphasizing that we could not “second-guess” a fact-bound decision concerning “the relative weights to be accorded to the parties’ respective evidence.” Id. The district court here did essentially the same thing as the district court in Allen, giving weight for good reason to the actual data available to the exclusion of the speculative extrapolation evidence. As in Allen, we should not say that the district court clearly erred in doing so.
6. a. Plaintiffs’ statistical evidence also does not apply controls for non-discriminatory factors that could very well have caused any observed disparities. See Lowery, 158 F.3d at 764. Seniority, for instance, influences promotions decisions at Nucor. See, e.g., J.A. 257. Disciplinary issues also led Nucor to reject certain applicants for promotion -- including frequent bidder Jason Guy, who is black. See J.A. 659-67; see also Coates v. Johnson & Johnson, 756 F.2d 524, 544 n.20 (“[A]n employee’s prior discipline record seems likely to be a major, if not the most important, factor in [an employment] decision.”). But Plaintiffs’ experts admitted that they did not control for these or any other “additional factors beyond the control for each job posting.” J.A. 1164. The majority would wish these considerations away, reasoning that Nucor never 111

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raised them. But Nucor’s expert noted the need to “control for characteristics that would seem to affect the chance of selection,” which would include matters like seniority and discipline. See J.A. 5893. Anyway, we could have affirmed the district court’s decision here on “any basis supported by the record.” Defenders of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 392 (4th Cir. 2014).
The majority also tries to summon its own justifications for these omissions, implying that records were not available to control for matters like discipline. Maj. op. at 25. Even Plaintiffs’ experts conceded that they were. See J.A. 1165 (acknowledging that Nucor had maintained and produced “bidders’ training, discipline, and bidding records”); see also J.A. 5893 (Nucor’s expert observing that “separate discipline and training files [were] provided to Drs. Bradley and Fox and [him]”). And, based on allegations and personal assessments from Plaintiffs themselves, the majority assumes that potential explanatory variables are themselves racially biased. See maj. op. at 2526. Yet here again, Plaintiffs’ experts do not assume so, perhaps because there is no concrete evidence of such taint in the record. See Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365, 375 (2d Cir. 1989) (holding that district court correctly required the plaintiffs to account for potential explanatory variable where the plaintiffs alleged but did not
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prove that the variable was biased). And even if one were to

indulge the majority’s assumption that discipline at Nucor was

itself biased, that outcome would not justify excluding the

variable from the statistical model completely. “[T]ainted

variables should not be routinely excluded from the regression

equation. Instead, the effects of the inclusion of a tainted

variable must be assessed and minimized.” Paetzold & Willborn,

supra, § 6:13. The majority’s reasons, then, do not fill the

gaps in Plaintiffs’ experts’ work.

The failure to control for non-race-related explanatory

variables “is sufficiently serious so as to weaken the

statistical study’s probativeness.” Lowery, 158 F.3d at 764;

see also Smith, 84 F.3d at 676; accord Rodriguez v. Nat’l City

Bank, 726 F.3d 372, 384-85 (3d Cir. 2013); Morgan v. United

Parcel Serv. of Am., Inc., 380 F.3d 459, 468 (8th Cir. 2004);

Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000); Sheehan v.

Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997); Penk

v. Or. St. Bd. of Higher Educ., 816 F.2d 458, 465 (9th Cir.

1987).

A trier of fact must determine whether racial

discrimination -- rather than chance or some other “confounding

factor[]” -- caused an alleged disparity.

In re Navy

Chaplaincy, 738 F.3d 425, 440 (D.C. Cir. 2013). Only a

controlled model can provide that answer, and Plaintiffs’

experts’ evidentiary model did not meet that definition.

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b. In most every employment case, a valid statistical model must account for one particularly important explanatory variable: the applicant pool’s qualifications. “[T]he relevant comparison is between the percentage of minority employees and the percentage of potential minority applicants in the qualified labor pool.” Carter v. Ball, 33 F.3d 450, 456 (4th Cir. 1994); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 50102 (1989); McNairn v. Sullivan, 929 F.2d 974, 979 (4th Cir. 1991). If courts were to accept statistical models containing unqualified applicants, then employers could be punished merely because of a “dearth of qualified nonwhite applicants (for reasons that are not [the employers’] fault).” Wards Cove Packaging Co. v. Atonio, 490 U.S. 642, 651 (1989). Thus, “statistics based on an applicant pool containing individuals lacking minimal qualifications for the job [are] of little probative value.” Watson, 487 U.S. at 997; see also Paetzold & Willborn, supra, § 4:3 (“[W]hen considering potential discrimination in promotions within an organization, only employees qualified for promotion should be considered in the proxy pool.”). Furthermore, “[n]o rational enterprise that has several qualified candidates for a position selects among them by lot; it picks the best qualified.” Mason v. Cont’l Ill. Nat’l Bank, 704 F.2d 361, 364 (7th Cir. 1983). So, a truly
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effective statistical model will not just account for minimum qualifications, but should control for the variations in skills even among minimally qualified applicants.
By this point, Plaintiffs and their experts should have known better than to ignore other explanatory factors. In a related case challenging promotions practices at a different Nucor facility, the Eighth Circuit found that similarly substandard work from the same expert did not create a triable question of fact on summary judgment. See Bennett, 656 F.3d at 812. In so holding, the Eighth Circuit emphasized that the expert’s statistics had “little force” because they “assumed that all applicants were qualified for promotion to each available position.” Id. at 818. The Eighth Circuit is not alone. Other courts have criticized Plaintiffs’ principal expert for employing his “warm body hypothesis,” which “assumes that every person is just as qualified and skilled and experienced as everyone else.” Davis v. Ala. Dep’t of Educ. Dep’t of Disability Determination Serv., 768 F. Supp. 1471, 1477 (N.D. Ala. 1991); accord Adams v. Austal, U.S.A., L.L.C., No. 08–00155–KD–N, 2011 WL 1558790, at *8 (S.D. Ala. Apr. 25, 2011); Rollins v. Ala. Cmty. Coll. Sys., No. 2:09cv636–WHA, 2010 WL 4269133, at *8-9 (M.D. Ala. Oct. 25, 2010); Bennett v. Nucor Corp., No. 3:04CV00291 SWW, 2007 WL 2333193, at *3 (E.D. Ark. Aug. 13, 2007); Yapp v. Union Pac. R.R. Co., 229 F.R.D. 608, 619
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(E.D. Mo. Aug. 5, 2005); Rhodes v. Cracker Barrel Old Country Store, Inc., No. Civ.A. 4:99–CV–217–H, 2002 WL 32058462, at *65 (N.D. Ga. Dec. 31, 2002). We even affirmed a district court’s choice to exclude work from the same expert precisely because he did not incorporate adequate controls. See Anderson, 406 F.3d at 262-63 (agreeing with the district court’s view that the expert had ignored “actual job performance or job requirements” even though he “conceded” that he could have “use[d] a control factor that would control for the actual job title or the job duties”).
Plaintiffs’ experts assumed that all persons in each bidding pool were equally qualified because “only persons who decided to bid based on the posted qualifications were included.” J.A. 1162. This opaque language obscures another faulty assumption built into the model: the experts assumed that only qualified persons applied for each promotion opportunity. It takes no expertise to comprehend that some people “might be discouraged from applying because of a self-recognized inability to meet the [opening’s] standards.” Dothard v. Rawlinson, 433 U.S. 321, 330 (1977). But one could hardly assume that every job applicant is so discerning, and even the majority seems unwilling to make that assumption. See maj. op. at 25. The majority prefers to guess that the number of unqualified applicants will be so trivially small as to be statistically
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irrelevant, and it makes that guess simply because the job

announcement includes job requirements. In practical effect,

the majority has read the “qualified applicants” limitation

found in our prior cases out of the law, as most every job

opening provides some minimal description of what skills are

required.

“A statistical study that fails to correct for explanatory

variables, or even to make the most elementary comparisons, has

no value as causal explanation[.]” People Who Care v. Rockford

Bd. of Educ., 111 F.3d 528, 537 (7th Cir. 1997). Plaintiffs

presented just such a study here, and the district court did not

clearly err in rejecting it.

7.

Lastly, Plaintiffs’ statistical evidence improperly

aggregates data in a way that distorts the results.

a.

The objective in a class action -- even in a proceeding

that alleges disparate treatment -- is to identify a common,

uniform policy.

“While in a case alleging intentional

discrimination, such as this one, a plaintiff need not isolate

the particular practice and prove that such practice caused the

discrimination, plaintiffs must make a significant showing to

permit the court to infer that members of the class suffered

from a common policy of discrimination that pervaded all of the

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employer’s challenged employment decisions.” Love v. Johanns, 439 F.3d 723, 728 (D.C. Cir. 2006).
Thus, if the class challenges a policy implemented at the nationwide level, then plaintiffs might use applicable statistics showing nationwide disparities to establish the policy’s effects. Conversely, if the class challenges policies implemented on a plant-by-plant or department-by-department basis, then the class must summon statistics showing disparities at that level. Otherwise, non-uniform decisions made by one discriminatory decisionmaker might create disparities that, when aggregated with other, neutral decisions, misleadingly indicate discrimination across the whole group of decisionmakers.
Wal-Mart demonstrates these concepts well. There, the plaintiffs offered statistics purporting to show regional and national disparities in employment decisions at Wal-Mart. WalMart, 131 S. Ct. at 2555. Those decisions, however, were made at the store level. Id. at 2547. Because of that disconnect, the Supreme Court held that plaintiffs’ statistics did not establish a common policy. Once again, the broader disparities might have been “attributable only to a small set of Wal-Mart stores” and did not “establish the uniform, store-by-store disparity upon which plaintiffs’ theory of commonality depend[ed].” Id. at 2555. In essence, Wal-Mart agreed with our own, earlier cases indicating that statistics should not be
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aggregated together to create disparities that are not actually representative of the class as a whole. Compare Stastny, 628 F.2d 279-80 (requiring the plaintiffs’ statistics to focus on the “locus of autonomy”), with Elizabeth Tippett, Robbing a Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Emp. L.J. 433, 447 (2012), cited with approval by Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir. 2013) (explaining that Wal-Mart requires that plaintiffs’ statistics focus on “the locus of the subjective decision-making”).
In requiring the plaintiffs’ statistics to be centered at the level of relevant decisionmaking, Wal-Mart did not distinguish between nationwide and other class actions. Rather, Wal-Mart asked whether the plaintiffs there were too dissimilar to bring their claims together, regardless of how many claims there might be. Thus, courts have applied principles from WalMart in cases involving classes of roughly the same size as the class at issue here. See, e.g., Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013) (200 class members); Ealy, 514 F. App’x at 304-08 (150 class members). Even statisticians agree that Wal-Mart reaches classes big and small. See, e.g., Dr. Mary Dunn Baker, Class Certification Statistical Analysis Post-Dukes, 27 ABA J. Lab. & Empl. L. 471, 479 (2012) (“[T]he size of the putative class or the number of
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establishments the defendant operates will have little to do

with whether the Dukes commonality approach is applicable.”).

So, even though Plaintiffs here challenge practices in one

plant, they still must offer statistics showing disparities

among all the relevant decisionmakers, regardless of that one-

plant focus. See Rubenstein, supra, § 24:40 (“Courts have

certified [only] limited classes when the facts show that no

uniform personnel policies are applied among the various plants,

departments, or levels of employees.”).

b.

Here, as the Brown I majority agreed, the evidence

indicates “that each department manager” in each of Nucor’s six

production departments “has unbridled discretion to make

promotions within his department utilizing whatever objective or

subjective factors he wishes.” Brown I, 576 F.3d at 151.

Department managers took full advantage of that discretion,

developing processes that they recurrently characterized as

unique and independent. See J.A. 7887, 7894-95, 7900, 7906-07.

Indeed, these processes were so varied that one supervisor

declared that he had “no idea what other departments d[id].”

J.A. 8109.

Even the decisionmakers varied.

In some

departments, such as the hot mill and shipping departments,

supervisors and the department managers made promotion

decisions. In other departments, such as maintenance and the

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cold mill, promotions decisions were a more collaborative effort

involving even lower-level lead men.

These different

decisionmakers then applied different standards. In the beam

mill, for example, the process centered upon interviews alone.

In contrast, the melt shop looked to applicants’ work history,

safety record, psychological interview, job skills, training,

attendance, and scores on a job-specific aptitude test. Nucor’s

general manager quite reasonably described the promotions

processes when he said that “each department ha[d] their own way

of doing [promotions].” J.A. 1723.

Plaintiffs’ own expert found that each department had its

own procedures, and at least eight different criteria -- not

including “numerous other idiosyncratic factors” -- might or

might not be considered in making any employment decision. J.A.

1518-19. “Different supervisors,” he explained, “utilized

different criteria weighting schemes with little consistency

among the selection officials and among the different

hiring/promotion/transfer opportunities.” J.A. 1525. Taking

all this dissimilarity together, the expert concluded that

Nucor’s selection process was only “consistent in its

inconsistency.” J.A. 1519.

Yet Plaintiffs’ statistical evidence incorrectly assumed

the exact opposite: perfect, plant-wide consistency as to

promotions. Given that promotions decisions were made at the

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department or supervisor level using different and independent criteria, we cannot rightfully assume that a plant-wide disparity resulted from a uniform problem arising in the same way in each Nucor department. See Wal-Mart, 131 S. Ct. at 2555. Put differently, the district court reasonably found that the “locus of autonomy” rested at the departmental level, not a plant-wide one. We cannot then assume that department decisions were made in lockstep, such that plant-wide disparities necessarily reflect common, departmental ones. See Bolden v. Walsh Constr. Co., 688 F.3d 893, 896 (7th Cir. 2012) (rejecting aggregate data because it did not necessarily imply that “all 25 superintendents behaved similarly, so it would not demonstrate commonality”).
We have already seen these concepts play out in another employment discrimination action involving a similar Nucor facility. Applying Wal-Mart, the Eighth Circuit rejected statistics -- from the same expert -- that reflected plant-wide disparities in promotions at an Arkansas Nucor plant. Bennett, 656 F.3d at 815-16. Just as in this case, the statistical evidence there indicated that different departments in the plant applied different criteria for promotions decisions. Id. at 815. The plant-wide evidence therefore “ha[d] little value in the commonality analysis” because it “did not differentiate between the hiring and promotion decisions made in each
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department.” Id. The Eighth Circuit found that, in those sorts of circumstances, “a bottom-line analysis [wa]s insufficient to demonstrate that any disparate treatment or disparate impact present in one department was also common to all others.” Id. at 815-16.
As in Bennett, Nucor here provided its own analysis that demonstrated how the statistical disparities varied among the different departments in the plant. Nucor’s expert measured how selection rates varied between white and black applicants on a department-by-department basis over the period for which bidding information was available. With proper controls applied, the expert found that race differences between departments could vary by as much as 2.44 standard deviations. J.A. 5894. In other words, some departments experienced decidedly smaller disparities in selection rates, undermining any inference of uniformity and commonality among all departments.
Given the wide variance in promotions practices at the Nucor facility, the district court did not clearly err in rejecting a statistical study that failed to account for that variance.
c. The majority finds, however, that Nucor’s entire plant should be treated “as a single entity” when it comes to promotions decisions. Maj. op. at 35-36 (alluding to Brown I,
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576 F.3d at 158). Although the majority suggests otherwise, Brown I did not decide this issue. Brown I held that the district court should treat Nucor’s various production departments as a single facility only for purposes of Plaintiffs’ hostile work environment claim. 576 F.3d at 158 (“[T]he affidavits of employees in one department are admissible to prove a plant-wide hostile environment that affected employees in other departments, and the plaintiffs have satisfied the commonality requirement for their hostile work environment claim.” (emphasis added)); see also id. at 157 (discussing how a “hostile environment determination” must be made in the context of discussing Plaintiffs’ “single entity” argument). It said nothing about the uniformity of promotions decisions across the plant. Id. The Brown I majority did so because Plaintiffs likewise focused their “single entity” argument on only the hostile work environment claim. See Brief for Appellant at 25-35, Brown I, 576 F.3d 149 (No. 08-1247), 2008 WL 2307453. Thus, as with predominance, the district court was not constrained in deciding the “single facility” issue, as no Brown I mandate existed as to that issue.
Nonetheless, the majority concludes that facts establishing a single hostile work environment claim also establish a common promotions policy. Maj. op. at 37. Yet “[d]isparate treatment . . . is inherently different from hostile work environment.
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The federal courts treat the two types of cases differently for good reason.” See Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933, 943 (6th Cir. 2000), rev’d on other grounds, 532 U.S. 843 (2001). And no court has held that a common hostile work environment establishes that a facility must be treated as a single entity for purposes of every other kind of employment discrimination claim.
In finding a common environment, Brown I focused on shared locker rooms and spaces, plant-wide email, and plant-wide radio systems. 576 F.3d at 158. When it comes to a hostile work environment claim, those facts may matter: racial slurs and “monkey noises” uttered in a common space or transmitted via plant-wide radio can affect whoever hears them. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998) (“[A]nyone who has regular contact with an employee can inflict psychological injuries by his or her offensive conduct.”). But locker rooms and radios bear no relationship to promotions decisions; certainly nothing in the record supports such a concept. Only supervisors can inflict the “pain” of a denied promotion, and they can do so only when empowered by company structure, not common spaces. We should not assume that dozens of supervisors acted in concert merely because their employees might have changed clothes in the same room. Nor should we assume -- in the face of expressly different criteria applied to different
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groups of employees -- that applicants in each department

nevertheless suffer the same injury merely because of their

physical proximity to one another at some point during a

workday.

Though the majority insists that “centralized,

circumscribed environments” will “generally” increase

“consistency” in managerial decisionmaking, maj. op. at 33,

Plaintiffs’ own expert made clear that this hypothesized general

rule cannot apply here, see J.A. 1519 (“The best sentiment I can

muster in favor of the [Nucor] selection procedure is that it is

consistent in its inconsistency.”). See also, e.g., Tabor v.

Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir. 2013) (affirming

denial of class certification where “Plaintiffs challenge[d] a

highly discretionary policy for granting promotions”).

The majority also notes that the general manager formally

approved promotions in the plant. Maj. op. at 50. Without

saying so explicitly, the majority seems to propose that the

general manager provided some common, plant-wide direction that

drove common, plant-wide disparities. Yet even the Brown I

majority recognized that the general manager played no genuine

role in the promotions decisionmaking process. 576 F.3d at 152

(“Although, by policy, the plant’s general manager approves all

promotions and handles discrimination and harassment

investigations, the record suggests that each department manager

has unbridled discretion to make promotions within his

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department utilizing whatever objective or subjective factors he wishes.”). The evidence confirms that proposition. Promotions, the general manager explained, were “not [his] area of responsibility,” as he had “department managers that ma[d]e those decisions.” J.A. 8163. Nucor instead trained its department managers to make promotions decisions and implement the anti-discrimination policy.
The majority nevertheless says the general manager engaged in “inaction.” Maj. op. at 48, 50. The majority’s theory -premised on an assumed culture of “odious racism” and passive enabling -- resembles a theory that Wal-Mart out-and-out rejected. See 131 S. Ct. at 2553-54 (refusing to credit evidence asserting that a “strong corporate culture,” enabled by policies of discretion, permitted bias in pay decisions); accord Davis v. Cintas Corp., 717 F.3d 476, 489 (6th Cir. 2013).
Even if one assumes that such a theory were viable and relevant here, it would not prove commonality. “Inaction” -letting supervisors do as they wish -- is just discretion by another name. “[I]t is a policy against having uniform employment practices.” Wal-Mart, 131 S. Ct. at 2554. “Wal-Mart tells us that local discretion cannot support a company-wide class no matter how cleverly lawyers” (or judges) “may try to repackage local variability as uniformity.” Bolden, 688 F.3d at 898; accord In re Navy Chaplaincy, No. 1:07–mc–269 (GK), 2014 WL
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4378781, at *15 (D.D.C. Sept. 4, 2014). Were it otherwise, one could find a common policy in most every case, as most every company has a management head at the top that could be accused of not doing enough. Beyond that, Plaintiffs’ experts never traced their identified disparities to the general manager, and their reports never even mention him. For good reason. Individual acts of discretion, not the general manager’s purported acquiescence, would have caused any disparities and the injuries that they reflect. Thus, the not-very-common common policy does not present a common injury.
Nucor also used a plant-wide “dual-approval” scheme, under which promotions required approval from both “originating” and “destination” department heads. The majority sees this as a case of potential “cat’s paw” liability, wherein a nondecisionmaker influences the ultimate decisionmaker’s choice in a discriminatory way. Maj. op. at 36-37 (citing Smith v. Bray, 681 F.3d 888, 897 & n.3 (7th Cir. 2012)). But nothing other than speculation indicates that dual approval was used to effect discrimination in any common way, and any cat’s paw must be the “proximate cause” of the discriminatory harm to be actionable. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1192 (2011). Not even Plaintiffs’ statistical experts attempt to tie their disparities to a dual-approval policy.
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The majority surmises that a discriminatory supervisor in

one department could have theoretically used dual approval to

inflict his animus upon employees outside his own department.

But if a racist department head had tried to use the dual-

approval scheme to disadvantage black workers, he would not have

been able to reach all or even most of the promotions decisions

in the plant, dual approval notwithstanding. A discriminatory

department head in the beam mill, for instance, would have had

no say when it came to a cold mill employee seeking a higher

position within the cold mill, hot mill, melt shop, maintenance

department, or shipping department.

Perhaps, then, the

majority’s concept -- if properly supported with evidence --

might justify a class of persons applying in and out of a

particularly problematic department. In fact, the district

court proposed certifying just such a class as to the beam mill.

See J.A. 10953-54 & n.16. But it would not justify the plant-

wide class action that Plaintiffs now mean to bring. Cf. Ellis,

657 F.3d at 983 (“A disparity in only 25% of the regions,

however, would not show that discrimination manifested in

promotions practices in the same general fashion.”).

* * * *

In sum, the district court did not clearly err in choosing

not to rely on Plaintiffs’ statistical evidence. Faced with

evidence based on questionable data, uncontrolled explanatory

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variables, and poorly structured methodologies, the district

court did not act irrationally in determining that such evidence

was of negligible credence.

The “troubling effects of

statistical inferences require thoughtful consideration in each

case,” Mister v. Ill. Cent. Gulf R.R. Co., 832 F.2d 1427, 1437

(7th Cir. 1987), and that consideration is sorely lacking from

the work of Plaintiffs’ experts. Thus, Plaintiffs’ evidence,

with its many deficiencies, does not establish the common policy

necessary for class certification. The district court did not

abuse its discretion in making that finding.

B. Anecdotal Evidence

Plaintiffs also present affidavits from sixteen employees

in support of certifying the promotions classes. The district

court did not abuse its discretion in refusing to certify

Plaintiffs’ proposed class based on this limited evidence.

1.

In their original class certification motion, Plaintiffs

never argued that anecdotal evidence, standing alone, could

establish a common policy of discrimination. Rather, Plaintiffs

presented the anecdotal evidence only to supplement their

statistical evidence. See Brown I, 576 F.3d at 164 (Agee, J.,

dissenting). The Brown I majority constructed its own theory of

the case, finding that Plaintiffs could in fact advance their

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case on anecdotal evidence “alone.” Id. at 153. Plaintiffs now take up the Brown I majority’s theory in this appeal.
Plaintiffs made the better choice in their initial offering, as anecdotes only help tell the story. They are meant to bring “the cold numbers convincingly to life,” Teamsters, 431 U.S. at 339, providing “texture” for statistical evidence. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 168 (2d Cir. 2001), abrogated on other grounds by Wal-Mart, 131 S. Ct. at 2560-62. But standing alone, “anecdotal evidence . . . [will] rarely, if ever, . . . show a systemic pattern of discrimination.” O’Donnell Constr. Co. v. Dist. of Columbia, 963 F.2d 420, 427 (D.C. Cir. 1992); accord Briggs v. Anderson, 796 F.2d 1009, 1019 (8th Cir. 1986) (observing that plaintiffs “punished themselves” by choosing to rely on anecdotal evidence); EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458, 470-71 & n.8 (S.D.N.Y. 2011) (collecting cases); see also Michael Selmi, Theorizing Systemic Disparate Treatment Law: After Wal-Mart v. Dukes, 32 Berkeley J. Emp. & Lab. L. 477, 501 (2011) (“[A]necdotal evidence is always of marginal significance in a pattern or practice claim.”).
In discrimination cases, courts move anecdotal evidence to the background because such evidence does not prove much. “Anecdotal reports . . . are ordinarily more helpful in generating lines of inquiry than in proving causation.”
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Federal Judicial Center, Reference Manual on Scientific Evidence 217 (2011). Individual stories say little, for instance, about the frequency of an event’s occurrence or the reasons for that occurrence. Without knowing at least those two items, it can hardly be assumed that the stories reflect a broader trend flowing directly from intentional discrimination. See Wessman v. Gittens, 160 F.3d 790, 805-06 (1st Cir. 1998); Coral Constr. Co. v. King Cnty., 941 F.2d 910, 919 (9th Cir. 1991). Anecdotes are also more susceptible to mistaken perception, leading to erroneous conclusions -- especially when collections of stories are treated as quasi-statistics. See Fisher v. Vassar Coll., 70 F.3d 1420, 1444-45 (2d Cir. 1995). And bias can skew anecdotal evidence, as when only those who feel most strongly about an issue offer anecdotes or when the soliciting party has a particular objective in mind. Cf. United States v. Local 560 of Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., 780 F.2d 267, 277 (3d Cir. 1985) (finding that a survey that was meant to show the “reputation” of a particular organization should have been excluded when it only surveyed persons known “to be hostile” to the organization). Because “anecdotes provide no mechanism for assessing truthfulness, typicality, or frequency,” courts can and should question their usefulness, just as “[s]cientists and medical researchers” have
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done for many years. David A. Hyman, Lies, Damned Lies, and Narrative, 73 Ind. L. J. 797, 803 (1998).
2. The majority finds Plaintiffs’ anecdotal evidence sufficient principally because the ratio reflecting the number of affidavits alleging discrimination compared to the number of class members is purportedly small. Maj. op. at 40-41. As of 2006, Plaintiffs’ experts determined that “approximately 150 African-Americans” comprised the class. J.A. 1154. Given that the class period extends well into 2011, it is reasonable to assume that Nucor hired additional black applicants since 2006, conservatively setting the present class size at 160 black employees or more. The sixteen affidavits that Plaintiffs provide therefore represent roughly one affidavit for every ten class members -- a weak sample from the entire class. “[A] court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless free-standing trees.” Cooper, 467 U.S. at 879-80. When ten percent of a class (or less) complains of mistreatment in a discrimination case, a district court does not clearly err in finding that such complaints do not establish a “standard operating procedure” of discrimination, Teamsters, 431 U.S. at 336, “significant adverse effects” on the relevant
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class, Watson, 487 U.S. at 986, or “significant proof” of class-

wide discrimination, Wal-Mart, 131 S. Ct. at 2553.

3.

What may matter more than the quantity of a plaintiff’s

evidence is its quality. If, for instance, the anecdotal

evidence is indirect and circumstantial, the district court

might justifiably probe whether that evidence truly gives rise

to a necessary inference of discrimination. After all, “a

district court may properly consider the quality of any

anecdotal evidence.” Rossini v. Ogilvy & Mather, Inc., 798 F.2d

590, 604 (2d Cir. 1986); accord Eastland v. Tenn. Valley Auth.,

704 F.2d 613, 625 (11th Cir. 1983).

At least as to the promotions-related matters at issue in

this appeal, Plaintiffs do not present compelling anecdotal

evidence.

Byron Turner, for instance, does not address

promotions at all. Neither does Walter Joseph Cook. In what

might be an employment law first, Kenneth Hubbard complains that

Nucor promoted him. See J.A. 1097; cf. Kalamazoo Cnty. Rd.

Comm’n v. Deleon, 135 S. Ct. 783, 784 (2015) (Alito, J.,

dissenting from denial of certiorari) (“Respondent’s supervisors

did not violate federal law by granting him the transfer that he

sought and that they had no reason to believe he did not

want.”). And Earl Ravenell testifies about a time that he

applied for a promotion and was not selected -- because another

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black employee was selected for that opening. He also tells us that he chose not to apply for any other positions because of “the look on his [supervisor]’s face.” J.A. 1111. These and other examples are not “cherry pick[ed],” maj. op. at 41, but merely offer some insight into why the district court could reasonably decide differently than the majority does.
Much of the anecdotal evidence also amounts to conclusory and speculative statements of personal belief. For instance, even those employees who do mention job qualifications rely almost exclusively on their personal, subjective, and unsubstantiated views of their own abilities. We usually do not give such testimony much, if any, weight. See Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996). Other employees assume racism in the process without identifying an objective fact to support that view. Named plaintiff Ramon Roane declares, for example, that he applied for a position that was “suddenly cancelled because Nucor was not ready for an African American to hold a supervisory position.” J.A. 996. Yet he does not explain how or why he came to that conclusion, and “[a] plaintiff’s self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination.” Mackey v. Shalala, 360 F.3d 463, 469-70 (4th Cir. 2004).
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In addition, Plaintiffs’ evidence is often so incomplete that it lacks any probative value. For example, Bernard Beaufort discusses a promotions decision that he believes “was made unfairly.” J.A. 6008. But he does not know who eventually received the job, what his or her race was, “what [the decision] was based on,” or whether “it was based on [his] race.” J.A. 6008. Other employees testify about not receiving promotions, but many of these declarants do not indicate whether they were minimally qualified for the position or whether the selected employee was of another race. Without these fundamental facts, we cannot know whether particular promotions decisions raise even a circumstantial inference of discrimination. See Cline v. Roadway Express, Inc., 689 F.2d 481, 485 n.4 (4th Cir. 1982); accord Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
4. The majority concentrates on one anecdotal comment from one supervisor in the beam mill: “I don’t think we’ll ever have a black supervisor while I’m here.” J.A. 1885-86; see also maj. op. at 6, 51. That comment could be compelling evidence in a case hinging on decisions made by that particular decisionmaker. On the other hand, it might not be, as we have discounted “stray or isolated” remarks, even at summary judgment. Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999); see
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also Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th

Cir. 1994) (finding that decisionmaker’s singular remark did not

evidence discriminatory practices at company).

In the end, the question proves academic. A class-wide

claim challenging decisions made by many different

decisionmakers plainly requires something more than a single

comment from just one of them. We see this rule -- that sparse

comments are not enough for class treatment -- illustrated in

cases like King v. General Electric Company, 960 F.2d 617 (7th

Cir. 1992).

There, the Seventh Circuit found that the

plaintiffs’ anecdotal evidence in an age-discrimination case was

not enough, even though the record contained testimony from a

higher manager that the company was “going to get rid of these

old farts and get some new blood in here.” Id. at 628 (Cudahy,

J., dissenting) (summarizing evidence rejected by the majority).

This Court, too, has rejected anecdotal evidence of a similarly

“damning character,” this time in a racial discrimination case.

See Coker v. Charleston Cnty. Sch. Dist., No. 92-1589, 1993 WL

309580, at *6 (4th Cir. Aug. 16, 1993). We found that the

plaintiffs had not established a policy or practice of

discrimination despite testimony that a black principal was told

the community would not “accept” him at a predominantly white

school. Id. at *4. All this goes to illustrate that plaintiffs

likely cannot prove a class-wide policy with a single comment,

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no matter how bigoted the comment may be. One comment certainly does not make the showing that Plaintiffs insist they make here: a common, uniform policy of animus inflicted by 55 or more independent supervisors upon more than 150 employees scattered throughout a multi-department plant. Consequently, the district court did not abuse its discretion in refusing to certify Plaintiffs’ class based on a single comment.
5. a. The district court also gave “limited weight” to almost 80 affidavits from black employees at the Nucor plant. J.A. 10950. The affidavits consistently rejected the idea of discrimination in the promotions process, and the district court did not abuse its discretion in affording them some minimal value. Repeatedly, the affidavits suggest that the promotions process was fair. See, e.g., J.A. 6024, 6042, 6052, 6069, 6078. One such employee specifically remarked that “[n]ot all AfricanAmericans feel like they have been discriminated against at Nucor.” J.A. 6109. The same employee was actually “upset by this racial discrimination issue because it is not something that has happened to me or is happening across the board here at Nucor.” Id. Another employee explained that “the way things are done . . . at Nucor are not influenced by race.” J.A. 6164.
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The list goes on: black employees approved of management’s handling of race-related issues in the plant, see, e.g., J.A. 6109, 6215, 6480-81, 6943, explained that they were treated well, see, e.g., J.A. 6350, 6361, and often reasoned that complaints of racism from other employees were unjustified, see, e.g., J.A. 6566. Even those who felt that promotions were not made fairly often blamed factors other than race, such as a “buddy” system in which supervisors promoted friends. See, e.g., J.A. 6258, 6299, 6438, 6494. Some affidavits also directly contradicted the sixteen declarations that Plaintiffs submitted. In fact, Jacob Ravenell, Kenneth Hubbard, Robyn Spann, and Byron Turner all expressly denied that they had been denied promotions because of their race, even though Plaintiffs cite them as four of their sixteen key witnesses. See J.A. 6400, 6746, 6933, 6964. The district court had every right to weigh such self-contradictory testimony and conclude as it did. See Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 422 (4th Cir. 2014).
b. Based on “[c]ommon sense and prudence,” however, the majority finds yet again that the district court clearly erred - this time by finding that “potentially coercive” affidavits supported Nucor to some small degree. Maj. op. at 42. The majority’s naked credibility determination is exactly the sort
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of decision we are not meant to undertake on appellate review. “[W]hen a trial judge’s finding is based on his decision to credit the testimony of [a witness who] . . . has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson, 470 U.S. at 575.
The majority nevertheless adopts a self-contradictory credibility rule: statements made in support of an employer must be rejected when the employer obtains them, while statements made against the employer will be given “significant weight given the circumstances in which they were made.” Maj. op. at 43. The majority draws this distinction by assuming that an employer exercises coercive power in most any interaction with its employees. “However, it is well settled that not every interrogation of employees by Company officials constitutes coercion[.]” NLRB v. Lexington Chair Co., 361 F.2d 283, 289 (4th Cir. 1966). And one must not lose sight of the practical effect of the majority’s novel approach: employers now have no incentive to investigate and remedy claims of discrimination. Employers will well understand that investigations can no longer benefit them -- at most, facts developed during an investigation will only be used against the employer. Even an employer with a supportive workforce will be unable to defend itself with
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beneficial employee testimony, lest it be accused of unproven

coercion. Informal resolution, Congress’ preferred course, will

therefore become even more difficult. See West v. Gibson, 527

U.S. 212, 218-19 (1999) (noting Congress’s intention that Title

VII claims would be resolved informally).

One is further left to wonder where the majority’s new

imagined-coercion-based rule comes from.

Generally, the

purportedly “coercive nature of the employer-employee

relationship . . . is insufficient to demonstrate that . . .

[employer-employee] interviews were improper.” Slavinski v.

Columbia Ass’n, Inc., No. CCB–08–890, 2011 WL 1310256, at *4 (D.

Md. Mar. 30, 2011) (collecting cases); accord Maddock v. KB

Homes, Inc., 248 F.R.D. 229, 237 (C.D. Cal. 2007); McLaughlin v.

Liberty Mut. Ins. Co., 224 F.R.D. 295, 298 (D. Mass. 2004); cf.

Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981) (“[T]he mere

possibility of abuses does not justify routine adoption of a

communications ban[.]”). Certainly it cannot be found in the

cases the majority cites, which all raised questions about

defendants who contacted putative class plaintiffs after a class

action had been filed. Here, Nucor investigated and obtained

affidavits before any lawsuit was filed, so it could not have

been attempting to break up the class -- the class did not even

exist yet. The majority’s cases also involved a level of

egregious misconduct not found in this case, suggesting that

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those cases were directed at a problem that does not exist here. See, e.g., Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1197-98 (11th Cir. 1985) (finding unilateral contacts improper where counsel violated direct court order and conducted a vast “selling job” seeking class opt-outs in “[s]ecrecy and haste” during “the district judge’s vacation”); see also Burrow v. Sybaris Clubs Int’l, Inc., No. 13 C 2342, 2014 WL 5310525, at *4-5 (N.D. Ill. Oct. 17, 2014) (summarizing many of the same cases and concluding that they “depict[ed] communications so extreme that they actually cut against [the majority’s present] position”).
We also need not speculate about “potential” coercion, as the circumstances make plain that Nucor did not coerce its employees into making positive statements. No employee has claimed that the affidavits were coercive. No employee has suggested that Nucor retaliated against employees who complained of discrimination. And the contents of the affidavits do not imply coercion either. Employees evidently felt free to speak honestly, as the affidavits were not universally favorable to Nucor. See, e.g., J.A. 10950 (district court noting that the affidavits “actually bolstered the plaintiffs’ claims of a common hostile work environment”). Some employees also chose not to give statements at all. See, e.g., J.A. 6911. And still other employees made handwritten corrections to their typed
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affidavits, indicating that the employees had complete control over their statements. See, e.g., J.A. 6120.
What is more, Nucor gave each employee a written notice explaining that the interview was voluntary, that the interviews were being taken on behalf of the company, that employees could decline to participate, and that they would not face any retaliation for what they said. See, e.g., J.A. 6003. In other contexts, the Court has said that disclosures like these prevent coercion. See, e.g., Overnite Transp. Co. v. NLRB, 280 F.3d 417, 434 (4th Cir. 2002). Each employee who chose to participate then signed an acknowledgement and noted in his or her affidavit that Nucor did not coerce the employee. See, e.g., J.A. 6003.
The majority nevertheless condemns Nucor for not informing the employees that the company might use their statements in litigation. This novel requirement -- a sort of “civil Miranda rule” -- seems an odd one given that litigation had not been filed. Instead, interviewees were accurately informed that “[t]here ha[d] been a few charges of discrimination filed by African-American employees at Nucor,” and the interview was meant to “determine what happened.” J.A. 6003.
The district court did not clearly err in affording some weight to these many contrary affidavits.
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6. In addition to the affidavits supporting Nucor’s view, Plaintiffs’ affidavits must also be weighed against the company’s announced anti-discrimination policy. In Wal-Mart, the Supreme Court found that a “general policy of discrimination” was harder to find given the company’s “announced policy forbid[ding] . . . discrimination and . . . impos[ing] penalties for denials of equal opportunity.” Id. at 2553. The same holds true here. Nucor is an equal-opportunity employer with an express anti-discrimination policy that harshly penalizes employees engaging in discriminatory conduct. Nucor policies even punish supervisors who fail to put an end to their subordinates’ discriminatory conduct. The record also contains accounts of instances in which Nucor’s general manager condemned discriminatory acts and punished employees for using offensive language. This countervailing evidence supports the district court’s conclusion that, as a whole, the anecdotal evidence favored Nucor rather than Plaintiffs.
7. a. Aside from the qualitative and quantitative deficiencies in Plaintiffs’ anecdotal evidence, it also does not tell a plantwide story. In Wal-Mart, plaintiffs’ anecdotal evidence failed in part because “[m]ore than half of the[] reports [we]re 144

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concentrated in only six States.” 131 S. Ct. at 2556. As a

result, even if one assumed that “every single one of these

accounts [were] true, that would not demonstrate that the entire

company operate[d] under a general policy of discrimination.”

Id.

The lack of dispersion that proved fatal to the class in

Wal-Mart presents itself here.

Eleven of the sixteen

declarations -- again, more than half -- come from employees in

a single department: the beam mill. No cold mill or maintenance

employees are represented, while only one shipping employee and

one melt shop employee appear. And as the district court

recognized, when one examines the individual instances of

discrimination alleged in Plaintiffs’ declarations, most of them

concern just one manager and three supervisors who all worked in

the beam mill. See J.A. 10951. As one black employee put it,

“Whatever [wa]s happening in the beam mill [wa]s not a plant

wide problem.” J.A. 6109.

b.

The majority somehow finds clear error in the district

court’s finding that Plaintiffs’ accounts were concentrated in

the beam mill. But it proves easy to see why the district court

found what it did: Plaintiffs do not cite useful, relevant

evidence from outside the beam mill. Some anecdotes fall

outside the class period. See, e.g., J.A. 1085. Others involve

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promotions that did in fact go to a black employee. See, e.g., J.A. 1110-11. Some involve transfers, not promotions. See, e.g., J.A. 1063. Still others trace back to beam mill supervisors, not supervisors in other departments. See, e.g., J.A. 1079-80. Plaintiffs count six other instances twice. See Appellant’s Br. 9-10. And some of the cited “instances of alleged promotions discrimination” amount to no evidence at all. See, e.g., id. at 9 (citing J.A. 7237 -- an application for transfer -- as one instance of “promotion discrimination”). Most incredibly, Plaintiffs’ argument -- which the majority appears to adopt -- assumes that one can find evidence of discrimination in every single instance where a black employee does not receive a promotion for which he applies. That concept finds no support in any part of our jurisprudence. Indeed, it turns the Teamsters framework into a circular absurdity. Plaintiffs presume that each denied promotion evidences a discriminatory policy or practice, even though -- under Teamsters -- Plaintiffs must prove that a discriminatory policy or practice existed before the court may presume that a particular denied promotion was discriminatorily made. See Teamsters, 431 U.S. at 362.
The district court recognized, as it should have, that the anecdotal evidence was more substantial when it came to the beam mill. For that reason, the district court explained that it was
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willing to certify a class of those applying out of and into the beam mill. J.A. 10953-54 & n.16. Plaintiffs never accepted the invitation, so they remain responsible for proving plant-wide commonality. That effort requires a substantial showing beyond a single department. See, e.g., Bennett, 656 F.3d at 816 (holding that the district court properly declined to certify a hostile work environment class where anecdotal evidence was concentrated in a single department).
Outside the beam mill, Plaintiffs at best present a few scattered anecdotes in each department. That’s not enough. “[A] class plaintiff’s attempt to prove the existence of . . . a consistent practice within a given department[] may fail even though discrimination against one or two individuals has been proved.” Cooper, 467 U.S. at 878; accord Ste. Marie v. E. R.R. Ass’n, 650 F.2d 395, 406-07 (2d Cir. 1981). The district court might very well have clearly erred had it accepted such evidence. One can hardly say that it clearly erred in doing just the opposite.
8. In a last effort to save their class-wide claim, Plaintiffs make much of other facts that do not relate directly to promotions. They seem to give special attention to the facts underlying their already-certified hostile work environment claim. The majority agrees that such evidence provides a
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“cultural backdrop” that renders an “equitable promotions system” essentially impossible. Maj. op. at 38. Notably, that view never appeared in Brown I, but references to Plaintiffs’ hostile work environment claims now appear at least a dozen times in the majority opinion. The majority also finds evidence of a “culture” in the alleged fact that Nucor hired only one black supervisor before the EEOC investigation, even though “[t]he mere absence of minority employees in upper-level positions does not suffice to prove [even] a prima facie case of discrimination without a comparison to the relevant labor pool.” Carter, 33 F.3d at 457.
We have never held that class plaintiffs may establish a common, classwide policy of discrimination with mere evidence of company “culture.” Other decisions, including Wal-Mart, reject the notion that “culture” is enough. See Wal-Mart, 131 S. Ct. at 2553; Davis, 717 F.3d at 487-88. The majority would nevertheless “sweep many individual plaintiffs and sets of facts into one class on the premise that all reflect illegal conduct by the defendant in practice and culture if not in policy” -even though that is “precisely the sort of class that the Supreme Court recently rejected in [Wal-Mart].” Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 504 (7th Cir. 2012) (Rovner, J., concurring in part). Furthermore, simply saying that a company has a “cultural problem” does not identify any
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particular employment policy or practice, McClain v. Lufkin Indus., Inc., 519 F.3d 264, 274 (5th Cir. 2008), let alone a common, uniform policy spanning the class.
We have also never held that facts establishing a hostile work environment unavoidably relate to all other employment decisions made in the same company. Such a connection would be hard to justify, as acts giving rise to a hostile work environment are only distantly related to the discrete acts that underlie disparate treatment and impact claims. “The probative value of other discriminatory acts depends . . . on the nature of the discrimination charged.” Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1424 (7th Cir. 1986), abrogated on other grounds by Patterson v. McLean Credit Union, 491 U.S. 164 (1989). And “[h]ostile environment claims are different in kind from discrete acts.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). In contrast to acts creating a hostile work environment, discriminatory employment decisions “inflict[] direct economic harm.” Burlington Indus., 524 U.S. at 762. They will often require “the imprimatur of the enterprise and the use of its internal processes.” Id.
The “probativeness” of items like comments, jokes, and other acts “is [also] circumscribed if they were made [or done] in a situation temporally remote from the date of the employment decision[s], or if they were not related to the employment
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decision[s] in question or were made by nondecisionmakers.” McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals, 140 F.3d 288, 301 (1st Cir. 1998). Here, Plaintiffs’ evidence suffers to some degree from all three of these defects. For instance, Plaintiffs’ statements often do not tell us when the offensive conduct occurred, so we have no way of assessing temporal proximity. None of the “cultural” evidence pertains specifically to promotions. And most all of the relevant hostile-work-environment conduct came from non-decisionmakers, even though it “is the perception of the decisionmaker that is relevant” in claims like Plaintiffs’. Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980); accord Mateu-Anderegg v. Sch. Dist. of Whitefish Bay, 304 F.3d 618, 623 (7th Cir. 2002) (“[S]tatements are only relevant if they come from a decisionmaker, someone involved in the adverse employment decision[s].”). Lastly, to the limited extent that supervisors did involve themselves in the incidents that Plaintiffs described, those supervisors chiefly worked in the beam mill -undermining any inference of a common, plant-wide policy.
At bottom, the majority concludes that we should permit Plaintiffs to pursue two class claims pertaining to promotions because they have successfully established their right to pursue a separate, distinguishable hostile-work-environment claim. Title VII does not work that way, and, rhetoric aside, the
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majority is unable to identify a single decision to support that kind of proposition. “In the law, the absence of precedent is no recommendation.” Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1200 (9th Cir. 2007) (Kleinfeld, J., dissenting). Moreover, to assume that a plaintiff establishes a right to class treatment for his discrete-act class merely because he has established such a right as to a hostile-work-environment class is to reinstate a suspect revision of the “across-the-board” rule that the Supreme Court rejected three decades ago. See Falcon, 457 U.S. at 153, 157-59 (rejecting the idea that “an employee complaining of one employment practice” may automatically “represent another complaining of another practice” merely because both alleged discrimination based on the same protected trait). The district court did not abuse its discretion in refusing to exhume that long-dead idea.
The district court did not clearly err in declining to give dispositive weight to evidence going to Plaintiffs’ hostilework-environment claim when deciding whether to certify Plaintiffs’ separate promotions-related classes.
* * * * When closely examined, Plaintiffs’ anecdotal evidence proves to be just as unconvincing as their statistical proof. “Because [Plaintiffs] provide no convincing proof of a companywide discriminatory . . . promotion policy, . . . they
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have not established the existence of any common question.” Wal-Mart, 131 S. Ct. at 2556-57. The district court therefore did not abuse its discretion in declining to certify the class because of its lack of commonality.
IV. On the road to its desired result, the majority undermines well-established judicial processes, causes a rift between this Court and a co-equal circuit court without explanation, and brings substantial uncertainty to an area of law that begs for clarity. As to judicial processes, the majority opinion evidences little respect for the role of the district court and the standard of review. The district court has lived with this matter for several years now, and it best understands how the case has developed. Its actions bespeak a court striving to scrupulously apply Rule 23’s requirements. The district court complied with our mandate, rejected more than one request to decertify from Nucor, and continually endeavored to respect findings that this Court has (actually) made. Yet the majority shows no concern for that effort. And it shows just as little concern for this Court’s well-established waiver rule, which should plainly apply here.
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As to our sister circuits, the majority opinion begets a circuit split. The Eighth Circuit affirmed the denial of class certification in a case involving the same claims, the same experts, and the same defendant. As should be clear by now, that decision cannot be reconciled with this one. The majority never even tries to do so.
And as to cases to come, the majority’s decision will offer far more questions than answers. What standard of review really applies in this context? How much evidence must a plaintiff summon to comply with Rule 23? Does appellate waiver matter? Does class treatment of one cause of action necessarily warrant class treatment for another? Must statistical evidence prove to be reliable? Does Wal-Mart reach only nationwide class actions? Can a sufficiently “common” policy result from inaction? These are only some of the questions that the majority opinion leaves unresolved.
We should hardly take this troubled road in the name of “simple justice.” Maj. op. at 63. “‘Simple justice’ is achieved when a complex body of law developed over a period of years is evenhandedly applied.” San Remo Hotel, L.P. v. City & Cnty. of San Fran., Cal., 545 U.S. 323, 345 (2005). Evenhandedness is nowhere to be found here, so justice remains unserved.
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Perhaps the Supreme Court will act to rectify the problems that are sure to follow from today’s opinion. One can only hope that it will do so soon. In the meantime, I respectfully dissent. The district court did not abuse its discretion, and its judgment to decertify should be affirmed.

