i

ORIGINAL

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

FILED IN CLERK'S OFFICE U .S .D .C . - Atlanta 9 ~U-& ' MAY 1 0 2000

MELVIN REIU, VONDA MOORE, JOHNNIE WEST and CLARENCE W SINKFIELD, individually and on behalf of all others similarly situated,
1 Plaintiffs,

D THOMAS, Gwk

10

Oak

VS . LOCKHEED MARTIN AERONAUTICS COMPANY, formerly d/b/a LOCKHEED MARTIN AERONAUTICAL SYSTEMS,
and LOCKHEED MARTIN CORPORATION,

Civi No .

Action File

_

-11 82

COMPLAINT-CLASS ACTIQAb .k.j,

JURY TRIAL DEMANDED

Defendants .

COMPLAINT NATURE OF THE CASE

1 . This is a class action brought by four individual plaintiffs

on behalf of themselves and other similarly situated

individuals against Lockheed Martin Aeronautics Company,

formerly d/b/a Lockheed Martin Aeronautical Systems, and

Lockheed Martin Corporation (collectively, "Lockheed") .

Plaintiffs seek declaratory and injunctive relief and monetary

damages to redress Lockheed's deprivation of the rights of Plaintiffs and the Class members under 42 U .S .C . § 1981 and

Title VII of the Civil Rights Act, 42 U .S .C . §§ 2000e, et

seq, as amended by the Civil Rights Act of 1991, 92 U .S .C . 3

1981a .

~Sol~"'1%l' V ~8S {PSttliG "u"W
1

l
2 . Plaintiffs are African-American employees who have suffered racially discriminatory employment policies and practices at the hands of Lockheed . Plaintiffs are qualified persons who have been denied the opportunity for promotion ; who have been subjected to disparate promotional practices, job training, job assignments, evaluation procedures, and other unlaw discrimination ; who have been subjected to a hostile work environment ; who have been subjected to disparate salaries and other pay discrimination ; and/or who have been retaliated against because of Lockheed's policy and continuing pattern and practice of racial discrimination .
3 . Plaintiffs have been systematically excluded from the promotional process by, among other things, the subjective decision-making of a predominantly Caucasian managerial staff that gives preferential treatment to less qualified Caucasians ; by not being provided with necessary opportunities for job assignments, wages, or training ; and by being subjected to a hostile work environment .
9 . Lockheed has consistently ignored Plaintiffs' complaints about these unlawful work conditions, in spite of the ensuing EEOC investigation which has determined that African-American employees of Defendant Lockheed Martin Aeronautics Company are subjected to discriminatory employment practices on a classwide basis .
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5 . The discrimination experienced by Plaintiffs and the Class

Members is a statistically significant pattern of

discrimination unexplainable by chance .

JURISDICTION AND VENUE

6 . This Court has jurisdiction pursuant to 28 U .S .C . §§ 1331, 1393 and 1367 ; 42 U .S .C . § 1981 ; and 42 U .S .C . § 2000e5 (f) (3) .

7 . Venue lies in this district pursuant to 28 U .S .C . § 1391 .

THE PARTIES

8.

Plaintiff Melvin R . Reid ("Mr . Reid") resides in Atlanta,

Fulton County, Georgia . Mr . Reid is an employee of Defendant

Lockheed, located at Marietta, Cobb County, Georgia .

9.

Plaintiff Vonda Searcy Moore ("Ms . Moore") resides in

Norcross, Gwinnett County, Georgia . Ms . Moore is an employee of Defendant Lockheed, located at Marietta, Cobb County,

Georgia .

10 . Plaintiff Johnnie West ("Mr . West") resides in Powder Springs,

Cobb County, Georgia . Mr . West was an employee of Defendant

Lockheed, located at Marietta, Cobb County, Georgia, until on

or about February 13, 1998 . 11 . Plaintiff Clarence W . Sinkfield ("Mr . Sinkfield") resides in

Stone Mountain, Dekalb County, Georgia . Mr . Sinkfield is an

employee of Defendant Lockheed, located at Marietta, Cobb

County, Georgia .

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12 . Defendant, Lockheed Martin Aeronautics Company (hereinafter "LMAS"), formerly d/b/a Lockheed Martin Aeronautical Systems, a division of Lockheed Martin Corporation, is presently and at all relevant times has continuously been a corporation doing business in Georgia, Texas, and Arizona, among other places . Unless stated otherwise, Defendant LMAS includes all of its successors, predecessors, affiliates, and subsidiaries . Defendant LMAS is engaged in interstate commerce and, on information and belief, employs approximately 28,000 persons in the United States, primarily providing aircraft, aerospace and related technology, and other products . Defendant LMAS and the remaining defendant are liable jointly and severally for all the violations alleged herein with regard to Plaintiffs and Class members employed at facilities owned or operated in whole or in part by LMAS . Defendant LMAS may be served by serving Charles T . Burbage, Site General Manager, at 86 South Cobb Drive, Marietta, Georgia 30063 .
13 . Defendant Lockheed Martin Corporation (hereinafter "LM") is presently and at all relevant times has continuously been a corporation doing business in multiple states, including, but not limited to, Georgia, and is incorporated in Maryland . Unless stated otherwise, Defendant LM includes all of its successors, predecessors, affiliates, and subsidiaries . Defendant LM is the parent company of LMAS . Defendant LM is
4
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engaged in interstate commerce and, on information and belief,
employs approximately 149,000 persons, primarily providing
aircraft, aerospace and related technology, and other
products . Defendant LM and the remaining defendants are
liable jointly and severally for all the violations alleged
herein with regard to Plaintiffs and Class members employed at
facilities owned or operated in whole or in part by LM .
Defendant LM may be served by serving its registered agent for
service of process, Corporation Service Company at 4845 Jimmy
Carter Boulevard, Norcross, Georgia 30093 .
CLASS ALLEGATIONS
19 . Paragraphs 1 through 13, supra, are incorporated herein by
reference .
15 . Plaintiffs sue on their own behalf and on behalf of a class of
persons pursuant to the Federal Rules of Civil Procedure
23(a), (b)(2), and (b)(3) .
16 . The named Plaintiffs bring this case on behalf of :
All African-American persons employed by Lockheed in salaried positions in the United States at any time from 1996 to the present, who are subject to Lockheed's employment and human resources policies and practices, including, but not limited to, current or former salaried employees of Defendants LM and LMAS, and who have been or will be denied promotion, subjected to different terms and conditions of employment, subjected to a hostile work environment, and/or retaliated against because of the Defendants' pattern and practice of discriminating against African-Americans on the basis of their race (the 'Class" ) . 17 . Plaintiffs seek injunctive relief, primarily, and compensatory
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damages, secondarily, on behalf of the Class for continuing violations of the law by Lockheed for the past four or more years . 18 . Upon information and belief, Plaintiffs estimate that there are more than 700 Class members, residing in Georgia and California, among other places . The Class is so numerous and geographically distributed that joinder of all members is impracticable . 19 . Questions of fact and law common to the Class include, primarily, those set forth below in subparts (a) through (d) and, secondarily, (e) through (t) :
a . Whether Defendants' actions violated federal civil rights laws, in particular 42 U .S .C . § 1981 and Title VII, as amended ;
b . Whether Defendants' actions constituted disparate treatment and/or disparate impact
c . Whether Defendants knew or should have known that African-Americans were not obtaining the promotions and job opportunities obtained by less qualified Caucasians ;
d . Whether Defendants failed to take reasonable or legally required action to correct the "race bias" in their employment practices so that AfricanAmericans would have the same employment
6

opportunities as Caucasians ;

e.

Whether Defendants have a continuing pattern and

practice of illegal discrimination based on race ;

f . Whether Defendants have intentionally engaged in this discrimination ;

g.

Whether

Defendants

have

engaged

in

this

discrimination with malice and/or reckless

indifference to the federal rights of Plaintiffs

and the Class ; h . Whether Plaintiffs and the Class have been

discriminated against by being denied promotions on

the basis of their race ;

i . Whether Defendants maintain written and/or unwritten

policies

and/or practices

for

determining

promotions that discriminate against Plaintiffs and

the Class on the basis of their race ;

j . Whether there are statistically significant

disparities between the promotions awarded to African-American employees and the promotions

awarded to similarly-situated Caucasian employees, sufficient to permit an inference of intentional

discrimination ;

k.

Whether Plaintiffs and the Class have been

discriminated against by being subjected to

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different terms and conditions of employment,

including training and assignments, on the basis of

their race ;

1 . Whether Defendants maintain written and/or unwritten

policies

and/or

practices

for

determining

compensation that discriminates against Plaintiffs

and the Class on the basis of their race ;

m . Whether there are statistically significant

disparities between the compensation awarded to

African-American employees and the compensation

awarded to similarly situated Caucasian employees

sufficient to permit an inference of intentional

discrimination ; n . Whether Plaintiffs and the Class have been

discriminated against by being subjected to a

hostile work environment on the basis of their

race) o . Whether Plaintiffs and the Class have been
discriminated against by being subjected to

retaliation on the basis of their having opposed

Defendants' discriminatory practices ;

p . Whether Defendants have made misrepresentations

regarding their employment policies to Plaintiffs

and the Class ;

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q . Whether Defendants have breached their employment

agreements with Plaintiffs and the Class ;

r . Whether Defendants have breached their contracts

with the United States government, of which

Plaintiffs and the Class are third-party

beneficiaries)

s . Whether Plaintiffs and the Class have suffered

damages caused by Defendants ; and

t . Whether injunctive relief is appropriate as a remedy

for Defendants' past and future discrimination .

20 . Plaintiffs' claims are typical of the claims of the Class .

For example, Ms . Moore, Mr . Reid, and Mr . West, inter alia,

allege discrimination in compensation ; Mr . Reid, Mr .

Sinkfield, and Mr . West, inter alia, allege discrimination in

promotions ; Ms . Moore, Mr .West, and Mr . Reid, inter alia,

allege discrimination in the terms and conditions of

employment, including, but not limited to, training and

assignments ; Mr . Sinkfield also alleges discrimination in the

terms and conditions of employment .

Ms . Moore, Mr .

Sinkfield, Mr . Reid, and Mr . West, inter alia, allege a

racially hostile work environment ; Mr . Moore, Mr . Sinkfield,

and Mr . Reid, inter alia, allege retaliation ; Ms . Moore, Mr .

Sinkfield, and Mr . Reid allege racially based evaluations .

21 . Plaintiffs and their counsel will fairly and adequately

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protect the interests of the Class . 22 . Defendants have acted/refused to act and are acting/refusing
to act on grounds generally applicable to the Class, thereby making final injunctive or corresponding declaratory relief appropriate with respect to the Class as a whole . 23 . The common questions of fact and law, as noted above in Paragraph 19, predominate over questions affecting only individual members . 24 . A class action is superior to other available methods for the fair and efficient adjudication of this controversy . 25 . There are no unusual difficulties likely to be encountered in the management of this litigation as a class action . 26 . Notice to the Class may be accomplished inexpensively, efficiently, and in a manner best designed to protect the due process rights of all Class members by means of written notices supplied through Defendants' system of communication with their employees .
FACTUAL ALLEGATIONS 27 . Paragraphs 1 through 26, supra, are incorporated herein by
reference . A. Lockheed Defendants
28 . Based upon information and belief, less than 10% of the total work force employed by Lockheed is African-American . For instance, and upon information and belief, at LMAS in Marietta, Georgia as of the end of 1999, approximately 3615
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persons were employed, of which 355 were African-American .

Defendants have perpetrated a company-wide, continuing pattern

and practice of illegal discrimination against their African-

American workers because of their race .

Furthermore,

Defendants have engaged in this discrimination intentionally

and with malice and/or reckless indifference to the federal rights of their workers .

29 . African-Americans who work for Defendants find it much more difficult to receive promotions than their similarly situated

Caucasian co-workers . Company-wide, African-Americans are kept at lower-level jobs longer than other, non-AfricanAmerican similarly situated workers, in spite of the fact that African-American employees are qualified and apply for advancement . This phenomenon is so significant that it cannot be explained merely by chance . The experiences of Plaintiffs being denied promotions based on the subjective decision-

making of a predominately Caucasian managerial staff, as

detailed below, are typical . African-Americans watch as nonAfrican-American worker after worker is promoted ahead of them . When African-American workers complain to Defendants

that promotions are based on race, not on job-related

criteria, Defendants do not provide satisfactory explanations . This disparate treatment is caused by Defendants' continuing

pattern and practice of discrimination based on race .

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30 . African-Americans employed with Defendants also find it much

more difficult to receive the training necessary to compete

for promotions than their similarly situated Caucasian

coworkers, thereby preventing African-Americans from advancing

within the company .

Instead, training opportunities are

awarded to Caucasian workers by the subjective decision-

making of a predominately Caucasian managerial staff . The

experiences of Plaintiffs are typical .

This disparate

treatment is caused by Defendants' continuing pattern and

practice of discrimination based on race .

31 . African-Americans employed with Defendants also find

themselves disparately compensated as compared to Caucasians .

Defendants determine compensation of salaried employees by

utilizing uniform job titles, a uniform pay grade system and

employing a variety of factors to establish the range of pay

within the salary . Subjective factors evaluated and measured

by a predominately Caucasian managerial staff ostensibly

include education, experience, performance, attendance,

comparable peer group rates, and "market analysis in trends ."

However, under this system, many salaried African-American

employees find themselves earning less than their Caucasian

counterparts . This disparate treatment is caused by

Defendants' continuing pattern and practice of discrimination

based on race .

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32 . African-Americans employed with Defendants are also subjected

to a racially hostile work environment at Defendants'

facilities . The experiences of Plaintiffs are typical .

African-Americans are forced to listen to racial slurs, are excluded from full participation in the workplace, are treated with disrespect, unnecessarily monitored, and are exposed to other intimidating tactics . Because the supervisors tacitly

or openly approve of such treatment, there is little that can

be done by an individual African-American to escape such

harassment . This disparate treatment is caused by Defendants'

continuing pattern and practice of discrimination based on

race .

33 . Reports to Defendants of disparate treatment as regards

promotion, training, compensation, and hostile work

environment go unheeded . Often, such reports are simply

ignored or responded to with a form denial . When Defendants

do choose to engage in an "investigation," it is done in a

cursory fashion . Some African-Americans who raise concerns or

file complaints about discrimination are retaliated against by

Defendants . Remedial measures allegedly pursued by Defendants

are nonexistent or ineffective .

In spite of official

statements that Defendants support racial diversity, the

message clearly communicated to workers is that racial

discrimination against African-Americans is standard operating

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procedure and will not generally result in disciplinary employment action . Moreover, African-Americans know that they are not perceived by Defendants as persons who are worth training or promoting within Lockheed . The process used to select employees for available positions is subjective . Lockheed handpicks Caucasian candidates for available positions, targets Caucasian individuals for promotions, and, where job postings are utilized, consistently uses them to fill positions with non-African-Americans . Lockheed even writes job postings to match a particular individual's resume or "qualifications" to ensure the selection of that individual . Lockheed also waives qualification criteria in order to select Caucasian applicants for available positions . Moreover, Lockheed utilizes glass ceilings and glass walls to prevent African-Americans from obtaining certain positions . 34 . Senior management at Lockheed is well aware that there is a company-wide, continuing pattern and practice of racial discrimination . 35 . Findings by the EEOC in this matter reflect the EEOC's investigation and subsequent determination that Defendant T.MAS discriminates on the basis of race, has disparate personnel practices for African-Americans, permits a pervasive and company-wide racially hostile work environment, and retaliates against African-American employees and those who complain
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about racial discrimination .

36 . Defendants' continuing pattern and practice of illegal

employment discrimination has persisted for decades and

continues to the present date, both as regards Plaintiffs and

the Class .

37 . Defendants have made representations to Plaintiffs and the

Class regarding Defendants' employment policies . They have

promulgated affirmative action plans, equal opportunity

policies, and other policies stating that employees are to be

promoted on the basis of factors such as ability, experience,

and past contribution . However, their actual practices have

often been completely different than those representations,

resulting in Plaintiffs and the Class not being treated

according to Defendants' stated policies .

38 . Defendants have entered into numerous contracts with the

United States government . Pursuant to Executive Order No .

11246, all government contracts, including those with

Defendants, are required to and do include the following

terms :

The contractor will not discriminate against any

employee or applicant for employment because of

race, color, religion sex, or national origin .

The contractor will take affirmative action to

ensure that applicants are employed, and that

employees are treated equally during employment,

without regard to their race, color, religion,

sex, or national origin .

Such action shall

include, but not be limited to the following :

Employment, upgrading, demotion, or transfer,

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recruitment or recruitment advertising ; termination ; rates of pay or other compensation ; and selection for including apprenticeship .

layoff or forms of training,

See 41 C .F .R . § 60-1 .4(a)(1) . Regardless of this express

promise, Defendants have discriminated against Plaintiffs and

the Class and have treated them differently because of their

race .

39 . The work environment Defendants maintain at Lockheed is

rampant with hostility toward African-Americans . Specific

examples include, but are not limited to, racial slurs,

unnecessary monitoring, and verbal harassment .

40 . Defendants' continuing pattern and practice of racial

discrimination has injured Plaintiffs and the Class in various

ways . Defendants' failure to promote Plaintiffs, subjecting

them to different terms and conditions of employment,

subjecting them to a hostile work environment, and subjecting them to retaliation has, at the very least, cost Plaintiffs

significant additional salary and benefits to which they are

entitled . Plaintiffs' injuries, however, are not limited to

items appearing on a pay stub . The racial discrimination practiced by Defendants has stigmatized Plaintiffs and the Class, devaluing Plaintiffs by telling them they are not worth as much as Caucasians . This has caused Plaintiffs and the Class an immeasurable amount of harm, including physical and emotional pain and suffering .

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B . Named Plaintiffs/Class Representatives

41 . All Class representatives are members of the African-American

race .

4~ . The necessary administrative remedies under federal law have

been exhausted for Plaintiffs and the Class . Moreover, the

EEOC has issued the necessary Right to Sue Letters on May 9,

2000 .

93 . Mr . Reid : Mr . Reid, a current employee of Lockheed, is a

Product Support Analyst III . During his thirty-seven year

tenure at Lockheed, he has been passed over for promotional opportunities in favor of Caucasian employees with fewer

qualifications, paid less than similarly situated Caucasian

employees, given racially based evaluations, given less

favorable job assignments than those assigned to Caucasian

employees, denied training opportunities given to Caucasian

employees, and harassed, intimidated, and retaliated against

for engaging in protected Title VII activities .

This

disparate treatment is a result of Lockheed's policy and/or

continuing pattern and practice of discriminating against its

African-American employees . For example, on or about December

1997, Mr . Reid did not receive a merit bonus but a similarly situated Caucasian was awarded a merit bonus . Also, on or

about December 19, 1997, four similarly situated Caucasians in

Mr . Reid's department received promotions and corresponding

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pay raises, but Mr . Reid did not . Additionally, Mr . Reid was

subjected to a racially hostile work environment .

His

suggestions offered on or about April 1998 for improving work

processes were dismissed as an attempt to evade work .

Similarly, Mr . Reid's money-saving suggestions were never

acknowledged by his Caucasian supervisors . After he filed his

initial Charge of Discrimination with the EEOC, he was further

harassed, intimidated, and retaliated against by his

supervisors, including, but not limited to, being given a low

performance evaluation which did not reflect his work

performance . As a result of his experiences at Lockheed, Mr .

Reid has sought counseling for emotional distress .

49 . Ms . Moore : Ms . Moore, a current employee of Lockheed, holds

an Electrical Engineering degree from Tuskegee Institute . She

has been employed by Lockheed for approximately nine years .

Prior to her employment with Lockheed, she worked as a

Project Engineer for Hughes in LaGrange, Georgia . On or about

December 9, 1998, Ms . Moore, a Product Support Engineer for

Lockheed, did not receive her correct pay according to her

salary grade level pay . Additionally, Ms . Moore was informed

by her supervisor that her pay was in the bottom 25% of the Lockheed Martin Product Support pay scale for engineers . Ms . Moore believes these pay discrepancies to be the result of racial animus . Ms . Moore also was denied the same training

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opportunities offered to male Caucasians . She was told there was no budget for job-specific, detailed, systems training ;

nevertheless, Caucasians were sent away for days at a time for

training related specifically to their systems . Ms . Moore

also was not allowed to attend various vendor training

seminars .

She has also been subjected to a severe and

pervasive, racially hostile work environment . At various

times throughout her employment, including the present, Ms .

Moore has been constantly watched and monitored, even though

her Caucasian co-workers have not been subjected to this kind

of intense, derogatory scrutiny . Her supervisor has given her

racially based evaluations, which were not based upon her

actual performance during the review period covered in the

evaluation . Finally, since Ms . Moore filed her initial Charge

of Discrimination with the EEOC, Defendants have retaliated

against her by continuing to refuse to correct her pay

discrepancies, by laying her off for quite some time without any offer of full-time or part-time placement in other

departments, and by continuing to harass and intimidate her .

On or about February 14, 2000, Ms . Moore was rehired by

Lockheed .

She was not placed back in her previous job

assignment on the C-130 J, which had included a corporate credit card and travel to Italy . Instead, she, was placed in a less desirable assignment with much less responsibility, an

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assignment which was outside her primary areas of expertise .

95 . Mr . West : A former employee of Lockheed, Mr . West worked as

a Facilities Engineer, Sr . for Lockheed . Mr . West, who worked for Lockheed for approximately six years, has a Bachelor of Science degree in Mechanical Engineering, a Master of Science

degree in General Administration, and is currently pursuing a

Master of Science degree in Engineering Applications . Prior

to his employment with Lockheed, Mr . West was an officer in

the Air Force for twelve years . During his tenure with the

Air Force, Mr . West approved the projects and financing for

Lockheed and three other plants .

During his tenure at

Lockheed, Mr . West was denied promotional opportunities

provided to similarly situated Caucasians, he was paid less

than similarly situated Caucasians, and he was given less

favorable job assignments than similarly situated Caucasians .

Mr . West was denied training provided to Caucasian employees

and was subjected to a hostile work environment . He was not given any credit or recognition by Lockheed for his work on an

approximately twenty-two million dollar project . A Caucasian

employee of Lockheed was given credit and recognition, despite the fact that the project had been managed by Mr . West .

Shortly before he was constructively discharged from Lockheed, Mr . West was asked to relinquish his driving pass even though Caucasian employees were not asked to relinquish their pass .

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The driving pass was needed by Mr . West in order to travel beyond the main gate and to access other areas of the plant .
As a part of his duties, Mr . West was charged with inspecting projects beyond the gate and showing personnel visiting the

plant areas beyond the gate .

46 . Mr . Sinkfield :

Mr . Sinkfield, a current employee of

Lockheed, has been employed with Lockheed for approximately

thirty-five years . Mr . Sinkfield has four years of college

education and has attended numerous training courses at

Lockheed, obtaining various certifications based upon that

training . Despite his qualifications and experience, Mr .

Sinkfield has never been promoted to the position of manager

and has repeatedly been denied that position . On June 15,

1999, he was removed from his position as group supervisor

(assistant manager), while Caucasian employees with less

qualifications and experience remained .

He has received

racially based evaluations, endured a hostile work

environment, and been subjected to retaliation for exercising

his protected Title VII activities .

COUNT I RACIAL DISCRIMINATION IN VIOLATION OF 42 U .S .C . §§ 1981, et seq .

97 . Plaintiffs reallege and incorporate by reference each and

every allegation set forth in paragraphs 1 through 96, supra .

48 . Defendants have discriminated against Plaintiffs and members

of the Class in violation of 42 U .S .C . §§ 1981, et seq., by

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subjecting them to different treatment on the basis of their race . 99 . Defendants have engaged in this discrimination intentionally and/or with malice and/or reckless indifference to the rights of their aggrieved employees . 50 . Defendants' conduct has directly and proximately caused Plaintiffs and the Class to suffer damages, including, but not limited to, lost past and future earnings, lost benefits, emotional and physical distress, and pain and suffering, in amounts to be proven at trial . 51 . Based on Defendants' conduct as alleged above, punitive damages are appropriate and should be awarded . 52 . An award of attorneys' fees is appropriate in this case pursuant to applicable law .
COUNT II DISPARATE TREATMENT IN VIOLATION OF
TITLE VII OF THE CIVIL RIGHTS ACT 53 . Plaintiffs reallege and incorporate by reference each and
every allegation set forth in paragraphs 1 through 96, supra . 54 . Defendants have discriminated against Plaintiffs and members
of the Class in violation of Title VII of the Civil Rights Act, 42 U .S .C . §§ 2000e, et seq . , as amended, by the Civil Rights Act of 1991, 42 U .S .C . § 1981a, by subjecting them to different treatment on the basis of their race . 55 . Defendants' conduct has directly and proximately caused
22

Plaintiffs and the Class to suffer damages, including, but not limited to, lost past and future earnings, lost benefits, emotional and physical distress, and pain and suffering, in amounts to be proven at trial . 56 . Based on Defendants' conduct as alleged above, punitive damages are appropriate and should be awarded .

57 . An award of attorneys' fees is appropriate in this case pursuant to applicable law .

COUNT III DISPARATE IMPACT IN VIOLATION OF TITLE VII

58 . Plaintiffs reallege and incorporate by reference each and

every allegation set forth in paragraphs 1 through 46, supra .

59 . Defendants'

policies and practices for determining

compensation, including the use of Defendants' performance

evaluation system as a basis for determining compensation, have a disparate impact on African-American salaried

employees .

60 . Defendants' policies and practices for determining promotions

and job transfers, including the use of Defendants' performance evaluation system as a basis for determining

advancement, have a disparate impact on African-American salaried employees . 61 . Defendants' conduct has directly and proximately caused

Plaintiffs and the Class to suffer damages, including, but not

limited to, lost past and future earnings, lost benefits,

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emotional and physical distress, and pain and suffering, in amounts to be proven at trial . 62 . Based on Defendants' conduct as alleged above, punitive damages are appropriate and should be awarded . 63 . An award of attorneys' fees is appropriate in this case pursuant to applicable law .
COUNT IV BREACH OF CONTRACT 64 . Plaintiffs reallege and incorporate by reference each and every allegation set forth in paragraphs 1 through 46, supra . 65 . Defendants have entered into numerous contracts with the United States government . 66 . Defendants have materially breached their government contracts in discriminating against Plaintiffs and members of the Class . 67 . Plaintiffs and members of the Class are intended beneficiaries of the government contracts with Defendants . 68 . Defendants' breach of contract has directly and proximately caused Plaintiffs and the Class to suffer damages, including, but not limited to, lost past and future earnings, lost benefits, and consequential damages .
COUNT V INJUNCTIVE AND EQUITABLE RELIEF 69 . Plaintiffs reallege and incorporate by reference each and every allegation set forth in paragraphs 1 through 46, supra . 70 . Plaintiffs and the Class are entitled to injunctive and equitable relief restraining Defendants from illegally
24

discriminating against Plaintiffs and the Class and providing

Plaintiffs and the Class the benefits which they would have received but for the discrimination and unlawful conduct of Defendants .

71 . An award of attorneys' fees is appropriate in this case

pursuant to applicable law .

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, on their own behalf and on behalf of

the Class, pray for relief as follows : a . A declaration certifying the Class ;

b . An order declaring that Defendants are liable jointly and

severally

to Plaintiffs and the Class for their

discriminatory practices and those of their subsidiaries

and predecessors-in-interest to the extent Plaintiffs and

the Class were employed by any of them ;

c.

Injunctive and equitable relief restraining all

Defendants from illegally discriminating against

Plaintiffs and the Class and providing Plaintiffs and the

Class with the benefits which they would have received but for the illegal discrimination of the Defendants d . Judgment against the Defendants for damages, including,

but not limited to, back and front pay, lost fringe

benefits, including any lost benefits that would have

otherwise been included in the 901(k) pension plans of

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Plaintiffs and the class ; e . Compensatory damages, emotional distress damages, pain
and suffering damages, and punitive damages ; f . An award of attorneys' fees ; g . All reasonable costs and litigation expenses ; h . Prejudgment interest ; and i . Such other and further relief as this honorable Court
deems just and equitable . JURY DEMAND
Plaintiffs and the Class members request a jury trial on all questions of fact raised by their Complaint .
26

Respectfully submitted,

s ASSOC

By :

J sie A . Abel%(ander (Geb-rgZa Bar No . 008886)

1 20 Edgewood Avenue, N .E .

A lanta, Georgia 30307

elephone : (404) 614-0001

acsimile :

(404) 614-0009

At~k,nC,kERRY,`GIVENS, SMITH & SISTRUNK, P .C .

Pohnnie L . Vchran, Jr . (New York Bar No . 505500) (Pro Hac Vice Application Pending)

By : Hezekiah Sistrunk, Jr . (Georgia Bar No . 649413)

J . Keith Givens (Georgia Bar No . 296270)

Jock Smith (Alabama Bar No . SMI047) (Pro Hac Vice Application Pending)

127 Peachtree Street, N .E ., Suite 800

Atlanta, Georgia 30303

Telephone : (404) 222-9922

Facsimile :

(909) 222-0170

27

IA

~rtttPa "'~'§ttttPS Pistrict Tuixrt

NORTHERN DISTRICT OF
MELVIN REID, VONDA MOORE, JOHNNIE WEST

GEORGIA

AND CLARENCE W . SINKFIELD, individually

and on behalf of all others similary
situated,
Plaintiffs ,

SUMMONS IN A CIVIL CASE

V.
LOCKHEED MARTIN AERONAUTICS COMPANY, formerly, d/b/a LOCKHEED MARTIN AERONAUTICAL SYSTEMS,
and LOCKHEED MARTIN CORPORATION,

CASE NUMBER :

- CV

Defendants .
TO : (Name and address of defendant)
LOCKHEED MARTIN CORPORATION 6801 Rockledge Drkve Bethesda, Maryland 20817

YOU ARE HEREBY SUMMONED and required to serve upon PLAINTIFF'S ATTORNEY (name and address)
Josie A . Alexander Alexander 6 Associates 1020 Edgewood Avenue, N .E . Atlanta, Georgia 30307

an answer to the complaint which is herewith served upon you, within Twenty ( 20)

days after service of

this summons upon you, exclusive of the day of service . If you fail to do so, judgment by default will be taken against you for

the relief demanded in the complaint . You must also file your answer with the Clerk of this Court within a reasonable period of

time after service .

IATM D. TIi0YA8

May 10, 2000

CLERK

DATE

..