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CARONLINA CHARLESTON DIVISION Civil Action No.: 2:04-cv-22005-DCN
QUINTON BROWN, et al., individually and on behalf of the class they represent,
Plaintiffs, vs. NUCOR CORPORATION and NUCOR STEEL-BERKELEY, Defendants.
FINAL ORDER APPROVING SETTLEMENT, CLASS COUNSEL FEE PAYMENT AND CLASS REPRESENTATIVE SERVICE PAYMENTS This matter is before the Court on the following motions: 1. The Parties’ Joint Motion and Memorandum of Law in Support of Motion for Final Approval of Settlement Agreement (Dkt. Entry No. 610) (hereinafter “Joint Motion for Class Settlement”); and 2. Plaintiffs’ Counsel’s Motion for Attorney Fees and Costs (Dkt. Entry No. 611) (“hereinafter “Motion for Attorneys’ Fees and Costs). On December 27, 2017, this Court entered an Order (Dkt. No. 607) in which the Court: a. preliminarily approved the Settlement Agreement as being sufficiently fair,
reasonable, and adequate, and in the best interests of the Parties and in accordance with the law, contingent upon final approval at the Final Fairness Hearing; b. approved the proposed form of Class Notice as constituting the best notice practicable under the circumstances and the claims procedure proposed by the Parties and described in the Settlement Agreement; c. stayed all other proceedings in this case until further order of the Court, except as may be necessary to approve and implement the Settlement Agreement; and, d. scheduled a Final Fairness Hearing for February 15, 2018 at 9:00 a.m.

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On February 15, 2018, the Court held a Final Fairness Hearing. There was only one objection that was submitted, and that objection was limited to a request not to be included in the settlement. There was no other opposition from any Settlement Class Member to the Joint Motion for Class Settlement or the Plaintiffs’ Motion for Attorneys’ Fees and Costs. Accordingly, the Court hereby grants the Motion for Class Settlement and the Motion for Attorneys’ Fees and Costs.
I. FINAL APPROVAL OF CLASS ACTION SETTLEMENT The Parties have agreed to a settlement that provides comprehensive injunctive relief and monetary relief totaling $22,500,000, based on a class of African-Americans who are or were employed by Nucor Corporation or Nucor Steel Berkeley at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time between December 2, 1999 and April 27, 2011, in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because of Nucor’s challenged practices (collectively with the Class Representatives, the “Settlement Class Members”). Excluded from the Settlement Class are all Nucor employees who have previously opted-out of this case. Nucor also agreed not to object to attorneys’ fees of up to $10,000,000 in fees in addition to documented expenses. Likewise, Nucor agreed not to object to the Class Representatives receiving a service payment of up to $40,000.00 per Class Representative. Nucor agreed to the foregoing in exchange for the Settlement Class Members, as well as their respective assigns, executors, administrators, successors and agents, releasing, resolving, relinquishing and discharging each and all of the Released Parties from each and all of the Released Claims. Both the term “Released Parties” and “Released Claims” are defined in the Settlement Agreement.
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The Court finds that the settlement and the notice procedure comply with Rule 23 of the Federal Rules of Civil Procedure, and that the Class Action Settlement is fair, reasonable and adequate.
II. NOTICE PLAN Pursuant to the Preliminary Order, Class Counsel gave direct notice of the proposed settlement to 157 Settlement Class Members. The list of notice recipients was determined using data provided by Nucor and data gathered by Class Counsel during the course of litigation. Only four Notices were returned as undeliverable and Class Counsel worked diligently to obtain updated addresses to use to re-send the Notice. Two of the four Settlement Class Members whose Notices were originally returned as undeliverable submitted timely claim forms. Information about the settlement was also available on a dedicated webpage. The Court finds that the notice plan was reasonably calculated, under the circumstances, to apprise Settlement Class Members of: (a) the nature of the action; (b) the definition of the class certified; (c) a description of the class claims, issues and defenses; (d) the identities of the Parties; (e) a summary of the terms of the proposed Settlement; (f) notice that the Settlement Class Member may object and appear at the Final Fairness Hearing; (g) information regarding the manner in which objections can be submitted; and (h) the binding effect of the class judgment and the scope of release of class and individual claims. As such, the Court finds that the Notice fully satisfied the requirements of the Federal Rules of Civil Procedure, including Federal Rule of Civil Procedure 23(c)(2) and (e), the United States Constitution (including the Due Process Clause), the rules of this Court, and any other applicable law, and provided sufficient notice to bind all Settlement Class Members, regardless of whether a particular Settlement Class Member received actual notice.
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III. FAIRNESS, REASONABLENESS, AND ADEQUACY Rule 23(e) requires that the Court approve any proposed settlement or compromise in a class action suit after notice of the settlement be given to all class members, after a hearing, and after finding that the settlement is fair, reasonable, and adequate. As noted above, notice of the settlement, as well as an opportunity to object to the settlement, has been provided to all known Settlement Class Members. The Court held a hearing at which the Parties agreed to the class settlement. There is a “strong judicial policy in favor of settlements, particularly in the class action context.” Reed v. Big Water Resort, LLC, 2016 U.S. Dist. LEXIS 187745, No. 2:14-cv-01583DCN, *14 (D. S.C. May 26, 2016); see also Bennett v. Behring Corp., 737 F.2d 982, 984 (11th Cir. 1984); In re Jiffy Lube Sec. Litig., 927 F.2d 155, 158-59 (4th Cir. 1991). Fed. R. Civ. P. 23(e) states in part: (e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise: (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. Fed. R. Civ. P. 23(e) requires that the court approve any proposed settlement or compromise in a class action suit and that notice of the settlement be given to all class members. “Settlement of the complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strains such litigation imposes upon already scarce judicial resources.” Reed, 2016 U.S. Dist. LEXIS 187745 at *15.
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Although Rule 23(e) does not delineate a procedure for court approval of settlements of class actions, the courts generally have followed a two-step procedure. Horton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 855 F. Supp. 825, 827-28 (E.D.N.C. 1994) (see also Armstrong at 312; In Re Mid–Atl. Toyota Antitrust Litigation, 564 F. Supp. 1379, 1384 (D. Md. 1983)). First, the court conducts a preliminary approval or pre-notification hearing to determine whether the proposed settlement is “within the range of possible approval” or, in other words, whether there is “probable cause” to notify the class of the proposed settlement. See Armstrong, 616 F.2d at 314; Toyota Antitrust Litigation, 564 F. Supp. at 1384. Second, assuming that the court grants preliminary approval and notice is sent to the class, the court conducts a “fairness” hearing at which all interested parties are afforded an opportunity to be heard on the proposed settlement. The ultimate purpose of the fairness hearing is to determine if the proposed settlement is “fair, reasonable, and adequate.” Armstrong, 616 F.2d at 314; see also In Re Ames Department Stores, Inc. Debenture Litigation, 150 F.R.D. 46, 53 (S.D.N.Y. 1993); Chatelain v. Prudential–Bache Securities, Inc., 805 F. Supp. 209, 212 (S.D.N.Y. 1992). A. The Proposed Class Settlement is Fair, Reasonable, and Adequate to all Class Members
As a general matter, the Court’s function in assessing a proposed class settlement is to determine whether, as a whole, it is fair, reasonable, and adequate to class members. U.S. v. N.C., 480 F.3d 574, 581 (4th Cir.1999); Fed. R. Civ. P. 23(e)(2). “The Court’s role is not to engage in a claim-by-claim, dollar by dollar evaluation, but to evaluate the proposed settlement in its totality.” Borcea v. Carnival Corp., 238 F.R.D. 664, 673 (S.D. Fla. 2006). “Settlement approval is within the Court’s discretion, which should be exercised in light of the general judicial policy favoring settlement.” In re Sumitomo Copper Litig., 189 F.R.D. 274, 280 (S.D.N.Y. 1999) (internal quotations omitted).
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This settlement is now ripe for final approval. The District Court of South Carolina evaluates the following factors in determining whether a proposed settlement is fair, reasonable, adequate and proper for final approval:
1. The fairness of the settlement negotiations and the views and experience of counsel;
2. The relative strength of the parties’ cases as well as the uncertainties of litigation on the merits;
3. The complexity, expense and likely duration of the litigation; 4. The adequacy of the settlement amount viewed against the risks and
expenses of continued litigation; and 5. The stage of the litigation, including the factual record developed Reed, 2016 U.S. LEXIS 187745 at *16-17; S. Carolina Nat. Bank, 749 F. Supp. at 1423. In the instant case, the Parties have worked extensively, vigorously, and cooperatively to ensure a fair, reasonable, and adequate settlement that is in the best interest of the Settlement Class Members. i. The proposed settlement is a fair settlement negotiated by experienced
counsel at arms’ length. “In a class action settlement, there is a presumption of fairness, reasonableness, and adequacy when it is achieved through arms-length negotiations between experienced and capable counsel who are necessary to effect representation of the class interest after meaningful discovery.” Id. at *17 (quotation omitted). The Fourth Circuit recognizes the following factors in assessing the standard for fair settlement negotiations: (1) the posture of the case at the time settlement was proposed, (2) the extent of discovery that had been conducted, (3) the circumstances surrounding the negotiations, and (4) the experience of counsel in the area of class action litigation. In re Jiffy Lube Sec. Litig., 927 F.2d 155, 158-59 (4th Cir. 1991). These factors strongly favor approval of the proposed settlement. The Settlement agreement is the result of ongoing arm’s length negotiations since court ordered mediation was
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held in October of 2017. The Parties’ negotiations were protracted and required multiple lengthy communications. Under the supervision of the mediator, all negotiations were conducted at arm’s length and in good faith. The extensive discovery, fact-gathering and motion practice that was conducted prior to the mediation allowed Class Counsel – who are experienced employment discrimination attorneys – to assess the strengths and weaknesses of the claims against Nucor and the benefits of the proposed settlement under the circumstances of this case.
Class Counsel has researched numerous procedural and substantive issues in this complex matter and has spoken to witnesses surrounding the allegations giving rise to this case. Accordingly, counsels’ negotiations and judgment that the proposed settlement is in the best interest of the classes satisfies the In re Jiffy Lube Sec. Litig. fairness factors for approval under Fed. R. Civ. P. 23(e).
ii. The relative strength of the parties’ cases as well as the uncertainties of litigation on the merits favors settlement.
The strengths and weaknesses of the claims and the defenses support settlement at this stage in litigation. The Supreme Court has cautioned that in reviewing a proposed class settlement, a court should “not decide the merits of the case or resolve unsettled legal questions.” Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14, 101 S. Ct. 993, 67 L. Ed. 2d 59 (1981). “Because the object of settlement is to avoid, not confront, the determination of contested issues, the approval process should not be converted into an abbreviated trial on the merits.” US Airline Pilots Ass’n v. Velez, 2016 U.S. Dist. LEXIS 120714, **15-16 (W.D. N.C. 2016) (citing Flinn v. FMC Corp., 528 F.2d 1169, 1172-73 (4th Cir. 1975)) (noting that the settlement hearing is not “a trial or a rehearsal of the trial”); United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999). Instead, courts have consistently held that the function of a judge reviewing a settlement is to determine whether the proposed settlement is reasonable “without substituting its business judgment for that of counsel, absent evidence of fraud or overreaching.” In re Global Crossing
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Sec. & ERISA Litig., 225 F.R.D. 436, 455 (S.D.N.Y. 2004) (internal quotation marks and citations omitted). And, “[a]n integral part of the strength of the case on the merits is a consideration of the various risks and costs that accompany continuation of the litigation.” Reed, 2016 U.S. Dist. LEXIS 187745 at *21.
The factual and legal issues in this case are complex, as demonstrated by the Parties’ years of hard-fought litigation and the terms of the Settlement Agreement itself. Moreover, currently pending before the Court but not yet argued or decided are several significant motions, including Nucor’s renewed motion for summary judgment, Nucor’s Daubert motion, and Nucor’s motion to strike an expert. The decisions on these motions would necessarily have a significant impact on the continued litigation and present substantial potential risks for both Parties.
The various strengths and weaknesses of the parties’ claims and defenses strongly favor settlement. As set out above, continued litigation has clear risks, uncertainties, and unproven benefits. The inherent fees and costs associated with extensive litigation and trial will reduce the net amounts available to satisfy claims. Based on the foregoing, the proposed settlement is a reasonable resolution of the dispute between the parties.
Moreover, Plaintiffs could spend significant amounts of time and money preparing for and participating in a drawn-out two-part trial and recover nothing, or significantly less than the relief provided by the proposed settlement. Likewise, Nucor could spend significant amounts of money defending itself in a two-part trial and lose this case. In this circumstance, settlement is preferable to the risks of continued litigation faced by the Parties. The fact that settlement allows both Parties to avoid the risk and expense of further litigation is a factor in support of settlement approval.
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Moreover, “victory -- even at the trial stage -- is not a guarantee of ultimate success” given the risks and expense of appeal. In re Milken & Assoc. Sec. Litig., 150 F.R.D. 46, 53 (S.D.N.Y. 1993). Even if the Settlement Class Members succeeded at trial, they would most certainly face a challenging and lengthy appeal. Such an appeal could significantly alter any potential relief awarded at trial and could even eliminate such relief altogether. Moreover, at the very least, an appeal would postpone any recovery or remedy for years and could result in Nucor ultimately paying no damages at all. If Nucor prevails at trial, it would also likely face a lengthy appellate process with an uncertain outcome.
Accordingly, the various strengths and weaknesses of the Parties’ claims and defenses strongly favors settlement.
iii. The complexity and expense of the case, the adequacy of the settlement, and the stage of litigation support approving the settlement.
The application of elements three through five set forth in S.C. Nat’l Bank support settlement between the Parties because it demonstrates that the settlement is fair, reasonable and adequate. “[A]n integral part of the strength of the case on the merits is a consideration of the various risks and costs that accompany continuation of the litigation.” S.C. Nat’l Bank, 749 F. Supp. at 1426. “The likely duration and associated expenses of continued litigation favor approval of the settlement.” Id.
First, the duration, complexity, and expenditures of continued litigation of the claims supports approval of the proposed settlement. This case has been pending more than a decade and has required nearly 100 depositions and the review and production of thousands and thousands of documents by Nucor. Multiple motions have been briefed and argued, including class certification motions that have been appealed to the Fourth Circuit Court of Appeals on two separate occasions. Numerous experts have been retained by both Parties and these experts have each issued lengthy, complex reports. Over the last ten plus years of litigation, both Parties have
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expended substantial sums in advance of the prosecution and defense of this case. The ordeal of significant pre-trial motions and other pleadings as well as an extremely lengthy two-part trial and an inevitable appeal by at least one, if not both, Parties will necessarily result in extending the length of this case and significant additional expenses.
Second, the adequacy of the Settlement Agreement when weighed against the risks and expenses of continued litigation and trial favors settlement. The Settlement Class Members sought both monetary and injunctive relief and the proposed settlement provides both forms of relief. The Settlement Agreement provides a monetary fund that is a fair and reasonable compromise of the range of backpay and damages calculated by Plaintiffs’ experts. Specifically, the total fund created by Nucor is $22.5 million, with nearly $12.5 million allocated for payments directly to the Settlement Class Members. The process for submitting a Claim Form was not onerous and Settlement Class Members were not required to prove that they suffered any specific amount of damages, or to attempt to estimate the monetary damage they allegedly suffered. Each Settlement Class Member’s monetary recovery will be determined according to the information they provided on their claim form and/or information that is otherwise discovered as part of the investigation by class counsel regarding alleged discrimination in promotions and an allegedly racially hostile work environment at Nucor Berkeley. The injunctive relief provided by the Settlement Agreement relates to the challenged promotions practices and the alleged hostile work environment.
Finally, the current stage of litigation is favorable to settlement. If settlement is not approved, substantial additional work and expenses will be expended in the prosecution and defense of Plaintiffs’ claims. Where, as here, discovery has been nearly completed, and the parties have had a complete opportunity to develop the facts to permit a reasonable judgment on the possible merits of the case, settlement is proper. See Reed, 2016 U.S. Dist. LEXIS 187745 at
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*22-23; Flinn v. F.M.C. Corp., 528 F.2d 1169, 1173 (4th Cir. 1975) cert. denied, 424 U.S. 967 (1976).
Based on the above, the settlement is fair, reasonable and adequate. It satisfies each factor to consider when assessing the propriety of settlement as enunciated in S.C. Nat’l Bank. The settlement is in the Settlement Class Members’ best interest. B. Conclusion
The adequacy of the Settlement Agreement — when weighed against the risks and expenses of continued litigation and an extremely lengthy two-part trial — favors settlement. Therefore, the Court finds that the settlement is a fair, reasonable and adequate resolution of the disputes between the Parties.
Accordingly, the Court hereby provides full and final approval of the proposed Class Action Settlement as set out in the Joint Motion for Class Settlement.
Further, the Court finds that the proposed Class Settlement, as outlined in the Settlement Agreement and Joint Motion for Class Settlement, is fair, adequate, and reasonable, that the notice procedure set out in the Preliminary Order was appropriate and followed by the Parties, and that the Settlement Class meets the requirements of Rule 23(a), 23(b)(1)(B), and 23(b)(3) of the Federal Rules of Civil Procedure.
IV. FINAL APPROVAL OF CLASS COUNSEL FEES AND COSTS AND SERVICE PAYMENTS TO CLASS REPRESENTATIVES Also before the Court is Plaintiffs’ Counsel’s Motion to Approve Attorneys’ Fees and Expenses Pursuant to The Parties’ Settlement Agreement. The Settlement Agreement provides for attorneys’ fees and expenses as follows: In addition to reimbursement of reasonable expenses, the Settlement also provides for reasonable attorneys’ fees for Class Counsel’s work investigating the facts, litigating the case for the past fifteen years, negotiating the settlement, and handling all post-settlement disputes and proceedings. Nucor has agreed that it
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will not object to attorneys’ fees sought by Class Counsel of up to ten million dollars ($10,000,000). Settlement Agreement at §5.01 (ECF 606-2); see also Notice of Proposed Settlement Agreement and Hearing at p. 9 (ECF 606-4). A. Class Counsel’s Request for Attorneys’ Fees Plaintiffs’ Counsel seeks approval of $10,000,000 in attorneys’ fees and $975,699.22 to reimburse for costs and expenses. No objection has been made to the amount of such attorneys’ fees set forth in the Notice to the Settlement Class Members. See e.g. Clark v. Experian Info. Solutions, Inc., 2004 U.S. Dist. LEXIS 32063, *29 (D.S.C. 2004) (“Despite this notice, no Class Member has submitted any objection to an award of the fees now sought, which constitute the maximum allowed under the settlement agreements.”); Fangman v. Genuine Title, LLC, 2016 U.S. Dist. LEXIS 160434, *23 (D.M.D. 2016)(“‘[T]he fact that no objections have been filed further suggests that the result achieved is a desirable one.’”). The Court has previously found that the Notice to be sent to the Settlement Class Members “fairly, accurately, and reasonably informs Settlement Class Members of, and allows Settlement Class Members a full and fair opportunity to consider . . . how administrative costs and potential attorneys’ fees and incentive payments for the Class Representative will be handled [and] the procedures and deadlines for submitting objections.” Order of Preliminary Approval of Settlement Agreement at pp. 2-3 (ECF 607). Courts in the Fourth Circuit have the discretion to choose a lodestar fee approach or, in the context of common fund settlements, a percentage of the fund. DeLoach v. Philip Morris Cos., Inc., No. 1:00CV01235, 2003 WL 23094907, at *3 (M.D.N.C. Dec.19, 2003). Where the cash portion of the settlement is an amount which would not yield a reasonable fee on a percentage basis, the lodestar method is preferred. Id. Here, Plaintiffs’ counsel has requested fees under the lodestar multiplier model and the Court adopts that approach. The Fourth Circuit
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next compels district courts to look to the twelve factors outlined in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978), to evaluate the reasonableness of the fees.
1. Time and labor required. In the seventeen years that this litigation has remained active since the Plaintiffs filed their Charges of racial discrimination with the EEOC in 2001, the Parties have aggressively litigated this case. The Parties conducted both extensive merits and class-based discovery. Numerous depositions including expert witness depositions were taken. The Parties briefed and argued many motions including class certification, three appeals and two Petitions for Certiorari to the United States Supreme Court. The Parties also eventually engaged in settlement negotiations and mediation. As demonstrated in the Declarations and itemizations of time and expense submitted with the Motion for attorneys’ fees and expenses, the Plaintiffs’ attorneys and staff in this litigation have accrued $975, 699.22 in out-of-pocket expenses and over twenty thousand hours of time and labor to date. Absent the Parties’ Settlement Agreement, the total lodestar would be more than $12,000,000, which does not include any additional hours or expenses that will be incurred post-settlement approval. Notably, Class Counsel will be administering the settlement and are not asking for a separate award for that work. Thus, the time and costs continue to accrue but Plaintiffs’ counsel is not requesting additional payment for that work. 2. Novelty and difficulty of the questions involved. As with most class actions, the propriety of class treatment was contested and presented novel and difficult issues in two different appeals brought by the Plaintiffs and one appeal brought by Nucor under Fed. R. Civ. P. 23(f). See Brown v. Nucor, 785 F.3d 895 (4th Cir. 2015); Brown v. Nucor, 576 F.3d 149 (4th Cir. 2009); cert. denied 559 U.S. 974)(2010). It was only after remand from the second appellate mandate compelling class certification that the
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Parties reached the global resolution embodied in the Settlement Agreement and as this case approached a lengthy two-part trial on the merits.
3. The skill that is required to perform the legal services properly. These proceedings required skilled counsel to represent the class interests. The law firms involved have the experience and resources to pursue such litigation and Class Counsel handled this litigation professionally. Nucor, meanwhile, was represented by several leading law firms from around the United States, including one of South Carolina’s leading law firms with considerable expertise in complex litigation and attorneys with substantial knowledge about class action law. The skill required by Class Counsel here is reflected in part by the quality of opposing counsel. See Smith v. Krispy Kreme Doughnut Corp., No. 1:05CV00187, 2007 WL 119157, at *2 (M.D.N.C. Jan. 10, 2007) (“Additional skill is required when the opponent is a sophisticated corporation with sophisticated counsel.).” Given the stakes in this litigation, the complexity of legal questions, and the results obtained for the class, Class Counsel have demonstrated an exceptional level of skill. See also In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 635–36 (D. Colo. 1976) (defense counsel’s reputation considered in determining fee award as their stature reflects challenges faced by plaintiffs’ attorneys). 4. The attorneys’ opportunity costs in pressing the litigation. The prosecuting law firms in this litigation, including Class Counsel, have incurred an immense amount of time, labor and expense during the seventeen years that this case has been litigated administratively and in this Court. Class Counsel also had to spend substantial monies to finance this litigation in an amount close to a million dollars that could not be invested in other cases.
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5. Customary fee. Class Counsel’s fee request here correlates with the lodestar, i.e., the time and labor actually invested in the case. The requested fee amounts to an effective hourly rate of $515 per hour, which is substantially less than the normal non-contingent hourly rate typically billed and awarded to the principal attorneys for less risky and difficult work. As shown in the Declarations, the Johnson factors support much greater hourly rates based on the special demands and extraordinary risks and delay in payment that were encountered in this case. See Whatley Decl. ($650 to $850 or more per hour for non-contingent work); Edw. Bennett Decl. ($650 per hour for non-contingent legal services); Derfner Decl. ($600 to $650 per hour for noncontingent work); Wiggins Decl. ($650 to $850 or more per hour for non-contingent services). The Court finds that the hourly rates are reasonable for the reasons set forth in such Declarations. The amount of fee allowed by the Parties’ Settlement Agreement satisfies the standards for approval in light of the fact that it is less than the lodestar fee that would be reasonable pursuant to the Johnson factors that the Fourth Circuit and this Court apply in determining a reasonable fee. See Reed v. Big Water Resorts, LLC, 2016 U.S. Dist. LEXIS 187745, **24-25, 27 (D.S.C. 2016) (“Class Counsel's fee request here correlates with the lodestar, i.e., the time actually invested in the case.”). As shown in the Plaintiffs’ Declarations, although the requested fee is limited to the $10,000,000 referenced in the parties’ Settlement Agreement, the lodestar fee that would be reasonable under the Johnson factors is substantially more than that amount based on the special risks, skills and expertise, difficulties, persistence and amount of work demanded by the circumstances of this case. Each of the twelve Johnson factors support an amount of fee much greater than that contemplated by the Settlement Agreement and Notice to the Settlement Class Members. Id. In the absence of the Parties’ Settlement Agreement, the lodestar would be greater than $12,000,000 without a multiplier premium or fractional risk-
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adjustment payment for the contingent risk in this case. Class Counsel received no hourly payments or any other compensation from the Class Representatives. “Class Counsel undertook enormous obligations and responsibilities in this litigation and produced a significant result. Without these efforts, it is highly unlikely that the class could have obtained any relief whatsoever.” Reed v. Big Water Resort, 2016 U.S. Dist. LEXIS 187745 at *30.
6. The contingent nature of the matter/the attorneys’ expectations at the outset of the litigation.
Class Counsel understood from the outset of this litigation that there would be no attorneys’ fee if there were no recovery. “In complex and multi-year class action cases, the risks of litigation are immense and the risk of receiving little or no recovery is a major factor in awarding attorney’s fees.” Savani v. URS Prof’l Solutions LLC, C/A No. 1:06- cv-02805-JMC, 2014 WL 172503, at *5 (D.S.C. Jan. 15, 2014) (citing Phillips v. Crown Cent. Petroleum Corp., 426 F. Supp. 1156, 1170 (D. Md. 1977)). Class Counsel worked for seventeen years with no payment on this litigation and at great risk of taking no payment at all despite many thousands of hours of accumulating time. Moreover, Class Counsel could have lost their entire investment in out-of-pocket expenses, an amount that now totals $975,699.22.
There was a significant risk of no recovery in this litigation. Even once Plaintiffs had prevailed on class certification, no judgment or settlement could be secured until many additional steps, including dispositive motions, Daubert motions, trial, and potentially more appeals, had been completed. Class Counsel was aware that any one of a number of rulings could undermine the litigation and could result in Class Counsel taking nothing for their efforts. “Such ‘burdens are relevant circumstances’ that support the requested award.” Savani, 2014 WL 172503, at *5 (quoting Torrisi v. Tucson Elec. Power Co., 83 F.3d 1370, 1377 (9th Cir. 1993)).
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7. The time limitations imposed by the client or circumstances. This action necessitated extensive efforts in briefing, class discovery, merits discovery, three appeals, and eventual settlement negotiations and administration. Because these actions were filed in federal court, “there have been regular deadlines imposed by the Federal Rules of Civil Procedure and the local rules of court. In this regard, priority work that delays the lawyer’s other work is entitled to some premium.” Savani, 2014 WL 172503, at *6 (internal quotations omitted). It appears that Class Counsel coordinated their efforts efficiently to obtain the best possible result for the class in an appropriate amount of time given the unique circumstances of this case. 8. The amount in controversy and the amount obtained. “[T]he extent of the relief obtained by the plaintiff [is] particularly important when calculating reasonable fees, and Barber requires district courts to weigh the amount in controversy to the results obtained before deciding upon a reasonable fee.” Nigh v. Koons Buick Pontiac GMC, Inc., 478 F.3d 183, 190 (4th Cir. 2007) (internal quotations and citations omitted). Here, Plaintiffs sought and obtained fair, adequate, and reasonable back-pay, damages and injunctive relief as part of the settlement. Given the relatively small size of the class, Nucor is funding a Settlement Fund that will lead to average payments of around $100,000 to the Settlement Class Members who have submitted valid claims pursuant to the Settlement Agreement. Given that Nucor had significant defenses and is providing injunctive relief in addition to the cash settlement, the Settlement Agreement provides fair, adequate, and reasonable results to the class. Class Counsel undertook enormous obligations and responsibilities in this litigation. Without these efforts, it is highly unlikely that the class could have obtained any relief whatsoever.
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9. The experience, reputation and ability of counsel. Class Counsel consists of firms with expertise in complex litigation and with a history of success in difficult litigation. Class Counsel’s reputation and experience in litigating complex cases assisted the class in achieving the results obtained here. 10. The undesirability of the case. As pointed out in the Declarations before the Court, thís litigation was undesirable for many reasons. Ordinarily, it is not uncommon for class actions to attract additional law firms seeking to be brought into the litigation. Such activity did not occur here. No other law firm took on this case, nor attempted to represent any of the class members in pursuing claims. 11. Nature and length of the professional relationship.1 No discount in fees or hourly rates for regular or future business applies here because Class Counsel had no preexisting relationship with any of the Class Representatives and no expectation of any significant future business. Class Counsel, however, worked closely with these Class Representatives throughout the litigation. The Class Representatives have ably assisted Class Counsel in the pursuit of the claims. There is no reason to suggest that the Class Representatives are dissatisfied with the representation they received here. 12. Attorneys’ fees awarded in similar cases. Because Class Counsel’s fee request is concentrated on actual time rather than a percentage of the fund, reference to “similar cases”2 lacks substantial meaning other than by
1 This factor arguably has no application in connection to class action litigation. See In re Catfish Antitrust Litig., 939 F. Supp. 493, 502 (N.D. Miss. 1996). 2 Even though Class Counsel is requesting a fee on a lodestar as opposed to a percentage of the fund analysis, it should be noted that the request focusing solely on the cash value of the settlement is 45% of the value which is in line with multiplier and common fund percentages in other cases. See Kidrick v. ABC Television & Appliance Rental, Inc., Docket No. 97–cv– 0069, 1999 WL 1027050, at *2 (N.D. W.Va. May 12, 1999) (noting that use of a percentage method of calculating attorneys' fees is favored in class action settlements where there is a common fund, and that awards of 30%, 35%, and even 50% have been held reasonable); Anselmo v. West
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reference to the multiplier assessment that immediately follows. This is especially true because Class Counsel is going to be administering the settlement and is not seeking additional funds for that process.
Furthermore, the requested fee is reasonable when viewed in terms of a lodestar crosscheck, i.e., a determination of whether the plaintiff’s attorney seeks a fee that can be viewed as reasonable with a multiplier on the incurred time and labor. Using this approach, Class Counsel’s request falls well within the range of reasonable.
Class Counsel’s fee is reasonable when compared to the multiplier fee that would be justified in this case for the special skills, risks and other difficulties encountered by Class Counsel in this case. This is especially true here as the lodestar will continue to decrease because Class Counsel will have additional future time to be incurred including time administering the Settlement Agreement of the Parties, which could support the imposition of a multiplier. “Courts have generally held that lodestar multipliers falling between 2 and 4.5 demonstrate a reasonable attorneys’ fee.” Singleton v. Domino’s Pizza, LLC, 976 F. Supp. 2d 665, 689 (D. Md. 2013) (citations omitted).
Even if the amount of time and labor did not reach the $10,000,000 referenced in the Parties’ Settlement Agreement, the requested fee would be reasonable and deserving of a lodestar enhancement. Class Counsel pressed forward here for many years in an environment of uncertainty with considerable risk. A multiplier enhancement, which is subject to reduction as other work is performed, would be reasonable under the facts of this case and therefore the requested $10,000,000 fee is reasonable under the lodestar cross-check.
Paces Hotel Grp., LLC, 2012 WL 586887, *3-4 (D.S.C. Nov. 19, 2012) (“The approximate 33% for fees provided here is reasonable in light of all pertinent factors, including precedent and beneficial results obtained.
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B. Plaintiffs’ Counsel’s Cost Request “Costs that are ‘reasonable in nature and amount, may be reimbursed from the common
fund.’” Kay Co. v. Equitable Production Co., F. Supp. 2d 455 at 471 (S.D. W. Va. 2010) (citations omitted). Costs should “reflect a reasonable amount of expenditures for a case of [its] magnitude,” Strang v. JHM Mortg. Secs. Ltd. P’ship, 890 F.Supp. 499, 503 (E.D. Va. 1995), and also “bear a reasonable relationship to the time and effort expended and the result achieved.” In re Microstrategy Securities Litigation, 172 F. Supp. 2d 778 at 791 (E.D. Va. 2001). Plaintiffs’ Counsel seeks reimbursement for costs in the amount of $975,699.22, which is less than the amount that will be actually incurred because it does not take into account future costs that Plaintiffs’ counsel will incur in administering, monitoring and finalizing the settlement. The expenditures are supported by the record and are reasonable in light of the depth, breadth, and longevity of this litigation. A substantial portion of these costs are related to payments to the experts retained by Plaintiffs, all of whom presented detailed reports, and who were deposed. In addition, Plaintiffs’ Counsel also had to pay the day-to-day costs of over seventeen years of litigation, including numerous depositions. Given the length and depth of the litigation, the Court finds that Plaintiffs’ Counsel’s request for reimbursement of costs is reasonable and awards Plaintiffs’ Counsel reimbursement for those costs in the amount of $975,699.22. C. Request for Service Payments
Plaintiffs’ Counsel seek (and Nucor has agreed not to object to) service payments of $40,000 for each individual Class Representative. Service payment awards are routinely approved in class actions to encourage socially beneficial litigation by compensating named plaintiffs for their expenses on travel and other incidental costs, as well as their personal time spent advancing the litigation on behalf of the class and for any personal risk they undertook. Kay, F. Supp. 2d 455, 472 (S.D.W. Va. 2010). Serving as a class representative is a burdensome
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task, and, without class representatives, the entire class would receive nothing. Id. The Class Representatives in this action provided substantial aid to Plaintiffs’ Counsel, including deposition testimony that advanced the interests of all Settlement Class Members and attended the mediation.
Based on the foregoing, Plaintiffs’ Counsel seeks incentive fee payments of $40,000.00 each for Quinton Brown, Alvin Simmons, Sheldon Singletary, Gerald White, Jason Guy, and Jacob Ravenell. Given the aid and assistance provided by each, the Court finds the service payment request reasonable.
VI. CONCLUSION Based on the foregoing and after notice to the Settlement Class Members was provided in compliance with the notice plan, the Court hereby Orders and Directs: a. The Court gives final approval of the Class Action Settlement as set out in the
Class Action Settlement Agreement; b. The Court awards Class Counsel attorney fees of $10,000,000.00 and
reimbursement of costs in the amount of $975,699.22; c. The Court approves service payments of $40,000.00 each to Quinton Brown,
Alvin Simmons, Sheldon Singletary, Gerald White, Jason Guy, and Jacob Ravenell; d. Within 3 days of Nucor funding the Settlement Fund set forth in Section 3.01 of the Settlement Agreement, the Court will dismiss this Action, with prejudice, without costs to any Party, except as expressly provided for in the Settlement Agreement; e. Within 3 days of Nucor funding the Settlement Fund set forth in Section 3.01 of the Settlement Agreement, the Court will dismiss the action entitled Conyers, et
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al. v. Nucor Corporation, et al., Case No. 2:12-cv-3478-CWH-BM, with prejudice, without costs to any Party f. Direct the Clerk of the Court to enter Final Judgment forthwith; and, g. Retain jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of the Settlement. AND IT IS SO ORDERED.

February 22, 2018 Charleston, South Carolina

DAVID C. NORTON UNITED STATES DISTRICT JUDGE

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 Brown, et al v. Nucor Corporation, et al, Docket No. 2_04-cv-22005 (D.S.C. Aug 25, 2004), Court Docket

Multiple Documents

Part Description

1

3 pages

2

Memo in Support Joint Memo in Support of Motion for Approval of Settlement Agree

3

Exhibit Exhibit A to Joint Memo in Support: Settlement Agreement and Release

4

Exhibit Exhibit A to Settlement Agreement: Claims Form

5

Exhibit Exhibit B to Settlement Agreement: Notice of Settlement

6

Proposed Order Exhibit C - Proposed Order for Preliminary Approval

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 1

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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Settlement Agreement") is made by and between Nucor Corporation and Nucor Steel Berkeley (collectively "Nucor") and Quinton Brown, Alvin Simmons, Sheldon Singletary, Gerald White, Jason Guy, and Jacob Ravenell (collectively, the "Class Representatives"), on behalf of themselves individually and a settlement class of all African-Americans who are, or were employed by Nucor Corporation or Nucor Steel Berkeley at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time between December 2, 1999 and April 27, 2011 , in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because of Nucor' s challenged practices, and who previously did not opt out of the class (collectively with the Class Representatives, the "Settlement Class Members"). Nucor and the Class Representatives (collectively, the "Parties") agree as follows:
I. RECITALS
1.01 The Class Representatives filed a class action in the District of South Carolina against Nucor entitled Brown, et al. v. Nucor Corporation, et al. , Case No. 2:04cv-22005-DCN (the "Action").
1.02 The Class Representatives have asserted various claims on behalf of themselves individually and the Settlement Class Members against Nucor relating to alleged discrimination in certain departments at the Nucor Berkeley manufacturing plant in Huger, South Carolina.
1.03 Nucor has denied and continues to deny all material allegations in the Action as well as all liability or fault based on the Class Representatives' claims. The Settlement Agreement should not be construed as evidence of, or an admission by, Nucor of any wrongdoing or liability.
1.04 Recognizing the cost and uncertainty associated with a trial and any subsequent appeal, the Parties wish to enter into this Settlement Agreement to provide for the resolution of the claims settled between the Settlement Class Members and Nucor in accordance with the tenns herein.
1.05 This Settlement Agreement resulted from good faith, arm' s length settlement negotiations, including an in-person mediation as well as numerous telephonic conferences with Hunter R. Hughes, an experienced and well-respected private mediator.
1.06 The Settlement Agreement is intended to implement the Memorandum of Understanding dated November 3, 2017, to which the Parties agreed and also to provide for the full, complete and final resolution, in lieu of further litigation, of all such claims
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settled between Nucor and the Class Representatives on behalf of all Settlement Class Members.
1.07 The Parties have agreed to this Settlement Agreement to provide for the complete and final resolution of all such claims settled between Nucor and the Class Representatives on behalf of all Settlement Class Members, subject to the provisions contained herein, for an Aggregate Settlement Amount of $22,500,000.00 (twenty-two million five hundred thousand dollars and zero cents).
1.08 The Settlement contemplated by this Settlement Agreement is subject to preliminary approval and final approval by the Court, as set forth herein.
II. DEFINITIONS
2.01 "Action" means and refers to the class action filed in the District of South Carolina against Nucor entitled Brown, et al. v. Nucor Corporation, et al. , Case No. 2:04cv-22005-DCN.
2.02 "Agreement" or "Settlement Agreement" means and refers to this Settlement Agreement and Release.
2.03 "Aggregate Settlement Amount" means and refers to the total sum of $22,500,000.00 (twenty-two million five hundred thousand dollars and zero cents).
2.04 "Claim Form" means and refers to the claim form substantially in the form attached hereto as Exhibit A.
2.05 "Claim Form Deadline" means and refers to _ _ __ _, 2018.
2.06 "Class Counsel" means and refers to lawyers that were appointed by the Court to represent the Settlement Class Members.
2.07 "Class Notice" or "Notice" means and refers to the notice specified in Section VIII of this Settlement Agreement including, without limitation, notice sent via first class mail. Notice shall be substantially in the form attached hereto as Exhibit B, subject to the Court' s approval.
2.08 "Class Representatives" means and refers to Named Plaintiffs Quinton Brown, Alvin Simmons, Sheldon Singletary, Gerald White, Jason Guy, and Jacob Ravenell.
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2.09 "Court" means and refers to the United States District Court for the District of South Carolina and U.S. District Judge David C. Norton, to whom the Action has been assigned.
2.10 "Effective Date" means and refers to the date on which the Judgment has become final as provided in Section 10.05.
2.11 "Eligible Claimant" means and refers to any Settlement Class Member who has provided adequate proof that he/she is entitled to an Individual Settlement Payment.
2.12 "Final Fairness Hearing" means and refers to the hearing held by the Court to determine whether to finally approve the Settlement set forth in this Settlement Agreement as fair, reasonable and adequate.
2.13 "Final Approval Order" means and refers to the order to be submitted to the Court in connection with the Final Fairness Hearing.
2.14 "Funding Date" means and refers to ten ( 10) days after the entry ofthe Final Judgment as defined in Section 9.05.
2.15 "Individual Settlement Payment" means and refers to the total amount of monetary compensation, if any, an Eligible Claimant receives pursuant to the individual settlement payment criteria set forth in Section 3.03 of this Settlement Agreement.
2.16 "Nucor" means and refers to Nucor Corporation and Nucor Steel Berkeley; each and every corporate parent, division, subsidiary, joint venture, successor in interest, corporate affiliate, partnership, or franchisee of Nucor Corporation and/or Nucor Steel Berkeley; each and every past, present and future officer, director, agent, stockholder, insurer, legal representative and employee of Nucor; and, each heir, executor, administrator, successor or assign ofNucor.
2.17 "Objection Deadline" means and refers to _ _ _ _ _ _ _ _, 2018.
2.18 "Preliminary Approval Order" means and refers to the Order by the Court granting preliminary approval to this Settlement, substantially in the form attached hereto as Exhibit C.
2.19 "Released Claims" means and refers to any and all claims, appeals, demands, causes of action, obligations, damages, suits, debts, sums of money, accounts, bonds, bills, covenants, controversies, agreements, promises, variances, trespasses, judgments, charges and liabilities whatsoever, both known and unknown, in law or in equity, that the Settlement Class Members may now have or have ever had, relating directly or indirectly to the allegations in Brown, et al. v. Nucor Corporation, et al., Case No. 2:04-
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cv-22005-DCN currently pending in the District of South Carolina, and/or Conyers, eta/. v. Nucor Corporation, eta/., Case No. 2:12-cv-3478-CWH-BM currently pending in the District of South Carolina, including, but not limited to, any claims relating in any way to race arising under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991; Section 1981 of Title 42 of the United States Code, as amended; the Fair Labor Standards Act of 1938, 29 U.S.C. Section 201 et seq.; the Equal Pay Act; as well as all claims relating in any way to race arising under federal, state, or local law involving any employment related cause of action, contract (express or implied), public policy, wrongful discharge, or any other hostile work enviromnent, failure to promote and/or failure to hire claim relating to their employment with Nucor.
2.20 "Released Parties" means and refers to Nucor (as defined above) and all affiliated and related companies and corporations (including all past, present, or future parent and subsidiary companies, divisions, successors in interest, franchisees, partners, joint ventures, affiliates, and predecessors, and all of its direct and indirect subsidiaries, partners, joint ventures, employees, predecessors or assigns), and all of their respective past, present and future officers, directors, stockholders, affiliates, partners, agents, servants, representatives, employees, predecessors, successors, subrogees, assigns, heirs, administrators, attorneys (including but not limited to Turner Padget Graham & Laney, Dowd Bennett LLP, Alaniz Schraeder Linker Farris Mayes, Winstead, and all lawyers affiliated with those firms), self-insured entities, insurers, and insurance agents and brokers.
2.21 "Settlement" or "Settlement Agreement" means and refers to this Agreement between Nucor and the Class Representatives on behalf ofthe Settlement Class Members and each and every exhibit attached hereto.
2.22 "Settlement Class Members" means and refers to all African-Americans who are, or were employed by Nucor Corporation or Nucor Steel Berkeley at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time between December 2, 1999 and April27, 2011, in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because of Nucor's challenged practices, and who have not opted out of the class.
2.23 "Settlement Fund" means and refers to the non-reversionary cash swn that Nucor will pay pursuant to this Settlement Agreement.
III. SETTLEMENT SUMS AND PAYMENT.
3.01 Establishment and Use of Settlement Fund. Nucor shall establish a $22,500,000.00 (twenty-two million five hundred thousand dollars and zero cents) Settlement Fund on or before the Funding Date. The Settlement Fund shall be applied as follows :
4

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(a) to distribute to eligible Settlement Class Members, including the Class Representatives, pursuant to the standards set forth in Section 3.03 of this Settlement Agreement;
(b) to pay Class Counsels' attorneys' fees and expenses and the Class Representatives' expenses that are approved by the Court;
(c) to pay all Class Notice and administration costs; and,
(d) to pay withholding taxes to the extent required to be withheld from employee' s wages by federal, state or local law.
3.02 Submission of a Claim Form. In order to be eligible to receive an Individual Settlement Payment Settlement Class Members must fill out the Claim Form and return it to the address listed below on or before the Claim Fonn Deadline:
Claims Administrator Wiggins, Childs, Pantazis, Fisher & Goldfarb The Kress Bldg. 301 North 19th Street Birmingham, Alabama 35203 Telephone No. 1-866-563-1773
3.03 Determination of Individual Settlement Payments: The amount of each Individual Settlement Payment will be based on the infonnation Settlement Class Members provide on the Claim Fonn and/or infonnation that is otherwise discovered as part of the investigation of Class Counsel regarding alleged discrimination in promotions and an alleged racially hostile work environment at the Nucor Berkeley plant. The amount of each Individual Settlement Payment will be based on the relative strength of the alleged merits of the Settlement Class Member's claim(s) based on the following criteria without limitation:
(a) Claims of alleged discrimination in promotions will be weighted on the basis of the following factors : the amount of pay difference and length of the backpay period associated with the promotion at issue; whether the claimant bid for one or more promotions that were awarded to persons of another race; whether there was alleged direct or circumstantial evidence of racial bias by the supervisors or managers involved with the promotion at issue; and, whether the claimant had the minimum qualifications required for the promotion at issue.
5

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(b) Claims of an alleged racially hostile work environment will be weighted on the basis of the following factors: alleged frequency, severity and duration of the alleged racial hostility experienced; whether the alleged racial hostility was experienced directly or vicariously; whether the alleged racial hostility came from a supervisor or co-worker; whether the alleged racial hostility was subjectively offensive to the claimant; whether the alleged racial hostility resulted in a tangible employment action; and, whether the alleged racial hostility was reported or known to, or otherwise redressed by, management.
(c) The Individual Settlement Payments for the Class Representatives in the Action and the Plaintiffs in Conyers, et a/. v. Nucor Corporation, et a/. who have pled individual, non-class claims of racially discriminatory or retaliatory discharge will be based on the alleged merits of such claims and the alleged resulting economic losses in addition to their alleged promotion and hostile environment claims and losses, if any.
(d) Based on their active involvement in prosecuting this case, the Class Representatives (as defined in the Settlement Agreement) will receive a service payment of $40,000 in addition to the amount they receive based on the allocation system described above. The Class Representatives' service payments are for the time, effort and risk they personally invested in the Action on behalf of the Settlement Class Members. Nucor does not object to the Class Representatives receiving a service payment of up to forty thousand dollars ($40,000.00) per Class Representative.
IV. INJUNCTIVE RELIEF.
4.01 Nucor has agreed to the following with regard to Nucor Steel Berkeley:
(a) Provide comprehensive training on its non-discrimination/harassment policy to all employees, supervisors and managers, including one annual training meeting conducted by outside counsel for Nucor and a Nucor human resource representative with expertise in identifying and preventing racial hostility and harassment of African-Americans;
(b) Reiterate to employees Nucor' s commitment to nondiscrimination/harassment by electronically sending a copy of the non-discrimination/harassment policy to every employee annually, and by providing access to the non-discrimination/harassment policy
6

2:04-cv-22005-DCN Date Filed 12/26/17 Entry Number 606-2 Page 7 of 16
on the Company intranet;
(c) Include a provision in an appropriate policy outlining that all complaints of discrimination and/or harassment will be investigated, how to properly investigate a discrimination and/or harassment complaint, including a requirement of written documentation of the investigation, and stating that a report of discrimination and/or harassment does not require corroborating witnesses or evidence to be investigated; Nucor's harassment policy will include a prominent statement that employees can be terminated for racial harassment or hostility and/or for failing to timely or properly report racial harassment or hostility that has come to their attention;
(d) Provide that all job vacancies in hourly jobs, as well as all salary jobs, which have been traditionally posted in the past, shall be posted physically and electronically for a period ofat least 7 days so that they are electronically and physically accessible to Nucor employees currently employed at the time of the job posting;
(e) Include a provision in an appropriate policy that all documentation relating to a job posting will be retained for 4 years after a teammate separates from Nucor or 4 years after a decision is made not to hire/promote, whichever is later; and,
(t) The job postings will provide selection criteria and job-related qualifications to be considered for each job opening that is posted.
Neither the tenns set forth above in subsections A, B, C, D, E, and F nor the fact that Nucor has agreed to the tenns shall constitute or be treated as an admission that Nucor has not already been sufficiently carrying out the actions identified in subsections A, B, C, D, E, and F.
V. CLASS COUNSELS' FEES, EXPENSES
5.01 Counsel's Attorneys' Fees and Expenses. In addition to reimbursement of reasonable expenses, the Settlement provides for reasonable attorneys' fees for Class Counsels' work investigating the facts, litigating the case for the past fifteen years, negotiating the Settlement, and handling all post-settlement disputes and proceedings. Nucor will not object to attorneys ' fees of up to ten million dollars ($10,000,000) in fees in addition to documented expenses.
7

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VI. ACKNOWLEDGEMENT THAT THE SETTLEMENT IS FAIR, ADEQUATE AND REASONABLE.
6.01 The Settlement is Fair, Adequate and Reasonable. The Parties stipulate that the Settlement Agreement is a fair, adequate, and reasonable settlement of the Action and that the Parties have arrived at this Settlement after arm's-length negotiations and mediation, and in the context of adversarial litigation, taking into account all relevant factors, present and potential. The Parties further acknowledge that they are each represented by competent counsel and that they have had an opportunity to consult with their counsel regarding the fairness and reasonableness of this settlement.
VII. PRELIMINARY APPROVAL
7.01 Order of Preliminary Approval. As soon as practicable after the execution of this Agreement, the Parties shall move the Court for entry of the Preliminary Approval Order in substantially the fonn attached as Exhibit C. Pursuant to the Motion for Preliminary Approval, the Parties will request that:
(a) the Court preliminarily approve the Settlement and this Agreement as fair, adequate and reasonable, and within the reasonable range of possible final approval;
(b) the Court approve the fonn ofNotice and find that the notice program set forth herein constitutes the best notice practicable under the circumstances, and satisfies due process and Rule 23 of the Federal Rules of Civil Procedure; and,
(c) the Court set the date and time for the Final Fairness Hearing, which may be continued by the Court from time to time without the necessity of further notice.
VIII. ADMINISTRATION AND NOTIFICATION PROCESS
8.01 Administration of the Settlement. Class Counsel shall be responsible for all matters relating to the administration of this Settlement. Those responsibilities include, but are not limited to: mailing notice, obtaining new addresses for returned mail, setting up and maintaining the Settlement website and toll-free number, fielding inquiries about the Settlement, processing Claim Fonns, approving Claim Fmms, directing the mailing of Individual Settlement Sums to Settlement Class Members, and any other tasks reasonably required to effectuate the Settlement. Class Counsel will periodically provide updates on the status of settlement administration to counsel for Nucor.
8

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8.02 Notification of Settlement. To facilitate the Notice and claims administration process, Nucor will provide to Class Counsel within seven (7) days of the Preliminary Approval Order the last known mailing address for all Settlement Class Members. Any personal infonnation relating to the Settlement Class Members shall be provided solely for the purpose of providing Notice to members of the Settlement Class and shall be kept in strict confidence. The personal information shall be used only for purposes of this Settlement and shall not be disclosed to any third party. Class Counsel shall send the Class Notice via first class mail to the last known mailing address of each Settlement Class Member.
8.03 Timing of Class Notice. Class Notice shall be provided to all Settlement Class Members within fourteen (14) days following entry of the Preliminary Approval Order.
8.04 Re-Mailing of Returned Class Notices. Class Counsel shall promptly remail any Class Notices that are returned as non-deliverable with a forwarding address to such forwarding address. Class Counsel may perfonn skip tracing for returned mail.
8.05 Internet Notice. Class Counsel shall maintain and administer a dedicated Settlement Website containing class infonnation and related documents, along with infonnation necessary to submit a Claim Form. At a minimum, such documents shall include the Settlement Agreement and attached exhibits, the Class Notice, a downloadable Claim Fonn, the operative Complaint, and when filed, the Final Approval Order.
8.06 Toll-Free Telephone Number. Within ten (1 0) days of the Preliminary Approval Order, Class Counsel shall set up a toll-free telephone number for receiving tollfree calls related to the Settlement. That telephone number shall be maintained until thirty (30) days after the Claim Form Deadline. After that time, and for a period of ninety (90) days thereafter, a recording will advise any caller to the toll-free number that the Claim Fonn Deadline has passed and the details regarding the Settlement may be reviewed on the related Settlement Website.
8.07 Payment of Notice and Claims Administration Costs. All costs relating to Notice and claims administration will be paid from the Settlement Fund.
IX. OBJECTIONS
9.01 Objections. The Parties agree that it is a material tenn that all Settlement Class Members have already been given the opportunity to opt-out of this case and will not be provided any additional opt-out rights pursuant to this Settlement Agreement and/or the Federal Rules of Civil Procedure, provided, however, that the Settlement Class Members shall have the opportunity to object to the Settlement Agreement.
9

2:04-cv-22005-DCN Date Filed 12/26/17 Entry Number 606-2 Page 10 of 16
9.02 Submission of Objection. Any Settlement Class Member who intends to object to the fairness of this Settlement must mail a written letter postmarked on or before the Objection Deadline to the addresses listed below:
Claims Administrator Wiggins, Childs, Pantazis, Fisher & Goldfarb The Kress Bldg. 301 North 19th Street Birmingham, Alabama 35203 Telephone No. 1-866-563-1773
Counsel for Nucor Jennifer S. Kingston Dowd Bennett LLP 7733 Forsyth Blvd., Suite 1900 St. Louis, Missouri 63105
All objection letters must be signed, and must include the name and number of this Action (Brown, et al. v. Nucor Corporation, et al., Civil Action No. 2:04-cv-22005) and a detailed description of the basis for the objection. The objection letter should indicate whether the Settlement Class Member intends to appear at the Final Fairness Hearing on their own behalf. Attendance at the Final Fairness Hearing is not required. All documents that the Settlement Class Member wishes for the Court or the Parties to consider must also be attached to the objection.
X. FINAL APPROVAL AND JUDGMENT ORDER
10.01 Declaration regarding Notice. No later than fourteen (14) days prior to the Final Fairness Hearing, Class Counsel shall file with the Court and serve on counsel for Nucor a declaration stating that the Class Notice required by the Settlement Agreement has been completed in accordance with the terms of the Preliminary Approval Order.
10.02 Filings prior to Final Fairness Hearing: If the Settlement is approved preliminarily by the Court, no later than seven (7) days prior to the Final Fairness Hearing:
(a) The Parties shall request that the Court enter a Final Approval Order and will provide such a proposed Order to the Court;
(b) The Parties shall file a memorandum of points and authorities in support of a Motion for Final Approval; and,
(c) Class Counsel and/or Counsel for Nucor may file a memorandum addressing any objections submitted relating to the Settlement.
10

2:04-cv-22005-DCN Date Filed 12/26/17 Entry Number 606-2 Page 11 of 16
10.03 Final Fairness Hearing. At the Final Fairness Hearing, the Parties will ask the Court to find that the Settlement should be finally approved as fair, reasonable and adequate, that any objections to the Settlement should be overruled, that the attorneys' fees and expense award and incentive payments to the Class Representatives should be approved, and that a judgment finally approving the Settlement should be entered.
10.04 Final Approval Order. This Agreement is subject to and conditioned upon the issuance by the Court of a Final Approval Order, which grants final approval of this Agreement and:
(a) finds that the Notice provided satisfies the requirements of due process and Federal Rule of Civil Procedure 23(e)(1 );
(b) finds that Settlement Class Members have been adequately represented by Class Counsel;
(c) finds that the Settlement Agreement is fair, reasonable and adequate to the Settlement Class Members, that each Settlement Class Member shall be bound by this Agreement, including the release in Section XI, and that this Settlement Agreement should be and is approved; and,
(d) retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of this Settlement.
10.05 Final Judgment. The Judgment entered at the Final Fairness Hearing shall be deemed final:
(a) Thirty (30) days after entry of the Judgment approving the Settlement if no document is filed within that time seeking appeal, review, or rehearing of the Judgment; or
(b) If such document is filed, then five (5) days after the date upon which all appellate and/or other proceedings resulting from such document have been finally terminated in such a manner as to permit the Judgment to take effect in substantially the form described in Section 10.04.
10.06 Dismissal with Prejudice. Counsel for the Class Representatives and Settlement Class Members shall file a dismissal with prejudice relating to both Brown, et al. v. Nucor Corporation, et al., Case No. 2:04-cv-22005-DCN currently pending in the District of South Carolina, and Conyers, et al. v. Nucor Corporation, et al. , Case No. 2:12-
11

2:04-cv-22005-DCN Date Filed 12/26/17 Entry Number 606-2 Page 12 of 16
cv-3478-CWH-BM currently pending in the District of South Carolina within 3 days of Nucor funding the Settlement Fund set forth in Section 3.01.
XI. RELEASE OF CLAIMS
11.01 Released Claims. The Settlement Class Members, as well as their respective assigns, executors, administrators, successors and agents, hereby release, resolve, relinquish and discharge each and all of the Released Parties from each and all of the Released Claims. The Settlement Class Members agree to release Nucor and all of the Released Parties from any and all claims, appeals, demands, causes of action, obligations, damages, suits, debts, sums of money, accounts, bonds, bills, covenants, controversies, agreements, promises, variances, trespasses, judgments, charges and liabilities whatsoever, both known and unknown, in law or in equity, that the Settlement Class Members may now have, or have ever had relating directly or indirectly to the allegations in Brown, et al. v. Nucor Corporation, et al. , Case No. 2:04-cv-22005-DCN currently pending in the District of South Carolina, and/or Conyers, et al. v. Nucor Corporation, et al., Case No. 2:12-cv3478-CWH-BM currently pending in the District of South Carolina, including, but not limited to, any claims relating in any way to race arising under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991; Section 1981 of Title 42 of the United States Code, as amended; the Fair Labor Standards Act of 1938, 29 U.S.C. Section 201 et seq.; the Equal Pay Act; as well as all claims relating in any way to race arising under federal , state, or local law involving any employment related cause of action, contract (express or implied), public policy, wrongful discharge, or any other hostile work environment, failure to promote and/or failure to hire claim relating to their employment with Nucor.
11.02 Released Parties. The Settlement Class Members agree that the Release set forth in Section 11.0 I shall apply to and release Nucor and all affiliated and related companies and corporations (including all past, present, or future parent and subsidiary companies, divisions, successors in interest, franchisees, partners, joint ventures, affiliates, and predecessors, and all of its direct and indirect subsidiaries, partners, joint ventures, employees, predecessors or assigns), and all of their respective past, present and future officers, directors, stockholders, affiliates, partners, agents, servants, representatives, employees, predecessors, successors, subrogees, assigns, heirs, administrators, attorneys (including but not limited to Turner Padget Graham & Laney, Dowd Bennett LLP, Alaniz Schraeder Linker Farris Mayes, and Winstead, and all lawyers affiliated with those firms), self-insured entities, insurers, and insurance agents and brokers from the Released Claims.
XII. TERMINATION OF AGREEMENT
12.01 Modification of Material Terms. The Class Representatives, Class Counsel and Nucor shall each have the right to unilaterally tenninate this Agreement if the Court modifies any material terms of the Agreement. IfNucor exerci ses its option to void
12

2:04-cv-22005-DCN Date Filed 12/26/17 Entry Number 606-2 Page 13 of 16
this Settlement Agreement, it will be responsible for all settlement administration costs incurred to the date of cancellation.
12.02 Modification of the Criteria for Allocation. It shall not be a basis for any Party to terminate the Settlement Agreement if the Court modifies the criteria for allocation of the Settlement Fund amongst the Settlement Class Members; provided, however, that the Class Representatives or their Counsel shall be entitled to appeal or otherwise challenge any such modification or disapproval.
12.03 Modification ofAttorneys' Fee and Expense Award. It shall not be a basis to terminate the Settlement Agreement ifthe Court disapproves of or modifies the terms of the Settlement Agreement with respect to the attorneys' fee and expense award; provided, however, that the Class Representatives or their Counsel shall be entitled to appeal or otherwise challenge any such modification or disapproval.
XIII. NO ADMISSION OF LIABILITY
13.01 Denial of Any Liability or Wrongdoing. Nucor and the other Released Parties have denied and continue to deny liability or fault based on the Class Representatives' and the Settlement Class Members' claims. Neither the terms contained in this Settlement Agreement nor the fact that the Parties have entered into this Settlement Agreement shall constitute or be treated as an admission of liability, wrongdoing or the violation of any rights or statute by any of the Released Parties.
13.02 Inadmissibility of Agreement. Pursuant to Federal Rules of Evidence Rule 408 and any similar provisions under the laws of other states, neither this Agreement nor any related documents filed or created in connection with this Agreement shall be admissible in evidence in any proceeding, except as necessary to approve, interpret or enforce this Agreement.
XIV. TAXES
14.01 No Representations. The Parties and their attorneys make no representations regarding the tax consequences relating to this Settlement Agreement, if any, or any payments made thereunder.
XV. MISCELLANEOUS
15.01 No Further Employment. The Settlement Class Members agree that the employment relationship between Nucor and any Settlement Class Member who is not currently employed by Nucor has been pennanently and irrevocably severed. The Settlement Class Members further agree that Settlement Class Members who are not currently employed by Nucor shall not seek employment from Nucor or any of the other
13

2:04-cv-22005-DCN Date Filed 12/26/17 Entry Number 606-2 Page 14 of 16
Released Parties in the future and that such Settlement Class Members shall hold Nucor and all other Released Parties hannless for any refusal to hire them should they apply for employment or work of any kind at or for a Released Party.
15.02 Non-disparagement. The Settlement Class Members and Nucor agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices or conduct of Nucor or any of the Released Parties or the Settlement Class Members; provided, however, that this agreement does not apply to future events or circumstances that occur after the final approval of this Settlement Agreement or to any claims or contentions that are not released pursuant to this Settlement Agreement. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, social media posts, published materials, including books or magazine articles, bloggers, investors, potential investors, any board of directors or advisory board of directors, industry analysts, competitors, strategic partners, vendors, and employees (past and present).
15.03 Return of Documents. The Settlement Class Members acknowledge and agree that they will return and/or destroy all documents produced by Nucor in Brown, et al. v. Nucor Corporation, et al., Case No. 2:04-cv-22005-DCN currently pending in the District of South Carolina, and/or Conyers, et al. v. Nucor Corporation, et al., Case No. 2: 12-cv-3478-CWH-BM currently pending in the District of South Carolina within 3 days of completion of detennination of Individual Settlement Payments under Section 3.03 or Nucor funding the Settlement Fund, whichever comes later. After completion of the obligations required by Section 15.03, Class Counsel will provide a certification confinning the return and/or destruction of the documents.
15.04 Entire Agreement. This Settlement Agreement constitutes the entire agreement of the Parties and supersedes all previous agreements, understandings or statements, whether oral or in writing, and may not be modified, amended or waived except upon the written agreement signed by all Parties except as provided in Section XII above.
15.05 Governing Law. This Agreement shall be governed by the laws of the United States and, to the extent not inconsistent with the laws ofthe United States, the laws of the State of South Carolina.
15.06 Publicity and Confidentiality. The Settlement Class Members and Nucor agree that they will not initiate any publicity of the Settlement and can choose to not respond or to only respond to requests by media (whether print, online, or any traditional or non-traditional fonn) about the Settlement with a statement substantially equivalent to the following: "The Parties agreed to resolve a dispute that was pending for more than a decade. The Parties did so recognizing the cost and uncertainty associated with a trial and
14

2:04-cv-22005-DCN Date Filed 12/26/17 Entry Number 606-2 Page 15 of 16
any subsequent appeal." The Parties may also generally refer to the tenns ofthe Settlement and the Notice.
15.~7 ~.q ~onstruc.uoJJ, 4'gainst Drafter. This Agreement was drafted jointly by the Parties 'c1ftlt,'•1iti jcmistfuipgJ&rid interpreting this Agreement, no provision of this Agreement shalfbe construed or interpreted against any Party based upon the contention that this Agreement or a portion of it was purportedly drafted or prepared by that Party alone.
15.08 Resolution ofDisputes. The Parties shall cooperate in good faith in securing the Court's approval of this Settlement Agreement and resolving all issues that may affect, delay or preclude such approval and agree to use their best efforts to promptly mediate and resolve any and all such issues or obstacles. Any unresolved dispute regarding the Settlement shall be decided by the Court.
15.09 Counterparts. This Agreement may be signed in counterparts and the separate signature pages executed by the Parties and their counsel may be combined to create a document binding on all of the Parties and together shall constitute one and the same instrument.
15.10 Time Periods. The time periods and dates described herein are subject to Court approval and deadlines set by Court order may only be modified upon order of the Court.
15.11 Authority. Each person executing this Settlement Agreement on behalf of any of the Parties hereto represents that such person has the authority to so execute this Agreement.
15.12 No Oral Modifications. This Agreement may not be amended, modified, altered or otherwise changed in any manner, except by a writing signed by a duly authorized agent ofNucor and the Class Representatives, and approved by the Court.
15

2:04-cv-22005-DCN Date Filed 12/26/17 Entry Number 606-2 Page 16 of 16

WIGGINS, CHILDS, PANTAZIS, FISHER & GOLDFARB LLC
st!JAW--t~ wr~ ~
Robert L. Wiggins, Jr., ASB-1754-G-63R Ann K. Wiggins, ASB-7006-I-61A The Kress Building, 301 191h Street North Binningham, Alabama 35203 Telephone: (205) 314-0500
Armand Derfner, Bar No. 502 DERFNER & ALTMAN LLC 575 King Street, Suite B Charleston, S.C. 29403 Telephone: (843) 723-9804
Kent Spriggs Spriggs Law Firm 2007 W Randolph Circle Tallahassee, FL 32308-0748 Telephone: (850) 224-8700
ATTORNEYS FOR PLAINTIFFS AND SETTLEMENT CLASS MEMBERS

DOWD BENNETT, LLP
~!~e~IWI~
Gabriel E. Gore Jennifer S. Kingston Michael J. Kuhn Sheena R. Hatnilton 7733 Forsyth Blvd., Suite 1900 St. Louis, Missouri 63105 Telephone: (314) 889-7300
JohnS. Wilkerson, III, Federal ID No.: 4657 TURNER PADGET GRAHAM & LANEY 40 Calhoun Street, Suite 200 Charleston, South Carolina 29413 Telephone: (843) 576-2801
Cary A. Farris, Federal ID No.: 25150 John K. Linker, Federal ID No.: 15623 Winstead 600 Travis Street, Suite 5200 Houston, Texas 77002 Telephone: (713) 650-8400

ATTORNEYS FOR DEFENDANTS

16

Brown, et al v. Nucor Corporation, et al, Docket No. 2_04-cv-22005 (D.S.C. Aug 25, 2004), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the District of South Carolina; United States District Court for the District of South Carolina
Civil Rights - Employment[442]
2:04-cv-22005
CLOSED

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General Docket United States Court of Appeals for the Fourth Circuit

Court of Appeals Docket #: 08-1247 Nature of Suit: 3442 Jobs Quinton Brown v. Nucor Corporation Appeal From: United States District Court for the District of South Carolina at Charleston

Case Type Information: 1) Civil Private 2) private 3) null

Originating Court Information:

District: 0420-2 : 2:04-cv-22005-CWH-GCK

Court Reporter: Janet A. Collins, Ofﬁcial Court Reporter

Court Reporter: Gilbert O'Brien, Ofﬁcial Court Reporter

Court Reporter: Debbie Potocki, Ofﬁcial Court Reporter

Court Reporter: Janet Woodward, Court Reporter Coordinator

Presiding Judge: C. Weston Houck, Senior U. S. District Court Judge

Date Filed: 08/25/2004

Date Order/Judgment:

Date Order/Judgment EOD:

01/11/2008

01/11/2008

Prior Cases: 08-115 Date Filed: 01/29/2008 Date Disposed: 02/29/2008 Disposition: order

Current Cases: None

Docketed: 02/29/2008 Termed: 08/07/2009
Date NOA Filed: 02/29/2008

QUINTON BROWN Plaintiff - Appellant
JASON GUY Plaintiff - Appellant

Robert L. Wiggins, Jr., Attorney Direct: 205-314-0500 [COR LD NTC Retained] WIGGINS, CHILDS, QUINN & PANTAZIS, PC The Kress Building 301 19th Street North Birmingham, AL 35203-0000
Armand Georges Derfner, Esq. Direct: 843-723-9804 [COR NTC Retained] P. O. Box 600 Charleston, SC 29402-0000
Robert L. Wiggins, Jr., Attorney Direct: 205-314-0500 [COR LD NTC Retained] (see above)
Armand Georges Derfner, Esq. Direct: 843-723-9804

[COR NTC Retained] (see above)

RAMON ROANE Plaintiff - Appellant

Robert L. Wiggins, Jr., Attorney Direct: 205-314-0500 [COR LD NTC Retained] (see above)

Armand Georges Derfner, Esq. Direct: 843-723-9804 [COR NTC Retained] (see above)

ALVIN SIMMONS Plaintiff - Appellant

Robert L. Wiggins, Jr., Attorney Direct: 205-314-0500 [COR LD NTC Retained] (see above)

Armand Georges Derfner, Esq. Direct: 843-723-9804 [COR NTC Retained] (see above)

SHELDON SINGLETARY Plaintiff - Appellant

Robert L. Wiggins, Jr., Attorney Direct: 205-314-0500 [COR LD NTC Retained] (see above)

Armand Georges Derfner, Esq. Direct: 843-723-9804 [COR NTC Retained] (see above)

GERALD WHITE Plaintiff - Appellant

Robert L. Wiggins, Jr., Attorney Direct: 205-314-0500 [COR LD NTC Retained] (see above)

Armand Georges Derfner, Esq. Direct: 843-723-9804 [COR NTC Retained] (see above)

JACOB RAVENELL, individually and on behalf of the class they seek to represent
Plaintiff - Appellant

Robert L. Wiggins, Jr., Attorney Direct: 205-314-0500 [COR LD NTC Retained] (see above)

Armand Georges Derfner, Esq. Direct: 843-723-9804 [COR NTC Retained] (see above)
v.

NUCOR CORPORATION Defendant - Appellee

Cary A. Farris Direct: 281-833-2200 [COR NTC Retained]

NUCOR STEEL-BERKELEY Defendant - Appellee

Alaniz & Schraeder, LLP Suite 1000 2500 City West Boulevard Houston, TX 77042
Earle Duncan Getchell, Jr., Esq. Direct: 804-775-4319 [COR NTC Retained] MCGUIREWOODS, LLP 1 James Center 901 East Cary Street Richmond, VA 23219-4030
Nosizi Ralephata, Attorney Direct: 843-576-2807 [COR NTC Retained] TURNER, PADGET, GRAHAM & LANEY, PA Suite 200 40 Calhoun Street P. O. Box 22129 Charleston, SC 29413-0000
Erin Michelle Sine, Attorney Direct: 804-775-1111 [COR NTC Retained] MCGUIREWOODS, LLP 1 James Center 901 East Cary Street Richmond, VA 23219-4030
John Smith Wilkerson, III, Attorney Direct: 843-576-2801 [COR NTC Retained] TURNER, PADGET, GRAHAM & LANEY, PA Suite 200 40 Calhoun Street P. O. Box 22129 Charleston, SC 29413-0000
Cary A. Farris Direct: 281-833-2200 [COR NTC Retained] (see above)
Earle Duncan Getchell, Jr., Esq. Direct: 804-775-4319 [COR NTC Retained] (see above)
Nosizi Ralephata, Attorney Direct: 843-576-2807 [COR NTC Retained] (see above)
Erin Michelle Sine, Attorney Direct: 804-775-1111 [COR NTC Retained]

(see above)
John Smith Wilkerson, III, Attorney Direct: 843-576-2801 [COR NTC Retained] (see above)

QUINTON BROWN; JASON GUY; RAMON ROANE; ALVIN SIMMONS; SHELDON SINGLETARY; GERALD WHITE; JACOB RAVENELL, individually and on behalf of the class they seek to represent,
Plaintiffs - Appellants v. NUCOR CORPORATION; NUCOR STEEL BERKELEY,
Defendants - Appellees

01/28/2008

3

1 pg, 34.21 KB

DISCLOSURE OF CORPORATE AFFILIATIONS (Local Rule 26.1) ﬁled by Appellants Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald

White. Was any question on Disclosure Form answered yes? No [997816013] [08-1247] (BHR)

02/08/2008

4

1 pg, 35.94 KB

02/08/2008

5

1 pg, 37.32 KB

02/08/2008

6

1 pg, 36.87 KB

APPEARANCE OF COUNSEL ﬁled (Local Rule 46(c)) by Nosizi Ralephata for Nucor Corporation and Nucor Steel-Berkeley.[997816019] [08-1247] (BHR)
APPEARANCE OF COUNSEL ﬁled (Local Rule 46(c)) by John S. Wilkerson, III for Nucor Corporation and Nucor Steel-Berkeley.[997816023] [08-1247] (BHR)
DISCLOSURE OF CORPORATE AFFILIATIONS (Local Rule 26.1) ﬁled by Appellees Nucor Corporation and Nucor Steel-Berkeley. Was any question on Disclosure Form answered yes? Yes [997816031] [08-1247] (BHR)

02/15/2008

7

1 pg, 37.59 KB

APPEARANCE OF COUNSEL ﬁled (Local Rule 46(c)) by Armand Derfner for Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White.

[997816040] [08-1247] (BHR)

02/19/2008

8

1 pg, 37.26 KB

APPEARANCE OF COUNSEL ﬁled (Local Rule 46(c)) by Robert Wiggins, Jr. for Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White.

[997816045] [08-1247] (BHR)

02/29/2008

1

Case docketed. Originating case number: 2:04-cv-22005-CWH-GCK. Case manager: BarbaraRowe. [08-1247] (SAC)

03/03/2008

9

6 pg, 188.39 KB

DOCKETING NOTICE issued. Originating case number: 2:04-cv-22005-CWH-GCK. Initial forms due within 14 days. [08-1247] (BHR)

03/03/2008

10

1 pg, 70.54 KB

FEE NOTICE issued to Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White - initial notice. Fee or application to proceed as indigent due

03/18/2008 Originating case number: 2:04-cv-22005-CWH-GCK. [08-1247] (BHR)

03/12/2008

11

103 pg, 2.04 MB

DOCKETING STATEMENT ﬁled by Appellants Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. Transcript needed: Y Transcript

already on ﬁle: Y Transcript order attached: N [08-1247] (BHR)

03/13/2008

12

DISTRICT COURT NOTICE received. Fee status updated to [Case Number 08-1247: pd]. [08-1247] (BHR)

03/13/2008

13
14 pg, 300.76 KB

BRIEFING ORDER ﬁled. Opening Brief and Appendix due 04/22/2008. Response Brief due 05/27/2008 [08-1247] (BHR)

03/13/2008

14

1 pg, 40.13 KB

APPEARANCE OF COUNSEL ﬁled (Local Rule 46(c)) by Cary Farris for Nucor Corporation and Nucor Steel-Berkeley.[997822699] [08-1247] (BHR)

03/13/2008

15

1 pg, 40.4 KB

APPEARANCE OF COUNSEL ﬁled (Local Rule 46(c)) by Attorney(s) Marcus Roland Patton for party(s) Nucor Steel-Berkeley Appellee Nucor Corporation, in case 08-1247.[997822709] [08-1247] (BHR)

03/26/2008

16

1 pg, 60.4 KB

03/27/2008

17

1 pg, 31.42 KB

04/02/2008

18

1 pg, 40.49 KB

RECORD requested from Clerk of Court. Due: 04/09/2008 [08-1247] (BHR)
Letter re: regarding lead counsel ﬁled by Appellants Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. [997830200] [08-1247] (BHR) APPEARANCE OF COUNSEL ﬁled (Local Rule 46(c)) by Attorney(s) Earle Duncan Getchell Jr. for party(s) Nucor Steel-Berkeley Appellee Nucor Corporation, in case 08-1247.[997833727] [08-1247] (BHR)

04/14/2008

19

3 pg, 55.46 KB

MOTION ﬁled by Appellants Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White to extend ﬁling time for opening brief and appendix

until 05/13/2008. Date of service: 04/09/2008 [997839671] [08-1247] (BHR)

04/14/2008

20

1 pg, 60.99 KB

ORDER ﬁled [997839675] granting Motion to extend ﬁling time [997839671-2]; updating/ resuming brieﬁng order deadlines. Opening brief and appendix due 05/13/2008. Response brief due.

06/17/2008 Copies to all parties. [08-1247] (BHR)

05/13/2008

21

APPENDIX (PAPER) ﬁle-stamped, on behalf of Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. Total number of volumes (including

any sealed): 15. Total number of pages in all volumes: 9345.Entered on Docket Date: 05/16/2008.

[997858378] [08-1247] (BHR)

05/13/2008

22

OPENING BRIEF (PAPER) ﬁle-stamped, on behalf of Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. Number of pages: [76].

Entered on Docket Date: 05/20/2008. [997859924] [08-1247] (BHR)

05/30/2008

23

3 pg, 48.31 KB

MOTION ﬁled by Appellees Nucor Corporation and Nucor Steel-Berkeley to extend ﬁling time for response brief until 7/3/8. [997866512] [08-1247] (TA)

05/30/2008

24

1 pg, 38.29 KB

ORDER ﬁled [997866515] granting Motion to extend ﬁling time [997866512-2]; updating/ resuming brieﬁng order deadlines. Response brief due 07/03/2008 Copies to all parties. [08-1247] (TA)

05/30/2008

25

1 pg, 61.57 KB

NOTICE ISSUED re: tendered payment returned to Ms. Nosizi Ralephata for Nucor Corporation and Nucor Steel-Berkeley in paper form. Amount of payment: 25.00 (motion ﬁling fee). [08-1247] (TA)

07/03/2008

26

1 pg, 53.44 KB

APPEARANCE OF COUNSEL ﬁled (Local Rule 46(c)) by Erin M. Sine for Nucor Corporation and Nucor Steel-Berkeley.[997888664] [08-1247] (EMS)

07/03/2008

27
69 pg, 494.73 KB

BRIEF ﬁled by Appellees Nucor Corporation and Nucor Steel-Berkeley in electronic and paper format. Type of Brief: Response. Method of Filing Paper Copies: hand delivery. Date Paper Copies

Mailed, Dispatched, or Delivered to Court: 07/03/2008. [997888790] [08-1247] (EDG)

07/03/2008

28

RESPONSE BRIEF (PAPER) ﬁle-stamped, on behalf of Nucor Corporation and Nucor SteelBerkeley. Number of pages: [70]. Entered on Docket Date: 07/07/2008. [997889497] [08-1247]

(BHR)

07/09/2008

29

3 pg, 23.27 KB

07/09/2008

30

1 pg, 37.68 KB

07/28/2008

31

0 pg, 0 KB

07/28/2008

32

MOTION ﬁled by to extend ﬁling time for reply brief until July 28, 2008. Date of service: 07/09/2008 [997891699] [08-1247] (RLW)
ORDER ﬁled [997891750] granting Motion to extend ﬁling time for reply brief. [997891699-2] Copies to all parties. [08-1247] (BHR)
[Edited 07/31/2008 by BHR]. [Reason for edit: Incorrect Entry Struck]. [08-1247] (RLW)
REPLY BRIEF (PAPER) ﬁle-stamped, on behalf of Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. Number of pages: [44]. Entered on Docket Date: 07/31/2008. [997906281] [08-1247] (BHR)

07/31/2008

33

1 pg, 71.36 KB

Docket correction requested from Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. Re: [997906281-2],reply brief [08-1247] (BHR)

07/31/2008

34

43 pg, 150.2 KB

Corrected BRIEF ﬁled by Appellants Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White in electronic and paper format. Type of Brief: Reply. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 07/28/2008. [997906383] [08-1247] (RLW)

09/12/2008

35

2 pg, 88.86 KB

09/22/2008

36

4 pg, 29.67 KB

CASE TENTATIVELY CALENDARED for oral argument during the 12/2/2008 - 12/5/2008 argument session. Notify Clerk's Ofﬁce of any scheduling conﬂict by: 09/22/2008 [08-1247] (JLC)
NOTICE FILED RE: CONFLICT WITH PROPOSED ARGUMENT DATES ﬁled by Appellees Nucor Corporation and Nucor Steel-Berkeley. Argument Session: 12/08. Days you are available: Everyone is not available on 12/2; 12/3; 12/4; 12/5/2008.. [08-1247] (EDG)

10/02/2008

37 CASE CONTINUED FROM TENTATIVE CALENDAR. [997948108] [08-1247] (JLC)

1 pg, 60.79 KB

11/07/2008

38

2 pg, 88.87 KB

11/24/2008

39

2 pg, 77.89 KB

12/03/2008

40

1 pg, 75.89 KB

12/03/2008

41

1 pg, 27.83 KB

12/03/2008

42

1 pg, 34.73 KB

CASE TENTATIVELY CALENDARED for oral argument during the 1/26/2009 - 1/30/2009 argument session. Notify Clerk's Ofﬁce of any scheduling conﬂict by: 11/17/2008 [08-1247] (JLC)
CASE CALENDARED for oral argument. Date: 01/27/2009. Time: 8:45 - 9:00 [08-1247] (JLC)
RULE 46 NOTICE issued to Mr. Earle Duncan Getchell, Jr., Esq. for Nucor Corporation and Nucor Steel-Berkeley failure to ﬁle electronically. [08-1247] (BHR)
ORAL ARGUMENT ACKNOWLEDGMENT ﬁled by Appellees Nucor Corporation and Nucor Steel-Berkeley. Counsel arguing: E. Duncan Getchell, Jr... [997988128] [08-1247] (EDG)
ORAL ARGUMENT ACKNOWLEDGMENT ﬁled by Appellants Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. Counsel arguing: Robert L. Wiggins, Jr... [997988461] [08-1247] (RLW)

12/10/2008

43

1 pg, 22.37 KB

01/26/2009

44

0 pg, 0 KB

01/26/2009

45

1 pg, 74.71 KB

01/26/2009

46

2 pg, 81.2 KB

ORAL ARGUMENT ACKNOWLEDGMENT ﬁled by Appellant Quinton Brown. Counsel arguing: Robert L. Wiggins, Esq... [997992717] [08-1247] (AGD)
[Edited 01/26/2009 by BHR]. [Reason for edit: Incorrect Entry Struck]. [08-1247] (RLW)
Docket correction requested from Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. Re: [998019691-2], letter [08-1247] (BHR)
SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) ﬁled by Appellants Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. [998020127]. [08-1247] (RLW)

01/27/2009

47

ORAL ARGUMENT heard before the Honorable M. BLANE MICHAEL, ROGER L. GREGORY and G. STEVEN AGEE. Attorneys arguing case: Mr. Robert L. Wiggins, Jr. for Appellants Quinton

Brown, Jason Guy, Ramon Roane, Alvin Simmons, Sheldon Singletary, Gerald White and Jacob

Ravenell and Mr. Earle Duncan Getchell, Jr., Esq. for Appellees Nucor Corporation and Nucor Steel-

Berkeley. Courtroom Deputy: Judith Evans. [998021259] [08-1247] (JLE)

08/07/2009

48
40 pg, 172.26 KB

PUBLISHED AUTHORED OPINION ﬁled. Originating case number: 2:04-cv-22005-CWH-GCK .Copies to all parties and the district court/agency. [998156969] [08-1247] (BHR)

08/07/2009

49

4 pg, 108.15 KB

JUDGMENT ORDER ﬁled. Decision: vacated and remanded. Originating case number: 2:04-cv22005-CWH-GCK. Entered on Docket Date: 08/07/2009. [998156975] Copies to all parties and the

district court/agency. [08-1247] (BHR)

08/14/2009

50

1 pg, 17.45 KB

08/19/2009

51

REQUEST for oral argument tape/CD ﬁled by Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. [08-1247] (JLE)
Oral argument cd sent to Armand Defner. [08-1247] (JLE)

08/19/2009

52

3 pg, 132.53 KB

BILL OF COSTS ﬁled by Appellants Quinton Brown, Jason Guy, Jacob Ravenell, Ramon Roane, Alvin Simmons, Sheldon Singletary and Gerald White. [08-1247] (RLW)

08/21/2009

53
59 pg, 225.62 KB

PETITION for rehearing and rehearing en banc ﬁled by Nucor Corporation and Nucor SteelBerkeley. [08-1247] (EMS)

08/21/2009

54 Mandate stayed by FRAP 41(d)(1). [08-1247] (BHR)

1 pg, 60.59 KB

 
 !

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

QUINTON BROWN, JASON GUY, RAMON ROANE, ALVIN

SIMMONS, SHELDON SINGLETARY, GERALD WHITE, and

I

JACOB RAVENELL, individually and on behalf of the class they

seek to represent,

;.

'

I

I

V,

Plaintiffs-Appellants,

,

,¢

'_ ,

•

I,

NUCOR CORPORATION and NUCOR STEEL-BERKELEY, Defendants-Appellees.

!

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF SOUTH CAROLINA

I

CHARLESTON DIVISION

BRIEF FOR PLAINTIFFS-APPELLANTS

I

Armand Definer

D. Peters Wilbom, Jr.

I

Derfner, Altman & Wilbom

40 Calhoun Street, Suite 410

I

Charleston, S.C. 29402 (843) 723-9804

I

Robert L. Wiggins, Jr. Ann K. Wiggins Susan Donahue Wiggins, Childs, Quinn & Pantazis,
The Kress Building 301 19 th Street North
Birmingham, Alabama 35203 205-314-0500

I

ATTORNEYS FOR PLAINTIFFS-APPELLANTS

i

I

I APPEAL NO. 08-1247

I

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

I

QUINTON BROWN, JASON GUY,

RAMON ROANE, ALVIN SIMMONS,

I

SHELDON SINGLETARY, GERALD WHITE, and JACOB

RAVENELL, individually and

I

on behalf of the class they seek to

represent,

I

Plaintiffs-Appellants,

I

V_

NUCOR CORPORATION and

I

NUCOR STEEL-BERKELEY,

I

Defendants-Appellees.

CERTIFICATE OF INTERESTED PERSONS

I

AND CORPORATE DISCLOSURE STATEMENT

I

Counsel for Appellants certifies that the following is a complete list of the trial

judges; attorneys involved in the case; and all persons, associations of persons, firms,
I partnerships, and corporations having an interest in the outcome of this case:

I

1. Plaintiff-Appellants: Quinton Brown, Jason Guy, Ramon Roane, Alvin

Simmons, Sheldon Singletary, Gerald White, and Jacob Ravenell, individually and on

behalf of the class they seek to represent;

C-1 of C-2

i

i Brown, et al. v. Nucor Corp., et al.

I

Appeal No. 08-1247

I

2. Richard D. Alaniz, Cary A. Farris, Terry E. Schraeder; David M. Minces,

I

Marcus Roland Patton, and the attorneys working for or with the firm of Alaniz &

Schraeder, LLP attorneys for the defendants-appellees;
i 3. Armand Definer, D, Peters Wilbom, Jr., Aaron Tobias Polkey, and the

l

attorneys working for or with the firm of Derfner, Altman & Wilborn, attorneys for

I

the plaintiffs-appellants;

I

4. E. Duncan Getchell, Jr., and the attorneys working for or with the firm

of McGuire Woods LLP, Attorneys for Defendant-Appelllee;
! , Honorable C. Weston Houck, United States District Judge;

I

6. Honorable George C. Kosko, United States Magistrate Judge;

I

, Nucor Corporation, Defendant-Appellee;

I

8. Nucor Steel Berkeley, Defendant-Appellee;

9. Robert L. Wiggins, Jr., Ann K. Wiggins, Susan G. Donahue, and the

I attorneys working for or with the firm of Wiggins, Childs, Quinn and Pantazis, LLC,

I

Attorneys for Plaintiff-Appellant;

C-2 of C-3

I

I Brown, et al. v. Nueor Corp., et al.

I

Appeal No. 08-1247

10. John S. Wilkerson, III, Nosizi Ralephata, and the attorneys working for

i
or with the firm of Turner, Padget, Graham & Laney, P.A. attorneys for the

I

defendants-appellees.

I Of Counsel
I

I

I

I

I

I

I

I

I

I

C-3 of C-3

!

I

I

!

I TABLE OF CONTENTS
!

!

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT ................

I

TABLE OF CONTENTS .............................................

PAGES:
C-1 - C-3 i

I

TABLE OF AUTHORITIES .........................................

iii

I

I. STATEMENT OF JURISDICTION ...............................

1

II. STATEMENT OF ISSUES ......................................

1

I

III. STATEMENT OF CASE .......................................

2

I

IV. STATEMENT OF FACTS ......................................

4

I

Ao

Size And Organization Of The Berkeley Plant ..................

4

I

B. The Court Found That A Subjective Promotion Procedure Was Used

Throughout The Plant .......................

. .............

5

I

Co

Department Managers And Supervisors Fostered A Racially Hostile

Work Environment Throughout The Plant ....................

14

!

Wo

SUMMARY OF ARGUMENT ..................................

20

I

ARGUMENT .....................................................

25

I

I. STANDARD OF REVIEW .....................................

25

II. DISCUSSION OF ISSUES .....................................

25

I A. Racially Hostile Environment Presents Common Questions Of Fact

I

And Law That Are Appropriate For Certification As A Class ..... 25

-i-

!

! TABLE OF CONTENTS

I

PAGES:

gt

The District Court Erred In Denying Class Certification Once It

I

Found A Discriminatory Subjective Promotion Procedure That

Was Common Throughout the Plant .........................

35

I

o Racially Subjective Promotion Procedures Satisfy The

Standards For Class Certification ......................

35

I o The Promotions At Issue Should Not Have Been Segmented

I

Into Numbers Too Small To Detect A Statistical Pattern Even

When It Exists .....................................

41

I

a°

Applicant-Based Statistics Should Not Have Been

Required Once Nucor Destroyed Its Applications

i

For Promotion ................................

43

b. Excluding Promotions Made By The Same Department

I

Managers Who Refused To Promote The Named Plaintiffs Was An Error And An Abuse of Discretion . 46

o The Court Erroneously Precluded Use Of The 80% Standard

For Disparate Impact ................................

50

1 The District Court Went Too Far Into The Merits .........

51

I

C,

Plaintiffs Were Adequate Class Representatives Because They

Sought Promotion To The Same Jobs, But Not The Same

I

Vacancies In Such Jobs, As Other Class Members ..............

53

CONCLUSION ...................................................

58

I

STATEMENT REGARDING ORAL ARGUMENT ......................

58

i

CERTIFICATE OF COMPLIANCE ...................................

60

CERTIFICATE OF SERVICE ........................................

61

-ii-

I

I TABLE OF AUTHORITIES

I

A Helping HandLLC v. Baltimore County, Maryland,

!

515 F.3d 356 (4 th Cir. 2008) ....................................

!

Adams v. Donnelley & Sons, 2001 WL 336830 (N.D. Ill. 2001) ................................

I

* Allen v. International Truck & Engine Corp.,

358 F.3d 469 (7thCir. 2004) ...............................

I

Anderson v. The Boeing Co.,

222 F.R.D. 521 (N.D. Ok. 2004) .................................

I

Ardrey v. United Parcel Service,

I

798 F.2d 679 (4thCir, 1986) ....................................

Barrett v. Applied Radiant Energy Corp.,

I

240 F.3d 262 (4thCir. 2001) ....................................

I

Bazemore v. Friday, 478 U.S. 385 (1986) .......................................

I

Beckmann v. CBS, Inc., 192 F.R.D. 608 (D. Minn. 2000) .................................

Berry v. Delta Airlines, Inc.,
I
260 F.3d 803 (Tth Cir.2001) ....................................

I

* BreMiller v. Cleveland Psychiatric Inst.,

I

195 F.R.D. 1 (N.D.Ohio 2000) ...............................

Broussard v. Meineke Discount Muffler Shops, Inc.,

I

155 F. 3rd331 (4th Cir. 1998) ....................................

* Brown v. Eckerd Drugs, lnc.,

!