DEPUT' CLARK

AO

in a Civil Action (

BRIPYNAL 11LIr xtttPb "States

-&
istritt TQUrt

NORTHERN DISTRICT OF
MELVIN REID, VONDA MOORE, JOHNNIE WEST

GEORGIA

AND CLARENCE W. SINKFIELD, individually

and on behalf of all others similary
situated,
Plaintiff s,

SUMMONS IN A CIVIL CASE

V"
LOCKHEED MARTIN AERONAUTICS COMPANY, formerly, d/b/a LOCKHEED MARTIN AERONAUTICAL SYSTEMS,
and LOCKHEED MARTIN CORPORATION,

-1 182 CASE NUMBER: ~

00 - CV

Defendants .
TO : (Name and address of defendant)
LOCKHEED MARTIN AERONAUTICS COMPANY, formerly d/b/a LOCKHEED MARTIN AERONAUTICAL SYSTEMS 86 South Cobb Drive Marietta, Georgia 30063

YOU ARE HEREBY SUMMONED and required to serve upon PLAINTIFF'S ATTORNEY (name and address)
Josie A. Alexander Alexander b Associates 1020 Edgewood Avenue, N .E . Atlanta, Georgia 30307

an answer to the complaint which is herewith served upon you, within Twenty (20)

days after service of

this summons upon you, exclusive of the day of service . If you fail to do so, judgment by default will be taken against you for

the relief demanded in the complaint. You must also file your answer with the Clerk of this Court within a reasonable period of

time after service .

LTTl'HER D. THOMAS
CLERK
' V Qv~ BY EPUTY CLERK

May 10, 2000 DATE

 
 C
~~ <,;A T '. . °s .~ '~1~~s
/N THE UN/TED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
AT/1JNTA DIVISION

FILED I CHAM$ERS
1-03
Luther D . Thomas, &y "
Deputy~Cl

RE/D VS.
LOCKHEED MARTIN CO.

CIVIL ACT/ON NO. 7:00-cv-1782-JOF

0R D 8R The above-styled case has been pending in this court for more khan SIX (6) MONTHS without any substantial proceedings of record having been taken during such time ; therefore, IT IS ORDERED that this case be and the same hereby is DISMISSED without prejudice pursuant to Local Rule 41 .3 of this Court .
IT IS SO ORDERED this the ~~ day of August, 2003 .

J . rOWEN FORRESTER I/ITED STATES DISTRICT JUDGE

,fir-+j !R%l Tafip
AUG 0 5 2003 e~_qr~_MftS cssea

 
 Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

205 F.R.D. 655 United States District Court,
N.D. Georgia, Atlanta Division.
Melvin REID, et al., Plaintiffs, v.
LOCKHEED MARTIN AERONAUTICS CO. and Lockheed Martin Corp., Defendants. Farris Yarbrough, et al., Plaintiffs, v.
Lockheed Martin Aeronautics Co., et al., Defendants.
Civ.A. Nos. 1:00–CV–1182–JOF, 1:00–CV–1183– JOF. | Aug. 2, 2001.
*657 ORDER
FORRESTER, District Judge.
These cases are before the court on Plaintiffs’ motions for class certification.
I. STATEMENT OF THE CASE Plaintiffs filed these civil rights actions on May 10, 2000, alleging claims of employment discrimination against Defendants Lockheed Martin Aeronautics Company and Lockheed Martin Corporation (collectively referred to as “Defendants” or “Lockheed”).1 Plaintiffs in both actions bring the following claims on behalf of themselves and other similarly situated persons: (1) discrimination on the basis of race in violation of 42 U.S.C. § 1981; (2) discrimination on the basis of race, in the form of disparate treatment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a *658 (“Title VII”); (3) discrimination on the basis of race, in the form of disparate impact, in violation of Title VII; and (4) state law breach of contract. Plaintiffs Melvin Reid, Vonda Moore, Johnnie West, and Clarence Sinkfield (collectively referred to as “the Reid Plaintiffs”) seek to bring these claims on behalf of certain black individuals employed by Lockheed on a salary basis. Plaintiffs Farris Yarbrough, Calvin Combs, Wendell Carlisle, Rita Oliver, Wayne Elliot, and Joseph Banks (collectively referred to as “the Yarbrough Plaintiffs”) seek to advance these claims on behalf of certain black individuals employed by Lockheed on an hourly basis. Each of the aforementioned Plaintiffs is a present or former employee of Lockheed’s facility in Marietta, Georgia. Each of the Yarbrough Plaintiffs is or was a member of the Aeronautical Machinists Local Lodge 709.

Plaintiffs seek injunctive relief, front and back pay, lost fringe and pension benefits, compensatory damages for emotional distress, compensatory damages for pain and suffering, punitive damages, prejudgment interest, and fees and costs incurred in bringing these lawsuits.

1

Plaintiffs in civil action number 1:00-CV-1183-JOF

also named as Defendants the International Association

of Machinists and Aerospace Workers, A.F.L.–C.I.O.,

as well as the Aeronautical Machinists Local Lodge

709 (collectively referred to as “the Union”). On May

22, 2001, however, Plaintiffs and the Union filed with

the court a notice of proposed partial settlement. As

such, Plaintiffs urge the court to certify a class only as

to their claims against Lockheed. See Pl. Mem. in

Support of Class Cert., 1:00-CV-1183-JOF, at 2-3. The

settlement agreement has not yet been approved by the

court. See Fed.R.Civ.P. 23(e) (requiring court approval

for dismissal or compromise of class action).

As alleged in their complaints, Plaintiffs premise their employment discrimination claims on two distinct theories of liability: systemic disparate treatment (i.e., a pattern and practice of discrimination) and disparate impact. The Reid Plaintiffs allege that Lockheed engages in a pattern and practice of systemic discrimination against its black salaried employees that has resulted in disparities between those employees and their white counterparts in the areas of promotions, training and assignments, compensation, and performance evaluations. Moreover, this systemic discrimination has allegedly resulted in a hostile work environment and retaliation against black employees who exercise their rights. See Complaint, 1:00CV1182JOF, ¶¶ 23, 20, 2832; 4346. Similarly, the Yarbrough Plaintiffs allege that systemic discrimination against black hourly employees has resulted in disparities between white and black employees in the areas of promotions, training, and overtime, and has resulted in a hostile work environment and retaliation as well. See Complaint, 1:00CV1183JOF, ¶¶ 2-3, 27, 35-38, 51-57.
Plaintiffs filed the instant motions seeking class certification on May 9, 2001. In moving for class certification, Plaintiffs have more clearly described their claims. Plaintiffs assert that Lockheed maintains an overall corporate culture, originating at the highest levels of the corporation and flowing to all facilities operated by Lockheed Martin Aeronautics Company, that is openly antagonistic to its black employees. According to Plaintiffs, this culture has resulted in common and centralized policies and practices, related to human resources generally and areas such as training and compensation specifically, among the facilities run by Lockheed Martin Aeronautics Company. Plaintiffs assert that these policies and practices give supervisors, almost
1

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

all of whom are white, wide discretion and autonomy in making personnel decisions, which in turn fosters racial discrimination in the areas of promotions, compensation, and performance evaluations. See also Pl. Reply, 1:00CV1182JOF, at 3, 4; Pl. Reply, 1:00CV1183JOF, at 34, 5 (stating that (1) Plaintiffs’ disparate treatment claim is premised on contention that first level supervisors and managers are permitted too much discretion and have engaged in a pattern and practice of discrimination and (2) that Plaintiffs’ disparate impact claim is premised on contention that subjective and discretionary systems have adverse impact on black employees). Additionally, Plaintiffs contend that the antagonistic culture at Lockheed has fostered racial discrimination by creating a racially hostile workplace. Using Lockheed’s Marietta facility as an example, Plaintiffs contend that black employees: are generally kept out of management and supervisory positions, being retained instead in lower paying jobs; have little or no access to the promotions system because positions have not been posted and selections are based on subjective criteria; receive lower scores than white employees on performance evaluations;2 are compensated in disparate proportion *659 with white employees; and are subjected to a racially hostile work environment.

2

Performance evaluations are not at issue with regard to

the hourly employees.

The Reid Plaintiffs seek certification of the following classes:
(a) All African–American persons employed on a salary basis by Lockheed Martin Corporation at Lockheed Martin Aeronautics Company’s Marietta facility (and feeder facilities) from May 10, 1996, to the present, who are or were subject to the Defendants’ employment, personnel and human resources policies and practices and who have been, continue to be, or may in the future be adversely affected by the Defendants’ racially discriminatory employment policies and practices;
(b) All African–American persons employed on a salary basis by Lockheed Martin Corporation at Lockheed Martin Aeronautics Company facilities in Marietta, Georgia, Palmdale, California, Ft. Worth, Texas, and Greenville, South Carolina, (and feeder facilities) from May 10, 1996, to the present, who are or were subject to the Defendants’ employment, personnel and human resources policies and practices and who have been, continue to be, or may in the future be adversely affected by the Defendants’ racially discriminatory employment policies and practices. The Reid Plaintiffs additionally aspire to be representatives of the aforementioned classes and to have

the following attorneys certified as class counsel: Josie A. Alexander; Johnnie L. Cochran; Hezekiah Sistrunk, Jr.; J. Keith Givens; and Angela J. Mason.3

3

After the filing of their motions for class certification,

attorneys Michael D. Hausfeld and Joseph M. Sellers

filed an entry of appearance on behalf of the Reid

Plaintiffs.

Likewise, the Yarbrough Plaintiffs seek certification of the following classes:
(a) All African–American persons employed on an hourly basis by Lockheed Martin Corporation at Lockheed Martin Aeronautics Company’s Marietta facility (and feeder facilities) from May 10, 1996, to the present, who are or were subject to the Defendants’ employment, personnel and human resources policies and practices and who have been, continue to be, or may in the future be adversely affected by the Defendants’ racially discriminatory employment policies and practices;
(b) All African–American persons employed on an hourly basis by Lockheed Martin Corporation at Lockheed Martin Aeronautics Company facilities in Marietta, Georgia, Palmdale, California, Ft. Worth, Texas, and Greenville, South Carolina, (and feeder facilities) from May 10, 1996, to the present, who are or were subject to the Defendants’ employment, personnel and human resources policies and practices and who have been, continue to be, or may in the future be adversely affected by the Defendants’ racially discriminatory employment policies and practices.
The Yarbrough Plaintiffs also aspire to be representatives of the aforementioned classes and seek to have attorneys Alexander, Cochran, Sistrunk, Givens, and Mason certified as class counsel.
Defendants filed responses in opposition to Plaintiffs’ motions on June 25, 2001. With their responses, Defendants filed motions to exclude Plaintiffs’ expert evidence. Additionally, Defendants objected to the admissibility of several affidavits filed in support of Plaintiffs’ motions for class certification.

II. DISCUSSION
A. Introduction Class certification is most warranted in the employment context where “racial discrimination was the company’s standard operating procedure—the regular rather than the unusual practice.” Cooper v. Federal Reserve Bank, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984)
2

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

(quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (footnote omitted)) (discussing differences between class-wide suits and individual suits under Title VII). See also Eastland v. Tennessee Valley Authority, 704 F.2d 613, 618 (11th Cir.1983) (explaining what plaintiff must show to succeed in action alleging class-wide discrimination). Class certification is also warranted where maintenance as a class action constitutes the most efficient *660 means to remedy an overall pattern of discrimination. See General Tel. v. Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (indicating that class action should advance “the efficiency and economy of litigation which is a principal purpose of the [class action] procedure”) (internal quotations omitted). The class action device envisions that liability can be determined in a single trial, and it anticipates that members of the class are entitled either to identical relief or to relief so similar that little more than a calculator or formula is required to reach the result. See Falcon, 457 U.S. at 155, 102 S.Ct. 2364 (noting that “the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.”) (internal quotations omitted) (alterations in original). Where the alleged discrimination results from the actions of an individual employee, supervisor, or decision-maker, maintaining a lawsuit as a class action may not be appropriate.
In the initial days after the enactment of Title VII, class action law in the employment discrimination context developed in a culture where many employers completely excluded members of minority groups from positions and other job benefits at any but the lowest levels of the company. Statistical evidence showing such wholesale exclusion and deprivation easily established patterns and practices of discrimination because “nothing is as emphatic as zero.” Wade v. Mississippi Co-op. Extension Service, 528 F.2d 508, 517 (5th Cir.1976) (quoting United States v. Hinds County Sch. Bd., 417 F.2d 852, 858 (5th Cir.1969)).4

4

In Bonner v. City of Prichard, 661 F.2d 1206 (11th

Cir.1981) (en banc), the Eleventh Circuit adopted as

binding precedent all decisions rendered by the former

Fifth Circuit prior to October 1, 1981.

example, the former Fifth Circuit repeatedly approved an “across-the-board” approach to class certification in cases alleging discrimination in employment. Under this approach, a plaintiff suffering a specific injury as a result of discriminatory policies could represent other class members suffering different injuries so long as those injuries resulted from the same discrimination injuring the plaintiff. See, e.g., Payne v. Travenol Labs., Inc., 565 F.2d 895 (5th Cir.1978); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir.1969). As the culture has changed, however, and new statutes have been enacted, it has become apparent that class certification is no longer a nearly automatic outcome. See Falcon, 457 U.S. at 161, 102 S.Ct. 2364 (disapproving of “across-the-board” approach and holding that Title VII classes can be certified only after “rigorous analysis”).
In contrast to the early days of Title VII, it is now more uncommon to find an employer that overtly encourages wholesale discrimination on the basis of race; race discrimination today usually comes in more subtle forms. It is perhaps more unusual still to find an employer such as a federal defense contractor—required by Executive Order 11246 and 41 C.F.R. § 602.1 to create and implement affirmative action programs, and whose employees are represented by a number of different unions—that can manage to engage in discrimination on a class-wide basis in the face of executive branch oversight and collectively-bargained grievance procedures through which issues of discrimination can be brought to light. Thus, the instant cases are brought in a societal milieu and employment environment notably different from those existing at the time Title VII was enacted and the first decisions under that statute were rendered. Furthermore, the amendments to Title VII enacted as a part of the Civil Rights Act of 1991, which ensure both the right to a jury trial and the right to compensatory and punitive damages, have materially changed the class certification analysis, as discussed below. Indeed, as the *661 instant cases demonstrate, claims of employment discrimination inherently raise many hurdles that must be overcome before certification of a class action can be achieved. Plaintiffs here ultimately fail to overcome those hurdles.
B. Evidentiary Matters

This culture of total exclusion explains the early development of class action law in the employment discrimination context. It is the nature of the law, in common law jurisdictions, to define itself by reference to the problems immediately at hand. Thus, a review of early Title VII decisions, which addressed a climate of overt and comprehensive discrimination, may encourage a belief that class certification is easily obtained. For

1. Expert Evidence
Before explaining why class certification is not warranted in these cases, the court must address the evidentiary disputes raised by the parties. Defendants urge the court to exclude the expert opinions of Dr. Burt S. Barnow and Dr. Frank J. Landy under Federal Rule of Evidence 702, as interpreted in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),
3

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

and its progeny. Without addressing the full panoply of issues relevant to the Daubert analysis,5 the court agrees that the opinions proffered by these experts are troublesome in several respects. For example, Dr. Barnow admitted in his deposition that his reports contain numerous errors including mathematical mistakes, the inclusion of wrong and misleading tables, counting as zeros disparities that really were not zeros, and missing an implied decimal that rendered some of the disparities incorrect and changed some of the variances.6 See Barnow Depo., at 27-30, 238-39, 274-79, 281-83, 335-36, 364, 381-82, 460-64, 485, 491-92, 517-19, 539-40. Additionally, the court is concerned by Dr. Barnow’s heavy reliance on assistants in completing his report. While there is nothing unseemly per se in an expert relying on his staff, Dr. Barnow seemed a bit uncertain as to which staff member actually performed which task. Id. at 117-19. Moreover, in his deposition, Dr. Barnow displayed a lack of familiarity with the data and source documents for his report, as well as some of the processes by which that information was analyzed. Id. at 291-93, 300, 302, 335, 367, 369, 373-74, 455-57, 521-22. This becomes even more troublesome given Dr. Barnow’s admission that he neither checked all of the computer codes used to analyze the data nor compared all of the numbers provided by his staff with the actual computer output. Id. at 26-27, 30-31, 113, 115-16.

5

Federal Rule of Evidence 702 provides that “[i]f

scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion

or otherwise.” In interpreting this rule, the Supreme

Court has imposed a special gatekeeping role on trial

judges, instructing them to “ensure that any and all

scientific testimony or evidence admitted is not only

relevant, but reliable.” Daubert, 509 U.S. at 589, 113

S.Ct. 2786. The court does not at this time fully analyze

the reliability and relevance requirements, nor does it

mention all of the problems presented by the opinions

of Plaintiffs’ experts.

6

Dr. Barnow testified, however, that the implied decimal

problem would not change the probability values,

which he uses to determine whether or not a disparity is

statistically significant. See Barnow Depo., p. 492.

Because Dr. Landy admittedly relied on Dr. Barnow’s analyses in forming his conclusions, these same concerns arise with respect to Dr. Landy’s opinions. See Landy Depo., at 76-77, 245-46, 296, 418-20, 430-31, 607, 645. More problematic still is that Dr. Landy did not have Dr. Barnow’s full reports until after his own report had been completed. Id. at 248-56, 618-20. Also of concern is the

fact that Dr. Landy’s reports fail to cite sources for many of the factual assertions made therein, and Dr. Landy could not provide specific sources at his deposition. Finally, much of Dr. Landy’s opinion concerns the work culture and climate at Lockheed’s Marietta facility, even though he admittedly has never been to that facility or interviewed anyone at that facility. Id. at 105-06, 604, 649, 653.
The foregoing issues cause the court some concern with regard to the reliability of the reports produced by Dr. Barnow and Dr. Landy. Nonetheless, for present purposes of resolving Plaintiffs’ motions for class certification, the court will consider their expert evidence. Defendants’ motions to exclude Plaintiffs’ experts will be HELD in ABEYANCE.
This is not to say that the court will consider all of the expert materials provided in these cases. Dr. Landy’s supplemental report, dated July 9, 2001, and the amendments *662 to Dr. Barnow’s reports, produced by Plaintiffs on July 19, 2001, will not be considered because they were not timely produced. Pursuant to this court’s verbal order on April 18, 2001, subsequently memorialized in writing, Plaintiffs were to produce Dr. Landy’s reports no later than May 7, 2001 and Dr. Barnow’s reports no later than May 9, 2001. The court repeatedly informed counsel of its intention to keep on schedule in these cases, and it made clear that expert reports produced after the deadlines would not be accepted. It appears that Dr. Landy, at least, was made aware of the court’s instruction in this regard, testifying that he understood that his original reports would not be supplemented for purposes of class certification and that he did not have any undisclosed opinions. See Landy Depo., at 89. When Dr. Barnow was deposed on June 5 and 6, 2001, roughly four weeks after his report was produced, he testified that he was not waiting on any additional information and had no plans to engage in any more analysis. See Barnow Depo., at 130-31, 287-88, 439. Despite the court’s admonitions and the testimony just recited, Dr. Landy produced a supplemental report more than a month after his deposition. Similarly, almost two weeks after Dr. Barnow’s deposition, and only one week before Defendants had to respond to Plaintiffs’ class certification motions, Plaintiffs produced amendments to his reports. On these facts, the court finds that the supplemental and amended reports are untimely.
[1] Plaintiffs’ argument to the contrary is unavailing. Plaintiffs contend that Rule 26(e)(1) requires them to supplement incorrect or incomplete information and that they have until thirty days before trial to do so. The court agrees that Plaintiffs possess a duty under Rule 26(e)(1) to provide corrective information to their experts’ reports and deposition testimony, and it acknowledges that the rule requires such information to be produced at least thirty days before trial. See Fed.R.Civ.P. 26(e)(1)
4

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

(referencing time provisions of Rule 26(a)(3)). Rule 26 does not, however, bestow upon litigants unfettered freedom to rely on supplements produced after a courtimposed deadline, even if the rule’s pretrial time limit is satisfied. In short, Rule 26 imposes a duty on Plaintiffs; it grants them no right to produce information in a belated fashion.
[2] The issues presented by Plaintiffs’ motions for class certification, not to mention the concomitant issues concerning their reliance upon expert opinions, are complex. By producing the supplemental and amended reports when they did, Plaintiffs diminished Defendants’ ability to pursue discovery on the amendments or to respond adequately to the morass of issues relating to class certification. Plaintiffs’ offer to produce Dr. Barnow for deposition on June 20, 2001, see Ex. 1 to Pl. Daubert Resp., Mason Aff., at ¶¶ 7, 9, only two business days before Defendants’ response was due, did not provide Defendants a meaningful opportunity to conduct discovery about the amendments. Moreover, Plaintiffs’ assertion that Defendants “cross-examined” Dr. Barnow’s research assistant, and therefore have no need for further discovery on this issue, demonstrates a fundamental insensitivity to the practical needs of counsel in a case of this sort. Plaintiffs permitted Defendants’ counsel to speak by telephone with one of Dr. Barnow’s research assistants. Id. at ¶¶ 11-13. Whatever may have transpired during that conversation, the answers to Defendants’ questions were neither provided by Dr. Barnow nor made under oath. The court fails to see how these unsworn statements, made by someone other than the proffered witness, obviates Defendants’ need to depose Dr. Barnow about the changes to his reports.7 Additionally, Dr. Landy’s supplemental report was produced after Defendants’ response to class certification, and Defendants obviously have no opportunity to pursue discovery on any new information contained therein.8

7

It is clear from Dr. Barnow’s rebuttal reports that he

has revised certain of his prior analyses. See, e.g., Ex. 3

to Pl. Daubert Resp., at 4-5 (discussing revised

regression analyses concerning measure of tenure); Ex

4 to Pl. Daubert Resp., at 3-4 (same). To the extent that

Dr. Barnow’s rebuttal reports rely on data or analyses

revised or added since his deposition, they also will not

be considered for purposes of class certification.

8

To the extent that Dr. Landy’s supplement offers a

point-by-point response to Defendants’ Daubert

motion, the court notes that such a task is the

responsibility of Plaintiffs’ counsel, not Plaintiffs’

expert witness.

*663 2. Affidavits of Putative Class Members
Defendants also urge the court to disregard statements in several affidavits submitted by Plaintiffs on the bases that these statements are contradicted by the affiants’ deposition testimony and/or constitute inadmissible hearsay. A comparison of the affidavits with the deposition testimony cited by the parties reveals that several statements contained in the affidavits are contradicted by the deposition testimony. Moreover, the depositions cast doubt on the accuracy of several other statements contained in the affidavits. Nonetheless, for present purposes of resolving Plaintiffs’ motions for class certification, the court will not strike the affidavits of the putative class members. Where those affidavits are expressly contradicted by deposition testimony without explanation, however, the deposition testimony will control. See Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 656 (11th Cir.1984) (“[A] district court may find an affidavit which contradicts testimony on deposition a sham when the party merely contradicts its prior testimony without giving any valid explanation.”)
C. Class Certification Standard Class determinations are governed by Federal Rule of Civil Procedure 23. “A class action may be maintained only when it satisfies all the requirements of Fed.R.Civ.P. 23(a) and at least one of the alternative requirements of Rule 23(b).” Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1233 (11th Cir.2000) (quoting Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir.1997)). See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613–14, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In addition to the requirements imposed by Rule 23, it is well settled in this circuit that “any analysis of class certification must begin with the issue of standing ....” Murray v. Auslander, 244 F.3d 807, 810 (11th Cir.2001) (quoting Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987)). See also Carter v. West Publ’g Co., 225 F.3d 1258, 1262 (11th Cir.2000) (“A plaintiff who brings a Title VII action on behalf of a class must satisfy two prerequisites: (1) the named plaintiff must have standing to bring the claim, and (2) the requirements of Rule 23 must be fulfilled.”). In determining the propriety of a class action, the court is not to consider the merits of the plaintiffs’ claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Nevertheless, where necessary “to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff’s claim,” the court may “probe behind the pleadings before coming to rest on the certification question.” General Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). “The initial burden of proof to establish the propriety of class certification rests with the advocate of the class.” Avis, 211 F.3d at 1233. Thus, Plaintiffs bear
5

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

the burden of demonstrating that they have standing to bring the claims asserted on behalf of the class and that class certification is proper.

D. Standing The court begins its class certification analysis by addressing several issues related to Plaintiffs’ standing to represent the classes proposed in their motions. First, the court concludes that the Reid Plaintiffs have not shown that they have standing to pursue Title VII claims arising prior to December 19, 1997 or § 1981 claims arising prior to May 10, 1998, and that the Yarbrough Plaintiffs have not shown that they have standing to pursue Title VII claims arising prior to February 26, 1998 or § 1981 claims arising prior to May 10, 1998. Second, the court concludes that, subject to the above temporal limits, there is at least one named Plaintiff in each case that has standing to bring the types of discrimination claims advanced in Plaintiffs’ complaints.9

9

Defendants also challenge Plaintiffs’ standing to

represent multi-facility classes. The court finds that the

multi-facility issue is more properly one of

commonality and typicality than of standing, and this

issue will be addressed when the court examines the

specific requirements of Rule 23(a).

*664 1. Statute of Limitations
Defendants challenge Plaintiffs’ ability to bring class claims arising as early as May 10, 1996, the date set forth in Plaintiffs’ proposed classes. Title VII requires a plaintiff to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the unlawful act. See 42 U.S.C. § 2000e–5(e). The earliest charge filed by any of the Reid Plaintiffs was that filed by Plaintiff Reid on June 16, 1998. See Reid Depo., p. 395 & Ex. 7; Def. Ex. 11. Thus, as Defendants point out, the limitations period on the Reid Plaintiffs’ Title VII claims appears to reach only to December 19, 1997. The limitations period on the Title VII claims advanced by the Yarbrough Plaintiffs does not reach even that far. The earliest charge filed by any of the Yarbrough Plaintiffs was that filed by Plaintiff Carlisle on August 25, 1998. See Carlisle Depo., pp. 287-87 & Ex. 13.10 Thus, the limitations period on the Yarbrough Plaintiffs’ Title VII claims appears to reach only to February 26, 1998. Both of these dates are well after the May 10, 1996 date proposed by Plaintiffs, and Plaintiffs have not shown that they have standing to bring class claims preceding these dates. See Carter, 225 F.3d at 1263 (explaining that plaintiff can represent class members pursuant to single

EEOC charge where “at least one plaintiff ... ha[s] timely filed an EEOC complaint” and “the individual claims of the filing and non-filing plaintiffs have arisen out of similar discriminatory treatment in the same time frame”).11

10

Attached as an exhibit to Plaintiff Banks’ deposition is

a charge of discrimination filed with the EEOC on

November 4, 1996. See Banks Depo., pp. 470-71 &

Union Ex. 10. The events described in this charge have

already been litigated by Plaintiff Banks in a prior

lawsuit. See Banks Depo., Union Ex. 1 & Union Ex. 2.

11

As Defendants point out, Plaintiffs’ motions for class

certification fail to mention any legal basis for their

proposed date of May 10, 1996. Despite this failure,

Plaintiffs make reference to the continuing violation

doctrine in a footnote in their reply memoranda. See,

e.g., Pl. Reply, 1:00-CV-1182-JOF, at 8 n.14. Plaintiffs

do not, however, develop their argument for applying

the continuing violation doctrine to their Title VII

claims. Rather, they merely cite to a discussion of the

continuing violation doctrine made in a previous

pleading that concerned different issues than those

currently facing the court. See Pl.Ex. 104, Reply to

Defendants’ Response in Opposition to the EEOC’s

Motion to Intervene, at 5-7. Not surprisingly, the

application of the continuing violation doctrine in the

context of a class action is not fully addressed in the

cited document. Because Plaintiffs raise the continuing

violation doctrine for the first time in reply, and

because they have failed fully to brief the complex

issues relating to that doctrine, the court will not

consider the continuing violation doctrine for purposes

of ruling on their motions for class certification. See

United States v. Georgia Dept. of Natural Resources,

897 F.Supp. 1464, 1471 (N.D.Ga.1995) (Forrester, J.)

(“This court will not consider arguments raised for the

first time in a reply brief.”).

Similarly, Plaintiffs have not established that they have standing to bring claims under § 1981 that reach back to May 10, 1996. Section 1981 does not contain a statute of limitations, and therefore “federal courts should select the most appropriate or analogous state statute of limitations.” Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 96 L.Ed.2d 572. In Lukens, the Supreme Court held that, as with claims under § 1983, federal courts adjudicating § 1981 claims should borrow the state statute of limitations governing personal injury actions. See id. at 661–62, 107 S.Ct. 2617. Accordingly, the twoyear statute of limitations found in O.C.G.A. § 9-3-33 applies to Plaintiffs’ § 1981 claims in these cases. Cf. Mullinax v. McElhenney, 817 F.2d 711, 715–16 & n. 2 (11th Cir.1987) (holding that two-year limitations period found in § 9-3-33 applies to § 1983 actions brought in Georgia district courts). Because these cases were filed on
6

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

May 10, 2000, Plaintiffs’ § 1981 claims reach back only to May 10, 1998, and they have not shown that they have standing to pursue class claims preceding this date.12

12

Although Plaintiffs do not articulate the argument in

either their motions or their reply briefs, a footnote in

their Reply to Defendants’ Response in Opposition to

the EEOC’s Motion to Intervene contended that the

appropriate limitations period for claims under § 1981

is four years. See Pl.Ex. 104, at 5 (citing Nealey v.

University Health Services, Inc., 114 F.Supp.2d 1358

(S.D.Ga.2000) (Alaimo, J.)). In Nealey, the court

applied the four-year statute of limitations found in 28

U.S.C. § 1658 to a claim brought under § 1981. See

Nealey, 114 F.Supp.2d at 1364–66. Because Plaintiffs

have not specifically argued with regard to the instant

motions that § 1658 applies to their § 1981 claims, the

court will not address that issue. Moreover, even if

Plaintiffs had properly advanced such an argument, the

court would find it unavailing. See Madison v. IBP,

Inc., 257 F.3d 780, 796–98 (8th Cir.2001) (finding that

§ 1658 does not apply to claims brought under § 1981);

Zubi v. AT & T Corp., 219 F.3d 220, 226 (3d Cir.2000)

(same); Chawla v. Emory Univ., No. 1:95–CV–0750–

JOF, 1997 WL 907570, at *12–14 (N.D.Ga. Feb. 13,

1997) (Deane, M.J.) (same), adopted in relevant part by

Chawla v. Emory Univ., No. 1:95-CV-0750-JOF, 1997

WL 907571 (N.D.Ga. Mar. 31, 1997) (Forrester J.).