663 F.2d 1268 (4thCir. 1981) ..........................

-iii-

PAGES: 25 36
26, 32-33 36 50 28
12-13 36 27
25, 31 32
24, 32, 55, 58

! TABLE OF AUTHORITIES

PAGES:
I

Burlington Industries, Inc. v. Ellerth,

I

524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) ...............

28

I

Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 (5 th Cir. 1983) .................................

42, 49

* Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir.1999) .....................................

I

Chisolm v. U. S. Postal Services,

665 F.2d 482 (4th Cir. 1981) ....................................

I

College Loan Corp. v. SLM, Corp.,

396 F.2d 588 (4th Cir. 2005) ....................................
I * Cooper v. Federal Reserve Bank,

I

467 U.S. 867 (1984) ................................. * Cox v. American Cast Iron Pipe Co.,

784 F.2d 1546 (llth Cir.1986) ...............................
I Dean v. International Truck,

I

220 F.R.D. 319 (N.D. Ill. 2004) ..................................

Dothard v. Rawlinson,

I

433 U.S. 321 (1977) ..........................................

I

* Dukes v. Wal-Mart, 509 F.3d 1168 (9 _ Cir. 2007) .............................

I

Dukes v. Wal-Mart Stores, Inc.,

222 F.R.D. 137, (N.D. Calf. 2004) ...............................

I

* Eddy v. Waffle House,

482 F.3d 674 (4 _ Cir. 2007) ....................................
I

I

-iv-

36 51 25 33, 37, 39, 54 36, 39 54 43 35-36, 51 36 34

I

! TABLE OF AUTHORITIES

I

* EEOC v. American National Bank,

!

652 F. 2d 1176 (4 th Cir. 1981) ................................

I

* EEOC v. Burlington Medical Supplies, Inc., 536 F. Supp. 2d 647 (E.D. Va. 2008) .., ...............

PAGES: 41, 42
21, 27, 28, 30, 31

!

* EEOC v. Mitsubishi Motor Manufacturing of America, Inc.,

990 F.Supp. 1059 (C.D.II1.1998) ..............................

25, 31

!

EEOC v. Sunbelt Rentals, Inc.,

521 F.3d 306 (4 _ Cir. 2008) .................................

27, 34

! Employees Committee v. Eastman Kodak Co.,

I

407 F. Supp 423 (W.D.N.Y. 2005) ...............................

26

Faragher v. City of Boca Raton,

I

524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ...............

28

General Telephone Co. v. Falcon,

I

457 U.S. 147 (1982) ..........................................

36

I

General Telephone Co. of the Northeast v. EEOC, 446 U.S. 318 (1980) ..........................................

I

Graffam v. Scott Paper Co.,

870 F. Supp. 389 (D. Maine 1994) ...............................

I

* Gunnells v. Healthplan Services, Inc.,

I

348 F.3d 417 (4 _ Cir. 2003) .................................

Hartman v. Duffy,

I

158 F.R.D. 525 (D.D.C. 1994) ..................................

* Hill v. Western Electric Co., Inc.,

I

596 F.2d 99 (4 th Cir. 1979) .....................................

57 36 30, 54 54 30

-V-

!

I TABLE OF AUTHORITIES

I

* Holsey v. Armour & Co.,

I

743 F.2d 199 (4 th Cir. 1984) ...........................

I

Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745 (4 th Cir. 1996) .....................................

PAGES: 29-30, 32, 45 27

!

Howard v. Winter,

446 F.3d 559 (4th Cir.2006) ....................................

28

I

Hunter v. American Gen. Life & Accident Ins. Co.,

2004 WL 5231631 (D.S.C. 2004) ................................

32

!

In Re Polypropylene Carpet,

178 F.R.D. 603 (N.D. Ga. 1997) .................................

54

i

International Brotherhood of Teamsters v. United States,

I

431 U.S. 324 (1977) ...........................

33, 37, 39, 40, 45, 54

I

International Woodworkers of America v. Chesapeake Bay Plywood Corp.,

659 F.2d 1259 (4 _ Cir. 1981) .........

. ...................

I Jarvaise v. Rand Corp.,

!

212 F.R.D. 1 (D.D.C. 2002) ....................................

Jenson v. Eveleth Taeonite Co.,

i

130 F. 3d 1287 (8 °_Cir. 1999) ...................................

Jones v. Ford Motor Credit Co.,

I

2005 WL 743213 * 8 (S.D.N.Y. 2005) ............................

30,32, 40 32 26 36

I

Koon v. United States, 518 U.S. 81 (1996) ...........................................

25

-vi- •

!

! TABLE OF AUTHORITIES

I

PAGES:

Latino Officers Association v. The City of New York,

!

209 F.R.D. 79 (S./D. N.Y. 2002) ................................

36

!

Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007) .........................................

27

I

Lewis v. Bloomsburg Mills, Inc.,

773 F. 2d 561 (4 thCir. 1985) ....................................

43

i

Lienhart v. Dryvit Systems, Inc.,

I

255 F.3d 138 (4th Cir. 2001) ....................................

25

!

* Lilly v. Harris-Teeter Supermarket, 720 F2d 326 (4 th Cir. 1983) .....................

Lowery v. Circuit City, Inc.,

m

158 F.3d 742 (4 _ Cir. 1998) ..............................

32, 35, 41, 42, 46, 49, 52
22, 33, 40

I

Markham v. White,

171 F.R.D. 217 0XT.D. II1.1997) ...............................

I Mathers v. Northshore Mining Co.,

I

217 F.R.D. 474 (D. Minn. 2003) .................................

Matyasovsky v. Housing Authority of The City of Bridgeport,

I

226 F.R.D. 35 (D. Conn. 2005) .................................

26, 31 36 54

McClain v. Luflcin Ind., Inc.,

I

187 F.R.D. 267 (E.D. Tex. 1999) ................................

36

I

*McClain v. Lufl_in Ind., Inc., 519 F.3d 264 (5 _ Cir. 2008) ...........................

37, 41, 44, 57

i
-vii-

!

I TABLE OF AUTHORITIES

I

PAGES:

McKnight v. Circuit City Stores,

I

1996 WL 454994, **3-4 (E.D. Va. 1996) ..........................

36

I

* McReynolds v. Sodexho Marriott Services, Inc., 208 F.R.D. 428 (D.C. 2002) ....................................

I

Meiresonne v. Marriott Corp.,

124 F.R.D. 619 (N.D. Ill. 1989) ..................................

I

Morgan v. United Parcel Service, Inc.,

169 F.R.D. 349 (E.D. Mo. 1996) .................................
I Mulligan v. South Carolina Dept. of Transp.,

I

446 F.Supp.2d 446 (D.S.C. 2006) ............................

* National Railroad Passenger Corp. v. Morgan,

i

536 U.S. 101,115 (2002) .............

: ..................

36 54 36 51, 53 26-27, 27

I

Newsome v. Up-To-Date Laundry, Inc., 219 F.R.D. 356 (D. Md. 2004) ................

25, 27, 30-31, 39-40, 40

i

Pettway v. American Cast Iron Pipe Co.,

494 F.2d 211 (5 th Cir. 1974) ....................................

57

!

Raczak v. Ameritech Corp.,

i03 F.3d 1257, (62 Cir. 1997) ...................................

42

I

Segar v. Smith,

I

738 F.2d 1249 (D.C.Cir.1984) ...................................

36

* Shipes v. Trinity Indus.,

I

987 F.2d 311 (5th Cir.1993) ....................................

35

Shores v. Publix Super Markets, Inc.,

1996 WL 407850(M.D. Fla. 1996) ...............................

36

-viii-

I TABLE OF AUTHORITIES

I

Sledge v. J. P. Stevens & Co., Inc.,

!

585 F.2d 625 (4 thCir. 1978) ....................................

PAGES: 56

I

Smith v. Nike Retail Services, Inc., 2006 WL 715788 (N.D. Ill. 2006) .............................

26, 31

i

Smith v. University of Washington Law School,

2 F. Supp. 2d 1324 (W.D. Wa. 1998) .............................

!

Spriggs v. Diamond Auto Glass,

242 F.3d 179 (4 th Cir. 2001) ...........................
! Staton v. Boeing Co.,

327 F.3d 938 (9th Cir.2003) ....................................

i

Thorn v. Jefferson Pilot Life Ins. Co.,

i

445 F.3d 311 (4 th Cir. 2006) ..............................

54 28, 34, 34-35
36 33-34, 52

Toney v. Rosewood Care Center, Inc. of Joliet,

l

1999 WL 199249 (N.D. Ill. 1999) ................................

36

I

Underwood v. Lehman,

530 F. Supp. 139 (D.S.C. 1982) .................................

!

U.S. v. County of Fairfax,

629 F. 2d 932 (4 th Cir. 1980) ....................................

I Waisome v. The Port Authority of New York and New Jersey,

i

948 F.2d 1370 (2 ndCir. 1991) ................................

Ward's Cover Packing Co. v. Atonio,

I

490 U.S. 642 (1989) ...........................................

!

Warnell v. Ford Motor Co., 189 F.R.D. 383 (N.D. Ill. 1999) ..................................

51 43 42-43 43 26

-ix-

!

TABLE OF AUTHORITIES

PAGES:

Warren v. Xerox Corp.,

2004 WL 1562884 (E.D.N.Y. 2004) .............................

36

Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988) .....................................

37, 40-41

White v. BFI Waste Services, Inc.,
,
375 F.3d 288 (4 th Cir. 2004) ....................................

i

Wiseman v. First Citizens Bank & Trust Co.,

212 F.R.D. 482 (N.C. 2003) .................................

!

STATUTES:

28 31-32

!

Federal Rule of Civil Procedure 23 ....................

I Federal Rule of Civil Procedure 23(a) ............................

21, 25, 29, 30, 32, 33, 36, 39, 53, 57
30, 31, 35

!

Federal Rule of Civil Procedure 23 (a)(2) ...............................

36

i

OTHER AUTHORITIES:

!

8 Newberg on Class Actions §24.33 (4 th ed.) .............................

54

Paetzold's and Wilbom's text on The Statistics of Discrimination .........

44, 51

i Uniform Guidelines On Employee Selection Procedures, 29 C.F.R. § 1607.4D.

!

29 C.F.R. §1607.4D .............................................

13, 51

-X-

!

I

I.

STATEMENT OF JURISDICTION

!

Jurisdiction rests on this Court's order granting permission to appeal.

!

II. STATEMENT OF ISSUES

I

1. Was it error or an abuse of discretion to deny certification of a class of

approximately 100 African-American employees who were: (a) found to be subject to
I "plant-wide racist acts potentially experienced by every African-American employee

!

working at the plant" (JA8998); and (b) found to be subject to a"plant-wide promotion

procedure allowing primarily white managers and supervisors to rely on subjective

!

criteria to select candidates [that] is probative of a plant-wide employment practice

discriminating against African-American employees" (JA9102)?

i

2. Was it error or an abuse of discretion to reduce the statistical significance

I

of the disparate impact and pattern-or-practice evidence by: (a) refusing to consider

i

promotions for which Nucor had destroyed its application records; and (b) refusing

!

to consider alternative applicant benchmarks that this Court has previously held to be

proper and that the district court found "may be reasonable and the statistics based

i

thereon may be relevant to prove discrimination at the plant" (JA8985)?

!

3. Was it error or an abuse of discretion to require production of only 45 of

i

the several hundred promotions that were subject to the challenged subjective

promotion procedure?
!

I

i 4. Was it error or an abuse of discretion to require the plaintiffs to prove the

!

merits of a disparate impact or pattern-or-practice claim at the class certification stage

!

of the case?

I

5. Was it error or an abuse of discretion to hold that plaintiffs seeking to

i

enjoin a pattern-or-practice of racial discrimination or disparate impact are not

adequate class representatives if they also seek instatement into the promotion that they

I

were denied because of such pattern or impact?

i

III. STATEMENT OF CASE

This case involves a single steel manufacturing plant in Huger, South Carolina,

near Charleston. Seven African-American employees brought suit seeking to redress

disparate impact and a pattern-or-practice of racial discrimination on behalf of

themselves and a putative class of approximately 100 other black employees. JA43.

I

Sixteen witnesses' declarations described a racially hostile work environment and

I

subjective promotion procedure throughout the entire plant. JA993-1124,1807-1888;

JA8537-8560.

i The district court found that "plaintiffs have presented plant-wide racist acts

potentially experienced by every African-American employee.., which include: (1)

racist e-mails; (2) display of the confederate flag; and (3) racist remarks over the plant

radio." JA8988-8989. The court also found that "Nucor's plant-wide promotion

I

I procedure allowing primarily white managers and supervisors to rely on subjective

!

criteria to select candidates for promotions is evidence probative of a plant-wide

employment practice discriminating against African-American employees." JA9102.

These twin findings of a "plant-wide" hostile environment and promotion

procedure were held not to be enough to support certification of a class because: (1)

there was additional racial hostility that created a second hostile environment at the

department level (JA8988-8989,9100-9101); and (2) although the court found that

plaintiffs' experts had shown significant racial disparities in promotions that "may be

reasonable and the statistics based thereon may be relevant to prove discrimination at

the plant" (JA8985), the court preferred to consider only those promotions for which

Nucor had not destroyed its application records rather than consider all the promotions

at issue by using an alternative applicant benchmark for the missing applications.

JA8985. The court found that statistical significance fell from -2.54 standard

deviations to -1.48 deviations when it eliminated the promotions for which Nucor had

destroyed its application records. JA8985. JAfter eliminating promotions and statistical
i

I

l The test of statistical significance was further hampered when the court limited discovery to just 45 of the several hundred promotions that were subject to the

I

subjective promotion procedure that was found to exist. JA486-487,399-400,408409,1161,1171. Nucor was allowed to handpick those 45 promotions, and to exclude

production of promotions in the very same jobs made by the same Department

I

Managers who refused to promote the named plaintiffs. 409,1161,1171.

JA399-400,408-

!

i significance in this manner, the court denied class certification because, in its opinion,

!

plaintiffs' statistical evidence had not proven a conclusive case of disparate impact or

I

pattern-or-practice discrimination on the merits. JA8981-8988,9103.

i

IV. STATEMENT OF FACTS

A. Size And Organization Of The Berkeley Plant
I Nucor Steel Berkeley is a small plant with six Department Managers who report

to the plant's General Manager, Ladd Hall. JA8538-8560,1126-1127. The six

departments are melting, hot mill, cold mill, beam mill, shipping and maintenance.

JA8539. The melting, shipping and maintenance departments work in tandem with the

employees of the other three departments to melt, form, finish and ship steel products

to customers. JA8539-8540. A plant-wide centralized posting and bidding procedure

for promotions is controlled by a central personnel department at the plant; and

employees are allowed to bid for promotions in any of the six departments, not just

their own. JA8977. The plant's General Manager must approve and sign all Change

of Status forms that effectuate promotions (JA477-478) and is in charge of any race

discrimination or harassment investigations or initiatives. JA1126-1127.

i

The plant was constructed and went into operation ten to twelve years ago in

I

the mid-to-late 1990's. JA334. There are 611 employees, of whom 71 (11.6%) are

African-American. JA8539. African-Americans were hired through local political
!

m_

efforts when the plant first opened, but have been unable to advance since then.

I

JA8539,993-1125,8538-8560,1154-1171.

m

B.

The Court Found That A Subjective Promotion Procedure Was

Used Throughout The Plant

i

Nucor utilizes the same subjective promotion procedure throughout the Berkeley

I

plant. JA9102, 8978. The district court specifically found "a plant-wide promotion

procedure allowing primarily white managers and supervisors to rely on subjective

i
criteria to select candidates for promotions." JA9102. It also found that this was
I "evidence probative of a plant-wide employment practice discriminating against

I

African-American employees." JA9102. The court determined that Nucor "allows

department managers to create their own promotion procedures" and that "[t] estimony

I

from four department managers and one supervisor reveal the following similarities

in each department's promotion procedures:.., decision makers rely on subjective
I criteria, such as attitude, teamwork, and willingness to learn, to select applicants [and]

I

an objective system to evaluate applicants for jobs is lacking." JA8978. The court also

found that in order to promote someone "the supervisor, the department manager, and

the general manager must approve a written change of status and then submit the

change of status form to the personnel office." JA477-478 (emphasis added). The evidence supports the finding of a "plant-wide practice discriminating
against African-American employees." JA9102. The evidence showed reliance on

I

I subjective opinions of who to promote throughout the plant (JA1721-1722,1725-1762)

|

expert testimony that such subjectivity unnecessarily "facilitates injecting individual

!

bias into the process" (JA1523), direct and anecdotal evidence of openly expressed

!

racial bias by department managers and supervisors who were allowed to rely on

nothing more than their subjective opinions in making promotions (see pp. 9-12 infra),
I a pervasive culture of racial hostility that existed plant-wide (see pp. 9-12, 14-20 infra),

i

and statistics that showed black promotion applicants were selected only 36.2% as

i

often as would be expected in the absence of subjective racial bias (JA1162). The

district court found there are at least "23 similar positions throughout the six

production departments in addition to the jobs bid on by the plaintiffs." JA477-478; JA486-487.

Plant-Wide Subjectivity: Nucor has a plant-wide promotion policy in its Employee Handbook, but the plant's General Manager and Department Managers testified that they were not required to follow that policy or any other defined criteria

in making promotions. JA1721-1722,1725-1762; see also JA993-1124. The plant's General Manager submitted an affidavit stating that "each department manager is given the opporttmity to choose their own methods of determining hiring, promotions and training." JA1129. Department managers and supervisors testified that they did not follow the criteria listed on the job postings for promotion (JA1727-1728,1739-

,

I 1740,1787), that they cannot really say what criteria were followed (JA1725-

|

1728,1734,1753,1760), and that what they considered was all just "in their heads" or

I

"gut feelings" of whom to promote. JA1736,1742,1758; JA1516,1520.

The district court found that the Department Manager decides who to promote

with input from his supervisors. JA477; see also JA 1781,1766-1780. Employees were

allowed to bid for promotions in any department throughout the plant, as the court

found below. JA8977,1785,1790.

I

Expert Evidence: An expert in industrial promotion procedures, Dr. Michael

I

Buckley, examined Nucor's promotion procedure and found that Department

Managers "repeatedly indicated that they do not adhere to the written policy" on
I promotions, were "unable to provide detailed description of the.., procedures they

I

used and the procedures used by their subordinate managers", and admitted that they

relied upon "'gut feelings' . . . in a number of different selection contexts." JA1516,1520,1736,1742,1758. 2

Dr. Buckley testified that Nucor makes promotions through "the subjective

combination of factors that are themselves often subjective in nature." JA1515. He

found that "[t]his is not a competent selection system" and that the "[1]ack of structure

2 Dr. Buckley is an Industrial and Organizational Psychologist and the J. C. Penney Chair in Business Management at the University of Oklahoma. JA1527.

!

i in an interview facilitates injecting individual bias into the process." JA1515,1523. He

I

also determined that such a subjective promotion process was unnecessary because

I

"[t]here are a number of traditional alternatives that could have been considered by

I

Nucor", including "development of a structured interview" that asks "the same set of

questions" and "ensures more of a uniform, consistent, and fair approach" to making
I promotions. JA1523.

I

Plaintiffs' experts also determined from Nucor's records, policies and

I

depositions that "the selection procedure for hiring and promotion have these same

I

basic features throughout the Company regardless of department." JA 1157; see also

JA1513-1548. Fifteen declarations were submitted from class members describing
I how Nucor's subjective promotion procedure was used to deny them promotions and

I

to generally preclude black employees from being promoted throughout the plant.

I

JA993-1124. The district court found that the named plaintiffs were denied

I

promotions in four of the six departments of the plant. JA477-478,486-488. Additional

evidence from eight other class members described their similar experiences in all six
! production departments. 3

I

I

3 Jacob Ravenell worked both in the melt shop and beam mill (JA1029-1037); Ramon Roane worked in both the hot mill and the beam mill (JA93-1007); Sheldon

Singletary worked in the hot mill (JA 1049-1050); Gerald White worked in the roll shop

I

(JA1039-1040); Quinton Brown worked in melting and the beam mill (JA1009); Jason

Guy worked in the cold mill and beam mill (JA1061); Gerald White worked in the

I

i Direct And Anecdotal Evidence Of Actual Racial Bias: Plaintiffs proved not

I

just a subjective promotion process, but actual subjective racial bias that was openly

I

expressed by department managers and supervisors. JA993-1125,1073-1076,1807-

I

1842,1843-1888; see also JA993-1072,1077-1124,8538-8560.

The evidence showed

that the same department managers and supervisors who were not required to follow
I any set criteria in making promotions had also been allowed to foster a culture of racial

I

hostility throughout the plant. JA993-1071. The district court's finding of a "plant-

I

wide subjective promotion procedure" was supplemented by a second finding of

I

"plant-wide racist acts potentially experienced by every African-American employee."

JA8988.

I For example, a Caucasian employee, Walter Cook, testified that both white

!

supervisors and co-workers "frequently" called black employees "nigger", "bologna

lips", "yard ape", "porch monkey" and similar racial insults. JA1809-1841,1074-1076.

I bloom yard and the roll shop (JA 1039-1040); Alvin Simmons worked in the beam mill

(JA1021). Aaron Butts worked in melting and sought promotions in that department

!

and the beam mill (JA1083-1086); Earl Ravenall worked in melting and sought

promotions in the hot mill, cold mill and melting (JA1109-1114); Jerry Nick worked

!

and sought promotions in the hot mill (JA1087-1094); Bernard Beaufort worked in shipping and sought promotions there and in the beam mill (JA1115-1120); Byron

I

Turner worked in maintenance (JA1120-1121); Robyn Spann was an employee of both the administrative department and the beam mill and sought promotions in the cold

mill and the beam mill (JA1101-1108); John Singletary was a cold mill employee

I

(JA5661-5788); and Ken Hubbard worked and sought promotions in the beam mill (JAI095-1099).

i

i Cook testified that such racial slurs occurred "every day" by "multiple white

i

supervisors and co-workers" and were so voluminous that they "could fill half of this

I

room up with paperwork." JA1074-1075,1809-1822. Cook "heard multiple white

I

supervisors and white co-workers use racial slurs." JA1074-1075.

A white supervisor, Scott Clark, testified that his Department Manager, Paul
I Ferguson, said he would never have a black supervisor. JA1885-1886,996. Ferguson

!

also said "You know, that black bastard will never move up as long as I'm manager",

I

referring to one of the named plaintiffs, Ray Roane, who was a candidate for

I

promotion to supervisor. JA996,1885-1886. There had never been a black supervisor

at the Berkeley plant at this point, and that remained true until after the EEOC Charges
I that led to this lawsuit were filed. JA998. Ferguson also wore a Confederate Flag

I

emblem on his hardhat (JA1070).

I

Gary Henderson wore a shirt "with a large Confederate flag" throughout the

I

plant as a supervisor. JA 1097,1013,1001-1002, 1080-1081,1075. The evidence showed

that Henderson "used racial slurs on many occasions" as a supervisor, such as in 2003
! when he said, "The damn niggers have been in here messing with my computer and

I

copier machine, I can't keep paper in here because the damn niggers", that there

"wasn't any way that nigger could have run that many bars out of the furnace" and that

he was "glad the damn nigger got fired." JA1075,1809-1817,1001. Henderson's co-

10

!

I supervisor, Scott Clark, testified that Henderson also called black employees "DAN",

I

which meant "dumb ass nigger." JA1882-1884,1013-I014. Henderson's use of the

I

acronym "DAN" as a supervisor led to subordinates also using that term and even

I

broadcasting it over the plant radio, ld. JA1054-1055. Quinton Brown testified that for

several months he didn't know why he was being greeted as Dan when his name was
I Quinton, and that this continued until someone finally told him that it was an acronym

I

for "dumb ass nigger." JA1013-1014. Henderson also called other black employees

I

a "nigger" or a "damn nigger", along with other racially derogatory terms. JA1820-

I

1822,1001,1080-1081.

Other white employees have also confirmed that white supervisors openly
I expressed racial bias against black employees. See JA1074,1882-1884,1808-1842.

I

Waiter Cook "heard multiple white supervisors and white co-workers use racial slurs,"

!

including supervisor Paul Nowlin who "used the word nigger so frequently [that] it

I

was part of his everyday language." JA 1074,1809-1817,1820-1822,1088.

Supervisor

Lou Witzleb "used racial slurs on many occasions", such as when he said, ""Damn
I niggers think that they come out here and bring their religious beliefs with them", and

I

also, "I tell you what,.we're fixing to have less blacks, we're going to do some thinning

out in here." JA1075,1823-1824. Aaron LaCompete, who had supervisory duties as a

Leadman, referred to Gerald White "as a nigger on more than one occasion." JA1075-

11

I

I 1076. Other Leadmen with supervisory duties, like Steve Morris, also routinely used

I

racial slurs like "nigger, damn nigger, yard ape, and bologna lips", as did numerous

I

white co-workers who followed their example, like Jim Mutispaugh, Eric Pleasant,

I

Bob Reeves, Roger Rogers, Brian Reilly, Stevie Morris, William Jackson, Chad

Funderburk, Dole Hopper, and Jamie Johns. JA 1075-1076,1825-1840. For example,
I when white employee, Chad Funderburk, was repeatedly late for work or would not

I

show up at all, his Leadman, Stevie Morris, said he "was worse than a damn nigger."

I

JA1076. Another supervisor, Scan Hudson, called black employees "boy." JA1010.

I

Jim Mutispaugh said in reference to Ray Roane's promotion application that they

would "do everything that they could to make sure that nigger didn't get the job."
I JA1074-1075. Another white employee, Thomas Prim, confirmed that racial slurs

I

frequently occurred, but did not want to name who had used them. JA1891-1894.

!

Statistical Evidence: Plaintiffs' experts showed that black employees were

I

19.24% of the persons who applied for promotion to the jobs Nucor deemed "similarly

situated", but were only 7.94% of the persons promoted to such jobs -- a difference

!

that "is statistically significant at -2.54 standard deviations from what would be

expected if race were neutral in the selection process." JA1162. 4 The evidence also

4 Plaintiffs' statistical analysis eliminated all non-racial factors that were capable of separation for analysis, like training, discipline and bidding frequency, as possible causes or explanations through a logistic regression. JA1164-1167. See e.g. Bazemore
12

!

I showed that black applicants for promotion to such jobs were selected only 36.2% as

!

often as white applicants for the same job postings, far less than the 80% disparity

I

necessary to establish disparate impact. JA1162; 29 C.F.R. §1607.4D The difference

i

between black employees promoted to those jobs (7.9%) and their availability in the

qualified workforce (38.2%) was shown to be -4.94 standard deviations,
I corresponding to greater than a 99% confidence level. JA 1163-1164; JA 1154,1501-

I

1513,1213-1500. Plaintiffs' experts further showed that African-Americans comprised

!

more than 38% of the industrial craft and operative employees in the surrounding

I

workforce, but only 13% at Nucor- a difference of "more than -11.00 standard

deviations., fewer.., than one would expect." JA1158-1159. The district court
I found that plaintiffs' experts' calculations "may have been reasonable and the statistics

I

based thereon may be relevant to prove discrimination at the plant", but it preferred

!

to limit the analysis to just 2001-2003 because Nucor had not maintained "actual data"

I

on applicant rates for the part of the liability period before 2001. JA8985. This

artificially reduced the promotion disparity from -2.54 to -1.48 standard deviations and
I is one of the issues in this appeal. JA8985.

I

I

v. Friday, 478 U.S. 385, 399-404 (1986) (using and explaining regression analysis). Nucor's statistical expert, Dr. Welch, was unable to come forward with any other

regression factors or qualifications that might cause or explain the disparity in African-

I

Americans' rate of promotion or explain it on non-racial grounds for the pre-lawsuit

time period (1999-2003).

13

I !

!

Co

Department Managers And Supervisors Fostered A Racially Hostile

Work Environment Throughout The Plant

I

Although the district court found that "plaintiffs have presented plant-wide racist

!

acts potentially experienced by every African-American employee working at the

plant" (JA8988), it denied class certification because additional racial hostility also
I occurred at the department level. JA8988-8989. In the court's view, this combination

I

ofa"plant-wide" hostile environment supplemented by additional racial hostility at the

I

department level created "separate 'environments.'" JA8989.

I

The evidence did not support that belief. Fourteen witnesses attested in their

declarations that the confederate flag "was allowed to be displayed throughout the
I plant in a racially offensive manner", and that "racist e-mails also occurred throughout

I

the plant", as did the comments on the "plant radio." JA1001,1013,1024-1025,1116-

!

1117,1033-1034,1043-1044,1053-1055,1065-1071,1081,1097,1103,1112-1113,1122-

I

1124,5661-5757.

Plaintiffs also submitted substantial other evidence showing that class members

! simultaneously experienced both the racial hostility found to exist plant-wide and

I

additional hostility of a similar nature that occurred in each department. JA993-1124,

1807-1888,8537-8560. Such racial hostility was not experienced as separate plant-wide

and department-wide components, but as part of a single work environment. Id.

14

I

I Plaintiffs' declarations went into great detail in showing that the departments are not

!

independent from one other and are part of the same continuous "environment" in

I

many respects, both physically and in the production process. JA8539-8543,8551-8555.

I

Plaintiffs' declarations attest that "[t]he Beam Mill Department does not have its own

physical facilities separate from other production departments, but works in the same
I area of the plant as employees from the Maintenance and Shipping Departments, and

I

adjacent to the employees in the Melting Department, Hot Mill Department and Cold

I

Mill Department." JA8545,8557. Just as racial slurs or insults occurring in one

!

department were communicated plant-wide via the plant radio and e-mail system, and

by display of the confederate flag, the same type of racial slurs or insults were shown
! to have been communicated from one department or another by word of mouth.

I

JA993-1124,8537-8560.

I

The evidence showed that racial slurs and insults were commonplace

I

throughout the plant floor, including nigger, DAN (dumb ass nigger), nigger rigged,

black gorilla, monkey, black bastard, Sambo, boy, blackie, grease monkey, "you

!

people" and "wigger" (acronym for white nigger). JA993-1124, 8537-8560,1809-1817,

I

1820-1822,1882-1888. Walter Cook testified that the use of the word "nigger" or

epithets such as "bologna lips", "yard ape", "porch monkey" in reference to black

employees were commonplace at Nucor Berkeley. JA1837-1840. Gorilla or monkey

15

I

! noises were also broadcast on the plant radio in response to black employees'

!

communications. JA1002. The litany ofracial hostility across the plant is summarized

I

in eighteen declarations and several depositions. JA945-955,8511-8524,2061-5758.

!

An example of such plant-wide environment is the testimony of one witness

who described racial hostility that had been reported to Nucor by more than 50
I African-American employees spread across all six departments of the plant. JA1001-

I

1002, JA1003-1004,8546; see also JA8511-8524.

I

27. * * * African Americans reported offensive comments and

actions referencing the Ku Klux Klan, including a comment made in

I

reference to an African American employee that it was time to "break out the cross and hood," an African American employee being confronted by

a white employee with a white sheet over his head with eyes cut out in

t

the form of a KKK hood, and another African American employee

reporting that a white co-worker put a white hood over his head and

I

lifted a burning rag in the air then called out the employee's name on the radio, and a large hangman noose was hung prominently in the furnace

area. White employees, including white supervisors, have called African

i

Americans racially offensive names, including references to African

Americans as "niggers," "boy," "DAN" (meaning "dumb ass nigger"),

!

"you people," "blackie," "dumb black person," and "grease monkey." Racially offensive comments have been widely heard in the plant,

including a comment by a white supervisor upon seeing African

I

Americans standing outside his office, "I've got three monkeys sitting

outside my office;" a white supervisor saying to another white employee,

I

"Quit playing that nigger music;" a comment by a white employee, "Send all of the blacks back" and "I ain't got no use for them;" and a white

employee yelling at African American employees, "Y'all fucking people

I

are lazy asses." African Americans reported racially offensive graffiti

being displayed on the walls of the plant, including the bathroom walls,

i

including the word "nigger" and "Nucor Steel-Niggers go home." Offense was taken to Confederate flags seen on vehicles and bumper

16

I

I stickers, on clothes, on hard hats, on T-shirts, on lockers. E-mails with

!

racially offensive content was send to African Americans at NucorBerkeley, including an e-mail asking for votes against politicians who

have done things for "niggers, spics, and jews," an e-mail depicting a

robotic golf caddy with the joke that it wasn't painted black or it would
i
show up for work late andsteal the golf clubs; an e-mail showing a black

man with a rope around his neck; swastikas and Dixie flags depicted on

i

e-mails, an e-mail with a black woman with the word "stupid" written on

her; and an e-mail depicting a cross burning and a black man being

I

dragged.

I

JA1003-1004; see also JA8546.

The evidence also showed that confederate flags, which Nucor admits it knew
! to be racially offensive, were sold in.the company store with Nucor's logo, worn by

I

supervisors, and otherwise displayed throughout the plant. JA1013,1104-

!

1105,1066,1070. Supervisors and department managers wore the confederate flag

!

emblem at work. Id. and JA1097. Nucor's officials, including the Plant Manager,

admitted that they knew the confederate flag was racially offensive to African-
I Americans. JA1799-1800; JA1803-1804 ("some people see it as a reference to

I

slavery"); JA1804a-1804b. The General Manager, Ladd Hall, testified that there is no

!

policy against use of Confederate flag in the plant. JA1801. Confederate flags

I

appeared on hard hats, belt buckles, tool boxes, on license'plates, as well as on T-shirts

and bandanas sold by'Nucor in its company store, some with "Nucor-Berkeley"
I embroidered on the Confederate flag." Id. Supervisors, like Scan Hudson, Chris

Anderson, Gary Henderson and Paul "Sarge" Flowers, and supervising Leadmen, like

17

!

I Stevie Morris, also wore the Confederate flag on their hardhats while supervising black

!

employees, or prominently displayed the flag in their offices. JA1013,1104-1105,1066.

I

Another Leadman, Jamie Johns, was seen waving a Confederate flag on Nucor's

I

premises, laughing at plaintiff Quinton Brown as he did it. JA1013. White co-workers

followed the lead of their supervisors and leadmen by wearing Confederate flag
! emblems on their hardhats and lunch boxes in the plant, and on their vehicles in the

I

plant parking lot. Id. Other racial emblems proliferated throughout the plant, such as

I

a hangman's noose held up to a black employee who was told "This is for you."

I

JA1002.

Such racial hostility was particularly threatening and offensive because black
I employees are a small percentage of the workforce and often have to work as the only

!

African-American on a crew in isolated areas of the plant at night when there is little

I

management or supervision on duty. JA4300-4301.

I

The evidence also shows that black employees at Nucor-Berkeley have been

continuously exposed to racially offensive statements throughout the plant, such as
! supervisors saying "niggers aren't smart enough" to break production records; hearing

I

work referred to as "nigger rigged"; being told that the term "wigger" means "white

nigger"; being told there is nothing wrong with the word "nigger," that "niggers" and

white women shouldn't mix, and that there were "niggers" everywhere at Myrtle

18

I

Beach; having the dialect used by African Americans ridiculed; hearing jokes that

racially stereotype African-Americans, such as associating black people with chicken,

I

collard greens and watermelon; hearing the restaurant "Red Lobster" called "Black

!

Lobster" because too many black people eat there; being told that white co-workers do

not like to go to the movies if there will be African Americans in the audience; hearing
I shovels used by black employees called "coon spoon"; hearing that black kids break-

I

dance because the spinning trains them for stealing hubcaps; hearing white employees

I

refer to using the restroom as "dropping some of these ugly brown kids off at the

I

pool"; being told that the four girls killed in the church bombing in Birmingham,

Alabama, shouldn't have been in the church in the first place. JA993-1121,1899-5788.
I Plaintiffs and class members testify that supervisors' and co-workers' statements

!

like these were not isolated instances, and that they have heard similar statements

I

broadcast across the plant radio, which is a walkie-talkie everyone uses to

!

communicate in the plaint, including all levels of management. Id. Statements were

broadcast over the plant radio referring to black employees as "DAN" ("dumb ass
! nigger"); broadcasting "Dixie" and "High Cotton"; broadcasting gorilla or monkey

I

sounds whenever an African American used the radio; broadcasting the sound of a

toilet flushing with the words "Good-bye, Gerald," referring to his feces as Gerald

White, a named plaintiff in this case; broadcasting "Look down there, do you see

19

I
I those monkeys crossing over down there?" in reference to two black employees. Id.

i

Racial graffiti was also plastered across Nucor's walls and on equipment and other

I

surfaces, including "nigger go home," "white power," "nigger," "niggers go back to

!

Africa," "KKK," "Sambo," "Blacks like to eat chicken all the time," and a defaced

magazine cover with Tiger Woods' picture on it with the words "nigger" and "suck
I this" on the cover with drawing of a penis superimposed near Woods' head. Id. A

I

white employee, Walter Cook also confirmed that "racist graffiti was frequent, open,

I

and obvious to those who used the bathroom", including words such as "nig,"

I

"nigger," "niggers,'"'blackie" and "KKK" on the breakroom and bathroom walls.

JA1841.
I V. SUMMARY OF ARGUMENT

Hostile Environment: Numerous courts have held that class certification of

I

racial hostile environment claims is appropriate because they involve a common

!

question of whether there is a "severe or pervasive" pattern of conduct that would be

"objectively hostile or abusive" to a "reasonable person." Nucor's principal defense

! also involves common issues of fact and law: (1) whether it has a policy against racial

!

hostility or harassment; (2) whether such policy was "effectively enforced" or

I

disfunctional; and (3) whether Nucor promptly took remedial action once it knew or

!

should have known of such hostility.

20

!

I The district court erred in denying certification of such a class once it found that

!

"plaintiffs have presented plant-wide racist acts potentially experienced by every

I

African-American employee working at the plant. " JA8988-8994. Merely because

I

class members may have also experienced additional racial hostility in their

department did not create two different work environments, one plant-wide and the

i
other departmental. Well-established precedent prohibits segmenting a hostile

!

environment into individual components or incidents. "The total work environment"

I

is required to be treated as a single claim. This Court has held that a common core of

I

racial harassment satisfies Rule 23 "despite the presence of individual fact questions."

Holsey v. Armour & Co., 743 F.2d 199, 216-217 (4thCir. 1984). Both plant-wide and
! department racial hostility were part of a common "systemic policy of tolerance by the

I

company." EEOC v. Burlington Medical Supplies, Inc., 536 F. Supp. 2d 647, 660

(E.D. Va. 2008). Requiring that every manifestation of a hostile environment be

experienced in the same way by every class member would be tantamount to holding that such claims can never be certified on a classwide basis. Class certification is

necessary in order for the Court to be able to enjoin or otherwise redress a plant-wide

pattern-or-practice of racial hostility.

Promotions: The district court also erred in denying class certification once it

found that "Nucor's plant-wide promotion procedure allowing primarily white

21

!

I managers and supervisors to rely on subjective criteria to select candidates for

I

promotions is evidence probative of a plant-wide practice discriminating against

i

African-American employees." JA9102. Numerous courts have held that such

I

subjective criteria present a common question of law and fact that may be challenged

on classwide disparate impact grounds or as a pattern-or-practice of disparate
I treatment.

I

A subjective promotion procedure is not too individualized for class

certification. The Supreme Court has held that a pattern-or-practice claim looks to the
i

I

practice or the pattern itself, not individualized promotion decisions. Plaintiffs did not

rely on the mere existence of a subjective promotion procedure, but presented a
! combination of statistical, anecdotal and direct evidence showing that Nucor's

!

subjective promotion procedure is racially discriminatory throughout the plant. The

denial of class certification would leave the plaintiffs with no means of changing the

pattern-or-practice of racial bias in which they work. Lower)/v. Circuit City, Inc.,158

F.3d 742, 759 (4thCir. 1998)(Class certification required in order to challenge pattern-

or-practice).

The district court found that black applicants were promoted only 36.2% as

often as would be expected in the absence of subjective racial bias, but erroneously

reduced the statistical significance of such disparity from -2.54 standard deviations to

22

I

I -1.48 deviations by eliminating all promotions for which Nucor had destroyed its

I

application records rather than applying the alternative applicant benchmarks approved

by this Court and the Supreme Court when application records are not available. The
_

i

district court found that these alternative applicant benchmarks "may be reasonable and

the statistics based thereon may be relevant to prove discrimination at the plant", but
I it still elected to eliminate all promotions for which Nucor destroyed its applications

I

because "[s]tatistics based on actual data is more probative than statistics based on

1

assumptions." JA8981. This created an impossible standard to meet because the

I

"actual data" on applicants had been destroyed.

The error in eliminating promotions that had missing application records
! compounded a related error that allowed Nucor to handpick 45 promotions and to

!

withhold several hundred similar promotions that were subject to the same department

managers and subjective promotion procedure. JA399-400,408-409,1161,1171. Many

of the promotions allowed to be withheld were in the very same jobs that Nucor

produced as "similarly situated" to the named plaintiffs. Id. Plaintiffs' statistician

showed that there was no coherent basis for distinguishing the promotions Nucor

produced from those it withheld. Id. This two-step elimination of relevant promotions

le.ft too small a number to permit any true test of statistical significance.

The district court went too far into the merits in finding that the "assumptions"

23

I,

i necessary for the statisticians to estimate the missing applicant rates "diminishes the

i

probative value" of the statistics. JA 8981,9102. "Diminishes" does not mean

I

"eliminates," and these were the best statistics available in light of Nucor's destruction

i

of its application records. Rejecting the clear statistical evidence of a disparity shown

by the best available means was, in fact, to decide the merits of who is likely to prevail
i at trial, which is improper. The district court's role is limited to deciding whether there

I

is a common triable issue of fact, not to decide the merits of such issue or who should

prevail at trial.

The district court also erred in concluding that the named plaintiffs' interests

might become "antagonistic" if they request instatement into jobs that other class

members might seek. JA8992. Most courts have recognized that such potential

competition among employees is a normal feature of employment discrimination suits of all types and exists in individual suits. This Circuit has held that the named

plaintiffs' interest in proving and enjoining a pattern-or-practice of promotion

discrimination assures adequate representation. Brown v. EckerdDrugs, Inc., 663 F.2d 1268, 1275-1277 (4t_ Cir. 1981). Moreover, each named plaintiff bid only on

promotion vacancies that were not sought by other class members. JA7203-7860.

There were a sufficient number of vacancies to allow each class member making a

claim at Stage II to be awarded one of the multiple vacancies that occurred in the job

24

I,
i they sought.
i

I

ARGUMENT

to

STANDARD OF REVIEW

Denial of class certification is reviewed for abuse of discretion. "An error of
I law constitutes an abuse of discretion." A Helping Hand LLC v. Baltimore County,

I

Maryland, 515 F.3d 356, 370 (4thCir. 2008); College Loan Corp. v. SLM,, Corp., 396

I

F.2d 588, 595 (4 _ Cir. 2005); Koon v. United States, 518 U.S. 81, 100 (1996).

Discretion to deny class certification "must be exercised within the framework of Rule
i
23." Lienhart v. DryvitSystems, Inc., 255 F.3d 138, 146 (4 th Cir. 2001).

i

II. DISCUSSION OF ISSUES

i

A. A Racially Hostile Environment Presents Common Questions Of

Fact And Law That Are Appropriate For Certification As A Class

Class certification of racial hostile environment claims is appropriate because

they involve a common question of whether there is a "severe or pervasive" pattern

of conduct that would be "objectively hostile or abusive" to a "reasonable person."

Newsome v. Up-To-DateLaundry, Inc., 219 F.R.D. 356, 361 n.2, 362 (D. Md. 2004);

Burlington Medical, 536 F. Supp. 2d at 656-658; EEOC v. Mitsubishi Motor

Manufacturing of America, Inc., 990 F.Supp. 1059, 1070, 1074 (C.D. II1.1998);

BreMiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1, 21, 33 (N.D. Ohio 2000);

25

m'

! Warnell v. Ford Motor Co., 189 F.R.D. 383 (N.D. Ill. 1999); Smith v. Nike Retail

!

Services, Inc., 2006 WL 715788 *5 (N.D. Ill. 2006); Markham v. White, 171 F.R.D.

217, 222 (N.D. II1.1997); Employees Committee v. Eastman Kodak Co., 407 F. Supp.

423, 431 (W.D.N.Y. 2005); see also Allen v. International Truck & Engine Corp., 358 F.3d 469, 471-472 (74 Cir. 2004); Jenson v. Eveleth Taconite Co., 130 F.3d 1287,

1299-1300 (84 Cir. 1999) (applying pattern or practice standards to certification of class

hostile environment claims). The district court found that such a common hostile environment exists

throughout the plant at issue in this case: "plaintiffs have presentedplant-wide racist

acts potentially experienced by every African-American employee working at the plant

when the acts occurred." JA8988-8995 (emphasis added). The "plant-wide racist acts"

found to be common to all class members "include: (1) racist e-mails, (2) display of

the confederate flag, and (3) racist remarks over the plant radio." Id. at JA8988-8989.

Class certification was denied, however, because some class members may have also

experienced additional racial hostility in their department. Id.

The district court erred as a matter of law in subdividingplaintiffs' work environment into separate "plant-wide" and "department" components. "The statute does not separate

individual acts that are part of the hostile environment claim from the whole for the

purposes of ... liability." National Railroad Passenger Corp. v. Morgan, 536 U.S.

26

101, 115, 116, 118 (2002). A hostile environment class action strikes at the pattem or practice itself, not individual or isolated instances of racial hostility. Id. The Supreme Court has recently reiterated that "the actionable wrong is the environment, not the individual acts that, taken together, create the environment." Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2175 (2007). "Under the totality of the circumstances analysis the district court should not carve the environment into a series of discrete incidents and then measure the harm occurring in each episode. Instead, the trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment thereby created may exceed the sum of the individual episodes." Mitsubishi, 990 F.Supp. at 1074; see also Morgan, 536 U.S. at 116-118, 120 ("Such claims are based on the cumulative effect of individual acts. * * * In determining whether an actionable hostile work environment claim exists, we look to 'all the circumstances' .... "); Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745, 753 (4t_Cir. 1996) ("we must examine the totality of the circumstances"); Newsome, 219 F.R.D. at 362. Courts must "view the conduct with[ ] an eye for its cumulative effect." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4thCir. 2008); Burlington Medical, 536 F. Supp. 2d at 660; Berry v. Delta Airlines, Inc., 260 F.3d 803, 810-11 (7th Cir.2001).
Both plant-wide and department racial hostility were part of a common
27

I

I "systemic policy of tolerance by the company." Burlington Medical, 536 F.Supp.2d

i

at 660.

I

The individual claimant is, therefore, not only a victim of

the individual acts of discrimination perpetrated by the

I

harasser within the plant, but she is also the victim of a systemic policy of tolerance by the company. It is this

systemic policy, together with the individual acts of

I

harassment, for which the employer is liable in Phase II,

because it is the policy which makes the perpetration of the

I

individual conduct possible.

Id. (quoting in part, Mitsubishi, 990 F. Supp. at 1081).5 Such "systemic tolerance" at
I Nucor came from the plant's General Manager, Ladd Hall, who admitted that it was his

I

responsibility to investigate and respond to racial harassment or discrimination.

I

JA1127. Systemic tolerance was shown by the fact that nothing was ever done about

I

the multitude of racially hostile incidents reported by the putative class. JAI003-

1004,1015-1016,1044-1045,1054-1056,1070,1105-1106,1111-1112,1123-1124,8537-
I

I

5 Nucor's principal defense to plaintiffs' hostile environment claim is that Hall took appropriate action as Plant Manager to redress such hostility in the manner

required by the Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141

!

L.Ed.2d 662 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct.

2257, 141 L.Ed.2d 633 (1998). That defense involves the following common issues

I

of fact and law: (1) whether it has a policy against racial hostility or harassment; (2) whether such policy was "effectively enforced" or disfunctional; and (3) whether

I

Nucor promptly took remedial action once it knew or should have known of such hostility. See e.g. Sunbelt Rentals, 521 F.3d at 319-320; White v. BFI Waste Services,

Inc., 375 F.3d 288, 299-300 (4 thCir. 2004); Barrett v. Applied Radiant Energy Corp.,

I

240 F.3d 262, 266 (44 Cir. 2001); Spriggs v. DiarnondAuto Glass,242 F.3d 179, 188 (4 _ Cir. 2001); Hou_ardv. Winter, 446 F,3d 559, 565 (4th Cir.2006).

28

!

i

8560.

I

The putative class in this case necessarily experienced their work environment as

I

a whole regardless of whether part of it was communicated by word of mouth across

I

departments rather than over the plant-wide radio and e-mail system. The class is a

relatively small group of black employees working in the confined space of a single

I plant. JA8537-8560. Racial slurs or insults occurring in one department or area of the

I

plant quickly became known to everyone else regardless of their work station, JA993-

I

1124,8537-8560. Employees from various departments routinely work side-by-side in

I

the same physical area without walls or other boundaries separating them. JA8537-

8560. The named plaintiffs themselves worked in 5 of the 6 production departments

I

at various times, and other witnesses testified from all six of such departments about

I

the common hostile environment they experienced plant-wide and departmentally. 6

I

This Court has held that a common core of racial harassment satisfies Rule 23

"despite the presence of individual fact questions." Holsey., 743 F.2d at 216-217 ("We
I cannot accept Armour's contention that harassment and retaliation claims are not

I

susceptible of class treatment because they are too individualized. * * * Despite the

!

6 Four witnesses worked in the melt shop department (Jacob Ravenell, Brown,

Butts and Earl Ravenell); three witnesses worked in the hot mill (Sheldon Singletary,

I

Jerry Nick and Roane); two witnesses worl_ed in the cold mill department (John

Singletary and Jason Guy); six witnesses worked in the beam mill (Simmons, White,

I

Brown, Guy, Roane, Spann); and one witness each worked in the shipping department and maintenance department (Beaufort and Turner). JA993-1124,8537-8560.

29

I

I presence of individual factual questions, the commonality criterion of Rule 23(a) is

I

satisfied by the common question presented."); see also Gunnells v. Healthplan

I

Services, Inc., 348 F.3d 417,427-428 (4 a Cir. 2003) ("But Rule 23 contains no

I

suggestion that the necessity for individual damage determinations destroys

commonality, typicality, or predominance, or otherwise forecloses class certification.");
I Burlington Medical, 536 F. Supp. 2d at 656 ("The Fourth Circuit has already rejected

I

a similar argument that racial 'harassment and retaliation claims are not susceptible of

I

class treatment because they are too individualized,'"); Hill v. Western Electric Co.,

I

Inc., 596 F.2d 99, 102 (4 th Cir. 1979) ("A person.., in one department of a single

facility may represent.., other departments of the same facility.").
I "Obviously, a single, unitary policy of disparate treatment might not injure every

I

affected person in exactly the same manner or degree." International Woodworkers

I

v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1269-1270 (4 th Cir. 1981).

I

Numerous courts have held that a pattern- or-practice hostile environment claim seeks

to redress "the total work environment" and does not require that each class member

I experience every manifestation of racial hostility occurring in that environment:

I

The class-wide liability phase of a pattern or practice

hostile environment claim merely requires objective proof

I

of a hostile work environment; claims based on individual experiences are resolved in the remedial phase of the trial.

i

* * * UTD's argument that different employees experienced varying degrees of hostility does not vitiate the propriety of

3O

I

I class treatment.

I

Hostile environment claims require plaintiffs to

demonstrate that the "landscape of the total work

I

environment" was hostile towards the class. Evidence of the

subjective experiences of each class member is not

I

necessary to support class-wide liability ....

Factual differences between class members'

I

experiences do not preclude certification if the class

members share the same legal theory.

I

Newsome, 219 F.R.D. at 361 n.2, 362; Burlington Medical, 536 F. Supp. 2d at 660; see

I

also Mitsubishi, 990 F.Supp. at 1070, 1074, 1081 ("The landscape of the total work

I

environment, rather than the subjective experiences of each individual claimant, is the

focus for establishing a pattern or practice of... harassment which is severe and
I pervasive"); BreMiller, 195 F.R.D. at 21, 33 ("[C]ourts have found Rule 23(a)'s

I

commonality provision to be satisfied even in the face of challenges by defendants that

I

such claims require highly individualized treatment."); Smith, 2006 WL 715788 *5;

I

Markham v. White, 171 F.R.D. 217, 222 (N.D. Ill. 1997); Employees Committee, 407

F. Supp. at 431.
I The generally held view in this Circuit is that "It]he commonality prerequisite

I

does not require that all questions of law or fact be common to all putative class

members. Common questions do not need to predominate, but must exist. A class

action will not fail solely because there are factual differences among members of the

31

I

I putative class." Wiseman v. First Citizens Bank & Trust Co., 212 F.R.D. 482, 486 (N.C.

I

2003); see also Holsey, 743 F.2d at 216-217 (same); Woodworkers, 659 F.2d. at 1269-

I

1270 ("Rule 23 does not require precise, mirror-image identity respecting the injuries

I

caused by a single practice or policy at a single facility."); Lilly v. Harris-Teeter

Supermarket, 720 F2d 326, 333 (4th Cir. 1983)(class members not required to have
I "suffered discrimination in precisely the same employment practice", noting that the

I

Supreme Court in Falcon "rejected those cases that had interpreted its decision.., as

I

requiring that the class representative necessarily have suffered discrimination in

I

precisely the same employment practice as did all the other members of the class.");

Brown, 663 F.2d at 1275; Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3 d
I 331,344 (4 th Cir. 1998); Jarvaise v. Rand Corp., 212 F.R.D. 1, *3 (D.C.C. 2002);

I

Hunter v. American Gen. Life & Accident Ins. Co., 2004 WL 5231631 *5 (D.S.C.

!

2004).

I

The Seventh Circuit has explained why trial of a hostile environment claim as

a class action makes better sense than individual trials:

I It is hard to see why management of a class . . .

I

would be any more difficult than management of a suit with 27 individual plaintiffs seeking both legal and equitable

relief. In either event, a jury trial must be held, and factual

I

matters bearing on both damages and injunctive relief must

be presented to that body. Even if the judge were to hold 27

I

separate damages trials, each of the 27 plaintiffs would be entitled to present evidence about the plant-wide

32

!

I environment in order to show entitlement to an injunction.

I

The district judge did not explain how even one trial, with 27 plaintiffs, could be easier to manage than a class

proceeding; and if the judge contemplated 27 trials, then a

I

class proceeding looks even better by comparison. What is

more, handling equitable issues on a class-wide basis would

I

solve a problem sure to bedevil individual proceedings: How is it feasible to draft and enforce an injunction that will

bear on these 27 plaintiffs alone, and not on the other 323

I

black employees? Unless it is possible to prepare such

relief--and we do not see how it could be, or why a court

I

should try--then the equitable aspects of the litigation are class-wide whether the judge certifies a class action or not.

(The need for, if not inevitability of, class-wide treatment

I

when injunctive relief is at stake is what Rule 23(b)(2) is

about.).

I

Allen, 358 F.3d at 471. The Supreme Court has recognized that the purpose of Rule 23

I

"might well be defeated by an attempt to decide a host of individual claims before any

I

common question relating to liability has been resolved adversely to the defendant."

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 881 (1984); Internatioal

I

Brotherhood of Teamsters v. United States, 431 U.S. 324, 360-361 (1977).

I

Requiring that every manifestation of a hostile environment be experienced in

!

the same way by every class member would be tantamount to holding that such claims

I

can never be certified on a class-wide basis. Injunctive relief against a pattern or

practice cannot be obtained without class certification. Lowery,158 F.3d at 759

I

("[I]ndividuals do not have a private, non-class cause of action for pattern or practice

I

discrimination."); Allen, 358 F.3d at 470-471. This Court has recognized that "[a]

33

I

I common question is one that can be resolved for each class member in a single

i

hearing, such as the question of whether an employer engaged in a pattern and

I

practice of unlawful discrimination against a class of its employees." Thorn v.

I

Jefferson Pilot Life lns. Co., 445 F.3d 311, 319 (4mCir. 2006).

The district court's belief that employees experience separate plant-wide and
I department environments was based on the mistaken assumption that an employee's

I

work environment only includes racial hostilities that they witness in person: "it is

I

irrelevant whether the customer heard the epithet for himself or whether he came to

I

know through somebody else that such language is being used. In either case, a

reasonable person would feel it to be a hostile environment." Eddy v. Waffle House,
I 482 F.3d 674, 678 (4_ Cir. 2007); see also Spriggs v. Diamond Auto Glass, 242 F.3d

I

179, 184 (4thCir. 2001) ("Although Diamond contends that conduct targeted at persons

other than Spriggs cannot be considered, its position finds no support in the law. We

are, after all, concerned with the "environment" of workplace hostility, and whatever

the contours of one's environment, they surely may exceed the individual dynamic

between the complainant and his supervisor."); Sunbelt Rentals,521 F.3d at 317

(holding that employee could rely on harassment of others, including non-employee

customers, as part of the proof of a hostile environment). This Court has previously

quoted the Tenth Circuit's holding on this point with approval: "'Evidence of a general

34

I

I work atmosphere therefore -- as well as evidence of specific hostility directed toward

!

the plaintiff-- is an important factor in evaluating the claim.'" Spriggs, 242 F.3d at

!

184 (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10 th Cir. 1987)).

The District Court Erred In Denying Class Certification Once It

i

B. Found a Discriminatory Subjective Promotion Procedure That Was

Common Throughout the Plant

!

1. Racially Subjective Promotion Procedures

Satisfy The

Standards For Class Certification
! The district court erred in denying class certification once it found that"Nucor's

I

plant-wide promotion procedure allowing primarily white managers and supervisors

I

to rely on subjective criteria to select candidates for promotions is evidence probative

I

ofaplant-wide practice discriminating against African-American employees." JA9106.

Such a finding of "plant-wide . . . subjective criteria" and a "plant-wide practice

i
discriminating against African-American employees" satisfies the commonality and

I

typicality requirement of Rule 23(a). See e.g. Lilly, 720 F.2d at 333 ("As to the

!

commonality requirement, the complaint plainly alleged a practice of disparate

treatment in the exercise of unbridled discretion, thus raising questions of law and fact

I

common to all.., black employees."); Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th
I Cir. 1993) ("[C]ourts from around the country have found... 'subjective personnel

I

processes that operate to discriminate [sufficient to] satisfy the commonality and

typicality requirements of Rule 23(a).'"); Dukes v. Wal-Mart, 509 F.3d 1168, 1180 n.4,

35

!

I 1183-1184(9 th Cir. 2007); Caridadv. Metro-North Commuter R.R., 191 F.3d 283,286

!

(2d Cir.1999) ("delegation to supervisors, pursuant to compan2)-wide policies, of

!

discretionary authority without sufficient oversight.., gives rise to common questions

!

of fact warranting certification of the proposed class."); Cox v. American Cast Iron

Pipe Co., 784 F.2d 1546, 1557 (1 lth Cir.1986); Staton v. Boeing Co., 327 F.3d 938,
I 955 (9th Cir.2003); McReynolds v. Sodexho Marriott Services, Inc., 208 F.R.D. 428,

I

441-442 (D.C. 2002); Segar v. Smith, 738 F.2d 1249, 1276 (D.C. Cir. 1984); McKnight

I

v. Circuit City Stores, 1996 WL 454994, **3-4 (E.D. Va. 1996). 7

I

The Supreme Court has also noted that subjective practices may satisfy Rule

23's standard for class certification. General Telephone Co. v. Falcon, 457 U.S. 147,
I 159 n. 15 (1982). The Court subsequently held that subjective promotion procedures

!

7Numerous district courts have also held that subjective selection criteria similar to those at issue here satisfy the commonality and typicality requirement of Rule 23(a)(2). See e.g. Mathers v. Northshore Mining Co., 217 F.R.D. 474, 485 (D. Minn. 2003); Beckmann v. CBS, Inc., 192 F.R.D. 608, 613 (D. Minn. 2000); Morgan v. United Parcel Service, Inc., 169 F.R.D. 349, 356 (E.D. Mo. 1996); Graffam v. Scott Paper Co., 870 F. Supp. 389, 395 (D. Maine 1994); Toney v. Rosewood Care Center, Inc. of Joliet, 1999 WL 199249 * 7 (N.D. Ill. 1999); Shores v. Publix Super Markets, Inc., 1996 WL 407850 * 6(M.D. Fla. 1996); Adams v. Donnelley & Sons, 2001 WL 336830 * 11 (N.D. Ill. 2001); Latino Officers Association City ofNew Yorkv. The City of New York, 209 F.R.D. 79 (S.D.N.Y. 2002); Warren v. Xerox Corp., 2004 WL 1562884 * 11 (E.D.N.Y. 2004); McClain v. Lufkin Industries, Inc., 187 F.R.D. 267 (E.D. Tex. 1999); Jones v. FordMotor Credit Co., 2005 WL 743213 * 8 (S.D.N.Y. 2005); Anderson v. The Boeing Co., 222 F.R.D. 521,537 (N.D. Ok. 2004); Dukes, 222 F.R.D. at 150.
36

!

I can be challenged on disparate impact grounds or as a pattern-or-practice of disparate

!

treatment. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 989 (1988); see also

!

MeClain,519 F.3d at 276 (same).

!

Rather than basing their claim on individualized promotion decisions, plaintiffs

are challenging the subjective promotion procedure itself, seeking to enjoin and replace
I it with a more job-related and race-neutral selection process that is not so susceptible

I

to the subjective racial bias that has been shown to exist. Such a claim is not

!

embroiled in individualized promotion decisions in the manner assumed below, but

I

is instead focused on the common question of whether disparate impact or a pattern-

or-practice exists as a result of the plant-wide subjective promotion process found by
I the district court. See Teamsters, 431 U.S. at 360; Cooper, 467 U.S. at 876, 881.

!

Plaintiffs did not rely on the mere existence of a subjective promotion

I

procedure, but presented a combination of statistical, anecdotal and direct evidence

i

showing that such procedure was racially discriminatory throughout the plant.

Plaintiffs presented evidence of:

i a common plant-wide promotion procedure

I

expert evidence of excessive and unnecessary subjectivity evidence of a plant-wide environment or culture that fostered and

condoned racial hostility

I

direct evidence of subjective racial bias by managers and supervisors

I

anecdotal evidence of racial stereotyping throughout the plant statistical evidence of disparate impact and a pattern-or-practice of

37

!

i racial bias in promotions

!

JA-993-1548,1807-1896,8537-8560.

Promotion decisions were made by just six Department Managers and the plant's

General Manager, all of whom testified that they were not required to follow any set

policy or criteria and were permitted to decide for themselves what to consider and

who to promote. JA1719-1796. An expert in industrial selection procedures testified

that Nucor's promotion process is excessively subjective, and additional expert

!

testimony established that "the selection procedure for hiring and promotion have these

!

same basic features throughout the Company regardless of department." JA 1157,1515-

1516,1520. 8 Evidence from both black and white employees showed that Nucor's
I decisionmakers openly expressed subjective racial bias against African-Americans and

!

fostered a racially hostile culture and environment throughout the plant. See pp. 9-12,

I

14-20 supra. The evidence also showed that black applicants for promotion were

I

selected only 36.2% as often as would have been expected in the absence of subjective

racial bias, and that this disparity was statistically significant at -2.54 standard

I

deviations. JA 1162.

The district court expressed concern that cases challenging a subjective

8 The Fifth Circuit recently relied on similar expert testimony in McClain, 519 F.3d, at 277 n.4.
38

!

! promotion procedure may be too individualized for class certification

!

(JA,8992,8990,9102), but the Supreme Court has held that a pattern-or-practice claim

!

looks to the practice or pattern itself, not individualized promotion decisions. Cooper,

I

467 U.S. at 876, 881 ("'at the liability stage of a pattern-or-practice trial the focus often

will not be on individual hiring decisions, but on a pattern of discriminatory
I decisionmaking.' * * * Indeed, Rule 23 is carefully drafted to provide a mechanism

I

for the expeditious decision of common questions. Its purposes might well be defeated

by an attempt to decide a host of individual claims before any common question
i

!

relating to liability has been resolved adversely to the defendant."); Teamsters, 431

U.S. at 336, 360 ("At the initial 'liability' stage of a pattern-or-practice suit the
! [plaintiff] is not required to offer evidence that each person for whom it will ultimately

I

seek relief was a victim of the employer's discriminatory policy. Its burden is to

establish a prima facie case that such a policy existed. * * * Without any further
m

I

evidence from the [plaintiff], a court's finding of a pattern-or-practice justifies an

award of prospective relief."); Cox, 784 F.2d at 1556 ("[I]n stage one proceedings..
I . the focus is the broad pattern and practice at issue, not the merits of individual

I

claims."); Newsome, 219 F.R.D. at 361,363; see generally Gunnells, 348 F.3d at 425-

427.

This Circuit has held that "[a] person who has been injured by unlawful,

39

I

I discriminatory promotion practices in one department of a single facility may represent

!

others who have been injured by the same discriminatory promotion practices in other

I

departments of the same facility. In such a case, the representatives of the class all

!

have the same interests in being free from job discrimination, and they have suffered

injury in precisely the same way in the denial of promotion." Hill, 596 F.2d at 102;
I International Woodworkers, 659 F.2d at 1270 ("There is involved but a single plant.

!

Although more than one department is affected, the practices and their discriminatory

!

effects are said to emanate from a unitary employer policy."); Newsome, 219 F.R.D. at

i

362.

Denial of class certification would leave plaintiffs with no means of changing
i the pattern-or-practice of racial bias in which they work. Lower?/, 158 F.3d at 759

i

(precluding pattern-or-practice claims absent class certification); Teamsters, 431 U.S.

I

at 360 (requiring prospective injunctive relief upon proof of a pattern-or-practice). If

I

subjective promotion procedures are held to be too individualized to permit class

certification, employers will be encouraged to adopt such procedures and to abandon

i

more objective, job-related selection procedures that remain subject to challenge on

I

class grounds. The Supreme Court has cautioned against treating subjective practices

!

differently than more professionally developed selection procedures for this very

!

reason. Watson, 487 U.S. at 989-990 ("If we announced a rule that allowed employers

40

!

so easily to insulate themselves from liability under Griggs, disparate impact analysis

might effectively be abolished.").

i

i

o The Promotions At Issue Should Not Have Been Segmented Into Numbers Too Small To Detect A Statistical Pattern Even

When It Exists

i

The district court found that black employees were 19.24% of the applicants for

I

promotion, but only 7.94% of the persons promoted under Nucor's plant-wide

i

subjective promotion procedure -- a disparity shown to be statistically significant at

!

a rate of-2.54 standard deviations when the entire four-year (1999-2003) liability

period was considered. JA8984,1162. 9 The court, however, artificially reduced this

I

disparity to -1.48 standard deviations by reducing the number of promotions it

I

considered in two ways. First, the court refused to require all the promotion decisions

I

made by the five Department Managers at issue to be produced, allowing Nucor to

handpick just 45 promotions from several hundred made by the same Department
I Managers -- the same mangers who refused to promote the seven named plaintiffs.

I

JA486-487,399-400,408-409,1161,1171.

Second, the Court reduced the relevant

I

9This Circuit has recognized that a disparity in promotion rates greater than two

!

standard deviations is statistically significant evidence of a pattern-or-practice of racial discrimination. Lilly, 720 F.2d at 326 & n. 17; EEOC v. American National Bank, 652

F.2d 1176, 1190-1193 (4a Cir. 1981); see also McClain, 519 F.3d at 279-280 (two

!

standard deviations held sufficient to establish statistical significance in the context of a subjective promotion procedure).

41

!

! promotions to an even smaller number by refusing to consider those that occurred in

I

the 1999-2000 part of the four-year pre-suit liability period (i 999-2003) merely because

I

Nucor had destroyed its application records for that period (the records of the

!

promotions themselves were not destroyed). JA1503-1504.

This Court and others have recognized that reducing the number of promotions
I will artificially reduce the number of standard deviations and the chance of detecting

I

a significant racial disparity even when it exists. Lilly, 720 F.2d at 326 n.17

("Combined data is more likely to demonstrate the 'pattern or practice' of defendant's

policies, whether discriminatory or not. Moreover, by increasing the absolute numbers

in the data, chance will more readily be excluded as a cause of any disparities found.");

American National Bank, 652 F.2d at 1194-1196; Capaci v. Katz & Besthoff, Inc., 711

F.2d 647, 654 (5th Cir. 1983) ("[T]his was an unfair and obvious attempt to

disaggregate that data to the point where it was difficult to demonstrate statistical

significance. By fragmenting the data into small sample groups, the statistical tests

became less probative. "); Raczak v. Ameritech Corp., 103 F.3d i257, 1263 (6 th Cir.

1997) ("lilt is certainly possible that an employer will want to fiddle with the definition

to mask the possible evidence for age discrimination. * * * [U]sing very small sub-units could also mask discrimination because it is much more difficult to show or

perceive discrimination when only very small numbers are involved."); Waisome v.

42

!

! The Port Authority ofNew York and New Jersey, 948 F.2d 1370, 1379 (2 nd Cir. 1991).

!

a. Applicant-Based Statistics Should Not Have Been Required

Once Nucor Destroyed Its Applications For Promotion
! The district court erred when it eliminated the promotions from 1999-2000

!

merely because Nucor destroyed its applications for that period. JA8985,1162,1503-

!

1504. The Supreme Court has held there is "no requirement.., that a statistical

showing of disproportionate impact must always be based on analysis of the

characteristics of actual applicants." Dothardv. Rawlinson, 433 U.S. 321,330 (1977).
! Rather than just ignoring relevant promotions, Circuit precedent required that the

I

next-best estimate of missing applicant rates be used, such as the applicant rate from

the succeeding time period as a proxy for the missing period, U.S.v. County of

Fairfax, 629 F.2d 932, 940 (42 Cir. 1980), or census data of the qualified promotion

workforce as a reasonable estimate of the available applicant pool. Lewis v.

BloomsburgMills, Inc., 773 F.2d 561,568 (4thCir. 1985) (holding that "census data"

is properly used as proxy for actual applicant data that is no longer available.);

American National Bank, 652 F.2d at 1195 (same); see also Ward's Cove Packaging

Co., Inc. v. Atonio, 490 U.S. 642, 650-651 & n.6 (1989) (relying on census workforce

benchmark rather than applicant rates in analysis ofpromotions)._° Most recently, the

10 Plaintiffs' experts' use of "qualified workforce" benchmark is based on census data of the qualified workforce likely to bid for promotions, not hiring. Plaintiffs' experts did not rely on the general census population or the qualified
43

!

! Fifth Circuit has held that "potential applicant flow data" may be used when "actual

!

data" is missing or unreliable. McClain, 519 F.3d, at 280.

Plaintiffs' experts testified that in using these alternative applicant benchmarks,

they followed the commonly accepted statistical methodology for missing application

records described in Paetzold's and Wilborn's text, The Statistics of Discrimination.

JA1503-1504,1160-1161,1270-1275,1352-1353,1363-1364,1381,1388-1389,1413-

1414,1416-1417,1421,1475-1476. Nucor offered no evidence that 2001-2003 application

!

rates were not typical of the 1999-2000 time period for which applications had been

!

destroyed.

The district court found that these alternative applicant benchmarks "may be

i
reasonable and the statistics based thereon may be relevant to prove discrimination at

!

the plant", but it still elected to eliminate all promotions for which applications had

been destroyed because "[s]tatistics based on actual data is more probative than statistics based on assumptions." JA8985. This created an impossible standard to meet

because the "actual data" on applicants had been destroyed and the remaining number

of promotions were too small to allow a true test of statistical significance. A

defendant should not be allowed to press for "actual data" when it has not maintained

workforce for entry-level jobs that are typically filled for hiring at Nucor, but have limited the qualified workforce statistic to upper-level jobs that are the same or similar to the ones that Nucor promotes employees into. JA1161-1164.
44

,

! that data. The next best proxy for the missing applicant records should have been

!

required below even if some degree of inference or assumption had to be made.

I

JA 1503-1504,1160-1161. Otherwise, the defendant is able to artificially reduce the time

!

period to the point that the numbers of promotions are too small to detect racial

discrimination even when it exists. Employers who destroy their records avoid class
I certification or pattern-or-practice liability, while other employers who retain their

i

records will remain liable.

i

The substitute benchmark proffered by plaintiffs' experts involved fewer

"assumptions" than the district court's choice to simply ignore the 1999-2000

promotions altogether. The 1999-2000 promotions were the most probative of racial

discrimination because they were the only ones that occurred before EEOC Charges

began to be filed in early 2001.11 This Court and others have recognized that "[j]ob

offers made after learning of a Charge 'are entitled to little weight.'" Holsey, 743 F.2d

at 215; Teamsters, 431 U.S. at 342 ("later changes in... promotion policy.., could

not erase its previous illegal conduct"). The district court would have engaged in fewer

assumptions if it had applied the two substitute benchmarks that this Court has

previously approved in Fairfax andLewis, supra, rather than ignoring the promotions

11 Sheldon Singletary filed the first EEOC Charge in February 2002, followed by Ramon Roane's Charge which was filed in March 2002. JA5922,5942.
45

!

! in 1999-2000 altogether. This Court and others have held that promotions for the

!

entire liability period should be used whenever possible without disaggregating them

!

into separate time period in the manner done below. Lilly, 720 F.2d at 326 n.17.

|

b. Excluding Promotions Made By The Same Department Managers Who Refused To Promote The Named Plaintiffs

Was An Error And An Abuse of Discretion

I

The district court also erred by allowing Nucor to withhold production of all but

45 of the promotions that were made by the Department Managers who refused to

promote the named plaintiffs. JA 4860487,399-400,408-409,1161,1171.

The entire

pattern of such decisionmakers' decisions was necessary in order to have had a valid

assessment of the statistical significance of such pattern. See JA941-942. Three

experts have confirmed that subjectivity is a common feature of the promotion process

for all jobs in the production departments at issue, not just the promotions Nucor

handpicked for discovery. JA1157,1160-1161,1171,1515-1516,1520.

The mind-set or

subjective bias of a given supervisor or manager cannot be partitioned between one

set ofjobs under their purview and another. See e.g. Lilly, 720 F.2d at 338 ("We agree

that evidence of discriminatory intent in one employment context (e.g., hiring) may be

probative of discriminatory intent in a different context (e.g., promotions) where it has

been demonstrated that the same company managerial personnel were responsible for

decisionmaking in both contexts.").

46

I

i Plaintiffs' statistician demonstrated that Nucor did not apply any coherent

I

standard in producing some promotions and not others under the same Department

I

Manager. JA397-410,1161, 1171..Nucor represented that it produced the promotions

I

that it thought to be "similar in pay, grade and experience required as the job the

plaintiffs bid on" (_A483-484), but plaintiffs_ statistician demonstrated that this was not
I true, that "[m]any of the positions and vacancies that have not been produced are in

I

the same job classifications and departments that the defendant has designated as

!

'similarly situated' to the named plaintiffs." JA399. Dr. Bradley testified that Nucor

I

essentially gerrymandered the promotion pool without any valid basis for

distinguishing between the promotions produced and those withheld:
I 11. The defendant has first reached its own

I

conclusion about what should be found "similarly situated" and then worked backward to produce only information

that fits its definition. Statistics is a branch of scientific

I

inquiry that reasons in the opposite direction, first

constructing the inquiry and data to be gathered free of any

I

preconceived conclusions and then letting the data lead to any number of conclusions on its own. If, for example, the

world were defined as flat and the only data permitted to be

I

discovered was limited to that which fit that hypothesis,

then any inquiry would almost of necessity come to the

I

conclusion that the world is indeed flat. At this early stage of a case, the data that will allow statistical inquiry into who

is really "similarly situated" should not be restricted in this

I

way. Defendant's definition is only one of the possible outcomes on that issue unless the data is limited to fit a

I

predetermined conclusion.

47

!

I 13. There are also additional problems which make

I

defendant's definition of "similarly situated" individuals inadvisable. Defendant's definition has resulted in the

production of posting and bidding records for what appears

I

to be 45 vacancies in the 23 job classifications listed in

Appendix D. Those, however, are only some of the

I

positions and vacancies in those 23 "similarly situated" job classifications. Defendant's definition omits many vacancies

and positions in the identical job classification, pay grade

I

and department. For example, it has produced posting and

bidding records for some of the vacancies in the Mill

I

Inspector job classification but not others in the same job classification, pay grade and department. Positions in the

same classification, pay grade and department are usually

I

deemed similarly situated under even the narrowest

definition of that term. Defendant's definition, however, is

I

more restricted. Appendix A lists over 50 positions for which posting and bidding records have not been produced

which are in the identical job classification, pay grade and

I

department as the positions that the defendant has

designated as "similarly situated" to the named plaintiffs.

I

There are also many other positions which have not had postings and bidding records produced which appear to be

very similar to those that the defendant has designated

I

"similarly situated." For example, they produced some

inspector jobs but not others. The defendant's "similarly

I

situated" definition is just too restricted meaningful statistical analysis in this case.

to permit

!

14. * * * For all the reasons I have discussed

above, the information and data produced by the defendant

I

is inadequate to allow proper statistics to be computed. The defendant's effort to limit the inquiry and data to a

predetermined definition of who is "similarly situated"

I

prevents any genuine inquiry into that issue. Defendant's electronic databases make records readily available on all

I

employees in the six manufacturing departments which would provide an adequate statistical basis for genuine

48

!

I inquiry into whether or not there is a common question of

I

fact in this case that applies to everyone in those six departments, rather than just the 23 job classifications that

the defendant has deemed "similarly situated" before any

I

statistical inquiry has begun.

I

JA406-409, see also JA399,400,1161,1171.12

The district court stated that plaintiffs never showed that production of more
I than 45 promotions would have made a difference, but it is well known that reduction

I

of a promotion pool to small numbers artificially reduces the likelihood of detecting

I

statistically significant disparities. JA8985 & 8985 n.3. See Lilly, 726 F.2d at 326 n. 17;

I

Capaci, 711 F.2d at 654. The district court itself found that the standard deviation was

only -1.48 for the 45 promotions that Nucor produced under its cryptic "similarly
I situated" contention. The reduced number of deviations was the direct product of the

I

reduced number of promotions that the court required Nucor to produce. JA8985. The

I

12The court initially said in a footnote that "plaintiffs have not requested

I

additional evidence to compile reliable statistics" (JA8985 n.3), but when that was

shown to be inaccurate in plaintiffs' motion for reconsideration, the court held only

!

that plaintiffs had not "attempted to show that the limitation prevented them from compiling reliable statistics." JA9103. Plaintiffs, however, presented expert testimony

that the limitation to just 45 promotions had reduced the numbers to a point too small

I

to permit a true test of statistical significance on several different occasions and in several different motions to compel. JA399-400,408,409,1161,1171,9059-9060,9066-

9075; see also JA89,233,397,453,489,557,589,785,853.

Plaintiffs attempted to obtain

I

production of all the promotions made by the Department Managers at issue through

additional discovery and motions to compel that continued to be denied by the district

I

court until shortly before the deadline for submitting the evidence in support of class certification. Id. n. 19, supra.

49

I

I disparties at issue were large and would be expected to be statistically significant if the

i

district court had not reduced the promotions considered to such small numbers.

I

The district court misconstrued Ardrey v. United Parcel Service, 798 F.2d 679,

I

684-685 (4 th Cir, 1986), which denied discovery only in the context of the named

plaintiffs' individual claims. Class discovery was not denied, but merely reserved until
I after trial on the merits of plaintiffs' individual claims. Id. at 680-682 ("a limitation on

I

initial discovery.., restricted plaintiffs to... their individual claims as opposed to

I

information regarding their class action"; the district court stated it would "consider

I

requests for further discovery" after trial of the individual claims). When plaintiffs lost

their individual claims at trial, they did not further pursue their class-based discovery.
I Id. at 682. The opposite bifurcation occurred in this case; class discovery went first

I

by agreement and order. Ardrey does not address class certification discovery or

I

approve making a determination of"similarly situated" class members, commonality

I

or typicality before discovery is ever allowed. If plaintiffs are to show that there is a

common pattern of race discrimination across department lines, then they must at least
I be provided all the promotions that comprise such pattern so that statistical significance

I

can be shown. Ardrey says nothing different

e The Court Erroneously Precluded Use Of The 80% Standard For Disparate Impact

The district court also erred by refusing to apply the 80% standard adopted by

5O

I

I the federal enforcement agencies in the Uniform Guidelines On Employee Selection

I

Procedures, 29 C.F.R. § 1607.4D. This Court and numerous other courts have applied

I

the 80% standard as proof of disparate impact, and the standard text on statistical

i

evidence in employment discrimination endorses such standard. See e.g. Chisolm v.

U. S. Postal Services, 665 F.2d 482, 496-96 (4 thCir. 1981); Mulligan v. South Carolina
I Dept. ofTransp., 446 F.Supp.2d 446 (D.S.C. 2006); Underwood v. Lehman, 530 F.

I

Supp. 139, 144-145 (D.S.C. 1982); Paetzold and Wilborn, The Statistics of

I

Discrimination, §5.06 (2002) ("The predominant approach for comparing the treatment

I

of favored and disfavored groups is the four-fifths rule."). Plaintiffs' experts testified

that the 80% standard is a commonly accepted statistic for determining disparate
! impact, and that black applicants promotion rate was only 36.2% of the promotion rate

I

for Caucasian employees. JA1162-1163,1165-1168.

The weight to be given to such

I

evidence was for the jury at trial, not the court in deciding summary judgment. Dukes,

509 F.3d at 1177.
I

4. The District Court Went Too Far Into The Merits

I

The district court went too far into the merits in finding that the "assumptions"

I

necessary for the statisticians to estimate the missing applicant rates "diminishes the

!

probative value" of the statistics. JA8981. "Diminishes" does not mean "eliminates,"

and these were the best statistics available for that highly relevant pre-suit time period.
i

51

I

I Such a ruling might be appropriate by the jury at the end of a trial on the merits, but

I

it is not appropriate for the court in determining whether there are common questions

I

of law or fact suitable for class certification. Rejecting the clear statistical evidence of

I

a disparity shown by the best available means was, in fact, to decide the merits of who

is likely to prevail at trial. "The likelihood of the plaintiffs' success on the merits...
I is not relevant to the issue of whether certification is proper." Thorn, 445 F.3d at 319.

I

Once the court determined that plaintiffs' statistical assumptions "may be

I

reasonable and the statistics may be relevant to prove discrimination at the plant" (JA

I

8985), it should not have gone further to decide which parties' statistics it would prefer

if it were the finder of fact at trial. That is the sole province of the jury. Because
I plaintiffs' experts estimated the missing applicant rates in the way approved by this

I

Court in Fairfax and Lewis, the district court should have left it to the jury to decide

I

what weight to be given to such evidence in deciding whether Nucor engaged in a

I

pattern-or-practice of racial discrimination in promotions. This Court has held that

"plaintiffs need not, at the time of the motion for class certification, demonstrate by
I statistical evidence that blacks have been [adversely affected] at a higher rate than have

I

whites, or any other differential. Certification is only concerned with the commonality

not the apparent merit of the claims." Lilly, 720 F2d at 332-333.

The district court erred by weighing the parties' competing evidence to

52

I

I determine the likelihood of prevailing on the merits of the underlying claim rather than

I

simply deciding whether there is a common question that presents a triable issue of

I

fact. Plaintiffs offered statistical evidence only to show that a common triable issue

I

of fact exists, not to establish a conclusive case on the merits of whether a pattern-or-

practice of discrimination will be found by the jury at trial. Id.; see also Mulligan, 446
I F.Supp.2d at 45.2 & n.6 ("The court need only determine whether the plaintiffs are

I

asserting a claim which, assuming the merits, would satisfy the requirements of Rule

I

23. * * * Challenges to the merits of Plaintiffs' claims would be more appropriately

I

raised in a motion for summary judgment.").

C. Plaintiffs Were Adequate Class Representatives Because They

I

Sought Promotion To The Same Jobs, But Not The Same Vacancies

In Such Jobs, As Other Class Members

!

The district court further erred and abused its discretion by holding that the

I

named plaintiffs may not be adequate class representatives to the extent they seek

I

instatement in the same vacancy as other putative class members. JA8988. Such an .

approach to Rule 23, however, would doom virtually every class action or pattern-or-

I

practice case because competition for promotion is inherent to the workplace. The

I

standard treatise on class actions states that "most courts have recognized that such

!

potential competition among employees is a normal feature of employment

discrimination suits of all types and exists in individual suits" as much as a class action.
!

53

i

i 8 Newberg on Class Actions §24.33 (4th ed.). Various courts have found that

i

competing for the same vacancies at Stage II of a bifurcated trial does not create

I

antagonistic interests, and that to hold otherwise would "doom almost every class

I

action" because such competition is inherent to most promotion claims. See e.g.

Meiresonne v. Marriott Corp., 124 F.R.D. 619, 625 (N.D. Ill. 1989); Matyasovsky v.
I Housing Authority of The City of Bridgeport, 226 F.R.D. 35, 42-43 (D. Conn. 2005);

!

Smith v. The Univ. of Washington Law School, 2 F.Supp.2d 1324, 1343 (W.D. Wa.

!

1998); Christman v. American Cyanamid Co., 92 F.R.D. 441,452-453 (N.D. West Va.

I

1981); Hartman v. Duffy, 158 F.R.D. 525, 547 (D.D.C. 1994); Dean v. International

Truck, 220 F.R.D. 319, 322 (N.D. Ill. 2004); In Re Polypropylene Carpet, 178 F.R.D.
I 603, 613-614 (N.D. Ga. 1997).

I

Moreover, individual promotion claims do not arise until after the named

I

plaintiffand the putative class have proven the common disparate impact and pattern-

I

or-practice of discrimination and had classwide injunctive relief and punitive damages

awarded for the benefit of the class as a whole. See Cooper, 467 U.S. at 876;
I Teamsters, 431 U.S. at 361; Gunnells, 348 F.3d at 429("In fact, Plaintiffs' claims for

I

punitive damages do not require any individualized inquiry at all because this damage

calculation would be based solely on TPCM' s conduct.").

Such remedial issues at Stage II do not undercut the common interest of the

54

I

I named plaintiffs and class members in seeking classwide injunctive relief at Stage I.

I

This Circuit has held that the named plaintiffs' interest in proving and enjoining a

I

pattern-or-practice of promotion discrimination throughout a single plant is inherently

I

adequate, common and typical of a putative promotion class:

All employees of a firm that allegedly discriminates

I

in promotions have an identical interest in obtaining

declaratory and injunctive relief against the perpetuation of

I

the challenged practices. Therefore, quite apart from any possibility of sharing in classwide damages as to practices

to which the named representative alleges no particularized

I

individual claim, employee representatives share interests of

a kind with other employees in redressing racially

I

discriminatory employment practices that either pollute their working environment or else threaten them with harm in the

foreseeable future.
I Brown v. EckerdDrugs, Inc., 663 F.2d 1268, 1276 (4 th Cir. 1981).

I

Any conflict between the named plaintiffs and putative class members at Stage

I

II is also more apparent than real. Plaintiffs showed that they bid on the same or

I

similar jobs, but not the same vacancy in such jobs as putative class members.

JA9073-9075,7203-7860.13 Because there were multiple vacancies in the jobs they
I

I

13The bid package exhibit (JA7203-7860) showed that there were no other putative class members who bid on: (1) the Mill Adjuster, Coiler Technician, or

I

Supervisor jobs that Ray Roane bid on in the Beam Mill and Hot Mill; (2) the Mill Operator, Strand Tender or Coiler Technician jobs that Alvin Simmons bid on in the

Melt Shop, Hot Mill and Beam Mill; (3) the Exit Operator and Entry Operator jobs that

I

Jacob Ravenell bid on in the Cold Mill; (4) the Crew Leader or Supervisor job that Gerald White bid on in the Beam Mill; (5) the Mill Adjuster and CPI Operator jobs that

55

!

I sought, and there were no class members who bid on the exact same vacancy as the

!

named plaintiffs, the district court had no basis to find even a potential conflict of

I

interest with the putative class, much less an actual one. Id. The only instance of

I

competitive bidding cited by the court involved two named plaintiffs who bid on the

same vacancy, not a competition with putative class members. JA9104 (citing Exh. 39,
I defendants' supplemental interrogatory answers). The competing named plaintiffs,

I

however, agreed among themselves as to which was better qualified, leaving no real

I

conflict between them for the same vacancy. JA2652. There were also multiple

I

vacancies for the same job, and so no actual conflict existed even in the limited

circumstance of two named plaintiffs bidding on the same job.
I Even if there were such a potential competition with putative class members,

I

it would not become an issue until a class member elected at Stage II to file a claim for

i

the same vacancy as one of the seven named plaintiffs after a finding of classwide

I

liability at Stage I of a bifurcated proceeding. See e.g., Sledge v. J. P. Stevens & Co.,

Inc., 585 F.2d 625, 637-638 (4 thCir. 1978). That is not only highly unlikely, but also

I easily resolved in a Stage II proceeding for individualized relief. Both class members

I

Quinton Brown bid on in the Beam Mill; (6) the Mill Operator Furnace Recorder, Mill Inspector, Utility Man, Straighter Operator and Stacker Operator vacancies that Jason Guy bid on inthe Cold Mill and Beam Mill. JA-7203-7860 (bidpackages for vacancies bid on by named plaintiffs).
56

!

I and the named plaintiffs would be equally entitled to the presumption of racial

I

discrimination which carries into Stage II from the finding of classwide liability of

I

Stage I, and the factfinder would merely have to decide which of the two was best

I

qualified. Id. To the extent that a "quagmire of hypothetical judgments" were to arise

at Stage II which makes it difficult to determine which claimant was best qualified, the
I Court would then be permitted to use a formula approach to Stage II remedies.

I

McClain, 519 F. 3d at 280-282; Pettway v. American CastIron Pipe Co., 494 F.2d 211,

261 (5 th Cir. 1974).
l

I

The decision in General Telephone Co. of the Northeast v. EEOC, 446 U.S.

318, 331 (1980) cited by the district court held that the EEOC was not even subject to
I the adequacy requirement of Rule 23, and only said in dicta that private hiring

!

applicants seeking to be hired might have conflicting interests with existing employees

I

because, if hired, they might"compete with employees for fringe benefits or seniority."

I

Id. The Court did not have before it the current situation in which only employees, not

hiring applicants, are trying to enjoin and replace a subjective promotion process with
I a more objective procedure that will benefit all employees alike, not just the named

I

plaintiffs. The Fourth Circuit has held since General Telephone that the named

plaintiffs' interest in proving and enjoining a pattern-or-practice of promotion

discrimination throughout a single plant adequately represents the interest of a putative

57

I

I promotion class. Brown, 663 F.2d at 1276.

I

CONCLUSION

I

For all the foregoing reasons, the denial of class certification should be reversed

I

and remanded with instructions to: (1) certify the putative class of African-American

employees from December 8, 1999 forward; and (2) to require production of the
I records surrounding all vacancies that have been posted or filled since December 8,

I

1999.

I

STATEMENT REGARDING ORAL ARGUMENT

I

Oral argument is requested and necessary. The issues in this appeal require oral

argument because: (1) the appeal is not frivolous; (2) the dispositive set of issues

I presented have not been recently authoritatively decided; (3) the facts and legal

I

arguments cannot be adequately presented in the briefs and record; and (4) the

I

decisional process will be significantly aided by oral argument.

Respectfully submitted this 13_ day of May, 2008.
I

I

Robert L. Wiggins, Jr. Ann K. Wiggins

Susan G. Donahue

I

Wiggins, Childs, Quinn & Pantazis, LLC

The Kress Building, 301 19_ Street North

I

Birmingham, Alabama 35203

205-314-0500, 205-254-1500 (facsimile)

58

!

! Armand Definer

I

D. Peters Wilbom, Jr. Derfner, Altman & Wilbom

40 Calhoun Street, Suite 410

I

P.O. Box 600

Charleston, S.C. 29402

!

(843) 723-9804, (843) 723-7446 (facsimile)

Attomeys for Plaintiffs-Appellants
i

i

!

I

i

I

I

I

I

i

I

I

I

59

I

I

I UNITED STATES COURT OF APPEALS

I

FOR THE FOURTH CIRCUIT

NO. 08-1247

Brown, eL al. v. Nucor, et al.

I

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)

I

Certificate of Compliance With Type-Volume Limitations Typeface Requirements, And Type Style Requirements

!

lo

This brief complies with the type-volume limitation of Fed. R. App. P. 32 (a)

(7)(B) (i) because:

I

this brief contains 13,934 words, excluding parts of this

brief exempted by Fed. R. App. 32(a)(7)(B)(iii).

I . This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirement of Fed. R. App. P. 32(a)(6) because:

i

this brief has been prepared in a proportionally spaced

I

typeface using WordPerfect 8 in 14 point Times New Roman.

I

Robert L. Wiggins, Jr.

I

Attorney for Plaintiffs-Appellants

i

60

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I CERTIFICATE OF SERVICE

I

I certify that on May 13, 2008, I filed with the Clerk's Office of the United States

Court of Appeals for the Fourth Circuit the required copies of this Brief of Appellant,

I

and further certify that I mailed this_arnedate t_e required copies to opposing counsel.

I

Iddi'Ol_D-_
Robert L. Wiggins, Jr.

I

OPPOSING COUNSEL:

I

E. Duncan Getchell, Jr. McGuireWoods LLP

One James Center

I

901 East Cary Street

Richmond, VA 23219

I

Telephone Number: 804/775-4319, Facsimile: 804/775-1061

Cary A. Farris

I

Marcus Roland Patton

ALANIZ & SCHRAEDER, LLP

I

2500 City West Blvd., Suite 1000 Houston, TX 77042

Telephone Number: 281/833-2200, Facsimile: 281/833-2240

I John S. Wilkerson, III

I

Nosizi Ralephata Attorneys at Law

TURNER, PADGET, GRAHAM & LANEY, P.A.