*665 2. Types of Discrimination Suffered by the Named Plaintiffs
The court must also determine whether at least one named Plaintiff in each case has standing to bring the type of discrimination claims advanced in Plaintiffs’ complaints, subject to the temporal scope defined above. See Griffin v. Dugger, 823 F.2d 1476, 1483 (11th Cir.1987) (“... [A] claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.”). As demonstrated, Plaintiffs advance claims of discrimination relating to promotions, training, performance evaluations (with regard to salaried employees), and compensation, as well as claims of a racially hostile work environment and retaliation. With regard to the Reid Plaintiffs, the court finds that at least one of the four named Plaintiffs has alleged an injury giving rise to each of the claims advanced in their complaint. See Complaint, 1:00-CV-1182-JOF, at ¶ 43 (alleging that Plaintiff Reid personally suffered racial discrimination with regard to promotions, compensation, evaluations, training, hostile environment, and retaliation); id. at ¶ 44 (alleging that Plaintiff Moore personally suffered racial discrimination with regard to compensation, evaluations, training, hostile environment, and retaliation); id. at ¶ 45 (alleging that Plaintiff West personally suffered racial discrimination with regard to

compensation and training); id. at ¶ 46 (alleging that Plaintiff Sinkfield personally suffered racial discrimination with regard to promotions, evaluations, hostile environment, and retaliation). Also, because Plaintiff Moore remains employed by Lockheed, there exists a substantial likelihood that she will be affected by Defendants’ alleged discrimination in the future, and she therefore has standing to seek injunctive relief. See Wooden v. Board of Regents, 247 F.3d 1262, 1283 (11th Cir.2001) (“... [T]o have standing to obtain forwardlooking relief, a plaintiff must show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future.”).13

13

Plaintiffs Reid, West, and Sinkfield are no longer

employed by Lockheed, see Reid Depo., p. 364; West

Depo., p. 89; Sinkfield Depo., p. 28, and do not have

standing to seek injunctive relief.

Similarly, with regard to the Yarbrough Plaintiffs, the court finds that at least one named Plaintiff has suffered an injury giving rise to the claims advanced in their complaint. See Complaint, 1:00-CV-1183-JOF, at ¶ 51 (alleging that Plaintiff Yarbrough personally suffered racial discrimination with regard to promotions, training, hostile environment, and retaliation); id. at ¶ 52 (alleging that Plaintiff Combs personally suffered racial discrimination with regard to promotions, training, overtime, hostile environment, and retaliation); id. at ¶ 53 (alleging that Plaintiff Kirkland personally suffered racial discrimination with regard to promotions, training, overtime, hostile environment, and retaliation); id. at ¶ 54 (alleging that Plaintiff Carlisle personally suffered racial discrimination with regard to promotions, training, hostile environment, and retaliation); id. at ¶ 55 (alleging that Plaintiff Oliver personally suffered racial discrimination with regard to promotions, hostile environment, and retaliation); id. at ¶ 56 (alleging that Plaintiff Elliot personally suffered racial discrimination with regard to promotions, retaliation, and compensation); id. at ¶ 57 (alleging that Plaintiff Banks personally suffered racial discrimination with regard to promotions, hostile environment, and retaliation). Additionally, it appears from their deposition testimony that Plaintiffs Yarbrough, Combs, Oliver, and Banks remain currently employed by Lockheed and have standing to pursue injunctive relief. See Yarbrough Depo., p. 102; Combs Depo., p. 73; Oliver Depo., pp. 91-92; Banks Depo., p. 54.
E. Requirements of Rule 23(a) Rule 23(a) allows maintenance of a class action only if all four of the following requirements *666 are satisfied: (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
7

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

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.” Fed.R.Civ.P. 23(a). These four requirements are known generally as numerosity, commonality, typicality, and adequacy of representation. See Amchem, 521 U.S. at 613, 117 S.Ct. 2231. For the following reasons, the court finds that Plaintiffs have not satisfied all of the requirements of Rule 23(a) and are not entitled to class certification.
1. Numerosity
[3] [4] [5] [6] To satisfy the numerosity prerequisite, Plaintiffs must “show some evidence or reasonable estimate of the number of class members.” Grimes v. Pitney Bowes, Inc., 100 F.R.D. 265, 269 (N.D.Ga.1983) (Forrester, J.) (quoting 3B J. Moore & J. Kennedy, Moore’s Federal Practice ¶ 23.05(3), at 23–61 (2d ed.1982)). Precedent in this circuit, however, holds that “[t]he basic question is practicability of joinder, not number of interested persons per se.” Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980). Thus, mere numbers are not dispositive, and the court should consider such factors as “the size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion.” Id. Both Plaintiffs and Defendants agree that the numerosity requirement is met in these cases, and the court concurs. Evidence submitted by Plaintiffs shows that there were more than 300 black employees paid on a salaried basis, and more than 700 black employees paid on an hourly basis, at Lockheed’s Marietta facility during the relevant time period. See Pl.Ex. 41, at 9; Pl.Ex. 83, at 7. Based on these figures, the court finds that the proposed classes contain a large number of members that would render joinder in one suit impracticable, despite their close geographic proximity to one another and any ease in identifying them. As such, the numerosity requirement is met.
2. Commonality and Typicality
In contrast to the numerosity requirement, the court concludes that the commonality and typicality requirements of Rule 23(a) are not satisfied in these cases. The Supreme Court has explained that the commonality and typicality prerequisites “tend to merge,” and that “[b]oth serve as guideposts for determining whether under the particular circumstances 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.” Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364. The Eleventh Circuit has further explained that “commonality refers to the group characteristics of the class as a whole and typicality refers to the individual characteristics of the named plaintiff in relation to the class.” Prado–Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir.2000).
[7] [8] Although the court does not at this stage examine the merits of Plaintiffs’ case, it may properly consider evidence relating to the discrimination allegedly suffered by the class, as well as the manner in which that evidence fits into the legal framework governing the claims pled in Plaintiffs’ complaints. See Nelson v. United States Steel Corp., 709 F.2d 675, 679 (11th Cir.1983). Commonality requires that “a class action ... involve issues that are susceptible to class-wide proof,” Murray, 244 F.3d at 811, and the court must review the evidence to determine whether this requirement is satisfied. Moreover, “evidence relevant to the commonality requirement is often intertwined with the merits.” Nelson, 709 F.2d at 679. In addition, with regard to typicality, the court must be able to determine whether the named Plaintiffs “possess the same interest and suffer the same injury as the class members.” Murray, 244 F.3d at 811. In short, Plaintiffs’ burden at this stage “entails more than the simple assertion of [commonality and typicality] but less than a prima facie showing of liability.” Nelson, 709 F.2d at 680 (quoting Gilchrist v. Bolger, 89 F.R.D. 402, 406 (S.D.Ga.1981)). A review of the legal framework and the record evidence *667 leads the court to conclude that Plaintiffs have not carried their burden.
a. Plaintiffs’ Claims
As explained, Plaintiffs challenge Defendants’ employment practices—relating to promotions, training, compensation, evaluations, hostile environment, and retaliation—under both disparate impact and disparate treatment theories.14 To prove disparate impact, Plaintiffs will have to demonstrate that Defendants “use[ ] a particular employment practice that causes a disparate impact on the basis of race ....” 42 U.S.C. § 2000e-2(k). Plaintiffs, therefore, will have to identify “a facially neutral employment practice coupled with proof of its discriminatory impact.” See, e.g., In re Employment Discrimination Litig., 198 F.3d 1305, 1311 (11th Cir.1999); Eastland v. TVA, 704 F.2d 613, 619 (11th Cir.1983). Disparate impact is generally established by statistical evidence, which should “show that there is a legally significant disparity between (a) the racial composition, caused by the challenged employment practice, of the pool of those enjoying a ... job benefit; and (b) the racial composition of the qualified applicant pool.” In re Employment Discrimination, 198 F.3d at
8

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

1312. Disparate impact claims do not require proof of discriminatory intent. See EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1273 (11th Cir.2000). By contrast, “[i]n a disparate treatment case proof of discriminatory motive is essential.” Eastland, 704 F.2d at 618. Statistical evidence often plays a vital role in establishing class-wide discrimination under a disparate treatment theory as well, and if sufficiently strong and compelling, it may establish discrimination by itself. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1131 (11th Cir.1984); Eastland, 704 F.2d at 618. Additionally, Plaintiffs may offer anecdotal evidence to bolster their claims of disparate treatment. See Eastland, 704 F.2d at 618. Establishing commonality or typicality under a disparate treatment theory, however, is more difficult than doing so under disparate impact. See Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 n. 10 (11th Cir.1992); Nelson, 709 F.2d at 679 n. 9.15

14

In their memoranda supporting class certification,

Plaintiffs fail to include a discussion of the required

elements of either their disparate impact or disparate

treatment claims. Similarly, Plaintiffs make little effort

to show how proving the elements of their individual

claims will also prove the claims of the absent class

members. The Supreme Court has made plain that “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 requirements of Rule 23(a)

have been satisfied.” Falcon, 457 U.S. at 161, 102 S.Ct.

2364 (emphasis added). Because commonality and

typicality cannot be presumed, the court finds

Plaintiffs’ scanty discussion of these requirements

troublesome.

In an apparent attempt to remedy these deficiencies,

however, Plaintiffs have attached to their replies two

“exhibits” showing why the named Plaintiffs’ claims

are typical to those of the class. See Pl. Reply, Ex.

103 & Ex. 110. These “exhibits” are nothing more

than legal memoranda, each consisting of eleven

pages of briefing followed by evidentiary

attachments, which contain some of the very

discussions that should have been included in

Plaintiffs’ supporting memoranda. Furthermore,

these “exhibits” display a great lack of respect both

for the rules of procedure and the orders of this court.

The court limited Plaintiffs’ reply briefs to ten pages.

Plaintiffs may not avoid that limitation merely by

appending their discussions of typicality to the end of

the briefs and calling them “exhibits.” The court

STRIKES Exhibits 103 and 110 from Plaintiffs’

replies and will not consider them in resolving the

instant dispute.

15

Plaintiffs’ claims under 42 U.S.C. § 1981, which can be

violated only by intentional discrimination, may be

advanced exclusively under a theory of disparate

treatment. See General Bldg. Contractors Ass’n v.

Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 73

L.Ed.2d 835 (1982). “The elements of a claim of race discrimination under 42 U.S.C. § 1981 are ... the same as a Title VII disparate treatment claim in the employment context.” Rice–Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n. 11 (11th Cir.2000).
b. Multi-Facility Classes
[9] Because all of the named Plaintiffs in these cases are current or former employees at Lockheed’s Marietta facility, Defendants assert that Plaintiffs cannot bring claims on behalf of black employees who work at other facilities. The court has found no Eleventh Circuit decisions analyzing whether and when a plaintiff employed at one facility of a defendant may represent a class of employees at other facilities operated by the same defendant. The consensus among other *668 courts, however, is that a plaintiff may represent a multi-facility class only where centralized and uniform employment practices affect all facilities in the same way. See, e.g., Stastny v. Southern Bell Tel. & Telegraph Co., 628 F.2d 267, 279–80 (4th Cir.1980); Lott v. Westinghouse Savannah River Co., 200 F.R.D. 539, 555–56 (D.S.C.2000); Zachery v. Texaco Exploration & Prod., Inc., 185 F.R.D. 230, 238-40 (W.D.Tex.1999); Morgan v. United Parcel Service, Inc., 169 F.R.D. 349, 356 (E.D.Mo.1996); Seidel v. General Motors Acceptance Corp., 93 F.R.D. 122, 124–25 (W.D.Wash.1981); Webb v. Westinghouse Elec. Corp., 78 F.R.D. 645, 651 (E.D.Pa.1978).
[10] A review of the decision in Webb proves instructive. In that case, the plaintiffs alleged that one of the defendant’s business divisions, consisting of four separate plants in three states, discriminated against them on the basis of race in the areas of recruitment, hiring, training, and promotions. See Webb, 78 F.R.D. at 647–48. The four named plaintiffs, each of whom worked exclusively at the first plant, attempted to certify a class of all black persons employed by the division, regardless of the particular plant at which they worked. Id. at 648. The court rejected this attempt, however, finding that the evidence before the court did not establish centralized and uniform employment practices, but rather demonstrated that employment practices were set “by a plant manager located at each [division] facility.” Id. at 651. Accordingly, the court held that the plaintiffs could represent only those black employees employed at the first facility, and it excluded from the class those black employees that worked at the other three facilities. Id. See also Zachery, 185 F.R.D. at 239–40 (refusing to certify multi-facility class where class consisted of seventeen business units, spread across fifteen states, each with varying degrees of local autonomy over employment
9

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

decisions); Seidel, 93 F.R.D. at 124–25 (denying motion for certification of multi-facility class where evidence demonstrated that employment decisions were made at local branch level).
The facts of the instant cases are very similar to those in Webb. According to the record evidence in these cases, Lockheed Martin Corporation (“LMC”) was formed in March 1995 by the merger of Lockheed Corporation and Martin Marietta Corporation. LMC is currently organized into five primary Business Areas: Systems Integration; Space Systems; Aeronautics; Technology Services; and Global Telecommunications. See Def. Ex. 2, McLaughlin Aff., at ¶ 3. When LMC was formed in 1995, the Aeronautics area, or sector as it was then called, was comprised of four primary facilities: Marietta, Georgia; Ft. Worth, Texas; Palmdale, California; and Greenville, South Carolina. See Pl.Ex. 8, Hancock Depo., at 16. Additionally, within the Aeronautics sector were four “feeder” facilities: Meridian, Mississippi; Pinellas, Florida; Clarksburg, West Virginia; and Johnstown, Pennsylvania. See id. at 26–27; Def. Ex. 6, Gill Depo., at 27. The facilities in Meridian and Clarksburg functioned as “feeders” for the facility in Marietta, and they were essentially operated as a department of the Marietta facility. See Def. Ex. 6, Gill Depo., at 27; Pl.Ex. 11, Hamlin Depo., at 157-58. In October 1999, the Greenville facility was moved out of Aeronautics and into Technology Services. See Pl.Ex. 8, Hancock Depo., at 111. From 1995 to 2000, each of the primary facilities in the Aeronautics sector had a president, who was the highest chief executive officer at that particular facility. See id. at 12, 70; Pl.Ex. 40; Def. Ex. 8, Burbage Aff., at ¶ 2. The facility-level president reported to the president of the Aeronautics sector, who in turn reported to the executive office of LMC. See Pl.Ex. 8, Hancock Depo., at 13-14.
During the period from 1995 to 2000, LMC issued Corporate Policy Statements and Corporate Functional Procedures, “documents used to convey management philosophy and direction” on the corporate level. See Pl.Ex. 19, at Y7 0002 00101. These corporate-level documents, however, constituted only broad-based statements to provide the lower-level units with an overarching philosophical framework in which to operate. The individual business units had the responsibility to implement that philosophical framework in whatever specific manner met their particular needs, and LMC did not monitor compliance with the corporate-level statements. *669 See Pl.Ex. 14, Powell Depo., at 108-10, 113-16, 165-66; Pl.Ex. 9, Gill Depo., at 34, 36, 88; Def. Ex. 5, Burbage Depo., at 19. Accordingly, the actual practices resulting from the corporate-level statements differed depending on the business unit in question. See Pl.Ex. 9, Gill Depo., at 36, 88. See also Def. Ex. 2, McLaughlin Aff., at ¶¶ 4-6 (stating that human resources data were maintained in decentralized and differing

systems); Def. Ex. 8, Burbage Aff., at ¶ 4 (testifying that Marietta facility operated independently of other Aeronautics facilities and possessed its own personnel policies and procedures).16 In fact, the particular practices of the individual companies forming LMC remained in place for some time before LMC even began issuing corporate policy statements. See Pl.Ex. 14, Powell Depo., at 214.17

16

While Plaintiffs’ expert, Dr. Landy, disagrees with the

distinction between broad corporate policies and local

implementations contained in the testimony of the fact

witnesses, he admits that the local units implemented

the corporate policies according to their needs. See,

e.g., Pl.Ex. 24, Landy Reid Rpt., at 14-15. Moreover, in

opining that the variations in local implementation

“appear trivial,” Dr. Landy cites only to the testimony

of John Gill and Dain Hancock that the local units must

work within the broad guidelines established by the

corporate statements. On the very pages cited by Dr.

Landy, however, the witnesses testify that there is a

difference between overarching corporate policies and

local implementation, and that the actual practices may

be implemented and administered differently. See, e.g.,

Pl.Ex. 9, Gill Depo., at 34-36; Pl.Ex. 8, Hancock Depo.,

at 138. Additionally, in both his report and deposition,

Dr. Landy concedes that there existed differences

between the guidelines established by the corporate

statements and the actual employment decisions made

by local managers and supervisors. See, e.g., Pl.Ex. 24,

Landy Reid Rpt., at 18-19; Landy Depo., at 300-02,

354-55, 416-17. Finally, the court notes that Dr. Landy

often fails to cite specific sources for his factual

assertions, and some of the evidence he does cite has

not been provided to the court. For all of these reasons,

the court finds Dr. Landy’s opinions about the

centralized nature of actual employment practices in the

Aeronautics area to be unpersuasive and rejects those

opinions for purposes of this analysis.

17

The documents submitted by Plaintiffs bear out the lack

of specific corporate-level employment practices. For

example, several of the Corporate Policy Statements

made clear that they were optional for the LMC sectors.

See, e.g., Pl.Ex. 19, at Y7 0002 0086, Y7 0002 0089.

Others contained only very general guidance and left to

management the actual procedures to be implemented.

See, e.g., Pl.Ex. 85. Additionally, it is clear that the

Marietta facility considered itself a separate unit,

promulgating its own procedure for loaning personnel

to or from “other [LMC] companies.” See Pl.Ex. 28, at

LM0022731.

On January 27, 2000, LMC underwent a reorganization designed to bring the three primary facilities of the Aeronautics sector, which had been operating as separate companies, under a single management structure. See Def. Ex. 5, Burbage Depo., at 38-39; Def. Ex. 8, Burbage Aff.
10

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

at ¶ 4. On January 27, 2001, the President of the Aeronautics Business Area issued a memorandum declaring that the “transition period is now complete—we are now operating as one company.” See Pl.Ex. 13. The record remains a bit ambiguous, however, on the amount of central control the Aeronautics area currently has over employment practices. The entire Aeronautics area, and indeed all of LMC, currently has a common resume database and retrieval system, and there is now common training required for all Aeronautics employees. See Pl.Ex. 14, Powell Depo., at 131-34; Pl.Ex. 33, Drennan Depo., at 90-92. It also appears that there is a process in place to consolidate human resources and employment practices for the entire Aeronautics area. See Pl.Ex. 21, Bryant Depo., at 211-12; Def. Ex. 9 & 10. Labor relations, on the other hand, remain highly decentralized throughout LMC. There are currently 114 collective bargaining agreements between the various business units of LMC and 29 different national unions and 90 different local unions. Moreover, the particular local business unit of LMC constitutes the corporate signatory for each of these agreements. See Def. Ex. 4, Cantwell Aff., at ¶¶ 3-4.
The court finds that, at least until the reorganization of the Aeronautics area, the facilities at issue in these cases were not subject to centralized and uniform employment practices such that Plaintiffs have satisfied the commonality and typicality requirements with regard to multi-facility classes. As in Webb, the evidence shows that employment practices were established at the local level. Although there existed general corporate statements, the court *670 finds that the actual implementation of the procedures visualized by those statements remained the province of the individual business units. Moreover, even now, labor relations are conducted independently by the various business units, with each local unit negotiating its own collective bargaining agreement with various national and local unions. This amount of local autonomy in the implementation and administration of actual employment practices, despite the existence of any broad policy statements at higher levels, counsels against the multifacility class sought by Plaintiffs. See Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. 2364 (noting that “Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination”) (emphasis in original).
Also counseling against Plaintiffs’ ability to bring a multifacility class is their core contention that the discrimination from which they suffered resulted from the discretion and autonomy given to first-level managers and supervisors. There is an inherent tension between Plaintiffs’ arguments that the facilities in the Aeronautics area had common, centralized employment policies and their contention that local, first-level supervisors had the autonomy to make subjective, discriminatory decisions with regard to promotions, compensation, evaluations, and training. The best characterization of Plaintiffs’

theory is that Defendants had a centralized policy of decentralization, which is insufficient on these facts to satisfy commonality or typicality with respect to Plaintiffs’ proposed multi-facility classes.
The court acknowledges that a similar theory carried the day in Morgan, a case relied on by Plaintiffs. The court in that case found that the employer’s system of allowing decentralized decision-making did not defeat certification of a nationwide class. Id. at 356. The facts of Morgan, however, easily distinguish that case from those sub judice. The defendant in that case had eleven geographical regions, headed by regional managers, that were each divided into six districts run by district managers. Each district was subdivided into divisions, each of which had several package operating divisions possessing several package operations centers. Authority to promote employees at the division level and below was vested in the district managers. When making such decisions, each of the district managers used the same evaluation and promotion procedures, which were promulgated by defendant’s national corporate office. Morgan, 169 F.R.D. at 353–54. Thus, unlike the instant cases, where Plaintiffs complain that first-level supervisors were given too much autonomy to make employment decisions independent of corporate or sector scrutiny, Morgan involved decisions made by relatively high-level managers pursuant to uniform procedures originating at the highest level of the corporation. The decentralized decisions in Morgan were actually fairly centralized.
Plaintiffs correctly assert that subjective employment practices may, under certain circumstances, give rise to a claim of discrimination. See, e.g., Griffin v. Carlin, 755 F.2d 1516, 1525 (11th Cir.1985) (noting that “subjective practices such as interviews and supervisory recommendations are capable of operating as barriers to minority advancement”). But see Denney v. City of Albany, 247 F.3d 1172, 1185 (11th Cir.2001) (explaining that subjective criteria are not per se improper and will not show pretext for legitimate employment decision “[a]bsent evidence that subjective hiring criteria were used as a mask for discrimination”). But this does not mean that subjective employment practices necessarily give rise to a broad, multi-facility class; rather, it leads to the opposite conclusion. As has been explained by another court: “The fact that [employment] decisions are handled by one’s immediate supervisor based on subjective criteria would be useful evidence in an individual disparate treatment claim, but works against class certification of a disparate impact claim when the proposed class is subject to the same local autonomy in geographically dispersed facilities.” Zachery, 185 F.R.D. at 238 (emphases in original). Similarly, “[g]eographically widespread facilities make it more difficult to prove a pattern and practice of disparate treatment.” Id. at 239. See also Stastny, 628 F.2d at 279
11

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

(explaining that evidence of local subjectivity may bolster both individual claim and class-wide claim “in the very facility where the autonomy is exercised,” but it *671 cuts against inference that multi-facility class was subjected to common discrimination).18 Like the court in Zachery, this court finds that Plaintiffs’ contention of first-level subjectivity, coupled with its findings that actual employment practices for the Aeronautics facilities were set at the local level, defeats certification of Plaintiffs’ proposed multi-facility classes. See Zachery, 185 F.R.D. at 239 (“Delving into the practices of each local business unit and conceivably even into the individual decisions is precisely the type of individualized inquiry that class actions were designed to avoid.”). Because none of the named Plaintiffs worked at any facility other than Marietta, and because both the evidence and Plaintiffs’ own assertions show that actual employment practices were highly localized, the court finds that Plaintiffs have not established commonality or typicality with respect to the multi-facility classes for which they seek certification. Further discussion of the class certification issues relevant to these cases will be addressed only to Plaintiffs’ proposed classes of black employees at the Marietta facility and its feeders.

18

The Supreme Court has identified discrimination by

“entirely subjective decisionmaking processes,” where

established by “significant proof,” as a claim that could

conceivably justify certification of a class. See Falcon,

457 U.S. at 159 n. 15, 102 S.Ct. 2364. Falcon,

however, neither addressed nor had any occasion to

address the certification of a multi-facility class. See id.

at 152 n. 5, 102 S.Ct. 2364 (reciting that district court

in Falcon certified class of employees and applicants at

defendant’s division in Irving, Texas, “and no other

division”).

discrimination in training at the Marietta facility. With regard to promotions, Dr. Landy does opine that the resume retrieval system utilized by Lockheed in filling work positions operates as a decision-maker of sorts by screening resumes based on various search codes, and he comments that this system has not been validated. See Pl.Ex. 24, Landy Reid Rpt., at 24-26; Pl.Ex. 87, Landy Yarbrough Rpt., at 23-25. In his deposition, however, Dr. Landy testified that he did not know exactly how Lockheed used the system, nor had he seen any data on the potential adverse effect of the system. See Landy Depo., at 90-92, 358-61. Dr. Landy also opines that there are common promotional practices that render all employees at the Marietta facility similarly situated. See Pl.Ex. 24, Landy Reid Rpt., at 26-28; Pl.Ex. 87, Landy Yarbrough Rpt., at 26-27. But Dr. Landy offers no conclusion that these practices had an adverse impact on black employees or that they were utilized systemically to treat blacks differently than whites. Finally, the anecdotal evidence submitted by Plaintiffs, which describes diverse events concerning different positions and training requests across a broad time period,19 does not establish commonality and typicality in the absence of evidence tending to link these separate events to a class-wide problem. In short, Plaintiffs have not demonstrated their ability to prove that Defendants’ promotions and training practices discriminated against black employees as a class, nor have they shown that their individual promotions and training claims are typical to the claims of the classes.20

19

The affidavits submitted by Plaintiffs describe many

claims, relating to promotions and training as well as

compensation and evaluations, that are outside the

limitations periods for which Plaintiffs have

demonstrated standing.

c. Promotions and Training
[11] The evidence in these cases fails to demonstrate the requisite commonality and typicality for class certification under either a disparate impact theory or a disparate treatment theory. First, although Plaintiffs claim classwide discrimination with regard to promotions and training, they have offered no statistical evidence to support those claims. Plaintiffs’ statistics expert, Dr. Barnow, expressly testified that he had reached no conclusions and had formed no opinions about either of these subjects. See Barnow Depo., at 12, 21, 296, 298-99, 316, 396-97, 453-54. In fact, to the extent that Dr. Barnow attempted any analysis about promotions, he testified that “there was no support for the claim of the plaintiffs, in the analysis we ran.” Id. at 454. Dr. Landy similarly proffers no opinion with regard to

20

It should be noted that commonality and typicality are

particularly difficult to establish with regard to the

promotions claims of the hourly employees. The record

demonstrates that two collective bargaining units

represent hourly employees at Lockheed’s Marietta

facility. See, e.g., Barnow Depo., at 224-25; Landy

Depo., at 174, 379-82. The Yarbrough Plaintiffs are all

represented by the Aeronautical Machinists Local

Lodge 709, and neither Dr. Barnow nor Dr. Landy read

the collective bargaining agreement for the employees

represented by the other collective bargaining unit.

Barnow Depo., at 241-42; Landy Depo., at 176. A

review of the agreements negotiated with these separate

units demonstrates vastly different promotions

procedures, meaning that employees working under one

agreement will not be common to those working under

the other. Compare Def. Ex. 68, at 72-77 and Def. Ex.

70, at 73-76 with Def. Ex. 69, at 31. Furthermore, since

Local Lodge 709 represented each of the Yarbrough

Plaintiffs, they were promoted under different

procedures than those hourly employees represented by

12

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

the other collective bargaining unit, meaning that their claims are not typical to those employees in the other unit.

*672 d. Compensation
[12] In contrast to their promotions and training claims, Plaintiffs have offered evidence that Defendants’ practices with regard to compensation significantly and adversely affected some black employees. That same evidence, however, also demonstrates that many black employees do not fall within the group significantly affected. In comparing compensation of hourly employees across a total of 43 different pay grades, using January 31 of each year from 1996 through 2000 as the date of comparison, Dr. Barnow found that only 12 out of a total of 164 comparisons, or 7.32%, resulted in a statistically significant disparity adverse to blacks.21 See Barnow Depo., at 327-28. These significantly adverse disparities occurred in only six pay grades;22 thirty-seven pay grades never had a statistically significant disparity adverse to blacks. See Pl.Ex. 83, Barnow Yarbrough Rpt., at 18-22. Also, the significantly adverse disparities decreased each year subject to comparison: six occurred in 1996, three occurred in 1997, two occurred in 1998, one occurred in 1999, and none occurred in 2000. See Barnow Depo., pp. 329, 330; Pl.Ex. 83, Barnow Yarbrough Rpt., at 18-22. In fact, the only statistically significant disparity occurring in 2000 favored black employees. See Barnow Depo., at 332; Pl.Ex. 83, Barnow Yarbrough Rpt., at 22. Dr. Barnow additionally testified that when one excluded the January 31, 1996 comparisons, which are outside both the limitations period for which Plaintiffs have demonstrated standing and the date given in their own class definition, the overall percentage of significantly adverse disparities equaled only 4.26%. This number is less than the percentage of significant disparities that he would expect to occur merely by chance. See Barnow Depo., at 330-31; Pl.Ex. 83, Barnow Yarbrough Rpt., at 2.

21

Dr. Barnow’s reports explain that a statistically

significant disparity is one where the probability value

(or “P-value”) is less than 0.05. See Pl.Ex. 41, Barnow

Reid Rpt., at 2; Pl.Ex. 83, Barnow Yarbrough Rpt., at 2.

employees by job group similarly displays a wide variation in those groups significantly affected. Again using January 31 of each year from 1996 through 2000 as the date of comparison, Dr. Barnow compared compensation between black and white hourly employees in 25 job groups. In making these comparisons, Dr. Barnow found that 35 of 109 comparisons, or 32.1%, resulted in a statistically significant disparity adverse to blacks. See Pl.Ex. 83, Barnow Yarbrough Rpt., at 9.23 While this overall number exceeds the percentage that Dr. Barnow would expect to occur merely by chance, Dr. Barnow’s report reveals much variation between the job groups when each group is considered individually. For example, there were no statistically significant disparities in any of the five years with regard to any of the job groups labeled “Technicians” (i.e., job groups 04B, 04C, and 04D) or “Laborers” (i.e., job group 09A), as well as several other job groups. See id. at 11–16. Additionally, in several of the job groups that experienced statistically significant disparities, the disparities were not statistically significant for all years. This is also true with regard to Dr. Barnow’s multiple regression analyses controlling for pay grade, which resulted in statistically significant disparities adverse to black employees *673 in only three of the five years at issue. The multiple regression analyses controlling for job group, however, produced statistically significant adverse disparities for all years compared.24

23

While Dr. Barnow’s report actually portrays this

number as 33%, or 35 out of 107 comparisons, he

testified that there were actually 109 comparisons. See

Barnow Depo., at 278, 283.

24

Although considered by the court for purposes of the

present inquiry, Dr. Barnow’s regression analyses

relating to hourly employees are problematic. Dr.

Barnow testified that he was missing data for large

percentages of the hourly employee population. See

Barnow Depo., at 357–63. As such, the regression

analyses show statistically significant disparities only

for those employees included in the regressions. Dr.

Barnow testified that the analyses did not show whether

or not the group of employees included in the

regressions are the same with regard to racial

composition as the group of employees not included.

Id. at 365–66. Dr. Barnow also testified that the large

percentages of employees not included tempered his

confidence in the analyses. Id. at 361.

22

The six pay grades are: Factory GPR Grades 7, 11, 13,

and 17; Georgia Plant Protection; and Tech & Office

GPR Grade 15. See Pl. 83, Barnow Yarbrough Rpt., at

18–22.