I

PO Box 22129

40 Calhoun Street, Suite 200

I

Charleston, South Carolina 29401 Telephone Number: 843/576-2800, Facsimile: 843/577-3369

61

 
 /i,' 1

Appeal No. 08-1247 UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT QUINTON BROWN, et al. Appellants,
V,
NUCOR CORPORATION, et al. Appellees.

,3
FILED
JUL _ 2O08

On Appeal from the United States District Court for the District of South Carolina, Charleston Division

BRIEF OF APPELLEES NUCOR CORPORATION AND NUCOR STEEL BERKELEY

©

Cary A. Farris Marc Patton Alaniz & Schraeder, L.L.P. 2500 City West Boulevard Suite 1000 Houston, TX 77042 Tel: (281) 531-0927 Fax: (281) 531-8024

John S. Wilkerson, III Nosizi Ralephata Turner, Padget, Graham & Laney, P.A. P.O. Box 22129 (29413) 40 Calhoun Street, Suite 200 Charleston, SC 29401 Tel: (843) 576-2801 Fax: (843) 577-3369

E. Duncan Getchell, Jr. Erin M. Sine McGuireWoods LLP One James Center 901 East Cary Street Richmond, VA 23219 Tel: (804) 775-4319 Fax: (804) 698-2061 Counsel for Appellees

_1 ¢°_ €....

¢_€-

CZ

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53-. "_ 711

._.L.-c:

..

CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. and Local Rule 26.1, Appellees make the following disclosure:
1. Is party a publicly held corporation or other publicly held entity:
Yes
2. Does party have any parent corporation:
Yes, Nucor Corporation is the parent corporation of Nucor Steel Berkeley
3. Is 10 percent or more of the stock of a party owned by a publicly held corporation or other publicly held entity:
Yes, the two following entities own 10 percent or more of the stock in Nucor Corporation:
Barclays Global Investors, NA and related entities 45 Fremont Street San Francisco, California 94105
State Farm Mutual Automobile Insurance Company and related entities One State Farm Plaza Bloomington, Illinois 61710
4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of this litigation?
No
5. Is the party a trade association?
No

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ........................................................

i

TABLE OF CONTENTS .........................................................................................

ii

TABLE OF AUTHORITIES ...................................................................................

v

COUNTERSTATEMENT OF THE ISSUES ..........................................................

1

STATEMENT OF THE CASE ................................................................................

2

STATEMENT OF FACTS ......................................................................................

7

SUMMARY OF THE ARGUMENT ....................................................................

12

STANDARD OF REVIEW ...................................................................................

17

ARGUMENT .........................................................................................................

17

I°

The District Court Did Not Abuse Its Discretion In Ruling That

Plaintiffs' Hostile Work Environment Class Claims Failed The

Commonality and Typicality Requirement Of Rule 23(a) ................ 17

A. Defendants' Employee Departments Are Separate And

Independent And Any Hostile Work Environment Claim

Would Vary Across Them ......................................................

17

B. The District Court Did Not Abuse Its Discretion In

Holding That Plaintiffs Failed To Demonstrate The Existence Of A Class Of African-American Employees

Suffering From A Hostile Work Environment Outside

The Beam Mill ........................................................................

19

C. The District Court Did Not Abuse Its Discretion In Refusing To Certify The Hostile Work Environment Claims Because They Are Too Individualized To Meet Rule 23's Typicality And Commonality Requirements ......... 23

II. The District Court Did Not Abuse Its Discretion In Denying Class Certification Of Plaintiffs' Promotions Claims ....................... 25

A*

The District Court Did Not Abuse Its Discretion In

Refusing To Certify A Promotions Class Simply Because

Promotions Decisions Were Partly Subjective ....................... 26

-ii-

TABLE OF CONTENTS (continued)

Page

1. The Law Of Subjective Decision Making .................... 28

2. The Promotions Decisions Here Were Not Entirely

Subjective ......................................................................

29

3. The Supreme Court Precedent Cited By Plaintiffs Is Inapplicable To This Case ........................................ 30

B°

The District Court Did Not "Segment" Plaintiffs'

Statistical Evidence To A Point Too Small To Detect A

Statistical Pattern .....................................................................

31

o Plaintiffs' Argument That The Sample Size Was Too Small To Show Statistical Significance Is Unsupported Supposition .............................................. 32

, Plaintiffs Misstate The District Court Order When

They Allege The District Court "Segmented" Their

Statistical Data ..............................................................

33

° Plaintiffs' Argument About The Reduction Of The Promotion Data Is Disingenuous .................................. 34

° Plaintiffs' Manipulated Data from 1999-2000 Did

Not Require The District Court To Certify the

Promotions Class ..........................................................

35

C°

The District Court Did Not Require Plaintiffs To

Demonstrate "Applicant-Based Statistics" ............................. 39

D°

Plaintiffs' Challenge To The Discovery Order ....................... 42

1. Plaintiffs Expressly Disavowed This Argument

Below ............................................................................

42

° Rule 23(f) Is Not Intended To Provide An Appeal From A Discovery Order .............................................. 42
o In Any Event The District Court's Ruling Was Not An Abuse of Discretion ................................................ 44

Eo

The District Court Did Not Abuse Its Discretion By

Affording More Weight To A Standard Deviation

Analysis Rather Than The 80% Rule ...................................... 45

-iii-

TABLE OF CONTENTS (continued)

Page

F. The District Court Did Not Abuse Its Discretion By Going Too Far Into The Merits Of Plaintiffs' Claims In Denying Class Certification .................................................... 46

III. The District Court Did Not Abuse Its Discretion When Finding

That Plaintiffs Do Not Satisfy The Adequacy Requirement Of

Rule 23(a) ..........................................................................................

50

A. Plaintiffs' Interests Are Not Inherently Consistent With Those Of Putative Class Members And To

Hold Otherwise Does Not "Doom" All Promotion

Class Actions ................................................................

51

B°

The Conflict Between Plaintiffs And Putative

Class Members Is Real ................................................. 53

C. The District Court Did Not Abuse Its Discretion By Relying Upon General Telephone .......................... 54

IV. Even If The Ruling Below Were To Be Reversed This Class Cannot Be Summarily Certified On Appeal Because Rule 23(b) Has Not Yet Been Considered By The District Court ...................... 56

CONCLUSION ......................................................................................................

56

REQUEST FOR ORAL ARGUMENT .................................................................

58

CERTIFICATE OF COMPLIANCE .....................................................................

59

CERTIFICATE OF SERVICE ..............................................................................

60

-iv-

TABLE OF AUTHORITIES FEDERAL CASES

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ...................... 50, 56

Ardrey v. United Parcel Serv., 798 F.2d 679 (4th Cir. 1986) ........... 29, 44-45

Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004) ................ 31

Bennett v. Nucor Corp., No. 3:04CV00291SWW,

2006 WL 2473015

(E.D. Ark. Aug. 25, 2006) ...................................................................

6, 35

Bennett v. Nucor Corp., No. 3:04CV00291SWW,

2005 WL 1773948

(E.D. Ark. July 6, 2005) ............................................................................

6

Bertulli v. Independent Ass 'n of Cont'l Pilots, 242 F.3d 290 (5th Cir.

2001) ........................................................................................................

43

Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536 (4th Cir. 2003) ... 37, 38

Caridad v. Metropolitan-North Commuter R.R., 191 F.3d 283 (2d Cir.

1999) ........................................................................................................

26

Carlson v. C.H. Robinson Worldwide, Inc., No. Civ.02-3780, JNE/JGL, 2005 WL 758602 (D. Minn. Mar. 31, 2005) .......................... 24

Cooper v. Fed. Reserve Bank, 467 U.S. 867 (1984) ............................... 30, 52

Cooper v. Southern Co., 390 F.3d 695 (1 lth Cir. 2004) ......................... 47-48

De Leon-Granados v. Eller & Sons Trees, Inc., 497 F.3d 1214 (1 lth

Cir. 2007) .................................................................................................

43

Deshields v. Balt. City Fire Dep 't, 884 F.2d 1387 (4th Cir. 1989) .............. 46

Doe v. Chao, 306 F.3d 170 (4th Cir. 2002) ..................................................

17

Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007) ............................. 26

V

E.E.O.C. v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059 (C.D. Ill. 1998) .....................................................

21-22

Garcia v. Johanns, 444 F.3d 625 (D.C. Cir 2006) .......................................

48

Gariety v. Grant Thornton, LLP, 368 F.3d 356 (4th Cir. 2004) .............. 49-50

Gen TeL Co. v. Falcon, 457 U.S. 147 (1982) ........................................

passim

Gen. Tel. Co. v. E.E.O.C., 446 U.S. 318 (1980) ................................ 51, 54-55

Goodwin v. ConAgra Poultry Co., No. 03-CV-1187, 2007 WL

1434905 (W.D. Ark. May 15, 2007) .......................................................

24

Gunnells v. Healthplan Servs., Inc., 348 F.3d 417 (4th Cir. 2003) .............. 37

HazelwoodSeh. Dist. v. U.S., 433 U.S. 299 (1977) .............................. 40, 46

In re Wallace and Gale Co., 385 F.3d 820 (4th Cir. 2004) .......................... 41

Int'lBhd. of Teamsters v. U.S., 431 U.S. 324 (1977) ................................... 30

Int'l Union, UAW v. LTVAerospace & Defense Co., 136 F.R.D. 113

(N.D. Tex. 1991) ......................................................................................

24

Jones, Waldo, Holbrook & McDonough v. Cade, 98 Fed. Appx. 740

(10th Cir. 2004) .......................................................................................

33

Lienhartv. DryvitSys., Inc., 255 F.3d 138 (4th Cir. 2001) .......................... 44

Lilly v. Harris-Teeter Supermarket, 720 F.2d 326 (4th Cir. 1983) ........ 28, 29

Lott v. Westinghouse Savannah River Co., 200 F.R.D. 539 (D. S.C.

2000) ........................................................................................................

29

Love v. Turlington, 733 F.2d 1562 (1 lth Cir 1984) .....................................

48

Marquis v. Tecumseh Prod. Co., 206 F.R.D. 132 (E.D. Mich. 2002) .......... 24

McKowan Lowe & Co. v. Jasmine, Ltd., 295 F.3d 380 (3d Cir. 2002) ........ 43

vi

McReynolds v. Sodexho Marriott Serv., Inc., 349 F. Supp. 2d 1 (D.

D.C. 2004) ...............................................................................................

40

Moultrie v. Martin, 690 F.2d 1078 (4th Cir. 1982) ................................. 45-46

Muhammadv. GiantFood, Inc., 108 Fed. Appx. 757 (4th Cir. 2004) ......... 30

Shidaker v. Tiseh, 833 F.2d 627 (7th Cir.1987) ...........................................

40

Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir. 1993) ............................ 28-29

Skipper v. Giant Foods, Inc., 68 Fed. Appx. 393 (4th Cir. 2003) ................ 37

Stastny v. S. Bell TeL & TeL Co., 628 F.2d 267 (4th Cir. 1980) .................................................................................

passim

Thompson v. Ingalls Shipbuilding, 1 2006 WL 2385324 (S.D. Miss.

Aug. 17, 2006) .........................................................................................

24

Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311

(4th Cir. 2006) .........................................................................................

49

U.S.v. County of Fairfax, 629 F.2d 932 (4th Cir. 1980) ........................ 39, 40

U.S.v. City of Miami, 115 F.3d 870 (1 lth Cir. 1997) .................................. 40 Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988) ....................... 31
DOCKETED CASES

Brown v. Nucor Corp., Case No. 2:04-cv-22005-CWH-GCK

(Aug. 7,

2007) ..........................................................................................................

5

King v. Nueor Corp., Case No. 5:04-cv-02533-CLS (Oct. 20, 2005) ............ 5

Rogers v. Nucor Corp., Case No. 4:05-cv-00933-WRW

(Oct. 4, 2007) ....... 5

Warren v. Nueor Corp., Case No. 3:04-cv-01641-N (May 25, 2006) ........... 5

vii

FEDERAL RULES AND STATUTES 28 U.S.C. § 1291 .......................................................................................... Fed. R. App. P. 28 ......................................................................................... Fed. R. Civ. P. 23 ...................................................................................

43 33 passim

viii

COUNTERSTATEMENT OF THE ISSUES

Io

Have Plaintiffs/Appellants satisfied their burden of demonstrating that

the district court abused its discretion with respect to its ruling that the

alleged hostile work environment and promotions class failed the

commonality/typicality requirements of Fed. R. Civ. P. 23(a)(2)?

II. Have Plaintiffs/Appellants demonstrated that the district court abused its discretion by holding that the putative class representatives are inadequate owing to their failure to satisfy the typicality requirement and, with respect to the promotions claims, because of conflicts of interest?

III. May Plaintiffs/Appellants prosecute an appeal of a district court's discovery order made approximately two years prior to its certification decision, where their lead counsel in open court stated that he would stand on the discovery permitted under the discovery order; and if that decision is presently appealable under Fed. R. Cir. P. 23(f) has an abuse of discretion been made out?

STATEMENT OF THE CASE The district court denied class certification on a finding that Plaintiffs below had not satisfied their burden under several provisions of Rule 23(a). The district court specifically limited its analysis to the class definition which Plaintiffs actually brought before it: "All African-Americans who are or were employed at the Nucor Berkeley Manufacturing Plant in Huger, South Carolina at any time since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance and shipping departments...". I The class definition was directed at three categories of claims and!or remedies: (1) claims of hostile work environment, (2) a pattern and practice/disparate impact claim of racial discrimination in promotions, (3) and prospective and retrospective remedies arising from the second claim. The district court found that Plaintiffs had failed to demonstrate that the hostile work environment claim could be tried on a representational/class basis because six of the seven named plaintiffs worked in one department while the seventh worked in another; the five departments were discrete and self-contained; the substantive law would require a consideration of the totality of the circumstances affecting each class member and not just consideration of a few plant-wide acts allegedly identified by Plaintiffs; and the experiences of the putative class representatives
1jA09099;09101.
2

were, therefore, not representative of the totality of circumstances experienced across the class. 2
The district court also found that the disparate impact/pattern and practices claims would not be certified because both the direct and statistical evidence of commonality was inadequate. With respect to the direct evidence, most of the affidavits tendered focused on the beam mill, while "reveal[ing] only isolated racist acts occurring in the other production departments, ''3 which were insufficient to support a claim across the class.
With regard to statistics, the district court examined all of the data proffered by Plaintiffs, much of which favored Defendants or was statistically insignificant. In analyzing the data the district court preferred the legally prescribed standard deviation analysis approach, over the so-called 80% (or four-fifths) rule and census data comparisons, and found that when the standard deviation analysis method was applied to the available promotion data, no statistically significant evidence of discrimination emerged. Only when the data was manipulated at both ends of the class period by ignoring data after 2003 and by creating data from surrogate sources not known to contain significant numbers of African-American applicants (in an attempt to recreate missing promotion data from 1999-2001) were Plaintiffs able to claim legal and statistical significance. In reviewing this statistical 2 JA 09191-92; 09100-102; 05792-98. 3 JA 09175; 05788-91.

evidence, the district court agreed that Plaintiffs could properly disregard the postsuit data. But even when this adjustment was made, Plaintiffs' data still made no claims of statistical significance without including the circular, speculative and question-begging 1999-2001 data. Having examined the totality of this evidence, the district court exercised its discretion not to certify the promotions claim. 4
Finally, because the claims of the putative class representatives failed the typicality requirement and because representatives had competed against putative class members for promotion, the district court found antagonistic interests giving rise to a conflict between class members and their putative representatives:
Because a decision not to certify a class, and not to attempt a trial on a representational basis, clearly falls within the range of logical responses to the evidence (and lack thereof) before the district court, Plaintiffs cannot satisfy the abuse of discretion standard and the order denying certification is due to be affirmed.
Before considering these matters in detail, a number of flawed assertions should be identified which tend to skew Plaintiffs' presentation:
Plaintiffs originally presented three issues in their Rule 23(f) Petition. Now, on appeal, they present five questions, some of which significantly expand the issues certified for appeal by this Court.
4 JA 09175-76; 09184-91; 09192-94; 05779-91. 5 JA 09196-97; 09177; 05825-31.
4

Rule 23 requires a party to seeking class certification to satisfy both subsection (a) and (b). The only issues on appeal in this case are the district court's findings under Rule 23(a). Therefore Plaintiffs' prayer that this Court remand with instructions to certify a class overleaps the Rule 23(b) issues. Infra, ¶ V.
Plaintiffs base key positions in their appeal on the claim that they were denied certain discovery. However, appeal of a discovery ruling is improper in the context of this Rule 23(f) interlocutory appeal, particularly where Plaintiffs' counsel in arguing for certification expressly stated that Plaintiffs would stand on the discovery conducted. Infra, III (D).
Plaintiffs' key position in opposition to the district court's finding of a lack of adequacy of representation under Rule 23 is unsupported by the record. Plaintiffs assert that no two putative class representatives bid against one another for jobs and that they did not bid against class members for jobs. The record demonstrates otherwise. Infra, ¶ IV (B).
These errors and infirmities in Plaintiffs' brief further weaken their claim to
have satisfied the standard of review by demonstrating an abuse of discretion.
Procedural History
This case began when Plaintiffs' attorneys attempted to bring a nation-wide
class action. The claims were subsequently severed and transferred in July 2004 to
the Northern District of Texas 6, the Northern District of Alabama 7, the Eastern
District of Arkansas 8, and the District of South Carolina. 9 Class certification was
denied in all of these companion cases.
6 Warren v. Nucor Corp., Case No. 3:04-cv-01641-N (dismissed May 25, 2006). 7King v. Nucor Corp., Case No. 5:04-cv-02533-CLS (dismissed Oct. 20, 2005). 8Rogers v. Nucor Corp., Case No. 4:05-cv-00933-WRW (dismissed Oct. 4, 2007). 9 Brown v. Nucor Corp., Case No. 2:04-cv-22005-CWH-GCK (motion to certify class denied Aug. 7, 2007).

In a case virtually identical to this one, the Eastern District of Arkansas struck the class allegations against one Nucor facility and denied a motion for class certification against another. 1° In the Arkansas case, involving the same allegations, the same attorneys, and some of the same expert witnesses as the current proceeding, class certification was denied based on many of the same deficiencies present here.
In this case the district court denied Plaintiffs' request for class certification on August 7, 2007.11 The district court found that Plaintiffs failed to demonstrate that the class claims raised questions of fact or law common to the entire class or that their claims were typical of those of the class. 12 In addition the court found that Plaintiffs have a "conflict of interest with class members competing for the
same jobs. ''13 Because Plaintiffs failed to establish the commonality, typicality and
adequacy, the district court did not determine whether the class met the requirements of Rule 23(b). 14
On August 21, 2007 Plaintiffs filed a motion for reconsideration of the order denying class certification. The district court denied this motion on January 11,
i0 See Bennett v. Nucor Corp., No. 3:04CV00291SWW, 2005 WL 1773948 (E.D. Ark. July 6, 2005); and Bennett v. Nucor Corp., No. 3:04CV00291SWW, 2006 WL 2473015 (E.D. Ark. Aug. 25, 2006). i1 JA 08977. 12JA 08994; 05804-25. 13JA 08995; 05825-31.
14 Id "

2008.15 Plaintiffs then timely sought permission for an interlocutory appeal pursuant to Rule 23(0, which was granted.
STATEMENT OF FACTS On May 7, 2007, Plaintiffs filed a motion for class certification seeking to represent "all African-Americans who are or were employed at the Nucor Berkeley manufacturing plant since December 2, 1999 in the beam mill, hot mill, cold mill, melting, maintenance and shipping departments..., or, "in the alternative, for such separate classes or subclasses of such persons as may be appropriate under the Federal Rules of Civil Procedure. ''16 The district court denied class certification, basing its ruling on several considerations. With respect to Plaintiffs' hostile work environment claim, the district court was unable to find commonality and typicality due to the separation, independence and decentralized management of the five departments at issue at the facility. 17 The Court found because there is little mingling of employees between departments, and because the putative class representatives overwhelmingly worked in one department (with a single employee working in another), a hostile work environment across all of the plant's
15JA 09099-104. 16JA 08980. 17JA 08989; 05804-25.

production departments could not be proved by these Plaintiffs on a representational basis. 18
With respect to the promotions claim, the district court found a want of commonality and typicality. 19 Because "[a] pattern or practice claim is typically proven by statistical evidence bolstered by anecdotal evidence of discrimination, ''a° it is important to note that much of Plaintiffs' statistical evidence consisted of census comparisons which logically have nothing to do with promotions and with comparisons based upon the so-called 80% rule, a rule not recognized in this Circuit. Turning to the legally approved standard deviation analysis method, Plaintiffs' analysis over the time period covered by the class definition revealed no statistically significant discrimination. 21 Only when Plaintiffs' experts reviewed 27 jobs filled during the 1999-2001 period, and assumed that the same percentage of African-Americans applied for those jobs as had applied between 2001 and 2003, were they able to claim statistical significance. That this treatment was grounded in mere speculation is emphasized by the fact that one of Plaintiffs' experts acknowledged that he knew of only one African-American who had competed for
18JA 08989-08991; 05792-98. 19JA 08987; 05804-25. 20JA 09184. zl JA 08985; 05780-82.

one of the 27 jobs. 22 In the course of its order, the district court reviewed all statistical evidence; noted that some if it favored Nucor and some of it was statistically insignificant; preferred standard deviation analysis to the 80% rule or census data; discounted the post-2004 data because of the possible confounding effects of the suit (which was initially filed on Aug. 25, 2004); and discounted the recreated 1999-2001 data because it was based on assumptions. 23
After noting that regression analysis for the pre-suit period does not reveal a pattern of discrimination, the district court went on to analyze the direct anecdotal evidence tendered by Plaintiffs. The district court held that this evidence did not support a pattern or practice claim of promotion discrimination either, z4 Specifically, it noted that only two of the sixteen declarations and affidavits of African-American employees contained allegations of a manager or supervisor treating African-American employees unfairly outside the beam millY The Court held that the sporadic, isolated allegations from other departments were insufficient to show a pattern and practice of discrimination across the plant. 26 A similar analysis was used to dispose of the disparate impact claim. 27

22JA 05853. 23JA 09189-190; 24 Id. 25JA 08987.
26 Id.
27JA 09190-191;

05780-91. 05780-91.

Finally, the court found, for the promotions claims, that the Plaintiffs were not adequate representatives of the class.28 The court noted that because the claims of the class representatives were not typical and because they had bid on the jobs at issue, a conflict of interest exists.29
On August 21, 2007, Plaintiffs filed a motion to alter and amend the order denying class certification. After reevaluation of facts presented by Plaintiffs, the district court found that it had correctly denied the motion for class certification and so denied the motion to alter or amend. 3° In addressing the issues raised on the hostile environment claim, the district court reaffirmed its finding that because the plant is separated into different environments, and because hostile work environment claims require a consideration of the totality of circumstances affecting each claimant, the experiences of the putative representatives had not been shown to be the same as those experienced by class members over the entire expanse of the putative class. 31 Plaintiffs again chose not to limit their class definition to the specific department (the beam mill) where six of the seven worked and where their evidence was centered. 32
z8 JA 08993; 05825-31. 29JA 08992. 30JA 09099. 31JA 09101; 05814-17. 32JA 09101.
10

The Court found again, based on statistics and direct evidence, that the promotion claims of all African-American employees at the plant are not common and that the named Plaintiffs' individual claims have not been shown to be typical of those of the class members. 33
Plaintiffs asserted in their motion to alter and amend that discovery limitations had prevented a showing of disparate impact. However, the Court found that Plaintiffs had failed to adduce any support for this assertion. 34
Because Plaintiffs also had alleged that the district court had improperly reached merits issues, the district court properly noted that it had been forced to address the overlapping merits and class statistical evidence in order to determine whether the statistics proved a plant-wide disparity in African-American promotion rates sufficient to permit a class trial. 35 Once again the district court concluded that the combination of direct and statistical evidence, when considered as a whole, failed to persuade the court that there was adequate class-wide evidence of discrimination. 36
The district court also reaffirmed its finding of a conflict of interest because the requested injunction awarding a promotion to a putative class representative would eliminate the same remedy to any class member who had bid for the same 33JA 09102; 05804-25. 34JA 09103. 35Id. 36 JA 09102-03; 05779-91.
11

promotion. 37 Because the class representatives were not merely seeking an injunction requiring Defendants to create objective hiring practices, but also sought retrospective individualized injunctive relief, a conflict of interest existed for those claims. 38
SUMMARY OF THE ARGUMENT Hostile Work Environment: The district court conducted a rigorous analysis under Rule 23 to determine whether Plaintiffs had carried their burden to demonstrate that a hostile work environment claim could be tried on a common, representational basis. The district court was well within its discretion when it found that Plaintiffs had not shown evidence of a common practice of discrimination across departments and were instead relying on alleged incidents that were diverse in time, scope, and severity and that were not shown to exist globally throughout the plant. As this Court noted in Stastny v. S. Bell Tel. & Tel. Co., (hereafter "Stastny") when addressing issues of commonality and typicality, it is important to look at the "nature of the employer's management organization as it relates to the degree of centralization and uniformity of relevant employment and personnel policies and practices. ''39 The Stastny Court went on to decertify a class based in
37JA 09103-04; 05825-31. 38Id " 39628 F.2d 267, 277 (4th Cir. 1980).
12

large part on the fact that the class members were subject to autonomous managers rather than a strong centralized administration. 4° The same scenario exists in the current case. Thus, it was not an abuse of discretion to refuse certification of a hostile work environment class under the law of this Circuit.
The district court also properly used its informed discretion when it determined that Plaintiffs' allegations of a hostile work environment were largely confined to just one department at the facility and were not plant-wide. Because six of the seven named Plaintiffs, and the vast majority of the allegations of intentional discrimination in the record, involved employees in just one department, the district court could properly find that Plaintiffs had failed to prove the existence of a plant-wide, common question of hostile work environment for which their own experiences were typical. This holding is in harmony with a decision of the U.S. Supreme Court holding that, in order to meet the commonality requirement of Rule 23, plaintiffs must show the "existence of a class of persons who have suffered the same injury as [the class representatives], such that the... claims will share common questions of law or fact. ''41 Plaintiffs here failed to demonstrate the existence of such a class.
40 Id. at 279-80. 41Gen. Tel. Co. v. Falcon, 457 U.S. 147, 157 (1982) (hereafter "Falcon").
13

The district court also properly employed its informed discretion to determine that Plaintiffs' claims are too individualized for class treatment. As noted in Stastny, the problems and complexities with proving commonality are multiplied when a case is based on an alleged pattern of intentional discrimination. 42 Those same difficulties informed the findings of the district court below.
Promotions: The district court properly employed its informed discretion to determine that Plaintiffs did not present a common issue involving promotions across all of the production departments at the facility for which Plaintiffs' own experiences were typical. In making this determination, the district court correctly observed that neither source of proof for a claim of this sort - direct evidence across the class or statistics - supported certification.
With respect to direct evidence, the experiences of the named Plaintiffs, who were overwhelmingly cabined in one department, provided no basis on which a representational trial could be conducted. Because the direct evidence outside of the beam mill department revealed "only isolated racist acts, ''43 there was no classwide direct evidence supporting a pattern and practices/disparate impact claim. 44
42628 F.2d 267, 274, n. 10 (4th Cir. 1980). 43JA 09102. 44See also JA 09102, n.2 (As for a subclass consisting only of the employees in the beam mill department, the district court noted that "[c]ertification of employees who have worked in the beam mill is not before the Court" and "limiting
14

Nor was there adequate statistical evidence. The class definition spanned 1999 through the year 2006. For this period, standard deviation analysis provides no evidence of discrimination. Plaintiffs' own experts admitted that a statistically significant demonstration of discrimination cannot be made out through a standard deviation analysis of the existing promotion records. Even when the district court accepted Plaintiffs' argument to discard the post-suit data, Plaintiffs could only make standard deviation analysis work through circular, speculative and questionbegging treatment of the 1999-2000 data.
The district court was not persuaded by Plaintiffs' treatment of this 19992000 data. It is the essence of abuse of discretion review that the district court acts within its discretion when it rules against the party having the burden of proof, both when there is no evidence in support of an essential proposition and where the evidence is so thin as to fail to persuade the court.
On the promotions claim, all of the clearly admissible statistical evidence favored Defendants. Plaintiffs' 80% rule evidence is inadmissible in this Circuit. Plaintiffs' census data analysis was logically irrelevant because of the disconnect between the general population around the facility and promotions from within the

certification [to the beam mill] would not likely satisfy the numerosity

requirement."). reconsideration.

Plaintiffs did not address this issue on their motion for

15

facility. Finally, Plaintiffs' manipulated 1999-2000 data was either clearly inadmissible or of questionable admissibility.
On a record lacking class-wide direct evidence of discrimination, where the only clearly admissible statistical evidence failed to demonstrate discrimination, for the abuse of discretion standard to mean anything, it must at least mean that the district court was free to find itself unpersuaded that this case could or should be tried on a representational, class basis.
Nothing that Plaintiffs say about subjective decision making changes this conclusion. The decision making on promotions was not completely subjective and there is still a failure of proof that the decision making resulted in discrimination across the class. In the end it should be said that there is no rule of law which compelled the district court to certify the claims of the absent class members where the likely result was their extinguishment on summary judgment upon a likely failure of class-wide proof. Adequacy of Representation
Because the claims of the putative class representatives have not been shown to be typical across the class and because actual conflicts exist between the named Plaintiffs and the class, the district court did not abuse its discretion in finding inadequate representation.
16

STANDARD OF REVIEW Class certification rulings are reviewed under an abuse of discretion standard. Doe v. Chao, 306 F.3d 170, 183 (4th Cir. 2002). In an employment discrimination class action case, a trial court may only certify a class if it "is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 have been satisfied." Falcon, 457 U.S. at 161.
ARGUMENT I. The District Court Did Not Abuse Its Discretion In Ruling That
Plaintiffs' Hostile Work Environment Class Claims Failed The Commonality and Typicality Requirement Of Rule 23(a). The district court's denial of class certification of a hostile work environment claim should be affirmed on two clear grounds. First, the district court had discretion to find the proposed across-department class uncommon and Plaintiffs' claims atypical due to the departmental differences at the plant. Second, the district court had discretion to find the class uncommon and Plaintiffs' claims atypical because their proof ran primarily to the beam mill, with evidence adduced for other departments being insufficient to support class-wide treatment. A. Defendants' Employee Departments Are Separate And
Independent And Any Hostile Work Environment Claim Would Vary Across Them. As this Court noted in Stastny, when addressing issues of commonality, it is important to look at the "nature of the employer's management organization as it relates to the degree of centralization and uniformity of relevant employment and
17

personnel policies and practices. ''45 The Stastny Court went on to decertify the class action based in large part on the presence of autonomous managers over the putative class members instead of a strong centralized administration. 46
Here, the district court received clear evidence from the management of the facility regarding the decentralized nature of Nucor's practices. 47 Based on this evidence, the district court found that 1) each employee department has a separate management structure; 2) employees in different departments report to different managers; 3) employees in one department do not have regular contact with managers in other departments; and 4) employees' work is confined to one department and they do not mingle with each other. 48 In accordance with these findings, the district court determined that "[a] class member's claim of a hostile work environment in the hot mill will vary significantly from a class member's claim of a hostile work environment in the beam mill. ''49 The district court was within its discretion in finding that the differences among the departments militated against attempting a class trial on the hostile work environment claim because

45628 F.2d at 277. 46 !rd. at 279-280.
47 JA 07903; 07894; 07898; 07882; 07889; 08196-97; 48JA 08989; 09100. 49JA 08989.

05814-17.

18

Plaintiffs' proof did not display sufficient commonality and typicality across the breadth of the class. 5°
B. The District Court Did Not Abuse Its Discretion In Holding That Plaintiffs Failed To Demonstrate The Existence Of A Class Of African-American Employees Suffering From A Hostile Work Environment Outside The Beam Mill.
In Falcon, the U.S. Supreme Court held that in order to meet the
commonality requirement of Rule 23, plaintiffs must show the "existence of a class
of persons who have suffered the same injury as [the class representatives], such
that the . . . claims will share common questions of law or fact. ''51 Here, the
evidence for Plaintiffs' hostile work environment included sixteen declarations of
African-American employees: 2 In analyzing that evidence, the district court
determined that the vast majority of specific allegations of discrimination were
concentrated in only one of the five production departments at the facility -- the beam mill. 53 Specifically, the district court was concerned that:
Of the sixteen declarations, only [two declarants] make specific allegations of a manager or supervisor treating African-American employees unfairly in a department besides the beam mill... [Thus,] the plaintiffs do not present evidence of a pattern of discrimination in the four production departments. 54

50JA 08989; 05792-98; 51457 U.S. at 157. 5z JA 08986.

05804-25.

53 JA 08987; 09102, n. 2 (noting that "[c]certification of employees who have

worked in the beam mill is not before this Court" and "limiting certification [to the

beam mill] would not likely satisfy the numerosity requirement"); 54JA 08987.

05816.

19

Ultimately, the district court ruled that "the hostile work environment claim does not raise an issue of fact or law common to the entire class. ''55 Thus, Plaintiffs' contention that the district court denied class certification because some employees experienced "additional racial hostility" is simply incorrect: 6
In support of that characterization of the case, Plaintiffs focus a large portion of their brief on one statement from the district court's opinion: "The plaintiffs have presented plant-wide racist acts potentially experienced by every AfricanAmerican employee working at the plant when the acts occurred. These acts include: (1) racist emails, (2) display of the confederate flag, and (3) racist remarks over the plant radio. ''57 However, this lone statement does not reflect any finding that a plant-wide pattern and practice of hostile work environment existed at the facility.
To the contrary, the district court recognized that to demonstrate a pattern and practice of hostile work environment, Plaintiffs would have had to show "that an objectively reasonable person would have to spend the work day running a gauntlet of [racial] abuse in return for the privilege of being allowed to work and

55JA 08989; 05804-25.
56Plaintiffs' Opening Brief(hereafter 57JA 08988-08989.

"POB"), p. 26.

20

make a living [to justify a] finding that . . . harassment is occurring in the workplace. ''58
Not only was Plaintiffs' evidence largely confined to the beam mill, but there was testimony from the Plaintiffs' own witnesses which did not support a finding of a hostile work environment. Declarant Robyn Spann, for example, testified that she has never heard a Nucor employee utter a racial slur: 9 Nor has she ever received or seen a racial e-mail; 6° although she did see the word "Sambo" spray-painted on a wall 61and heard a racially derogatory remark over the radio. 62
A second Declarant, John Singletary, also testified that he never heard a rac,ial slur at the facility, 63and never heard racially derogatory noises over the radio while at Nucor: 4 In fact, Mr. Singletary could not recall any type of racially offensive treatment directed at him while he worked at the plant. 65
The same is true for Declarant Jerry Nick, who has never seen or received a racially derogatory e-mail. 66 Nor has Mr. Nick ever heard a racial slur. 67 Mr.

s8 E.E.O.C. v. Mitsubishi
Ill. 1998). 59JA 07057. 6oJA 07059-60. 61JA 07057. 6z JA 07060. 63JA 07073. 64JA 07074. 65Id. 66JA 07087-88. 67 JA 07092.

Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1074 (C.D.

21

Nick claims to have only seen the confederate flag a "couple of times" on cars in the parking lot. 68 He also claims that he may have heard a racist joke, but cannot remember what the joke was. 69 Like Ms. Spann and Mr. Singletary, the experiences of Mr. Nick do not meet Plaintiffs' burden of showing that Plaintiffs had to spend the workday "running a gauntlet of [racial] abuse in return for the privilege of being allowed to work and make a living. ''7°
Most importantly for the district court, a finding of a hostile work environment for each member of the class would necessitate consideration of the totality of circumstances affecting each worker and not simply possible exposure to one or more of the few examples of plant-wide conduct sponsored by Plaintiffs. Because the inculpatory evidence was centered in the beam mill, with the evidence respecting the other self-contained departments being insufficient to rise to the level of a hostile work environment, the district court was acting within its discretion when it found itself unable to conclude that the hostile work environment claim could be tried on a representational basis across the breadth of the class.

68 JA 07091. 69JA 07092-93. 7oSee Mitsubishi,

990 F. Supp. at 1074.

22

Co

The District Court Did Not Abuse Its Discretion In Refusing To

Certify The Hostile Work Environment Claims Because They Are

Too Individualized To Meet Rule 23's Typicality And

Commonality Requirements.

In Stastny, this Circuit noted special difficulties with proving commonality

in a class action based on intentional discrimination. 71 Specifically, Stastny stated:

As is now well recognized, the class action commonality criteria are, in general, more easily met when a disparate impact rather than a disparate treatment theory underlies a class claim. The disparate impact "pattern or practice" is typically based upon an objective standard, applied evenly and automatically to affected employees: an intelligence or aptitude test, an educational requirement, a physical requirement. Both the existence and the "common reach" of such objectively applied patterns or practices are likely to be indisputable from the outset, so that no real commonality problems for class action maintenance ever arise in this regard. On the other hand, the disparate treatment pattern or practice must be one based upon a specific intent to discriminate against an entire group, to treat it as a group less favorably simply because of its [race]. The greater intrinsic difficulty in establishing the existence and common reach of such a subjectively based practice is obvious. 72

Here, the litany of claims cited in Plaintiffs' brief only serves to illustrate the

highly individualized nature of these hostile work environment issues and to

underscore the difficulty of certifying this class under Stastny. Specifically, some

employee witnesses allegedly heard racial slurs, some employees allegedly saw

confederate flags, and other employees allegedly witnessed inappropriate graffiti. 73

However, few of these alleged incidents shared a common perpetrator, a common

71 628 F.2d at 274, n.10. 72Id. (citations omitted) (emphasis 73POB, pp. 14-20.

added).

23

temporal scope, a common severity, or a common frequency. 74 Accordingly, the district court was within its discretion to find that there was no efficient means of trying a multitude of individualized incidents in one class trial.
Other courts have similarly found that the individualized nature of hostile work environment classes, such as the proposed class here, fail the commonality requirement of Rule 23.75 Thus, on the basis of the record before it, there was no

74 ./d.

75See Goodwin v. ConAgra Poultry Co., No. 03-CV-1187, 2007 WL 1434905, "13

(W.D. Ark. May 15, 2007); ("[W]hether an individual was subjected to a hostile

work environment is dependent on the area and department that individual worked

and the comments and actions taken by his or her individual supervisor . . .");

Thompson v. lngalls Shipbuilding, No. I:01CV111-LG-RHW, 2006 WL 2385324,

*2 (S.D. Miss. Aug. 17, 2006) ("the plaintiffs' experiences of... a hostile work

environment.., vary greatly from individual to individual. The very determination

of whether an individual was subjected to a hostile work environment contains a

subjective, as well as an objective, element"); Carlson v. C.H. Robinson

Worldwide, Inc., No. Civ.02-3780JNE/JGL, 2005 WL 758602, "13-14 (D. Minn.

Mar. 31, 2005) ("Plaintiffs fail to demonstrate that the question of whether

Plaintiffs in different branches are subjected to severe and pervasive harassment

based on sex is subject to common proof. The decentralized and independent nature of the branches and business lines defeats a finding of commonality in this

case."); Marquis v. Tecumseh Prods. Co., 206 F.R.D. 132, 174 (E.D. Mich. 2002)

("[M]any of these [alleged hostile work environment] incidents occurred in

different departments... Hence, there is no basis for treating these allegations as

part of an overall atmosphere of harassment, and the incidents themselves are not so severe, standing alone, as to permit the conclusion that they fostered a hostile

work environment."); Int'l Union, UAW v. LTV Aerospace & Defense Co., 136

F.R.D. 113, 130 (N.D. Tex. 1991) ("In short, there is evidence indicating that

incidents of sexual harassment occur at [Defendant's site]. Nonetheless...

[t]he

complaints are too individualized, [Defendant's] defenses to these varied claims

are likely to be very fact-specific, and including these claims in the larger class action would cause the case to devolve into a series of individual trials.").

24

abuse of discretion to find the hostile work environment class failed to meet the
commonality and typicality requirements of Rule 23. II. The District Court Did Not Abuse Its Discretion In Denying Class
Certification Of Plaintiffs' Promotions Claims. Plaintiffs' class definition of "all African-Americans who are or were
employed at [the facility].., since December 1999 in the beam mill, hot mill, cold mill, melting, maintenance and shipping departments..." also applied to Plaintiffs' promotion claims. 76 Plaintiffs pursued both pattern and practice and disparate impact theories to support their contention that the class of African-American employees suffered promotions discrimination in a common manner. 77
However, the district court denied class certification finding that Plaintiffs' statistical and direct evidence was insufficient to show common, class-wide promotions discrimination under Rule 23. 78 Plaintiffs dispute the district court's ruling on 6 points, contending that the district court abused its discretion by: 1) finding that subjective promotions procedures fail to satisfy the standards for class certification; 79 2) "segmenting" the promotions into numbers too small to detect a statistical pattern,; 8° 3) requiring applicant-based statistics; 814) refusing to
76JA 00937. 77JA 00970; 08981. 78JA 08987; 05779-91. 79POB, pp. 35-41. 80POB, pp. 41-44. 81POB, pp. 43-46.
25

grant discovery requests; 82 4) precluding use of the 80% standard; 83 and 6) going too far into the merits to reach its class certification decision. 84 Each of these
contentions is without merit.
A. The District Court Did Not Abuse Its Discretion In Refusing To Certify A Promotions Class Simply Because Promotions Decisions Were Partly Subjective.
Plaintiffs argue that because the district court found a degree of subjectivity in Defendants' promotions decisions, a promotions class should have been certified to eliminate the practiceY But this is a straw man. Plaintiffs are the masters of their own class definition and they did not ask for certification of a class seeking
only that relief; nor would they have been automatically entitled to relief if they had. s6 If Plaintiffs' argument were legally accurate, every company making
partially subjective decisions would face employment discrimination class actions
82POB, pp. 46-50. 83POB, pp. 50-51. 84POB, pp. 51-53. 85POB, pp. 35-41. 86 JA 08982 (citing Dukes v. Wal-Mart, !nc., 509 F.3d 1168, 1183 (9th Cir. 2007) ("[D]iscretionary decision-making by itself is insufficient to meet Plaintiffs' burden [under Rule 23]."); see also Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999) ("Of course, class certification would not be warranted absent some showing that the challenged practice is causally related to a pattern of disparate treatment or has a disparate impact on African-American employees at Metro-North.").
26

as a matter of course. 87
Rather, as the district court explicitly noted, because Plaintiffs seek
particularized retrospective relief, they must demonstrate commonality and
typicality across the class. This is so because:
Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims. 88
Here, both Plaintiffs' prospective prayer and their individualized retrospective
claims interact to Plaintiffs' detriment. Plaintiffs' complaint about subjectivity
merely serves to emphasize the multiplicity of disparate decision makers 89 which
supports the district court's conclusion that Plaintiffs did not prove their proposed

87 Plaintiffs' own expert on employee-selection systems, Dr. Michael Buckley

testified that he has never even encountered an entirely-objective system to select

employees. Buckley Depo., p. 115, In. 7-10. 88Falcon, 457 U.S. at 157.

s9 The court held that "Nucor's plant-wide promotion procedure...

[reIying] on

subjective criteria is evidence probative of [discrimination]." JA 09101. However,

the court also noted: "existence of subjective decision making diminishes the

likelihood that claims among different departments with different decision makers

are common..." Id. (quoting Stastny, 628 F.2d at 277). Plaintiffs are not correct

in their argument that the court made a finding that there was a class-wide policy

of subjective decision making that met with the commonality requirements of Rule

23. Rather, the district court rejected certification of a promotions class specifically

due to lack of evidence of African-American employees suffering from promotions discrimination in a common manner across the class. JA 05779-91.

27

class was populated with employees who actually suffered discrimination from any alleged common policy of subjective decision making. 9°
1. The Law Of Subjective Decision Making Plaintiffs contend that the district court's statement that "primarily white managers and supervisors.., relied on subjective criteria to select candidates for promotions ''91 should have led to certification of the promotions class. However this is a skewed reading of the district court's order and of the law. That a company relies on some subjective criteria in decision making does not necessarily mean that commonality or typicality is satisfied. 92 In support of their contention that some subjectivity is sufficient to meet the commonality and typicality burdens, Plaintiffs' quote the Fifth Circuit as follows: "courts from around the country have found.., subjective personnel processes that operate to discriminate [sufficient to] satisfy the commonality and typicality requirements of Rule 23(a). ''93 Yet, this quote appears nowhere in the Shipes decision. Rather, that Court held:
9o JA 08987 (holding, "[t]he plaintiffs statistical evidence does not present a disparity in African-American promotions rates. In addition, the plaintiffs fail to present direct evidence of plant-wide discrimination.") 91POB, p. 35 92Falcon, 457 U.S. at 159, n. 15; see also Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 333-34 (4th Cir. 1983). 93POB, p. 35 (quoting Shipes v. Trinity lndus., 987 F.2d 311, 316 (5th Cir. 1993))(hereafter "Shipes").
28

[S]imilar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, satisfy the commonality and typicality requirements of Rule 23(a). 94
Here, Plaintiffs seek to represent a class of promotions claims across five
separate and independent 95departments without limitation. 96 This is an across-the-
board class under the Falcon standard. 97 And such a class may only be certified if
the promotions decisions were "entirely subjective" or "unfettered," assuming, of
course, that it can also be shown that the process actually results in
discrimination. 98
2. The Promotions Decisions Here Were Not Entirely Subjective.
Although the district court never addressed the issue explicitly, the decision
making here was not entirely subjective. One of Plaintiffs' experts agreed on this
point. 99 The district court also noted objective factors in Nucor's promotions
selection system such as training requirements and a test in the melt shop) °°
Moreover, Defendants presented evidence that many criteria for promotions are
94Shipes, 987 F.2d at 316 (emphasis added). 95JA 00937. 96JA 08980. 97See generally Ardrey v. United Parcel Serv., 798 F.2d 679, 685 (4th Cir. 1986); Lott v. Westinghouse Savannah River Co., 200 F.R.D. 539, 551 (D. S.C. 2000). 98 Falcon, 457 U.S. at 159, n.15; see also Lilly, 720 F.2d at 333-34 (equating "entirely" subjective decision making to "unfettered discretion"). 99JA 05805 (Plaintiffs' expert acknowledged that Nucor managers and supervisors did use objective criteria in making selection decisions and that companies who use no subjective criteria in decision making are "difficult to find.") 100JA 08978.
29

objective, such as specific experience, excellent safety records, the ability to
operate a fork-lift, math skills, and good attendance records. 1°I
3. The Supreme Court Precedent Cited By Plaintiffs Is Inapplicable To This Case.
Plaintiffs cite the Cooper and Teamsters decisions from the U.S. Supreme
Court for the argument that the district court abused its discretion in not certifying
a class based on partially subjective decision making. 102 Plaintiffs argue that under
the procedural framework of a pattern and practice claim, their proposed
promotions class would meet the commonality and typicality requirements of Rule
23.1°3 But this argument is inapplicable here because the court found that there
was no pattern orpractice to begin with. 1°4 Plaintiffs' failure to demonstrate that a
pattern and practice existed makes their argument that they should benefit from the
pattern and practice procedural mechanism inconsequential. 105
101 JA 07205; 07216; 07236; 07262; 07266; 07279; 07306; 07318; 07334; 07340; 07350; 07362; 07376; 07394; 07606; 07608; 07606; 07602; 07598; 07563; 07534; 07524; 07512; 07498; and 07484. 10zPOB, p. 39 (citing Cooper v. Fed. Reserve Bank, 467 U.S. 867 (1984) (hereafter "Cooper"); lnt 7 Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977) lhereafter "Teamsters").) 03ld. 104JA 08987; 05779-91. lo5See, e.g., Muhammad v. Giant Food, Inc., 108 Fed. Appx. 757, 763-64 (4th Cir. 2004) (unpublished opinion) (Sufficient evidence of a pattern and practice claim must be established before the pattern and practice procedural mechanism can be employed.)
30

Plaintiffs also cite the Supreme Court's decision in Watson for the

proposition that proof of partially subjective decision making is sufficient to certify

a disparate impact claim. 1°6 Again, their reliance on Watson is misplaced. Watson

only deals only with the summary judgment standard -- it has nothing to do with

Rule 23. This is illustrated by the Sixth Circuit decision in Bacon v. Honda of Am.

Mfg., Inc. wherein the Court stated:

An entirely subjective decision-making process may, theoretically, allow different kinds of employees to be in the same class-a question of class membership (Falcon). For the entirely separate purpose of establishing a primafacie case of disparate impact, mixed objective and subjective standards may be considered to be purely subjective (Watson).

The constructive subjectivity in Watson cannot substitute for the

actual and complete subjectivity required..,

in Falcon because the

cases deal with two unrelated legal issues: class membership and the

elements of a prima facie case. We hold that the Falcon requirement

is not met because the plaintiffs have not shown that the wide range of

class members are all subject to the same, exclusively-subjective,

decision-making process. 107

Bo

The District Court Did Not "Segment" Plaintiffs' Statistical

Evidence To A Point Too Small To Detect A Statistical Pattern.

Plaintiffs' contention that the district court should not have "segmented"

their statistical evidence is without merit for four reasons. First, this argument is

based on an unsupported assertion that, due to a small sample size, it was

I06 POB, pp. 40-41 (citing Watson v. Fort Worth Bank and Trust, 487 U.S. 977 l1988) (hereafter "Watson")). o7 370 F.3d 565, 571-72 (6th Cir. 2004) (emphasis added).
31

statistically impossible to show disparate impact even if one existed. Second, the
argument misconstrues the district court's decision. The district court never
"segmented" Plaintiffs' statistical data. Rather, it thoroughly analyzed the full range of each of Plaintiffs' statistical analyses under Rule 23.1°8 Third, the
argument is disingenuous because Plaintiffs themselves chose to significantly
segment the promotion data by ignoring all post-lawsuit promotions. Fourth,
Plaintiffs' argument fails to acknowledge the true and inadequate character of their statistical evidence.
1. Plaintiffs' Argument That The Sample Size Was Too Small To Show Statistical Significance Is Unsupported Supposition.
Plaintiffs' brief states that the promotions data (or sample size) was "too small to allow a true test of statistical significance. ''1°9 Yet this assertion is
completely unsupported. 11° In rejecting this argument, the district court remarked:
The plaintiffs have not [heretofore even] attempted to show that the limitation [of sample size] prevented them from compiling reliable statistics. Proof that the plaintiffs were unable to compile reliable statistics while adhering to the [sample size] is again absent from the plaintiffs' motion to alter or amend. 111
Here, on appeal, Plaintiffs again assert without record support that their failure to show class-wide discrimination was somehow the district court's fault as

10sJA 08982-86; 109POB, p. 44.
110 Id.
111JA 09103.

05779-91.

32

a result of sample-size. 112 Federal Rule of Appellate Procedure 28(a)(9)(A) states:

[Plaintiffs'] argument.., must contain... Plaintiffs' contentions and the reasons

for them, with citations to authorities and parts of the record on which appellant

relies." In discussing unsupported assertions on appeal, the Tenth Circuit has

held, "[appellant's] contention.., is a bald assertion unsupported by any citation

to authority or any explanation... We conclude that [appellant] has waived these

arguments because arguments inadequately briefed in the opening brief are

waived. ''113 The district court could not abuse its discretion by refusing to certify a

class action based on unsupported assertion.

Defendants concede that, statistically speaking, a decrease in the amount of

data available for statistical analysis decreases a plaintiff's odds at showing

statistical significance. 114 However, it is a significant leap from this general rule

to argue that, the sample size here was decreased to the point to make it

statistically impossible to detect disparate impact even if it existed. Without any

evidentiary support, this argument should be given no weight.

2. Plaintiffs Misstate The District Court Order When They

Allege The District Court "Segmented" Data.

Their Statistical

Plaintiffs' assertion on this point is not faithful to the district court's order.

112POB, p. 44. m Jones, Waldo, Holbrook, & McDonough Cir. 2004) (unpublished opinion). 114POB, pp. 41-43.

v. Cade, 98 Fed. Appx. 740, 747 (10th

33

The district court did not "segment" Plaintiffs' statistical evidence. In the exercise of its discretion, the district court analyzed every statistical analysis Plaintiffs presented in an attempt to show common, class-wide promotions discriminationJ _5 Based upon all of the statistical analysis before it, the district court found the most probative evidence consisted of statistical evidence based upon standard deviation analysis of actual promotions records to determine whether a class of AfricanAmerican employees suffered from promotions discrimination. 116 This evidence demonstrated no such discrimination.
Additionally, the statistical calculation of actual promotions records came from Plaintiffs' expert's own statistical work. 117 In analyzing promotions records from January 2001 through December 2004, Plaintiffs' own expert determined that there was no statistically significant promotions discriminationJ 18
3. Plaintiffs' Argument About The Reduction Of The Promotion Data Is Disingenuous.
Plaintiffs are not really entitled to complain about the absolute size of the sample. Here, a significant reduction of promotions data occurred when Plaintiffs' statistical experts disregarded many of the actual records of promotions data during the relevant period (2001-2006) because the entire array of data showed there was
115JA 08982-08986. 116JA 08985. 117JA 05891, n. 9. 118JA 08985.
34

no statistical discrimination. 119 Because the straightforward analysis of the
statistical data in this case shows no class discrimination exists, 12° Plaintiffs'
experts excluded all available promotions data from August 25, 2004, the date suit
was filed, until the present, 121 a manipulation accepted by the district court.
Disregarding this actual promotion data significantly reduced the available sample
size but was Plaintiffs' conscious choice and not the result of any court
segmentation. But even this manipulation did not generate statistical significance.
So what Plaintiffs are really complaining about is the refusal of the judge below to
certify a class based upon the assumptions underlying their treatment of the 1999-
2000 data.
o Plaintiffs' Manipulated Data from 1999-2000 Did Not Require The District Court To Certify the Promotions Class.
In the end, Plaintiffs' statistical evidence of disparate impact came down to
their pre-2001 promotions data. lzz This is so because their other data did not
119JA 05887-88. 120Plaintiffs' statistical analysis in this case is unique. In the Arkansas case, Plaintiffs simply calculated with available job posting data through the relevant class period to formulate their analysis. Although their calculations in Arkansas contained computational error and failed to control for qualifications, they otherwise followed the standard analysis of prior cases. See Bennett v. Nucor Corp., No. 3:04CV00291SWW, 2006 WL 2473015 (E.D. Ark. Aug. 25, 2006). Here, the analysis widely varied from their analysis in Arkansas -- despite the fact that the Arkansas case dealt with the same claims of discrimination. 121JA 05888. 122JA 05886-87.
35

employ a legally acceptable method (the 80% rule and census data); was favorable to Nucor; or was statistically insignificant. Only when the 1999-2000 data was factored into Plaintiffs' standard deviation analysis of the 2001-03 data, were they able to sponsor an analysis for which they claimed statistical significance.
To create this data, Plaintiffs pulled twenty-seven "change of status" forms from the employee personnel files provided through discovery. 123 "Change of status" forms are simply a company record which documents any employee's change of status, whether the employee was promoted, demoted, received a standard pay increase, or was transferred. However, these forms do not indicate whether any African-American actually bid for the job in question. As one of Plaintiffs' experts testified:
Question: Okay. How many of these job selections [of the pre-2001 promotion-selection data] involved--these 27 job selections involved an African-American actually bidding on a job? Answer: At least one. Question: Other than the one, how many involved? Answer: I don't know. 124 Without knowing whether the job at issue was open for bidding, or whether African-Americans bid on the job if it was, the data obtained from the twenty-
123JA 05851-52. 124JA 05853.
36

seven job changes is irrelevant to a claim of discrimination in promotions.125 Thus,
the manipulated pre-2001 job selection data cannot answer the essential question of this case -- whether African-American employees were denied promotion due to discrimination. 126
Despite their admitted lack of knowledge of whether any African-Americans even bid on any of these pre-2001 jobs, Plaintiffs' experts assumed that the twentyseven job changes represent twenty-six instances in which an African-American was denied a promotion. 127 Plaintiffs' expert admitted that this assumption skews the numbers towards a finding of disparate impact. 128
Class certification orders are reviewed for abuse of discretion. 129 This abuse of discretion standard has been characterized as "deferential. ''13° Where the record
permits the trial judge to conclude that the elements of Rule 23 have been satisfied, the court has discretion to proceed with conditional certification as in Gunnells.
And where the record supports the conclusion that elements of Rule 23 have not
lz5 Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 544-45 (4th Cir. 2003) (in order to establish a primafaeie case of discrimination in promotions, plaintiffs are required to show they applied for the position in question).
126 ld,
lz7 JA 05912, n. 4.
128/6/.
129Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir. 2003) (hereafter "Gunnells"). 130Skipper v. Giant Foods, Inc., 68 Fed. Appx. 393, (4th Cir. 2003) (unpublished opinion) (hereafter "Skipper").
37

been established, the trial court will be affirmed in its decision not to certify, as in Skipper.
On the promotions claim here, putting aside the 1999-2000 manipulated data for the moment, the state of the record before the district court was this: the direct evidence of discrimination was not class-wide and the statistical evidence either favored Defendants, was statistically insignificant, or was clearly inadmissible (for a discussion of the 80% rule, see II (E), Infra, and for a discussion of the logically irrelevant census comparisons, see III (C), Infra.)
How then should the 1999-2000 data be characterized? Defendants submit that it is irrelevant and clearly inadmissible for the reasons stated in BryantJ 31 But at a minimum there was room for significant doubt that this evidence was admissible either under Daubert standards or under general principles of relevancy. And if this evidence was not admitted, there would be no class-wide evidence of discrimination either statistical or direct. If the abuse of discretion standard is to be applied here with its ordinary force and meaning, the district court had discretion to rule against Plaintiffs as the parties bearing the burden of proof either because there was no admissible evidence at all supporting a finding of class-wide discrimination, or because it was sufficiently thin for the district court to find itself unpersuaded that the claim could be tried on a representational, class basis. Nor
131 See n.125 supra. 38

was the district court, in its capacity as guardian of the rights of the absent class members, legally compelled to certify a class where there was a significant danger that at the end of the case those claims would be extinguished through summary judgment owing to an absence of admissible class-wide evidence of discrimination.
C. The District Court Did Not Require Plaintiffs To Demonstrate "Applicant-Based Statistics."
Plaintiffs further argue that the district court required them to demonstrate "applicant-based statistics" when there were none available, m This somewhat misapprehends the record because the district court analyzed both Plaintiffs' applicant-based statistics and non-applicant-based statistics. 133 And it is not that applicant-based statistics were unavailable. They were available but did not favor Plaintiffs.
Plaintiffs argue, under County of Fairfax, that "Circuit precedent required that the next-best estimate of missing applicant rates be used. ''134 But this is incorrect. In County of Fairfax, the defendant did not retain hiring data pursuant to an affirmative action plan during the relevant period of the case. 135 In those
132 "Applicant-based statistics" is Plaintiffs' terminology for statistics based on actual promotions records. 133JA 08982-86. 134POB, p. 43 (citing U.S.v. County of Fairfax, 629 F.2d 932, 940 (4th Cir. 1980) lhereafter "County of Fairfax").) 35County of Fairfax, 629 F.2d at 939-40.
39

circumstances this Court affirmed the district court's use of census data in place of
the pool of actual applicants to determine whether there was disparate impact.
Here, Defendants do not grant promotions to people who do not work for
Nucor. Thus, the only relevant statistical analysis is of the actual promotions
records and not alternative statistical pools on non-employees; pools which are
actually logically irrelevant. 136 As this Court held in County of Fairfax: "applicant
data are normally highly relevant evidence of an employer's labor market. Those
who apply constitute the pool from which employees are selected. ''137 Thus,
Plaintiffs' argument that statistical analysis of their proffered benchmarks be used
instead of actual promotions data to determine whether Nucor has discriminated
against African-Americans in promotions decisions is without merit.
136McReynolds v. Sodexho Marriott Serv., ln¢., 349 F. Supp. 2d 1, 8-9 (D. D.C. 2004) ("In a promotion case, such as this one, the organization in which the class members are employees is appropriately utilized as the relevant labor market") (citations omitted); U.S.v. City of Miami, 115 F.3d 870 (1 lth Cir. 1997) ("Rather than making the proper comparison between the minority composition of the department versus that of the relevant labor market, [Plaintiffs' Expert] testified that his entire report was based on general census data. This analysis conflicts with this court's mandate . . . that the relative proportion of minorities in a junior position [in a promotions case] will generally be the most significant determinant of the proportion of minorities in the qualified applicant pool.") (citations omitted); Shidaker v. Tisch, 833 F.2d 627, 631 (7th Cir. 1987) ("Where a company is shown to promote from within, the relevant labor pool of qualified applicants for upper level positions may be the group of employees in the company from which _romotees will be drawn."
7 629 F.2d at 940 (citing Hazelwood Seh. Dist. v. U.S., 433 U.S. 299, 308, n.13 (1977)).
40

Plaintiffs now argue that the 1999 through 2000 promotions were "the most

probative of racial discrimination because they were the only ones that occurred before the EEOC charges began to be filed in early 2001.138 However, this

argument was never presented to the district court, and is waived. 139 In any event,

the argument does nothing to alter the fact that the 1999-2000 data is wholly

circular, speculative and question-begging.

Plaintiffs' argument is unintentionally

revealing, however, in what it says about the weakness of Plaintiffs' statistical case

because it is tantamount to saying: Defendants stopped Plaintiffs' hypothesized

class-wide discrimination when charges were filed so the actual promotion data

should be discounted in favor of made-up figures from the two-year period that is most remote in time.

138Plaintiffs' argument on which time period is most probative for analysis of promotions data has been very flexible. Initially, their statistical experts analyzed all promotions data (from December 2000 through 2007) to determine whether a disparate impact in promotions existed at Nucor Steel-Berkeley. However, after the statistical experts determined that no disparate impact in promotions existed for the relevant period, the experts only examined the statistical data that existed before the lawsuit was filed. Plaintiffs also strenuously argued to the district court that pre-lawsuit promotions were the most probative of discrimination. The district court agreed, analyzed the pre-lawsuit statistical data, and found it lacking. However, on appeal, Plaintiffs argue that it is not the pre-lawsuit promotions which are the most probative, but the pre-EEOC charge promotions. 139In re Wallace and Gale Co., 385 F.3d 820, 835 (4th Cir. 2004) (failure to raise argument before the district court results in a waiver of that argument on appeal "absent exceptional circumstances").
41

D. Plaintiffs' Challenge To The Discovery Order. Plaintiffs complain about a discovery order entered on March 30, 2006, even though that issue was not presented in the Petition for Appeal. 14° That objection should be dismissed because Plaintiffs expressly disavowed it below; because appeals under Rule 23(f) do not extend jurisdiction to discovery issues; and because the district court's order was not an abuse of discretion.
1. Plaintiffs Expressly Disavowed This Argument Below. Plaintiffs contradict themselves on this issue. While on appeal they object to the discovery order, lead counsel for Plaintiffs - Mr. Robert Wiggins - previously stated to the district court during the hearing on the motion for class certification, "We don't think we need more discovery at the moment, we are willing to stand on the record. ''x41 Under both waiver and estoppel principles, Plaintiffs are precluded from now objecting to the discovery order.
2. Rule 23(f) Is Not Intended To Provide An Appeal From A Discovery Order.
The plain language of Fed. R. Civ. P. 23(f) reads "[a] court of appeals may permit an appeal from an order granting or denying class-action certification under this rule." This language carves out a limited right of appeal only for class
140JA 09143-70. 141JA 09017.
42

certification issues. 142 Yet, Plaintiffs request this Court to broaden the scope of
Rule 23(0 to pre-hearing discovery matters. In rejecting a similar request, the
Eleventh Circuit has held:
With limited exceptions, the federal courts of appeals have jurisdiction to hear appeals only from ... final decisions of the district courts of the United States. 28 U.S.C.§1291. Although Fed. R. Civ. P. 23(f) permits us to review an order of a district court granting or denying class action certification, the district court's finding [at issue] ... was made in a separate discovery order. The jurisdiction granted by Rule 23(f) does not extend to this separate [discovery] order. 143
In De Leon-Granados, the l lth Circuit found it was precluded from
considering issues raised in a discovery order issued the same day as the
certification order under Rule 23(f). 144 Here, Plaintiffs ask this Court to consider
issues raised in a discovery order issued almost two years prior to the class
certification order. 145
142See also Bertulli v. Indep. Ass 'n of Cont7 Pilots, 242 F.3d 290, 294 (5th Cir. 2001) (holding "... under Rule 23(f), a party may appeal only the issue of class certification; no other issues may be raised.") MeKowan Lowe & Co. v, Jasmine, Ltd., 295 F.3d 380, 390 (3rd Cir. 2002) (citing Fed. R. Civ. P. 23(f), advisory committee's notes) ("[an] appeal from an order granting or denying class certification is permitted in the sole discretion of the court of appeals. No other _pe of Rule 23 order is covered by this provision.")
De Leon-Granados v. Eller & Sons Trees, lnc., 497 F.3d 1214, 1218, n.1 (1 lth Cir. 2007) (hereafter "De Leon-Granados"). 144ld. (emphasis added). _45 The discovery order was entered on March 30, 2006, while the order on Plaintiffs' motion for rehearing from which this appeal was taken was entered January 11, 2008.
43

To grant Plaintiffs' requested relief from a discovery order would enlarge the scope of Rule 23(f) beyond its intended scope and disregard the standards set by this Court in Leinhart v. Dryvit Sys., Inc., holding "[s]tandards must certainly reflect the limited capacity of appellate courts to consider interlocutory appeals, as well as the institutional advantage possessed by district courts in managing the course of litigation and the judicial diseconomy of permitting routine interlocutory appeals. ''146 Thus, Plaintiffs' request for reversal of the district court's discovery order should be rejected on jurisdictional and prudential grounds.
3. In Any Event The District Court's Ruling Was Not An Abuse of Discretion.
But even if the discovery issue were to be taken up, Plaintiffs would still be required to demonstrate that the district court's order was an abuse of discretionJ 47 In drdrey, this Circuit reviewed an order limiting discovery to the individual plaintiffs and other similarly situated individuals. On appeal, the Ardrey plaintiffs complained that such limited discovery prevented them from generating the necessary statistical evidence to prove their pattern and practice allegations. 148
146Lienhartv. DryvitSys., Inc., 255 F.3d 138, 145 (4th Cir. 2001). 147Ardrey, 798 F.2d at 682 (hereafter "Ardrey").
148 ird.
44

Plaintiffs make the same argument here. 149 However, that argument was addressed and disposed of by the Ardrey Court. As the district court stated in its order:
The discovery allowed as to [the plaintiffs] individual claims was sufficient to develop evidence, statistical and otherwise, relating to whether discrimination was the "standard operating procedure" of [the defendant] in regard to [the plaintiffs'] positions, or concerning promotions, transfers, suspensions or discipline, related to their individual claims.ZS°
The rule in this circuit is that limiting discovery to information on the Plaintiffs and similarly situated individuals is sufficient to allow Plaintiffs to develop their statistical evidence. The district court followed that holding closely. Thus, in the instant case, Plaintiffs' failure to develop such statistics is not due to insufficient discovery but rather to the absence of evidence of a pattern and practice of racial discrimination at Nucor when examined using the customary procedures and standards.
E. The District Court Did Not Abuse Its Discretion By Affording More Weight To A Standard Deviation Analysis Rather Than The 80°/6 Rule.
This Circuit has found that the 80% rule is not the proper statistical analysis to use in a discrimination case. In Moultrie v. Martin, the Court held:
149POB, pp. 49-50. 150JA 00486 (citing Ardrey, 798 F.2d at 684-685).
45

Courts in this circuit, from time to time, have used straight percentage comparisons without the necessary standard deviation analysis in proving and rebutting discrimination cases. Such decisions failed to observe standard mathematical procedures. Consequently, we now hold that, in all cases involving racial discrimination, the courts of this circuit must apply a standard deviation analysis such as that approved by the Supreme Court in Hazelwood before drawing conclusions from statistical comparisons. 151

This Court subsequently revisited the 80% rule in Deshields v. Balt. City Fire

Dep't holding:

Here, the four-fifths rule involves a comparison of the percentage of blacks promoted with the percentage of whites promoted. According to the EEOC, adverse impact may generally be inferred if the ratio falls below 4/5 -- i.e., 80 percent . . . The four-fifths rule merely represents, however, a numerical proxy with little independent statistical significance. A rule of thumb used by a federal agency is not binding as a rule of law upon a federal court) 52

Thus, Plaintiffs' argument that the district court abused its discretion by

placing more reliance on the standard deviation analysis than on the four-fitths rule

is withoutmerit,

is3

F.

The District Court Did Not Abuse Its Discretion By Going Too

Far Into The Merits Of Plaintiffs' Claims In Denying Class Certification.

It is a fundamental principle of class action law that plaintiffs cannot achieve

class certification on the basis of pleadings alone] 54 To undertake the searching

t51 690 F.2d 1078, 1082-83 (4th Cir. 1982). 152884 F.2d 1387 (Table), (4th Cir. 1989). 153POB at 50.
46

analysis required by the case law, 155the district court analyzed Plaintiffs' statistical
proof to determine whether there was sufficient evidence of a common class-wide
discrimination in promotions, to permit a representational, class trial of that issue.
Plaintiffs argue that in analyzing the statistics, the district court went too far
into the merits of their claims. 156 Plaintiffs' implicit argument is that the district
court should have accepted their statistical evidence as true, and certified the
promotions class without further inquiry.
In a very similar case, the Eleventh Circuit rejected this argument and
affirmed a district court's detailed examination of the plaintiffs' statistical analysis
under Rule 23 -- despite the fact that the analysis overlapped with the merits of the
case) 57 The Cooper v. Southern Co. plaintiffs similarly argued that the district
court had abused its discretion by inquiring into the merits of the claims when it
denied class certification under Rule 23. However, the Eleventh Circuit
responded:
"[w]hile it is true that a trial court may not properly reach the merits of a claim when determining whether class certification is warranted, this principle should not be talismanically invoked to artificially limit a trial court's examination of the factors necessary to a reasoned
154Falcon, 457 U.S. at 160 ("[S]ometimes it may be necessary for the [district] court to probe behind the pleadings before coming to rest on the certification lqsuestion.").
5 Id. at 161 (Rather, district courts must conduct a "rigorous analysis" of all the evidence to determine whether the evidence warrants class certification). 156POB, pp. 51-53. 157Cooper v. Southern Co., 390 F.3d 695 (1 lth Cir. 2004).
47

determination of whether a plaintiff has met her burden of establishing each of the Rule 23 class action requirements. ''158
The Eleventh Circuit acknowledged that plaintiffs must generally
demonstrate a pattern or practice of discrimination through a combination of
statistics and anecdote. Similarly, to prove disparate impact, plaintiffs must
establish the existence of a statistically significant disparity among members of
different groups affected by a type of employment decision. Accordingly, the
Eleventh Circuit held:
Thus, it was plainly necessary for the district court to evaluate the statistical evidence the plaintiffs submitted in order to determine whether it established the discrimination of which plaintiffs complained. The district court concluded the statistical "analysis ha[d] some limitations which undermine[d] its usefulness in measuring whether Defendants' employment practices [we]re racially neutral." Because of substantial analytical flaws in the statistical evidence, the plaintiffs had made an "inadequate showing ... to raise a presumption of discrimination arising from application of the collective whole of Defendants' compensation and promotion policies. 159
The Eleventh Circuit noted that the district court "identified several basic
infirmities that undermined" the statistical evidence value. 16°
Here, exercising its informed discretion, the district court also analyzed
Plaintiffs' statistical evidence. 161 Plaintiffs argue "rejecting [our] clear statistical
lSS390 F.3d at 716 (quoting Love v. Turlington, 733 F.2d 1562, 1564 (llth Cir. 1984)) (citation omitted). 159 Id. 160ld. at 717; see also Garcia v. Johanns, 444 F.3d 625, 635 (D.C. Cir 2006). 161JA 08982-86.
48

evidence.., was.., to decide the merits of who is likely to prevail at trial. ''162
Yet, Rule 23 does not require the district court to accept Plaintiffs' statistical
analysis on faith] 63 Rather, a district court in the exercise of discretion under
Falcon must engage with the probative value and usefulness of Plaintiffs'
statistical evidence.
The district court properly applied this principle of law at the outset of its
order, acknowledging that "the likelihood of success on the merits is not
relevant".., but that a "district court must take a close look at the facts relevant to
the certification question and, if necessary, make specific findings on the propriety
of certification . . . even if the issues tend to overlap into the merits of the
underlying case. ''164 In doing so, the district court's examination of the statistical
evidence was fully congruent with this Court's holding in Gariety:
We conclude that, by accepting the plaintiffs' allegations for purposes of certifying a class in this case, the district court failed to comply adequately with the procedural requirements of Rule 23... If it were
162POB, p. 52, (citing Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 321 (4th Cir. 2006)) (holding "The likelihood of success on the merits . . . is not relevant to the issue of whether certification is proper.") Plaintiffs' citation to the Thorn decision on this point of law is incomplete. What Plaintiffs omit is more important that what they quote. Thorn actually holds: "[a]t the class certification phase, the district court must take a close look at the facts relevant to the certification question and, if necessary, make specific findings on the propriety of certification. Such findings can be necessary even if the issues tend to overlap into the merits of the underlying case." (internal quotations and citations omitted). 163Gariety v. Grant Thornton, LLP, 368 F.3d 356, 365 (4th Cir. 2004) (hereafter " G ariety" ). 164jA 08982 (citing Thorn, 445 F.3d at 319).
49

appropriate for a court simply to accept the allegations of a complaint at face value in making class action findings, every complaint asserting the requirements of Rule 23(a) and (b) would automatically lead to a certification order, frustrating the district court's responsibilities for taking a "close look" at relevant matters, Amchem, 521 U.S. at 615, 117 S.Ct. 2231, for conducting a "rigorous analysis" of such matters, Falcon, 457 U.S. at 161, 102 S.Ct. 2364, and for making "findings" that the requirements of Rule 23 have been satisfied, see Fed. R. Civ. P. 23(b)(3). 165
Accordingly no abuse of discretion is made out. III. The District Court Did Not Abuse Its Discretion When Finding That
Plaintiffs Do Not Satisfy The Adequacy Requirement Of Rule 23(a). The district court examined the record and found inadequacy both because
of a lack of typicality and because of conflicts of interest between Plaintiffs and potential class members that prevented them from serving as adequate class representatives. Specifically, the court found Plaintiffs and class members had a conflict of interest because "Plaintiffs bid against other class members" for the same promotions they are now seeking through litigation. 166 The district court
explained: "awarding the Plaintiffs a promotion eliminates the same remedy to another class member who also seeks the promotion. ''167 In support of its decision
the district court relied upon a U.S. Supreme Court decision holding that a class
165Gariety, 368 F.3d at 365. 166JA 09104.
167 ld.
50

representative interests. 168

cannot represent class members with competing remedial

Plaintiffs contend that the district court committed an abuse of discretion in

making this decision. In support of this contention they argue: 1) Plaintiffs'

interest in proving and enjoining a pattern-or-practice of promotion discrimination throughout a single plant is inherently adequate for a putative class representative

and to hold otherwise would virtually doom every class action or pattern or

practice case; 169 2) no class members bid on precisely the same vacancy as a named Plaintiff; 17° and 3) the Gen. Tel. Co. v. E.E.O.C. (hereafter "General

Telephone") decision cited by the district court is distinguishable and this Circuit

has since held that a plaintiff's interest in enjoining a pattern-or-practice of

promotion discrimination throughout a single plant ensures adequacy of representation, m Each of these arguments is without merit.

A. Plaintiffs' Interests Are Not Inherently Consistent With Those Of Putative Class Members And To Hold Otherwise Does Not "Doom" All Promotion Class Actions.
The principal opinion upon which Plaintiffs rely in support of the argument

that they met the adequacy requirement has been vacated. Because the eleven line block quotation on page fifty-six of Plaintiffs' brief is taken from a case vacated in

168JA 09104 (citing Gen. Tel. Co. v. E.E.O.C., 169POB, p. 53 17oPOB, p. 55 171POB, p. 57.

446 U.S. 318, 331 (1980)).

51

1982 by Falcon, it is of no moment. In Falcon, the Supreme Court specifically rejected the proposition that a plaintiff's interest in proving and enjoining a pattern-or-practice of promotion discrimination throughout a single plant ensures adequacy of representation. Specifically, the Court held "the mere fact that a complaint alleges racial or ethnic discrimination does not itself ensure that the party who has brought the lawsuit will be an adequate representative. ''172
Accordingly, not all plaintiffs are adequate to represent other class members, 173and the district court was acting within its discretion when it relied upon the Falcon to find that Plaintiffs' individual interests were not adequate to represent the interests of all putative class members here.
The district court's exercise of discretion in determining whether the adequacy requirement of Rule 23(a) is met does not "doom" all pattern-or-practice promotions claims as Plaintiffs suggest. 174 Rather, such an exercise of discretion prevents the "wholesale expansion of class-action litigation" the Supreme Court sought to prohibit in Falcon. 175
172Falcon, 457 U.S. at 157. 173Cooper, 467 U.S. at 877. 174POB, p. 53. 175Falcon, 457 U.S. at 159.
52

B. The Conflict Between Plaintiffs And Putative Class Members Is Real.
The district court did not abuse its discretion when it found "that Plaintiffs are pursuing the same promotions as other class members. ''176 The district court
reviewed the evidence and found "the record reveals that Plaintiffs bid against other class members, m77 In the face of the district court's finding and citation of examples, Plaintiffs continue to argue "there were no class members who bid on the exact same vacancy as the Plaintiffs. ''178 The record, however, is to the contrary, to wit:
Class member James R. Bowman and named Plaintiff Jason Guy bid on the same Ladle Wall Helper promotion vacancy; 179and
• Class member Michael Blanco and named Plaintiffs Jason Guy and Alvin Simmons bid on the same Mill Inspector promotion vacancy. 18°
When Plaintiffs state "the only instance of competitive bidding cited by the court involved two name plaintiffs who bid on the same vacancy, not a competition with putative class members", 181this statement is also incomplete because the named Plaintiffs repeatedly bid against each other.
176JA 09104.
177 Id.
178POB, p. 56. 179JA 00289. 180JA 00297. 181POB, p. 56.
53

• Named Plaintiffs Gerald White and Ramon Roane bid on the same Stand Assembly Shop Supervisor promotion vacancy;182
• Named Plaintiffs Alvin Simmons and Jason Guy bid on the same Finishing Stacker Operation promotion vacancy) 83
• Named Plaintiffs Alvin Simmons and Quinton Brown bid on the same CP1 Operator promotion vacancy. 184
These were single and not multiple vacancies. 185
The fact that five of the seven Named Plaintiffs bid against putative class
members and/or each other, and Sheldon Singletary is not recorded as having a bid
at all within the relevant period, lends further support to the district court's finding
that Plaintiffs were inadequate representatives on typicality grounds as well. 186
C. The District Court Did Not Abuse Its Discretion By Relying Upon General Telephone.
The district court was within its discretion when holding that the relief
sought by Plaintiffs put their interests adverse to other class members because "an
injunction awarding the Plaintiffs a promotion eliminates the same remedy to
another class member who also seeks the promotion. ''187 In support of its finding,
the district court cited to the U.S. Supreme Court's opinion in General Telephone
which states, "a class representative cannot represent class members with
182JA 08439; see also JA 00261. 183JA 08442; see also JA 00291. 184J.A. 08442; JA 00295. 185JA 08434-51; see also JA 00261; JA 00291. 186JA 09195. 187JA 09104.
54

competing remedial interests. ''188 Plaintiffs contend the district court's reliance on the decision in General Telephone is ill-founded because the Supreme Court did not have before it the current situation in which employees are trying to enjoin and replace an allegedly subjective promotion process that will benefit all employees alike, not just Plaintiffs. 189 But of course, that was not all that was before the district court.
In addition to seeking to enjoin and replace Defendants' promotions process, Plaintiffs sought an injunction giving them promotions. This real and direct competition between Plaintiffs and class members for promotions is a prime example of the "competing remedial interests" that General Telephone sought to avoid) 9° In fact, the degree of competing remedial interests between Plaintiffs and class members is much greater here than it was in General Telephone where plaintiffs and class members might have competed with each other for "fringe benefits or seniority. ''191 In the present case, however, Plaintiffs and class members would compete among themselves and with class members making their claims both atypical and in conflict with the class.

188JA 09104 (citing General ls9 POB, p. 57. 190446 U.S. at 331.
191 fd.

Telephone,

446 U.S. at 331).

55

IV. Even If The Ruling Below Were To Be Reversed This Class Cannot Be Summarily Certified On Appeal Because Rule 23(b) Has Not Yet Been Considered By The District Court. Plaintiffs ask this Court to "certify the putative class of African-American
employees from December 8, 1999 forward. ''192 However, the district court never examined whether the alleged class satisfied the requirements of Rule 23(b). 193 Hence, were this Court to find any abuse of discretion, the sole remedy should then be remand for further proceedings in the district court.
CONCLUSION But no abuse of discretion has been shown and the order of the district court is due to be affirmed.
192POB, p. 58. 193Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). ("In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3)").
56

Respectfully submitted,
NUCOR STEEL BERKELEY AND NUCOR CORPORATION
Cary A. Farris Marc Patton Alaniz & Schraeder, L.L.P. 2500 City West Boulevard, Ste. 1000 Houston, Texas 77042 (281) 531-0927 (Telephone) (281) 531-8024 (Facsimile)
John S. Wilkerson, III Nosizi Ralephata Turner, Padget, Graham & Laney, P.A. P.O. Box 22129 (29413) 40 Calhoun Street, Suite 200 (29401) Charleston, South Carolina 29401 (843) 576-2801 (Telephone) (843) 577-3369 (Facsimile)
E. Duncan Getchell, Jr. Erin M. Sine McGuireWoods LLP One James Center 901 East Cary Street Richmond, Virginia 23219 (804) 775-4319 (Telephone) (804) 698-2061 (Facsimile)
By:/s/E. Duncan Getchell, Jr. ATTORNEYS FOR APPELLEES
57

REQUEST FOR ORAL ARGUMENT Because this is an appeal under an abuse of discretion standard with adequate evidence supporting the disposition below, there is no novel question demanding oral argument. Appellees would nonetheless welcome oral argument in aid of clarity of presentation.
58

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because:
• This brief contains 12,928 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii ).
This brief complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5) because:
• This brief has been prepared in a proportionally spaced 14-point Times New Roman font typeface using Microsoft Word XP.
/s/E. Duncan Getchell, Jr. Attorney for Appellees Dated: July 3, 2008
59

CERTIFICATE OF SERVICE I hereby certify that on July 3, 2008, I electronically filed the foregoing with the Clerk of Court using the CMiECF System, which will send notice of such filing to the following registered CMiECF users:
Robert L. Wiggins, Jr. Wiggins, Childs, Quinn, & Pantazis, P.C. The Kress Building 301 19th Street North Birmingham, AL 35203 Armand Definer Definer, Altman & Wilbom 40 Calhoun Street, Suite 410 P.O. Box 600 Charleston, SC 29402
I further certify that on July 3, 2008, I have mailed the foregoing document by First Class Mail, postage pre-paid, to the following non-CM/ECF participants, addressed as follows:
Ann K. Wiggins Susan Donahue Wiggins, Childs, Quinn, & Pantazis, P.C. The Kress Building 301 19th Street North Birmingham, AL 35203
/s/E. Duncan Getchell, Jr.
60

 
 I

APPEAL NO. 08-1247

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
i QUINTON BROWN, JASON GUY, RAMON ROANE, ALVIN

_'lLgD

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SIMMONS, SHELDON SINGLETARY, GERALD WHITE, and JACOB RAVENELL, individually and on behalf of the class they

JUz ,2 8 2008

seek to represent,
I Plaintiffs-Appellants,

V'si_c_t or _#

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V°

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NUCOR CORPORATION and NUCOR STEEL-BERKELEY,

Defendants-Appellees.
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF SOUTH CAROLINA

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CHARLESTON DIVISION

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

Armand Definer
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D. Peters Wilbom, Jr.

Robert L. Wiggins, Jr. Ann K. Wiggins

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Derfner, Altman & Wilborn 575 King Street

Susan Donahue Wiggins, Childs, Quinn & Pantazis, L.L.C.

Charleston, S.C. 29403

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(843) 723-9804

The Kress Building 301 19th Street North
Birmingham, Alabama 35203 205-314-0500

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ATTORNEYS FOR PLAINTIFFS-APPELLANTS

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ORIGINAL

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RECEIVED

ZOOJU8 L31 /_M9"_0

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U.S.COUR I Of APPEALS

FOURTH CIRCUIT

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APPEAL NO. 08-1247
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
QUINTON BROWN, JASON GUY, RAMON ROANE, ALVIN SIMMONS, SHELDON SINGLETARY, GERALD WHITE, and JACOB RAVENELL, individually and on behalf of the class they seek to represent,
Plaintiffs-Appellants,

V°
NUCOR CORPORATION and NUCOR STEEL-BERKELEY,

Defendants-Appellees.
I

I

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF SOUTH CAROLINA

i

CHARLESTON DIVISION

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

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Armand Definer

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D. Peters Wilbom, Jr. Derfner, Altman & Wilborn

575 King Street

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Charleston, S.C. 29403

(843) 723-9804

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Robert L. Wiggins, Jr. Ann K. Wiggins Susan Donahue
Wiggins, Childs, Quinn & Pantazis, L.L.C. The Kress Building 301 19thStreet North
Birmingham, Alabama 35203 205-314-0500

ATTORNEYS FOR PLAINTIFFS-APPELLANTS

I

TABLE OF CONTENTS

I

TABLE OF CONTENTS .............................................

TABLE OF AUTHORITIES .........................................

PAGES: i iv

ARGUMENT IN REPLY ............................................

1

I*

NUCOR'S HOSTILE ENVIRONMENT ARGUMENT RESTS ON AN

ERROR OF LAW .............................................

1

A*

Nucor Does Not Answer the Principal Error of Law At Issue

In This Appeal ...........................................

1

B°

Centralized Managerial Tolerance Fostered The Plant-Wide Hostile

Environment Found Below, Creating A Common Issue Of Fact

And Law ...............................................

3

C.

The Named Plaintiffs Worked In Every Production Department

And Sought Transfer Or Promotion To All Such Departments ...... 5

D°

Any Individual Differences Would Not Be Relevant Until Stage H

Of A Bifurcated Trial .....................................

6

II. THE DISTRICT COURT FOUND A "PLANT-WIDE" SUBJECTIVE

I

PROMOTION PROCEDURE AND THAT NUCOR LACKS ANY

OBJECTIVE SYSTEM TO EVALUATE PROMOTION APPLICANTS .. 8

I

A°

Total Subjectivity Is Not Required To Establish A Common Question

Of Law Or Fact ..........................................

8

I

B,

An "Entirely Subjective" Promotion System Was Established By

I

The Evidence And Findings Below .........................

12

I

i TABLE OF CONTENTS

i

PAGES:

i

III. STATISTICALLY SIGNIFICANT DISPARITIES IN PROMOTIONS

WERE SHOWN TO EXIST ....................................

13

I

No

No Precedent Is Cited For Ignoring Promotion Decisions By The

Same Decisionmakers Merely Because Defendants Destroyed

I

Their Application Records For Those Promotions ..............

14

I

B. Qualified Workforce Data Is Also A Second Proxy For Missing

Applicant Percentages ....................................

18

I

C. The 80% Rule Is A Third Proxy Once Standard Deviation Analysis Has Been Undermined By The Elimination Of

Relevant Promotions .....................................

20

I

D. The Elimination Of Relevant Promotions Arbitrarily Reduced The

!

Odds For Detecting Racial Discrimination Even When It Exists ... 22

E. Exclusion Of Post-Lawsuit Promotions Is Not "Disingenuous" .... 23
I

F. Rule 23(f) Permits Interlocutory Review Because The Error Of

I

Allowing Nucor To Gerrymander The Promotion Data Caused

Class Certification To Be Denied ...........................

24

G. Plaintiffs Did Not Waive Appeal Of The Gerrymandered Data ... 26
i

I

H*

The District Court Went Too Far Into The Merits By Choosing

Between Statistical Alternatives That Were Each Found

To Be "Reasonable" .....................................

28

I

IV. NO CONFLICT HAS BEEN ALLEGED OR FOUND FOR THE

I

HOSTILE ENVIRONMENT CLASS AND ONLY A FEIGNED CONFLICT AFFECTING TWO OF SEVEN NAMED PLAINTIFFS

HAS BEEN ALLEGED FOR THE PROMOTION CLASS ............

28

I

ii

I

I TABLE OF CONTENTS

I

PAGES:

I

STATEMENT REGARDING ORAL ARGUMENT ......................

30

CERTIFICATE OF COMPLIANCE ...................................

32

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CERTIFICATE OF SERVICE ........................................

33

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iii

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i

i TABLE OF AUTHORITIES
!

!

A Helping HandLLC v. Baltimore County Md.,

515 F.2d 356 (4 th Cir. 2006) .....................................

i

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) ..........................................

I Anderson v. The Boeing Company,

I

222 F.R.D. 521 (N.D. OK. 2004) .................................

Ardrey v. UPS,

I

798 F.2d 679 (4 th Cir. 1986) ....................................

!

Bell v. Environmental Protection Agency, 232 F.23d 546 (7 tu Cir. 2000) ...................................

!

* Bright v. Hill's Pet Nutrition, Inc., 510 F.3d 766 (7 th Cir. 2007) .................................

I

Bunch v. Ballard,

795 F.2d 384 (5 th Cir. 1986) ....................................

Bushley v. N. Y. State Civ. Serv. Comm 'n,

I

733 F.2d 220 (2d Cir. 1984) ....................................

Carpenter v. The Boeing Co.,

!

456 F.3d 1183 (10 th Cir. 2006) ..................................

I

Connecticut v. Teal, 457 U.S. 440 (1982) ..........................................

I

Cooper v. Federal Reserve Bank,

467 U.S. 867 (1984) ...........................................

I

iv

PAGES: 2
20 9
25 16 1, 4, 5 20 20 15 20
7

TABLE OF AUTHORITIES

PAGES:

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Cotter v. City of Boston,

323 F.3d 160 (1 st Cir. 2003) .....................................

I

Deshields v. Baltimore City Fire Dept.,

1989 WL 100664 (4 th Cir. 1989) .............................
I * Dothard v. Rawlinson,

433 U.S. 321 (1977) .......................................

i

* Dukes v. Wal-Mart,

!

509 F.3d 1168 (9 th Cir. 2007) ...................................

20 21-22 18-19
14

!

* EEOC v. American National Bank, 652 F. 2d 1176 (4 th Cir. 1981)

o ° o o ° , ° ° , o o o ° ° ° ° Q , , o o ° ° ° ° * * o o ° o ° * , ° 18

* EEOC v. Burlington Medical Supplies, Inc.,

536 F.Supp.2d 647 (E.D. Va. 2008) .............................

3, 5

E.E.O.C. v. Dial Corp.,

156 F. Supp. 2d 926 (N.D. Ill. 2001) ...............................

8

* EEOC v. Mitsubishi Motor Manufacturing of America, Inc.,

990 F.Supp. 1059 (C.D.II1.1998) ...............................

5, 7

Fickling v. New York State Dept. of Civ. Serv.,

909 F.Supp. 185 (S.O.N.Y. 1995) ................................

21

Firefighters Inst. v. City of St. Louis,

616 F.2d 350 (8th Cir. 1980) ....................................

20

Franks v. Bowman, 424 U.S. 747 (1976)

° ° ° ° , , ° , , o , ° ° ° ° , , e ot , ° ° ° ° ° • J * • • ° ° ° • * • • • ° ° ° • 7

I !
TABLE OF AUTHORITIES
!
General Telephone Co. of the Northeast v. EEOC, 446 U.S. 318 (1980) ..........................................

General Telephone Co. v. Falcon, 457 U.S. 147 (1982) .................................
Gomes v. A VCO Corp., 816 F.Supp. 131 (D. Conn. 1993) ................................

Griffin v. Dugger, 823 F.2d 1476 (11 th Cir. 1987) ..................................

!

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..........................................

I

Hazelwood School Dist. v. United States,

433 U.S. 299 (1977) ..........................................

I

* In Re Lorazepam,

289 F.3d 98 (D.C. Cir. 2002) ....................................

I

*International Brotherhood of Teamsters v. United States,

I

431 U.S. 324 (1977) .........................................

* Isaacs v. Hill's Pet Nutrition, Inc.,

I

485 F.3d 383 (7 th Cir. 2007) .....................................

I

* Jackson v. Quanex Corp., 191 F.3d 647 (6 th Cir. 1999) ....................................

Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8 th Cir. 1999) ....................................

vi

PAGES: 30
10, 11, 12, 30 16 10 20 18 25
6-7 5 2 7

TABLE OF AUTHORITIES

PAGES:

!

Ledbetter v. Goodyear Tire & Rubber Co., 127 S.C.t. 2162 (2007) ..........................................

!

* Lewis v. Bloomsburg Mills, Inc.,

773 F. 2d 561 (4thCir. 1985) .................................

I * Lilly v. Harris Teeter Supermarket,

I

720 F.2d 326 (4thCir. 1983) .................................

* Malave v. Potter,

I

320 F.3d 321 (2ndCir. 2003) ....................................

!

Mathers v. Northshore Mining Co., 217 F.R.D. 474 (D. Minn. 2003) ..................................

!

* MeClain v. LuJkin Industries, Inc., 519 F.3d 264 (5_ Cir. 2008) .................................

1 18, 21 11, 12
15 9 15, 17

* MeReynolds v. Sodexho Marriott Services, Inc., 208 F.R.D. 428 (D.C. 2002) ............................
Moultrie v. Martin, 690 F.2d 1078 (4 th Cir. 1982) ................................