Dr. Barnow’s comparison of compensation for hourly

As with the hourly employees, Dr. Barnow analyzed compensation for salaried employees by pay grade, job group, and using multiple regression analyses. In comparing compensation of salaried employees across 35 to 50 pay grades, using January 31 of each year from 1996 through 2001 as the date of comparison, Dr. Barnow found a statistically significant disparity adverse to blacks
13

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

in 27 of 147 comparisons, equaling 18.4%. Dr. Barnow stated in his report that this number was more than the percentage one would expect to occur merely by chance, but as with the comparisons of hourly employees, there exists wide variation when the pay grades are examined individually. For example, eight of the comparisons resulted in a statistically significant disparity favoring blacks. Additionally, of all the pay grades compared, only eleven experienced a significant disparity adverse to blacks.25 One pay grade actually experienced a statistically significant disparity favoring blacks during all five years in comparison. See Pl.Ex. 41, Barnow Reid Rpt., at 24-33. Similar variations are found in Dr. Barnow’s job group comparisons. Although Dr. Barnow found a statistically significant disparity adverse to blacks in 38 of 112 comparisons, equaling approximately 34%, vast differences exist between individual job groups. Job group 01B, for example, titled “Executive & Middle Management Managers,” experienced no significantly adverse disparities in any of the five years in comparison, while job group 02A, titled “Business Management,” experienced such disparities in every year in comparison. Other groups experienced varying disparities. See id. at 15-22. The multiple regression analyses for salaried compensation resulted in statistically significant disparities for all five years. See id. at 34-35.26

25

The eleven pay grades are: SM004, SM005, SM006,

SM008, SM0MH, SM0MM, SZ004, SZ007, SZ008,

SZE07, and SZE10. See Pl.Ex. 41, Barnow Reid Rpt.,

at 24–33.

26

Dr. Barnow was missing data for approximately 40% of

the salaried employees at the Marietta facility. See

Pl.Ex. 41, Barnow Reid Rpt., at 34 n.14; Barnow

Depo., at 505. As with the regressions for hourly

employees, Dr. Barnow testified that he did not know

the composition of the group of employees for which

data were missing. He also testified that a possibility

existed that the inclusion of the missing data could

change his conclusions. See Barnow Depo., at 506–07.

Plaintiffs’ statistical evidence relating to compensation shows neither commonality nor typicality. Rather, it shows that the experience of both hourly and salaried employees differed over time based on their pay grades and job groups. Black employees in pay grades or job groups for which there was never a statistically significant disparity adverse to blacks do not readily share common issues with black employees in pay grades or job groups where such a disparity existed. This is even more true for black employees in pay grades or job groups for which there were statistically significant disparities favoring black employees. Similarly, in light of the differences expressed in the statistical evidence, Plaintiffs have not

shown that they are typical to those employees in the unaffected pay grades and job groups.27

27

As with promotions, the collective bargaining

agreements negotiated by the two separate collective

bargaining units at the Marietta facility contain

different compensation provisions. Compare Def. Ex.

68, at 101-28 and Def. Ex. 70, at 100-29 with Def. Ex.

69, at 62-81. Accordingly, the same problems with

commonality and typicality that affect the promotions

claims of hourly employees also affect their

compensation claims.

*674 e. Performance Evaluations
[13] Because the Yarbrough Plaintiffs do not raise any claims of discrimination in performance evaluations, Dr. Barnow analyzed performance evaluations only for the salaried employees at the Marietta facility. In comparing average evaluation scores between blacks and whites across salaried pay grades from 1996 to 2000, Dr. Barnow found that 17 of 131, or approximately 13%, resulted in statistically significant disparities adverse to blacks. When each pay grade is considered individually, however, the results once again show wide variations. In fact, the only pay grade that consistently experienced a significantly adverse disparity in all five years was pay grade SM0MS. The other pay grades had varying disparities over time, and many pay grades showed no significantly adverse disparities at all. See Pl.Ex. 41, Barnow Reid Rpt., at 51-62; Barnow Depo., at 537. In comparing average evaluation scores by job group, Dr. Barnow found that 26 of 81 comparisons, or roughly 31%, resulted in statistically significant disparities adverse to blacks. As with the pay grade comparisons, however, only one job group experienced significantly adverse disparities over all five years. The other job groups experienced varying disparities over time, and many job groups showed no significantly adverse disparities at all. See Pl.Ex. 41, Barnow Reid Rpt., at 3642, 49. In his multiple regression analyses, Dr. Barnow found statistically significant disparities adverse to blacks for all five years when controlling for pay grade, but such a disparity existed for only three of the five years when controlling for job group. See id. at 4-5, 63.28

28

Dr. Barnow was missing data for approximately 45% of

the salaried employees in these regressions. See Pl.Ex.

41, Barnow Reid Rpt., at 63 n.19; Barnow Depo., at

543. Thus, the same problems noted earlier with regard

to missing data would apply to these regressions as

well.

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Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

Plaintiffs’ statistical evidence relating to performance evaluations, like that concerning compensation, does not demonstrate commonality or typicality. As with compensation, the evidence reveals wide variations over time depending on job group and pay grade. Similarly, Plaintiffs’ anecdotal evidence does little to bolster their claims of class-wide discrimination with regard to evaluations. Most of the statements in the relevant affidavits pertaining to evaluations merely complain that the affiant received scores lower than he or she thought should have been given, without any reference to a similarly situated white employee who received better scores. Thus, most of the affidavits show only that the affiants were displeased with their evaluations, not that the evaluations resulted in racial disparities or resulted from racial animus. Plaintiffs, in short, have not shown that their evaluations claims are susceptible to common proof, nor have they linked their own injuries in this regard to the injuries suffered by the broad classes they seek to represent.
f. Hostile Environment and Retaliation
[14] Plaintiffs make no serious effort to explain how their claims of hostile work environment and retaliation satisfy the commonality and typicality requirements of Rule 23(a). Plaintiffs’ hostile environment claim will require Plaintiffs to “demonstrate that the actions of the defendants altered the conditions of the workplace, creating an objectively abusive and hostile atmosphere.” Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir.1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Additionally, Plaintiffs will have to show that the victims of this hostile environment subjectively perceived it to be abusive. See Harris, 510 U.S. at 21–22, 114 S.Ct. 367. Cf. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.1999) (“Establishing that harassing conduct was sufficiently severe or pervasive to alter an employee’s terms or conditions of employment includes a subjective and an objective component.”). Furthermore, to establish their hostile environment claims on a class-wide basis— i.e., that a racially hostile work environment was Defendants’ “standard operating procedure,”—Plaintiffs will need to show “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory events.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).
*675 It should be noted that not all offensive conduct constitutes a hostile work environment under Title VII. Indeed, the “standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’ ” Faragher v. Boca

Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). This means that employees must tolerate a certain amount of boorishness, ignorance, and offensive behavior from those individuals with whom they work. It is only when the offensive conduct is so severe and pervasive that it alters the conditions of the victim’s employment and creates an abusive working environment that the law is violated. See Harris, 510 U.S. at 21, 114 S.Ct. 367. The racially offensive conduct must permeate the victim’s workplace. See Edwards, 49 F.3d at 1521 (explaining that, to succeed on racially hostile environment claim, plaintiff would need to show that offensive conduct was “so commonplace, overt and denigrating that [it] created an atmosphere charged with racial hostility.”) (internal quotations and citation omitted). Whether or not harassing behavior objectively alters the conditions of employment requires consideration of: the frequency of the conduct; the severity of the conduct; whether the conduct is physically threatening or humiliating or merely an offensive utterance; and whether the conduct unreasonably interferes with the victim’s job performance. See Harris, 510 U.S. at 23, 114 S.Ct. 367; Edwards, 49 F.3d at 152122. In short, hostile environment claims are extremely fact-intensive, see Mendoza, 195 F.3d at 1246, and they require a showing of intentional discrimination after a consideration of the totality of the circumstances. See id. These factors weigh against a finding of commonality and typicality.
After reviewing the anecdotal evidence submitted by Plaintiffs, the court cannot find that the various acts allegedly constituting harassment are common among members of the putative classes or typical to the harassment suffered by the named Plaintiffs. As an initial matter, a significant portion of the affidavits submitted by putative class members do not even complain about a hostile work environment, severely weakening Plaintiffs’ assertions of commonality and typicality as to their claims of harassment. Additionally, as with the complaints regarding promotions, training, compensation, and evaluations, many of the incidents of hostile work environment described in the affidavits are outside the limitations periods for which Plaintiffs have demonstrated standing. Of those that are within the limitations periods, the evidence shows several different allegations of harassment. For example, Plaintiff Reid complained that he saw “racially hostile graffiti” in the restroom. See Reid Aff., at ¶ 27. Plaintiff Moore testified that she was watched and monitored constantly even though her white co-workers were not, and that some of her co-workers displayed Confederate flags at their work stations. See V. Moore Aff., at ¶ 27. Plaintiff West complained that he had to document his overtime and relinquish his driving pass even though white co-workers were not treated similarly. See West Aff., at ¶ 22. Plaintiff Combs testified that he
15

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

was subjected to racial jokes and slurs on several occasions and was once shown a “Back to Africa” ticket. See Combs Aff., at ¶ 17. Plaintiff Elliot complained of several references to a “Back to Africa” ticket, several racial slurs, and one instance where a co-worker displayed a noose for two weeks. See Elliot Aff., at ¶ 18. Putative class member Floyd Baxter stated that he overheard a supervisor refer to a black employee as “nigger” on one occasion. See Baxter Aff., at ¶ 16. Putative class member Anthony Cook stated that, on one occasion, a white coworker sprayed disinfectant at him. See Cook Aff., at ¶ 14. Putative class member Garfield Baptiste complained about one incident where a white co-worker told him that blacks cannot paint as well as whites. See Garfield Aff., at ¶ 15. Putative class member Marvin Barber stated that he was approached on two occasions by co-workers with Ku Klux Klan paraphernalia, including a “Klu [sic] Klux Klan knife,” and that it was common for white supervisors in his area to refer to blacks as “niggers,” “monkeys,” or “apes.” See Barber Aff., at ¶ 17.
These examples demonstrate that the actions constituting the alleged hostile environment *676 occurred with varying frequency and possessed varying degrees of severity. Moreover, the events described in the affidavits tend to focus on individual actions rather than show an overarching policy of subjecting blacks as a group to a common hostile work environment. The court does not see a common discriminatory pattern in the affidavits submitted by Plaintiffs, and those individuals who have complained only about the occasional, sporadic acts of co-workers are not typical of other individuals who described much more severe and pervasive conduct.29 Plaintiffs have made no attempt to explain how their hostile environment claims can be proven on a class-wide basis given that many members of the class did not experience harassment and that those who did complained of harassment in various forms. Based on the record, and Plaintiffs’ failure to engage in any discussion that their harassment claims are susceptible to class-wide proof, the court cannot find that commonality and typicality have been satisfied with respect to such claims.

29

The fact that many of the Plaintiffs complain about the

acts of co-workers rather than supervisors could affect

their typicality to the class and their adequacy to

represent the class in a hostile environment claim. See

Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364

(explaining that commonality and typicality tend to

merge not only with each other, but with the adequacy

of representation requirement as well). An employer is

strictly liable for harassing conduct if the harasser is a

supervisor and took a tangible employment action

against the victim as a result of the harassment. See

Johnson v. Booker T. Washington Broadcasting

Service, Inc., 234 F.3d 501, 509 (11th Cir.2000). If the

harasser is not a supervisor, however, the employer is

only liable if it “knew (actual notice) or should have

known (constructive notice) of the harassment and failed to take remedial action,” which is significantly more difficult to prove. Id. at 510.
[15] Similarly, the court finds that Plaintiffs have failed to demonstrate commonality or typicality with respect to their retaliation claims. As with their hostile environment claims, Plaintiffs’ claims of retaliation are fact-intensive and require a showing of intentional discrimination. See Wideman v. Wal–Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir.1998) (stating that plaintiff alleging Title VII retaliation must show causal relation between statutorily protected activity and adverse employment action). Plaintiffs point to no evidence whatsoever supporting a claim of class-wide retaliation. Based on the record, and Plaintiffs’ failure to engage in any discussion that their retaliation claims are susceptible to class-wide proof, the court cannot find that the commonality and typicality requirements have been satisfied as to these claims.
g. Plaintiffs’ Assertions of Discretionary Decisionmaking
[16] In support of their motions for class certification, Plaintiffs cite to several decisions for the proposition that classes are properly certified in employment discrimination cases where it is shown that the decisionmaking processes are subjective. The cases cited by Plaintiffs are distinguishable and do not bolster Plaintiffs’ claims of commonality and typicality in the instant cases. For example, in Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.1986), where the court found erroneous the decertification of a class of female employees alleging gender discrimination, the employer had a policy of “overt workforce sex discrimination.” Id. at 1551. Pursuant to this policy, the higher-paying jobs in the employer’s production plant were deliberately reserved for men, and women were confined to lowerpaying non-plant jobs. This system was maintained by word-of-mouth hiring; there was no posting or announcing of vacancies, nor was there a bidding process or formal job applications. There were also no written selection criteria. Id. at 1551–52. In other words, “the system was one of entirely subjective evaluation.” Id. at 1552 (emphasis added).
In the instant cases, by contrast, Plaintiffs have shown neither an overt policy of discrimination nor that the promotions, training, compensation, and evaluations systems the Marietta facility were entirely subjective. The collective bargaining agreements for hourly positions, as well as certain management directives for salaried positions, introduced at least some objective criteria with regard to compensation and promotions. See generally
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Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

Def. Ex. 29, Hamlin Depo., at ex. 7; *677 Def. Ex. 33, Bagerski Depo., at ex. 3, 11, 12; Def. 68, at 72-77, 10128; Def. Ex. 69, at 31, 62-81; Def. Ex. 70, at 73-76, 10029. Moreover, the statistical evidence shows that whatever subjective processes were utilized, they did not affect all black employees in similar ways.
Plaintiffs also cite the non-binding decision in Caridad v. Metro–North Commuter R., 191 F.3d 283 (2d Cir.1999). This case is also distinguishable. In Caridad, the plaintiffs alleged that the defendant’s disciplinary procedures and promotions policy vested too much discretion in department supervisors, resulting in discrimination against black employees. The court reversed the district court’s denial of class certification for failure to meet commonality and typicality, concluding that subjective decision-making did not automatically preclude a finding that those requirements were satisfied. The court explained, however, that “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 ....” Id. at 292. The court also commented that “[w]here the decision-making process is difficult to review because of the role of subjective assessment, significant statistical disparities are relevant to determining whether the challenged employment practice has a class-wide impact.” Id. Noting that the statistical evidence showed significant disparities with regard to discipline in 48 of 69 work positions and that being black reduced the likelihood of promotion by 33%, the court concluded that the evidence supported a finding of commonality and typicality as to promotions for all black employees and as to discipline for black employees in the relevant 48 positions. Id. at 292–93.
Unlike Caridad, the statistical evidence in the instant cases demonstrates wide variations in disparities depending on job group, pay grade, year of comparison, and the particular claim for which relief is sought. Additionally, unlike either Cox or Caridad, Plaintiffs in these cases seek relief for hostile environment and retaliation claims for which there appears to be no classwide proof. The addition of these claims, and the broad class definitions proposed by Plaintiffs, make the instant cases look more like improper “across-the-board” classes than the narrowly focused classes at issue in Cox and Caridad. See Washington, 959 F.2d at 1569–70.
As noted earlier, the Supreme Court has indicated that “entirely subjective decisionmaking processes” may “conceivably justify” certification of a broad class when the claim is supported by “significant proof.” See Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. 2364. Plaintiffs have not submitted “significant proof” that the decision-making processes at Lockheed’s Marietta facility were entirely subjective, that these processes resulted in statistically significant disparities for all black employees regardless

of job group or pay grade, or that these processes were part of a general policy of intentional discrimination. Simply put, Plaintiffs have not shown “the existence of an identifiable employment pattern, practice or policy that demonstrably affects all members of a class in substantively, if not completely, comparable ways.” Stastny, 628 F.2d at 273. Despite the discretion allegedly given to first-level supervisors, the court cannot find commonality and typicality on this record for the expansive classes Plaintiffs seek to represent. As explained by the Supreme Court:
Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion [or other job benefit] 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 claims 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.
Id. at 157, 102 S.Ct. 2364. See also Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir.1985) (indicating that plaintiffs may not “simply leap from the premise that they were the victims of discrimination to the position that others must have been”). In the instant cases, Plaintiffs have not bridged that gap.
h. Summary
For the foregoing reasons, the court finds that Plaintiffs have not satisfied Rule 23(a)’s *678 commonality and typicality requirements. The evidence shows that the actual employment practices in Lockheed’s Aeronautics area were developed and implemented on the local level, and Plaintiffs have not shown commonality and typicality with respect to employees at facilities other than Marietta. With regard to the Marietta facility, Plaintiffs have offered no evidence that their promotions, training, hostile work environment, or retaliation claims are susceptible to class-wide proof or are typical to the proposed classes. Moreover, Plaintiffs’ statistical evidence relating to their compensation and evaluation claims demonstrates that those claims are not common or typical. Finally, Plaintiffs’ assertions of discretionary and subjective decision-making do not satisfy the commonality and typicality requirements in the instant cases.
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Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

3. Adequacy of Representation
The Eleventh Circuit has explained that “[t]he adequate representation requirement involves questions of whether plaintiffs’ counsel are qualified, experienced, and generally able to conduct the proposed litigation, and of whether plaintiffs have interests antagonistic to those of the rest of the class.” Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir.1985). See also Falcon, 457 U.S. at 157– 58 n. 13, 102 S.Ct. 2364 (indicating that adequacy requirement “raises concerns about the competency of class counsel and conflicts of interests”). The court notes that, even though it is their burden to prove adequacy of representation, Plaintiffs’ motions do not cite to a single piece of record evidence in support of their assertions that this requirement is satisfied.30 This failure does little to allay those concerns of the court, expressed to Plaintiffs’ counsel on prior occasions, about the manner in which these cases have been prosecuted by Plaintiffs. For example, counsel’s mismanagement of expert discovery nearly resulted in Plaintiffs’ experts being stricken, and there has been more than one episode during this litigation where the attorneys for Plaintiffs appeared to be less than adequately prepared. Nonetheless, given the court’s conclusions with regard to commonality and typicality, as well as the following discussion of the requirements of Rule 23(b), the court sees no need at this time to engage in a full analysis of the adequacy requirement and will not rely on that requirement in denying Plaintiffs’ motions.

30

With their replies, Plaintiffs have submitted the

affidavit of attorney Keith Givens to bolster their

contentions regarding the adequacy of counsel. See

Pl.Ex. 105. As a general rule, a party may not submit

evidence with a reply that was available but not

included with the original motion.

F. Requirements of Rule 23(b) Because Plaintiffs must satisfy the requirements of both Rule 23(a) and Rule 23(b) to achieve class certification, the court’s foregoing conclusions dispose of the certification issue. Nonetheless, assuming arguendo that Plaintiffs could meet all of their Rule 23(a) obligations, their motions still fail because none of the proposed classes is certifiable under Rule 23(b). For the following reasons, the court finds that Plaintiffs cannot achieve class certification under the requirements of either Rule 23(b)(2) or Rule 23(b)(3), nor will the court certify a class under Plaintiffs’ proposed “hybrid” approach.

1. Certification Under Rule 23(b)(2) [17] Plaintiffs first urge the court to certify their proposed classes under Rule 23(b)(2). That provision allows the maintenance of a class action where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). Although the rule expressly speaks only in terms of injunctive and declaratory relief, “[m]onetary relief may be obtained in a Rule 23(b)(2) class action so long as the predominant relief sought is injunctive and declaratory.” Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001).31 *679 “[M]onetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Id. (alteration and emphasis in original) (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998)). In the instant actions, Plaintiffs seek monetary relief in the form of “front and back pay, lost fringe benefits, including any lost benefits that would have otherwise been included in the 401(k) pension plans of Plaintiffs and the class,” see Pl. Complaints, Prayers For Relief, ¶ d, as well as “compensatory damages, emotional distress damages, pain and suffering damages, and punitive damages.” See id. at ¶ e. Because Plaintiffs clearly seek monetary relief on behalf of the putative classes, the question becomes whether the monetary relief sought is incidental to any injunctive relief also requested.

31

“Prior to 1991, only equitable relief, primarily back

pay, was available to prevailing Title VII plaintiffs; the

statute provided no authority for an award of punitive

or compensatory damages.” Kolstad v. American

Dental Ass’n, 527 U.S. 526, 533–34, 119 S.Ct. 2118,

144 L.Ed.2d 494 (1999). With the passage of the Civil

Rights Act of 1991, Title VII plaintiffs may now seek

both compensatory and punitive damages. See id.; see

also 42 U.S.C. § 1981a(b).

In Murray, the Eleventh Circuit was confronted with the same question in the context of a Rule 23(b)(2) class action alleging disability discrimination. At issue in that case was whether the plaintiffs’ claims for compensatory damages, which sought to remedy the plaintiffs’ “pain and suffering, mental anguish, and humiliation,” were incidental to their claims for injunctive and declaratory relief. See Murray, 244 F.3d at 812. Noting that it had not previously established specific criteria for determining when monetary relief is incidental to equitable relief, the court turned to the Fifth Circuit’s opinion in Allison for guidance. Quoting Allison, the court in Murray explained:
By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive
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Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

or declaratory relief .... Ideally, incidental damages should be only those to which class members automatically would be entitled once liability is established .... Liability for incidental damages should not ... entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions.
Id. (alterations and emphasis in original) (quoting Allison, 151 F.3d at 415). Under this standard, the court held that the plaintiffs did not seek damages as a group remedy but rather as a remedy for “inherently individual injuries” that would “compel[ ] an inquiry into each class member’s individual circumstances.” Id. Accordingly, the plaintiffs sought damages “to which they would not be automatically entitled even if [the defendants’] liability to the class [was] established,” and the district court abused its discretion by certifying a Rule 23(b)(2) class that encompassed the plaintiffs’ damages claims. Id.
As in Murray, Plaintiffs’ claims for compensatory damages in the instant cases are not incidental to their claims for injunctive relief and therefore may not be certified in a class action under Rule 23(b)(2). Like the plaintiffs in Murray, Plaintiffs here seek damages to remedy their alleged emotional distress and pain and suffering, injuries that are “inherently individual.” See Murray, 244 F.3d at 812. Moreover, similar to Murray, assessing damages for these injuries would necessitate an inquiry into the specific circumstances of each individual class member. See id. See also Lemon v. International Union of Operating Eng’rs, Local No. 139, 216 F.3d 577, 581 (7th Cir.2000) (explaining that claim for damages under Title VII “depends on an individualized analysis of each class member’s circumstances and requires additional hearings to resolve the disparate merits of each individual’s case”); Allison, 151 F.3d at 417–18 (stating that “[t]he very nature of these damages ... necessarily implicates the subjective differences of each plaintiff’s circumstances” thereby “requiring individualized proof of discrimination and injury to each class member”). Thus, the compensatory damages sought by Plaintiffs are not incidental to the requested injunctive relief, and certification under Rule 23(b)(2) is inappropriate.
Ignoring the significance Murray has on the instant cases, Plaintiffs rely extensively on the Eleventh Circuit’s decision in Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir.1983). In that case, the district court *680 certified a Rule 23(b)(2) class for purposes of approving a settlement of the plaintiffs’ employment discrimination

claims. Under the terms of the settlement, the plaintiff class received not only injunctive and declaratory relief, but also a lump sum back pay award of $43,775. Approximately one-half of this back pay award was to be received by the eight named plaintiffs, with the other half being distributed among the remaining 118 members of the class. A substantial number of the class members objected to the method of distributing the back pay award, and they appealed the settlement to the Eleventh Circuit. See id. at 1146–47.
Finding that the back pay allocation was facially unfair and that the evidentiary record was not adequately developed to overcome that unfairness, the court of appeals first reversed the district court’s approval of the settlement and remanded for further proceedings. See id. at 1148–51. The court then held that the district court abused its discretion by not affording an opt-out procedure to members of the settlement class. The court began by acknowledging that the class was properly certified under Rule 23(b)(2) and that an award of back pay was cognizable under that provision because it was “an integral part of [Title VII’s] statutory equitable remedy.” Id. at 1152. Nonetheless, finding that the monetary relief at issue was “functionally more similar to a(b)(3) class than to a(b)(2) class,” the court concluded that “the opt out procedure of (b)(3) must be applied.” Id. at 1155. The court explained its conclusion by stressing the differences between the Rule 23(b)(2) and Rule 23(b)(3) mechanisms. Rule 23(b)(2) by its very nature contemplates claims on behalf of a homogeneous and cohesive class, “claims resting on the same grounds and applying more or less equally to all members of the class.” Id. Accordingly, the relief envisioned by Rule 23(b)(2) is that which remedies an injury to the class as a whole. Id. Back pay constitutes such relief because it is equitable in nature and can be determined by the discretion of the court without the need for a jury. See id. at 1152. Money damages, by contrast, “are directly related to the disparate merits of individual claims and are not generally applicable to the claims of the class as a whole.” Id. at 1156 (internal quotations omitted). As such, cases seeking money damages are more properly certified under Rule 23(b)(3), which envisions a class more heterogeneous in nature. Id. Because of this heterogeneity, however, Rule 23(b)(3) requires findings that common issues predominate over individual issues and that class treatment is superior “to all other available methods for the fair and efficient adjudication of the dispute,” findings not required under Rule 23(b)(2). Id. Moreover, Rule 23(b)(3) classes require certain procedural safeguards, such as notice and opt-out rights, that are not normally provided in Rule 23(b)(2) class actions. Id. Pursuant to the method of distribution approved by the district court, the named plaintiffs received substantially more back pay than did the other members of the class, which reduced the cohesion of the class by blurring somewhat the distinction between class-
19

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

wide equitable relief and individual compensatory damages. Id. at 1159–60. Accordingly, the court required that opt-out rights be given to the members of the settlement class. Id. at 1160.
Plaintiffs assert that Holmes allows their damages claims to be certified in a Rule 23(b)(2) class action. The court disagrees. First, Holmes was concerned only with claims for equitable monetary relief awarded by virtue of a settlement agreement. That decision did not address, nor did it have any occasion to address, claims for legal monetary remedies such as compensatory damages that would be tried to a jury. Therefore, Holmes is inapposite to the issue currently facing this court. Second, if anything, the decision in Holmes reinforces that Plaintiffs’ claims for compensatory damages are not properly included in a Rule 23(b)(2) class action. By stressing the need for cohesion and homogeneity under Rule 23(b)(2), and by pointing out the differences between back pay and money damages, the court in Holmes demonstrated that a Rule 23(b)(2) class action is not the proper device for seeking individualized legal remedies. Although the Holmes court expressed concern that the method of allocation at issue in that case somewhat blurred the distinction *681 between back pay and money damages, the relief was still equitable in nature, determined by the court and designed to remedy a common injury suffered by all the class members.
The distinction between back pay and money damages is not inconsequential. Once liability is established in an employment discrimination class action certified under Rule 23(b)(2), each member of the class, solely by virtue of being a member of the class, is entitled to equitable remedies designed to make him or her “whole.” See Holmes, 706 F.2d at 1157 (stating that finding of liability on claims common to class results in equitable relief). An award of back pay, although somewhat individualized, falls within the class of remedies available because it is “subsumed by the traditional equitable concepts of reinstatement and restitution,” which apply to the class in common. Williams v. Owens–Illinois, Inc., 665 F.2d 918, 929 (9th Cir.1982). See also Allison, 151 F.3d at 415 (describing back pay as “equitable remedy similar to other forms of affirmative injunctive relief”). Not so with the damages sought by Plaintiffs here. Compensatory damages “are anything but equitable in nature; they are, in fact, the very definition of legal relief.” Rutstein v. Avis Rent–A–Car Systems, Inc., 211 F.3d 1228, 1239 (11th Cir.2000). Thus, to obtain compensatory damages, especially for emotional distress, “individual plaintiffs must prove that ‘injury actually was caused.’ ” Id. (quoting Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). For this reason, unlike back pay, compensatory damages are not automatically available to class members “even if Defendants’ liability to the class is established.” Murray, 244 F.3d at 812.32

32

Moreover, “establishing the amount of compensatory

damages due each plaintiff is a far more complex and

uncertain exercise than the determination of back pay,

and greatly complicates the management of a class

action.” Williams, 665 F.2d at 929.