9, 10-11, 13 17, 21

* National R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) ...........................................

1

* Newsome v. Up-To-Date Laundry, Inc.,

219 F.R.D. 356 (D. Md. 2004) ...................................

7

Palmer v. Combined Ins. Co.,

2003 WL 466065 (N.D. Ill. 2003) ................................

8

vii

TABLE OF AUTHORITIES

PAGES:

!

Pettway v. American Cast Iron Pipe Co.,

576 F.2d 1157 (5 th Cir. 1978) ...................................

30

!

Police Officers v. City of Columbus,

644 F.Supp. 393 (S.D. Ohio 1985),

I

aff'd916 F.2d 1092 (6 th Cir. 1990) ..............................

20

I

Richardson v. Byrd, 709F.2d 1016 (5thCir. 1983) ...................................

11

!

* Rodriguez v. Maricopa County Community College Dist.,

2006 WL 89938 (D. Az. 2006) .................................

I

* Smith v. Nike Retail Services, Inc.,

234 F.R.D. 648 (N.D. Ill. 2006) .................................
! Stout v. Potter,

I

276 F.3d 1118 (9 th Cir. 2002) ...................................

Trout v. Lehman,

702 F.2d 1094 (D.C.Cir.1983) ................................

i

I

U. S. v. City of Chicago, 663 F.2d 1354 (7 th Cir. 1981) ...................................

7-8 10 20
15-16 20

I

* U. S. v. County of Fairfax, 629 F.2d 932 (4thCir. 1980) ..............................

16-17, 21

I

* Ward's Cove Packing Co., Inc. v. Atonio,

490 U.S. 642 (1989) .................................

15, 18, 19, 21

I Warren v. Xerox Corp.,

2004 WL 1562884 (E.D.N.Y. 2004) ..............................

9

i

ooo
V111

I

!

TABLE OF AUTHORITIES

!

!

* Watson v. Fort Worth Bank and Trust,

487 U.S. 977 (1988) ...................................

!

Wilmore v. City of Wilmington,

699 F.2d 667 (3 rdCir. 1983) ....................................

!

Woodward v. Lehman,

I

530 F.Supp. 139 (D.S.C. 1982) ..................................

STATUTES:

!

Title VII .....................................................

PAGES: 8, 9, 11, 13 20 20 1, 3, 21

Local Rule 32.1 ...................................................

21

i

I

F. R. Cir. P. 23 .....................................

9, 10, 11, 14, 21, 22

F. R. Civ. P. 23(f) ..................................................

24

!

OTHER AUTHORITIES:

!

* Lindeman & Grossman, EMPLOYMENT DISCRIMINATION LAW,

pp. 1160-1161, 2289, 2290-2291 & n.77, 2310-2311,

!

2315 (4 th ed. 2007) ...................................

17-18, 19-20

I

* Ramona L. Paetzold & Steven L. Willborn, THE STATISTICS OF DISCRIMINATION, §5.04 (2002) ...............................

16

!

!

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ix

ARGUMENT IN REPLY

!

I. NUCOR'S HOSTILE ENVIRONMENT ARGUMENT RESTS ON AN

ERROR OF LAW

! A. Nucor Does Not Answer The Principal Error Of Law At Issue In

!

This Appeal

Nucor's argument is dependent upon the error of law at the core of the district
i court's decision. It argues that the court properly exercised its discretion by dividing

i

the hostile environment experienced by each class member into "plant-wide" and

"department" components, but never explains how this is consistent with the Supreme

Court's repeated admonition that "the actionable wrong is the environment, not the

individual acts that, taken together, create the environment." Ledbetter v. Goodyear

Tire & Rubber Co., 127 S.Ct. 2162, 2175 (2007) (citing National R. Passenger Corp.

v. Morgan, 536 U.S. 101, 115-116, 118 (2002)). Morgan and similar precedent are

!

never mentioned in the defendants' brief.

!

"Employers may not turn a practice that Morgan deems unitary into two or

!

more distinct practices by calling each subdivision of the workplace a separate

'team.'" Bright v. Hill's Pet Nutrition, Inc., 510 F.3d 766, 768 (7 th Cir. 2007)

!

(Easterbrook, J.). The latter case explained that "[t]he Supreme Court held in

I

[Morgan] that a hostile working environment is a single unlawful practice under Title

!

VII." Id. The Sixth Circuit has also explained the error of law embedded in

1

arguments like that now advanced by Nucor: "In essence, under this view, each

minority employee would have to show that the employer had an intent specifically

to harass her, and could not proceed on a theory that the employer had a general intent

to harass all employees of the minority group." Jackson v. Quanex Corp., 191 F.3d

647, 660 (6thCir. 1999).

The abuse of discretion standard of review does not permit the district court to

premise its decision on an error of law. A Helping Hand LLC v. Baltimore County

Md., 515 F.2d 356, 370 (4th Cir. 2006) ("An error or law constitutes an abuse of

i

discretion."). There is no dispute that the district court split each class member's

environment in half. The court found that "[a]lthough the [plant-wide] acts were
i arguably experienced by all African-American employees working at the plant, they

!

are only part of a class member's hostile work environment claim." JA8989

I

(emphasis added). This finding was correct in intimating that "department" and

!

"plant-wide" events were"parts" of a single hostile environment, but the district court

ultimately erred as a matter of law in somehow concluding that these "parts" of the
! same environment could be divided in two. The human mind does not divide
! perception of its environment in this manner. Confederate flags and racial slurs are

a

no different when they occur in every department "plant-wide" than when they occur

I

again in a given department. The "plant-wide racist acts" found by the district court

occur in each department, not in some mythical department-free zone in the plant.

This is not a case in which class members were found to experience only a

I

departmental hostile environment that varied from one department to another. The

I

district court specifically follnd that all class members were affected by both a plant-

wide and department environment. The court would not have found such hostility
I to be "plant-wide" if it were really limited to sporadic individuals in the manner

I

argued by Nucor.

!

Once that legal error is set right, the argument about "department differences"

!

fades away because such differences are onlypart of each class member's common

plant-wide work environment found below-- an environment that cannot be divided
! into separate parts as a matter of law.

I

B. Centralized Managerial Tolerance Fostered The Plant-Wide Hostile

Environment Found Below, Creating A Common Issue Of Fact And

Law

I

Nucor expresses no disagreement with the caselaw holding that a hostile

I

environment should not be divided by department when there is a "systemic policy

of tolerance by the company." POB at 28 (quoting EEOC v. Burlington Medical

I

Supplies, Inc., 536 F. Supp.2d 647 (E.D. Va. 2008))• The Seventh Circuit has

recently held that:

• . . hostile working conditions at a single place of employment are a single unlawful practice. Title VII

!

creates responsibilities for "employers" as entities.

!

Employers may not turn a practice that Morgan deems unitary into two or more distinct practices by calling each

subdivision of the workplace a separate "team." Most

!

employers -- and Hill's Pet Nutrition is no exception --

allow plant managers and human-relations departments to

I

control working conditions plant-wide. When a single managerial staff or chain of command decides to permit the

men in the workplace to make life miserable for the

!

women, that is a single unlawful practice whether or not a

particular woman moves from one team to another within

!

the plant.

Bright, 510 F.3d at 768.
! Such a "single management staff or chain of command" was established by the

I

evidence below. Nucor's brief does not take issue with the fact that the plant's

!

General Manager, Ladd Hall, "admitted that it was his responsibility to investigate

I

and respond to racial harassment or discrimination." POB at 28 (citing JA 1127,1003-

1004,1015-1016,1044-1045,1054-1056,1070,1105-1106,1111-1112,1123-1124,8537-
! 8560). Hall had sole discretion to decide whether to redress a given incident or to

I

:involve the department manager in the investigation or responsive decisionmaking.

!

Id. Defendants' written Policy on investigating concerns about racial harassment

!

states in bold italics that "you should report such matters to: Personnel Supervisor

I

or GeneralManager."

Nucor Employee Handbook at p. B-4 (JA8894) (emphasis in

original). Hall never involved the department managers in such process. Not even

I one of the five department managers has been shown to have lifted a finger to redress

I

4

the racial hostility found to be occurring both plant-wide and in their department.

I

This creates a centralized hostile environment of the kind described in Bright, supra,

I

and similar cases. See Isaacs v. Hill's Pet Nutrition, Inc., 485 F.3d 383,386-387 (7 th

I

Cir. 2007); Burlington Medical, 536 F.Supp. 2d at 660; EEOC v. Mitsubishi Motor

Manufacturing of America, Inc.,990 F.Supp. 1059, 1081 (C.D. II1.1998).
i C. The Named Plaintiffs Worked In Every Production Department

I

And Sought Transfer Or Promotion To All Such Departments

Nucor repeatedly states that "six of the seven named plaintiffs worked in one
I department", but never responds to the fact that they also worked in four other

production departments during the liability period. See POB at 8 & n.3 and 29 & n.

6; see also JA8539-8543,8551-8555. They additionally worked along side the
,

I

employees of the two other departments -- maintenance and shipping -- who were

stationed shoulder-to-shoulder with the plaintiffs in the same work area. Id. Only
I two of the seven named plaintiffs worked in just one department --Alvin Simmons

I

and Gerald White. Id. Sixteen class members from six departments testified about

!

the common plant-wide hostile environment they experienced. Id.; see also JA8986-

I

8987,8994 (court listing "sixteen declarations and affidavits of African-American

!

employees to prove the existence of a common practice of employment discrimination

at the plant" and finding that "[n]inety-tbur African-American employees worked at

I the plant from 2001 to 2004").

I

5

Nucor also ignores the evidence of racial hostility reported to Nucor "by more

than 50 African-American employees spread across all six departments of the plant."

POB at 16 (citing JA1001-1004,8546,8511-8524).

Those 50 or more employees

!

described hundreds of racially hostile incidents of exactly the same character and type

in every department -- the same confederate flags, racial slurs, and racial graffiti on

i

walls, bathrooms and across the plant-wide radio and e-mail system. Id.

!

The seven named plaintiffs also applied for transfer or promotion into all of the

!

production departments. JA289,317,319,321,323,325-333,993-1072,8537-8560.

The

district court found that the named plaintiffs applied for and were denied promotional

i
transfers to four different departments. JA477-478,486-488; POB at 8;
I JA289,317,319-320,333.

I

D. Any Individual Differences Would Not Be Relevant Until Stage II

Of A Bifurcated Trial
I To the extent that individual differences ever surface, they would not be

I

relevant until Stage II of a bifurcated trial of the type that has been structured for this

I

type ofcase. "At the initial, 'liability' stage ofapattern-orpractice suit the [plaintiff

I,

class] is not required to offer evidence that each person for whom it will ultimately

I

seek relief was a victim of the employer's discriminatory policy. Its burden is to

establish a prima facie case that such a policy existed. * * * Without any further

I

evidence from the [plaintiff], a court's finding of a pattern or practice justifies an

I

6

award of prospective relief." Teamsters v. United States, 431 U.S. 324, 360 (1977);

see also Cooper v. Federal Reserve Bank, 467 U.S. 867, 876 (1984); Franks v.

Bowman, 424 U.S. 747 (1976); Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1299-

1300 (8thCir. 1999) (applying the pattern or practice holding in Teamsters andFranks

to class hostile environment claims); POB at 25-26.

Plaintiffs have already shown that the majority of courts considering how to try a class hostile environment claim have held that individualized claims or evidence are

not relevant at Stage I where the focus is on the classwide pattern or practice and

request for declaratory or injunctive relief. POB at 25-26 (citing cases); see e.g.,

Newsome v. Up-To-DateLaundry,

Inc., 219 F.R.D. 356, 361 n.2, 362 (D. Md. 2004)

("The class-wide liability phase of a pattern or practice hostile environment claim

merely requires objective proof of a hostile work environment; claims based on

i

individual experiences are resolved in the remedial phase of the trial. * * *

t

Evidence of the subjective experiences of each class member is not necessary to

support class-wide liability; there must only be evidence that some class members
! experienced objectively severe and pervasive conduct."); Mitsubishi, 990 F. Supp. at

i

1076 ("... to require subjective showings would needlessly conflate the proofs

I

necessary to establish a pattern or practice with those necessary to establish

I

individual liability for sexual harassment."); Rodriguez v. Marieopa County

Community College Dist., 2006 WL 89938 *6 - *7 (D. Az. 2006); E.E.O.C.v. Dial

Corp., 156 F. Supp. 2d 926, 946 (N.D. Ill. 2001); Palmer v. Combined Ins. Co., 2003

i

WL 466065 * 4 (N.D. Ill. 2003).

i

II. THE DISTRICT COURT FOUND A "PLANT-WIDE" SUBJECTIVE PROMOTION PROCEDURE AND THAT NUCOR LACKS ANY

OBJECTIVE SYSTEM TO EVALUATE PROMOTION APPLICANTS
! A. Total Subjectivity Is Not Required To Establish A Common

i

Question Of Law Or Fact

Nucor has not expressed disagreement with the decisions from this and other
I Circuits which have held that a subjective promotion procedure presents a common

1

question of law and fact because it looks to the pattern or practice itself, not to

i

individualized promotion decisions. POB at 35-37 (citing cases). Rather than

I

distinguishing such authority, Nucor argues that "a class may only be certified if the

i

promotions decisions were 'entirely subjective' or 'unfettered.'" DB at 29-30. The

Supreme Court, however, has held that objective criteria are "entirely subjective" if

I

they are combined subjectively: "However one might distinguish 'subjective' from

'objective' criteria, it is apparent that selection systems that combine both types

would generally have to be considered subjective in nature." Watson v. Fort Worth

Bank and Trust, 487 U.S. 977,989 (1988). The district court found that "an objective

system to evaluate applicants is lacking" at Nucor. JA8978. Dr. Buckley testified that

even when a decisionmaker elected on his own to use an objective criteria, it was then

combined subjectively with other subjective criteria into a "gut feeling" of whom to

promote. JA1515,1520. As explained in MeReynolds v. Sodexho Marriott Services,

I

Inc., 208 F.R.D. 428, 332 & n.19 (D.C. 2002):

i

Whether a particular manager uses objective criteria in making particular promotion decisions is irrelevant to the

commonality analysis; instead, what is significant is that

i

the determination of which criteria to use is left entirely to

the individual manager. That is, although individual

i

promotion decisions may in isolated cases be made based on some objective criteria, Sodexho's overall promotion

practices remain entirely subjective, because the decision

I

of whether to use objective criteria--and if so, which

criteria to use--is a matter left to the discretion of the

I

individual manager.

McReynolds, 208 F.R.D. at 442; see also, Watson, 487 U.S. at 989-990; Mathers v.
! Northshore Mining Co., 217 F.R.D. 474, 485 (D. Minn. 2003) ("[I]t is not necessary

i

that a defendant employ absolutely no objective criteria in its decision making

i

process."); Anderson v. TheBoeing Company, 222 F.R.D. 521,537 (N.D. OK. 2004);

,I

Warren v. Xerox Corp., 2004 WL 1562884, "11 (E.D.N.Y. 2004).

Defendants cannot insulate themselves from class certification by merely
! adding objective factors to a selection procedure that is still largely subjective.
I Requiring total subjectivity would leave an entire body of racial discrimination, like

that in Watson and McReynolds, with no means of being certified on a classwide

i

basis.

!

! Nucor mistakenly argues that Falcon intended that result by requiring

!

promotions to be "entirely subjective" in order to be "common" for Rule 23 purposes.

I

Falcon, however, involved only a promotion plaintiff trying to represent a hiring

i

class, and it was only in this inapposite context that the Court stated in footnote 15

that such a class could be certified if hiring and promotions had a common subjective
I promotion procedure. Id. Here, the named plaintiffs seek to represent a promotion

class, not a combined hiring and promotion class. The Eleventh Circuit has explained

I

why the "entirely subjective" comment in Falcon's footnote 15 was merely an

i

example of when an entirely subjective promotion procedure cannot be joined in the

same class with a partly objective hiring procedure and vice versa, not a requirement
I that promotion procedures standing alone must be entirely subjective to satisfy Rule
I 23. Griffin v. Dugger, 823 F.2d 1476, 1490 (11 ta Cir. 1987); see also Smith v. Nike

I

RetailServices, Inc., 234 F.R.D. 648,661 n.12 (N.D. Ill. 2006) ("Falcon's reference

i

to 'entirely subjective decisionmaking processes' is not presented as a requirement,

!

but only as part of a footnoted list of potential ways that a plaintiff might be able to

satisfy commonality and typicality in such a situation."). "Defendant's interpretation
i would, in effect, eviscerate the 'entirely subjective' exception in footnote 15 of

I

Falcon, because it would find commonality only in an entity in which.., every

decision was based on purely subjective criteria." McReynolds, 208 F.R.D. at 442

10

n.19; see also, Richardson v. Byrd, 709 F.2d 1016, 1019 (5 th Cir. 1983).

This Circuit has already considered Falcon in the context of a promotion

procedure that did not involve "unfettered discretion" because the defendant "put

substantial weight on prior work experience" and "discretion... was further limited

by a 'same department/same shift' policy." Lilly v. Harris Teeter Supermarket, 720

F.2d 326, 334 (4thCir. 1983). After discussing Falcon at some length, the Court held

that eleven intervenors could represent a class challenging partly subjective/partly

I

objective promotion procedures even though the original plaintiff could not do so

I

because he had only been subject to an entirely subjective termination. Id. at 334

("[W]e therefore conclude that the intervenors.., were properly certified for that
! claim.").

i

Nucor concedes that the Supreme Court's decision in Watson does not require

i

an "entirely subjective" procedure in order to prove the merits of a discrimination

i

claim, but argues that this level of proof should still be required for purposes of class

certification. DB at 31. Nucor cites Bacon from the Sixth Circuit, but that case never
! addresses why it would make sense to require more proof at the preliminary class

I

certification stage of a case than will be necessary to prove the merits of the claim at

trial under Watson. Bacon's categorical approach to Rule 23 is inconsistent with this

Court's decision in Lilly, which held that Falcon establishes no categorical

11

!

I requirements, but "[i]nstead... reiterated that each case must turn.., upon its

I

particular facts." Lilly, 720 F.2d at 333. Bacon misinterprets footnote 15 of Falcon

I

as an iron-clad requirement of total subjectivity, rather than an example of when a

i

promotion plaintiff may represent a hiring class.

B. An "Entirely Subjective" Promotion System Was Established By

!

The Evidence And Findings Below

I

Nucor's "entirely subjective" standard was met in any event by the evidence

from both parties. Defendants' decisionmakers each admitted that they were not
! required to follow any particular policy or criteria in promoting employees.

i

JA1129,1721-1722,1725-1728,1734,1736,1739-1740,1742,1753,1758,1760,1787.

I

Department managers and supervisors testified that they did not follow the criteria

I

listed on the job postings for promotion (JA1727-1728,1739-1740,1787),

that they

I

cannot really say what criteria were followed (JA 1725-1728,1734,1753,1760), and

that what they considered was all just "in their heads" or "gut feelings" of whom to

i

promote. JA1736,1742,1758; JA1516,1520. The district court found as a fact that

I

"decision makers rely on subjective criteria", that "an objective system to evaluate

I

applicants is lacking" (JA8978), and that "Nucor's plant-wide promotion procedure

I

allowing primarily white managers and supervisors to rely on subjective criteria to

select candidates for promotions is evidence probative of a plant-wide employment
i practice discriminating against African-American employees." JA9102.

I

12

This was enough to establish an "entirely subjective" and "unfettered"

I

promotion process. Nucor argues that it also had "objective criteria", but it is

I

undisputed that they were applied subjectively. JA1515-1520,8989,9102.

See e.g.

Watson, 487 U.S. at 989; McReynolds, 208 F.R.D. at 332 & n. 19.

i
Nucor is also mistaken in arguing that "subjectivity merely serves to emphasize
I the multiplicity of disparate decision makers." DB at 27. The decisionmakers were

I

the five department managers, each of whom made decisions in conjunction with the

I

plant's General Manager whom the district court found "must approve a written

i

change of status form and then submit the.., form to the personnel office." JA478-

479;JA812-813 ;JA803-804.

I

III. STATISTICALLY

SIGNIFICANT

DISPARITIES

IN PROMOTIONS

I

WERE SHOWN TO EXIST

Nucor argues that the statistics showed no significant racial disparities in
I promotions, but plaintiffs' experts demonstrated the following:

I

•

Black employees were 19.24% of the promotion

applicants but only 7.94% of the promotees to the

I

jobs Nucor deemed "similarly situated" -- a

difference that was -2.54 standard deviations "from

I

what would be expected if race were neutral in the selection process." JA1162; POB at 12-13.

I

The promotion rate for black applicants was only

36.2% of the rate of white applicants for the same

I

jobs, far less than the 80% disparity recognized as

significant proof of discrimination in the

I

13

I

i

enforcement agencies' Uniform Guidelines On

i

Employee Selection Procedures. JA1162; 29 C.F.R. §1607.4D.

i

Black employees were 38.2% of the qualified

workforce for the promotions at issue, but only 7.9%

I

of the employees actually promoted to such jobs, a difference that was -4.94 standard deviations from

what would be expected if race were not a

I

significant factor in such promotions. JA1 I63-

1164,1154,1501-1513,1213-1215.

l

Plaintiffs did not rely upon these three statistics standing alone to establish a

I

common question of fact and law under Rule 23, but presented them in combination

!

with the evidence of a plant-wide culture of racial hostility, expert evidence of

excessive and unnecessary subjectivity in promotions, direct and anecdotal evidence
I of racial stereotyping, and a common plant-wide promotion procedure controlled by

I

a central plant manager and five department managers, all of whom were Caucasians

I

with unfettered subjective discretion in making promotions. POB at 5-14, 37-38;

I

Dukes v. Wal-Mart, 509 F.3d 1168, 1179-1183 (9 thCir. 2007).

A. No Precedent Is Cited For Ignoring Promotion Decisions By The

!

Same Decisionmakers Merely Because Defendants Destroyed Their

Application Records For Those Promotions

I

Nucor does not dispute that the 27 promotion decisions from 1999-2000

!

eliminated from the statistics below involved the very same decisionmakers,jobs, and

departments as the promotions that were not eliminated from the statistical analysis.

14

POB at 41,46-49. It cites no precedent, however, for eliminating relevant promotions

I

within the limitations period rather than replacingthe missing applicant data with one

!

of the alternative benchmarks approved by this Circuit and the Supreme Court. See

I

POB at 43-45. The Supreme Court has required that alternative forms of statistics be

used whenever a court's preferred form of statistics "will be difficult if not impossible
! to ascertain." Ward's Cove, 490 U.S. at 650-651.

I

Courts following Ward's Cove have held that a district court errs as a matter

I

of law when it continues to insist on a single form of statistical analysis once it has

become problematic. For example, the Second Circuit has held that "it was error for

i
the District Court to have rejected out of hand [plaintifFs] statistical analysis simply
I because it failed to conform to the preferred methodology described in Wards Cove,

I

given the Supreme Court's express endorsement in that decision of alternative

methodologies if the preferred statistics are "difficult" or "impossible" to obtain. "
i

Malave v. Potter, 320 F.3d 321,326-327 (2n_Cir. 2003); see also McClain v. Lufkin

i

Ind., Inc., 519 F.3d 264, 280 (5 tuCir. 2008); Carpenter v. TheBoeing Co., 456 F.3d
! 1183, 1197 (10 th Cir. 2006) ("Such perfection may be impossible to obtain. When

!

reliable data regarding that pool are unavailable, a different population may be used

I

if it adequately reflects the population of qualified persons."); Trout v. Lehman, 702

i

F.2d 1094, 1102 (D.C. Cir. 1983) ( "[P]laintiffs cannot legitimately be faulted for gaps

i

15

i

in their statistical analysis when the information necessary to close those gaps was

possessed only by defendants and was not furnished either to plaintiffs or to the

I

Court."); Gomesv. AVCO Corp., 816 F.Supp. 131,133 (D. Conn. 1993); Ramona L.

i

Paetzold & Steven L. Willborn, THE STATISTICS OF DISCRIMINATION, §5.04

(2002) ("In some instances, where applicant data are not available, reliable, or are
I believed to be biased, and where statistical information regarding the labor market is

I

difficult to ascertain, the general population might adequately reflect the population

ofqualifiedj ob applicants."); see generally, Bell v. Environmental Protection Agency,

232 F.3d 546, 553-554 (7thCir. 2000) ("A valid statistical analysis must encompass

the relevant labor market. * * * Our case law finds this type of labor market

appropriate for statistical analysis.").

This Circuit has also applied the next-best available benchmark as a proxy for

!

missing applicant percentages rather than just ignoring the relevant promotions

I

altogether when applicant records have been destroyed. POB at 43-44 (citing Fourth

Circuit precedent). Nucor's brief ignores such precedent except for County of
I

Fairfax. It admits that in the latter case "this Court affirmed.., use of census data

I

in place of the pool of actual applicants", but then mistakenly argues that this only

included "hiring" claims. DB at 39-40. The opening paragraph of the decision,

however, plainly states that it involved "a pattern and practice.., in recruitment,

16

!

hiring, assignments and promotions. " County of Fairfax, 629 F.2d at 936 (emphasis

added); see also id. at 938 & 942. The court specifically noted that "extrapolated

!

applicant flow data" could be used to show that "statistically significant disparities

I

existed in a wide range ofjob categories" -- a range that went well beyond just entry-

level hiring opportunities. Id. at 936-937. The Court approved such "extrapolated
i applicant flow data" based on one year's applicant records as the application

I

benchmark for three other years that had missing application records. Id.; see also

I

McClain, 519 F.3d at 279-280 (citing Fourth Circuit precedent); Moultrie v. Martin,

690 F.2d 1078, 1082 (4 th Cir. 1982) (using one year's data to extrapolate six year's

i

disparity).
! Nucor mistakenly argues that plaintiffs' expert admitted that it could not be

I

known with certainty whether any black employees actually applied for the 1999-

!

2000 promotions. What plaintiffs' expert actually said was much different-- that it

was a reasonable inference that black and white employees applied for those jobs at

the same rate in 1999-2000 that they did in the next closest time period in 2001-2003.

POB at 44 (citing evidence)) The standard text in this field states that "[w]here

1 Nucor represents that "Plaintiffs' expert admitted this assumption skews the numbers towards a finding of disparate impact" (DB at 37), but it cites only a footnote from its own expert, Dr. Welch, not the plaintiffs' experts, Drs. Bradley and Fox. DB at 37 & n.127. Even the cited page from its own expert does not say anything about extrapolated applicant flow data "skew[ing] towards a finding of
17

actual applicant flow data are incomplete or flawed, courts have declined to apply the

resulting statistical analysis" and "often look to 'potential applicant flow' data...

!

drawn from general population data or some subset of the general population data

!

(e.g. qualified labor market data)." Lindeman & Grossman, EMPLOYMENT

DISCRIMINATION LAW, pp. 2310-2311; see also id. at 2290-2291 & n.77 (4thEd.
! 2007).

I

B. Qualified Workforce Data Is Also A Second Proxy For Missing

Applicant Percentages

I

Nucor does not address the considerable precedent for establishing promotion

discrimination through "qualified workforce" benchmarks taken from the census for

I

the type of jobs that Nucor fills by promotion. Ward's Cove, 490 U.S. at 650-651;

I

BloomsburgMills, 773 F.2d at 568;American National Bank, 652 F.2d at 1195. The

Supreme Court has held in the context of promotions that "[t]he 'proper comparison
I is between the racial composition of the at-issue jobs and the racial composition of

I

the qualified population in the relevant labor market.'" Id. (quoting Hazelwood

I

School Dist. v. United States, 433 U.S. 299, 307-308 (1977)). There is "no

I

requirement.., that a statistical showing.., must always be based on analysis of the

!

characteristics of actual applicants." Dothard v. Rawlinson, 433 U.S. 321,330

disparate impact." Id.
18

(1977).

Rather than addressing such authority, Nucor argues, without citing any

precedent, that "qualified workforce" statistics are "logically" limited to hiring cases

because promotions are usually filled from within. This misunderstands Ward's

Cove. Qualified workforce statistics replicate the probable internal qualified

workforce for promotions by looking to the qualified workforce for those same

promotion level jobs in the relevant external labor market. Nucor has not disputed

I

that the "qualified workforce" data presented in this case was specifically limited to

I

the types of jobs that Nucor fills by promotion, not hiring. See POB at 43 n.10;

JA 1161-1164. Nor has it argued any reason why the qualified workforce within its
! plant would be materially different than the surrounding labor market for the same

I

jobs. The district court made no such finding, but found instead that "[t]he statistics

are based on assumptions of the numbers and skills of the African-Americans living

in the surrounding area and an estimate of the actual numbers . . . who bid on

promotions in the plant", and that such assumptions "may be reasonable and the

statistics based thereon may be relevant to prove discrimination at the plant."

JA8984-8985 (emphasis added). Assumptions are necessary with any form of

statistical analysis, including actual applicant percentages which necessarily assume

that the applicants are qualified. Nucor has not shown why "[t]he substitute

19
!

benchmark proffered by plaintiffs' experts [would not] involve fewer 'assumptions'

than the district court's choice to simply ignore the 1999-2000 promotions." POB at 45.

Ct

The 80% Rule Is A Third Proxy Once Standard Deviation Analysis

Has Been Undermined By The Elimination Of Relevant Promotions

I

The third benchmark presented as an alternative to eliminating the 1999-2000

I

promotions was the 80% rule standard of the federal enforcement agencies. 2 Nucor

argues that the 80% rule is an unacceptable measure of discrimination even when
! there are obvious flaws with a standard deviation analysis. Virtually every Circuit,

I

however, has held that the 80% rule may be used to establish racial discrimination. 3

The standard text on employment discrimination law states that"[c]ourts have applied

various tests to determine statistical significance in promotion cases, including.., the

I

2 The 80% rule is part of the federal enforcement agency's Uniform

Guidelines, which courts have held are entitled to "great deference." Griggs v. Duke

I

Power Co., 401 U.S. 424, 433-434 (1971); A lbemarle Paper Co. v. Moody, 422 U.S.

405, 431 (1975).

I

3 See e.g. Cotter v. City of Boston, 323 F.3d 160, 170 (1StCir. 2003); Bushley

v. N. Z State Cir. Serv. Comm'n, 733 F.2d 220, 225-226 (2 naCir. 1984); Wilmore v.

I

City of Wilmington, 699 F.2d, 667, 670-671 (3 rdCir. 1983); Bunch v. Ballard, 795

F.2d 384, 395 & n.12 (5 thCir. 1986); U. S. v. City of Chicago, 663 F.2d 1354, 1358

I

n.8 (7thCir. 1981); FirefightersInst. v. City of St. Louis. 616 F.2d 350, 356-357 (8 th Cir. 1980); Stout v. Potter, 276 F.3d 1118, 1124 (9 th Cir. 2002); Police Officers v.

City of Columbus, 644 F.Supp. 393,432 n.13 (S.D. Ohio 1985), affd 916 F.2d 1092

(6 thCir. 1990); Woodwardv. Lehman, 530 F.Supp. 139, 144-145 (D.S.C. 1982). See
i
generally, Connecticut v. Teal, 457 U.S. 440 (1982).

I

20

four-fifths or 80% rule." Lindeman & Orossman, EMPLOYMENT

DISCRIMINATION LAW, pp. 1160-1161,2289 (4 thed. 2007); Fickling v. New York
i

!

StateDept. of Cir. Serv., 909 F.Supp. 185, 188 (S.D.N.Y. 1995) (describing that 80%

!

rule as a "widely accepted benchmark for assessing disparate impact").

The district court noted that "the 80% rule is an accepted method to measure

I statistical results", but that it preferred standard deviation analysis as a"more reliable

method." JA8985. That preference, however, was based on an error or law. Once

!

the standard deviation analysis was compromised by the elimination of relevant

I

promotions which artificially reduced significance from -2.54 to -1.47 deviations, the

district court erred by continuing to exclude the 80% rule as an alternative statistical
! benchmark. Taken together with the results of the "extrapolated applicant flow"

I

benchmark approved in County of Fairfax and the qualified workforce statistic

!

approved in Ward's Cove and Bloomsburg Mills, the results of the 80% rule analysis

!

provided sufficient statistical evidence for purposes of class certification.

Nucor is mistaken in arguing that 80% rule evidence is "inadmissible in this
I Circuit." DB at 15, 45-46. Neither case it cites supports that proposition. Moultrie

I

did not address the 80% rule and involved a criminal grand jury pool, not a promotion

case brought under Title VII. Nucor's other case, Deshields, is an unpublished

opinion that is "disfavored" under Local Rule 32.1. It only held that "violation of the

21

[80%] rule does not alone establish a prima facie case of discrimination." Deshields

!

v. Baltimore Fire Dept., 1989 WL 100664 (4 thCir. 1989) (emphasis added). Both

!

cases dealt only with the level of proof necessary to establish race discrimination on

the merits, not the use of the 80% rule to establish commonality under Rule 23. DB

at 45-46. Proof of commonality does not have to rise to the level of aprimafacie
! case on the merits. The merits of a pattern-or-practice is proven through the totality

!

of the evidence taken together, not in isolated pieces. Teamsters, 431 U.S. at 340.

The Elimination Of Relevant Promotions Arbitrarily Reduced The D. Odds For Detecting Racial Discrimination Even When It Exists

!

Nucor "concede[s] that.., a decrease in the amount of data available for

!

statistical analysis decrease a plaintiff's odds at showing statistical significance." DB

I

at 33. It mistakenly argues, however, that it is not an abuse of discretion so long as

the sample size was not "decreased to the point [it was] statistically impossible to
! detect disparate impact even if it existed." DB at 33 (defendant's emphasis).

!

"Statistical impossibility" is not the legal standard. No precedent is cited for it, and

i

an abuse of discretion can obviously occur by eliminating relevant promotions that

artificially reduces statistical significance unnecessarily. POB at 41-45.
i

Nucor concedes that statistical significance was shown at -2.54 standard
!

deviations before the 27 promotions for 1999-2000 were eliminated by the district

!

court, but could not be shown after such elimination. It is mistaken in arguing,

22

however, that the district court "never 'segmented'" the data in this way and that it

"thoroughly analyzed the full range of each of the plaintiffs' statistical analyses under

Rule 23." DB at 32. The full range of statistics could never be presented below

because of the gerrymandered data and the elimination of the 1999-2000 promotions.

JA406-409; see also JA399,400,1161,1171; 23; POB at 47-49. Plaintiffs' expert

submitted an extensive affidavit describing exactly why the elimination of promotions

in the same jobs and departments, and with the same department manager

i

decisionmaker, was "inadequate to allow proper statistics to be computed." JA399-

I

400, 406-409,1161,1171,1501-1508.

E. Exclusion Of Post-Lawsuit Promotions Is Not "Disingenuous"
! Plaintiffs' experts carefully explained why pre-lawsuit promotions are reliable

!

and post-lawsuit promotions are not. JA1505. The district court credited that

evidence, finding that "the most reliable statistics are those gathered from promotion

data occurring before this action was filed in December 2003." JA8986 at n.4. It is

non-sensical for Nucor to argue that the suspect post-lawsuit promotions should be
! included to make up for the district court's exclusion of the pre-lawsuit promotions.

!

That compounds the problem by eliminating the most reliable pre-suit promotions and

!

substituting the unreliable promotions from the post-suit time period. As plaintiffs

have shown, the promotions in 1999-2000 were "the most probative of racial

23

I

I discrimination because they were the only ones that occurred before EEOC Charges

!

began to be filed in early 2001 ." POB at 45. Nucor does not contest this point except

!

to say it was not argued below, which is obviously untrue.

!

Contrary to Nucor's argument, exclusion of post-lawsuit promotions does not

indicate any belief that race discrimination ended at that time, but only that the
! gerrymandered promotions produced from the post-lawsuit period showed a

I

suspiciously different pattern than the pre-lawsuit promotions. JA399-400,406-

!

409,1161,1171. 4

FI

Rule 23(0 Permits Interlocutory Review Because The Error Of

l

Allowing Nucor To Gerrymander The Promotion Data Caused

Class Certification To Be Denied
!

The district court's denial of class certification was largely based on the small

number of promotions that Nucor produced, and the resulting lack of statistical

!

significance. This was not just a discovery issue, but a ground for denial of class

!

certification. The district court's finding that "[t]he data demonstrates a disparity

resulting in 1.48 standard deviations" is the direct product of the small number of

!

4 The plaintiffs in a separate case against Nucor's Arkansas plant did not

exclude post-lawsuit promotions because, unlike the plant here, they did not appear

!

to have been proportionally different from the pattern of pre-suit promotions. JA1501-1508. More importantly, Nucor was not allowed to gerrymander the

Arkansas promotions based on its own view of which promotions it thought were

!

"similarly situated." Unlike here, all promotions in the liability period were ordered

produced in Arkansas.

I

24

!

! promotions that Nucor was allowed to handpick for production. POB at 41-50.

!

Rulings that become the basis for denial of class certification, or are otherwise

!

embedded in the denial of class certification, are appealable under F. R. Cir. P. 23(f).

!

See e.g., In ReLorazepam, 289 F.3d 98, 108 (D.C. Cir. 2002).

Nucor does not dispute that it withheld several hundred promotions by the
! same decisionmakers in the same jobs and departments as the promotions it elected

!

to produce for statistical analysis. POB at 46-50. It argues instead that this was

!

permissible underArdrey v. UPS, 798 F.2d 679, 682 (4thCir. 1986). Ardrey, however,

!

addressed only discovery for individual claims, not discovery or statistics for class

certification. Class certification was bifurcated and then abandoned before appeal in
! Ardrey. Id.; see POB at 50. Nothing in Ardrey approves production of onlypart of

!

the promotions made by a given decisionmaker.

I

Nucor has still not explained the basis upon which it choose just a few of the

!

hundreds of promotions made by the same decisionmakers as the promotions it

I

produced. POB at 46-50. Plaintiffs' experts showed that Nucor was allowed to pick

and choose promotions "without any valid basis for distinguishing between the

!

promotions produced and those withheld." POB at 47. Nucor's brief in this appeal

still provides no answer to this riddle. Tbe district court found that the named
i

plaintiffs were denied promotions in four of the production departments, (JA477-

25

478,486-488), but still allowed Nucor to withhold several hundred promotion

decisions made by those department managers. JA399-400,406-409,1161,1171, 1501-1508.

G. Plaintiffs Did Not Waive Appeal Of The Gerrymandered Data

Plaintiffs did not waive appeal of the small number of promotions considered

by the district court in finding a lack of statistical significance. Nucor selectively

misquotes plaintiffs' counsel's statement at the class certification hearing, making it

I

appear that the only thing said was "[w]e don't think we need more discovery at the

!

moment", when in fact such counsel argued that the plaintiffs had been forced to go

forward with the truncated data when the district court repeatedly denied production
! of all the promotions by the same decisionmakers:

I

Mr. Wiggins: * * * We, in fact, came back to you to

get more discovery, and you said you wanted to stick to the

!

similarly situated for the moment. That's three or four

months ago.

!

* * * [W]e then had to go forward and prove

similarity through the evidence we had. And we think

!

we've done that.

We think that that initial definition of similarly

!

situated has proved to be much too narrow. What we now know is that the same decision makers for those jobs were

the decision makers for the other jobs in those same

!

departments.

!

So we believe that the initial definition has been shown to be too narrow. And that is based on that similarly

26

!

i situated group alone.

And we are asking the Court to include all the jobs that are under those same decision makers and those same

departments, and not limit it to just this subset that the

!

defendant carved out unilaterally at the discovery stage.

We don't think we need more discovery at the moment, we

!

are willing to stand on the record. But we do think we are allowed to show the pattern for those other jobs through

the qualified workforce statistic, and the EEO 1 statistic

that you have had in your initial order. And our experts

took that order and said, Okay, the Judge said do X, Y, Z

I

and they went and did it. And when they did it, both for the similarly situated

group and for the larger group of the department as a

!

whole, they got a significant pattern that cannot be

explained through qualifications; it can only be explained

by race.

We have regressed out all the other factors that could

be causing this. And we believe that that establishes that

!

we have a common issue of fact of law, at least to take [to]

trial.

!

JA9015:4-6,9015:19-25,9017:1-23.

Even that limited statement came only after

!

plaintiffs had been repeatedly denied access to all the promotions by the same

!

department managers.

JAB9-106,233-256,397,475-488,489-496,557-576,589-

612,9059-9080,9091-9098,9107-9142.

Such statement also came well before the

I

court had disclosed that it would further reduce the number of promotions by

! eliminating the 27 promotions occurring in 1999-2000, causing the number of

!

standard deviations to fall from -2.54 to -1.47. Id. Plaintiffs immediately repeated

that if relevant promotions were to be excluded for any reason, including the fact that

27

I

! Nucor had destroyed its application records for 1999-2000, then the court should not

!

have allowed it to handpick only a handful of promotions to produce. JA9059-

!

9080;9091-9098.

!

H. The District Court Went Too Far Into The Merits By Choosing Between Statistical Alternatives That Were Each Found To Be

"Reasonable"

Plaintiffs do not contend that a district court must blindly accept their statistics

i

as true, but only that once they are found to be "reasonable", as they were below, the

Court cannot go further to usurp the jury's role in choosing between the parties'

competing statistics or the weight to be accorded to each side's evidence. Weighing the evidence goes too far into the merits -- further than necessary to decide if there is a common triable issue of fact.

IV. NO CONFLICT HAS BEEN ALLEGED OR FOUND FOR THE

HOSTILE ENVIRONMENT

CLASS AND ONLY A FEIGNED

!

CONFLICT AFFECTING TWO OF SEVEN NAMED PLAINTIFFS HAS

BEEN ALLEGED FOR THE PROMOTION CLASS

I No conflict or inadequate representation has been alleged for the hostile

!

environment class. Nucor's adequacy of representation argument is limited to the

I

promotion class. Even that alleged conflict is limited to just two class members and

I

two of the seven representatives of such class -- Alvin Simmons and Jason Guy. DB

at 53; JA289-297. Nucor does not allege that any of the other five representatives
l ever bid on the same promotion as did a putative class member. The face of the bid

!

28

I

sheets show no such potential overlapping or conflicting promotion bids. JA 261-

!

335.

!

On fifteen occasions, the named plaintiffs were the only African-American

bidder, and so had no overlapping bid with any unnamed class members.

,

JA287,301,303,305,307,309,311,313,315,317,319,321,325-333.

Jacob Ravenell and

I

Sheldon Singletary never bid on the same promotion as another class member

I

(JA319,321,1047-1058); Ramon Roane did not bid against another African-American

i

in three of his four promotion bids, and never bid against any unnamed class member

I

(JA299,305,323); Gerald White bid against no other African-American in two of his

three bids, and only bid against a named plaintiff, Roane, on the third one
! (JA303,323-325); Guy had five promotion bids in which no other African-Americans

I

had overlapping bids and two that overlapped with two class members

(JA301,309,311,313,317); and Simmons had three bids with no African-American

bidders and one that overlapped with Mike Blanco. (JA287,307,315). Thus, the

entire universe of class members involved in the alleged conflict was two class

members and two named plaintiffs -- 4% of a class of 100. The two promotions that

potentially overlap for these four individuals were in entry-level jobs that are not

likely to be a part of any Stage II proceeding in this case. If such an overlapping claim

arose at Stage II, the district court would simply exercise its supervisory

29

responsibility to manage the potential conflict or appoint the two class members an attorney of their own for the two promotions that potentially overlap. See Pettway v. American CastIron Pipe Co., 576 F.2d 1157, 1177-1178 (5th Cir. 1978).
Nucor cites no precedent for finding inadequate representation when two promotion candidates bid on the same job. It cites only two cases involving a hiring class represented by existing employees having only a promotion claim -- Falcon and General Telephone v. EEOC. See POB at 57. Neither case, however, considered disallowing a promotion plaintiff to represent a promotion class, which is a much different thing. Disallowing a promotion plaintiff from representing a hiring class still leaves that class with potential representation by one of its own members who was not hired, but disallowing promotion plaintiffs from representing their own promotion class leaves such a class with no class representatives at all. No court has ever gone that far.
STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested and necessary. The issues in this appeal require oral argument because: (1)the appeal is not frivolous; (2) the dispositive set of issues presented have not been recently authoritatively decided; (3) the facts and legal arguments cannot be adequately presented in the briefs and record; and (4) the decisional process will be significantly aided by oral argument.
30

!

I Respectfully submitted this 28_ day of July, 2Q0_.

I

Robert L. Wiggins, Jr., ASB-1754-G-63R

I

Ann K. Wiggins, ASB-7006-I-61A

Susan G. Donahue ASB-4525-A-48-D

I

Wiggins, Childs, Quinn & Pantazis, LLC The Kress Building, 301 194 Street North

Birmingham, Alabama 35203

I

205-314-0500

205-254-1500 (facsimile)

I

Armand Definer, Bar No. 502

D. Peters Wilborn, Jr., Bar No. 760

i

Definer, Altman& Wilborn

575 King Street

i

P.O. Box 600 Charleston, S.C. 29402

(843) 723-9804

I

(843) 723-7446 (facsimile)

I

Attorneys for Plaintiffs-Appellants

31_

I UNITED STATES COURT OF APPEALS

I

FOR THE FOURTH CIRCUIT

NO. 08-1247

Brown, eL al. v. Nucor, et al.

I CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)

i

° This reply brief complies with the type-volume limitation of Fed. R. App. P. 32

(a) (7)(B) (ii) because:

!

this brief contains 6,99z words, excluding parts of this

I

brief exempted by Fed. R. App. 32(a)(7)(B)(ii).

, This reply brief complies with the typeface requirements of Fed. R. App. P.

!

32(a)(5) and the type style requirement of Fed. R. App. P. 32(a)(6) because:

I

this brief has been prepared in a proportionally spaced typeface using WordPerfect 8 in 14 point Times New

Roman.

I

I

Robert L. Wiggins, Jr. Attorney for Plaintiffs-Appellants

D_e: July 28, 2008

3,2
/ /

I

CERTIFICATE OF SERVICE

I

I certify that on July 28, 2008, I filed with the Clerk's Office of the United States

Court of Appeals for the Fourth Circuit the required copies of the this reply of

I

Appellants, and further certify that I mailed this same date the required copies to

opposing counsel.

I

!

OPPOSING COUNSEL:

OF COUNSEL

I

to:

E. Duncan Getchell, Jr.

!

Erin M. Sine McGuireWoods LLP

One James Center

!

901 East Cary Street

Richmond, VA 23219

I

Telephone Number: 804/775-4319 Facsimile: 804/775-1061

Cary A. Farris Marcus Roland Patton ALANIZ & SCHRAEDER, LLP 2500 City West Blvd., Suite 1000 Houston, TX 77042 Telephone Number: 281/833-2200 Facsimile: 281/833-2240

John S. Wilkerson, III Nosizi Ralephata Attorneys at Law TURNER, PADGET, GRAHAM & LANEY, P.A. PO Box 22129, 40 Calhoun Street, Suite 200 Charleston, South Carolina 29401 Telephone Number: 843/576-2800 Facsimile: 843/577-3369

I !

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