The same is true with regard to Plaintiffs’ claims for punitive damages. To recover punitive damages on their Title VII claims, Plaintiffs must show that Defendants acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1) (emphasis added); see also Kolstad, 527 U.S. at 534, 119 S.Ct. 2118. The statute plainly requires a fact-specific inquiry into the circumstances of the individual plaintiff, see Lemon, 216 F.3d at 581, and punitive damages therefore “cannot be assessed merely upon a finding that the defendant engaged in a pattern or practice of discrimination.” Allison, 151 F.3d at 417. Furthermore, any punitive damages awarded to Plaintiffs must bear a reasonable relationship to their compensatory damages. See BMW of N. America, Inc. v. Gore, 517 U.S. 559, 580–83, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). The amount of punitive damages Plaintiffs may obtain therefore depends directly on the amount of compensatory damages recovered, and “being dependent on nonincidental compensatory damages, punitive damages are also non-incidental.” Allison, 151 F.3d at 418.
In sum, Plaintiffs’ claims for compensatory and punitive damages seek to remedy inherently individual injuries and can be recovered only after examining the particular circumstances of each individual class member. These claims are not properly sought as a group remedy and are not incidental to the injunctive relief prayed for in Plaintiffs’ complaints. As such, certification of the proposed classes under Rule 23(b)(2) is not appropriate.
2. Certification Under Rule 23(b)(3) [18] Plaintiffs also urge the court to certify their proposed classes under Rule 23(b)(3), which allows the maintenance of a class action if “the court finds that the questions of law or fact common to the members of the class predominate over any other questions affecting only individual members, and that a class action is superior to other available methods for fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). A nonexhaustive list of matters pertinent to the required findings of predominance and superiority are delineated in the rule: (a) “the interest of members of the class in individually controlling the prosecution or defense of separate actions”; (b) “the extent and nature of any litigation concerning *682 the controversy already commenced by or against members of the class”; (c) “the desirability or undesirability of concentrating the litigation of the claims in the particular forum”; and (d)

20

Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

“the difficulties likely to be encountered in the management of a class action.” Fed.R.Civ.P. 23(b)(3)(A)(D). See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615–16, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). As mentioned above, Rule 23(b)(3) classes are generally heterogeneous in nature, and the predominance and superiority requirements, which are not found in Rule 23(b)(2), reflect that heterogeneity. Also, because classes certified under Rule 23(b)(3) lack the inherent cohesion of Rule 23(b)(2) classes, individual notice to all class members is required, and each class member must be provided with the opportunity to opt out of the class litigation. See Fed.R.Civ.P. 23(c)(2); Holmes, 706 F.2d at 1156. Plaintiffs assert that their proposed classes satisfy Rule 23(b)(3)’s requirements because the common question of Defendants’ alleged pattern and practice of discrimination predominates over individual issues and because resolution of their claims in class litigation is superior to hundreds of individual lawsuits. The court disagrees.
The court begins its analysis of these issues by reviewing the Fifth Circuit’s decision in Allison, an employment discrimination case very similar to the ones brought by Plaintiffs here. The plaintiffs in Allison brought suit on behalf of black employees and applicants of the defendant employer, alleging that the defendant engaged in classwide race discrimination “with respect to general hiring, promotion, compensation, and training policies.” Allison, 151 F.3d at 407. The plaintiffs moved for class certification, which motion was denied by the district court, and the Fifth Circuit affirmed. After first determining that the plaintiffs could not achieve class certification under Rule 23(b)(2) due to their claims for damages, the court turned its attention to the requirements of Rule 23(b)(3). The court concluded that the plaintiffs could not meet the rule’s predomination requirement because their claims for compensatory and punitive damages focused “almost entirely on facts and issues specific to individuals rather than the class as a whole.” Id. at 419. Examples of such facts and issues included: “what kind of discrimination was each plaintiff subjected to; how did it affect each plaintiff emotionally and physically, at work and at home; [and] what medical treatment did each plaintiff receive and at what expense.” Id. Because of these individual issues, the court explained, “an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.” Id. (internal quotations omitted). This degeneration, in turn, diminished the superiority of the class action device for adjudicating the plaintiffs’ claims by creating numerous manageability problems. The requirement that the claims be tried to a jury exacerbated those problems. Id. at 419–20. Therefore, despite their contention that the defendant engaged in a pattern and practice of discrimination common to all black employees, the plaintiffs’ claims actually depended on the resolution of individual issues, and certification under

Rule 23(b)(3) was improper. Id. at 420.
Similar conclusions were reached by the Eleventh Circuit in two decisions addressing discrimination claims outside of the employment context. See Avis, 211 F.3d 1228 (11th Cir.2000); Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999 (11th Cir.1997). In Jackson, the plaintiffs alleged that the defendant had “a nationwide practice or policy of discriminating against its customers and its employees on the basis of race.” Jackson, 130 F.3d at 1001. Specifically, the plaintiffs asserted, first, that the defendant either refused to provide them with accommodations or provided them with substandard accommodations, and second, that the defendant’s discrimination against blacks created a retaliatory and hostile work environment. The district court entered an order allowing communication with potential class members, and it subsequently certified a class with regard to the plaintiffs’ customer-based claims. The question of class certification with regard to the plaintiffs’ employment-based claims was referred to a magistrate judge. The defendant sought relief from these orders via a petition for mandamus in the Eleventh Circuit. Id. at 1001–03. The court of appeals granted the writ, directing the district court *683 to vacate its order concerning class communications and to decertify the customer class. Rejecting the plaintiffs’ argument that the defendant’s alleged pattern and practice of discrimination satisfied Rule 23(b)(3)’s predominance requirement, the court explained that the plaintiffs’ claims would “require distinctly case-specific inquiries into the facts surrounding each alleged incident of discrimination.” Id. at 1006. Indeed, the court expressed its expectation that “most, if not all, of the plaintiffs’ claims [would] stand or fall, not on the answer to the question whether [the defendant] ha[d] a practice or policy of racial discrimination, but on the resolution of these highly case-specific factual issues.” Id. The court advanced a similar opinion as to the not-yet certified employee class, expressing its doubt that the pattern and practice issue common to the class would predominate over “those issues that are subject only to individualized proof.” Id. at 1008.
In Avis, the Eleventh Circuit again addressed the requirements of Rule 23(b)(3) where the plaintiffs alleged systemic discrimination. The Avis plaintiffs alleged that the defendant, pursuant to a pattern and practice of racial discrimination, had refused to give the plaintiffs corporate accounts on the basis of their Jewish ancestry. The district court certified a class under Rule 23(b)(3). See Avis, 211 F.3d at 1230-33. Relying on its prior decision in Jackson, the Eleventh Circuit reversed. As in Jackson, the court concluded that common issues did not predominate because each plaintiff bore the burden of establishing “that he or she suffered from intentional discrimination,” and liability therefore rested on individualized and casespecific issues. Id. at 1235. In drawing this conclusion, the court specifically rejected the plaintiffs’ argument that
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Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

the defendant’s alleged pattern and practice of discrimination, common to all of the class members, predominated over any individual issues. After listing several issues pertinent to each plaintiff’s individual case, the court explained:
The importance of these individualized issues, relative to the one common issue of whether [the defendant] maintains a policy or practice of discrimination, is amplified by the fact that even if plaintiffs can demonstrate that a general policy or practice of discrimination was applied in their cases, [the defendant] can escape liability by showing that an individual plaintiff would have been denied or terminated even if no such policy or practice had existed.
Id. at 1236.
The Avis court also rejected the plaintiffs’ argument that the Supreme Court’s decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), compelled a different result. The court recognized that under Teamsters and its progeny, once a discriminatory pattern or practice is established in an employment discrimination class action, a presumption arises that the individual members of the class have been discriminated against in accordance with that pattern or practice. See Avis, 211 F.3d at 1236–37. See also Teamsters, 431 U.S. at 361–62, 97 S.Ct. 1843. Nonetheless, the court in Avis found two important differences between Teamsters and the case before it. First, the court distinguished Teamsters by pointing out that the case before it did not allege employment discrimination. The court noted that the Teamsters presumption applies in employment discrimination cases only as a substitute for a plaintiff’s prima facie burden of showing that he or she was qualified for the job. See Avis, 211 F.3d at 1238 (“Teamsters therefore stands for the proposition that where a plaintiff class can demonstrate a policy or practice of discrimination so pervasive that a court is justified in concluding that qualifications were entirely irrelevant to the employer ... then individual plaintiffs are relieved of the prima facie burden of demonstrating that they were qualified for the job at issue in subsequent individual proceedings.”). In the case before it, however, the plaintiffs had to show “an actual intent to discriminate against an individual plaintiff on the basis of his or her ethnicity,” and a finding that the defendant had a pattern or practice of discrimination was not a “meaningful substitute” for that element of the plaintiffs’ case. Id. at

1239. Second, and according to the court “more important,” the relief to which a plaintiff class is entitled after a finding of a discriminatory pattern or *684 practice is equitable in nature. The court specifically found the Teamsters framework inappropriate in the case before it “because the establishment of a policy or practice of discrimination cannot trigger the defendant’s liability for damages to all the plaintiffs in the putative class.” Id. (emphasis added). Instead, to recover damages, each plaintiff would “have to prove that [he or she] suffered some injury,” and “[t]he idea that individual injury could be settled on a class-wide basis [was] preposterous.” Id.
The foregoing cases demonstrate that Plaintiffs’ claims cannot satisfy the predominance and superiority requirements of Rule 23(b)(3). As in Allison, Jackson, and Avis, the resolution of Plaintiffs’ discrimination claims in the instant case will require the court to focus on the individual circumstances of each member of the plaintiff class. As all three of the cited decisions attest, entitlement to the compensatory and punitive damages pled in Plaintiffs’ complaints will not derive merely from a finding that Defendants engaged in a pattern and practice of racial discrimination. But it is not the matter of damages alone that renders certification under Rule 23(b)(3) inappropriate. The true problem with certifying Plaintiffs’ discrimination claims under Rule 23(b)(3) concerns not merely a question of relief but a question of liability itself. Claims of discrimination, in employment or elsewhere, depend heavily on the specific circumstances and conditions in which the victim finds himself or herself. An individual’s qualifications, experience, and background for a particular job or contract must be considered in any case where discrimination is alleged. See Avis, 211 F.3d at 1235 (listing age, financial criteria, expected use of rented vehicles, geographic area, and veracity of applicant as individual issues relevant to plaintiffs’ discrimination claim); Jackson, 130 F.3d at 1006 (listing availability of vacant rooms, lack of reservations, and other non-racial characteristics as individual issues relevant to plaintiffs’ discrimination claim); Communications Workers of America, Local 3603 v. BellSouth Telecommunications, Inc., No. 1:99–CV–0857–WBH, 2000 WL 33321176, at *5–6, 85 Fair Empl. Prac. Cases (BNA) 596, 2000 U.S. Dist. LEXIS 20729, at *19–20 (N.D.Ga. Oct. 27, 2000) (Hunt, J.) (listing qualifications, experience, seniority, training, employment record, and employer’s specific reasons for not selecting a particular employee as individual issues defeating class certification of plaintiffs’ employment discrimination claim). Such individual issues are present in every employment discrimination claim regardless of the type of relief sought, although claims for damages certainly enhance such issues. This is especially true where the plaintiffs’ claims involve allegations of discrimination in promotions and hostile work environment, which are by their very nature extremely individualized and fact-intensive claims. Moreover, even
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Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

where a pattern and practice of discrimination has been proven, the employer still has the right to demonstrate that it would have treated any given member of the plaintiff class exactly as it did absent the discrimination. See Teamsters, 431 U.S. at 362, 97 S.Ct. 1843 (explaining that, after showing of discriminatory policy is made, “the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons”). In short, a claim of employment discrimination focuses on “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), and “[q]uestions affecting individual [class] members, such as how they were discriminated against and how it affected them individually, involve not merely separate issues concerning damages, but differences in whether individual members can prove their claims.” Faulk v. Home Oil Co., 186 F.R.D. 660, 664 (M.D.Ala.1999) (Albritton, J.). Under such circumstances, the common issues concerning a defendant’s pattern or practice of discrimination will not always predominate over the individual, case-specific questions relevant to each plaintiff’s claim, nor will the class mechanism envisioned by Rule 23(b)(3) readily constitute a superior method of adjudication. See Allison, 151 F.3d at 419–20 (explaining that individual issues relating to plaintiffs’ claims, exacerbated by demand for jury trial, detract *685 from superiority of class action device).33

33

It is also important to remember that, pursuant to the

Civil Rights Act of 1991, an injured employee has the

possibility of obtaining up to $300,000 in compensatory

and punitive damages on his or her Title VII claim. See

42 U.S.C. § 1981a(b)(3). The potential damages for

violations of § 1981 are not limited. In light of the

substantial recoveries available to each putative class

member in his or her individual lawsuit, “the most

compelling justification for a Rule 23(b)(3) class

action...the possibility of negative value suits...is absent

in this case.” Avis, 211 F.3d at 1241 n. 21 (citations

omitted).

Pointing out that the court in Avis distinguished Teamsters on the ground that Avis did not involve employment, Plaintiffs nonetheless maintain that the presumption created in Teamsters and its progeny renders predominant in these cases the common issue of Defendants’ alleged pattern and practice of discrimination. Plaintiffs correctly assert that, even after Avis, the Teamsters presumption may apply “in private class actions alleging systemic disparate treatment in employment.” Avis, 211 F.3d at 1237. The cases in which that presumption has been applied or discussed, however, almost uniformly concern certification under Rule 23(b)(2). See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Foster v. Board of Sch. Comm’rs,

872 F.2d 1563 (11th Cir.1989); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.1986); Freeman v. Motor Convoy, Inc., 700 F.2d 1339 (11th Cir.1983). Because that rule contains no predomination or superiority requirements, the individual issues that are inherent in a claim of employment discrimination do not defeat certification under Rule 23(b)(2). As demonstrated, however, the primary relief sought in a Rule 23(b)(2) case must be injunctive or declaratory. Until 1991, this requirement was routinely satisfied in employment discrimination cases because only equitable relief was available to Title VII plaintiffs. There was, therefore, little need to attempt certification under Rule 23(b)(3), and the courts rarely had occasion to analyze the predominance of individual or common issues in cases alleging violations of Title VII.
In contrast to pre–1991 litigation, compensatory and punitive damages are now available in Title VII cases. Because Plaintiffs seek legal damages in the instant cases, certification under Rule 23(b)(2) is not appropriate, as discussed above. Plaintiffs must therefore achieve certification, if at all, within the confines of Rule 23(b)(3), which requires a showing that common issues predominate over individual ones. Thus, the individual issues relating to Plaintiffs’ employment discrimination claims are relevant to class certification under Rule 23(b)(3) in a way that they are not under Rule 23(b)(2). This point is implicit in the second, “more important” distinction made by the Avis court, a distinction wholly ignored by Plaintiffs: that the Teamsters presumption entitles individual plaintiffs only to equitable relief but does not trigger liability for individual damages. In other words, the Teamsters presumption applies chiefly in Rule 23(b)(2) cases, where the primary relief available remains equitable in nature and the particularized issues inherent in employment discrimination claims matter little to the class certification decision. Once under the framework of Rule 23(b)(3), on the other hand, these same issues present intrinsic problems for class certification that must be overcome by those seeking certification, no matter what type of relief is sought. The emphases on damages found in Avis and Allison reflect the fact that, practically speaking, there is no reason to conduct a Rule 23(b)(3) analysis where the plaintiffs seek only equitable relief. Because Plaintiffs seek more in these cases, the court must evaluate the many particularized issues involved, and under the circumstances presented by these cases, such issues defeat Rule 23(b)(3) certification.34

34

The court has no occasion to decide that the problems

associated with the individual issues inherent in

discrimination claims will in all circumstances defeat

certification under Rule 23(b)(3). Rather, the court

simply notes that claims of employment discrimination,

by their very nature, present individualized issues that

create obstacles for achieving certification under the

Rule 23(b)(3) framework. In the instant cases, those

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Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (2001)

obstacles have not been overcome. Under what circumstances they might be overcome is not an issue before this court.
In sum, Plaintiffs cannot achieve class certification under Rule 23(b)(3) because the *686 individual issues relating to their employment discrimination claims predominate over the common issue of Defendants’ alleged discriminatory pattern and practice. Additionally, the presence of these particularized issues diminishes the manageability of any class litigation and would result in a series of essentially separate lawsuits. As such, a class action is not superior to other available methods of adjudication For these reasons, certification under Rule 23(b)(3) is not appropriate.
3. Hybrid Certification Under Both Rule 23(b)(2) and Rule 23(b)(3)
Finally, Plaintiffs urge the court to certify a “hybrid” class, whereby their claims for injunctive relief are certified under Rule 23(b)(2) and their claims for damages are certified under Rule 23(b)(3). As demonstrated, Plaintiffs’ discrimination claims are not amenable to certification under Rule 23(b)(3) because individual issues predominate and because class adjudication is not superior to other available methods. Severing Plaintiffs’ claims for injunctive relief does not remedy these problems. Accordingly, Plaintiffs’ proposed “hybrid” certification is not warranted.
[19] There remains, however, the issue of certifying only Plaintiffs’ claims for equitable relief under Rule 23(b)(2). See Murray, 244 F.3d at 812 (implying that Rule 23(b)(2) class may be maintained if damages claims are exempted). The court finds that the Seventh Amendment prohibits such a course of action in the instant cases. The Seventh Amendment preserves the right to a jury trial “in Suits at common law.” U.S. Const. amend. VII. Although the amendment specifically mentions suits at common law, the Supreme Court has made clear that the right to jury trial applies in any suit “in which legal rights [are] to be ascertained and determined, in contradistinction to those where equitable rights alone [are] recognized, and equitable remedies [are] administered.” Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) (quoting Parsons v. Bedford, Breedlove & Robeson, 28 U.S. 433, 447, 3 Pet. 433, 7 L.Ed. 732 (1830)). See also Waldrop v. Southern Co. Services, Inc., 24 F.3d 152, 156 (11th Cir.1994) (“The amendment extends the right to a jury trial to all suits where legal rights are involved, whether at common law or arising under federal legislation.”). Because the Civil Rights Act of 1991

expressly grants both plaintiffs and defendants the right to demand a jury trial when compensatory and punitive damages are sought in Title VII cases, see 42 U.S.C. § 1981a(c), and because both sides have so demanded in the instant cases, a jury trial is required with regard to Plaintiffs’ claims for damages.
Many of the factual issues relevant to Plaintiffs’ damages claims, however, are also relevant to Plaintiffs’ equitable claims. As such, the litigants have the right to a determination of these issues by a single jury. See Ross, 396 U.S. at 538–39, 90 S.Ct. 733 (“[W]here equitable relief and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims.”); Alabama v. Blue Bird Body Co., 573 F.2d 309, 318 (5th Cir.1978) (recognizing that Seventh Amendment guarantees “the general right of a litigant to have only one jury pass on common issues of fact”). Adjudication would therefore require one jury to resolve the many individual and case-specific issues relating to Plaintiffs’ employment discrimination claims prior to any ruling by the court with regard to equitable remedies. See generally Allison, 151 F.3d at 423–25 (explaining difficulties in partial certification of equitable claims). See also Miller v. Hygrade Food Prods. Corp., 198 F.R.D. 638, 644 (E.D.Pa.2001); Ramirez v. DeCoster, 194 F.R.D. 348, 354 (D.Me.2000).35 The court finds that such a task would be overly *687 cumbersome and would result in litigation characterized by confusion and incoherency.

35

This is true even if the court certifies only Plaintiffs’

equitable claims because, with regard to the back pay

issue, Defendants still have the right to rebut the

presumption that the adverse employment action was

due to discrimination and to show that individual

members of the class are not entitled to back pay. See

Teamsters, 431 U.S. at 362, 97 S.Ct. 1843; Holmes,

706 F.2d at 1157–58. Because these issues are

interwoven with the liability issues on Plaintiffs’

damages claims, the same jury would have to resolve

all of these issues.

III. CONCLUSION For all of the foregoing reasons, the court DENIES Plaintiffs’ motions for class certification [123-1; 191-1]. The individual Plaintiffs, of course, may maintain these actions pursuing their own individual claims, and the members of the putative classes similarly may file lawsuits advancing their own individual claims.

24

 
 Reid v. Lockheed Martin Aero. Co.
United States District Court for the Northern District of Georgia, Atlanta Division January 29, 2001, Decided ; January 29, 2001, Filed; January 31, 2001, Entered CIVIL ACTION NO. 1:00-CV-1182-JOF, CIVIL ACTION NO. 1:00-CV-1183-JOF

Reporter: 2001 U.S. Dist. LEXIS 991; 85 Fair Empl. Prac. Cas. (BNA) 602
MELVIN REID, et al., Plaintiffs, vs. LOCKHEED MARTIN AERONAUTICS COMPANY, et al., Defendants. FARRIS ORDER

YARBROUGH, et al., Plaintiff, vs. LOCKHEED MARTIN

AERONAUTICS COMPANY, et al., Defendants.

These cases are before the court on motions to intervene and

for an expedited hearing filed by the Equal

Disposition: [*1] EEOC'S motions to intervene DENIED. EEOC'S motions for hearing DENIED and Plaintiff's motions for leave GRANTED.

Employment [*2] Opportunity Commission, as well as Plaintiffs' motions for leave to file a reply.
I. STATEMENT OF THE CASE

Counsel: For MELVIN REID, VONDA MOORE, JOHNNIE WEST, CLARENCE E. SINKFIELD, plaintiffs: J. Keith Givens, Angela Joy Mason, Cochran Cherry Givens & Smith, Dothan, AL. Josie Anne Alexander, Alexander & Associates, Atlanta, GA. Hezekiah Sistrunk, Jr., Cochran Cherry Givens Smith & Sistrunk, Atlanta, GA. Jock Michael Smith, phv, Cochran Cherry Givens & Smith, Tuskegee, AL. Johnnie L. Cochran, Jr., phv.

Plaintiffs 1 filed these two civil rights actions on May 10, 2000, alleging that Defendants, 2 among other things, have engaged in racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a ("Title VII"). These cases were initially assigned to Chief Judge Orinda D. Evans, and after much activity by the parties, Judge Evans granted a series of motions allowing the parties,

For LOCKHEED MARTIN AERONAUTICS COMPANY, LOCKHEED MARTIN CORPORATION, defendants: William Henry Boise, Daniel F. Piar, Kilpatrick Stockton, Atlanta, GA. R. Lawrence Ashe, Jr., Nancy E. Rafuse, Paul Hastings Janofsky & Walker, Atlanta, GA. Martha Marie Blankenship Wright, Lockheed Martin Aeronautical Systems Company, Marietta, GA.

within the limits of the orders, to contact prospective class members. On August 17, 2000 and August 24, 2000, respectively, scheduling orders were entered in each of these cases outlining the schedules for discovery and class certification. Thereafter, these cases were reassigned to the undersigned judge, and the court held a conference with counsel for the parties on October 4, 2000 in which it adjusted the deadlines set in Judge Evans' previous order. On

For EQUAL EMPLOYMENT OPPORTUNITY November 17, 2000, the court filed an order embodying these

COMMISSION, Proposed Intervenor: Steven Mark Tapper, adjustments by extending [*3] the deadline for class-related

Equal Employment Opportunity Commission, Atlanta, GA. discovery until March 1, 2001 and by requiring motions for

class certification to be filed no later than April 2, 2001. The

Judges: J. OWEN FORRESTER, UNITED STATES court also ordered that, after the completion of Defendants'

DISTRICT JUDGE.

class-related discovery on May 15, 2001, all further discovery

Opinion by: J. OWEN FORRESTER

would be stayed until the court ruled on the merits of class certification. At the October 4 conference, the court made

clear that it would not grant any further extensions without a

Opinion

showing of extraordinary cause.

1 Plaintiffs in civil action number 1:00-CV-1182 include Marvin Reid, Vonda Moore, Johnnie West, and Clarence W. Sinkfield. Plaintiffs in civil action number 1:00-CV-1183 include Farris Yarbrough, Calvin Combs, Edward Kirkland, Wendell Carlisle, Rita Oliver, Wayne Elliot, and Joseph Banks. Plaintiffs in each case seek to maintain the action as a class action on behalf of themselves and other similarly situated employees.
2 Defendants in both civil actions number 1:00-CV-1183 include Lockheed Martin Aeronautics Company, formerly doing business as Lockheed Martin Aeronautical Systems, and Lockheed Martin Corporation (collectively referred to as "Lockheed"). In addition to Lockheed, Plaintiffs in civil action number 1:00-CV-1183 have named as Defendants both the International Association of Machinists and Aerospace Workers, A.F.L.-C.I.O. and its Local Lodge 709 (collectively referred to as "the Unions").

2001 U.S. Dist. LEXIS 991, *4

Page 2 of 4

[*4] On December 5, 2000, the United States Equal intervene is untimely. In evaluating the timeliness of a Rule

Employment Opportunity Commission ("EEOC" or 24(b) motion, the court should consider four factors: (1) "the

"Commission") filed motions to intervene in these actions length of time during which the would-be intervenor actually

pursuant to Title VII § 706(f)(1) and Federal Rule of Civil knew or reasonably should have known of his interest in the

Procedure 24(b). The EEOC also filed motions for an case before he petitioned for leave to intervene"; (2) "the

expedited hearing on its motions to intervene. The next day, extent of the prejudice that the existing parties to the litigation

the court ordered that the parties respond to the EEOC's may suffer as a result of the would-be intervenor's failure to

motions on an expedited basis. Lockheed and the Unions apply for intervention as soon as he actually knew or

subsequently filed responses in opposition to the EEOC's reasonably should have known of his interest in the case"; (3)

motion to intervene, and Plaintiffs filed responses in support "the extent of the prejudice that the would-be intervenor may

of intervention. Following replies by the EEOC, Plaintiffs suffer if his petition for leave to intervene is denied"; and (4)

moved on December 27, 2000 for leave to reply to "the existence of unusual circumstances militating either for

Defendants' responses and filed its replies on that same date. or against a determination that the application is timely."

Lockheed replied to Plaintiffs' responses in support of Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir.

intervention on January 4, 2001.

1977). [*7]

II. DISCUSSION
Section 706(f)(1) of Title VII provides that, after certain administrative requirements have been satisfied, a private party aggrieved by a violation of Title VII may bring suit against the offending party. See42 U.S.C. § 2000e-5(f)(1). That section further provides that "upon timely application, the court may, in its discretion, [*5] permit the Commission … to intervene in such civil action upon certification that the case is of general public importance." See id.
Federal Rule of Civil Procedure 24(b)(1) provides the general procedure for seeking intervention that is predicated on a conditional right found in a statute of the United States. That rule, similar to § 706(f)(1), gives the court discretion to allow intervention when timely application is made, and it provides that the court "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Fed. R. Civ. P. 24(b). Although Rule 24(b) provides the general framework for the court's discussion of permissive intervention, the court remains cognizant that the "EEOC's right of intervention is narrower than permissive intervention under the Federal Rules" because it is allowed only in cases of general public importance. E.E.O.C. v. Louisville & Nashville R. Co., 505 F.2d 610, 614 (5th Cir. 1974). 3
[*6] After reviewing the papers filed by the parties with regard to the EEOC's motion to intervene, and having carefully considered the factors pertinent to the issue, the court finds that the EEOC should not be allowed to intervene in this case. 4 First, with regard to the circumstances of this particular case, the motion to

The court finds that the first three of these factors weigh against intervention and that the fourth factor is neutral. The EEOC admits in its papers that it has been considering whether or not to intervene since May 2000. Thus, the EEOC contemplated its interest in this case roughly seven months before it sought to intervene. In that seven months, much work was accomplished by the original parties, including a good deal of discovery and the securing of an order outlining contact with members of the potential class. The court finds that the parties, especially Defendants, would likely have conducted their initial discovery and planning differently had they known as early as May 2000 that the EEOC would seek intervention. Moreover, as Lockheed argues [*8] in its response, the EEOC's contact with potential members of the class during the seven-month period in which it was analyzing whether it would intervene may have prejudiced Defendants in that the Commissions's communications with these potential class members were not subject to any control or scrutiny by the court. While the EEOC may have been authorized to communicate with complainants in its role as investigator, the court finds the EEOC's unmonitored and unknown contacts with potential class plaintiffs to be problematic. Had the Commission attempted to intervene earlier, the court could have addressed any questions about the EEOC's ability to communicate with potential class members at the same time that it addressed the class contact issue with respect to the original parties. Accordingly, the court finds that the original parties have suffered more than minimal prejudice as a result of the Commission's failure to intervene sooner. Conversely, the court finds that any prejudice potentially suffered by the EEOC by not being allowed to intervene is

3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions rendered by the former Fifth Circuit prior to October 1, 1981.
4 The court notes, as an initial matter, that the EEOC has submitted a certification that the issues raised in these cases are of general public importance. Although the certification is conclusory, the court will defer to the EEOC's determination in this regard.

2001 U.S. Dist. LEXIS 991, *8

Page 3 of 4

minimal. Finally, no unusual circumstances have been attention via a motion to compel, and the prospect of an

brought to the court's attention that militate either for or additional party and additional counsel would raise the

against a determination [*9] that the Commissions's motion is likelihood of not only prolonging the dispute in question, but

timely. Because the first, second, and third factors weigh of additional discovery disputes that would need to be

against a finding of timeliness, and the final factor favors resolved before addressing class certification.

neither conclusion, the court finds that the motion to intervene

was not timely made.

Finally, it appears to the court that allowing intervention may

improperly broaden the scope of this litigation, causing undue

In addition to being untimely, the court also finds that prejudice to Defendants. The EEOC and Plaintiffs spend

allowing the EEOC to intervene in these cases would unduly much time [*11] asserting that the Commission's claims are

delay the adjudication of the rights of the original parties. The no broader than the nationwide discrimination alleged in

papers filed by Lockheed represent that Defendants have Plaintiffs' complaints. While it remains true that Plaintiffs

deposed all of the named Plaintiffs in civil action number have proposed broad classes of Lockheed employees

1:00-CV-1182 and have either deposed or scheduled the throughout the United States, it should be noted that a class

depositions of all of the named Plaintiffs in civil action certified based on a motion by the original Plaintiffs

number 1:00-CV-1183. Plaintiffs' papers similarly represent ultimately may not be as broad as the class alleged in

that Plaintiffs have scheduled depositions, and both Plaintiffs Plaintiffs' complaints. Moreover, Federal Rule of Civil

and Lockheed agree that more than a million documents have Procedure 23 would govern any class determination brought

been produced by Defendants. The EEOC represents that by the original Plaintiffs, whereas the EEOC may not be

Plaintiffs have information from more than 150 individuals at subject to the strictures of Rule 23. See General Tel. Co. v.

various Lockheed facilities. The initial period for discovery is E.E.O.C., 446 U.S. 318, 333-34, 64 L. Ed. 2d 319, 100 S. Ct.

scheduled to close on March 1, 2001 for Plaintiffs and May 1698 (1980) (holding that EEOC may seek relief for group of

15, 2001 for Defendants, and motions for class certification aggrieved individuals without first obtaining class

are due by April 2, 2001. In light of these events, and certification pursuant to Rule 23 in action initiated by EEOC

notwithstanding [*10] the EEOC's and Plaintiffs' arguments itself); see also Jefferson v. Ingersoll Int'l. Inc., 195 F.3d 894,

that these cases are still at the early stages of discovery, a 899-900 (7th Cir. 1999) (noting circuit split as to whether

large amount of information has been exchanged and the General Telephone applies when EEOC intervenes in private

termination of class-related discovery is quickly approaching. action). 5 A class certified under Rule 23, therefore, may not

Although the EEOC represents that it would adhere to all of reach as far as the EEOC could itself insist upon. Put

the court's deadlines if allowed to intervene, the court finds differently, [*12] just because Plaintiffs allege a nationwide

that the volume of information already produced, not to class does not necessarily mean that they will realistically

mention the information yet to be discovered, would make it achieve certification of a nationwide class, and intervention

extremely difficult for an additional set of lawyers adequately by the EEOC, which clearly seeks to pursue claims of

to familiarize themselves with these cases within the time discrimination on a national level, may very well expand the

contemplated by the court's schedule. Furthermore, a fairly practical scope of this litigation to the prejudice of

major discovery dispute between Plaintiffs and Defendants Defendants. 6

has been brought to the court's

[*13] III. CONCLUSION

5 The Eleventh Circuit has apparently not weighed in on this circuit split, and allowing the EEOC to intervene would therefore require the court to decide whether Rule 23 is applicable to the Commission in its role as intervenor. The resolution of this issue, on which there exists a split in authority and no controlling precedent on this court, would cause further undue delay to these proceedings.
6 The court also expresses its concern about the EEOC's attempt to prosecute a "pattern and practice" case via intervention in private actions where it did not issue cause determinations for a majority of the named Plaintiffs. These actions are private actions brought pursuant to § 706, which is designed to address the grievances of particular individuals. See United States v. Allegheny-Ludlum Indus., 517 F.2d 826, 843 (5th Cir. 1975). Section 707, on the other hand, allows the Commission to institute "pattern and practice" suits anytime that it has reasonable cause to believe such a suit is necessary. Id. Suits initiated by the Commission pursuant to § 707 are primarily designed to "vindicate the broad public interest in eliminating unlawful discrimination" and do not require individual grievances. Id. In its complaint, the EEOC references § 707 as well as § 706. The court, however, questions whether EEOC intervention in these actions is the best vehicle for adjudicating "pattern and practice" claims of systemic, nationwide discrimination on the part of Defendants. Only five of the twelve named Plaintiffs in these cases received a cause determination from the EEOC, a fact which could be seen as diluting the Commission's view that these cases are of general public importance. Furthermore, one of the primary arguments advanced by both Plaintiff and the EEOC in support of intervention -- that the EEOC's experience with national litigation and statistical evidence would greatly assist Plaintiffs -- could

2001 U.S. Dist. LEXIS 991, *13

For the foregoing reasons, the EEOC's motions to intervene [35; 49] are DENIED. The court also DENIES the EEOC's J. OWEN FORRESTER

motions for a hearing [36; 48] and GRANTS Plaintiffs

motions for leave to reply [50; 67].

UNITED STATES DISTRICT JUDGE

SO ORDERED this, 29th of January 2001.

Page 4 of 4

be seen primarily as a benefit to particular parties rather than protection of the broad public interest in eliminating employment discrimination.

 
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https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...

4months, CLOSED, SEAL_Material
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:00-cv-01182-JOF

Reid, et al v. Lockheed Martin Co, et al Assigned to: Judge J. Owen Forrester Demand: $0 Cause: 42:2000 Job Discrimination (Race)
Plaintiff Melvin Reid

Date Filed: 05/10/2000 Date Terminated: 08/01/2003 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Angela Joy Mason Cochran Cherry Givens Smith & Sistrunk 163 West Main Street Dothan, AL 36301 334-793-1555 Email: angelamason@cochranfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hezekiah Sistrunk, Jr. Cochran Cherry Givens Smith & Sistrunk 127 Peachtree Street Suite 800 Atlanta, GA 30303 404-222-9922 Email: hez@sistrunklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens Cochran Cherry Givens Smith & Sistrunk 163 West Main Street Dothan, AL 36301 334-793-1555 Email: jkgivens@cochranfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith Cochran Cherry Givens & Smith P.O. Box 830419 306 North Main Street Tuskegee, AL 36083

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4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Plaintiff Vonda Moore TERMINATED: 07/17/2002
2 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
334-727-0060 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. Cochran Cherry Givens & Smith 4920 Wilshire Boulevard Suite 1010 Los Angeles, CA 90010 TERMINATED: 07/17/2002 LEAD ATTORNEY
Joseph M. Sellers Cohen Milstein Hausfeld & Toll 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005-3964 202-408-4600 Email: jsellers@cmht.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Josie Anne Alexander Alexander & Associates 1020 Edgewood Avenue, N.E. Atlanta, GA 30307 404-614-0001 Email: aanda@alexfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Hausfeld Cohen Milstein Hausfeld & Toll 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005-3964 202-408-4600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Angela Joy Mason (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hezekiah Sistrunk, Jr. (See above for address)
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Plaintiff Johnnie West TERMINATED: 07/17/2002
3 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Joseph M. Sellers (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Hausfeld (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Angela Joy Mason (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Plaintiff Clarence W. Sinkfield individually and on behalf of all others similarly situated TERMINATED: 07/17/2002
4 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Joseph M. Sellers (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Hausfeld (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Angela Joy Mason (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
V. Defendant Lockheed Martin Aeronautics Company formerly doing business as Lockheed Martin Aeronautical Systems

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Joseph M. Sellers (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael D. Hausfeld (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel F. Piar Kilpatrick Stockton 1100 Peachtree Street Suite 2800 Atlanta, GA 30309-4530 404-815-6500 TERMINATED: 03/28/2001 LEAD ATTORNEY

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CM/ECF LIVE v3.1.3 - U.S. District Court
Defendant Lockheed Martin Corporation
6 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
Martha Marie Blankenship Wright Lockheed Martin Aeronautical Systems Company Legal Department P.O. Box 2030 86 South Cobb Drive Marietta, GA 30061 770-494-4556 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy E. Rafuse Ashe Rafuse & Hill 1355 Peachtree Street, NE Suite 500 Atlanta, GA 30309-3232 404-253-6000 Email: nancyrafuse@asherafuse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Lawrence Ashe, Jr. Ashe Rafuse & Hill 1355 Peachtree Street, NE Suite 500 Atlanta, GA 30309-3232 404-253-6000 Email: lawrenceashe@asherafuse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Boice Kilpatrick Stockton-Atlanta 1100 Peachtree Street Suite 2800 Atlanta, GA 30309-4530 404-815-6464 Email: bboice@kilpatrickstockton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel F. Piar (See above for address) TERMINATED: 03/28/2001 LEAD ATTORNEY
Martha Marie Blankenship Wright (See above for address)
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Intervenor Euqal Employment Opportunity Commission
V. Movant Debra Haskins TERMINATED: 07/17/2002
7 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy E. Rafuse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Lawrence Ashe, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Boice (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Steven Mark Tapper U.S. Department of Homeland Security 1230 Peachtree Street. Suite 1900 Atlanta, GA 30309 404-942-2566 Email: steve.tapper@dhs.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Movant Cheryl Moody TERMINATED: 07/17/2002
Movant Renita Reese TERMINATED: 07/17/2002
8 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Movant Irvin Maurice Young TERMINATED: 07/17/2002
9 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address)
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Movant Carolyn Fitzgerald TERMINATED: 07/17/2002
Movant Erica Holder TERMINATED: 07/17/2002
10 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address)
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Movant Victor Blanton TERMINATED: 07/17/2002
Movant Moses Ebron TERMINATED: 07/17/2002
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https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Movant Floyd Baxter TERMINATED: 07/17/2002
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https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Movant Kathelia Faraca TERMINATED: 07/17/2002
Movant William Shines TERMINATED: 07/17/2002
13 of 42

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?678967785331373-L_9...
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
4/14/2008 12:34 PM

CM/ECF LIVE v3.1.3 - U.S. District Court
Movant Tommy Williams TERMINATED: 07/17/2002
Movant
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Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Lynne Smith TERMINATED: 07/17/2002
Movant Carol Morse TERMINATED: 07/17/2002
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represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr.
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Movant Carl Heard TERMINATED: 07/17/2002
Movant Robert High TERMINATED: 07/17/2002
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(See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address)
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Movant Gary Sims TERMINATED: 07/17/2002
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TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
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Movant Regina Nicholson TERMINATED: 07/17/2002
Movant Adline Smith TERMINATED: 07/17/2002
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ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
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Movant William Adams TERMINATED: 07/17/2002
Movant Anthony Moore TERMINATED: 07/17/2002
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ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Movant Kathy Moore-Hall TERMINATED: 07/17/2002
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J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander
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Movant Kelly Douglass TERMINATED: 07/17/2002
Movant Jonathan Lambright TERMINATED: 07/17/2002
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(See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith
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Movant Glenda Knight TERMINATED: 07/17/2002
Movant Anthony Cook TERMINATED: 07/17/2002
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(See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hezekiah Sistrunk, Jr. (See above for address)
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TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Keith Givens (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jock Michael Smith (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY
Josie Anne Alexander (See above for address) TERMINATED: 07/17/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/10/2000
05/10/2000 05/10/2000 05/10/2000 05/10/2000 05/10/2000 05/22/2000

# Docket Text
1 CLASS ACTION COMPLAINT filed and summons(es) issued. Consent form to proceed before U.S. magistrate and pretrial instructions given to attorney; jury demand FILING FEE $ 150.00 RECEIPT # 454453 (crc) (Entered: 05/11/2000)
2 ANSWERS TO MANDATORY DISCLOSURES by plaintiff Melvin Reid (crc) (Entered: 05/11/2000)
3 ANSWERS TO MANDATORY DISCLOSURES by plaintiff Vonda Moore (crc) (Entered: 05/11/2000)
4 ANSWERS TO MANDATORY DISCLOSURES by plaintiff Johnnie West (crc) (Entered: 05/11/2000)
5 ANSWERS TO MANDATORY DISCLOSURES by plaintiff Clarence W. Sinkfield (crc) (Entered: 05/11/2000)
6 Application for admission of Jock Michael Smith, Johnnie L. Cochran Jr. pro hac vice for plaintiffs (fmm) (Entered: 05/18/2000)
ENDORSED ORDER by Judge Orinda D. Evans APPROVING [6-1] pro hac vice application for Jock Michael Smith (cc) (aar) (Entered: 05/24/2000)

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05/23/2000 06/02/2000 06/08/2000 06/08/2000 06/09/2000 06/09/2000 06/23/2000 06/26/2000 06/26/2000 06/27/2000 06/27/2000 06/30/2000
07/03/2000
07/11/2000 07/11/2000 07/13/2000

ENDORSED ORDER by Judge Orinda D. Evans APPROVING [6-1] pro hac vice application for Johnnie L. Cochran, Jr. (cc) (ck) (Entered: 05/25/2000)
Proposed Consent Order extending the time to answer [1-1] complaint thru 6/26/00. to ODE (fmm) (Entered: 06/02/2000)
7 CONSENT ORDER by Judge Orinda D. Evans, extending time to answer [1-1] complaint thru 6/26/00 , Answer due 6/26/00 for Lockheed Martin Corp, for Lockheed Martin Co (cc) (fmm) (Entered: 06/12/2000)
Added attorney for defendants: William Henry Boice, Daniel F. Piar, R. Lawrence Ashe Jr., Nancy E. Rafuse, Martha Marie Blankenship Wright. (fmm) (Entered: 06/12/2000)
8 Response by defendants to IAM International and IAM Local's emergency motion to interview agents filed in 1:00-cv-1183-ODE (fmm) (Entered: 06/12/2000)
8 MOTION by defendants for direction , and for relief under LR 23(C)(2) with brief in support. (contained w/in response at docu #8) (fmm) Modified on 06/12/2000 (Entered: 06/12/2000)
9 Response by plaintiffs in opposition to [8-1] motion for direction, [8-2] motion for relief under LR 23(C)(2) (fmm) (Entered: 06/26/2000)
SUBMITTED to Judge Orinda D. Evans on [8-1] motion for direction, [8-2] motion for relief under LR 23(C)(2) (fmm) (Entered: 06/26/2000)
10 ANSWER by defendants to complaint; jury demand. [1-1] Discovery ends 11/23/00 (fmm) Modified on 06/26/2000 (Entered: 06/26/2000)
11 EMERGENCY MOTION by plaintiffs for leave to interview prospective class members and preclude the dfts' communication with potential class members with brief in support. (fmm) (Entered: 06/28/2000)
12 MOTION by plaintiffs for expedited response and expedite ruling with brief in support. (fmm) Modified on 06/28/2000 (Entered: 06/28/2000)
13 Preliminary Response by defendants in opposition to [12-1] motion for expedited response, [12-2] motion expedite ruling, [11-1] motion for leave to interview prospective class members, [11-2] motion preclude the dfts' communication with potential class members (fmm) (Entered: 07/03/2000)
SUBMITTED to Judge Orinda D. Evans on [12-1] motion for expedited response, [12-2] motion expedite ruling, [11-1] motion for leave to interview prospective class members, [11-2] motion preclude the dfts' communication with potential class members (File in Chambers) (fmm) (Entered: 07/03/2000)
14 Certificate of interested persons. (to judge) (crc) (Entered: 07/14/2000)
15 ANSWERS TO MANDATORY DISCLOSURES by defendants (crc) (Entered: 07/14/2000)
16 Response by defendants to [11-1] motion for leave to interview prospective class members & [11-2] preclude the dfts' communication with potential class members; and reply brief to [8-1] motion for directiono and [8-2] for relief under LR 23(C)(2) (ck) (Entered: 07/14/2000)

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07/14/2000 07/17/2000
07/17/2000 07/26/2000 07/28/2000 07/28/2000 07/28/2000 07/31/2000 07/31/2000 08/01/2000 08/04/2000 08/04/2000 08/14/2000
08/15/2000
08/24/2000

17 Reply brief to [12-1] motion for expedited response, [12-2] motion expedite ruling by plaintiffs. (bek) (Entered: 07/17/2000)
18 ORDER by Judge Orinda D. Evans GRANTING [12-1] motion for expedited response and [12-2] motion expedite ruling, GRANTING [8-1] motion for direction and [8-2] motion for relief under LR 23(C)(2), GRANTING [11-1] motion for leave to interview prospective class members and [11-2] motion preclude the dfts' communication with potential class members as set forth in order. (see order for specifics) (cc) (bek) Modified on 07/17/2000 (Entered: 07/17/2000)
Terminated submissions. (bek) (Entered: 07/17/2000)
19 Stipulation by parties extending time to file prel planning report thru 7/27/00 to ODE (fmm) (Entered: 07/28/2000)
20 MOTION by plaintiff for status conference with brief in support. (ck) (Entered: 08/01/2000)
21 MOTION by plaintiffs to extend time thru 2/10/01 or 90 days after the production of certain discovery databases for plas to file motion for class certification with brief in support. (ck) (Entered: 08/01/2000)
Proposed scheduling order by plaintiffs. (to ODE) (COURT DID NOT APPROVE - PLACED IN CORRESPONDENCE) (ck) Modified on 08/25/2000 (Entered: 08/01/2000)
22 Stipulation, extending time thru 7/28/00 to file the preliminary planning report with proposed order. (to ODE) (ck) (Entered: 08/01/2000)
23 Preliminary Statement and Scheduling Order. (to judge) (ck) (Entered: 08/01/2000)
24 Amended MOTION by plaintiff amending [20-1] motion for status conference (ck) (Entered: 08/02/2000)
ENDORSED ORDER by Judge Orinda D. Evans GRANTING [22-1] stipulation extending time thru 7/28/00 to file the preliminary planning report (cc) (fmm) (Entered: 08/07/2000)
ENDORSED ORDER by Judge Orinda D. Evans APPROVING [23-1] preliminary statement (cc) (fmm) (Entered: 08/08/2000)
25 Response by defendants to [20-1] motion for status conference, [21-1] motion to extend time thru 2/10/01 or 90 days after the production of certain discovery databases for plas to file motion for class certification, [24-1] amended motion for status conference (fmm) (Entered: 08/15/2000)
SUBMITTED to Judge Orinda D. Evans on [20-1] motion for status conference, [21-1] motion to extend time thru 2/10/01 or 90 days after the production of certain discovery databases for plas to file motion for class certification, [24-1] amended motion for status conference (fmm) (Entered: 08/15/2000)
26 ORDER by Judge Orinda D. Evans VACATING 8/4/00 endorsed order approving the prel statement and entering this scheduling order. Discovery shall

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08/24/2000 08/28/2000 08/30/2000 09/08/2000 09/18/2000 09/25/2000 10/05/2000 10/11/2000
10/25/2000 11/13/2000 11/17/2000

commence the date of this order. Plas discovery as to class certification is to be completed by 12/1/00 and the class cert motion filed by 1/2/01. Dfts shall have until 2/15/01 to conclude disovery relating to class cert and response to pla's class cert motion is due 3/1/01. Pla's reply brief due 3/15/01. All discovery will be stayed from 2/15/01 until the court rules on the motion for class cert and thereafter a discovery schedule will be established on remaining merits. DISMISSING as moot pla's [20-1] motion for status conference, [24-1] amended motion for status conference, [21-1] motion to extend time thru 2/10/01 or 90 days after the production of certain discovery databases for plas to file motion for class certification (cc) (fmm) (Entered: 08/25/2000)
Terminated submissions. (fmm) (Entered: 08/25/2000)
27 Stipulation by parties extending time for pla to respond to discovery requests thru 9/18/00 to JOF (fmm) (Entered: 08/31/2000)
28 ORDER by Judge Orinda D. Evans and by Judge J. Owen Forrester reassigning case to Judge J. O. Forrester (cc) (fmm) Modified on 08/31/2000 (Entered: 08/30/2000)
29 Notice of filing of original discovery by plaintiffs'. (aar) (Entered: 09/13/2000)
ENDORSED ORDER by Judge J. O. Forrester GRANTING [27-1] stipulation extending time for pla to respond to discovery requests thru 9/18/00 (cc) (aar) (Entered: 09/18/2000)
30 Notice of filing of original discovery by defendants. (aar) (Entered: 09/26/2000)
31 Attorney appearance for plaintiffs by Angela Joy Mason and J. Keith Givens. (so) (Entered: 10/10/2000)
32 TELE-CONFERENCE HELD before Judge J. O. Forrester: Discovery deadline extended 20 days after prior deadline. Extension granted this time up to class certification met and replies. Bump every deadline in Judge Evans order 3 months. The Court will not grant any other extensions outside of extraordinary cause. Parties to prepare and order for the court to sign re: exactly what the deadlin dates are. If movant files a motion to compel, include request, response and brief argument, call CRD and court will see parties in 2-3 days. If deposition problems, call the court and court will call back and resolve. Get copy of transcript and give to Giolito. Giolito to file objections to deadlines w/in 10 days from receipt of transcript or waive. (aar) (Entered: 10/16/2000)
Steno notes of proceedings held 10/04/00 before Judge J. O. Forrester, by Court Reporter Lois D. Phillips. (aar) (Entered: 10/25/2000)
Proposed Order (to JOF) (aar) (Entered: 11/14/2000)
33 ORDER by Judge J. O. Forrester that all for plas discovery pertinent to class certification must be completed by 3/1/01 and class certification motion due 4/2/01. For dfts, discovery relating to class certification issued to be completed by 5/15/01 and dfts response to class certification motion due 6/1/01. Pla's reply brief is due 6/15/01. All discovery will be stayed from 5/15/01 pending ruling on class certification. Dft shall have until 11/20/00 to respond to plas' discovery requests. (cc) (fmm) (Entered: 11/20/2000)

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11/20/2000
12/05/2000 12/05/2000 12/06/2000
12/06/2000 12/07/2000 12/12/2000 12/12/2000 12/13/2000
12/15/2000 12/15/2000 12/15/2000 12/15/2000 12/15/2000
12/18/2000 12/21/2000 12/21/2000

34 Notice of original supplemental discovery and amended objections and responses to plaintiffs' first request for production of documents by defendants'. (aar) (Entered: 11/21/2000)
35 MOTION by Proposed Intervenor EEOC to intervene with brief in support and proposed order. (fmm) (Entered: 12/05/2000)
36 MOTION by Proposed Intervenor EEOC for immediate hearing on the motion to intervene with brief in support and proposed order. (fmm) (Entered: 12/05/2000)
37 ORDER by Judge J. O. Forrester DIRECTING parties to respond to [36-1] motion for immediate hearing on the motion to intervene, [35-1] motion to intervene by COB 12/12/00, [36-1] motion and [35-1] motion to be submitted on 12/13/00 (cc) (fmm) (Entered: 12/06/2000)
Proposed confidentiality agreement and order governing the exchange and protection of confidential information. (to: JOF) (er) (Entered: 12/07/2000)
38 Response by defendants in opposition to [36-1] motion for immediate hearing on the motion to intervene (jph) (Entered: 12/08/2000)
39 MOTION by plaintiff to file excess pages limitation. (jph) Modified on 12/13/2000 (Entered: 12/12/2000)
40 MOTION by plaintiff to compel Responses to first request for production of documents with brief in support. (jph) (Entered: 12/12/2000)
41 CONSENT ORDER by Judge J. O. Forrester, extending time for parties to respond to [36-1] motion for immediate hearing on the motion to intervene, [35-1] motion to intervene thru 12/15/00 , [36-1] motion and [35-1] motion to be submitted on 12/18/00 (cc) (fmm) (Entered: 12/13/2000)
42 CONSENT MOTION by dfts Lockheed Martin Co and Lockheed Martin Corp to file excess pages limitation . (jph) Modified on 12/19/2000 (Entered: 12/18/2000)
43 Response by defendants in opposition of [35-1] motion to intervene (jph) (Entered: 12/18/2000)
44 Memorandum by plaintiffs in support of [35-1] motion to intervene (jph) (Entered: 12/18/2000)
ENDORSED ORDER by Judge J. O. Forrester GRANTING [39-1] motion to file excess pages limitation. (cc) (fmm) (Entered: 12/20/2000)
45 CONFIDENTIALITY AGREEMENT AND ORDER GOVERNING THE EXCHANGE AND PROTECTION OF CONFIDENTIAL INFORMATION (fmm) (Entered: 12/20/2000)
SUBMITTED to Judge J. O. Forrester on [35-1] motion to intervene (jph) (Entered: 12/18/2000)
Proposed Consent order for filing excess pages by Proposed Intervenor EEOC . to JOF (fmm) (Entered: 12/26/2000)
46 REPLY by Proposed Intervenor EEOC to response to [35-1] motion to intervene w/affidavits of William J. Lai and Josie A. Alexander (fmm) (Entered: 12/26/2000)

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12/22/2000 12/22/2000 12/26/2000 12/27/2000 12/27/2000 12/29/2000
01/02/2001
01/02/2001
01/02/2001 01/04/2001
01/04/2001
01/09/2001 01/09/2001 01/18/2001 01/19/2001 01/19/2001
01/24/2001

47 Response by defendant in opposition to [40-1] motion to compel Responses to first request for production of documents (jph) (Entered: 12/27/2000)
48 Stipulation by parties to file excess pages limitation for dfts to oppose pla's motion to compel to JOF (fmm) (Entered: 12/28/2000)
SUBMITTED to Judge J. O. Forrester on [36-1] motion for immediate hearing on the motion to intervene (File in Chambers) (fmm) (Entered: 12/26/2000)
50 MOTION by plaintiff for leave to file a reply to dfts' responses . (jph) (Entered: 12/28/2000)
49 REPLY by plaintiffs to dft's response to [35-1] motion to intervene (fmm) Modified on 12/28/2000 (Entered: 12/28/2000)
51 Notice of filing original affidavits of Charles T. Burbage, Gary A. Cantwell, and Robert McLaughlin by defendants. (jph) Modified on 01/02/2001 (Entered: 01/02/2001)
52 CONSENT ORDER by Judge J. O. Forrester, extending page limit for EEOC's reply to Lockheed's response in opposition to motion to intervene (cc) (fmm) (Entered: 01/04/2001)
ENDORSED ORDER by Judge J. O. Forrester GRANTING [48-1] stipulation to file excess pages limitation for dfts to oppose pla's motion to compel (cc) (fmm) (Entered: 01/04/2001)
ENDORSED ORDER by Judge J. O. Forrester GRANTING [42-1] motion to file excess pages limitation (cc) (fmm) (Entered: 01/04/2001)
SUBMITTED to Judge J. O. Forrester on [40-1] motion to compel Responses to first request for production of documents (File in Chambers) (fmm) (Entered: 01/04/2001)
53 Reply by defendants Lockheed Martin Co and Lockheed Martin Corp to plas memorandum in support of EEOC's motions to intervene as a party pla and dft Unions' opposition to EEOC's [35-1] motion to intervene (adg) (Entered: 01/05/2001)
54 Reply brief to [47-1] by defendant. (jph) (Entered: 01/10/2001)
Proposed consent order to file excess pages. (To JOF) (jph) (Entered: 01/10/2001)
SUBMITTED to Judge J. O. Forrester on [50-1] motion for leave to file a reply to dfts' responses (File in chambers) (jph) (Entered: 01/18/2001)
55 MOTION by defendant for leave to file a surreply in opposition to plas' motion to compel with surreply. (jph) (Entered: 01/22/2001)
56 CONSENT ORDER by Judge J. O. Forrester, extending the page limit for pla's reply to dft's opposition to plas' motion to compel (cc) (fmm) (Entered: 01/22/2001)
57 Notice to take deposition of KEN DRENNAN, TOM MEDCALF, COMPENSATION, STEVE HAMLIN, JOHN GILL, STAFFING, BOB

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01/24/2001 01/29/2001 01/29/2001 02/02/2001 02/07/2001 02/07/2001 02/08/2001 02/08/2001
02/08/2001
02/09/2001

BERGERSKI, RON HUDSON, HUMAN RESOURCES, DONNA LAFEW, RALPH BAR, DEBBIE OWENS, CALVIN BRYANT by plaintiff (jph) (Entered: 01/26/2001)
58 Notice to take deposition of LOCKHEED MARTIN CORP. and LOCKHEED MARTIN AERONAUTICS COMPANY by plaintiff (jph) (Entered: 01/26/2001)
59 MOTION by defendant for protective order with brief in support. (jph) (Entered: 01/30/2001)
60 ORDER by Judge J. O. Forrester DENYING [35-1] the EEOC's motion to intervene; DENYING [36-1] the EEOC's motion for immediate hearing; & GRANTING [50-1] pla's motion for leave to file a reply. (cc) (er) (Entered: 01/31/2001)
61 Notice to take 30(b)(6) depositions of Tommy Coffee, Lee Ryant and Tom Burbage by plaintiffs (adg) Modified on 02/02/2001 (Entered: 02/02/2001)
62 Certification of good faith efforts to reslove discovery disputes regarding motions to compel by plaintiffs. (adg) Modified on 02/08/2001 (Entered: 02/08/2001)
63 MOTION by plaintiffs to compel discovery , and for expedited ruling with brief in support. (adg) (Entered: 02/08/2001)
64 Notice to take deposition of Debbie Owens by plaintiffs (adg) (Entered: 02/08/2001)
66 HEARING HELD on 2/8/01 before Judge J. O. Forrester. Court observed that dft w/drew 34B issues, dft to 59-1 motion granted in part/denied in part; 40-1 motion granted in part/denied in part; pla to give dft organizational chart per record; dft to take at most 3 depos outside Marietta facility to determine whether there is a policy at the divisional or sector level that would have an effect on policy in Marietta branch directly related to the 3 kinds of discrimination in this lawsuit. Discovery request denied. EEO-l's give first page, discussion of prod. requests re: self-critical analysis; affirmative action plans left in abeyance; dft entitled to code of business conduct and its application-if internal code of ethics re: company treatment of people. Objections sustained as overly broad, all else is denied as was requested except as otherwised indicated in the record. Dft can reformulate request and file a skeletal mot to compel and court will take up on an expedited basis. (adg) (Entered: 02/13/2001)
VERBAL ORDER by Judge J. O. Forrester GRANTING IN PART AND DENYING IN PART [40-1] motion to compel Responses to first request for production of documents by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid, denying as moot the [55-1] motion for leave to file a surreply in opposition to plas' motion to compel by Lockheed Martin Corp, Lockheed Martin Co, GRANTING IN PART AND DENYING IN PART [59-1] motion for protective order by Lockheed Martin Corp, Lockheed Martin Co (fmm) (Entered: 02/20/2001)
65 Notice to take 30(b)(6) deposition of defendants by plaintiff (adg) (Entered: 02/12/2001)

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02/12/2001 02/13/2001 02/13/2001
02/16/2001 02/21/2001
02/21/2001
02/21/2001 02/22/2001 02/23/2001
02/23/2001 02/26/2001 02/26/2001 02/27/2001
02/27/2001 02/28/2001 03/01/2001

67 MOTION by Proposed Intervenor for reconsideration of [60-1] order with memorandum of law in support. (adg) (Entered: 02/13/2001)
Steno notes of proceedings held 2/8/01 before Judge J. O. Forrester , by Court Reporter Lois D. Phillips. (adg) (Entered: 02/13/2001)
SUBMITTED to Judge J. O. Forrester on [55-1] motion for leave to file a surreply in opposition to plas' motion to compel (File in chambers) (adg) (Entered: 02/13/2001)
68 Notice to take deposition of Tom Coffey by plaintiffs (adg) (Entered: 02/20/2001)
69 EMERGENGY MOTION by plaintiffs for modification and forty-five day extension of time of class certification discovery deadlines pursuant to [33-1] scheduling order (to JOF) (adg) (Entered: 02/23/2001)
70 THIRD MOTION by plaintiffs to compel discovery , and for expedited ruling with brief in support and certification of good faith. (to JOF) (adg) (Entered: 02/23/2001)
71 Response by defendants in opposition to [63-1] motion to compel discovery (adg) (Entered: 02/23/2001)
72 Notice to take deposition of Dain Hancock, Terry Powell and Vance Coffman by plaintiff (adg) (Entered: 02/26/2001)
73 MOTION by defendants to withdraw by Daniel F. Piar as attorney for Lockheed Martin Co, Lockheed Martin Corp with proposed order. (adg) (Entered: 02/26/2001)
74 TRANSCRIPT filed for dates of 2/8/01 Court Reporter: Lois D. Phillips (adg) (Entered: 02/26/2001)
75 Response by defendants in opposition to [67-1] motion for reconsideration of [60-1] order (adg) (Entered: 02/27/2001)
76 MOTION by defendants for protective order barring deposition of Vance D. Coffman with brief in support. (adg) (Entered: 02/27/2001)
77 Response by defendants in opposition to [69-1] motion for modification and forty-five day extension of time of class certification discovery deadlines pursuant to [33-1] scheduling order (adg) (Entered: 02/28/2001)
78 Response by defendants in opposition to [70-1] third motion to compel discovery, [70-2] motion for expedited ruling (adg) (Entered: 02/28/2001)
SUBMITTED to Judge J. O. Forrester on [63-1] motion to compel discovery, [63-2] motion for expedited ruling (File in chambers) (adg) (Entered: 02/28/2001)
79 Motion HEARING held before Judge J. O. Forrester [63-2] motion for expedited ruling DENIED AS MOOT, [63-1] motion to compel discovery held in abeyance for in camera review, [69-1] motion for modification and forty-five extension of time of class certification discovery pursuant to [33-1] scheduling order GRANTED IN PART DENIED IN PART, court will not reopen discovery except for one interrogatory requested, [70-2] motion for expedited ruling DENIED AS MOOT, [70-1] motion to compel discovery GRANTED IN PART DENIED IN

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03/01/2001
03/02/2001 03/06/2001 03/07/2001 03/08/2001 03/09/2001 03/12/2001
03/12/2001 03/16/2001 03/16/2001

PART, pla to write narrow, crisp interrogatory regarding authority, [76-1] motion for protective order barring deposition of Vance D. Coffman GRANTED, pla to SHOW CAUSE wy sanctions should not be imposed re: Wall Street Journal article. (adg) (Entered: 03/05/2001)
VERBAL ORDER by Judge J. O. Forrester denying as moot the [63-2] motion for expedited ruling by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid, [63-1] motion to compel discovery HELD IN ABEYANCE FOR IN CAMERA REVIEW, GRANTING IN PART AND DENYING IN PART [69-1] motion for modification and forty-five day extension of time of class certification discovery deadlines pursuant to [33-1] scheduling order by Clarence W. Sinkfield, West, Vonda Moore, Melvin Reid-court will not reopen discovery except for one interrogatory requested, denying as moot the [70-2] motion for expedited ruling by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid, GRANTING IN PART AND DENYING IN PART [70-1] motion to compel discovery by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid pla to write narrow, crisp interrogatory regarding lines of authority, GRANTING [76-1] motion for protective order barring deposition of Vance D. Coffman, pla to SHOW CAUSE why sanctions should not be imposed re: Wall Street Journal article. (adg) Modified on 03/09/2001 (Entered: 03/05/2001)
80 Supplement by defendants in support of [76-1] motion for protective order barring deposition of Vance D. Coffman (adg) (Entered: 03/05/2001)
SUBMITTED to Judge J. O. Forrester on [67-1] motion for reconsideration of [60-1] order (File in chambers) (adg) (Entered: 03/06/2001)
81 TRANSCRIPT filed for dates of 3/5/01 Court Reporter: Nancy Smith-Wells ***FILED UNDER SEAL*** (adg) Modified on 03/09/2001 (Entered: 03/08/2001)
82 Response by defendants to verbal order by Judge J.O. Forrester on 3/1/01 ordering pla to SHOW CAUSE why sanctions should not be imposed re: Wall Street Journal article. (adg) (Entered: 03/09/2001)
83 REPLY by Proposed Intervenor to response to [67-1] motion for reconsideration of [60-1] order (adg) (Entered: 03/12/2001)
84 ORDER by Judge J. O. Forrester GRANTING IN PART AND DENYING IN PART [63-1] motion to compel discovery by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid. Motion DENIED as to Lockheed's internal reports concerning work culture and the control and compare reports from Lockheed's databases. Motion GRANTED in all other respects. (cc) (adg) (Entered: 03/12/2001)
Terminated submissions. (adg) (Entered: 03/12/2001)
SUBMITTED to Judge J. O. Forrester on [73-1] motion to withdraw by Daniel F. Piar as attorney for Lockheed Martin Co, Lockheed Martin Corp (File in chambers) (adg) (Entered: 03/16/2001)
85 MOTION by plaintiffs for protective order barring depositions of 146 affiants with brief in support. (adg) (Entered: 03/19/2001)

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03/19/2001
03/19/2001
03/19/2001
03/19/2001
03/19/2001
03/20/2001 03/20/2001 03/20/2001 03/20/2001
03/20/2001
03/20/2001 03/20/2001 03/20/2001 03/20/2001
03/21/2001 03/21/2001 03/21/2001 03/21/2001 03/22/2001 03/22/2001 03/22/2001 03/22/2001 03/23/2001

Steno notes of proceedings held 3/1/01 before Judge J. O. Forrester, by Court Reporter Lois D. Phillips. (adg) (Entered: 03/19/2001)
86 Response by defendant in opposition to [85-1] motion for protective order barring depositions of 146 affiants (adg) (Entered: 03/19/2001)
SUBMITTED to Judge J. O. Forrester on [85-1] motion for protective order barring depositions of 146 affiants (File in chambers) (adg) (Entered: 03/19/2001)
87 Motion HEARING held before Judge J. O. Forrester on [85-1] motion for protective order barring depositions of 146 affiants (adg) (Entered: 03/21/2001)
VERBAL ORDER by Judge J. O. Forrester GRANTING IN PART AND DENYING IN PART [85-1] motion for protective order barring depositions of 146 affiants by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid. Dft's must limit each depo to three hours if the pla's provide the dfts w/ the answers to those questions which are objectively answered; 4-6 questions; otherwise, they are six hours. (adg) (Entered: 03/21/2001)
88 Objections by movant Moses Ebron to subpoena. (adg) (Entered: 03/21/2001)
89 Objections by movant Victor Blanton to subpoena. (adg) (Entered: 03/21/2001)
90 Objections by movant Erica Holder to subpoena. (adg) (Entered: 03/21/2001)
91 Objections by movant Carolyn Fitzgerald to subpoena. (adg) (Entered: 03/21/2001)
92 Objections by movant Irvin Maurice Young to subpoena. (adg) (Entered: 03/21/2001)
93 Objections by movant Renita Reese to subpoena. (adg) (Entered: 03/21/2001)
94 Objections by movant Cheryl Moody to subpoena. (adg) (Entered: 03/21/2001)
95 Objections by movant Debra Haskins to subpoena (adg) (Entered: 03/21/2001)
Dfts Lockheed copy of [84-1] order returned undeliverable. Marked box closed no order as to atty Wright (adg) (Entered: 03/21/2001)
100 Objections by movant Lynne Smith to subpoena (adg) (Entered: 03/23/2001)
101 Objections by movant Carol Morse to subpoena (adg) (Entered: 03/23/2001)
102 Objections by movant Carl Heard to subpoena (adg) (Entered: 03/23/2001)
103 Objections by movant Robert High to subpoena (adg) (Entered: 03/23/2001)
96 Objections by movant Floyd Baxter to subpoena. (adg) (Entered: 03/23/2001)
97 Objections by movant Kathelia Faraca to subpoena. (adg) (Entered: 03/23/2001)
98 Objections by movant William Shines to subpoena. (adg) (Entered: 03/23/2001)
99 Objections by movant Tommy Williams to subpoena. (adg) (Entered: 03/23/2001)
104 Objections by movant Gary Sims to subpoena. (adg) (Entered: 03/26/2001)

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03/23/2001 03/26/2001 03/26/2001 03/26/2001 03/26/2001 03/26/2001 03/26/2001 03/26/2001 03/26/2001 03/28/2001
03/28/2001 04/05/2001 04/05/2001 04/09/2001
04/18/2001
04/18/2001
04/18/2001 04/18/2001

105 Objections by movant Regina Nicholson to subpoena. (adg) (Entered: 03/26/2001)
106 Objections by movant Adline Smith to subpoena. (adg) (Entered: 03/28/2001)
107 Objections by movant William Adams to subpoena. (adg) (Entered: 03/28/2001)
108 Objections by movant Anthony Moore to subpoena. (adg) (Entered: 03/28/2001)
109 Objections by movant Kathy Moore-Hall to subpoena. (adg) (Entered: 03/28/2001)
110 Objections by movant Kelly Douglass to subpoena. (adg) (Entered: 03/28/2001)
111 Objections by movant Jonathan Lambright to subpoena (adg) (Entered: 03/28/2001)
112 Objections by movant Glenda Knight to subpoena. (adg) (Entered: 03/28/2001)
113 Objections by movant Anthony Cook to subpoena. (adg) (Entered: 03/28/2001)
114 ORDER by Judge J. O. Forrester DENYING [67-1] motion for reconsideration of [60-1] order by EEOC, GRANTING [73-1] motion to withdraw by Daniel F. Piar as attorney for Lockheed Martin Co, Lockheed Martin Corp, (cc) (adg) (Entered: 03/29/2001)
Terminated submissions. (adg) (Entered: 03/29/2001)
Steno notes of proceedings held 03-19-01 before Judge J. O. Forrester , by Court Reporter Lois D. Phillips. (slc) (Entered: 04/05/2001)
Dft Lockheed's copy of [114-1] order returned undeliverable. Marked unable to forward as to atty Blakenship. (adg) (Entered: 04/06/2001)
115 Joint MOTION by parties to extend deadlines for class certification motions and discovery by 31 days w/proposed order. (to JOF) (adg) Modified on 04/11/2001 (Entered: 04/11/2001)
116 Supplemental memorandum by plaintiffs in support of [115-1] joint motion to extend deadlines for class certification motions and discovery by 31 days (adg) (Entered: 04/19/2001)
ENDORSED ORDER by Judge J. O. Forrester DENYING [115-1] joint motion to extend deadlines for class certification motions and discovery by 31 days by defendants, plaintiff (cc) (adg) (Entered: 04/20/2001)
117 TELE-CONFERENCE HELD before Judge J. O. Forrester (adg) (Entered: 04/25/2001)
VERBAL ORDER by Judge J. O. Forrester, pla motion due 5/9/01, dft response due by 6/25/01, pla reply brief due 10 days after; Bannel expert report due 5/9/01; Landy expert report due 5/27/01. Briefs 80 pages per case allowed if need to file w/court any depo/exh that rely upon factually; movants reply brief limited to 10-20 pages. Court's aspiration to rule on this motion by the middle of August. Alexander and Sistrunk to prepare a revised schedule and send to court for signature. (adg) (Entered: 04/25/2001)

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04/19/2001 04/27/2001 05/02/2001 05/03/2001 05/07/2001 05/08/2001
05/09/2001 05/09/2001
05/09/2001

Steno notes of proceedings held 03/12/01 before Judge Willis B. Hunt Jr. , by Court Reporter Nancy Smith-Wells. (slc) (Entered: 04/19/2001)
Dft's copy of endorsed order returned undeliverable. Marked unable to forward as to atty Martha Blakenship Wright. (adg) (Entered: 04/30/2001)
118 MOTION by Lockheed Martin Co to compel discovery with brief in support. (kt) Modified on 06/25/2001 (Entered: 05/03/2001)
119 Notice to take the deposition of Debbie Owens by plaintiffs. (kt) (Entered: 05/04/2001)
SUBMITTED to Judge J. O. Forrester on [118-1] motion to compel discovery (adg) (Entered: 05/07/2001)
120 ORDER by Judge J. O. Forrester on [118-1] motion to compel discovery. Plas are DIRECTED to respond to those portions of dft's motion regarding discovery request concerning plas' contacts with the EEOC and other government agencies, as well as involvement of plas' attorneys in prior employment discrimination class actions no later than 5/14/01. The court will HOLD IN ABEYANCE any ruling on those portions of dft's motion until that time. The court GRANTS dft's motion in regards to documents subpoenaed by dft in conjunction with depositions of the affiants, to the extent that affiants have not complied with the provision that they will produce privilege logs, the court DIRECTS that complete privilege logs of the documents withheld by each affiant be produced no later than 5/25/01. With regard to remaining document requests, the court DENIES the motion W/LEAVE TO RENEW upon a properly filed motion that is in compliance with all the applicable rules of procedure. The court GRANTS dft's request that an additional hour be allowed for pla Reid's deposition. (cc) (adg) Modified on 05/09/2001 (Entered: 05/09/2001)
121 Notice of original depositions by plaintiffs . (adg) (Entered: 05/09/2001)
Depositions of ROBERT R. BAGERSKI (3 VOLS.), RALPH D. BARR, CALVIN C. BRYANT, CHARLES THOMAS BURBAGE, THOMAS A. COFFEY, GARLAND KIMSEY DRENNAN, JOHN W. GILL, STEVEN D. HAMLIN, DAIN M. HANCOCK, RONALD HUDSON, DONNA J. LEFEW, BETTY J. KIMBALL, SHAWN MELTON, THOMAS METCALF, DEBORAH ANN OWENS, TERRY F. POWELL, JAMES K. PRICE, LEE E. RHYANT and DORIE TUGGLE (2 VOLS.) taken for plaintiffs. (adg) (Entered: 05/09/2001)
122 ORDER by Judge J. O. Forrester amending the previous scheduling order, except for the amendments contained in this order, the prior scheduling order entered shall remain in full force and effect, plas' motion for class certification due 5/9/01; dfts' responses to plas' motion for class certification due 6/25/01, plas' reply to dfts' response to plas' motion for class certification due 7/9/01; Dr. Frank Landy's expert report due 5/7/01; Dr. Burt Barnow's expert report is due 5/9/01; dfts' expert reports due 6/25/01; the court further orders that plas be permitted to take depositions limited in scope to the affirmative action documents and data produced in accordance w/the court's 3/12/01 order. The court further orders that plas' brief in support of its motion for class certification be limited to 80 pages, and dfts' response shall also be limited to 80 pages. Plas' reply brief shall be limited to 10 pages. Discovery ends 6/8/01 (cc) (adg) (Entered: 05/10/2001)

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05/22/2001 05/23/2001
05/23/2001
05/25/2001 05/29/2001 05/29/2001 06/01/2001 06/01/2001

123 MOTION by plaintiffs to certify class action with brief in support. (adg) Modified on 05/10/2001 (Entered: 05/10/2001)
124 Notice of filing appendix of affidavits by plaintiffs. (adg) (Entered: 05/10/2001)
125 Notice of filing appendix to brief in support of plas' motion for class certification and notice of filing under seal by plaintiffs. (w/box of sealed material ***FILED UNDER SEAL***) (adg) Modified on 05/10/2001 (Entered: 05/10/2001)
126 Expedited response by plaintiffs in opposition to [118-1] motion to compel discovery (adg) Modified on 05/15/2001 (Entered: 05/15/2001)
Dft's copy of [120-1] order returned undeliverable. Marked unable to forward as to atty Martha Wright. (adg) (Entered: 05/16/2001)
Dft's copy of [122-1] order returned undeliverable, marked unable to forward. (adg) (Entered: 05/17/2001)
128 TELE-CONFERENCE HELD before Judge J. O. Forrester re: discovery expert (Landy), pla is to either make it revenue neutral to Lockheed or get expert back here. Pla would have to pay additional fees/costs for one travel costs, call court next week if needed. (adg) (Entered: 05/25/2001)
129 TELE-CONFERENCE HELD before Judge J. O. Forrester, parties called to speak w/Court re: subpoena duces tecum issues/objections. Court ordered parties to appear on 5/23/01 at 10:30 AM. (adg) (Entered: 05/25/2001)
127 ORDER by Judge J. O. Forrester GRANTING [118-1] motion to compel discovery as to the discovery requests seeking information and documents concerning Plaintiffs' contacts w/governmental agencies and counsel's involvment in employment discrimination class actions. The other portions of Defendant's motion are either GRANTED or DENIED W/LEAVE TO RENEW as indicated in the court's 5/8/01 order. (cc) (adg) (Entered: 05/24/2001)
130 Miscellaneous conference HELD on 5/23/01 before Judge J. O. Forrester, dft EXHIBIT #1 admitted as part of record. Court conferred w/counsel re: subpoena duces tecum. Pla's production to be completed by close of business 5/25/01 (Landy), Barnell production to be completed by 5/29/01. (Dft's EXHIBIT 1 attached) (adg) Modified on 05/25/2001 (Entered: 05/25/2001)
131 Notice of filing original affiants' log of privileged documents by plaintiffs. (adg) (Entered: 05/29/2001)
132 TELE-CONFERENCE HELD before Judge J. O. Forrester, Court conferred w/counsel on expert discovery matters. (adg) (Entered: 06/01/2001)
VERBAL ORDER by Judge J. O. Forrester, if the pla's atty's haven't provided the dft's atty's w/what they need by 7:30 pm eastern time today, the court will strike the subpoena duces tecum. (adg) (Entered: 06/01/2001)
133 TELE-CONFERENCE HELD before Judge J. O. Forrester, court conferred w/counsel on expert discovery matters. (adg) (Entered: 06/04/2001)
VERBAL ORDER by Judge J. O. Forrester, Court orders information requested (i.e. log/lst file and computer version of instructions) be produced 5:30 p.m. EST

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06/01/2001 06/05/2001 06/07/2001 06/13/2001 06/19/2001 06/20/2001 06/21/2001 06/21/2001
06/22/2001
06/22/2001 06/25/2001
06/25/2001 06/25/2001 06/25/2001

today to dft atty. by e-mail/electronically. If not produced by that time, court will impose sanctions including not letting Dr. Barrow testify. Nancy Rafuse to reduce what was said/requested of Josie Alexander in writing and fax to Keith Givens. Whatever pla counsel contends substantial additional factors not raised in brief earlier, produce in camera to the Court by 5:30 p.m. EST today. Court will appt. a magistrate judge as special master to review the documents. Have these in camera documents filed unders seal in the clerk's office and CRD will pick them up on 6/4/01. (adg) (Entered: 06/04/2001)
152 Notice of filing original documents under seal pursuant to court's 6/1/01 verbal order by plaintiffs. (adg) (Entered: 07/10/2001)
Steno notes of proceedings held 6/1/01 before Judge J. O. Forrester, by Court Reporter Donna Keeble. (adg) (Entered: 06/05/2001)
134 MOTION by plaintiff for reconsideration of [127-1] order with brief in support. (adg) (Entered: 06/08/2001)
135 Withdrawal of affidavit of putative class member Dulcina Sanderson included in [123-1] motion for class certification. (adg) (Entered: 06/14/2001)
136 Notice of amendment of expert's report by plaintiffs. (***FILED UNDER SEAL per [138-1] order***) (adg) Modified on 06/21/2001 (Entered: 06/19/2001)
137 MOTION by plaintiff to seal notice of amendment of expert's report . (adg) (Entered: 06/21/2001)
138 ORDER by Judge J. O. Forrester GRANTING [137-1] motion to seal notice of amendment of expert's report (cc) (adg) (Entered: 06/21/2001)
139 Notice of filing amended copies of exhibits to pla's brief in support of motion for reconsideration of court's order dated 5/23/01 by plaintiffs. (adg) (Entered: 06/22/2001)
140 FOURTH MOTION by plaintiffs to compel the production of documents , and for expedited ruling with memorandum in support and certification of good faith. (adg) (Entered: 06/25/2001)
141 Response by defendant Lockheed Martin Co in opposition [134-1] motion for reconsideration of [127-1] order (adg) (Entered: 06/25/2001)
SUBMITTED to Judge J. O. Forrester on [140-1] motion to compel the production of documents, [140-2] motion for expedited ruling and [134-1] motion for reconsideration of [127-1] order. (File in chambers) (adg) (Entered: 06/25/2001)
142 Response by defendants in opposition to [123-1] motion to certify class action (adg) (Entered: 06/26/2001)
143 MOTION by defendants to permit limited filing under seal with proposed order. (adg) (Entered: 06/26/2001)
144 Objections by defendants to the admissibility of portions of affidavits and unsigned, unsworn questionnaire responses filed in support of pla's [123-1] motion to certify class action (adg) (Entered: 06/26/2001)

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06/25/2001 06/25/2001 06/25/2001 06/25/2001
06/25/2001 06/26/2001
06/26/2001 06/28/2001 06/28/2001 06/29/2001 07/03/2001 07/09/2001

145 MOTION by defendants in limine to exclude testimony of Frank Landy and notice of objection to admissibility of evidence with brief in support. (adg) (Entered: 06/26/2001)
146 MOTION by defendants in limine to exclude testimony of Burt Barnow , notice of objection to admissibility of evidence and to strike untimely amended opinions of Burt S. Barnow with brief in support. (adg) (Entered: 06/26/2001)
147 Notice of filing original discovery by defendants. (adg) (Entered: 06/27/2001)
Depositions of FRANK LANDY (2 VOLS.), BURT BARNOW (2 VOLS.), MELVIN REID (3 VOLS.), CLARENCE W. SINKFIELD, VONDA MOORE, JHONNIE C. WEST, FARRIS YARBROUGH, JOSEPH BANKS, RITA F. OLIVER, EDWARD KIRKLAND, CALVIN BARNETT COMBS and WENDELL CARLISLE taken for defendants (adg) Modified on 06/27/2001 (Entered: 06/27/2001)
148 Appendix by defendant to memorandum in opposition to pla's [123-1] motion to certify class action (7 VOLS. w/Exhibits 1-87) (adg) (Entered: 06/27/2001)
149 ORDER by Judge J. O. Forrester DIRECTING plas to file an index of documents they contend should be filed under seal w/in 15 days of the date of this order. The court DIRECTS the dfts to file a complete index of materials upon which they rely in opposing [123-1] motion to certify class action and contend should be filed under seal w/in 15 days of the date of this order. The court DIRECTS both plas and dfts to attach to any dispositive motion hereafter filed in these cases a complete index of all materials upon which they rely in support or opposition of such motion and contend should be filed under seal. It is the court's present intention to unseal any and all materials upon which either plas or dfts rely in supporting or opposing class certification. Any party contending that any of these materials should remain under seal is DIRECTED to to SHOW CAUSE w/in 30 days of the date of this order why materials should remain under seal. If no party has attempted to show cause within the time period, the materials at issue will be ordered unsealed . [149-1] order to be submitted on 7/25/01 (cc) (adg) (Entered: 06/27/2001)
150 Attorney appearance for plaintiffs by Michael D. Hausfeld and Joseph M. Sellers. (adg) (Entered: 06/28/2001)
SUBMITTED to Mag Judge Alan J. Baverman on [134-1] motion for reconsideration of [127-1] order (adg) (Entered: 06/28/2001)
SUBMITTED to Judge J. O. Forrester on [123-1] motion to certify class action (File in chambers) (adg) (Entered: 06/28/2001)
Dft's Lockheed copy of [138-1] order returned undeliverable marked unable to forward as to atty Martha Wright. (adg) (Entered: 07/02/2001)
Dft's copy of [149-1] order returned undeliverable, marked unable to forward as to atty Martha Wright. (adg) (Entered: 07/05/2001)
151 SPECIAL MASTER'S REPORT AND RECOMMENDATION by Mag Judge Alan J. Baverman on [134-1] motion for reconsideration of [127-1] order, Special Master RECOMMENDS that plaintiffs' claim of common interest privilege be

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07/09/2001 07/09/2001 07/09/2001 07/10/2001 07/10/2001 07/10/2001 07/10/2001
07/10/2001
07/11/2001
07/12/2001 07/13/2001 07/13/2001

SUSTAINED as to documents numbered 000-0000001-6, 0000-0000010-26, 0000-0000028-19, and DENIED as to documents numbered 0000-0000007-9, 0000-0000027, and 0000120-121. As all other documents are outside the scope of the referral, the Special Master has reported to the Court without recommendation, with order for service (Submission of RR due 7/26/01) (adg) Modified on 07/10/2001 (Entered: 07/10/2001)
153 Notice of filing under seal by plaintiffs (exhibits 101 thru 110 to plaintiffs' reply memoranda in support of class certification ***FILED UNDER SEAL***) (adg) (Entered: 07/10/2001)
154 Reply in support of [123-1] motion to certify class action by plaintiffs. (adg) (Entered: 07/10/2001)
155 Response by plaintiffs in opposition to [144-1] objection. (adg) (Entered: 07/10/2001)
SUBMITTED to Judge J. O. Forrester on [144-1] objection. (File in chambers) (adg) (Entered: 07/10/2001)
156 Response by plaintiffs in opposition to [145-1] motion in limine to exclude testimony of Frank Landy and notice of objection to admissibility of evidence. (adg) (Entered: 07/11/2001)
157 Notice of filing exhibits 1 thru 5 to plaintiffs' response to dfts' motion in liminie to exclude the testimony of Dr. Frank Landy under seal by plaintiffs. (***FILED UNDER SEAL) (adg) (Entered: 07/11/2001)
158 Response by plaintiffs in opposition to [146-1] motion in limine to exclude testimony of Burt Barnow, notice of objection to admissibility of evidence and [146-2] motion to strike untimely amended opinions of Burt S. Barnow (adg) (Entered: 07/11/2001)
159 Notice of filing exhibits 1 thru 17 to plas' response in opposition to dfts' motion in limine to exclude testimony of Dr. Burt Barnow, notice of objection to admissibility of evidence and motion to strike amended opinions of Dr. Barnow under seal by plaintiffs. (***FILED UNDER SEAL***) (adg) (Entered: 07/11/2001)
SUBMITTED to Judge J. O. Forrester on [145-1] motion in limine to exclude testimony of Frank Landy, [146-1] motion in limine to exclude testimony of Burt Barnow and [146-2] motion to strike untimely amended opinions of Burt S. Barnow. (File in chambers) (adg) (Entered: 07/11/2001)
161 Response by defendants to plaintiff's [140-1] motion to compel the production of documents (aaq) (Entered: 07/17/2001)
Steno notes of proceedings held 4/18/01, 5/17/01, 5/18/01, 5/22/01, and 5/23/01 before Judge J. O. Forrester, by Court Reporter Lois D. Phillips. (jph) (Entered: 07/13/2001)
160 Notice of filing affiant's questionnaire responses not filed with plas' motion for class certification by plaintiffs. (als) (Entered: 07/17/2001)

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07/16/2001 07/18/2001 07/18/2001 07/18/2001 07/18/2001 07/19/2001 07/23/2001 07/26/2001 07/26/2001 07/27/2001 07/31/2001
07/31/2001
07/31/2001
07/31/2001
08/01/2001

Pla's copy of [151-1] report & recommendation returned undeliverable, box closed no order. (lme) (Entered: 07/18/2001)
162 MOTION by defendant to strike , or in limine to exclude the supplemental reports of Burt Barnow and Frank Landy with brief in support. (jph) (Entered: 07/19/2001)
162 Objections by defendant to admissibility of evidence (included in [162-1] motion) (jph) (Entered: 07/19/2001)
163 Reply brief to [162-2] motion in limine to exclude the supplemental reports of Burt Barnow and Frank Landy by defendant. (jph) (Entered: 07/19/2001)
164 MOTION by defendants in limine to exclude plas' exhibits 103 and 110 and notice of objection to admissibility of evidence with brief in support. (jph) (Entered: 07/19/2001)
SUBMITTED to Judge J. O. Forrester on [143-1] motion to permit limited filing under seal (file in chambers) (aaq) (Entered: 07/19/2001)
165 REPLY by plaintiffs to response to [140-1] fourth motion to compel the production of documents. (adg) (Entered: 07/24/2001)
166 Objections by plaintiffs to [151-1] special master's report & order for service. (adg) (Entered: 07/27/2001)
167 MOTION by plaintiffs to seal plas' reply to dfts' response to plas' fourth motion to compel with proposed order. (adg) (Entered: 07/27/2001)
SUBMITTED to Judge J. O. Forrester on [149-1] order and [151-1] report & recommendation. (File in chambers) (adg) (Entered: 07/27/2001)
169 MOTION by plaintiffs for leave to file a surreply in response to dfts' consolidated reply brief in support of dfts' motions in limine to exclude the testimony of Drs. Burt Barnow and Frank Landy with proposed surreply. (adg) (Entered: 08/03/2001)
170 Notice of filing Exhibits 1 thru 3 to plas' surreply in response to dfts' consolidated reply brief in support of dfts' motions in limine to exclude the testimony of Drs. Burt Barnow and Frank Landy by plaintiffs. (***FILED UNDER SEAL***) (adg) (Entered: 08/03/2001)
171 Response by plaintiffs in opposition to [162-1] motion to strike and [162-2] motion in limine to exclude the supplemental reports of Burt Barnow and Frank Landy and notice of objection to admissibility of evidence. (adg) Modified on 08/03/2001 (Entered: 08/03/2001)
172 Notice of filing Exhibits A thru E to plas' response to dfts' motion to strike or in limine to exclude the supplemental reports of experts Barnow and Landy and notice of objection to admissibility of evidence by plaintiffs. (***FILED UNDER SEAL***) (adg) (Entered: 08/03/2001)
173 Response by plaintiffs in opposition to [164-1] motion in limine to exclude plas' exhibits 103 and 110 and notice of objections to admissibility of evidence. (adg) (Entered: 08/03/2001)

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08/02/2001 08/03/2001
08/07/2001 08/16/2001 08/16/2001 08/20/2001
08/30/2001 08/31/2001 12/13/2001 01/02/2002 02/28/2002

168 ORDER by Judge J. O. Forrester DENYING [123-1] motion to certify class action by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid (cc) (adg) (Entered: 08/02/2001)
SUBMITTED to Judge J. O. Forrester on [162-1] motion to strike, [162-2] motion in limine to exclude the reports of Burt Barnow and Frank Landy and [164-1] motion in limine to exclude plas' exhibits 103 and 110. (File in chambers) (adg) (Entered: 08/03/2001)
174 Response by defendant to [166-1] objections to the Special Master's Report and order for service. (adg) (Entered: 08/08/2001)
SUBMITTED to Judge J. O. Forrester on [167-1] motion to seal plas' reply to dfts' response to plas' fourth motion to compel. (File in chambers) (adg) (Entered: 08/16/2001)
175 MOTION by plaintiffs for reconsideration of [168-1] order with memorandum of law in support. (adg) (Entered: 08/17/2001)
SUBMITTED to Judge J. O. Forrester on [169-1] motion for leave to file a surreply in response to dfts' consolidated reply brief in support of dfts' motions in limine to exclude the testimony of Drs. Burt Barnow and Frank Landy. (File in chambers) (adg) (Entered: 08/20/2001)
176 Memoranda by defendants in opposition to [175-1] motion for reconsideration of [168-1] order and memorandum of law in support. (adg) (Entered: 08/31/2001)
SUBMITTED to Judge J. O. Forrester on [175-1] motion for reconsideration of [168-1] order. (File in chambers) (adg) (Entered: 08/31/2001)
177 ORDER by Judge J. O. Forrester DENYING [175-1] motion for reconsideration of [168-1] order by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid (cc) (adg) (Entered: 12/14/2001)
Lockeed dfts' copy of [177-1] order returned undeliverable as to Martha Blankenship Wright, Esq., marked not deliverable as addressed, unable to forward. (adg) (Entered: 01/07/2002)
178 ORDER by Judge J. O. Forrester DENYING AS MOOT the [140-1] motion to compel the production of documents by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid, DENYING AS MOOT the [140-2] motion for expedited ruling by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid, DENYING AS MOOT the [145-1] motion in limine to exclude testimony of Frank Landy by Lockheed Martin Co, Lockheed Martin Corp, DENYING AS MOOT the [146-1] motion in limine to exclude testimony of Burt Barnow by Lockheed Martin Co, Lockheed Martin Corp, DENYING AS MOOT the [146-2] motion to strike untimely amended opinions of Burt S. Barnow by Lockheed Martin Co, Lockheed Martin Corp, DENYING AS MOOT the [162-1] motion to strike by Lockheed Martin Corp, Lockheed Martin Co, DENYING AS MOOT the [162-2] motion in limine to exclude the supplemental reports of Burt Barnow and Frank Landy by Lockheed Martin Corp, Lockheed Martin Co, DENYING AS MOOT the [164-1] motion in limine to exclude plas' exhibits 103 and 110 by Lockheed Martin Corp, Lockheed Martin Co, DENYING [169-1] motion for leave to file a surreply in response to dfts' consolidated reply brief in support of

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03/11/2002 05/10/2002 07/17/2002
07/26/2002
07/26/2002
07/29/2002 07/30/2002 08/07/2002 08/13/2002 08/28/2002 03/13/2003 08/01/2003 08/01/2003

dfts' motions in limine to exclude the testimony of Drs. Burt Barnow and Frank Landy by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid, DENYING [134-1] motion for reconsideration of [127-1] order by Clarence W. Sinkfield, Johnnie West, Vonda Moore, Melvin Reid, DENYING [143-1] motion to permit limited filing under seal by Lockheed Martin Co, Lockheed Martin Corp, DENYING [167-1] motion to seal plas' reply to dfts' response to plas' fourth motion to compel by Clarence W. Sinkfield, (cc) (adg) (Entered: 03/01/2002)
Dft's copy of [178-1] order returned undeliverable, marked not deliverable as addressed, ret to sender (adg) (Entered: 03/12/2002)
179 Joint Post-Class Certification Denial Planning Report and Discovery Schedule. (to judge) (adg) (Entered: 05/13/2002)
180 ORDER by Judge J. O. Forrester DIRECTS the clerk to DROP all plaintiffs except the first named Northern District of Georgia Plaintiff in each complaint on the condition that their dropping will be WITHOUT PREJUDICE to their filing of new suits against dfts so long as they pay the proper fee. (cc) (jph) (Entered: 07/17/2002)
181 Miscellaneous conference HEARING HELD on 7/26/02 before Judge J. O. Forrester, Pla to give dft something in writing that says the Court isn't necessarily adopting the settlement; dft to prepare motion to dismiss to perfect the record; the Court will consider and untimely motion to reconsider order #180 (#300 in 1:00-cv-1183-JOF) as it applies to the pla suit against the union dfts. (adg) (Entered: 08/02/2002)
VERBAL ORDER by Judge J. O. Forrester, Pla to give dft something in writing that says the Court isn't necessarily adopting the settlement; dft to prepare motion to dismiss to perfect the record; the Court will consider an untimely motion to reconsider [180-1] order (#300 in 1:00-cv-1183-JOF) as it applies to the pla suit against the union dfts. (adg) (Entered: 08/02/2002)
Copy of [180-1] order returned undeliverable as to atty Martha Wright, marked unable to forward. (adg) (Entered: 07/31/2002)
Letter sent to counsel to pick up duplicate sealed material. (adg) (Entered: 07/30/2002)
Sealed material by pla's picked-up by Attorney Mickiel Pete for the Cochran firm. (adg) Modified on 08/12/2002 (Entered: 08/07/2002)
Copy of sealed material letter returned as to Attorney Martha Wright, marked unable to forward. (adg) (Entered: 08/14/2002)
182 TRANSCRIPT filed RE: hearing held before Judge J. Owen Forrester for dates of 7/26/02 Court Reporter: Lois D. Phillips (adg) (Entered: 08/29/2002)
183 Notice of change of address by cnsl for defendants. (adg) (Entered: 03/13/2003)
184 ORDER by Judge J. O. Forrester, DISMISSING case w/out prejudice pursuant to LR 41.3 (cc) (adg) (Entered: 08/05/2003)
185 JUDGMENT ENTERED pursuant to LR 41.3 (cc) (adg) (Entered: 08/05/2003)

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09/22/2003 04/08/2005
04/08/2005

Case terminated. (adg) (Entered: 08/05/2003)
Copy of [184-1] order DISMISSING case w/out prejudice pursuant to LR 41.3 and [185-1] judgment returned undeliverable as to atty Martha Marie Blankenship Wright, marked RTS, undeliverable as addressed. (adg) (Entered: 08/12/2003)
Proposed sealed document order (to JOF) (adg) (Entered: 09/22/2003)
186 ORDER directing sealed material be returned to submitting party re: 136 Notice of amendment of expert's report by plaintiffs. Signed by Judge J. Owen Forrester on 4/7/2005. (letter to follow)(adg) (Entered: 04/08/2005)
187 Letter to Hezekiah Sistrunk, Jr. re: 186 Order. (adg) (Entered: 04/08/2005)

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 Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379 (2001)

199 F.R.D. 379 United States District Court,
N.D. Georgia, Atlanta Division.
Melvin REID, et al., Plaintiffs, v.
LOCKHEED MARTIN AERONAUTICS CO. and Lockheed Martin Corp., Defendants. Farris Yarbrough, et al., Plaintiffs, v.
Lockheed Martin Aeronautics Co., et al., Defendants.
Nos. Civ.A. 1:00CV1182JOF, Civ.A. 1:00CV1183JOF. | March 9, 2001.
Attorneys and Law Firms
*380 J. Keith Givens, Cochran, Cherry, Givens & Smith, Dothan, AL, Josie Anne Alexander, Alexander & Associates, Atlanta, GA, Hezekiah Sistrunk, Jr., Cochran, Cherry, Givens, Smith & Sistrunk, Atlanta, GA, Jock Michael Smith, Cochran, Cherry, Givens & Smith, Tuskegee, AL, Johnnie L. Cochran, Jr., Cochran, Cherry, Givens & Smith, Los Angeles, CA, for Plaintiffs.
William Henry Boice, Daniel F. Piar, Kilpatrick Stockton, Atlanta, GA, R. Lawrence Ashe, Jr., Nancy E. Rafuse, Paul, Hastings, Janofsky & Walker, Atlanta, GA, Martha Marie Blankenship, Lockheed Martin Aeronautical Systems Company Legal Department, Marietta, GA, Robert S. Giolito, Megan Elizabeth Gideon, Lesley Ann Troope, Stanford, Fagan & Giolito, Atlanta, GA, for Defendants.
Opinion
ORDER
FORRESTER, District Judge.
This matter is before the court on Plaintiffs’ motions to compel documents withheld under the self-critical analysis privilege.
I. STATEMENT OF THE CASE Plaintiffs filed these two civil rights actions on May 10, 2000, alleging that Defendants, among other things, have engaged in racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,

as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 a (“Title VII”). On December 12, 2000, Plaintiffs filed motions to compel Defendants Lockheed Martin Aeronautics Company and Lockheed Martin Corporation (collectively referred to as “Lockheed”) to produce certain documents responsive to Plaintiffs’ first requests for production. Among the issues raised in these motions was Defendants’ assertion of the self-critical analysis privilege (“SCA”). On February 7, 2001, Plaintiffs filed second motions to compel documents withheld under the SCA. The documents sought are grouped into three categories: (1) Affirmative action plans submitted to the Office of Federal Contract Compliance Programs (“OFCCP”); (2) data processing reports concerning compliance with OFCCP goals; and (3) reports commissioned by Lockheed regarding the company’s work culture.1 The court held a hearing on these motions on February 8, 2001, and granted in part and denied in part Plaintiffs’ first motions to compel. The court held in abeyance ruling on the second motions to compel concerning the SCA.

1

Plaintiffs also requested the minutes, agenda, and

program notes for Lockheed’s Audit and Ethics

Committee. Lockheed represented that these documents

were produced to Plaintiffs, and the motions to compel

are therefore moot as to these documents.

The court held a second hearing on March 1, 2001 to consider discovery disputes that arose after the court’s first hearing. In this second hearing, the court again held in abeyance Plaintiffs’ second motions to compel and directed Lockheed to produce samples of the withheld documents for in camera review on Monday, March 5, 2001. Noting that Plaintiffs had challenged only the assertion of the *381 SCA, the court stated that Lockheed could exclude from the in camera review any documents to which another privilege had been claimed without challenge. On March 5, 2001, Lockheed produced the following documents for in camera inspection: (1) Lockheed’s 1997 affirmative action plan with appendices and exhibits, including impact ratio analyses, job group analyses, availability analyses, utilization analyses, and goals; (2) three reports, numbered 87-307, 87-308, and 87-309, concerning utilization goals for the various branches at Lockheed; (3) job area acceptance range reports; (4) back-up data reports for layoffs, transfers, terminations and promotions; (5) reconciliation reports; (6) a publication produced by the United States Department of Education concerning educational statistics; (7) control and compare reports for Lockheed’s databases; (8) worksheets for determining eight-factor analyses required for OFCCP reporting; (9) materials concerning progress toward affirmative action goals; and (10) reports for Lockheed’s Diversity Council relating to the company’s
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Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379 (2001)

work culture.
II. DISCUSSION Lockheed claims that each of the aforementioned documents is subject to the SCA and therefore need not be produced. Plaintiffs, on the other hand, question the SCA’s applicability in the employment discrimination context and contend that the privilege cannot be applied to the instant dispute. Alternatively, Plaintiffs argue that, even should the privilege be found to apply in this case, the documents at issue do not fall within the scope of the SCA. For the following reasons, the court concludes that the SCA may apply in the employment discrimination context and does so under the circumstances of this case. The court further finds that, while certain of the withheld documents are protected by the SCA, others fall outside the scope of the privilege and should be produced.
A. The SCA’s Applicability in Employment Discrimination Cases
1. Origins and Development of the SCA [1] The SCA is generally said to have originated in Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C.1970), aff’d, 479 F.2d 920 (C.A.D.C.1971) (table disposition). In that medical malpractice case, the court held that the plaintiff was not entitled to discover the retrospective minutes and reports of certain medical staff meetings in which the physicians critically reviewed and analyzed the treatment provided by the hospital. Noting that the purpose of the staff meetings was the improvement of the efficiency of the medical procedures and techniques utilized in patient care, the court concluded that confidentiality was essential to candid deliberations and that an “overwhelming public interest” in maintaining that candor provided the basis for a qualified privilege. Id. at 250-51. Accordingly, absent evidence of extraordinary circumstances, the court refused to compel production of the requested documents. Id. at 251.
The first application of the SCA in the employment discrimination context occurred in Banks v. Lockheed-Georgia Co., 53 F.R.D. 283 (N.D.Ga.1971) (O’Kelley, J.). In Banks, the plaintiffs sought the production of “[a]ll analyses, reports, interim reports, and any other written material prepared by the [defendant’s] equal employment opportunity ‘team....’ ” Id. at 284. The equal employment opportunity team had been commissioned by the defendant both to study the defendant’s equal employment opportunity problems and to determine the progress of the defendant’s affirmative action plans. The team’s findings were produced in an internal report, which in turn had been used to produce a formal report, pursuant to Executive Order 11246, which

was submitted to the predecessor of the OFCCP. The defendant agreed to produce the formal report presented to the government, but it objected to producing the internal report on the ground that it contained self-critical analysis. Relying on Bredice, the court agreed that the internal report need not be produced, explaining that “it would be contrary to [public] policy to discourage frank self-criticism and evaluation in the development of affirmative action programs of this kind.” Id. at 285. The court further explained that disclosure of the internal report, which contained the written *382 opinions and conclusions of the defendant’s own research team, “would discourage companies ... from making investigations which are calculated to have a positive effect on equalizing employment opportunities.” Id. Accordingly, the court denied the plaintiff’s motion to compel.
In the thirty years since Bredice and Banks were decided, the existence and parameters of the SCA have been anything but clear. As one court has noted, “[t]he Supreme Court and the circuit courts have neither definitively denied the existence of such a privilege, nor accepted it and defined its scope.” Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 425 n. 1 (9th Cir.1992). A few federal appellate courts, however, have suggested that the policy rationales underlying the SCA are valid. See, e.g., ASARCO, Inc. v. NLRB, 805 F.2d 194, 199-200 (6th Cir.1986) (explaining policies for protecting self-critical analysis and holding that company need not provide self-critical internal reports to National Labor Relations Board); Coates v. Johnson & Johnson, 756 F.2d 524, 551-52 (7th Cir.1985) (stating in dicta that “prevailing view is that self-critical portions of affirmative action plans are privileged and not subject to discovery by plaintiffs”). A split among the district courts in employment discrimination cases has contributed to the lack of clarity. Compare, e.g., Cruz v. Coach Stores, Inc., 196 F.R.D. 228, 232 (S.D.N.Y.2000) (expressing doubt as to whether SCA “should be recognized at all”); Aramburu v. Boeing Co., 885 F.Supp. 1434, 1440-41 (D.Kan.1995) (concluding SCA does not apply in Title VII cases); Tharp v. Sivyer Steel Corp., 149 F.R.D. 177, 182 (S.D.Iowa 1993) (concluding SCA “should not be recognized in the field of employment discrimination litigation”), with Sheppard v. Consolidated Edison Co., 893 F.Supp. 6, 7-8 (E.D.N.Y.1995) (applying SCA to protect internal studies relating to equal employment opportunities); Roberts v. National Detroit Corp., 87 F.R.D. 30, 32-33 (applying SCA to protect self-critical analysis in mandatory affirmative action plans, equal employment opportunity reports, and federal contract compliance reports, as well as voluntary internal investigations). See also Gatewood v. Stone Container Corp., 170 F.R.D. 455, 459 (S.D.Iowa 1996) (recognizing SCA but declining to apply it to particular circumstances of that case); Harding v. Dana Transp., Inc., 914 F.Supp. 1084, 1099-1101 (D.N.J.1996) (same); Webb v. Westinghouse Elec. Corp., 81 F.R.D. 431, 433-35
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Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379 (2001)

(E.D.Pa.1978) (same).
2. The University of Pennsylvania Decision The uncertainty surrounding the SCA was furthered with the Supreme Court’s decision in University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990), which rejected a common law privilege protecting from Equal Employment Opportunity Commission (“EEOC”) investigation those communications made in the process of an academic peer review. The plaintiff in University of Pennsylvania, a professor at the Wharton School of Business, filed a charge of gender and racial discrimination with the EEOC after she was denied tenure. The charge alleged that the plaintiff’s department chair had sexually harassed her. The charge further alleged that, after the plaintiff insisted that their relationship remain professional, the department chair submitted a negative letter to the university’s personnel committee, which possessed ultimate responsibility for tenure decisions. Additionally, the plaintiff’s charge alleged that her qualifications were equal to or better than five male faculty members receiving more favorable treatment. Id. at 185, 110 S.Ct. 577.
As part of its investigation of the charge, the EEOC requested various documents from the university. The university refused to provide certain information, however, and the EEOC subpoenaed the plaintiff’s tenure-review file and the tenure files of the five male faculty members named in the charge. The university still refused to produce several documents that it characterized as “confidential peer review information,” and the EEOC eventually sought enforcement of the subpoena in federal court. Both the district court and the court of appeals held that the university must turn over the withheld documents. Id. at 186-88, 110 S.Ct. 577.
*383 The Supreme Court affirmed, finding that there was no common law privilege, under Federal Rule of Evidence 501, that allowed the university to withhold the tenure files. The Court began its analysis by noting that, while Rule 501 does not “freeze the law of privilege,” the judicial authority to create and apply evidentiary privileges should not be used expansively. Id. at 189, 110 S.Ct. 577. Rather, the Court explained that privileges should apply only when it “promotes sufficiently important interests to outweigh the need for probative evidence.” Id. (quoting Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)).
Noting also that this type of balancing is “particularly a legislative function,” the Court concluded that Congress had already considered the competing interests at issue and decided against privileging academic peer review materials. Important to the Court’s discussion was the fact

that Congress had initially exempted educational institutions from compliance with Title VII, but later amended the statute so as to eliminate this exemption. The reasons underlying this extension of Title VII, as revealed in the legislative history, included “the lack of access for women and minorities to higher ranking (i.e., tenured) academic positions.” Id. at 190, 110 S.Ct. 577. The legislative history also revealed that opponents of the extension were concerned that “enforcement of Title VII would weaken institutions of higher education by interfering with decisions to hire and promote faculty members.” Id. Such history demonstrated that Congress had considered the competing policies underlying the claimed privilege for peer review documents but had chosen not to create such a privilege. Id. at 189, 110 S.Ct. 577.
The Court found further support for its rejection of the academic peer review privilege in the procedures governing EEOC investigations of discrimination charges. Noting that Title VII obligated the EEOC to investigate charges of discrimination, the Court explained that the statute gave the EEOC access to “any evidence of any person being investigated ... that relates to unlawful employment practices covered by [the Act] and is relevant to the charge under investigation.” Id. at 191 (quoting 42 U.S.C. § 2000e-8(a)) (alterations in original). The Court found no privilege or qualification of this broad provision in the statute itself. Id. Moreover, the statutory scheme demonstrated that Congress had considered the asserted interest in confidentiality by subjecting to criminal penalties any EEOC employee who made public information obtained by the EEOC in the course of its investigation. Id. at 192, 110 S.Ct. 577. As such, Congress had provided the safeguard it deemed appropriate, and the Court would not go further than Congress thought necessary. Id.
Additionally, the nature of the plaintiff’s charge, as well as the obligations imposed upon the EEOC, favored rejecting the creation of an academic peer review privilege. The Court explained that disclosure of the peer review materials at issue would often be necessary for the EEOC to determine whether illegal discrimination had taken place. Id. at 193, 110 S.Ct. 577. Also, the Court concluded that the adoption of such a privilege “would place a substantial litigation-producing obstacle in the way of the Commission’s efforts to investigate and remedy alleged discrimination.” Id. at 194, 110 S.Ct. 577. Recognizing that a university might utilize the privilege in a manner designed to frustrate the EEOC’s mission, the Court stated its “reluctan[ce] to ‘place a potent weapon in the hands of employers who have no interest in complying voluntarily with [Title VII], who wish instead to delay as long as possible investigations by the EEOC.’ ” Id. (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 81, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984)). Finally, the Court observed that the academic peer review privilege
3

Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379 (2001)

had no perceptible limit and had no basis in precedent. Id. at 194-95, 110 S.Ct. 577.
3. The status of the SCA after University of Pennsylvania Although University of Pennsylvania did not address the SCA specifically, some courts have concluded that the privilege cannot survive University of Pennsylvania, especially in the area of Title VII. See, e.g., Aramburu, 885 F.Supp. at 1440-41. Several district courts in this circuit, however, have *384 clearly held that the privilege survives University of Pennsylvania, although most of these decisions were rendered in contexts other than employment discrimination litigation. See, e.g., Joiner v. Hercules, Inc., 169 F.R.D. 695 (S.D.Ga.1996) (applying SCA to evaluations of compliance with environmental laws); Reichhold Chem., Inc. v. Textron, Inc., 157 F.R.D. 522 (N.D.Fla.1994) (same); John v. Trane Co., 831 F.Supp. 855 (S.D.Fla.1993) (applying SCA to employment discrimination claim). See also United States ex rel. Falsetti v. Southern Bell Tel., 915 F.Supp. 308 (N.D.Fla.1996) (recognizing SCA but finding it inapplicable to qui tam litigation). The Eleventh Circuit has not spoken to the issue, and the law therefore remains unclear. The court reiterates, however, that nothing in University of Pennsylvania specifically addressed the SCA, nor did that decision establish any categorical rules for applying privileges in Title VII cases. Rather, that decision demonstrates that the application of privileges under Rule 501 should be decided on a case-by-case basis. See University of Pennsylvania, 493 U.S. at 189, 110 S.Ct. 577; see also Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). Distinctions between this case and University of Pennsylvania, as well as the purposes of Title VII, lead this court to conclude that University of Pennsylvania does not prohibit application of the SCA in this case.
To begin with, unlike University of Pennsylvania, there is no evidence in the legislative history or statutory scheme that Congress considered the competing policy interests surrounding the SCA and chose to strike the balance itself. As demonstrated, the Court in University of Pennsylvania thought it important that Congress chose not to create a privilege for academic peer review even though the legislative history revealed that it was conscious of the policy concerns supporting such a privilege. The court is unaware of any similar evidence in Title VII’s legislative history that Congress considered and rejected the specific policy concerns supporting the SCA. Moreover, the congressional safeguard for confidentiality that was present in University of Pennsylvania, the criminal penalty provision of § 2000e-8, is inapplicable to the instant dispute. As such, neither the structure of the statute nor the history surrounding its enactment establish congressional consideration and action as to the relevant

concerns.
[2] Additionally, the documents sought by Plaintiffs in this case are significantly different from those at issue in University of Pennsylvania. As the University of Pennsylvania Court noted, the tenure files sought in that case likely contained the very information necessary for the EEOC to investigate the plaintiff’s charge of discrimination. As explained by another district court in this circuit:

the chairman’s letter to the tenure committee might have contained evidence of his past discriminatory actions and his intent to discriminate, or it might have contained evidence in defense. Further, if the chairman had otherwise affected the tenure decision in an unlawful manner, the letter itself when transmitted (which was presumably negative) might have been an act actionable under Title VII.

Falsetti, 915 F.Supp. at 311. Similarly, the tenure files of the male faculty members may have contained evidence of the very charges brought by the plaintiff-that she was being treated less favorably than her male colleagues despite having equal or better qualifications. See University of Pennsylvania, 493 U.S. at 193, 110 S.Ct. 577. In other words, the materials sought by the EEOC in that case constituted contemporaneous records of the events giving rise to the plaintiff’s charge, and may even have been the communicative acts on which the charge was premised. See Falsetti, 915 F.Supp. at 311. By contrast, the SCA generally protects reflective materials that analyze and seek to improve the employer’s comprehensive approach to equal employment opportunity.2 The documents sought in this case, for example, concern retrospective evaluations of *385 Lockheed’s overall performance in the area of equal employment opportunities; they are not specifically related to the incidents underlying Plaintiffs’ claims. Cf. Whittingham v. Amherst College, 164 F.R.D. 124, 130-31 (D.Mass.1995) (suggesting that documents privileged by SCA “would be divorced from individual cases [and] would reflect [the employer’s] avowed commitment to affirmative action”); Harding, 914 F.Supp. at 1101 (noting that Banks protected material underlying “a generalized report which reviewed the company’s overall record”).

2

For these reasons, some courts have aptly noted that the

SCA rests on many of the same policy considerations

as does the exclusion of subsequent remedial measures

found in Federal Rule of Evidence 407. See, e.g.,

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Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379 (2001)

Reichhold, 157 F.R.D. at 524.

Not only are the nature of the documents different, but this case involves a significantly different context than that of University of Pennsylvania. The documents at issue here are sought not for purposes of an EEOC investigation, but rather for use in a civil suit challenging Lockheed’s Title VII behavior. This distinction is important because it implicates the policy objectives of Title VII itself. The Court in University of Pennsylvania clearly explained that it was reluctant to create a weapon that could be used by employers to thwart compliance with Title VII, and it strongly suggested that the academic peer review privilege would lead to more litigation of employment discrimination claims rather than conciliation by the EEOC. The SCA, on the other hand, encourages candid evaluation and voluntary compliance with employment discrimination laws, and it therefore facilitates the objectives of Title VII without producing litigation. See, e.g., Kolstad v. American Dental Ass’n, 527 U.S. 526, 545, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) ( “Dissuading employers from implementing programs or policies to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII.”); Faragher v. Boca Raton, 524 U.S. 775, 806, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (stressing need “to recognize the employer’s affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty”); Burlington Indus. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (noting “Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees”).3 As this court explained nearly twenty years ago, allowing Plaintiffs access to self-critical and evaluative documents “would discourage companies from making investigations which are calculated to have a positive effect in equalizing employment opportunities and would not be conducive to compliance with Title VII.” Woods v. Coca-Cola Co., 35 Fair Empl.Prac.Cas. (BNA) 151, No. C80-1201A, 1982 WL 31056, *4 n. 2 (N.D.Ga. June 10, 1982) (Forrester, J.).

3

Because the statute’s “primary objective” is “a

prophylactic one,” Kolstad, 527 U.S. at 545, 119 S.Ct.

2118, the court disagrees with those decisions that

refuse to apply the SCA by focusing chiefly on

litigation instead of prevention. See, e.g., Tharp, 149

F.R.D. at 183-84 (stating that application of SCA in

employment discrimination cases “would impede the

progress of that litigation and therefore contravene the

public interest served by such litigation”). While the

court agrees that private litigation has done much to

encourage equality in the workplace, Title VII was

ultimately purposed “not to provide redress but to avoid

harm.” Faragher, 524 U.S. at 806, 118 S.Ct. 2275. As

explained above, the SCA furthers that purpose by

encouraging employers to take positive steps to prevent discrimination without the necessity of judicial intervention.
The SCA has existed in this district for thirty years, and as evidenced by Woods, the undersigned has applied it in the employment discrimination context. The foregoing discussion demonstrates that University of Pennsylvania does not compel a contrary result on the facts of this case and that the SCA generally furthers the purposes of Title VII. On balance, encouraging employers to undertake candid self-evaluations of their performance in the equal employment opportunity area is a sufficiently important interest to warrant the privilege. Accordingly, the court concludes that the SCA may apply in Title VII cases generally as well as in this case specifically.
B. The Scope of the SCA and its Application to Specific Documents Having determined that the SCA applies, the court must now decide the proper scope of the privilege and whether the withheld documents fall within the privilege. In so doing, the court remains cognizant that privileges should be strictly construed. University *386 of Pennsylvania, 493 U.S. at 189, 110 S.Ct. 577. Thus, the court begins by outlining some basic parameters for determining when particular information falls within the scope of the SCA.
[3] [4] Courts recognizing the SCA have generally insisted on at least three criteria: (1) “the information must result from a critical self-analysis undertaken by the party seeking protection”; (2) “the public must have a strong interest in preserving the free flow of the type of information sought”; and (3) “the information must be of the type whose flow would be curtailed if discovery were allowed.” Dowling, 971 F.2d at 426 (quoting Note, The Privilege of Self-Critical Analysis, 96 Harv.L.Rev.1983, 1086 (1983)). Accord Gatewood, 170 F.R.D. at 459; Sheppard, 893 F.Supp. at 7; Reichhold, 157 F.R.D. at 527; Etienne v. Mitre Corp., 146 F.R.D. 145, 147 (E.D.Va.1993). The Dowling court observed that a fourth criterion should be added: “that no document will be accorded a privilege unless it was prepared with the expectation that it would be kept confidential.” Dowling, 971 F.2d at 426. This court would also stress that the privilege protects only subjective analysis designed to have a positive societal effect. The SCA does not apply to objective factual or statistical information. See Banks, 53 F.R.D. at 285 (protecting only “written opinions and conclusions” of research team but requiring defendant “to provide the plaintiffs with any factual or statistical information that was available” at time team conducted its study).
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Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379 (2001)

[5] Several of the documents at issue in this case do not meet all of the aforementioned criteria and therefore are not subject to the privilege. Specifically, the court finds that the following documents fall outside the scope of the SCA: Lockheed’s affirmative action plans and attachments thereto; yearly and monthly reports concerning utilization goals by branch; job area acceptance range reports; back-up data reports concerning job impact; reconciliation reports; worksheets for determining OFCCP eight-factor analyses; and materials concerning progress toward goals.
First, although the information resulted from a self-analysis performed by Lockheed, the court cannot say that the information itself constitutes subjective analysis designed to have a positive impact on equalizing employment opportunities. Lockheed has repeatedly asserted that the information contained in these documents should be privileged because, in enforcing the regulations that require federal contractors to create affirmative action plans, the OFCCP affords the company certain evaluative discretion. For example, federal regulations require that the affirmative action plan of federal contractors contain job group, availability, and utilization analyses based on a consideration of eight specific factors. See 41 C.F.R. § 60-2.11(b). Lockheed argues that, because it can choose how to define its own job groups and how to weigh the eight factors, the process constitutes self-critical analysis. Similarly, Lockheed argues that the OFCCP’s practice of allowing contractors to choose among various plans for determining underutilization renders the information produced in many of the reports self-critical. See 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 1111-12 (3d ed.1996) (discussing choices for determining underutilization). Once these particular choices are made, however, it appears that the information contained in the documents is derived simply by compiling data related to the mandatory factors. By and large, the information contained in these reports is factual, and the discretion afforded to the employer at the beginning of the process does not change the objective nature of the information. In short, “[a]lthough the figures required might be susceptible to some well-based speculation, this, in and of itself, does not appear to be a valid reason for withholding the self-evaluation aspects of [Lockheed’s] AAPs.” O’Connor v. Chrysler Corp., 86 F.R.D. 211, 215 (D.Mass.1980) (reviewing applicability of SCA to utilization analysis in affirmative action plan). Cf. Hardy, 114 F.R.D. at 642 (questioning whether documents referring to minority utilization analyses are evaluative “since it is simply a recording of statistical information”).
*387 Second, the court perceives no strong public interest in preserving the free flow of the information contained in the aforementioned documents, nor is this the type of information whose flow would be curtailed if discovery

were allowed. As intimated above, all of the documents at issue were produced in compliance with mandatory reporting requirements.4 As demonstrated, the primary policy rationale for applying the SCA is to encourage employers to candidly evaluate and positively impact equal employment opportunities. In other words, the privilege is designed to avoid a “chilling effect” on employers’ voluntary efforts to prevent discrimination in the workplace. With regard to documents such as those at issue here, however, any chilling effect would be de minimis since the documents are mandated by law. See Tharp, 149 F.R.D. at 182; Etienne, 146 F.R.D. at 148. And while the court is sensitive that disclosure might prompt some employers to be less forthright in exercising their discretion under the OFCCP system, it is not convinced either that this result is inevitable or that the OFCCP itself could not remedy that problem.5

4

Lockheed’s affirmative action plans and related

materials were prepared pursuant to the mandates of

Executive Order 11246 and 41 C.F.R. § 60-2.1.

5

For these reasons, the court disagrees with those

decisions suggesting that the SCA should apply

primarily to documents mandated by law. See, e.g.,

O’Connor, 86 F.R.D. at 218 (noting interest “in

confidentiality ... to assure fairness to persons who have

been required by law to engage in self-evaluation”);

Webb, 81 F.R.D. at 434 (stating that “materials

protected have generally been those prepared for

mandatory governmental reports” because “in view of

the fact that the filing of such reports is mandatory, the

policy favoring equal opportunity in employment

requires that employer be encouraged to be candid and

complete in preparing such reports”). Lockheed,

however, argues that this court’s previous ruling in

Woods applied the SCA to mandatory affirmative

action plans. While the Woods decision clearly

protected from discovery the self-critical portions of the

employer’s affirmative action plans, the court has found

nothing in that decision stating that the plans were

created pursuant to government mandate. As such,

Woods does not necessarily counsel a conclusion

different from that reached in this case.

Furthermore, the fact that this information was mandated by the OFCCP lessens any reasonable expectation that the information would remain confidential. The OFCCP’s regulations provide for the general disclosure of “identifiable records obtained or generated pursuant to Executive Order 11246” if such disclosure “furthers the public interest and does not impede any of the functions of the OFCCP.” 41 C.F.R. § 60-40.2. The regulations specifically require that affirmative action plans be disclosed upon request, id., although the agency will withhold confidential commercial or financial information, as well as staffing or pay information to the extent it
6

Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379 (2001)

would injure the business position of the contractor. See 41 C.F.R. § 60-40.3(a). With the prior approval of the agency’s director, the OFCCP may withhold other records on a case-by-case basis. 41 C.F.R. § 60-40.3(b). Accordingly, although a federal contractor may be able to secure the confidentiality of certain OFCCP documents, the general rule is that records filed with the agency will be de disclosed to the public if requested. Because the aforementioned documents do not meet the criteria for protection under the SCA, the court GRANTS Plaintiffs’ motions to compel as to these documents.6

6

Additionally, Plaintiffs are entitled to any withheld

publications of the United States Department of

Education. These documents were produced for

publication by the federal government and contain

objective statistical information. As such, they do not

meet any of the criteria for applying the SCA and are

not subject to the privilege.

the candid and frank assessments contained in the reports as such evaluations would almost certainly be curtailed if discovery *388 were allowed. Indeed, the reports at issue here appear extremely similar to the internal research reports protected in Banks and represent the classic example of the type of information privileged by the SCA in the employment discrimination context. Accordingly, Plaintiffs’ motions are DENIED as to these documents.7

7

Plaintiffs’ motions are also denied with regard to the

withheld control and compare reports from Lockheed’s

databases. While these documents are not privileged

under the SCA, the court finds that they are neither

admissible nor likely to lead to admissible evidence.

Should Plaintiffs disagree with the court’s ruling in this

regard, they may file another motion to compel

showing why the documents are discoverable.

[6] By contrast, reports produced for Lockheed’s Diversity Council relating to the company’s work culture are clearly protected under the SCA. These reports resulted from a voluntary self-evaluation of Lockheed’s work environment to facilitate the creation of diversity initiatives and improve the company’s performance in equalizing employment opportunities, thereby satisfying the first and fifth criteria. Moreover, because the reports were designed for internal use rather than widespread publication, they satisfy the fourth criterion as well. Finally, there exists a strong public interest in preserving

III. CONCLUSION For the foregoing reasons, Plaintiffs’ motions to compel [63-1; 83-1]are GRANTED in part and DENIED in part. The motions are DENIED as to Lockheed’s internal reports concerning work culture and the control and compare reports from Lockheed’s databases. The motions are GRANTED in all other respects.
	  

7